R v Gojanovic [2004] VSCA 118

5. The applicant now seeks leave to appeal against conviction and sentence. Ground 6 of the application touching conviction claims that the trial judge erred in refusing to allow cross-examination of one Mark Farnsworth as to a statement made by him in depositions that, about a week before the death of the deceased, the deceased said that she was going to stab the applicant the next time she saw him. This ground was the principal issue in the appeal.

8. The Crown case was as follows. Angela Farnsworth (the deceased) and the applicant commenced a de facto relationship in 1996. The applicant worked as a musician in a band that played in the Geelong area. She had been married twice before and already had three children as a result of these marriages. From her relationship with the applicant a son (Nicholas) was born in 1998. When the child was born they moved to rented premises at Chelmsford Avenue in Herne Hill. By the end of the year 2000 the relationship between the couple had deteriorated, and to such an extent that they separated. Ill-feeling appears to have developed partly because the deceased had developed a gambling habit, and was spending most of her money on poker machines at various venues around Geelong, and, according to the applicant, in consequence not caring and providing properly for the children and in particular for Nicholas. According to the Crown, this led to the point that in July of the year 2000 the applicant seriously assaulted the deceased so that she thereafter no longer trusted him and in fact became very frightened of him. The deceased complained to friends and acquaintances that he tried to strangle her, that he had threatened her with a hammer, and had pushed and injured her. Although the couple separated at about this time, the applicant returned periodically to see his son and to assist in babysitting the other children.

11. In about October 2000 the deceased moved to 68 Pavo Street, Belmont. The applicant was not living with her at this address, but the Crown alleged that he stayed with her at the premises fairly regularly to visit his son and see the other children. It was alleged that the applicant then began to follow the deceased about, telephoning and visiting hotels and gaming venues where the deceased was going to play the poker machines and to socialise. The Crown alleged that this campaign of following (in effect, stalking) the deceased was part of an attempt to gain information to prove that she was not a fit person to care for her children, and that it continued right up to the death of the deceased.

14. On 6 March 2001 the applicant collected his son for the purpose of a two-day access visit, to which the deceased had consented. However, in the days leading up to this, the applicant had contacted the two fathers (Mark Farnsworth and Robert Mitchell) of the other three children of the deceased, and told them that the deceased was going to be evicted from her Pavo Street home, seemingly with the intention of motivating these men to seek custody of their children, thus strengthening the applicant's own claim for custody of his son Nicholas. Both men subsequently spoke to the deceased about this.

17. On 8 March, the deceased was scheduled to appear before the Residential Tenancies Tribunal for failing to pay the rent at Pavo Street, apparently a continuing problem. The real estate agent who was overseeing that property was seeking an eviction order against the deceased. At the last minute however, the deceased's father intervened and saw the real estate agent and brought the rent up to date, the arrangement being that the agent would then go to the Tribunal and have the matter adjourned since the rent had been paid. The applicant visited the real estate agent's office on the day of the hearing and offered to provide the agent information to sway the case against the deceased. He told the agent the deceased had falsified her application for the premises and that it was important for the fathers of the children that she be evicted. The agent refused to co-operate with the applicant, but the latter then went to the Tribunal, seeking to be heard, and told the Tribunal that the deceased had a long-term rent problem, had been in arrears, had falsified her application, was a bad tenant and should be evicted. The Tribunal merely adjourned the eviction application at the agent's request.

20. The applicant was expected to return his son to the deceased on 8 March, but instead retained custody contrary to the arrangement that had previously been made. The child was staying with him at the house of the applicant's sister in St. Leonards. The failure to return the child led the deceased on 10 March to seek advice from a solicitor about the custody of Nicholas. Later that day she went to the Lord of Isles Hotel and while speaking to staff there requested them not to give information about her to the applicant, since she had become aware that he was following her around and seeking information about her movements. Then on Sunday 11 March, the deceased again visited the Lord of Isles Hotel and was told by one of the staff that the applicant had been making various phone calls to the hotel asking for information about her. The deceased said to the staff member that she was scared of the applicant.

23. The Crown alleged that on the evening of 11 March the deceased went out to socialise and play the poker machines. Her children were in the custody of their fathers. At 8.30 p.m. she went to the Lord of Isles Hotel, and spent the evening there. She left the hotel at 3.45 a.m. on the morning of 12 March. She asked an attendant to walk her to her car which was in the car park at the back of the hotel, saying she was scared. She went home to 68 Pavo Street, Belmont, arriving there at around 4 a.m. The Crown claimed that the accused, who had been following her, also arrived at her address at about the same time and gained entry to the house. According to his record of interview, when he entered the house there was an argument with her and some wrestling. He claimed that she was very abusive to him, told him that he "would never have Nicholas", and to get out, and used language to him that "I wouldn't even say to a dog". He said that she began to wrestle with him but also claimed that he did not know how the injuries to the deceased happened. The applicant was a diabetic and at various times claimed both to the police and another prisoner, Phillip Wickham, that his insulin levels were low at the time and that he could not remember much of what happened because of his blood sugar levels. The Crown claimed that the applicant clubbed the deceased around the head a number of times with a rubber mallet, probably rendering her unconscious and leaving her helpless and lying on the floor of the hallway in the house. The prosecution case continued that the applicant then went to the bedroom, only a short distance away, removed a cord or sash from her dressing gown and returned to where she was and then wrapped the cord around her neck and choked her to death. He was then said to have left the house, and returned to where he was living in the St. Leonards area. He then washed his trousers, almost certainly to remove the deceased's blood on them, and waited there. The next morning he went to 68 Pavo Street arriving at a time when the police were present. The prosecution case was that upon his arrival the applicant pretended that he did not know anything about what had happened and at first made a lengthy false statement to the police explaining his relationship to the deceased and effectively denying any knowledge of the death for which he was responsible. Later that day in a formal record of interview which was videotaped, the applicant at first continued his false account of what had occurred. But, the Crown claimed, after reflection the applicant confessed and gave a version of how the deceased was killed.

26. On the other hand, the defence case was that the deceased, when confronted by the applicant with being out so late, was neither contrite nor apologetic, rather she was angry, and screamed at and wrestled with him, and that he then snapped. It was put that he was a brittle diabetic, and that the rise and fall of blood sugar levels can make a diabetic act as an automaton, a robot. The defence contested that the applicant intended consciously to kill or to do serious injury to the deceased. It was put that he was torn emotionally between his love for his son and his duty to the child's mother, and that hopes of her stopping her gambling, frustration and distress, all converged at the time when the deceased was killed. The issue of provocation was put to the jury by the trial judge.

29. Ground 6 of the conviction application arises in the following way. Mark Farnsworth, who was a prosecution witness at the trial, had made a statement to the police on the day of the death of the deceased which included the following -

"Last week I went to see Angela with Robert Mitchell after Denis Gojanovic rang me to say that she was being evicted. Robert Mitchell is Angela's first husband. Denis is the father of Angela's last child Nicholas. Angela was upset because we had found out that she was behind in her rent. She started to raise her voice about Denis and him reporting her to welfare. She appeared to be blaming him for everything. She said that she was going to stab him the next time she saw him. I didn't take much notice of the remark because she would say those things that [then?] forget about them just as quickly. Robert and I told Angela that if she was evicted again, we would take the children off her. She stated that she was not going to be evicted because the rent would be paid, and that her brother Chris was going to manage her finances. (My emphasis.)

