R v Kotzmann [1999] VSCA 27

21. Ground 6, namely that the learned judge failed to give proper directions to the jury on inferences, turns on a question of general importance the resolution of which is affected by two recent decisions of the High Court. We should first direct ourselves in accordance with those decisions and then consider the impugned passage in the charge in that light. A re-trial on the first presentment being necessary, it is desirable to say as little as possible about the facts, but I shall refer to so many of them as are necessary to understand the successful ground of appeal and also to some issues that may arise at the new trial. Because the sentence imposed on the first count of armed robbery will fall with the conviction, this Court will have to re-sentence the applicant. Consideration of the facts relating to the second presentment may be deferred until that task is undertaken.

24. At 9.15 a.m. on Saturday 29th July 1995 a man entered a branch of the Bank of Melbourne in Whitehorse Road, Balwyn. He was wearing a balaclava and gloves and was armed with a sawn-off automatic rifle. He pointed the rifle at customers who were in the bank and told them to get down on to the floor. He then approached the counter, produced a plastic bag and demanded that the tellers put money in it. In the course of complying with that demand two of the tellers also placed Skorpion dye bombs in the bag. The man pointed the rifle at the manager and made her open the back door. He escaped with $20,000, none of which has been recovered. The Crown case, which was entirely circumstantial, was that the applicant was the robber.

27. The robbery was captured on the bank's video surveillance equipment and one of the exhibits comprised 12 photographs showing the offence being committed. Part of the circumstantial case against the applicant consisted of proving that a firearm tendered in evidence, Exhibit D, was the firearm shown in the photographs and that Exhibit D could be linked to the applicant. Both were model 77 .22 semi-automatic Winchester rifles that had been shortened at both ends and they looked very similar.

30. A statement by Christopher Dean Carlisle was received in evidence. He said that in September 1992 his motor car, a Mitsubishi Pajero, had been stolen and that, at the time the car was stolen, he had a .22 calibre Winchester brand rifle in it as well as a lot of other property. The car was subsequently located but some of the property, including the rifle, was not recovered. Mr. Carlisle was not able to say that Exhibit D was the same firearm, but the serial number was recorded with the South Australian Police Department. A certificate pursuant to s.36 of the Firearms Act 1977 (S.A.) showed that Exhibit D was registered in his name.

33. Tanarsha Marie Wolters gave evidence that she met the applicant in mid 1992 in South Australia. She thereafter kept company with him but they had an acrimonious falling out. (This was the witness in respect of whom it was said that a Faure direction should have been given.) She said that she had had a conversation with the applicant about a Pajero four-wheel drive vehicle in the course of which he told her that he had stolen it and that there had been camping gear in the vehicle. Cross-examined, she said that the conversation about the Pajero took place soon after she had met the applicant. She did not know exactly when but, in answer to one question, she said it was a couple of months after. She also said that she supposed it would have been mid-winter. Those answers were predicated on her having met him about June 1992.

36. On 23rd October 1995 a member of the Victoria Police Force called Dominic James Borger saw a green Mitsubishi Magna sedan arrive and park at the applicant's grandmother's house in Burke Road, Kew. The applicant got out carrying a large plastic Myer bag and walked to the back of the house. There were two other people in the car. After three minutes the applicant returned, without the bag, and they drove off. The applicant's companions were Theo Pavlou and Harry Hasiotis. They also gave evidence about the plastic bag and, in the case of Hasiotis, other luggage that the applicant was said to have been carrying.

39. Another police witness, John William Curnow, gave evidence that he too had been present at the address in Burke Road on 23rd October 1995. He saw two motor vehicles, one of which was a yellow Holden sedan parked in the carport. That was the applicant's car. Detective Senior Constable Curnow saw a black and white Myer shopping bag on the back seat of the car. Inside the bag there was a .22 calibre semi-automatic rifle complete with a magazine containing six bullets. That was the firearm that became Exhibit D at the trial. The jury were invited to conclude that Exhibit D, originally stolen from Mr. Carlisle, was taken by the applicant in the plastic bag to his grandmother's house and left in the Holden.

42. The leading case on the standard of proof applicable to circumstantial evidence is Shepherd v. R. [1990] HCA 56; (1990) 170 C.L.R. 573. The principal judgment was delivered by Dawson, J., who said at p.579:

"Circumstantial evidence is evidence of a basic fact or facts from which the jury is asked to infer a further fact or facts. It is traditionally contrasted with direct or testimonial evidence, which is the evidence of a person who witnessed the event sought to be proved. The inference which the jury may actually be asked to make in a case turning upon circumstantial evidence may simply be that of the guilt of the accused. However, in most, if not all, cases, that ultimate inference must be drawn from some intermediate factual conclusion, whether identified expressly or not. Proof of an intermediate fact will depend upon the evidence, usually a body of individual items of evidence, and it may itself be a matter of inference. More than one intermediate fact may be identifiable; indeed the number will depend to some extent upon how minutely the elements of the crime in question are dissected, bearing in mind that the ultimate burden which lies upon the prosecution is the proof of those elements. For example, with most crimes it is a necessary fact that the accused was present when the crime was committed. But it may be possible for a jury to conclude that the accused was guilty as a matter of inference beyond reasonable doubt from evidence of opportunity, capacity and motive without expressly identifying the intermediate fact that the accused was present when the crime was committed.

On the other hand, it may sometimes be necessary or desirable to identify those intermediate facts which constitute indispensable links in a chain of reasoning towards an inference of guilt. Not every possible intermediate conclusion of fact will be of that character. If it is appropriate to identify an intermediate fact as indispensable it may well be appropriate to tell the jury that that fact must be found beyond reasonable doubt before the ultimate inference can be drawn. But where - to use the metaphor referred to by Wigmore on Evidence, vol. 9 (Chadbourn rev. 1981), par. 2497, pp.412-414 - the evidence consists of strands in a cable rather than links in a chain, it will not be appropriate to give such a warning. It should not be given in any event where it would be unnecessary or confusing to do so. It will generally be sufficient to tell the jury that the guilt of the accused must be established beyond reasonable doubt and, where it is helpful to do so, to tell them that they must entertain such a doubt where any other inference consistent with innocence is reasonably open on the evidence."

48. Before proceeding further it is appropriate to emphasize the last two sentences of the passage that I have just quoted. It is usually sufficient to instruct a jury that they must be satisfied beyond reasonable doubt of the guilt of the accused, i.e. of every element of the offence charged and the exclusion, in an appropriate case, of a common law defence such as self-defence, provocation or duress. It is a corollary of proof beyond reasonable doubt that the jury must acquit the accused if there is a reasonable hypothesis consistent with innocence: see, for example, Plomp v. R. [1963] HCA 44; (1963) 110 C.L.R. 234 and Cutter v. R. [1997] HCA 7; (1997) 71 A.L.J.R. 638. That is commonly pointed out where the Crown relies on circumstantial evidence. It is a corollary of the requirement that the prosecution exclude such a defence beyond reasonable doubt that the jury must acquit the accused if there is a reasonable possibility that the defence is not excluded: see, for example, R. v. Abusafiah (1991) 24 N.S.W.L.R. 531 and R. v. Lanciana (1996) 84 A.Crim.R. 268. It is only in an exceptional case that it is necessary to direct the jury specifically that they must be satisfied beyond reasonable doubt of any other fact. In this judgment, to avoid pre-judging the issue, I shall refer to a fact that is not an element of the offence or of a defence that has to be excluded as "an additional fact". There are difficulties in referring to it as "an intermediate fact", which may suggest an indispensable link in a chain of sequential reasoning, or a "subsidiary fact", which may suggest that it might never have to be proved or excluded beyond reasonable doubt.

51. Although Wigmore deprecated the utility of the metaphor to which Dawson, J. referred, it does helpfully describe two distinct kinds of reasoning. Sometimes a jury is satisfied beyond reasonable doubt because of an accumulation of detail, especially an accumulation of detail bearing on a critical issue in the case. The intention of the accused may, for example, be a critical issue and there may be six or seven facts which, taken together, establish beyond reasonable doubt what the accused's intention was, even if none of those facts is itself established to the criminal standard. We all reason like that in the common affairs of life; such reasoning is not confined to the jury room; the six or seven facts are aptly described as "strands in a cable" of proof. There are other cases where sequential reasoning is necessary or appropriate. Fact A may be probative of guilt only if fact B is true and fact B may be true only if fact C in turn is true. If there is no other evidence bearing on a critical issue, each of those facts must be proved beyond reasonable doubt. The jury cannot treat facts B and C as strands in a cable of proof. Each of them is an "indispensable link in a chain".

54. It does not follow that, wherever sequential reasoning is necessary or appropriate, each link in the chain must be established beyond reasonable doubt. The qualification, "[i]f there is no other evidence bearing on a critical issue" is important. A jury may be invited to conclude that the accused is guilty by reference to seven facts. One or more of the individual facts may be established only by sequential reasoning but that chain itself be simply one of the strands in the ultimate cable. If the judge said that one of the links in the chain establishing one of the seven facts did not need to be established beyond reasonable doubt, that would betray no error of logic. The jury would consider that link in that chain only for the purpose of deciding whether one of the strands of the cable was present. If it was, it would be part of the accumulation of detail. If it was not, the other six facts might be sufficient on their own to satisfy the criminal standard of proof.

57. The advantage of the distinction between an accumulation of detail ("strands in a cable") and reasoning where each step depends on a previous step ("indispensable links in a chain") is the advantage of determinacy. It is always possible, as a matter of logic, to say whether an inference is of one character or another. Two disadvantages are that it is relatively easy to make a mistake in deciding the character of the inference and that human beings come to perfectly sensible conclusions every day without analysing their processes of reasoning. A soldier will tell you that, in the heat of battle, he does not do a written appreciation in conformity with a manual of tactics; but that does not mean that his reasoning is fallacious or that his conclusions are wrong. Those disadvantages are largely overcome by the fact that it is usually unnecessary to direct a jury as to the standard of proof of an additional fact.

60. In Edwards v. R. [1993] HCA 63; (1993) 178 C.L.R. 193 Deane, Dawson and Gaudron, JJ. applied the reasoning in Shepherd's Case to lies evincing a consciousness of guilt. Their Honours said at p.210:

"Although guilt must ultimately be proved beyond all reasonable doubt, an alleged admission constituted by the telling of a lie may be considered together with the other evidence and for that purpose does not have to be proved to any particular standard of proof. It may be considered together with the other evidence which as a whole must establish guilt beyond reasonable doubt if the accused is to be convicted. If the lie said to constitute the admission is the only evidence against the accused or is an indispensable link in a chain of evidence necessary to prove guilt, then the lie and its character as an admission against interest must be proved beyond reasonable doubt before the jury may conclude that the accused is guilty. But ordinarily a lie will form part of the body of evidence to be considered by the jury in reaching their conclusion according to the required standard of proof. The jury do not have to conclude that the accused is guilty beyond reasonable doubt in order to accept that a lie told by him exhibits a consciousness of guilt. They may accept that evidence without applying any particular standard of proof and conclude that, when they consider it together with the other evidence, the accused is or is not guilty beyond reasonable doubt." (Footnote omitted.)

(a) there is a good deal of evidence, apart from the lie, implicating the accused, but it is not sufficient on its own to establish his guilt beyond reasonable doubt;

(b) applying the judge's directions about the lie, we think it is more likely than not that the accused did tell it out of a consciousness of guilt of this offence and not for some other reason but, if that were the only issue in the case, we could not be sure; but

(c) taking all the evidence together ("strands in a cable") we are satisfied to the criminal standard.

