R v Cacic [2002] VSCA 216

2. Having had the advantage of reading in draft the reasons for judgment prepared by Chernov, J.A., I agree that the application for leave to appeal against conviction should be dismissed for the reasons given by his Honour.

7. In my opinion the application should be dismissed for the reasons stated by Chernov, J.A.

12. On 3 December 2001 the applicant, Ivan Cacic who is now aged 66, pleaded not guilty in the Supreme Court of Victoria at Melbourne to a presentment charging him with one count of manslaughter alleged to have been committed by him on 14 September 1999. The applicant was first arraigned on 26 April 2001 and pleaded not guilty but after the evidence was presented at that trial, the jury was discharged without verdict for reasons which are not relevant for present purposes. After a second trial which lasted some six days, the jury returned, on 11 December 2001, a verdict of guilty. Following a plea in mitigation made on his behalf, the applicant was sentenced to a term of four years' imprisonment. The sentencing judge directed that he serve a minimum period of one year and nine months' imprisonment before being eligible for parole. The applicant now seeks leave to appeal against his conviction on grounds to which reference will be made later.

16. I now turn to deal with the circumstances surrounding the offending and the relevant evidence that was given at the trial. It was the prosecution's case that the applicant assaulted Desmond Hallinan at the Royal Hotel in Footscray on the evening of Friday 3 September 1999 with a pool cue by pushing the end of it into his face. As a result, the cue penetrated his left eye and damaged vital arteries, thereby interrupting the blood supply to the front part of the brain. The deceased died from that injury on 14 September 1999. The count of manslaughter was put on the basis that the assault was an unlawful and dangerous act. So far as is relevant, it was the Crown case that the applicant intentionally assaulted the deceased with a pool cue but it was not alleged that he thereby intended to cause the deceased serious harm.

19. The applicant came to Australia from Croatia in 1969 when he was approximately 33 years of age and worked here in various manual occupations until 1985 when he was classified as unfit for work. Since then he has been on a disability pension. Although he can speak English, he apparently has difficulty with comprehension and for the purposes of the record of interview, to which I will refer later, the committal hearing and the trials, he had the benefit of an interpreter. The applicant never married and seems to have lived a lonely life. His principal social outlet was the Royal Hotel which he visited regularly. He was well known to the staff of the hotel, particularly to the deceased who was a barman there. So far as is relevant, the other regular patrons of the hotel included Branko Bosnjak ("Bosnjak"), who also came from Croatia, and Patricia Paull ("Paull").

22. The applicant and Bosnjak, although occasionally on friendly terms, were often involved in heated and abusive arguments in the hotel and such altercations sometimes degenerated into physical fights. During some of those disputes, the applicant resorted to using a pool cue as an actual or potential weapon against Bosnjak. On a number of those occasions, the deceased had intervened to separate the two men and had previously ordered the applicant off the premises. Indeed, during a heated argument with Bosnjak at the hotel on 17 August 1999, the applicant had picked up a pool cue and walked towards Bosnjak, moving the cue into a horizontal position. The deceased, on that occasion, had jumped the bar to separate the two men and snapped the pool cue out of the applicant's hand before ordering him out of the hotel. Similarly, on the evening of Friday 27 August 1999, after abusing Bosnjak, the applicant picked up a pool cue and hit Bosnjak on the left arm and chest. A fight then ensued between the two men and the deceased came from behind the bar and again ordered the applicant off the premises.

25. I interrupt the chronology of events to mention that the four Crown witnesses relevant for present purposes were Bernadine Anita Jones ("Jones"), who was the bar person at the hotel, and three hotel patrons, Solomon Faisa Barudea ("Barudea"), Getahun Abebe ("Abebe") and Paull. Although the first three did not see the deceased being struck with the cue, they did give evidence about what occurred shortly before and after that event. It was only Paull who said that she saw the whole incident and in particular, the applicant moving the cue towards the deceased and striking the end of it into his face.

28. On the evening of Friday 3 September 1999 the applicant arrived at the hotel with a lady friend at approximately 6 p.m. and, during the early part of the evening, was friendly towards Bosnjak and even bought him a glass of beer. The bar area where the applicant drank contained three pool tables. As the evening progressed, the number of patrons grew so that by about 9 p.m. there were approximately 40 to 50 people standing or sitting in that area. Most of them were occupied watching the football on a television which was located at the end of the bar, away from the area where the deceased was hit. By that time, the applicant and his lady friend had parted company for which, it seems, he blamed Bosnjak. The applicant became abusive towards him and an altercation ensued. According to Jones, not long thereafter, when the applicant was "ranting" and waving his arms at the seated Bosnjak, the deceased told Bosnjak to ignore the applicant and yelled at the latter several times to "shut up and get out". Bosnjak eventually stood up and turned towards the applicant who threw an empty beer glass towards him which landed at his feet. The applicant and Bosnjak then became involved in a physical skirmish and, according to the witness, it was about then that the deceased jumped over the bar to separate them. Jones said that when that occurred the applicant went to a pool table and picked up a cue and faced Bosnjak. According to the witness, he held it with both hands and moved it from left to right and back about five times quickly, generally in the direction of the deceased and Bosnjak. She said that, although Bosnjak stepped back, the deceased was unable to do so. The witness stated that the path of the end of the cue was close to the face of the deceased. Although she did not see the cue contact the deceased, she said that she heard a noise similar to that of a branch snapping. Jones said that the deceased fell to the floor face down with his arms by his side and that her initial reaction was that he had over-balanced. A little later, she saw a piece of the cue protruding from the deceased's left eye and saw the applicant run out of the hotel.

