R v Green [2002] VSCA 34

16. Shortly before 4 p.m. that afternoon, he went to the Gateway Motel in Wangaratta and booked in to stay the night. He was given room 202. He then commenced making enquiries for the purpose of obtaining a prostitute. Just after 6.30 p.m., he telephoned Border Escorts at Albury. Arrangements were made for Tracey Holmes, who worked as an escort at that agency, to come to Wangaratta at 8.40 p.m. to the applicant's motel room. Ms Holmes was driven down from Albury by the agency's driver, one Gallus, who was also to provide security for her. Mr Gallus stayed in Wangaratta in order to collect Ms Holmes at 9.40 p.m., the booking being for one hour. Throughout the time the applicant had been in Wangaratta before Ms Holmes's arrival, he had been drinking beer at the hotel in company with other people. Statements made by him suggested he may have drunk the equivalent of more than 40 standard glasses of beer by the time Ms Holmes arrived.

19. Shortly after 9 p.m. Ms Holmes telephoned Border Escorts at Albury to arrange for an extension of the booking for an extra hour, thus to conclude at 10.40 p.m. Nothing unusual was noted from that call, and the evidence was that when she entered room 202 at 8.40 p.m. she had been in a positive and happy state. Ms Holmes had not consumed any alcohol and was not a drug taker. Evidence was given by the owner of the Gateway Motel, Mrs Wendy Lister, that at about 10.20 p.m. she was watching football on television. Her quarters were next to room 202, and she heard "a loud thud" coming from the direction of that room. At 10.40 p.m., Ms Holmes did not meet Mr Gallus at the front of the motel as had been arranged, and Mr Gallus immediately began to search for her. With Mrs Lister, he entered room 202 at 10.50 p.m., and found there on the floor the naked body of Ms Holmes, lying face down, wedged against the bed. There were no signs of life.

22. At approximately 5.25 a.m. the next day, two police officers commenced to look for the applicant and found him at the Wangaratta railway station, seated near the main entrance. The applicant was arrested and taken to the Wangaratta police station, where he was interviewed, the record of interview becoming Exhibit O at the trial. Asked about the death of the deceased, the applicant stated that Ms Holmes was lying on her stomach and he grabbed her throat from behind and started to choke her. He said that Ms Holmes started to scream and got off the bed. She was at the end of the bed when he grabbed her again on the neck and choked her hard. He said he instinctively grabbed her the second time because it was the only way to avoid her getting away, and he being in trouble for grabbing her by the neck and choking her hard in the first place. He said she then fell on the floor on her stomach. The applicant said that he sat on her back and grabbed her by the front of the neck and choked her to death. The applicant was asked the following questions:

"Were you squeezing as hard as you could?" "Yeah." "And what were you trying to do when you were doing that?" "Well, I was trying to - to choke her to death." "Trying to choke her to death?" "Yeah." "And is there any reason for you wanting to do that?" "Well, there's - there's no reason but, I had to do it to - just to get out of the trouble spot. She - she - she would have got away, she would have run out the door and that, so." "What were you thinking she might have done if she got out of that motel room door?" "She - she would have gone out. She would have just screamed and probably run to the reception or something."

The applicant also said that the deceased tried to hit him and kick him away - she probably had scratched him in the struggle. He stated that his hands were hurting when he was squeezing her. During the interview the applicant said he thought Ms Holmes was dead and decided to take her handbag. He also agreed that he rang his mother and admitted to her that he had killed someone, telling her that it was a male person. Towards the end of the interview the applicant said that there was too much going through his head for him to "even think". He said he was surprised that he had killed somebody.

