R v McLachlan [1999] VSCA 127

Court of Appeal (Vic)|1999-08-25|Before: PHILLIPS, C.J., CALLAWAY and BUCHANAN, JJ.A.

The applicant and one Tracy Ann Marshall were presented in the Supreme Court on one count of murder. After a trial occupying 12 days the applicant was found guilty of murder and Marshall was found guilty of manslaughter. Pleas for leniency were heard, following which the applicant was sentenced to 18 years' imprisonment with a non-parole period of 13 years and Marshall was sentenced to four years' imprisonment with a non-parole period of two years. In each case a declaration was made regarding 664 days' pre-sentence detention. The applicant seeks leave to appeal against both conviction and sentence.

Describing the circumstances of the offences of which the applicant and Marshall were convicted is a task to be undertaken with particular care because much depends on the view one takes of the evidence. The conclusion I have reached on the application for leave to appeal against conviction is that there must be a new trial, at which conflicts in the testimony of some of the witnesses are likely to be of importance. Although Mrs. Morrish criticized the learned judge's summary of the facts in the course of his sentencing remarks, which adopted the account given by Emma Stevens even where it differed from that given by Kristen Ogilvie, the safest course for present purposes is to adopt that summary to give an overview of the case. In doing so, I express no opinion on counsel's criticisms, which bore principally upon the application for leave to appeal against sentence.

His Honour summarized the circumstances of the offences as follows:

"Derek Jones was killed on the night of 21 June 1996, outside a unit in Canterbury Road, Bayswater, where the two of you then lived. On that night, you, John McLachlan, arrived at the unit after spending some time drinking alcohol in the city. Five of you were talking and drinking alcohol: you two, Derek Jones, Emma Stevens and Kristen Ogilvie. Both of the last two gave evidence at your trial. ...

On that night Derek Jones was drunk. He was boasting; he was threatening. His boasting and threats annoyed both of you. One matter about which he boasted was that he had contacts who could kill people. He said he wanted to kill Andy Jones, the mutual friend who had introduced you to each other. At one point he went to make a telephone call, saying, as if to indicate he would carry out his boasts, 'Now we'll see who's who'.

From about the time he returned from trying to make the telephone call, both of you acted in a number of ways that indicated that you had agreed on a plan to teach Derek Jones a lesson. You, Tracy Marshall, said, 'Now we'll see who's who'. Whereas earlier you, John McLachlan, had merely verbally abused Derek Jones, you turned on cue from Tracy Marshall to physical assaults. First, you punched him so that he fell to the floor. There you kicked him. Within a short period you had immobilized him. You dragged him out to the unit's porch. Over the next hour or so, while Derek Jones was on the porch, and later on the driveway nearby, you subjected him to further sets of assaults. Between those assaults you went back inside the unit.

One set of assaults was linked to you, John McLachlan, trying to obtain from Derek Jones the PIN number for the keycard in his wallet, which you, Tracy Marshall, had taken from Derek Jones. In another set of assaults you, Tracy Marshall, kicked Derek Jones several times as he lay immobilized. In the most brutal set of assaults you, John McLachlan, not only further kicked and punched Derek Jones, you took him by the hair and slammed his head on the concrete.

When it was suggested that an ambulance should be called both of you opposed that course being taken. Instead, Derek Jones was dragged into the unit's garage and there he died."

The deceased sustained both head and abdominal injuries, particularly to the liver, which was found on examination to be considerably enlarged and to have suffered multiple capsular lacerations. There were 500 ml. of partially clotted free blood in the peritoneal cavity. The medical evidence given by Dr. Robertson was that the deceased died of his injuries and that either the head injuries or the abdominal injuries could have caused his death, but she was not able to say which of them had in fact done so.

The learned judge interpreted the jury's verdicts as follows:

"I am sentencing you on the basis that the two of you acted in concert. I find that there was a plan. The plan was quickly made and of limited scope. The plan was not to kill Derek Jones or to really seriously injure him; it was to injure him by assaulting him to teach him a lesson for his boasting and threats. It was in the execution of the plan that you, John McLachlan, formed a more serious intention.

In sentencing you, Tracy Marshall, for manslaughter, I have done so upon the basis that you were a party to concerted action to inflict injury, but not really serious injury, on Derek Jones, which action caused his death. I also take account of your having kicked him [in] a way that would not have caused serious injury.

In sentencing you, John McLachlan, for murder, I have done so upon the basis that you departed from the plan. You formed the intention to inflict really serious injury on Derek Jones. The initial assaults were such as to immobilize him almost immediately. The character of the further sets of assaults, and particularly the striking of the deceased's head on the concrete, was such as to warrant a finding that you intended to kill him. In not making that finding, I have given you the benefit of the doubt."

"1. That the learned trial judge failed sufficiently or at all to instruct the jury as to the applicant's defence.

