R v Coombe [1999] VSCA 94

Court of Appeal (Vic)|1999-06-10|Before: CHARLES and CALLAWAY, JJ.A. and HAMPEL, A.J.A.

Criminal law - Appeal against conviction - Attempting to pervert the course of justice by persuading witness to tell false story - Mens rea - Knowledge or belief as to falsity - Jury not instructed as to mens rea - Jury instructed as to common unlawful purpose - Direction confusing and inappropriate to the facts - Sentence served - Verdict of acquittal.

The applicant, who was born on 12 July 1972, was presented together with her brother, Christopher James Coombe, in the County Court at Morwell on 24 April 1997 on a presentment which alleged (count 2) that she and Christopher Coombe did an act with intent to pervert the course of public justice in that they caused Allan Foster Ridley to make a false statement. Count 1 on the presentment alleged a separate charge against Christopher Coombe. The trial proceeded and on 2 May 1997 the jury returned a verdict of guilty on count 2 against both accused. The applicant admitted a number of prior convictions, and, after a plea made on 2 May, on 14 May the judge sentenced her to be imprisoned for a period of four months, wholly suspended for a period of 18 months. Christopher Coombe was also sentenced to be imprisoned for four months.

Christopher Coombe sought leave to appeal against conviction, his application being heard by this Court on 10 February 1998. His appeal was successful and the Court ordered that his conviction be quashed and in lieu thereof a verdict of acquittal was entered.

By notice dated 27 April 1998 the applicant applied for an extension of time to lodge an application for leave to appeal against conviction, the extension being granted on 15 May 1998.

On 20 July 1998 Christopher Coombe was convicted in respect of various offences alleged by Allan Ridley, including causing injury intentionally and armed robbery, and was sentenced to be imprisoned for a period of three years, a substantial portion of which was suspended.

The applicant now seeks leave to appeal against her conviction on count 2 on the grounds that the verdict was unsafe and unsatisfactory, and that the direction by the trial judge was confusing and inappropriate to the facts. At the outset of the hearing by this Court, leave was granted to add a third ground that the learned judge erred in failing properly to direct the jury as to the requisite intention necessary for the commission of the offence.

The Crown case was as follows. Christopher Coombe was one of three men alleged to have assaulted Ridley at a caravan park in Morwell on 26 April 1996. Coombe was arrested and remanded in custody awaiting a hearing in relation to the charges. Ridley is a pensioner who had been living at that caravan park until the events of April 26, after which, at the suggestion of police, he moved into premises with John Mrzygloski at 43 Madden Street, Morwell.

Coombe applied for bail, and his application for bail was to be heard on 23 July 1996. The Crown case was that before the bail application was heard Coombe wrote to the applicant seeking her aid to put pressure on Ridley, who was to be the principal Crown witness in the charges against Coombe, for the purpose of getting Ridley to change the tenor of the statement he had already made to the police. In his statement Ridley had said that the attack made upon him was unprovoked. The Crown case was that Coombe had, whilst in custody, written a letter to his sister including the following -

"I spoke to Chester yesterday, he is the solicitor I want because he has represented me on every charge I have ever been up on and he knows me which makes me feel a lot more confident. I know he always gives it everything when he is fronting for me. I told him about Redbeard going to the jack shop and all that and he says that I should get you to take him to a neutral solicitor's office and get him to make a sworn statement if he is going to change his story. He will have to explain why he is changing his story. Just get him to say that he was under a lot of stress and since he has had time to think he can remember the incident more clearly. He can say he tried to head-butt me out of fear and that I then punched him on the nose and it bled then I left the caravan. I don't care what he says after that about, PK and Tony I mean. Anyway Chester assures me that's the way to go."

(Chester Metcalf was a solicitor who had previously acted for Christopher Coombe.)

