R v Mitchell [2006] VSCA 289

1 Jeffrey Mitchell was found guilty of the murder of Andrew Preston at Powelltown on 29 April 2002. He was sentenced, on 21 June 2005, to be imprisoned for 18 years with a non parole period of 14 years. A declaration was made in respect of pre-sentence detention. Now he seeks leave to appeal against his conviction.

The circumstances of the matter

2 The applicant, a man born 26 March 1962, maintained a domestic relationship with Leanne Maree Brown for a period of eight years or so up until 22 March 2002. There were two children of the relationship. On 22 March Ms Brown moved out of the premises in which she, the applicant and their children were living. She did so because she had formed a relationship with Andrew Preston. The relationship had developed out of Ms Brown and Preston being workmates at a building supply company in late 2001. Having disclosed the relationship to the applicant, he told her to leave immediately.[1] When Ms Brown left, the children remained with the applicant. It was clear that he loved them dearly, and that he did not want Ms Brown to have their custody.

3 Preston had come to Victoria from New South Wales in mid 2001. He had followed his then girlfriend, a Ms Ludlow. That relationship had continued, though intermittently only, until Preston commenced his substantial relationship with Ms Brown.

4 After Ms Brown left the applicant and her children, she and Preston resided for short periods at a motel, at the home of a friend, and with her parents at their Ferntree Gully home. Then she took out a lease of a caravan at the Pine Hill Caravan Park, Lilydale. She and Preston took up occupation of the caravan on about 19 April 2002. There they resided up to and including 29 April, that being the last date on which Preston was seen alive. What I have just said is subject to this qualification: that Preston absented himself from the caravan on the night of Saturday 27 April.

5 The relationship between Ms Brown and Preston was volatile. He was a chronic user of amphetamines, and had also used heroin during the period of his relationship with Ms Ludlow. Ms Brown had been a sometime user of amphetamines and marijuana. During the period of her relationship with Preston, she used both drugs. Preston, according to her evidence, was a very difficult person when he did not have drugs available for his use. Moreover, they, and particularly he, spent too much money on buying drugs. They incurred debts for drugs, and there was not enough money left over for the rent of the caravan and for food. That led to arguments. Indeed, on Saturday 27 April, after an argument between them, Preston left the caravan, saying that he was going to try and get some money. He did not return until the late evening of Sunday 28 April.

6 Whilst Preston was away, specifically on the evening of Saturday 27 April, Ms Brown, the applicant and their children went to a party for several hours. Ms Brown described her relationship with the applicant that evening as being "casual".

7 On the morning of Monday, 29 April Ms Brown argued again with Preston, either before they went to their joint workplace,[2] or at their workplace. Another person employed there was Gavin Brown, Ms Brown's brother. He was well-acquainted with the applicant, and had got to know Preston in recent times. On at least one occasion he had become involved in a physical altercation with Preston.

8 It is not in doubt that during the day, probably not long after 12.00 noon, Ms Brown spoke by telephone with the applicant. She was then upset and crying. She told the applicant that she was upset with Preston, that they were arguing over money, that she had been rapt when he came back but that had soon changed, and that there had been anger and argument over trivial matters. In the upshot, the applicant arranged to attend at the caravan that evening.

9 There was an issue at trial whether the applicant and Gavin Brown spoke by telephone in the course of that day. There is no doubt that the telephones of the applicant and Gavin Brown were connected for some seven minutes from 12.17 pm that day. It was put to Gavin Brown, and he denied it, that in the call he and the applicant arranged to visit the caravan that evening. The alternative explanation of the call, tentatively advanced by Ms Brown, was that it represented the occasion on which she spoke with the applicant in the course of the day.

10 Whatever be the explanation of the call between the mobile phones of the applicant and Gavin Brown, it is not in dispute that the applicant attended at the Ferntree Gully home of Gavin and Leanne Brown's parents in the early evening of 29 April, and that the applicant and Brown then drove to the caravan park in the applicant's four wheel drive vehicle. Neither is it in dispute that, after a brief conversation between the applicant and Preston, the latter, who had been only partly dressed when the other men arrived, put all his clothes on; and that he then left the caravan in the company of the applicant and Brown.

