R v Georgievski [2001] VSCA 65

5. The applicant was one of three men who, on 13 June 1999, went in search of heroin. The other two were Duane Wallis and George Josevski. In Wallis' car they went first to Fitzroy and then to Smith Street, Collingwood, where their efforts were unsuccessful. Whilst in Collingwood they met another man, John Tims, who joined them in Wallis' car. One of them suggested that they might be able to purchase some heroin in Richmond, following which Wallis drove the car to the neighbourhood of the Housing Commission flats in that suburb. There they saw another man, whom they described as "Asian". This man apparently communicated with them in some form of "sign language" which indicated that he could direct them to the outlet they were looking for. Josevski and Wallis followed him to a house at 38 Elizabeth Street where they were introduced to a girl ("Lee-Anne" or "Louise") who sold them two foils of what she said was heroin for $185.00. This money had been pooled from funds supplied by Josevski, Wallis and the applicant. They then returned to the car, apparently joined by the "Asian man", who seems to have regarded himself entitled to a share of the proceeds. Josevski and the applicant commenced to mix for themselves a "fix" whilst they were driving, but - to their alarm - were satisfied that whatever was in the purchased foils was not heroin. Regarding themselves as having been duped, they decided that they would return to confront the mendacious vendor and recover their money. Accordingly Wallis turned the car around and drove back to Elizabeth Street. Wallis parked the car in the vicinity of the house where the purchase had been made. It would seem that all of the occupants alighted, one armed with a knife and another with a steel bar. According to Josevski, who was the only one to give evidence, he went to the premises at No.38, whilst his three compatriots - whose sense of direction appears to have been dulled - ran to the front of the premises at No.36. What became of the "Asian man" is not clear from the evidence.

8. Whatever sins the occupiers of the house at No.36 might have committed in the past, one of them was not the sale of the substance which had been purchased earlier in the day. The first that those occupiers knew of the grievance of the applicant and his friends was when they heard, and then saw, three of them break through their front door and into their hallway. At about 11.30 a.m. those occupiers (Mr. McGrath and Ms O'Brien) were confronted by three angry young men - one carrying what appeared to be a baseball bat (this, it would seem, was the steel bar) and another of them wielding a knife. Not surprisingly, they were alarmed. The men were yelling out that they had been "ripped off" by a person whose name appeared to them to be Lee-Anne or Louise. With presence of mind Ms O'Brien told them that they must be looking for the girl next door. They went back out the front door of No.36, which they had broken in their forceful entry, and made their way to the next door house. Mr. McGrath set about ringing the Police who appear to have been in the vicinity and who arrived in very quick time. When they arrived they saw three men who were either outside or within the curtilage of the house at No.38 Elizabeth Street. O'Brien, who had previously closed her door, came out again when the police arrived and noticed another man hiding in her front yard. This man appears to have been Josevski who told her he was trying to evade "the Jacks". The four men were quickly rounded up and taken into custody. The three who were found outside No.38 were "grouped together" and made to sit on the footpath. At the time when they were "rounded up" Ms O'Brien made an identification of the three men seated on the footpath as the men who had confronted her in the house. McGrath later gave a description of those three men to the Police. Their identifications were, not surprisingly, less than perfect but it seemed that each agreed that the man wielding the "baseball bat" was the "tall one" with the "Mexican" moustache, (this man was clearly Tims); and the man wielding the knife was "of olive complexion". Photographs were shown to them in Court, and, again, Tims was identified as the man with the "baseball bat". There was no dispute that the man with the knife was Wallis. There appeared to be confusion between them as to whether Josevski or the applicant was the "third man", but each said that that person was wearing a "purple coloured top".

11. It would seem that the police had readily accepted a statement made by Josevski that he had never entered the premises at No.36, but that he had gone to No.38 which, as he said, were the premises from which the earlier purchase had been made. In any event, he was charged with various offences relating to being unlawfully upon the premises of No.36 - where he had been found hiding from police - using heroin and attempting to use heroin. He was earlier dealt with in the Magistrates' Court and fined $250. The other three, namely Wallis, Tims and the applicant, were charged with the aggravated burglary of No.36 and criminal damage to that property. Wallis pleaded guilty and, on 30 May 2000, a County Court judge sentenced him to a total effective sentence of 15 months with a non-parole period of 6 months. The applicant and Tims were presented for trial together and were each convicted by the jury. Tims, like the applicant, received a total effective sentence of 18 months with a non-parole period of 9 months. Tims has not appealed, no doubt because he had been clearly identified. On the trial, the Crown called Josevski as its principal witness as to the facts. O'Brien, McGrath and the attending police officers were the other witnesses. Counsel for Tims submitted, at trial, that the Crown was also obliged to call Wallis. The prosecutor declined, informing the Court that he regarded Wallis as unreliable. Again, not surprisingly, his Honour refused to interfere with the prosecutor's discretionary function.

