R v Defrutos [2008] VSCA 55

**3 At the trial, the prosecution adduced evidence that the applicant and McCallum had known each other for some 20 years having played football together for the same team in the 1980's. In early 2000, they became reacquainted when the applicant began drinking at the Flying Duck Hotel (the Flying Duck), an establishment located not far from the home of McCallum in Prahran and frequented by him and his then girlfriend, Caroline Mildenhall. Later in that year, McCallum spent some weeks in London. While he was absent, the applicant and Ms Mildenhall commenced a short-term affair. When he returned and learned of it, he was upset but continued his relationship with Ms Mildenhall. However he made clear to the applicant that he wanted no more to do with him.

4 The prosecution contended that the applicant resented this outcome and, from time to time, over the next three years, displayed the presence of continuing antagonism towards McCallum, and his own interest in Ms Mildenhall. At one stage, he insisted that McCallum pay him $2,000 for a trifling service that the applicant had rendered to him and on two occasions, both chance encounters, the applicant assaulted McCallum. On Valentine's Day in 2003, the applicant sent Ms Mildenhall a letter in which spoke fondly of her but was scathing of his erstwhile**

5 It was asserted that, on the night of 23 July 2004, the applicant, who knew where McCallum lived, and of his practice to walk through the park next to the Flying Duck on his way home, waited for him. He had in his possession a handgun and was, at that time, wearing clothing which made it possible for him to be identified only from close proximity. As McCallum entered the park, the applicant walked quickly towards him. McCallum claimed that he recognised the applicant when he raised the gun at a distance of about two metres. He turned quickly as the applicant fired and was shot in the chest at about the level of his heart. As McCallum ran off, the applicant fired a second shot that missed him.

**6 Dr Thomas Treseder, Orthopaedic Registrar, stated that on 24 July 2004 he was working as a Surgical Trauma Registrar at the Alfred Hospital. He said that he treated McCallum who was first seen at around 1.00am by a Dr De Souza.

7 He said that a bullet had just passed through a hands breadth below the armpit on the right hand side and involved the skin and subcutaneous tissues. There was no injury to any muscles, nerves or arteries in the chest wall.[2]

8 Anthony Craig McCallum stated that he had known the applicant for between 15 to 20 years and that they met when they played football for the same team. He said that their contact ceased for a while when he (McCallum) stopped playing. However, they resumed their association when they later met up again at the Flying Duck. He stated that he lived very close to the hotel and, in 2000, would go there regularly. He said that the applicant and he had a number of mutual friends who they would meet there. The applicant worked as a masseur and had twice given him a massage and gone to his house for dinner at least once.

9 In the middle of 2001, McCallum went to the UK for approximately six weeks. On his return, he was told that his girlfriend, Ms Mildenhall, may have been having an affair with the applicant. He asked her whether this was the case and, although she initially denied it, she later admitted to the deceit. He stated that he discussed their relationship with her and ultimately they reconciled. She then commenced to live with him at his home.

10 Shortly after Ms Mildenhall moved in with him, he received a phone call from the applicant who was abusive and quite drunk, but indicated that he wanted to repair their friendship. It appears that McCallum was not receptive to this overture. On the following day, the applicant went to McCallum's place of business and demanded to see him. They had a discussion in which it was agreed that they would move in different circles for a while and that the applicant would find somewhere else to drink. At the end of the conversation, the applicant said something to the effect, 'Can we still be friends?' to which McCallum replied, 'You've got to be joking.'

11 Towards the end of 2001, McCallum became aware, through mutual friends, that the applicant was asserting that he owed him the sum of $2,000. This claim related to an occasion some time earlier when one of McCallum's employees, a gas fitter, had 'gone missing' with a company van. He said that he enquired around the hotel as to what he could do to recover it. The applicant said that he lived close to where the gas fitter was believed to reside and that he would see if the van was there. McCallum subsequently received a phone call from the applicant advising him that he had sighted it. It was McCallum's understanding that the asserted debt related to the limited assistance that the applicant provided to him at that time.