11 Three men left the caravan; only two of them were ever seen again. A few hours after the men had departed, the applicant and Brown returned. Brown at first, and then the applicant, told Ms Brown that they had driven Preston to the Spencer Street Railway Station, and had told him to get on a train to Newcastle - his home town - and never come back. There was conflicting evidence whether, later that night, Mitchell said the same thing to Mr and Mrs Brown senior, when he dropped Gavin Brown off at their home.

12 Leanne Brown went back to live with the applicant in late May 2002. In the same month, Preston's mother spoke to Ms Brown, and was told that Preston had left Melbourne to return home. Travis White, a cousin of Gavin and Leanne Brown, gave evidence of being told the same thing by each of them.

13 In July 2002, Preston's mother made a missing person report to the police. Police officers made extensive enquiries over a lengthy period, with a view of discovering Preston's whereabouts. Putting to one side, for the moment, statements made by Ms Brown, Gavin Brown and the applicant, the enquiries showed that, to all intents and purposes, Preston had disappeared off the face of the earth on 29 April 2002.

14 On 25 July 2002, the applicant was interviewed by a police officer. He gave an account which made no reference to his attendance at the caravan on 29 April.

15 On 10 February 2003, an officer of the Missing Persons Unit and another detective took a statement from the applicant. He said, inter alia, that it was only after Leanne Brown returned to live with him that he ascertained she had been living at various places including a caravan park in the meantime. He described an occasion on which he went to a service station at Lilydale to start Ms Brown's car, and said that she then told him that Preston had left after a fight or argument, and had not come back. He made no mention of having received a telephone call from her on 29 April 2002, or of attending the caravan that evening.

16 On 29 April 2003, Gavin Brown was interviewed at length by police officers. He had been interviewed on earlier occasions - on 25 July 2002 and 30 January 2003. In those statements he had made no mention of the events of the evening of 29 April 2002, and he had minimized the extent of his contact with Preston in the period before 29 April. In the event, Gavin Brown was told on 29 April 2003 that the police had his sister at another police station. He was permitted to speak with her by telephone. She informed him, it appears, that she had told the police what she knew about the events of the evening of 29 April 2002. That brought him to tears. He gave an account of events which began with three men leaving the caravan and which ended with two men returning.

17 The gist of his account was this: he had gone to the caravan with the applicant, understanding that the applicant intended to get Preston out of the caravan. His attendance had been to keep the peace. At the caravan, the applicant had told Preston to "shut up" or something like that; and had then said that it was time for him to go. Preston had dressed, and they had walked to the applicant's vehicle, though not together. When he arrived at the vehicle, the applicant had been arguing with Preston. The applicant, who was much bigger than Preston, had put the latter in the vehicle. The applicant and Brown had then got into the vehicle, Brown describing himself as being "scared too". The vehicle took off. Preston evidently had been frightened and had asked what was to be done to him. The applicant had given him "a bit of a backhander" in response. The vehicle had travelled along the Warburton Highway towards Yarra Junction and then turned right towards Powelltown. Then Mitchell had turned the vehicle onto a logging track and after a while from that track onto a narrower track. A point had been reached where the vehicle could be turned around, and that is what Mitchell had done. Then he had brought the vehicle to a stop. He had told Preston to get out of the vehicle. The applicant and Preston had got out and he, Brown, had followed. He observed that Preston was on the ground. Preston had asked the applicant what the latter was going to do to him. The applicant had asked him how he liked breaking families up, and asked whether he was going to take the applicant's children interstate. Preston had said that he would never take the children interstate. The applicant had called him a liar and at about that time spat on him. The applicant had gone to the back of the vehicle, grabbed something that looked like a screwdriver, walked back towards Preston, and had told Preston to look at the ground and shut up. Brown had looked away, heard a moan, and looked back. Preston was sitting up but with an arch in his back. Mitchell was trying to pull something out of his back. It looked like a screwdriver and was about 20 centimetres long. The applicant had pulled it out of Preston's back and the latter had slumped forward. He did not move again. The applicant put the object back in the vehicle and then pushed Preston off the track. Then the applicant had got back into the vehicle, and Brown got into the passenger side front seat. He, Brown, had said nothing to the applicant because, as he claimed, he was too scared. They had returned to the caravan park, and the story had then been told about their having taken Preston to the train station.

18 The day after he made the statement to which I have just referred, Brown took the police to the Powelltown area. In due course he identified a bush track which he claimed was the track on which the stabbing had occurred. It turned out that the track had been substantially widened, by clearing away re-growth, in February 2003. According to the evidence of the bulldozer operator, the track had been widened from about four or five feet in width to a width of 12 to 14 feet. No body was found.

