R v Falcone [2008] VSCA 225

Mr S. Ward, Acting Solicitor for Public Prosecutions

1 I have had the advantage of reading in draft the reasons for judgment of Vickery AJA. I agree that the appeal should be allowed for the reasons which his Honour gives, and a retrial ordered.

2 I too have had the advantage of reading the reasons prepared in draft by Vickery AJA. For the reasons given by his Honour, I also agree that the appeal should be allowed and a retrial ordered.

3 On 15 October 2007, the applicant presented in the County Court at Melbourne for trial on a presentment containing one count of armed robbery contrary to s 75A of the Crimes Act 1958 (Vic). The charge in the presentment was:

Antonio Falcone at Richmond in the said State on 22nd day of February 2006 robbed PETER KOKKIOS of certain property namely money and a Tag Heuer watch and at the time had with him an offensive weapon namely a syringe.

4 On the day of the offence the applicant was interviewed by the police. The applicant denied his involvement in the offence. He declined to participate in an identification parade.

5 On 24 February 2006, after the victim of the robbery, Mr Kokkios, had identified the applicant from a photoboard, the applicant was arrested and remanded in custody. He was released on bail on 28 February 2006.

6 On 19 October 2006, after a two day contested committal hearing in the Magistrates' Court at Melbourne, the applicant was committed for trial in the County Court on a charge of armed robbery.

7 The applicant's trial commenced on 15 October 2007. On 17 October 2007, the Crown case was closed. The applicant did not call or give any evidence.

8 On 19 October 2007, following the completion of addresses from counsel and during the trial Judge's charge, two questions were asked by the jury. The second question was, "If we find that we can place him at the scene but believe that he is not the man with the syringe, can we still find him guilty?". This question was answered by the trial judge in a manner which gives rise to a ground of appeal before us.

9 On 22 October 2007, the jury returned a verdict of guilty.

10 On 16 November 2007, her Honour sentenced the applicant to be imprisoned for 3 years. Her Honour fixed a non-parole period of 18 months. Her Honour declared that 30 days pre-sentence detention be reckoned as time already served.

11 By notices filed on 26 November 2007, the applicant sought leave to appeal against conviction and sentence.

12 Giovanna Falcone, the applicant's mother, gave evidence at the trial. At the relevant time, she resided in Richmond with her husband and their three sons, Sebastiano, Salvatore and the applicant. Sebastiano is the eldest son and the applicant is the youngest son.

13 Mrs Falcone stated that on Wednesday 22 February 2006, the applicant and Salvatore woke up at about 10.00 am. Salvatore requested $100 so that he and the applicant could purchase tablets or medicine. Mrs Falcone stated that she did not have any money and told them to wait while she finished cleaning the house.

14 Mrs Falcone stated that at about 11.20 am she and the applicant left the house to go to the Commonwealth Bank at 242 Bridge Road, Richmond, which was about a ten minute walk away. Salvatore remained at home and was wearing a light yellow T-shirt and some form of tracksuit pants. The applicant accompanied her to the bank and was wearing a light brown T-shirt and jeans. Mrs Falcone confirmed that she made a statement to the police setting out these details about three weeks after 22 February 2006.

15 Mrs Falcone also gave evidence that upon arrival at the bank she went to take the money out of her account via the automatic teller machine, but was unable to do so. She went inside the bank and asked at the counter if she had any money in her account. She was told that there was none. She said she was not aware of whether the applicant had tried to access his own account at the time and she stated that he didn't try his own bank account.

16 Phillip Trojan, a customer service manager for the Commonwealth Bank at 242 Bridge Road, Richmond, gave evidence that at about 11.30 am on 22 February 2006, he saw the applicant, accompanied by his brother, Salvatore, and their mother waiting near the customer assistance counter. Mr Trojan recognised the Falcone family from his previous dealings with them.