After receiving the letter, the applicant went with her partner, Bruce Jolly, to visit Ridley and, it was alleged, by imposing pressure upon him, succeeded in having Ridley change his statement on 21 July 1996. After that visit, Ridley signed a statement in the following form -

"I, Allan Ridley of 43 Madden Street, Morwell, Victoria do state that on the evening of April 25th 1996, Christopher Coombe did assault me once (he may of (sic) thought that I was going to head-butt him first). He done nothing else to me. I can recall Chris telling one of the other two guys to 'leave him alone'. I think that he had enough. He then walked out of our caravan and I haven't seen him since. I make this statement on my own free will. Signed, A.F.Ridley. Dated 21 July 1996."

The circumstances in which Ridley changed his statement were the subject of a deal of evidence. Under cross-examination, Ridley accepted that when the applicant took him to Morwell police station, Ridley spoke to a policeman, not the informant, who told him that he could not change anything. Under cross-examination Ridley said for the first time that he went to the Morwell police station to say he might have the wrong guy and to blame "Tony", something which had not been part of his police statement. Ridley said that the applicant told him that if Coombe was convicted he would get "eight years" and she was crying. She asked him to say that he head-butted Coombe. Ridley said he felt sorry for her and she kept going on about it, almost crying. For these reasons, he agreed to write something out, "a statement saying virtually it wasn't all that bad and that I started everything".

Mrzygloski gave evidence that on 21 July he went to bed at 5 p.m. because he was unwell. He was woken up at 8.30 p.m. by Ridley who showed him a yellow piece of paper with writing on it. He said Ridley was apparently "shaking like a leaf" and said, "What do I do?" Mrzygloski said that after being with Ridley for three hours, the applicant said to Ridley, "I don't blame you for what you're doing." The next day, however, 22 July, Ridley contacted the informant (Detective Senior Constable Surrey Hunter of Morwell C.I.B.), who went to Ridley's place and took a statement from him, taking possession of two pieces of paper.

The next day, 23 July, Coombe's bail application was made by video-link from Melbourne to Moe Magistrates' Court. The applicant attended with Jolly and one of her children. Sharon Radford, Deputy Registrar of the Moe Court, was acting as clerk to the presiding magistrate. The applicant approached Radford to say she might have some information that might help with the bail application. The applicant was then referred to the prosecutor, Senior Constable Van Breugel. The applicant said to him she had something that might help her brother and held up a small piece of lined paper. The matter was then stood down, part heard, and the magistrate left the bench so that Coombe could give his legal adviser instructions. The informant and Van Breugel left the courtroom. The applicant then spoke to Coombe over the video-link and Radford heard her say, "I've got it." Christopher Coombe told the applicant to fax it to "Chester" that night.

The informant, who had given sworn evidence in opposition to the bail application, saw the applicant pass something to Jolly while he (the informant) was giving evidence. At the end of the hearing he approached the applicant and asked her for the note. She said she did not have it and didn't know who did. The informant and Van Breugel then approached Jolly who handed over the note. The applicant was then arrested.

When the trial of the applicant and her brother commenced, the prosecutor said that the case being made against Christopher Coombe was one of procuring a perversion of the course of justice. After all the evidence had been called, however, it emerged during discussion with the judge that his Honour proposed to direct the jury in terms of a common unlawful purpose engaged in by the applicant and her brother, which had as its object the ultimate perversion of the course of justice. Counsel for the applicant vigorously objected to the judge charging on the basis of common unlawful purpose (as also did counsel for Christopher Coombe). The applicant's counsel submitted that whatever Christopher Coombe had in mind, it had to be shown that the applicant knew that what her brother was saying was untrue and that there was no evidence of that before the jury. He submitted that all the jury had been told was that it was most probable that Christopher Coombe had given the applicant a version, his version, of what had happened during the assault on Ridley, but as to whether her brother was telling the truth or not, there was no evidence. Accordingly he submitted that the jury might well think Christopher Coombe guilty, that he may have had in mind to use the applicant as his conduit by "telling her a load of rubbish and getting her to get a statement", in which circumstances she would be an innocent party, being used by her brother. He submitted that if the judge put common unlawful purpose to the jury, then her defence would not be properly put, namely that the applicant had no idea what the truth was and that all she was doing having heard her brother's version, was to put it to Ridley.

