R v Challoner [2000] VSCA 32

11. The present application started off with a single ground: "The verdict of guilty is unsafe or unsatisfactory". It promised that "particulars will be supplied". This was after a trial at which the applicant had been represented by senior counsel of great experience. Almost a year after the conviction, and not long before the application was to be heard, this single ground was, by leave of the Registrar, replaced by eight others. Each of them raised a point at best not taken below and at worst complaining of what had been done with the express concurrence of senior counsel then appearing for the applicant. Time and again this Court is being asked to overturn convictions and order a retrial to enable an accused person to put a case not put, and sometimes expressly disclaimed, at the first trial. As regards the amendment of grounds of appeal on applications for leave to appeal against conviction or sentence, our impression that amendment - and very late amendment, at that - has become the rule rather than the exception is confirmed by information supplied by the Registrar, who ordinarily deals with applications to amend. Upon inquiry by the Court, the Registrar has confirmed that in his experience the grounds of appeal are amended - not only amended but amended shortly before the hearing - in the majority of applications for leave to appeal against conviction and the majority of applications for leave to appeal against sentence. This is no doubt due in part to the shortage of legal aid funds and the resulting engagement of insufficiently experienced counsel. But that is not the explanation in the present case. (No criticism is intended of Mr Priest, Mr Croucher or their instructing solicitors, who have all given the matter very prompt attention.) We think the time has come for the adoption in Victoria of a rule, similar to r.4 of the Criminal Appeal Rules of New South Wales, requiring leave in relation to points not taken below.

14. The eight grounds of appeal substituted in this case are:

"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."

18. Mr Priest grouped the grounds by arguing, first, ground 1, then, grounds 2A, 2B and 2C, then grounds 3A and 3B and finally ground 4, and we shall deal with them in the same way. No separate argument was directed to ground 5, which was put merely as the corollary of the preceding grounds. What is sought is a new trial.

22. Despite its breadth, ground 1, as argued, is not intended to make any general attack on what the judge told the jury about the drawing of inferences and circumstantial evidence. His Honour's directions about these things have not been criticised. The point taken is a narrow one, and before dealing with it we must say a little more about the facts and the evidence, especially the evidence concerning a little piece of metal that became known as Item 1. This was a fragment of a bullet found near the body of Mrs Lobos. The police firearm and toolmark examiner, Sen. Const. Pringle, and a forensic ballistics consultant called by the defence, Mr Lawton, each examined and gave evidence about that fragment. The former said that it had been fired from a high velocity rifle, which could have been a Winchester 30/30 but could also have been one of a number of other kinds of high velocity rifle: the small size of the fragment and the damage to it prevented him, so Pringle swore, from saying more than that the fragment was consistent with its having come from a bullet fired from a Winchester 30/30 rifle. Lawton, on the other hand, swore that the fragment could not have come from a bullet fired from a Winchester 30/30 rifle.

25. Mr Priest accepts that, had it not been for the fact that Lawton gave the evidence just mentioned, the first ground of appeal could not have been put forward. It is, however, no part of the applicant's case on this application that a reasonable jury must have treated the evidence of Lawton as raising a reasonable doubt about his guilt. Mr Priest accepts that it was open to the jury to prefer the evidence of Pringle to that of Lawton. As the ground itself indicates, it is concerned only with suggested misdirection. It is nevertheless the evidence which Lawton gave which, in Mr Priest's submission, made the direction for which he contends essential. A total of at least six and probably seven or eight rifles and handguns were contained either in the gun cabinet or in the garage at 37 Parrakeet Road, but the Crown case was clearly tied to the Winchester 30/30 rifle: it was not suggested that the applicant might have fired the shot from any other firearm. Mr Priest submits that proof that the bullet which killed Mrs Lobos came from the Winchester (as we shall from now on call the Winchester 30/30 rifle) was an essential link in a chain of sequential reasoning. He said that the fact that the fragment Item 1 came from a bullet fired by the Winchester - a different formulation of the fact - was an intermediate conclusion of fact indispensable in a chain of reasoning: accordingly, the jury had to be directed that the Crown was required to prove beyond reasonable doubt that the fragment came from a bullet fired by the Winchester. No such direction having been given, the trial had miscarried. He relied on Shepherd v. R.[1] and R. v. Kotzmann[2].

