R v Harvey [2001] VSCA 19

5. By notice dated 31 March 1999 the applicant applied for leave to appeal against conviction on the single ground that "the verdict of the jury was unsafe and unsatisfactory". No distinction was drawn in the notice between the verdict on the count of theft and that on the count of armed robbery, but concentration has been focussed throughout on the latter count. The application for leave was initially listed for hearing on 3 May last year, when the applicant represented himself. He had beforehand engaged in correspondence with the Registrar of Appeals, the Ombudsman, the Bank of Melbourne and others with a view to obtaining some objective evidence of the time at which the armed robbery in question had occurred. He persuaded the Court, on that occasion, to adjourn the hearing and to order the issue of a subpoena, to be settled by the Registrar and directed to the Bank, requiring production of documents and other material showing "the precise time" of the armed robbery.

8. The importance to the applicant of establishing the precise time of the robbery was said to arise from the circumstantial nature of the Crown case. The allegation was that the applicant committed the theft of the motor car and the robbery with two other men, Bianco and Rodaughan (the latter of whom was proved to have pleaded guilty to the offences) and that firearms used in the robbery had been obtained from one Gary John Powell. It happened that on 14 December 1995 Powell, being under suspicion of other criminal activity, was under covert surveillance by police at some Housing Commission flats at 366 Bell Street, West Heidelberg and that one of the several officers conducting the surveillance was Senior Constable Bradshaw. Employees and customers of the Ivanhoe Branch of the Bank of Melbourne gave evidence at the trial to the effect that the robbery occurred at about 1.30 in the afternoon of 14 December. The evidence of another witness, however, who happened to be an employee of another bank nearby, suggested that the robbery might have been perpetrated closer to 1.45 p.m. Bradshaw gave evidence to the effect that, in the course of conducting his surveillance of Powell, he saw the applicant (whom he knew) at 1. 38 p.m. on the day drive a car to and park it at the rear of the flats at 366 Bell Street (some four or five minutes' drive northerly from the scene of the robbery) and saw him alight from the car, return to it at 1.54 p.m. and drive it away. The applicant neither gave nor called evidence at his trial but his defence raised the very serious contention that he could not have been present at the site of the armed robbery if it had occurred at about 1.45 p.m. because, according to Bradshaw's account, he was obviously elsewhere. That is to say, an attempt was made to use Bradshaw's evidence in support of an alibi. Hence the applicant's keen desire to obtain some objective evidence of the time of the robbery to place it before the Court of Appeal in support of the thesis that the verdict was "unsafe and unsatisfactory".

11. Although a subpoena was apparently served on the Bank shortly after the case was before the Court on 3 May last, nothing seems to have come of it. The case was listed again in September last year but was further adjourned to enable a subpoena to be served on the Chief Commissioner of Police with a view to eliciting material that might establish "the precise time" of the robbery. It was only in the early part of February this year that useful information was provided to the parties from that quarter. It is sufficient to say, without going into detail, that some tape recordings made of messages received at the State Emergency Communications Centre for the Victoria Police indicated that the robbery in question was first reported very shortly after 1.30 p.m. on 14 December 1995 and that, in all probability, it began a minute or two beforehand. Having received that information, those advising the applicant sought and obtained leave from the Registrar of Appeals to add a second ground to the application for leave to appeal as follows:-

"That there has been a miscarriage of justice as evidence was not produced at the trial which would have materially assisted the applicant in his defence; namely material which would establish the time of the armed robbery: (i) video tapes; (ii) audio tapes of telephone calls and radio calls and their times; (iii) evidence of a wall clock; (iv) running sheets."