19 After the applicant was in due course arrested, screwdrivers were found in the back of his vehicle. No blood was found on any of those implements. According to the expert evidence, it was probable that some blood would have adhered to a screwdriver used in the way described by Brown, even if the screwdriver had not struck a major blood vessel, and even if bleeding had been mainly internal.

20 As at mid May 2003, the police thus had two statements which indicated that the applicant's accounts of his meetings with Preston were incomplete - the applicant having said nothing about his attending at the caravan on the evening of 29 April 2002, nor anything about events earlier that day. One of those accounts - that is, the statement made by Gavin Brown - implicated the applicant in the killing of Preston. But there was no body, and Gavin Brown's account was evidently vulnerable to the attack that he had made prior inconsistent statements. Moreover, regardless that on his account he was not an accomplice to the crime of murder, but rather had committed the offence described in s.325(1) of the Crimes Act 1958 (conveniently described as being "an accessory after the fact"). Brown was evidently a person whose account of the alleged killing would be viewed with some caution.

21 In the circumstances, it is unsurprising that, rather than arresting the applicant, the police continued with their investigations.

22 On 18 May, at the instance of the police, Gavin Brown rang the applicant. The conversation was recorded. Brown asked the applicant if he had watched the television news that night. The applicant replied that he had not done so. Brown said that there was a report that police were looking for a man in Powelltown. He repeatedly told the applicant that he was very anxious. The applicant made no plain admission. He laughed about Brown's anxiety. He told Brown to wait until the following day. The latter would be in a different state of mind when the drugs were out of his system. On one occasion the applicant said, perhaps ambiguously, "Oh, fuck it. It's not worth it".

23 On 19 May, at the instance of the police, Leanne Brown telephoned the applicant. She said that her brother had told her what had happened. She asked if she could see the applicant after work to talk about it. She demanded that the applicant tell her exactly what happened because she did not want to lose her brother over this. She asked "How could you not tell me?" The applicant replied, "I'll see you then".

24 Ms Brown and the applicant met later that day. She was fitted with a covert recording device. It malfunctioned. After the conversation she was taken to a police station and was asked questions and gave answers about her conversation with the applicant. The gist of her account was this: She had asked the applicant if it was true that he had killed Preston. He had replied "No." She had asked him if it was true that he had stabbed Preston in the back with a screwdriver. He had said "No." But then he had said that he and Gavin Brown had used syringes to inject Preston with air. They had done this at Powelltown, and they had left him there. After they had injected him with air, they had thrown him down the side of a logging track. On the way back to the caravan, they had agreed in discussion that she was never to be told what had occurred.

25 The factual position had now become more complicated. In a conversation which, because it had not been recorded, depended upon the accuracy of Ms Brown's recollection, the applicant had given an account of events which, whilst amounting to a confession, asserted a very different set of circumstances than those described by Brown.

26 It was in these circumstances that, evidently, the investigators decided that a further attempt should be made to record verbatim the applicant's account of events. So, on 22 May, Ms Brown rang the applicant and arranged to meet him on the following day in order to pick up their sons for an access visit.

27 The applicant and Ms Brown did meet on 23 May. Ms Brown was fitted up with a recording device. On this occasion it did not malfunction. The key parts of their conversation were as follows:

Leanne: "I've spoken to Gav."

Jeff: "How is he?"

Leanne: "Still sticking to what he said."

Jeff: "Oh right. .. (inaudible) ..."

---

Leanne: "He's still spinning out that you were going to fuckin' neck him over this."

Jeff: "What for?"

Leanne: "Cause he's obviously a witness."

Jeff: "Yeah I know, we're both. Both as much as each other."

---

Leanne: "I believe Gavin."

Jeff: "Yeah. But we're both in on it the same as each other really.

Leanne: "So you're saying he killed him too."

Jeff: "Yeah well he helped."

Leanne: "How?"

Jeff: "Ask him."

Leanne: "He keeps saying what he said."

Jeff: "Well some of the things he said well he reckons I belt the shit out of him. I didn't touch the idiot. Did not, didn't punch, fuckin' kicked, done nothing. I'll fuckin' swear on that one. Fuckin' oath I'll swear on that."

Leanne: "So you just injected him with air?'

Jeff: "Yeah."

Leanne: "Both of youse?"

Jeff: "Yeah."

