R v Lovett; DPP v Lovett [2006] VSCA 5

(1) The trial miscarried by reason of the prosecutor's failure to call one David John Lovett as a witness;

(2) The trial miscarried because of the judge's refusal to allow evidence of the applicant's belief as to earlier threats by the victim and his two friends, together called "The Casterton Boys".

(3) The trial miscarried because of the judge's refusal to allow defence of another person to be put to the jury;

(4) The trial miscarried because of the judge's misdirection as to self-defence;

(5) The trial miscarried because Detective Senior Constable Digby gave evidence of a conversation (identifying a jacket) with the accused not recorded on tape;

(6) The trial miscarried by reason of the tendering of pieces of wood and by reason of the judge's directions about them;

(7) The trial miscarried because the judge failed to warn the jury on the dangers of identification of the accused;

(8) The trial miscarried because the judge misdirected on causation;

(9) A combination of errors caused a miscarriage of justice.

3 It is not possible to give a detailed summary of the whole of the evidence since a large number of witnesses were called who gave evidence as to specific events and few of whom saw the blow being struck or even the events immediately leading to it. It is possible, however, to summarise the critical events, albeit that there is some doubt as to precisely where and when each took place.

4 On a Saturday night in mid June 2003 one Matthew Gunningham celebrated his twenty first birthday by having a party at the Sandford Football Club after a match which had been played that afternoon. There were about sixty guests, most of whom were members of the football team or who were their female friends. The applicant and his cousin David Lovett both played for the team and had both been invited to the party. Another person present was one Andrew Larkins with whom the applicant had a disagreement early in the evening. The Crown tried to adduce evidence as to earlier attacks involving the applicant but the learned judge ruled that they were inadmissible as being prejudicial to the applicant's case. As a result the jury were told only that it was common ground that there had been an altercation at the ground earlier in the evening and that had prompted Andrew Larkins to go into a local hotel where he told his older brother Peter Larkins and two friends of his, Brendan Constantine and the victim David Herbert, about what had happened. This had led these three young men to go to the club looking for the applicant and to find out what had led to the altercation although Andrew Larkins did not return. It was these three men who were called "The Casterton Boys".

5 The three Casterton men were not members of the football club and had not been invited, so that when they arrived word got around that they were looking for the applicant. At the time the applicant and his cousin David Lovett were in the kitchen of the pavilion, David Lovett giving evidence that he was tending the bar at the time. The applicant broke a mop into two halves and gave one half to his cousin and kept one half for himself before approaching the Casterton men outside the pavilion. A number of fights took place between the Lovetts and the "Casterton Boys" near the front of the pavilion. All received punches and kicks but at that stage no one was seriously hurt or disabled. Other persons present tried to calm things down and those fights appeared by then to subside. In the course of those fights Brendan Constantine admitted having kicked David Lovett in the head while he was on the ground, a fact which was said in the course of this application to have caused the applicant to make his final attack on the victim in order to defend his cousin.

6 When these fights temporarily subsided the applicant and his cousin, together with a few friends, began moving away from the pavilion or club rooms towards the score board, when suddenly the applicant picked up a large piece of wood and walked back towards the pavilion. He walked towards David Herbert who was standing near the doorway but facing his friends inside. A number of witnesses gave evidence of the applicant holding the piece of wood but only two gave direct evidence of the applicant then striking the victim on the head from behind, using the piece of wood in a baseball type motion. David Herbert immediately fell to the ground unconscious and bleeding from nose and mouth. He had suffered a fractured skull which required emergency treatment at the Hamilton Hospital and he was eventually taken in a critical condition to the Royal Melbourne Hospital, although steps taken at the local hospital seemingly had prevented him from dying from the injury. As already stated, he has suffered permanent brain damage and other disabilities making it impossible for him to give evidence.

7 After striking the blow the applicant then moved away again from the pavilion, encouraged by one of the witnesses, Darren Murrell, to leave the scene as quickly as possible. Both he and his cousin had jumped a fence and were given a lift away by two friends who had been at the party. To them the applicant said: "I hope the bloke's okay. I hope I haven't killed him." In due course the applicant was arrested but made a no comment record of interview and indeed at no time has he made any statement or given any evidence as to his version of what occurred on the night.

8 It is not practical to set out what each of the 30 or so witnesses said as to various events which took place on the night in question. As I have said, only two witnesses in fact gave evidence that they observed the applicant striking the victim with the piece of wood, namely Darren Murrell and David Dwight. A few other witnesses saw the applicant with the piece of wood, seemingly on his way back towards the pavilion. Although there is a good deal of confused evidence about the fighting, or at least about the various instances of fighting which took place, it seems that largely the three Casterton men, on the one side, and the applicant and his cousin David Lovett, on the other, were the ones directly involved in any serious fighting, although one or two others became involved on a limited basis. Certainly there was no fighting before the three Casterton men arrived at the party late in the evening. The fighting was over when David Herbert fell and the applicant and his cousin left the football ground.