28. 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".

31. The Crown, then, set out to prove that the applicant fired the fatal shot, or, if you will, that he fired the fatal shot from the Winchester, by circumstantial evidence. Mr Priest concedes that the Crown made out a strong case in this way. In view of this concession it is tempting not to mention further what that circumstantial evidence was, but we shall in the immediately following paragraphs briefly summarise parts of it, including what is to be found in the record of interview and the evidence given by the accused at the earlier trial.

34. The applicant was left alone in the house when his parents departed for their holiday at about 3 p.m. on the afternoon of the killing. At this time the gun cabinet was locked and intact and it contained rifles, including the Winchester, but no ammunition; all the ammunition was stored in the garage; the Winchester was definitely never kept loaded in the cabinet. When his parents left the applicant went out shopping on foot, going first to an auto-teller and then buying rosé wine and cigarettes and hiring two X-rated videos. He returned to the house and thereafter he was alone in it. After he returned home a hammer was used to break open the gun cabinet and the Winchester was removed from the gun cabinet and loaded. At some stage it was leant against a chair and was next to a bottle of baby oil which the applicant used in masturbating that afternoon.

37. The bore of the Winchester was clean when the police inspected it. It was also found to be clean after police fired a shot from it by way of experiment; this was because of the kind of propellant used in 30/30 cartridges kept by the applicant's father. When found by police the Winchester had a loaded magazine but no cartridge in the firing chamber.

40. There was a hole in the security door at the front of the house above the door handle about 8 x 4.5 cms. which was not there when the parents left for their holiday but was there by the time police went to the house.

43. Particles of gunshot residue, or particles consistent with their being gunshot residue, were found on the applicant's right hand, two items of his clothing, a towel which he had used in masturbating that afternoon and the inside of the security door.

46. A number of bystanders or neighbours heard two or three sounds like gunshots at about the time of the killing and none of them saw anything to suggest that some person in the street, on foot or in a vehicle, had fired a shot.

49. The fatal wound had the appearance of being caused by a high velocity rifle (which the Winchester was) and of being inflicted from some distance.

52. That afternoon, and after the parents went on holiday, a high velocity rifle was fired inside the garage and through the door. Two fired 30/30 cartridges came to be on the garage floor and one in the back yard of 35 Parrakeet Road, not far from the dividing fence.

55. The applicant could not explain how the Winchester came to be out of the gun cabinet, leaning against a chair and loaded. Nor could he explain how there came to be a bullet hole in the garage door resulting from the firing of a bullet from a rifle inside the garage. The garage was kept locked and he had access to the key. He made a visit to the garage that afternoon.

58. The applicant's father had been in the army and was an expert on small arms. The applicant had a good knowledge of firearms, imparted to him by his father. He had started to learn about them even before he was a teenager. He had gone hunting with his father for years. He owned a rifle himself. The Winchester belonged to his mother. He had fired the Winchester many times and regarded it as a really nice light weapon. He had used it when he was only thirteen. He described the rifle and how it was operated in some detail.

61. This, and other, material combined to form a strong body of circumstantial evidence amply warranting a finding that the applicant shot Mrs Lobos, using the family Winchester. Mr Priest accepts that this is so, and that there was no need thus far for a special direction by reason of Shepherd and Kotzmann. He further accepts that the leading of the evidence of the finding of the bullet fragment, Item 1, and the evidence of Pringle that the fragment was consistent with its being part of a bullet fired by a rifle of the same type - a Winchester 30/30 - did not affect the position in the sense either of weakening the circumstantial case or of calling for such a special direction. What Mr Priest did submit is that the introduction into the case of the evidence of Lawton about the fragment made such a direction necessary.

64. When the argument was being put we could not understand, and we still cannot understand, the basis for the contention that, although the Crown case was not such as to require a direction based on the "indispensable intermediate step" notion, the leading of some piece of evidence by the defence could bring about some change in the Crown case so as to require such a direction.