17 Mr Trojan went to the customer assistance counter. The applicant showed him an ATM receipt slip which showed a balance of "260DR". The Falcones asked why the ATM would not allow them to access the balance shown on the slip. Mr Trojan explained that in fact the slip showed a debit balance which meant that the account had been overdrawn and no funds could be withdrawn. During this encounter, Mr Trojan accessed Mrs Falcone's customer details on the computer and this generated a customer interaction report. A printout of that report was tendered. It records that Mr Trojan accessed the customer records for 2 minutes and 14 seconds, commencing at 11.37 am and ending at 11.40 am.

18 Mr Trojan recalled that the applicant had an earring and was wearing a mousey-grey hooded jacket and a slightly soiled red cap along with black and white tracksuit pants. Mr Trojan stated that the applicant's brother, Salvatore, looked about the same age, but slightly younger. Mr Trojan recalled that Salvatore was very similar to the applicant in features and physique, and that Salvatore wore a tight pair of light blue acid wash jeans and a faded white cotton T-shirt. In re-examination, Mr Trojan confirmed that he was not able to see what the applicant might have been wearing underneath his hooded jacket.

19 In cross-examination it was put to Mr Trojan that Mrs Falcone 'says that only herself and the applicant' were there. Mr Trojan was asked whether it was possible that Mrs Falcone was wrong. He replied, 'Quite so'. He was then asked if it was possible that he was wrong and again he replied, 'Quite so'.

20 Mrs Falcone stated that after attending the bank she intended to go to Coles to buy some milk, but because she didn't have any money she went home. She confirmed that she and her husband also held a joint account at the ANZ Bank. When asked if she had made any attempt to get money from the ANZ account she said that she could not recall exactly but she didn't think so.

21 At about 11.45 am, Scott Raglus was driving his car along Risley Street towards his business premises in that street. Risley Street adjoins the Ministry of Housing Estate in Richmond. Mr Raglus noticed a red Mercedes Benz convertible with its top down parked in the position he remembered as usually being occupied by a Saab motor car. He saw two men looking at the Mercedes Benz vehicle.

22 Mr Raglus pulled up his car at a roller door that led to his usual parking spot. He opened that roller door and drove his car in. He found that the parking spot was occupied, so he backed out of the building onto Wesley Street, and parked his car out in the street. He took some items out of the car to take them into the building with him.

23 The two men whom Mr Raglus had seen before were now looking into his premises from the opposite side of the street. Mr Raglus recalled that one had dark hair with a long sad face. The other man looked similar, but taller with dark hair and not as long a face. He believed that this man wore a red shirt and black pants.

24 The same day, at a time which Peter Kokkios placed as between midday and 1.00 pm, he walked through the Ministry of Housing Estate in Richmond.

25 Mr Kokkios recalled that he was cutting across the garden bed in the Ministry of Housing Estate when he was approached by two men. Mr Kokkios described one of those men as 'skinny, with a long face and black hair' while the other was 'a broader and taller man'. The skinny man asked Mr Kokkios for a cigarette. Mr Kokkios said that he didn't have any.

26 The skinny man produced a syringe from his right hand pants pocket. He took the cap off the syringe and held the needle about three inches away from Mr Kokkios' neck. The skinny man said, 'We'll take your watch instead.' Mr Kokkios' watch was a TAG Heuer valued at $1,800.

27 Mr Kokkios undid his watch and proceeded to pull it off. It was snatched from his hand by the other man. The men said, 'Is that all you have? Mr Kokkios said, 'Yes'. The other man put his hand into Mr Kokkios' pants pocket and took out a $50 dollar note which was all that Mr Kokkios had on him.

28 According to Mr Kokkios, the two men ran off towards the block of flats. The taller man managed to run well ahead of the skinny man and he shouted out, 'Come on, Ant.'

29 Mr Kokkios recalled that the skinny man had bloodshot and baggy eyes along with bad skin and bad breath. Mr Kokkis recalled that he was about 5 feet 10 inches tall and his hair, which was slicked or combed back, was black. He recalled that the skinny man looked European - Italian or Greek - was clean shaven, had brown eyes, a very long and skinny face and was approximately 20 to 25 years old. He recalled that he was wearing a red top and black 'parachute' tracksuit pants and a red T-shirt.