Notwithstanding these objections, the judge proceeded to charge the jury on the basis of common unlawful purpose, and in taking this course, was found by this Court to have been in error in the appeal brought by Christopher Coombe. In reasons for judgment delivered on 10 February 1998, Winneke, P. said of this aspect of the charge -

"The direction, in my opinion, is confusing. The facts established, if anything, a procurement by [Christopher Coombe] of [the applicant] to bring about a perversion of the course of justice. This was, in my view, not really a case where the facts made it clear that there was a common understanding or common agreement between [Christopher Coombe] and [the applicant] to pervert the course of justice. ...

In my opinion, to have left the case to the jury on this basis was inappropriate and potentially confusing to the jury in the circumstances of this case."

(I have substituted "Christopher Coombe" and "the applicant" for the different expressions used by the President.)

In concurring reasons, Callaway, J.A. said that -

"Not only was the direction unnecessarily complicated and an inappropriate analysis of the case, it was not related by his Honour to the evidence. An attempt to relate it to the evidence would have revealed that it was mistaken. There is ... a very real risk that the effect was to confuse the jury."

In his written submissions Mr Tehan, for the applicant, submitted that her conviction was unsafe because the jury were directed in relation to common purpose. Mr Tehan referred to the evidence that Ridley had said that the applicant took him to Moe Court to change his statement and that she wanted him to say "that I started it". Ridley was, Mr Tehan pointed out, a forgetful alcoholic who did not clearly remember the occasions on which the applicant spoke to him. Ridley said he felt sorry for the applicant and did not want her brother to go to gaol so he went to the police station in order to drop the charges. He told the police that he thought he had the wrong guy. He said he had altered his statement "to make it look better". The applicant's defence was that she did not impose upon Ridley to change his statement.

Mr Tehan relied upon the judgment of this Court in the case of Christopher Coombe on the basis that to have left the case to the jury as one in which there was an understanding or arrangement to do an unlawful act was wholly inappropriate. He submitted that the fact that the jury was wrongly directed to consider the issue of common understanding was the critical point. The direction, he argued, was not related and could not be related to the evidence because it was inappropriate. It had the effect that the jury had to perceive the applicant as having had an understanding to do an unlawful act with her brother. He submitted that the direction deprived the applicant of submissions which might have been directed to a defence that she was merely an innocent conduit for her brother. Accordingly, the direction deprived the applicant of a trial according to law and there had been a miscarriage of justice.

Mr McArdle, for the Crown, on the other hand submitted that the evidence implicating the applicant was different from that relating to her brother. Christopher Coombe was, he reminded us, absent when Ridley was asked to provide a new statement for the purposes of Christopher Coombe's bail application. Mr McArdle submitted that the jury had on several occasions been instructed to consider the cases against each of the accused separately, and that the error identified by this Court previously on Christopher Coombe's application had related only to his case, since it had been thought necessary to deploy the common purpose doctrine only to impose liability on Christopher Coombe. There was, he submitted, evidence before the jury upon which a verdict adverse to the applicant was available.

In my view the principal difficulty faced by the Crown is one which is only covered by the third ground of the application. The applicant had no direct knowledge of the assaults said to have been inflicted on Ridley on 26 April 1996, it never having been suggested that she was present at the time. Such knowledge as she may have had of the events of that day depended on what she had been told by the participants (principally her brother or Ridley) and whether she believed what they had told her. The applicant furthermore had limited knowledge of what was contained in the statement Ridley had made to the police on or about 26 April, and which she had not seen.