14. It was inevitable that the issue which dominated the trial of the applicant was one of identification. That issue arose because it was at the forefront of the Crown case that the three men who entered the premises at No.36 as trespassers were Wallis, Tims and the applicant, and that the man who had not entered those premises was Josevski. It does not seem to have been seriously argued that the "Asian man" was one of the entrants, largely because Ms. O'Brien and Mr. McGrath each said that none of the three entrants was of Asian appearance. What, however, is surprising to me is that the case was not presented on the basis that the four men, who believed that they had been "ripped off" and were returning with arms to get their money back, were acting in concert - at least in so far as the burglary was concerned. There was always going to be a dispute between the Crown and the applicant as to whether Josevski was one of the entrants, a dispute which was bound to bring the prosecution's identification evidence into sharp focus; as well as the reliability of its principal witness, Josevski. It seems to me that, in the circumstances proven by the undisputed evidence, it would have been well open to assert that, whichever three of the four entered the premises they did so pursuant to an agreement or understanding, to which all four were a party, that such force would be used to enter the premises as was necessary to achieve repayment of their moneys. The prosecution only relied upon the doctrine of concert to establish that the three who entered the house were all guilty of "aggravated" burglary - the jury being invited to find that the unarmed third man must have agreed that the entry would be one in which weapons would be carried. It is no doubt because the judge had directed the jury on the principles of concert that the jury were themselves perplexed as to why that doctrine could not have been used to attach guilt to the man who remained outside. They returned during their deliberations and asked that very question. However his Honour directed them, as I think he was bound to do, that they could not use the doctrine for that purpose because that had not been the way in which the Crown had presented its case.

17. That is why, in the context of this trial, the evidence of identification of the actual entrants into No.36 became of significance. During the course of the trial counsel for the applicant made a strenuous attack upon the evidence of Josevski, and was able to point to several areas of the evidence of O'Brien and McGrath which suggested that their evidence purporting to identify the applicant as one of the entrants was unreliable. At the end of the Crown case, he submitted that the evidence fell short of making a case that the applicant was one of the entrants. Whilst he conceded that there was "some evidence", although tenuous, upon which the jury could find that the applicant was one of the men who had entered the premises at No.36[1], he submitted that the judge should invite the jury to consider acquitting his client at that stage because of the inherent unreliability of the evidence upon which the Crown was relying to implicate him[2]. The learned judge declined to act on this submission, and no point has been made on this appeal that he was wrong to do so.

20. The grounds upon which the applicant relies to support his application for leave to appeal against his convictions are two-fold. First he asserts that the judge's directions to the jury on the issue of identification were erroneous and inadequate. Secondly he asserts that the verdict of the jury on each count was unsafe in the sense that this Court, assessing the evidence for itself, should conclude that the jury, properly applying themselves to that evidence and in accordance with the instructions given to them, could not reasonably have come to the verdicts to which they came[3].

25. Mr. Dann, who appeared for the applicant in this Court, acknowledged that the judge's directions to the jury on the issue of identification were detailed. Nevertheless he submitted that they were erroneous because, although they informed the jury in general terms of various factors which might render evidence of identification unreliable, they did not "isolate and identify for the benefit of the jury [matters] of significance which may reasonably be regarded as undermining the reliability of the identification evidence"[4].

