R v Kuster [2008] VSCA 261

Mr S Ward, Acting Solicitor for Public Prosecutions

1 The applicant was found guilty by a Supreme Court jury of one count of murder and one count of arson. He was sentenced to 22 years' imprisonment on the first count and three years' imprisonment on the second, to be served concurrently with the sentence on count 1. The total effective sentence was therefore 22 years' imprisonment. The sentencing judge fixed a minimum term of 17 years and 6 months before the applicant would be eligible for release on parole. He now seeks leave to appeal against his conviction on both counts.

2 The applicant had been in an 'on-and-off' relationship with Kristina Krajina since 1993. They had lived together between 1993 and 1998 and their son, Shayne, had been born in 1996. On 22 January 2004, Krajina and Shayne came to stay with Leo Philippone ('LP') at his house in Newborough, near Moe. The applicant was also staying there. Krajina had known LP for some months and had been to his house previously with the applicant. Krajina and Shayne stayed with LP until the morning of 27 January 2004, when Krajina left with Shayne to return to Melbourne, where she had to begin work at a brothel in Brooklyn at 2.30 pm. After Krajina's departure for Melbourne, there was some phone contact between Krajina and LP, and between Krajina and the applicant.

3 On 29 January 2004, soon after midnight, the police and fire brigade were called to the house in Newborough. The house was on fire. The fire was subsequently put out and the body of LP was found on a bed in the house, covered with debris. The body was extensively burnt and charred. An autopsy revealed a number of stab wounds and a number of fractures to the skull. It was determined that LP had been dead before the fire began.

4 The Crown case was that the applicant had murdered LP after Krajina's departure. Central to the Crown case was evidence given by Krajina that the applicant, on 31 January, admitted to her that he had 'done' LP. Krajina recounted the following admissions made by the applicant. He told her that he had had a conversation with LP, in which LP had said he would kill his own son and would also kill Krajina and Shayne. The applicant said he had then struck LP on the head with a brick, after which he had stabbed LP 15 or so times - once to the head and the rest to the body. This, he said, had occurred in LP's bedroom. The applicant had obtained the knife from the kitchen. It was night time when he left the house. The applicant said that he had decided to get rid of the evidence. For that purpose, he had returned to the scene the following night, under cover of darkness, and lit a fire at the house in the bedroom where LP's body had been left.

5 As will appear, a number of the grounds on which the applicant relied concern the evidence given by Krajina and the directions given by the trial judge in relation to the jury's use of that evidence.

The learned trial judge erred by directing the jury that the expert evidence (suggesting the deceased had suffered a fractured skull by means of the application of blunt force) was capable of corroborating the evidence of the witness Krajina.

6 The applicant advanced two contentions under cover of this ground. It was said, first, that the expert evidence was incapable of constituting corroboration as it did not independently implicate the applicant in the commission of the crime; and secondly, that the expert evidence did not render more probable the witness's evidence that the applicant had confessed to her.

7 Although it was not suggested that Krajina was an accomplice, the trial judge concluded that she was a 'dangerous witness' and gave what is sometimes known as a 'tainted witness' or 'Faure' warning.[1] The jury were told that it would be dangerous to convict on her evidence, and were instructed to look for corroboration. The judge identified evidence capable of constituting corroboration of her account.

8 Such a warning is usually given where the witness falls within an identified category of witness whose evidence is recognised as potentially unreliable or untrustworthy.[2] The need for the warning arises because of a group of factors relating to the witness which call for the exercise of a high level of care before reliance is placed upon the evidence. The risk to which the warning is directed is the risk that the jury will not appreciate the dangers which arise from the presence of those factors.[3] The direction therefore becomes necessary in order to avoid a perceptible risk of a miscarriage of justice.[4]

9 The Crown submits that such a warning was unnecessary in the present case and was unduly favourable to the applicant as the witness was not to be treated as inherently dangerous and requiring corroboration. There is considerable force in this contention.[5] The deficiencies in the witness's evidence which bore upon its reliability would have been readily apparent to the jury. As in R v Georgiev,[6] there were no particular features of the witness, or of the circumstances in which the confession was said to have been made to her, which made necessary a 'dangerous' or 'tainted witness' warning. At the same time, having regard to the striking variations in the witness's different accounts, it is easy to understand that the trial judge viewed her as potentially unreliable and decided that such a warning was necessary. In taking a precautionary approach, her Honour was acting in conformity with her duty, by warning the jury of the danger of convicting on evidence which she considered potentially unreliable.

10 The applicant submits that Krajina's account was pivotal to the Crown case. Hence, regardless of whether in law she was a 'dangerous witness', if the trial judge was in error in directing the jury that the evidence of the experts was capable of corroborating her evidence, there was a miscarriage of justice.

11 As already mentioned, Krajina gave evidence that, on 31 January 2004, the applicant had told her that he had killed the deceased and, in doing so, had picked up a brick and smashed the deceased on the head. She first related the applicant's confession, including these details, to investigating police on 23 February 2004. Expert evidence was led by the Crown from two experts who had examined the deceased's skull and jaw. They found that there were fractures produced by severe force caused by a blunt impact trauma. The police were told on 30 January, after completion of the autopsy, that the deceased had been stabbed a number of times and had fractures to the skull. It appears that it was assumed that the deceased died from the stab wounds. The skull fractures were considered to be the result of falling debris in the fire. The pathologist conveyed that view to the investigating police. It was not until after Krajina had relayed the applicant's confession to investigating police that the experts and investigating police came to the conclusion that a severe blow to the head with a brick was a more likely explanation for the skull fractures.

12 The trial judge defined corroboration for the jury. Her Honour instructed them that the expert evidence of the fractures to the deceased's skull could corroborate Krajina's evidence if they were satisfied that, at the time Krajina made her statement to the police on 23 February 2004, she was not in a position to know that the deceased had suffered fractures to his head.

13 Counsel for the applicant, in this Court, accepted that the expert evidence was credible, came from a source independent of the witness and showed that the crime was committed. He submitted, however, that the evidence was not capable of corroborating Krajina's evidence as it did not 'implicate the accused in the crime charged by tending to show both that the crime was committed and that the accused committed it'.[7] The applicant was permitted to file a supplementary submission, leave to do so having been reserved, in which it was further contended that evidence cannot gain its corroborative status by reference to evidence that requires corroboration because that would be at odds with the notion that the corroborative evidence must independently show that the crime was committed and that the accused committed it.

14 Whether evidence amounts to corroboration is governed by the fundamental principle that it must be evidence - independent of the witness to be corroborated - which tends to confirm the evidence of that witness that the crime was committed and that the accused committed the crime.[8] This principle has from time to time been misconceived as requiring the corroboration evidence itself to be probative of the fact that the accused committed the crime. Vincent JA in R v Taylor[9] noted that there has been a 'remarkable persistence of the misconception' that evidence relied upon as corroboration 'must itself be probative of guilt.' The present argument rests upon this very fallacy.

15 In Doney v R ('Doney'), the corroborative evidence did not itself directly link the accused to the crime charged.[10] The High Court rejected a submission that the evidence could not be corroborative because it did not implicate the accused in the offence charged. The joint judgment adopted the classic statement from R v Baskerville ('Baskerville')[11] that corroborative evidence must

[tend] to show that the story of the accomplice that the accused committed the crime is true, not merely that the crime has been committed, but that it was committed by the accused.[12]

The highlighted words are not always included when Baskerville is cited, which may explain why the essence of corroboration is sometimes misunderstood. The passage from the judgment of Callaway JA in R v McLachlan,[13] upon which the applicant placed heavy reliance, does refer to the relevant part of the judgment in Doney, which was in these terms:

The essence of corroborative evidence is the presence of some confirmation, support or strengthening of other evidence such that that other evidence is rendered more probable. ...