Leanne: "I can't, I can't see Gavin having it in him."

Jeff: "Well he was getting pissed off 'cause he wouldn't go."

Leanne: "Wouldn't go?"

Jeff: "Go, go."

---

Leanne: "Andy, Andrew's jacket did you get rid of that?"

Jeff: "Oh definitely."

Leanne: "You did?"

Jeff: "Fuck yeah. Yonks ago."

Leanne: "And everything, all the evidence."

Jeff: "There is nothing, there's nothing, there is nothing."

Leanne: "You got rid of it all?"

Jeff: "There's nothing."

---

Leanne: "And you're saying you killed him and so did he?"

Jeff: "We both."

Leanne: "So did Gavin."

Jeff: "We're both in on it. Yeah."

Leanne: "And what about the body, did you both ..."

Jeff: "Yeah well."

Leanne: "get rid of the body?"

Jeff: "Yeah well it was, I was just going to leave it lying there but Gavin goes nah throw it down here."

Leanne: "Down like a hill or?"

Jeff: "I don't know what it was. It was fuckin' black as."

Leanne: "And this is at Powelltown?"

Jeff: "Somewhere up near there."

Leanne: "It's a wonder it hasn't been discovered."

Jeff: "I don't, I don't, as I say, I've got, I wouldn't even be able to tell you where it fuckin' was. I don't even reckon I'd be able to fuckin' go find it. It was all black, there was just a fuckin' turn here a turn there. Fuck I've got no idea.

Leanne: "And he was dead when you left him?"

Jeff: "Well as far as we know. Gavin even broke a fuckin' stick off a fuckin' branch off a tree. Just threw it hopin' it'd cover it. Cover him."

Leanne: "Andrew's body?"

Jeff: "Yeah."

Leanne: "Fair dinkum?"

Jeff: "Yeah."

Leanne: "Well how can he stick to his story like and I believe him and?"

Jeff: "I don't know. I don't know. I'm not, me I know what Gavin, Gavin. I'm not being fuckin' nasty but, um, his drugs are probably making him shit himself more than he's supposed to be, um, there was no threat. We stopped, spoke ah, spoke to each other about it before we even got there, well what are we going to do. And then we said oh if we fuckin' tell him to fuck off or give him a hiding we're going to get cunts coming back on us and that."

Leanne: "No you wouldn't have."

Jeff: "Then we go oh why don't we just fuckin' fuck him off, um, just all that sort of shit."

Leanne: "Andrew posed no threat to you or Gavin whatsoever."

Jeff: "All that sort of shit. Gavin, Gavin ain't got no, there's no beef with Gavin. Fuck I'll go with the cunt any time. I haven't got any beef with him he's just a bit silly with his fuckin' gear and that, what he's driving and drink driving. That's all. I got no fuckin' beef."

---

Leanne: "Well I've only just found out."

Jeff: "Yeah I know."

Leanne: You guys have known this for 12 months."

Jeff: "Yeah, Hasn't been that long yet."

Leanne: "Yes it has, he's been, he's disappeared. Suspected dead for 12 months, April it was."

Jeff: "Oh was it?"

Leanne: "Yeah."

---

Leanne: "Well I didn't think you could ever kill someone in cold blood."

Jeff: "Either did I. I don't know, I still don't know how I done it. Still don't."

Leanne: "What made you do it?"

Jeff: "I don't know. I, I."

Leanne: "He, did he aggravate you in any way or?"

Jeff: "The whole thing, even, even, um, just the whole thing really."

Leanne: "Because just your presence alone he shit himself, you saw that."

Jeff: "Just I, I don't know why. I, now I can't tell ya."

Leanne: "Why you killed him."

Jeff: "Yeah. I don't know. No idea. I ... fuckin' ask meself."

Leanne: "Alright."

Jeff: "I get fuckin' paranoid every fuckin' day. I'm fuckin' paying big time now."

Leanne: "I don't know how you lived with it for this long."

Jeff: "I'm fuckin' paying big time now. Real big. As cunts say they fuckin', what do they say? Um, Karma or something will get back on you or whatever you."

---

Leanne: "And Gavin actually injected him as well?"

Jeff: "Yeah. Cause he was, I was out having another shot, and I don't think I was doing it right. Then Gavin, Gavin's gone oh here."

Leanne: "What was Andrew doing, was he kicking and screaming did you?"

Jeff: "Not really."