9 A number of issues were raised at the trial and for present purposes it is sufficient to mention the following. There was a dispute as to whether the applicant was responsible for the blow to Mr Herbert's head, although nobody else was mentioned or suggested as responsible for the blow. The applicant's intent was in issue in as much as, if he struck the blow, there was a question whether he did it intentionally or recklessly. A good deal of time was spent at the trial seeking to ascertain who had commenced the fighting. There seemed little doubt that the three Casterton men had come uninvited to the party, provoked seemingly by what they had discovered of the applicant's earlier altercation with Peter Larkins' brother. In evidence there was more suggestion than hard evidence as to threats uttered by the Casterton men on their arrival, although David Lovett said that he heard them utter a threat to kill his cousin but did not go so far as to say that that was said in the presence of the applicant.

10 The next major issue was the claim of the applicant based on self defence, although at the very end of the trial it was also suggested that the blow was struck in defence of his cousin. One may accept that the applicant believed, with some reason, that the Casterton men had come to have it out with him, but how the fight started is by no means so clear. According to David Lovett who gave evidence for the accused, he and his cousin left their positions inside the club rooms and went outside before any fighting began. It seems equally clear both on his evidence, and that of many other witnesses, that one or both of them were carrying broken mop or broom sticks with which to defend themselves. At the same time there is no doubt that the Casterton men were unarmed. It is presently irrelevant who struck the first blows and in any event the evidence is not clear on the subject. There were at least two instances of fighting, the first outside the bar and the second closer to the changing rooms before the final blow was struck. It seems that, after the second outburst of fighting, Darren Murrell had distracted the applicant sufficiently to take him some twenty metres or so away near the scoreboard in the hope of getting him to leave. It is likely that David Lovett was in the same area, although a few witnesses appeared to think that he again became involved in the fighting when the critical blow was inflicted on the victim. David Lovett's own version suggested that he was continually involved in the fighting. As the applicant gave no evidence and there was no material relating to his attitude to the victim and the fighting because of the uninformative answers he gave in his police interview, it is difficult to state with clarity the basis upon which the applicant feared for his own safety at times relevant to the inflicting of the ultimate blow on the victim. Although there was a detailed direction as to self defence, his case faced the difficulty that at the time of picking up the wood, he was some distance away from the club rooms and those with whom he had been fighting and so could have left the area of the football ground easily in largely the same way as he ultimately did so after the final blow was struck. Nevertheless it was claimed that he was sufficiently in fear for his own safety at the time that he picked up the wood and came back to the outside of the pavilion to strike the critical blow. Other questions of fact will be dealt with in the course of dealing with the arguments based on the several grounds.

Ground 1

11 The first ground relied upon by the applicant was a claim that the trial miscarried by reason of the failure of the prosecutor to call David Lovett as a witness. It is clear that the prosecutor (who appeared at the trial but not on this application) had not been supplied with any statements from David Lovett, nor indeed did she have a transcribed version of the police interview. The most she had was some instructions from the informant as to the contents of the interview and information she gleaned herself from seeing part but not all of the videotape of that interview. David Lovett had never been interviewed and subsequently, although at one stage it was left open as to whether he himself might be charged, no charges were brought against him, albeit he was never so informed.

12 The applicant has contended that the prosecutor failed to exercise her discretion properly in all the circumstances. She had decided in advance that David Lovett should not be a witness, largely upon the basis of what the informant had told her. She had made no independent assessment of that evidence, so it was argued, nor did she seek to obtain further material upon which she might properly exercise her discretion. She therefore had no sufficient basis for reaching a conclusion that the witness was unreliable, as she had maintained in the course of preliminary argument at the trial. She placed particular weight on David Lovett's unwillingness to make a statement, together with what she had seen from the recorded interview. Moreover and most importantly, the information available to her showed that he was not an eye witness to the attack and could give no evidence as to what the applicant was doing at the relevant time.

13 The learned judge, having seen the videotape for herself[1], there was no sufficient basis for her to take any steps in accordance with accepted authority, in particular R v. Apostilides[2]. In her opinion it was not a case where the judge should call the proposed witness to give evidence. Nevertheless she did express some disquiet at the prosecutor's decision and requested her to reconsider her position, in particular when all the other evidence had been called. The matter had been referred to later in the trial but the prosecutor maintained her position so that David Lovett was not called as a Crown witness. It so happened, however, that he was called as one of two witnesses in the applicant's case, although the applicant himself did not give evidence.