...

In the case of an accomplice's evidence, it is sufficient if it strengthens that evidence by confirming or tending to confirm the accused's involvement in the events as related by the accomplice: see Baskerville; Reg v Hester. [14]

16 This Court has repeatedly rejected the notion that corroborating evidence must itself prove that the crime was committed and that the accused was involved in its commission.[15] Thus, in R v Rayner,[16] Winneke P observed:

In truth, the essence of corroboration is that it is evidence coming from a source independent of the person to be corroborated which renders that person's evidence in a material particular more probable, in the sense that it tends to show not only that the crime charged was committed but that the accused was involved in its commission: R v Baskerville's [1916] 2 KB 658 at 667 per Lord Reading CJ; R v Kendrick [1997] 2 VR 699 at 708.[17]

Similar observations were made in R v Taylor.[18] In R v Trong Duy Ngo,[19] the Court said:

The locus classicus of what amounts to corroborative material is the decision in Baskerville. The decision in that case is not authority for the proposition that potentially corroborative material must itself prove the crime was committed and that the accused was involved in its commission.[20]

In none of these cases did the corroborative evidence, viewed in isolation from the evidence to be corroborated, prove the commission of the offence or that the accused was implicated in it.

17 In BRS v R,[21] Brennan CJ observed that: '[I]t is sufficient to constitute corroboration that the evidence should strengthen the evidence to be corroborated as to a fact on which proof of guilt depends.'[22] The essential quality of corroborative evidence is that it must independently 'confirm', 'support' or 'strengthen' the evidence to be corroborated, by rendering that 'other evidence more probable.'[23] It does so by providing support, from a separate and more trustworthy source, for the truth and reliability of the evidence to be corroborated.[24] Hence there is no distinction for the purposes of corroboration between evidence which itself tends to implicate the accused in the commission of the offence charged and evidence which is capable of supporting the evidence of the witness to be corroborated.[25] Evidence may be corroborative even though it may itself be regarded either as consistent with innocence or as equivocal.[26] It is for the jury to determine whether it is corroborative.

18 Typically, it is the evidence to be corroborated which will establish the commission of the crime and the accused's involvement. The corroborative evidence need only render that account more probable in some material particular. The corroborative evidence, 'standing alone',[27] need not establish the commission of the crime or the accused's involvement in it. We reject the applicant's first contention.

Did the expert evidence render more probable the evidence as to the making of the confession?

19 In the alternative, counsel for the applicant submitted that the expert evidence did not make it more probable that the applicant had confessed to Krajina. According to the submission, once the jury accepted Krajina's evidence that the applicant had made a confession to her, the expert evidence could be used to show that the confession was true or reliable but it did not bear upon whether the confession had been made. Thus, it was said, the trial judge had confused evidence which tended to show the truth of the confession with evidence which rendered the making of the confession more likely.

20 This submission must also be rejected. In our view, the expert evidence did render more probable the evidence of Krajina that the applicant had confessed to her. There is ample authority to support this proposition.

21 In R v Kennaway,[28] the applicant was charged with forging a will. Lord Reading CJ found that proof of the fact that the prisoner had previously committed the crime of forgery was evidence that supported the claim of an accomplice that the prisoner had said to the accomplice that he had committed a similar offence on a previous occasion. In The King v Chitson,[29] on a trial for carnal knowledge, questions were admitted to prove the truth of a statement allegedly made to the prosecutrix by the accused about his previous carnal knowledge of another girl, which it was found tended to prove that the accused made the alleged statement. The value of the prosecutrix's evidence was said to be in proportion to the impossibility of the girl's inventing the statement which she attributed to the accused.

22 In R v Kerr (No 2),[30] there was a dispute about whether the accused, charged with murder, had admitted having uncontrollable outbursts of violence. The police, to whom the admission was made, could not have known of the accused's outbursts of violence except from the alleged confession. Expert evidence was led from the accused's treating doctor to the effect that he had complained on occasions of sudden outbursts of rage resulting in attacks upon others. That evidence was held to be 'some corroboration of the truth of the police evidence as to what the applicant did tell them, and ... whether he did make the statement ...'.[31] Delivering the judgment of the Full Court, Gavan Duffy J said:

Whether the accused did make the statement alleged was the vital question in the case. He said he strangled the girl and gave a reason why he did it. Any independent proof that the reason was founded on fact and was more likely to have come from him than to have been mentioned or suggested by the police was an important contribution to an enquiry whether he did or did not make the statement.[32]

23 In Burns v The Queen ('Burns'),[33] Barwick CJ, Gibbs and Mason JJ identified the circumstances in which evidence showing that a confession was true might also be relevant to the question whether the confession was made. They observed:

Where an accused by his confession admits facts not then known to his interrogators which are subsequently found to be true, this circumstance affords strong evidence that the confession was in fact made. Where, however, the accused by his confession admits only facts already known to his interrogators the probative value of the truth of what is admitted on the issue whether the confession was in fact made is less cogent and it should, in general, be excluded from the jury's consideration of that issue in fairness to the accused because its prejudicial effect in the minds of the jury may well outweigh any probative value it has.[34]

24 In Pollitt v The Queen ('Pollitt'),[35] Deane J spoke of the need for corroboration of the 'actual making of the oral confessional statement' to a prison informer. An example of such corroboration would be

evidence establishing both that disputed material in the alleged oral confessional statement is accurate and that the material would not have been known to the witness if the alleged confessional statement had not been made. [36]

25 R v Georgiev[37] was another case in which this form of corroboration was recognised. Brooking and Phillips JJA referred to Burns and said:

[43] And so in the present case, in considering how probable it was that the applicant made the confession, it was material to consider whether the alleged confession admitted facts which were true and were unlikely to have been known to Joanne Guziak unless the applicant himself had related them to her. The mother's evidence of what her daughter said to her on the day after the killing corroborated Joanne's evidence that very shortly after the killing she was aware of certain facts (facts which were true and which the jury could be asked to find she was unlikely to be aware of unless she had them from the applicant). ... In the present case what was important was the Crown's allegation that very shortly after the killing, and so at a time when she was unlikely to have had knowledge of the facts from a source other than the accused, he made a confession to Joanne Guziak in which he related those facts. The mother's evidence that Joanne told her of the confession the day after the killing, if accepted, showed that, at a time when Joanne was unlikely to have learned of the facts from a source other than the applicant, she was aware of them. She manifested her awareness of them by herself relating them as having been told to her by the applicant.

Ormiston JA differed from the majority's conclusion that the mother's evidence could corroborate the daughter's testimony but did not differ as to the reasoning with which we are presently concerned.[38]

26 The process of reasoning approved in R v Kerr (No 2)[39] and Burns, and the important qualification to which it is subject, were again discussed in Matusevich v The Queen.[40] The judgments of Murphy J and Aickin J emphasised that the capacity to reason in this way rests upon satisfaction that the fact was not known by the person to whom the admission was made. There must be 'independent proof'[41] that the fact was more likely to have come from the accused than from the person to whom the confession was made before such evidence can be admitted and used as proof that the accused admitted that fact.[42]

27 During oral argument, counsels' attention was drawn to cases such as Pollitt, Burns and Matusevich. After the appeal hearing concluded, counsel for the applicant filed a supplementary written submission, advancing a new argument which rested upon a view of the facts different from that relied upon by defence counsel at the trial. It was, moreover, a view of the facts which had been disclaimed in oral argument on the appeal. It was now said that the expert evidence was incapable of being corroborative as there was no independent proof that Krajina did not learn from some other source, such as the investigating police, that the deceased had suffered a fractured skull.

