R v Cogley [2000] VSCA 231

10. On 6 April 1998, the applicant pleaded guilty in the County Court at Melbourne to one count of obtaining property by deception and not guilty to one count of attempting to obtain property by deception. After a trial, the applicant was convicted on that count. On 22 June 1998, he pleaded not guilty in the County Court at Melbourne to five counts of handling stolen property (motor cars) contrary to s.88(1) of the Crimes Act 1958, and after a trial, the jury returned a verdict of guilty on counts 3, 4 and 5. On 15 September 1998, after hearing a plea in mitigation made on his behalf, the court sentenced the applicant in respect of the two sets of offences to a total effective sentence of 3½ years' imprisonment and fixed a non-parole period of 2 years. The sentencing judge declared that 617 days shall be the period of pre-sentence detention in respect of those offences. The applicant sought leave to appeal against those convictions, but on 23 November 2000, he abandoned those applications. He seeks leave, however, to appeal against the sentence that was imposed on him by the County Court.

13. The application for leave to appeal against conviction for murder and the application for leave to appeal against sentence came on for hearing before us.

Application relating to the murder conviction

17. I turn first to consider the application for leave to appeal against the murder conviction. On 26 April 2000 the applicant pleaded not guilty in the Supreme Court to a presentment containing one count which alleged that he murdered Hitchens on 28 June 1997. This was the second occasion on which he was presented on that charge. He had previously been tried on a presentment which charged him with one count of intentionally causing serious injury to Mohamed Najmeddine (count 1) and one count of murdering Hitchens on 28 June 1997 (count 2). He had pleaded not guilty to both counts but on 16 December 1998 a jury found him guilty in respect of both charges. As a consequence, he was sentenced to be imprisoned for 4 years in respect of count 1 and for 18 years in respect of count 2. The learned sentencing judge ordered that one year of the sentence relating to count 1 not be served cumulatively on the sentence imposed on count 2, thus producing a total effective sentence of 21 years. A non-parole period of 16 years was fixed. The applicant successfully appealed to this Court against the two convictions and as a result, a new trial of the two charges was ordered.[1] Before the re-trial commenced, the applicant successfully applied to sever count 1 from the presentment with the result that he was separately presented on the charge of murder on 26 April 2000, as I have previously indicated. The application with which we are now concerned arises out of his conviction for murder following the re-trial.

20. Before dealing with the grounds on which this application is based, it is necessary to set out briefly some of the circumstances giving rise to the offence. The Crown case against the applicant was that, on Saturday 28 June 1997, at approximately 5.30 p.m., he intentionally shot and killed the deceased with a .25 Browning pistol. It was alleged that the applicant pulled his car to the eastern kerb of King Street between Little Bourke and Bourke Streets and ordered his passengers, who were the deceased, a man named Dragan Stamenkovic and Amanda Watson out of the car. Shortly prior to that, while they were all in the car heading towards King Street, the applicant was allegedly abusive to the two male passengers, particularly the deceased. After they left the car, the applicant followed them to the pavement and continued to abuse them, yelling and screaming at them in a very agitated manner. According to the Crown, the applicant fired some shots from the Browning pistol and then killed Hitchens by shooting him in the left temple. After that, the applicant and Stamenkovic got back into the car and drove off. A little later, the applicant and his de facto wife left the State and he was eventually apprehended in Queensland on 15 August 1997. I will deal further with the events of that afternoon in the context of considering some of the grounds on which the applicant relies in support of his application.

23. At the first trial, as part of its case on count 1, the Crown alleged that some ten days or so prior to the death of Hitchens, the applicant shot Najmeddine in the leg with a .25 calibre Browning pistol in the course of accusing him of having burgled the house of Dragan and Goran Stamenkovic. In general terms, all men to whom I have referred knew one another and were friends or acquaintances who spent some time together at the nightclub scene in Melbourne. There was other evidence at the first trial concerning the use of that or a similar pistol during the latter half of June 1997 about which I will say something later in the context of dealing with the relevant grounds of the application. For present purposes, however, it is sufficient to note that the convictions were set aside because the Court held that the trial judge erred in ruling that the evidence on each count was admissible on the other. Buchanan, J.A., with whom Brooking and Tadgell, JJ.A. agreed said[2] that the similarity between the two offences assumed that the applicant shot both victims, which he denied. Once this assumption was removed, his Honour said, the probative value of the remaining similar features of the applicant's behaviour was much reduced. There was a real risk, therefore, that the jury might have taken the trial judge to mean that they could use a finding that the applicant shot a friend after an argument as bearing on the probability that on another occasion he shot a friend in like circumstances. In the course of his judgment on the question of whether the two counts were properly joined, his Honour said[3]:

"If the counts were not to be severed the evidence relating to count 1 could be used for the purposes of count 2 only as bearing on the provenance of the pistol. The evidence was of considerable importance in this regard for the plausibility of the Applicant's account of the circumstances in which Hitchens died depended to a large extent upon the gun being returned to Hitchens not being the gun of the Applicant".

27. I now turn to consider the grounds, which were amended pursuant to leave granted by the Registrar on 22 November 2000, on which the applicant relies in his application for leave to appeal against his conviction. The grounds are:

(1) the learned judge erred in the exercise of his discretion in refusing to discharge the jury on the basis of the content of CrimeNet, a site on the Internet;

(2) the learned trial judge erred in ruling that the evidence of Najmeddine could be led by the Crown;

(3) the learned judge erred in permitting the Crown to tender an edited transcript of the sworn evidence of the applicant in the previous trial;

(4) it was a fundamental miscarriage of justice for the evidence relating to the applicant's use of anabolic steroids to be led before the jury; and

(5) it was a fundamental miscarriage of justice to lead the evidence relating to the Najmeddine incident.

I now turn to consider each of these grounds in the order in which they were argued.

Ground 1 - Failure to discharge the jury

33. On Saturday 13 May 2000, two days after the jury retired to consider their verdict, the applicant applied to the learned trial judge to discharge the jury. The basis of the application was that there was a real risk that one or more members of the jury might have seen an entry on an Internet site called CrimeNet which contains information about the applicant. So far as is relevant, the entry refers to his previous conviction for the murder of Hitchens. It states (incorrectly) that the penalty imposed on the applicant in relation to that offence was 21 years' imprisonment. The sole source of the information that is on the site is said to be the Age newspaper of 23 December 1998. According to his Honour the applicant's real concern and the basis of the application was what was said in the last paragraph on the site:

"In defence, Cogley claimed that Hitchens had committed suicide but the judge and jury dismissed this as `a concoction'".