27. During the trial evidence was given by Dr Shelley Robertson, a medical practitioner and specialist pathologist with the Victorian Institute of Forensic Medicine, of carrying out an autopsy on the body of the deceased. Dr Robertson stated that the cause of death was asphyxia, most probably by manual strangulation, given the deep bruising to the neck structures. Dr Robertson said that petechial haemorrhaging in the eye and heart which she found was consistent with death by asphyxia or strangulation. She said that the description given by the applicant in his record of interview of the manner in which he had caused the death of the deceased, by sitting on her back and grabbing her by the front of the neck and choking her, was consistent with the findings made by her. Dr Robertson agreed in cross-examination that it was common, in cases of manual strangulation, for there to be an injury or fracture to the hyoid bone and the larynx, and also agreed that a cardiac arrest could occur as a result of pressure being applied to the neck. Dr Robertson referred to this as the mechanism of vasovagal inhibition, which involves a combination of factors, including, most importantly, the nerve-mediated reflex that affects the heart. Her evidence was that when the structures are compressed, the receptors on either side of the neck are thought to send a message to the heart telling it to stop; a hard or firm hold which interferes with these receptors is capable of causing a sudden and unexpected cardiac arrest. Dr Robertson said that the mechanism of vasovagal inhibition would not explain the presence of petechial haemorrhaging on the outer covering of the heart, which would be below the level of obstruction. She said that it was possible that the death of the deceased was due to vasovagal inhibition, if it had followed another event such as a period of choking, sufficient to produce the petechial haemorrhages.

30. Dr Richard Byron Collins was called by the applicant to give expert evidence in relation to strangulation. He agreed with Dr Robertson's finding that the cause of death was asphyxia, though, in his opinion, this did not necessarily indicate a total blockage of the airway. Dr Collins disagreed with Dr Robertson that the asphyxia was most probably related to manual strangulation. He said that the signs of airway compression and venous compression were relatively minor in this case. In his evidence he also referred to the mild incidence of petechial haemorrhaging. In cross-examination, Dr Collins stated that, if the applicant only grabbed Ms Holmes by the neck once and she continued to struggle, then suddenly collapsed thereafter, this would be an unusual way for vasovagal inhibition to operate, because normally it occurs very rapidly.

33. The applicant gave evidence in his own defence. He said that he went to the Gateway Motel and booked a room, since the bus he wanted to catch to Shepparton was not leaving until 6.30 a.m. the next morning. During the course of the afternoon he drank a considerable quantity, on his version in excess of 20 beers, possibly in excess of 40 standard drinks. He made a booking with the escort agency and went to his room and was asleep on the bed at the time Ms Holmes arrived. He woke to the sound of her knocking on the door and let her in. At this time, he said, he was feeling tired and drunk. He remembered her sucking his penis early on, and his next memory was that they were "still having sex". The applicant said that he remembered Ms Holmes was lying on her stomach, and said that he was sitting on her back. They had been having sex for some time and "weren't getting anywhere", and had stopped. He said he was giving her a massage from head to toe. The applicant said that it was possible he could have pinched her, or grabbed her hard on the neck or kneed her, but he said he had no intention to hurt her in any way, nor was there any trouble or problem between them. He was not angry. His evidence continued:

"When that happened, what happened after that?---Because I was on her back, because the bed is near the wall, I fell down the side of the wall and she, she came hitting and screaming at me, and I had to restrain her away from me." "When you say restrain her away from you, what do you mean?

---Because I was in a awkward spot between the bed and the wall. I had to sort of grab her and push her away so restrain her away." "Did you get up or not?---At the time I was still on the floor and after I actually got her away I did get up, yes." "Then what happened?---It sort of stopped for a little while, I'm only talking about 30 seconds to a minute, at the moment she sort of grabbed my groin area and we struggled again." "So what followed from that?---Again, there was a lot of hitting and I had to restrain her a number of times. At the time she did grab my groin area, around the genital area, and it did hurt so I had to sort of like tackle, push her away, and that's when we fell off the bed." "When you fell off the bed what happened following that?---When she fell off the bed I don't know which way I had her, like whatever, but she fell off the bed and that's the way, how she stayed, she lied like that, and there wasn't any movement from that."