15. When the case was called on before this Court for the third time, on 19 February last, counsel for the applicant, Mr. Gamble, (who had not previously appeared for him) sought another adjournment for the purpose of seeking yet further information from the police. Faced with the lately-revealed material that tended to support the Crown case that the armed robbery had occurred at around 1.30 p.m. on the day, the applicant could not seriously expect to rely upon an alibi that Bradshaw's evidence might have sustained. Counsel therefore sought to enlist this Court's aid by way of the issue of a fresh subpoena for production of documents, audio tapes or other material that would indicate the identity of police officers who attended the scene of the armed robbery, and whether any of those officers had been conducting surveillance upon Powell at the Bell Street flats. By this means it was hoped, as counsel frankly put it, that Bradshaw might be shown to have been one of those who attended the robbery scene and that, if so, his evidence of his sighting the applicant near the Bell Street flats at 1.38 p.m. might be discredited, thus casting doubt on the satisfactoriness of the verdict. Hence the applicant, instead of relying on the accuracy of Bradshaw's evidence as previously, sought an opportunity to denigrate it. The application to us for an adjournment, placed as it was on that footing, was nothing if not adventurous. For reasons given at the time we rejected it, whereupon counsel abandoned the added ground and concentrated on the original one - simply that the verdict was "unsafe and unsatisfactory". The gist of the argument advanced in support was that the Crown case, which was admittedly entirely circumstantial, was insufficient to link the applicant satisfactorily with either of the crimes with which he had been charged, or with Bianco and Rodaughan, neither of whom had implicated him.

18. There was clear and uncontested evidence that the vehicle the subject of count 1, a navy blue Holden Commodore sedan registered number DZV 107, had been taken from Herbert Street, Northcote on the night of 13 December 1995 without the consent of the owner and that an armed robbery of the Ivanhoe branch of the Bank of Melbourne occurred the next day. Evidence that was relied on by the Crown to implicate the applicant in each of those crimes was in substance as follows -

(a) On 3 December 1995 one Bertoni reported the theft from his premises at 100 Bruce Street, Preston of a rifle and two double-barrelled 12 gauge shotguns, one with external hammers and one without.

(b) The firearms had been stolen by Powell[1] who, having thus obtained them, cut down the barrels of the gun with external hammers and sold the other to Rodaughan for $80.

(c) Powell lived in the block of Housing Commission flats on the north side of Bell Street, West Heidelberg at number 366, and Rodaughan lived in an adjacent block on the same side at number 354.

(d) On Thursday 14 December 1995[2] police began the surveillance operation which centred on Powell. Senior Constables Bradshaw, Woods and Howey were among the police officers concerned. At about 8.30 a.m. Bradshaw, in an unmarked police car, took up a position in Bardia Street, which runs parallel to Bell Street, immediately to its north, and gives access to car parks directly behind the flats at numbers 354 and 366 .

(e) At 9.55 a.m. Bradshaw observed a green Ford sedan registered number NNB 305 leave the car park at the rear of 366 Bell Street. It was driven by the applicant with Rodaughan and Bianco as passengers. Senior Constable Woods followed it to an address in Preston where the applicant alighted, ultimately returned to the car having changed his shirt, and drove away.

(f) Senior Constable Howey observed that by 10.27 a.m. the Ford NNB 305 had been parked in the car park at the rear of the flats at 366 Bell Street and saw the applicant step out of it.

(g) At 10.32 a.m. the Ford NNB 305 and the stolen Commodore DZV 107 left the car park at 366 Bell Street in convoy, driven by the applicant and Bianco respectively. The vehicles were followed by police (apparently unobserved) to a service station in Bell Street, where Bianco stepped out of the Commodore and filled the petrol tank. The applicant stepped out of the Ford and entered the shop, soon emerged with a carton of flavoured milk and stopped to speak to Bianco before walking back to the Ford. Police photographs, in colour, of each car and its driver were taken at that time depicting the applicant holding the carton in his left hand, apparently drinking from it through a straw. There was other direct evidence, given by witnesses who had watched them at a later time sign their names, that the applicant was left-handed and that Bianco and Rodaughan were each right-handed.