12 On Christmas Eve 2001, McCallum was at the Flying Duck when the applicant approached him regarding this matter. When asked to justify his claim, the applicant refused to discuss the matter and, at some point, threw a punch which caused McCallum to receive a glancing blow to the chin. In the ensuing struggle, McCallum fell backwards to the floor and the applicant kicked him to the stomach. Shortly after this incident, he decided to pay the applicant and arranged to do so through a mutual friend. He believed, at that stage, that that would resolve the dispute.

13 In June 2002, McCallum went to the Swan Hotel in Prahran with Ms Mildenhall, a friend named Jim Carrigan, and Carrigan's girlfriend. The group was seated in the lounge and, during the evening, McCallum noticed that the applicant was also present, drinking in the bar area. After about an hour when he went to the toilet, he was followed by the applicant who proceeded to threaten him, indicating that he was to be dealt with and that he was 'a dog.' The applicant went to throw a punch and McCallum retaliated and hit him. The applicant then bit McCallum's thumb. As the applicant fell to the floor, he dragged McCallum down on top of him. Eventually others arrived and separated the two men. After the fight, McCallum returned to the lounge and the applicant went back to the bar area of the hotel. Sometime later, there was a loud scream and Ms Mildenhall said, 'Look out.' McCallum said that he turned to see the applicant running at him, screaming unintelligibly, and had just enough time to stand up and avoid a flurry of punches that the applicant was throwing. The applicant was then ejected from the hotel by the proprietor.

14 He stated that after that incident, he did not see the applicant for about a year. He next observed him in about June 2003 standing opposite the rear entrance of McCallum's business premises, at about 8.00am or 9.00am, 'just looking at the building.' The applicant was 10 to 15 metres away and could be observed quite clearly from the second floor of the building. He said that the applicant stayed for about five minutes.

15 He had no further contact with the applicant until the night of the shooting and had only seen him again on one occasion when he observed the applicant walking in the city.

16 McCallum ceased living with Ms Mildenhall at the beginning of 2004 but they remained good friends.

17 On Friday, 23 July 2004, McCallum took his daughter and ex-wife to the football at Telstra Dome. They returned by train and he walked with them to their home in King Street, Prahran. He then went to the Flying Duck to watch the last quarter of the game on the delayed telecast. When he arrived at the hotel at about 10.30pm, he encountered several of his friends there but, as they were intoxicated, he decided to return home after approximately 15 minutes. On leaving, he entered a small park located behind the hotel. He stated that the park was well lit and he was never concerned about walking through it. He then noticed a person standing against a wall some distance away. As he proceeded further, this person commenced to walk towards him. When he reached a light post in the centre of the park, the person, who was wearing a blue anorak coat, approached him and stopped under the light about two metres away. At this point, he recognised the applicant who then raised his hands and McCallum saw that he had a pistol. In response, McCallum turned quickly to his left. At about the same time, the gun was fired. He did not realize that he had been hit and ran back towards a small retaining wall at the edge of the park. He looked over his shoulder and saw that the gun had been raised and the applicant fired again. He leapt over the retaining wall and ran back into the hotel.

18 On that night, he was carrying a backpack over his right shoulder. When he stopped under the light pole, he was about a metre to a metre-and-a-half from it. The person initially walked towards him quickly and, as he approached, moved very briskly in his direction. He stated that he remained under the lights and watched to ascertain what was going on. He said that he recognised the applicant before he saw him raise his arm holding the gun. Nothing was said by either of them. He said that, when he turned to his left, the backpack fell from his shoulder and that when it was eventually returned, there had been, to his knowledge, nothing taken from it. When he returned to the hotel, he noticed a hole in his jacket and then that there was a hole through his side. An ambulance was called and he was taken to the Alfred Hospital.

19 When asked whether he was able to recognise the person who shot him, he stated that he was able to identify the applicant 'without a shadow of a doubt.' He further stated that early in the following year, he was shown a photo board by police in which he identified him.[3] He stated that the applicant had a Mexican style 'Bandido' moustache and beard that he normally wore which was 'a bit like Cheech Marin.'

