R v Kotzmann

26. The applicant subsequently appealed to this Court against the conviction recorded by the jury in respect of the robbery alleged in the first presentment and also against all of the sentences imposed. That appeal was heard by the Court on 6 August 1998, and on 19 March 1999 the Court allowed the appeal against conviction and ordered a re-trial in respect of the "Bank of Melbourne robbery"[1]. In respect of the sentences imposed on the second presentment, the Court allowed the appeal only in respect of the orders for cumulation made by the sentencing judge, thus producing a total effective sentence in respect of the counts on that presentment of five years. The Court fixed a non-parole period of three years and nine months and declared that, as at the date of the Court's judgment, the applicant had served 1243 days pursuant to the sentences imposed.

29. On 2 October 2000 the applicant was again arraigned before a County Court jury on the count of armed robbery of the Balwyn branch of the Bank of Melbourne on 29 July 1995 - that is the count alleged on the first presentment. On 18 October 2000 the jury again convicted the applicant of that offence. By the time that that conviction was recorded, the non-parole period and all but about six months of the head term set by the Court of Appeal in respect of the offences on the second presentment had expired. The applicant was apparently released on parole (on bail) on 27 October 1999. The parole was breached because (so it was asserted) of an "unclean" drug test, and he was taken back into custody on 25 May 2000. The applicant admitted some 29 prior convictions, including 2 armed robberies, from 10 court appearances, most of which had been committed between 1986 and 1991. In respect of the offence of which he had been convicted, the learned judge on 27 October 2000 sentenced the applicant to a term of 5½ years and directed that he serve a period of 2½ years before becoming eligible for parole. He directed that the sentence be served concurrently with the sentence which the applicant was then serving. The effect of his Honour's sentence, as was conceded, is that the total effective head sentence to be served for the offences charged on both presentments is some 10 years and the sum of the non-parole periods fixed is about 6¼ years. In fixing the sentence which he did, his Honour recognised that credit had already been given for time served by the Court of Appeal which had re-sentenced the applicant on 19 March 1999 and that such credit was not available to again be taken into account (s.18(2)(d) of the Sentencing Act 1991). The Court was told that 43 days had been served pursuant to the sentence which his Honour had imposed and that period was declared. All other things being equal, that would mean that the applicant now has to serve a little more than 12 months before he becomes eligible for parole. Indeed the applicant informed us during the hearing of the appeal that he understood that his "earliest release date" was at some time in March 2003. Nevertheless, counsel for the respondent informed us that "all other matters were not equal" because he understood that, whilst the applicant had been "on parole" between October 1999 and May 2000, he and his "de-facto wife" had committed further offences in April and May 2000, in respect of which he had stood for sentence before the County Court on 19 September 2001 - that is, approximately one month before we entertained this appeal. This Court, accordingly, called for further information about those matters and that was forwarded to us on 28 November 2001. It is now apparent that the County Court, on 19 September 2001, sentenced the applicant in respect of the offences with which it was concerned to a "straight sentence" of 11 months imprisonment and directed that such sentence be served in compliance with s.15(1)(a) and s.15(2) of the Sentencing Act 1991. As I would understand the effect of those provisions, the service of the sentence for the armed robbery is suspended until the "straight sentence" imposed in September 2001 has been served. If that is correct, the applicant's "earliest release date" under the sentence with which we are concerned will not arrive until approximately February 2004.

32. The sentencing task which his Honour had to perform was not an easy one. It was complicated by the prior history of the applicant and his acquired distrust of the legal system engendered by spending nearly two years on remand in South Australia in respect of offences of which he was acquitted, and time spent in custody in Melbourne awaiting trial on charges in respect of which acquittals were directed and for which the police responsible were admonished. His Honour took the view that, in all the circumstances, imprisonment for a lengthy term for this armed robbery "would amount to a crushing sentence which could extinguish [the applicant's] reasonable expectations of rehabilitation and joining the community as a useful member." In so concluding, his Honour said that he "had regard to the lengthy period that [the applicant] had been in jail in respect of the matters for which he was required to impose sentence."

35. The applicant has applied for leave to appeal against both his conviction and sentence. The grounds upon which he applied for leave to appeal against his conviction were set out in his original notice dated 27 October 2000. Upon the hearing of the application counsel, who appeared on his behalf, applied for leave to amend those grounds and to substitute for them a new notice of application containing 21 grounds. The Court was informed by counsel that he did not wish to argue grounds 6, 8, 11, 19 and 20 of the amended grounds. Grounds 4, 5, 9, 12, 13, 14 and 18 of the amended grounds seek to raise matters which were not raised in the initial notice. Counsel for the applicant thus sought leave from this Court to add those grounds to the notice of application already filed. The Court permitted counsel to address argument in respect of such of those grounds as he wished but reserved for its ultimate decision the question whether leave to amend would be granted. Ultimately counsel for the applicant argued the various grounds by reference to topics. Those topics were as follows:-

a) "The alleged possession of the rifle prior to the robbery" (Grounds 2, 3, 12 and 17).

b) Lies told by the applicant with respect to the property at Arnold West (Grounds 1 and 15).

c) Circumstantial evidence (Grounds 9, 10, 13, 14, 16 and 18).

The alleged possession of the rifle prior to the robbery.