33. Farnsworth gave evidence on the fifth day of the trial, 7 May. At the end of cross-examination on that day, defence counsel said that he had further matters to take up with him and reference was made to some documents that Farnsworth had agreed to make available to the defence. The Court was told during the appeal that this was a reference to a diary presumably made by Farnsworth, which had not been provided to the defence until well after the trial itself had started.

36. At the start of the eleventh day of the trial, 15 May, defence counsel sought to have Farnsworth recalled. The defence had then been provided with additional documentary material, including diary entries. Farnsworth had not been available at the committal, and had not then been cross-examined. He had however given evidence at the Basha inquiry which took place before the trial began, and had been cross-examined at that time. Defence counsel complained that he should have had the diary before cross-examining Farnsworth, and then sought to complete his cross-examination of Farnsworth. The application was opposed by the prosecutor, largely on the basis that the questions proposed to be asked amounted simply to a character assassination of the deceased.

39. On the twelfth day of the trial, 16 May, Farnsworth was recalled for cross-examination, which took place during that morning. Immediately after the luncheon adjournment, defence counsel sought to cross-examine Farnsworth further about the matters referred to in paragraph [10] above saying that he had only just received instructions from his client in relation to them. Counsel submitted that he should be entitled to cross-examine because the material was admissible as going to the deceased's propensity for violence and secondly on the ground that it bore on her mental state at a time very close to the events which gave rise to her death. He continued in argument -

"But in particular, her upset about Denis Gojanovic reporting her to Welfare, the way she blamed him for everything - and I assume that includes not just reporting to Welfare but also because the fathers had found out that she was behind in the rent - they particularly bear on her state of mind, which in my submission is probative of her likely reaction when she's visited in the early hours of the twelfth. So in short, what I submit is that it is admissible, both as to propensity and her state of mind - propensity, of course, being the threat to stab him."

43. The prosecutor objected to the proposed cross-examination, and submitted that the passage did not demonstrate any evidence of propensity.

46. Defence counsel in reply submitted that the passage was -

"relevant to any act of violence towards [the accused]. She was angry with him. She expressed an intent to be violent with him. I noticed my friend hadn't replied to the proposition that it certainly showed her state of mind. And in my submission he can't have it both ways. He's got lots of hearsay evidence in that she was afraid of him. That means he has to wear that she was prepared to be aggressive to him. It's just another piece of relationship evidence. And in my opinion that's admissible on the Parsons'[2] principle. Anyway, your Honour, those are my arguments. I apply for leave."

50. The judge then ruled that the material in question did not go anywhere near to establishing a propensity to violence. His Honour put it to the prosecutor that the Crown had adduced a quantity of evidence about the deceased's fear of the applicant. He drew the prosecutor's attention to the fact it was now submitted that if there was evidence that suggested anger and a lack of fear by the deceased then that should also be before the jury as relevant to her state of mind. His Honour indicated that "it would have to be subject to some direction from me at some stage". The prosecutor responded that this was a statement of bravado on the part of the deceased, in the company of her former husbands who had gone to see her and said that he "wondered really the weight that could be attributed to that in the light of the other witnesses who - and what has happened to her in the month - the six months or so before".

"My conclusion, right or wrong, is that in the context which it was uttered, it does not carry sufficient weight to warrant it being placed before this jury as evidencing the deceased's state of mind. It is clearly just a momentary ebullition uttered during an argument (with persons other than the accused). Indeed, the witness Mark Farnsworth immediately discounted it, and the conversation turned to other matters. ... That is the ruling. It is either correct or not but there it is."

57. Mr Montgomery, who appeared in this Court for the applicant, now submits that the evidence upon which defence counsel sought at trial to cross-examine was plainly admissible since it indicated the deceased's intention, one week before the events leading to her death, from which the jury could infer that she may well have conducted herself in a violent, nasty or aggressive manner upon seeing the applicant on the morning of 12 March 2001; secondly, the evidence tended to run counter to other evidence that the deceased was in fear of the applicant; and thirdly, as the evidence of the assault by the applicant upon the deceased in July 2000 went to the relationship between them, so in the same way did the evidence of the deceased's anger at and threat to the applicant only a week before she died. The argument ran that the refusal to admit the evidence gave the jury a distorted picture of the true relationship. It was submitted that counsel's application to cross-examine on these matters was therefore well-founded and that the judge's ruling was wrong. Accordingly the failure to admit the evidence gave rise to a substantial miscarriage of justice.

60. Mr McArdle, who appeared for the Crown, submitted in this Court that the application to cross-examine Farnsworth concerning the conversation with the deceased was made tentatively, after cross-examination and re-examination of this witness had concluded. He submitted that the material before the Court concerning the circumstances of the death of the deceased did not suggest that any attack with a knife or other weapon had been made on the applicant by the deceased, referring in particular to the answers given by the applicant in the record of interview. It was put that at best this was evidence of a threat to commit an act of violence, rather than any evidence of the commission of such an act. Mr McArdle submitted that there was no evidence of propensity in the conversation, and at most it was a propensity to make threats rather than to commit acts of violence. It was submitted that the evidence would not have been relevant as a counterbalance to relationship evidence and that the judge was correct in ruling that the evidence was not admissible on the basis that was argued at trial. Mr McArdle reminded the Court that the trial judge was not referred to Walton v. The Queen[3] or the principles discussed therein. He argued that in any event Walton's case had no application to the present case, since the deceased's state of mind was not an issue, and even if it had been evidence of what happened a week or so before her death in the conversation with Farnsworth was not relevant to that state of mind. He submitted that the circumstances of the death of the deceased left no doubt of the applicant's intent to kill, self-defence had not been raised, and the only real issues were whether a sufficient intent had been established on the part of the applicant, and the question of provocation. He argued further that provocation in fact never arose and should not have been left to the jury on the available evidence. Finally it was put that if the judge had erred in refusing to allow cross-examination on the evidence, the evidence was of little substance and the proviso to s.568(1) of the Crimes Act 1958 should apply.

63. At the beginning of the Basha inquiry which preceded the trial, the prosecutor argued that it was necessary to put before the jury a "potted history of this couple's relationship". He said that the couple's relationship was relevant because the issues before the Court were intent, self-defence and provocation "so relationship and what's happened between them and any violence between them and any fear that she may have felt of him can bear on those issues". The response of defence counsel was to ask for guidelines as to how far back the Crown should be permitted to go, and it was submitted that anything prior to the end of 1999 was too far back and not indicative of the relationship between the parties at the time of her death. Defence counsel submitted that the Crown "should only be permitted to lead evidence which is (a) close in time to the event, (b) bears on an action by the accused or on an action by the deceased". In reply the prosecutor submitted that evidence of bad relations and the statements made by the deceased to other people were relevant. In particular he submitted -

"It would be relevant ... on the issue of intent. It would also ... be relevant to establish motive. In relation to the aspect of the evidence of bad relationship, or bad relations, which is the hearsay evidence of her telling other people of her fear, the Crown seek to lead that on the basis of issue (sic) of provocation."