28. At the end of the day, I do not think that this submission has been made good. I agree with Mr. Dann that there were many aspects of the identification evidence given by Mr. McGrath and Ms. O'Brien which impacted upon its reliability, particularly insofar as it related to the identification of the "third man" who entered the premises at No.36 Elizabeth Street; that is the man who was not carrying a weapon. There was, as I have said, a clear issue before the jury as to whether that man was the applicant or Josevski. The relevant evidence was said to derive from three separate occasions of identification. First, the observations made by McGrath and O'Brien in the "very short time" when they were confronted by the three men in the hallway of the premises; secondly when the "group of three men" were in the custody of the police on the footpath outside the premises; and finally when O'Brien and McGrath were giving evidence in court by reference to photographs which were shown to them. With regard to each occasion the evidence was far from satisfactory so far as it went to place the applicant as one of the three men who entered the premises. The opportunity to make an accurate identification in the hallway was extremely limited both in time and circumstance. O'Brien and McGrath each agreed that it was dark, that the time was "fleeting" and that they were "in fear", particularly of the men in the front who were carrying the weapons. It was not in dispute that, if the applicant was one of the men in the premises, he was not in possession of a weapon. The case was conducted on the basis that Wallis was carrying the knife and that the "baseball bat" (which was in fact a steel bar) was in the possession of the tallest of the men with the moustache, who could only have been Tims. That meant, of course, that if the applicant was present he could only have been "the third man". O'Brien initially said that he was the man "at the rear" and that he was the "shortest of the three "and had "short hair". When it was pointed out that this description could only fit Josevski, not the applicant (who was taller than Wallis and had shoulder length hair), she said that the "third man" must have been at the front, and not the back. When shown the photographs of the four men in court, she first identified Josevski as the "third man" in the premises; but then recanted saying that he was the man whom she later saw hiding in the yard of the premises who was not one of the three men in the house. McGrath said that he "never really got a good look at the man behind [those with the weapons], all I can really say he was wearing a purplish bomber jacket kind of thing" (the photographs - which were taken on the day - showed that Josevski was wearing a bomber jacket). Although at the trial and when shown the photographs, McGrath said that he thought the man with the knife was the applicant, he later conceded that he was "in error" and that Wallis was the man with the knife. He again agreed he could give no description of the "third man" who was behind the men with the weapons and accepted that, because Josevski was the man wearing the bomber jacket, he may have been the "third man". He finally said that the applicant may not have been one of the men in the house.

31. So far as the second occasion of identification was concerned, O'Brien said that she identified the group of three men in the custody of police outside No.38 as the three men who had entered the house. The police gave evidence that both O'Brien and McGrath had identified those three men (who included the applicant) as those who had been in the premises of No.36. However McGrath said he had never been asked to identify a group of three men. O'Brien said that she was able to identify the "group of three" because she had followed their movements from the time they left the premises at No.36, had gone to the premises of No.38, and had then been taken into the custody of the police. However that evidence was inconsistent with the evidence of McGrath who said that, after the three men had left the premises at No. 36, he and O'Brien had retreated inside and had shut the door which he had fortified by wedging a chair behind it. In any event, he said that you could not see the front of the premises of No.38 from the doorway of No.36 because of the trees which separated the two premises. O'Brien agreed that, when the applicant had been placed in the police vehicle she was asked by a police officer to look at the applicant for the purpose of identifying him as one of the men who had entered No.36 and that she had shaken her head, signifying that she could not recognize him as one of the men.

34. The third occasion of identification was at the trial using the photographs. It was not in issue that such evidence was most unreliable and his Honour so directed the jury. The police conceded that no formal identification parade had been conducted.

37. I have reviewed the evidence of identification in some detail not only to demonstrate its potential weaknesses vis a vis the applicant, but more particularly for the purposes of evaluating Mr. Dann's submission that his Honour had failed to use the authority of his office to isolate and identify those weaknesses for the benefit of the jury. In evaluating that submission it would, I think, be pointless to rehearse all of the directions which his Honour gave about the identification evidence. Those directions cover many transcript pages. It is sufficient for me to say that I have read those directions more than once and that it seems to me that the submission is unwarranted. It is true that, in the course of giving his directions, the judge did tell the jury that the evidence was a matter for them and that they were not bound by the views which he might have of it, or any comments which he might make about it. However, when read as a whole, his directions clearly identified the factors in the evidence which "may affect the consideration of the evidence in the circumstances of the particular case"[5], and were cogent and effective in relation to those circumstances[6]. In my view they went beyond a warning of a general kind and were sufficient to warrant the description of identifying the weaknesses to which I have referred as matters of significance undermining the reliability of the evidence[7]. It seems to me that his Honour identified all these weaknesses in terms which made it abundantly clear that they impacted upon the reliability of the identification evidence as a whole, and in respect of each occasion on which it was given. Mr. Dann submitted that his Honour "undid the good work" by suggesting to the jury that ultimately it was for them to determine whether the matters referred to might depreciate or enhance the powers of observation of O'Brien and McGrath. However, when read as a whole, the charge makes it obvious that his Honour was telling the jury that the identification evidence was pitted with weaknesses of a kind which depreciated its reliability. There is no set formula of words which is to be given to a jury for the purposes of isolating apparent weaknesses which the jury should take into account. In the long run the question for an appellate court is whether the instructions, when read as a whole, were sufficient to bring home to the jury that there were weaknesses in the evidence of identification which must be taken into account by the tribunal of fact in determining whether they can properly rely upon such evidence. I am satisfied that, so read, his Honour's directions adequately isolated and identified the weaknesses which undoubtedly existed in this case. Accordingly, as I have said, this ground of appeal is not made out.