45. It is apparent from what I have already said that the Crown was able to lead evidence seeking to demonstrate that the "sawn off Winchester .22 rifle" was found in the possession of the applicant (namely concealed in his car at the Deepdene premises) on 23 October 1995 following the robbery at the ANZ Bank premises on that day. Nevertheless, the Crown sought to prove that the applicant had exercised dominion over this rifle from 1992 when a Mitsubishi "Pajero" motor vehicle, in which the rifle had been stored, was stolen from the car park of hotel premises in Adelaide. That motor vehicle had, at all material times, been owned by one Christopher Carlisle who was the registered owner not only of the motor vehicle but also of the rifle. The motor vehicle had been driven to Melbourne where it was located in the suburb of Hawthorn in September 1992 - some two weeks after its theft in Adelaide. When the car was recovered in Hawthorn the rifle was no longer in it. However when the rifle was recovered from the possession of the applicant in October 1995 the serial number which it bore was that registered in the name of Carlisle in the South Australian records. Carlisle made a statement to investigating police in which he said that the rifle had been in the Pajero motor vehicle when it was stolen in 1992. That statement was part of the police brief served upon the applicant (or his legal advisors) prior to the committal proceedings. However, during the course of the committal proceedings, Carlisle was not required to attend as a witness for cross-examination. The material contained in the statement of Carlisle was made relevant because of the evidence of one Tanarsha Wolters, a resident of Adelaide, who in 1992 and 1993 had been living with the applicant in that city. She gave evidence, inter alia, that the applicant had told her that, during 1992, he had stolen a Pajero motor vehicle and driven it back to Melbourne. It was the coincidence of the evidence of Carlisle and Wolters upon which the Crown relied to demonstrate that the applicant had been in possession of the rifle since 1992. By the time of the trial Carlisle had died but the contents of his statement concerning the provenance of the rifle became admissible pursuant to s.55AB of the Evidence Act 1958 subject to the judge's discretion to exclude it.

48. At the outset of the trial, counsel for the applicant (who is not the counsel who appeared on this application), submitted to the judge that he ought to exclude both the evidence of Wolters and the statement of Carlisle. The application was founded generally upon the ground of unfairness, said to be constituted by an inability to cross-examine Carlisle and on the basis that Wolters was a thoroughly unreliable witness because of a conceded hatred which she bore towards the applicant. The trial judge declined to exclude the evidence of Wolters and the statement of Carlisle. As he said, the facts set out in Carlisle's depositions were "non contentious" and appeared to have been so treated in the three earlier trials of the applicant. His Honour declined to exclude the evidence of Wolters on the basis that she was, or was alleged to be, "unreliable". Counsel had contended that her "unreliability" was such that no jury could believe anything she said and therefore the Crown should not be permitted to call her as a witness on the ground that to do so would be highly prejudicial to the accused and would impair "the fairness" of his trial. Counsel further submitted that, quite apart from her "hatred" for the accused, there were additional matters which should lead the trial judge to exercise his discretion to exclude her evidence. Those matters included the fact that she was or had been an "addicted user of prescription drugs and heroin"; the fact that she had given evidence on at least four occasions in South Australia against the accused, on each of which occasions the accused had been acquitted; that she had admitted in the course of a previous trial that she had "told lies" in other proceedings and was therefore "an admitted perjurer". Counsel submitted to the trial judge that he ought to be entitled to further cross-examine Miss Wolters "on a voir dire" before she was called to give evidence against the applicant. His Honour, in the exercise of his discretion, declined to exclude the evidence of Miss Wolters; and further ruled that it was unnecessary to further examine her on a voir dire before giving her evidence.

51. In support of Grounds 2 and 3 of this application, Mr. Boyce, who appeared for the applicant in this Court, submitted that his Honour was in error in failing to exclude the statement of Carlisle and the evidence of Wolters. He contended that his Honour should have exercised his discretion to exclude such evidence on the grounds that its probative value was outweighed by its prejudicial content. In my opinion, there is no substance in these submissions. It was not contended by counsel at the trial that the facts contained in Carlisle's statement were contentious. Indeed they had been treated as "non contentious" from the date of the committal proceedings. Mr. Boyce contended, that in the context in which the trial was fought, it was not "highly probative" for the Crown to satisfy the jury that the rifle had come into the possession of the applicant in 1992 when it already had evidence demonstrating that the rifle was in the possession of the applicant some three months after the robbery which was the subject of the charge. This was not a submission made by trial counsel to the judge. On the contrary, trial counsel conceded that evidence tending to place the rifle in the possession of the applicant some three years prior to the robbery was highly probative. Its probative value, so the Crown contended, was all the greater because of allegations made at the previous trial that the gun had been in the possession of Hasiotis. Furthermore, I am unable to accept the submission of Mr. Boyce that the evidence contained in Carlisle's statement was prejudicial because counsel had been unable, as a result of Carlisle's death, to test the accuracy of his statement that the rifle was in the car when it was stolen. That argument, for the reasons which I have already stated, was not strongly pressed before the trial judge. No-one suggested that Carlisle's statement that the gun was in the car at the time when it was stolen was a figment of his imagination or was otherwise unreliable.

54. Nor am I persuaded that his Honour was in error in declining to exclude the evidence of Wolters, or in declining to direct that a voir dire be held before it was admitted. Her evidence was probative. All of the matters upon which his Honour had been asked to exercise his discretion to exclude her evidence were matters going to her credit; matters upon which she had already been cross-examined in the preceding trials. This Court has recently had reason to comment upon indiscriminate holding of voir dires involving the calling of witnesses who have already been the subject of extensive cross-examination in committal proceedings or previous trials[2]. It was very much a question for the judge whether a voir dire was necessary to ensure the fairness of the trial and I can see no reason for concluding that his Honour's decision in this matter was other than correct in the circumstances which were presented to him. His Honour was well aware that the credit of Miss Wolters was in issue; however his Honour was correct, in my view, in declining to exclude the evidence on this basis. The reliability of a witness and the weight to be given to the evidence of a witness claimed to be unreliable are matters for the jury. It would be an exceptional case where the judge would be entitled to exclude probative evidence on the basis of a satisfaction, formed before hearing it, that it was unworthy to be considered by the jury[3].