Asked by his counsel why he had given a different version in the record of interview the applicant said he was in a lot of shock after being told about the girl's death, that "I was trying to do it my best way as I've been told that I've been accused of strangling her to her death and I had no idea what was - I was trying to tell them." He repeated that they had been fighting on the bed and

"After we got up off the floor, because the bed was just there, we just fell on the bed and we were fighting, it was like there was a lot of hand movements, kicks going along, at some time I think she was standing up, I was standing up on the bed, at times I had to grab her in the face to push her away, grab her around the neck."

He said that "When I got off the floor I probably had her around the neck to push her away, yes". He denied that he was intending to kill her or to cause her injury, and said he was just trying to restrain her, to stop her.

40. In cross-examination, the applicant said, in relation to his answers in the record of interview, that "my mind was very confused in trying to put all that together." He denied that he had had hold of the deceased's neck for five minutes, and repeated that he had only had her throat for a time sufficient to push her away. He said that he had probably had her by the throat for thirty seconds, and that this was because "I was in the struggle, we were fighting, there was a lot of hands moving around." He said that the deceased was not struggling for breath at this time and denied that he had grabbed her on the neck three or four times, saying that it was "only the once when I grabbed her". Later, in cross-examination the applicant was asked:

"Did you give her a whack?---No." "Why not if she is attacking you and grabbing you by the testicles? Why not give her a whack and slow her up?---Because I had no intention of fighting her or hurting her or anything; it was just to restrain her from attacking me." "Did you get angry?---No." "You didn't? I thought yesterday you sort of indicated that could be possible?---Yes, possible, yes." "After, you know, she has attacked you, grabbed you by the testicles or in that area, and I think a bit of liquor in you?---Yes. "You might have got a bit aggressive?---Well, it would be the same in everybody's boat." - - - - - "It is possible you got a bit aggressive?---Yes."

Elsewhere in his evidence the applicant said that he gave certain answers in the interview with the police because he was shocked and saddened by the news of the girl's death. He said he was under pressure and confused. In re-examination he said that he was very confused when the police interviewed him. It was only by the Monday morning that he had started to figure things out in his own mind. He said that he had had a clear memory since that time of what actually happened.

45. Evidence was given for the prosecution by Mr Maxwell Jones, a forensic scientist, who examined blood, hair and fingernail samples taken from the deceased and the applicant. Mr Jones said there was no evidence of semen in vaginal, rectal or oral swabs taken from the deceased. Three used condoms had been found in room 202. Mr Jones found DNA material from both the applicant and the deceased on the condoms but no semen. This was consistent with condoms having been used by the applicant in intercourse with the deceased, with no ejaculation occurring.

48. Evidence was also given by Dr David Wells, a legally qualified medical practitioner and forensic medical specialist in analysis of blood alcohol readings. Dr Wells estimated, by working back, that at 6.08 a.m. on Saturday 29 August, when the interview between the applicant and police officers commenced, his blood alcohol reading would have been in the range of .07 to .1%. Dr Wells calculated that at 10.20 p.m. on the previous night the applicant's blood alcohol reading would have been within the range of .15 to .25%. On the basis of the applicant's statements, Dr Wells was asked to assume that he had had in excess of 40 standard drinks before Ms Holmes arrived at his room. Dr Wells estimated in cross-examination that on the basis of that evidence the applicant's blood alcohol reading would have been very high, in the range of .4 up to .48%. In re-examination Dr Wells said that at very high blood alcohol levels, with readings of .4% and above, the likelihood of being able to give a detailed account of what happens at that blood alcohol level is significantly impaired.

51. I turn now to ground 1 of the application. Ground 1 is in the following terms:

The trial judge erred in advancing a motive for the applicant to assault the deceased, namely, that the applicant was a "frustrated, aggressive client who punished the woman because he did not have the orgasm". This suggested motive

(b) involved a misrepresentation of the Crown address on the question of motive;

(c) was not open to the jury to infer on the evidence; and

(d) created a real risk of speculation on the part of the jury.