20 In cross-examination, McCallum agreed with counsel for the applicant that, from June 2002 until July 2004, he did not speak to the applicant or encounter him at the Flying Duck. He further agreed that he separated from Ms Mildenhall at the beginning of 2004 and that it was common knowledge among their friends that the relationship had ended. He agreed that he did not tell the police about the occasion on which he observed the applicant outside his premises, until after the shooting incident in July 2004. He said that he decided to go to the Flying Duck after dropping off his ex-wife and daughter and that he did not inform anyone that he was going to be there, nor was there a prior arrangement to meet anyone at the hotel. He did not see the applicant at the hotel and agreed that the only source of light available in the park was artificial lighting. He said that he could not recall whether there was moonlight that night and accepted that when he first observed the person, they would have been 30 or 40 metres apart and he could not discern whether the person was male or female from that distance. He agreed that the period of time between the person stopping near the light pole to the drawing of the weapon was very short and that the person was wearing a blue anorak coat to their knees with a hood that was worn over their head and covered the person's hair and ears. He told police, on 29 July 2004, that, as a result of the shooting, that he was on anti-depressant medication for the first time in his life. However he agreed that, at the committal hearing, on 17 May 2006, he was asked whether he was on any medication prior to 23 July 2004 and that he had answered that he was not. He said that he had subsequently checked and ascertained that he had in fact started anti-depressant medication one month prior to the shooting. He stated that the route he took home that night was the one he had followed on at least two or three occasions each week for the previous six to ten years.

21 Caroline Mildenhall stated that, sometime in the 1990's, she worked at the Flying Duck. She met McCallum there and they commenced a relationship which became more serious in around 1998. She first met the applicant in about 2001 and was aware that he was an acquaintance or friend of McCallum. The applicant at that time drank regularly at the Flying Duck as did McCallum and herself. In the middle of 2001, McCallum went to the UK for about nine weeks, and while he was away, she developed a sexual relationship with the applicant. It ceased shortly after McCallum returned and, after they reconciled their differences, she commenced to live with him in his home near the hotel.

22 She stated that, shortly afterwards, she became aware that the applicant was claiming that McCallum owed him a sum of money relating to a van that the applicant had helped recover.

23 After she ended her relationship with the applicant, she received a number of letters and e-mails from him; one dated Valentine's Day 2003, contained a Valentine's Day notice dated 14 February 2002 that had apparently been cut from a newspaper. The letter had a post script which read:**

PS. Let the stand-over man (Tony Ha Ha) know that I have not forgotten that I own him. I will pay him the same way he paid me.[4]

She stated that there were other letters with similar sentiments that she did not retain.

**24 She stated that, sometime in 2002, she went to the Swan Hotel with McCallum and some friends. They were in the bistro at the back of the hotel when they noticed the applicant at the bar. At one stage during the evening, McCallum went to the toilet and about ten minutes after he returned the applicant came running in and attacked him.

25 She stated that her relationship with the applicant continued for some time after McCallum returned from the UK and that, on some occasions, she had to lie to conceal it from him. She agreed with counsel's assertion that, initially when confronted by McCallum with the allegation of an affair with the applicant, she lied to him but then eventually confessed and they resumed their relationship. She stated that she had ceased to live with McCallum in February 2004 and that their families and friends were informed that they had separated.

26 Ross Gregory Aldridge stated in evidence that he had known the applicant and McCallum since the late 1970s and that, in 2000 and 2001, he was a 'regular' at the Flying Duck. He said that he was aware that sometime in 2001, there was a falling out between the two men, after which they did not speak to each other, save to say 'G'day, or something'. He also stated that, in 2001, he was aware that the applicant was claiming that McCallum owed him a sum of $2,000. Aldridge agreed to receive the sum of $2,000 from McCallum and pay it to the applicant.

27 With regard to the person depicted in photo no 8 of the photo board (a photo identified by McCallum), he stated that that person was the applicant and that it showed the applicant to have a moustache but no beard. He stated that, when the applicant had worn a beard, it was 'a long goatee type thing' but he had not had one since 2000.

28 Detective Senior Constable John Anthony Burgess of Stonnington CIU stated that on 23 July 2004, he was stationed at the Prahran Crime Investigation Unit and that at approximately 11.48pm he was notified of a possible shooting near the Flying Duck Hotel in Bendigo Street. He went to the hotel and spoke to McCallum, who was treated by ambulance officers and taken away shortly afterwards. He said that he entered the park and noticed a backpack which did not appear to have been opened. He stated that he considered the park on that night to be very well lit as there were six or seven light posts. The backpack was located approximately two to three metres from a light post that was operating on that night.

