R v Koeleman [2000] VSCA 141

14. Martorana swore that he had satisfied himself by questioning that the applicant was serious in what he told him and that he was unsure what to do about it. Having spent several days mulling it over he decided to contact his step-father, a former policeman. He was thus brought into contact with police, to whom he made a statement. He later agreed to a police request to introduce the applicant to an undercover police officer whom he would portray as homosexual and likely to have "some mutual understandings". Thereafter Martorana was fitted by police with a concealed tape-recording device. On 25 April 1997 he met the applicant and covertly recorded some ninety minutes of their conversation, chiefly in a rented boat on the Yarra River at Studley Park. On this occasion the applicant confirmed his claim that he had done the killing and again stated, as Martorana swore, that he did not feel "too much guilt" about it; and, in effect, Martorana prepared the way for the applicant's meeting the selected undercover police officer. Martorana organised a meeting between the applicant and the officer - a detective senior constable attached to the Victoria Police Force Covert Investigation Unit who for the purpose of the exercise used the pseudonym "Mark Dolan" - and introduced them on 1 May. Both Dolan and Martorana were at the time fitted with concealed recording devices. Dolan's malfunctioned and recorded no conversation, but Martorana's did until the tape ran out. Dolan swore that he later made notes of the meeting which mentioned that, during an unrecorded part of the conversation, the applicant had referred to a patterned Egyptian-type knife that had been stolen from him in a burglary. Dolan represented himself as a homosexual in whom the applicant could confide and gave him his telephone number.

17. The applicant later telephoned Dolan and they arranged to meet for lunch on 8 May. They met at a restaurant on that day, alone, and Dolan covertly tape-recorded their conversation, which included statements by the applicant in the terms or to the effect following: he had scared Martorana "with a confession that I had to get off my chest"; "I went out one night and really had my fantasy. And I liked it...I just wanted to hurt someone. It's been a long time building up sort of thing...I wanted to get power over someone and make them beg, beg me to stop, sort of thing, and the more I thought about it at the time I just - it sort've like came up, overwhelmed me on the night and I just went out to a beat and picked someone up and knifed him, used a knife...I felt very satisfied afterwards"; he was "still coming out"; it happened five years ago; and "it's been getting very strong the last six months"; "How I did was with a knife...I killed a guy...I hadn't intend on that happening...it happened and I didn't care which was scary as hell...within ten minutes I was out the door and - I'd just come back from overseas and my boyfriend was living at home, studying...I went out with a knife in my pocket...a friend of mine gave it to, when he passed away he left it his knife...one of those wooden sheaths on it and all patterned and it was a purple colour. It was really menacing...it was a silver blade that was really shiny and no ridges...so I went out and had it in my leather jacket...it's the only time I've worn it"; he went to a "beat" in Victoria Street, Brunswick, to a toilet block, "but I didn't go in, it was like raining actually. And he smiled at me. He wasn't attractive or anything like that. I just knew he was the one...And I just wanted to hurt, frighten him more than anything. I didn't want to hold the guy hostage or anything. I was just getting the weapon ready and having him beg, beg me not to do anything and that sort've came into it. And sort've like I lost control. And I panicked a bit at the time...he gave me a head job and I came as I did it."; that it happened near a little shed at the park and the man had his pants down around his ankles; he stabbed the man through the "top of his back...twice through his back and that's the time I lost control. He stood up and staggered...Got him again through the front...Straight through the heart"; he stabbed him "about five times... and one or two times in the heart".

20. Later on 8 May the applicant took Dolan to Clifton Park in order to show him the scene of the crime, and purported to some extent to re-enact his role in the killing, Dolan taking the part of the victim. Their conversation there was also covertly tape-recorded.

23. Having had the benefit of the tape recordings, police formally interviewed the applicant on 10 May 1997 in relation to Arnoldt's death. He then denied having killed anyone. In the course of the interview he admitted that he had told Martorana and Dolan otherwise but asserted that what he had said to them had been made up, based on what he had read and heard about Arnoldt's murder.

26. The covert tape recordings that were made on 25 April and on 1 and 8 May were played to the jury and became exhibits at the trial; and transcripts of the recordings were also exhibited, with copies for the jury.

29. The applicant gave evidence on oath at his trial. As the last question of a very extensive examination-in-chief, occupying over ninety pages of transcript, he was asked whether he had killed the deceased, and he denied it. The rest of his evidence in chief consisted largely of an apologia for the elaborate assertions he had made to Martorana and Dolan that tended to implicate him. He acknowledged that on 10 April he had gone to see Martorana at the hospital and had given him an account of his having stabbed a man, with associated sexual activity, much as Martorana had deposed. Explaining why he had given the account, the applicant swore in effect that it arose out of a conversation they had about the film Cruising; that in the discussion Martorana said he had once stalked a man with the intention of raping him; and that he - the applicant - made up the story because he "wanted to be one better".

32. The applicant was taken in chief by his counsel to the transcripts of the conversations of 25 April and 1 and 8 May, demurring to none of what was recorded. He also gave some explanation of his conduct with Dolan. He acknowledged the meeting with him on 8 May and said that he had had it because he had wanted to have sex with him; that he had thought Dolan "wanted to hear evil confessions" and that he told him the same story as he had told Martorana because he wanted to "excite" him.

35. The trial judge conducted a voir dire, before the empanelment of a jury, with a view to ruling on submissions that the Crown should not be allowed to lead, by way of confession, direct reported evidence and tape recordings and transcripts of the conversations that the applicant had had with Martorana on 25 April, with Martorana and Dolan on 1 May and with Dolan on 8 May 1997. His Honour heard evidence on the voir dire from Martorana, from Dolan, from Sergeant Piper (formerly a Detective Senior Constable who had chiefly co-ordinated the exercise after Martorana had made contact with the police) and from the applicant himself. The applicant's reasons expressed on the voir dire for having spoken as he did to Martorana on 25 April, and to Martorana and Dolan in May, were along the same lines, though not altogether the same, as those that he ultimately gave in evidence before the jury. The principal submission for the defence, after the voir dire was had, was that the applicant's confessional statements made in the course of the relevant conversations had not been made voluntarily in the exercise of free choice; and that he had been offered an inducement to make them. The material was objected to for the applicant on the alternative footing that to admit it would be unfair and contrary to public policy. Having heard argument on either side in court, and having listened to the tape-recorded material and read transcripts of it out of court, the learned judge ruled against the submissions. His Honour expressed himself to be satisfied that, in the relevant sense, the statements of the applicant had been voluntary, that there had been no inducement to make them, that there had been no unfairness in obtaining them and that there was no reason of public policy why they should not be received. That ruling is now challenged under cover of ground 2 of the application, although not all of the submissions that were made at the trial were adopted here. This ground simply alleges that the judge erred in the exercise of his discretion "in that he failed to exclude the evidence of the `confessions' made to" the witnesses Martorana and Dolan.

38. In this Court counsel for the applicant (who did not appear at the trial) did not seek to uphold the contention that the relevant statements made by the applicant to Martorana and Dolan had been in any sense involuntary. Rather, counsel relied on the applicant's sworn asseverations that his so-called confessions (although admittedly made) had been untrue, and upon the explanations that he gave for having made them. The first submission was that the trial judge ought to have found, on the strength of the applicant's evidence on the voir dire, that the relevant statements made by him to Martorana and Dolan were unreliable in the requisite sense[1]; and that the judge had been wrong not to exercise a discretion to exclude them because, being unreliable, their admission into evidence would be unfair to the applicant.