59. During the judge's charge, after summarising the evidence of Mr Maxwell Jones as to the condoms, his Honour said:

"You will appreciate what the prosecution puts about that, the prosecution says it cannot [prove] motive in this case, because the accused made no admissions about motive, but the prosecution says it may well be that what happened here was the man had intercourse with the woman, failed to ejaculate, became frustrated and punished her."

Having concluded a summary of the Crown evidence, his Honour then summarised the way each side put the record of interview and said the following:

"The one thing he has left out, the prosecution says, is he left out why it really started, because if you read that interview and you watch it, he explains why he did not want her to escape and cause the alarm, but he never explains why she would have wanted to escape in the first place. He leaves the first bit out. The prosecution says what he has left out is the loud thud that Ms Lester heard at 10.20 p.m. give or take five minutes, and what had happened was that something had indeed gone wrong in that second hour and this is what Ms Lester heard. The prosecution says what went wrong was not that the escort caused the trouble, she was a young woman, she went to the job happily, she was not a drug addict, she was not drunk, she was happy to do that work, when she rang up to get the extra hour there was no code of warning, she was happy to stay on, she did not cause the trouble, she did not attack him for no reason, but the condoms with no semen and the alcohol leading to aggression may be what he has left out. The step is left out that started the problem, a frustrated, aggressive client who punished the woman because he did not have the orgasm. Now the prosecution says you cannot prove the motive because he did not admit it, but it says that may be what he has left out. What you do know is he has left out why the argument started in Exhibit O."

65. This suggested motive had not been referred to during the prosecutor's address at the commencement of the trial. The record of interview was referred to extensively, but it was not suggested that the applicant had left anything out in the manner ultimately attributed to the Crown by the trial judge. Nor was the motive referred to by the judge put to the applicant during the record of interview. During cross-examination, the applicant said he had been so drunk he had trouble finishing the sex and that it was natural to give the deceased a massage. When the judge asked whether "finishing" meant orgasm, the applicant agreed. The applicant was asked whether he got upset about the fact that he could not have an orgasm, but replied "No". He denied several times that he had any need to be angry with the deceased. In cross-examination, he was asked to explain the three used condoms in the room and said he had no idea. He agreed that he had not ejaculated but said this was because he was too drunk.

68. In the prosecutor's closing address, the case as to murderous intent on the part of the applicant was put as depending on the jury accepting that what was said by the applicant in his record of interview was true and correct. The prosecutor put it in the following way:

"Now, at 318 he was asked this, after telling you what was in his mind, his motive for grabbing her the second time - I will talk to you about motive later, because as has been pointed out to you, he gives no reason, gives no motive for his commencing to grab her. The second time he gives a clear reason or clear motive for why he did that, which is explained in the interview, and then he said - well, the police said, 'What was left for you to do' ... And here he says 'I had to - I had to choke her to her death'."

"But as to that superficial attack, there doesn't seem to be any clear explanation. Whether he got angry or upset for some reason, affected, it would seem, by alcohol - there doesn't seem to be much doubt there is a degree of effect of alcohol upon him on this evening, and you heard that he ventured at least a possibility that you can get more aggressive with a bit of alcohol in you, and he might have done on this occasion. Now, whether or not something happened between them, we will never know. Whether there was some dispute about the money and the fact that he hadn't got the enjoyment you may have thought he could have lacked and didn't ejaculate, whether there was an argument about the money, or whatever it is, that's all speculation, and we don't know, and I don't invite you to speculate. We can look at it and consider it, but in the end it's only speculation. We may never know. But it doesn't matter in the end. Clearly, for some reason, he has grabbed her and started, as he said, started to throttle her, and then once he'd started and she got away and was going to raise the alarm, he had to go on with it."