2. The analysis of the evidence as given by the learned trial judge failed sufficiently or at all to bring to the attention of the jury the necessary facts and issues that they were required to consider when determining:

(b) the intention of the applicant at the time the deceased was struck by the applicant;

3. That the learned trial judge failed sufficiently or at all to alert the jury as to the inconsistencies of the evidence as given by the witnesses Stevens and Ogilvie and the effect of such inconsistencies on the prosecution case against the applicant.

4. The trial miscarried because the learned trial judge failed to adequately direct on the onus and standard of proof in relation to the defence of provocation.

5. The trial miscarried because the learned trial judge failed to adequately direct the jury as to how they should apply the element of causation and the defence of provocation to the facts in this case.

6. In the light of the expert evidence and concessions of the Crown it was not open to the jury to identify any particular act of the applicant as the cause of death.

7. The trial miscarried because the learned trial judge erred in declaring Emma Stevens a hostile witness for the prosecution, in that he took into account irrelevant matters and failed to take into account relevant matters.

8. The trial miscarried because the learned trial judge failed to sufficiently confine the prosecutor's cross-examination of Emma Stevens.

9. The trial miscarried because the learned trial judge failed to adequately direct the jury on the subject of accomplices and corroboration, in that:

(a) he failed to define or define adequately the term 'corroboration';

(b) he failed to sufficiently identify evidence which was capable as a matter of law of amounting to corroboration;

(c) he erred in directing the jury that such evidence that he did identify was capable of being used as corroboration in the applicant's trial, namely the evidence of the finding of blood at various places in the crime scene, the record of interview of the co-accused Marshall and the autopsy findings as to injuries.

10. The trial of the applicant miscarried because the learned trial judge gave a direction in accordance with Browne v. Dunn (1893) 6 R. 67 in circumstances that did not justify such a direction.

11. That the 'Browne v. Dunn' direction was incomplete, was unduly favourable to the Crown and was, in the circumstances, unfair to the applicant.

12. The applicant's trial miscarried by reason of any of the above grounds either independently or in combination."

Mrs. Morrish treated ground 1 as subsumed under other grounds. She grouped grounds 2, 4, 5 and 6 under the heading "Cause of Death" and grounds 7 and 8 under the heading "Hostile Witness", argued ground 9 "Accomplices and Corroboration" separately, grouped grounds 10 and 11 under the heading "Browne v. Dunn Direction" and relied without elaboration on ground 12. Ground 3 was not separately argued. I understood it, too, to be subsumed under other grounds. Counsel did not contend that the verdict was unsafe and unsatisfactory in the sense described in M. v. R. [1994] HCA 63; (1994) 181 C.L.R. 487 at 492-495 and Jones v. R. (1997) 191 C.L.R. 439 at 450-452.

I turn first to ground 9. The learned judge told the jury that they might have little difficulty in concluding that Stevens was an accomplice and more difficulty in relation to Ogilvie. He directed them that it was dangerous to convict on the uncorroborated evidence of a person whom they regarded as an accomplice. No submission was made below that an offender against s.325 of the Crimes Act 1958 is not an accomplice for present purposes. The Director referred obliquely to that possibility, but it was not argued. I shall therefore assume that an accomplice warning was required. I think that it probably was, but see Cross on Evidence (5th Australian ed. 1996) at [15085] and the cases cited in fn. 1.

The complaints that were made under ground 9 were that his Honour did not accurately instruct the jury as to the meaning of "corroboration" and that he wrongly identified three pieces of evidence as being capable of corroborating the evidence of Stevens. Mrs. Morrish submitted that his Honour failed to direct the jury that corroborative evidence must connect or tend to connect the accused with the crime charged, that it must render the evidence to be corroborated more probable and that it must be credible. The most important point for present purposes is that corroborative evidence must connect or tend to connect the accused with the crime charged in the sense explained in the passages cited by Phillips, C.J. in R. v. Pisano [1997] 2 V.R. 342 at 347.

The learned judge explained the reasons for the caution to be observed with respect to the evidence of accomplices and continued:

"For that reason there is a legal principle which has to be applied in these circumstances, and the legal principle is that you should look for corroboration of the evidence of an accomplice. By corroboration I mean you look for evidence which tends to confirm or support that evidence. Because it is dangerous to convict an accused person without evidence from elsewhere that tends to confirm or support the evidence of an accomplice, it is appropriate that you look for that kind of evidence." (Emphasis added.)

Variants of the expression "confirm or support" were thereafter used but the definition was not further elaborated.

His Honour then said that he would turn to the question of where the jury might look for supportive or confirmatory evidence, which he would precede by a warning in relation to the evidence of Stevens that it needed to be scrutinized with particular care because of indications of potential unreliability. He continued:

"Let me come back then, not at great length, to the question of what there is in the way of evidence that tends to support the evidence of Emma Stevens, and then to Kristen Ogilvie. It's a matter for you but you might think that her evidence as to what took place on the night in question was confirmed or supported in part by the evidence of the witness, David Wilks, as to the kicking of the deceased by Tracy Marshall. [1] Perhaps in part by the evidence as to the places where the crime scene policeman and the forensic scientist found blood of a group matching that of the deceased. [2] Perhaps by the evidence of some parts of the answers given in the interviews of John McLachlan and of Tracy Marshall. [3] Perhaps in the evidence of Dr Robertson as to the autopsy findings as to the injuries sustained, at least in relation to the trial of John McLachlan."