41. One difficulty about that submission, so formulated, is that, so far as appears, the judge was not asked to rule that so-called confessional statements made by the applicant on 25 April and on 1 and 8 May were unreliable: the question of the unreliability, or potential unreliability, of the statements was not raised below on behalf of the applicant as a basis for excluding them. In any event I can see no acceptable basis for a conclusion that the statements should have been characterised as unreliable in the relevant sense, namely that their quality was such that it would be unfair to allow them to be considered by the jury as part of the Crown's proof. Their relevant gist was not much different from that of the conversation with Martorana on 10 April. That last was not only a confession - it was so described by the applicant to Dolan on 8 May - but it was quite evidently voluntary and no objection was taken to its reception in evidence. The only basis for treating it as unreliable would be that the applicant later repudiated it, as he did the other confessional material. The repudiations, while doubtless deserving their due weight, are to be considered in a context which, it might reasonably be thought, affords the curious chronicle an appreciable degree of verisimilitude. As McHugh, J. remarked in Foster v. R.,[2] unfairness is not a one-way street: the voluntariness of a confession and its probative value are matters to be weighed in support of admitting it into evidence. The applicant's statements of 25 April and 1 and 8 May cannot sensibly be divorced from the voluntarily made confession of 10 April, and it is fair that an appreciation of the reliability of the three last should take colour from the first. Had the judge been invited to make a ruling that the statements were unreliable in the relevant sense, he would have been right to decline to do so.

44. Further justification for the exercise, as a matter of fairness, of a discretion to exclude the confessional material of 25 April and 1 and 8 May was said in this Court to be found in the following considerations: that Martorana and Dolan were each agents of the State; that neither of them had cautioned the applicant, before he spoke, that his statements might be given in evidence in a criminal proceeding to be brought against him; that they had deceived the applicant as to the circumstances in which he would be speaking to them; that they had prompted or induced him to speak on relevant matters; that Martorana knew the applicant to be a teller of tall stories and that the police should be taken to know it too.

47. It is no doubt fair to classify Martorana, as well as the police officer Dolan, as having been on 25 April and on 1 May an agent of the State; and of course neither of them gave a caution to the applicant. It may be accepted, too, that each engaged in a subterfuge in meeting and speaking to the applicant on the relevant occasions on 25 April and 1 and 8 May; and that, had he been told that the conversations were being tape recorded in the course of a police enquiry into the death of Arnoldt, he would probably not have continued. Not all of these considerations were put in terms before to the trial judge. Even had they been put to him, however, they would not have carried the necessary consequence that the confessions should be excluded. The applicant was at no relevant time in custody and no occasion had arisen to caution him: cf. R. v. Carter[3]. Nor will the procuring of a confession by subterfuge - or, if it be necessary so to describe it, by deceit - require a conclusion that there has been unfairness such as necessarily to justify the exclusion of the confessional material. Assuming that the subterfuge is to be regarded as an impropriety -

"The effect of the impropriety in procuring the confession must be evaluated in all the circumstances of the case."[4]

51. Having regard to the initiation by the applicant in discussion with Martorana on 10 April of his confession of Arnoldt's murder, Martorana's reporting it to the police was a natural sequel. The applicant might well have chosen Martorana, then a close friend, as one to whom he could unburden himself, but he had no right to expect - indeed there was no suggestion - that Martorana should keep the confession a secret. It cannot be objected that Martorana acted with impropriety in any relevant legal sense in reporting it to the police: quite the contrary; and once the police had the information an investigation of it was another natural and inevitable sequel. The police investigation entailed no illegal conduct. Nor was this a case[5], in which the police by means of a stratagem set out to circumvent a right exercised by a suspect to decline to be interviewed. The use of covert tape-recording - by both Martorana and Dolan - was, as I should think, appropriate to enable the police to test the authenticity of a confession that was said to have been already made. At all events I have no doubt that the trial judge, in exercising his discretion whether to exclude the confessional material, was well entitled to think so.[6]

54. If, as the submission in this Court put it, the applicant had been prompted or induced to speak upon the relevant matters - in the sense that any confession or, it may be, a confirmation of an earlier confession, had been elicited from him by way of interrogation - there might be a basis for excluding it from evidence. We were provided with a schedule of references to the transcript of the conversation between the applicant and Dolan on 8 May which was said to exemplify such a procedure. Having read the passages relied on, I cannot agree that they demonstrate any duress or overbearing of the applicant's will[7] such as would justify the conclusion contended for.

57. The last point made - that the applicant was a known teller of tall tales - can scarcely signify in the exercise in this case of a judicial discretion to exclude the confessional material as evidence. The question whether the applicant was telling tall tales or not was pre-eminently one for the jury once the evidence was in.

60. I have for convenience referred individually to the various additional matters relied on to justify an exercise of the judge's discretion to exclude the confessional evidence on the footing of so-called unfairness. They ought, however, to be considered cumulatively. Having so considered them I am satisfied that ground 2 is not made out.

63. It is convenient to deal next with ground 4, which complains of the manner in which the learned judge dealt in his charge with the material relied on by the Crown as confessional evidence. Particulars of the ground are these -

"The learned trial judge failed to direct the jury, either sufficiently or at all, that before the jury could act on the said "confessions", the jury must first be satisfied beyond reasonable doubt that the confessions were true and/or truthful acknowledgements or statements or accounts of the Applicant's guilt of the killing."

Of course the requirement expressed in the statement of particulars is almost[8] a truism, but the alleged failure by the judge to meet it cannot be sustained. The argument in support of the allegation chiefly depends on an interpretation of the judge's charge that it will not reasonably bear.

68. His Honour began his charge to the jury by giving some necessary, conventional and unexceptionable directions upon matters of law. These included explanations of the respective roles of judge and jury, of the manner in which the jury should go about an evaluation of the evidence - including evidence of experts and of good character, of the drawing of inferences, of the burden and standard of proof, of the ingredients of the crime of murder, of the matter of proof of motive and of the necessity for a unanimous verdict. His Honour continued -

"That concludes my directions to you, ladies and gentlemen. As I say, I am the judge of the law and those directions bind you. I will now briefly summarise for you the evidence in the case. My summary, ladies and gentlemen, does not bind you in any way because I am not a judge of the facts, only you twelve good people are...if I make any comment on the facts...my comment does not bind you in any way because I am not a judge of the facts. Any comment I make on the facts you should treat in the same way as submissions of counsel during their final addresses, and that is that if you agree with the comment, well and good, you are entitled to act upon it. However, if you disagree with it, put it completely aside. No comment of mine binds you in any way because you are the judges of the facts, not me. The prosecution says that the confessions of the accused to Mr Martorana on 10 April at the Western Hospital and 25 April on the Yarra River at Studley Park and to Mr Dolan on 8 May at the Point Restaurant and at Clifton Park were true. To convict the accused of murder, you have to be satisfied beyond reasonable doubt not only that the accused made the confessions, which, of course, are on the tape-recordings, except the first one at the Western Hospital, but also that the confessions were true. Accordingly, let me turn to the evidence which was called before you. I will commence with the evidence concerning the body of the deceased."