67. We repeat that the applicant's submission has failed to identify any process of sequential reasoning in which one step was the conclusion of fact that the fatal bullet came from the Winchester or the conclusion of fact that the fragment came from a bullet fired by the Winchester. This leaves to one side the further difficulty that a special direction would be necessary only if there was no other evidence bearing on the issue which the chain of evidence was relied on to establish: Kotzmann; R. v. Huisman and Shiells[3]. This could not be said of the present case.

70. We cannot help thinking that underlying the applicant's argument in support of ground 1 is the unexpressed suggestion that, because (as is the fact) the Crown tied its case to the Winchester, so that it set out to prove that the applicant shot the victim with the Winchester, it was necessary for the Crown to prove, and to prove beyond reasonable doubt, by the evidence of a ballistics expert that the bullet was fired from the Winchester. This unexpressed but underlying suggestion is quite wrong. If there had been no bullet fragment found near the deceased, the Crown's circumstantial case that the applicant shot the victim with the Winchester would still, as is accepted, have been strong. If the fragment had been found near the deceased but there had been no evidence from a ballistics expert about it, the Crown's circumstantial case would still have been strong. If (as in fact happened) the Crown had called a ballistics expert to prove mere consistency of the fragment with its having been fired from a Winchester 30/30, the Crown case would have remained strong. The fact that the testimony of the Crown's ballistics expert was countered by that of the expert called by the defence makes no difference to the essential features of the trial once it is accepted - as the applicant does accept - that the evidence of the defence expert was not such as to constrain the jury to entertain a reasonable doubt on whether the fragment could have come from a bullet fired from a Winchester 30/30.

73. The Crown's circumstantial case on the only issue on which the case was fought consisted, as we have said, of many pieces of evidence, of various kinds. Two of them were that the fragment was found and that it was "consistent". When the defence case was put forward, the evidence of consistency was challenged by the witness Lawton, but not in a way now or then said to do anything more than raise a jury question. So far as ground 1 is concerned, the case is as simple as that.

77. Mr Priest began his submissions as to this group of grounds by recounting some of the events in the applicant's trial. Thus, he noted that senior counsel for the applicant had discouraged the judge from leaving reckless murder to the jury as an issue; that he had submitted that manslaughter should not be so left and that he had not sought a direction on the issue of intoxication as it might relate to the matters of voluntariness or the formation of a specific intention. As it happened, manslaughter was left to the jury but no direction as to intoxication in the setting of the abovementioned matters was given.

80. Mr Priest submitted that there was evidence that raised intoxication as an issue for the jury to consider. In his interview with the police, (which was videotaped, Exhibit Q), in describing his activities after the departure for their holiday by his parents, the applicant said, ..."I then bought myself a cask of Rosé...came home...commenced getting really, really drunk." (A.116). After describing the arrival of an ambulance, (presumably to attend the deceased), the applicant told the police that he "continued drinking" (A.116). In other answers he described commencing to drink the wine almost immediately upon his return home after purchasing it and he said that, "before the police got me" he had consumed approximately six plastic glasses of wine which were "filled" and which were similar in size to a beer glass. (A.128) Asked when he had his last drink before the police saw him he replied, "I've got no idea. I was really, really drunk, so I don't know. I'm sorry, I don't know that." (A.132) In yet further answers the applicant described himself as being "really drunk" when he was at the Werribee Police Station. (A.38) (A.52), (A.71). He also made repeated references to consuming six, or approximately six, glasses of wine before the police "got" him (A.128), (A.130) and to being "really drunk" (A.170) when he opened up the back door of his home. Referring to damage done to a flyscreen door, the applicant reiterated "I was drunk" (A.470). In the course of his evidence from his first trial which was read to the jury, his counsel had asked him "Do you recall how much you drank?" and he replied, "I can only say that it's a lot and I drank a lot more than I usually would on that day." He added that the amount consumed would probably be a little more than the six glasses he had mentioned to the police, which figure he described as "a rough estimate". (587/8)

83. A statement by a Dr O'Dell, who was unavailable to give evidence at the trial and who had examined the applicant at the Werribee Police Station, was by agreement between counsel read to the jury. It contained the following. "Mr Challoner had drunk an unknown quantity of wine earlier that day and said he had been intoxicated to the point where he could not remember anything about his activities during the day." (538)