See, for example, R. v. Zheng (1995) 83 A.Crim.R. 572 at p.574 and R. v. Renzella [1997] 2 V.R. 88 at p.92, but compare R. v. Laz [1998] 1 V.R. 453 at p.468. It has to be remembered that such a lie is simply an implied admission. It can form part of an accumulation of detail like any other admission.

71. Similarly, it is customary to direct a jury, for prudential reasons, that they should not act on a confession unless they are satisfied beyond reasonable doubt that it was made and that it was true, but a magistrate does not have to direct himself or herself to that effect: see Walford v. McKinney [1997] 2 V.R. 353 at p.357. The confession may simply be part of the evidence. It may be the proverbial straw that breaks the camel's back.

74. Mr. Tehan contended for a different interpretation of Shepherd's Case. The Crown might present its case in such a way that an additional fact had to be proved beyond reasonable doubt before the jury could convict the accused, or at all events before they could convict him by a process of reasoning which included that fact, even where the additional fact was not an indispensable link in a chain of sequential reasoning. At the trial the subject of this application one of the points on which the jury had to be satisfied beyond reasonable doubt, counsel contended, was that Exhibit D was the firearm that the robber was shown to be using in the photographs. Mr. Just, who appeared for the respondent, submitted that there was ample other material, in addition to the identity of Exhibit D with the firearm in the photographs, on which the jury could be satisfied that the accused was guilty. Even if a chain of reasoning was involved in the evidence relating to Exhibit D, that chain was itself but part of the Crown case: cf. para.17 above.

77. One disadvantage of the contention advanced on behalf of the applicant is that there is no bright line distinction between additional facts that must be established beyond reasonable doubt and additional facts that need not. The contention postulates that a case may depend upon an accumulation of detail and not upon sequential reasoning but that one or more additional facts may nevertheless be so important that the jury could not convict the accused unless they were satisfied of them beyond reasonable doubt. Another disadvantage is that an indispensable link in a chain of reasoning necessary to prove guilt will, of its very nature, have to be established beyond reasonable doubt. The contention advanced on behalf of the applicant means that there is a further category of additional facts that have to be established to that standard. If it were necessary to direct a jury along those lines, the direction could become impossibly complicated, but it is not necessary. Apart from exceptional cases, a jury should be trusted to apply a general direction about the standard of proof, referring to the elements and any relevant defences. That does not mean that, in an appropriate case, a judge may not point out that the Crown does not have to establish every fact to the criminal standard, but the jury may be left to work out for themselves which additional facts are crucial and which are not.

80. Viewed in that way, the difference between the interpretation of Shepherd's Case in paragraphs 16 and 17 above and the broader view on which this branch of the applicant's case depends is largely theoretical. It is a description of how a jury should reason, not a prescription of what a judge should say. Mr. Tehan did submit that the judge should have told the jury that they had to be satisfied beyond reasonable doubt concerning one or more of the facts relating to Exhibit D, but that need not be decided. (For the reasons given above I think it is unlikely to be correct.) It is enough if counsel can demonstrate that his Honour did give a direction as to the standard of proof applicable to such a fact and that that direction was erroneous.

83. In Penney v. R. [1998] HCA 51; (1998) 72 A.L.J.R. 1316 the High Court accepted that, if motive is to be used as a factual basis for an inference of guilt, it must be established beyond reasonable doubt. That implies a view of Shepherd's Case at least broadly consistent with Mr. Tehan's contention, for motive is rarely an indispensable link in a chain of sequential reasoning of the kind described in para. 16 above. (There may be half a dozen facts pointing to the guilt of the accused, of which motive is only one and by no means the most significant. A motive may be strong or weak and it may be an issue in cases other than homicide, for example a motive to steal; but let me give an example where motive in a homicide case might be thought to be no more than a strand in a cable. A jury might reason: she was in the vicinity at the time of the crime; she purchased the murder weapon the previous day; she fled the jurisdiction to avoid apprehension; and she had a motive to kill the victim. We are satisfied of none of those things individually, and certainly not the last, beyond reasonable doubt but, taken together, they prove that she is guilty.) It is unnecessary to decide whether motive must always be proved beyond reasonable doubt. It is difficult to believe that that could be so. All that need be decided is whether there is a class of additional facts which are not links in a chain of sequential reasoning but do have to be proved to that standard and, if so, whether that class includes one or more of the facts relating to Exhibit D.

86. The leading judgment was delivered by Callinan, J., with whom McHugh, Gummow, Kirby and Hayne, JJ. concurred. The ground of appeal is referred to at para.13 and the argument put by counsel for the appellant about motive is recorded at para. 25. His Honour explained at para. 26 that, taken in isolation, the passage on which counsel relied could have a tendency to confuse motive with intention. He continued:

"The appellant in this connection relied upon a passage from the unanimous judgment of a New South Wales Court of Appeal of five judges (Street CJ, Hope, Glass, Samuels and Priestley JJA) in R v Murphy in which that Court accurately summarised the relevant principle stated in Chamberlain v The Queen [No 2], which applies if motive is to be used as a factual basis for an inference of guilt:

'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 makes clear, before a jury can infer guilt from motive they must be satisfied that the motive asserted has been proved beyond reasonable doubt.'

The difficulty for the appellant in this submission is that the passage in the trial judge's summing up, taken in context, shows that his Honour was not in fact dealing with intention or motive as such but was pointing to evidence with respect to the relationship between the appellant and his wife upon which they could rely for an ultimate conclusion of guilt beyond reasonable doubt." (Emphasis added but footnotes omitted.)

92. In the light of that clear endorsement, R. v. Murphy (1985) 4 N.S.W.L.R. 42 cannot be explained on the basis that it was decided shortly after Chamberlain v. R. [No. 2] [1984] HCA 7; (1984) 153 C.L.R. 521 and before Shepherd's Case, nor would it be appropriate for an intermediate appellate court to distinguish a recent, unanimous statement by the High Court on the basis either that it was unnecessary to the decision or that it should, anomalously, be confined to motive. The adjective "indispensable" and the metaphor "link in the chain" were both used in R. v. Murphy at p.59A-C in a sense that was plainly not limited to sequential reasoning but extended to at least some other additional facts: see and compare the cases mentioned on that page, especially Plomp v. R. on which their Honours particularly relied. We must also pay heed to observations concerning the standard of proof that are to be found in Gipp v. R. (1998) 72 A.L.J.R. 1012: see paras. 21 per Gaudron, J., 70, 76 (especially the last sentence), 79 and 80 per McHugh and Hayne, JJ. and 139 and 142 per Kirby, J. They cannot be confined to propensity, for there can no more be a special rule about the standard of proof applicable to propensity than to motive. Moreover propensity of its very nature is unlikely to be a link in a chain of sequential reasoning, even where it is an essential component of the Crown case, as in R. v. Ball [1911] A.C. 47: cf. Pfennig v. R. [1995] HCA 7; (1995) 182 C.L.R. 461 at p.530.

95. Accordingly we must direct ourselves, but judges should not direct juries unless it is necessary to do so in the particular circumstances of a case, that there is a wider class of additional facts which are not links in a chain of sequential reasoning but do have to be established beyond reasonable doubt. For a recent example, see R. v. Best (unreported, Court of Appeal, 23rd July 1998) in my judgment at pp.23-24.

98. With that in mind I turn to the impugned portion of the charge. After directing the jury as to the burden and standard of proof, the judge explained that the critical issue was not whether the robbery took place, for it was common ground that it had, but whether the applicant was the robber. He explained that the Crown sought to prove that that was so by circumstantial evidence, inviting the jury to draw inferences from facts and circumstances of which they were satisfied. Immediately before the luncheon adjournment his Honour said:

"You have got to be satisfied that he was the robber in the bank: that is all you have got to be satisfied of beyond reasonable doubt. You do not need to be satisfied beyond reasonable doubt of all the facts and circumstances that have been put forward by the Crown as relevant facts and circumstances from which you ought to draw that inference, but you must be satisfied that those matters have been proved clearly before you.

When you come to the matter of drawing inferences, you do not take one fact or circumstance and say, 'That does not prove that he was the robber so we throw that out', then take another one and say, 'That does not satisfy me that he was the robber' so you throw that out and go on through all the facts and circumstances that are alleged. You take all the facts and circumstances which have been clearly proved before you and which you treat as established here and then say to yourselves, 'Having regard to all those facts and circumstances, the only reasonable conclusion we can come to is that he must have been the person we see robbing the bank in the bank photographs.'"

When the court resumed, the judge repeated that, when the jury were deciding what facts and circumstances they were going to act on, they had to be satisfied that those facts and circumstances had been proved to their satisfaction but they did not have to be satisfied of all those matters beyond reasonable doubt. It was, his Honour said, only the elements of the offence of which the jury had to be satisfied to that standard. Compare Gipp v. R. at para. 79.

104. At the conclusion of the section of the charge dealing with the nature of circumstantial evidence, the judge summarized the Crown case. He referred to the circumstances of the robbery at the Bank of Melbourne on 29th July 1995 and the applicant's arrest three months later. His Honour mentioned that the applicant was arrested when police stopped a car driven by Hasiotis in which he was a passenger. (That information, which was not in evidence, is the subject of the first ground of appeal.) He said that earlier that day the applicant, Hasiotis and Pavlou had travelled in Pavlou's car to the applicant's grandmother's house. The judge continued:

"The accused got out, and according to Harry Hasiotis, the accused had the sports bag and two plastic bags. He went to grandma's house and returned to the Mitsubishi Magna empty-handed. It was on that occasion that he was photographed by Borger at 11.19 a.m. and he saw only the Myer bag. The three then went back to Harry Hasiotis, Theo left, and later the accused and Harry Hasiotis left in the Celica and were arrested. The policeman Curnow recovered from the white HiLux a bag, a black and purple Adidas bag and the Myer bag from the yellow Holden. Now the sports bag that held the balaclava and the Myer bag which contained the firearm - the Crown says that whatever else can be said, it is clear, if you accept the evidence of Borger and the other witness that the accused man took the Myer bag which contained the gun, and put it in his vehicle, therefore he had possession of it at that stage, the gun Exhibit D. Now the gun, so the Crown says, is identified as definitely a 77 semi-automatic Winchester rifle, and the gun in the bank photo is identified as a 77 semi-automatic Winchester rifle. The gun which is Exhibit D here in court, had been shortened at both ends. The gun in the bank photographs had been shortened at both ends. Pilkington compared the Exhibit D and the bank photos, in particular the bank photos showing the gun, and could discern no dissimilarity between them. Exhibit D, you will see if you look at it, and the evidence is, has been cut down, and at the butt end has been cut at an angle, and Pringle said that he could see an angle cut in the photos, but he could not establish the angle of the cut. Now Exhibit D has its serial number still on it, and that had been registered in South Australia by the owner. It was in his Pajero when it was stolen and it was not recovered, that is the gun was not recovered, and the Crown says that the evidence is that the accused told Tanarsha Wolters that he had stolen the Pajero and sold the camping gear. Now if you accept that, then you will be satisfied that the very gun in question was in the possession of the accused when he got the Pajero, if you accept that. On the other hand it is said you should not accept that because Tanarsha Wolters said she hated the accused, she did at the time she spoke to the police and she still does, and if that is the case you should not believe what she says; but she says that that is what happened, and you ponder how she could imagine all that, or make it up, if it were not said. It is all a matter for you. So the Crown says that really you know for certain if you accept the experts' evidence, that this was a 77 semi-automatic Winchester, this one in court, the same as the one in the bank, that is to start, and then this gun was cut down and the other gun was cut down, and the gun had earlier, if you accept the evidence, been in the accused's possession and was later in the accused's possession when he put it in his vehicle that morning, the morning of the 23rd. So it is said that you should not have much trouble in concluding either that that is the gun, this gun in court is the gun shown in the pictures, or that it is highly probable that it was, and you should be satisfied; if not satisfied beyond reasonable doubt, satisfied that it was highly probably the gun in question." (Emphasis added.)