The numbers in square brackets identify the three examples of potentially corroborative evidence referred to below: see also ground 9(c). The jury were instructed not to look for confirming evidence in relation to one accomplice in the evidence of another.

Corroboration, in this context, is evidence from a source independent of the accomplice which implicates the accused in the crime charged by tending to show both that the crime was committed and that the accused committed it. It will not do so if it is not credible and it is by implicating the accused that it renders the evidence to be corroborated more probable: see Doney v. R. [1990] HCA 51; (1990) 171 C.L.R. 207 at 211. It need not confirm the details of the accomplice's testimony: see R. v. Rayner [1998] 4 V.R. 818 at 851-852 per Brooking, J.A. The jury must understand what corroboration is in order to decide whether, in their opinion, a particular piece of evidence satisfies the test. That is so even in cases where the judge directs them as to the only items of evidence that could afford corroboration. It is even more important where, as in the present case, the jury are told to look for that kind of evidence and are given examples. As corroboration is only a sub-set of evidence that tends to confirm or support the evidence of the accomplice, the definition his Honour gave was much too wide.

Mrs. Morrish submitted that the first and third of the three examples were "intractably neutral", to use the expression of Macrossan, J. in R. v. Kerim [1988] 1 Qd.R. 426 at 447, and that the second was hearsay. Intractable neutrality is a function of the issues in the case, in the sense of the areas of dispute between the parties. (There is, of course, only one true issue in a criminal trial, namely whether the accused is guilty of the offence charged, as to which the accused is entitled to put the Crown to its proof.) I turn to the three examples, bearing those objections in mind:

(a) There were differences between Stevens's and Ogilvie's evidence. Among other things, Stevens described a sudden attack on the deceased, leaving him immobilized and bleeding. Ogilvie described a gradual build-up of punches, leading to an attack and his being dragged from the house in a headlock. Except on the question of provocation, Stevens's evidence was more favourable to the Crown. It was rendered more probable by the blood found on a rug at the crime scene.

(b) The interview conducted with Tracy Marshall was hearsay, but it was submitted that the jury would have understood that his Honour's words were to be construed distributively, i.e. the tape-recorded conversation with the applicant could afford corroboration in his case and the interview conducted with Marshall in hers. No doubt it would have been better if the learned judge had said so expressly, but it had been made abundantly clear at an earlier stage that Marshall's record of interview was not evidence in the applicant's case. It should, however, be noted that the jury were left at large to decide which parts of the answers in the tape-recorded conversation with the applicant corroborated Stevens's evidence.

(c) The autopsy findings were, I think, capable of corroborating Stevens's evidence. Murderous intent was an issue at the trial and their nature and extent tended to confirm that intent.

The Director advanced two contentions in the event that the Court was of opinion that the learned judge's definition of corroboration was wrong or that his Honour erred in relation to one or more of the three examples of evidence that were said to be capable of affording corroboration. The first contention took as its starting point that the reason for the warning is that accomplices seek to justify their own conduct. They often seek to shift the blame, wholly or partly, on to others and in that process construct untruthful stories tending to exculpate the guilty and implicate the innocent. (Compare the questions and answers set out in [36] and [37] below.) Reading Stevens's evidence, the Director said, there was no such danger and accordingly no need to give an accomplice warning. Criminal trials are complicated enough without burdening juries with instructions that are irrelevant to the facts of the case.

I agree with the last part of that submission. Indeed this Court said as much in R. v. Miletic [1997] 1 V.R. 593 at 605, but that very passage uses an accomplice warning as an example of a direction that must be given in a particular class of case. The Court said:

"We readily acknowledge that there are rules prescribing the directions that a judge must give in particular classes of case. The warning required with respect to the evidence of an accomplice is a familiar example. But such rules should not be unduly expanded. A trial judge should retain the flexibility to deal with the almost infinite range of factors that affect criminal trials. Where there is no specific rule, the principle is that the judge should give any direction that is necessary and practical, in the circumstances of the case, to avoid a perceptible risk of miscarriage of justice." (Emphasis added.)

The Director conceded that he could cite no authority for the proposition that an accomplice warning need not be given where the evidence of the accomplice discloses no attempt to shift the blame or unduly to inculpate the accused. In my opinion, the reason there is no such authority is that the need for the warning is not related to the evidence the accomplice actually gives. It is related to the experience of the law that accomplices as a class are frequently unreliable. The unreliability against which the warning is directed is antecedent to the evidence the accomplice gives. If it were otherwise, a convincing story might protect the evidence of the accomplice from the close scrutiny that the warning would otherwise require. Accordingly, I do not accept the Director's first contention.

