R v Challoner [2000] VSCA 32

[2000] VSCA 32

Court of Appeal (Vic)|2000-03-27|Before: PHILLIPS, C.J., BROOKING and BATT, JJ.A.

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At a glance

Source facts

Court

Court of Appeal (Vic)

Decision date

2000-03-27

Before

PHILLIPS, C.J., BROOKING and BATT, JJ.A.

Source

Original judgment source is linked above.

Judgment (66 paragraphs)

[1]

The applicant gave evidence on his first trial, at which he was represented by very experienced senior counsel. On his second trial, at which he was again represented by senior counsel, he stood mute, the Crown having put in evidence the evidence-in-chief he gave at his first trial. Provided that the obvious fact is borne in mind that the reasons for judgment of the Chief Justice of 28 July 1998 concern the evidence called at the earlier trial, recourse may be had to those reasons to ascertain the circumstances of the killing and the general nature of the evidence called by the Crown, and we therefore do not now provide what might be described as the usual outline. At the outset it is enough to say that the victim, Mrs Lobos, was killed instantly in her front garden on the afternoon of Saturday 18 March 1995 by a bullet which disconnected the brain from the spinal cord and was alleged to have been fired from a high velocity rifle selected by the applicant from his father's arsenal in the family home at 37 Parrakeet Road, Werribee, which was diagonally opposite the Lobos home. It is clear that the applicant, then aged 28, was alone in his parents' home that afternoon and had broken into a gun cabinet and possessed himself of a Winchester 30/30 high velocity rifle.

[2]

The first trial miscarried because the judge and counsel all misapprehended the effect of evidence given by a surveying expert named Ogleby, who had prepared what he called "cones of probability", which were supposed to show the likely path of the bullet that killed Mrs Lobos. No more need now be said about this.

[5]

"1. The trial judge erred in his directions concerning the drawing of inferences and circumstantial evidence; and in particular, he failed to direct the jury sufficiently or at all that an intermediate conclusion of fact necessary in a chain of reasoning could not be used as the basis of a finding of guilt unless proved beyond reasonable doubt. [Charge p. 740-41; see too p. 744, 876] 2A. The trial judge erred in his directions concerning the elements of murder; and in particular, the directions - (a) were apt to withdraw from the jury a consideration of whether the act causing death was non-voluntary; (b) withdrew from the jury any issue of accidental killing. 2B. The trial judge erred in failing to leave accident to the jury. 2C. The trial judge erred in that he failed to direct the jury sufficiently or at all concerning the use of evidence of intoxication. [Charge p. 743 Transcript p. 830] 3A. The trial judge erred in his directions concerning the use to be made of the applicant's evidence from the previous trial; and in particular, he failed to direct the jury sufficiently or at all that - (a) the applicant's evidence was given on oath (and the significance of that fact); (b) the evidence might be used as a possible version of the facts; and (c) the evidence raised the possibility of the killing being non-voluntary. [Transcript p. 567-600, 600-633, 648-654, 711-712, 720-722 Ruling p. 713-718 Charge p. 827-31] 3B. A miscarriage of justice resulted from the jury being provided with a transcript of the applicant's evidence from the previous trial. 4. The trial judge erred in his directions concerning corroboration of the witness Kevin Patrick James Russell; and in particular - (a) he failed to direct the jury sufficiently or at all that a further reason why corroboration of Russell was necessary was because of the effect of medication on his memory; (b) the items of evidence said to be capable of being corroborative should not have been left to the jury as such. [Charge p. 832-849] 5. (a) In all the circumstances the verdict is unsafe and unsatisfactory. (b) An aggregate of errors led the trial to miscarry."