41. What I have said so far is not the end of the matter. Mr. Dann submitted that, taken as a whole, the evidence was so unreliable and lacking in cogency that the jury, even on the assumption that they were properly instructed, could not reasonably have arrived at the verdicts which they recorded against the applicant. For relevant purposes, that evidence comprised the evidence of Josevski - which was accepted to be evidence of an unreliable witness - together with the identification evidence, the unreliability of which I have already identified. Indeed, in respect of the evidence relating to the identification of the applicant, his Honour told the jury:

"The identification of Georgievski by description or by reference to the photographs was, you might think, less than certain. If Wallis had the knife and Tims the metal pole, Georgievski would be the third man, the man described at times as shorter in stature and shorter in hair."

With regard to the evidence of Josevski, his Honour gave the jury a warning which he described as "a direction of law". He said that there were a "number of reasons why you should exercise caution in relation to [Josevski's] evidence". The reasons which his Honour gave were as follows:

* The fact that, at the time of the offences, Josevski was serving a "suspended sentence" which would motivate him to "downplay" his role in the instant offences.

* Josevski's concessions that he had lied to police about his heroin use on the day of the offences.

* His admission to police that he was, on the day of the offences, "that out of it" he could not remember.

His Honour told the jury that, because of these matters, Josevski was to be regarded as a "potentially dangerous witness" because he had a motive to "distance himself from the offences" and "slant his evidence" to implicate the others. His Honour further told the jury that they "should treat the evidence of such a witness with caution remembering that he may have a motive to conceal, exaggerate or even to lie". For these reasons, the jury "should be slow to rely on such evidence unless it is supported by other evidence of reliability ...". His Honour, however, did not identify what that evidence might be.

51. It was submitted by Mr. Dann that, if the jury had paid heed to these directions, they could not reasonably have concluded that the applicant was guilty. As the judge put it, the critical issue which the jury had to decide was:

"Who were the three men who went inside the house at No.36?"

"Even, more specifically, who were the two men who entered the premises with Wallis?"

In this context, so Mr. Dann submitted, the case against the applicant was less than satisfactory, depending as it did upon the combination of the evidence of a man who had been described as a "potentially dangerous witness" (upon whose evidence the jury had been told they should be slow to act unless confirmed by other reliable evidence) with the identification evidence which, insofar as it implicated the applicant, the jury had been told was "less than certain". Thus, so it was submitted, the conviction must have been based upon an accumulation of unreliable evidence. Although the jury were correctly told that they had to give separate consideration to the case made against each accused, there were certain compendious directions given to them which may well have been disadvantageous to the applicant in a case where the identification evidence was particularly strong against Tims, but inherently weak against the applicant. Thus the judge's direction that:

"If you were to accept Josevski's evidence on the critical issue of his movements, then in combination with the identification evidence, you may consider that there is sufficient evidence to convict an accused",

may well have redounded to the disadvantage of the applicant. Indeed, so Mr. Dann submitted, the fact that the jury had returned during their deliberations to ask whether:

"If [we] find that one person is outside the house and is acting in concert ... is this seen by the law as being guilty of aggravated burglary",

suggested that the jury were, at the least, troubled as to whether the applicant was within the house. In support of this submission, Mr. Dann pointed to the fact that the jury had clearly rejected Josevski's evidence that Tims had nothing to do with entering the premises and was not carrying a weapon of any sort. That evidence stood in stark contrast to the clear identification evidence of each of O'Brien and McGrath that the tall man with the moustache carrying the steel "pole" was in the hallway of No.36.

