R v El Moustafa [2010] VSCA 40

1 Following a trial in the County Court sitting at Melbourne the applicant was convicted on one count of trafficking in not less than a commercial quantity of a drug of dependence namely methyl amphetamine (count 1) and one count of possession of methyl amphetamine (count 2). It was the prosecution case that police were in attendance at a room of the Sofitel Hotel as part of investigations into trafficking activities believed to be operating from within the room. The applicant arrived at the door carrying a backpack which contained drugs and trafficking paraphernalia (count 1) and had a small quantity of methyl amphetamine in his pockets (count 2). At trial the applicant pleaded guilty to count 2. He admitted that he was in possession of the backpack which contained the drugs the subject of count 1 but denied ownership of the bag and said that he did not know its contents. Upon conviction the applicant was sentenced to four years imprisonment with a non-parole period of two years and six months and a fine of $400 on count 2.

2 The applicant now seeks leave to appeal against conviction[1] on the grounds that the trial judge wrongly admitted propensity evidence and directed the jury in her charge in such a way as to undermine a defence hypothesis raised by the evidence.[2]

3 Early in the evening of 22 May 2006 police arrived at hotel room 3721 of the Hotel Sofitel to investigate suspected drug trafficking from the room. The police found a number of persons inside including Lauren Clayton to whom the room had been registered. A quantity of drugs and drug paraphernalia were found inside. At 8:04 two men, Drago Kovic and Fred Jackson arrived at the room. Both were searched by the police and Kovic was found to be in possession of $3000 cash in $1000 bundles. Another male in the room was also found to be in possession of a similar amount of cash.

4 At 8:06pm the applicant arrived at the room with his cousin. He was carrying a backpack and some groceries in a plastic bag. The applicant attempted to access the room using a Sofitel swipe card but was unsuccessful. He then knocked on the door, which was answered by members of the police. The applicant, while standing at the doorway to the room then tossed the backpack to the ground to his left outside the room. He was asked by the police if he was carrying anything and he replied 'a bit of Louie' (a term which is slang for amphetamine). The police then searched the applicant's pockets and found a further .9 of a gram, or about .4 grams pure. The backpack was examined and it was found to contain blue 'Myway' scales, a plastic spoon and large plastic bags containing a crystalline substance. Later analysis revealed that they contained methyl amphetamine weighing a total of 807.5 grams (or 317.5 grams pure methyl amphetamine).

5 At trial the applicant did not dispute that he had carried the backpack to the room or that it contained the found items. He further admitted that he was apprehended by police outside room number 3721 after an attempt to access the room. He denied that he was the owner of the backpack and denied any knowledge of its contents.

6 The applicant was called and gave evidence at the trial. He testified that he was addicted to amphetamines and had arrived at the room only with the intention of having 'a smoke' of drugs. He said he had been in the room the night before and smoked ice and saw other people smoking ice.

7 He returned to the room on the night of his arrest after he and his cousin had resolved to smoke some more methyl amphetamine. He decided to call his friend Kovic who he thought may have already been in the room at the Hotel Sofitel. He arranged to meet him. The applicant then travelled as a passenger in his cousin's BMW to a service station where they met Kovic who had arrived in his vehicle. The applicant and his cousin remained in their car while Kovic bought some groceries and placed them in the boot (located in the front) of the Porsche that he was driving. They then followed Kovic to the Sofitel Hotel. The applicant said his cousin pulled up behind Kovic's Porsche at a turning circle outside the hotel. The applicant said he got out and observed Kovic and a friend removing grocery bags from the boot of the Porsche. The applicant said he walked to the front of the Porsche and took the last two bags from the boot. These bags were the backpack and a bag of groceries. He said that Kovic may not have seen him take the backpack. He then proceeded to enter the hotel and went up the escalators alone to the lobby lifts. He did not know at the time that the others were not following him by that route. He only realised the backpack contained drugs when it was searched by the police upon his arrival at the room.