14 As stated in Apostilides[3], a decision not to call a particular person as witness will only amount to a ground for setting aside a conviction in circumstances where, having regard to the conduct of the trial as a whole, that refusal is seen to give rise to a miscarriage of justice or it can be said that the verdict was unsafe or unsatisfactory.

15 In the present case, notwithstanding that it is significant in cases of this kind that the accused should have the opportunity to cross examine the relevant witness, this Court does have the benefit, as did the jury, of hearing the evidence of David Lovett as to his recollections of what occurred on the night in question. Whether or not any inconsistencies between his evidence and that of the other persons present who gave evidence were such as to demonstrate that his evidence was likely to be untruthful in significant respects, David Lovett's evidence did not substantially add to the total information available to the jury as to the applicant's participation in the striking of the blow which constituted the counts on which he was charged. Undoubtedly David Lovett's evidence suggested in some detail that he and the applicant were at considerably greater risk of injury from the three Casterton men than was suggested by the other 30 or so witnesses. But there was no doubt that there had been two bouts of fighting in which blows had been struck, including the kicking of David Lovett in the head by Brendan Constantine. That may have showed that he was of considerable greater risk of being seriously injured than may have been inferred from the other evidence (although I doubt it), but the trial had not been run upon any claim that the applicant was acting in defence of his cousin, although it was raised at this end of the trial and thus one of the grounds of this application is that that should have been left to the jury. So far as the prosecutor was concerned, that issue had not been earlier raised by counsel for the applicant who again was different from counsel who appeared on this application. In substance David Lovett's evidence as to the latter part of the night's events was largely directed to what had happened to him and who had attacked him that and he conceded readily enough that he knew nothing of what was happening at the time to his cousin or where he was in the time immediately leading up to the striking of the blow to Mr Herbert. To that extent he was unable to say anything which might have exculpated the applicant from any responsibility for the blow by denying his presence or that he wielded the piece of wood.

16 In consequence David Lovett was not an eye witness to any events of immediately significance to the trial, although he could have added something to the already confused background of which the jury was already aware. His evidence would have given a more favourable view, to some extent of the activities of the applicant and his cousin, but for practical purposes what he said was relevant to the applicant's activities only in the early stages of the fighting. As to that it can be said that the role of neither group, whether the three Casterton men or the Lovett cousins, was critical to a decision as to the guilt of the applicant at the trial. In particular he would have been able to add so little to a description of the applicant's movements and conduct in the latter stage of the fighting, that it would not be possible to say that any of his evidence could assist in supporting the applicant's contentions at the trial based on self defence. We know this because, when called, he was simply unable to give any evidence of what happened at any relevant later time and, having regard to the way in which he gave his evidence in chief (as well as to what he said in cross examination), it is not practicable to see that cross examination of him by the applicant's counsel could fairly have improved the applicant's case at trial, even if David Lovett had been called as part of the Crown case.

17 In short, therefore, I do not believe that, whatever be the merits or propriety of the prosecutor's decision, her refusal to call David Lovett gave rise to any miscarriage of justice. Ground 1 therefore cannot succeed.

Ground 2

18 By his second ground the applicant asserted that that trial miscarried because of the judge's refusal to allow evidence of the accused of his belief as to earlier threats by the three Casterton men. In the end, however, his counsel said that they did not rely on this ground on its own but wished to use it in part as a basis for ground 9.

19 The circumstances leading to this alleged refusal arose in the course of the cross examination of a witness, Kim Eagleson, as to threats made to the applicant before the night in question. The prosecutor objected, partly because the issue had not been raised with any previous witness, Ms Eagleson being about the twelfth witness called at the trial. Moreover she explained that she was excluded from venturing into the behaviour of the applicant earlier that night and there was a risk that the questions would enter into areas which had already been ruled inadmissible. After the judge questioned counsel for a short time, counsel conceded the point and did not take it any further. That concession is one reason why counsel now says that the ground cannot be relied upon on its own.

20 Nevertheless it is contended that the concession should not have been made because it was relevant to the actions of the applicant on the night and in particular to self defence. Counsel, however, candidly admitted that there had been an earlier ruling by the judge in favour of the applicant whereby details of an earlier incident that night between the applicant and Andrew Larkins had been excluded, this leading to the judge stating that the jury should be told that it was common ground that there been merely an altercation between those two persons at the party earlier in the evening, without examining the details which led to it.