30 Mrs Falcone and the applicant walked home from the bank, arriving at around 11.45 am. Upon their arrival, Salvatore asked if she had obtained the money and she said, 'No'. Salvatore asked for something to take to a pawnbroker. At about 1.30 or 1.40 pm she went to a nearby pawnbroker in Church Street, Richmond, and pawned some jewellery in exchange for $140.00.

31 Mrs Falcone stated that the applicant and Salvatore remained at home for the entire time between the trip to the bank and her departure to the pawnbroker.

32 At about 5.28 pm the police attended the Falcone residence in Richmond. A search warrant was executed and the applicant was arrested. The informant conducted a tape recorded interview with the applicant who gave the following account of events. That morning, he had gone to the Commonwealth Bank in Bridge Road, Richmond with his mother to check if she had some money in her bank account. They then went home. He did not conduct any transactions himself at the bank. They walked straight home along Church Street. He wore a pair of jeans and a "Timberland" top.

33 When asked if anyone was at home, the applicant first said that no one had been at home with him. He then said that one brother had been at home but that he had waited for his other brother to arrive home. He said that his brother arrived between about 3:30 pm and 4.00pm, and that they then loaded the car with fishing tackle to go fishing. He denied having entered the Ministry of Housing Estate that day and denied any involvement in the robbery. It was noted that the police had found some black tracksuit trousers in the laundry. The applicant denied that he had been wearing those trousers that day.

34 On the following day, 23 February 2007, Mr Kokkios was shown a photoboard. He identified the applicant as the skinny man who had robbed him and had used the syringe.

35 On 24 February 2007, Mr Raglus was shown a photoboard. He identified the applicant as having been the man with 'a long sad face'.

36 The applicant seeks leave to appeal against conviction on the following grounds:

1. The learned sentencing judge erred by directing the jury that it was permissible for them to reason that the applicant had exhibited a consciousness of his guilt and thereby impliedly admitted his guilt of the offence of armed robbery. (Ground 1)
2. The learned sentencing judge erred by failing correctly to answer the question that was asked by the jury. (Ground 2)
3. The verdict of guilty is unreasonable and against the weight of the evidence. (Ground 3)

37 Ground 1 centres on the trial judge's charge in relation to a suggestion that the applicant changed his clothes after committing the crime of armed robbery. Her Honour said on this issue in the course of her charge:

Now, in the course of the trial and in Mr Barnett's closing address to you, he addressed you by saying to you that, raising with you, that Antonio Falcone may have changed his clothes. You remember in the course of his address to you he talked about the issues about clothing and the various pieces of evidence about clothing throughout the trial. And he raised with you, well the accused man - don't be too distracted about the clothes - the accused man may have changed his clothes after he perpetrated the armed robbery with which he's been charged.

Now, I need to give you some directions about the way in which you could use that evidence if indeed that what's you find. Evidence of acts performed after a crime has been committed are capable of being used as an unspoken or implied admission by an accused person that he's responsible for a particular crime. So you may be able to use an act in this way, as an unspoken or implied admission by an accused person, if and only if you can reason that the accused performed that act, that is, did change his clothes after the crime was committed, and the only reasonable explanation for the accused doing that act was that he believed he had committed the crime and he believed unless he acted in that way he'd be implicated in that crime. So by changing his clothes the accused has admitted his responsibility for that crime.

Now, if you find that he did change his clothes, the accused would not have explicitly admitted his responsibility for the crime. You'd be drawing an inference that he'd admitted responsibility for the crime from his behaviour and you'll remember what I've already told you about inferences. First, you have to be satisfied as to the facts and then you have to be satisfied that it's the only reasonable inference to be drawn from those facts.