31. Barudea and Abebe said that, at the relevant time, they were drinking at the other end of the bar area to that where the incident occurred. Each, however, said that he saw the applicant and Bosnjak fighting one another and that, before the deceased arrived to separate them, the applicant had a cue in his hands. Barudea said that the applicant swung the cue backwards and forwards with the tip moving as if trying to hit Bosnjak. The witness Abebe claimed that he saw the applicant holding a pool cue in both hands which he was moving horizontally as if trying to prod Bosnjak in the stomach; it seems that this occurred before the deceased came to the fight. Both witnesses said that they then saw the deceased jump over the bar, apparently to break up the fight, and that within seconds he fell to the ground. They could not say what caused him to fall but said that the applicant stood for a few seconds after this occurred and then dropped the cue and ran out of the hotel.

34. Bosnjak said that he had a lot to drink that evening. He nevertheless recalled that the applicant verbally abused him in the bar area and then hit him across the hand with a pool cue. He said that he then went back to his drink and heard somebody, a woman, crying. He then saw the deceased on the floor but did not see him being struck.

37. As to the state of the applicant's intoxication, again the witnesses were not unanimous on that issue. The police evidence, for example, suggested that when the applicant was arrested he was unsteady on his feet due to intoxication. There was, however, other evidence that indicated that, although the applicant appeared as if he had had a lot to drink, he was not unduly affected by alcohol.

40. The medical evidence given by Jeffrey Rosenfeld, a neurosurgeon, indicated that the injury suffered by the deceased was consistent with one having been caused by a blow from the end of the pool cue. He said that it was most likely that the intrusion had been by the cue moving into the orbit of the face and not by a side swipe, but he could not determine whether the face moved towards the cue or the cue moved towards the head. Further, he said, not much force would have been needed to penetrate the socket and that the death was "freakish", in the sense that the deceased was unlucky that the path of the cue was such as to cause significant direct damage to the arteries in the brain.

43. Paull was obviously an important Crown witness. She was, as I have said, the only witness who claimed to have seen the cue strike the deceased in the face. It is relevant to mention at this point that by the time of the second trial, however, for reasons which I will give later, she was unable to speak or hold a cue in her hands for demonstration purposes. In the circumstances, her evidence at the trial consisted of the evidence that she gave at the first trial, which was adduced pursuant to s.55AC of the Evidence Act 1958, and of a demonstration by which she essentially sought to reproduce the direction in which the applicant moved the cue. In substance, her evidence was that she sat not far from where the applicant was arguing with another drinker and that she had a clear view of him, although the other person had his back to her. She estimated that the distance between the two men was two to three feet and said that the applicant was, in effect, facing in her direction.

46. Paull said that her attention was particularly drawn to the two men when the deceased "jumped the bar" apparently in order to separate them and that by the time that occurred the applicant was holding a cue in one hand with its tip pointed at the ceiling at an angle, away from the deceased. Within a "minute or a few seconds" the applicant swung the cue and went "clunk". She saw the deceased's face being hit by the cue but she did not know if it had gone into his eye. Paull said that the applicant moved or swung the cue only once before the deceased was struck, although that apparently occurred after he moved it so as to transfer it from one hand into both hands. He then swung the cue back across his body hitting the applicant in the face. She said that after he was struck, the deceased fell to the ground and the applicant ran quickly past her and out into the street. Paull further said that, when the deceased swung the cue, he had an "I want to hurt you" look in his eyes an that "the look in his eye was like murder, if looks could kill, you know, that type of thing".

49. At the first trial, Paull gave a number of demonstrations as to the movement of the cue, and although the transcript does not fully convey their content, the first trial judge summarised for the jury the critical aspect of them. The accuracy of that summary was accepted by Paull at that time and by the applicant's counsel in his final address to the jury. The judge said, in effect, that Paull's demonstration showed that when the applicant had the cue in one hand, its end was pointing away from the deceased, but he then took hold of it with both hands and swung it in the direction of the deceased. Contrary to the evidence of others on this point, however, Paull did not accept that the person with whom the applicant was involved in the argument was Bosnjak; she said that it was another person with whom the applicant had a little earlier played pool in the bar area. According to her, Bosnjak was not present in the bar during the whole evening. It will be recalled, however, that Paull had said in her earlier evidence that the person with whom the applicant argued had his back to her.

52. The applicant was arrested by the police after he returned to the hotel to collect his things some half an hour or so after running out of it in the circumstances described earlier. On the following morning the police conducted a recorded interview with him. Some of his answers were provided through an interpreter while others were given directly by him. Many of them, however, were disjointed and non-responsive. Near the outset of the interview, the applicant seems to have denied having held a cue at the hotel on the previous evening but then he effectively admitted that he did so and did not deny that he hit the deceased with it.