29 On the following morning, he returned to the park with Senior Constable Allan Pringle, a firearms and tool mark examiner. Senior Constable Pringle examined the scene to find out whether there was any evidence of a bullet. He then referred to a photograph depicting a wooden post next to a white concrete pillar, both of which had sustained damage.

30 A search of the applicant's car returned a negative result for gunshot residue. The witness stated that the applicant was arrested on 26 July 2006 and that searches were conducted at his home in Bulla and his parents' home in Brunswick. Nothing of evidentiary value was found at either of those locations.

31 In cross-examination he stated that, as part of the investigation, the meteorological records of the Commonwealth were examined by technical officer, Mr Cornell-Reilly, who confirmed that there was slight intermittent rain in the city between 9.00pm and 11.00pm on 23 July 2004. He also reported that there was eight-eighths of middle-level cloud cover reported at midnight on the evening of 23 July 2004. He agreed with counsel's assertion, that the investigation of the scene did not reveal details as to where any second bullet may have travelled. He agreed that it was believed the same bullet caused the damage to the wooden post and concrete pillar.

32 The applicant gave no evidence and called no witnesses.**

33 The applicant now seeks leave to appeal against that conviction, relying upon the assertions set out in the Full Statement of Grounds filed on his behalf that:

1. The conviction was unsafe and unsatisfactory in that the jury ought to have found a reasonable doubt in relation to identification.
2. The learned trial judge erred in the way in which he charged the jury in relation to identification evidence.
3. The learned trial judge erred in admitting evidence of the earlier relationship between the applicant and the victim McCallum.
4. The learned trial judge erred in admitting evidence of the "Valentines Day" letter.

At the hearing before this Court, leave was also sought and granted to add the following ground:

1. The trial miscarried by reason of the learned trial judge's having failed properly to direct the jury on motive. In particular, the judge erred by:

(a) directing that, in the circumstances of the applicant's case, "the prosecution [in law was] was not obligated to prove motive.

(b) failing to balance his directions on recognition or identification evidence by directing that motive, in addition to rendering a person "more likely to be identified as a perpetrator" can cast doubt upon the veracity and reliability of a purported identification or recognition.

34 The prosecutor submitted in his final address -

... Having heard all of the evidence, ladies and gentlemen, I would suggest that it is quite clear in this case that there really is one principal or prime issue in dispute in this case and that is, are you satisfied beyond reasonable doubt that it was the accused who shot Mr McCallum in the park behind the Flying Duck? If you are not satisfied of that beyond reasonable doubt, then of course that is the end of the matter. Your verdict in relation to each count must be one of not guilty. If you are so satisfied then of course you will then have to go on to consider what was the accused's state of mind or intention at the time that this shot was fired.

But at first, I want to discuss that primary issue, should you be satisfied beyond reasonable doubt that it was the accused who shot Tony McCallum. Now, of course, the only evidence, or direct evidence in relation to that issue comes from Tony McCallum himself. There was only Tony McCallum and the person who shot him in the park that night, and according to Tony McCallum, he clearly and absolutely recognised the other person as the accused. He said he could do that without a shadow of doubt.

So, the real question is can you be satisfied beyond reasonable doubt that Tony McCallum was an honest and reliable witness.

35 After some short introductory comments, the trial judge in his charge stated:

There is one primary issue in this trial, as both [the prosecutor] and [defence counsel] have put to you, and I will express it in legal terms. Has the prosecution satisfied you beyond reasonable doubt that the accused fired the bullet that struck Tony McCallum? I will express that in other common English words, identity. The identity of the perpetrator of a harmful act, in this case, the person who fired the gun, is in issue. Was it [the applicant] or was it some other person? Because identity is in issue, the identification of Tony McCallum must be very closely scrutinised. I will stress that now and will come back to it. That is why counsel focused on that identification or, perhaps more precisely, that recognition evidence.

36 Addressing this issue, his Honour instructed the jury:

The next subject is identification evidence. Identification evidence has always been a particularly troublesome area in the law. During our ordinary lives we encounter large numbers of people. We are accustomed to seeing, identifying and greeting each other. Most of the time we are right in relation to such identification. Not uncommonly and sometimes embarrassingly we can be wrong.