Even if you find the accused acted in that way, changing his clothes because he believed that he would otherwise be implicated in the crime, that doesn't mean that you must necessarily find him guilty of that crime. Any behaviour of the accused is just one piece of evidence that you can use in making your final decision about whether the prosecution has proven guilt beyond reasonable doubt. You might recall the prosecutor saying to you in his closing address, you shouldn't be surprised that if he's committed this crime, he's come home and changed and the police find him in different clothes because he's endeavouring to distance himself from the appearance he had earlier in the day.

Now, before you can use an act to show that the accused implicitly admitted responsibility for a particular crime by doing that, there are three requirements that must be fulfilled, and if any of those requirements aren't met in relation to act, you mustn't use it for that purpose, in other words as an implied admission of responsibility for the crime.

So first, as I've said, you must be satisfied that the accused actually changed his clothes. Second, you must be satisfied that he changed his clothes because he wanted to change his appearance from earlier in the day. And third, you must be satisfied that the reason why the accused changed his clothes was because he believed that he'd committed the armed robbery and he believed he would be implicated in it if he didn't change his appearance. You will recall he told the police he didn't change his appearance.

Now, it's for the prosecution to eliminate all other possibilities of course, as always, beyond reasonable doubt. So if you cannot exclude the possibility that the accused changed his clothes that day for some other reason - that's if you find that he did - you can't use this behaviour as evidence that he implicitly admitted responsibility for the crime. You may only use his act in this way if you're satisfied that the reason he changed his clothes - if you find that he did - was that he had committed the crime you are considering and you believe that by not endeavouring to change his appearance he would be implicated in it.

So when I instructed you about inferences earlier I told you, you must not draw an inference about an important matter without being satisfied that it's the only reasonable inference open in the circumstances. And the same rule applies when you draw an inference from the way the accused is alleged to have acted after the crime was committed.

In other words, if the inference that Antonio Falcone has implicitly admitted responsibility for this crime by changing his clothes forms a significant part of your reasoning towards his guilt or provides a significant reason for you concluding that he's guilty of the crime, then you must be satisfied that the prosecution has proven each of those aspects that I've just gone through with you beyond reasonable doubt. That is you must be satisfied beyond reasonable doubt that the accused acted in the way alleged by the prosecution, that he did change his clothes, that the act related to a significant circumstance connected with the offence and that he did due to believing that he'd committed the armed robbery and believing that by not changing his clothes, he'd be implicated in the armed robbery.

Now, if you're not satisfied of all of these matters, then you can't use the accused's behaviour as evidence that the accused implicitly admitted responsibility for the crime.

38 The charge concerning the post-offence conduct of the accused in relation to his clothes was framed as an Edwards direction,[1] and if it had been necessary, was unexceptionable.

39 There were some inconsistencies in the evidence about the clothing allegedly worn by the syringe-holder and his accomplice. The victim, Mr Kokkios, identified the applicant as the syringe-holder and said he was wearing a red t-shirt and black tracksuit pants. However, according to the bystander, Mr Raglus, it was the person he identified as accompanying the applicant - when he saw them both walking in the direction of the flats - that was actually wearing a red t-shirt and black pants. At the time of the bank visit, the applicant was said by Mr Trojan to have been wearing a grey hoodie jacket, a red cap and black tracksuit pants with white stripes. The applicant's mother, however, said that when they went to the bank the applicant was wearing a light brown t-shirt and, she thought, jeans. When the applicant was interviewed by police later in the afternoon, he was wearing a white t-shirt and a pair of jeans.

40 The prosecutor in his final address emphasised specific aspects of the Crown case, as follows: the apparent "desperation" of the applicant and his brother to get money that day; the identification of the applicant by Mr Kokkios as the syringe-holder; the evidence of Mr Kokkios that the accomplice had said to the syringe-holder 'Come on, Ant'; and the evidence of Mr Raglus that he saw the applicant and a companion walking into the Ministry of Housing Estate where the robbery took place. Taken together, counsel told the jury, these pieces of evidence made up 'an overwhelming case.'