67. On 13 March the trial judge gave a comprehensive ruling covering the admissibility of the evidence of the relationship between the applicant and the deceased which the Crown sought to adduce. His Honour referred in detail to the authorities which accept that evidence of the relationship may be admissible, including Wilson v. R.[4]; R. v. Iuliano[5]; R. v. Frawley[6]; and R. v. Parsons[7]. His Honour noted that the defence raised the issue of intent as well as provocation, saying that the accused's presence at the deceased's house and his involvement in the killing were no longer in issue. Accordingly his Honour accepted that the admissibility of the relationship evidence must be approached in the context of these defences. The judge then dealt at length with the evidence sought to be relied on by the Crown as establishing this relationship, commencing with the incident which occurred in late July 2000, some seven-and-a-half months before the death of the deceased. Next, his Honour noted that the Crown sought to adduce evidence of the deceased's expressed fear of the accused, citing some twenty separate pieces of evidence from a variety of witnesses said to establish this fact. His Honour ruled that evidence of the assault by the applicant on the deceased in July 2000 was relevant and admissible as providing cogent evidence of a relationship which had the capacity to generate a high level of antagonism between the parties, which manifested itself in an equally high level of violence. In relation to the statements made by the deceased to various persons and indicating her fear of the applicant, his Honour ruled, consistently with the decision in R. v. Walton[8], as follows -

"Submissions were also made regarding the admissibility of statements made by Ms Farnsworth from time to time, expressing her fear of the accused. Given the defences which the accused seeks to place before the jury following the ruling on the admissibility of the record of interview, such fear, if relevant, must relate either to the possible issue of provocation or to the accused's intent. The fearful state of mind of the deceased of her partner is a species of relationship evidence. It is not hearsay and, as I have stated, if it has relevance to a fact in issue it is clearly admissible. ... The asserted fear of the accused by the deceased, in my view, has relevance as to the likelihood of Ms Farnsworth initiating any wrestle with the accused and the likelihood of her using the type of words calculated to provoke the accused which he seeks, albeit principally in generalities, to attribute to her. The only factor which distinguishes the instant case from that of R. v. Parsons is the specificity of the provocative words and conduct alleged in the latter. That difference is, in my view, insufficient to sustain the proposition that the evidence of the deceased's fear may be regarded as irrelevant. But the relevance of such evidence is not limited to cases where legal provocation is the issue. As is apparent from the judgment of Brooking, J. in Parsons case, where a killing is allegedly provoked in the sense that, because of the stress of the moment caused by the deceased's words and/or actions, the subsequent actions of the accused which caused death were not accompanied by any specific murderous intent, then the deceased's fear of the accused is relevant. Its relevance again lies in the probability of the deceased indulging in the type of provocative conduct, (be it actions or words) asserted by the accused. Accordingly, I rule the evidence of the deceased's professed fear of the accused is also admissible." (My emphasis.)

The correctness of the judge's rulings on the admissibility of this evidence was not challenged at any point during argument in the appeal.

72. The Crown had, as the foregoing recitation of events shows, from the outset of the Basha inquiry and throughout the trial sought to establish by a substantial body of evidence a relationship of antagonism between the applicant and the deceased which had manifested itself in a violent episode in July 2000 when the applicant was said to have attacked the deceased. As his Honour said in ruling the evidence admissible there was undoubtedly a prejudicial aspect to this evidence, but it did not outweigh its probative value. This evidence, together with the evidence tendered to establish the deceased's fear of the applicant, was said to bear on the issues of the applicant's intent and the issue of provocation. In particular, the significance of these matters was demonstrated in the above emphasised passages of his Honour's ruling of 13 March to the effect that the asserted fear on the part of the deceased of the applicant was relevant to the likelihood of her initiating any wrestle with the applicant and of her using the type of words calculated to provoke the applicant. The applicant in his record of interview had, as I have said, asserted that when they met at 4 a.m. on the morning of 12 March she wrestled with him and in the exchange which followed made comments such as that he would "never have Nicholas", and said words to him which "I wouldn't even say to a dog".

75. The evidence of the relationship between the applicant and the deceased certainly contained at least some material which gave support to the applicant's case. The applicant was said to be a doting parent who had a good relationship with Nicholas and the other children of the deceased. Jillian Johnstone said in evidence that the deceased would "put down the applicant and he would placate her." She said that the deceased acted aggressively towards the applicant about three times in the last 12 months before her death. She said the deceased was irrational and her response to situations was not controlled. Another witness, Mark Trewin, described the deceased as having a bad temper, and that the applicant appeared meek and mild. Another witness, Craig Hamilton, said that when the deceased was drinking she became difficult with the applicant. There was evidence that the deceased had given up drinking over the last year before her death, but she had been at the Lord of Isles Hotel on the evening of 11-12 March until 3.45 a.m.

78. The potential importance of the excluded evidence (from Farnsworth's statement) lay in the following. The deceased was shown to be aware that the applicant had reported her to "Welfare", and her two husbands, having been informed by the applicant, knew that she was behind in her rent and was at some risk of being evicted. The statement recorded that they both told her that if she was evicted again they "would take the children off her". The deceased, by way of response, raised her voice about the applicant, appeared to be "blaming him for everything", and said that she was going to stab him the next time she saw him. The next time she saw the applicant was, on the evidence, shortly before her death, at about 4 a.m. on the morning of 12 March, apart from a brief and agitated discussion on the morning of 8 March outside the Residential Tenancies Tribunal. The deceased had then been at the Lord of Isles Hotel from 8.30 p.m. until 3.45 a.m., and had left the hotel aware, according to the evidence, that the applicant had been making enquiries about her. Cross-examination about these matters might have been expected to emphasise her devotion to her children and her fear of losing them to their respective fathers in consequence of her gambling addiction; which, it might have been suggested, could have led to her possible eviction, and her being unable to feed and care for the children properly, which was apparently a constant source of complaint against her. If the deceased was blaming the applicant for "everything", including the potential loss of her children and her inability to pay the rent or care for her children, it might well have been suggested by cross-examination that she was likely to have been in an extremely hostile, violent and aggressive mood when she saw the applicant, and even that she may, as she had threatened, have attacked him, rather than the exchange having commenced with the applicant attacking her.

81. The admission of the evidence was rejected by the judge as not carrying sufficient weight and being "clearly just a momentary ebullition". This was, with great respect, a matter for the jury. They would have been entitled to use the evidence to assess whether the prosecution's assertion of the deceased's fear of the applicant was genuine or, even if it was, whether it had been extinguished by her intense hostility towards him arising from the matters discussed with her two husbands a week beforehand. Even if the threat of stabbing was a hollow one, there seems little reason to doubt that the deceased was very angry indeed at the suggestion that the applicant had reported her to "Welfare", and that she was at risk of losing custody of all her children to their respective fathers.

84. Mr Montgomery was, I think, correct in submitting that the refusal to admit evidence of this conversation resulted in a potentially distorted picture being put before the jury of the relationship between the applicant and the deceased. The evidence of the excluded conversation was, it might be added, far more proximate to the deceased's death than most of the evidence led by the prosecution to establish the nature of the relationship between them and the fear of the deceased for the applicant. The fact that the deceased had stayed at the Lord of Isles Hotel until 3.45 a.m., together with the applicant having kept Nicholas longer than the period of permitted access, and the events previously mentioned, set the scene for what might have been an explosive argument between the deceased and the applicant when they met in the early hours of 12 March 2001.