Leanne: "Well he couldn't be just lying there."

Jeff: "Ah, he was just saying no, no, no."

Leanne: "He was pleading?"

Jeff: "Oh yeah."

Leanne: "Baby, you should have just let him go."

Jeff: "What, what after we started doing a bit of shit, and them cunts would have come down on us?"

---

Leanne: "In my heart I don't want to believe Gavin had any part of it."

Jeff: "Yeah I know what you mean. But I didn't do it by myself. I wasn't intentionally by myself. Well I didn't drag Gavin up there. He said, oh I'll come with you for a drive. Didn't tell him to get out."

---

Jeff: "Yeah. No Gavin said oh fuck I'll come with ya. I didn't ask him to come. He said, can I come with ya?"

Leanne: "So on the way up to the caravan that's when you decided ..."

Jeff: "Yeah."

Leanne: "what you were going to do?"

Jeff: "Yeah. Oh you, yeah oh when you say caravan yeah."

Leanne: "Yeah."

Jeff: "Yeah."

Leanne: "But he shit as soon as you walked in darling."

Jeff: "Fine. I don't know, just decided the cunt made me sick. I don't know.

Leanne: "And you did it over me."

Jeff: "Must have and them. See no one fucks me over with them."

---

Jeff: "... Tell Gavin ... (inaudible) ... tell him to calm down. ... I have no beef with him, I never have."

Leanne: "Yep."

Jeff: "And, and fuck I never made him. I never made him do anything."

28 The applicant was arrested and charged subsequent to the tape recorded conversation to which I have just been referring.

The course of the proceedings

29 The applicant and Brown were committed for trial on 30 April 2004 - the applicant on a charge of murder, and Brown on a charge of impeding the apprehension of an offender.

30 On 28 February 2005 they were arraigned before a judge of the Trial Division.

31 An application was made by counsel for the applicant to exclude the recorded conversation of 23 May 2003. After evidence had been given by two police witnesses and Ms Brown, and after he had heard submissions, the learned judge rejected the application.[3]

32 Then an application was made for separate trials and his Honour made an order to that effect.[4]

33 Brown's trial went first. Brown pleaded guilty and was sentenced to be imprisoned for 18 months, such sentence to be suspended for two years.[5]

34 The applicant's trial then commenced. At the outset a "Basha" hearing was conducted concerning the evidence of Gavin Brown.

35 Then the prosecutor and counsel for the applicant addressed the jury. It is noteworthy that the prosecutor, having outlined the account of events at Powelltown which would be given by Brown, and having had played to the jury the conversation between Ms Brown and the applicant on 23 May 2003, said that it was the Crown's case that the method of death was that described by Gavin Brown. That, from first to last, was the Crown case.

36 It is also noteworthy that counsel for the applicant, in his opening address, told the jury that it was admitted that the applicant, as the result of a prior arrangement, had gone to the caravan park with Brown on the evening of 29 April 2002, and that he had then gone for a drive to the bush area as described. Against that background, counsel said that the case was one in which there were two versions of Preston having been assaulted. One was founded on the allegations of an alleged co-offender, supported to some extent by the evidence of Ms Brown. The honesty, reliability and credibility of those witnesses was squarely in issue. Then, as to the version of events given by his client in the conversation of 23 May 2003, counsel said that the Crown was attempting to have it both ways - on the one hand asking the jury to treat what the applicant said as a confession, on the other hand seeking to contend that the method of killing which the applicant had described was untrue and unreliable. These themes were pursued during the trial, as was a corollary of the argument that Brown was not to be believed and that the confession was unsound - that is, that the jury could not be satisfied that Preston was dead.

37 Thereafter the Crown adduced its evidence. It is unnecessary to detail every witness who was called. The witnesses included Gavin and Leanne Brown, Mr and Mrs Brown senior, Preston's mother, Ms Ludlow, Travis White, a number of the applicant's work mates, police witnesses, and a pathologist, Dr Ransom. There was also the recording of the conversation made on 23 May, and certain admissions made by the applicant.

38 The applicant stood mute and did not call other evidence.

39 After discussions between the learned trial judge and counsel, which built upon earlier discussions between them as to what directions should be given, the prosecutor and counsel for the applicant addressed the jury, and the judge delivered his charge.