41 The prosecutor then turned to consider what counter-arguments might be advanced by the defence. The relevant part of the address was in these terms:

Well, the only other thing that I can think that the defence could turn to is differences in accounts or inconsistencies with what the accused was wearing that day. No doubt they'll say that the mother gives one account, the bank manager gives another account, so if you've got these differing accounts of what the person was wearing, how can you be sure? Well, members of the jury, don't be confused. Don't let that distract you from the overwhelming strength of the Crown case. There are a number of reasons why there may be different accounts from witnesses as to what the accused was wearing. Maybe after going to the bank he came home. Maybe he took off the hoodie that the bank manager was referring to and the cap and he had a red t-shirt underneath. Maybe he just got changed when he got home into some other clothes. One thing is for sure, you shouldn't be at all surprised that if after committing this offence he then comes home and gets out of the clothes that he's wearing that can identify him to that crime. So it shouldn't be any surprise to you that when the police officer comes over to the house he's wearing different clothes again, that's jeans and a white t-shirt. So I wouldn't put too much weight on the fact that there are these discrepancies and that when the police comes [sic] over he's wearing different clothes. Don't be distracted by this. Don't lose sight of the fact that you've got not one, but two people, the victim and Scott Raglus, who identify the victim's face - sorry, not the victim - yes, he identifies the accused's face, and you might think that that ability to actually be able to identify the accused's face is more important than whether you're able to distinguish, you know, different sort of street wear clothes that he's wearing on that day. [2]

42 Discussion then took place in the absence of the jury, during which defence counsel asked the judge if she would consider overnight the possible need for 'a consciousness of guilt warning.' Counsel explained his request in these terms:

It was suggested to the jury that Mr Falcone, for instance, changed his clothes. Don't rule that out. I'm not conceding there's any evidence to support it, but now it has been raised, it is an act potentially in the jury's mind relevant to the question of consciousness of guilt.

43 In his address to the jury, defence counsel did refer to the variations in the evidence about clothing and said:

As the Crown would have it, Antonio Falcone's had more costume changes than Kylie Minogue during the course of this morning.

44 The evident purpose of this reference was - as the prosecutor had anticipated - to cast doubt on the evidence of those who had identified the applicant.

45 At an early stage in the charge (and in the absence of the jury), defence counsel told the trial judge that he remained concerned about the Crown's reference to the applicant's possibly having changed his clothes after committing the robbery. Her Honour indicated that she proposed to give an Edwards direction. Her Honour provided a copy of the draft direction to both counsel. Subsequently, both counsel indicated that they were content with the draft direction. The trial judge then directed the jury in the terms of the Edwards direction.

46 In this appeal, the submission for the applicant was that no direction about consciousness of guilt had been necessary, because the prosecutor was not asking the jury to reason along consciousness of guilt lines at all. He was merely seeking to identify a possible explanation for the inconsistencies that he anticipated might be emphasised by the defence.

47 In my view, this submission must be accepted. As explained earlier, the Crown's submission to the jury was that the identification evidence was sufficient for them to convict the applicant. No reliance was placed upon possible changes of clothing as probative of the applicant's guilt. The references to the evidence about clothing were purely defensive, anticipating (correctly as it turned out) what the defence were likely to say. As I said earlier, the prosecutor merely submitted that the clothing variations should not distract the jury from the strength of the identification evidence.

48 The critical question for present purposes, however, is whether the giving of the unnecessary Edwards direction caused a miscarriage of justice. The submission for the applicant was that, by formulating the issue in the way she did, the trial judge effectively invited the jury 'to infer an implied admission of guilt on the basis that the applicant had changed clothes.'

49 I would reject this submission. In my view, the direction given did not amount to an 'invitation' to the jury to draw any such inference. But even if it did, it caused no injustice. This is so because the jury could not have embarked upon the process of reasoning described in the direction without first having been satisfied that the applicant had in fact changed his clothes at a time and in a manner which was material to the body of evidence which the jury had to consider. As appears from the highlighted portions of the direction (above), the judge had made clear to the jury that the only relevant change of clothes was a change of clothes 'after the crime was committed', that is, a change from what the applicant was wearing at the time of the robbery to what he was wearing at the time of the police interview later that same day.