(h) According to Powell, Rodaughan approached him at his flat at "around 11 or 12 o'clock" and asked to borrow the stolen shotgun with the external hammers and he gave it to him. Earlier that morning Powell had seen Bianco park a blue Commodore, and the applicant park a green Ford near the Commodore, in the car park at the rear of the Bell Street flats.

(j) At about 12.22 p.m. police observed the Ford NNB 305 and the Commodore DZV 107 leaving the Bell Street flats in convoy.

(k) The Ivanhoe branch of the Bank of Melbourne occupies one of a row of retail premises in Upper Heidelberg Road, at number 167, on what may be called for present practical purposes (if not with strict geographical accuracy) the north side. The Ivanhoe branch of the Commonwealth Bank occupies premises next but one on the same side of the road and to the east of the Bank of Melbourne. A lane runs east and west along the rear of the retail premises, parallel to Heidelberg Road, leading in a westerly direction to Waterdale Road, which runs north and south; and nearby, running generally westerly off Waterdale Road, is Green Street. Access can be had to the lane, from a pathway running north from Upper Heidelberg Road alongside the Commonwealth Bank branch, and thence to a piece of generally vacant land on the eastern side of Waterdale Road. The intersection of Green Street and Waterdale Road is barely 200 metres from the rear of the Bank and is less than two kilometres south of Bell Street.

(l) Mrs Sheridan Palmer-Bull, swore that between about 12.30 and 12.45 p.m. she was returning home in her car. She was turning from Waterdale Road into Green Street when she had to give way to a four-door sedan, a dull sea blue in colour, with two or three persons inside. The car came at high speed from the driveway of a unit in Green Street and drove into Waterdale Road. She was shown photographs of the stolen Commodore DZV 107 and said that the vehicle she saw was fractionally lighter blue in colour, which she described as a "cold grey sea-blue".

(m) At about 1 p.m. Mrs. Palmer-Bull's husband, Mr P.J. Bull, (who apparently lives on the western side of Waterdale Road, generally to the north-west of the rear of the Bank of Melbourne premises) heard a car stop in a lane on the western boundary of his property. He heard a car door open and close. On opening his back gate he saw what he called a blue-green, or turquoise, Ford sedan in the lane and two men nearby. He saw one of the two men come back to the car and told him that he could not leave the car there because the lane was regularly used by others. He described the man as being about medium height (5 ft 10 ins), relatively thin and dressed in light-coloured clothing, including a T-shirt and with tattoos on his arm. There were two sports bags inside the vehicle. The man stepped back into the car and drove it away. Mr Bull did not obtain the registration number of the car but recalled to police that its number plates were of the then recently- introduced blue and white variety. Upon being shown at the trial the coloured photograph of the applicant's Ford NNB 305 taken at the service station on 14 December (whose number plates happened to be of that variety) he swore that "that could well be the colour" of the car he saw.

(n) At about 1.15 p.m. Mrs A.G. Sprague parked her car in a parking area north of the lane directly behind the Bank of Melbourne's premises. Stepping out of her vehicle, she walked westerly down the lane, parallel with Upper Heidelberg Road. She saw two men come out of the back of a disused or vacant house on the north side of the lane, evidently facing west towards Waterdale Road. Both wore hooded tracksuits with the hoods pulled up over their heads. It was a warm day and, as she said, too hot to be wearing clothing in that manner. One carried a sports bag and, as she walked past the men, she looked at them. They turned their faces away furtively. She turned round and looked at the two again, who stared back at her and she felt uncomfortable. She continued walking westerly down the lane, turned left to enter through the rear of a shoe shop, walked through it to the front door to get to Upper Heidelberg Road and then, after doing some window shopping, turned left again and continued for two or three doors until she reached the front door of Bank of Melbourne. She had intended to enter the bank but was told by a bystander that a robbery was in progress and that she ought not to go in. Mrs Sprague estimated that, from the time she first saw the hooded men until the time she received that information about five to seven minutes had elapsed, although her estimates of times were "purely guesstimates".