The principal point of attack on these passages is that the penultimate paragraph quoted was preceded by the judge's statements that he had concluded his binding directions of law and that what followed was a summary of the evidence, which did not bind the jury in any way. The submission was that, the jury's acceptance of the confessions being crucial, without which the Crown could not succeed, the jury received no binding direction of law on the matter but merely a non-binding comment - or perhaps they so understood what the judge said.

73. It cannot be gainsaid as an abstract proposition that the judge, if taken literally, had drawn a line, as it were, under his catalogue of directions of law, and had gone on to tell the jury that the summary of the evidence on which he was about to embark was not to be treated as binding them. I cannot agree, however, that what His Honour said in the paragraph quoted above about confessional evidence was at all likely to have been understood by the jury as part of a summary of evidence or as something that they were free to disregard if they chose. A charge to a jury is not to be likened to the feeding of information into an inanimate machine, such as a computer or an alarm clock, that is devoid of ability to think for itself. The law assumes, of course, that the jury has a capacity to think and will exercise it. The judge's reference to confessional evidence might not have been ideally placed. It might have been better included specifically under the heading of binding directions of law, before the line was drawn. Its positioning after his first statement to the effect that he was about to turn to a summary of the evidence perhaps suggests that His Honour overlooked it at the time when he stated that he had concluded his directions of law. The last paragraph above-quoted indicates with tolerable clarity, however, that his Honour had not yet begun to summarise the evidence, whatever he had earlier forecast. In the circumstances I should not be prepared to assume that any juror regarded or was likely to regard the statement about the confessional evidence, when his Honour came to make it, as anything less than an instruction - even if given out of its ideal order.

76. All that apart, I agree with the other answer that the respondent makes to the submission for the applicant: the central issue in the case, if not the sole issue, was whether the confessions relied on by the Crown were true. It was not conceivable that the Crown could succeed unless the jury were satisfied that the confessions were true. The perfectly sound instruction that the jury had received as to burden and standard of proof must have made it plain that the Crown bore the burden of proving their truth beyond reasonable doubt.

79. It was also asserted under cover of ground 4 that, in what he said in his charge about confessional evidence, the learned trial judge did not sufficiently explain and emphasise the necessity that the jury be satisfied of the truth of the confessional material before acting upon it. The assertion was not elaborated in argument. Indeed, there was little scope for doing so; and, equally, there was in the circumstances neither scope nor need for an elaboration by the judge of what he said in the penultimate paragraph quoted above. The substance of the words used was clear and adequate. In any event, no exception was taken at the trial to either the nature or the content the judge's charge touching the assessment by the jury of confessional evidence. That is another reason for rejecting ground 4. It should fail accordingly.

82. Ground 3 complains of the directions that were given to the jury on the question of a motive of the applicant to commit the crime. The contention is that, in the circumstances of the case (including the manner in which the Crown put its case to the jury), the Crown could not rely on proof of any motive of the applicant unless it were proved beyond reasonable doubt. The learned trial judge expressly directed otherwise. The direction that his Honour gave on the matter followed his general direction on the burden and standard of proof and came immediately after his enumeration and explanation of the elements of the crime of murder, thus -

"The prosecution has to prove the intention to kill the deceased or to do the deceased really serious bodily injury at the time of the infliction of the fatal wounds. The prosecution does not have to prove beyond reasonable doubt motive...However, it does have to prove intention as I have defined it. You will appreciate...that the prosecution says that there is, indeed, a very powerful and unfortunate motive. The prosecution says that, within this otherwise supportive and caring accused, a dark desire had been developing over time, a desire to inflict pain and suffering on an innocent and unsuspecting victim; an intense sexual desire to exercise the ultimate power, the power of killing. Motive, however, is not an essential element that the prosecution has to prove beyond reasonable doubt; intention is."

Again, no exception was taken by defence counsel at the trial to the direction on this question. The argument in this Court was largely if not entirely reliant on a dictum in Penney v. R[9]., which was said to proscribe the direction that was given. In Penney Callinan, J.[10] (with whose reasons McHugh and Gummow, JJ. expressed their agreement, and Kirby and Hayne, JJ. apparently implied it) accepted a passage in R. v. Murphy[11] as accurately summarising "the relevant principle stated in Chamberlain v. R., which applies if motive is to be used as a factual basis of an inference of guilt". This is the passage :

"In our opinion it is incorrect to direct a jury that the accused's motive is a `subsidiary fact' or a non-essential element in the case which does not require proof beyond reasonable doubt but may be proved to the jury's satisfaction or on the balance of probabilities. Motive is not merely a matter which may explain the accused's conduct. It is rather a fact directed to proof of the accused's guilt; as Chamberlain[12] makes clear, before a jury can infer guilt from motive they must be satisfied that the motive asserted had been proved beyond reasonable doubt."

88. That passage, and the effect of the High Court's acceptance of it, recently had the consideration of this Court in R. v. Kotzmann.[13] It was there noted that the case of Shepherd v. R,.[14] in which the High Court importantly explained its earlier decision in Chamberlain v. R (No. 2), had not been referred to in Penney. Shepherd stood for the proposition that a fact not being an element of the offence charged or of a defence to be negated need not be established beyond reasonable doubt unless it is, in a strictly logical sense, an indispensable link in a chain of sequential reasoning leading to a finding of guilt. Kotzmann expressed a unanimous view[15] that the decision in Penney is not to be taken to have altered the law in that respect sub silentio. Counsel for the applicant did not concede that the analysis in Kotzmann affects the validity of the judge's charge in the present case so far as it is challenged under cover of ground 3. In my opinion, however, the ground cannot stand alongside the analysis of Penney that was made in Kotzmann.

91. Counsel for the applicant submitted in this Court that the judge's direction concerning motive might have been understood by the jury as an invitation to treat the applicant's motive as a link in a chain of reasoning that the Crown undertook to prove, alternatively as an important ingredient of the Crown's proof - a thick strand in a cable - and to treat it as sufficiently proved on the balance of probabilities. I can not accept the argument. I understand neither that the Crown case entailed any such element nor that the judge's direction implied that it did. This was not a case where motive was an indispensable link in a chain of sequential reasoning. Nor were there any practical considerations to suggest that the judge should direct the jury that they must be satisfied beyond reasonable doubt of any motive. That was in obvious contrast with the need for the jury to be so satisfied, in the circumstances of the case, of the truth of the confessional material.[16] The Crown case did not depend for its success on proof of any motive on the part of the applicant to kill. The Crown did, however, point to the applicant's sexual preference and proclivities, including a penchant for sado-masochism, as tending circumstantially to support the truth of the confessional statements. These personal characteristics of the applicant's seem to have been common ground and he himself also relied on them as tending to the contrary conclusion. As it happened, the learned judge gave his direction touching upon motive two days before the decision in Kotzmann was handed down, providing confirmation, at least so far as this State is concerned,[17] of justification for the direction. Ground 3 should accordingly fail.