His Honour was told that the parties had just learned of the existence of the entry and that it was the applicant's belief that the information had been available on the site during the past four weeks or so, but that it was not known whether any member of the jury had seen the material.

38. For the purposes of the application before him, his Honour assumed that the above material had been available to the public on the site since shortly after the trial commenced and that there was a risk that at least one of the jurors "may have seen the entry". His Honour identified the issue that he had to determine as being whether there was a high degree of necessity to discharge the jury without verdict in the sense that, unless that were done, a miscarriage of justice would result. Ms Lieder, who appeared for the applicant in relation to the application touching conviction only, agreed that his Honour correctly articulated the test by which he had to determine the application before him.

41. His Honour ultimately ruled that he would not discharge the jury. It is trite that an appeal court cannot properly interfere with the exercise of judicial discretion unless it is satisfied that the judge proceeded on a wrong principle or that he took into account irrelevant matters or failed to take into account relevant matters or was plainly wrong. In considering whether the trial judge erred in exercising the discretion not to discharge the jury, it is necessary to bear in mind that the discharge of a jury without verdict is a major and serious step which can only be taken when the trial judge considers that "a high degree of need for such discharge was made evident to his mind from the facts which he had ascertained" (Windsor v. The Queen[4]; R. v. Boland[5]). Dawson, J. said in Croft v. The Queen[6]:

"Whether or not a jury should be discharged by reason of some incident which occurs during the course of a trial is a matter within the trial judge's discretion. But it is a discretion which is to be exercised in favour of a discharge only when that course is necessary to prevent a miscarriage of justice. It is in that sense that it has been said that the underlying principle is that of necessity and that 'a high degree of need for such discharge' must appear before a discharge will be ordered. [See Windsor v The Queen[7]; Swinburne v David Syme & Co.[8], and David Syme & Co. v Swinburne[9]; R v Boland[10].] When a trial judge's refusal to discharge a jury is called in question, it must be borne in mind that he or she is ordinarily in a better position than an appeal court to assess whether, having regard to the course which the trial has taken and the atmosphere in which it has been conducted, any prejudice may be dispelled by a clear warning to the jury."

Similarly, the learned trial judge in this case was in a better position than this Court to determine whether a miscarriage of justice would result if the application was refused. He was obviously familiar with the atmosphere of the trial, the calibre of the jury and whether they were likely to heed his directions to which I will refer shortly. It is in this context that the question, did his Honour make a reviewable error, is to be considered. In my view, for the reasons given below, there was no relevant error made by his Honour in the exercise of his discretion.

46. Ms Lieder eschewed any suggestion that his Honour proceeded on a wrong principle in determining the application before him. She submitted, however, that his Honour did not sufficiently have regard to the likely prejudicial impact on jurors who might have viewed the site of -

(a) the statement that the applicant was sentenced to 21 years' imprisonment for Hitchens' murder;

(b) the statement that the judge and the jury at the first trial considered that the applicant's defence of suicide was "a concoction".

It was argued for the applicant that the second statement in the entry was particularly prejudicial to the applicant. It was said that a member of the jury reading the material might conclude that the trial judge considered the applicant's defence to be a fabrication, going beyond merely saying that the defence had not been made out. Such a reading of the site by a juror at the second trial, Ms Lieder contended, would obviously be prejudicial to the applicant.

52. It is, of course, mere speculation whether any member of the jury had seen the site and if he or she had, whether such a conclusion would have been attributed by him or her to the trial judge by reason of the last paragraph of the entry. It is equally likely that the ordinary reader might have considered that "concoction" was a colourful comment of the author of the entry, or by the Age newspaper, to describe the applicant's failure to persuade the jury at the first trial to accept his defence. In light of the directions that were given to the jury and its calibre, to which I will refer later, it seems to me more likely that if a member of the jury had read that entry, he or she would have so interpreted it.

55. Be that as it may, however, there is nothing in his Honour's ruling to which Ms Lieder could point that suggests that his Honour did not give sufficient consideration to the two items of information on the site. On the contrary, his Honour specifically recognised that the last paragraph was of particular concern to the applicant. Moreover, his Honour proceeded, as I have said, on the basis that there was a risk that at least one of the jurors might have seen the entry and on one view, this was an assumption which may have been unduly favourable to the accused. What is critical is that his Honour analysed and properly had regard to relevant circumstances, to which I will refer below, in coming to his conclusion that the applicant would not be denied a fair trial if the jury were not discharged.

58. First, as his Honour effectively noted, nearly all the relevant information in question on the CrimeNet was known to the jury from the material that was led at the trial. In the end, this was not really challenged by Ms Lieder. Thus, for example, the jury knew that there had been a previous trial of the applicant for the murder of Hitchens and that his defence at that trial was the same as it was at the re-trial, namely, that the deceased had committed suicide. Similarly, the jury must have appreciated that the Crown case at the first trial and at the re-trial was, in effect, that the defence of suicide was made up, or "a concoction". Further, the jury were aware that the applicant was convicted at the first trial and that, therefore, his defence of suicide by Hitchens was rejected. It would be a small and permissible step in the reasoning process to move from saying that the applicant' defence was rejected, to saying that it was "a concoction". Thus, a juror at the second trial who knew of the rejection of the applicant's defence by the first jury, could have, in any event, properly reasoned that this occurred because that jury considered the defence was a concoction.

61. Secondly, his Honour, a very experienced judge, was of the view that the jury members were conscientious and attentive in the performance of their function, apparently seeking answers to questions from him as they arose from time to time, obviously paying attention to the evidence and being unlikely to come to a precipitous verdict or decision. His Honour, who was in the best position to judge the matter, considered that the jury understood sufficiently, from its experience at the trial, the respective functions of the judge and the jury, so that they would have realised that the decision whether the applicant's defence at the first trial was a "concoction" would have been determined by the jury and not by the trial judge.

64. Thirdly, the jury were told by his Honour to disregard the fact of the first trial and to decide the case on the evidence before them. His Honour said:

"The mere fact that there was a previous trial is quite irrelevant for your purposes. There are all sorts of reasons why there have to be second trials, and any speculation about that by you could be misconceived and should not be undertaken. So the mere fact that there was a first trial does not make any difference in this case. The important thing for you to do is to decide the case before you in this trial on the evidence in this trial."

It is reasonable to assume that the jury would have acted on that direction - R. v. Miletic [11]; R. v. T.J.B.[12]; R. v. Loguancio[13] - so that any juror who saw the entry in question on the CrimeNet site was likely to disregard it for the purpose of performing his or her duty in considering whether the Crown had made out its case to the requisite standard.

