R v Fountain & Tootell [2001] VSCA 200

5. After a trial lasting four days, the applicants were both found guilty on each count. Neither of them had any prior convictions. On 10 August 2001, the judge imposed sentences on each applicant leading to a total effective sentence of 14 months, and in each case a non-parole period of four months was fixed. Each applicant now seeks leave to appeal against conviction and sentence, the same eight grounds being taken in relation to conviction.

8. The grounds taken make it necessary to set out in considerable detail the Crown case, which was as follows. The complainant, then a gaming inspector at Crown Casino, on 19 September 1998 travelled to Eildon to stay at a friend's house. At 6.30 p.m. that day he walked to the Golden Trout Hotel for dinner. By that time he had already drunk a considerable quantity of beer. He went into the bistro and ordered a meal, together with a half bottle of red wine. He remained in the hotel, playing pool and drinking beer, until approximately 10.30 p.m., nearly closing time. The evidence suggests that the complainant was then thoroughly intoxicated; in his evidence he could recall few details of what followed. He recalled "having words" near the doorway with someone, a female who was in the company of another person whom he could not recall. He remembered being punched, probably while still inside. He recalled being put on the ground outside and putting his arms over his head because he was being kicked. He was kicked in both arms. He remembered lying chest down on the ground with somebody on his back forcing his weight on to the complainant while he screamed for them to stop because he could not breathe.

11. The complainant's next recollection was waking up on a table in hospital in the presence of medical staff and police officers. He had been severely injured in the events of the previous night, as the photographs taken at that time dramatically show. Indeed, Dr David Carseldine, who examined him months later in December 1998 using a bone scan, said that the complainant had suffered severe chest trauma, as might often occur in a motor vehicle accident. His knee and elbow had both been twisted out, with the knee injury in particular suggesting a fairly severe trauma. Dr Raymond Young, who examined the complainant on 20 September 1998 in the emergency department of the Alexandra Hospital, found him to have serious injuries, including a black eye, abrasions on his left ear and on both sides of his forehead, bruises and abrasions in the hypochondrial area over the gall-bladder and liver, linear bruises on his wrists and a bruised and swollen right knee. The complainant, who is 160 centimetres tall and weighed around 60 to 63 kilograms, was unable to recall any of the incidents that had brought about his injuries.

14. Joseph Ryan gave evidence that in September 1998 he was working as a cook at the Golden Trout Hotel. At 10.30 p.m. he saw the complainant sitting on a stool near the pool tables, half asleep. Later he heard the complainant fall off his stool. Stewart Luckman and Gary Martin were in the bar at the time and the applicants were locking up, so they took the complainant out, picking him up and walking him to the door. He then heard Fountain calling him to come and help Tootell. He ran to the door and saw Fountain standing to the side, with Tootell and the complainant grappling on their knees on the ground. Ryan said, "One had - both had Andrew - and a handful of Andrew's hair and sort of trying to get control". Fountain was about 10 feet away, telling Ryan to help Tootell. Ryan said that at this stage it looked like a fair fight between two people. Ryan then grabbed the complainant by the leg and tried to get him off his knees on to his stomach on the ground, so that they could get some control. Ryan hit the complainant once in the back of the ribs "to try and get his hands free". Eventually, Ryan dragged the complainant's legs out from under him so that he was lying on his stomach on the ground. Ryan said the complainant was still trying to roll over and Tootell "just gave him a couple more knees and that to try and settle him down". From a half-kneeling position Tootell "dropped a couple of knees onto his side" and hit him once or twice to the back of the head and neck area. He also kicked the complainant once or twice, although this involved "not much of a kick". The complainant struggled a bit more but then said , "I've had enough, I've had enough". The complainant then appeared to be controlled. Ryan said that while he was still struggling with the complainant's legs, Fountain called for Stewart Luckman to "come outside and help" and then Ryan saw Luckman beside him. Fountain told Luckman, "Hit him with a pool cue", which Luckman did. Ryan was not sure how the pool cue came to be outside. The complainant was basically down on his stomach when Luckman struck him with the cue. Ryan said he was not completely under control at that time and Tootell was not yet sitting on him. Luckman struck him approximately four or five times before the cue broke. At that time Tootell was attempting to get the complainant's arms under control. In cross-examination Ryan agreed that once Tootell had got control of the complainant there were no blows struck by Tootell after that. Once the complainant was held down, zip ties were obtained to tie him up. The complainant was then groaning and looking as though he was in pain. Tootell and Luckman put ties on the complainant's legs and arms, which Ryan said was an appropriate measure for the protection of the group. The police arrived 10 or 15 minutes later. At the conclusion of the struggle Tootell had scratches on his face, near his eyes, and a blood nose, and a clump of his hair was also on the ground.

