R v Holmes [2006] VSCA 73

1 I agree with Eames, J.A. that the application for leave to amend the grounds of the application and the application for leave to appeal against conviction should be refused.

2 I agree that 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. I do so for the reasons advanced by Eames, J.A. in his judgment.

3 The applicant was convicted by a jury in the County Court on 4 June 2004 on one count of making a false document contrary to s.82A(1) of the Crimes Act 1958 (count 1), and one count of perjury contrary to s.314(1) (count 2), and one count of attempting to obtain financial advantage by deception contrary to s.321M of the Crimes Act (count 3). He now applies for leave to appeal against those convictions.

4 The convictions arose out of an attempt by the applicant to persuade officers of the City of Melbourne to waive a $50 penalty imposed with respect to a parking infringement notice issued on 14 December 2001. In support of that application the applicant, a police officer at the time, swore and presented a statutory declaration, which the Crown alleged contained many false statements, and a supporting document, which was contended to be a fabrication.

5 The applicant also stood trial on two other offences, on the same presentment, which arose out of his swearing a second statutory declaration, this time one made concerning a parking infringement notice issued on 17 December 2001 with respect to the same vehicle. The jury acquitted him on those counts, being one count of perjury (count 4) and one count of attempting to obtain a financial

advantage by deception (count 5).

The grounds of appeal

6 On 21 June 2004 the applicant, through his then solicitor, gave notice of application for leave to appeal against conviction on two grounds, first that the verdicts were unsafe and unsatisfactory and secondly, that the weight of evidence did not support the conviction.

7 On 17 February 2006, upon hearing an application from the applicant's present solicitors, the Registrar of the Court of Appeal gave leave to the applicant to amend his grounds of appeal by substituting seven new grounds for the existing two grounds. The last of the new grounds constituted a complaint that the convictions were unsafe and unsatisfactory and, thus, may be regarded as having subsumed the original two grounds of appeal. All the other grounds of appeal raised entirely new matters.

8 Late on 10 March 2006, the Friday preceding the week of the listed hearing, the solicitor for the applicant filed, and served on the respondent, notice of intention to apply to further amend the grounds of appeal, this time substituting thirteen grounds (to which there were some eighteen sub-paragraphs) raising, for the first time, some thirteen entirely new grounds or sub-grounds, while retaining the existing grounds. Counsel for the Director did not oppose the application to further amend the grounds, but it must be said that the late delivery of new grounds added to the burden of the Court in preparing the appeal. That difficulty was compounded by the fact that the outline of submissions on behalf of the applicant, which was filed on 13 March 2006, was a very inadequate document.

9 In the course of the hearing of the application it quickly emerged that many of the new grounds were hopeless, and those grounds were abandoned in the running. (Grounds 1 (a), (b) and (d), and grounds 2, 3, 5, and 7 were abandoned). Some grounds were persisted with but were no less hopeless. In the result, two grounds, only, had any substance and will be the subject of closer consideration in these reasons. To a limited extent, I will also refer to the other grounds which were not abandoned.

The facts surrounding the offences

10 On 14 December 2001 a parking officer with the City of Melbourne issued a parking infringement notice in respect of a white Ford panel van which was parked in a no parking zone in Flinders Lane, Melbourne. There was nothing to indicate that the vehicle could not be driven and there was no note suggesting that it had broken down. The vehicle was owned by the applicant. He had purchased it with the assistance of a fellow police officer, Tom Agalidis. Agalidis had experience in motor vehicle maintenance and assisted on working on the panel van after it was purchased.

11 On 17 December 2001 a further infringement notice was issued in respect of the vehicle which on this occasion was illegally parked in a restricted parking zone in Bourke Street, Melbourne.