57. The trial judge gave full reasons for declining to exercise his discretion to exclude the evidence of Wolters and for declining to conduct a voir dire in relation to that evidence. Unless it can be shown that the exercise of his Honour's discretion has clearly miscarried, an appellate court will be very slow to interfere with the judge's discretionary exercise. As I have said, no basis has been shown upon which this Court could interfere with his Honour's conclusion. In particular, Mr. Boyce relied upon the fact that the witness Wolters had been given an indemnity and placed in "witness protection" and the fact that the trial judge did not make specific reference to this matter in declining to exclude the evidence of Wolters or, at least, to conduct a voir dire before receiving the evidence. The mere failure of the trial judge to refer to this matter does not mean that he overlooked it, nor indeed - so far as I can see - was it a matter which betokened the holding of a voir dire or, more significantly, the exclusion of the evidence of Wolters. As his Honour said, these were matters which were entitled to be explored with the witness in cross-examination as matters touching and concerning her credibility and the reliability of her evidence. In the course of his ruling his Honour said that it may become necessary for him, during the course of his directions to the jury, to give appropriate warnings in relation to the jury's treatment of the evidence of Wolters. Indeed, such warnings were given. Nor did the fact that the evidence of Wolters necessarily implicated the applicant in the stealing of a car require the exclusion of the evidence. It is commonplace in the administration of criminal justice that evidence given by a witness relevant to the facts in issue will reflect discreditable conduct on the part of the accused[4]. These are matters for appropriate directions as to the use to which the evidence can be put.

60. For the reasons given I can see no basis for the contention that the trial judge's discretion miscarried in declining to exclude either the statement of Carlisle or the evidence of the witness Wolters from the trial. I would accordingly reject Grounds 2 and 3.

63. Mr. Boyce next argued, pursuant to Ground 12 of the amended grounds, that his Honour had misdirected the jury about the use to which they could put the finding of the gun in October 1995 as supporting the evidence of Wolters. As I have already indicated, his Honour gave a strong warning to the jury about the use which they could make of Miss Wolters' evidence. Having reminded them of the content of the evidence suggesting that the witness "hated" the accused, his Honour directed them that her attitude may supply a motive for telling lies about the accused and thus affect the truth and reliability of her evidence. He therefore directed them that her evidence should be scrutinized carefully and that they should look for other supporting evidence before accepting it. Counsel for the applicant before this Court, not surprisingly, made no complaint about the general content of that direction but contended that his Honour was in error in telling the jury that the finding of the gun in the applicant's car on 23 October 1995 could be used by them to support Miss Wolters' evidence. This, however, is not a true reflection of what his Honour did tell the jury. In the course of his charge, his Honour said:-

"If you are satisfied that the firearm was in the possession of the accused and no-one else when the police found it in the yellow Holden motor car at the accused's grandmother's premises at Burke Road, Deepdene, and are also satisfied that the same firearm ... was in Mr. Carlisle's Pajero when his motor car was stolen in 1992 in Adelaide, and that the accused stole the Pajero, then the finding of the gun in the accused's possession could tend to support Miss Wolters' evidence."

Subject, perhaps, to the reference to the applicant's theft of the car, this was in my view a perfectly appropriate direction to give to the jury. The matter had been discussed with trial counsel before such direction was given and trial counsel had agreed that it was an appropriate direction to give. Furthermore, no complaint was made by trial counsel in respect of such direction. The ground now advanced by Mr. Boyce was one of the amended grounds in respect of which leave was sought. In my view the ground has no merit but, even if it did have some merit, I would not give the leave sought to include this ground. In so refusing leave I would adopt the views expressed by Callaway, J.A. in R. v. Wright[5]. This Court should be slow to permit the late amendment of grounds alleging misdirection where counsel, absorbed in the atmosphere of the trial, has perceived no injustice in what was done or said by the judge.

68. The final matter raised by counsel under this "topic" was in support of ground 17. That ground asserted that the judge had erred in failing to direct the jury "that they had to be satisfied beyond reasonable doubt that the applicant was responsible for the theft of the Pajero motor vehicle (before they could conclude that he was in possession of the gun from 1992)", or alternatively in failing to direct them as to the limited use which they could make of that evidence. At the end of the day, Mr. Boyce did not pursue the first "limb" of this ground, but confined himself to a submission that the jury were given insufficient directions as to the use which they could make of Wolters' evidence of the applicant's admission that he had stolen the motor vehicle. He contended that the evidence revealed the commission of an offence by the applicant other than that charged and that the judge should have told the jury that they should not use such evidence, if satisfied of its truth, to conclude that the applicant was guilty of the crime charged. That submission, in my view, cannot be accepted. On more than one occasion the judge told the jury of the care they needed to take in using the evidence of Wolters and specifically told them that they should disregard the evidence that the applicant was a person who stole cars. In the context of his Honour's general directions to the jury that they must confine themselves to the relevant facts which he gave to them and not be swayed prejudice, there was no possibility in my view that the jury was likely to engage in the impermissible line of reasoning which this ground suggests. No exception was taken to his Honour's directions of the type now contended for which, in itself, is an indication that counsel, absorbed in the atmosphere of the trial, did not regard the directions as being deficient in this respect.

Topic 2 - Lies told by the applicant with respect to the property at Arnold West (Grounds 1 and 15)

72. Each of these grounds relates to the evidence given of the circumstances in which the applicant had leased the premises in Arnold West from which the police had recovered the charred remains of a tracksuit, of running shoes, and of two Skorpian "dye-bombs" upon which the Crown relied to implicate the applicant in the robbery of the Bank of Melbourne. As I have previously stated, evidence was led from the owner of this property (one Smith) who said that he had leased the property to the applicant for a 12 month period and that the applicant had identified himself by the pseudonym "Thomas Johnstone", saying that he was a "criminology student" who wanted peace and quiet whilst completing a thesis on criminology. Smith had leased the property to the applicant on 19 June 1995, about a month before the alleged robbery occurred. Trial counsel for the applicant had submitted that his Honour ought to exclude the evidence of Smith on the basis of "unfairness" - such "unfairness" said to arise from the fact that the applicant had good reasons for concealing his true identity from Smith; namely his antecedents and the difficulties which they would cause in seeking to rent suitable accommodation if his true identity were revealed. It was contended further by counsel that the evidence had no probative value in respect of a robbery which occurred a month later and that the only real relevance of the evidence could be the applicant's occupation of the property on 24 October 1995 when the charred remains of the alleged incriminating material were found in the incinerator. It was further contended that the admission of the evidence would be "unfair" because the applicant would not be in a position to realistically explain in his evidence before the jury why he had lied without causing prejudice to his case. The trial judge declined to exclude the evidence in the exercise of his discretion on the basis that the circumstances in which the applicant had leased the property had a probative value above and beyond that asserted on his behalf. His Honour accepted the Crown contention that the real value of the evidence lay in the fact that it would be open to the jury to accept that the applicant had leased the premises in a remote location at which he could dispose of incriminating material - that is as a "robber's hideaway"; and that he could do so without attracting unnecessary attention. Furthermore his Honour was of the view that it would not be "unfair" for the Crown to lead this evidence because it would be open to the accused to explain that he had reasons other than the ones given for renting the property. In the event that any such explanation might lead to prejudice, his Honour concluded that that could be countered by an appropriate direction.