74. The prosecutor's approach, that no motive had been established, was quite plainly taken up and relied upon by defence counsel in his address which immediately followed. Defence counsel repeatedly made the point that there was effectively no motive, and put it that the lack of any sensible motive was a strong circumstantial fact bearing upon the existence of intention. Counsel put it that the lack of semen on the condoms reflected on the applicant's sobriety and his lack of sexual capacity. Near the end of his address, counsel repeated that no sensible motive at all had been established and said:

"His behaviour doesn't suggest that before, and it is - my learned friend was driven in the end to suggest some sort of speculative dispute in the room of which there is no evidence. You are not entitled to guess at things or speculate about things that might have happened inside the room; it is not one of those English television detective stories, where speculation of that sort occurs. You are obliged to refer to the evidence and rely on that and not make guesses."

78. Immediately after the conclusion of the charge, defence counsel took exception to the passages from the charge set out paragraph [14] above, submitting that they amounted to a very strong comment favourable to the prosecution and raised two matters of substantial speculation for the jury, based on minimal evidence that would not justify a finding of fact in that regard, the two matters being the significance of the loud thud and the motive, each in the context of what his Honour claimed the Crown said the accused had "left out". After exception had been taken by defence counsel, his Honour ruled in brief terms that he would not give the jury any further direction, saying that the matters were joined in issue between the parties in the conduct of the trial, and that the evidence was there for the jury, depending upon which facts they found.

81. In a helpful report to the Court, the trial judge took issue with ground 1, drawing attention to the relevant parts of the charge and stating that the absence of semen in the three used condoms and in the body of the deceased was the subject of opening, prosecution evidence and final address. This was unquestionably the case. But, on the other hand, among a number of possible explanations for the absence of semen, the most likely would seem to be that offered by the applicant in the witness box, namely, that he was too drunk to reach orgasm. That this would cause the applicant to want to punish the deceased is another matter altogether.

84. The Director of Public Prosecutions in this Court submitted that if the jury accepted the truthfulness of what the applicant had said in the record of interview, his conviction for murder was inevitable. It was the Crown case that the record of interview was true and constituted a full and frank confession to murder. The Crown divided the events leading up to death into two parts, said Mr Coghlan. The first was some largely unexplained flare-up which occurred between the applicant and the deceased, followed by the series of acts which led to the death of the deceased, to prevent her raising the alarm or making any complaint about what had just occurred. On this basis, the motive related to the killing was clear-cut. The Director submitted that it was only the reason for the earlier incident about which there was any uncertainty. The submission continued that the second passage from the judge's charge quoted in paragraph [14] above is not an unreasonable analysis of what had been put by the prosecutor, and that although the prosecutor did not in terms refer to condoms, it was clear that that was the aspect of the evidence to which he had been adverting. Mr Coghlan argued that defence counsel had failed to deal with the actual motive as put by the Crown, which was to prevent the deceased complaining about his earlier conduct. He submitted that the issue was being elevated above the place it properly bears in the context of what happened during the trial.

87. I have no doubt as to the correctness of the first proposition put by Mr Coghlan. If the jury accepted the truthfulness of what the applicant said in the record of interview, an intention to murder was established and no reasonable doubt could have been left as to self-defence. The difficulty was, however, that in the witness box the applicant had, as I have said, given a quite different version, including, in effect, withdrawing the most damning answers given in the record of interview, and saying that his earlier answers had been given while he was very confused, under pressure and in a state of shock. There was still no clear explanation of why the deceased attacked the applicant in the first place but, on the second version, an explicit denial of any intention to kill or hurt the deceased, and no basis for the motive, to prevent the deceased complaining about his earlier conduct, upon which the Crown sought to rely. In these circumstances, the jury would have had an issue of critical importance to consider: which version they preferred, and whether the applicant's oral evidence left them with a reasonable doubt as to his guilt. In reaching a decision about these issues, the jury may well have been led to prefer the version in the record of interview, if they were satisfied that the applicant had a motive to attack the deceased in the first incident.