12 On 21 December 2001 the applicant lodged a penalty infringement objection with the City of Melbourne with respect to both infringement notices. In support of his application for a waiver of the penalty the applicant lodged a statutory declaration in which he deposed that his vehicle had broken down. He swore:

"I had an appointment in Flinders Street so I left a note outlining the circumstances under the windscreen wiper and went to my appointment. At about 2 p.m. I returned to my vehicle with a mechanic to find that I had been issued with a parking infringement notice. ... After conducting repairs the mechanic prepared a brief report for your information ...".

13 Attached to the declaration was a document stamped by a rubber stamp titled "Grandphil Motors", in which an unnamed person - (a handwritten initial appeared on the document) - recorded that he had been called to repair the vehicle in Flinders Lane and that:

"Upon inspection of the vehicle I found float on the gas injection system to be inappropriate and made the necessary mix adjustment. With the float float (sic) on the gas injection system where I found it, it is normal for a vehicle to stop running without notice or any indication. I also advised the driver that the adjustment was a temporary adjustment and he may experience fuel mix problems until replaced."

14 A further statutory declaration was filed with respect to the second parking infringement notice but it is not relevant for present purposes to further consider that.

The Crown case

15 It was the case for the prosecution that the contention that the vehicle had broken down and required service by a mechanic was false and that the reason why the applicant's vehicle had been illegally parked was that he was running late for work and simply parked it where convenient. On the Crown case the applicant had created false documents in support of efforts to have the fee waived, and when the genuineness of those documents was challenged he was committed to and sought to maintain and substantiate his false account.

16 Detective Senior Sergeant John Rodger from the Ethical Standards Department gave evidence, as informant in the case, that he interviewed the applicant on 19 September 2002 and after cautioning him asked him a number of questions in relation to the statutory declaration. On legal advice the applicant declined to answer any questions.

17 In his evidence Rodger said that he obtained a copy of the work roster for the City Patrol Station for the period from 2nd to 15th December 2001. That roster indicated that on 14 December 2001 the applicant was rostered to commence work at 5.00 p.m. There was no finishing time shown on the roster but a standard eight hour shift would have been worked by him, ending at 1 am, the following morning. However, the Victoria Police timesheet which had been signed by the applicant disclosed that on that day he had in fact worked the hours of duty of 10.00 a.m. to 6.00 p.m. On the Crown case the timesheet told the correct story, and thus the applicant had been due to commence his shift at 10am, when he was still at home at Watsonia.

18 The Crown led evidence from one Philip Christoff, the proprietor of Grandphil Motors, which was located close to the home of Angilidis at Fawkner. He denied that his company had performed any work on the vehicle, and said that his employees (being two young relatives of the two partners) would not leave the premises to travel to the city, and did not. He did not recognise the initial on the note, which was typed, and denied that the stamp was one used by his business. He said that the reference to a "float" made no sense as the vehicle had both gas and petrol fuel and the float as described in the note was not under the bonnet but in the gas tank. In any event, his firm did not repair gas tanks as they were not licensed to do so.

19 Tom Agalidis said he lived 50 metres from Grandphil Motors and had used them in the past, but he had no memory of what he was doing on 14 December 2001 and did not recall if he was phoned by the applicant, but usually spoke to him every day by phone, at that time.

20 The applicant gave evidence and called a number of witnesses to support his account of his vehicle breaking down and being later repaired by a mechanic from Grandphil Motors. It was the Crown case that the evidence given by the witnesses was false.

21 The applicant said that on the day in question he had worked according to the roster, namely from 5 p.m. to 1 am, but had signed the timesheet as he did in order not to incur shift penalties. The applicant said that on 14 December 2001 he had in fact left home at about 10 a.m., having arranged to meet a friend, Michael (John) Kocher at 11 a.m. at the intersection of Elizabeth and Flinders Street in the city. Although the purpose of the discussion was semi-official, in that Kocher wanted to discuss behavioural problems of his son, the applicant chose not to have the meeting at the police station.