It could not, I think, be suggested that the offence charged would have been committed merely by the applicant having caused Ridley to change his statement, and in any event this was not the offence alleged in count 2. The charge reads "with intent to pervert the course of public justice did an act which had a tendency to pervert the course of public justice" in that the applicant and her brother "caused ... Ridley to make a false statement". The elements of the offence charged involved, first, that the statement Ridley was caused to make was false; and secondly the necessary intent here was that the applicant knew or believed that the statement was false or possibly was recklessly indifferent to the question whether the statement was false; see R. v. Kellett [1976] 1 Q.B.372; R. v. Toney, R. v. Ali (1993) 97 Crim.App.R.176; Archbold Criminal Pleading, Evidence and Practice, 1998, paras.28-10 - 28-12. The offence of perverting the course of justice may be established simply by proving that a person used improper means to persuade a witness to change his evidence (see Kellett at 391-2), but that was not the offence charged in the present case. The offence may also be established if the accused had no genuine belief in the falsity of the statement previously made to the police (see Toney at 180-1), but, having regard to the way the charge was framed and the conduct of the trial, it is not necessary to consider such a possibility in the present case. Reference was also made to the question whether recklessness on the part of the applicant as to truth or falsity might have been sufficient to establish the offence, but it is not necessary for the purposes of this application to decide the point.

To establish the necessary intent on the facts of the present case, the jury would have to have been persuaded, to the appropriate standard, that the applicant acted to persuade Ridley to change his statement to a version which she knew or believed to be false or possibly that she was recklessly indifferent to whether the new version was false. If the jury were, on all the evidence, left with a reasonable doubt as to whether the applicant knew or believed that the statement she asked Ridley to make was the truth, they were, I think, bound to acquit her.

This was in fact part of the case made by the applicant, for, as the judge said to the jury in his charge, her counsel -

"puts it that she had not seen Allan Ridley's statement to the police, so therefore how could she know if what was in his statement of 21 July was true or false, and that in the circumstances it was advisable for her, he put it, given the sort of person that Ridley was, to get him to sort out exactly what he was going to say, and to get it down in writing in black and white, and that overall she thought that she was quite entitled to do what she did."

On the other hand the judge had shortly beforehand put the Crown's case to the jury in the following terms -

"The Crown, in essence, says that all the elements of the offence had been established beyond reasonable doubt with respect to both accused. They rely on those two letters from Christopher Coombe which they say were written by Christopher Coombe, that you cannot have any doubt about that, and they say that Nadine Coombe then acted in accordance with what was suggested by Christopher Coombe in those two letters, that she exerted emotional duress on Allan Ridley, that he felt sorry for her, by his nature he was perhaps in a weakened state and he capitulated, and that there is no doubt that in the light of the evidence that the statement that he signed on 21 July last year is a false statement."

As Winneke, P. said in granting Christopher Coombe's application, the difficulty with the common unlawful purpose directions given by the judge in the charge is that they "were not appropriate in the circumstances of this case". Coombe was, as the President said, the procurer of what occurred. If they jury accepted Ridley's evidence, Coombe would clearly have been aware that the version he wanted the applicant to have Ridley adopt was a false statement, a matter which had been emphasised by the Crown in the passage just quoted from the judge's charge. But the applicant may not have been aware that the version she had been given by her brother was false. As the passage also quoted from the judgment of Callaway, J.A. in Christopher Coombe's appeal shows, the judge's direction unnecessarily and inappropriately complicated the case as it was put to the jury. The elements of the offence were, as it seems to me, never related to the evidence.

It was reasonably clear on the evidence that Ridley was a somewhat unreliable witness. On one occasion, in answer to questions from the prosecutor in re-examination, Ridley said that the version on the paper he signed for the applicant on 21 July 1996 was true. Mrzygloski said that the applicant and Jolly said to Ridley that he was under a lot of pressure and that he had every right to do what he was doing; and also that he had to do what he thought was right. Mrzygloski also said that the applicant and Jolly did not pressure Ridley at all. It was plainly open to the jury on the facts of this case (including the answers given by the applicant in her record of interview) to be left with a reasonable doubt that the applicant was, in effect, an innocent courier, one who may have believed that what her brother was saying was the truth.