69. The learned trial judge was, as I have said, in the best position to determine whether a miscarriage of justice might have occurred unless the jury were discharged as sought on the applicant's behalf. In my view, for the reasons I have given, no appealable error was shown in his Honour's decision not to discharge the jury even if it were assumed that there was a risk that at least one of the jurors might have seen the entry.

72. The material that was presented to this Court by the applicant without objection from the Director in support of this ground, relevantly shows that the site was "accessed" on two occasions on 4 May 2000 and on one occasion on each of 12 and 13 May 2000 when the jury was sequestered. It was common ground that the jury could not have had access to the site on 12 or 13 May, but there was a possibility that one or some of them might have done so on 4 May 2000. This material was not before his Honour and Ms Lieder argued that, if the learned judge had been aware of that information, it would have shown to him that the site was in fact "accessed" during the period of the trial and therefore, it would have raised the level of the possibility that one or more of the jurors might have viewed the site in the course of the trial. Hence, as I understand Ms Lieder's argument, his Honour would have at least taken that fact into account and might have discharged the jury.

75. In my view, however, there is no basis for concluding that, if his Honour had had that material before him, he would have come to a different conclusion to the one he reached on this issue, given particularly his assumption that a member of the jury might have had access to the site in any event and his consideration of the jury's appreciation of its function and the state of its relevant knowledge to which I have referred.

78. Consequently, in my view, this ground must fail.

82. The two grounds which relate to the evidence adduced by the Crown from Najmeddine were argued together. At the re-trial, the Crown sought to rely on his evidence to establish that on approximately 18 June 1997, in the course of accusing Najmeddine of having burgled the Stamenkovics' house in Bent Street Broadmeadows, the applicant produced, inter alia, a Browning .25 pistol. The burglary was in fact carried out by Hitchens but, for reasons which are not clear, the applicant and Stamenkovic suspected that Najmeddine was the offender. In the early hours of the day following the burglary, when Najmeddine was asleep on a mattress in the living room of his girlfriend's flat in South Yarra, the applicant and Dragan Stamenkovic woke him up, accused him of carrying out the burglary and proceeded to interrogate him about it. During the course of the interrogation the applicant produced a Smith and Wesson .45 pistol. Najmeddine was, in effect, forced into his car and was made to drive Stamenkovic back to his Bent Street premises where, he was told, he would be identified as the offender by the neighbours.

85. Najmeddine's evidence ("the Najmeddine evidence") was that in the course of the journey to Bent Street, he and Stamenkovic consumed over half a bottle of whisky. At the same time, Stamenkovic produced a Browning .25 pistol which accidentally discharged when the car hit a bump and the bullet hit the ashtray. According to Najmeddine when they reached Bent Street, he and Stamenkovic went into the house where there were a number of people, but they did not include Hitchens. Najmeddine was then interrogated principally by the applicant as to his alleged involvement in the burglary and in the course of that interrogation the applicant produced a Browning .25 pistol. It was the Crown case that the pistol that the applicant had with him at Bent Street was the pistol that he used to shoot Hitchens in King Street some ten days later.

88. According to the Crown case, on 28 June 1997, the applicant and a number of other people, including Hitchens, Dragan Stamenkovic and Amanda Watson were in a flat in West Sunshine where, with others, they were drinking and listening to music. A fight broke out later that afternoon because the applicant was accusing Stamenkovic and Hitchens of not trusting him. They were eventually asked by the flat owners to leave and the three of them and Amanda Watson proceeded to the applicant's car with the applicant continuing to abuse the two men, particularly Hitchens. The applicant was in a highly agitated mood. Before getting into the car, he threw the Browning pistol to Hitchens who was on the other side of the car. Hitchens said that he did not want it and threw it back at the applicant. The applicant then threw the pistol back at Hitchens who cast it aside. Hitchens, Dragan Stamenkovic and Amanda Watson then decided to find their own way to Melbourne and started to walk out of the driveway into the street for the purpose of catching a taxi. Unbeknown to them, the applicant picked up the pistol from where it had been cast by the deceased and later persuaded the other three to get into his car which he drove towards the city and, eventually, into King Street. During the trip, the argument between the men flared up again and the applicant became agitated and aggressive and accused the others of turning on him. He was hurling abuse and swearing particularly at Hitchens. It was in those circumstances that the applicant suddenly stopped the car and ordered the passengers to get out and a little later used the Browning .25 pistol to kill Hitchens. As I will mention later, the applicant gave a different account of those events.

91. Ms Lieder's principal argument in support of these grounds essentially was that Najmeddine's evidence should not have been admitted. It was irrelevant and had little probative value, and its prejudicial effect far outweighed any slight probative value it might have had. Therefore, it was said, its admission resulted in the applicant being denied a fair trial.

94. It was contended for the applicant that the evidence as to what took place on approximately 18 June 1997 was prejudicial to him because it showed him to be an aggressive and violent person who had possession, at least at that time, of two pistols which he used to exert influence over his colleagues. Further, it was said, the evidence of his confrontation with Najmeddine approximately 10 days prior to the shooting, showed him up as a person who sought to involve himself in an aggressive manner in matters which were none of his business. On the other hand, it was said, the evidence as to the provenance of the firearm was "vague and tenuous"; it amounted to no more than the sighting of a pistol in possession of the applicant ten days before the shooting and at best, this evidence was "background evidence" which should have been excluded. Ms Lieder said that, in any event, the evidence was irrelevant to the issue of who had the pistol at or about the time of the shooting. The Crown had available to it evidence that, on the day of the shooting, the Browning .25 pistol was thrown between the applicant and Hitchens so that the fact that the applicant may have had possession of the same or similar pistol ten days earlier was entirely irrelevant given this evidence. Ms Lieder further argued that failure by the applicant's counsel to take objection to the Najmeddine evidence was inconsistent with his submission in support of the severance of count 1. In all the circumstance, it was submitted for the applicant, the admission of the Najmeddine evidence amounted to a fundamental miscarriage of justice.

97. The Director argued, however, that the Najmeddine evidence was relevant and probative. First, he said, it was led to rebut the applicant's case as it was presented at the first trial. He emphasised that when the admissibility of that evidence was first raised at the outset of the trial and at the time when the evidence was adduced, it was assumed that the applicant's case as to what occurred at the Bent Street house would be, at least broadly, the same as that which was put forward at the first trial. In so far as is relevant, the following evidence was given by the applicant at the earlier trial:

(a) He had seen the .25 calibre pistol in Najmeddine's hand in Bent Street ten days prior to the shooting of Hitchens at the time of the altercation between Najmeddine and Stamenkovic. He had become involved in an attempt to break up the fight and the pistol had gone off accidentally, injuring Najmeddine in the leg. The pistol was then taken by Hitchens.