75. Mr. Boyce contended in this Court that his Honour's discretion had miscarried in the sense that the evidence had only a "tenuous relevance" and that his Honour was in error in concluding that any prejudice flowing to applicant could be overcome by appropriate directions. Once again I am not persuaded that the exercise of his Honour's discretion miscarried. It was, in my view, open to his Honour to conclude that the evidence of the renting of the property in the circumstances described had far more probative value than the applicant's trial counsel was contending for. No evidence had been led before his Honour upon the exclusion application to suggest that there were only "innocent reasons" for renting the property in a false name. I can find no error in the manner in which the learned trial judge dealt with this matter and I would reject this ground of appeal.

78. Ground 15 of the grounds of appeal asserted that the trial judge erred in failing to adequately direct the jury as to the proper use of Smith's evidence. Mr. Boyce submitted that the evidence of Smith was, effectively, evidence of lies told by the applicant upon which the Crown relied to establish a consciousness of guilt of the crime charged. Accordingly, so Mr. Boyce contended, his Honour should have given the jury "an Edwards direction"[6]. In my view, the submission misconceives the purpose for which the Crown was using the evidence of the circumstances surrounding the rental of the property in Arnold West. In so far as those circumstances reveal that the applicant told lies to Mr. Smith for the purpose of securing the rental of the property, those lies were not being relied on by the Crown to evidence consciousness of guilt on the part of the applicant of the crime with which he was charged, but were rather being relied upon by the Crown as evidence of the preparation being made by the applicant for the commission of a criminal enterprise. Indeed this was the use which the jury were told they could make of the evidence; and they were further told that they could not use any lies told by the applicant to Mr. Smith as "implied admissions" of guilt. No exceptions were taken by trial counsel to the directions given by his Honour. This perhaps is not surprising because this Court in Kotzmann (No. 1)[7] had specifically decided the same point raised by Mr. Boyce against the interests of the applicant. Indeed Mr. Boyce appreciated that his submissions "entail an attack on the ruling of this Court found in the reasons of Batt, J.A. in R. v. Kotzmanm (No. 1)". For my own part I find the reasons of Batt, J.A. persuasive, and accordingly I would reject this ground of the application.

Topic 3 - Circumstantial Evidence - (Grounds 9, 10, 13, 14, 16 and 18 of the amended Grounds)

82. These grounds were relied upon by Mr. Boyce to support a contention that the judge erred in failing to accede to the submission by trial counsel for the applicant that the jury should be directed that, before they could convict the applicant of committing the alleged robbery, they should be satisfied beyond reasonable doubt that the gun (Exhibit D) was the one used in the robbery; and likewise be satisfied beyond reasonable doubt that the burnt remnants of the dye bombs (Exhibit G) had come from the Bank of Melbourne during the robbery committed on 29 July 1995. Additionally, under cover of these grounds, Mr. Boyce submitted that the judge erred in failing to direct the jury that they should be satisfied of such matters beyond reasonable doubt before they could use either of these circumstances upon which the Crown relied as proof of the applicant's guilt. The essence of Mr. Boyce's submission was that the circumstances relating to the identification of the weapon used by the robber and the provenance of the charred remnants of the dye bombs recovered from Arnold West were so dominant amongst the circumstances relied upon by the Crown in proof of its case against the applicant that they should have attracted the type of direction for which counsel contended. This was so, counsel submitted, even though the type of circumstantial case made by the Crown was that commonly referred to as a "strands in a cable" case.

85. Once again, in the course of making these submissions, counsel conceded that they were in direct opposition to the decision to which this Court had come in the case of Kotzmann (No.1)[8]. Mr. Boyce conceded that the decision in Kotzmann (No. 1) ought to be followed "unless it can be demonstrated that it is clearly wrong".