8 Under cross-examination the applicant admitted that his addiction to methyl amphetamine would cost $350 per gram if he was to buy it. He admitted that he was supporting his wife and three children and that he had a large habit which would cost a lot to support if he had to pay for it. He said, however, that he managed to sustain his habit by taking 'little bits of pieces' from other people. He said that he was working in the building renovating industry and made approximately $600 per week.[3]

9 There was no surveillance footage available of the applicant or others exiting their vehicles. However, the prosecution called evidence from the Bell Captain of the hotel. He was working at the porters desk on 22 May 2006. It appeared from other evidence that he had been alerted to observe the movements of vehicles which were booked to Clayton's room including the Porsche. He was to, and did, advise the manager when such vehicles arrived.[4] He testified that he saw a silver Porsche arrive at the hotel at about 6pm with one occupant, a tall fair haired male. The car was booked to room 3721. He said half an hour later another car arrived with four occupants and was booked to the same room. He said the occupants of that car were carrying shopping bags and he saw there were bottles of soda and a packet of chips in the bags. A third car then arrived, a dark BMW which was also booked to the same room number. It pulled up in front of him. The BMW had two or three occupants. The passengers were carrying shopping bags with chips and sodas when they got out of the car. He agreed that he had said at the committal that he did not see whether they got the bags from inside the car or the boot. In re-examination he maintained that when they got out of the car they were carrying their bags. It was not put to the witness that the applicant had not got the bags from the BMW. No suggestion was put to the witness in cross examination that the applicant had alighted as the passenger from the BMW and had gone to the car parked in front of the BMW and had taken the bags from the bonnet of that car.

(1A) The trial on Count 1 miscarried by reason of the Judge's failure, in circumstances where the Crown case was not that the applicant had manufactured the drugs found on his person, to:

(a) rule as inadmissible; or

(b) exclude in the exercise of her discretion

the evidence of witnesses MARTIN and PERKEL and of the documents found in the home of the applicant relating to chemicals which might be used in the manufacture of methyl amphetamines.

(1B) The trial on Count 1 miscarried, despite the jury being warned against its misuse of the evidence the subject of Ground 1A, by reason of the Prosecutor's and the trial Judge's having failed properly to identify for it the way in which the evidence:

(a) was probative of the issues joined between the parties at trial; and

(b) could be used legitimately in the process of reasoning toward a finding of guilt.

10 The applicant submitted that the trial judge erred in refusing to exclude evidence of documents that had been found in the applicant's residence and which contained writing which described ingredients related to the manufacture of methyl amphetamine. These documents were tendered and relied upon by the Crown as demonstrating that the applicant had 'an interest' in methyl amphetamine and a link to the 'process' of trafficking in the drug. On the appeal it was submitted that these documents ought to have been excluded as irrelevant, as it was not part of the Crown case that the applicant was involved in the manufacture of the drugs found in his possession.[5] The documents could, therefore, have no relevance to the question of whether he knew that he was in possession of the drugs in the bag. In the alternative, it was submitted that the documents constituted propensity evidence, and ought to have been excluded as they were not sufficiently probative to make it 'just' to admit that evidence, despite its prejudicial effect.[6]

11 It is necessary to briefly describe the documents and the circumstances of their discovery. Following his arrest the police attended the applicant's residence to carry out a search warrant. They discovered an A4 piece of paper with handwriting on it that related to chemicals. A small note book with writing relating to chemicals was also found. At trial the prosecution called Michael Perkel a forensic scientist employed at the Victorian Police Forensic Services who testified these papers (comprising six pages) refer to some of the chemicals that can be used in the manufacture of amphetamine. The applicant's fingerprints were found on some of the pages, however, it was not said that documents contained his handwriting. The applicant was asked about the papers under cross-examination and said that he was not aware they were in his home and said that someone might have given him the papers, but he had just put them away.

12 The admissibility of the documents was the subject of a pre-trial challenge by the defence. Counsel submitted that the documents were not relevant to the fact in issue at the trial, as it was not the Crown case that the applicant had manufactured the drugs, only that he had become knowingly in possession of them. Further it was submitted that the documents had a limited probative value (as they were undated and their origin and date was unclear) and highly prejudicial. Indeed, it was submitted that they created an 'extreme danger' that the jury would reason from the documents on a propensity basis. These submissions were repeated on the appeal. They were contested by the prosecution at trial on the basis that the documents were relevant to show that the applicant's claim of accidental possession was 'implausible'.

13 The trial judge then allowed the admission of the documents. Her Honour later gave a propensity warning in respect of the documents in the following terms:

Now it is important that in relation to the evidence that I just mentioned, the accused's drug habit, the documents found in his residence and his attendance at the hotel the night before, is only used for this purpose and only if you are satisfied that these matters are true that you may then consider it is more probable that the accused well knew he was carrying a backpack full of drugs and that he had those in his possession for the purpose of sale. If you do not believe the evidence or if you think the similarities could be the product of a coincidence, then you must disregard it.