22 The applicant gave a detailed account of his movements after leaving home that day, and related his evidence to independent records which had been produced by the Crown. His telephone records, for example, disclosed that he made telephone calls to Agalidis at 10.20 a.m. from Collingwood, and the applicant said that was a telephone call at which he attempted to get Agalidis because the applicant's vehicle had broken down in Hoddle Street. He said he left a message for Agalidis but then was able to start his vehicle and continued his trip to the city.

23 The applicant said that he met with John Kocher as arranged at 11 a.m. and told him that he was having trouble with the car. Kocher agreed to assist him and said that he would collect some tools from his office. Kocher left at about 11.25 a.m. and returned at 1 p.m. The applicant said he was not present when the parking infringement notice was placed on his car at 11.55 a.m. When he returned to the vehicle at 1 p.m. he met John Kocher and it was decided that it would be best for the applicant to be driven to Agalidis's house at Fawkner. Although the applicant had not succeeded in contacting Agalidis by telephone they drove to Fawkner on the assumption that he would be at home, but on arriving at 1.30 p.m. they found that he was not there. The applicant said that he directed Kocher to Grandphil Motors, which was 50 metres from Agalidis's house. There they saw two young employees standing outside the premises, one of whom agreed to look at the vehicle in the city.

24 The three men then travelled back to the city where the mechanic looked under the bonnet and almost immediately started the vehicle. The applicant said he had earlier arranged with his sister to attend the scene and upon her arrival she agreed to transport the mechanic and the applicant back to Fawkner. She did so, and they arrived at Grandphil Motors at about 2.30 p.m. where he paid the mechanic $50 cash. He requested documentary evidence of the vehicle defect and repair, for the purpose of dealing with the parking notice. The mechanic provided a sheet of paper stamped with the company stamp and recording the work that had been done. The applicant was then driven back to work by his sister. He commenced work at 5 p.m. At about 10pm he left the police station to attempt to restart his car. He was able to do so but only got as far as Victoria Street before it again broke down and he parked it again. He returned to work, where he remained until 2.30 a.m. Although his shift had finished at 1 am he remained because he had paperwork to attend to. His sister then picked him up at 2.30 a.m. and drove him home.

25 The applicant was cross-examined as to the discrepancies between the timesheet and the roster. He called as witnesses Kocher, his sister and a friend, who gave general evidence of his awareness that the vehicle had mechanical problems. The grounds concerning the equipment register

Ground 1. The trial miscarried due to the cross-examination of the Applicant, where:

(c) the applicant was cross-examined about a document identified as an 'equipment register' when the document had not previously been referred to by the prosecution or its existence disclosed to the defence."

Ground 11. "There was a miscarriage of justice by reason of the prosecution:

(b) failing to disclose evidence to the defence, as outlined in ground 1(c)."

26 In his evidence-in-chief the applicant gave very detailed evidence explaining his movements on the day in question and made particular reference to telephone calls which had been made on his telephone in the morning. The place where he had stopped after breaking down in Flinders Lane was close to the City Patrol Group police station where he worked. He left the vehicle to meet Mr Kocher at 11 o'clock. He said prior to the 11am meeting with Kocher he had attempted to start the vehicle again for a period of some 10 minutes, by hitting the starter motor with a screwdriver. He was asked the following question and responded to his counsel as follows:

I've gone to the police station, spoke to the section sergeant in relation to the meeting that I was about to have with Mr Kocher, I've signed out equipment as I was going on a police-related - and I was working plain clothes at the time. It's not safe to walk around the city as a plain clothes member without equipment - and I've gone to my meeting."

27 That volunteered information about signing out his equipment was given by the applicant on the afternoon of 21 May 2004. Later that afternoon his counsel invited him to comment on the timesheet which had been tendered by the prosecutor. He said that the timesheet was wrong because he did not finish work at 6 p.m. that day but in fact worked through until 2.30 a.m. the following morning. He was still being examined-in-chief when the case was adjourned for the weekend.

