57 It is not possible, of course, to capture the emphasis with which her Honour would have highlighted some words in this direction, but even without knowing that emphasis it is possible to say that these instructions would have been understood by the jury to require unanimity on one at least of the three paragraphs. I do not consider that the jury would have been left in doubt as to that. In any event, in the context of this case there was no reasonable possibility that if any member of the jury was satisfied as to one of the three paragraphs he or she would not be satisfied as to the other two as well. Given the way the case was conducted, all three of the paragraphs would be bound to be proven to the satisfaction of the entire jury or else no member of the jury would have been satisfied as to any one of them.
58 In my opinion, ground 4 fails.
Ground 6
59 Under this ground were five subparagraphs, all of which were said to be instances of the trial judge giving erroneous or inadequate instructions to the jury. In every instance the direction was in the standard terms in which such directions have been given to juries in this State for decades. I do not suggest that mere longevity renders a standard direction invulnerable to criticism. Indeed, failure to tailor standard directions to the facts and issues of the case at hand has been a matter of appellate criticism[15]. Nonetheless, the particular directions which were the subject of criticism under this ground have not been the subject of criticism by any court, to my knowledge. Indeed, they are in the category of "motherhood" directions, given in all charges, and thought to be unexceptional. Although authority was cited in support of this ground, in each instance the case provided no relevant assistance, or else the appeal court was concerned with an instance where the standard direction on these issues was not given, and where the departure from the norm led the judge into error.
60 The lack of substance in this ground may be illustrated without unnecessary elaboration. For example, it was said, under (a) that the judge invited the jury to treat the applicant as a witness in a manner different to the way the jury treated other witnesses. That was true, but only to this extent. The judge, employing the standard direction, having said that the applicant's evidence should be treated in the same way as other witnesses then said that the jury ought to make allowance in his case for the special pressure and tension which an accused person would be bound to feel when giving evidence. The remaining sub-grounds had no more merit than this, and I do not consider that further elaboration of them is necessary.
Ground 8 and 10
61 Ground 8 complained that the judge provided insufficient summation of the evidence and failed to adequately relate "any of the evidence to the separate counts". Ground 10 complained that the judge failed to adequately put the defence case to the jury.
62 Under this ground some discrete complaints were raised, although not by the grounds of appeal nor in the written outline of argument. First, it was said that the judge failed to draw to the attention of the jury the fact that the two young mechanics who were employed by Grandphil motors had not been called by the Crown. Secondly, complaint was made that when the judge did refer to evidence she used expressions which disparaged the evidence called by the defence; by referring for example to the applicant having called evidence from his "family", on a couple of occasions stating that the applicant "alleged" a certain thing, rather than "gave evidence". Thirdly, it was said that her Honour "explained away" inconsistency between the evidence at trial and at committal by Christoff as to whether his firm ever typed up their invoices or accounts. Fourthly, it was said that her Honour failed to draw the attention of the jury to the evidence of Kocher and of the applicant's sister, who both supported his account as to events on the day in question. Fifthly, it was said that the judge ought to have warned the jury that even if they concluded that the stamp on the Grandphil document was not genuine then the Crown still had to overcome the sworn evidence of the applicant's witnesses before they could obtain convictions.
63 Not one of those matters was the subject of any complaint or exception by trial counsel.
64 In having regard to these specific complaints and also to the broader complaints that the evidence was insufficiently summarised or related to the elements, it is necessary to keep the reality of this trial to the forefront. The difference between the two accounts could not have been starker, or simpler. Either the applicant's motor vehicle has broken down, as he claimed, or else he had sworn a false declaration and then sought to maintain his dishonest account by concocting an elaborate story and arranging for friends and family members[16] to give false evidence in support of it. It was entirely unnecessary to provide an elaborate summary of what each of the defence witnesses had said as to what they did because, if they were party to such a dishonest enterprise, the details of their accounts would inevitably be consistent with the applicant's account. The jury would either reject the credibility of their accounts or else the jury would have a reasonable doubt and acquit. This was one of those cases which occasionally arise where very little needed to be said by the judge either in identifying the issues or in relating the evidence to those issues. No appeal ground contends that the verdicts of acquittal on the other counts undermined the verdicts on the present counts. There were specific features of the other offences that were different from those concerning the first statutory declaration. The different verdicts showed that this was a jury capable of discriminating in its approach to the evidence.
65 The approach adopted by her Honour in dealing with the evidence, the competing contentions and in identifying the issues was in my opinion entirely appropriate to the circumstances. When dealing with each count and the elements of the count, her Honour identified the opposing contentions as to those elements and incorporated into her directions reference to the evidence The evidence references were in broad terms but very helpfully highlighted the points of divergence between the parties. Her Honour then followed each discussion of the elements of a particular count with a summary of the evidence. True it is that her summary was that of the Crown witnesses, but in this case, having regard to the onus of proof that was quite appropriate because, as I have said, the Crown position was that each of the defence witnesses gave a consistent and precise account because they had been schooled to do so. Her Honour then highlighted the contentions of defence counsel in seeking to explain away any inconsistencies between the evidence of the Crown witnesses and that of the defence witnesses. Her Honour then moved to the next counts and adopted the same approach in turn.
66 In my opinion, the approach adopted clearly identified the issues, and was fairly balanced in approach. I have no doubt the charge was very helpful to the jury. The approach adopted in dealing with arguments, evidence, and elements of the offences at the same time, is not commonly adopted by trial judges but it has been approved as one of the techniques that is open to a trial judge: see R. v. Andrakakos[17]. As was stated by Ormiston, J.A. in that case, what is required for directions must depend on the circumstances of each case and may vary according to factors such as the length of the case, the complexity, or lack thereof, of the issues, the manner in which the case is conducted and other considerations[18]. The overriding consideration is that the accused person has a fair trial and in that regard that his defence is fairly put to the jury[19].
67 In my opinion, the complaints under grounds 8 and 10 are without substance.
Ground 9
68 The complaint here was that the judge gave inadequate or erroneous separate consideration directions.
69 Once again, the directions about which complaint was made were the standard directions, which have been approved by courts over decades. It was contended that the jury ought to have been told that they could not have regard to the evidence on any other count when considering whether the applicant was guilty of any count then under consideration. No authority was cited for the contention that a jury was not entitled to have regard to all evidence in the trial when considering separate counts. Provided that the jury do not employ propensity reasoning (and a propensity direction was given by the judge to ensure that they did not do so) they are perfectly entitled to use the evidence in that way.
70 This ground must fail.
Ground 12
71 This complained that an aggregate of errors established under the other grounds led to a miscarriage of justice. In my opinion, there were no such errors, and this ground has no substance.
Ground 13
72 This complained that the verdicts were unsafe and unsatisfactory, but only by virtue of the complaints raised under the other grounds. The verdicts were plainly open to the jury and the basis for this ground to succeed, by virtue of identified errors under other grounds, has not been made out.
Conclusion
73 The application for leave to amend the grounds of appeal should be refused and the application for leave to appeal against conviction should be dismissed. There was no application for leave to appeal against sentence.