90. In the second passage from the charge set out in paragraph [14] above, the judge did, I think, with respect, put to the jury a motive which the prosecutor had expressly declined to ask the jury to find established. The prosecutor had indeed described it, in my view quite correctly on the evidence, as "only speculation". I do not think it can be said that the prosecutor ever submitted that the jury should find established that the applicant's motive was to punish the deceased for his sexual frustration. Defence counsel in his address had, as he was entitled to, placed considerable reliance on the absence of any motive to attack the deceased as a strong circumstantial fact bearing upon the existence of intention. In these circumstances, it was, in my view, wrong for the judge to advance a motive in circumstances that had been expressly described as only speculation by the prosecutor. This motive was advanced on several occasions during the charge. In so doing, I think, with respect, that his Honour introduced a theory of guilt which had not been part of the case put by the prosecution, and thus significantly altered the course of the trial: see King v. R.[1], R. v. G.A.S.[2], and R. v. Kyu Hyuk Kim[3]; and compare R. v. G.A.E.[4].

93. It will be seen that, in the passage from the charge referred to, the judge on a number of occasions said that the applicant had "left out" the reason for his conduct. The jury may well have taken the view that the theory which his Honour had advanced in relation to motive was not just the missing link in the case, but also that the applicant had failed to give that explanation, and that the applicant's guilt could be inferred from the failure to supply this explanation. It seems to me, with great respect, that the judge here also went beyond permissible comment in advancing, and emphasising, his own theory as to motive, and that the comment was likely to have had substantial influence on the jury's deliberations.

96. In R. v. Ioan Ritter[5], an unreported decision to which I was referred by the President, the appellant had been convicted of the murder of his de facto wife. She had died as a result of a stab wound to the neck, inflicted at a time when the only people present were the appellant and the deceased. The appellant's case was that she had stabbed herself. It was an important part of the defence that the two were happy together and that the appellant had no motive to kill the deceased. The Crown Prosecutor in his opening address did not suggest that the Crown could prove a motive, but in his final address submitted to the jury that some evidence showed that the deceased had, shortly before she died, told the appellant that she was pregnant and that this could have constituted a motive to kill her. Counsel for the accused protested at this course, but the trial judge made no reference to the suggested motive in his summing up, saying in his report that the matter had been touched on so lightly that he did not wish to over-emphasise it. The Court of Criminal Appeal held that the way in which the question of motive had been dealt with at the trial gave rise to a miscarriage of justice. Gleeson, C.J., with whom Handley, J.A. and Hulme, J. agreed, said that the subject of motive, or absence of motive, had been of considerable importance in this case. His Honour said[6]:

"The absence of any apparent motive was in the forefront of the defence case. Although the Crown was not legally obliged to prove any motive, the Crown's ability or inability to point to a possible motive was a matter of substantial argumentative significance. I agree with the submission that the Crown Prosecutor's argument on motive was insubstantial and far-fetched. Even assuming that the occasion in question was the first time the appellant had learned of the deceased's pregnancy, there was nothing in the evidence to justify an inference that he would have reacted to that information with jealousy or anger. The hypothesis that, perhaps because of the deceased's lifestyle, he might have inferred that somebody else was the father of the child was mere speculation. Indeed, it is far from clear that this was the hypothesis being advanced. The jury were left entirely without instruction or guidance from the trial judge as to the way they should approach this aspect of the Crown Prosecutor's argument. It was not a light matter, even though it may only have been touched upon lightly by the Crown Prosecutor. If the Crown were contending that it could demonstrate that the appellant had a motive to kill or seriously injure the deceased, then that contention should have been made distinctly, and brought out fully and clearly in argument. The question of motive was too important to be dealt with in a perfunctory fashion by the Crown Prosecutor, and to be disregarded in the summing-up of the trial judge. The Crown Prosecutor did not open to the jury that the evidence would disclose a motive. However, he did put such an argument in his final address, without explaining with any clarity the process of reasoning involved in the argument. According to the trial judge the Crown Prosecutor raised the matter so lightly that to make it the subject of directions would result in over-emphasis. This was not fair to the accused. The Crown Prosecutor should have been required either to enunciate the argument clearly and distinctly or to abandon it. If the argument amounted to nothing more than what has been suggested by the Crown on this appeal, the trial judge should have ruled that it was not reasonably available for the jury's consideration. The suggestion that the pregnancy was a motive for the stabbing should not have been left hanging in the air like a faint, but unpleasant, odour. It was potentially noxious."