87. It is unfortunate that the judge's ruling (following detailed argument) in relation to the evidentiary matters put before him in the Basha inquiry had been given on 13 March, over two months before his Honour was asked to rule on the admissibility of the cross-examination, all of which gave rise to this ground. It is also regrettable that the issue arose late in the trial, after the cross-examination of Farnsworth appeared to have been completed, and, indeed, after Farnsworth had already once been recalled for the giving of further evidence. The fact that this further recall was made necessary by the late receipt by the defence of relevant diary entries no doubt contributed to what may have appeared to his Honour to be a belated and tentative application by defence counsel to cross-examine on matters of marginal relevance. It is, in my view, nonetheless clear that the excluded matter was relevant and admissible for the reasons I have given, and that the judge's decision to exclude it was, with great respect, in error.

93. Ground 3 complained of the directions given by the judge on provocation. The ground claims that the judge erred in his direction to the jury in respect of the proofs necessary by the prosecution in respect of provocation, namely that the prosecution need prove only that a normal person in the position of the applicant would not have acted in the way that the applicant did, and that his Honour did not direct them that a normal person having the physical characteristics of the accused (and specifically his diabetic condition) was the appropriate objective standard. The submissions of the applicant on this ground were contained in written submissions, and Mr Montgomery did not seek to argue the matter orally, making it clear that the purpose of the ground was to preserve the issue, to enable the applicant to argue later, if necessary, that the decisions of the High Court in Masciantonio v. The Queen[9] and Green v. The Queen[10] are wrong to the extent that they do not allow the "ordinary person" to be imbued with the particular characteristics of the applicant in this case, namely his being a brittle diabetic who might have been suffering a hypoglycaemic episode at the time of the death of the deceased. In the circumstances it is unnecessary to say anything further on this ground.

96. Mr McArdle argued (as I have said) that if the judge was wrong in excluding the evidence complained of in ground 6, that the proviso to s.568(1) of the Crimes Act 1958 should be applied on the ground that no substantial miscarriage of justice had occurred. He also submitted that provocation should not have been left to the jury at all on the evidence admitted at trial.

99. In my view it is impossible to say that no substantial miscarriage of justice occurred in consequence of the exclusion of the evidence and cross-examination, for the reasons given in paragraphs [24] and [25] above. I have had the advantage of reading the reasons for judgment prepared by Eames, J.A. bearing on this issue, and I acknowledge the force of his Honour's reasoning. But, as Eames, J.A. observes, the onus was on the Crown to establish that the proviso should be applied. Mitchell in cross-examination had denied that the deceased said that she wanted to kill the applicant and the prosecutor in his address to the jury had submitted that it was highly unlikely that the deceased would have initiated a wrestle with the applicant. In all the circumstances, I do not think it can be said with certainty that the applicant did not lose a fair chance of acquittal.

102. As to Mr McArdle's further submission, I would simply say that I do not accept that the judge was in error in leaving provocation to the jury.

105. It is unnecessary in the circumstances to deal with ground 7, the only remaining ground in the application for leave to appeal against conviction, or the application touching sentence.

108. In my view the application for leave to appeal against conviction should be granted and the appeal allowed. The conviction of the applicant on the count of murder should be quashed and the sentence set aside. There should be a direction for the retrial of the applicant on the count of murder.

113. I have had the benefit of reading the draft reasons for judgment of Charles and Eames, JJ.A. and agree that, for the reasons given by Charles, J.A., the learned trial judge erred in rejecting the application that was made by the applicant's counsel to cross-examine Farnsworth in order to obtain from him evidence that a week or so before her death at the hands of the applicant, the deceased was in an aggressive frame of mind towards the applicant because she held him responsible for her predicament in relation to her children and, in that context, she threatened to stab him when she next saw him. In my view, this evidence was capable of having a bearing on the applicant's case before the jury, and the inability to lead it meant that the trial was flawed. The only question now is whether this error constitutes a substantial miscarriage of justice for the purposes of the proviso to s.568(1) of the Crimes Act 1958.

116. The onus of persuading the Court that the proviso should be applied rests on the Crown. What it must establish in order to succeed in that regard has been variously described - for example, that it was inevitable that the jury would have convicted the applicant in any event or, that he did not lose a fair chance of acquittal by reason of not being able to lead the excluded evidence or, that the evidence against him was so overwhelming that a conviction was inevitable in any event.[11] It seems to me that the excluded evidence was material to the defence case because it tended to contradict a significant plank in the Crown case, namely, that the relationship between the deceased and the applicant was such that the deceased was constantly in fear of him. It was emphasised by the Crown that the state of the relationship between those parties was a factor relevant to the issues of provocation and intention. Thus, the Crown led hearsay evidence of the applicant's assault on her a considerable time before her death as well as other hearsay evidence, all of which was directed to establishing that the relationship between them was one where the deceased feared the applicant. Such evidence, no doubt, tended to contradict the applicant's implicit defence that he did not intend to kill the deceased or cause her serious injury, but killed her in the context of his being a brittle diabetic after she provoked him with her language and wrestled with him. The Crown case was essentially that, given the deceased's constant fear of the applicant, it was unlikely that she would have provoked him or fought with him as the applicant claimed. The excluded evidence, however, if accepted, tended to paint a different picture of the relationship between the parties that was in existence only a week or so before the deceased's death. If accepted, it showed that at least at that time, the deceased had an aggressive disposition towards the applicant because of what she believed he had done to jeopardise her custody of the children and that she indicated that she was prepared to do him harm. Even though she may have also been frightened of him, it was for the jury to decide what to make of that evidence - whether what the deceased said was a statement of bravado or whether it was a momentary agitation or whether she had an entrenched attitude of belligerence towards the applicant. It is irrelevant, in my view, that the proposed evidence was not evidence of violence by the deceased towards the applicant or that it was not propensity evidence. As I have said, its importance lay in the fact that it bore on the state of the relationship between the deceased and the applicant shortly before her death. After all, it was the prosecution that contended at the trial that relationship evidence was important as going to the issues of provocation and intention. By parity of reasoning the excluded evidence, if accepted, was also relevant to those issues.

119. In the circumstances, while I acknowledge the force of the reasoning of Eames, J.A. towards his conclusion that no substantial miscarriage of justice occurred in this case by reason of the judge's error such as to warrant the application of the proviso, I am not persuaded that the applicant did not lose a fair chance of being acquitted as a result of being deprived of the opportunity to lead the excluded

material. In my view, the error here was not minor or technical, but rendered the trial unfair according to law.[12]

123. In the circumstances, I consider that the application for leave to appeal against conviction should be disposed of as Charles, J.A. proposes.

128. I have had the advantage of reading the judgment of Charles, J.A. in draft, and for the reasons his Honour states, I agree that the learned trial judge was in error in rejecting the application by defence counsel to cross-examine the witness Mark Farnsworth on those matters addressed in his statement which are set out in the judgment of Charles, J.A.[13], and which for convenience I will call "the excluded evidence". Ground 6 of the grounds of appeal has been made out, and the failure to admit relevant evidence constitutes a miscarriage of justice. The question then arises whether the Court should exercise the proviso to s.568(1) of the Crimes Act, and dismiss the application for leave to appeal on the basis that no substantial miscarriage of justice has actually occurred. On that question I find myself in disagreement with the conclusion of Charles, J.A. In my opinion, this is an appropriate case for the exercise of the proviso and the rejection of the application.