88. Quite apart from the fact that this Court (sitting as a bench of three judges) would be reluctant to disturb one of its own decisions so recently given upon the very point now in issue[9], I have for my own part no doubt that the directions given by the judge to the jury as to how they should approach the evidence before them were accurate and in accordance with the authorities referred to in R. v. Kotzmann (No. 1). It is true, as Mr. Boyce points out, that his Honour did not tell the jury that they had to be satisfied of any particular circumstance beyond reasonable doubt before using that circumstance in determining the applicant's guilt. What he did tell the jury was that they could only convict the applicant if they were satisfied beyond reasonable doubt, upon the combined force of such circumstances as were established to their satisfaction, that the applicant was the robber. Consistently with those instructions he also told the jury that it was the Crown's burden to exclude beyond reasonable doubt any hypothesis reasonably consistent with innocence arising from the circumstances so accepted. As I understood his arguments, Mr. Boyce did not take issue with the judge's directions save and accept to the extent to which I have previously alluded. However, it seems to me that a direction to the jury that one or more of the circumstances relied upon by the Crown should be proved to their satisfaction beyond reasonable doubt before they could use it in determining the guilt of the prisoner would be inconsistent with the jury's task of determining guilt from the combined force of the circumstances proved, as distinct from looking at those circumstances in isolation. In a circumstantial case such as this one it is the accumulation of circumstances, each perhaps lending weight to the other, which must be looked at by the jury for the purposes of determining whether the Crown has satisfied them, to the requisite standard, of the guilt of the accused; and whether the Crown has excluded to their satisfaction beyond reasonable doubt all hypotheses reasonably consistent with innocence. No doubt the identification of the weapon used in the robbery as the weapon which the Crown alleged to be in the possession of the applicant was a significant circumstance; as was the provenance of the dye bombs, the remnants of which were found in the incinerator at the premises leased by the applicant. But so too was the obvious height and build of the robber depicted in the bank security photographs and attested to by the bank staff, which clearly showed a person of similar characteristics to the applicant - a fact which may well have been regarded by the jury as a significant one. Indeed, it had been noted by the prosecution that some of the security photographs displayed a bulge under the back of the balaclava worn by the robber which the jury might have considered to be consistent with the containment of the "pony-tail" which is part of the applicant's hairstyle. Then there was evidence of the similarity of the apparel, particularly the track suit pants and the running shoes worn by the robber, with the charred remains of fabric and shoe soles recovered from the applicant's incinerator. There were other circumstances as well including the recovery of the balaclava from the bag said to be in the possession of the applicant, the "Balance" windcheater which was handed to the police by Mrs. Hasiotis and said to be similar to the garment being worn by the robber; and there were the circumstances in which the applicant had secured for himself the premises in the remote locality of Arnold West. In such a circumstantial case, where none of the circumstances relied upon to prove guilt was (as this Court said in Kotzmann (No.1)) an indispensable link in a chain of sequential reasoning, it is the function of the jury to determine the weight which should be given to the circumstances relied upon by the Crown and whether, at the end of the day, the combination of circumstances which they accept are of sufficient strength to prove the guilt of the accused beyond reasonable doubt. Nevertheless Mr. Boyce contended that in this trial, where the accused had led evidence from an expert suggesting that there were dissimilarities between the gun wielded by the robber (as shown in the photographs) and the gun recovered from the applicant's possession (Exhibit D), it was incumbent upon the judge to, at least, direct the jury that they should be satisfied on the balance of probabilities that exhibit D was in fact the gun wielded by the robber before they could use that circumstance in determining guilt (my emphasis). Likewise, as I understood him, he submitted that because material from the Bureau of Meteorology suggested that there had been rain in the vicinity of Arnold West shortly before the material in the incinerator was recovered, and that the dye recovered from the incinerator was inconsistent with the condition in which it would have been found if it had been penetrated by water, the jury should have been instructed that they could only use the circumstance of the applicant's possession of the remnants of the dye bombs if they were satisfied on the balance of probabilities (my emphasis) that such remnants came from the "bombs" in the possession of the Bank of Melbourne on the 29 July 1995. Those submissions, in my view, cannot be accepted. The applicant's purpose in leading such evidence (which had not been led at the previous trial) was to cast doubt on the circumstances relied upon by the Crown. No doubt it was evidence which the jury could take into account (as they were directed here to do) in determining the strength of the Crown's circumstantial case and whether, at the end of the day, the Crown had excluded to their satisfaction beyond reasonable doubt all hypotheses reasonably consistent with innocence. But the mere fact that the accused leads such evidence before the jury does not alter the nature of the case being made by the Crown or make it incumbent upon the judge to direct the jury that one or more of the particular circumstances relied upon by the Crown has to be given separate consideration and proved to a particular standard before it can be taken into account by the jury[10].

91. For the reasons given I am the view that the judge's directions as to the way in which the jury should approach the circumstantial case and the directions which he gave as to the drawing of inferences were in accordance with proper principle and in accordance with the decision of this Court in R. v. Kotzmann (No. 1). In my view these grounds of appeal should be rejected. I should perhaps note that counsel for the applicant raised an argument (which was said to be directed to Ground 14) that the directions given by the judge in respect of the "Balance windcheater" were erroneous and unfavourable to the applicant. Ground 14 was one of the amended grounds in respect of which counsel had sought the Court's leave. During the course of the hearing of the application counsel, having read the written submissions of the respondent, no longer sought to rely upon this ground of appeal and accepted that the judge's directions given to the jury in respect of the "Balance windcheater" were indeed favourable to the accused. No more need therefore be said about this ground save and except that I would not grant the application to amend the grounds by adding ground 14.

95. This ground asserts that the learned trial judge erred in law in declining to exclude the expert opinion evidence of a number of witnesses who gave evidence that the "Balance windcheater" (Exhibit C) was similar to the upper garment worn by the robber as shown in the bank security photographs (this evidence came from Zanetti, Chisholm, Jamieson and Del Conte). There was also evidence from Miss Callaghan and Mr. McKenzie (each of whom had worked for Adidas) that the pants being worn by the robber as disclosed in the bank security photographs were "Adidas Equipment 2" garments. This evidence gained significance through the evidence of a Mr. Ross, a forensic scientist, who said that material recovered from the contents of the incinerator at Arnold West was of the same weave and indistinguishable from material contained in "Adidas Equipment 2" track suit pants. There was further evidence from one John Dines, who was director of a sportswear company which, in 1995, imported "Asics" brand footwear into Australia. He identified the footwear worn by the robber as disclosed in the bank photographs as "Asics cross-trainer shoes of Gel V2 model" which were available in Australia from June 1994. This evidence became significant when linked with the evidence of one Trevor Evans (a crime scene examiner employed by the Forensic Science Centre in Melbourne) who was an expert in "shoe sole patterns" and shoe characteristics. The evidence of Evans was that he had examined the remnants of the burnt shoe recovered from the incinerator at Arnold West and he expressed the opinion that those remnants had come from an "Asics shoe" and had the characteristics of the "Gel V2" model.

98. At the outset of the trial counsel for the applicant had submitted to the trial judge that he ought to exclude this body of evidence in the exercise of his discretion. It was contended that its probative value was slight and outweighed by its prejudicial content and it was further said that that quantity of the expert evidence so given would have a tendency to overbear the jury and render the trial unfair. His Honour declined to exclude the evidence on the basis that, although it did not and could not, by itself, prove that Exhibit C was in fact the windcheater worn by the robber or that the tracksuit and shoe remnants taken from the incinerator were remnants of the tracksuit pants and shoes worn by the robber, the evidence nevertheless constituted circumstances which the jury were entitled to take into account together with the other evidence before them in determining the ultimate issue as to the identity of the person who committed the robbery. His Honour gave careful directions to the jury as to the manner in which they should approach this body of expert evidence[11].