17. Ryan said that before the police arrived Fountain said, "This is what's happened and this is the way it's going to be said". She said, "That he wasn't hit that much and that we tied him up, because he was too much of a nuisance and we couldn't keep him under control". She also said that she was the one who had used the billiard cue, not Luckman, because as publican she would get into less trouble. She said there were not many punches thrown, and they had only done what was necessary "in relation to getting him tied down, and under control". Ryan said in evidence that this was not true as the complainant was in fact "brutally manhandled and beaten up a fair whack". Tootell then backed up Fountain saying, "Yes, that's what's gotta be done". Ryan said both Tootell and Fountain were aggressive in their assertions, and he said the next day he thought Tootell spoke to him again "just to make sure you - you remember what was said last night and that's the way it goes".

20. Ryan had made two police statements. In the first of them he stated that Tootell had acted in complete self-defence. He did not admit he had punched the complainant because Fountain had told the employees to "keep themselves out of it so that it was only to do with the hotel, because the owners of the hotel had to get off a lot easier". Ryan was interviewed by the police in April 1999 and said he told them the truth. In cross-examination Ryan said that at the time of the assault he had considered his group's actions were reasonable in the circumstances but later thought "Things could have been done a little bit better than they were".

23. Stewart Luckman's evidence was that in September 1998 he was living in Eildon and for a couple of months had been performing bar work and maintenance at the Golden Trout Hotel. On the night of 19 September he worked in the hotel bar. That night he saw the complainant eating in the bistro and later playing pool. Late in the evening he heard the complainant fall from his stool in the poolroom. Tootell went to help the complainant and Luckman helped Tootell escort him out of the hotel.

26. Luckman then became aware that a fight had broken out outside the hotel between Tootell and the complainant, when he was called out by Fountain. He went to the door and saw the two men on their knees on the ground punching each other. Fountain told him to go and get a billiard cue, and he collected the cue from behind the bar and returned outside. Tootell told him to hit the complainant, and he did so, hitting him hard on the back five or six times. Luckman said the complainant was fighting before and after Luckman struck the blows. After he had hit the complainant a number of times, he was told to go and collect some cable ties, and he returned to the scene of the fight with the ties, which Fountain and Tootell used to tie up the complainant. Ryan was holding his legs while they did so. Luckman said that on the night and later when he was formally interviewed by the police, he felt his action and Tootell's were justified.

29. Luckman said that after the fight, he, Ryan, Fountain and Tootell all talked about the incident, with Fountain and Tootell giving him a made-up story which was "just that the guy attacked Andrew first and that June hit him with a pool cue". He said he felt "a bit intimidated" because they were his bosses. He said his recollection of the conversation was very sketchy and he agreed that he "couldn't in fact be sure about anything he had to say about that conversation". He accepted the possibility that what he heard was merely a discussion about what different people had seen that night. In re-examination Luckman said that he had originally given a false version of the events to police and that he had done so because he was told to do so.

32. Luckman made two statements to the police. The first statement he said was false, made "because I was told to say what I did". He was formally interviewed by the police in April 1999 and made a second statement, telling the truth in that interview.

35. Evidence was given by Gary Martin, an invalid pensioner, who, in September 1998, worked part-time at the hotel as a dishwasher. During the course of the evening of 19 September 1998, he saw the complainant playing pool and getting drunk. Martin said the complainant could hardly stand up. He saw the complainant fall from his chair and when he stood up he had a scratch above his right eye. He said the two applicants went over to assist the complainant and Tootell asked him nicely to leave "and that's when all hell broke loose". He said the applicants walked the complainant to the door, but then he came back in and "grabbed June on the breasts". He later said that Fountain tried to get away from him, but the complainant followed her, grabbing and poking at her breasts. His evidence continued that the complainant went out again, but then returned holding his crotch. Right in front of Martin, the complainant went up to Andrea Dennis, Tootell's girlfriend, and asked for "a blow job". Tootell said, "That's my girlfriend". Martin then said that the complainant and Tootell went out the door and the complainant started punching at Tootell. Martin said that he saw the fight outside, and Tootell punching the complainant. Martin said, "Andrew was into him. He kicked him in the groin about 10 times into the nuts and kept punching him and then he called Joe [Ryan] out and Joe came out and started punching into him - into his head and he called Stewie [Luckman] out and said bring the pool stick with you ... and then Stewie flogged him about 20 times in the back". Martin said that Fountain was standing in the background and was enjoying every bit of it. Martin said the attack appeared to go on for a long time, that when Ryan was holding the complainant's legs, he was still struggling to get up to "have another go at Andrew". Martin said that at some stage the complainant said, "I've had enough, I don't want any more ..." and Tootell responded, "You'll have enough when I say you've had enough" and "kept at him".