50 Once this is accepted, it follows that the jury could not have reached the conclusion that any relevant change of clothes had taken place without first concluding that the applicant was the perpetrator of the robbery. Without that conclusion, they were left with evidence that he was in tracksuit pants at the bank and in jeans when interviewed by the police at 5.30 pm. While that evidence would show that he had changed clothes during the day, it would not be a relevant change of clothes since it would have no necessary connection with the robbery.

51 In short, there is no risk that the jury engaged in impermissible reasoning as a result of the unnecessary direction. The direction could not have been complied with unless the jury had first reached the conclusion that the applicant had been the perpetrator, at which point any further consideration of his clothing was unnecessary.

Answer to Jury Question- What if the Applicant was at scene but not the man with the syringe ? (Ground 2)

52 In the course of deliberation, the jury asked the following question of the judge:

If we find that we can place him at the scene, but believe he is not the man with the syringe, can we still find him guilty?

53 Her Honour responded, with what amounted to an affirmative answer to the question, as follows:

Thanks, members of the jury. Now, in answer to your second question. I'll just read it back to you again, "If we find that we can place him at the scene, but believe he is not the man with the syringe, can we still find him guilty?"

So, in answer to that question, you'll remember that I told you that your decision must be based on the evidence before you and any lawful inferences in the way in which I've described inferential reasoning to you, any lawful inferences that you can draw from that evidence.

Now, I'll remind you that the prosecution case before you is that the accused man is the one with the syringe and that's based on the evidence of Peter Kokkios, that you've had replayed to you today. The man he has described to you in detail is the man he says held the syringe. He told you that's the man he picked out at Photo No. 10 and you know Photo No. 10 is the accused man. So I remind you as part of the circumstantial evidence in the Crown case that it's the second man who says to Man No. 1, "Come on Ant" and the Crown rely on that as referring to Man No. 1, the accused man, the man with the syringe.

If you find that the accused man wasn't the one with the syringe, then you must have a reasonable doubt about the identification made by Mr Kokkios as identifying this accused man because he gives no description of Man No. 2 other than broader and bigger than Man No. 1. So if you were to reach this position then you must look at what's left before you in the case and that's the evidence of Scott Raglus and what you make of that, the evidence of Mr Trojan the man at the bank and what you make of that, the evidence of Mr Falcone and Detective Senior Constable Roberts and finally what the accused man had to say during his interview with the police. So that's how I'm going to answer your question and I'll otherwise ask you to return to the jury room and if there's anything else that I can assist you with, please let me know. [3]

54 The case against the accused was that it was he who had possession of the syringe at the scene of the crime, and that he used it to threaten the victim, Mr Kokkios, in the course of robbing him of money and a watch. On the prosecution case, another unidentified male person was also present and participated in the crime, but he did not have with him any offensive weapon.

55 The Crown case was built upon the evidence of the victim, Mr Kokkios. He said in his evidence-in-chief in response to questions from the prosecutor:

Can I show you this photo book? Now inside that photo book is there 12 images of 12 different people ? ---There is.

Did you identify anyone in there as being one of the armed robbers? --- Yes, I did, I identified the person I believed at the time to be the person that robbed me as No. 10.

Okay, when you say the person that robbed you, are you referring to male one or male two? ---Male one.

56 The Crown's case in final address to the jury began with the following proposition:

I just want to say something about the real issue in this case and just to aid you and focus your attention on what that issue is; that is whether it was the accused who was the person with the syringe or not. That's really all you need to focus on.

57 The prosecutor's final address continued with this unswerving theme. The following passages illustrate the point:

... [T]he only real issue, the only real element that you need concern yourself with, is whether or not it was the accused who did it.

Now the strongest piece of evidence, or second point that the Crown relies on is the victim in this case, Mr Kokkios, actually identifies the accused person who has the syringe. This is someone who was an arm's length away from him.