(o) One Papadimitrakis, a shopkeeper whose premises were on the same side of Upper Heidelberg Road as the Bank of Melbourne's, and some four to five doors east, was walking along the lane to the rear of the shops when he saw two men about 20 metres ahead of him wearing tracksuits with hoods pulled up over their heads. He said that they were both carrying sports bags. He referred to no times.

(p) Nola Mary Timmins was working at the Ivanhoe branch of the Commonwealth Bank at 177 Upper Heidelberg Road, which is two doors east of the Bank of Melbourne branch. She swore that she took her lunch break at 1.45 p.m. and went out to the rear of the Commonwealth Bank premises, which led to the lane of which Mrs Sprague and Mr Papadimitrakis spoke in their evidence. While standing there smoking a cigarette she saw two men walking from the direction of Waterdale Road (from her left to her right) along the lane. They were wearing what she described as parkas with the hoods up. One of the men was carrying a blue sports bag over two feet long, and he started walking faster ahead of the other. Both of them walked past her along the lane and disappeared behind a fence.

(q) Evidence of the armed robbery itself was given by two of the Bank of Melbourne's employees and four of its customers. Five of these witnesses swore that it occurred at about 1.30 p.m. while the sixth had it about 15 minutes earlier. The witnesses described the event more or less variously but much of their evidence tallied and was verified by photographs taken by the bank's security camera. The photographs confirm oral evidence that two men wearing hooded jackets, dark pants, running shoes and gloves, entered the bank, each carrying a firearm. One of them, wearing a hooded spray jacket (described by witnesses as blue) remained in the customer area while the other, wearing a dark jacket with adidas emblazoned across the front, jumped the counter and removed money from cash drawers. $14,780 was removed. The photographs show that each of the men carried a long fabric bag, described by one witness as a "sport bag".

(r) The robber who remained in the public area is shown in the photographs pointing or waving a double-barrelled sawn-off shotgun, held in the left hand, in the direction of the counter. The bag, held in the other hand, is distinctive in that it is clearly shown to bear, on one end of it, a Coca-Cola logo and, on the side, a Channel 9 television logo. The other robber is shown to be carrying a black or dark-coloured bag, perhaps somewhat smaller than that held by his confederate.

(s) Senior Constable Bradshaw's evidence of his sighting of the applicant at 1.38 p.m. on 14 December, to which I have briefly referred, was more particularly as follows. Bradshaw at that time was seated in an unmarked police car parked in Bardia Street which, it will be recalled, is some four or five minutes' drive from the Bank of Melbourne. He saw the Ford sedan, NNB 305, travelling easterly along Bardia Street and turn into the carpark at the rear of the flats at 354 Bell Street. From a distance of about 25 to 30 metres he saw Bianco step out from the passenger side carrying "a medium sized carry bag"; and saw Rodaughan, wearing a black singlet and dark-coloured pants, alight also from the passenger side carrying some cans of beer. Bianco and Rodaughan walked off at a fast pace in a westerly direction towards the flats at 354 Bell Street. Then the applicant alighted from the driver's side of the vehicle carrying a "medium-sized light blue bag with light coloured markings on it, on the side". The applicant was then wearing a "light coloured T-shirt" which he removed and placed in the bag and ran in a westerly direction, wearing no clothes on his upper body, following Bianco and Rodaughan. In the course of giving this evidence in-chief Bradshaw was shown photograph 11 in a bundle taken by the bank's security camera at the time of the robbery and which depicted the bandit in the public area of the bank holding the bag with the Coca-Cola and the Channel 9 logos. He swore that the bag was "identical to the bag I saw". He maintained that opinion even though the photograph was not in colour. Bradshaw swore further that he saw the same bag on 19 December 1995 at the Armed Robbery Squad office. There was unchallenged evidence that the bag had been found by police on 16 December 1995 in a rubbish bin outside the flats at number 366 Bell Street. It was the Crown case that the hooded robber depicted in photograph 11, holding a sawn-off shotgun in the left hand and the bag in the right was the applicant. The bag was tendered at the trial as exhibit H. The exhibit was not produced during argument in this Court but I have since asked for its production and examined it. A comparison of the exhibit and the bag as depicted in photograph 11 appears to me to bear out Bradshaw's opinion. At 1.54 p.m. on 14 December Bradshaw saw the applicant drive the Ford NNB 305 away from the car park at the flats and travel west along Bardia Street. The applicant was then wearing a white T-shirt.