101. In the course of this application counsel for the applicant contended that the comparison of the apparel worn by the robber with that tendered in evidence was a jury question and not a question for expert evidence. It was said that, whilst the witnesses may have been qualified to express an opinion as to the make and style of the garments they were shown, it was not within their field of expertise to make a comparison between those garments and the garments revealed as being worn by the robber in the photographs. This was not a basis upon which the judge had been asked to exclude the evidence. In my view this argument lacks substance. It is also my view that his Honour was correct in allowing the evidence of these witnesses to go before the jury. Only people who are expert in the manufacture of the "Balance" windcheaters could express an opinion (as was in fact expressed) that the windcheater demonstrated to have been worn by the robber was in fact the same model of windcheater represented by Exhibit C. Furthermore, without the evidence of those expert in Adidas fabrics and the models of Asics shoes, the jury would have been in no position to come to a conclusion that the model of tracksuit pants worn by the robber and the type of shoes in which he was clad were comparable to the remnants of fabric and shoes found in the incinerator. Of course it is true that the evidence, by itself, could not lead the jury to a conclusion that the apparel worn by the robber was in fact the apparel or remnants thereof contained in the exhibits. However, as his Honour noted, the fact that the robber was wearing a windcheater of the same make and style as that found by Mrs. Hasiotis shortly after the applicant had stayed in her premises, and the fact that the robber was wearing track suit pants and shoes of the same make and style as the remnants found in the applicant's incinerator, was evidence which the jury was entitled to take into account with other circumstances in determining the ultimate question of the true identity of the robber. The evidence was led not to identify any particular item of apparel, but to identify the types of apparel worn by the armed robber and, as is apparent, the expertise to give such evidence is not "an expertise" shared by members of the general community. Thus it was necessary "background evidence" to the forensic and other evidence from which the jury could infer that the apparel worn by the robber was similar to that found in the possession of the applicant, some of which he had attempted to destroy.

104. Once again, Ground 4 of the amended grounds of appeal - in support of which these submissions were made - was the subject of an application for leave to amend. Because, in my view, the ground has no substance I would refuse that application.

108. This ground asserts that:- "the learned trial judge erred in law in declining to exclude the evidence of the applicant being under surveillance." This ground also was the subject of application for leave to amend. Counsel addressed no oral evidence in support of it but said that he was content to rely upon his written submissions. As I previously indicated the applicant was under police surveillance immediately prior to his arrest on 23 October 1995. At the trial the applicant's counsel had objected to any of the surveillance material going before the jury and, indeed, the Crown called no police evidence of that surveillance, but relied upon admissions made on the applicant's behalf of his relevant movements on the day in question. Nevertheless, the prosecutor, at a later point in the trial, wished to put in evidence certain surveillance photographs for the purpose of demonstrating similarities between the windcheater (Exhibit C) and the garment worn by the applicant on 23 October. His Honour allowed those photographs to go in for that purpose on the basis that no prejudice could flow to the applicant from their use. In this court counsel for the applicant did not allege that there was prejudice arising from the use of these "surveillance photographs" but contended that his Honour should have excluded them on the basis that the reason for their admission (namely establishing a link between Exhibit C and the applicant) was a matter which the jury could not determine adversely to the applicant.

111. In the circumstances which confronted his Honour at the time of the application for exclusion, there was a basis upon which it might have been open to the jury to conclude that the windcheater being worn by the applicant on 23 October 1995 was the same windcheater as that comprising Exhibit C. As the evidence subsequently unfolded, it seems to me that the probative value of any comparison between Exhibit C and the windcheater being worn by the applicant on 23 October became minimal. The better view of the whole of the evidence - as I understand it - is that the applicant could not have been wearing Exhibit C on the day upon which he was arrested. Indeed that was the view which his Honour ultimately suggested to the jury in the course of his directions. But that is not to say that the exercise of his Honour's discretion to permit the Crown to lead the evidence of the surveillance photographs for this purpose was erroneous. His Honour was correct in my view to conclude that no prejudice flowed to the applicant from the admission of these photographs because it must have been obvious to the jury in any event that, by 23 October 1995, the police suspected the applicant of being involved in the robbery of the Bank of Melbourne. Because prejudice was the only basis upon which his Honour was asked to exclude the evidence and because - at the time when the application was made - there was a basis upon which the jury might conclude that the windcheater then being worn by the applicant was the same windcheater as Exhibit C, it is understandable why his Honour ruled against trial counsel's application to exclude those photographs. In the long run, any basis for such a comparison had disappeared and that fact must have been well apparent to the jury. Indeed towards the conclusion of the trial the photographs, which had been initially tendered for identification only, were, with the consent of the applicant's counsel, admitted into evidence absolutely. I am accordingly not persuaded that a miscarriage of justice flowed to the applicant as a consequence of the admission of the photographs and I would reject this ground of appeal and refuse the leave sought to amend the grounds to include it.

The final topic - Unsafe and Unsatisfactory (Grounds 7 and 21)

115. These grounds assert that the verdict of the jury was unsafe and unsatisfactory. It was not contended by counsel for the applicant before this Court that the nature and quality of the evidence was such that the jury could not reasonably have convicted the applicant[12]. Rather it was contended that the aggregate of errors asserted in the previous grounds, combined with the judge's failure to discharge the jury upon applications made during the trial, rendered the conviction unsafe. For the reasons which I have previously given for rejecting the specific grounds of appeal argued on this application, I would reject this ground in so far as it relates to the "aggregation of errors". It remains to consider that branch of this ground which asserts that the failure of the trial judge to discharge the jury, upon application made, caused the trial to miscarry.