In the circumstances of this case it was in my view necessary for the judge to give the jury a clear direction as to the requisite intention necessary for the commission of the offence, and in particular to tell the jury that if they had a reasonable doubt as to whether the applicant believed that the statement she was asking Ridley to make was true, they must acquit her. This was, I think, one of the two principal defences the applicant's counsel was making on her behalf, the other being that no unfair pressure or improper means had been used by the applicant to persuade Ridley to change his statement.

It seems to me, with respect, that nowhere in the charge did the judge give the jury any such direction. On several occasions the judge told the jury that an element of the offence they had to find proved was "that the accused did an act intending to pervert the course of justice". But this was an unusual case. The necessary intent to be proved against both accused was the same, but their differing circumstances meant that the charge had to be proved differently. Whereas in the case of Christopher Coombe it may have been obvious that he intended Ridley to make a false statement, the same could not be said of the applicant. To tell the jury simply that they had to find that the accused did an act intending to pervert the course of justice was in my view likely to have been misunderstood by them as encompassing the situation that Christopher Coombe intended a false statement to be made, leading to the conclusion that the applicant had acted with the same intention, regardless of whether she believed the statement was false. This likelihood was in my view increased by the judge having wrongly given the jury a common unlawful purpose direction, part of which was that (as the President said in his reasons at p.5) she may have acted "in the implementation of a common unlawful purpose shared with the applicant". It is these considerations which lead me to the view that in this case not only was it necessary for the judge to direct the jury as to the requisite intention necessary for the commission of the offence, but also that the common unlawful purpose direction may well have distracted the jury from their task. The directions given were held by this Court in Christopher Coombe's appeal to have been inappropriate, confusing and inadequately related to the facts of the case. In my view, with respect, exactly the same may be said of the charge in relation to the present applicant, for the reasons already given.

Mr McArdle understandably relied on no exception to the charge having been taken in the terms of amended ground 3 of the application. But strong objection to the giving of a common unlawful purpose direction was taken before the charge commenced, in terms which included, I think, the precise point now being made. When the time came to take exception, counsel referred back to this argument, saying that "Whilst I disagree with Your Honour's direction, I can't take it any further".

The failure to direct the jury in the way I have identified was, I think, a significant one, which may well have deprived the applicant of a reasonable chance of acquittal. In my view the applicant has, in all the circumstances, shown that there has been a substantial miscarriage of justice (R. v. Gallagher [1998] 2 V.R.671) and the failure to take exception (if there was one) does not prevent the point now being taken on appeal.

As with Christopher Coombe, therefore, the errors in the judge's charge were, I think, of significance, and the proviso to s.568(1) of the Crimes Act 1958 cannot be applied.

Mr McArdle put it that if the Court were to allow the appeal it should leave to the Director of Public Prosecutions the question whether the applicant should be retried. I do not agree. The offence was alleged to have occurred three years ago. The trial took place early in 1997 and the applicant was sentenced on 14 May 1997. She has already served the whole of her sentence. In my view the conviction should be quashed and a verdict of acquittal should now be entered.

As this application was argued, four issues fall for consideration: first, whether the trial miscarried because of the learned judge's direction on common purpose; secondly, whether it miscarried by reason of a failure to relate one of the elements of the offence to the facts; thirdly, if either or both of those issues be resolved in favour of the applicant, whether the proviso to s.568(1) of the Crimes Act should be applied; and, fourthly, the appropriate disposition if the application succeeds.

I find it unnecessary to consider another question adumbrated in the course of argument, namely whether recklessness may satisfy the requirement of intent in the offence with which the applicant was charged, for I agree with the learned presiding judge on the fourth issue. If the application succeeds, a judgment and verdict of acquittal should be entered for the reasons that his Honour has given. Accordingly, in this judgment, I shall speak only of knowledge and belief.