Thus his Honour expressly said that it would be sufficient if the jury were satisfied that it was highly probable that Exhibit D was the firearm shown in the photographs even if they were not satisfied of that fact beyond reasonable doubt. Linked as it was to the directions about inferences and the nature of a circumstantial case, the italicized passage goes beyond mere repetition of an argument advanced by the Crown. It explains or endorses that argument.

109. In the same passage Exhibit D was linked to the applicant in two ways. One was that the applicant took the Myer bag that was later found to contain Exhibit D and put the bag in his vehicle. That showed possession of the firearm three months after the robbery. The other was that Exhibit D was in the Pajero that had been stolen in 1992 and Tanarsha Wolters said that the applicant had admitted to her that he was the thief. That established possession prior to July 1995. If Exhibit D was not the firearm shown in the photographs, the evidence about the Myer bag and the Pajero carried no weight at all. His Honour's direct reference to high probability applied only to the question whether Exhibit D was the firearm shown in the photographs, but the context in which it was made may have conveyed to the jury that a standard of high probability was sufficient in relation to the composite question whether Exhibit D was in the applicant's possession and was the firearm shown in the photographs.

112. An adverse conclusion on either the simple or the composite question might have been thought to be no more than a strand, albeit a thick strand, in the cable of proof; but each question was at least as important as the motive in R. v. Murphy and the evidence considered in Gipp v. R. and the metaphors in Shepherd's Case must now be understood in the light of the passage from Penney v. R. set out earlier in this judgment and the references to the standard of proof in Gipp v. R. It follows that the impugned direction invited the jury to reason in an impermissible fashion notwithstanding the other evidence on which the Crown relied. It was to that extent analogous with the misdirection in Gipp v. R. as explained by Gaudron, J. at para. 21 and Kirby, J. at para. 142.

115. The Crown had a strong case and the applicant, as he was entitled to do, stood mute and no exception was taken to the impugned passage; but the error, once it is perceived, is more serious than the omission identified in BRS v. R. [1997] HCA 47; (1997) 191 C.L.R. 275. Mr. Just expressly disavowed any reliance, in the circumstances of this case, on the proviso to s.568(1) of the Crimes Act 1958 if there was a misdirection as to the standard of proof.

118. Accordingly there must be a new trial. If the judge at that trial is asked to give a Faure direction, the applicable principles are to be found in the decisions of this Court in R. v. Latina (unreported, Court of Appeal, 2nd April 1996) and R. v. Holt and Merriman (1996) 87 A.Crim.R. 82. In view of the importance of expert evidence in this case, it would be desirable for the jury to be directed in conventional terms that expert opinion is no better than the facts on which it is based, that it is for the jury to be satisfied of the facts in issue at the trial and that ultimately it is their opinion that counts. Without such a warning expert evidence may have an even more seductive effect than evidence of visual or aural identification of persons or objects. Compare Domican v. R. [1992] HCA 13; (1992) 173 C.L.R. 555 especially at p.561 and see R. v. Marijancevic (1993) 70 A.Crim.R. 272 and R. v. Crupi (1995) 86 A.Crim.R. 229. Identification evidence is not to be confused with evidence of handwriting, fingerprints, the model of a rifle and the like.

121. There remains for consideration the application for leave to appeal against the sentences imposed on the second presentment. Before turning to those sentences I shall say something of the circumstances of the offences to which the applicant pleaded guilty.

124. Counts 1 and 2 on the second presentment related to an attempted armed robbery and an armed robbery that took place on 19th October 1995. At about 11 a.m. on that day the applicant appeared on the third floor of the premises of Camberwell Honda in East Hawthorn. He was wearing a dark balaclava and armed with a sawn-off automatic rifle. He confronted one Wendy Thompson demanding money and asking where the payroll was. (Armaguard, who had called ten minutes earlier to deliver a payroll of $15,000, had, unbeknown to the applicant, declined to do so, because one of the required signatories was not present.) Ms Thompson pointed to a filing cabinet which the applicant searched in vain. He consoled himself by stealing her purse, which contained her wallet and keys. There was about $30 in the wallet. In the course of making his escape in a stolen car the applicant threatened two other employees and a bystander with the rifle.

127. Counts 3 and 4 each charged theft of a motor vehicle and count 5 another armed robbery. Those events took place on 23rd October 1995. The applicant stole two cars and placed them in position for use as getaway vehicles. He then held up the Pinewood branch of the ANZ Bank in Mt Waverley. He was armed with a .22 automatic rifle which, the Crown contends, is the same rifle as was used in the Bank of Melbourne robbery. The sum of $7,136.69 was stolen. None of it has been recovered. After the robbery the applicant and Hasiotis travelled to Dandenong, where the applicant arranged a rendezvous with a drug dealer to pay money that he owed him and to obtain a further supply of heroin. He was arrested later that day in company with Hasiotis and, in a taped record of interview, admitted the robbery at the ANZ Bank.

130. The learned judge sentenced the applicant to four years' imprisonment on each of counts 1 and 2, one year's imprisonment on each of counts 3 and 4 and five years' imprisonment on count 5. Any licence or permit held by the applicant under the Road Safety Act 1986 was cancelled and he was disqualified from obtaining any such licence or permit for 12 months. A compensation order was also made in favour of the ANZ Bank. The directions for cumulation took into account the sentence imposed on the first presentment. The applicant was required to serve cumulatively two years of the concurrent sentences imposed on counts 1 and 2 and three years of the concurrent sentences imposed on counts 3, 4 and 5.

133. There are five grounds of appeal against sentence, four in the application for leave to appeal and one added by leave of the Registrar on 31st July 1998. They are that the sentences imposed were manifestly excessive, that the judge failed to take parity into account in relation to the co-accused Hasiotis, that his Honour gave undue weight to the applicant's prior convictions, that the sentence was crushing in the light of his Honour's findings concerning rehabilitation and that there was an insufficient gap between the head sentence and the non-parole period. Those grounds need not be considered, except as points to be borne in mind in resentencing. The discretion is re-opened because the sentences on the second presentment were imposed on the footing that the applicant was also guilty of the Bank of Melbourne armed robbery. He was not punished twice for that offence but it was part of the picture of the man to be sentenced. It had a bearing, for example, on specific deterrence.

136. Nevertheless, in my opinion, no different head sentences should be passed on any of the five counts. They were appropriate having regard to the seriousness of the offences and the circumstances of the offender as outlined on the plea. The applicant admitted 29 previous convictions from 10 court appearances in Victoria between July 1986 and May 1991, including two convictions for armed robbery, for which he was sentenced to three years' imprisonment in 1987, and numerous other offences of violence or dishonesty. Hasiotis was a relatively minor player in the events of 23rd October 1995 with different antecedents. He pleaded guilty to two counts of theft and one count of robbery, not armed robbery. The wholly suspended sentence of 12 months' imprisonment (including three months' imprisonment for another offence) that was imposed on him does not make the sentences imposed on the applicant disparate. I do not overlook the applicant's prospects of rehabilitation, including Mr. Joblin's reports, the evidence of Mr. Lamberti and the support given him by his de facto partner.

139. In 1989 the applicant obtained employment and training as a nursing attendant at a hospital. During that time he established a relationship with a nurse and applied for a permanent position. There is reason to believe that he was making a genuine effort to put his previous convictions and custodial sentences behind him and turn his life around. If so, it was not to be. A domestic argument involving a third party led to the involvement of the police. The applicant was charged and released on bail, but bail was subsequently revoked and he spent 12 months on remand, at the end of which he was not committed for trial. Shortly before the committal proceedings, the applicant's friend moved to Adelaide to begin her post-graduate year. When the applicant was released he joined her. He found employment and they moved into a unit, becoming engaged to be married about seven months later. A month or two after the engagement, the applicant was directly presented on the charges on which he had been discharged. He lost his job and the engagement was over. He was arraigned in the County Court in Melbourne but permitted to return to Adelaide. Then in May 1993 he was arrested in Adelaide and refused bail, partly because of the offences charged in Victoria. After nearly two years on remand in South Australia he was acquitted. It was during that period that he began using heroin. The applicant returned to Melbourne to await his trial here. He was again on bail. The trial ended in a directed acquittal before the jury were empanelled. The police responsible for the charges have since been admonished.

142. There can be no question of a person on remand who is subsequently acquitted acquiring a kind of bank balance on which to draw in relation to subsequent offences unconnected with the reason for custody: see R. v. Arts and Briggs [1998] 2 V.R. 261 at p.264; but sentencing involves a very wide discretion and the matters to which I have just referred are important parts of the applicant's background. We are entitled to take them into account and to temper the sense of injustice that he entertains. Exceptionally, I would therefore allow the five sentences to be served concurrently, making a total effective sentence of five years' imprisonment. The orders made under s.89(4) of the Sentencing Act 1991 and the compensation order made under s.86 of that Act should not, of course, be disturbed.

145. The principles applicable to the fixing of a non-parole period were recently considered by the Court as presently constituted in R. v. VZ [1998] VSCA 32. I do not repeat them. The applicant is in good health and is no longer addicted to drugs. He has a number of skills that can usefully be employed and a good intellect. The non-parole period in a case like this must not, however, be so short as to undermine the objective of general deterrence. I bear in mind also the degree of leniency already involved in total concurrency. In all the circumstances, of which the foregoing are the most important, I would fix a non-parole period of three years and nine months.

149. Since writing this judgment I have had the advantage of studying the reasons for judgment prepared by Batt, J.A. The principal obstacles to my concurrence are that there is more than one view as to the meaning of the metaphors used in Shepherd's Case and that recent statements by the High Court are irreconcilable with the strict, logical interpretation to which I have hitherto adhered.

152. Thus in R. v. Murphy at p. 59 Street, C.J., Hope, Glass, Samuels and Priestley, JJ.A. said:

"Certainly, motive was not an essential element of the crimes charged in the present case but only in the sense that it was not itself an ingredient of these offences and that its proof was not essential to conviction. In some cases proof of motive is indispensable as in R v Clewes [1830] EngR 478; (1830) 4 C & P 221; 172 ER 678. In Plomp v The Queen [1963] HCA 44; (1963) 110 CLR 234, had there been no evidence of the accused's liaison with another woman, the case for the Crown would not have sufficed to warrant his conviction for murdering his wife: see (at 241) per Dixon CJ and (at 251) per Menzies J, in whose judgment Dixon CJ and Windeyer J, and probably Kitto J and Taylor J, agreed.

Evidence is always relevant which tends to show that an accused had a motive for doing the act alleged or for doing it with the intention asserted by the Crown. When such proof is given it constitutes 'a link in the chain of evidence' led to establish the matter in contention (per Lush J in R v Heeson (1878) 14 Cox CC 40 at 44)." (Emphasis added.)

The criterion for a link, or an indispensable link, in those passages is not whether it is an essential step in a chain of sequential reasoning but whether, in a practical sense, it constitutes an essential component of the Crown case.

158. Similarly, in Gipp v. R., albeit in a dissenting judgment, McHugh and Hayne, JJ. said:

"[76] If the evidence of sexual history had been directed to specific incidents, although not the subject of charges, the learned judge would have been entitled to direct the jury that if they found one or more of those incidents proved, they could use such a finding or findings as proof of a 'guilty passion' in support of the charges in the indictment. In that event, it would have been necessary to direct the jury that these incidents as well as the charges had to be proved beyond reasonable doubt.

[80] The evidence concerning the relationship of the parties in this case was not, as Mr Whitford's submission recognised, an indispensable link in a chain of reasoning leading to an inference of guilt. It was not, for example, evidence of the kind with which the House of Lords had to deal with in R. v. Ball where the charge of incest between the dates alleged must have failed without proof that there had been a previous sexual relationship between the brother and sister." (Footnotes omitted but emphasis added.)