40 Pausing for a moment, there were three aspects to the Crown case which, it was said, could lead to a finding of guilt whether considered discretely or in combination. First, there was a circumstantial case. The jury should conclude to the criminal standard of satisfaction that Preston was dead, and that he had died at Powelltown on the evening of 29 April 2002 at the applicant's hands. His death was to be inferred from his having disappeared off the face of the earth after that date. His killing by the applicant was to be inferred from a combination of circumstances: the breakdown of the applicant's relationship with Ms Brown because of Preston; the applicant's fears that he might lose his children - fears expressed to work mates; the applicant's hostility towards Preston - hostility expressed to some work mates; the applicant's attendance at the caravan on the evening of 29 April; three men leaving and two men coming back.

41 Second, there was a case dependent upon the eye-witness account given by Gavin Brown.

42 Third, there was a case arising from the admissions made by the applicant, particularly in the recorded conversation of 23 May; admissions which had that character notwithstanding that they were contained within an account of events which implicated Gavin Brown; and notwithstanding the evidence of the pathologist Dr Ransom, that death by injection of air, though not impossible, was a very improbable means of causing death.

43 Returning to the sequence of events, no exception was taken to the charge. But the applicant contends, by the Full Statement of Grounds, that the judge committed seven errors, six of them being constituted by things said or things not said in the charge. It is a distressingly familiar phenomenon in criminal appeals.

44 The jury retired on the afternoon of 16 March 2005, and returned its verdict a day later. In the interim re-directions were sought and given. Again, no exception were taken.

The grounds of appeal

45 By document filed 27 October 2005 the applicant relied upon the following grounds of appeal -

"Ground 1: The learned trial judge erred in admitting into evidence the covertly recorded conversation between the applicant and Leanne Brown.

Ground 2: The learned trial judge erred in failing to direct to the effect that, before they could act on any admissions or confessions allegedly made by the applicant, the jury must be satisfied beyond reasonable doubt that they were made and, if so, that they were true.

Ground 3: The learned trial judge erred in leaving the case to the jury on the alternative basis of acting in concert (Charge at 533-535 & 598-599).

Ground 4: The learned trial judge's accomplice warning was erroneous (Charge at 564-568 & 599-603); and in particular his Honour erred:

(a) in making the applicability of the warning contingent upon whether the jury were satisfied that Andrew Preston was murdered and that Gavin Brown was an accomplice;

(b) in implying that, if the jury found corroboration, the warning ceased to have effect;

(c) in leaving the alleged confession to Leanne Brown as capable of being corroborative.

Ground 5: The learned trial erred in failing to give a Faure or similar warning in relation to Gavin Brown, Leanne Brown and Colin Brown.

Ground 6: The learned trial judge erred in failing to give an Edwards direction or, alternatively, a Zoneff (or similar) direction in relation to the alleged lies told by the applicant, including those as to putting Andrew Preston on a train and as to his contact with Mr Preston.

Ground 7: The learned trial judge's directions on motive were inadequate (Charge at 569-570); and in particular his Honour erred in failing to direct that the jury would need to be satisfied beyond reasonable doubt of the alleged motive before they could use that as a factor in determining whether the applicant was guilty.

Ground 8: The learned trial judge erred in [not] leaving to the jury the alternative verdict of guilty of manslaughter.

Ground 9: An aggregate of errors or defects caused the trial to miscarry."

46 On the hearing, ground 7 was not pursued. Further, counsel for the applicant accepted that his task was difficult in respect of grounds 8 and 9. He took the issue raised by ground 4 (a) to be his best point. He did not press Ground 4 (b) or (c).

Ground 4(a)

47 It was common ground, as the trial proceeded, that the learned judge should give the jury some warning with respect to the evidence of Gavin Brown. Understandably so. The Crown's preferred case rested on the reliability of Brown's eye-witness account of the events which allegedly occurred on the evening of 29 April. But Brown's reliability as a witness was much in issue. Without descending to detail, or considering what use the jury could properly have made, in the applicant's trial, of the allegations made by the applicant against Brown in the recorded conversation of 23 May 2003, the evidence as a whole left open the possibility that Brown was not simply an accessory after the fact to a killing but was a man who had joined in the killing. Thus, there were reasons why he might have lied about events preceding the alleged killing, and events at the critical time.

48 It is true that cross-examination of Brown, and counsel's address, were such as should have made it very clear to the jury that Brown's credibility was greatly in issue. But that provided no reason why the judge should not give some warning against too-ready acceptance of the evidence of the witness; and indeed the judge always recognized that he should do so.