62. For my own part, I think that there is much to be said in favour of Mr. Dann's submissions that the verdict of the jury against the applicant is unsafe or, to put it in the terms of s.568(1) of the Crimes Act 1958 is "unreasonable or cannot be supported having regard to the evidence". Such a conclusion is not inconsistent with the conclusion that there is some evidence upon which, as a matter of law, the accused could have been convicted[8]. The question for this Court is whether it thinks that upon the whole of the evidence, it was open for the jury to be satisfied beyond reasonable doubt of the applicant's guilt[9]. In answering that question, this Court must not disregard the fact that it is the jury which is entrusted with the primary responsibility of determining guilt or innocence and that it has had the benefit of having seen and heard the evidence. However, if the evidence on the record "contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the [appellate] court to conclude that, even making full allowance for the advantage enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the Court is bound to act and to set aside a verdict based on that evidence"[10].

65. The respondent submitted that this was not a case which would allow the Court to conclude that the verdict against the applicant was unsafe in the sense which I have described. Whilst Mr. McArdle did not, I think, challenge the submission that the identification evidence, so far as it implicated the applicant, was "less than certain", he put it that this was not an "identification case" in the usual sense; rather it was a case in which the jury was entitled to find that the applicant had been "circumstantially identified" as one of the men who entered the house at No.36. This was so, he said, because, even if O'Brien and McGrath could not specifically identify the "third man" from their observations in the hallway, each had - in effect - followed the movements of those three men across to the premises at No.38 until they fell into the clutches of the police when they arrived. It was only later that the police had intercepted Josevski, by himself, in the garden of No. 36 - a fact not in dispute. It was these circumstances, he submitted, that entitled the jury to conclude that the "group of three", so intercepted by the police, were the same "group of three" who had been inside the house at No.36 and, thus, to more readily accept the evidence of Josevski that he had not been in the house and that of O'Brien that, when Josevski was ultimately intercepted, she was able to say that he was not "one of the three" who had entered the hallway of No.36.

68. For my own part, I do not find this submission compelling. Of course, it is true that there will be cases in which the identity of offenders will depend not so much upon witness identification of facial or other characteristics but upon broader circumstantial evidence of close association, both before and after the alleged crime, of those said to have been implicated in it[11]. However, there are two factors which militate against the respondent's submission. In the first place that was not the way in which, as I see it, the case went to the jury. Indeed the judge said in his directions to the jury:

"This is identification evidence. The Crown does not say in this case that you should approach the case as a mathematical equation, that is on the basis that if you were satisfied that the three men who entered the property could only have been from the potential five persons, that is Tims, [the applicant], Josevski, Wallis and the Asian man; and if you can exclude Josevski and the Asian man, you will be left with the three offenders."

However, more significantly, the evidence made it clear that neither McGrath nor O'Brien followed the movements of the three men who had been in No.36 "into the clutches of the police". Both said that they had gone back inside No.36 after the three intruders had left and moved to No. 38. Indeed McGrath said that he had "shored up" the front door. Furthermore Josevski said that he was with the other three around the premises at No.38. At one stage, he said, he was with the applicant at the rear of those premises. Thereafter, he said, he was at the front of those premises with other members of the group. At some time, whilst he was there with the applicant, the latter had told him that one of the occupants of No.38 had given him $85. It was only when the police came that he dissociated himself from the others. Although there was evidence from O'Brien and the police officers that, at the time when Josevski was apprehended in the front yard of No.36, O'Brien had said that he was not one of the men who had been in No.36, that evidence seems to have been coloured - and rendered less reliable - by the uncertainties which infected her evidence of identification of those who were in the house and her group identification of the three men who were assembled together in the custody of police. This evidence - in a real sense - suffered from the vice of "group displacement".