38. Under cross-examination Martin's story varied considerably. He said that during the fight Fountain remained inside the whole time, and that her response to the fight was that she was worried about Tootell. In examination-in-chief Martin had said that it was Tootell, not Fountain, who had called out for Ryan. Under cross-examination he accepted that he was not certain about this and later said positively that it was Fountain who had called for Ryan, saying something like "help Andrew".

41. Martin said that after the fight was over, and before the police arrived, Tootell and Fountain told him that "If I ever told, I'd look like the guy on the ground". He said Tootell said to him, "Tell the police, if they ask, that he threw the first punch". Tootell also threatened him, saying, "If you tell what happens, like this bloke here, I'm going to break your neck, break your legs and drown you in his creek" (sic). In cross- examination, Martin appeared to retract this allegation. When the police arrived, Martin "never said nothing" to them that night because of what Tootell had said to him. Under cross-examination, however, he agreed, when it was suggested to him, that he had not thought anything wrong had gone on that night and that this was why he did not speak to the police. He then said no-one had told him not to speak to the police. Some seven months later, however, Martin went to see the local policeman, Senior Constable Robert Ashe.

44. Under cross-examination Martin accepted that in late 1998 he had been taken to task by Fountain for consuming left-over food and drink from tables he was clearing and, when he failed to mend his ways, was told he could no longer work at the hotel. He then became angry at both applicants and even though he was still allowed to visit the hotel, from that time he began calling them insulting names under his breath. In April 1999 he had been told he was no longer welcome as a patron at the hotel and was then told off by the police. It was after this that he made his statement to the police in respect of the events of 19 September 1998. Martin agreed that he hated the applicants when he made his statement and ultimately conceded that this was why he made the statement.

47. Andrea Dennis, Tootell's de facto wife, was working in the hotel on the night of 19 September 1998. She had served the complainant in the bistro area where he had ordered a T-bone steak and a carafe of red wine. Dennis said that she saw the complainant in the pool table area fall off his stool. He was then approached by the applicants, who lifted him up, Tootell saying, "Come on mate, we are closing". A few minutes later, the complainant came back in and said to her, "Lick my balls". He was grabbing at his crotch and repeated the offensive phrase. She did not recall anything else that night. However, when Tootell came into the bar a bit later he had scratch marks on his face, near his eyes, and there was blood coming from his nose area. Dennis said she was present for the discussion with other hotel staff after the fight but did not understand what was being said. She said Fountain did not tell anyone what to say to the police and that she did not hear Tootell threaten anyone. Martin was not present during these conversations. Dennis said both applicants were "hard-working, trustworthy, loyal publicans".

50. Shane Ward said that he was in the Golden Trout Hotel on the evening of 19 September 1998 and played a few games of pool with the complainant, whom he had not met before. Ward said the complainant appeared more "drug affected" than drunk. At one point the complainant was absent for 15 or 20 minutes, and when he returned was markedly worse and unable to finish their game of pool. He went and sat on a stool "and basically fell asleep ". At approximately 10.30 p.m. the applicants went over to the complainant to move him from the hotel. They woke him up and there was an argument as he walked out of the hotel with them. The complainant did not want to go and wanted to be left alone and was not co-operating. Ward said the applicants were not behaving aggressively. Ward recalled that the complainant at one stage had done something like grab his groin and said the words "lick my balls". Ward said that the complainant was taken outside and he then heard the sound of scuffling or fighting, and the complainant yelling in anger. At some stage he heard the words, "We can't hold him down forever. We're going to have to tie him up". He said that he recalled the barman came running back inside saying, "We can't hold the little bugger down". He heard yelling and screaming from outside and said that it all had lasted approximately 15 minutes. After the bar staff had returned inside, Ward could still hear the complainant outside moaning and screaming. He did not hear either applicant threaten anyone or tell anyone what to say to police.