When the process of identifying a person that we see is applied to the criminal law human experience has indicated that great care should be taken. The fact of mis-identification has, from time to time, resulted in terrible miscarriages of justice. The lesson from that experience is this: before you accept evidence of identification it is necessary that that evidence be subjected to careful scrutiny. Evidence of this kind is frequently given with confidence and conviction by respectable and honest persons. The experience is that they may nevertheless be wholly mistaken. Human observation and recollection are infinitely infallible. The statement: this is the person I saw, can never be more than an expression of the opinion: I believe that this is the person I saw. There are a number of rules of commonsense to be followed when considering identification evidence. When the identification is made of a person who is well known to another then of course a different set of considerations may apply, but even in that case there is a risk of mis-identification.

I tell you that you must look at the circumstances in which the observation was made and upon which the identification rests. You should consider at least these questions, and there may be others raised by counsel that would also warrant closer attention then the specific five that I raise.

At what distance was the person observed from the viewer? In what light was the observation made? Was the observation impeded by clothes? How long was the opportunity for observation? Were there other factors which rendered it more or less likely that a careful observation would be made? You have to ask yourself the question: is there a possibility that those circumstances impacted upon the observations initially made and upon the reliability of the witness' recollection? You must take account of the limits which the witness imposed on the identification at the time it was initially made. You must take account of any discrepancies which exist between what was said at that time and the evidence which has been given in this court. You must be careful not to confuse conviction and reliability. A witness may be quite convinced about the correctness of the identification which that witness had made. It is for you to assess whether the identification is in fact reliable.

It is to be observed that, at that stage, his Honour made no attempt to draw their attention to any of the specific features that may have been perceived as impinging upon the reliability of the evidence of McCallum on this aspect. He did however return to the matter -

... In this case, the identity of the perpetrator is clearly in issue. It is important for you to scrutinise carefully the testimony of Anthony McCallum. It is important for you to scrutinise carefully other evidence which tends to support or undermine the testimony of Anthony McCallum as to motive and identification. Testimony as to motive can be seen to be relevant to identification. As to motive, you have the evidence of both Anthony McCallum and Caroline Mildenhall as to the early friendship, the affair, the exchange of words after the affair and the previous assaults. As to the testimony of Anthony McCallum on the night of 23 July 2004, you have countervailing pieces of evidence and it is appropriate to take into account, and I nominate some but final addresses of counsel have clearly given significantly more things that need to be looked at. I have noted there the location of the damage to the wooden pole and concrete pillar, the absence of any finding of a firearm, the absence of any finding of clothing like that described by Anthony McCallum, the absence of gunshot residue, the description of John Defrutos of his brother as being right handed, as against the description of Anthony McCallum of the shooter firing with a gun in his left hand, the testimony of the witness Ross Eldridge as to the accused having no beard as shown in the photo board, as against the description of the shooter given by Anthony McCallum on the night of 23 July 2004 as having a beard. Again I make the comment that that is a selection I made yesterday, without having heard counsel, and I would have added significantly more if I had prepared this after I heard what counsel had to say. You will have your own recollection of what it was as to those issues that were addressed to you by counsel in their final addresses.

37 Finally he told the jury immediately prior to their retirement -

... I will be asking counsel as soon as you retire whether I have not covered something I should have covered, or if I have not adequately summarised some evidence or submission and there are limits as to that in this case.

**38 When considering the question of the adequacy of the instructions given by the trial judge in this case, attention must be directed to the context and purposes for which they were provided. A judge's obligations in this regard arise from the necessity to ensure that criminal trials are conducted fairly, whether viewed from the perspective of the prosecution, the accused person, or the wider community. The judge has a duty to so instruct the jury that it can reasonably be accepted that they will have understood what it was that they needed to decide and the principles to which they were required to have regard in reaching their decision. In particular, their attention must be drawn with the full authority of judicial office to any dangers of which it cannot be safely assumed that they would be fully aware. This will involve, on some occasions, the provision of instructions directed to the risk of injustice arising from the adoption of forms of impermissible reasoning and, on others, to the dangers presented by certain kinds of evidence by reason of its source or its inherent potential for unreliability. The law reports are replete with authorities addressing these issues and emphasising the importance of the provision of such instructions in a variety of circumstances. Shortly put, the instructions are required and designed to ensure that the findings at which juries arrive can be safely accepted by the community as properly based, both in terms of the evidence on which they rest and the applicable principles of law.