86. Mr Priest submitted that there was other evidence, independent of the applicant, which lent some support to his claim of intoxication. The neighbour witness, Darren Maiden, gave evidence that, when he spoke to the applicant after the shooting, he noticed his eyes "...looked a bit glazed like he was drinking or something" (125). This observation was probably made after 8:00 p.m. The neighbour witness Keith Wilkinson noted the applicant's eyes as "very, very glassy" and that he looked "as though he was a bit drugged up" (192). He later added that the applicant appeared like someone who "could have been drinking" (195). These observations were made at about 7:00 p.m. and later. The neighbour witness, Blake Stanford, said the applicant appeared to be "drunk" (200) This observation was probably made about an hour after the shots. Asked his reason for this opinion, the witness responded that the applicant "just wasn't really talking much like he usually would...". (200)

89. There was also, Mr Priest pointed out, evidence from a crime scene examiner, one Evans, that in the room of the applicant's home which contained the television, there was a four litre cask of Rosé wine, containing 1620mls.

92. Counsel then turned to relevant authorities, citing R. v. Thorpe[4]; Pemble v. R.[5] and R. v. Kear[6]. These cases established, it was submitted, that if a possible answer to the charge was properly raised on the evidence, then the presiding judge was obliged to give relevant directions irrespective of the wishes of the parties. In this submission, the Crown was later to concur. It is sufficient, we think, to cite a passage from Thorpe which appears in the judgment of Charles, J.A. who gave the principal judgment. This was a murder case where, although the trial judge thought there was sufficient evidence to raise the issue of provocation for consideration by the jury, he did not leave provocation upon the urging of counsel for the accused. Charles, J.A. said, "If there was a sufficient case of provocation to go to the jury, it was understandable that defence counsel did not wish to damage his two defences of automatism or self-defence by emphasising the evidence which suggested a furious, prolonged and uncontrolled attack upon the victim; but that dilemma plainly should not have prevented the learned judge putting the issue to the jury." (331)

95. Despite the terms of grounds 2A and 2B, Mr Priest did not argue, nor could he, in view of the judge's charge, have argued, that the judge withdrew from the jury the question whether the firing of the rifle, or the shooting of the victim, was deliberate. The only submission put under the three grounds argued together as ground 2 was that the judge should have told the jury that evidence of intoxication bore on whether the Crown had proved that the rifle was deliberately discharged and that it was aimed at the victim and that the shot was fired with murderous intent.

98. Mr Coghlan for the Crown submitted that, on the evidence, since the killing occurred at some time between 4:15 p.m. and 4:30 p.m., the observations by witnesses of the applicant only began some hours later. The matter of intoxication would only have been relevant in the way now alleged, counsel contended, if there was evidence which demonstrated the applicant's state of sobriety at the time when the shooting occurred. In truth, it was said, there was a dearth of such evidence.

101. It is to be noted that according to the evidence of the prison informer Russell, the applicant told him that it was only after the shooting that he "decided to get slushed, get drunk". (453) But perhaps little turns on this. Of real significance are the applicant's statements to the police and his evidence at his first trial. At no time did he assert that in the period around 4:15 to 4:30 p.m. he was drunk or even affected by liquor. He said that he was "drunk" at the police station when he was speaking to that doctor, and at other, largely unspecified, times. The closest of these to the time of the shooting was when he opened up the back door of his home.

104. What was not really canvassed in argument was his account of his movements after his parents left for their holiday about 3:00 p.m., which event seems to have been common ground at the trial. (A.121) He described what then happened as follows. "The folks left at 3..., I went straight down to Safeway intent on getting myself really ripped tonight, which I did. I would've started at about 4 o'clock" (A130) He then went on to describe the consumption of the six glasses of wine. At another point of the interview, he described his mother giving him her credit card on her departure, whereupon he went to the bank and withdrew $50 in order to purchase the Rosé wine. (He must have been describing an auto teller transaction.) In his evidence at his first trial he said that after his parents' departure he had a cup of coffee and a cigarette and then got ready to go to the shopping centre. He said he walked to the centre - a walk of about 20 minutes. The obtaining of the erotic videos followed his return journey home - another walk of 20 minutes. In answers to the police, the applicant stated that he started drinking "at about, like, half past 3:00" (A.217), "about four o'clock" (A.130). The first of these answers is plainly inconsistent with the applicant's more detailed account of his movements.