131. In determining whether the proviso should be applied attention must focus on the trial from which the appeal arose. The question is whether by being denied the opportunity to lead the additional evidence from Farnsworth the applicant lost a real chance of acquittal fairly open at that time[14]

. That question must be assessed by reference to the conduct of the trial and the significance of the omitted evidence within that context, not by reference to how the applicant might conduct a re-trial,

should one be granted. In Conway v. The Queen[15] Gaudron, A-C.J., McHugh, Hayne and Callinan, JJ. considered whether a substantial miscarriage of justice had arisen in the trial by virtue of a misdirection, and concluded that a conviction had been "inevitable", having regard to the nature of the defence as it was then conducted. In focussing attention on the conduct of the trial from which the appeal arose, the court discounted an explanation for the conduct of the appellant which was open but had not been adopted below, and held that the applicant "should not now have an opportunity to go back for trial on an altogether different footing from that upon which he chose to attempt to meet the prosecution case that was put against him."

137. There is a danger, in my opinion, when considering on appeal the application of the proviso to s.568(1) of the Crimes Act that the significance of a single piece of evidence will be unduly inflated and have built upon it a defence edifice which is entirely disproportionate to the way it would have been dealt with in the trial had it been admitted. This one piece of evidence, the statements said to have been made to Farnsworth, represented the sole ground on which any serious challenge was made to the conduct of this three week trial. By virtue of that fact the value of that piece of evidence in the trial has been developed by counsel in the course of the appeal to a degree that endows it with the capacity to perform a critical role in underpinning the defence case. It was not seen to be so important at the time of the trial, however.

140. It had never been asserted by the applicant that he was attacked by the deceased; the highest his record of interview took the matter was that they "wrestled" after he had intruded upon the deceased, in her home at 4am, to confront her with his complaints about her conduct. Farnsworth's statement had been in the depositions, as had the statement of Mitchell, who Farnsworth had said was present at the conversation to which his statement referred. Both gave evidence at the committal and neither was cross-examined about that aspect of the statement which is now highlighted[16]. Counsel who appeared at the committal was also counsel at trial. Both Farnsworth and Mitchell gave evidence on the "Basha" inquiry but, once again, neither was questioned about the excluded evidence, although they were extensively questioned about the behaviour of the deceased, about her poor parenting, bad language, and so forth.

143. At the trial Farnsworth was called on 7 May 2002 and gave extensive evidence, most of it very negative about the deceased. In his address the prosecutor later spoke of the "litany of complaints" that Farnsworth made about the deceased and of his "campaign" to get the Welfare authorities to take the children from the care of the deceased. It was in answer to the prosecutor that Farnsworth gave evidence about attending the home of the deceased with Mitchell "about a week before her death" to discuss information given to him by the applicant that the deceased was going to be evicted from her home. As will emerge, it is clear that this was the occasion to which the excluded evidence referred in Farnsworth's statement and that the attendance on the deceased at her home occurred in immediate response to the applicant's information that the deceased was about to be evicted. The prosecutor asked a question which commenced "Without going into the conversation there, did it . . ."?[17] Despite that obvious reference to the statement of Farnsworth, no questions were asked in cross-examination about what was said by the deceased on that occasion.

146. Farnsworth was re-called on 16 May 2002. He had produced a range of material which had been supplied to the defence, and on which defence counsel wished to first question him on voir dire and then before the jury. Among the material was a diary, which contained relevant entries (some of which were not in the hand of Farnsworth), and also correspondence by Farnsworth with Welfare authorities and with the deceased. The learned trial judge made a ruling as to the relevance of that material[18]. He ruled that, among other matters, a diary entry dated 8 March 2001 was relevant.

149. Among the range of matters raised on voir dire on 16 May 2002 defence counsel took Farnsworth to the entry of 8 March 2001[19]. He agreed with counsel that it was clear from the entry that the applicant knew that Angela Farnsworth "was going to court over the rent arrears" and that having been told that by the applicant, Farnsworth had spoken to Mitchell about the matter. Farnsworth then went with Mitchell to the home of the deceased to speak to her, and upon their return Mitchell phoned the applicant and told him to take his son Nicholas from the deceased and not to return the child. Mitchell expressed to the applicant his reason for so acting as being because of Mitchell's concern for the applicant's child, Nicholas, and his own child, Adam. At the conclusion of the questioning on voir dire his Honour ruled[20] that counsel could cross-examine Farnsworth before the jury on the various topics which had been canvassed on voir dire.

152. In the presence of the jury Farnsworth was then cross-examined about various matters, including his own and the applicant's efforts with Welfare authorities in the latter half of 2000 to have them remove custody from the deceased, and his own success in having custody of his own son given to him on 2 October 2000. (The deceased, therefore, was well aware of the efforts of Farnsworth and the applicant throughout 2000 to use welfare agencies in their efforts to obtain custody of their children. In his statement Mark Farnsworth said that the deceased during the meeting concerning the excluded evidence complained that he and the applicant had reported her to Welfare, and that they all knew about her rent arrears. That meeting was before the events which later transpired at the Residential Tenancies Tribunal).

155. Farnsworth was then taken to the diary entry of 8 March 2001, which was a Thursday. He was asked whether he had been informed by the applicant that Angela Farnsworth "would be going to court the next day for rent arrears and that she'd possibly be evicted from Pavo Street" (my emphasis). He agreed. He said he spoke to Mitchell who came straight over and they went to Pavo Street and spoke to the deceased. She said that her brother would help her with her finances and that the rent would be paid. Mitchell demanded that things had to change.

158. No questions were asked of Farnsworth about the excluded evidence. It was only after the further cross-examination had concluded, and also re-examination, that the application with which we are concerned was made to the judge on 16 May 2002, to again question Farnsworth, this time as to the excluded evidence. In my opinion, the terms in which the application was advanced did not suggest that this evidence was of importance to the defence case.

161. Although I have dealt with Farnsworth's evidence as it emerged in all of his appearances it is important to note that before Farnsworth had been recalled Mitchell had already concluded his own evidence.

164. Mitchell was called at the trial on 7 May 2002, immediately after Farnsworth had concluded his evidence on what proved to be the first of the two occasions he was called. In his own statement, made on the day of the death, 12 March 2001, Mitchell had referred to a discussion he had had with the applicant at the home of the deceased "early last week". He had also spoken to the applicant at about 10.45pm on the evening of 11 March (death occurring early the next morning), and at that time added his own complaints to those made to him by the deceased about the applicant having appeared in court "the other day" to argue for the eviction of the deceased, and having purported to speak for both Farnsworth and Mitchell.