28 On the following Monday and still in evidence-in-chief the applicant made a further reference to the timesheet and again said it was incorrect to record him stopping work at 6 p.m. because he worked until 2.30 a.m. performing unpaid overtime. His cross-examination commenced by the prosecutor referring him to the roster which showed him due to commence his shift at 5 p.m. He agreed that rosters are often changed but disagreed that the timesheet, and not the roster, reflected his actual hours of work on this day. He said that he recorded himself as working 10 to 6 because when he returned to the police station in the afternoon, performing voluntary paper work, he had worked with a couple of junior officers who were working a 10 till 6 shift. He recorded the same time as them in his timesheet as a matter of prudence, so that he would not incur shift penalties for a shift that he actually did not work on that day.

29 The applicant denied that a telephone call made by him from his home at 9.58 a.m. in the morning to the City Patrol Group police station was to advise that he was running late for work. He said it would take normally 20 to 25 minutes to get to the office from his home at Watsonia. He was closely questioned about the timing of events as he described them occurring accompanying the breakdown of his vehicle.

30 He said that after leaving his immobilised vehicle he attended the station and reported to a sergeant that he had a "police related appointment" at 11 a.m. He could not recall the name of the sergeant. He was then asked and gave the following answer -

"After you spoke to the sergeant what did you do?---I have a memory of (sic) that stage of signing out equipment.

Do you recall what time you signed out that equipment?---No idea.

Because if you had broken down on one occasion for about ten minutes and you tried to get your car started in Flinders Lane for about ten minutes it would be a fair while after half past 10 wouldn't it?---Again, I've got no idea. I've got approximations.

You have to sign in and out for the equipment don't you?---Yes you do."

31 He was then handed a document being the equipment register and acknowledged that that recorded him signing out his equipment at 10.33 a.m. He disagreed with the proposition that the sequence of events that he had described after leaving home could not be completed in time for him to have signed out his gun and other equipment at 10.33 a.m. He denied that that was so. He agreed that signing out for equipment (which included his weapons and a radio) was something which was done when an officer arrived at the police station in order to do police-related duties. Although his shift was not to start until 5 p.m. he had come to work earlier to do a police related job and had remained at work for the rest of the time, performing other duties. He said that if he turned up for work and left to do work-related duties then he could sign out for his pistol.

32 The applicant denied the suggestion in cross-examination that he had tailored his evidence so that it fitted in with other information such as his phone register. He agreed that he had signed the register as having returned his equipment at 6 p.m. although he claimed to have commenced duty that day at 5 p.m. He said that he returned his equipment at that time because he had no partner left to go out on the road with.

33 At the completion of cross-examination counsel for the applicant complained to the judge about the production of the equipment register. He said the document had never been disclosed or formed part of the prosecution case and its production in cross-examination amounted to the Crown splitting its case. He said that he had considered objecting to the evidence when it was led in cross-examination but chose not to do so in front of the jury.

34 The prosecutor in response said it was not part of the Crown case that the accused broke down in Hoddle Street and then again in Flinders Lane and that he had spent 10 minutes trying to start his car prior to attending work on the 14th. He said "The Crown had no knowledge that he would be saying that. It is part of the defence case that that is the case". He submitted that the equipment register really constituted a prior inconsistent statement and added "We are not adducing it. It was never part of the Crown case, and is not being adduced as part of the Crown case." He said the Crown was simply rebutting something which was said for the first time in the evidence of the applicant. He noted that the accused had declined to answer questions in a record of interview and the prosecutor said that had he then put forward this explanation then this document may have formed part of the Crown case.

35 Trial counsel submitted that in seeking to tender the document to show that the applicant had worked between 10 a.m. and 6 p.m. the Crown knew the purpose for which the document could be used, having regard to the statutory declaration and knew that the issue of what the accused had been doing on that morning was going to be an issue in the trial. It was for that very reason that the Crown had given notice of and tendered the timesheet and that by using the equipment register the Crown was ambushing the accused.