The second contention was, in effect, that there was nothing in Stevens's evidence that needed to be corroborated. In answer to a question from the Bench, Mrs. Morrish identified five passages in Stevens's cross-examination where, it was said, her account was directly challenged:

(a) In her statement made on 25th June 1996 Stevens said that she saw the applicant kicking the deceased. She did not say so in her evidence at the trial on Thursday 29th or Friday 30th January 1998, but only when she was examined as a hostile witness on Monday 2nd February 1998. Cross-examined by counsel for the applicant, she said, as she had in chief, that she had no actual recollection of the kicking.

(b) Counsel also asked her whether she had seen Marshall speaking to the deceased after he returned from trying to make the telephone call. She answered, "No", but agreed that she was not sure. It was put to her that her recollection of events was faulty because of her ingestion of alcohol and Normison. She agreed that that could be so.

(c) A little later the following question was asked:

"What I put to you is that in fact what happened was there was an altercation between Derek and Tracy and John punched Derek in the face and then kicked him as he was attacking John, going for John?---No."

There was no trace of that suggestion in the tape-recorded conversation with the applicant, but there is in Marshall's record of interview.

(d) After questions designed to establish when Stevens learned that she was in danger of being charged, counsel asked questions about the discrepancies between her evidence on the Friday and on the Monday. She said that on the former occasion she had guessed some things and that there were others that she was not sure about. She claimed that she was more confident on the Monday and started to remember a bit more.

(e) Counsel for Marshall also cross-examined Stevens on discrepancies between her initial evidence-in-chief and her evidence when she was examined as a hostile witness.

In addition to the foregoing summary there are some passages that should be set out in full to give the tenor of the cross-examination. Stevens had lied to a doctor in order to obtain a prescription for the Normison tablets she took on the night of 21st June 1996. Counsel for the applicant put it to her that she had "conned" the doctor, to which she assented. Counsel continued, "A pretty convincing sort of person, aren't you; if you want to be; or is that an unfair comment?" The witness said that she thought it was an unfair comment. A little later it was brought out that she had been charged with "concealing or assisting in concealing the commission of a murder", that her confession had been ruled inadmissible and that she had been acquitted. (She was acquitted by direction.) Shortly after the passage referred to in point (a) in [35] the following exchange occurred:

"You were terrified that the police might charge you before they did charge you; is that right?---Yes.

Terrified that you would possibly be implicated in a murder charge? ---Yes.

And that you might even have been charged with a murder charge? ---Yes.

Was this explained to you by the police before you made the statements of the 25th and 3rd July, that you could [be] charged? ---Not that I recall.

Were you told by the police before you made your statement of the 25th, that if you assisted the police in their enquiries it would be unlikely that you would be charged?---Yes.

Was it the officer who took the first statement of the 25th, Mr Piper - I am sorry, yes - Mr Ridley - Mr Ridley?---Um - - -

Whatever happened, a police officer told you that if you assisted the police and told them the truth it would be unlikely you would be charged?---Yes.

That was before they sat down at any typewriter or any computer and started typing?---Yes.

You knew then in order to avoid being charged, you had to ensure that the police were sympathetic to your story; correct or not correct; in other words, you had to give them a story which meant that you weren't involved in any way?---No, because I said in my involvement during the three days, I just told the truth. "

After questions as to why the witness did not mention the Normison to the police, counsel asked:

"Well, you understood though that you had to shift any blame for these events on other people; I will put it differently. I apologise. Did you believe at the time when you spoke to the police on 25 June, 24th and 25th, the night and morning of the 25th, that you had to ensure that the blame was moved to other people?---No, I didn't really think that either. I just [told] the truth and I wasn't worried about shifting the blame on to anybody else, because I didn't [think] myself that I did anything to contribute to his death.

You went looking for a car to move the body?---Yes.

You played a substantial part in that; is that right?---Yes.

You were charged with attempting to steal a vehicle?---Yes.

As well as attempting or assisting in the offence of concealing the offence of murder?---Yes.

For want of a better description; how many cars did you attempt to steal?---Two.

How long did it take you to make your statement on the 25th, the night of the 24th, and the morning of the 25th?---About ten hours, I was there for."

Although some of Stevens's evidence was helpful to the defence on the question of provocation, much of it assisted the Crown case. In her initial examination-in-chief she said that, when the deceased returned from the kitchen, the applicant asked him whether it was true that he wanted to kill Andy Jones. The deceased denied it, to which the applicant responded that that was the wrong answer and punched him. He fell to the floor and, when he attempted to get up, the applicant asked him the same question. After a further denial, the applicant kicked him in the face "hard". There was blood on the carpet and he was "like passed out". Stevens said that the deceased was taken outside on to the front step and later on to the grass. She testified to further punches, the applicant's slamming the deceased's head into "the ground", the moving of the deceased into the garage and the applicant's using a cigarette lighter to burn his face.