94. The remaining grounds that were argued, numbered 5 and 6, centre largely upon the instrument with which Arnoldt was killed. It was not recovered by the police and was not exhibited at the trial. The confessional material, of course, included the applicant's statement to Martorana and Dolan on 1 May 1997 referring to an "Egyptian-type knife" and his description to Dolan on 8 May of the knife that he told Dolan he had used and which, according to him, had since been stolen from him. It was no doubt part of the Crown case, although not an indispensable part of it, that this was the murder weapon. As well as relying on the applicant's description to Dolan, the Crown called a man who had been the applicant's partner since 1990, one Chan Chen Uoy. That witness referred to a knife that the applicant had had until it was stolen in a burglary in 1995. He described it as a "Middle Eastern-style knife" having a purple handle with a gold floral inlay, a blade 4 to 5 cm wide and 23 to 25 cm long, with one sharp edge, fitting into a purple and gold scabbard. He made a rough sketch of the knife (without the scabbard) and the sketch was exhibited. That was the only evidence given at the trial of the knife's dimensions. The applicant in his evidence agreed with Uoy's description of the knife, which he admitted he had inherited from a friend whom he had nursed until his death in 1990, and which was stolen in 1995. One question underlying grounds 5 and 6 is whether the deceased's injuries were consistent with their having been inflicted by that knife.

97. The wounds sustained by the deceased were described in detail at the trial by Dr S. D. Robertson, the pathologist who performed the autopsy. So far as her evidence is now relevant it defined the following signs of injury:

(i) A curved incision to the left side of the front of the chest, measuring 3.6 cm by .8cm. This was the injury that had caused the damage mentioned in [1] above, penetrating to a depth of approximately 10 cm.

(ii) A 7 cm incision to the upper back, being the longest injury to the upper back, penetrating the eighth left intercostal space, between the eighth and ninth ribs, and the lower left lobe of the lung for approximately 5 cm to a total depth of approximately 7 cm.

(iii) An injury to the right upper back, penetrating the muscles attached to the scapula, and nicking the scapula itself, to a total depth of approximately 5cm.

(iv) A 2 cm incision on the right upper back, entering the chest wall in the eighth right intercostal space, between the eighth and ninth ribs, to a total depth of approximately 18 cm.

(v) A 2 cm incision to the right upper back, penetrating the lower right lobe and the upper right lobe of the lung and lacerating the sixth right intercostal muscle, between the sixth and seventh ribs laterally, fracturing the right fifth rib. This injury was 18 centimetres inferior to the vertebra prominens and 8 centimetres to the right of the mid-line, and the uppermost of the two injuries quite close together on the right upper back.

(vi) A 2 cm incision on the right upper back, being the lower of two almost parallel injuries, entering the right intercostal space, penetrating the right lower lobe of the lung to a depth of approximately 5 cm, and penetrating to a total depth of approximately 7 cm.

(vii) An 8 cm superficial incision, caused by a sharp object, running down the dorsum of the left middle finger.

(viii) An irregular laceration on the dorsum of the left middle finger, beginning at the knuckle and extending to the lower knuckle, and consistent with its being caused by a blunt instrument, such as the handle of a knife, a piece of stone or wood or a hard surface such as concrete.

(ix) A 1 cm diameter superficial abrasion over the medial border of the left eyebrow, which may have been caused by contact with an object or the ground.

103. In summary, therefore, there was one injury directed from the front of the chest that penetrated the heart and major associated blood vessels and, at the back, a number of injuries penetrating the chest wall and damaging the lungs and fracturing two ribs. Injuries (iii), (iv), (v) and (vi) were sharp injuries with the inferior border slightly squared off, tending to suggest that they were inflicted with a single-edged blade of, for example, a knife. Injury (i) was unusual in appearance. It appeared to have two parts, being consistent with two passes of a knife in much the same direction or with some movement of the body at the time of the stabbing, so that one passage of the knife had the appearance of two passes running in much the same direction. This injury passed between the fourth and fifth ribs, fracturing the fifth rib, passing further on and entering the heart. Injuries (vii) and (viii) were consistent with having been suffered during defence by way of attempts to fend off a knife attack. The cause of death was multiple incised injuries to the chest, and the mode of death was exsanguination - loss of blood from those injuries - but external bleeding did not appear to have been extensive. There was no pathological evidence indicating that the deceased had engaged in or been subjected to any sexual activity at or about the time of his death.

106. Defence counsel in his final address to the jury submitted ("at the eleventh hour" and "emphatically and repeatedly", according to a ruling that the judge later gave) that the wounds to the deceased's back could not have been caused by the Egyptian knife. The contention was that this must be so because, according to the witness Uoy, that knife was approximately four to five centimetres wide whereas the back wounds were only two centimetres wide. The address placed heavy reliance, by way it seems of rhetorical epigram, on a proposition that "four or five into two can not go".

109. The learned judge took some trouble in his charge to deal with the epigram that had become a central aspect of defence counsel's address, having intimated beforehand that, in the light of counsel's conduct of the defence case, he proposed to do so. After defence counsel had embarked on his address, and in the absence of the jury, his Honour remarked that what was put "at the forefront of your address is a total physical repudiation of the Crown case, and not one question was asked of Dr Robertson by you of that central matter...I would have thought it classically is a matter upon which an expert witness would be asked questions, including the movement of the body, the relativity of the attacker to the victim, and all the other matters which would bear on the question of the width of the injury and the width of the blade." Counsel responded by saying, in effect, that the proposition he was putting to the jury was no more than common sense. "There is absolutely no way known", he said, "regardless of the angle of entry, regardless of the movement of the body, that four centimetres or five centimetres could go into two centimetres. It is commonsensical and not necessary." The judge persisted: "All you needed to do was ask one two-line question: `Doctor, it is clear that those injuries could not have been inflicted by a knife that was four or five centimetres wide ?', and if your projection of Dr Robertson's expertise and mental state is correct she would have given you a one-word answer, `Yes'." Upon this counsel unceremoniously and not a little impertinently joined issue: "I disagree, and that is my submission on the topic." Thereupon prosecuting counsel submitted that "a strong Browne v. Dunn direction" was called for and that, unless it was given, the jury should be discharged. The judge was not willing to discharge the jury but he was faced with what he perceived to be a question of some nicety, observing that he was concerned to be fair to the jury "without being unduly hard on" defence counsel. His Honour stated his impression that counsel's decision not to cross-examine Dr Robertson had been "entirely ethical" but erroneous - "not a deliberate unethical step...but I think you made a mistake...that is really what we have to deal with. How is the jury going to handle your argument when it hasn't had the benefit of any evidence on it ?" In the event defence counsel resumed and completed his address to the jury without, it seems, resiling from his position previously adopted.

112. The judge ruled against the Crown's submission that "a strong Browne v. Dunn direction" should be given but did deal very deliberately in his charge with the proposition that "four or five into two can not go". In a ruling given after completing his charge to explain the course he had taken his Honour said: "I refused the application to make a direction of law on the Browne v. Dunn principle to the jury because, strictly speaking, the principle has not been breached. But the type of non-puttage which occurred in this case and which was, on its face, a matter which the relevant witness could have given evidence on, is the type of non-puttage which brings the adversarial system into disrepute...Rather than making , as I was entitled to make, a severe comment about the non-puttage, I contented myself with the bare minimum, which was to point out to the jury an absence of material so that they understood the limitations of the material led, and no more."