[9]

Mr Priest was several times asked by the Court to identify the links in the chain of sequential reasoning other than the link constituted by the fact that the fragment came from a bullet fired by the Winchester. He was unable to identify any other link. In our opinion the present case does not afford an example of a chain of sequential reasoning in the sense in which that expression is used in the authorities. It makes no difference whether the fact is said to be the fact that the bullet that killed came from the Winchester or the fact that Item 1 came from a bullet fired by the Winchester. The case is merely one of a considerable quantity of assorted pieces of circumstantial evidence (in which we include evidence of things said by the applicant) relied on by the Crown to prove guilt, which, having regard to the way in which the second trial was conducted by the defence, really means to prove the firing by the applicant of the fatal shot. (We interpolate that, although at the first trial the defence case was that, while the applicant had shot the deceased, the shooting was "accidental", he having discharged the firearm deliberately but without intending to hit anyone, on the retrial it was quite different - that he had not shot her.) Having regard to the way in which the Crown put its case, it may be said that circumstantial evidence was relied on by the Crown to prove that the applicant fired the fatal shot from the Winchester, but this reformulation does not affect in any presently relevant way what the Crown set out to do. It always set out to prove that the applicant shot the deceased with the Winchester, that being a "candidate" firearm and the only "candidate" available to him. To this end it relied on many and varied pieces of circumstantial evidence. Mr Priest conceded that there was a strong circumstantial Crown case that his client shot the victim with the Winchester. One can say that the only real issue on the retrial was whether it was the applicant who shot the victim - or shot her with the Winchester. By this we mean that the case was conducted by both sides on the basis that if it was proved that the applicant pulled the trigger which unleashed the fatal bullet he was guilty of murder, there being no live issue as to "conscious, voluntary and deliberate act" or murderous intent. The trial was conducted as a single-issue trial. This was clear from the defence reply to the Crown prosecutor's opening, in which it was announced that the defence was not that "he fired a gun accidentally" but that "he did not shoot her, in any fashion whatsoever".

[40]

As to these events, Mr Priest made a number of complaints. Not one of them had been voiced by counsel for the applicant at the trial. It was said by Mr Priest that although the cross-examination was not read by the prosecutor, there was an unacceptable risk that some jurors might have read it from the transcripts provided. We think there is no substance in this. There is no evidence that such a thing occurred in the time they were following the evidence-in-chief and the alleged "risk" escaped all those concerned at the trial. Then it was said that the judge failed to give the jurors any directions as to the use of this material. Again, this is a point, we think, without merit. As the judge reminded the jury of parts of the evidence-in-chief and of the way the parties relied on them, it must have been apparent to the jurors that what the applicant had said was evidence for their consideration. The judge directed the jury as to these parts. "The defence relies upon them and the prosecution relies upon other passages as well." (827) Mr Priest submitted that the jurors should have been reminded that the evidence was given on oath, but the prosecutor began his reading by stating that the applicant had been "sworn and examined" (568). In any case, the evidence was tendered as an out-of-court statement, and the fact that it had been on oath was immaterial: it was not on oath before this jury. It was also said that the jury should have been reminded that the applicant had submitted himself to cross-examination. It is sufficient to say that there were a number of references during the trial to the applicant having been cross-examined at his first trial, and we need only cite one. The judge told the jury "he (the applicant) was cross-examined at the first trial..." (827) It was also suggested that the judge should have told the jurors that the applicant had not been compellable. We are unable to agree. The more that was said as to the applicant's appearance in the witness box at his first trial, the more manifest was his absence from it in the second. The judge's charge to the jury made it clear that the defence was relying on this evidence, arguing that it showed consistency in the applicant's general account and as supplying the bare bones of the "confession" included in Russell's evidence. While the charge indicated the prosecution contended for a conclusion that the applicant was hiding behind a lack of recollection and reminded the jury of some alleged admissions, the evidence read to the jury by the judge included the applicant's denial of the confession alleged by Russell (the only such denial in the evidence), his explanation as to how Russell would know matters of detail and a disavowal of his having intentionally fired a shot at the deceased. We think the learned judge's treatment of the applicant's evidence was sufficient in terms of the issues actually raised on the evidence at the trial. Our conclusions as to ground 2 make it clear that no directions linking this evidence to the matter of intoxication were necessary. We would not uphold the submission that the jury would have been likely to devalue the exculpatory aspects of the evidence without proper direction. On the other hand, we would uphold the submissions of Mr Coghlan that any formal indication that the evidence was on oath would have given the material a false value in the trial, especially since the cross-examination upon it was not included. This ground fails.