You must not use that evidence for any other purpose, and particularly, you must not use this evidence to decide that the accused is the kind of person who is likely to have committed the offence charged and to use this conclusion as evidence that he is guilty. That kind of reasoning is prohibited. Your decision must be based only on the evidence given in the case, not on assumptions about the kinds of people who commit crime.[7]

14 Later, the judge made a further direction in respect of that evidence:

I just need to remind you about the direction that I gave you earlier about the use of the evidence found at the accused's residence. The Crown relies upon this evidence as forming - as I said - part of the total picture of evidence that you might consider taking into account and upon which they say the only reasonable inference that you can draw is that the accused well knew what the backpack carried.

In particular, the Crown says that the documents in his residence upon which appeared chemical terms, formulae and scientific reports were all consistent with knowledge or enquiry about the manufacture or use of amphetamines.

This writing, together with other evidence, points to the improbability of the accused not knowing of the contents of the backpack and his intention to sell such contents.

What you may not do, though, is use this evidence to infer that just because he had those materials, which may connect him in some way with amphetamines that he is therefore the kind of person who is more likely to have committed the offence charged.

Now, that is what we call propensity reasoning and it is totally impermissible... You must not reason that just because the accused has pleaded guilty to the charge of possession that he is the kind of person to have committed the charge of trafficking. That is impermissible reasoning because it does not amount to evidence in relation to the other charge...[8]

15 The common law has long established as a matter of policy, that the characteristics or tendencies of the accused, subject to well defined exceptions, are not to be admitted in proof of a criminal charge.[9] Evidence which reveals only that the accused has previous convictions or is otherwise a person that has criminal or discreditable propensities or shows that he is the type of person who is likely to have committed the crime charged, is excluded under the common law.[10] Tendency or propensity evidence would not be admitted unless there was no rational view of that evidence consistent with the innocence of the accused on the offence charged.[11]

16 Counsel took the Court to s 398(A)(2) of the Crimes Act 1958 which governed the admissibility of probative evidence. That section provided:

Propensity evidence relevant to facts in issue in a proceeding for an offence is admissible if the court considers that in all the circumstances it is just to admit it despite any prejudicial effect it may have on the person charged with the offence.

17 This section establishes a two part analysis that requires the Court to consider first the probative value of the evidence and then balance that against its prejudicial effect. It does not introduce a discretion to exclude evidence that is admissible but prescribes when propensity evidence becomes admissible.[12] The admissibility of evidence under that section is a question of law, which requires the trial judge to determine whether it is 'just' to admit the evidence despite its prejudicial effect.[13]

18 The applicant submitted that the documents could only have been relevant as a basis for a form of propensity reasoning. They had no greater logical relevance than would a prior conviction for drug trafficking in the relevant drug. The applicant attacked the basis upon which the prosecution sought to justify admission of the documents. Counsel emphasised that it was not in issue that the applicant was familiar with methyl amphetamine as he had admitted his addiction and claimed to have been arriving at the room to smoke drugs. It was therefore unnecessary to admit the evidence to show his familiarity with methyl amphetamine. Further, the submission by the respondent that the documents showed involvement with 'trafficking' was also of little probative value, as it was not contended that he had manufactured the drugs in his bag. The documents were therefore only relevant as suggesting that he was 'the kind of person' who would traffick in drugs.

19 The applicant relied upon R v Tragear[14] as a decision that demonstrated conclusively that it was not sufficiently probative and therefore 'just' to admit the applicant's connection to a list of chemicals used in the manufacture of methyl amphetamine in proof of an allegation of trafficking in drugs at an unrelated time. In Tragear the accused was charged with a number of counts relating to the possession and trafficking of drugs. Counts 1 and 2 involved cocaine which was found in a bag that the accused was observed placing in the front seat of his car. Count 3 related to cocaine that was found in a chest of drawers in the bedroom of his house. These were found during a police search on the morning of the same day that the appellant had been found with the bag in his possession. The applicant gave evidence at trial and denied knowledge of either quantity of drugs. He was convicted and subsequently appealed on the basis that the evidence of the drugs at either location should have been considered inadmissible as against each other. The Court allowed the appeal, the majority holding[15] that the evidence of possession at either location was not sufficiently probative to make it just to admit that evidence in relation to the offence alleged at the other location. While the evidence might have been relied upon to demonstrate the improbability of the applicant's account, this did not outweigh the likelihood that it would be used in a prejudicial way by the jury. The applicant submitted that the decision in Tragear compelled the exclusion of the documents in the present case.

20 During oral argument, Senior Counsel for the Director resiled from the respondent's written submissions and acknowledged that the decision to admit these documents was unsupportable. In our view that concession was rightly made. The documents were relevant only as establishing a propensity to traffick. Their admission had no other probative value. The documents did nothing otherwise to advance the prosecution case as to the applicant's knowledge of the contents of the backpack. Notwithstanding the trial judge's directions on propensity reasoning a real risk remained that the jury may have been improperly influenced by the admission of these documents. This ground is made out.