(b) On 28 June 1997 Hitchens had the same gun at the Sunshine flat and later, played around with it, throwing it and pointing it while he was in the applicant's car en route to King Street.

(c) Hitchens' behaviour with the firearm was a source of annoyance to the applicant and, therefore, he yelled and abused him and eventually told everyone to get out of the car at King Street.

(d) When Hitchens got out of the car he left the gun behind so the applicant got out and threw it on the ground and told him to take it.

(e) The applicant then heard three shots and then turned to hear Hitchens say "I am not an idiot" and see Hitchens shoot himself.

In other words, said the Director, the defence case at the first trial was that the applicant had nothing to do with the firearm; it was Hitchens who had control of it. The defence sought to answer the question - why give the gun to Hitchens - by demonstrating that it was Hitchens' gun which was being "returned" to him by the applicant at the time of the shooting. Therefore, it was argued, it was appropriate for the Crown to seek to lead evidence as to the provenance of the pistol. That the defence case later changed, argued the Director, was not to the point.

103. Secondly, the Director argued that support for the claim that the provenance of the firearm was relevant to the plausibility of the defence case was found in the passage of the judgment of Buchanan, J.A. which I set out in para.[6].[14]

106. The Director also submitted that, in any event, counsel for the applicant effectively agreed to the admissibility of that evidence. It was contended that counsel had a strong interest in the evidence being led because it showed that persons other than the applicant had possession of the pistol, for example, Stamenkovic, and moreover, it would ensure that the Crown did not lead the full version of Najmeddine's evidence which would have been prejudicial to the applicant's interests. This view, said the Director, was reflected in counsel's statement to his Honour before the trial got under way that what the Crown proposed in this regard was "a nice compromise" and later, after the prosecutor had opened the Crown case as to Najmeddine's proposed evidence, that he had "no objection" to that evidence being led.

109. In my opinion, the Najmeddine evidence was more than mere "background evidence" as was contended for by Ms Lieder. In my view, it was relevant evidence which was properly led in rebuttal of what was thought to be the applicant's case that the pistol was in Hitchens' possession during the relevant period and that that was the reason why the applicant gave it to him in King Street. It may be said that, in light of the applicant's case as it eventually emerged at the re-trial, the Najmeddine evidence assumed only slight relevance to the issue of who had possession of the gun shortly prior to the shooting. At the re-trial, the applicant accepted that it was he who fired three shots from the pistol and then gave it to Hitchens who used it to shoot himself. No doubt the applicant assumed this defence because Amanda Watson, who did not give evidence at the first trial, said in her evidence at the re-trial that it was the applicant who fired three shots in King Street. Consequently, it became less relevant for the applicant, who did not give evidence at the re-trial to show that Hitchens had possession of the pistol ten days or so prior to the shooting. Consistently with his case, therefore, it was not suggested to Najmeddine in cross-examination that Hitchens was present at the Bent Street house at the relevant time or that it was Hitchens who was fooling with the firearm in the applicant's car on the way to King Street. But all this came out later so that at the time the issue of the Najmeddine evidence was first raised before his Honour and when it was adduced, evidence as to the provenance of the pistol was of considerable relevance and consequently, his evidence was both relevant and probative. Such prejudicial effect as it may have had did not outweigh its probative value.

112. In any event, it is clear that at the re-trial, counsel for the applicant effectively agreed to the Crown adducing the Najmeddine evidence. In light of that and the circumstances in which it occurred, it seems to me that, unless it is established that this has led manifestly to a miscarriage of justice, the applicant is bound by his former counsel's decision on that issue that his conviction cannot be properly challenged on the basis that the evidence was inadmissible - Crampton v. The Queen[15]; Re Ratten[16]; R. v. Gay[17]; R. v. Miletic[18] and R. v. Arundell[19]. See also R. v. Clarke & Johnstone[20]; R. v. Osland[21] and R. v. Gallagher[22].

115. In Crampton the applicant had available to him a point of law which, although not raised below, constituted a complete answer to the charge on which he was convicted. Had it been raised below, the outcome could not have been affected by evidence. The majority of the High Court held that the Court had jurisdiction to entertain a ground of appeal based on that point of law notwithstanding that it had not been raised at the trial or before the Court of Criminal Appeal. They considered that the circumstances of the case were sufficiently "special" or "exceptional" to allow the point to be raised and argued before them. In the result, they quashed the conviction and ordered that a verdict and judgment of acquittal be entered. Although the majority did not, in terms, speak of counsel's failure to raise the point of law below as amounting to a serious miscarriage of justice, it is implicit in their Honour's decisions, particularly those of Kirby, J.[23] and Hayne, J.[24] that they so regarded the situation. (I mention for completeness that the whole court also considered that a sufficient Longman warning was not given by the trial judge in his charge to the jury and that this justified quashing the conviction.)

118. Their Honours recognised, however, that it is only in exceptional circumstances that a point not taken below would be allowed to be taken on appeal. The reasons for this were summarised by Gleeson, C.J.[25]. Hayne, J. also emphasised[26] that, ordinarily, an accused is bound by the consequences of a decision not to take a point at the trial. In that context, his Honour referred to the observations of Barwick, C.J. in Ratten v. The Queen[27] (which reflected the observations of the Full Court in Re Ratten) concerning the freedom of trial counsel to decide how the case for the accused will be put, including what evidence to adduce and what questions to put in chief and cross-examination, so that ordinarily, the accused has to bear the consequences of any such decision.[28] Earlier his Honour had said[29]:

"Trial is the central feature of the criminal justice system. The importance of trial cannot be emphasised too strongly. It is at trial that the prosecution must make its case and it is at trial that the accused must make whatever answer is to be made to the charge or charges made. Appeal is for the correction of error at trial. It is not an opportunity to make some second, different, case in answer to the charge or charges made, any more than it is an opportunity for the prosecution to make some different case against the accused."

122. Hayne, J. pointed out that, where a point is sought to be argued on appeal which has not been raised below, questions arise such as why was it not taken, and is it now too late to take it? Could taking the point at trial have caused a difference in the way in which the trial was conducted? In considering those questions, the importance of the point at the trial given the way it was conducted and the competence of counsel in not raising it, are to be taken into account. But since an appeal court is poorly placed to determine why trial counsel did or failed to do something at the trial, as has been recognised by the courts, including by Gleeson, C.J. in Crampton[30] and by this Court in Miletic[31], the mere incompetence of counsel in failing to take the point at trial or in not taking an objection to certain evidence adduced by the prosecution, will not be sufficient reason for allowing the conviction to be attacked on that ground. As I have said, before this course can be allowed, the applicant must satisfy the appellate court that the decision of trial counsel not to raise the point or not to object to certain evidence, manifestly led to a miscarriage of justice.