When the prosecutor was permitted to examine her as a hostile witness she changed her testimony in a number of respects, none of which was favourable to the applicant, and in particular the following exchange took place:

"Miss Stevens, do you recognise the document that I've just handed to you?---Yes.

Does that record what you told police officers on the night of 24 June and the early morning hours of 25 June?---Yes, at the time I made this it was all true, but right now what I recall is I don't recall. I can't remember the bit about the kicking bit right now.

Well, let's see if we can help you. In the course of speaking to police officers, did you tell the police officers that you were in the lounge room and that Mr McLachlan left through the front door and left the door open?---Yes.

And that you heard John say, 'Wake up, you maggot, wake up, you dog'?---Yes.

Did you tell police officers that after John said this you heard what you thought were like - sounded like kicking sounds?---Yes.

Did you tell a police officer, 'It was a dull thud type sound, a bit lighter than someone punching into a punching bag'; did you tell the police officer that?---Yes.

Did you tell a police officer, 'I went to the front door and I saw John standing on the dri - on the driveway, and he was kicking Derek in the head'; did you tell the police officer that?---Yes.

Did you tell a police officer, 'I saw John kick Derek about seven times'?---Yes.

Did you tell a police officer, 'They were really hard kicks, and John was bringing his leg right back and driving his foot through, right into Derek's head'?---Yes.

Did you tell a police officer, 'Derek was still lying on his stomach, and John was kicking the left-hand side of his head'?---Yes.

Did you say, 'Derek was not moving, other that from the force from the kicks'?---Yes.

Did you tell the police, 'John then bent over Derek and grabbed Derek by the back of his head'; did you tell the police that?---Yes.

Did you tell the police, 'He grabbed his hair at the back of his head'?---Yes.

Did you tell the police, 'John rammed Derek's head into the concrete driveway four times'?---Yes.

Did you tell the police, 'He did this very hard and it sounded like when you stomp your foot on the concrete'?---Yes.

Did you tell the police, 'John then stopped and came back inside and came into the lounge room'?---Yes.

Did you tell the police that John then said to Tracy, 'I think I've just really fucked him up. I was slamming his head into the concrete. We've got to move him, there's fucking blood everywhere'?---Yes.

Ogilvie gave answers in cross-examination which appeared to show that Stevens was out of the room for one or two minutes of the period during which Stevens said that the physical altercation began in the house and that all the women were in the kitchen for three or four minutes after that. Stevens's temporary absence during that period did not accord with Ogilvie's examination-in-chief or her statements and it had not been put to Stevens. (The last point was the genesis of grounds 10 and 11, but the Director submitted that in any event the questions asked in cross-examination were unfair. I shall return to the Browne v. Dunn contention, but I do not accept that the questions were unfair.) At all events Ogilvie's answers appeared to counsel for the applicant below to be a critical part of his argument. Believing that the learned judge had not made the point with sufficient clarity to the jury, he sought a re-direction, saying that, if it were not given, his client would be denied his defence.

In his final address the prosecutor relied on both Stevens and Ogilvie but with more emphasis on the former. He invited the jury to reject part of the evidence of Wilks, a neighbour who saw Marshall kicking the deceased. (Mr. Wilks said that he heard the deceased say, in a clear and distinct voice that could be easily heard, "What are you doing it for?" or "What do you think you are doing?") Counsel for the applicant, in his address, sought to discredit Stevens, mainly by reference to inconsistencies between her evidence and that of Ogilvie but also in reliance on her having taken Normison and her position as an accomplice. At p.7 of the transcript counsel told the jury that the learned judge would give them a warning about the evidence of accomplices and at p.46, returning to that theme, he said that Stevens had a strong motive for implicating others when she made her statement, because she was in fear that she might end up being charged with murder.

In the light of the foregoing, I do not think it can be said that his Honour's misdirection with respect to corroboration was of no consequence. Whether or not there was a "wrong decision of a question of law" within the meaning of the second limb, there was a "miscarriage of justice" within the meaning of the third limb, of s.568(1) of the Crimes Act. The question remains whether there was a substantial miscarriage of justice, for the Director relied on the proviso. I shall turn to that question after I have dealt with the other grounds of appeal against conviction.

The medical evidence was that the deceased died of his injuries but either the head injuries or the abdominal injuries could have caused his death: [22]. If there was evidence of provocation fit to be left to the jury, the Crown had to exclude that defence in relation to each act of the applicant that may have caused death. Mrs. Morrish did not submit that the learned judge failed to explain provocation correctly to the jury. Her complaints were that the explanation was not related to the facts having regard to the medical evidence and that some of the language used detracted from his Honour's directions elsewhere as to the burden and standard of proof.