(2) The trial on Count 1 miscarried by reason of the trial Judge's directions and adverse comments, made during her summary and directed at the merits of, defence counsel's address. In particular, the Judge erred by charging and directing, in circumstances where, inter alia, the applicant gave sworn evidence that the backpack he held when arrested belonged to, and had been transported to the hotel by, someone other than him, that:

(a) there was "absolutely no evidence relating to [K]ovic and Clayton connect[ing] them to the business of drug taking" and instructing the jury not to speculate about that; and

(b) defence Counsel's invitation to "look at the comings and goings of Mr [K]ovic to the Porsche car" amounted to, or was "getting pretty close", to inviting the jury to speculate impermissibly.

21 By way of ground 2 the applicant submitted that the trial judge, in her charge, made comments which unfairly undermined an aspect of the defence case, described as the 'Kovic and Clayton hypothesis'.[16] As the terms of ground 2(a) suggest, the defence invited the jury to infer that Clayton and Kovic were together involved in a 'business of drug taking'. The impugned passage of the charge which we shall set out, can only be understood by reference to submissions made by defence counsel in closing address

22 At trial, defence counsel contended in closing argument that there was evidence from which the jury might infer that Kovic was involved in trafficking drugs with Clayton. The hypothesis rested, first, upon the premise that Clayton was involved in drug trafficking. Counsel for the applicant referred to the fact that room 3721 was registered in her name and that she was responsible for paying for the room, that drugs and drug paraphernalia were found in the room, and evidence that the room had been used by the applicant for the consumption of drugs the previous night.[17] Evidence was also led from a policeman, who said that a search of her property revealed some drugs (ecstasy and Zanex) and a CD containing information relating to drug manufacture.[18] He also confirmed that she had been charged for being 'involved in the illicit drug area'.[19] Evidence was also led that digital scales and numerous empty snap lock deal bags and some drugs were found after a search of her car.[20] These facts were not in issue at the trial.

23 The second premise was that the jury could infer Kovic was involved with drugs. Kovic had gone to the room on the night before the applicant's arrest to partake in drug taking. Again that evidence was not in issue. We note, at this point, that her Honour's comments would not have been understood by the jury to relate to that evidence. Properly understood, they were directed to the evidence concerning Clayton and Kovics on 'other occasions'.

24 These 'other occasions' relate to the third premise of the hypothesis. This maintained that Kovic was 'intrinsically connected' to Clayton's business of trafficking of drugs and that they were running 'a drug den' at the hotel. At trial the defence pointed to evidence that the Porsche Kovic had been driving on the date of the offence had been booked to the room of the Hotel Sofitel registered to Clayton on a previous occasion,[21] evidence that the car had been found in attendance on an earlier occasion at the Como Hotel when Clayton had taken a room there and evidence by way of video footage showing Kovic in the early morning of the day of the offence coming and going from the boot of his car, holding a newspaper whilst it was parked at the Hotel Sofitel.[22] The jury were invited to infer that he was 'tucking drugs from a backpack inside the newspaper' and 'dealing drugs from the bonnet of the car'. The video footage of this last matter was apparently quite unclear and inconclusive and its importance was not pressed on the appeal.

25 The applicant submitted that the trial judge improperly undermined the evidentiary foundation for the defence hypothesis in her charge when her Honour said:

It was suggested to you that other evidence relating to Clayton and Kov[i]c connected them to a business of drug taking. I might just say that in that regard there is absolutely no evidence about anything to do with drugs on any other occasion, so I will just invite you not to speculate about that members of the jury. You focus upon the evidence that was given in this case, not about what might have been happening by others on another occasion.

You were asked to look at the comings and goings of Mr Kov[i]c to the Porsche car. Now again that is getting pretty close to speculating on what you might be able to see of what was going on members of the jury and I ask you not to speculate about anything that was not given as evidence. It is something for you to look at in the video, but there is no evidence about what was under the bonnet of the car.