21 It is not surprising in those circumstances that counsel conceded the issue. There obviously had been bad blood between the applicant and at least Andrew Larkins previously. In order to avoid the calling of a large amount of additional evidence, which might have provided motives for animosity between the parties but which could not really have been resolved satisfactorily in the context of the trial, the judge fairly took the view that some of those matters may have been prejudicial and it was better to exclude them. Defence counsel having chosen to object and to seek a ruling excluding certain matter going to motive, it hardly lay in her mouth to object to other matters of the same kind which might have turned out to be favourable to her client's case. Although evidence of the relationship between the parties is frequently admissible as helping to explain the circumstances leading to an attack or the like, the judge could not admit some material and exclude other of the same kind. The decision not to persist to seek a ruling permitting the particular cross examination was clearly a forensic decision by counsel who must have appreciated that, by allowing the proposed questions, a wider range of evidence relating to the applicant's behaviour at earlier times could well have been admitted.

22 There is no substance in the ground, howsoever it is relied upon.

Ground 3

23 The third ground claimed that the trial had miscarried because the judge refused to allow the defence of another person to be put to the jury and failed to direct them on that issue. There was no dispute that, if there had been evidence and if the circumstances had been appropriate, defence of the applicant's cousin might properly have been the subject of defence and suitable direction by the judge, as was held in R v. Portelli[4], where it was held that the defence of another was "equally applicable whenever a response is made to an attack upon any person, whether relative, friend or stranger, so long as it is understood that the claimed right, the exercise of which the Crown must negative, remains based on what is perceived to be reasonably necessary by the accused in all the circumstances which may, but not necessarily will, be affected by the possible lack of immediacy of that threat".

24 In the present case the objection to allowing defence of another, namely David Lovett, to be raised by the applicant was first raised on the basis of unfairness, in that no mention of such a defence was made until all the evidence had been called and counsel was discussing with the judge what directions should be given. As the judge pointed out to counsel, in the course of what is now the conventional opening by the defence, self defence had been specifically mentioned but no mention had been made of the applicant seeking to defend his cousin. In a sense that was not surprising, since the only evidence specifically relied upon then by counsel had come out in an obscure way in the course of cross-examination by counsel for the prosecution. Although the judge seemed to think that the question of fairness was important, it must be observed that in a criminal trial, where evidence arises in the course of the trial which might be a basis for acquittal of an accused, a judge should be very cautious before refusing to allow that defence to go before the jury on the ground of unfairness to the prosecution. The judge is obliged to direct the jury upon the evidence before the court and, if there be sufficient evidentiary material to justify directing the jury on a particular issue, then it is ordinarily the judge's duty to do so. At the same time the judge should be astute to avoid unfairness and that might, in particular circumstances, lead to the recalling of witnesses or to leave being granted to call witnesses in reply, if the matter be raised as late as it was in the present case.

25 In the end the judge decided that there was no evidence that, at the time the blow was struck to David Herbert, the applicant was seeking to act in defence of his cousin. Upon careful consideration that conclusion seems correct. Indeed it might be said to be hardly surprising having regard to the nature of the trial, the duration of the evidence and the course chosen by the applicant. Apart from the passage to which I am about to refer, there had been, in the course of nearly three weeks of evidence from some 33 people present on the night, no suggestion that, if the blow had been struck by the applicant to the victim in the manner described, he was seeking thereby to defend his cousin from some other attack by Mr Herbert or one of the other men from Casterton. Of course, at the outset there can be little doubt that the three Casterton men came looking for trouble and that the applicant and his cousin were not unwilling to face it. Nevertheless when the final blow was struck, the parties had moved a considerable distance from where the first confrontation took place and there had been at least one, if not two lulls in the fighting.

26 Nevertheless the evidence upon which counsel relied at the end of the trial and on this appeal was a non-responsive answer by David Lovett in the course of cross examination to the question, "Then you became involved in the fight, effectively to help Shane". David Lovett had replied by saying, "No, it was the other way round. I went out the door first, I approached them, I spoke to them calmly, they attacked me. Shane was there in my aid to help me, and then - I mean its - as I said, if someone stands there and looks at you in the eye and tells you they are there to kill and hurt your - bash your brother, I mean it is a very scary thing." Not only was the answer largely unresponsive, but it might also be said to be inadmissible in that the witness was purporting to say what was in the mind of his cousin, a difficult enough exercise at the best of times. No more was said of that aspect of the dispute, and one doubts if anything more could have been said about it. It is clear that this referred to the early stage of the fighting because David Lovett was able to speak at that stage as to what his cousin was doing, whereas it is more than clear from both his examination in chief and cross-examination that at the later stage of the fighting he observed nothing of what the applicant was doing. That, of course, was not entirely surprising, for the direct witnesses spoke of the fact that, shortly before the final attack, the applicant had moved some 20 or so metres away towards the score board before returning with the piece of wood.