There, too, we see a view of Shepherd's Case, to which reference was made in Gipp v. R., that is inconsistent with the strict, logical interpretation of the metaphors. The previous sexual relationship between Ball and his sister was not a step in a chain of sequential reasoning, but the prosecution would have failed had it not been proved. I shall not set out the passages from the judgments of Gaudron and Kirby, JJ. to which I have already referred, but they too caused me to doubt the understanding of Shepherd's Case that I had previously held. The fifth member of the Court was Callinan, J., who wrote the leading judgment in Penney v. R.

166. Batt, J.A. has, however, persuaded me that we should continue to apply the strict, logical interpretation in paragraphs 16 and 17 above. It is superior both in principle and as a matter of practice to requiring proof beyond reasonable doubt of an indeterminate class of additional facts. The jury must, of course, be instructed that the guilt of the accused has to be established to that standard and in most circumstantial cases they should be given a strong direction to that effect. For the human mind is apt to jump to conclusions, attaching too much weight to a fact that is really only a strand in a cable or being too quickly convinced by an accumulation of detail that is in truth explicable as coincidence or in some other way consistent with innocence. That has long been known to the law and is now being confirmed by studies in cognitive psychology.

169. Like his Honour, I would uphold Mr. Tehan's submission that a combination or aggregation of defects in the charge caused the trial to miscarry, even if that could not be said of any one of them.

174. I have had the considerable benefit of reading in draft the reasons for judgment of Callaway, J.A. Whilst I shall have to refer to further facts, I gratefully adopt his Honour's summary of the facts and the proceeding.

178. It is convenient to commence with the ground on which his Honour's decision as to conviction turns, ground 6. This ground, although expressed in terms of non-direction ("erred in failing to give proper directions ... on inferences"), was treated in argument as comprehending misdirection. Before I became aware of the decision of the New South Wales Court of Criminal Appeal in R. v. Pantoja (unreported, 5 November 1998) I had after anxious consideration prepared a judgment agreeing in his Honour's conclusions and reasons as to conviction. Having now given the matter further and no less anxious consideration in the light of the approach taken in Pantoja I have come to the conclusion that this Court should not take the law relating to the standard of proof of what Callaway, J.A. calls "additional facts" as it was understood after Shepherd v. R. [1990] HCA 56; (1990) 170 C.L.R. 573 to have been altered by the recent High Court decisions in Gipp v. R. (1998) 72 A.L.J.R. 1012 and, particularly, Penney v. R. [1998] HCA 51; (1998) 72 A.L.J.R. 1316.

181. I cannot, with respect, agree with Adams, J. in Pantoja at p.4 of his judgment in not reading the judgment of Callinan, J. in Penney as endorsing R. v. Murphy (1985) 4 N.S.W.L.R. 42, for, in describing the principle summarised in Murphy as that "which applies if motive is to be used as a factual basis for an inference of guilt", Callinan, J. used the present tense. Nor are the words which I have just quoted referred to by James, J. at p.46 of his judgment. Nevertheless, the view at which I have finally arrived is that for the reasons I give a little later the essential reasoning of James, J. is correct. (Wood, C.J. at C.L. agreed with James, J. and Adams, J. stated that he agreed with James, J.'s reasons on the argument based on Murphy.) In addition, whilst we are not concerned with national or uniform legislation, the decision of the New South Wales intermediate appellate court is of persuasive weight. Finally, considerations of convenience and the administration of justice favour the adoption of James, J.'s conclusion. On the view of the effect of the two recent High Court cases to which I originally felt impelled to come it is, with the greatest of respect, not possible to give guidance to trial judges as to the standard of proof of "additional facts" which they should direct a jury to apply in the event that they considered it necessary in the particular circumstances to give a direction: there is no criterion discernible as to the circumstances in which the standard is beyond reasonable doubt and those in which it is the balance of probabilities.

184. The essential reasoning to which I referred earlier is two-fold. First, the passage in question in the judgment of Callinan, J. is undoubtedly obiter. Secondly, his Honour and the other members of the High Court cannot have intended, without even mentioning Shepherd [1990] HCA 56; (1990) 170 C.L.R. 573, especially at 579, to disavow the distinction in nature and consequences between the two kinds of reasoning described by use of the metaphors of links in a chain and strands in a cable which Dawson, J., with the concurrence of most of the other justices, was at pains to draw in that important decision. As was recognised in the applicant's further written submissions in relation to Pantoja filed in response to the Court's invitation, James and Adams, JJ. respectively used the expressions "an indispensable intermediate step ... towards an inference of guilt" and "an indispensable link in the chain of proof of the guilt" in the sense in which Dawson, J. used the former in Shepherd and in which Callaway, J.A. in paras.16 to 21 of his reasons uses "indispensable link in a chain" in his cogent elaboration of the two kinds of reasoning in the light of Shepherd and Edwards v. R. [1993] HCA 63; (1993) 178 C.L.R. 193 at 210. This is, of course, not the way in which the expressions "indispensable" and "a link in the chain of evidence" were used in Murphy at 59 and certain cases there mentioned. There those expressions seem to be used, not in the logical sense, but as meaning nothing more than an essential part of the Crown case or a crucial piece of evidence. In short, I consider that the metaphor of "a link in a chain" is still, after Penney, to be understood as connoting indispensable links in a chain of sequential reasoning.

187. It is true that there are passages in the judgment of McHugh and Hayne, JJ. in the slightly earlier decision of Gipp v. R., particularly paras.76, 79 and 80, in which the concept of indispensability and the expression "an indispensable link in a chain of reasoning" etc. appear to be used in the wider sense exemplified by Murphy at 59 rather than in the logical sense in which, as I understand it, they were used in Shepherd. That, however, was a dissenting judgment. The passages in the majority judgments in Gipp to which Callaway, J.A. refers are less specific and are, I think, concerned with sequential reasoning, albeit that the process of reasoning there hypothesised may be open to criticism.

190. For the foregoing reasons, I am unable to agree that it follows from Gipp and Penney that there are some additional facts, whatever they may be, that have to be proved beyond reasonable doubt even though they are not, in the strictly logical sense, indispensable links in a chain of sequential reasoning. Accordingly, I am also unable to agree that the passages in the charge which are set out or summarised in paras.29 and 30 of the judgment of Callaway, J.A. contained any misdirection as to the standard of proof either generally or, more particularly, in relation to Exhibit D: for no process of sequential reasoning was involved; rather, adverse conclusions as to Exhibit D's identity with the gun depicted as being used in the bank and as to the possession of it by the applicant, no less than about the applicant's lie as to his intended use of the property at Arnold West, mentioned below, would have been no more than strands in the cable of proof of guilt. Exhibit D was admittedly a very important piece of evidence, but I consider that it was, at most, essential or crucial only in the loose (and insufficient) sense in which I have used those words in paragraph 52 above.

193. It follows that I must consider other arguments and grounds put forward on behalf of the applicant. Another argument was adduced for him under ground 6, namely, that his Honour at several points in his charge reversed the onus of proof in relation to hypotheses consistent with innocence. It is, I think, true that his Honour did this at three points in his charge. Thus, a little more than halfway through the after-lunch portion of the charge his Honour told the jury to look at the whole of the circumstances of which they were satisfied and to ask themselves the question, "'Is there any reasonable explanation which would explain all of those facts and circumstances, other than he must have been the man in the bank?'" His Honour had earlier, not very long after the luncheon adjournment, made almost the same statement to the jury; and towards the end of his charge he repeated, a little more briefly, what he called "the crucial question". But those directions are to be read in the light of the fact that the applicant had not given evidence which might have been set against the circumstances otherwise proved to the satisfaction of the jury and in the light of the fact that immediately before the luncheon adjournment and immediately after it his Honour had formulated the question for the jury in terms not unfavourable to the applicant. (Mr. Tehan Q.C., senior counsel for the applicant**,** did criticise the use of the word "all" in his Honour's references to "a reasonable explanation for all the facts and circumstances as you find them to be", but I do not think that there is anything in the criticism: his Honour was simply saying that the existence of a reasonable explanation had to be determined in the light of all the facts proved to the satisfaction of the jury.) More importantly, having made it clear more than once that the Crown had to prove each of the elements of the crime, and in particular that the applicant was the robber, his Honour at the very end of his charge, immediately before inviting the jury to retire to consider their verdict, gave the jury directions which made it clear that the onus of excluding all reasonable hypotheses consistent with innocence lay upon the Crown. He told the jury that if, having decided what had been proved to their satisfaction, they concluded that, on what they were satisfied of, it was reasonably open that the applicant was not the robber in the bank, then they were to return a verdict of not guilty. On the other hand, if they were satisfied that there was no other reasonable explanation than that the applicant must have been the robber shown in the photograph, then they could conclude that he was; and if they were satisfied of that beyond reasonable doubt then their verdict would be guilty. It seems to me that the concluding directions, at least, were sufficient to dispel any erroneous impression concerning the incidence of the onus of proof as to innocent hypotheses which the three earlier passages might have created. It is significant that no exception to the charge was taken on this point. Amongst other things, that fact tends to show that the overall effect of the charge upon those hearing it was that the onus lay on the Crown to exclude all reasonable hypotheses consistent with innocence.

196. During the course of argument Mr. Tehan twice observed, almost by way of aside, that the standard of proof to a high degree of probability was a standard unknown to the common law (though it is found in s.18B(1) of the Sentencing Act 1991, referred to in R. v. Moffatt [1998] 2 V.R. 229 at 247). That is correct, but I do not consider that it leads anywhere for the applicant. His Honour, in repeating the submission of the Crown prosecutor, no doubt gave countenance to it, but the burden of the remarks was that satisfaction as to the identity of Exhibit D with the gun depicted was not required beyond reasonable doubt. His Honour had earlier directed the jury that facts and circumstances from which an inference was drawn had to be clearly proved before them. In repeating the prosecutor's reference to high probability his Honour was in substance, as it seems to me, applying to a part of a criminal trial which did not require proof beyond reasonable doubt the substance of the well known observations concerning "reasonable satisfaction" in the light of the nature and consequences of the fact to be proved made by Dixon, J. in Briginshaw v. Briginshaw [1938] HCA 34; (1938) 60 C.L.R. 336 at 362-363, as seemingly modified in Neat Holdings Pty. Ltd. v. Karajan Holdings Pty. Ltd. [1992] HCA 66; (1992) 67 A.L.J.R. 170.

199. In my view, ground 6 in each of its branches fails.

"1. That the Trial Judge misdirected the jury as to a matter of evidence not before the jury, namely that the accused was arrested in the company of a Crown witness, H. Hasiotis, in a motor vehicle on the 23rd October, 1995, where the only evidence before the court was that they had both been arrested on the same date."