26 On the appeal the applicant submitted that these comments unfairly intruded on the fact finding function of the jury and thereby undermined part of the defence relied upon at trial. We reject that contention. There was no unfairness or error in the trial judge's remarks. Although the trial judge's comments on their face appear to be addressed to 'the business of drug taking' by Kovic and Clayton they need to be understood in the context of the arguments made by the defence at trial. Significantly, it was not in issue that Kovic had been involved in drug taking. Rather her Honour's charge addressed, and would have been understood as addressing, the submission that Kovic and Clayton were involved in trafficking drugs on earlier occasions at the Sofitel or Como Hotels. There was no evidence to support this claim. As her Honour observed in the jury's absence following an exception taken to this part of the charge, there was no evidence as to what Clayton and the person[23] who drove the Porsche may have been doing on those other occasions at the Sofitel or Como Hotels. And as to the video footage of Kovic at the boot of his car, the trial judge maintained the view that there was no evidence that could support the inference which the defence had invited the jury to draw. As we have said, on appeal counsel did not seek to make anything of the video footage. Later in her charge the trial judge referred to her remarks in the passage we have already set out concerning these earlier occasions and repeated 'that there is absolutely no other evidence about what they were doing'.

27 The evidence which attempted to connect Kovic via the presence of the Porsche to other occasions at the Sofitel and Como hotels was incapable of supporting an inference that he was involved in drug trafficking. It was not shown that Kovic had control of the vehicle at those times, nor was it shown that any trafficking activities by Clayton or Kovic took place on these occasions. The suggestions made by the defence were correctly described by her Honour as 'speculation'.

29 Senior counsel for the Director submitted that notwithstanding the improper admission of the evidence the subject of Ground 1, this was an appropriate case in which to apply the proviso. It was submitted that the case against the applicant was an overwhelming one and that the Court should be satisfied beyond reasonable doubt of the applicant's guilt.

30 In Weiss v The Queen the High Court explained that the application of the proviso is to be considered in the same way as the question whether a verdict should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence.[24] The court is required to undertake an independent assessment of all of the evidence while mindful that it is the jury that had the benefit of having seen and heard the witnesses and that was entrusted with primary responsibility for determining guilt.

31 In R v KDY Redlich JA set out one of the circumstances in which the proviso may be applied:

...The nature of the case made against an appellant may be such that the appellate court will be well placed to make its own evaluation of the evidence and a determination as to the guilt of the appellant. This may be so where the prosecution relies principally upon circumstantial evidence. The court may be satisfied that the jury, if properly instructed, could not but have excluded any hypothesis consistent with innocence. Thus, there may exist evidence that this court can act upon that points ineluctably to the offender's guilt of the offence charged.[25]

32 In the present case the Crown relied upon both direct and circumstantial evidence which was not in dispute and the inferences to be drawn from that evidence. In response, the applicant submitted that this was not an appropriate case for the application of the proviso. Counsel referred to the fact that the applicant had given sworn testimony and that the Court, on appeal, would not have the benefit of viewing that testimony 'in the atmosphere of the trial'. We do not accept that the fact that an accused gave sworn evidence and that the jury's assessment of the applicant's credibility may have been influenced by the wrongful admission of evidence, necessarily forecloses the operation of the proviso.[26] The question is whether, mindful of those considerations and notwithstanding the natural limitations of proceeding on the record, the court is nonetheless satisfied to the requisite standard of the guilt of the applicant.

33 The applicant also submitted that the prosecution case was not of sufficient strength to allow the Court to apply the proviso and referred to what is said were 'gaps' in the Crown case. These were the lack of any fingerprints or other identifying material on the drugs and the absence of video of the applicant (or indeed others) exiting the vehicles. Counsel also emphasised that no significant material related to the trafficking of drugs (such as large sums of money, weights, bags etc) were found in the applicant's vehicle or house and that there was no evidence of enrichment that would be consistent with trafficking.

34 We reject the applicant's contentions that there were weaknesses in the prosecution case, such that the proviso should not be applied. In our view the case against the applicant was exceedingly strong and the applicant's account highly implausible. The applicant, addicted to amphetamines, attended the Sofitel Hotel the night before and participated in drug taking. It was not in issue that he intended to return to the hotel with his cousin, the driver of the BMW, for the purpose of further drug taking. He knew that the room would contain drug users. There was an opportunity for the sale of drugs. Both Kovic and another male in the hotel room had a large sum of cash in their possession when the applicant arrived.

35 The Bell Captain observed the BMW arrive. It stopped directly in front of him. He had been alerted to watch for vehicles that would be booked to Clayton's room. He observed one or more passengers alight from the BMW. It was not in issue that the applicant was a passenger. He observed that at the time the occupants alighted, there were, what he remembered as, two or three grocery bags in their possession. It was put to the witness that he could not be sure whether they got the bags out of the front or the back of the car or the boot. It was not put to him that there was a car in front of the BMW, that it was the Porsche, or that the passenger from the BMW had obtained the bags he was carrying from under the bonnet of the Porsche.[27] The Bell Captain said that the Porsche had arrived half an hour before the BMW. It was submitted that he confused the sequence of arrival of the cars and the time of their arrival but his observations of the BMW and its occupants was not attended by any uncertainty. In particular he did not link any activity of the occupants of the BMW with the Porsche which he had been directed to observe.