53. Evidence was also given by Senior Constable Robert Ashe and Detective Senior Constable Stewart Walls. Ashe had responded to a call to attend the Golden Trout Hotel on 19 September 1998. He gave evidence of arriving at the hotel at 11.05 p.m. and finding the complainant lying outside the entrance to the main bar face down, with his hands secured behind him and his ankles also bound by plastic zip ties. He was unconscious and breathing shallowly. He vomited as he was rolled over and had obvious bruising to his face, ears and cheek. Ashe gave evidence of the accounts he had obtained from those present, including the applicants. Tootell gave an account which was basically that he had been acting in self-defence and Fountain generally confirmed Tootell's account. Walls gave evidence of interviewing the applicants on 8 December 1998. In April 1999, however, Ashe received further information, and as a result Luckman and Ryan were interviewed and charged. Fountain and Tootell were then interviewed a second time on 30 April 1999 and tape recordings of those interviews were played to the jury. During the interviews both applicants maintained they were acting in self-defence.

56. Ground 8 of each application in relation to conviction was in the following terms -

The judge erred in that he failed to warn the jury as to: (i) the manner in which the jury ought scrutinise, treat and/or consider; (ii) the dangers of basing a conviction upon: the evidence of the Crown witnesses Joseph Ryan and Stewart Luckman.

60. Mr Holdenson, for the applicants, submitted that the prosecution witnesses Ryan and Luckman were both clearly accomplices. Each of those witnesses had, on the evidence, a reason to shift blame on to the applicants. Accordingly, he submitted that the judge had been under a duty to give the jury an accomplice warning in respect of each of these witnesses. The judge had, however, failed to give the jury any warning whatsoever in respect of the dangers in acting upon the evidence of either of these prosecution witnesses. Reliance was placed on R v. Pen He and Sambo Bun[1]. Mr McArdle, for the Crown, accepted that it was inevitable that the jury would have found that Ryan and Luckman were accomplices. He pointed to the fact that no accomplice warning had been sought by defence counsel, nor given by the trial judge. Mr McArdle submitted that notwithstanding the absence of an accomplice warning there had been substantial evidence implicating each applicant even if the jury had disregarded the evidence of the accomplices and therefore reliable corroboration of the accomplices' evidence. Accordingly, he submitted, the failure to give an accomplice warning, together with other so-called deficiencies, did not individually or cumulatively occasion a miscarriage of justice. I shall turn to this evidence after considering the legal issues involved.

63. In He & Bun Phillips, C.J. and Batt, J.A. (with whom Buchanan, J.A. agreed) said[2] that if a prosecution witness was an accomplice, the trial judge was required, as a matter of law, to give the jury an accomplice warning, and that this was so even though such a warning had not been sought and indeed had been disavowed. In that case their Honours said[3] that the failure to give the required accomplice warning meant that there must be a new trial unless the Court was of opinion that no substantial miscarriage of justice had occurred, so that the proviso to s.568(1) of the Crimes Act 1958 would be applied. This formulation appears to have been taken from what was said in Davies v DPP[4]. Phillips, C.J. and Batt, J.A. then referred to R v. Teitler[5] for the proposition that -

"Where a warning that the evidence of an accomplice ought as a matter of law to have been, but was not, given there was a miscarriage of justice and that the proviso should not be applied further 'unless there was, apart from the evidence of the accomplice, substantial evidence implicating the applicant and upon which the jury could properly have convicted the applicant even if they had disregarded the evidence of the accomplice'."

67. A not dissimilar approach was taken in R v. Georgievski[6] where Winneke, P. considered a prosecution submission that a judge's direction to the jury that they should regard an accomplice as a "potentially dangerous witness" and "should treat his evidence with caution" was sufficient to meet the circumstances, saying -

"There seems to me to be a discrete difference between such a direction and the warning, given with the authority of the judge's office, that 'It would be dangerous to convict on the uncorroborated testimony of [the accomplice] unless thoroughly convinced of its truth and accuracy'. The former direction focusses attention only upon the potential unreliability of [the accomplice] as a witness whereas an 'accomplice warning' focusses on the unsafety of convicting upon such evidence - the core of the jury's function. The giving of such a warning would also have required attention to be given to whether there was any reliable corroboration of [the accomplice's] evidence in so far it implicated the applicant. Such corroboration could only have been found in the identification evidence which ... was anything but reliable so far as it concerned the applicant. I am, accordingly, of the view that the learned judge was in error in concluding that an accomplice warning was unnecessary. The failure to give such a warning in a case where there is no reliable corroboration of the accomplice's evidence will, ordinarily, lead an appellate court to quash the verdict."