(t) At about 2.14 p.m. Senior Constable Howey saw Bianco, wearing a yellow top and black pants, emerge from 354 Bell Street and hail a taxi in Bell Street. Police photographed him doing so. Bianco then was seen to enter the flats, whereupon Rodaughan came out and stepped into the front passenger side of the taxi. Bianco soon came out again carrying a large blue, red and white sports bag and stepped into the back seat of the taxi, which then departed.

(u) At about 4 p.m. the stolen Commodore DZV 107 was found by police in a lane in the vicinity of the lane of which Mr Bull spoke in his evidence.

(v) Police officers next saw Bianco and Rodaughan at 4.19 p.m. walking towards the flats and enter number 354. At 4.21 p.m. Bianco emerged carrying a large black sports bag and walked away in a westerly direction towards number 366 Bell Street. Shortly afterwards he was seen to emerge from number 366 carrying a black Adidas sports bag and to walk to his house nearby at number 4 Poplar Crescent, West Heidelberg, where he entered a shed at the rear of the premises. He emerged shortly afterwards without the sports bag.

(w) At 4.24 p.m. Bradshaw saw Bianco walking in an easterly direction along Wilkinson Crescent, which runs parallel to and just south of the Bell Street flats. He was carrying a "medium-sized" black bag similar to the bag that Bradshaw had seen him carrying from the Ford sedan at 1.38 p.m.

(x) At about 5.50 p.m. police arrested Bianco in a street near his house and, upon searching the house, they found in the shed at the rear the two sawn-off shotguns that had been stolen from Bertoni. Later the same night Rodaughan was arrested and had with him a wallet containing $1,120.

(y) Very early in the morning of 15 December 1995 police attended a house at Lalor, where the Ford NNB 305 was parked in the driveway, and arrested the applicant.

24. At the end of the Crown case counsel for the applicant made a submission of no case which the learned judge rejected, and properly so. There was, as his Honour held, certainly evidence upon which a reasonable jury might convict. The question for this Court is, of course, a different one. The expression "unsafe and unsatisfactory" - possibly tautologous as the applicant's notice has it[3] - is apparently to be understood in the context as meaning "unsafe or unsatisfactory" or, it seems, simply "unsafe", in the sense that it gives rise to the question whether it was open to a reasonable jury to be satisfied beyond reasonable doubt of the applicant's guilt: Chidiac v. The Queen[4]. There was no complaint that evidence was admitted which should have been excluded. Nor was the conduct of the trial a subject of complaint: indeed, if I may say so, it seems to have been entirely fair. Rather, counsel for the applicant directed attention to certain features of the evidence that, as he submitted, rendered the verdict suspect. This was not said to be a case, such as Chidiac, in which a witness was, or was likely to be, consciously or obviously untruthful. Nor was it said to be a case, such as Morris v. The Queen[5], in which the verdict could be seen to depend on evidence that was for some reason inherently unreliable or improbable. Moreover, the case is quite unlike, for example, M. v. The Queen[6] in which the jury were invited by the Crown to accept one version of events and to reject another in order to decide whether an offence had been committed at all. Here, by comparison, the Crown was seeking to prove an accused person's participation in a crime that undoubtedly happened; and it was a classical example of an attempt to do so by reference only to circumstantial evidence. In such a case identification may be inferred from all the facts and circumstances in evidence. Identity may be established where appropriate purely by circumstantial evidence, for example by proof of any relevant distinctiveness of size, shape, voice, clothing gait or left-handedness; or by reference to any relevant physical or mental peculiarity of conduct of or idiosyncratic marks or traces left by the accused.[7] So much is scarcely more than common sense. Practical examples must be legion, although most reported cases exemplifying the principle appear, understandably, to deal with the admissibility of circumstantial evidence of this kind rather than its application. A case not dissimilar from the present was the decision of the British Columbia Court of Appeal in R. v. Braumberger and another.[8] There, the evidence established clearly that three men committed an armed robbery of a bank in Victoria, B.C. They wore masks and escaped in a motor car. The evidence of identity was circumstantial save for the direct testimony of one witness to whom the face of one of the robbers, called Duck, was revealed for a short period at the bank. Duck was identified by that direct evidence. No evidence was called for the defence. A number of witnesses called for the Crown testified to the association almost continually together of the three accused in Victoria during the week preceding the robbery and from two to four hours thereafter. All three were convicted and appealed. Duck's appeal was separately dismissed and, dealing with that of the other two, McFarlane, J.A., delivering the judgment of the Court, expressed himself[9] to be in no doubt that in the circumstances -