No exception to that effect was taken at the trial and I do not accept the submission. The point could, perhaps, have been made more clearly, but it was in fact made on at least three separate occasions:

(a) In the course of the charge his Honour said:

"A finding as to what act or acts caused death is significant in fixing the time for assessing the existence of the requisite intention and for assessing, in relation to the issue of provocation, whether there was a loss of self control at the time of the commission of the act causing death."

(b) Shortly thereafter the jury were told that there were two questions for them to consider in relation to provocation. One of them was whether provocative conduct caused the applicant to lose his self-control and "whether the act or acts of the accused which caused the killing were done during a period of loss of self control". The question was restated in similar language when the learned judge turned to apply his exposition of the law to the facts of the case.

(c) The jury were also instructed that it was important to have regard to "the position as to self control at the time of the act or acts causing death". His Honour continued:

"You have to consider whether it was the first set of blows that caused death, or a later set, and if a later set, whether John McLachlan had time to regain his self control, if he had lost it earlier."

I do not accept that any of those passages or others to which we were referred, when they are read in conjunction with the rest of the charge, would have left the jury in any doubt about the burden and standard of proof applicable to provocation. At a retrial, however, reference might usefully be made to R. v. Anderson (1997) 94 A.Crim.R. 335.

Accordingly, in my opinion, this group of grounds is not made out. I shall refer again to the question of provocation when I come to consider the proviso.

In R. v. Hunter [1956] VicLawRp 5; [1956] V.L.R. 31 at 32 the Full Court held that the question whether a witness is hostile is for the trial judge to determine and his or her discretion in allowing cross-examination by the party who called the witness will not be interfered with on appeal except in very exceptional circumstances. Mrs. Morrish accepted that that was the test that she had to satisfy but submitted that such circumstances obtained in the present case. Stevens had made two statements which, counsel said, were inconsistent. It was therefore inevitable that she would depart from one or other of them. That was a consequence which should have been anticipated when a decision was taken to call her as a witness of truth on behalf of the prosecution. (The Director's response was that the second statement merely added to the first.) Moreover, the departures from one or other of her statements were not of such significance as to justify the kind of cross-examination set out in [39]. They were explicable having regard to the fact that the statements had been ruled inadmissible at her own trial. Their significance was to be assessed in the light of the fact that the Crown intended to call another eye witness, namely Ogilvie. Reference was made to a letter of comfort Stevens had been given and to her evidence at a previous trial of the applicant which had resulted in the jury's being discharged.

Counsel also submitted that the prosecutor improperly used the fact that Stevens had been declared a hostile witness to buttress her credibility. That submission may be put to one side for two reasons. First, it does not impugn the learned judge's exercise of discretion, but rather the use to which the liberty extended to the Crown was put after the close of evidence. Secondly, and more importantly, the passage in the charge on which counsel relied records only that the prosecutor invited the jury to give added weight to Stevens's evidence because she was a friend of Marshall who would be unwilling to do Marshall harm if she could avoid it. (That consideration might also tempt her to emphasize or exaggerate the applicant's role.) Perusal of the prosecutor's address confirms the accuracy of the charge.

I have considered the passages in the submissions below to which we were referred, as well as the transcript of the voir dire and his Honour's ruling, the reasons for which were handed down immediately before sentence. In making his decision the learned judge was in a much better position than this Court to determine whether Stevens was adverse in the relevant sense and careful attention was given to the need to confine the scope of cross-examination and the practicality of doing so. As to the very telling exchange at [39], the witness agreed on the voir dire that the contents of her statements were true and correct but was reluctant to swear up to the first statement when asked specific questions about seeing the applicant kick the deceased and the degree of force with which the applicant rammed his head into the driveway. That reluctance continued when she was asked similar questions in front of the jury. It was only then that leave was given to put the contents of her statement to her directly. Compare R. v. Thynne [1977] VicRp 10; [1977] V.R. 98 at 101-102. I am not persuaded that the very exceptional circumstances required to justify appellate intervention are shown.

I have already referred in [40] to the genesis of grounds 10 and 11. His Honour considered that the rule in Browne v. Dunn had not been observed. When he redirected the jury in accordance with counsel's request, he said:

"Mr Shwartz has suggested to me that I did not fairly summarise an important argument, and you heard what he had to say and it's what impression his argument had upon you that matters, but I considered that as a matter of fairness it was appropriate to give you an outline of what that argument was and as a matter of fairness, Mr Kayser has suggested that I need to raise a further matter which - and I'll deal with that first.

The further matter is this; that there's a rule in this court that if a witness is going to be challenged as being wrong in the light of what another witness is going to say, that it's appropriate to put to the first witness what the other witness is going to say to see what that witness says.

The reason that's important here, if I can be more specific, is that the story of Kristen Ogilvie included that at the time that there was in effect the start of the struggle or the table overturning, Emma Stevens had gone to the toilet. As a matter of fairness, according to this principle, then it would've been appropriate to put to Miss Stevens that at the time the struggle broke out, she was at the toilet and she could've given her answer to that question and you could've assessed what her answer was.