39 The trial under consideration in this case was, by current standards, very short. The hearing commenced on 27 November 2006 with the first day being occupied with jury empanelment, opening statements and a view. The evidence was in short compass and was adduced on the second day. The final addresses of counsel and the judge's charge were delivered on the third day and were completed by 1.24pm.

40 There can be no doubt whatever that all involved would have appreciated that, as counsel then appearing for the applicant submitted in his final address and as the jury was clearly instructed by the trial judge -**

... before you could be satisfied to convict [the applicant] of anything, you would have to be satisfied that the prosecution had proven beyond reasonable doubt that [the applicant] was the shooter. To reach that conclusion, quite clearly, you would have to be satisfied that Tony McCallum was both an honest and reliable witness when he says that [the applicant] was the shooter. Clearly it's Mr McCallum's evidence that has been the focus of the trial and it's clearly Mr McCallum's honesty and reliability that will be your main focus in your deliberations as a jury.

**41 Considered against that background, I see no basis for any concern that the members of the jury may not have been mindful of the various matters put before them bearing upon the credibility and reliability of the evidence of McCallum that he recognised his assailant. This was not really a case of identification at all, but one in which the issue was the reliability in the circumstances of evidence of the recognition by one person of another who was well known to him. Clearly features that could be perceived as possibly impacting upon the reliability and credibility of the witness had to be taken into account by the jury and this did require the provision of appropriate instructions by the trial judge.

42 As Redlich JA pointed out in R v Spero[5] -**

It was acknowledged in Davies and Cody that the amount of care and the nature of the precautions which should be taken if a potential witness identifies an accused "must vary according to the familiarity of the witness with that person". ... The joint judgment in Domican states that:

"The adequacy of the warning has to be evaluated by reference to the nature of the relationship between the witness and the person identified, the opportunity to observe the person subsequently identified, the length of time between the incident and the identification and the nature and circumstances of the first identification - not by reference to other evidence which implicates the accused." ... [Emphasis added]

There are now a large number of cases which have emphasised the distinction between a true identification case and one in which the accused or suspect is previously known to the identifying witness. In Arthurs v Attorney-General (Northern Ireland), ... the House of Lords held that it was unnecessary for the trial judge to warn the jury of the dangers of acting on the identification evidence of a prosecution witness who knew the accused. In R v Wright (No. 2), ... the Full Court considered a summing up sufficient in which the jury's attention was directed to various matters relevant to the reliability of the recognition evidence. Where the person identified is well-known to the witness, it has sometimes been held that no more than a few words of the warning may suffice. ... In R v Marijancevic ... the Court of Criminal Appeal found a Domican direction unnecessary in relation to recognition evidence given by a witness who had known the accused for many years.

The difference between "recognition" and "identification" evidence was discussed in Neville v The Queen, ... the Court of Criminal Appeal referring with approval to the following passage from the judgment of McKechnie, J in Kelly v The Queen: ...

"A suspect known to a witness may be recognised by that witness at a place which, for convenience, I will refer to as the crime scene. While examination is undertaken by the Court as to the circumstances under which the recognition at the crime scene was made - sometimes very similar to issues of identification - other problems associated with identification are absent. The witness has had a prior opportunity to be familiar with the suspect. Identification occurs when the witness does not know or recognise the suspect who is observed by the witness at the crime scene. In these circumstances there is a later opportunity to see the suspect and for the witness to compare the features of the suspect on that later occasion with their (the witness') recollection of the person they observed at the crime scene. This evidence is generally admissible. The conditions surrounding the observations at the crime scene may bear on the reliability of the evidence and may require a judge to give both general and specific warnings to the jury on the dangers of recognition."