36 The applicant entered the hotel. He knew where to go to get to the room. He was found to have a Sofitel swipe card in his possession which he had apparently used in an attempt to enter the room with his cousin. There is evidence which suggests that Kovic and the occupants of the Porsche followed him into the hotel followed by his cousin. The applicant, unescorted, went up the escalators to the lobby lifts. He was out of sight of Kovic. He carried the back pack in front of him. He arrived at the room and attempted to access it with a swipe card.[28] No explanation for his possession of the card was given. When police opened the door and identified themselves the applicant tossed the backpack to one side outside the doorway in a manner which suggested that he was aware of the content of the backpack. The material contained in the back pack, though receptive to fingerprints, contained no fingerprints of anyone.

37 The applicant was an admitted regular and heavy user of methyl amphetamine and therefore had to pay for his habit. The applicant conceded he earned only $600 per week and supported his wife and children and a mortgage. He also accepted that methyl amphetamine cost about $350 per hit. The applicant claimed that he was able to satisfy this by ad hoc giving from his friends. The implausibility of this claim lends support to the notion that the applicant had to have access to some other source of income (such as trafficking) to support the habit.

38 The applicant did not call any other evidence in his defence to support his claim that he had not brought the backpack in the BMW. He gave an implausible account which included his reasons for meeting Kovic before returning to the Sofitel. He claimed to have met Kovic at a service station, did not alight from his car and followed him to the Sofitel. When he arrived and went to the front of the Porsche, all of the other groceries had been removed. They had left the backpack and a bag of groceries. No one asked him to take the backpack. No one was said to be present at the bonnet of the Porsche when he took the bag, which had been left there and which contained drugs worth in excess of $400,000. He said that he took the backpack as it may have contained someone's clothes or personal effects that they would want brought into the hotel. It appears from surveillance footage that he entered the hotel in front of the others, but that they took a different route to room 3721 and arrived before him.

39 For the purpose of determining whether we should apply the proviso, counsel for the applicant initially invited the court to view a video of the applicant's sworn testimony if it was available. Subsequently, however, counsel withdrew the invitation and submitted instead that the court should not view any video of the trial evidence. Five reasons were then advanced. It was submitted that the Court should not view only one part of the video of the trial and ought view the entirety of the video evidence or nothing at all. It was submitted, as a general proposition that it would only be by viewing the whole video that 'the atmosphere of the trial' could be properly understood. It was also said that a viewing of the video would require an assessment of the credibility of the applicant and that this was a task more appropriate for a jury as the tribunal of fact. It was contended that the 'floodgates' would open if we were to view any part of the trial, in the sense that the Court in future appeals might then feel compelled to consider any trial videos as part of its consideration of the record. Finally it was submitted that the Court would view the evidence without the benefit of hearing a 'final address' tailored to its consideration of the witnesses.

40 The Court gave both parties leave to file a further submission on the question whether the Court should view the video (after counsel had an opportunity to view it themselves). Counsel were also permitted to advance any further argument they wished arising from their view of the video. By further submission the applicant reaffirmed his primary submission that the video should not be viewed. He then submitted that if the Court determined that it would be appropriate to view the video, then it should find the evidence of the applicant 'persuasive'.

41 Additionally, it was submitted that the Court should view the video of the evidence of the Bell Captain, presumably on the basis that his evidence, which was in issue, was potentially significant.

42 In reply the respondent submitted that the evidence given by the applicant was 'implausible, unacceptable and incapable of giving rise to any doubt'. Counsel for the Director submitted that, in the event that the Court decided to view the video, he would rely upon the 'demeanour' and 'manner' of the applicant as demonstrating the implausibility of his account.