207. As was accepted by Mr. Just for the respondent and by his Honour in his report to this Court, the facts asserted in this ground are correct. His Honour indeed made the statement twice. The evidence as to the arrest of Hasiotis on 23 October 1995, however, was simply that he was arrested by police that day after his car was stopped, although it was the fact that the applicant and Hasiotis had been arrested on 23 October 1995 when police stopped the Celica car driven by Hasiotis in which the applicant was a passenger. (It will be recalled from Callaway, J.A.'s judgment that earlier on 23 October 1995 the applicant had travelled with Theo Pavlou and Hasiotis in a Mitsubishi Magna sedan to and from the applicant's grandmother's house. The Magna belonged to Pavlou.) Hasiotis had admitted in cross-examination that he had been convicted in the County Court at Melbourne on 30 August 1996 on one count of armed robbery. That was the armed robbery the subject of count 5 of what Callaway, J.A. has called the second presentment, to which the applicant himself pleaded guilty. The facts of the offence are stated in paragraph 37 of his Honour's judgment. After Hasiotis had admitted his conviction there was argument before the trial judge as to questions which it was open to defence counsel and the prosecutor to ask him in further cross-examination and re-examination respectively. His Honour ruled that the question already asked was permissible and that defence counsel could also elicit that the robbery was committed upon a bank. He further ruled, however, that it was not permissible for the prosecutor to re-examine Hasiotis to elicit that the applicant had also taken part in that robbery or to elicit the precise date on which the robbery took place. His Honour did rule that it was permissible for the prosecutor to elicit from Hasiotis that the robbery had been committed in the month of October 1995 and, in an endeavour to re-establish his credit, that he did not enter the bank and was connected with the robbery simply because he drove the car. In the course of his ruling his Honour said that he would rule out anything which made it possible for the jury to conclude that the applicant was involved with Hasiotis in the robbery of which the latter was convicted on 30 August 1996. Questions were then asked in accordance with the ruling and they received affirmative answers.

210. Mr. Tehan's complaint was that the misdirection subverted the ruling and caused obvious prejudice to the applicant in associating him with Hasiotis.

213. The difficulty for the applicant is that the mis-statement of the evidence, if drawn to the trial judge's attention, was readily capable of correction and complete neutralisation, but no exception referable to this ground was taken at trial: R. v. Clarke and Johnstone [1986] VicRp 64; [1986] V.R. 643 at 661-662. Further, on a consideration of all the relevant evidence I think that Mr. Just was correct in his submission that there was no risk that by the mis-statement the jury would learn or suspect that the applicant had with Hasiotis committed a robbery shortly prior to their arrest. Accordingly, I am of the view that this ground must fail, whether because there was, in the circumstances mentioned in this paragraph, no miscarriage of justice or because, if there was, the proviso to s.568(1) of the Crimes Act 1958 is applicable in that the applicant did not thereby lose a chance of acquittal which was fairly open to him: cf. R. v. Gallagher [1998] 2 V.R. 671.

220. In this ground it is alleged that the judge erred in failing to give any warning to the jury as to the identification of objects by witnesses. The Court was taken in very great detail by counsel for both parties to the evidence concerning almost all, if not all, of the objects material to the commission of the alleged offence. I do not think it is necessary to descend into that detail for the purposes of deciding upon this ground.

223. On behalf of the applicant the court's attention was drawn to the fact that the evidence on trial established the following matters:

(i) no witness from the bank was shown any particular object by police and asked to "make an identification". However, witnesses did give evidence of the clothing that the robber was wearing and of his possession of a gun;

(ii) the witness Tanarsha Wolters was shown a Balance windcheater and said it belonged to the applicant. Her mother gave similar evidence;

(iii) the witness Rita Hasiotis, the mother of Harry Hasiotis, had picked up that windcheater from her son's bedroom floor, washed it and given it to police;

(iv) the witness Pilkington said that the gun shown in the bank photographs was very similar to the one proved to have been in the Pajero when it was stolen in 1992 and found in the applicant's possession on 23 October 1995.

230. It was put for the applicant that the identification of objects by witnesses did represent a significant part of the proof of guilt of the applicant. In support reference was made to evidence of the following persons in relation to the following objects:

* footwear (said probably to be Asics Gel V2 cross trainers): Dines and Evans

* the windcheater: Zanetti, Del Conte, Chisholm, Tanarsha Wolters and Mrs. Wolters (Jamieson might have been added)

* tracksuit pants (said to be Adidas Equipment 2 pants): Callaghan and McKenzie

* the Skorpian (or Scorpion in some places in the transcript) dye device: Ross and Hall,

and reference was made also to the balaclava found in a white HiLux utility at the applicant's grandmother's home on 23 October 1995. It is unnecessary here to summarise the evidence of the witnesses listed. (That of some of them is summarised under ground 7.) It was said that at times the evidence suffered from the deficiencies inherent in "other types of identification", for example, being shown a single item (as in the case of the windcheater, a point which had been made in a preliminary objection to Tanarsha Wolters' evidence) and saying a particular item (as in the case of the gun) "looks like" one shown in a photograph. (Evidence of similarity is discussed in R. v. Clune (No.2) [1996] VicRp 1; [1996] 1 V.R. 1 at 4-5.) On the "important issue of identification" the judge had merely summarised the arguments of counsel. As was common ground, he had given the jury no directions as to how they were to assess evidence of identification. For the applicant it was contended that he should have done so, reliance being placed on Domican v. R. [1992] HCA 13; (1992) 173 C.L.R. 555 at 561-562; and it was said that it was not sufficient to leave the whole question of identification to the jury with no guidance, reference being made to R. v. Preston [1961] VicRp 115; [1961] V.R. 761.

239. Counsel for the applicant contended that the warnings that are given in relation to identification of persons applied with equal force to the case of identification of objects: R. v. Marijancevic (1993) 70 A.Crim.R. 272 at 275-279; R. v. Crupi (1995) 86 A.Crim.R. 229 at 240-241. In reply to a submission for the respondent to which I shall refer later counsel for the applicant submitted that the need for warnings as to identification extended beyond cases of recollected images, citing R. v. Theos (1996) 89 A.Crim.R. 486 at 495 per Tadgell, J.A. Reference was also made to the judgment of Kirby, A-CJ. (as he then was) in R. v. Clout (1995) 41 N.S.W.L.R. 312 at 320-322. Particular reliance was placed, in relation to the gun, upon the Acting-Chief Justice's statement at 321, "The fact that the identifying link between the accused and the crime is not an aspect of human physiognomy can scarcely be determinative." It was said that familiarity with an object such as clothing is no different from familiarity with a face.

242. In reply to another submission for the respondent which I shall mention below counsel for the applicant submitted that the judge's direction on the windcheater did not absolve him from delivering a warning in accordance with Domican, for otherwise, it was said, every identification case would fail on appeal on the basis of favourable judicial comment below. The trial judge's direction on the windcheater had, it was submitted, the effect of distinguishing it from other objects. Finally, it was submitted that there had been a challenge to expert witnesses.

245. The respondent accepted that "there could well be circumstances in which the identification of an object could be a significant part of the Crown case such that a warning based on Domican considerations would be appropriate" (Crupi at 241; cf. Kirby, A-C J in Clout), but submitted that this was not such a case. It was accepted that, but for the judge's comments, a Domican warning would have been required in relation to the windcheater, but it was submitted that his Honour's two sets of strong comments to the effect that it would be very unsafe to make any findings against the applicant on the basis of the windcheater were much more forceful than a Domican direction would have been and rendered the latter unnecessary. It was submitted that in the case of objects identification evidence is evidence that a recollected image is identical, or similar, to a physically present object or, perhaps, an image of an object_._ (As to similarity, cf. Theos at 495.) It was said that the identification of the shoes in the bank security photographs and the charred remains of a shoe was merely as to type (and, by implication, accordingly not true identification evidence) and that the same was the case with the tracksuit. The procurement by the applicant of the firearm later recovered by police was, it was submitted, shown not by visual identification, but by serial number and admission to Tanarsha Wolters, and its lack of dissimilarity to the firearm depicted in the bank security photographs was shown by expert evidence of comparison of the firearm Exhibit D with that depicted, and did not raise an identification issue. Finally, the respondent relied on the following passage in Domican at 561:

"[W]here evidence as to identification represents any significant part of the proof of guilt of an offence, the judge must warn the jury as to the dangers of convicting on such evidence where its reliability is disputed."

It was submitted that the reliability of the evidence here was not disputed, but that the evidence had within it (as I discuss more fully under ground 7) concessions to the effect that the witness was not asserting absolute reliability.

250. In my opinion, the submissions for the respondent, other than the implication concerning identification "as to type", are substantially correct. I accept the argument that, because of his Honour's very strong comments about the windcheater, any Domican warning that might otherwise have been required in relation to it was not necessary. I further accept as a working definition of visual identification evidence that put forward for the respondent. (It is unnecessary to consider identification by other senses.) In my view, statements or opinions expressed by witnesses as to the nature of an object or substance they have examined or seen depicted in a photograph are not evidence of identification. They might help to "identify" it in the sense of revealing what it is, just as a corpse might be identified in a mortuary, but that is a different matter. Nor is identification evidence constituted by evidence given by experts or quasi-experts of the results of comparison of an object with another object or a photograph of an object. Such comparison can in fact be made by a jury, which has the object and the photographic image as exhibits before them. It is in the same category as evidence by handwriting or fingerprint experts, which does not require a Domican warning. Whilst there may be problems in evidence of comparison, resulting, for instance, from the lack of clarity or insufficiency of resolution of a photograph or the inadequacy of remains of an object, they are usually, and were here, obvious to juries, and jurors are well equipped to make allowance for them. (His Honour did deal with a problem of resolution and angle with a photograph in which a sight tang could not be discerned. But more instruction to the jury in this case on that topic might have been helpful, though that is not the subject of the present ground.) Evidence of examination and comparison such as I have been mentioning is largely evidence about static things, though I acknowledge that the comparison might be with images on a cinematographic or video film. The dangers that require Domican warnings occur with evidence given of the recognition of objects (whether or not familiar to the witness) observed either briefly or when moving or under adverse conditions of light, distance or the like. In the present case, if the windcheater is put aside, there was little evidence of recognition of objects in such circumstances. Such evidence was confined to the evidence of the clothing and accoutrements of the robber by persons in the bank at the time of the robbery and did not include the evidence of any of the witnesses listed by counsel for the applicant. That evidence did not, in my view, form a significant part of the Crown case either in terms of its volume or in terms of its importance. I conclude therefore that the warning contended for was not required. Nor, significantly, was it sought below, whether by way of exception or otherwise, though I acknowledge that in the preliminary objection to the reception of lay evidence about the windcheater cases on identification evidence were cited.

258. This ground alleges that the trial judge erred in failing to give a warning that the witness Tanarsha Wolters was a tainted witness.

261. As appears from Callaway, J.A.'s judgment, Tanarsha Wolters gave evidence that in about June 1992 the applicant told her that he had stolen a Pajero four-wheel drive vehicle. He further told her, she said, that he had stolen it in Adelaide and had driven in it to Melbourne with two persons, Baker and O'Brien. She also gave evidence that a Balance windcheater produced to her belonged to the applicant or (at some points of her cross-examination) was exactly the same in size and type as the applicant's windcheater.

264. His Honour not only expressed strongly to the jury the view that it would be very unsafe to make any findings against the applicant based on the windcheater, but twice reminded them that it was said (for the applicant) that they should not accept Ms Wolters' evidence because of her hatred for the applicant. But the remarks about her hatred were not made with the authority of his office. Indeed, in relation to the admission of theft of the Pajero it is clear that his Honour was merely putting the rival submissions of counsel and, moreover, he concluded his first discussion of the topic with the words: "[Y]ou ponder how she could imagine all that, or make it up, if it were not said. It is all a matter for you.".

267. It was put for the applicant that Ms Wolters' evidence was important as she was the sole witness linking the applicant to the stolen Pajero, which, according to its owner, Mr. Carlisle, had at the time it was stolen contained a gun shown to be the gun, Exhibit D, which was discovered along with a pair of dark gloves, on 23 October 1995, after the armed robbery, in a Myer shopping bag in a car at the applicant's grandmother's home. Whilst there was obviously other evidence linking the applicant to the gun Exhibit D, it may be accepted that Ms Wolters' evidence was important in that it was the only evidence showing or tending to show possession of the gun Exhibit D by the applicant before, indeed long before, the armed robbery. But, as counsel for the respondent pointed out, the Crown case as regards Exhibit D by no means depended upon her evidence.