125. Thus, in Miletic, defence counsel at the trial required that a police record of interview with the accused, who was charged with a number of counts of rape and recklessly causing injury, be tendered in evidence notwithstanding that the prosecution did not propose to do so or to rely on it. Counsel believed that, by tendering the material, he would gain a forensic advantage. The accused was convicted and on appeal this Court held that, notwithstanding that the decision to tender the record of interview was an error of judgment on the part of experienced counsel, since it was made pursuant to a calculated decision in order to gain a forensic advantage, it was not an egregious error or flagrant incompetence causing a miscarriage of justice and warranting appellate intervention. Similarly, in Gay, the Full Court held that certain pages of a police officer's notebook were properly admitted, but if there was error, the applicant could not have been permitted to rely on his trial counsel's error of judgment in not objecting to the tender of that material. Their Honours noted[32] the distinction between mere failure to object to evidence so that it is received as it were per incuriam on the one hand and a conscious decision by counsel whether to object or not on the other. Their Honours concluded that, since it was clear that counsel had made a conscious decision (after consultation with the accused) not to object to the reception of the notebook, it was not open to the defence to impugn the conviction on the basis of the allegedly wrongful receipt of it.

128. In this case, the calculated decision by counsel for the applicant not to oppose the Crown adducing the Najmeddine evidence was not the result of a mere failure on his part to object to it so that it ended up being received by the court per incuriam. It is plain that he made a considered choice effectively to agree to that evidence being adduced and voiced that agreement on two separate occasions to which I have referred. As a result, his Honour was not asked to address the argument which is now pressed on us by Ms Lieder in relation to that evidence.

131. Thus, the question is what is the suggested miscarriage of justice that flowed from the decision by trial counsel not to object to the admissibility of the Najmeddine evidence? Although Ms Lieder asserted that a miscarriage of justice resulted from the Najmeddine evidence being adduced at the re-trial, she was not able to articulate the miscarriage. In a sense, this is not surprising for the following reasons. First, that the applicant's experienced senior counsel did not object to the evidence, is a strong indication that he did not consider its admission would result in a miscarriage of justice. And, unlike the situation in Miletic, it was not argued here that the applicant's counsel made a serious error of judgment in not objecting to the admissibility of the Najmeddine evidence. The most that can be said on this point is that Ms Lieder claimed that the applicant's concession "appears to be inconsistent with his submission in support of his application that count 1 be severed". In my opinion, however, there is no such inconsistency. In his submission in support of severance, counsel was dealing with the question whether there was sufficient "features of similarity" arising out of the acts going to count 1 to identify who discharged the fatal shot. Once the Crown agreed not to lead evidence of Najmeddine being shot in the leg by the applicant, however, the issue of "similarity" between the applicant's conduct at the Bent Street home and in King Street, assuming it was ever relevant, fell away. Secondly, in his charge, his Honour told the jury that the evidence of what occurred at Bent Street was of little relevance. Thirdly, as will be seen later, the jury was given an edited version of the applicant's evidence at the first trial, but his Honour excluded from that material evidence that it was Hitchens who took possession of the pistol at Bent Street on or about 18 June 1997.

134. There is, however, another reason why in my view no relevant miscarriage of justice arose. It seems to me that counsel saw a forensic advantage in agreeing to the Crown adducing the evidence in question. Such a course ensured that the Crown would not seek to lead the "full" version of the Najmeddine evidence. It also enabled the applicant to point to another person, namely, Stamenkovic, as having possession of the pistol a few days before the shooting, thereby casting doubt on the Crown case that it was the applicant's gun. For what it is worth, in my view, counsel's decision to allow that evidence to be led in order to take advantage of those factors, is quite understandable. There was a risk that the Crown might change its mind and would seek to lead the whole of the Najmeddine evidence that was adduced at the first trial. Agreeing to allow the edited version to be led, obviated that risk. Secondly, as I have said, the evidence did indicate that at least one person had possession of the firearm shortly before the shooting. In the circumstances, therefore, no miscarriage of justice arose by reason of the tactical decision of the applicant's counsel to allow the Najmeddine evidence to be adduced.

137. I am also unable to accept Ms Lieder's submission to the effect that the reason why the applicant's counsel did not try to persuade his Honour to exclude the whole of Najmeddine's evidence but agreed that the edited version of it could be led by the Crown was that his Honour had, almost at the outset of the trial, made up his mind that Najmeddine's limited evidence would be admitted and that it would have been a waste of time to seek to have the whole of it excluded. It is almost inconceivable that the applicant's very senior and experienced counsel at the second trial would have so readily accepted the position adopted by the Crown as to Najmeddine's evidence if he thought it would be contrary to his client's interests and there was a proper basis for objecting to its admissibility. In any event, the transcript clearly establishes that there was no attempt at all by counsel to persuade his Honour that none of Najmeddine's evidence should be led. It seems clear from the discussions on this issue between his Honour and counsel that, once counsel realised that the Crown would not lead from Najmeddine evidence of the shooting at the Bent Street house, he withdrew his objection to the Crown adducing the limited version of his evidence.

140. Consequently, notwithstanding Ms Lieder's able arguments in support of them, in my view, these grounds must fail.

Ground 4 - Evidence of applicant's use of anabolic steroids

144. This was the next ground that was argued on behalf of the applicant. It was part of the Crown case, as was well known to the applicant, that an explanation for the applicant's seemingly bizarre and aggressive conduct on 28 June 1997 was the effect on him of anabolic steroids which he used as part of his body building program. In its opening before the jury, the Crown made its position on this issue clear. The prosecutor told the jury that the applicant took steroids and that evidence would be given as to how they affected human behaviour. No suggestion was made by the applicant's counsel at that or any other stage of the trial that such evidence was inadmissible. In the result, evidence as to the applicant's use of steroids was adduced from Najmeddine who said that the applicant had used steroids such as Sustanol and Sustanon and that he administered them by injection. He said he was muscle building at the time this occurred. There was also evidence by way of a previous admission by the applicant to a psychologist of use of steroids by him between April 1993 and June 1995. Further, there was evidence that the police found a 50ml bottle of Sustanol, a 20ml bottle of Filybol and four syringes in a cheezel packet in a rubbish tin at the applicant's residence. Although he denied that the bottles and syringes were his, the applicant was unable to give any explanation as to how they were there when cross-examined at the first trial. In addition, there was evidence from Professor Drummer that steroid use was associated with increased irritability and aggression.