55. The applicant called no evidence, and a principal issue before the jury was whether he intended to use the cue as a weapon and move it into or towards the face of the deceased by way of an assault (albeit without intending to cause the death or serious injury) or whether the event was a mere accident that occurred in the heat and turmoil of the moment. The applicant's case at the trial was that he had no intention of using the cue as a weapon and his counsel seems to have relied, at least in part, on his intoxication as negativing any deliberate intent to hit the deceased. He claimed that the deceased was struck accidentally in the heat of the moment during an agitated dispute between the applicant and Bosnjak when they were both intoxicated and after Bosnjak had allegedly assaulted him just before the deceased arrived to separate them. More particularly, the applicant's counsel contended that the accident occurred when the applicant swung the cue backwards and forwards on a number of occasions as described by the witness, Jones. It is not surprising, therefore, that Paull's evidence on this issue and, in particular, her demonstration of the path of the cue, assumed some importance at the trial.

59. I now turn to consider the submissions made for the applicant in support of the grounds of the application for leave to appeal and I do so principally in the order in which they were argued.

62. There were three grounds in the notice of application for leave to appeal and Mr. Shwartz, who appeared for the applicant before us but not below, first sought to argue ground 3 as it was formulated in the notice. But because the outline of his submissions made it appear that his argument would go beyond the terms of that ground, he sought leave to amend his notice of application by substituting for ground 3 the grounds referred to below. This application was not opposed by Mr. Hillman for the Crown and the leave sought was granted. The new grounds are as follows:

"3. The learned trial judge erred in allowing the Crown to call Patricia Paull to give evidence as to what she physically demonstrated at the previous trial as to the path of the pool cue which she purported to have seen. 4. (a) The learned trial judge erred in allowing the Crown to tender under s55AC of the Evidence Act 1958 the evidence of Patricia Paull given at the applicant's previous trial because Patricia Paull was not a person who was "incapable of giving evidence" for the purposes of s55AC(2)(h) of that Act. (b) Alternatively, his Honour should not have allowed the Crown to tender Patricia Paull's earlier evidence because, in the circumstances, the tender of such evidence would result in a substantial miscarriage of justice."

The other two grounds pressed by the applicant, grounds 1 and 2 respectively, were that the verdict was unsafe and unsatisfactory and that the verdict was not open on the evidence. It was accepted for the applicant that those grounds raised the one issue.

Failure to preclude Paull's evidence - grounds 3 and 4(b)

68. I turn first to the conviction grounds. Mr. Shwartz did not press ground 4(a). Indeed he specifically conceded that Paull was incapable of giving evidence at the trial. But under cover of ground 3 and 4(b) he essentially contended that his Honour erred in permitting the Crown to adduce Paull's earlier testimony and to call her as a witness at the trial. It was argued that:

(a) In the circumstances, the tendering of Paull's earlier testimony rendered the trial unfair to the applicant.

(b) If Paull's earlier testimony could have been properly adduced, then Paull should not have been permitted to be called as a witness because:

(i) s.55AC of the Evidence Act precludes evidence being led from a witness to "top up" the witness's earlier testimony (as was sought to be done here);

(ii) his Honour should have excluded the evidence in the exercise of his discretion in order to avoid an unfair trial.

I now turn to consider each of these contentions.

(a) Paull's earlier testimony

74. Mr. Shwartz accepted that, ordinarily, once the requirements of s.55AC are satisfied, the earlier evidence of the witness becomes admissible in a subsequent proceeding. Counsel argued, however, that the trial judge was under an obligation to scrutinise carefully Paull's earlier testimony and consider whether its "quality" was such that, in the circumstances, there was a real risk that its introduction into evidence, in conjunction with Paull's evidence, would render the trial unfair to the applicant. In support of his submission Mr. Shwartz referred to what he claimed was said in this regard by the Privy Council in Scott v. R.[1]. In that case, their Lordships dealt with the admissibility into evidence of a deposition under a statutory provision not dissimilar from s.55AB of the Evidence Act. The Privy Council recognised that, although a trial judge has power at common law to exclude in the interests of justice the admission of a deposition which is otherwise admissible, such power should be exercised with great restraint. Nevertheless, said Lord Griffiths for the Board[2], the judge must scrutinise the deposition "to ensure that it does not contain inadmissible matters such as hearsay or matter that is prejudicial rather than probative and any such material should be excluded from the deposition before it is read to the jury." His Lordship went on to say:

"It is the quality of the evidence in the deposition that is the crucial factor that should determine the exercise of the discretion. By way of example if the deposition contains evidence of identification that is so weak that a judge in the absence of corroborative evidence would withdraw the case from the jury; then if there is no corroborative evidence the judge should exercise his discretion to refuse to admit the deposition for it would be unsafe to allow the jury to convict upon it. But this is an extreme case and it is to be hoped that prosecutions will not generally be pursued upon such weak evidence. In a case in which the deposition contains identification evidence of reasonable quality then even if it is the only evidence it should be possible to protect the interests of the accused by clear directions in the summing up and the deposition should be admitted. It is only when the judge decides that such directions cannot ensure a fair trial that the discretion should be exercised to exclude the deposition."