27 Cases such as the present show the difficulties which can arise where an accused raises self defence or defence of another (or at one time provocation) when that accused choses not to give evidence and has given answers in the course of an interview which are either non responsive or say nothing about any claim of self defence or the like. It is not illogical to view that approach by an accused as making it almost impossible for the accused to raise defence of another, as there is a complete absence of any material, evidentiary or otherwise, as to the hypothetical apprehension that the accused has or as to what is perceived by him or her to be reasonably necessary to protect the other person. In some cases of self defence, of course, the jury may fairly be asked to infer that the accused is seeking to defend himself or herself by viewing the acts of the victim as necessarily, or last arguably, as likely to instill the required apprehension in the mind of the accused, say where a gun is pointed or a knife is lifted ready to strike. It is not impossible to take the same approach if the defence of another person is raised, but the inference must then be drawn from what the accused is able to see of a threatened attack on another person. In the present case the evidence is such that it is impossible to infer what the applicant saw of any attack or threatened attack on his cousin, for there was simply no evidence that there was an immediate attack taking place or that the applicant could see any such attack. Certainly David Lovett had already been attacked and kicked to the head and, if the blow to the victim had occurred while the victim was attacking David Lovett, then some basis for putting a defence of another to the jury would have existed. There was no such evidence and the best that could be said on behalf of the applicant was that one of the three Casterton men may have still been engaged in attacking David Lovett. But that was not clear, indeed the prosecution case was that the applicant had to come several metres towards the pavilion to attack the victim who was not attacking anybody at that particular stage. In the absence of any evidence as to what the applicant said he saw or thought were the circumstances at the time, there seems to be no basis upon which defence of another could fairly have been left to the jury.

28 In these circumstances, ground 3 should be rejected.

Ground 4

29 The fourth ground of the application stated that the trial had miscarried by reason of the judge's misdirection on self defence in that the judge had said that the test was the actual or threatened violence by David Herbert at the relevant time which caused the applicant to defend himself. The words in question were in fact used but they were not used as the description of the whole test, but merely as part of an analysis of the factors which had to be borne in mind. On the face of them, a question might appear to have been posed based on merely an objective view of the jury as to what was the actual or threatened violence on the part of the victim. That, however, overlooks the fact that the judge had clearly directed them to consider the circumstances so as to "consider both the actual belief of the accused and the reasonableness of his forming such a belief". As so expressed I do not believe it imposed an entirely objective test, which has been criticised on many occasions.

30 I do not propose on this occasion to set out the whole of the judge's directions on the issue of self defence. They are detailed and careful and they fairly raise each of the matters which in the past had been seen to be important to draw to the jury's attention: cf. Zecevic v. D.P.P.[5] and Portelli. The objection appears to be more to the emphasis which the judge placed on the issue of proportionality, it being suggested that the charge suffered from the defect described in Portelli[6], where it was stated that the form of charge appearing in the Charge Book gave undue emphasis to proportionality by dealing with it in the concluding paragraph of the suggested charge. Thereby the Court in Portelli thought that the test laid down in Zecevic required the jury to consider all the relevant circumstances without giving undue emphasis to any one or more of them by picking on one with which to conclude the necessary direction, so as to impose an additional test.

31 But the judge in this case did not follow the formula laid down in the Charge Book, nor did he repeat the error in Portelli in that he concluded in these terms:

"The prosecution has the obligation of negativing self defence beyond reasonable doubt. It must establish beyond reasonable doubt that the accused had no belief that it was necessary to commit the act he did in self defence or that there were no reasonable grounds for such belief. The prosecution, in the context of this case, must also establish beyond reasonable doubt that the force used by the accused was out of all proportion to any attack which he could reasonably have believed was threatened by David Herbert.

You should bear in mind that a person defending himself may not be able to weigh precisely the exact action which should be taken to avoid the threat which he reasonably believed he faced at the time. You must consider the whole of the circumstances, the degree of force used being only part of the whole picture".

This quotation is but part of some six pages of the charge devoted to the issue of self defence. It is not suggested that it would constitute the whole or the essence of an ideal charge for every case. Nevertheless one can see from the approach of the judge that she has fairly come to the end of a series of particular observations by emphasising a number of critical matters in an appropriate way. She has emphasised the burden which rests on the prosecution by saying that it must demonstrate that there was no belief of the relevant kind. She has emphasised that for the purposes of the case the prosecution is also required to establish that the force used was disproportionate. Fairly she has emphasised that the precise act in self defence is one which should not be too critically weighed but she finally came to a statement that the jury must consider the whole of the circumstances, emphasising that the degree of force was only part of the whole story. It seems to me that the judge's reference to a consideration of the whole of the circumstances was precisely what was required to be emphasised at the end of a detailed charge on the subject of self defence. It did not seek to emphasise one aspect of the test as if it were a further requirement of the test; indeed it is clear from the last sentence that the jury are being told that the degree of force is only one of the circumstances which generally must be taken into account in deciding whether the prosecution has negatived the defence case.