71. In this Court Mr McArdle submitted that the proposition in He & Bun had been stated too widely and should not be read as one of universal application. He drew the Court's attention to two decisions of the Full Court of Victoria in R v. Anthony[7] and R v. Gallagher[8], in which it was held, in effect, that the rule as to accomplice warnings was not absolute. In Gallagher, for example, very experienced defence counsel had at trial strenuously submitted that no accomplice warning should be given. Young, C.J., Kaye and Gray, JJ. said[9] that -

"The contention at the trial that no accomplice warning should be given was plainly in the best interests of the applicant and it would be nothing but absurd for this Court to say now that there had been a miscarriage of justice as a result of the trial judge's failure to give such a warning. It was contended that the learned judge had no discretion in the matter and we were referred to certain authorities which were said to support that proposition. In refusing to give the warning asked for by the Crown, the learned judge properly observed that the purpose of the giving of the accomplice warning is to protect the position of an accused person ... Nothing in the case suggests that the interests of the accused would have been served by the giving of the warning. To insist upon giving the customary warning as to the evidence of an accomplice in circumstances where to do so could not serve the interests of the accused or would be positively damaging to those interests would be to elevate the rule of practice above the end which it is designed to produce ..."

75. It is not in my view necessary for this Court to decide whether Mr McArdle's submission is correct and whether there is, in effect, an exception to the general rule requiring an accomplice warning, in circumstances where the giving of such a warning could not serve the interests of the accused or would damage his interests. For there is no suggestion in the transcript that defence counsel here gave any thought to the desirability of the judge warning the jury as to the danger of relying on the evidence of accomplices. It is probable that the jury placed substantial weight on the evidence-in-chief of Luckman and Ryan (Mr McArdle later submitted that their evidence was part of the Crown case for the purpose of rebutting any suggestion that the convictions were unsafe or unsatisfactory) and must have disregarded the concessions made by them in cross-examination, the effect of which at their highest was that the applicants had done no more than act in necessary self-defence. Defence counsel certainly did not submit that an accomplice warning should not be given. If the rule as to the giving of an accomplice warning is not of general application, or if there are exceptions to the general rule, I would nevertheless take the view that an accomplice warning was required to be given in the present case.

78. Taking the test suggested in He & Bun, the issue then becomes whether there was substantial evidence implicating the applicants, even if the evidence of Luckman and Ryan was completely disregarded. Cf. He & Bun[10] and Teitler[11]. Mr McArdle relied on the following evidence -

(a) that of the complainant and in particular his descriptions of the assault; (b) the evidence of Gary Martin. It was submitted that while Martin had made concessions in cross- examination, his evidence could not be disregarded in its entirety; and (c) the nature of the injuries and the objective circumstances of the encounter, such as the victim's size, his injuries compared with the others, his build, and the fact that the fight was three against one man who was drunk.

82. The complainant himself, as will have been apparent from the statement of his evidence referred to above, remembered very little of what had occurred during the fight. It is true that he remembered being kicked when he was lying on the ground, and somebody on his back whilst he was lying chest down on the ground. But evidence had been given by other witnesses which, if accepted by the jury, was to the effect that great difficulty was being encountered in restraining the complainant and that he, in effect, was continually attempting to renew hostilities. Martin's evidence plainly had to be treated with considerable caution. He had admitted that he made his statement to the police because he hated the applicants and his evidence in cross-examination very largely contradicted what he had said in his evidence-in-chief. While the objective circumstances showed clearly enough that the complainant had suffered serious injuries in the fight in which he was outnumbered, I do not think that the supposedly objective circumstances could be said to amount to substantial evidence implicating the applicants or that it is possible to say that no substantial miscarriage of justice has occurred in consequence of the failure to give the accomplice warning. I would therefore uphold ground 8.

Ground 3 That the judge erred in that he failed to give any directions to the jury in respect of the use the jury could make of the evidence that Joseph Ryan and Stewart Luckman had pleaded guilty to the same offences upon which the applicants were tried.

Ground 4 The Crown prosecutor in his final address to the jury made erroneous submissions as to the use the jury could make of the evidence that the Crown witnesses Ryan and Luckman had pleaded guilty to the same offences upon which the applicant was tried.

87. These grounds were argued together and it is convenient to deal with them in the same way. Both Ryan and Luckman under cross-examination gave answers which supported the view that the applicants had acted in necessary self-defence in the encounter with the complainant. Accordingly, in re-examination, evidence was led by the Crown prosecutor that both Ryan and Luckman had pleaded guilty to the very offences upon which the two accused were being tried. Mr Holdenson accepted that in light of the content of the cross-examination of these witnesses, it could not be said that the evidence was inadmissible, and, in any event, no objection was made by defence counsel to the evidence. In his address to the jury the prosecutor attacked the credibility of Luckman and Ryan and then said -

"But the bottom line is, is that all those men gave evidence on oath about and two of them have pleaded guilty in relation to these offences. What, pleaded guilty to nothing, if it was justified? The fact that they pleaded guilty can't be used against these respective accused people because everybody is entitled to an individual trial. You have to assess the evidence against each particular person. But nevertheless the significance is that these two men admitted their guilt in unlawful behaviour and gave evidence of it. So really the scenario is that even in cross-examination, particularly in relation to Luckman who you might well think was almost ashamed to be in the witness box and admit what had happened on that particular night. That he was quite prepared almost to say, well, yes, the actions were justified but that was totally inconsistent with his behaviour leading up to this trial and his admissions and pleas of guilty in relation to these matters."