78. Counsel's principal argument was that the judge erred in allowing Paull's earlier testimony to be adduced because, in the circumstances, its prejudicial effect outweighed its probative value. More particularly, it was said, Paull's earlier testimony conflicted with that of Jones on at least two important matters, one being the number of times that the applicant moved the cue from one side of his body to the other before he struck the deceased with it, and the other being the presence of Bosnjak at the hotel on the evening in question. Moreover, it was claimed, it was apparent before Paull gave her evidence at the second trial, that her then proposed demonstration of how the cue was moved by the applicant would be inconsistent with that given by her at the earlier trial. Counsel argued that in fact her evidence at the trial was inconsistent with that given previously and it was otherwise unsatisfactory and unreliable. Furthermore, it was claimed, it was plain that the applicant's counsel would be denied the opportunity of meaningfully cross-examining the witness. Thus, it was said that his Honour should have ruled that Paull's earlier testimony should not be led by the Crown and that his failure so to rule constituted error.

81. It seems to me, however, that the success of Mr. Shwartz's argument must be dependent upon his establishing that his Honour should not have permitted the Crown to call Paull as a witness. This is because, in my view, there is nothing inherently inadequate about her earlier testimony - that there was a conflict between her evidence and that of Jones on two factual matters did not render her earlier testimony relevantly inadequate. This conflict was one for the jury to resolve and, in my view, it could not be said that it caused Paull's earlier testimony to lack "quality" in the sense that that term was used in Scott. Consequently, if, as I think, there was nothing inherently wrong with Paull's earlier testimony, then the only basis on which it could have been excluded was that, if taken together with the evidence that Paull was then to give, it would have rendered the trial unfair to the applicant. Hence, it is now necessary to consider whether his Honour erred in not precluding the Crown from calling Paull as a witness, assuming for current purposes that her earlier evidence was to be adduced under the Evidence Act.

85. In support of his contention that his Honour did so err, Mr. Shwartz submitted first that s.55AC of the Evidence Act precludes the calling of such evidence from a witness whose earlier testimony has been adduced under that provision particularly where it is to be led to add to or explain the earlier testimony. Counsel argued that this was what the Crown sought to do by calling Paull as a witness.

88. Mr. Shwartz sought to gain support for this argument from decisions that dealt with the equivalent of s.55AB of the Evidence Act which, he claimed, recognise that, save in exceptional circumstances, a deposition that is tendered under that provision in a subsequent proceeding cannot be added to or otherwise changed by subsequent evidence of the deponent. Similarly, it was said, since the earlier testimony of Paull was tendered under s.55AC of the Evidence Act, it could not be modified or explained by the subsequent evidence of the same witness. In that context, Mr. Shwartz cited Attorney-General (N.S.W.) v. Jackson[3]. So far as is relevant, that case was concerned with the question whether a deposition was admissible under legislation not dissimilar from s.55AB. It was claimed that something that was said by the witness on a preliminary investigation was omitted from the deposition and it was argued that because of that defect, the deposition was rendered inadmissible. The High Court held, however, that although the omission of certain words from the deposition may go to its quality and afford ground for comment or attack on its value as evidence, it did not touch its admissibility. It was said for the applicant that, importantly for present purposes, Griffith, C.J. in that case considered that the investigation of what was or was not omitted from the deposition was effectively excluded by the words of the provision. The Chief Justice said[4]:

"The statement might be true or false, but it would have to be investigated on each occasion. I suppose the Judge would have to determine whether anything was left out, what was left out, and how far it was material. That would be a new kind of investigation for the purpose of determining the admissibility of a deposition. In my opinion, all such questions are excluded by the plain words of the Statute. The legislature has thought fit to lay down certain rules for determining the admissibility of depositions, and in doing so it must be taken to have had regard to the fact that depositions are not always, probably never are, absolutely verbally correct. The Judge is charged with the duty of seeing that these rules have been regarded, and the legislature has prescribed conditions for ensuring substantial accuracy."

Mr. Shwartz argued that a like position applies to s.55AC so that Paull could not be called to explain her earlier testimony which could only have been adduced under that provision.

93. In my view, however, Jackson was concerned with an entirely different issue from that which is now being considered and that is one reason why the case is not determinative of the matter for which Mr. Shwartz contends. But, in any event, their Honours in that case did not suggest that a deponent is precluded from giving evidence to contradict that which is attributed to him in the deposition. On the contrary, the learned Chief Justice specifically left open[5] the question whether it is permissible to give evidence for the purpose of seeking to establish that the witness's evidence was different from that appearing in the deposition.

96. Mr. Shwartz then argued that the operation of s.55AC(2) is predicated on the witness in question being "incapable of giving evidence" within the meaning of sub-s.(2)(h). Consequently, it was submitted, once a person falls within that provision, he or she is regarded as being incapable, and therefore precluded from, giving further evidence in relation to the earlier testimony. Hence, it was said, Paull could not have properly given evidence at the second trial. In my view, however, neither the terms nor the policy underlying s.55AC support such an argument.