In describing the identification undertaken by Mr Kokkios from the photoboard:

He points and says, "That's the one that had the syringe."

He's asked to look at the photoboard, he identifies the accused as the one who had the syringe.

...[T]his case isn't about the Crown identifying who the other person [at the crime scene] is, okay ? It's important that you focus on whether the accused person is the one that had the syringe and that's really all you need to focus upon.

58 At no point in the trial did the Crown seek to put its case against the applicant on the basis that he was guilty by reason that he acted together with the other male person in pursuit of a joint criminal enterprise and that, even if he wasn't the perpetrator who used the syringe as a weapon, he was guilty in any event by acting in concert with the perpetrator. [4]

59 The learned trial judge in her charge, and prior to the question being put by the jury, summarised the Crown case in the following way:

Further, the Crown case is that two men that committed the armed robbery were acting in concert. The Crown say, of course, that the accused was one of those men. And say it [the accused] was the man with the syringe. The prosecution say that they were acting together or acting in concert when they committed this armed robbery. That is that they were equally responsible for the armed robbery and the law says that if two or more persons agree to commit a crime and then those two or more persons all play some part in its commission by being present and actively participating, then they're equally guilty of the crime.[5]

60 The right to a fair trial is an essential safeguard of the liberty of the individual under the law. It finds expression in Article 14 of the International Covenant on Civil and Political Rights 1966[6] and is reinforced by s 24 of the Charter of Human Rights and Responsibilities Act 2006 (Vic).

61 One important aspect of the right to a fair trial is the right of every accused person to know the case which the prosecution seeks to advance at trial. As was stated by Dixon J in Johnson v. Miller,[7] in giving practical effect to this right, a prosecutor:

... should be required to identify the transaction on which he relies and he should be so required as soon as it appears that his complaint, in spite of its apparent particularity, is equally capable of referring to a number of occurrences each of which constitutes the offence the legal nature of which is described in the complaint. For a defendant is entitled to be apprised not only of the legal nature of the offence with which he is charged but also of the particular act, matter or thing alleged as the foundation of the charge.

62 The principle derived from Johnson v Miller has been applied consistently throughout Australia in the context of a prosecutor presenting a case at trial which is addressed by counsel for the accused, but who is then confronted with another case suggested by the trial judge in the course of the charge to the jury.[8]

63 In particular, the Tasmanian case of Carr v R[9] bears an uncanny resemblance to the present matter. The applicant there was tried and convicted of armed robbery in a supermarket. The offence was carried out in the company of another male person. The Crown put its case on the basis that the applicant was the armed gunman. In summing up to the jury, the trial judge for the first time in the trial put an alternative basis upon which it could convict, namely that the jury did not have to be satisfied that the applicant was the gunman, as had been consistently advanced by the prosecutor, but that they could still convict if they were satisfied beyond reasonable doubt that the applicant had assisted in the robbery. On appeal, Blow J said:

I believe that defence counsel might have addressed the jury differently if she had known that the learned trial judge was going to suggest the alternative basis for conviction in his summing-up. She could, for example, have argued that the Crown case must be inherently weak if two inconsistent bases for conviction needed to be considered. She might have placed more emphasis on matters affecting the reliability of the evidence of Mr Paget, Miss Denholm and Miss West, and given less emphasis to the discrepancy between Mr MacCreadie's height estimate and the height of the applicant. In my view there is a danger that the jury, on hearing from the learned trial judge that there was an alternative basis for conviction that defence counsel had not even mentioned, might have gained the impression that that basis had not been mentioned because there were no good arguments against conviction on that basis. They might have thought she was attaching a false importance to Mr MacCreadie's height estimate, and even that she was thereby trying to mislead them. All would have been different if the learned trial judge had mentioned before final addresses that he proposed to direct the jury as to this alternative basis: Walsh v R [1996] TASSC 59; (1996) 6 Tas R 70. If the applicant's counsel had addressed the jury as to the alternative basis for conviction, it may be that the jury would have entertained a reasonable doubt as to his guilt. I therefore believe there has been a miscarriage of justice.[10]

64 In the present case, the learned trial judge went to commendable lengths to ensure that there was a fair trial. Following receipt of the question from the jury, her Honour prepared her proposed response and recited it to the prosecutor and counsel for the defence. Neither took any exception to it.