107. Assuming, as do the applicant's submissions on this ground, that the applicant fired the fatal shot, he would have had to break open the cabinet and obtain the rifle and unlock the garage and obtain some ammunition after his return to his home. Thus, the time for consumption of the wine prior to the shooting, was limited indeed.

110. Mr Priest set some store on the decision of this Court in R. v. Faure[7]. In that case, which involved a charge of murder, it was not disputed that the deceased, a young woman with whom the accused man was having a relationship, had been killed by a revolver bullet fired at very close range into her head. She apparently met her death at about 11.15 p.m. The accused man had a blood sample taken from him at 4.55 a.m. the following morning. This showed a blood alcohol level of 0.154 percent. The Crown led expert evidence that such a concentration represented about 0.22 percent at the time of the shooting. There was evidence that the accused man had told the police that he had begun drinking alcohol at about 11.30 a.m. on the day of the shooting and that he had drunk a great deal. In addition, and we here cite Brooking, J.A. who wrote the leading judgment, "There was a good deal of evidence from persons in whose company the applicant had been in the afternoon and night of the day of the shooting about how much liquor he had had to drink and about how much he appeared to be affected by drink." The Crown had put two cases in the alternative to the jury. The first was wilful murder - a killing in anger in the course of an argument as to whether the deceased was suffering from AIDS. The second was one of reckless murder - for the accused had asserted to the police that the death had occurred when he pulled the trigger of the revolver without intending to harm the deceased during a game of Russian roulette. No direction as to the effect of intoxication was sought, nor did the judge give one. The appeal was allowed on the basis that the judge gave no direction to the jury about the significance of intoxication in relation to murderous intent and the state of mind required for reckless murder.

113. It will be readily seen that Faure was a case markedly different from the instant. It was a case of abundant evidence of intoxication, which expert and other evidence clearly related to the time when the fatal shot was fired. In our view, it cannot be called in aid of the applicant's submissions. Nor can R. v. Stokes and Difford[8] or Herbert v. The Queen[9]. (In the latter case, although it is not central, we note that, contrary to counsel's submission, there was evidence of intoxication additional to answers given during the interview by police: see at 303.)

116. The run of the evidence, which we have canvassed above, serves to explain, we think, both the clearly stated view of the trial judge that there was insufficient evidence to properly raise the question of intoxication in relation to voluntariness or specific intent and the acquiescence in that view of the applicant's experienced senior counsel. (731) In our opinion, the judge was plainly correct and no additional directions were necessary.

123. The evidence-in-chief given by the applicant at his first trial, including objections, was read to the jury by the Crown Prosecutor. During this exercise, in the course of a discussion with counsel, the learned judge proposed that the jury be provided with a transcript of that evidence. Counsel for the applicant offered no objection to this course and it was taken. Before reading recommenced, the jury were given a direction as to the use of the transcript (567-8) which, as to its actual content, has not been the subject of any complaint. Further discussion ensued at the end of the reading of the evidence-in-chief. Very early in that discussion the transcript, which it is accepted contained the cross-examination of the applicant, was returned by the jurors. At the conclusion of the discussion, the judge ruled that the cross-examination of the applicant in the first trial should be excluded. An application by the Crown for discharge of the jury was foreshadowed and made later the same day. It was refused. In the course of his charge, the judge reminded the jury of parts of the applicant's evidence and of the ways in which the prosecution and defence relied on them.

126. 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.

130. The learned judge gave the jury a corroboration warning concerning the evidence of Russell, the prisoner to whom the applicant was said to have confessed. As to the general directions then given, complaint is now made. The learned judge proceeded to identify for the jurors four items of evidence capable in law of constituting corroboration. They were the broken gun cabinet, the presence of the 30/30 Winchester rifle in the applicant's house, the presence of baby oil and, finally, the finding of a fired cartridge in the property at 35 Parakeet Street which property adjoined that of the applicant's parents. It is now said that none of these items were capable in law of constituting corroboration. No such submission was made at trial.