Cases such as R v Boardman ... and R v Turnbull ... illustrate that there will be circumstances in which the opportunity of the identifying witness to recognise a suspect was so limited, or the witness's familiarity with a suspect was of such a short duration, that a full Domican warning was called for. Whether a Domican warning is necessary in a recognition case was said in R v Carr ... to depend on all of the relevant circumstances, including the degree of familiarity of the witness with the suspect, the circumstances in which the suspect had previously been seen by the witness, and the circumstances in which the suspect was alleged to have been seen by the witness at or about the time of the crime.[6] (Citations omitted)

**43 As his directions demonstrate, the trial judge in the present case was appreciative of the need to ensure that the jury were properly instructed on this aspect and were conscious of the importance of carefully considering and taking into account the features that bore upon the reliability of McCallum's evidence of recognition of the applicant as his assailant. In any event, in what was, for practical purposes, a single issue trial, it defies common sense to suggest that the jury would not have given full regard to the possible deficiencies of the evidence directed to that issue, which, after all, had constituted the principal focus of attention throughout the proceeding.

44 Although the evidence of McCallum with respect to his recognition of his assailant was reasonably open to criticism on more than one ground, all of which were the subject of attention in the trial, none presented any unusual difficulty, either conceptually or factually, and there is no reason to suspect that they may have been individually or collectively ignored or undervalued by the jury.

45 Having conducted a review of the evidence in accordance with M v R,[7] I am satisfied that it was open to them to find beyond reasonable doubt that McCallum recognised his attacker as a person he had known for many years and with whose physical appearance and features he was quite familiar. The verdict could not be appropriately characterized as unsafe or unsatisfactory on that basis.**

**46 In support of the contentions that the evidence of the earlier relationship between the applicant and McCallum and the evidence of the 'Valentines Day' letter should not have been admitted in the trial, it was argued that the debt of $2,000 was paid approximately two-and-a-half years before the night of the shooting; the last physical confrontation between the two men occurred more than two years before the shooting incident; and the Valentine's Day' letter was written approximately 18 months before the night in question. These occurrences were, it was argued, too remote in time and circumstance for evidence of any of them to possess any significant probative value but, each, counsel submitted, carried a high potential for prejudice.

47 It is, well accepted that evidence of the prior relationship between a victim and his or her alleged attacker can be admitted in proof of a fact in issue, if it can be seen to be both relevant and sufficiently cogent to the establishment of that fact that it should not be excluded in the exercise of discretion.[8] Obviously, there will be many occasions on which expressions of hostility by the alleged perpetrator will not possess these characteristics. The reason for anger may have long passed with no evidence to suggest the presence of continuing resentment. Outbursts of emotion may be clearly related by time and occasion in a way that would not permit any useful inference to be drawn. Commonly where a substantial gap exists, the evidence of prior relationship would not be regarded as possessing any or sufficient probative value for it to be admissible. However, whilst the passage of time between the incidents must be taken into account in determining whether the evidence possess adequate probative value or should be excluded in the exercise of judicial discretion, it may well not be decisive[9] and the matter will need to be considered in the light of all of the surrounding circumstances.

48 In this case, it was undisputed that the initial ill feeling between the applicant and McCallum developed at about the middle of 2001. Months later, McCallum learned that the applicant was claiming that he was owed money for the provision of earlier assistance to him. On Christmas eve of that year, when asked to justify his demand, the applicant punched and kicked him. It was six months later again when, according to McCallum, he was assaulted by the applicant who called him 'a dog' and told him that he would be dealt with, and about a further year afterwards that he saw the applicant standing outside his business premises and looking at the building for about five minutes. In the interim, in February 2003, the applicant sent a letter to Ms Mildenhall containing a post script redolent of continuing resentment and a desire to effect some form of pay back. The prosecution argued that it was apparent that the applicant continued to harbour a deep sense of animosity towards McCallum for a long while and reasonable to infer that his feelings had not been assayed by the passage of time. There was, in my view, ample justification for the admission of this evidence. If it was accepted I consider that the inference for which the Crown contended was not only clearly open in the circumstances but, I would suggest, virtually irresistible. Finally, I can see no adequate justification for the complaint that the evidence should have been excluded in the exercise of discretion. It was as I have indicated cogent in the circumstances and confined to the interactions of the parties involved. There were no broader implications with respect to the character or propensities of the applicant nor was there any other feature present that could be seen to constitute a source of potential unfairness. The judge's instructions concerning the use of the evidence were conventional in form and clearly adequate to obviate the risk of the employment of impermissible reasoning by the jury based on the misuse of the relationship evidence.**

**49 Neither of the contentions advanced under this ground possesses substance. With respect to 5(a), counsel for the applicant submitted that, although it was accepted that this was not a case in which the prosecution was required to establish the existence of a motive to engage in the asserted conduct, nevertheless it was clear that the claimed antipathy against McCallum by the applicant was recognised by the judge in this charge as important to the proof of both intention and identity. In that situation, the argument proceeded, it was necessary for his Honour to instruct the jury that the existence of the claimed motive had to be established by the prosecution beyond reasonable doubt.