It will be seen that the prosecutor told the jury that the fact that Luckman and Ryan had pleaded guilty could not be used against the applicants because everybody was entitled to an individual trial, and the same point was made by defence counsel in his address. No mention was, however, made of these matters by the judge in his charge, nor was any exception taken by counsel to the absence of any such warning. In Moore[12] Lord Goddard referred to the accepted principle that a man's confession is evidence only against himself and not against his accomplices, and that if a prisoner pleads guilty it does not affect his co-prisoner. In Cowell[13], a decision of the Court of Criminal Appeal of New South Wales, Street, C.J., after referring to Lord Goddard's statement in Moore, said[14] that -

"Trial judges are astute to ensure that juries are made plainly aware that a plea of guilty by a co-accused is not to be taken into account in the slightest degree in determining the question of guilt of those who remain in charge of the jury."

Then, in R v. Burnett[15] Nicholson, Owen and White, JJ. in the Court of Criminal Appeal in Western Australia said[16] that -

"It is certainly the case that where evidence of a plea of guilty of a co-offender is admitted the jury must be very specifically informed of the limited use that they are entitled to make of that piece of information."

Cf. R v Fowler[17]; Romeo v. R.[18].

96. Mr McArdle accepted that the authorities to which reference has been made in the preceding paragraph put the judge's obligation to give the warning in positive, indeed sometimes mandatory, terms. He accepted that it would have been desirable in the present case for the judge to have given the warning that the jury should not use the pleas of guilty by Luckman and Ryan to these offences as evidence of the guilt of the applicants. He submitted, however, that since both prosecution and defence counsel had made the point during addresses to the jury, both had been content to leave the position there, and that the absence of any exception to the judge's charge or to the prosecutor's address had been a strong indication in the context of the trial that none of the parties perceived any injustice or error in what was done.

99. Mr Holdenson, on the other hand, put it that cases such as Cowell and Burnett required the provision of firm directions by the trial judge, submitting that the cases made it clear that where there is a danger that the jury might use evidence of a plea of guilty as tending to prove the guilt of the applicants, the jury must be directed against such reasoning. He submitted also that in the passage quoted above the prosecutor had twice invited the jury to use Luckman's and Ryan's pleas of guilty as evidence of the guilt of the applicants. The pleas of guilty by Luckman and Ryan were, he submitted, not inconsistent with the applicants having themselves acted with lawful excuse. Ryan and Luckman may have given the complainant an unlawful beating, while at the same time the applicants might have been acting properly in defence of themselves and the others present. This distinction had been drawn neither by the prosecutor nor the judge, nor of course by defence counsel. He submitted that it was clearly not the case that any forensic decision had been made by defence counsel; rather it was simply a case of error, and that no forensic decision could have justified the failure to take exception to the absence of appropriate comment by the judge as to the limited use that the jury could make of the pleas of guilty by the two Crown witnesses.

102. In my view Mr Holdenson's submissions on these grounds should be accepted. There was, I think, plainly a possibility that the jury would make improper use of the evidence that Luckman and Ryan had pleaded guilty to the same offences. The prosecutor's submission to the jury certainly did not make it clear that the pleas of guilty by Luckman and Ryan could only be used to rebut any contention by the defence that pressure had been placed by the investigating police officers upon these witnesses to make a statement in support of the prosecution case or to undermine the concessions made by the witnesses under cross-examination in favour of the case of self-defence made by the applicants. On the contrary it seems to me that the prosecutor's words invited the jury to treat the pleas of guilty as evidence tending to establish the guilt of the applicants. On this basis the evidence clearly had the potential to be prejudicial to the applicants who were being alleged to be co-offenders of the persons who had pleaded guilty. In these circumstances the judge should have warned the jury appropriately, as stated in Cowell and Burnett. I would uphold these grounds also.

Ground 5 The judge erred in his directions to the jury in that he failed to direct them as to the consequences which flowed should the jury find that the evidence of the records of interview conducted by the police with the applicants and the statements made by the applicants to investigating police officers were false.