28 It was accepted at trial that Krajina had been in the company of the applicant at the time of the alleged confession, and that she had had an intimate relationship with him. The prosecutor opened the Crown case on the basis that Krajina's evidence (that the applicant had confessed to her that he had struck the deceased to the head with a brick) would be supported by expert evidence, showing that the deceased's skull fractures were likely to have been caused in that way. The Crown case was that this was something that Krajina could not have known unless the applicant had told her. At trial, that part of the Crown case was not put in issue.

29 The evidence of the pathologist and of the investigating police was to the effect that, at the time the autopsy was completed, the skull fractures were attributed to falling debris. The uncontested evidence disclosed that, until Krajina told police about the applicant's confession, they did not consider the skull fractures to be a cause of death. Until then, police had believed that the deceased had died as a result of multiple stab wounds. They had told Krajina this on 10 February. The defence accepted that Krajina was not told by police that the deceased had a fractured skull.

30 The trial was therefore conducted on the basis that Krajina could only have learned from the applicant that the deceased's skull was fractured and could not otherwise have known that the smashing of a brick on the deceased's head was likely to have produced such injuries while falling masonry would not have done so. In the circumstances, it is not surprising that defence counsel in closing address disavowed any suggestion that Krajina learnt of the skull fractures from some other source, or that she knew that the fractures were likely to have been caused by a brick used as the applicant described, rather than by falling masonry.

31 The defence argued at trial that the experts - particularly the pathologist, Dr Woodford - had changed their opinion as a consequence of receiving further information from investigating police as a result of the confession allegedly made by the applicant. The expert evidence given at trial - that a blow with a brick was a more likely explanation for a number of the fractures - was challenged. Defence counsel submitted that the skull fractures were equally consistent with being hit by falling debris. While conceding that the use of a brick was consistent with the account given by Krajina, the defence contended that the evidence did not carry with it the high degree of confirmation needed to make it corroborative.

32 It was further submitted on appeal that there was no basis to assume that if the applicant knew of the deceased's head injuries, he must be the killer. The applicant had been interviewed by police on 31 January and 10 February 2004. Thus, according to the submission:

[I]t would have been speculative to conclude that the accused positively was not told by police of the fact that the deceased had suffered a fractured skull on either of those dates. Police knew of the fractures since the autopsy on 30 January 2004.

33 The submission that there may have been an innocent explanation for the applicant's knowledge cannot be sustained. In his evidence at trial, the applicant did not suggest that he had learned such information from the police. Nor was it suggested to Krajina at trial that the applicant told her that he did. The applicant in his evidence denied the account given by Krajina. His defence was that 'he did not recount [to Krajina] the manner in which the deceased had died whether by confession or at all'. Consequently, such a hypothesis did not arise on the evidence. The argument is attended by the further difficulty that there is no reason why the police would have referred to the skull fractures when speaking to the applicant during the early stages of the investigation.

34 As we are satisfied that there is no merit in the further argument, we are not disposed to grant leave to file the supplementary submission. The Court would, in any event, be most reluctant to allow a party, after the appeal hearing had concluded, to advance a new argument which put in controversy facts that were not in issue at the trial, especially when the principal argument on the appeal did not put any of those facts in issue.

35 The evidence of the experts was corroborative of Krajina's account, rendering it more probable that the applicant did confess to her, in the terms she recounted, that he had struck the deceased in the manner he described. This ground is not made out.

The learned trial judge erred by failing properly to follow the procedure described in R v Neal, Regos and Morgan and referred to in R v Thynne [1977] VicRp 10; [1977] VR 98, 101 ff in respect of the witness Krajina.

36 The applicant contends that the trial judge, having resolved to follow the procedure referred to in R v Thynne ('Thynne'),[43] fell into error by permitting the prosecutor to refer explicitly to the witness's police statement in the course of asking leading questions. Complaint is further made that the prosecutor was permitted to move beyond leading questions to full cross-examination of the witness when no leave had been given to do so.

37 The procedure in Thynne has been referred to by the High Court on more than one occasion without criticism[44] and has been referred to with approval by this Court in R v Shalala, Zoudi and El-Azar[45] and R v Trong Duy Ngo.[46] The nature of the procedure and its advantages for both prosecution and defence were explained by Redlich J in the course of three rulings in R v Lam.[47] The procedure limits the prosecutor's cross-examination to the asking of leading questions in conformity with the witness's statement without disclosing the existence of the statement.

38 The procedure rests upon the notion that, where the witness is considered hostile, leading questions may be put on the assumption that the witness is not partisan to the party that called him and will be resistant to suggestions from counsel.[48] The procedure does not require the witness to be 'declared' hostile before the Crown is permitted to ask leading questions, but the trial judge must be satisfied that the witness is hostile before permitting such a procedure to be followed. The cross-examiner is not permitted to impeach the credit of the witness or to cross-examine the witness more generally.

39 The prosecutor sought leave to examine the witness in accordance with the procedure in Thynne's case. When in her evidence Krajina claimed to have little memory of the relevant conversation with the applicant, the prosecutor made application to ask her leading questions in conformity with her police statement. Although the trial judge was of the view that the witness was hostile, she refrained from making such a declaration and did not allow the prosecutor to embark upon general cross-examination to impeach the witness's credit. The prosecutor apparently thought that the procedure required the witness to have her statement in front of her while she was questioned. Defence counsel appears to have been of the same view.

40 The trial judge evidently intended that the witness could have her police statement in front of her and could refer to it in the course of answering leading questions.[49] Counsel for the applicant at one stage objected to her refreshing her memory from her statement. In the presence of the jury he identified the document as one which had come into existence as a consequence of the witness's contact with investigating police. After a brief exchange with the trial judge, he abandoned his objection to the witness refreshing her memory from the document. Counsel for the applicant also complained on occasions that the leading questions amounted to cross-examination. The trial judge overruled those objections on the basis that the prosecutor was only asking leading questions in conformity with what the witness had previously told investigators. We see no error in the view that was taken by the trial judge.

41 The witness was extensively cross-examined by counsel for the applicant about each of the statements she had made to investigating police. Both the content of those statements and the circumstances in which they came to be made were explored at some length, with the plain purpose of demonstrating that she had given inconsistent accounts and was therefore to be viewed as unreliable.

42 In our view, it was open to the trial judge in the circumstances to adopt a procedure which was not strictly in accordance with that set out in Thynne's case. One of the benefits of the Thynne procedure was lost by placing the witness's statement in her hands whilst the prosecutor asked her leading questions, but no objection was raised to this mode of examination and no application was made that the jury should on this ground be discharged. It appears that defence counsel was content with the course followed, so long as the prosecutor was not permitted to embark upon a general cross-examination of the witness. Defence counsel evidently intended to make full use of the witness's starkly inconsistent written accounts, and did so in the cross-examination which followed . Having regard to the manner in which the trial was conducted, this ground cannot be sustained.

(a) purported to give confession evidence against the applicant in evidence-in-chief;

(b) confessed herself to the murder in cross-examination;

(c) retracted that confession in re-examination,

the trial became unfair to the applicant and a substantial miscarriage of justice ensued as a consequence.

The learned trial judge erred by failing to discharge the jury after the witness Krajina confessed to killing the deceased.

43 The account given by Krajina changed dramatically during the course of her evidence. In her evidence-in-chief, she said - in answer to the leading questions which the prosecutor was permitted to put - that the applicant had confessed to her that he killed LP in the manner described. In cross-examination, however, she said that this was not true and that it was she herself who had killed him. In re-examination, she said - again in answer to leading questions - that her statement that she had killed LP was untrue. The prosecutor quickly established that Krajina knew few of the details of the killing. She then reaffirmed that the applicant had made the confession described in her evidence-in-chief. She said that her own 'confession' under cross-examination had been made in order to protect the applicant.