118. Trial counsel for the applicant made the first application to his Honour to discharge the jury following certain non responsive answers which had been given by the witness Wolters during the course of her cross-examination. The witness, as I have previously indicated, was known to harbour a deep antipathy towards the applicant with whom she had kept company in South Australia in 1992 and 1993. It was this antipathy which became the subject of cross-examination on behalf of the applicant, no doubt in an endeavour to display to the jury her unreliability and to found a comment that she was unworthy of belief. During the course of cross-examination counsel for the applicant had put to the witness (so far as is relevant) the following:-

"..what I am putting to you is that you disliked him sufficiently to go to the police in relation to the clothing he was wearing.."

Witness: "I didn't...go to the police, they contacted me."

Question: "They contacted you and you were happy to cooperate and look at the clothing."

Witness: "Yes, because he is a monster he doesn't deserve to be out and about"

Question:- "What in fact they did was they approached you and told you that a car had been stolen in South Australia and had been found in Victoria."

Witness: "I can't exactly remember what they said to me.."

Question: "They said that there was a weapon from that car found at Mr. Kotzmann's grandma's house."

Question: "They asked you whether he told you that he had stolen the car and driven it to Melbourne."

Witness: "..Well, I think that would have been around the way they said it, yes."

Question: "All right, having given you that information you said to them that you ..you said to the police.."OK he told me about stealing a car."

Question: "Don't know about the exact words, lets leave it roughly, words."

Witness: Yes it was just .. because he has stolen so many cars I don't know what you're talking ... like how to answer that."

137. Counsel for the applicant then applied to his Honour for a discharge of the jury on the grounds that the fairness of the trial had been irreparably prejudiced because the answers were unresponsive and were designed to indicate to the jury that the accused was not a person who should be "allowed in the community" and that he was a person who "stole motorcars". His Honour declined to discharge the jury on a number of bases:-

a) That it was apparent from evidence given previously by the witness that she had developed an implacable hatred of the accused and that this was indeed what counsel was hoping to establish;

b) That the answers furnished to the applicant a basis to argue before the jury that the witness was wholly unreliable and would seize any opportunity to say something adverse about the accused;

c) That any prejudice which might have flowed to the accused could be adequately catered for in an appropriate direction to the jury;

d) That the allegation of previous discreditable conduct by the accused could also be dealt with by appropriate directions as "falling into the category of adverse matters which the witness was prepared to say about the accused even though not relevant".

e) That this was the fourth trial of the accused; that it had proceeded to a point where the Crown case had almost finished; and that those were factors which he needed to take into account in determining whether there was a "high degree of need" to discharge the jury in the events which had happened.

145. I am not persuaded that his Honour's discretion miscarried. It seems to me that the circumstances to which he adverted justified his conclusion that there was no "high degree of need" calling for the discharge of the jury[13]. In the course of his charge his Honour did indeed give to the jury a very strong warning about the way in which they should approach the evidence of the witness Wolters, referring to her admissions that she "hates the accused" and her reference to the accused as a "monster" who "should not be out and about". He told the jury that the evidence of Wolters in respect of these matters must be "put out of their mind" as matters "quite irrelevant to the issues in this case". He again reminded the jury that the issues in the case were to be decided on the relevant evidence and without resort to prejudice or bias that might be created by the remarks of Wolters. He told them that the hatred harboured by the witness Wolters supplied a motive for her to tell lies about the accused and that her evidence may as a consequence inherently "lack truth and reliability"; and that she may be using the occasion "to get her own back at the accused". His Honour further told the jury that they should scrutinize her evidence carefully and should look for other evidence which supported her testimony before they should act on it. Although his Honour made no specific reference, in this part of his charge, to the evidence of Wolters tending to discredit the accused by prior conduct, there can be little doubt that the strength of the warning embraced the whole of the evidence which she had given. As I have previously said (para [20]), his Honour had previously told the jury to disregard the claims by Wolters that the applicant was a person who "stole cars".

148. I am, accordingly, not satisfied that the fairness of the applicant's trial was irreparably prejudiced by the unresponsive answers given by the witness Wolters or that his Honour was in error, in the circumstances which confronted him, in declining to accede to the applicant's submission that the jury should be discharged.

151. A further application was made by the trial counsel for the accused to discharge the jury by reason of events which occurred at the very end of the Crown case. It had become apparent by that time that the plastic Myer bag, which had been seized on the 23 October 1995, had been mislaid and the Crown was confronted with the task of identifying the "continuity of exhibits" which had been taken from the motor vehicles at the house of the applicant's grandmother in Burke Road. For this purpose the prosecutor sought to put before the jury certain entries recorded in the police "Property Book" identifying the receipt of the relevant items of property seized in the course of executing the search warrant and their subsequent movements. In the course of doing that, certain pages of the Property Book had been marked with "tags" and passed to the jury during the course of the examination of the police witness, Grainger. The Property Book was then recovered by the prosecutor and the "tagged" pages photocopied in order that they could be exhibited. After that had been done counsel for the applicant drew attention to the fact that, on a page of the property book unrelated to the "tagged" pages, was an entry of property which had been seized from the applicant's premises at Arnold West; an entry which demonstrated that two shotguns and a quantity of shotgun cartridges had been seized from that property. Counsel had submitted that those entries, if seen by the jury, would be highly prejudicial, particularly in the light of the fact that another police witness had given evidence that one of the bags recovered by police from the applicant's cars in Burke Road had included a "blue balaclava" and a "shotgun shell". His Honour, whilst expressing the view that little prejudice could flow from the fact that shotguns had been recovered from a farm property, said that he was prepared to ask the jury whether they had looked at any pages in the property book other than the ones which were "tagged". Although Counsel had tentatively asked for a discharge of the jury, it would seem from a reading of the transcript that he was prepared to acquiesce in this proposal. Accordingly, on the following morning, his Honour addressed the jury as follows:-

"Madam forewoman and members of the jury, I just want to clarify with you about Exhibit DD [the "Property Book"] which was given to you to look at. I just want to make sure just what pages you were looking at. Did you just look at those pages with a yellow tag or did you look at any other pages?"

The forewoman of the jury responded that the jury had looked "just at the ones with the yellow tags" and his Honour confirmed that that was so with each member of the jury. His Honour then put it to trial counsel for the applicant that:- "There is nothing more to be said, I think, on the subject" - a view which it appears was accepted by counsel for the applicant.