The learned judge directed the jury on the elements of the offence and on common purpose in three separate parts of the charge. It is sufficient for the moment to set out his Honour's instructions on the second of those occasions. The charge extended over two days. On the morning of the second day his Honour said:

"You will recall yesterday in my charge I covered some general principles which apply to all criminal trials, and then I told you what the elements of the offence here are, and then I was about to move on to comment on some of the evidence, which I intend doing now, but just before I do, just let me remind you what those elements are, and just to remind you that each of these elements has to be established by the Crown beyond reasonable doubt in respect of each of the accused, and you have to, as I told you, consider the case against each of the accused separately, even though they are being tried jointly, they are entitled to have you - and you are required to consider the evidence against each of them separately.

So the elements are, just to remind you, firstly, that the offence occurred at the time and place alleged. Secondly, that the accused did an act intending to pervert the course of public justice, and when I say the accused, I mean each of the accused, you apply that to each of them as you consider the matter. And thirdly, that the act had a tendency to produce that result, that is by doing that act there was a risk, a possibility, without further action by the accused, that injustice would result. And then the act referred to in those elements is causing Allan Ridley to make a false statement. And then I also mentioned to you that whether or not the act succeeds in perverting the course [of] justice is irrelevant.

I then mentioned the position of Christopher Coombe, who was not present when the statement was obtained on 21 July from Ridley, and I indicated that with him, it is sufficient if there is a common unlawful purpose. And you will recall then that I told you what is meant by that, that firstly there has to be an understanding or an arrangement between the two people whom it is alleged have the common purpose, and then I told you that no evidence of express agreement is required to establish the existence and scope of a criminal common purpose, it may be deduced from all the proven circumstances, and secondly, that by participating in the common unlawful purpose, did the accused contemplate that one of his - or in this case it will be Nadine Coombe, did he contemplate that she might commit the offence alleged, or that its commission was a substantial risk associated with the implementation of the unlawful purpose. But when we are talking about - I think I referred to a criminal common purpose, or a common unlawful purpose, that there has to be this element of unlawfulness or criminality in it, of course, or the Crown does not get to the first base."

That the direction on common purpose was inappropriate was decided by this Court in Christopher Coombe's appeal; but I draw attention to the words "with him" in the third paragraph of the passage I have just read, as well as the expression "if there is a common unlawful purpose". The third time that the directions were given, the part of them dealing with common purpose was recalled as "the comment I made with respect to Christopher Coombe". "So far as he is concerned," the learned judge continued, it was sufficient if there was a common unlawful purpose. (Emphasis added.)

Counsel below may have been justified in his apprehension that an inappropriate direction about common purpose would damage the argument he proposed to advance that the applicant acted as what for convenience may be described as an innocent agent. But I do not think that the charge as given was apt to have that effect. The directions on common purpose were clearly confined to Christopher Coombe. I would, therefore, resolve the first issue against the applicant, subject to this reservation, that the question whether the trial miscarried by reason of a failure to relate one of the elements of the offence to the facts has to be answered in the context of the trial as a whole. Part of that context is that the charge was unnecessarily complicated and potentially confusing.

The appropriate starting point to consider the second issue is to return to the passage I read and focus on the words "the act referred to in those elements is causing Allan Ridley to make a false statement". The same words, or virtually the same words, were used in the other two parts of the charge in which directions on the elements of the offence were given. Read literally and understood logically, the words are quite unexceptionable. The second element of the offence was that the accused did an act intending to pervert the course of public justice. Incorporating those words into that element, it is that the accused caused Ridley to make a false statement intending to pervert the course of public justice. It will be apparent that the second element in truth comprises two elements: causing Ridley to make a false statement and intending to pervert the course of public justice.

Might the jury nevertheless have thought that it was enough to satisfy the second element, as his Honour described it, if Ridley's statement was false in fact, even if the applicant did not know or believe it to be false? The description of the act was not by way of explanation of the mens rea required for the offence. It was to identify the act referred to in both the second and third elements. That is, if possible, even clearer if one goes to the first part of the charge in which the directions were given. On that occasion the learned judge stated the elements substantially in the same form as in the passage I have read, concluding: "Now, they are the three elements of the offence with which the accused have been charged." He continued in what was correctly transcribed as a new paragraph:

"As to the act alleged here, it is that, and you have heard this read to you before, that Christopher James Coombe at Melbourne and Nadine Maree Coombe at Morwell, between 27 May 1996 and 23 July 1996, caused Allan Foster Ridley to make a false statement. So that is the act which is alleged, that they caused Allan Foster Ridley to make a false statement between those dates. Let me tell you that whether or not the act succeeds in perverting the course of justice is irrelevant."