49 The question what warning should be given was discussed between the judge and counsel from time to time during the trial. The position of the Crown was that, whilst a warning was necessary, a complete accomplice warning was not required. Brown, as an accessory after the fact, was not an accomplice according to the law in this state. So an accomplice warning should not ordinarily be given. But Brown was an unusual accessory after the fact in that he had been present at the time of the alleged killing. A warning tailored to the circumstances should be given. But if the (full) accomplice warning was given, then the issue of corroboration would arise - and in that connection the learned prosecutor gave instances of corroborative material.

50 The position of the applicant was that a warning should be given, on the footing that Brown did not "really fall into (the) category" of an accessory after the fact, because of "his alleged involvement before or at the time as well."

51 The judge, having considered the matter, announced his intention of giving an accomplice warning, this entailing identification of material capable of corroborating Brown's evidence. Counsel for the applicant specifically agreed with that course.

52 Then, before counsels' addresses, his Honour indicated doubt whether he would use the word "accomplice" in his charge. He said that he did not want to suggest that the jury should not accept all of Brown's evidence. If all of Brown's evidence was accepted, then he had not been an accomplice. His Honour made it clear, however, that he would "say the normal things ... about accomplices".

53 Against the background now described, the learned judge relevantly gave this direction:

"Mr Crisp foreshadowed to you that I would give you a warning about Gavin Brown and in that respect he was correct. In relation to Gavin Brown you have to consider this question. Upon the assumption that a crime was committed, on the assumption that Andrew Preston is dead - assuming you find that, and that the crime was committed - assuming you find that. You have to ask yourselves, first of all, whether his conduct or his connection with the events is such as to make him a person who shares in the guilt for the crime.

Now, if you reach that point, that you think there was - or you are satisfied that there was a crime, satisfied he was - that Andrew Preston is dead, and you are satisfied also that Mr Brown's conduct or connection with the events is such as to make him a person who shares in the guilt; if you reach that point you can fairly call Mr Brown an accomplice and for the purpose of what I am about to tell you, I will assume you have reached that point. You may not. If you accepted his account of events you wouldn't reach the point because his account involves him as being merely present.

So, first of all, you need to address that question in considering Gavin Brown's evidence. If you reject the suggestion that his involvement was confined to his mere presence, as he says, then you should apply this direction when considering his evidence. If you reach that point, you will be treating him as an accomplice.

It is the experience of the law that the evidence of accomplices is frequently unreliable because accomplices seek to justify their own conduct, in doing so they often seek to shift the blame wholly or partly on to others. In the process, they construct untruthful stories which tend to exculpate the guilty and implicate the innocent.

Accordingly, there is a rule of law which applies to such cases. You should consider that it is dangerous to convict an accused on the uncorroborated evidence of an accomplice. So what you should look for is corroboration of the evidence of the accomplice.

Corroboration 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. This does not mean that you must find independent confirmation of all the circumstances which the accomplice had given evidence about. It is sufficient if there is confirmation, independent confirmation, of a material circumstance and of the identity of the accused. In other words, that a crime was committed and that it was the accused who committed it.

When looking for corroboration in the evidence you and I have different tasks. My duty is to determine whether there is any evidence capable, as a matter of law, of amounting to corroboration and to direct you to any which I find. It is your duty, as a matter of fact, to consider that evidence and to determine first whether you accept the evidence as reliable, and second whether, in your opinion, it does corroborate the accomplice's evidence.

In this case, there is evidence which I direct you as a matter of law is capable of amounting to corroboration. It is for you to say whether you accept it and for you to say whether you regard it as being corroborative."

And

"If you do not find any corroborating evidence you must regard - or you must have regard - to the warning I have given you that it is dangerous to convict an accused on the uncorroborated evidence of an accomplice. You may only do so if, after subjecting the accomplice's evidence to close and careful scrutiny, you are satisfied by it and satisfied to act upon it, notwithstanding its source and notwithstanding that it is uncorroborated."

54 The jury sought a re-direction. His Honour relevantly said this:

"Can I move then to the question of what I have called "accomplice evidence"? And, rather like the issue which arose with the title of the map, re "the death" of Andrew Preston, the title "accomplice evidence" contains a conclusion within it which you might not necessarily draw, which is one reason why I have put "accomplice" in quotation marks. But what you must do in relation to Gavin Brown's evidence is consider the issues raised by what we call "accomplice evidence".