99. Mr. Hillman submitted that s.55AC should be given a practical and sensible operation. I agree. It seems clear enough that one of its aims is to provide the court at re-trial with the opportunity of having before it testimony that was given at the earlier trial where, due to circumstances identified in the section, the witness is incapable of giving that evidence (again). Section s.55AC was inserted into the Evidence Act by s.35 of the Crimes (Criminal Trials) Act 1999 which was concerned with improving the efficiency of the conduct of criminal trials. Although there is no direct reference in the Second Reading Speech or in the debates on that clause, the then Attorney-General, Mrs. Wade, spoke in her Second Reading Speech of "miscellaneous amendments" being made to the Evidence Act and the Magistrates' Court Act 1989 which were directed to "improve the criminal process". Consistently with that observation, the Explanatory Memorandum to the Bill stated that the provision brings "evidence obtained at an earlier trial in line with evidence obtained by a magistrate at a committal proceeding, or under the Coroner's Act 1985". It seems plain enough, therefore, that s.55AC was modelled on s.55AB, sub-s.(2) of which makes provision for the use of depositions made before magistrates or coroners. It appears that both ss.55AB and 55AC reflect, and in some respects expand, the pre-existing common law rule which makes admissible, where the witness is dead or whose absence has been procured by the defendant or where he or she is too ill to travel, the depositions and transcripts of such evidence, as an exception to the hearsay rule.[6]

102. The question whether the former testimony of a witness can be adduced under s.55AC of the Evidence Act will ordinarily arise in the context of a re-trial and the essential question will be, is the witness incapable of giving the evidence that he or she gave at the earlier trial for the purposes of sub-s.(2)(h). There will be situations where a witness will be not able to give any evidence at all at the subsequent trial because of an incapacity he or she has suffered after the first trial. But there will be situations where the supervening incapacity will not totally deprive the witness of giving evidence and, as here, the witness will be able to give some evidence, such as by way of gestures[7]. Given the history of s.55AC of the Evidence Act and that it is plainly an enabling provision, sub-s.(2)(h) should not be read as depriving such a witness from giving subsequent evidence. It is not confined in its operation to persons who are wholly incapable of giving evidence, and the contrary was not suggested by Mr. Shwartz. He accepted that Paull, who was capable of giving some evidence, nevertheless fell within sub-s.(2)(h). Thus, the provision may operate in respect of a witness who, due to supervening incapacity, is incapable of giving evidence within the ordinary meaning of that expression, namely, not capable, as a witness, of fully relating facts in response to non-leading questions and thus, not able to reproduce the substance of the earlier testimony, but who is nevertheless able to give limited evidence. Where that is the case, there is nothing in the terms of the section, or in its underlying purpose, that suggests that such a person is precluded at a re-trial from giving such limited evidence in relation to relevant matters, including the earlier testimony. Whether such additional evidence should be admitted is an entirely separate question which is to be resolved in the discretion of the trial judge.

105. I am of the view, therefore, that s.55AC did not operate to render Paull's evidence inadmissible as was contended for by Mr. Shwartz.

108. The question remains, however, whether, in permitting Paull to give such evidence, there was a risk that the trial would have been rendered unfair to the applicant. Such an issue was essentially one for the discretion of the trial judge who had the power (and obligation) to exclude evidence to circumvent injustice. It might be said that, in a case where an important witness is effectively mute and, principally for that reason, cannot be meaningfully cross-examined by the accused's counsel, courts should be slow to allow that witness to be called to give evidence in order to explain the earlier testimony. The calling of such evidence may render the trial unfair to the accused, not only because counsel may be deprived of an effective opportunity to cross-examine the witness, but also because such evidence may give rise to the risk of a substantial dispute as to whether there is a conflict between the later and the earlier evidence and, thus, give rise to the possibility of further evidence being called on the question of the alleged inconsistency. This would effectively produce a trial within a trial. Clearly, all the circumstances must be considered for the purpose of determining whether the calling of the witness in the circumstances outlined, is likely to create a miscarriage of justice.

111. Mr. Shwartz, as I have said, strongly argued that, in order to avoid an unfair trial, the learned trial judge should have precluded the Crown from calling Paull as a witness. It was said that the transcript and the video tape of her evidence on the voire dire make it apparent that, at least in part due to her physical disability, her evidence was unsatisfactory in the sense that she was slow in her responses, hesitant and inconsistent and that the demonstration which she provided as to the movement of the cue was different from that which she gave during the first trial. The unfairness to the applicant in allowing such evidence to be led, it was said, lay in the critical fact that, because of Paull's condition, the applicant's counsel could not meaningfully cross-examine her as to her prior inconsistent evidence at the first trial (or at the committal proceeding). Thus, it was said, his Honour should not have permitted the Crown to call Paull as a witness.

114. In support of this aspect of his case, the applicant sought to file an affidavit sworn by the applicant's trial counsel shortly before the application came on for hearing before us. It was said that the material in the affidavit established the inconsistency in Paull's evidence for which the applicant contends. The Crown objected to the affidavit being filed and, although we agreed to receive it, we deferred ruling on its admissibility.