133. Exception to the general directions was taken at trial by counsel for the applicant and, as a result, redirection occurred, with the judge telling the jurors "corroboration means, as I said to you, independent evidence that the confession of the accused's guilt was in fact made to Mr Russell...Corroboration has to confirm in a material particular that the confession was made." (859) No further exception was taken.

136. Mr Priest submitted that although the judge had referred to ease of invention by a person of bad character with a motive for so doing and the experience of the law that these matters made evidence of prison informers commonly unreliable, there should have been an additional direction about Russell because there was evidence that his account might have been otherwise unreliable because of medication he had been taking. Counsel also contended that the general directions given by the judge did not sufficiently bring home to the jury that the corroborative evidence needed to go to the issue whether the confessional statements were in fact made. So, too, it was said, the directions ought to have included a direction that the jury look for "substantial" confirmation and a statement that there was a risk of miscarriage of justice if too much importance was attached to prison informer evidence. Finally, it was submitted that the specific directions were not delivered with the authority of the judge's office. At best, it was said, he merely repeated counsel's arguments.

139. In support of his submissions, Mr Priest referred to Pollitt v. R.[10]. In that case, a conviction resulted from a prosecution which in part relied on the evidence of a prison informer to whom the accused had allegedly made a confession of murder. It may be immediately allowed that there is to be found in the judgments support for Mr Priest's submission as to the issue to which the corroborative evidence needed to go. Deane, J. observed, "If a corroboration warning is to be of real use in such a context, it must be in terms which direct the need for corroboration towards the reliability of the particular evidence, that is to say, material which corroborates the actual making of the oral confessional statement." (588) Dawson and Gaudron, JJ. said, "Ordinarily, the issue with respect to the evidence of a prison informer is whether he or she has given an account of a conversation that simply did not occur. In cases of that kind, the ordinary warning to look for corroboration in evidence which implicates the accused in the crime charged will not direct attention to the real issue...". (601) Toohey, J. said, "A warning, which states only that the evidence of a prison informer must be corroborated or that it is dangerous to convict upon such evidence without corroboration, tends to miss the point and, if anything, may militate against an accused." (606)

142. Mr Priest referred to a further passage from the judgment of Toohey, J. in Pollitt:

"It follows that the warning to the jury should be couched directly in terms that it is dangerous to convict upon the evidence of a person who is a prison informer, that such evidence should be scrutinized with great care and that the jury must be satisfied beyond reasonable doubt as to the guilt of the accused, having regard to the potential unreliability of the evidence of a prison informer and the risk of a miscarriage of justice by attaching too much importance to it." (606) (Emphasis ours.)

146. Mr Priest then turned to R. v. Clough[11], a decision of the Court of Criminal Appeal of New South Wales. In that case, where the Crown led evidence of an alleged confession to a prison informant, Hunt, C.J. at C.L. drew together a group of authorities including Pollitt (supra) and observed that a number of propositions might be gathered from those judgments. Those propositions included those put to the jury in the instant case by the judge and which we have recently cited (832) and (859). They also included the following warning as to prison informer confessional evidence: "...that, having regard to the potential unreliability of the evidence, there is a risk of a miscarriage of justice if too much importance is attached to it." (406) See also R. v. Herring[12].

149. The question is whether the passage quoted from Clough really adds anything to that which precedes it. (See the full citation from Toohey, J. in paragraph 22.) We think it does not. Rather, it explains the consequences of a failure to scrupulously apply the appropriate burden and standard of proof and the need to concentrate on reliable evidence. Accordingly, we are of the opinion that the passage is epexegetical. We do not accept the submission that it adds an additional ingredient which ought to form part of orthodox corroboration directions in prison informer confessional cases.

152. Mr Priest also relied upon the statement in proposition (c) in Clough at 406 to the effect that in the absence of "substantial confirmation" provided by independent evidence that the confession was in fact made it is dangerous to convict. Assuming, without deciding, that substantial confirmation was required, the four items here satisfied that requirement.