115. So it was that the judge observed to the jury that they were being asked, without having the benefit of certain evidence, to consider the point that had now been placed in the forefront of the defence case. First, his Honour said, there was no evidence from Uoy as to the basis of his statement that the Egyptian knife was approximately four to five centimetres wide. There was no indication whether he had measured it and, if he did not, whether it was an estimate and, if so, whether it was an estimate from observation as he was looking at it or an estimate from memory. Secondly, as his Honour pointed out, the jury as the judges of fact had not the benefit of any specialist evidence from Dr Robertson as to the significance of the width of the wounds to the deceased's back. The judge noted that, although defence counsel had addressed the jury at length on the point, he had asked no question about it of the pathologist who conducted the post mortem examination. There was, therefore, no evidence before the jury as to whether skin is elastic or not, or as to the significance of a one-sided knife - for example, whether it splits skin on the sharp side and stretches it on the blunt side. His Honour emphasised to the jury that they were not entitled to speculate on matters such as these, or guess at what evidence might have been given on them had it been the subject of questioning. The judge spelt out the significance of the point that the defence sought to make, namely that the Egyptian knife did not make the wounds to the deceased and that the applicant's account of his use of it was another part of the untrue story he had told to Martorana and Dolan. At the same time his Honour pointed out that the prosecution was obliged to prove not which knife killed the deceased but which person killed him; and that, as the prosecutor had correctly submitted, the case against the accused did not stand or fall on the identity of the knife.

118. It is against the background of paragraphs 29 - 35 above that grounds 5 and 6 are to be understood. They are as follows -

"5. The learned trial judge erred in what he said in his Charge to the jury in his 'reference(s)' to the final address of counsel for the Applicant in respect of the Egyptian knife, its width and the width of the back wounds of the deceased.

(i) It was not appropriate for the learned trial judge to make any such 'reference(s)' in his Charge to the jury.

(ii) In the alternative to (i), the 'reference(s)' would (and, in the alternative, could) have been understood as a direction to the jury which had the effect of impermissibly undermining the defence of the Applicant.

(iii) In the alternative to (ii), the 'reference(s)' would (and, in the alternative, could) have had the effect of impermissibly undermining the defence of the Applicant.

6. The conduct of the Applicant's legal representatives in their acting for and on behalf of the Applicant in respect of the proceeding at trial was such as to prejudice the trial of the Applicant and, as a consequence, there has been a substantial miscarriage of justice.

(i) The Applicant's legal representatives failed to seek and obtain expert evidence concerning the nature of the wounds which would and/or could result from the use of the Egyptian knife.

(ii) The Applicant's legal representatives failed to seek and obtain expert evidence concerning whether the wounds sustained by the deceased resulted, or might have resulted, from the use of the Egyptian knife.

(iii) The Applicant's legal representatives failed to adduce before the jury expert evidence concerning the nature of the wounds which would and/or could result from the use of the Egyptian knife.

(iv) The Applicant's legal representatives failed to adduce before the jury expert evidence concerning whether the wounds sustained by the deceased resulted, or might have resulted, from the use of the Egyptian knife.

(v) The Applicant's counsel failed to put questions to the Prosecution witness Dr. Shelley Diane Robertson concerning the nature of the wounds which would and/or could result from the use of the Egyptian knife.

(vi) The Applicant's counsel failed to put questions to the Prosecution witness Dr. Shelley Diane Robertson concerning whether the wounds sustained by the deceased resulted, or might have resulted, from the use of the Egyptian knife.

(vii) The Applicant's counsel failed to seek and/or support an application for the discharge of the jury consequent upon and subsequent to his final address and, in particular, his reference to the Egyptian knife, its width and the width of the back wounds of the deceased."

137. No separate submissions were made in support of ground 5 and for the time being I shall put it to one side. The fundamental submission upon which ground 6 rests is that, at the trial, the proposition that "four or five into two can not go" was not put by defence counsel to Dr Robertson and no evidence was called by the defence to support the proposition. It is now asserted that evidence could have been called to make the proposition good and that, had it been called, there was a significant possibility that the jury would have acquitted the applicant.

140. An affidavit sworn by the applicant on 21 February this year was tendered in this Court in support of ground 6. Much of it is irrelevant. It deposes also to discussions that the applicant swears he had with his counsel on the proposition that the Egyptian knife could not have inflicted the fatal wounds, and to his apprehension that his counsel did not satisfactorily conduct the defence so far as it depended on that question. The applicant was represented by the same counsel at the three trials - two before McDonald, J. and one before Cummins, J. The applicant has sworn -

"14. The Egyptian knife and whether it could have inflicted the wounds upon the deceased became an important issue at the conclusion of the second trial, in which the jury failed to reach a unanimous verdict. During deliberation, the jury returned to ask a number of questions. The first was whether there was anything more to be said in evidence about the Egyptian knife, other than it[s] size or words to that effect. The jury also requested a copy of the coroner's report, however the learned trial judge denied this as it had not formed part of any evidence before the court. 15. At the conclusion of the trial, I became concerned about the Egyptian knife issue, as it appeared to me that the jury thought that this was an important aspect of the case. Until this point in time, the issue seemed to have been overlooked by my legal representatives. 16. I believed that the issue relating to the Egyptian knife should have been explored more thoroughly, both during the preparation and running of the trial. [Although it is not entirely clear, I assume that in this and the following paragraphs the applicant is speaking of the trial before Cummins, J.] The issue was discussed with counsel and I had instructed [him] to examine the depth of the knife wounds. [He] advised me that he would speak to Dr Byron Collins about the matter. 17. During [counsel's] final address to the jury, I became extremely concerned when the learned trial judge did not allow [him] to address the jury on the specific point that five centimeters does not go into two centimeters. I was worried about the manner in which this aspect of the case was handled. I did not say anything in court because I was overwhelmed by what was occurring, nor did I think that it was appropriate."

144. Paragraph 17 of the affidavit, in suggesting that the judge "did not allow" counsel "to address the jury on the specific point", etc., appears to betray a misapprehension of the exchange between defence counsel and the judge. His Honour did not disallow any part of counsel's address. The applicant refers in succeeding paragraphs of the affidavit to discussions he had with his counsel during the trial and swears in effect that counsel told him that he had no need to cross-examine Dr Robertson because "any idiot can see that four to five centimeters does not go into two centimeters'; and that he "was of the view that he did not need to obtain an expert opinion, and that he was right in the way he approached the issue".

147. Another affidavit, also sworn on 21 February this year, by Dr Richard Byron Collins, a consultant forensic pathologist, purporting to offer expert evidence in support of the proposition that "four or five into two cannot go" was tendered in support of this application. The deponent swore that he had been requested (presumably by the applicant's legal advisers at the time) to provide expert opinion "with respect to the matter of Jamie Koeleman" and had provided reports dated 8 September 1997 and 18 February 1999. The affidavit does not specifically disclose their content save to indicate that they did not "provide an opinion on any likely weapon and whether the wound sustained by the deceased resulted from, or might have resulted from, the use of any particular weapon". He swore further that he received from the applicant's present solicitors, on dates after the applicant's last trial, some unidentified photographs, an unidentified autopsy report of Dr Robertson and some rather vaguely identified evidence from her and from Chan Cheng Uoy and that, having reviewed that material, he exhibited a report dated 20 December 1999. I assume that the evidence referred to was given at the applicant's last trial and that the other material relates to the deceased man, Arnoldt. The applicant's solicitors apparently sought the report from Dr Collins by way of comment "concerning the weapon alleged by the Crown to have been used by Mr Koeleman in the stabbing of the late Francis Arnoldt". In common with the solicitors' request for it, the report appears to make the assumption that the case put forward by the Crown was that the knife used to kill the deceased was the knife that was described by Uoy. Further, the report indicates that Dr Collins had no description of "the actual shape of [the] Egyptian knife". Making an assumption about its shape, Dr Collins has given his opinion that "...it would be IMPOSSIBLE [sic] to cause stab wounds such as injuries numbered (1) - 10 cm in depth and (5) - 18 cm in depth, as described in the autopsy report prepared by Dr S. Robertson. It would be highly unlikely for the remainder of the stab/incised wounds to result from this particular size of weapon." Dr Collins swore a supplementary affidavit on 8 March this year, that was tendered to us, qualifying his earlier opinion to some extent. I need not refer to it save to say that it is apparent from it that he remained unaware of the shape of the knife described by Uoy and continued to find it necessary to speculate about it.