36 Her Honour ruled[1] that even if the Crown did not know entirely what the defence would be it was pretty obvious that the defence was going to be along the lines that it had taken. Her Honour said the prosecution had made sure that they had the timesheet in evidence and observed that -

"Really it seems to me that this document should also have been included if it was intended to rely on it to the extent of having it admitted into evidence. I think it is a late stage of the case and there has been no prior notice to the defence. I have no problem with it being cross-examined. You have made your point to the jury. I do not think that the document needs to be tendered and I am not going to give permission for the document to be tendered."

37 In re-examination, the applicant said that the time of 10.33 am might have been the time that he first arrived at the police station and let the watch keeper know that he would be looking for equipment, rather than being the time that he actually signed it out. He said he was not sure whether the time of 10.33 may have simply been the watch-house keeper's guess, rather than his own statement at the time. He maintained his position that the evidence he had given as to the events was accurate, but he allowed for the possibility of there being some small inaccuracies as to the timing of various events.

38 Before us Mr Halse relied upon The Queen. v. Chin[2], as to both grounds. In that case Gibbs, C.J. and Wilson, J. referred to Shaw v. The Queen[3] and Killock v. The Queen[4] in stating the principle, as follows:

"The general principle is that the prosecution must present its case completely before the accused is called upon for his defence. Although the trial judge has a discretion to allow the prosecution to call further evidence after evidence has been given for the defence, he should permit the prosecution to call evidence at that stage only if the circumstances are very special or exceptional and, generally speaking, not if the occasion for calling the further evidence ought reasonably to have been foreseen. The principle applies where the prosecution seeks to call evidence to rebut matters raised for the first time by the defence; if the rebutting evidence was itself relevant to prove the prosecution case (unless perhaps it was no more than marginally, minimally or doubtfully relevant: R. v. Levy and Tait)[5] and the need could have been foreseen, it will, generally speaking, be rejected."[6]

39 Gibbs, C.J. and Wilson, J. acknowledged, however, that different considerations may apply where evidence arises by way of cross-examination of the accused. Their Honours accepted that a cross-examiner was entitled to ask questions to establish matters which had not been raised in evidence-in-chief, including matters which had either not been possible to prove prior to cross-examination or else which the prosecutor had simply failed to advert to before that point. However, their Honours continued:

"The trial judge, of course, retains his discretionary powers to ensure that the cross-examination is not unfair. In general, it would be unfair to raise in cross-examination, some entirely new matter which was affirmatively probative of the guilt of the accused but which had not been the subject of evidence either at committal proceedings or in the prosecution's case in chief, unless the accused had been given prior notice of such matter."[7]

40 In this case, the matter raised in cross-examination was not an "entirely new matter". The equipment register was first given significance by the applicant in his evidence in chief. If he mentioned that topic for some purpose advantageous to his case, knowing as he must that there might well be such a document in existence, then he could not complain if he thereby invited the prosecution to investigate the matter further. Furthermore, the equipment register was not "affirmatively probative" of the guilt of the applicant: it merely provided some support, albeit useful support, for the contention that the applicant had worked the hours shown on his timesheet, rather than the hours shown on the roster. The question whether his vehicle had experienced mechanical trouble could not be decided by resort to the equipment register.

41 Dawson, J., with whom Mason, J agreed, stated the relevant principle as follows,:

"The relevant principle is essentially one of fairness. The accused is entitled to know the case which he has to meet so that he may have adequate opportunity to determine what questions he may wish to ask in cross-examination, what evidence, if any, he may wish to call and what objections, if any, he may wish to raise in the case against him.[8]

42 Dawson, J. also acknowledged the right of the prosecutor to lead evidence in cross-examination which related solely to its own case. As to the discretion to disallow cross-examination by the prosecution "for the purpose of adducing evidence which could and should have been tendered during the presentation of the prosecution case" his Honour held that "necessarily the discretion is not as confined or cannot be as rigorously applied against the prosecution, as in the case of an application by the prosecution to call evidence by way of reply when only exceptional circumstances will justify the granting of the applications."[9]

43 Mr Hulse submitted that it was significant that the prosecutor had the register document with him when he was cross-examining the applicant. That demonstrated that the importance of the document and its relevance to the case was known to the prosecution and that the document had been brought to court for that reason. The prosecution had nonetheless chosen not to make the document available, but held the document back for the opportunity to trap the applicant during cross-examination by its use.