Ground 6 The judge erred in failing to direct the jury that if the jury concluded the applicants had lied (or not told the truth) to the investigating police officers, such did not constitute evidence of the applicants' guilt.

107. Having regard to the view I have taken in relation to grounds 3, 4 and 8, it is unnecessary for me to deal at length with these or indeed any of the remaining grounds. If the applicants are to be retried, however, it may be desirable to mention that during the trial the prosecutor at several points in his address drew attention to what were said to be lies in the applicants' statements during their records of interview with the police. He then used these lies in such a way as to lead to what was, I think, a fairly clear inference that the applicants were guilty as charged. For example, the prosecutor at one point said -

"Is it really being suggested that it was a fair fight in relation to these matters and that it was justified? If it was why the need to lie to the police and make up versions of the event if the actions were justified on this particular night."

Later, after referring to the pleas of guilty by Luckman and Ryan, the prosecutor said -

"As I say to you it is clear that this investigation was closed as of December 1998 but reopened. As I say there is support for this false story that has been put forward on the basis that Fountain is saying that she was the one hitting them, she was the one who got the cue. No, that's not right, that scenario is not right. No-one says that in relation to it. She is lying to the police and maintaining a lie to the police and she has to maintain the lie to the police throughout when she is interviewed in December 1998 and in April 1999."

The judge gave no directions to the jury with respect to the alleged lies in the applicants' records of interview, nor did the judge direct the jury that they must not adopt a process of reasoning that, where a person has been shown to have lied to the police, this constituted evidence of that person's guilt. Again, no exception was taken by defence counsel, and there is no indication that any thought was given to the necessity for a direction from the judge. In Zoneff v R[19], Gleeson, C.J., Gaudron, Gummow and Callinan, JJ. proposed a form of direction which might appropriately have been given in the circumstances and which would have allayed any concern that might have existed arising from what had been put by the prosecutor to the jury. In this Court Mr McArdle accepted that such a direction should have been given, although, as might be expected, he relied on the failure to take exception. I agree that a Zoneff direction should have been given, although I should not on this ground alone have upheld the application for leave to appeal against conviction.

Ground 1 That the convictions were unsafe and unsatisfactory.

Ground 2 The verdicts of the jury are unsafe and unsatisfactory in that no jury, properly instructed and acting reasonably, could have convicted the applicant.

116. It is necessary now to turn to consider grounds 1 and 2 because Mr Holdenson's submission was that if the Court were to take the view on any of the grounds that the appeal against conviction should be allowed, the applicants were entitled to an acquittal on counts 1 and 2, the convictions being unsafe and unsatisfactory. He put it that the evidence was sufficient to "get the Crown over the line" in relation to counts 1 and 2 but submitted that the concessions made by Ryan and Luckman under cross- examination were such as to prevent the Crown proving the case to the requisite standard. In substance the submission was that the evidence-in-chief could not be read in isolation but must be read in combination with the evidence in cross-examination. Mr Holdenson later withdrew the concession that there was on any view sufficient evidence to support the convictions on counts 1 and 2. No similar submission was made in relation to the conviction on count 3.

119. The argument that the applicants were entitled to an acquittal on counts 1 and 2 ran as follows. The complainant had accepted that such little recollection that he had might have been mistaken. He could not dispute the fact that he had misconducted himself as described by the witnesses before his removal from the hotel. He could not state that he was not the initial aggressor. There was evidence that the complainant was acting as though he was on drugs and was showing great strength. He had fallen asleep on a stool, and then, when he fell from the stool, the applicants went to assist him and without incident took him outside the hotel. There was evidence that the complainant came back into the hotel, behaving in an improper and offensive manner, and was then asked to leave. Mr Holdenson placed particular reliance on evidence which was given at various points that there was a fight which no-one was "winning". The applicant Fountain yelled for help. It was dark. It was a frightening situation in which things happened quickly. The complainant "removed" a "chunk" of Tootell's hair. There was evidence at one point that Tootell was trying to defend himself and that Ryan joined in the fight in order to defend Tootell. He relied on the fact that Ryan said that he was trying to get control of the complainant and finish the fight as distinct from merely exacting revenge; that Luckman intervened with the pool cue in order to bring the fight to an end and to protect Tootell; and a variety of other pieces of evidence which he submitted tended to support the view that the complainant had continued to fight and, if not restrained, might have created havoc and endangered others. He submitted that there was evidence which supported the view that the applicants did not use excessive force, and that the complainant had been tied up in order to preserve the safety of others present. In other words, he submitted that on all the evidence the prosecution could not establish that what occurred outside the hotel, subsequent to the removal of the complainant from inside the hotel until the police arrived, was not unreasonable.