The reason why that becomes important is that Mr Schwartz's argument is - that I did not summarise - goes along these lines, that you should accept not Emma Stevens, but Kristen Ogilvie's evidence about what happened in that flat at the time of, in effect, the first incident, and as part of that, you should accept that what Kristen Ogilvie said was that Emma Stevens was at the toilet when it happened and therefore she didn't see it. But what then happened included that the three women were in the kitchen for three or four minutes, that the witness, Ogilvie, heard people struggling, that when she came out, the deceased and John McLachlan were struggling with McLachlan holding the deceased in a headlock, that they moved out the front door, there was pushing and pulling, and that McLachlan ultimately pushed the deceased onto the grass and driveway.

The significance of that so far as Mr Shwartz is concerned, according to his argument, is that if you accept that evidence, you should not accept that the way in which the events occurred, the acts were done, were such as would justify an inference that John McLachlan, at the relevant time, had intent to kill or cause really serious injury. However, the qualification was that if you accepted that evidence, you could be satisfied that he could be convicted of manslaughter by unlawful and dangerous act, but no more."

I have set out that passage at rather greater length than I should otherwise have done because of its bearing on the application of the proviso. Putting provocation to one side, the critical question will be whether, in the absence of misdirection, the jury may have had a reasonable doubt about the applicant's intention to kill or do really serious injury, which in this context meant and would have been understood to mean really serious physical (or bodily) injury.

It is the second and third paragraphs of the passage that are immediately relevant. They were not by any means a full Browne v. Dunn direction. Counsel's omission to put Ogilvie's account (that is to say, the account she gave in cross-examination) to Stevens no doubt reflected a lack of instructions, but there may have been good reasons why that was so. On any version of the evidence the applicant was involved in a fight at the relevant time. He may or may not have known or remembered whether Stevens left the room for up to two minutes or where the women were as the fight progressed. If a Browne v. Dunn direction was to be given at all, the jury should have been told that there may have been a good reason for counsel's not observing the rule, which came across as an inflexible principle breach of which necessarily connoted unfairness. Linked as the direction was to what counsel perceived to be an important part of his argument, the observations set out in R. v. Laz [1998] 1 V.R. 453 at 463-464 are also pertinent. In my opinion, ground 11 should be upheld. It is unnecessary to decide ground 10.

Again putting to one side the possibility that the misdirection concerning corroboration involved a wrong decision of a question of law, the trial miscarried in two respects. See [42] above. The question that must now be addressed is whether there was not only a miscarriage of justice but also a substantial miscarriage of justice: see R. v. Konstandopoulos [1998] 4 V.R. 381 at 391-392 and Fleming v. R. [1998] HCA 68; (1998) 73 A.L.J.R. 1 at [38-39]. Although there is some authority to the contrary, to say that "miscarriage" and "substantial miscarriage" in the same sub-section have different meanings accords with the ordinary principles of statutory interpretation. It also conforms with day-to-day practice whenever a court of criminal appeal says that a ground is made out (other than under the first or second limb) but that the proviso applies. Importantly, it avoids the anomaly of saying that the Crown must prove that there was no miscarriage of justice where there was a wrong decision on the admissibility of evidence but that the appellant must prove that there was a miscarriage of justice where there was an inadequate direction concerning the use or scrutiny of evidence.

The Crown had a very strong case and it is tempting to apply the proviso, but I do not think that it was inevitable that the applicant would be convicted of murder in the sense in which that word is used in the authorities. Ogilvie's veracity was accepted in cross-examination but not the accuracy of her recollection and the prosecutor conceded, as he had to, that there were differences between her account and that of Stevens. The jury may possibly have thought that she, too, was an accomplice. More importantly, the credit of the witness who gave the evidence at [39] above was critical, because it was so powerful. The learned judge's interpretation of the verdicts also encourages caution in deciding whether the two separate misdirections deprived the applicant of a chance of acquittal of murder that was fairly open. In considering that question I have assumed in favour of the Crown, without deciding, that the defence of provocation was bound to fail either for paucity of evidence that the applicant lost self control or for lack of reason to think that an ordinary person could have done so.

Stepping back from the evidence, it would be an unusual, although not inconceivable, case where it was open to the jury to consider that the principal Crown witness was an accomplice for the purpose of the warning; the meaning of corroboration was not accurately explained to the jury; an attack on the credit of that witness was at the forefront of defence counsel's closing address; the force of the attack was diminished by a redirection that explained the rule in Browne v. Dunn in a manner unduly favourable to the Crown and it was held that there was no substantial miscarriage of justice.

It is unfortunate that no exception was taken, either by the prosecutor or defence counsel, in relation to corroboration. Counsel for the applicant did contend that the rule in Browne v. Dunn was inapplicable, but he did not take exception to the form of the direction that was then given. Having regard to the conclusion that I have expressed, the applicant cannot be denied a new trial on either of those accounts. Compare KBT v. R. (1997) 191 C.L.R. 417 at 423-424 and 433-434.