"...evidence of the appellant's association with Duck at the times mentioned above was relevant to the issue of identity of the two persons who participated with Duck in the robbery and was therefore admissible for consideration by the jury. The weight to be attached to that evidence as well as the direct evidence of Duck's identity was a matter for the jury. In my opinion it cannot be said correctly that this evidence was of such slight probative value and so prejudicial as to require its exclusion..."

So here, none of the evidence of association between the applicant, Bianco and Rodaughan having been objectionable, it was for the jury to consider it all in order to decide whether the Crown had proved the applicant's guilt beyond reasonable doubt.

29. In the end the Crown case against the applicant depended not at all on his actual identification by witnesses at or near the scene of the robbery: none of the witnesses could say whether he had been there. The chief question for the jury was whether the accumulation of available evidence was sufficient to entitle them to be satisfied beyond reasonable doubt as a matter of logical inference that the applicant, who was before and after the bank robbery seen to be within a limited radius of the bank in very particular circumstances, was a participant in it. A subsidiary question, no doubt, was whether the stolen Commodore was used by the applicant so that he might be regarded as a party to its theft.

32. Counsel for the applicant made criticisms of the various categories of evidence, pointing to shortcomings by way of inconsistencies between one witness and another as to height, build, clothing and other physical characteristics of the suspect individuals they sought to describe. Some of the criticisms were fairly made and were valid so far as they went. For example, it may be accepted that, as counsel submitted, the evidence of Mr Bull and his wife was insufficient to describe with any substantial accuracy the men in either of the motor cars that they described. Again, the evidence of witnesses who sighted the hooded men in the lane behind the bank premises was by itself insufficient to go far towards identifying them. Likewise, the evidence of none of the witnesses who were in the bank and saw the robbers was sufficient to provide an accurate description by which to identify the applicant as a participant; and that is scarcely surprising, having regard to the distressed state into which those witnesses were probably driven and the limited opportunity they had to observe identifying features of the bandits. There were also valid criticisms to be made, as counsel suggested, of some aspects of the evidence given by the police surveillance team. For example, the notes kept by the police officer whose assigned task was to log the various observations made and incidents encountered during the day were in some respects irregular. There was no mention of the applicant by name in the notes even though Bradshaw claimed to know him from previous experience. There were other justifiable criticisms of the detail of the Crown case.

35. The various criticisms of detail, individually valid though they may be, leave out of account much of the ultimate value to the Crown case of the evidence taken as a whole. This was a case that invited an appreciation of the overall effect of the evidence by way of painting a picture from an accumulation of detail. Evidence of some of the detail might be inaccurate, internally inconsistent or incomplete but that might not ultimately signify, for it has been well said that in such a case the effect of the detail is not necessarily the same as the sum total of the individual details[10]. So, in Shepherd v. The Queen[11] Dawson, J. observed that -

"... with most crimes it is a necessary fact that the accused was present when the crime was committed. But it may be possible for a jury to conclude that the accused was guilty as a matter of inference beyond reasonable doubt from evidence of opportunity, capacity and motive without expressly identifying the intermediate fact that the accused was present when the crime was committed."