44 The submission for the applicant in this Court was that, once Krajina confessed, her evidence became so unreliable and so lacking in credit that it ought not to have been left to the jury to consider. Her evidence was 'worthless'. The judge was correct to describe the situation as 'farcical'. The submission noted that, as Krajina was the Crown's first witness, there would have been little prejudice if the jury had been discharged immediately after her 'confession'.

45 We reject this submission. It was, of course, a highly unusual turn of events for the key Crown witness to behave as Krajina did. But the entire sequence of events was played out before the jury, who were perfectly capable of making their own assessment of her credibility as a witness. As we said earlier in relation to ground 2, the deficiencies in her evidence relevant to an assessment of its reliability would have been readily apparent to the jury. These grounds fail.

The learned trial judge erred in law by failing to give an adequate unreliable witness warning in respect of the evidence of Krajina.

The learned sentencing judge erred by failing to give the jury an appropriate hostile witness direction as to Krajina's evidence, and, in particular, failed to direct the jury adequately or at all as to how they might treat her evidence if they found it established that Krajina (by confessing to the murder) possessed a motive to, and/or did in fact seek, to protect the applicant against conviction.

46 According to the submission for the applicant, it was likely, if not inevitable, that the jury would have been satisfied that Krajina did not kill LP and that - as she herself said - she had made that false statement in order to protect the applicant. By similar reasoning, the jury were likely to have concluded that Krajina was also lying when, under cross-examination, she stated that it was not true that the applicant had confessed to her. According to the submission -

The jury might well have used the fact that Krajina possessed a motive to lie in order to protect the applicant as bearing upon the objective truthfulness of her assertion that the applicant confessed to her. In this sense, and given her otherwise patent unreliability and lack of credit, perhaps the strongest "evidence" that Krajina gave against the applicant was her preparedness to tell an extreme lie in order to protect him - a lie that was calculated to place her in very serious danger.

...

In the particular circumstances of this, rather bizarre case, the jury ought to have been warned not to use the patent falsity of Krajina's confession as evidence that might support her assertion-in-chief that the applicant confessed to her. The learned judge did give a 'dangerous witness' warning in respect of Krajina's evidence, but this warning did nothing to alleviate perhaps the most dangerous vice that was inherent in her evidence.

47 We also reject this submission. The question for the jury, first and last, was whether they accepted Krajina as a witness of truth when she gave evidence - in chief and again in re-examination - of the applicant's confession to her. In addressing that question, the jury must necessarily have considered how her retraction and confession under cross-examination affected her credibility. Relevant to this was the explanation which Krajina herself gave, namely that she had made false statements in cross-examination in order to protect the applicant.

48 As the submission acknowledges, the judge specifically warned the jury to treat Krajina's evidence with great care. We have already said that, in these circumstances, the deficiencies in the evidence were so manifest that such a warning was arguably unnecessary. Be that as it may, no other warning was required. The jury were well capable of making up their own mind about how the evidence should be viewed.

The learned trial judge erred in her directions to the jury on manslaughter and in particular erred -

(a) by failing properly to describe to the jury how they might assess the nature and gravity of the provocation offered by the deceased (namely, by simply telling the jury that 'ordinary people come in all shapes and sizes, with an enormous variety of backgrounds of race, religion, and colour'); and

(b) by directing the jury that there must be a proportional relationship between the deceased's provocative acts and the murderous acts of the applicant.

49 The Crown did not contend at trial for an alternative verdict of manslaughter, and the applicant's only defence was a denial that he had killed the deceased. Nevertheless, the judge left manslaughter by reason of provocation for the determination of the jury as a possible alternative verdict.

50 In the course of her charge, the judge directed the jury on the issue of provocation as follows:

The issue of provocation has been raised and I will describe for you the manner in which it has been raised. If you accept the evidence of Ms Krajina that the accused man confessed to her that he killed the deceased man, he also, within that same confession, stated to her what he said had occurred on that night. He said that the deceased, Leo Filippone, had told him, Mark Kuster, that Filippone was going to kill Ms Krajina, he was going to kill the accused's son, Shane, and the deceased's own son, whom he described as a veg. The accused man is alleged to have then told Ms Krajina that 'he lost it' and all he saw was blood.

Now, the law is that for the Crown to prove the accused man is guilty of the crime of murder, [t]hey must also prove the killing of the deceased was unprovoked. This is so because the issue of provocation has been raised and irrespective of who raises it or how it comes to your attention, it is the Crown who bears the onus of proving the absence of provocation. Now, the issue of provocation is relevant only if you are satisfied that all of the elements of the crime of murder have been proved, so you first have to be satisfied that each of the elements of the offence of murder have been proved in respect of the accused man. If you are so satisfied, you then have to look at this aspect of provocation. Provocation is an amelioration of the law, a softening in some ways. That is, it allows for the fact that people may do things in the heat of passion that they would not do when they were in a normal frame of mind.

...

Now, in relation to the concept of provocation there are two elements, and I should say the Crown have to disprove provocation beyond reasonable doubt. All right, that is the standard that applies.

Two elements in the concept of provocation. The first is that it must be the acts of the deceased man, Leo Filippone, which are said to constitute provocation which caused the accused to lose his self control, and that the acts causing the killing were done during that period of loss of self control. So that's the first element. The second element is that the law will only concede the existence of provocation if there is some kind of proportion between the provocation and the murderous act. The provocation must be of a kind that might, in the same circumstances, cause an ordinary man to react in the same way as the accused reacted. I will go to that in a little more detail.[50]

The provocation may be constituted by some act, series of acts done by the deceased or by words spoken by him which cause in the accused a sudden or temporary loss of control. So the provocation being, in his case, it is alleged that the provocation is words, that caused in the accused man a sudden or temporary loss of control, and whilst under that immediate effect of the provocative conduct, that is the words, and not during a time when he has had any time to recover and regain his self-control, he has acted. All right, so it must be words, in this case words, such that it caused him to lose control, a sudden or temporary loss of control, and whilst in that sudden loss or temporary loss of control he has committed these actions. All right, that is the first element.

Now, the second element is that the provocation must be such that an ordinary person placed in the accused's position might have been caused to react in the same way as the accused reacted. In considering an ordinary person for the purpose, you will take into account that ordinary people come in all shapes and sizes, with an enormous variety of backgrounds of race, religion and colour. When you are considering whether what the accused did was within the range of what an ordinary person might have done, you will consider an ordinary person of around the same age of the accused. Now, the point is that in Australia an ordinary person, it is a melting pot, basically, of the community. We come from many different backgrounds, many different races, but you have to determine what an ordinary person would do in these circumstances [51] if you get to this level. So in relation to that element, this second element, there are two aspects to consider. Firstly, might the provocative conduct, in this case the words that are alleged to have been said, have made an ordinary person lose control, and if an ordinary person had lost their self-control, might that person have gone on to kill the person offering the provocation, in this case, the deceased? So they are the two aspects to that second element. ...

...

In respect of provocation, the Crown have said that what Mark Kuster was doing on 31 January when he confessed to Ms Krajina about killing Leo Filippone was trying to justify to her why he had killed him and that he knew the way to do that , and to help ensure she would remain quiet about what had happened, was to appeal in the only thing in her life that mattered to her as much as he did, a mother's love. The Crown say there is nothing in what he said to her about the provocation that is remotely believable. He appealed to her instincts as a mother saying that he was threatening her child and he had no choice. ...