32 In those circumstances I cannot see that there was any error in the manner in which the judge directed the jury, certainly not an error of the kind which led or could have led to any miscarriage of justice. I might add that counsel also complained, without precisely stating its vice, that the judge expressed a view as to what the jury might do on the issue if certain facts were made out to its satisfaction. It is clear from the way in which the opinion was stated that the judge made clear that it was only a comment made by her and I have no doubt that the jury understood precisely what she was intending to do and would not have been improperly influenced by the comments.

Ground 5

33 Ground 5 asserted the trial miscarried by reason of a policeman giving evidence of conversations with the accused not recorded on tape. In fact it was only an incidental part of an interview which had been ruled inadmissible which by chance was allowed into evidence. The prosecution sought to tender a jacket which was alleged the applicant was wearing the night in question. The jacket was tendered together with certain runners and the connection with the applicant seemingly came from the interview. Although there was some objection made at first to the receipt of the jacket in evidence in this way, the objection was not persisted with and there seemed thereafter no objection to its reception in evidence.

34 Consequently on this appeal counsel conceded that this ground could not succeed on its own but in my opinion there is no substance in it having regard to the manner in which it was dealt with below.

Ground 6

35 Ground 6 relating to directions concerning the pieces of wood which were said to have been used by the applicant, was not persisted with on the hearing of the appeal.

Ground 7

36 By the seventh ground the applicant asserted that the trial miscarried because of the judge's failure to warn the jury of the dangers of identification. In particular, the ground complained that the judge should have warned:

(1) that identifying witnesses can be mistaken;

(2) that there were special dangers in accepting the evidence of David Dwight and Darren Murrell;

(3) that one identifying witness did not necessarily support another; and

(4) that it was significant that different descriptions had been given of the clothing worn by the applicant.

37 This is again a case where a ground is now put forward which was not the subject of any request or exception at the trial. On this application a number of general propositions were put, as to which, when properly understood, then there can be no doubt that judges in certain cases have a duty to warn against the unreliability of identification evidence: see esp., in recent years Domican v. The Queen[7] and Festa v. The Queen[8]. It has been accepted in this country, at least since Davies and Cody v. The King[9], that juries should be made aware of the potential for error when an issue arises as to the identification of an accused said to be participating in a crime.

38 In the present case it is not entirely clear, notwithstanding the submissions made on this application, that identification of the applicant by the several witnesses who either saw him strike the blow or saw him carrying the piece of wood, was really in doubt. A reading of counsel's address to the jury shows that there were but brief references to issues relating to identity in that counsel referred to the differing accounts of the clothing worn by the applicant, as to the way in which the blow was struck and briefly to the extent of lighting outside the pavilion. Generally, however, the attacks made on the principal witnesses who said they say saw the blow struck, namely David Dwight and Darren Murrell, concentrated on their unreliability, added to which the supposed potential for confusion arising out of the general melee on the evening was relied upon.

39 That the trial was not seen as raising a true identification dispute may be gauged from the fact that, although the judge carefully summarised the evidence and the arguments, there was no request for a conventional identification direction, nor any exception taken to its absence. It may be that counsel saw that the self-defence argument had greater potential for success or that it was hoped that the general confusion arising from the fighting and the absence of other persons willing to give evidence of the striking of the blow was seen to be more significant. It may be that counsel was realistic enough to appreciate that there are only two people likely to have struck such a blow, being the applicant and his cousin David Lovett. Counsel had called David Lovett and relied on his account, so far as it went, but it was clear from his evidence, as it was from the evidence of all others present who dealt with the question, that David Lovett was not responsible for the blow, nor was he in a position at the time to inflict it. The applicant was the only other person fighting the "Casterton boys" and there was no suggestion, for it would have been fanciful, that some other person came out of the dark on that night to take advantage of the confusion to strike the blow. The general circumstantial evidence would have made it difficult for the jury to resist the conclusion that, if such a blow was struck, it was struck by Shane Lovett, especially when one has regard to his expressed concern as to the fate of David Herbert when he disappeared from the party shortly afterwards.

40 Counsel for the respondent also contended that this was not a true identification case but what has come to be called a "recognition" case. The distinction, referred to on a number of occasions, is said to arise from the original statement of the rule in Davies and Cody[10], where it was said that appropriate directions should be given "if a witness whose previous knowledge of the accused man has not made him familiar with his appearance has been shown the accused alone as a suspect and has on that occasion first identified him" (Emphasis added). It is unnecessary to examine every case in which the distinction has been emphasised but one may mention for present purposes the following: Arthurs v. A.G. (N.I)[11]; R. v. Burchielli[12]; R. v. Marijancevic[13]; Festa[14]; and R. v. Conci; R. v. Kane[15].