73. In the light of the evidence which I have reviewed, and having regard to the way in which the prosecution presented its case, I have come to the view that the evidence, so far as it could be said to implicate the applicant, was so unreliable and lacking in probative value that, even making allowance for the advantages enjoyed by the jury, the verdicts based upon that evidence were unsafe and should be set aside. I am fortified in that view because of the error which I think was made by the learned judge in not giving to the jury an "accomplice warning" in respect of the evidence of Josevski. One could scarcely blame the judge for failing to give such a warning when neither counsel pressed him to do so. At the end of the evidence and after the addresses of counsel were almost complete, his Honour said:

"There was one matter that I haven't raised with counsel. In relation to Mr. Josevski I had proposed to give the `dangerous witness direction', if I could term it that, but it doesn't seem to me that an accomplice direction is appropriate. He could only be regarded as an accomplice if the jury did not accept his evidence on that crucial issue, ... to start discussing corroboration, it doesn't really make much sense."

Not surprisingly, counsel for Tims did not take issue with the proposed course. Indeed he urged the judge not to give any warning at all in respect of Josevski's evidence. This was, no doubt, because Josevski had said that Tims was not, in any way, implicated in the escapade. It is, perhaps, surprising that Mr. Dann, who appeared for the applicant at trial, did not urge his Honour to give an accomplice warning - something which he conceded on this application. Perhaps both he and the judge were misled by the way in which the Crown was presenting its case - that is by charging only Wallis, Tims and the applicant with aggravated burglary of No.36 and by leading evidence from Josevski as a person not implicated in that crime. However, this was not a reason for failing to treat Josevski's evidence as the evidence of an accomplice if he was clearly particeps criminis in the offence charged, or it was open to the jury to find that he was. Where the evidence revealed, as I think it did, that Josevski was party to a common design with the others to return to the premises at Elizabeth Street, armed, and with a view to recovering money from the person who had "duped" them with such force as was necessary to achieve that object, I would have thought it clear that Josevski - whether he entered the house at No.36 or not - was acting in concert with those who did. Indeed I did not understand Mr. McArdle to submit otherwise. But, in any event, there was an issue for the jury to determine which, in itself, required the giving of a warning[12]. Although Mr. McArdle contended that the judge's direction to the jury that they should regard Josevski as a "potentially dangerous witness" and "should treat his evidence with caution" was sufficient to meet the circumstances, there seems to me to be a discrete difference between such a direction and a warning, given with the authority of the judge's office, that "it would be dangerous to convict upon the uncorroborated testimony of Josevski unless thoroughly convinced of its truth and accuracy". The former direction focusses attention only upon the potential unreliability of Josevski 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 Josevski's evidence insofar as it implicated the applicant. Such corroboration could only have been found in the identification evidence which, as I have previously said, was anything but reliable so far as it concerned the applicant.

78. 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[13].

81. In conclusion, I should note one other argument which was made by the respondent on this application. It was submitted that this Court should be prepared to more readily regard the verdicts recorded against the applicant as safe by reason of the fact that the applicant had stood mute upon his trial. Mr. McArdle relied upon Weissensteiner v. R.[14]. In rejecting this argument, it is sufficient to say that Weissensteiner is not authority for the proposition that an appellate court, in circumstances where the written record discloses that the prosecution evidence implicating an accused person is unreliable on its face, can more readily accept that verdicts based on that evidence are safe by reason of the fact that the accused elected not to give evidence. W eissensteiner's case concerned the propriety of the judge's comments to a jury, made in a statutory context different from that which exists in this State[15], to the effect that they might more safely infer guilt from the proven facts by reason of the accused's election not to give evidence of additional facts which must have been within his knowledge and which would explain or contradict the evidence relied upon by the prosecution. As a majority of the High Court has recently pointed out in Azzopardi v. R.[16], Weissensteiner was decided in a context in which there was no prohibition on judicial comment with respect to the failure by the accused to give evidence. The majority went on to say:

"There may be cases involving circumstances such that the reasoning in Weissensteiner will justify some comment. However that will be so only if there is a basis for concluding that, if there are additional facts which would explain or contradict the inference which the prosecution seeks to have the jury draw, and they are facts which (if they exist) would be peculiarly within the knowledge of the accused, that a comment on the accused's failure to provide evidence of those facts may be made. The facts which it is suggested could have been, but were not, revealed by evidence from the accused must be additional to those already given in evidence by the witnesses who were called. The fact that the accused could have contradicted evidence already given will not suffice. Mere contradiction would not be evidence of any additional fact. In an accusatorial trial, an accused is not required to explain or contradict matters which are already the subject of evidence at trial. These matters must be assessed by the jury against the requisite standard of proof, without regard to the fact that the accused did not give evidence."