The defence, of course, did not rely upon the issue of provocation as they say, and the accused has given evidence on oath, that he was not the person who killed Leo Filippone and that he made no such statements to Ms Krajina to that effect. Irrespective of that fact, as I said, the issue having been raised in the evidence of Ms Krajina, it is the obligation of the Crown to prove that the accused was not provoked into killing the deceased.

51 Defence counsel objected (in the absence of the jury) that the judge had at one point posed the question, in relation to the objective aspect of the test, in terms of what the ordinary person would do - rather than could do - in the circumstances. The judge then gave the jury the following re-direction:

It was a sensible course to do. Counsel have some concern about what I said to you in respect of provocation, because if you recall, I kept making references to, "If the Crown fails to satisfy you that the killing was not provoked". Of course, what the Crown have to do, we are talking at that stage about murder, so you must have already found a murder has been committed, not just a killing, but a murder. I will read those again. I think I also said 'would' at some stage when I should have said "could". I will just go through that objective aspect of it again.

The Crown must satisfy you that the accused did not lose his self-control, or that [if] he did, an ordinary person of the accused's characteristics could not have lost his self-control in the circumstances or, if he did, could not have gone on to murder the deceased. If the Crown fails to satisfy you that the murder was not provoked, then the Crown has failed to satisfy you of the charge of murder because of what I indicated about provocation. However, provided the Crown has proved the other elements of murder, then you would be satisfied that the accused was guilty of manslaughter as a result of being provoked by the deceased. ...

52 Counsel for the applicant contends that, by referring to the need for 'proportion' in the first emphasised passage in the directions set out above, the judge made the same error as was made in R v McKeown ('McKeown'), [52] R v Barrett ('Barrett')[53] and R v Margach ('Margach').[54] That is, her Honour implied that there was a need for 'proportionality' in addition to the requirements of the ordinary person test. Thus, it is said, the judge created an unacceptable risk of the jury treating 'proportionality' as an additional prerequisite of provocation.

53 There is some force in that submission. In McKeown, the trial judge had explained the two elements of provocation and then restated them as follow:

As I said, there are two elements or two parts in the concept of provocation. The first is that the acts of the deceased which are said to constitute that provocation caused the accused man to lose his self-control and that the acts causing the killing were done during a period of that loss of self-control. Perhaps, a phrase that is often used is 'a crime in the heat of passion'. The second aspect of this is that the law will only concede the existence of provocation if there is some kind of proportion between the provocation and the murderous act. The provocation must be of a kind that might, in the same circumstances, cause an ordinary person to react in the same way as the accused reacted in this case.[55]

On appeal, Callaway JA considered that there were two difficulties with the last two sentences of that passage. The first, he said, was that the jury may have taken it to mean that proportionality was an essential part of the objective element of provocation. The second was that the words 'react in the same way' may have been taken as meaning 'react in precisely the same way'.

54 Vincent JA and Buchanan JA decided the appeal on a different basis. They considered that the trial judge had erred by failing to put the immediate provocative act in its proper evidential context, of an escalating level of tension between the deceased and a woman with whom the applicant was emotionally involved, causing her increasing distress and upset. As Vincent JA explained:

[A]lthough the issue of provocation was put before the jury, "the immediate provocative act was at no stage placed in its proper evidential context". Nor was the jury provided with any instruction generally as to the relevance of the background of the increasingly fraught relationships between the various parties in their consideration of the objective test incorporated in the concept of provocation.[56]

Nevertheless, Vincent and Buchanan JJA also said that they agreed with Callaway JA's reasoning.

55 In Barrett, the Court (Maxwell P, Eames JA and Habersberger AJA) upheld an attack on a provocation direction on the basis, inter alia, that it was expressed in the same terms as those which Callaway JA had criticised in McKeown. They noted, however, the unfortunate circumstance (which may have been overlooked in McKeown) that the impugned passage accorded precisely with model directions published in the Charge Book. As their Honours said:

Unfortunately, the directions given here, although entirely consistent with the directions in the judges' Charge Book, employed precisely the words identified as erroneous in McKeown. The decision in McKeown could only be overturned by a court of five judges and must be taken to be the law. Accordingly, proposed ground 11 also has substance. Leave to add that ground should be granted and the ground be upheld.[57]

56 In Margach,[58] the Court (Vincent and Redlich JJA and Habersberger AJA) also upheld an appeal on the basis, inter alia, that the trial judge had directed the jury on provocation in the same terms as those criticised in McKeown. Their Honours said this:

Judgment in McKeown was, of course, delivered on 5 April 2006, some two months after the judge gave her charge in the present case. Her Honour's instructions on this aspect were almost identical to those held to be erroneous in that case. This is hardly surprising as the charge in McKeown and this case both followed the words employed in the model direction in the charge book which did not reflect what the High Court had stated on this aspect.

In the present case, it is to be observed that the risk to which Callaway JA referred in McKeown could be seen to have been increased by the fact that, at one stage in the charge, the judge dealt with what was clearly indicated to be the need for proportionality at a point separate from her instructions concerning the ordinary person test -

... It might help you, in terms of understanding this, if I explain to you that the law in respect of provocation was introduced many years ago, in order to give some flexibility to what was otherwise the very rigid law of murder.

The law took the view that if a person acts in the heat of passion or as a result of a sudden loss of control brought about by others, then the legal consequences attaching to murder should not follow in all their severity. But the law also took the view that there must be reasonable proportionality between the provocation that occurred and the resulting killing.

It is something that has been there for many years. You may well have read that we are about to have changes to our law in respect of this. That is something that is in the future. You are to deal with provocation as it exists at this time. All right? Whatever you may have read about it, ignore it, because this is the law as it currently is.

The judge then went on to define provocation generally, before directing attention to the objective test. In consequence of this separation of treatment, the jury may well have formed the view that there was an overarching test of proportionality to be assessed on the basis of their view of the possible reactions of the "average", "normal", "ordinary" or "reasonable" member of the community (the various terms employed by her Honour). The written instructions that she provided to the jury are ambiguous on this respect and would not have dispelled any misconceptions that they may have had concerning either the ordinary person test or the notion of proportionality.[59]

57 As against that, however, in R v Gojanovic (No 2)[60] the Court (Ashley and Kellam JJA and Kaye AJA) distinguished McKeown. Although the trial judge had directed the jury in terms the same as those impugned in McKeown, the judge had then gone on immediately to say:

Therefore, if it is reasonably possible that an ordinary person with ordinary powers of self control might have reacted to provocation of the same gravity in the same way in which the accused reacted, then the Crown will have failed to prove beyond reasonable doubt that the accused was not acting under provocation and the verdict would be not guilty of murder, guilty of manslaughter.[61]

Their Honours thus considered that, taken as a whole, the introductory passage of the charge was quite different from that which was impugned in McKeown, Margach and Barrett. As they put it:

It is clear, on any appropriate analysis of the form of words adopted by the trial judge, that it could not be understood as imposing or introducing a super added requirement that, independent of the "ordinary person" test, there was an additional requirement of proportionality. Thus the concern of Callaway JA in McKeown, namely that the use of the word "proportionality" introduced an added requirement to the concept of provocation, does not arise in this case.[62]

58 In R v Mark James Hill,[63] the Court (Vincent, Nettle and Neave JJA) also distinguished McKeown. Again, although the trial judge had directed in terms of the passage impugned in McKeown, the judge had then gone on to instruct the jury that:

What the law requires is that you have to have regard to what response the ordinary person might have made to such provocation. If it is reasonably possible that an ordinary person with ordinary powers of self-control might have reacted to provocation of the same gravity in the same way in which [the applicant] reacted, then the Crown would have failed to prove beyond reasonable doubt that the accused was not acting under provocation. [64]

Moreover, the judge had provided the jury with a simply expressed hand-out, which made no reference to proportionality, describing the objective standard in terms of the question whether 'the ordinary sober person could have been provoked to do what [the accused] did by provocation of such gravity as that felt by [him].'[65]

59 So too, in R v McCullagh (No 3) ('McCullagh'), [66] the Court (Chernov and Vincent JJA and Whelan AJA) distinguished McKeown in circumstances where the judge had given the jury a written handout which expressly referred to proportionality in these terms:

PROVOCATION

There are two elements in the concept of provocation.