Here, the value of the evidence of Mr Bull and his wife was to give verisimilitude to the likelihood that three men were concerned in the armed robbery and that two motor cars were used in the course of its perpetration, one of which was the stolen Commodore that was found abandoned later on 14 December. The value of the evidence of the witnesses who sighted the hooded men in the lane behind the bank, and of those who were present in the bank, was not so much to contribute to the identification of the men as to convey an idea of the logistics of the robbery. The evidence of the surveillance team, to the effect that the applicant was in close company with Bianco and Rodaughan some three or more hours before the robbery, and again in the hour or so immediately before the event, and again very shortly after that , and then for some appreciable time afterwards again, was eloquent of his opportunity to participate and of his capacity to do so. This evidence could scarcely be sensibly regarded in isolation from the uncontested evidence of Rodaughan's acquisition from Powell of the two stolen firearms ¯ one of them some days before 14 December and the other on the morning of that very day ¯ and the further evidence that the same weapons were found later that day at Bianco's house, and of the manner in which, and the place from which, they probably got there. To that is to be added the evidence of Rodaughan's plea of guilty to the two offences equivalent to those with which the applicant stood charged, and of the applicant's left-handedness.

40. The evidence of the applicant's activity in the few hours before the time of the robbery was insufficient of itself to implicate him in it. That evidence, however, in association with the evidence of his conduct in the few hours afterwards, in the context of all the other evidence, including the objective evidence of the robbery itself, justified a different conclusion. In the context overall, the evidence of Bradshaw that at 1.38 p.m. on the day, at the car park behind the flats at 354 Bell Street, the applicant carried the bag depicted in the photograph 11, or one identical to it, pointed very powerfully, if accepted, to a conclusion that he had been the bandit who was proved by the photograph to have carried such a bag at the time of the robbery. I need say only that the jury were in my opinion very well entitled so to conclude beyond reasonable doubt; and that they were entitled also to conclude beyond reasonable doubt that the applicant was a party to the unjustified use of the Commodore motor car, and that he was therefore guilty of having stolen it.

43. The application for leave to appeal against conviction should accordingly be refused.

48. On this application I have had the benefit of reading the judgment of Tadgell, J.A. in draft form and, for the reasons he states, I am also of the opinion that the application should be dismissed.

53. In my opinion, the application for leave to appeal should be refused for the reasons stated by Tadgell J.A.

[1] By the time of the applicant's trial Powell had died. What was attributed to him at the trial derived from his deposition at the applicant's committal proceeding, and cross-examination thereon, all of which was read to the jury.

[2] Save as otherwise appears, sub-paras (e) to (y) below all refer to events on this day.

[4] [1991] HCA 4; (1991) 171 C.L.R. 432, at 443-4, per Mason, C.J., and 451-2, per Dawson, J.

[5] [1987] HCA 50; (1987) 163 C.L.R. 454.

[6] [1994] HCA 63; (1994) 181 C.L.R. 487.

[7] Wills on Circumstantial Evidence, (7th ed) 204; Cross on Evidence, (3rd Australian ed. para.1.87; Australian loose-leaf ed. para. 145) ; 29 Am. Jur. 2d para 478.

[8] (1967) 62 W.W.R. 285.

[10] E.g. Hall (Inspector of Taxes) v. Lorrimer [1992] 1 W.L.R. 939, at 994; Transport Industries Insurance Co, Ltd. v. Longmuir [1997] 1 V.R. 125, at 141-3; Robertson v. Smith [1998] 4 V.R. 165, at 179-80.

[11] [1990] HCA 56; (1990) 170 C.L.R. 573, at 579.