147. It was submitted by Ms Lieder that the evidence of the applicant taking steroids was irrelevant and inadmissible because the evidence showed only that the use of steroids might cause violent and aggressive behaviour by the user. She argued that, on the evidence, there was no causal link between the applicant's aggressive behaviour at the relevant time and his use of steroids. Indeed, it was contended that the evidence did not establish that he used steroids at the relevant time. For instance, it was said that Najmeddine could not say when the applicant used steroids or as to what amount he used. Similarly, the evidence of finding of steroid detritus in the rubbish bin provided no basis for saying that the contents of the bottles had been used by the applicant. Thus, it was said, the evidence had no probative value, but was significantly prejudicial to the applicant because it demonstrated that he used illicit drugs. Moreover, it was argued, the evidence added nothing to the Crown case because there was other evidence that went to establish that the applicant was enraged and in a state of uncontrollable anger on the afternoon of 28 June 1997. It was submitted that, in the circumstances, the admission of the evidence relating to the applicant's alleged use of steroids resulted in a significant miscarriage of justice.

150. In my view, however, putting to one side for the moment that the applicant's counsel did not object to the admissibility of that evidence, it was led as part of the Crown's rebuttal of the applicant's case that the applicant had no motive or reason to kill Hitchens; it was put to the jury by applicant's counsel that people do not kill friends. It is in that context that the Crown led evidence to establish that the applicant used steroids, that their effect was to increase the aggression of those who used them and thus, it explained the applicant's behaviour which otherwise might not be explicable. On that basis, it seems to me the evidence was admissible as explaining the applicant's irrational and aggressive conduct.

153. It should also be borne in mind that the applicant's case at the first trial was that he denied being in the grip of aggressive and irrational behaviour on 28 June 1997. He claimed that he became angry in the car only because Hitchens was "fooling around" with the firearm. Consequently, the evidence concerning the use of steroids by the applicant could also be used in conjunction with other evidence that he was acting irrationally and aggressively on 28 June 1997 to make it more likely that he had in fact behaved in that way between the flat at Sunshine and King Street.

156. As to Ms Lieder's suggestion that the Crown evidence of the applicant's steroid use was so weak as to lack probative value, in my view there was a sufficient factual foundation, if it was accepted by the jury, to draw the conclusion that the applicant was taking steroids at the relevant time. That was clearly a matter for the jury. It is also difficult to accept the argument put for the applicant that the evidence was prejudicial to him. The jury well knew the company in which the applicant mixed so that it is highly improbable that their realisation that the applicant took steroids would cause them suddenly to regard him, by reason of that alone, as a person of bad character.

159. Consequently, in my opinion, the evidence as to the applicant's use of steroids was admissible to explain, along with other evidence, the behaviour of the applicant on 28 June 1997 which might otherwise not be explicable and to rebut the applicant's denial that he behaved irrationally and aggressively almost continually from the flat at Sunshine to King Street.

162. But even if I am wrong in this conclusion, the applicant's counsel did not seek to exclude the evidence which indicates strongly that he was of the view that no miscarriage of justice would occur by reason of its the admission. In light of that, for the reasons I have given when considering grounds 2 and 5, it is not open to the applicant to challenge his conviction on that basis.

165. It follows that, in my view, ground 4 cannot succeed.

Ground 3 - Wrongful admission of evidence given at the first trial

169. This was the last ground argued for the applicant. I have adverted to the fact that the applicant's case during the re-trial changed from that which was put before the jury at the first trial. Importantly, while at the earlier trial the applicant gave evidence that Hitchens fired three shots from the pistol which the applicant had "returned" to him and had then shot himself, the applicant's case at the re-trial was that it was he who had fired the first three shots and had then given the gun to Hitchens who used it to shoot himself. No doubt this reflected the evidence that was given for the Crown at the re-trial by Amanda Watson (who did not give evidence at the first trial). She said that she heard three shots fired in the area of King Street where the applicant, Hitchens and Stamenkovic were standing. When she heard the third shot, she looked up and saw that the applicant was holding the firearm. She then took her eyes off the group and a few seconds later heard another shot. She looked in its direction she saw Hitchens fall to the ground "like jelly". There were other changes in the applicant's case at the re-trial to which I have referred.

172. In that context, it is not surprising that the Crown wanted to tender as part of its case certain evidence of the applicant at the first trial going to the shift in his defence. The applicant's counsel accepted from the outset that his client's prior evidence was admissible against him; the dispute between the parties was as to what parts of the material should be excluded as being prejudicial and in what form the edited evidence should be placed before the jury.

175. Initially, it was proposed by the prosecutor that extracts from the transcript of the applicant's evidence be read by him to the jury. Even at that stage, it was contemplated by the prosecutor that some of the material would include the cross-examination of the applicant. The applicant's counsel, however, objected to the prosecutor putting before the jury only selected parts of the applicant's evidence. He contended that the whole of the evidence (including the cross-examination of the applicant), subject to the exclusion of prejudicial material which he proposed to identify, should be read to the jury. In light of that, the Crown proposed that, subject to the exclusion of any prejudicial evidence, the whole of the transcript of the applicant's evidence at the first trial be tendered and in the result, his Honour ruled that "because of the defence position, the whole of [the edited transcript] should be available to the court, and to counsel". He also ruled that it not be read to the jury as proposed by the applicant's counsel, but should be made available to them by way of transcript. Thus, the jury had made available to it the transcript of the whole of the applicant's (edited) evidence at the first trial and the prosecutor read to them passages on which he relied.

178. Ms Lieder argued that, notwithstanding that the whole of the applicant's (edited) evidence at the first trial was put to the jury effectively by agreement between counsel, only the edited version of the applicant's evidence-in-chief should have been admitted. It was submitted that to have allowed the evidence of the cross-examination of the applicant to be placed before the jury was to deny him a fair trial. This was because, according to Ms Lieder, the cross-examination of the applicant:

- related to his evidence "predicated on a need to present an overall defence" (as I understand it, going to both counts);

- demonstrated the acerbity that developed between the parties at the first trial;

- included matters relating to an even earlier trial where the jury was discharged without verdict;

- contained assertions by the Crown in the form of questions about the applicant's shift in his case between the time when the Crown witnesses were being cross-examined by his counsel and the time when he gave evidence.