117. In considering counsel's attack on his Honour's ruling it is necessary to have regard, inter alia, to the context in which the question arose for consideration and whether any unfairness resulted from Paull being called as a witness. The circumstances in which she was called as a witness were these. After the first trial, Paull underwent surgery on her tongue which rendered her incapable of speaking. Further, because her arthritic condition had also deteriorated by the time of the second trial, she was unable to write or hold an object such as a pool cue in her hands. She could, therefore, only give a demonstration of the path of the cue in the applicant's hands by moving her own hands as if she were holding a cue. At an early stage of the second trial it was made plain by the Crown that it intended to adduce as Paull's evidence, the transcript of her testimony at the first trial pursuant to s.55AC of the Evidence Act on the basis that she was physically incapable of giving evidence. His Honour, however, expressed the view that, if that were to occur, Paull should be called as a witness to show what she had relevantly demonstrated at the first trial in order to prevent relevant prejudice to the applicant. The judge even indicated that he might not permit the Crown to tender her earlier testimony unless she was called as a witness. The Crown, however, maintained that Paull was not physically capable of giving any such demonstration. In response, the applicant's counsel effectively submitted that it would be unfair to the applicant if, as was proposed, the transcript of Paull's earlier evidence was tendered without her being called to establish the movement of the cue as demonstrated at the first trial. Both his Honour and the applicant's counsel were mindful of the fact that the transcript of the first trial essentially recorded only the fact that Paull had given a demonstration of the path of the cue and that no video recording was made of that demonstration for the jury to view. Nevertheless, the applicant's counsel seems to have formed the view that, notwithstanding Paull's physical condition and the limitation that that obviously imposed on her ability to give evidence (or to be cross-examined), it would be in his client's best interests if she was called to demonstrate what she had shown to the first jury. Later in the course of the trial, counsel again emphasised to the judge in fairness to the applicant, the need for the Crown to call Paull as a witness notwithstanding that it had not only expressed doubt that Paull could be made available as a witness, given her physical condition, but contended that such evidence would be "inadmissible".

120. I now turn to the question whether the trial was rendered unfair to the applicant because Paull was called as a witness. Paull gave her evidence in three stages. The first stage, which took place before she was sworn, occurred in the absence of the jury. His Honour asked Paull questions to assess her capacity to give a demonstration and in particular, whether she could meaningfully respond, by the shake or the nod of her head, to questions which lent themselves to such responses and whether she could hold a cue in her hands. In the course of that questioning, the learned trial judge asked her to demonstrate with her hands the place where the applicant's hands were on the cue at the relevant time. It seems, however, that her response went beyond a strict answer to the question. His Honour summarised that the witness had demonstrated that the applicant's right hand was put forward and that both hands then moved forward approximately six inches by way of a thrust (towards the deceased).

123. The applicant's counsel submitted to his Honour that this demonstration, particularly the alleged thrust of the cue by the applicant, was materially different from that shown by Paull at the first trial, something that his Honour said could be tested on a voire dire. Against objections by the Crown, the applicant's counsel was permitted to cross-examine Paull on a voire dire, which was the second stage of her evidence. In the course of that, Paull effectively demonstrated with her hands how the applicant moved the cue. This demonstration is recorded by way of his Honour's summary of it and is on a video film. In my view, this demonstration seems to have been not materially different from that given at the first trial.

126. At the conclusion of the voire dire, the applicant's counsel submitted that Paull's evidence "be excluded in total" because, he said, it would result in unfairness to the applicant. Counsel argued that the evidence she proposed to give was materially different from that which she gave at the earlier trial and that, given the witness's physical condition, it would not be possible for him to cross-examine her meaningfully about her prior inconsistent evidence. Counsel claimed that this would deny the applicant a fair trial. Thus, he urged his Honour essentially to rule that the Crown could not adduce Paull's earlier evidence or lead evidence from her at the trial.

129. His Honour declined so to rule partly because, he said, he had no effective means of satisfying himself as to whether any demonstration given by the applicant was different from that given at the first trial. Of more significance, said his Honour, he was satisfied that the potential for unfairness was essentially speculative. Importantly, the judge considered that any prejudice flowing from the tender of Paull's earlier testimony and from her evidence at the second trial would be overcome by implementing a number of steps, to which I will refer later. In his reasons for his ruling[8], which were given after Paull had completed her evidence before the jury (the third stage of her evidence), his Honour noted that he was satisfied that there was no unfairness to the applicant by reason of Paull having given evidence.

132. In my view, no relevant injustice flowed to the applicant from his Honour's ruling given the following circumstances. First, before Paull's earlier testimony was read to the jury, his Honour gave them a carefully worded and, in my view, helpful, explanation of how and why the transcript of that testimony became evidence in the second trial. His Honour told them that the transcript of Paull's evidence at the first trial by itself might not have given them a true picture of what she had demonstrated at the first trial, hence, it was necessary for her to try and show them what she had done at the first trial. Next, notwithstanding that, as I have said, the evidence was read to the jury, and they were given the transcript of that evidence. The judge also explained the difficulty that Paull's physical condition presented to the applicant's counsel for the purposes of cross-examining her. Further, the judge directed Paull to be placed in a position in the court where her demonstration would be recorded on a video tape and re-played by the jury if they so wished. I have viewed the video film of her demonstration on the voire dire and her evidence given to the jury and found it of great assistance in being able to understand Paull's evidence as to the relevant movements of the cue.

135. In my opinion the claim by the applicant's counsel that Paull's demonstration at the trial was unsatisfactory and was materially different from that given by her at the first trial is unsustainable. Any slowness in movement of her hands or in her reaction to questions was patently due to her age and physical condition and, although it might have gone to her credit, such demeanour did not render her evidence relevantly unsatisfactory. I have watched the video film of her evidence a number of times and I am satisfied that, as I have said, her demonstration of the path of the cue shows with relative clarity that there was consistency in the two demonstrations. I am also of the view that, overall, the evidence thus given by the witness was not relevantly different from that which she gave at the first trial, and as I have said, there was no undue lack of clarity or lack of certainty about it.