44 Counsel placed weight on her Honour's opinion that the relevance of the document ought to have been appreciated by the prosecution team, but significantly her Honour did not accuse the prosecutor of having adopted a deliberate tactic of non-disclosure. The prosecutor denied that the relevance of the document had in fact been appreciated prior to the evidence of the applicant and he contended that it was only when the applicant presented his defence that the potential significance of the document emerged.

45 On the Monday it was again the applicant who first raised the question of the register. He stated that he did not know at what time he signed out for his weapon but volunteered that he had done so that morning. Given that he therefore knew that he had signed the register and had signed it at or around this time in the morning any suggestion of unfairness is substantially removed.

46 The prosecutor's explanation for the non-disclosure of the document gains credibility when the sequence of events is appreciated. It was the applicant himself who first raised the topic of the equipment register and he first did so in his evidence-in-chief on the Friday. Having regard to the explanation proffered by the prosecutor to the court on the Monday for not producing the document prior to trial this Court should be slow to conclude that the prosecution had in fact appreciated the relevance of the document but had chosen to set a trap for the applicant by not disclosing it. Given the sequence of events, and given what the prosecutor said on the Monday, a more plausible explanation is that having been forewarned of the topic by the applicant's evidence on the Friday, the solicitors for the Crown arranged for the document to be located and brought to court on the Monday. Mrs Quin urged the Court to take that view of the probable sequence of events, and to accept the explanation proffered to the judge, as indeed the judge seems to have done. In this regard this Court is entitled to have regard to the fact that prosecutors are officers of the court and that, in our experience, it would be a very rare event, indeed, for the duty to the court to be breached by deliberate misleading of a judge and the deliberate withholding of information known to be relevant to the defence.

47 In my opinion, the applicant sought to gain an advantage by his reference to the equipment register, suggesting that his signing of the register was consistent with the balance of his account as to events of that morning. Having raised that matter for the first time in the case the prosecutor was entitled to rebut the evidence of the applicant by questioning him on the document to which the applicant had made reference. I do not consider that the cross-examination, in those circumstances, offended the principles stated in Chin. Mr Halse submitted, however, that even if the prosecutor had not appreciated the significance of the document until the applicant gave evidence, then he should have brought the document to the attention of defence counsel and then applied to the judge, in the absence of the jury, for leave to cross-examine on the document.

48 In Chin Gibbs, C.J. and Wilson, J. concluded that the proper approach where a new matter arose which had not been the subject of prosecution disclosure was for the prosecution to give notice to the defence of their intention to adduce the evidence, thus allowing the judge the opportunity to make a ruling as to whether it would be permitted.[10]

49 Dawson, J. held that the discretion ought to be exercised in favour of the prosecution only in exceptional circumstances. He stated the principle to be that the prosecution not be permitted to split its case.[11] He concluded that exceptional circumstances do not embrace the situation which ought reasonably to have been foreseen by the prosecution.

50 Mr Halse submitted that the defence lost the opportunity to try to persuade the judge not to permit the questioning on the equipment register. That may be true, but the judge's ruling suggests that had such an application been made she would probably have granted it. In my view it would have been appropriate to do so, since to do otherwise would have left the jury with a false impression, fostered by the applicant, of what the document may have stated. Her Honour's decision to refuse the tendering of the document, although permitting questioning on its contents, may well have been wrong in principle, but given that the cross-examination was relevant and was rightly permitted, the denial of its tender could only have been to the advantage of the applicant. In the result, I do not consider that an error has been shown in the exercise of her Honour's discretion in not intervening to stop the cross-examination, and, even if there was, I am not persuaded that it produced a miscarriage of justice.