185. In my view, however, the short answer to Ms Lieder's valiant submission is that, given that the whole of the applicant's (edited) evidence at the first trial was put to the jury only because of the insistence by his counsel that that be done, it is not open for her now to attack the conviction on the basis that only part of it should have been tendered. It is clear that the only relevant dispute between the prosecutor and the applicant's counsel was what parts of the applicant's earlier evidence should be excluded on the ground of prejudice. The discussion between the parties and the rulings of his Honour as to that continued almost until the conclusion of his Honour's charge. That it was the applicant's counsel who insisted that the Crown place the whole of the applicant's (edited) evidence at the first trial before the jury was recognised by his Honour in his rulings and in his observations during discussions with counsel. Thus, in a discussion with counsel part-way through his charge to the jury, his Honour said that "It was at [the applicant's counsel's] request, although in a different form, that the whole of [the] transcript goes to the jury, apart from irrelevant or directly prejudicial matters ...". A little later, his Honour said that "the whole idea of this is that the cross-examination and evidence-in-chief goes in as a whole ..". It is plain therefore, that the applicant's counsel could not have been under any misapprehension that what was to be put before the jury included the cross-examination of the applicant, subject to relevant deletions. It is also clear that, in submitting to his Honour that in the circumstances, the whole of the (edited) evidence of the applicant at the first trial be placed before the jury, the applicant's counsel exercised forensic judgment for the perceived benefit of his client. No doubt, for example, he saw an advantage in having some of the self-serving material that arose from the applicant's cross-examination put before the jury. In those circumstances, given that no identifiable miscarriage of justice resulted from the admission of that material, for the reasons I have given earlier[33] , it is not open to the applicant to challenge his conviction on ground 3.

189. For the above reasons, I am of the opinion that the applicant's application for leave to appeal against conviction for murder should be dismissed.

Application for leave to appeal against sentence

193. I now turn to consider the application for leave to appeal against the sentence to which I have referred and in respect of which the applicant represented himself. I begin by setting out briefly the circumstances relating to the offending.

196. In respect of the dishonesty offences, they were these. As to count 1, in January 1995 the applicant persuaded an accomplice to insure a Mercedes-Benz motorcar with RACV Insurance Ltd. ("RACV") for $17,500. The applicant paid the insurance premium in relation to the policy. On 9 February 1995, at the applicant's direction, the accomplice reported the car stolen and represented to the RACV that its value was $20,000. Shortly thereafter, the RACV handed over a cheque in the sum of $17,500 to the accomplice. This cheque was cashed, the accomplice was paid $1,000 from the proceeds and the balance was retained by the applicant. The background circumstances in relation to the second count were the following. In February 1995 the applicant bought a Mercedes-Benz for the sum of $3,100. He and his co-offender approached a third person ("the accomplice") and persuaded her to take part in an insurance fraud on the RACV. In return, the applicant would reduce the debt of herself and her partner for the supply of drugs by the sum of $1,500. In accordance with that arrangement and at the applicant's suggestion, the accomplice insured the vehicle with the RACV for the agreed figure of $17,000 and later increased it to $19,000. The applicant then accompanied the accomplice to the RACV office in Prahran and completed the insurance proposal. On 10 April 1995 the applicant and the accomplice went to the Road Traffic Authority and changed the ownership of the vehicle into her name stating that its value was $3,000. The applicant paid the stamp duty in relation to that transaction. On 18 April 1995 the vehicle was taken and hidden in a friend's garage. That night, on the applicant's instructions, the accomplice reported the car stolen to the police but she told them that its value was $3,000. From then on several attempts were made by the applicant through the accomplice to obtain the insurance moneys for the vehicle and to that end, several meetings were held with the RACV. The police, however, had been in contact with the RACV investigators and, in due course, the claim was rejected and thus, the applicant's attempt to obtain the money from the RACV failed.

199. The circumstances surrounding the charges of handling stolen goods were these. Count 3 related to a black Porsche 928 coupe which was owned by a Dr. Lee. When it was stolen in February 1994, its value was approximately $70,000. It was seized by the police on 1 June 1995 from a storage bin rented by the applicant. At that time, the car had been partly dismantled and some work had been done to make it look like a S4 model. The evidence was that, when further parts could not be obtained, the applicant decided to put it away until parts could be found. When it was seized and examined in detail, it was found that material changes had been made to the identification aspects of the car. Count 4 related to a metallic blue Porsche 928TS owned by one Higgins who bought it in July 1994 for $213,000. It was stolen in February 1995. On 19 May 1995 the applicant applied for and obtained an unregistered vehicle permit in relation to this motor car which enabled the vehicle, although unregistered, to be driven for the purpose of obtaining a current roadworthy certificate and to travel to VicRoads registration office. On 24 May 1995 the applicant was intercepted driving this vehicle by a policeman who issued an unroadworthy notice and placed a yellow sticker on its windscreen. Although the defects were quite minor, according to the sentencing judge, the evidence was that on being told what was required, the applicant said that he was not going to worry about it for now and that he "will just put the car away". The car was found abandoned near Pakenham in June 1996 with the keys in the ignition. At the time, it had a New South Wales number plate fitted to the rear of it and was not easy to discover the identity of the owner. Eventually, however, the vehicle was traced back to Mr. Higgins. Although the vehicle was intact, a later detailed inspection revealed that its identification features had been materially altered.

202. Count 5 related to a dark blue Porsche 911 convertible owned by Robert Ippaso. It was said to be worth $125,000. It was stolen on 3 April 1995 and was seized by the police from the premises of JPS Panels on 2 June 1995. By then, it had been dismantled and the paint stripped with a view to repainting it to another colour. It was also apparently intended that it be fitted with a C2 kit which was bought by the applicant, but was found that it could not be fitted and therefore, the kit was returned. Other parts were bought and fitted on the car but were not welded by the time the police took possession of it. According to the facts found by the sentencing judge, the applicant had brought a severely damaged Porsche 928 to JPS Panels on a trailer a week or more before the police took possession of the stolen vehicle. The damaged vehicle purchased by the applicant had been imported by the seller from Japan on the condition that it would be dismantled and used for parts. It seems that parts from that vehicle were to be used in changing the appearance of other stolen vehicles.

205. On 15 September 1998 the learned sentencing judge heard a plea in mitigation made on the applicant's behalf in relation to all the above-mentioned offences. In that context, he received reports from two psychologists.

208. The learned sentencing judge was of the view that the fraud offences were of a serious nature in that they required careful planning and the acquisition of prestige cars in poor condition so that they could be bought for a small amount and insured for a large amount. In operating this scheme, the applicant involved other persons to take part in the commission of the offences; persons who, his Honour said, might otherwise never have been involved in this type of offending.