167. When Mitchell gave evidence he made it clear that not only did he like the deceased, despite the termination of their relationship, but he did not share the concern about her care of his own child that Farnsworth and the applicant had about theirs. Mitchell was asked about an occasion "shortly before her death, during the week" when he, Farnsworth, and also both the applicant and the deceased, were all present at the home of the deceased in Pavo Street. Mitchell said, "I'd say she was upset with Denis and Mark", and agreed that she was very emotional. He was asked whether "she actually said she wanted to kill Denis", and, over an objection (as to which nor ruling was sought or made), answered "I don't recall that". Counsel made no attempt to take that matter further. At that stage no ruling had been applied for or made about the matters contained in the statement of Farnsworth. This meeting about which Mitchell was questioned appears to have occurred at a time before the occasion of the excluded evidence, and to have been a meeting at which, so defence counsel suggested, the applicant had been present and to whom the deceased had spoken directly (and had perhaps threatened). That it was an earlier occasion than the occasion of the excluded evidence (at which time the applicant had not been present) was made clear by questions put to Mitchell about whether "over the next couple of days", after that meeting, he had spoken by phone to the applicant and had told him that he should go to the house and get his things and should also keep Nicholas, not returning him at the end of his access visit. Mitchell denied such a phone conversation.

170. As I have noted, Farnsworth's diary entry of 8 March recorded discussions involving the applicant and the deceased about an appearance before the Residential Tenancies Tribunal which had not yet taken place, and appeared to be due to take place "the next day". It was, in fact, on Thursday 8 March 2001 that the deceased and her father went to the Residential Tenancies Tribunal. Mrs Keran Shaw, a property manager with the real estate agency handling the rent for the Pavo Street property, gave evidence on 13 May 2002[21]. She said that on 8 march 2001 the father of the deceased had accompanied the deceased and paid the rent arrears and she agreed with the deceased that they would attend on the Residential Tenancies Tribunal that day to have the eviction application adjourned. She saw the deceased and her father leave her office and then, outside, they appeared to anxiously acknowledge the arrival of the applicant, who entered the office of Mrs Shaw and asked what the applicant had told her. He then gave Mrs Shaw a range of information adverse to the deceased and encouraged Mrs Shaw to continue with the eviction. Mrs Shaw said that "later that morning, around ten to eleven" she went to the Tribunal where she saw the deceased in the foyer. Then the applicant arrived and said he was going to attend the hearing, and he sat in the foyer "with us" at which the deceased looked "very agitated, very uncomfortable" and asked Mrs Shaw if there was some way he could be removed. Angela then "asked if she could see Denis outside, and they both got up and walked outside", where they remained for a few minutes. The witness was concerned and went outside and saw them standing together talking, the deceased being agitated. They then were called into court. The applicant sat at the parties' table with the deceased and Mrs Shaw, who applied for an adjournment. The tribunal member invited the applicant to comment and he then made a series of complaints about the deceased being a bad tenant, including that she had falsified her tenancy application, and he urged that she be evicted. The member said that it was Mrs Shaw's application to adjourn, which he granted.

173. Thus, it may be concluded that the deceased had seen the applicant subsequently to the time at which she made the comments attributed to her in Farnsworth's statement, and several days before her death. At the time of her death, therefore, the jury would have appreciated that she was well aware of efforts by both the applicant and Farnsworth to obtain custody of their children, being willing to go so far as to encourage her eviction, in order to improve those prospects, and having actively campaigned with Welfare in the past to have the children taken from her. That sequence of events was also clear from Mitchell's evidence.

176. It is against the above background that the application concerning the excluded evidence must be considered. When the application was made concerning the matters in Farnsworth's statement, counsel for the applicant suggested that the words of the deceased referred to by Farnsworth in his statement occurred at the meeting recorded in the diary on 8 March. I agree with Charles, J.A. that the learned trial judge was in error in having regard to the limited weight of the evidence in determining its admissibility, but it remains a very significant observation from the judge that he regarded the evidence as a matter of so little weight.

179. At the time when the application was made the judge and both counsel were in the perfect position to judge its importance. Although the criminal law experience of participants in a trial is, perhaps, too often emphasised on appeal, it remains the fact that both counsel and the judge in this case were, indeed, very experienced. The fact that, in my opinion, none of them assigned much importance to this evidence in the course of the discussion is a highly pertinent indicator of the true value of the evidence and the use that might have been made of it had it been admitted in that trial. The trial been running for 12 days when the application was made, and followed a Basha inquiry and a voir dire which had been conducted over 10 days. There had been full opening addresses on both sides. A great deal of evidence had been opened, and already called, relevant to the question of the relationship between the deceased and the applicant, and it was known that much more evidence was to come.

182. When defence counsel sought leave, at trial, to adduce the evidence he advanced only two bases for its relevance. The first basis, that it showed a propensity to violence. The judge ruled that it was incapable of having that effect and that ruling has not been challenged on appeal. The second basis was that it was relevant to the relationship of the parties as counterbalancing the prosecution evidence of the deceased being in fear of the applicant. Counsel said that it bore on the mental state of the deceased at a time very close to the time of her death; in particular, her being upset about the applicant's reporting of her to Welfare authorities, and also showed that she blamed him for everything.

185. The prosecutor responded to the application that other than having said that the deceased had wrestled with him "he never says this woman attacked him or, in particular, attacked him with a knife" The prosecutor said that there was no evidence that the deceased had ever been violent towards the applicant. Defence counsel did not challenge those statements but submitted that if the Crown were to be permitted to lead evidence of the deceased being in fear of her husband then the Crown ought to allow evidence that she was prepared to be aggressive to him. Defence counsel added "it's just another piece of relationship evidence".

188. This was a trial in which conflicting portraits were painted of the deceased woman. On the one hand, she was a good, loving, mother who was in fear of her husband and was meek and mild in his presence. On the other hand, she was a woman who neglected her children, wasted considerable sums on a gambling addiction, to the detriment of her children, was dismissive, loud and aggressive in tone and language towards the applicant, and disregarded the custodial rights and parental concerns of the fathers of her three children. Although the prosecutor described witnesses as falling into one or other of two "camps" many witnesses presented qualified opinions which offered support, at times, for either view.

191. Whilst acknowledging that it is now asserted that the case would have been presented differently had the excluded evidence been admitted, the question whether a chance of acquittal fairly open was lost by the omission of that evidence may nonetheless be considered by reference to the way the case was finally presented to the jury. We have the advantage of transcript of the addresses (and also, of course, the judge's charge). In my view, an examination of the address of defence counsel clearly demonstrates that had it been admitted the evidence of Farnsworth would have been "just another piece of relationship evidence". The defence case was not relevantly diminished, in my opinion, by the ruling made by the judge. Whether or not the piece of evidence would be given different emphasis on a re-trial, its omission did not constitute a substantial miscarriage of justice in the trial which was conducted.

194. Only two defences were in issue: whether the applicant had murderous intent when he killed his wife and provocation. Both defences had to confront some very difficult facts. The deceased was small in height and weighed only 68 kilograms. The applicant was a solidly built man. The deceased had been confronted in her home at 4 am by the applicant, who the Crown suggested had been monitoring her movements and was upset about her conduct in gambling and staying out late to the detriment of the children. Although the deceased died as a result of strangulation by a dressing gown cord wrapped around her neck she had also six lacerations to the scalp consistent with her head being beaten by a mallet with a reasonable degree of force, each blow producing a bruise, and one producing a fractured skull. An additional abrasion to the temple was also consistent with a mallet blow, as was a bruise to the upper back. There were numerous injuries to wrists, arms and left knuckles, consistent with being sustained in a struggle, and bruises on lower limbs, hip and thigh. Death was said to be due to both strangulation and head injuries. The blows to the head were likely to have affected her consciousness. In effect, she would have been helpless when she was strangled.