51 In my opinion, these grounds of appeal have not been made out.

Ground 1(e)

52 This ground complains that the applicant was cross-examined in such a manner as to suggest or imply that he carried a burden of proving some evidentiary matters. A series of passages in the transcript were referred to. In no instance was any objection taken to the questioning. Mr Halse agreed that the passages either conveyed to the reader the impression of a reversal of the onus of proof or they did not. In the circumstances, there is no need to set out the passages. Having read each passage, I am quite satisfied that the complaint under this ground is entirely without merit, and it is not surprising that trial counsel did not object to any of the questions.

Ground 4: complaints as to Count 3

53 Under ground 4(a) it was contended that count 3 was duplicitous. Ground 4(c) complained in the alternative that the verdicts on count 3 were uncertain and ground 4(b) complained that the judge ought to have directed the jury that they could not convict on count 3 "unless they were all satisfied beyond reasonable doubt as to one single particular of false representation".

54 The argument on grounds 4(a) and (c) was predicated on the fact that because there were three particulars given of the false pretence and they were all joined by the word "and" it followed that all of the false pretences had to be made out before the count would be proved. A short answer to that is that in R. v. Kuff[12] Herring, C.J., Sholl and Pape, JJ. held to the contrary, when dealing with an offence of attempting to obtain goods by false pretences in which there were also three particulars of false pretences, joined by the compendious word "and".

55 Ground 4(b) asserted that the judge failed to direct the jury that they had to be unanimous as to one at least of the three false pretences for the jury to be satisfied unanimously that the offence had been proved. In other words, it was not sufficient that of the twelve some jurors were satisfied as to paragraph (a), some as to (b) and some as to (c). It was necessary that all twelve were satisfied as to one, at least, of the particulars. That correctly states what is required for a conviction. In Kuff, the Court held[13] that "where two or more pretences are laid in one count the prosecution is not obliged to prove all the pretences so laid, but it is sufficient to sustain a conviction if any one of the pretences is proved and reliance upon that representation is proved, at any rate if it is capable of amounting to an inducing cause in itself ...".

56 It was submitted that her Honour did not direct the jury in accordance with that requirement. Her Honour's direction, which was not simply lifted from the charge book, was relevantly as follows[14]:

"In respect of count 3, the false representations in the statutory declaration dated 19 December 2001 there are three, (a), (b) and (c). If you are satisfied beyond reasonable doubt that any one of these representations is false, and you have to be satisfied, all twelve of you, unanimously on that, then the other elements are made out. In relation to count 3, you do not have to be satisfied as to (a), (b), and (c) but you have to be satisfied beyond reasonable doubt as to one of these factors."

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.

[1] T358.

[2] [1985] HCA 35; (1985) 157 C.L.R. 671.

[3] (1952) 85 C.L.R. 365.

[4] [1981] HCA 63; (1981) 147 C.L.R. 565.

[5] [1956] 50 Cr.App.R. 198 at 202.

[6] At 676.

[7] At 678-9.

[8] 685.

[9] 687.

[10] 679.

[11] 684.

[12] [1962] VicRp 79; [1962] V.R. 578 at 590.

[13] At 590.

[14] T490.

[15] See R. v. Anderson [1996] VICSC 17; [1996] 2 V.R. 663, at 666-669, per Winneke, P.

[16] A second sister of the applicant gave evidence with respect to counts 4 and 5.

[17] [2003] VSCA 170, at [11] per Ormiston, J.A., Winneke, P. and Buchanan, J.A., agreeing.

[18] See, too, R. v. Dao [2005] VSCA 196, at [24]; R. v. Crockett (2001) A.Crim.R. 312, at 315; R. v. Zilm [2006] VSCA 72 at [46]- [47], [73]-[74].

[19] RPS v. The Queen [2000] HCA 3; (2000) 199 C.L.R. 620, at 637 [41].