150. The Court received these three affidavits during argument in order to read them, but did not then rule on their admissibility. It is as well, before further considering them, to refer to a report to the Court from the trial judge made pursuant to the Rules of Court and referable to ground 6 of the application. The report is evidently directed to the matter that disturbed the learned judge from an early stage in defence counsel's final address: the contention that was raised, as his Honour put it, at the eleventh hour, and emphatically and repeatedly, and without appropriate preparation, that the deceased's wounds could not have been caused by the Egyptian knife. His Honour points to the approach that had been taken on behalf of the applicant, from an early stage, to the various proceedings with which he had been concerned arising out of Arnoldt's death. It appears from the applicant's affidavit to which I have referred that he had legal representation at all times now relevant although, as he now says, not always to his satisfaction. Cummins, J. reports as follows or to the following effect - [18]

(i) Dr Robertson was not cross-examined as to the dimensions of the stab wounds to the deceased;

(ii) Uoy was not cross-examined about the dimensions of the Egyptian knife; and in his police statement of 11 June 1997, tendered at the committal proceeding, he had described its dimensions thus -

"The full length would be just over 30 centimetres and the blade itself about 20 centimetres long. It would have been about four to five centimetres wide."

(b) In the first trial before McDonald, J. ( beginning on 1 September 1998) -

(i) Dr Robertson gave detailed evidence-in-chief about the dimensions of the stab wounds; and she was not cross-examined as to the relativity of their dimensions to any dimensions of the knife;

(ii) Uoy gave evidence-in chief about the identity of the knife but gave no dimensions; and he was not cross-examined as to the knife's dimensions in the 20 pages of his cross-examination before the jury were discharged on 3 September (with cross-examination incomplete).

(c) In the second trial before McDonald, J. (beginning on 3 September 1998) -

(i) Dr Robertson again gave detailed evidence-in-chief about the dimensions of the stab wounds; and again she was not cross-examined as to the relativity of their dimensions to any dimensions of the knife;

(ii) Uoy in his evidence-in-chief said the knife was "approximately 30 centimetres"; and he gave no evidence-in-chief and was not cross-examined about its width;

(iii) the applicant gave evidence and did not refer to the dimensions of the knife;

In his final address defence counsel did not refer to the dimensions of the knife or their relativity to the dimensions of the stab wounds.

On the fourth day of their deliberation, 21 September 1998, the jury asked -

"Is it possible to have a copy of Dr Robertson's evidence? We have scanty notes on her evidence so the transcript would be useful regarding stab wounds matching the murder weapon." (Cummins, J. in his report says that "So far as I am aware, this jury request was the first mention in any proceeding of the relativity of the stab wounds to the weapon. The jury was discharged without verdict later that day")

(i) Dr Robertson again gave detailed evidence-in-chief about the dimensions of the stab wounds, and again was not cross-examined as to the relativity of their dimensions to any dimensions of the knife;

(ii) Uoy for the first time gave oral evidence-in-chief describing the knife and its dimensions, as I have summarised it above. He was not cross-examined about the dimensions, but he was asked in cross-examination other questions about the knife, particularly about "a metal bit that covers the handle" and its shape; and he was asked by defence counsel to draw a sketch to indicate the shape. The witness, apparently gratuitously, wrote the dimensions on the sketch, which became exhibit 3.

(iii) The accused for the first time gave evidence capable of bearing on the dimensions of the blade. His evidence consisted of three words in answer to a leading question :

"Q. Chan Uoy has given a description of it; do you agree with that description? --- Yes, I do"

"The matter of the dimensions of the knife then sank into quiescence until defence counsel's final address."

"At no time in his evidence did the applicant refer to the dimensions or the shape of the knife blade, or to exhibit 3."

174. His Honour refers in his report to counsel's final address and to his own ruling in respect of it, in which -

"I concluded that defence counsel honourably but erroneously had concluded that it was not incumbent upon him to join issue on the relativity matter during the evidentiary phase of the trial. This remains my view."

"It appeared to me that the defence had made a conscious decision to conduct the third trial in precisely the way it was conducted. I do not know what passed between counsel and client and I do not know whether the applicant was complicit in the way the trial was conducted. There is a hiatus between paragraphs 16 and 17 of the applicant's affidavit of 21 February 2000 as to what passed between counsel and client during the evidentiary phase of the trial." "During the trial the applicant no doubt was under significant stress, charged as he was with murder. However I observed the applicant twice give evidence [once on the voir dire] and observed him throughout the trial. The applicant appeared to me to be intelligent, alert and well aware of the trial process and of his right to partake in it."

180. The primary argument for the applicant under cover of ground 6 was that the relative dimensions of the deceased's wounds and of the Egyptian knife raise such a doubt as to his guilt that the verdict should not be permitted to stand. It is said that the doubt is demonstrated by the evidence of Dr Collins, which this Court ought to receive. Plainly enough, however, the evidence of Dr Collins is not fresh evidence in the sense that it was not available to the applicant to be called at trial in March 1999. Dr Collins had been consulted on behalf of the applicant and had already provided two reports, one in September 1997 and the other in February 1999, so that his opinion was no doubt available to be led in evidence at the March trial. That being so, his evidence should be received and acted on by this Court now only if it is sufficient to convince the Court, on the Court's own view of it, that the verdict of guilty should not be allowed to stand: so much follows from the reasoning of Barwick, C.J. in Ratten v. The Queen,[19] as counsel for the applicant acknowledged. So long, therefore, as that reasoning stands undisturbed it is necessary (as counsel further acknowledged) that, in order to succeed on his primary argument, he needs to satisfy this Court that the evidence of Dr Collins, if received, ought to result in an acquittal. That being so, I cannot accede to the argument that the evidence of Dr Collins should be received, for it is to my mind quite inconclusive as to the applicant's implication in the murder. It may throw doubt on the thesis that the deceased was killed with the Egyptian knife. The jury were in my opinion, however, well entitled to be satisfied beyond reasonable doubt that the applicant attacked the deceased man and stabbed him, whether or not they were satisfied beyond reasonable doubt that the instrument he used was the knife described by the witness Uoy or that it answered the description of a knife that Uoy gave. The jury were entitled to regard the evidence of the description and the dimensions of the Egyptian knife as comparatively feeble and inconsequential, in the light of the evidence taken as a whole, in providing a picture of the applicant's implication. The first basis advanced for the reception of the evidence of Dr Collins is, therefore, in my opinion to be rejected.