197. The defence case was that there was a reasonable possibility that the killing occurred at a time when the applicant was suffering a hypoglycaemic episode, thus negating murderous intention. As to provocation, it was put that events occurring in the house when he confronted his wife were the final straw in a build up of tension and that his loss of self control may have been a product of either or both the hypoglycaemia, which may have produced a "fight or flight" reaction, and the provocative conduct of the deceased.

200. The applicant did not give evidence and so the only evidence of what the deceased did upon his entry to the house was that provided in his record of interview. The interview commenced at 4pm on Monday 12 March 2001. The applicant provided what his counsel conceded was a false denial of any involvement in the death. He had also disposed of evidence and laid an elaborate false trail, which the Crown argued exhibited consciousness of guilt. The pretence of non-involvement was maintained for more than two and a half hours and then at question 1186 he said that if he had killed her he was pretty positive that he would remember it. When asked if it was he who was involved in an argument in the house heard to occur at about 4.15am he said that he could not remember it. The interview was suspended and upon later resuming he gave an account of killing the deceased, which he said "wasn't meant to be that way".

203. In his account to police the applicant said that when he went to confront her, "She had an absolute fit. Absolute fit. Absolute fit". He said he knew she would "start" so he said "look, I want to talk about Nicholas and what's going to happen with Nicholas, and she wrestled, you know . . ." He said that he had not gone there with the intent to kill her and that it was he and the children who had been the victims for years. He said he totally lost control.

206. He said there was "a bit of a wrestle" near the bedroom door, during which she was saying something about Nicholas and he hit her with the mallet (which he later had disposed of) . He said he put the cord around her neck. He had parked his car around the corner before he entered the house. He said his state of mind when he entered the house was that "I wanted to hear what she's got to say about answering what my concerns were". He saw her near the bedroom door and said "we need to talk" to which she replied "Oh no we don't". He said the mallet was on the floor, just inside her bedroom. He had left it at the house some time before, when he was going to do some work there. Asked whether she had said or done anything to provoke him, he said "She treats me with words that - that I wouldn't even say to a dog". He said "She just mentioned the fact about - about Nicholas. That I will never have Nicholas, you know. That I will never have Nicholas and - and to, "Get out. I'm ringin' the police", you know."

209. There is no hint in that account of the deceased attacking him, being armed, doing anything more than wrestling with him and abusing him, including asserting that she would not let him have the child. Nothing said by her, on his account, expressly related to the matters stated in Farnsworth's statement, although the future of the child was obviously the topic in issue on both occasions. One may be forgiven for thinking that insofar as the defence of provocation depended on the jury being satisfied that the deceased used language such as described, wrestled him (upon being confronted by him in her home) and stated that he would not get the child, the likelihood of her doing so would have been much the same whichever "camp's" character assessment was adopted. To the extent that the defence wanted to strengthen the assertion that she might have behaved in the way stated in the record of interview then there was ample material on which counsel could rely, and did.

212. Indeed, in his address, the prosecutor said that although the jury would have grave reservations about a lot of the things said in the record of interview, even if they accepted that the deceased had said and done the things stated in the record of interview, it was not conduct, given the circumstances with which she was confronted, which could have amounted to sufficient provocation by the deceased to justify a manslaughter verdict. The prosecutor did submit that it was highly unlikely that the deceased would have initiated a wrestle, and he pointed generally to evidence of her fear of him, in particular the evidence of a hotel employee whom that night she asked to walk her to her car because she was frightened of her "Ex". The prosecutor noted that she had also asked that man to ring her when she got home, to ensure that she arrived safely. But having said that, the prosecutor submitted that whatever the deceased had said to the applicant "even putting it at its highest", it was he who created the situation. If she had told him to get out and shouted at him, the prosecutor asked, were they truly provocative acts "even in the background of the hostilities and unhappiness between them"?

215. In his final address defence counsel had an abundance of material on which to draw for his contention that the deceased woman may have reacted as the applicant, in his record of interview, said she did. In his address he submitted that the deceased had an aggressive and unreasoned approach to matters, and would have reacted that way when the applicant arrived at her home. Because of his postulated hypoglycaemia attack counsel submitted that the applicant's actions would have ceased to be governed by reason, but rather by an attitude of "fight or flight", and in his "short-term desperation simply to shut her up, to make her quiet" and in response to her saying he would not get the child, he reacted as he did. As to the fight or flight aspect "he being bigger physically, than Angela Farnsworth, flight wasn't really necessary". He reacted in "blind rage". Counsel reminded the jury of the applicant saying to police: "I just wanted to quieten her. I just wanted to shut her up".

218. As to the likely reaction of the deceased to the applicant's arrival at her home, defence counsel submitted that the evidence showed her to be a person who generally reacted in an aggressive and a forceful way, in contrast to the applicant, who was a caring, patient, father who had only once before gone beyond his limits of endurance, when he assaulted her in July 2000. Over the years he had been consistently quiet and non-responsive, whereas the deceased was "consistently loud and aggressive towards him . . . indeed, you've even got evidence that she hit him publicly . . .".

221. As to the evidence of Mr Farnsworth, defence counsel said that Farnsworth was himself in a matrimonial dispute with the deceased and may have "revved up" the applicant by telling him of his concerns about the treatment of the children by the deceased. In discussing Farnsworth, counsel said that the jury should regard him as an honest, careful witness, but he acknowledged that the prosecutor would respond that he was "a hopelessly biased witness" and added "but for what its worth, I'll take you to some of his evidence". He then very briefly summarised Farnsworth's evidence of there being heated discussions he had witnessed between the two protagonists, and that it was the deceased who would raise her voice. Much less was made of Farnsworth by counsel than the evidence of other witnesses, and it seem plain that counsel recognised that other witnesses might be more readily accepted by the jury.

224. Counsel then summarised, often in detail, evidence from many witnesses, of there having been heated arguments, abuse, swearing and similar conduct which they had witnessed from the deceased towards the applicant. The following summary is much briefer than that given by counsel, and it recites only those portions of the evidence of the witnesses that was relied on in the address of defence counsel. If these witnesses had favourable things to say about the deceased and/or unfavourable things to say about the applicant, then those aspects of their evidence were not referred to in this address, and none of these witnesses were the subject of comment or summary by the prosecutor in his final address:

(a) Chris Denmead, (the brother of the deceased) "On one occasion of an argument she was yelling and screaming; he was quiet. On the Tuesday night before her death she told him by telephone that "I'm standing here with a hammer in my hand, making sure Denis takes his stuff and goes". Counsel submitted "that gives you a picture of a woman who wasn't afraid to get stuck into Denis, and indeed to arm herself when she felt it necessary". (b) Paul Ivelja. As to the July 2000 fight, "I know that she attacked him so I assumed that, yes, it was physical". (c) Jillian Johnston She'd swear at him; put him down; he was always trying to placate her; he was never nasty or raised his voice. Had seen her "pushing" him physically; "even when sober, was not scared of literally pushing, physically pushing Denis around". Would tell him to "piss off". (d) Mark Trewin She had " . . .such a bad temper"; he very mild, "complete opposite"; would always try to calm her down. (e) Sharon Mitchell Described as one of the strongest supporters of the deceased. The deceased was "a very strong minded young woman . . she wanted it done her way"; always arguing and fighting. (f) Marcelle Sharp Arguments between them; didn't see Denis get angry, ever; Angela raised her voice; deceased said that if the fathers got her children it would be over her dead body. (g) Craig Hamilton Right from the beginning they fought a lot; she was loud, aggressive, abusive; he was quiet and wouldn't say anything. (h) Monica Ivelja In the July 2000 incident "Angela had attacked him and he'd defended himself, and he said that she just attacked him. ". (i) John Antica She'd be pretty loud; he was just quiet. (j) Trevor Drew She seemed to be aggressive towards Denis; never seen him react aggressively, he was anything but aggressive. He would retreat into kitchen. (k) Sue O'Dwyer A lot of stress, a lot of yelling. She saw an argument in the driveway: "Angela walked up to him and hit him in the driveway . . She slapped him across the face". He was stunned, shocked and did nothing really. Nothing really caused her to slap him. Counsel said that this evidence showed that "she wasn't afraid of having a go at him and when you come to consider whether Denis Gojanovic was telling the truth about, "we had a bit of a wrestle", that evidence should assist you".