270. It was submitted that the following matters should have led the judge to give a tainted witness (or Faure)direction in relation to Ms Wolters. She had, and at all times since the breaking up of her relationship with the applicant had had, a hatred of the applicant. Her evidence on the subject of the admission was uncorroborated: one might have expected support from Baker and O'Brien, but they were not called. Her evidence on her inquiry of Baker and O'Brien concerning the theft was unreliable. She admitted having lied to the police as to the identity of the driver of a car involved in an accident, and had in Adelaide admitted that she had lied on oath in court in Adelaide earlier as to the identity of that driver. Finally, it was said, her evidence about the windcheater was unreliable.

273. I am not satisfied on a fair reading of it all that Ms Wolters' evidence about the windcheater was in itself unreliable. There was simply a question of how far she could go in linking the very exhibit to the applicant. Nor am I satisfied that her evidence about Baker and O'Brien is, in the full context, unreliable. The fact that she had previously lied, and lied on oath, must have made it obvious to the jury that her credibility was in issue. But it did not warrant a Faure direction and cannot, in my view, at least in circumstances of this case, be used as a make weight to any other relevant consideration. The fact that her evidence was uncorroborated raises the issue whether, for other reasons, the warning sought should have been given, but does not itself show her to be tainted or potentially unreliable.

276. In my opinion, the sole factor which it could be argued required the warning now contended for to be given is Ms Wolters' hatred of the applicant. She freely admitted her hatred of him. Although more than once in this trial Ms Wolters repudiated the suggestion that her evidence was motivated by a desire for revenge against the applicant, she did, by reason of her hatred of the applicant, have a motive to lie. In that regard, the case is similar to D.P.P. v. Faure [1993] VicRp 87; [1993] 2 V.R. 497, as appears from p.503 of that case. But, as also appears from the list at the last-mentioned page, there were in Faure several other factors showing Mrs. Faure to be tainted or potentially unreliable, such as her motive to confront the deceased and her opportunity to do so, the change in her story and the fact that she was the alternative suspect for the murder, clearly having an interest in inculpating the accused.

I am not satisfied that Ms Wolters' hatred of the applicant, even if taken with her lies, showed her to be either a "tainted" witness, such as a prison informer or a suspect, or a witness who was potentially unreliable or inherently unreliable in the sense discussed in R. v. Brooks [1999] VSCA 5. This case is unlike any of those reviewed in Faure. The circumstances relied on are far weaker than those in Faure itself. The ultimate question is whether, within the principle stated in R. v. Miletic [1997] 1 V.R. 593 at 605 and deriving from Longman v. R. [1989] HCA 60; (1989) 168 C.L.R. 79 at 86, the direction contended for was "necessary and practical, in the circumstances of the case, to avoid a perceptible risk of miscarriage of justice." Without repeating the discussion of that principle in Brooks, it is sufficient to say the following. I am not persuaded that the group of factors which Mr. Tehan identified could not safely be left to trial counsel to deal with in his address but required a direction that had the authority of the judge's office. Ms Wolters' hatred of the applicant and the fact that she had previously lied, and lied on oath, were circumstances well within the ability of the jury to assess for themselves, in the light of their own experience and with the benefit of counsel's addresses. I conclude, then, that, whilst practical, the direction now contended for was not necessary, in the circumstances of this case, to avoid a perceptible risk of miscarriage of justice. I am confirmed in that conclusion by the fact that counsel for the applicant upon the trial did not seek such a direction or take an exception to the charge without it.

282. This ground contends that the trial judge erred in failing to give any direction as to the proper use of two alleged lies told.

285. The lies in question, the deliberate falsity of which was in fact conceded at the trial, in one case by formal admission pursuant to s.149A of the Evidence Act 1958, related to the applicant's leasing and occupation of a 25-acre farm property with a house on it at Arnold West, which is near Inglewood and was sometimes conveniently spoken of as Inglewood. It was on that property that on 24 October 1995 police found in an incinerator burnt remains of shoes and tracksuit pants which the Crown said matched, and were in fact, those worn by the robber in the Balwyn branch of Bank of Melbourne on 29 July 1995, and also burnt remains of two Skorpian dye bombs. Only the Bank of Melbourne used those security devices. Two such devices had been secreted by tellers in the money which they placed in the robber's bag during the armed robbery in response to his demands.

288. The owner of the property, Raymond John Smith, said in evidence that on 19 June 1995 he met by appointment at his Arnold West property a person interested in leasing the property. That person, whom he identified as the applicant, introduced himself as Tom Johnston. The applicant apologised for being late, saying that he had had to meet the university dean in his office and was held up. He said that he was doing a study on law or criminology and was writing a paper which would take him about 12 months and that he wanted to have a place that was quiet for his work. In the result, Smith leased the property to the applicant. It was formally admitted that the applicant was not on or before 19 June 1995 enrolled as a student at any university in Victoria. Jennifer Ann Neivandt of Arnold West said that she met Smith's lessee at the property in June 1995 and that he told her that his name was Tom Johnson. (I have taken the two spellings of the surname from the trial transcript.) She identified Johnson as the applicant.

291. Before the jury was empanelled, objection was taken to the admissibility of the evidence of the lies on the ground that they did not show consciousness of guilt of the crime charged. It was submitted, by reference to Edwards, that the evidence did not satisfy the requirements for admissibility. His Honour overruled the objection, essentially taking the view that the lies were not put forward as showing consciousness of guilt of the subsequent offence, but as part of the circumstances preparatory to the commission of the crime, designed to assist in obtaining a lease of the remote premises and also to allay suspicions and make a detection more difficult. At the conclusion of the prosecutor's final address, counsel leading for the defendant, as he had foreshadowed he would do, asked the trial judge to give the jury an Edwards direction. But, for reasons given during argument, his Honour declined to do so. The judge subsequently told the jury in his charge that the lies did not prove at all that the applicant robbed the bank and that the Crown did not ask the jury to say that. He told them that they did not amount to an admission of something that happened later. Rather what was put was that the applicant wanted a place which was going to be, in effect, a hideaway where contraband material might be destroyed and that he used a false name so that it would be apt to remain hidden away. (The transcript of the plea shows that it was then put by the prosecutor that the property was a relatively isolated property which was designed to be a base from which forays could be made and to which the applicant could return in relative safety.)

294. Mr. Tehan submitted that a direction in accordance with Edwards is not confined to lies after the alleged criminal activity. The critical matters were, he said, whether or not the lie was "an indispensable link in a chain of proof" and whether it was referable to the particular crime in question. Both of those matters were, he submitted, live issues in the trial and should have been addressed by the judge. I recorded Mr. Tehan as saying in his opening address on the appeal that it was accepted that the lies were not put as an admission. The written reply of the applicant's counsel contended that the point raised for the applicant was that the Crown put the lies as going to a material issue evincing guilt, that is, the use of the property as a safe place for the destruction of the insignia of crime and that in such a case the judge should have directed the jury that they had to be satisfied before using the lies adversely to the applicant that they evinced that intent. It was further contended that the failure to give that direction was made all the worse because the judge did not put the defence case on this point said to be established through cross-examination of witnesses. (This was that the applicant lied because it was likely that other people would come to see him at the property and Smith was unlikely to let to the applicant if he knew that.) It was put that his Honour had "as good as" told the jury that not only did the applicant well know what was in the incinerator but he had also lied about the property because he was going to destroy there contraband from the armed robbery.

297. I may say immediately that the last criticism and the criticism concerning the failure to put the defence case on the point are, in my view, not germane to the present ground of appeal. Further, to suggest that the defence case on the point was "established" through cross-examination is to elevate to a status they do not merit tentative suggestions in cross-examination, unsupported by any evidence of the person whose intention was in question (the applicant), and a tenuous train of reasoning based on them.

300. It was accepted for the respondent before us (though the contrary had been argued below by the prosecutor) that in principle intent to commit an offence may be inferred from a lie prior to the alleged commission of the offence: R. v. Renzella [1997] 2 V.R. 88 and R. v. Appleby (1996) 88 A.Crim.R. 456 at 459. But it was submitted that the jury were not being invited to draw such an inference here: the falsehoods had been relied on by the Crown, and left by the judge to the jury, as part of the proof of the establishment of a hideaway, showing, in effect, that privacy and lack of recognition were required. The establishment of the hideaway was, it was submitted, part of a "strands in a cable" circumstantial proof of guilt. The Crown had disclaimed any use of the lie concerning the reason for renting as showing consciousness of guilt and his Honour had in effect said that it could not be so used.

303. In my opinion, the submissions for the respondent are correct. The lies were not used or left to the jury as evidencing a consciousness of guilt of the offence charged, that is, as an implied admission of guilt. Rather, they were used, and left to the jury, as part of the introductory facts, which related to the setting up of the hideaway, being designed to facilitate the use of the property in that way. As Callaway, J.A. said in argument the lies were a verbal form of camouflage or, to take an example used during argument by the trial judge, the falsehoods are very similar to that which occurs when an intending offender hires a car under a false name to avoid detection. It could not be realistically suggested that an Edwards direction is required in such a case. It is not the fact that an accused person lied, but the Crown's seeking to use the lie as an admission against interest, that requires an Edwards direction. Here, as I have said, the Crown did not seek to do that. Consequently, the rationale for an Edwards direction is missing.

306. Although it was necessary for the purposes of their exposition of the law for Deane, Dawson and Gaudron, JJ. in Edwards at 209-210 to touch upon the standard of proof, the question of the form of reasoning which the use of the lies here involved bears on the matter of the standard of proof rather than on the present ground. Nevertheless, since both counsel raised the question when arguing this ground, I should say that, conformably with what I have said in relation to ground 6, I am of the opinion that Mr. Just's submission is clearly correct: the lies were not indispensable links in a chain of proof of guilt.

309. Quite apart from the foregoing, as Mr. Just submitted, an Edwards direction here was neither necessary nor appropriate. There was no need to tell the jury that the lies were deliberate, for that could not be doubted. Nor would it have been possible to apply sensibly the instruction in Edwards at 211 that the jury "may take the lie into account only if they are satisfied, having regard to [identified] circumstances and events [connected with the offence], that it reveals a knowledge of the offence or some aspect of it and that it was told because the accused knew that the truth of the matter about which he lied would implicate him in the offence". These considerations, in my view, confirm that an Edwards direction was not required.

316. This ground pleaded that the trial miscarried by reason that the charge was "unbalanced".

319. In support of this ground Mr. Tehan relied upon the matter the subject of ground 1 and the matters referred to in grounds 6 and 7. I take the reference to ground 6 as extending to statements reversing the onus of proof. He also relied on a number of particular matters including the following. It was said that his Honour dealt with each object commencing with the gun by saying what the Crown evidence was and that only in relation to the shoes did he deal with cross-examination, and then adversely. His Honour said that the items found at Arnold West were found on a property leased by the applicant "so you could have confidence that he had possession of them". This was said to have been most unfair because, without instruction as to the meaning of "possession", it tended to put to the jury the proposition that the applicant knew of the burnt items and had control over them without putting the defence case fairly, which was that there was a body of evidence (referred to in the argument of ground 4) which showed that other persons had access to the property. Then complaint was made of the following statement by the judge when dealing with the items found at Arnold West:

"... well, if you accept all that what other explanation is there for all those facts and circumstances, other than that he was the man in the bank?"

(That passage, which in the transcript commences with quotation marks, was in fact introduced by the words, "Now, the Crown say ...".) It was complained that, on the other hand, the defence case was put only in relation to the Skorpian bombs. Finally, it was said that the judge dealt with the pants, the windcheater, the balaclava and the gun by way of providing a critique of counsel's arguments.