183. Alternatively, it is said that the affidavits of Dr Collins, if not receivable to show by themselves a significant doubt about the propriety of the verdict, should be received, together with that of the applicant, for their demonstration of the relative and relevant incompetence at the trial of the applicant's legal representatives. They show, so it is submitted, that evidence could have been called with a view to casting a reasonable doubt on the thesis that the Egyptian knife was used to inflict the deceased's mortal wounds; or at least that Dr Robertson ought to have been cross-examined with a view to raising the same kind of doubt; and that if either of those courses had been taken an acquittal might have followed. The essential question is whether the conduct of defence counsel, in adopting the course he did and persisting with it in the face of the trial judge's strictures, is to be characterised as amounting to an identifiable mistake attributable to obstinacy and ignorance of what was required, or as the deliberate pursuit of an intended course that was designed to achieve the best result for his client. The distinction, and its consequences, are described thus by the Full Court in R. v. Ratten[20] -

"In conformity with [the] conception of a fair trial, if an accused person can show that he has been prevented by surprise, fraud, malpractice or misfortune from presenting at his trial evidence of substantial importance which he desired to present, or which he would have desired to present had he not been prevented by such causes from being aware of its existence or its significance, then ordinarily the fact that he has been tried and convicted without such evidence having been called involves that he has been deprived of his right to a fair trial and that there has, in that respect, been a miscarriage of justice. But on the other hand, if the reason why the additional evidence was not called is merely that the accused and his advisers made a deliberate choice not to call particular witnesses or a particular class of evidence, then obviously the accused has not been denied, but has exercised, his right to a fair trial, and there has been no miscarriage of justice of the kind described above. This is made even more obvious where the choice was made to obtain, and has obtained, for the accused, substantial advantages such as the last address and the use of strong arguments based on Crown evidence which the additional evidence would have contradicted."

187. The affidavits sworn by the applicant and Dr Collins ought, I should think, to be receivable with a view to demonstrating that a miscarriage of justice was brought about by professional incompetence. The history they reveal, together with that disclosed in the report of the trial judge, which was in no respect contradicted, leave me unpersuaded, however, that the course taken by counsel was not designedly conceived and purposefully pursued.

190. As the trial judge has implied in his report, the applicant's affidavit is notably incomplete; and I should not be inclined to regard the affidavit as making an entirely frank statement about the relevant discussions between the applicant and his counsel. If the evidence of Dr Robertson on the subject of the relation between the wounds and the instrument that inflicted them was seen to be critical to the defence case, or even of secondary importance to it, there were four opportunities provided to those representing the applicant to cross-examine her about it. None was taken. As the judge pointed out at the third trial, a question of the most elementary kind would have sufficed. The applicant's affidavit, on one view of it, suggests in paragraph 15 that a realisation that what he calls "the Egyptian knife issue" was of importance emerged only at the end of the second trial, after the jury had shown interest in it. Paragraph 16 of the affidavit, as I have noted, is unspecific as to when "the issue was discussed" with counsel. The affidavit conspicuously omits to say that the applicant discussed it at any time between the end of the second trial and the commencement of the third, or at any time during the third before the evidence closed. In particular, the applicant has not condescended to refer to any instructions that he gave to his solicitor or counsel touching the relativity of the width of the knife wounds (as opposed to their depth) and the width of the Egyptian knife. Nor has Dr Collins denied that defence counsel spoke to him "about the matter", as the applicant has sworn he advised him he would. If counsel did not speak to Dr Collins after telling the applicant he would, or if he did speak to Dr Collins and ignored his opinion, one would expect Dr Collins's evidence to reveal it. Had the applicant's affidavit been prepared by him without professional assistance one might look benignly on its vagueness and its other shortcomings. As it is, the affidavits sworn by both the applicant and Dr Collins were evidently prepared with deliberation and engrossed by the same firm of solicitors with the intention that each should complement the others. What the affidavits do not say, as well as what they do, leaves them wanting as persuasive evidence of incompetence or intransigence on the part of the applicant's solicitors or counsel. It seems plain enough that defence counsel chose deliberately not only to refrain from cross-examining Dr Robertson on the matter of the relative width of the wounds and of the Egyptian knife but to decline to call evidence of the opinion of Dr Collins about it. To speculate upon a reason for that course is not ultimately profitable, but it is not difficult to think of one or more by which it might well have been encouraged. It was a peculiarity of the case that the identity of the weapon with which the deceased was certainly stabbed was itself a matter of no certainty at all. As it was, the case appears to have gone to the jury on the assumption (for want of more) that the weapon used was or may have been the Egyptian knife of which the applicant had spoken to Martorana and Dolan. That, however, as the judge pointed out in his charge, was not a fact that the Crown had necessarily to prove. It is nevertheless understandable that in the circumstances the defence should have sought to put an argument to the jury based on a supposed incongruity between the weapon and the wounds, as though the Crown case did in some sense rely on the Egyptian knife, the applicant's confessions having been put forward by the Crown as substantially true.

193. The essence of the argument appears to have been that, as a matter of common sense, the deceased's wounds (or at least some of them) could not have been caused by the Egyptian knife, as described, and that therefore the applicant should not be found to have inflicted them. It seems to me, looking at the whole of the material before us, to be very probable that defence counsel determined to advance that argument - or assertion - unembarrassed by any technical pathological evidence. To have elicited evidence of that kind by cross-examination of Dr Robertson or in chief from Dr Collins would have been likely to open up for consideration some questions with which it would not have been convenient to the defence case to grapple - for example, (a) what kind of instrument could have caused each of the deceased's injuries?; and (b) could a knife, as described by Uoy, have caused some of them, and in particular injuries (ii) and (iii)?; and might they have been caused by another knife? The uncertainty surrounding the identity of the fatal weapon was, I should think, a factor capable of working to the advantage or to the disadvantage of the defence case, depending on the way in which it was managed or deployed. The elicitation of evidence, by cross-examination or in chief, that was calculated to dispel the opacity of the subject, or to deflect the jury's mind from the simple proposition of "common sense" that was put by counsel was, as it appears to me, a course that he probably chose consciously to avoid.

196. For these reasons I would reject the submission that the applicant suffered a miscarriage of justice by virtue of the incompetence of his legal representatives. Rather, it seems to me - as is it apparently did to the learned trial judge - that in relevant respects the fairness of the applicant's trial was in accordance with his due exercise of his rights. Ground 6 should therefore fail.