41 In the present case there can be little doubt that the relevant witnesses all knew the applicant in as much as they were either members of the football club or were connected to it, and all, with one or two minor exceptions, had met him on numerous occasions and were familiar with him. The vice in most identification evidence is usually seen in the manner in which a fleeting glance of the perpetrator of a crime is recalled and attached to a person or a picture of a person later shown to the witness; but I would be hesitant to say that, merely because a witness is already familiar with the person who it is believed was present at the scene of a crime, thereby it automatically follows that there is no need for a warning. Difficulties of observation at the time a crime is committed frequently are just as great and the possibility of jumping to conclusions as to the identity of the miscreant with a person already known may likewise be just as great, albeit that there will ordinarily be no need for any subsequent formal identification process. What is required in every case will vary, the object in each being to avoid a miscarriage of justice which may flow from the failure to warn a jury of the danger arising from possible confusion or mistake. Even as long ago as Davies and Cody[16] the undesirability of placing cases relating to the identity of an offender in separate categories was reflected in the Court's observation:

"It is almost unnecessary to say that the amount of care and the nature of the precautions which should be taken when a potential witness is brought to identify an accused or suspected person must vary according to the familiarity of the witness with that person".

42 In the present case there were some factors which might have been said to conduce to the risk that the identification of the applicant was mistaken, in that the attack occurred at night with relatively little artificial illumination, and in that there was a degree of uncertainty as to the piece of wood used and as to the clothing worn or said to be worn by the applicant. If a witness, having similar familiarity with the accused, had merely chanced on some occasion of alleged offending, then that may have required a suitably tailored warning about identification and the possibility of mistake. On the other hand the circumstances of the present case, and the participation of the witnesses in the events of the evening and their knowledge of the participants in the fighting, together with their opportunities to observe the applicant on the night over an extended period of time long before the final attack took place, meant that, if the witnesses were mistaken, or otherwise not telling the truth about these events, it was not because of any difficulty in identifying the applicant. Having regard to the care with which the trial was conducted, it seems unlikely that judge or counsel would have overlooked the need for such a warning as to identification if it had been seen as a suitable case for giving one. In my opinion there was no such need, if one considers not only the familiarity of the witnesses with the applicant but also the evidence overall as to what occurred, in particular the admissions subsequently made, at least if the jury were prepared to believe the evidence that they were made. I see no reason to doubt that the jury could properly have reached the conclusion that they did in those circumstances.

43 For these reasons the ground in question has not been made out.

Ground 8

44 Here it was said on behalf of the applicant that the trial had miscarried because the judge had misdirected on the issue of causation. The contention was that it was not clear that the blow said to have been struck by the applicant was the blow which caused the injuries which led to the victim's present unfortunate condition. In part reliance was placed on a degree of uncertainty as to where the blow was struck, as to whether it was on the left or the right or the back of the victim's head and secondly upon an observation in cross-examination that the injury might have been caused by a fall or a punch other than the infliction of a blow with a piece of wood.

45 For myself I think there is little substance in either of these matters but it is by no means clear what error is said to have been committed by the learned judge and in particular what misdirection was given. In truth, as I understand the matter, it has been merely suggested that the judge should have emphasised the possibility that these matters of evidence might lead to a doubt as to the applicant's guilt.

46 I have no doubt that the judge more than adequately described these matters to the jury and said sufficient of the dispute as to leave the jury in no doubt that the applicant was seeking to deny responsibility in reliance on the matters so raised. The matters were dealt with in the judge's charge and there was no exception to what she said, nor should there have been, for the matters were essentially questions of fact properly left to the jury.

47 There is no substance in this ground.

Ground 9

48 This ground asserted that a combination of errors caused a miscarriage of justice. For this purpose authorities such as R. v. Kotzmann (No 1)[17] were relied upon. In as much as it was said the matters put forward in support of the various grounds, if not individually successful, might be shown to have caused a miscarriage of justice, it should be clear from what I have said about the various grounds, and in particular the two grounds upon which no separate reliance was made in argument, that there is no basis for saying that a miscarriage of justice has here been demonstrated.

49 In consequence the application for leave to appeal against conviction should be dismissed.

Appeal as to Sentence by Director of Public Prosecutions

50 For the purposes of this appeal it is unnecessary to add much by way of detail to what already has been stated. The judge carefully set out all the relevant factors in detailed reasons for passing sentence, although it may be noted that she unfortunately referred to the events which preceded the confrontation which had been deliberately omitted from the evidence given to the jury at the trial. Merely because the jury has brought in a verdict of guilt does not entitle the judge ordinarily to bring into account matters which have been so excluded. Nevertheless the rest of the sentence is most carefully worked out.