1. The first is that the acts or words of the deceased which are said to constitute provocation caused the accused to lose his self control, and the fatal acts were done during that period of loss of self control.

2. The second aspect is that law will only concede the existence of provocation if there is some kind of proportion between the provocation and the killing.[67] The provocation must be of a kind that might in the same circumstances cause an ordinary man to react in the same way as the accused man reacted.

There are two elements within that second aspect of provocation;

FIRSTLY

You assess the gravity of the provocation upon the accused person, and when doing that you are entitled to look at his characteristics, his past history with the deceased, the nature of their relationship, his personal attributes and then assess what level of impact the words and actions of the deceased had upon him. From that you are able to determine the gravity of the behaviour to him.

SECONDLY

Having assessed that degree of gravity, you then apply an objective test of whether an ordinary person provoked to the degree that you find the accused has been provoked might have lost self control and acted in a manner which would encompass the accused's actions.

The onus of proof is on the Crown to negative either of these elements, therefore the Crown would have to prove beyond reasonable doubt, either

1. The accused was not provoked, or

2. That an ordinary person provoked to the degree that you find the accused might have been provoked would not have lost self control and acted in a manner which would encompass the accused's actions.

60 Chernov JA, with whom the other members of the Court agreed, considered it to be plain that the handout did not contain the vice present in McKeown, because it did not interpose proportionality between the first and second elements of provocation. As his Honour said, the reference to proportionality was rather to be seen as within the description of the second element of the offence. On a fair reading of the document, therefore, it was apparent that the first sentence (which dealt with proportionality) was introductory to the second sentence (which described the objective test by reference to the ordinary person). That was confirmed by the objective test set out under the sub-heading 'SECONDLY', concluding with reference to the onus of proof being on the Crown to negative either of the two elements of provocation.

61 Chernov JA also noted that the trial judge in her oral charge had again emphasised the second element of provocation in terms which could not sensibly be taken to suggest that proportionality should be regarded as a separate ingredient of the 'defence' of provocation. Essentially, she had told them that the second aspect of provocation involved a two step process of the 'assignment of proportionality of the response'. Thus, from the whole of the relevant part of the charge, the jury would have understood that, in considering whether the Crown had negated the second element of provocation, they were required first to assess the gravity of it upon the offender by reference to his relevant characteristics and, secondly, to apply an objective test of whether an ordinary person if provoked to that degree might have lost self-control and acted in a manner which would encompass the accused's actions.

62 In our view, similar considerations apply in this case. To begin with, the impugned passage of the judge's charge[68] does not interpose proportionality between the first and second elements of provocation. Rather, just as with the written handout in McCullagh, the reference to proportionality in the first sentence is within the description of the second element of the offence, and thus is naturally to be conceived of as introductory to the second sentence, which describes the objective test by reference to the ordinary person.

63 Secondly, and again as with the written handout in McCullagh, that sense of the reference to proportionality is confirmed by the judge's reiteration of the second element in the following terms:

Now, the second element is that the provocation must be such that an ordinary person placed in the accused's position might have been caused to react in the same way as the accused reacted.

64 Thirdly, as with the written handout in McCullagh, the judge in this case made plain that the notion of proportionality inherent in the second element of provocation involves a two-step process:

So in relation to that element, this second element, there are two aspects to consider. Firstly, might the provocative conduct, in this case the words that are alleged to have been said, have made an ordinary person lose his self-control, and if an ordinary person had lost their self-control, might that person have gone on to kill the person offering the provocation, in this case, the deceased? So they are the two aspects to that second element ...

65 Fourthly, in a fashion which is analogous to the way in which the judge in McCullagh emphasised the point in her oral directions, the judge in this case emphasised the point by her later repetition of the proposition:

So, they are the two aspects to that second element. The first, might the provocative conduct make an ordinary person, in the way I have described an ordinary person, lose his self-control? And, if an ordinary person had lost his self-control, might he have then gone on to kill the person who offered the provocation, namely the deceased?

You must remember that the Crown has to prove that the killing was unprovoked. The accused does not have to prove that he acted under provocation. The Crown must satisfy you that the accused did not lose his self-control, or that if he did, an ordinary person of the accused's characteristics would not have lost his self-control in those circumstances or, if he did, would not have gone on to kill the deceased.

66 Finally, in a manner which is also analogous to the judge's oral directions in McCullagh, the judge in this case gave a redirection which, as has been seen, eschewed any mention of proportion or proportionality and thus, in our view, dispelled the possibility that the jury might conceive of proportionality as a separate ingredient of the 'defence' of provocation.[69]

67 Counsel for the applicant further criticised the judge's directions on provocation for failing precisely to identify the particular characteristics of the applicant and the particular circumstances which were likely to bear, or could conceivably have borne, upon the jury's perception of the gravity of the provocation. In counsel's submission, the judge's failure to put the provocation in context, by reference to the attributes or characteristics of the accused, exacerbated the likelihood of the jury proceeding upon the basis of a misconception of proportionality or, at least, of their proceeding without a proper comprehension of the need to assess the gravity of the provocation by reference to the relevant characteristics of the accused.[70]

68 Other things being equal, there would be force in that submission. As Vincent JA observed in the passage of his judgment in McKeown set out above, the effect of a deceased's conduct on an accused, and the question of whether an ordinary person in the accused's position might have acted as he did, must be considered by reference to the broader context in which the conduct was committed. Accordingly, in a case where provocation is in issue, it will ordinarily be necessary for a trial judge -

(a) to identify for the jury the evidence relevant to the possible impact of the deceased's conduct on the accused (by describing relevant background evidence, including evidence of the relationship and history between the accused and the deceased, relationships with third parties and cultural matters); and

(b) in relation to the application of the 'ordinary person' test, to explain the need to assess the gravity of the deceased's conduct from the viewpoint of the accused, taking into account the accused's personal characteristics and circumstances, such as his age, sex, race, ethnicity, physical features, personal attributes, personal relationships and past history.

69 In this case, however, the position is somewhat different, if only because there was not a great deal to be said about such matters. The judge put the issue of provocation in context by explaining that the issue had arisen from Krajina's evidence that, at the time of confessing to her, the applicant had said LP had told him he was going to kill Shayne as well as his own son, whom he described as a 'veg'. As a result, the applicant told Krajina, he had 'lost it'. 'All I saw was blood', he told her. There was nothing remarkable about the applicant's age, sex, race, ethnicity, physical features or personal attributes. The fact of his relationship with Krajina was obvious. And it was not suggested that he had any relationship or history with the deceased which warranted special mention.

70 After the judge had directed the jury on provocation, and before the redirection earlier set out, defence counsel submitted that it was incumbent on the judge to say more to the jury about the applicant's personal circumstances. As counsel put it:

With respect, there doesn't seem to be, or little reference to characteristics at all. Your Honour specifically referred to age and then went into the melting pot. In my submission, more is required on the objective measure. You are entitled to look at the personal characteristics.