The expression "course of public justice" was then explained.

Accordingly the description of the act alleged does not detract from his Honour's direction, twice repeated, that each of the accused had to intend to pervert the course of justice. Moreover, the first time the common purpose direction was given, his Honour said that Christopher Coombe did not have to be present if the jury concluded "that a false statement has been made and that the other elements are present". (Emphasis added.) Nothing was said to suggest that the second element was not separate from the third, to which the objective falsity of Ridley's statement was directly relevant.

Moreover, although the charge was unnecessarily complicated, I do not accept that considering common purpose in the case of Christopher Coombe would have diverted the jury from the separate consideration of the applicant's case in which they had been instructed to engage, although the import of the second element would have stood out less clearly given the total corpus of instructions they were given. The jury were reminded of counsel's argument and, in particular, of his submission that there was no intent on the applicant's part to pervert the course of justice. How could she know, counsel had asked rhetorically, whether what was in the statement of 21st July was true or false?

Failure to take exception is sometimes a good guide to how matters appeared at the trial. The statement of the second element of the offence was not inaccurate. If the jury reflected on his Honour's words they would have realised that, in the particular circumstances of this case, they had to be satisfied beyond reasonable doubt that the applicant knew or believed that the statement was false. The point had been brought to their attention in counsel's address and that part of the address had been summarised by the judge. Counsel's omission to ask for a redirection may indicate that everyone at the trial well knew the true issues and that counsel was confident that the jury would apply his Honour's instructions appropriately. Before drawing that conclusion, however, we must recall that counsel had submitted prior to the charge that a common purpose direction would have the effect of "taking away" a defence that his client would otherwise have. Although the ground of appeal that was added by leave this morning is quite distinct from the inclusion of common purpose in the charge, I can well believe that it distracted counsel from the possibility of a distinct and separate exception.

Not only am I reluctant to attach undue importance to the failure to take relevant exception in this case, but also I think it is important to concentrate on the point of substance. Judges are often encouraged to observe Sir Leo Cussen's great guiding rule: see R. v. Lawrence [1997] 1 V.R. 459 at 471, the cases there cited and R. v. Konstandopoulos [1998] 4 V.R. 381 at 388. The explanation of what his Honour called the second element of the offence in terms of the evidence was central to the performance of the jury's task. In the circumstances of this case they had to consider whether the applicant knew or believed Ridley's statement to be false, applying the appropriate burden and standard of proof. That was perhaps her only real defence. It was the issue to which the guiding rule applied.

In the absence of appropriate and necessary instruction, the trial miscarried. When the miscarriage is explained as I have endeavoured to do, it follows almost inevitably that, as in Fleming v. R. [1998] HCA 68; (1998) 73 A.L.J.R. 1 at [38-39], there was not only a miscarriage of justice but also a substantial miscarriage of justice. See R. v. Konstandopoulos at 391-392.

For these reasons I agree that the application should succeed and in the orders that the learned presiding judge has proposed.

The reasoning so far stated leads me to the conclusion that there was a real risk in the peculiar circumstances of this case that the jury could well have considered it sufficient that the applicant is proved to have caused a statement to be made which was in fact false. That risk, I think, is unacceptable. I therefore agree with the proposed orders.

The order of the Court is that the application for leave to appeal against conviction be granted, the appeal be treated as instituted and heard instanter and allowed.

The Court orders that the conviction recorded below be quashed. In lieu thereof the Court directs that a judgment and verdict of acquittal be entered.

The Court will grant a certificate in relation to both days as requested.

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Judgment (64 paragraphs)

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