I have had the advantage of reading the draft of reasons for judgment prepared by Callaway, J.A.

I agree with his Honour's conclusions that the trial judge erred first in failing to direct the jury that corroboration was evidence from a source independent of the accomplice which implicated the applicant by tending to show that the applicant committed the crime with which he had been charged, and secondly in failing to tell the jury that there may have been good reason for counsel failing to put to Emma Stevens that Kristen Ogilvie would give evidence that Stevens was absent during part of the altercation between the applicant and the deceased.

The point that has troubled me is whether the proviso to s.568 of the Crimes Act 1958 is to be applied.

The evidence of both Ogilvie and Stevens was that the applicant attacked the deceased by punching and kicking him and holding his hair to raise his head and forcefully strike it on concrete. The deceased offered no resistance. The doctor who examined the deceased three days after his death described extensive injuries, principally to his head and abdomen, produced by a force that could be equated with that applied to a passenger in a motor car collision at a speed of between 40 and 60 kph. The doctor said the cause of death was the injuries which she described, although she was unable to identify any particular injury as the cause of death.

The likely effect of the misdirections was to increase the chance of the jury preferring the account of Stevens to that of Ogilvie. Save for a neighbour who heard the deceased speak during the assault, Stevens and Ogilvie were the only witnesses who gave direct evidence of the events leading to the death of the deceased. In my opinion there were two material differences between the descriptions given by Stevens and Ogilvie of the circumstances in which Derek Jones died. The first was that Stevens said that the applicant punched the deceased and kicked him in the face, the deceased passed out and the applicant and Marshall dragged him out of the house by his wrists. On the other hand Ogilvie did not say she saw any blows struck in the house. She said a table was knocked over and she saw the applicant had the deceased in a headlock trying to get him out the front door. The second significant difference was that while both witnesses said the applicant punched and kicked the deceased and lifted and smashed his head on to the concrete, Stevens's account was much more graphic. I refer to the evidence elicited by the prosecutor when he was permitted to examine Stevens as a hostile witness, which is quoted by Callaway, J.A. Stevens spoke of the applicant "bringing his leg right back and driving his foot through right into Derek's head", and the ramming of the deceased's head into the concrete which "sounded like when you stomp your foot on the concrete".

The major issues which emerged from the address to the jury by counsel for the applicant were whether the deceased died as the result of an epileptic fit rather than the wounds inflicted by the applicant, whether the applicant was guilty of murder because he attacked the deceased with an intention to kill or cause really serious injury, and whether he was guilty of manslaughter because he was provoked or because he committed an unlawful and dangerous act that caused the deceased's death. The first of those issues was unaffected by any difference between the evidence of Stevens and Ogilvie.

As the jury acquitted Marshall of murder, they must have entertained a reasonable doubt that Marshall and the applicant planned to kill or inflict really serious injury on the deceased. Presumably the jury thought either that the applicant held the requisite intent from the outset without communicating it to Marshall or, more probably, that he formed the intent after the assault began. In this regard the Crown case was not assisted by the rejection of Stevens's evidence in favour of that of Ogilvie, for Stevens's evidence was consistent with the fatal blow being struck at an early stage. Similarly, the Crown case on provocation was not assisted by Stevens's evidence, for the earlier the fatal blows were struck, the more readily was it to be concluded that the applicant killed the deceased during a period of loss of self-control caused by acts done or words spoken by the deceased.

While Ogilvie's evidence was unfavourable to the applicant because it tended to postpone the infliction of the fatal blow or blows and thus render it less likely that the applicant was then acting under the influence of provocation and more likely that any initial intention to inflict less than really serious injury had hardened to the extent sufficient to found a conviction of murder, Ogilvie's evidence was relatively colourless and prosaic compared with the chilling account by Stevens of a murderous assault. For that reason Stevens's evidence may have been instrumental in causing the jury to find that when he inflicted the blow or blows that killed the deceased the applicant intended to kill or cause really serious injury. In my view Ogilvie's evidence of punching and kicking the deceased and smashing his head on to concrete and the medical evidence as to the deceased's injuries naturally led to the conclusion that the applicant inflicted the injuries with at least an intent to cause really serious injury. However, "an appellate court ... has no real means of knowing the reasoning of a jury" (KBT v. R. (1997) 191 C.L.R. 417 at 434 per Kirby, J.). In my opinion the possibility cannot be excluded that the jury found the requisite intent for murder in the evidence of Stevens.

Accordingly I agree with Callaway, J.A. that the proviso is not to be applied, for I am of the opinion that as a result of the misdirection the applicant was deprived of "a chance which was fairly open to him of being acquitted" (Mraz v. R. [1955] HCA 59; (1955) 93 C.L.R. 493 at 514 per Fullagar, J.). I am by no means sure that if there had been no error the jury must have come to the same conclusion.

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Judgment (116 paragraphs)

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Cases Cited (1)