155. Mr Coghlan submitted that the judge's warning as to corroboration was appropriate and adequate and that no exception had been taken to the final form in which it was delivered. He contended that the question of medication and the general state of Russell's memory was plainly before the jury and made clear by the judge, who reminded the jury of it in his charge. We would uphold this contention. Indeed, it appears that it was accepted at trial that Russell, by reason of the medication, could no longer remember matters of detail which were, of course, having regard to the issue over Russell's evidence, vital. Thus, early in his evidence-in-chief, asked as to discussion with the applicant, Russell deposed "the only way I can tell you is from what I read in my statements. I can't recall the conversations that took place as opposed to now." He later added, "I mean, I can't really recall conversations going back to that sort of period of time." (435) He also said, "I really have no recollection of the conversations that took place, only a general idea..." (436) Referring to the medication he was taking, he stated that he had to seek medical help as to "why I was having so much trouble recalling various things..." (441) He later added in cross-examination that administration of the medication had occurred over some 30 months and that he could not recall if various parts of the evidence at the committal had or had not been discussed with him. (480) He said that he had "not really" any recollection of the discussions. (481) Counsel for the Crown did not attempt to re-examine. We would add that unreliability of evidence by reason of medication is quite extraneous to unreliability arising from the witness' being a prison informer.

158. As to the four items of evidence, Mr Priest submitted, citing R. v. Pisano[13], that they were "intractably neutral", in that they could have been derived from a source other than a confession as opposed to repeating what was alleged against him. But Mr Coghlan contended that these items of evidence were capable in law of constituting corroboration of Russell. At the end of the day, he argued, the contest which arose out of Russell's evidence was a denial by the applicant that he had made a confession as opposed to repeating what was alleged against him. It was the fact of any confession which was important, viz, did the applicant say "I broke into the gun cupboard"; "I got the rifle"; "I fired it at the deceased". We would uphold this submission. In our opinion the evidence of the broken gun cabinet, the presence of the rifle, the presence of the baby oil in circumstances where such was found on the rifle, and the finding of the cartridge in the neighbour's property all bore on the issue whether the statements of the applicant to Russell were confessional in the sense described by Mr Coghlan and this evidence was capable in law of constituting corroboration of Russell.

161. In the course of his redirections the learned judge told the jury "You know the dispute between the parties. The prosecution says that the accused has confessed to Mr Russell in prison. The defence says the accused was telling Mr Russell the allegations against him. Corroboration means, as I said to you, independent evidence that the confession of the accused's guilt was in fact made to Mr Russell, `I shot the deceased'. It is not, of course, corroboration if the accused was simply talking about the case that was made against him. The prosecution says here the accused was not talking about the case against him but was telling Mr Russell what in fact happened on that Saturday afternoon. You decide what you find is proved, remembering that the prosecution has the burden of proof at all times." (859) No exception was taken to this. As to it, we would say that this passage did, in our opinion, sufficiently bring home to the jury that the corroborative evidence needed to go to the issue whether the confessional statements were in fact made. It also made very clear the nature of the issue. It is also our opinion that his Honour sufficiently conveyed to the jury, with the authority of his office, the matters which undermined Russell's credibility. The jurors were told that it was "the experience of the law...over many years that the evidence of prison informers is often unreliable." (832) Reasons were cited (ease of invention; usual bad character in the informer; various motives which could produce untruthful accounts), and the jurors were reminded of cross-examination of Russell which directly related to these matters.

168. As grounds 1 to 4 have failed, this ground, which alleges cumulative error, must also fail.

171. In our view, this application should be dismissed.

[1] [1990] HCA 56; (1990) 170 C.L.R. 573

[2] [1999] VSCA 27; [1999] 2 V.R. 123

[4] [1998] VSCA 13; [1999] 1 V.R. 326.

[5] [1971] HCA 20; (1971) 124 C.L.R. 107.

[6] [1997] 2 V.R. 555.

[7] [1999] VSCA 166.

[8] (1990) 51 A. Crim. R. 25.

[9] [1982] FCA 147; (1982) 62 F.L.R. 302.

[10] [1992] HCA 35; (1992) 174 C.L.R. 558.

[11] (1992) 28 N.S.W.L.R. 396.

[12] (1994) 74 A. Crim. R. 72 at 81-82.

[13] [1997] 2 V.R. 342.