100. The present case is, in my view, if anything, stronger than Ritter. Although the absence of semen in the condoms had been referred to in opening, in evidence and in closing, the applicant in his evidence had provided an explanation - his drunkenness - for his failure to ejaculate. The Crown Prosecutor had not suggested a motive in opening, and had said in closing that the Crown could not prove a motive. Defence counsel, as in Ritter, had relied strongly on the absence of motive. In my view the motive to which the judge referred in the charge was a matter of speculation, not reasonably available on the evidence for the jury's consideration. The inclusion of it, and the emphasis placed upon it in the charge, was, with great respect, unfair to the applicant and resulted in a miscarriage of justice.

106. The second ground argued was ground 5, which complains that the judge erred in failing to direct the jury that in order to rely on the admissions in the applicant's record of interview, they had to be satisfied of the truth and accuracy of the admissions. Having regard to the view taken as to ground 1, this ground can be disposed of shortly, bearing in mind that there must be a re-trial of the applicant.

109. The Crown case was that the evidence of murderous intent on the part of the applicant was to be found in the damning answers he had given in Exhibit O, and depended on the truth and accuracy of these admissions. The defence argued that some only of these admissions were truthful but that, in so far as the applicant admitted that he intended to choke the deceased to death or otherwise hurt her, his answers were not truthful; rather they were given by him when he was shocked, very confused and under great pressure, particularly because he had just been told that the deceased had died and he was accused of having strangled her. The prosecution case was that his oral evidence during the trial was truthful in part, but, in so far as it conflicted with his answers in Exhibit O, the record of interview was correct.

112. During the charge, the judge on numerous occasions told the jury that they had to be satisfied beyond reasonable doubt of the elements of murder, and that the principal issue for them was the intention of the applicant. The Director put to this Court that the evidence of intention came from the record of interview and that the jury could only have been satisfied beyond reasonable doubt of intention if it accepted the truthfulness of the record of interview. In his submission, the applicant could not have been convicted of murder unless the jury were satisfied beyond reasonable doubt of these admissions. Mr Coghlan said that this was clearly the way the parties conducted the matter and no exception was taken by defence counsel to the judge's failure to give any direction. Mr Coghlan accepted that the jury were given no directions as to the record of interview, but put it to us that, if the parties had thought of it and asked for an appropriate direction, the judge would doubtless have given one.

115. In Burns v. The Queen[7], Barwick, C.J. and Gibbs and Mason, JJ., said:

"It is clear and elementary law that once a confessional statement has been admitted into evidence its weight and probative value are matters for the jury. It is for the jury to determine whether the alleged confession was made and whether it was true in whole or in part. Unless the jury are satisfied that so much of a confession as tends to show the guilt of the accused was true they cannot treat it as a proof of guilt. However, a confessional statement may only be one piece of the evidence against the accused and the jury are entitled to consider all the relevant evidence together in deciding upon their verdict. The nature of the direction necessary to be given properly to instruct the jury as to the use of evidence of an alleged confession must depend on all the circumstances of the case. 'There is no rule of law or of practice which requires the Judge to caution the jury against acting on such evidence or which prescribes any measure of the comment which it is his duty to make upon it.' (Ross v. The King [1922] HCA 4; (1922) 30 CLR 246 at 255). In some cases it may be clear or undisputed that a confession was made and the crucial question may be whether it has any probative value: for example, it may be suggested that the confession had no weight because it was extracted by force or given under a mistake or because the accused when making it was ill in body or disturbed in mind. In a case such as the present, where the accused person alleges that the confession which he is said to have made is a complete concoction, a reasonable jury, once satisfied that the confession was made, might readily be satisfied also that it was true. In such a case the absence of a specific warning to the jury that they should not act upon the confession unless they were satisfied of its truth might be of less significance than in a case where it was not in issue that the statement was made, but it was claimed that it was untrue."