211. In relation to the applicant's conviction for handling stolen goods, his Honour was of the view that the applicant had been involved in a sophisticated "racket" whereby expensive, luxury cars were stolen for the purpose of changing their identity and then presumably re-registering them for re-sale. His Honour said that it was by no means clear exactly what part the applicant played in the project. He was not persuaded that he played any part in the actual theft, particularly having regard to the jury's verdict that the applicant was guilty of handling stolen goods. His Honour was also not satisfied that the applicant was capable of conceiving or devising a scheme of this sophistication. Nevertheless, his Honour was of the view that it was clear that the applicant was part of this very criminal enterprise. Moreover, his Honour also had regard to the applicant's criminal record.

214. In sentencing the applicant, his Honour had regard, in addition to the above matters, mitigating factors outlined in the psychologists' report to which I have referred and to the applicant's ill-health which would make time spent in prison by him significantly more stressful and arduous than it would be for healthy persons. He also had regard to other personal circumstances of the applicant.

217. Although in the notices by which leave is sought to appeal against the sentence the sole ground is that it is manifestly excessive, at the hearing before us, the applicant did not contend that the sentence was outside the range of sentences properly available to his Honour. In my opinion, any argument along those lines would have been doomed to failure, given the maximum penalties prescribed for the respective sets of offences, were 10 years and 15 years' imprisonment, the applicant's criminal history and the circumstances of the offences which involve not insignificant amounts of money and careful planning.

220. In the end, it became apparent that the applicant's real complaint was that he effectively lost the benefit of the parole period which, he said, was contemplated by the sentencing judge. He was arrested in about June 1995 in relation to the fraud charges and the handling of stolen goods charges. He was released on bail on 20 August 1996 and committed the murder in question on 28 June 1997. He was apprehended on 15 August 1997 in respect of, inter alia, the alleged murder and has been in detention ever since. He was sentenced, as I have said, in relation to the charges that came before the County Court on 15 September 1998. In respect of the conviction for murder, he was sentenced on 30 May 2000. In my view, the applicant's complaint about losing the benefit of the parole period demonstrates, not surprisingly and through no fault of his, a misunderstanding on his part of the nature and operation of the sentences that were imposed on him, particularly by the County Court.

223. The applicant mistakenly believed that once he served the two year non-parole term imposed on him by the County Court, he would be automatically released on parole. The legal position, however, is that the sentence which his Honour thought was appropriate, given the totality of the applicant's criminal conduct, was 3½ years' imprisonment. His Honour's declaration that the applicant serve a minimum term of imprisonment of two years before becoming eligible for parole, operated to disentitle the applicant from being released on parole before the expiration of that period. Whether the applicant would have been released on parole was a matter for the Parole Board and not for the court. Thus, at best, the applicant would not have been entitled to be released on parole prior to January 1999. So far as I know, he did not apply for parole either then or thereafter and in any event, given that, at the relevant time, he was held in custody on the charge of murder, it is unlikely that he would have been released on parole in respect of the sentence imposed on him by the County Court. Thus, the applicant was not released on parole and had to serve the full sentence of 3½ years which expired on 10 July 2000. It is plain, therefore, that he lost the benefit of the parole period of 1½ years because of his criminal act on 28 June 1997.

226. The sentence of 18 years imposed on the applicant commenced on 30 May 2000 and his Honour did not order that it be served cumulatively on the sentence that he was then serving as, it seems, he was required to do by s.16(3C) of the Sentencing Act 1981 given that the applicant had committed the murder while he was on bail. Consequently, the applicant received the benefit of a concurrency in the sentences between 30 May 2000 and 10 July 2000. He also received the benefit of a shorter non-parole period in respect of his 18 year sentence. The learned sentencing judge who imposed that sentence recognised that the applicant's non-parole period relating to his County Court sentence expired in early 1999 and that he was not entitled to any pre-sentence detention period in respect of the 18 year sentence of imprisonment. In the circumstances, his Honour fixed a shorter non-parole period of 14 years rather than the 15 years which he would otherwise have ordered. Thus, the applicant gained a shorter non-parole period of 12 months in respect of the 18 year sentence and he also gained the benefit of concurrency in the sentences of some five to six weeks. Consequently, overall, the applicant was not unfairly dealt with for the purposes of sentencing.

229. In the circumstances, therefore, his application for leave to appeal against sentence should be dismissed.

234. I have had the benefit of reading the draft judgment of Chernov, J.A., and agree that, for the reasons given by his Honour, the appeal should be disposed of as he proposes.

[1] See R. v. Cogley [1999] VSCA 123; [1999] 3 V.R. 366.

[4] (1866) L.R. 1 Q.B. 390 at 394-5 per Erle, C.J.

[5] [1974] VicRp 100; [1974] V.R. 849 at 866 per Full Court (Adam, Little and McInerney, JJ.).

[6] [1996] HCA 22; (1996) 186 C.L.R. 427 at 432

[7] (1866) L.R. Q.B. 390 at 394.

[8] [1909] VicLawRp 92; [1909] V.L.R. 550 at 563.

[9] [1909] HCA 92; (1909) 10 C.L.R. 43.

[10] [1974] VicRp 100; [1974] V.R. 849 at 866.

[11] [1997] 1 V.R. 593 at 605

[12] [1998] 4 V.R. 621 at 631 per Callaway, J.A.

[13] [2000] VSCA 33 at [24] per Callaway, J.A.

[14] See also [22] and [25] of Cogley.

[15] [2000] HCA 60 at [14]-[19] per Gleeson, C.J., at [159] per Hayne, J.

[16] [1974] VicRp 26; [1974] V.R. 201 at 214 per Smith, Pape and Adams, JJ.

[17] [1976] VicRp 59; [1976] V.R. 577.

[18] [1997] 1 V.R. 693 at 597-600 per the President, Charles and Callaway, JJ.A.

[19] [1998] VSCA 102; [1999] 2 V.R. 228 at 249 per Callaway, J.A.

[20] [1986] VicRp 64; [1986] V.R. 643 at 661-2.

[21] [1998] 2 V.R. 636 at 651-2 per Winneke, P., Hayne and Charles, JJ.A.

[22] [1998] 2 V.R. 671 at 681 per Brooking, J.A., 690 per Callaway, J.A. and 702 per Ashley, A.J.A.

[27] [1974] HCA 35; (1973) 131 C.L.R. 510 at 517.

[28] Observations to the like effect were made by this Court in Miletic at 597-8.