324. As will appear, ground 8 relates to the failure to direct the jury that they might disregard the judge's comments. The sting of that ground lies in the comments which were said to have been made. Accordingly, there was some overlap in argument between that ground and the ground presently under consideration. Although it was in connection with ground 8 that counsel for the applicant orally and in writing listed a total of six adverse comments complained of, it is, I think, proper that they should be mentioned and taken into account in relation to ground 5 also. One had already been listed by Mr. Tehan in his argument under ground 5. This is the statement that the jury could have confidence that the applicant had possession of the items whose remains were found at Arnold West. Another is one of the statements already mentioned in which the onus of proof was reversed. That does not seem to me to be a comment on the facts, but is in any event comprehended in this ground by the incorporation of ground 6 as I have interpreted it. The third is the statement that the applicant used the property at Arnold West not so much to hide contraband material as to destroy it. In my view, the context clearly shows that that was not a comment by his Honour, but the repetition of a refinement by the Crown of its argument about the property. The fourth relates to a defence argument summarised as being that the firearm was in the green Mazda (presumably Magna) and that Harry Hasiotis was in there too. But, his Honour said, there was no photograph of him in it. (The transcript is not intelligible as to the subject of the photograph. A complaint before us was that his Honour did not say to the jury that there was no photograph of the applicant with the Myer bag.) His Honour then made the statement objected to, namely, "What you have got to do is make the best you can out of the evidence you do have." I do not understand that as being a factual comment, but as being a direction and as being obviously sound when understood in the context of the onus and standard of proof upon the Crown. His Honour was not bound to mention the absence of a photograph of the applicant with the bag, but the omission has to be taken into account. The fifth comment objected to occurred after his Honour had stated the Crown's reliance on Tanarsha Wolters' evidence of the applicant's admission to her of theft and the consequences of that evidence, and then the defence criticism of it on the ground of the hatred which she bore the applicant. His Honour then continued:-

"... if that is the case you should not believe what she says; but she says that that is what happened, and you ponder how she could imagine all that, or make it up, if it were not said. It is all a matter for you."

328. The final comment objected to was his Honour's statement that the windcheater was "in a somewhat different class to the other matters."

331. Now, after the jury had retired to consider their verdict counsel for the applicant took an exception that there was a lack of balance in terms of the defence case in that, having listed the aspects of the Crown case, when it came to the defence case, on each matter except the windcheater the judge had provided a critique as he went along describing the way in which the defence put its case, and then at the very end of his charge had simply reminded them of the arguments of the applicant. It was said that a critique had not been given of the Crown case except in relation to the windcheater. The complaint was as to the number of criticisms provided and the fact that each time the defence proposition was put it was qualified with a critique. Without setting out lengthy passages from the charge, it is sufficient to say that it contained a critique in substance as asserted. After hearing the prosecutor, his Honour re-directed the jury in response to the exception, saying:

"The other thing is, when I was going through the matters that were put by the defence, at times I went to say 'The Crown says this about' or 'that about it'. It was done that way because it gets too long to come back to it all a third time and have to repeat it and then put it in context. But that does not mean that I am suggesting for a moment that what the Crown says about them is valid at all, it is all a matter for you, it is only put that way so as to avoid having to go back over it all and re-state it then put the thing. But I was really hoping to put it for you the way the defence put it to you."

335. Mr. Tehan relied upon the well-known passage from the advice of the Judicial Committee in Broadhurst v. R. [1964] A.C. 441 at 464, in the course of which the following was said:

"The opinions of the presiding judge on issues of fact can often be of great assistance to the jury. But it is very important that the jury should be told that they are not bound by them nor relieved thereby of the responsibility for forming their own view. Nevertheless, a jury is likely to pay great attention to them: and even in a case where a proper warning is given, an appellate court may still intervene if it considers them far stronger than the facts warrant."

Mr. Just drew attention also to R. v. Mawson [1967] VicRp 23; [1967] V.R. 205 and R. v. Hughes (1989) 42 A.Crim.R. 270. In the latter case, following earlier authority, the Court of Criminal Appeal held that a judge in the conduct of a jury trial may comment strongly upon the facts provided that he informs the jury that they are the judges of the facts and are not bound by his comments, and that a summing up must fairly and properly leave to the jury for their consideration the principal issues raised by the defence case and explain the use of the evidence in relation to those issues.

340. In considering whether the charge in this case was unbalanced, regard must be had to the fact that the Crown case was, as I think, a strong one and the fact that the applicant gave and called no evidence. Hasiotis was asked in cross-examination whether he was the robber. He denied that he was. It was not put to him that he was. He denied too that the Myer bag was his. He did not have the physique of the applicant or that of the robber as it was sworn to by almost all eye-witnesses. Nevertheless, in my opinion, defence counsel was justified in complaining that the charge as delivered, with its point-by-point critique of the defence case without any corresponding critique of the Crown case, was unbalanced and gave the strong impression that the judge was devaluing the applicant's contentions. But, in my opinion, the re-direction cured this vice in the charge. This is so, I consider, whether the complaint concerning the judge's critique related only to the structure (as Mr. Just submitted) or to the content of the criticisms also. His Honour unreservedly disavowed any intention to suggest that the Crown's criticisms were valid, made it clear that a decision on each issue was a matter for the jury, explained (if he could not justify) the choice of the structure, and made it clear that he had been intending to put the defence case. The re-direction had, as Mr. Just submitted, special force, coming as it did at a crucial time and in isolation from the earlier statements.

343. That then leaves the other matters listed by Mr. Tehan. To commence with those which incorporate other grounds, I do not consider that the mis-statement of the evidence which is the subject of ground 1 bears in any material way on the question of balance. Nor does the absence of a direction about expert evidence (ground 7). As regards ground 6, I am of the opinion for the reasons I have given that his Honour did not misdirect the jury as to the standard of proof. Whilst he did more than once inadvertently reverse the onus of proof in relation to circumstantial evidence, those misdirections were corrected and neutralised by the clear and correct direction at the end of his charge.

346. There remain for consideration three specific matters listed by Mr. Tehan and two comments. I have already pointed out that the criticised passage commencing "... well if you accept all that ..." was merely the repetition of a rhetorical question posed by the prosecutor. It may therefore be put aside. As to the complaint made in connection with that passage that the defence case was put only in relation to the Skorpian bombs and another complaint that only in relation to the shoes did the judge deal with cross-examination, I am quite unpersuaded on a re-reading of the charge that these complaints are made out. It seems to me that his Honour put before the jury numerous criticisms of the evidence made by defence counsel, some at least of which were based on cross-examination. In putting before the jury such criticisms his Honour was putting the defence case in relation to the evidence criticised, for, as I have mentioned, the applicant neither gave nor called evidence. His Honour was entitled to remind the jury of the whole relevant portion of the cross-examination of Evans from which defence counsel had relied on a part only. The statement of the consequence of the finding of the burnt remains at Arnold West which is complained of, namely, "you could have confidence that he had possession of them", appears when read alone to be a comment by the judge; but when read in full context it is seen to be part of the statement of the way the Crown put its case. It is true that the judge did not put to the jury what is said to have been the defence case about this evidence, namely, that there was a body of evidence showing that other persons had access to the property, so that the implication flowing from the word "possession", that the applicant knew of the burnt items and had control over them, should not be accepted. But the evidence referred to was relatively insignificant and hardly justified the description "a body of evidence". For present purposes it comes almost entirely from some answers by Mrs. Neivandt in cross-examination to the effect that a man called Laurie stayed on the property for about two or three weeks when the applicant first moved in, that a few other persons were there on single days and that a group of half a dozen were there for "a short time". But all those persons seem to have been present at the property by invitation. Moreover, the incinerator was quite close to the house, making it unlikely that unauthorised persons would use it. Hasiotis did visit the property between July and October 1995, but denied using the incinerator. Although the trial judge was bound to put the defence case fairly, he was not bound to re-capitulate Mrs. Neivandt's answers and, having regard to the tenuousness of the evidence, I am not persuaded that he was bound to put this particular defence. It may be that, where the complaint is one of balance generally, the failure to put a particular defence is not covered by the ground. (The applicant was allowed three amendments of his grounds before and during the hearing of the appeal.) In any event, the failure to put this defence could readily have been cured had exception been taken. Even if this particular defence should have been put and even if it is open to the applicant to complain about it under this ground, I am not persuaded that any miscarriage of justice occurred through the failure.

349. I would accept that his Honour's statement about pondering how Tanarsha Wolters could have imagined "all that" if it were not said and his statement that the windcheater is in a somewhat different class to the other matters were comments by him. Ground 8 raises the question whether he should have directed the jury that they were not bound by his comments. Under the present ground, however, the question is whether the comments and any other matters rendered the charge unbalanced so as to require this Court's intervention. In considering that question I have also had regard to the other matters relied on (so far as not already ruled out completely) and to some other comments in the charge which were not specifically complained of. As against those considerations, his Honour twice told the jury that it was very unsafe to make any findings against the applicant based on the windcheater; in his summary of the Crown case so far as based on the evidence of Tanarsha Wolters he put quite clearly the defence criticism based on her hatred of the applicant; he reminded the jury that defence counsel had listed 13 aspects of the evidence which he argued the jury should not act on and then himself repeated most, if not all, of those arguments; and, finally, he expressed the view that in one sense it could be said that the Crown relied upon those items tending to show that the applicant was the man in the bank, while ignoring the evidence of one eye-witness relied upon by the defence (apparently Mrs. Broadbent, a teller, though other tellers are candidates) and rejecting the items not tending to show that he was the man there. Further, there was no suggestion of undue interference or other signs of imbalance during the taking of evidence or counsel's addresses.

352. Having closely considered the charge as a whole and specific portions of it in particular, and bearing in mind the nature and strengths of the respective cases, I must say that it does not appear to me to have been unbalanced (certainly not to the extent that there was a miscarriage of justice) once the impression created by the point-by-point critique of the defence case is excluded from consideration. Numerous defence arguments were put before the jury by the judge. Moreover, apart from the exception to the point-by-point critique of the defence case, which was satisfied by the re-direction, no exception on the ground of imbalance in the charge was taken. Whilst the failure of counsel to seek directions cannot be fatal to the success of an application for leave to appeal if it appears that there has been a substantial miscarriage of justice (BRS v. R. [1997] HCA 47; (1997) 191 C.L.R. 275 at 302 and KBT v. R. (1997) 191 C.L.R. 417 at 423), the lack of an exception in a case such as this is of significance, as the Chief Justice pointed out during argument, for it is evidence that in the view of trial counsel, hearing the charge delivered, the matters now complained of were not important. It thus tends to confirm the view at which I have arrived.

359. In this ground, not formulated until the first morning of the hearing in this Court, the applicant contends that the trial judge erred in failing to direct the jury upon expert evidence.