122. In all the circumstances, so it was said, the jury could not find beyond reasonable doubt that the applicants had acted unlawfully in doing what they did. Upon the proper assessment of all this evidence the court could therefore only conclude that guilt on counts 1 and 2 was not the only rational inference that the circumstances would enable the jury to draw. Reliance was placed on Knight v. R[20] and Cutter v. R[21].

125. In response Mr McArdle submitted that there were two avenues of proof, the evidence of the witnesses to the event, Ryan, Luckman and Martin, together with what the victim could remember of the assault, including that he was assaulted while face down on the floor; and, secondly, inferences to be drawn from the condition of the victim prior to the incident, his build and the nature of the injuries inflicted upon him, together with the evidence of his condition when he was first seen by the police. Furthermore, at least three men took part in the attack, using a billiard cue as a weapon. The photographs of the victim, together with the medical evidence, certainly demonstrated that the complainant had been seriously injured and his injuries were consistent with his having been ferociously beaten. I have referred to Dr Carseldine's evidence that the complainant had suffered severe chest trauma, as might often occur in a motor vehicle accident. These avenues of proof might also be supported by the evidence on count 3 as suggesting that the applicants had attempted to pervert the course of justice. Such evidence, if accepted, could in my view have provided the basis for a contention that by so acting the applicants demonstrated a consciousness of their guilt on the first two counts. No such argument was made at trial, and Mr Holdenson strenuously argued that the Crown could not now change tack, as it were, and attempt to establish the applicants' guilt on counts 1 and 2 at any retrial by this new route. Accordingly, so it was submitted, on any independent review by this Court of the evidence for the purpose of deciding whether the applicants are now entitled to be acquitted on counts 1 and 2, this Court should not itself give any weight to such an argument.

128. 36 In my view, these arguments are anything but persuasive. I would accept that there may be good reasons why, in a retrial, the Crown should not pursue different ways of committing an offence, or possibly different paths in evidence. But if the

prosecution were in a retrial to rely on the evidence supporting count 3 as showing a consciousness of guilt by the applicants of the offences constituting counts 1 and 2, the evidence would be no different to the evidence called during the trial, the only variation being as to how the evidence would be deployed. In these circumstances there is, I think, no basis for arguing that the Crown would, as it were, be having an unfair "second go", nor would it be necessary to accumulate and tender further evidence for the purpose. If it were necessary to decide the point, I would reject Mr Holdenson's argument on this issue. But in my view it is not necessary finally to decide the point now because I think that there is, having regard to all the circumstances set out above, evidence upon which it was open to the jury to be satisfied beyond reasonable doubt that the applicants were guilty on counts 1 and 2. What should be made of the variations in the evidence of Luckman and Ryan in light of their statements to the police, and whether the whole of the evidence is sufficient to establish the guilt of the applicants on counts 1 and 2 beyond reasonable doubt is, I think, very much a matter for the jury.

132. In my opinion, the applications for leave to appeal against conviction should each be granted on grounds 3, 4 and 8, the convictions below quashed, and a retrial ordered. I note that this was itself the second trial of the applicants, the first, which began on 12 February 2001, having ended in the jury being discharged without verdict. The applicants have now served in custody half the non-parole period that was fixed, the applicant Tootell having spent some five weeks in police cells. The Director will, no doubt, take these matters into consideration in deciding whether there should be a third trial of the applicants.

144. The order of the Court is that the applications for leave to appeal against conviction are granted. The applications are treated as having been instituted and heard instanter and allowed. The convictions below are set aside and the sentences quashed. The Court orders that the applicants be retried on all three counts.

[1] [2001] VSCA 58 at [27]

[4] [1954] A.C. 378 at 399, per Lord Simonds, L.C.

[5] [1959] VicRp 54; [1959] V.R. 321 at 330.

[6] [2001] VSCA 65 at [18]- [19].

[7] [1962] VicRp 63; [1962] V.R. 440 at 446.

[8] [1986] VicRp 25; [1986] V.R. 219.

[10] [2001] VSCA 58 at [30].

[12] (1956) 40 Cr.App.R. 50 at 53-54.

[13] (1985) 24 A.Crim.R. 47.

[15] (1994) 76 A.Crim.R. 148.

[17] (1985) 39 S.A.S.R. 440, 448-449.

[18] [1988] W.A.R. 304 at 307, 309-310.

[19] (2000) 200 C.L.R. 234 at [23].

[20] [1992] HCA 56; (1992) 175 C.L.R. 495.

[21] [1997] HCA 7; (1997) 143 A.L.R. 498.