199. I refer briefly to ground 5 of the application. Because this ground was not the subject of separate argument, I can only assume that it was intended to be dealt with in association, so to speak, with what was said to be the unsatisfactory conduct of defence counsel complained of under cover of ground 6. I think the two grounds must fall together. Ground 5, it will be noted, does not complain of the judge's intervention in counsel's final address to point out what he regarded as an erroneous and impermissible course of conduct. That course having been advisedly pursued, as I have characterised it, and persisted with notwithstanding the judge's intervention, his Honour was faced with what he evidently saw as a threat to the integrity of the trial. The notion that some at least of the deceased's injuries could not have been caused by the Egyptian knife, and that therefore the applicant should not be held to have inflicted any of them, floated at the time it was as a novelty, was calculated if left unbridled to lead to predictable mischief. It bade fair, as it seems to me, to induce or even to encourage the jury to investigate, and perhaps to speculate on, just the kinds of considerations that might have dissuaded counsel from eliciting evidence of the kind which the judge regarded as a proper foundation for such considerations. The Crown, having addressed the jury by the time the novelty was launched, not surprisingly pressed for their discharge in the absence of a strong direction from the judge. His Honour's expressed concern to be fair to the jury, but not at the avoidable expense of defence counsel, was in other words, if I may presume to say so, a concern to save the trial from unwarrantable unfairness. This was a concern that his Honour was entitled - indeed obliged - to sustain; and the decision to refer to the matter in his charge in the matter-of-fact way he did, rather than to accede in terms to the Crown's submission, was in my opinion well justified. Remembering again that a fair trial is not a one-way street, the portion of the charge now complained of should not be seen as a design merely to redress the Crown's position of disadvantage, brought about by what was complained of as an ambush. In keeping the balance in conformity with the concept of a fair trial, the judge was equally required to do what he could to avoid the prospect that the jury should reach any verdict that might be seen to depend on speculation. Such a verdict, if one of not guilty, might be seen as objectively unacceptable; but correspondingly, if one of guilty, it might run the risk of being held unsafe and unsatisfactory. So much for ground 5.

202. Ground 1 of the application was made to depend only on the arguments advanced in favour of the others and must accordingly fail. It was further submitted for the applicant that, although none of the grounds of the application considered in isolation might be sufficient to found a miscarriage of justice, they do when considered cumulatively or in combination demonstrate that he was denied a fair trial. It is true that a series of defects, faults or errors in a trial, none of which individually would bring it down, may do so in aggregate.[21] It will appear, however, from my reasons above that in my opinion this is not a case in which the grounds argued reveal any such defect, fault or error. The application should be dismissed.

208. I agree that this application should be dismissed, substantially for the reasons given by the learned presiding judge except at [43] and [49]. My note is that Mr Holdenson conceded that the proffered affidavits did not contain fresh evidence and would not lead to a judgment and verdict of acquittal. That being so, he acknowledged that they could be used in this Court only for the purpose of impugning the conduct of the applicant's professional advisers, because we were bound by the analysis of Barwick, C.J. in Ratten v. R.[22] Counsel reserved the correctness of that analysis for argument if the case went further.

211. The only point that troubled me was whether the course trial counsel took, in relation to what the judge described at one stage as "a central and critical matter"[23] and attracting the judicial comments[24] that it did, showed the kind of serious misjudgment that is capable of attracting appellate intervention[25] but, at the end of the argument, I did not think so and, despite misgivings, that is still my opinion.

214. The use of the Egyptian knife was not truly central or critical: it was a detail, albeit an important detail, of the applicant's confessions: and the questions which, it is said, should have been asked were not without risk. Hypothetical counsel, against whose conduct I measure what happened, may have thought that the defence could not do better than Mr Uoy's evidence and an appeal to the jury's commonsense. One may or may not agree with such a judgment, but it was within the range of forensic decision that is consistent with a fair trial. It was briefly contended, under cover of ground 5, that his Honour's comment in the charge was erroneous or went too far.[26] I do not accept that submission. The comment put counsel's argument in perspective.

219. I agree that the application for leave to appeal against the applicant's conviction should be dismissed for the reasons stated by Tadgell, J.A.

[1] As explained in such authorities as McDermott v. R.. (1948) 76 C.L.R. 501, at 511_;_ Foster v. R..[1993] HCA 80; (1993) 113 A.L.R. 1, at 19; R. v. Swaffield; Pavic v. R.. [1998] HCA 1; (1998) 192 C.L.R. 159, at 174-5, 181-2, 189-90,195 and 209-10; R.. v. Heaney and Walsh [1998] 4 V.R. 636, at 644; R.. v. Carter [2000] V.S.C.A. 6.

[2] [1993] HCA 80; (1993) 113 A.L.R. 1, at 19.

[3] [2000] V.S.C.A. 6 at [50]; and see Swaffield, at 203, citing R. v. Azar 1991 56 A. Crim. R. 414, at 420.

[4] Duke v. The Queen [1989] HCA 1; (1989) 180 C.L.R. 508, at 513, per Brennan, J.

[5] Such as Swaffield and the Canadian case of R. v. Herbert [1990] 2 S.C.R. 151

[6] Cf. Pavic, at [35], per Brennan, C.J.

[7] Cf. Swaffield, at [89], per Toohey, Gaudron and Gummow, JJ.

[8] R. v.Kotzmann [1999] VSCA 27; [1999] 2 V.R. 123, at [21]

[9] [1998] HCA 51; (1998) 155 A.L.R. 605

[11] (1985) 4 N.S.W.L.R. 42, at 59-60, a unanimous decision of five judges constituting the New South Wales Court of Appeal and Court of Criminal Appeal.

[12] Chamberlain v. R. (No. 2) [1984] HCA 7; (1984) 153 C.L.R. 521.

[13] [1999] VSCA 27; [1999] 2 V.R. 123.

[14] [1990] HCA 56; (1990) 170 C.L.R. 573.

[15] Per Phillips, C.J., at [2-3]; Callaway, J.A., at [14-17 and 47]; and Batt,J.A., at [51-4].

[16] R. v. Landells [2000] VSCA 84, especially at [25], for which reference I am obliged to Callaway, J.A.

[17] Along with New South Wales: R. v. Pantoja (unreported, N.S.W. Court of Criminal Appeal, 5 November, 1998).

[18] In general I shall paraphrase unless direct quotation seems to be called for.

[19] [1974] HCA 35; (1974) 131 C.L.R. 510, at 519-20.

[20] [1974] VicRp 26; [1974] V.R. 201, at 214.

[21] An example is provided by Kotzmann, in which Batt, J.A., at [114], refers to relevant authority.

[22] [1974] HCA 35; (1974) 131 C.L.R. 510 at 516-520. See also the judgment of Kenny, J.A. in R. v. Challoner [No. 1] (unreported, Court of Appeal, 28th July 1998).

[23] Transcript at 806: "But this [is] a central and critical matter where, in fact, the defence has said the accused could not have done it, and it is demonstrated physically before you. Nothing could be more central."

[24] I refer not only to the comment in the charge but also to his Honour's assessment, reiterated in his report to this Court, that counsel's decision was a mistake.

[25] R. v. Hadland [1969] VicRp 93; [1969] V.R. 725 at 729 line 53 - 730 line 5; Re Ratten [1974] VicRp 26; [1974] V.R. 201 at 214 lines 24-41; R_. v. Sarek_ [1982] VicRp 99; [1982] V.R. 971 at 982 line 36 - 983 line 8, 987 lines 45-52; Re Knowles [1984] VicRp 67; [1984] V.R. 751 at 770 lines 9-18; R. v. Birks (1990) 19 N.S.W.L.R. 677 at 685E; R. v. D. (1996) 86 A.Crim.R. 41 at 43 and R. v. Miletic [1997] 1 V.R. 593 at 598 lines 26-45. The test is not the culpability of the advocate but the effect on the trial, although the former usually has a bearing on the latter. That is because the ultimate question is whether there has been a miscarriage of justice. See and compare R. v. Clinton [1993] 1 W.L.R. 1181 at 1188A.

[26] Cf. [49]. This submission was made orally and departed from counsel's intention at the outset not to address separate argument on that ground. His primary submission remained that the judge's intervention showed the seriousness of counsel's error.