43 There have been many circumstances in both criminal and civil cases in which this court and other intermediate courts of appeal have viewed a video of part of a trial[29] or video evidence tendered in the course of a trial. It is not at all uncommon for a Vate tape to be viewed containing the evidence in chief of the complainant or the evidence of a child for the purpose of making an assessment of the nature and quality of the evidence.[30] Viewing a video recording of the record of interview of an accused or re-enactments of events to assess the credibility of the account is not unusual.[31] Video technology is also commonly utilised where it has captured an event relevant to an issue of fact in the trial such as surveillance of a plaintiff in a personal injury case[32] or the accused in a criminal trial[33] or security camera footage.[34] Where there is an issue on appeal as to what happened in the course of the trial, a video of that part of the trial is often viewed by the appellate court to enable it to determine for itself what has occurred.[35]

44 Whether to use a video recording of all or part of the evidence in the trial as a tool in assessing the strength or weakness of the prosecution case when determining whether the proviso should apply[36] or whether the verdict is unsafe,[37] involves a number of additional considerations. Traditionally, when performing either of these tasks, appellate courts deferred to the jury's findings of fact. The jury performs a special role as the community's representatives. They are also the accused's peers. They had the advantage of hearing and seeing the witnesses testify during the trial. However appellate courts are now required to examine and analyse evidence in criminal trials to a much greater extent than previously[38] and conduct a 'real review of the trial'.[39] The video recording of the evidence is a more informative tool than the transcript upon which the Court is usually asked to rely. Video technology may thus permit appellate courts, where appropriate, to reduce the gap that has existed between the experiences of the jury and those of the appellate court so that deference to the jury's findings is lessened. But that outcome carries with it certain risks.[40] Appellate use of such tools may not promote finality. It involves a duplication of the jury's function[41] and creates the risk of the jury trial being treated as a 'preliminary skirmish'.[42] It has not yet been demonstrated that appellate review by video would necessarily result in a more accurate assessment of the evidence than the assessment made by the jury. Viewing videos will have time and resource implications for appellate courts.[43] These considerations have led courts in other jurisdictions to resist the use of such technology as a means of re-assessing questions of credibility.[44] They are weighty matters which call for circumspection in utilising video recordings of evidence of the trial.

45 Whether a video recording of any part of the evidence at trial should be viewed must depend upon the particular circumstances of the case. In this case the direct and circumstantial evidence that was not in issue provided a compelling case as to the applicant's guilt. There was thus considerable force in the respondent's contention that the evidence established the applicant's guilt beyond reasonable doubt. We would not have regarded it as necessary or desirable to view any video recorded evidence for the purpose of making an assessment of the strength of the case were it not for the applicant's further submission that the video would

45 demonstrate that he had given a persuasive account.[45]

46 In the present circumstances, we have concluded that the objections raised by counsel against viewing the applicant's evidence or that of the Bell Captain should not be upheld. We are mindful of the fact that the jury is entrusted with primary responsibility for determining the applicant's guilt but, in the light of the contention that the applicant's account was given in a persuasive manner, we considered it desirable to view his evidence. Both parties also submitted that we should view the Bell Captain's evidence. His evidence and that of the applicant were relatively discrete portions of the evidence at trial and no other evidence was in dispute. It was not suggested that there was any other aspect of the trial that needed to be viewed to sense its 'atmosphere'. Counsel also made further written submissions arising from their viewing of that evidence.

47 The video recording of the evidence given by the applicant and the Bell Captain provides an additional means by which we are able to assess the evidence recorded in the transcript of the trial. Our viewing of the video recorded evidence of the Bell Captain and of the applicant has only served to re-enforce our view of the strength of the prosecution case. The Bell Captain gave clear and emphatic evidence with respect to the issue that was in dispute. Neither the substance of the applicant's evidence nor the manner in which it was given was such as to engender a reasonable doubt in our minds. We reject counsel's contention that his evidence was persuasive. The appeal must therefore be dismissed.

[1] An application for leave to appeal against sentence was abandoned at the commencement of the appeal.

[2] A proposed ground relating to count 2 was abandoned at the commencement of the appeal.

[4] The duty manager testified that at 8.00 pm the Bell Captain advised him that the Porsche and BMW had just been left in the driveway.

[5] Pollitt v R [1992] HCA 35; (1992) 174 CLR 558, 571; R v Roberts & Urbanec [2004] VSCA 1; (2004) 9 VR 295, [86].

[6] See what was then s 398A(2) Crimes Act 1958; R v Tragear [2003] VSCA 222; (2003) 9 VR 107.

[9] Dawson v The Queen [1961] HCA 74; (1961) 106 CLR 1 at 16 (Dixon J)

[10] KRM v The Queen [2001] HCA 11; (2001) 206 CLR 221 [21] (McHugh J)

[11] Pfennig v The Queen [1995] HCA 7; (1995) 182 CLR 461 at 483

[12] R v VN [2006] VSCA 111; (2006) 15 VR 113, [30].

[14] [2003] VSCA 222; (2003) 9 VR 107.

[15] Callaway and Batt JJA, Ormiston JA dissenting.