In this case - as in all prosecutions - the Crown bore the burden of proving the guilt of the applicant. It sought to do so by relying upon evidence which, in my view, was less than satisfactory and which both justified and explains his undoubted right to remain silent and to submit that the prosecution had not discharged its onus of proof. The exercise of that election to remain silent could not be used as an implied admission of guilt, nor could it be used as a makeweight for the purposes of lending reliability to the prosecution evidence which it otherwise lacked. In the circumstances of this case, it would have been inappropriate, and contrary to the judge's instructions, for the jury to have so used it. It would be equally inappropriate for an appellate court to conclude that, because of the applicant's election to remain silent, it can more readily treat as safe verdicts of guilty which are not supported by evidence of sufficient cogency or quality[17].

86. For the reasons stated, I would allow the application and the appeal, quash the convictions and direct judgment and verdicts of acquittal be entered in favour of the applicant.

91. I have had the advantage of reading in draft the analysis that the President has prepared. I am well satisfied that it demonstrates, as his Honour has concluded, that the verdict should not be sustained having regard to the state of the evidence and the manner in which the Crown sought to rely on it for the case it set out to make. It ought to be said, I think, that neither the jury nor the learned trial judge should be regarded as bearing any appreciable responsibility for the unsatisfactoriness of the verdict. The jury showed by their questions of the judge an assiduous and conscientious application to their task, calling also for access to the transcript of evidence; and the judge had occasion to describe them as "a very active jury". Nor, I think, can his Honour be reasonably criticised for a failure to give the jury adequate instruction. The fact is, as the President has pointed out, that the Crown case was put below in a very curious way. Mr McArdle, who appeared for the respondent in this Court but not below, could assign no reason, good or bad, for the manner in which the case was put below; yet it can be seen, with the benefit of hindsight ¯ perhaps even without it ¯ to be a case that was destined to be fragile and likely to sustain the fate that it has now earned.

96. I agree that the application and the appeal should be allowed for the reasons stated by Winneke, P., and orders made as he has proposed.

[1] cf. Doney v. R. [1990] HCA 51; (1990) 171 C.L.R. 207

[2] cf. R. v.Prasad (1979) 23 S.A.S.R. 161 at 163 per King, C.J.

[3] M v. R [1994] HCA 63; (1994) 181 C.L.R. 487.

[4] Domican v. R. [1992] HCA 13; (1992) 173 C.L.R. 555 at 562.

[5] Smith v. R. (1990) 64 A.L.J.R. 588.

[6] R. v. Dickson [1983] VicRp 19; [1983] 1 V.R. 227 at 230; R. v. Allen (1984) 16 A.Crim.R. 441 at 444-5.

[7] cf. Davies & Cody v. R. [1937] HCA 27; (1937) 57 C.L.R. 170 at 182-3; Domican v. R., supra, at 562.

[8] Whitehorn v. R. [1983] HCA 42; (1983) 152 C.L.R. 657 at 660, 686.

[9] Morris v. R. [1987] HCA 50; (1987) 163 C.L.R. 454 at 461-2, 478-9; Knight v. R. [1992] HCA 56; (1992) 175 C.L.R. 495 at 511; M. v. R., supra, at 493.

[11] cf. R. v. Harvey [2001] VSCA 19 at [7] per Tadgell, J.A.; R. v. Braumberger & Anor. (1967) 62 W.W.R. 285.

[12] Davies v. Director of Public Prosecutions [1954] A.C. 378 at 401-2; McNee v. Kay [1953] VicLawRp 71; [1953] V.L.R. 520 at 531; R. v. He & Bun [2001] VSCA 58 at [28].

[13] cf. R. v. Glennon [1994] HCA 7; (1994) 179 C.L.R. 1 at 8-9.

[14] [1993] HCA 65; (1993) 178 C.L.R. 217.

[15] cf. s.399(3) Crimes Act 1958.

[16] [2001] HCA 25 at [63] and [64].

[17] cf. R. v. Moran & Mokbel [1998] VSCA 64; [1999] 2 V.R. 87 at 96; Tumahole Bereng v. R. [1949] A.C. 253 at 270. (Note: I have not overlooked the statements made by the Court of Criminal Appeal in R. v. Neilan [1992] VicRp 5; [1992] 1 V.R. 57 at 65-7, which were made in circumstances very different from those existing in this case.)