65 However, with great respect, I am of the view that, consistently with the requirements for a fair trial which I have described, the question should not have been answered in the way it was. In effect, her Honour told the jury that they could proceed to consider the alternative case by looking at 'what's left before you in the case' if the Mr Kokkios version was rejected.

66 True it is that the charge was framed in an open ended fashion, admitting 2 bases upon which the accused could have been found guilty, namely, as the male person who had the syringe in his possession, which he used as a weapon, or as a second male person who acted in concert with the person armed with the syringe.

67 Nevertheless, as the prosecution had firmly nailed its case to the theory that the accused was the male person with the syringe, the alternative basis could not properly be opened up by the trial judge for the first time in her summing up without causing an unfairness to the accused. Had the matter been opened up prior to final addresses, or even by the prosecution in final address, it may well have been open for the defence to have put its case differently to the advantage of the accused. For example, defence counsel may have argued that the Crown case was inherently weak and this was the reason for putting the case on the alternative basis. In the end, the accused was denied a fair opportunity to meet the new case suggested by the trial judge.

68 To avoid unfairness to the applicant, the answer to the question from the jury should have been 'No'.

69 Ground 3 of the full statement of grounds pressed by the applicant was that the verdict of guilty was unreasonable and against the weight of the evidence.

70 The question to be addressed is set out in M v The Queen,[11] where Mason CJ, Deane, Dawson and Toohey JJ said:[12]

Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is a body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.

In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to set aside a verdict based upon that evidence.

71 In this case, upon the whole of the evidence I am of the opinion that it was open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty of the charge.

72 For this reason, I would dismiss this ground of appeal.

73 In my opinion, there has been a miscarriage of justice arising from my findings made under Ground 2. However the interests of justice do not require the entry of an acquittal.[13] This is not a case where the evidence at the trial was not sufficiently cogent to justify a conviction. There was evidence to support the charge.

74 Pursuant to s. 568(2) of the Crimes Act 1958, I would grant leave to appeal and allow the appeal against conviction. I would quash the conviction and direct that a new trial be had.

[1] Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193; See also: R v Renzella [1997] 2 VR 88, 92 (Charles JA); R v Chang [2003] VSCA 149; (2003) 7 VR 236, 254 (Charles JA).

[4] McAuliffe v The Queen [1995] HCA 37; (1995) 183 CLR 108, 113; Osland v The Queen [1998] HCA 75; (1998) 197 CLR 316, 350 (McHugh J).

[6] International Covenant on Civil and Political Rights, adopted and opened for signature, ratification and accession by General Assembly resolution 2200A(XXI) of 16 December 1966, Australian Treaty Series 1980 No. 23 [Reprint] (entered into force 23 March 1976, in accordance with article 49).

[7] [1937] HCA 77; (1937) 59 CLR 467, 489.

[8] R v Solomon [1980] 1 NSWLR 321, 327-328 (Street CJ); King v The Queen [1986] HCA 59; [1986] 161 CLR 423, 428-429 (Deane J with whom Mason and Murphy JJ agreed), 432 (Dawson J with whom Gibbs CJ agreed); R v Pureau (1990) 19 NSWLR 372, 376 (Hunt J with whom Enderby and Sharpe JJ agreed); R v G.A.S. [1998] 3 V.R. 862, 878-879 (Batt JA with whom Brooking and Ormiston JJA agreed); and R. v Green [2002] VSCA 34; (2002) 4 V.R. 471, 479 (Charles JA).

[9] [2000] TASSC 183.

[11] [1994] HCA 63; (1994) 181 CLR 487.

[13] Spies v The Queen [2000] HCA 43; (2000) 201 CLR 603, 638 (Gaudron, McHugh, Gummow and Hayne JJ).