138. Notwithstanding the claim now made as to the alleged inadequacies in Paull's evidence, the applicant's counsel did not cross-examine her on this issue. As Mr. Hillman pointed out in his argument, contrary to what was submitted below and to us on behalf of the applicant, it was well open to the applicant's trial counsel to put to Paull any alleged inconsistency that was said to have existed in her earlier evidence. There should have been no difficulty in doing this since her demonstration at the first trial was sufficiently summarised by the trial judge in a way which was, as I have said, accepted not only by the witness but also by the applicant's counsel. What she demonstrated during the second trial is also relatively clear from the video film. It was said for the respondent that, having made the forensic decision not to cross-examine the witness, the applicant's counsel cannot now complain that the trial judge should have excluded the evidence because of his inability to cross-examine Paull.

141. I consider that no unfairness ensued from the fact that Paull was called as a witness at the trial. First, as I have said, counsel had the opportunity to put the alleged inconsistency to Paull at the second trial, but must have made a forensic decision not to do so. Secondly, counsel had cross-examined Paull on this subject at the first trial and that cross-examination was read out to the jury and, as I have said, the transcript of that evidence was given to them.

144. Consequently, I am of the view that his Honour did not err in permitting the Crown to adduce Paull's earlier evidence under s.55AC of the Evidence Act or to permit the Crown to call her at the trial.

147. I now deal briefly with the affidavit sworn by the applicant's trial counsel which, as I have explained, Mr. Shwartz sought to file at the outset of the hearing of the appeal. In my view, it contains essentially a series of assertions and arguments and, therefore, its contents are inadmissible. It adds nothing of relevance to what appears in the transcript of the proceedings and to what is recorded on the video film. Consequently, in the circumstances, I would refuse leave to file the affidavit.

150. It follows from what I have said that I consider that grounds 3 and 4(b) should fail.

Grounds 1 and 2 - verdict unsafe or unsatisfactory or unreasonable

154. It was common ground that there is but one relevant criterion that is to be applied in determining whether the verdict can be impugned under the early part of s.568(1) of the Crimes Act 1958, namely, whether the verdict was unreasonable or cannot be sustained on the evidence. The form of the test that is to be applied for the purposes of this section has again been recently discussed by the High Court in MFA v. R.[9]. In that case, their Honours dealt with, inter alia, the resolution by an intermediate appellate court of an application made for leave to appeal against conviction pursuant to a statutory provision similar to s.568(1) of the Crimes Act. Their Honours postulated the relevant test by reference to the terms of the statute, rather than by reference to expressions such as "unsafe or unsatisfactory", or "unjust or unsafe", or "dangerous or unsafe" notwithstanding that it was once common for such expressions to be used in place of the statutory language[10]. Nevertheless, it seems that the substance of the relevant test was not changed; the applicable test, as their Honours' recognised[11], continues to be that stated in M v. R.[12], as it was accepted and applied by the High Court in, inter alia, Jones v. R.[13], namely, whether, notwithstanding that as a matter of law there was evidence to sustain a verdict the appeal court considers that, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.

157. It was the applicant's case that it was not reasonably open to the jury, on the evidence before them, to be satisfied of the applicant's guilt to the requisite standard having regard to the following matters.

(a) The nature and quality of Paull's evidence generally, and in particular her demonstration to the jury of the path of the cue, were unsatisfactory. It was said, for instance, that there was considerable uncertainty in Paull's demonstration of the relevant movement of the cue.

(b) There was a substantial and marked difference in the accounts of the relevant events given by Jones and Paull.

(c) The applicant's counsel was unable meaningfully to cross-examine Paull on the critical issues of the path of the cue and her alleged inconsistent earlier evidence.

(d) By giving the jury a detailed explanation for the admission into evidence of Paull's earlier testimony and the various problems associated with her giving evidence due to her physical condition, as well as the difficulties confronting the applicant's counsel in cross-examining her, his Honour gave Paull's evidence a special character upon which the jury acted in finding against the applicant.

(e) His Honour failed to give the jury directions in relation to prior inconsistent evidence of Paull.

It is convenient to deal with these factors in turn. In relation to the first matter, as I have said earlier and for the reasons that I then gave, I am of the view that Paull's demonstration before the jury could not be reasonably characterised as uncertain in the sense contended for by the applicant's counsel. Given Paull's age and physical condition and the difficulty in explaining precisely on what plane and in what direction, relative to the applicant and the deceased, the cue was moved, her evidence on this issue was relatively clear as the transcript and the video film show. Moreover, as I have also mentioned, there was no material difference between Paull's demonstration of the movement of the cue given at the first trial and that given at the second trial.

163. As to the claimed differences in the evidence by Paull and Jones about the events in question, Mr. Shwartz has been good enough to prepare and provide to us, and to the Crown, a schedule which compares, in summary form, the respective evidence of the two witnesses for the purpose of highlighting the relevant differences in their evidence. A material difference in the evidence, it was said, related to the number of times that the applicant swung the cue - Jones said it was four or five times whereas Paull claimed he swung it only once. But in so far as this difference may be regarded as important, it was a matter which the jury was entitled to take into account in determining what part, if any, of the evidence of each of the two witnesses they would accept or reject. But in my view, it is not a factor that is necessarily determinative of the acceptance or rejection of the whole of the evidence of one or other of the witnesses. In any event, it was well open to the jury to conclude that there was no material difference in their evidence on this issue given that Jones did not claim to have seen the cue strike the deceased, whereas the description and demonstration by Paull related to the period immediately before the cue struck the deceased. Moreover, at both trials Paull said that the applicant moved the cue from one hand to the other and then, with both hands, moved it back across his body thereby bringing its tip from below horizontal to above horizontal and towards the deceased's face. This amounted to two movements of the cue by the applicant across his body. Paull also said that those movements were quick. Jones' version was not materially different - she said that the cue was moved quickly four or five times by the applicant but, as I have said, she did not see the cue hit the deceased's face.