228. That brief summary from the eleven witnesses to whom counsel referred, puts into perspective the omitted evidence which it is now said was so important to the defence case.

231. The onus is on the Crown to establish that the proviso ought be applied, on the basis that there was no substantial miscarriage of justice: see R. v. Konstandopolous[22]; R. v. Weiss[23]. The test whether a substantial miscarriage of justice has occurred has been variously stated: whether the ruling deprived the applicant of a real chance of acquittal[24]; whether the applicant lost a chance which was fairly open to him of being acquitted[25]; whether the conviction was inevitable[26]. In R. v. Weiss,[27] Callaway, J.A. concluded that all of those statements amount merely to different ways of stating the same test. In my opinion, when the test, however, stated, is applied to the trial which was conducted in this case no substantial miscarriage of justice arose from the exclusion of this evidence from Farnsworth. Subject to what I say about ground 7, I would dismiss the application for leave to appeal against conviction.

234. There remains the question of ground of appeal 7.

238. Although listed as a ground of appeal, ground 7 is an application to produce evidence "for the purpose of considering whether the proviso is applicable, should that question arise". For the reasons stated above, in my view the application of the proviso is in issue here, but in my opinion the proposed evidence is irrelevant to that question.

241. The "new" evidence is an affidavit from Professor Geoffrey Nicholson, the Professor of Medicine, and head of the Department of Clinical and Biomedical Sciences at Melbourne University. Professor Nicholson was a witness on the plea for the applicant, but did not give evidence at the trial. It is not contended that his evidence was "fresh", since it was available to be given at the trial had he been called. In the affidavit the deponent makes observations about the likelihood of the applicant having suffered a hypoglycaemic attack at the time of the killing of the deceased. The deponent makes a number of critical observations about the evidence of expert witnesses called at the trial, in particular stating that Dr Odell, who was called by the Crown, was wrong in his evidence as to the likelihood and effect of the onset of such a condition.

244. It is quite apparent that the opinions expressed by Professor Nicholson are predicated on a range of assumptions about the state of the evidence, such assumptions being critical to his conclusions. It is not, however, necessary to consider the merits of the assertions in the affidavit. I earlier cited the joint judgment in Conway v. The Queen[28]

which is consistent with the conclusion that the application of the proviso in this case requires consideration of the potential effect of the omission of the evidence ruled inadmissible on the chances of acquittal in that trial. The question is not concerned about what might be the prospects of success of a new trial should one be granted.

249. When a new trial is ordered under s.568(1) the trial is set aside because error has been found in its conduct on one or other limb of that section, and the proviso did not save the trial. Counsel could provide no authority for the proposition that evidence of the kind proffered here could play any part in those decisions. In effect, counsel seeks to have the court rule that the proviso does not apply because on a re-trial a better defence case could be mounted. In every case where a re-trial is ordered it is a consequence of that order that the parties have the opportunity to present their cases differently to the way they presented them at the first trial. Since both sides have that opportunity, experience shows that it is not always to the advantage of the accused person that a second trial is conducted, but it would not be unusual that new evidence and new grounds for challenging witnesses would emerge which might improve the chances of acquittal. That, however, is a side effect of overturning the previous trial, not a basis for so doing.

252. The opinions expressed in the affidavit of Professor Nicholson are untested. They are not relevant to this appeal. If this application for leave to appeal against conviction was refused then their only relevance would be for a petition for mercy to the Attorney General under s.584 of the Crimes Act.

255. Ground 7 does not constitute a ground of appeal, and the matters raised therein do not affect the conclusion I have reached as to the application of the proviso to s.568(1) under ground 6.

259. The conclusion I have reached as to the disposition of the application for leave to appeal against conviction is a minority one. In those circumstances it is inappropriate that I deal with the application for leave to appeal against sentence, and I will say no more as to that application.

[1] R. v. Basha (1989) 39 A.Crim.R. 337.

[2] R. v. Parsons [2000] VSCA 15; (2000) 1 V.R. 161.

[3] [1989] HCA 9; (1989) 166 C.L.R. 283.

[4] [1970] HCA 17; (1970) 123 C.L.R. 334, at 343-344 per Menzies, J.

[5] [1971] VicRp 50; [1971] V.R. 412, at 416.

[6] (1993) 69 A.Crim.R. 209, especially at 220-223 per Gleeson, C.J.

[7] [2000] VSCA 15; (2000) 1 V.R. 161 per Brooking, J.A. at 167 ff.

[8] 166 C.L.R. 285.

[9] [1995] HCA 67; (1995) 183 C.L.R. 58.

[11] See, for example, Mraz v. The Queen [1955] HCA 59; (1955) 93 C.L.R. 493 at 514-515 per Fullagar, J.; Wilde v. The Queen. [1988] HCA 6; (1988) 164 C.L.R. 365 at 371-372 per Brennan, Dawson and Toohey, JJ.; Conway v. The Queen (2002) 209 C.L.R. 203 at 220 and 226 per Gaudron, A-C.J., McHugh, Hayne and Callinan, JJ.

[12] See Grey v. R. [2001] HCA 65; (2001) 184 A.L.R. 593 at 607-608 per Kirby, J.

[14] I later discuss (see par [[]) the various terms which have been employed by judges of the High Court to state the appropriate test. I adopt the term used above merely as a compendious and convenient phrase, leaving closer analysis of the test for the later discussion.

15] (2002) 209 C.L.R. 203, at [63].

[16] On the voir dire, counsel for the applicant asked Farnsworth if he remembered being asked questions by the same counsel, at the committal. He said he could not recall, but "maybe". In a memorandum to the court dated 15 June 2004, from Mr McArdle, however, it is asserted that Farnsworth did not give evidence at the committal. Whatever the correct position, he plainly was not asked about these precise matters to which his statement referred.

[22] [1998] 4 V.R. 381, at 392, per Callaway, J.A.

[23] [2004] VSCA 73, at [64].

[24] Wilde v. The Queen [1988] HCA 6; (1988) 164 C.L.R. 365, at 373; Krakouer v. The Queen [1998] HCA 43; (1998) 194 C.L.R. 202, at [24].

[25] Mraz v. The Queen [1955] HCA 59; (1955) 93 C.L.R. 493, at 514.