51 As to the injuries suffered, the Director has contended that the consequences were devastating and there can be no doubt about that characterisation. The victim had suffered a blow which by a CT scan was shown to result in the fracture of three bones of the skull on the left side, the temporal bone, the zygoma and the orbit, under one of which was an extradural haematoma resulting in compression of the brain in that part of the skull. Emergency surgery took place at Hamilton Hospital to remove the blood clot and that was said to have prevented the almost certain death of the victim. Nevertheless he was in intensive care at the Royal Melbourne Hospital for over 30 days and his speech, comprehension and memory, as well as the function of the right side of the body have been severely impaired, although he is no longer paralysed down the right side of his body and his speech has improved somewhat in recent times. It is likely that his present condition which has resulted in a need for support to manage his own affairs and an inability to read and hold a driver's licence, which each will be permanent.

52 As to the applicant, he was at the relevant time 31 years old and admitted to 36 prior convictions arising out of 13 court appearances between 1993 and 2003. Eight of those prior convictions involved assault or violence, including one conviction also for recklessly causing serious injury and two for recklessly causing injury. His upbringing was difficult in that his parents separated before he was born and he had very little contact with his father during his formative years. There was considerable evidence as to how the applicant had attempted to improve himself and reform his behaviour in recent years, but the judge pointed out that that evidence was not entirely consistent with those convictions or with what he did on the night in question.

53 It should also be noted that the applicant offered earlier to plead guilty to the alternative count of recklessly causing serious injury, an offer made nearly one year before the trial, but that offer had been refused by the Crown.

54 Doubtless this was a very serious example of the commission of a serious offence, but it must be emphasised that the applicant was not found guilty of intentionally causing the particular injury or indeed of intentionally causing serious injury. The jury were prepared to be satisfied only that it was inflicted recklessly, so that much of the argument based on the devastating nature of the blow and its consequences must be looked at in that context. Of course, to satisfy the test of recklessness, the applicant must have had some comprehension that what he was doing was likely to cause serious injury to the victim, but the verdict also means that he did not directly have it in mind to cause the appalling injuries or the consequences from which David Herbert is now suffering.

55 Having regard to the verdict I am unable to be persuaded that the sentence was beyond the range which was open to the judge upon this count of recklessly causing serious injury. There were a number of factors in his favour which the judge was entitled to take into account and it was not suggested that they were irrelevant to the sentencing discretion. As is frequently said, the question whether a sentence is manifestly inadequate does not permit of a great deal of examination by way of

analysis. Other judges may have taken a stricter view but I cannot be satisfied that, having regard to the strict test laid down in relation to appeals against sentence by Director, that this is a case which calls for correction. This Court should give proper weight to the assessment of the trial judge, both as to head sentence and as to minimum term, having regard to the nature of the verdict, and make full allowance for the detailed understanding of the circumstances which the learned trial judge clearly had.

56 The Director's appeal against sentence should also be dismissed.

57 In my opinion the application for leave to appeal against conviction should be refused and the appeal of the Director dismissed for the reasons stated by Ormiston, J.A.

58 I agree with Ormiston, J.A., for the reasons which his Honour gives, that the application for leave to appeal against conviction should be dismissed; and likewise the Director's appeal against sentence.

[1] Counsel did not insist that this Court should view the tape.

[2] [1984] HCA 38; (1984) 154 C.L.R 563.

[3] At 575, 578.

[4] The potential width of that defence was recently recognised in this Court in R. v. Portelli [2004] VSCA 178; (2004) 10 V.R. 259 at 268-269, per Ormiston, J.A. with whom Winneke, P. and Charles, J.A. agreed.

[5] [1987] HCA 26; (1987) 162 C.L.R. 645.

[6] See at 269 [21].

[7] [1992] HCA 13; (1992) 173 C.L.R. 555.

[8] (2001) 206 C.L.R. 593.

[9] [1937] HCA 27; (1937) 57 C.L.R. 170.

[10] At 182.

[11] (1970) Crim. App. R. 161 (H.L.).

[12] [1981] VicRp 61; [1981] V.R. 611.

[13] (1993) 70 A.Crim.R. 272 at 276. (C.C.A. (Vic))

[14] 208 C.L.R. at 600.

[15] (2005) VSCA 173 at paras [52]-[56].

[16] See 57 C.L.R. at 181.

[17] [1999] VSCA 27; [1999] 2 V.R. 123 at 138 and 157.