166. Paull's credit was also attacked because she claimed that Bosnjak was not in the bar area of the hotel on the evening in question, in contrast with the evidence of all other relevant witnesses, including Jones, who said he was present. Again, this is a matter that could have been taken into account by the jury in assessing Paull's credit, but it was not, in my view, determinative of whether her evidence had to be rejected. In that context, it should be borne in mind that, assuming that it was Bosnjak who engaged in the altercation with the applicant at the relevant time, according to Paull, he had his back to her.

169. Somewhat surprisingly, given the applicant's above submissions as to Paull's credit when compared with that of Jones, the credit of Jones was also attacked on the basis that she said at the committal proceeding that the deceased was "ducking and weaving" before he was struck, whereas at the trial the witness claimed that the deceased was standing still before he was hit. Again, this may be a matter that the jury could have taken into account in assessing the credit of Jones, but it is not a matter that would have reasonably compelled them to reject her evidence.

172. As to the claim that the applicant's inability to cross-examine Paull somehow made the verdict unreasonable, the short answer is, as I have said, that there was no reason why the applicant's counsel could not have put any alleged inconsistencies in Paull's earlier evidence to her and if they were denied, called evidence to establish the contrary. Moreover, had such a course been pursued, it would have entitled the applicant's counsel to make a powerful comment to the jury. No doubt, for forensic reasons which then appealed to the applicant's counsel, this course was not followed. Further, it is plain from his Honour's charge that he gave the jury a direction as to prior inconsistent statements. Importantly, for reasons that I have given, there is no relevant inconsistency between Paull's evidence at the two trials. I am also of the view that his Honour's explanation to the jury concerning the circumstances in which Paull's earlier testimony was adduced in the trial, including the judge's reference to her physical disabilities and all that flowed from it, did not give Paull's evidence the special character contended for by the applicant's counsel.

175. It was, as I have said, part of the applicant's case that Paull's evidence was critical to the prosecution case in the sense that, if her evidence were to be rejected, the jury could not have properly been satisfied that all the ingredients of the charge had been made out. It is not clear what follows from that submission, given my conclusions as to Paull's evidence. Be that as it may, the submission is based on a false premise because there was sufficient evidence, apart from that of Paull, on which it was reasonably open to the jury to convict the applicant of manslaughter. I refer to the following uncontradicted evidence as to the applicant's behaviour which was additional to that given by Paull -

(a) The applicant was the only person who held a cue at the relevant time in the proximity of the deceased. It was virtually conceded that it was the movement of the cue by the applicant that caused the relevant injury to the deceased.

(b) At the time, the applicant was agitated, was "ranting and raving" at Bosnjak and threw an empty beer glass at Bosnjak.

(d) The disturbance caused by the applicant was so destructive that the deceased told him, inter alia, to get out of the hotel; it also caused the deceased to jump over the bar for the purpose of resolving the issue.

(e) The applicant walked over to the pool table and returned with a cue which he swung in the direction of the deceased's face.

(f) According to Abebe the applicant used the cue, before the deceased was hit with it, by pushing it towards Bosnjak's stomach.

181. As Mr. Hillman pointed out, the jury were entitled to take the view that, because the events occurred in the hotel and had occurred quickly, there would be differences in detail in the evidence of the various witnesses. But on all the evidence, they were entitled to conclude that the applicant committed the unlawful assault and that the other elements of manslaughter were established to the requisite standard.

184. As I have said, an essential question before the jury was whether the applicant intended to use the cue as a weapon to assault the deceased. Having assessed the nature and quality of the evidence in this case, I have come to the firm conclusion that it was reasonably open to the jury to be satisfied to the required standard that the applicant did have the requisite intention and that the other elements of manslaughter have also been established by the prosecution.

190. In the circumstances, I would dismiss the application.

[1] [1989] A.C. 1242.

[3] [1906] HCA 90; (1906) 3 C.L.R. 730.

[6] See, for example, R. v. Hall [1973] Q.B. 496 at 501-504 per Forbes, J. who delivered the judgment of the Court of Appeal and R. v. Thompson [1982] Q.B. 647 at 656-659 per Dunn, L.J. who delivered the judgment of the Court of Appeal and the commentary on the latter case (1982) Crim.L.R. 203. See also Archbold's Criminal Pleadings [2002] at [10-57] and McCormick on Evidence 3rd edn., Ch.25.

[7] See Phipson on Evidence, 15th edn., para.8-02.

[8] Ivan Cacic [2001] VSC 483; (2001) 124 A.Crim.R. 598.

[9] [2002] HCA 53.

[10] At [25] per Gleeson, C.J., Hayne and Callinan, JJ. and at [45, 46] per McHugh, Gummow and Kirby, JJ.

[11] At [25] per Gleeson, C.J., Hayne and Callinan, JJ. and at [57-60] per McHugh, Gummow and Kirby, JJ.

[12] [1994] HCA 63; (1994) 181 C.L.R. 487 at 492-493.