When, however, the judge asked defence counsel to identify the matters which he had in mind, he said only that:

What I identified is [the applicant] was involved in an on and off volatile relationship with a particular woman of certain background[71] for 10 or 12 years, and he was confronted with, on the scenario that Krajina presents, with a man in the sex industry who has made a threat.

71 The judge then observed that it was difficult to see what relevance it had that the deceased was involved in the sex industry. Defence counsel did not demur. Her Honour then said she had already been through the 'on again off again' relationship. This was no doubt a reference to the fact that, when she had earlier warned the jury of the dangers of convicting on the uncorroborated evidence of Ms Krajina, she had said this:

Here there are many factors relevant to Ms Krajina that you should consider when dealing with her evidence. These are just some of them. She is a person who has given a number of totally inconsistent and opposite versions of her evidence before you. She is a person who has had an on again off again relationship with the accused man. She is the mother of his child.

72 It would have been better if the judge had specifically identified or restated within her directions on provocation all of the applicant's characteristics and circumstances relevant to the jury's assessment of the gravity of the provocation. But, given the limited scope of his relevant characteristics, and given that the judge began her directions on provocation by summarising the factual circumstances which informed its context, the jury could have been left in no doubt that the effect of the provocation on the applicant was to be assessed having regard to the circumstances she had described.

73 It would also have been preferable if the judge had directed the jury expressly to the effect that, once the gravity of the provocation had been assessed by reference to relevant characteristics of the accused, it was necessary then to ask the question whether the Crown had persuaded them that provocation of that degree of gravity could not have caused an ordinary person to lose self-control and act in a manner which would encompass his actions. Instead, as has been seen, the judge directed the jury that it was a question of whether 'an ordinary person of the accused's characteristics' could not have lost self-control in the circumstances or, if he did, 'could not have gone on to murder the deceased'. Her Honour made no reference to the gravity of the provocation as such. But we think that her Honour's failure to do so, and her misdescription of the test as one which attributes all of the characteristics of the accused to the ordinary person, resulted in a direction which was - if anything - too favourable to the applicant. For, although the distinction may be subtle, in the scheme of things an ordinary person of ordinary powers of self-control is likely to be thought of as having a greater capacity to resist the effects of provocation of any given gravity than an ordinary person with the accused's characteristics.

74 Finally on this point, counsel for the Crown submitted that, even if the judge had erred in her directions on provocation, the error was of no consequence. He contended that the evidence was incapable of supporting a verdict of guilty of manslaughter by reason of provocation. In particular, the evidence was incapable of supporting the conclusion that an ordinary person of ordinary powers of self-control, if subjected to provocation the gravity of which was determined by reference to the characteristics of the applicant, would be so much provoked as to lose self-control and in that state form the intention to kill or inflict really serious injury and go on to give effect to that intention.

75 We reject that submission. As the High Court repeated in Masciantonio, whether a trial judge should leave provocation to a jury depends upon whether, on the version of events most favourable to the accused, a jury acting reasonably might fail to be satisfied beyond reasonable doubt that the killing was unprovoked in the relevant sense. Since a judge is naturally very reluctant to withdraw from a jury any issue that should properly be left to them, he or she is likely to tilt the balance in favour of the defence.

76 Judged according to that test, the judge in this case was right to leave provocation to the jury. Upon the version of events most favourable to the applicant, the deceased had just said that he was going to kill the applicant's partner of 12 years, the mother of his son, and kill that son as well as the deceased's own son. In that state of affairs, a jury acting reasonably might well fail to be satisfied that an ordinary person of ordinary powers of self-control, if subjected to provocation of that gravity, could not have lost self-control and in that state acted in a manner which would encompass the applicant's actions.

77 Counsel for the Crown referred to a number of decisions of this Court holding that such conduct would not be capable of provoking an ordinary person. They included R v Tuncay ('Tuncay'),[72] R v Leonboyer ('Leonboyer'),[73] R v Parsons ('Parsons')[74] and R v Kumar ('Kumar').[75] He submitted that those decisions pointed powerfully to the conclusion that the gravity of the provocation in this case was not enough to create a doubt as to the capacity of an ordinary person to refrain from reacting as the applicant did.

78 We reject that submission. In Tuncay, the allegedly provocative conduct was limited to the accused's wife telling the accused that she proposed to leave him and take the children with her and to look for a man who adhered to the tenets of Islam. In Leonboyer, the alleged provocation was that the deceased, who was engaged to be married to the accused, had said to him that she had been seeing somebody else, that she was having sex with him and that it was better than sex with the accused. In Parsons, the alleged provocation was said to subsist in the deceased's observation, after success in Family Court property proceedings, that 'we have got you now you bastard'. In Kumar, it was insults of the deceased directed at the accused and his family when he sought access to the deceased's house against her will.

79 In our view, none of those cases is close in point of fact or effect to the present case. Even if they were, the subsequent decision of this court in R v Yasso (No2)[76] - in which a judge was held to have erred in not leaving provocation to the jury - shows just how little difference there need be in facts for there to be a difference in effect.

The learned trial judge erred by ruling that the defence was precluded from calling evidence from the witness Brotherton as to the notoriety in the local community of the means by which the deceased had met his death.

80 At the trial, defence counsel sought to call a witness named Brotherton to give evidence as to the notoriety in the local community of the manner in which LP had died. In January 2004, Mr Brotherton was employed by the Office of Corrections at Morwell and was the applicant's supervisor. Defence counsel read to the Court a statement from Brotherton in which he said that he became aware that, at about the time LP's body was found, a fire had taken place at a house in Newborough. According to Brotherton, he had had a conversation with the applicant within days of the fire occurring, in which he told the applicant that 'word had got around' that the body had been stabbed and that the death was suspicious. He said that the applicant appeared shocked at hearing that the death had occurred in this way. Brotherton said that it was common knowledge that the death was suspicious and that the fire had been used to cover up the death. He said that there was definitely a rumour going around that the deceased person had been stabbed.

81 The trial judge refused to allow Brotherton to be called. Her ruling is said to have been in error on the basis that Brotherton's evidence was relevant to at least the following issues:

• whether the applicant could have discovered the means of LP's death otherwise than by having been the killer;

• whether Krajina might have discovered the means of LP's death otherwise than having been told by the applicant.

82 We see no error in the ruling. The proposed evidence had no relevance to any fact in issue. As senior counsel for the Crown submitted, the only aspect of Brotherton's proposed evidence which was not hearsay concerned the existence of a rumour within the Moe community that LP had been stabbed and that the death was suspicious. Proof of that fact - that is, the existence at that time of that rumour - was not relevant to the issue of the applicant's knowledge, or Krajina's knowledge, of how LP had met his death. As discussed earlier in these reasons, the critical piece of information in that regard was not that LP had been stabbed but that his skull had been fractured by a heavy blow with a brick.

83 Ground 10, which contended that the guilty verdicts were unreasonable, was abandoned. Ground 11 contended that verdicts were unsafe and unsatisfactory by reason of an aggregate of errors. In view of our conclusions on the specific grounds, this ground must also fail.

84 For these reasons, the application for leave to appeal must be refused.

[1] DPP v Faure [1993] VicRp 87; [1993] 2 VR 497.

[2] For example, prison informers: Pollitt v The Queen [1992] HCA 35; (1991-2) 174 CLR 558, (a witness suffering from mental disability); Bromley v The Queen [1986] HCA 49; (1986) 161 CLR 315 (evidence of confessions by police witnesses in particular circumstances); Carr v The Queen (1988) 165 CLR 315; and McKinney v The Queen (1991) 178 CLR 468.