See also R. v. Perera[8]; R. v. D'Orta-Ekenaike[9]; R. v. Robertson[10]; R. v. Koeleman[11]; Cotic v. R[12]. It is repeatedly emphasised in these authorities that the need for the jury to be directed that before they can rely on confessional statements they must be satisfied as to the truth and accuracy of those statements beyond reasonable doubt comes from the danger that the jury may not recognise that although these statements were made by the accused, it does not follow that they must be truthful; and that it is more important to give the direction where the accused does not dispute making the statements but says they were not true.

120. In the present trial, the prosecution case, as I have said, depended principally, if not wholly, upon the jury accepting that the statements in the record of interview were truthful, in circumstances where the defence accepted that the critical statements had been made but now denied their truth. In my view this was a case where the jury should have been given a direction, fashioned to meet the facts in issue between the Crown and the accused, that the jury could not use the confessions in the record of interview unless satisfied beyond reasonable doubt that they contained a truthful and accurate account of the applicant's involvement in the offence.

123. I would allow the appeal against conviction on ground 1, quash the verdict of guilty of murder and direct that there be a new trial of the applicant.

127. I agree, for the reasons given by Charles J.A., that this application should succeed and that there should be a re-trial.

130. Mr Coghlan, the Director of Public Prosecutions, was correct to submit to this Court that this was a strong Crown case against the applicant. However, its strength was centred upon the confessional statements made in the applicant's record of interview with police shortly after his apprehension on the Saturday morning following the commission of the crime. It was the truth and reliability of these statements which the applicant had put in issue in his sworn evidence at the trial. The applicant was entitled to have that issue fairly tried by the jury, free from the trial judge's direction inviting them to speculate, and in my view that is all it could have been, about what the applicant had "left out" of his record of interview with police, and whether the motive behind the applicant's aggressive conduct was not to be found in frustration and a desire to punish born from a failure to reach orgasm. Having regard to the narrowness of the issue being fought at the trial, I am unable to accept the Director's submission that this erroneous direction has been elevated beyond its true significance, particularly when viewed against the background of the differing opinions of the pathologists as to the cause of death.

133. I am also of the view, like Charles, J.A., that because the evidence of the applicant put in issue the truth and reliability of the confessional statements upon which the Crown relied in proof of guilt, it was appropriate that the trial judge should have told the jury that they could not act on such statements unless satisfied that they were true and reliable acknowledgments of guilt.

136. It was not suggested that, if this Court was of the view that grounds 1 and/or 5 had been made out, the verdict could be saved by an application of the proviso. Accordingly, it must be quashed and a new trial ordered.

141. I also agree that, for the reasons given by Charles, J.A., the application should be disposed of as is proposed by his Honour.

145. The formal order of the Court is that the application for leave to appeal against conviction is allowed. The appeal is treated as having been instituted and heard instanter; it too is allowed. The verdict of the jury is quashed and a new trial of the applicant is ordered.

A certificate will be granted to the applicant under s.14 of the Appeal Costs Act.

[1] [1986] HCA 59; (1986) 161 C.L.R. 423 at 432.

[2] [1998] 3 V.R. 862 at 878-879.

[3] Unreported, Court of Appeal, 8 April 1998, at p.16.

[4] [2000] VSCA 18; [2000] 1 V.R. 198 at 203-205, per Winneke, P., dissenting.

[5] Unreported, Court of Criminal Appeal of NSW, 31 August 1995.

[7] [1975] HCA 21; (1975) 132 C.L.R. 258 at 261.

[8] Unreported, Court of Criminal Appeal of Queensland, 21 August 1985, at 7-8.

[9] [1998] 2 V.R. 140 at 147.

[10] [1998] 4 V.R. 30 at 40-41.

[11] [2000] VSCA 141; [2000] 2 V.R. 20 at 27-29.

[12] [2000] WASCA 414, delivered 21 December 2000, at 5-7.