50 When considering the submission, it is again important to keep in mind the focus of attention in the trial. Although, before a verdict of guilty of attempted murder could be returned, the jury was required to find beyond reasonable doubt that the assailant intended to kill McCallum when he deliberately fired at him from a distance of approximately two metres, given the circumstances in which the shooting occurred that conclusion was inevitable. The real issue to be resolved was whether they could be satisfied beyond reasonable doubt that the applicant was the perpetrator and, on that question, the only direct evidence was provided by McCallum himself. There was evidence of the possession of a motive but proof of that motive by the applicant was never capable of contributing more than circumstantial support for the evidence of recognition. As Menzies J stated in Plomp v R:[10]**

... It hardly needs to be stated that to prove motive for a crime and no more could never be sufficient evidence upon which to convict anyone and it is to this that it seems to me some of the authorities cited are really directed, but, in a case like this, proof of such matters as I have just indicated does bear upon the probability that the applicant killed the deceased. ...

In Mutual Life Insurance Co of New York v Moss ... Griffith CJ said - "Evidence of motive is of itself, of course, in the nature of circumstantial evidence as to the main question in issue. In considering the conduct of a man, regard is had by Judges and juries to the ordinary conduct of human affairs. When a man does an extraordinary or a wicked thing, there is probably some cause

inducing or impelling him to do so, and the more heinous the act is the more important becomes the question of motive. When, therefore, the question for consideration is whether such an act is intentional or not, it is of the highest importance to consider whether the person in question, in the circumstances in which he was placed, had any inducement to form such an intention. On charges of murder sometimes the question is whether or not the accused caused the death, and sometimes whether, if he caused it, he did so intentionally or accidentally. The existence of a motive may tend to show either that the person in question did the act simpliciter, or that he did it intentionally. Such evidence is given on the subsidiary question of probability; ..."[11]

**51 Here, the jury were properly instructed by his Honour with respect to the onus and standard of proof in a criminal trial. The issues to be determined were identified and there is no reason to suppose that there may have been any misunderstanding by members of the jury concerning them. They were instructed to scrutinise the evidence with respect to motive carefully and to use it correctly. They were directed not to employ impermissible reasoning based upon propensity with respect to it. In my view, nothing further was required. Against that background, no exception was taken with respect to the adequacy of these instructions at the trial by counsel then appearing for the applicant.

52 The argument that the jury should have been instructed that McCallum may have mistakenly identified the applicant as his assailant by reason of his belief that the applicant bore him ill-will possesses a high degree of artificiality in the circumstances of this case. Unsurprisingly the trial judge was not invited to put this possibility before the jury nor did counsel advance it in the course of his address.

53 None of the grounds having been made out, I would dismiss this application.**

54 I agree in the disposition of this matter as proposed by Vincent JA and I do so for the reasons advanced by him in his judgment.

[1] After hearing a plea in mitigation of penalty, the sentencing judge, on 11 December 2006, imposed a term of imprisonment of 11 years in respect of which he fixed a non-parole period of eight years.

[2] When cross-examined, he agreed that McCallum had advised medical staff that he suffered from depression. He stated that in a note made at 1.30am, on 24 July 2004, Dr De Souza recorded in relation to anti-depressant medication, 'started yesterday.'

[5] [2006] VSCA 58; (2006) 13 VR 225.

[7] [1994] HCA 63; (1994) 181 CLR 487.

[8] R v Anderson [2000] VSCA 16; (2000) 1 VR 1, 12, [30] (Winneke P); Wilson v R [1970] HCA 17; (1970) 123 CLR 334, 338 (Barwick CJ); and R v Bond [1906] 2 KB 389, 401 (Kennedy J).

[9] R v Mackay [1985] VR 523, 533-4 (Kaye, Fullagar and Beach JJ).

[10] [1963] HCA 44; (1963) 110 CLR 234.