[16] Set out in closing address from 23.

[23] There was no evidence that it was Kovic who drove the Porsche on those occasions and there was evidence that other persons drove the vehicle at various times.

[24] [2005] HCA 81; (2005) 224 CLR 300, [41]; Darkan v The Queen [2006] HCA 34; (2006) 227 CLR 373, [84].

[25] R v KDY [2008] VSCA 104; (2008) 185 A Crim R 270, [38]-[39].

[26] See for example R v Rudd [2009] VSCA 213, [80]; Mahmood v Western Australia [No 2] [2008] WASCA 259, [3] (McClure JA), [210] and [215] (Buss JA).

[27] R v Morrow [2009] VSCA 291, [60].

[28] There was evidence that the card, subsequently found in his possession, was not operative at the time.

[29] DPP v S (No 2) [2009] VSCA 127, [14].

[30] R v JMA [2007] VSCA 105; R v JA (2008) VSCA 169; R v HRA [2008] VSCA 56; (2008) 183 A Crim R 91; R v CAB [2006] QCA 239; R v NZ [2005] NSWCCA 278; (2005) 63 NSWLR 628.

[31] See for example DPP v Alexander (1993) 33 NSWLR 482, 498; McNeill v R [2008] FCAFC 80; (2008) 168 FCR 198, [342]; R v CAB [2006] QCA 239, [32]; R v Ng (2002) 5 VR 257, [112].

[32] CSR Ltd v Della Maddalena [2006] HCA 1; (2006) 224 ALR 1, [55]-[56] (Kirby J); Sumbul v Melbourne All Toya Wreckers Pty Ltd [2006] VSCA 292, [11]-[12]; Ferguson v McDonalds Australia Pty Ltd [2005] NSWCA 401.

[33] R v Liu [2007] QCA 113.

[34] R v Sari [2008] VSCA 137, [49]; Tims v Police [2008] SASC 141.

[35] DPP v S (No 2) [2009] VSCA 127, [14]; R v Dupas (No 3) [2009] VSCA 202, [39], [118]; Clark v Her Majesty's Advocate [2006] JC 637; Deemer v Finger 817 SW 2d 435 (Ky 1990); McElroy v Kravagna 104 Cal App 4th 536 (2002); Walker v State of Maryland 723 A. 2d 922 (Md Spec App 1999) a decision of the Court of Special Appeals of Maryland; Let The Record Show: Modifying Appellate Review Procedures for Errors of Prejudicial Nonverbal Communications by Trial Judges, Ms R L Shoretz, Columbia Law Review Vol 95 No 5 (June 1995) 1273; see Appellate Review of Video Recorded Trials, Mark Ritter, Paper delivered at AIJA Appellate Judges Conference of AIJA Appellate Judges Conference - 3 November 2008 [81]-[83].

[36] Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300.

[37] M v R [1994] HCA 63; (1994) 181 CLR 487.

[38] Festa v R [2001] HCA 72; (2001) 208 CLR 593, [122] ( McHugh J); Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 ,129 (Gleeson CJ, Gummow and Kirby JJ).

[39] Fox v Percy [2003] HCA 22; (2003) 214 CLR 118, 126-7.

[40] Appellate Review of Video Recorded Trials, Mark Ritter, Paper delivered at AIJA Appellate Judges Conference - 3 November 2008.

[41] The Effect of Courtroom Technologies on and in Appellate Proceedings and Courtroom - Professor Frederic I Lederer (2002) 2(2) Journal of Appellant Practice and Process 251.

[42] Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1 , 7.

[43] See The Dame Ann Ebsworth Memorial Lecture, 21 February 2006, London, available at http://www.hcourt.gov.au/speeches/kirbyj/kirbyj_21feb06.pdf ("The Ebsworth Memorial Lecture").

[44] Mitchell v Archibald 971 SW 2d 25 (Tenn App 1998); State of Washington v Polnett (1999) WL 1054697, 22 Nov 1999 at 4 (Court of Appeals Washington). See also Appellate Review of Video Recorded Trials - Mark Ritter - Paper delivered at an conference of AIJA Appellate Judges Conference - 3 November 2008.

[45] Chief Justice De Jersey recently adverted to the appellate court's enhanced capacity to test findings based upon credibility as a result of full audio visual recordings of a trial concluding that 'the obligation to conduct a careful independent assessment of the evidence will in a practical sense continue to be informed substantially by the points taken by the parties_' - Appellate_ court - Civil - rehearing and role of audio visual records of witnesses at trial p 11 - Supreme and Federal Courts Judges conference - 26 January 2010.