156. Although, upon this application, counsel for the applicant sought to contend that irreparable prejudice had flowed to his client as a result of the combination of the events which led to applications for discharge, I am not satisfied that that is so. It seems to me that his Honour was entitled to reject each of the applications and to deal with the matter on each occasion in the way in which he did. I would accordingly reject these grounds of appeal. The result is that I would reject the application for leave to appeal against conviction.

161. The application for leave to appeal against sentence was based on three grounds:

1. That the total effective sentence was manifestly excessive.

2. That the learned trial judge erred in formulating the amount of pre-sentence detention that the applicant was entitled to have declared.

3. That the learned judge failed or adequately failed to take into account the effect that delay in the legal proceedings had on the applicant.

Ground 3 was argued, in essence, as a particular of Ground 1. The submission was that this trial was the third trial of the applicant on this charge and that, as a consequence, he had been in custody in respect of it since October 1995, save for the seven months during which he had been on parole. It was said by his counsel that the pressures imposed upon the applicant as a consequence of the processes had not been duly taken into account by the judge. Having regard to the comments which his Honour made during the plea, and the remarks which he made when imposing sentence (to which I have referred in paragraph [11] of this judgment) it seems to me that this criticism is scarcely open.

168. In support of the second ground of the application, counsel contended that the judge should have declared, pursuant to s.18 of the Sentencing Act 1991, a period "approximately 6 months longer" than the period of 43 days in fact declared. His Honour had declared the period of 43 days because it seems to have been agreed before him that that was the period during which the applicant had been retained in custody beyond his date of eligibility for parole fixed by this Court on 19 March 1999. It was put that the applicant's "eligibility date" was in fact some months before the date on which he was in fact paroled (namely 22 October 1999) and that this Court should now declare the additional period as time spent in custody awaiting the re-trial for the robbery of the Bank of Melbourne.

171. The submission misconceives the Court's function under s.18 of the Sentencing Act. Notwithstanding the prosecutor's "concession" of 43 days, the applicant was not being detained in custody beyond his "parole date" awaiting his trial on this charge; he was detained because the Adult Parole Board had not determined, in the exercise of its discretion, to recommend his release on parole pursuant to the orders which had been made by the Court of Appeal when re-sentencing the applicant on the counts charged in the second presentment. Until such time as the Parole Board determines that a prisoner (in this case the applicant) should be released, the sentence being undergone continues to be served. No doubt the applicant received a "wind-fall" when the prosecutor agreed to the declaration of 43 days on the speculative basis that the applicant was being detained "on account of the re-trial". Indeed speculation was all that it could have been because all that was known was that the applicant was held beyond his "eligibility date". That, no doubt, could have been for many reasons. But the fact that it occurs does not mean that time spent in prison beyond that eligibility date is no longer time spent in serving the current sentence. There is therefore no basis upon which this Court can declare the further period which counsel has submitted is "owed" to the applicant. Accordingly this ground must be rejected.

174. As I previously said, his Honour was faced with a very difficult sentencing problem. The essence of his problem was to ensure, in the light of the Court of Appeal's sentence imposed in respect of the offences charged in the second presentment, that the sentence which he imposed should not offend the principal of totality. It is clear that, if the Court of Appeal had affirmed the conviction in respect of the sole count charged on the first presentment and had affirmed the sentence imposed by the first trial judge of 7 years in respect of that count, it is unlikely that the Court would have cumulated the whole of the total sentence which it found to be

appropriate for the counts on the second presentment (namely 5 years). This was clearly the problem which confronted the judge at the second trial, and which he appears to have recognised having regard to the discussion which he had with counsel during the hearing of the plea. It was the reason why he set a head sentence of 5½ years, ordered that that sentence run concurrently with the unexpired portion of the head sentence (approximately 6 months) set by the Court of Appeal and directed that the applicant serve a period of 2½ years before becoming eligible for parole. Although, during the course of the application, I was inclined to think that the sentence imposed was slightly higher than the one which the judge should have imposed without infringing the principles of totality, I am now of the view that it was within the range open to his Honour to fix. Its effect is that the applicant is required to serve a total head sentence of approximately 10 years on all counts on the two presentments and, having regard to their seriousness, it does not seem to me that the sentence which his Honour imposed can be seen to be manifestly excessive. Accordingly, I would reject the application for leave to appeal against sentence.

179. I agree, for the reasons stated by the President, that these applications should be dismissed.

184. I agree for the reasons advanced by Winneke, P. in his judgment.

[1] R. v. Kotzmann [1999] VSCA 27; [1999] 2 V.R. 123.

[2] See R. v. Callaghan [2001] V.S.C.A. 209 at [18] ff.

[3] See Rozenes v. Beljajev [1995] VicRp 34; [1995] 1 V.R. 533 at 548.

[4] See R. v. Anderson [2001] 1 V.R. at 13-14.

[5] [1999] VSCA 145; [1999] 3 V.R. 355 at 360-361.

[6] See Edwards v. R. [1993] HCA 63; (1993) 178 C.L.R. 193.

[8] supra, at 137-8, per Callaway, J.A. and 138-141, per Batt, J.A. (with whose reasons the Chief Justice agreed).

[9] See R. v. Tait [1996] VicRp 48; [1996] 1 V.R. 662 at 666; Farrar v Western Metropolitan College of T.A.F.E. [1991]1 V.R. 224 at 228-9.

[10] See Edwards v. R. [1993] HCA 63; (1993) 178 C.L.R. 193 at 210; Shepherd v. R. [1990] HCA 56; (1990) 170 C.L.R. 573 at 579.

[11] cf. Kotzmann (No.1), supra, at pp.153-6 per Batt, J.A.

[12] cf. M. v. R. [1994] HCA 63; (1994) 181 C.L.R. 487 at 494.

[13] R. v. Boland [1974] VicRp 100; [1974] V.R. 849 at 866; Crofts v. R. [1996] HCA 22; (1996) 186 C.L.R. 427 at 440-1.