362. The expert witnesses called by the Crown included at least the following:

* Jane Moira Taupin, a forensic scientist, the head of the Biological Trace Evidence Section of the Victoria Forensic Science Centre, who gave evidence that the black phantom-style balaclava which she examined (proved to be that found in the HiLux utility) "consisted of two pieces", an eye-piece and a mouth-piece, but had had stitching broken so that there was just one eye-hole when she examined it;

* Wayne Maxwell Pilkington, project manager at Olin Australia (Winchester Division), the distributor of Winchester firearms, who had been employed in that division for 22 years and gave evidence that the firearm shown in the bank's security photographs was, like Exhibit D, in his opinion a model 77 Winchester .22 self-loading (or semi-automatic) rifle, the barrel and butt of which had been cut down, that they looked very similar, and that he could discern no dissimilarities between them;

* Senior Constable Trevor Wayne Evans of the Crime Scene Section of the Victoria Forensic Science Centre, who gave evidence that the charred remains of a sports shoe which he examined were the burnt remains of an Asics Gel V2 shoe and also (after his Honour had ruled on a voir dire that Evans was qualified to give opinion evidence as to whether the shoes shown in bank security photographs were the same as some other shoe) that the shoes the robber was depicted as wearing appeared to be similar to Asics Gel V2, although he could not be 100 per cent certain because the photographs were not clear enough (the witness Dines also said that the shoes depicted were Asics Gel V2 shoes);

* Senior Constable Alan Franklyn Pringle attached to the Victoria Forensic Science Centre as a firearm and tool-mark examiner, who gave evidence that Exhibit D was a .22 calibre Winchester model 77 firearm that had been sawn off and that by reason of a number of points of identification the firearm depicted in bank security photographs was the same as Exhibit D;

* Peter Ross, a forensic scientist at the Victoria Forensic Science Centre specialising in chemical criminalistics, who gave evidence that the Bank of Melbourne was the only organisation in Australia using the Skorpian dye bomb; that the charred remains of a shoe which he had been shown bore greenish-blue dye powder material which he found to be the same as that used in the Bank of Melbourne Skorpian dye devices; that some charred dark blue fabric was virtually the same colour as, and was made from the same yarn as, a sample of material proved to be used in the manufacture of Adidas Equipment 2 tracksuit pants; and that the remains shown to him, which included AAA batteries, charred strips of orange and pale green paper, a capacitor and metal plates, were consistent with the inner casings of two Bank of Melbourne Skorpian dye devices.

The charred material which some of those witnesses examined was shown by other witnesses to have come from the incinerator at the Arnold West property. Although Pilkington was not put forward by either party in submissions to this Court as being an expert both the prosecutor and defence counsel agreed in an exchange during the trial that he was a qualified expert. It is arguable that in addition to the witnesses listed above some at least of the persons from the clothing, textile and shoe industries who gave evidence were experts, but it is unnecessary to decide that.

371. In support of this ground counsel for the applicant furnished detailed written submissions reviewing the principles relating to expert evidence generally. It is not, I think, necessary to discuss that review. They then specifically submitted, in the light of the cases reviewed, that where expert evidence forms a significant part of the Crown case the jury should be instructed upon the use they may make of it. Relying on the statement in R. v. Parker (unreported, Court of Appeal, 10 August 1995) at p.37 that experience has shown that expert evidence can be seductive to laymen unless scrutinized with care, they submitted that the "seductive" effect of expert evidence is such that juries should be warned that it is for them and not experts to decide the case and that the opinions of experts are only as good as the facts upon which they are based. They contended that in a case involving opinion evidence the jury should at least be directed, first, that the weight to be given to the opinions of experts is to be assessed in the same way as in the case of evidence of any other witness, and, secondly, that before the jury can act upon the evidence of an expert they must be satisfied of the existence of the underlying facts on which it is based. Further, where there are weaknesses and discrepancies in the expert evidence the judge should point to those matters. They submitted that this was such a case. They referred in that regard to the criticisms of Evans, Pringle and Ross in the "draft model charge" which they had earlier handed up.

374. We were pressed for the applicant with Clark v. Ryan [1960] HCA 42; (1960) 103 C.L.R. 486 especially at 492, but it is not to the point, for the question there was one of admissibility of opinion evidence and, further, there had been an objection to its reception.

377. Mr. Just, on the other hand, contended that none of the expert evidence had been contradicted or contested at the trial, so that the direction contended for was not needed. Alternatively, he submitted, the judge had made it sufficiently clear to the jury that they were not obliged to accept the opinions of the experts. He relied upon the fact that his Honour had frequently, after discussing matters to which expert evidence related, told the jury, "It is all a matter for you." He also relied particularly upon two passages in the charge. The first occurred after his Honour had, in relation to the gun, referred to the evidence of Borger (there in the charge called Boyer), Pilkington, Pringle and Tanarsha Wolters. His Honour said:

"Now if you accept that, then you will be satisfied that the very gun in question was in the possession of the accused when he got the Pajero, if you accept that."

The second passage occurred a little later. On the same subject his Honour said:

"So the Crown says that really you know for certain, if you accept the experts' evidence, that this was a 77 semi-automatic Winchester, this one in court, the same as the one in the bank ..." (Emphasis added.)

383. In my opinion, Mr. Just is correct in his submission that none of the expert evidence was contradicted and substantially correct in his submission that it was not contested. Except in the case of Evans, the expertise of the expert witnesses was not questioned. The cross-examination of them was directed to limiting the extent to which they could be specific as to identity or otherwise or could speak as to certain matters because, for instance, they were working from photographs. Since, as it seems to me, their answers in cross-examination were given readily enough, it was likely that, if the jury was going to accept their evidence, they would accept it with the qualifications stated in cross-examination. The judge did in fact deal with a criticism of Evans' evidence made by defence counsel, though he did so by directing attention to the full terms of his evidence on the point. What I have so far stated deals with the suggested "deficiencies" in the evidence of Evans and Pringle. The suggested "deficiencies" in the evidence of Ross are, in my view, of no materiality.

386. Notwithstanding what is stated in the immediately preceding paragraph, I am of the opinion that in this case there was required a direction concerning expert evidence in conventional terms as summarised in para.34 of Callaway, J.A.'s reasons, to which I would add a direction that the weight to be given to the opinions of experts is to be assessed in the same way as the weight to be given to the evidence of other witnesses. I do not consider that the statements by his Honour relied on for the respondent satisfied that requirement. In particular, the words I have emphasized in the second passage quoted above were too passing a reference to make it clear to a lay jury that they were free not to accept an expert's opinion. Despite that view, I have come to the conclusion that there was not a miscarriage of justice on the ground of this non-direction by itself. I say that because, as discussed, the evidence was virtually unchallenged, because his Honour frequently told the jury that "it" was all a matter for them, because much of the evidence of expert witnesses in this case was evidence of observations, not opinions, and because no exception was taken to the failure to give the direction now sought, which suggests that such a direction was not at the time perceived to be necessary.

393. This ground contends that the judge erred in failing to direct the jury that they were entitled to disregard comments by him. In total, six statements were complained of as comments. I have under ground 5 analysed those statements and concluded that only two are comments by the judge. They are the statements as to pondering how Tanarsha Wolters could imagine "all that" and the statement that the windcheater is in a somewhat different class to the other matters of evidence. There are, however, as it seems to me, some other comments by the judge embedded in the charge. They may probably derive from arguments of the prosecutor, but they were not put to the jury as such by his Honour, though the re-direction may have treated them as having been so put.

396. Although it is customary to do so, a trial judge is not obliged in every case to direct or warn the jury that they are not bound by the judge's comments on the facts: R. v. Mawson [1967] VicRp 23; [1967] V.R. 205 at 210. But, since his Honour decided to make the comments adverse to the applicant which are complained of, I have come to the conclusion that in this case such a direction was required. In Broadhurst at 464 the Judicial Committee said that it "is very important that the jury should be told that they are not bound by the opinions of the judge" nor relieved thereby of the responsibility for forming their own view; see also Mawson at 209. (I agree with Mr. Just that Barca v. R. [1975] HCA 42; (1975) 133 C.L.R. 82, cited for the applicant, does not bear on ground 8.) By reference to cases such as B v. R. [1992] HCA 68; (1992) 175 C.L.R. 599 at 605-606 per Brennan, J. (with whom Deane, J. agreed); Mawson at 210; R. v. Campbell [1970] VicRp 16; [1970] V.R. 120 at 128 and R. v. Hulse (1971) 1 S.A.S.R. 327 at 325, Mr. Just argued that failure to warn is a miscarriage of justice only if there has been a likelihood of "overawing of the jury" or, seemingly, a likelihood of the jury being distracted from the proper discharge of their function. I am not sure that this argument does not treat what was or would have been sufficient as being what is necessary; but, assuming the correctness of the argument, I think that one or both of those conditions was or were satisfied here.

399. The next question is whether his Honour gave the necessary direction. He clearly did not do so in customary terms. Mr. Just, however, relied upon his Honour's statement early in the charge, "Of course, you are the people who try this case. I do not have anything to do with trying it except ..." and upon his Honour's statement, made often and in particular immediately after his comment about Tanarsha Wolters (though not after his comment contrasting the windcheater with other items of evidence), to the effect that it was all a matter for the jury. These statements come close to satisfying the requirement, but they do leave the possibility that the jury might still have been under the impression that they should accept his Honour's views for the purpose of deciding the facts.

402. There are, however, other considerations. In the re-direction his Honour, admittedly in the context of his critique of the defence case, again told the jury that it was all a matter for them. Further and importantly, no exception referable to this ground was taken to the charge: R. v. Clarke and Johnstone [1986] VicRp 64; [1986] V.R. 643 at 661-662. In all the circumstances I conclude that the failure subject to this ground, standing alone, did not amount to a miscarriage of justice.

409. Mr. Tehan argued that, even if each of the grounds individually failed, nevertheless the combination or aggregation of the defects said to be identified in several grounds should lead this Court to conclude that there had in truth been a miscarriage of justice. That such a conclusion is open to a court of criminal appeal is clearly established: R. v. Ireland [1970] HCA 21; (1970) 126 C.L.R. 321 at 331 per Barwick, C.J. (with whom the other members of the Court agreed); R. v. Gibb and McKenzie [1983] VicRp 78; [1983] 2 V.R. 155 at 166; R. v. Levidis [1991] VicRp 57; [1991] 2 V.R. 179 at 182; R. v. Appleby (1996) 88 A.Crim.R. 456 at 488; R. v. McKellin (unreported, Court of Appeal, 19 December 1997) per Phillips, C.J. and Charles, J.A. at p.10; R. v. Zorad (1990) 19 N.S.W.L.R. 91 at 108 (though the function of substantial miscarriage there is not clear to me) and R. v. Robertson [1998] 4 V.R. 30 at p.42 per Callaway, J.A. (like this, a case concerning directions as to use of evidence). It is clear from those cases that the "defects", "faults" or "errors" which may thus be aggregated are such as have not led to a miscarriage of justice; for, if any of them have done so, the Court would, unless the proviso were held applicable, be obliged by virtue of s.568(1) and (2) of the Crimes Act 1958 to allow the appeal and quash the conviction. (I am speaking with reference to the third limb only of s.568(1).) Compare R. v. Konstandopoulos (1997) 99 A.Crim.R. 36 at 44 and 47.

412. The charge here could not be described as a model charge. In the end, I have come to the conclusion, with some hesitation and reluctantly, that the applicant did not have, as he was, despite the strength of the Crown case, entitled to have, a fair and proper trial by reason principally but not only, of the omission of explicit directions as to expert witnesses and judicial comments and the omission of any direction whatsoever about the assessment of evidence (which, although not a ground, was adverted to in argument).

416. It follows the application for leave to appeal against conviction succeeds and the conviction must be quashed. Although that conviction was sustained on the fourth trial of the applicant on this charge of armed robbery, I would not direct the entry of a judgment and verdict of acquittal both because of the strength of the Crown case and because only one of the earlier trials proceeded as far as the retirement of the jury to consider their verdict. Nor was the Court invited to take that course in the event that the application succeeded. The question whether a re-trial is to occur should be a matter for the Director of Public Prosecutions.

420. The applicant sought leave to appeal against the sentences imposed in respect of each presentment. It is necessary, therefore, to consider that application so far as it relates to the second presentment. The sentencing discretion is re-opened both for the reason given by Callaway, J.A. and also, as it seems to me, because the directions for cumulation and concurrency depended upon or were affected by the sentence imposed for the armed robbery the subject of the first presentment.

423. I agree with the disposition by way of re-sentencing proposed by Callaway, J.A. and with his Honour's reasons.