[3] R v Martin [2003] VSCA 80; [2003] 142 A Crim R 153, [32] - [33] (Vincent JA, with whom Charles and Buchana JJA agreed); DPP v Hester [1973] AC 296, 309 (Lord Morris of Borth-y-Gest).

[4] Pollitt v The Queen (1991-2) [1992] HCA 35; 174 CLR 558, 599 (Dawson and Gaudron JJ); R v Miletic [1997] 1 VR 593, 605-6 (Winneke P, Charles and Callaway JJA); R v Weiss [2004] VSCA 73; (2004) 8 VR 388 [55]-[57] (Callaway JA, with whom Batt JA and Harper AJA agreed).

[5] DPP v Faure [1993] VicRp 87; [1993] 2 VR 497; R v Heaney [1999] VSCA 169; R v Georgiev [2001] VSCA 18; (2001) 119 A Crim R 363.

[6] [2001] VSCA 18; (2001) 119 A Crim R 363.

[7] The applicant cited R v McLachlan [1999] VSCA 127; [1999] 2 VR 553, 561 [30] (Callaway JA) in making his submission.

[8] R v Baskerville [1916] 2 KB 658; Doney v R [1990] HCA 51; (1990) 171 CLR 207; R v Kendrick [1997] 2 VR 699; R v Pisano [1997] 2 VR 342; R v Rayner [1998] 4 VR 818.

[9] [2004] VSCA 98; (2004) 8 VR 213, 228.

[10] [1990] HCA 51; (1990) 171 CLR 207, 210 (Deane, Dawson, Toohey, Gaudron and McHugh JJ).

[11] [1916] 2 KB 658.

[13] [1999] VSCA 127; [1999] 2 VR 553, 561.

[14] Doney v R [1990] HCA 51; (1990) 171 CLR 207, 211 (Deane, Dawson, Toohey, Gaudron and McHugh JJ) (emphasis added).

[15] See R v Rayner (1998) 4 VR 818; R v Trong Duy Ngo [2002] VSCA 188; R v Martin [2003] VSCA 80; [2003] 142 A Crim R 153; R v Taylor [2004] VSCA 98; (2004) 8 VR 213; and R v Gill; R v Mitchell [2005] VSCA 321; (2005) 159 A Crim R 243, [30] (Maxwell P, Charles and Nettle JJA), where the Court of Appeal saw no error in the direction given by the trial judge which was in accordance with the ruling at R v Gill and Anor [2003] VSC 317; (2003) 142 A Crim R 22. See also R v Berrill [1982] Qd R 508, 526-7 (McPherson J); R v McK [1986] 1 Qd R 476, 480 (Connolly J, with whom Thomas J agreed), 483-4 (de Jersey J).

[16] [1998] 4 VR 818.

[17] (1998) 4 VR 818, 838 (Emphasis added). See also R v Gill and Anor [2003] VSC 317; (2003) 142 A Crim R 22.

[18] [2004] VSCA 98; (2004) 8 VR 213, 221 (Ormiston and Vincent JJA agreed).

[19] [2002] VSCA 188.

[20] [2002] VSCA 188, [33] (Winneke P, with whom Chernov JA and O'Bryan AJA agreed) (citations omitted).

[21] [1997] HCA 47; (1997) 191 CLR 275.

[23] Doney v R [1990] HCA 51; (1990) 171 CLR 207, 211 (Deane, Dawson, Toohey, Gaudron and McHugh JJ); R v Kilbourne [1973] AC 729, 757 (Lord Simon of Glaisdale).

[24] R v Martin [2003] VSCA 80; [2003] 142 A Crim R 153, [37] (Vincent JA, with whom Charles and Buchanan JJA agreed).

[25] Ibid [31] (Vincent JA) with whom Charles and Buchanan JJA agreed.

[26] R v Nanette [1982] VicRp 8; [1982} VR 81, 88 (Jenkinson J); R Berrill [1982] Qd R 508, 526-7 (McPherson J); Kalajzich & Orrock v R (1989) 39 A Crim R 41; R v Taylor [2004] VSCA 98; (2004) 8 VR 213, 222 (Winneke P, with whom Ormiston and Vincent JJA agreed).

[27] Doney v R [1990] HCA 51; (1990) 171 CLR 207, 211 (Deane, Dawson, Toohey, Gaudron and McHugh JJ), R v Taylor [2004] VSCA 98; (2004) 8 VR 213, 228 (Winneke P, with whom Ormiston and Vincent JJA agreed).

[28] [1917] 1 KB 25.

[29] [1909] 2 KB 945.

[30] [1951] VicLawRp 31; [1951] VLR 239.

[33] [1975] HCA 21; (1975) 132 CLR 258.

[34] Ibid 264. See also at 267 (Murphy J).

[35] (1991-2) [1992] HCA 35; 174 CLR 558.

[37] [2001] VSCA 18; (2001) 119 A Crim R 363.

[38] See also Attorney General for Tasmania v Maynard [2003] TASSC 20; (2003) 11 Tas R 437,[11] (Cox CJ).

[39] [1951] VicLawRp 31; [1951] VLR 239.

[40] [1977] HCA 30; (1977) 137 CLR 633, 648 (Murphy J), 665-666 (Aickin J).

[41] The expression is found in R v Kerr (No 2) [1951] VicLawRp 31; [1951] VLR 239, 246 (Gavan Duffy J).

[42] Matusevich v The Queen [1977] HCA 30; (1977) 137 CLR 633, 666 (Aickin J).

[43] [1977] VicRp 10; [1977] VR 98.

[44] Bull v The Queen [2000] HCA 24; (2000) 201 CLR 443; The Queen v Soma [2003] HCA 13; (2003) 212 CLR 299.

[45] [2007] VSCA 199; (2007) 17 VR 133, [44].

[46] [2002] VSCA 188, [21] (Winneke P, with whom Chernov JA and O'Bryan AJA agreed).

[47] (Ruling No 6) [2005] VSC 280; (Ruling No 8) [2005] VSC 282; (Ruling No 9) [2005] VSC 283.

[48] R v Lam (Ruling No 6) [2005] VSC 280, [6] (Redlich J); Mooney v James [1949] VicLawRp 6; [1949] VLR 22, 27 (Barry J).

[49] The evidence at trial suggests that the witness was semi illiterate and would have had considerable difficulty in using the document.

[52] [2006] VSCA 74.

[53] [2007] VSCA 95; (2007) 16 VR 240.

[54] [2007] VSCA 110; (2007) 173 A Crim R 149.

[55] [2006] VSCA 74, [3] (Callaway JA).

[56] [2006] VSCA 74, [58].

[57] [2007] VSCA 95; (2007) 16 VR 240, [132] (Eames JA).

[58] [2007] VSCA 110; (2007) 173 A Crim R 149.

[60] [2007] VSCA 153.

[63] [2007] VSCA 261.

[66] (2007) 179 A Crim R 293, [14].

[67] (Emphasis added, footnotes omitted).

1. [68] The second element is that the law will only concede the existence of provocation if there is some kind of proportion between the provocation and the murderous act. The provocation must be of a kind that might, in the same circumstances, cause an ordinary man to react in the same way as the accused reacted. I will go to that in a little more detail.

[70] Masciantonio v The Queen [1995] HCA 67; (1994) 183 CLR 58, 66-67 (Brennan, Deane, Dawson and Gaudron JJ).

[71] Presumably, a reference to the fact that Krajina was a prostitute.

[72] [1998] 2 VR 19.

[73] [2001] VSCA 149.

[74] [2000] VSCA 15; (2000) 1 VR 161.

[75] [2002] VSCA 139; (2002) 5 VR 193.

[76] [2004] VSCA 127; (2004) 10 VR 466.