Upon the assumption that you find a crime was committed - you may not, but if you do, if you find Andrew Preston is dead - again, you may not, but if you do - then you need to ask yourselves whether Gavin Brown's involvement in that crime, or his connection with that crime was such as to make him a person who shares in the guilt.

If you reach that point, you think or you are satisfied that there was a crime and you are satisfied that Mr. Brown's conduct or connection with the events is such as to make him a person who shares in the guilt, well then, you need to apply to Gavin Brown's evidence the warning which I am going to give you, which is referred to by lawyers as an "accomplice warning". If, of course, you accept his account of events, then you wouldn't reach that point. His account is that he was merely present."

And

"My warning to you is that if you form the view that Gavin Brown is an accomplice in the sense that I have referred to, you should look for corroborative evidence. My direction to you is that there is evidence which is capable of being corroborative, but you must decide whether it does. I have explained to you how the Crown puts it as being corroborative, if you do not find that there is any corroborative evidence then my warning to you is that it is dangerous to convict."

55 Concerning the direction, which was relevantly repeated in the re-direction, counsel for the applicant made, inter alia, these submissions to this Court:

"11. First, the judge directed in a fashion that rendered the applicability of the warning contingent upon whether the jury were satisfied that Andrew Preston was murdered and that Mr Brown was an accomplice. But that, it is submitted, cannot be a proper way in which to reason, for proof of Mr Preston's death depended largely upon Mr Brown's evidence. Further, whether or not Mr Brown was an accomplice depended first upon accepting Mr Brown's evidence in its crucial aspects and then rejecting important parts of that evidence. Thus, the directions require an impossible multi-stage approach to Mr Brown's evidence.

12. In addition, the direction implies that the jury have to be satisfied on the criminal standard of proof of Mr Brown's accomplice status before the warning can be applied, particularly given that it was tied to the anterior question of proof of an element - that of death (see, e.g., R. v. Parsons & Stocker [2004] VSCA 92; (2004) 145 A Crim R 519 at [18] - [24]).

13. Further, if enough of Mr Brown's evidence is rejected to render him an accomplice (on any standard of proof), then the jury should have been acquitting the applicant anyway."

56 I turn to resolution of this ground. It is clear that the Crown asked the jury to convict the applicant principally, though not exclusively, by acting on Brown's evidence of the attack made by the applicant on Preston. That was the only evidence of that form of attack which was available to the Crown

57 It is also clear that, in the absence of a body, the Crown substantially relied upon Brown's evidence to establish that Preston had died, and when, and where. True it is that there was the applicant's confession in the 23 May conversation, but in a significant respect the Crown decried the reliability of that confession.

58 Whether the warning which should have been given was an accomplice warning[6] or a Faure[7] warning, and, if it was the latter, whether the jury should have been directed in the circumstances to look for evidence which confirmed or supported Brown's evidence before relying upon it to convict the applicant,[8] or perhaps corroborative evidence,[9] one thing seems to me to be clear: that it could not have been correct for the judge to direct the jury, in effect, to decide whether it had been established that Preston was dead, and whether his death was in consequence of a criminal act, in reliance upon evidence which included the evidence of Brown unaffected by such a warning.

59 The matter can be illustrated in two ways. First, the model direction in Judge Kelly's criminal charge book[10] commences the accomplice warning in this way:

"It is for you, the jury, to consider whether you should regard a particular witness as an accomplice. You should consider whether, upon the assumption that the crime was committed, the witness's conduct or connection with the events was such as to make the witness a person who shared in the guilt of the supposed crime." (my emphasis).

60 Such a direction means that the evidence of the potential accomplice will not be used to find the fact of the crime before the witness is characterised (if that be the case) as an accomplice.

61 Compare the charge in this matter:

"Upon the assumption that a crime was committed, on the assumption that Andrew Preston is dead - assuming you find that, and that the crime was committed - assuming you find that. You have to ask yourselves, first of all, whether his conduct or his connection with the events is such as to make him a person who shares in the guilt for the crime."

And

"Now, if you reach that point, that you think there was - or you are satisfied that there was a crime, satisfied he was - that Andrew Preston is dead, and you are satisfied also that Mr Brown's conduct or connection with the events is such as to make him a person who shares in the guilt; if you reach that point you can fairly call Mr Brown an accomplice ...". (my emphasis)

62 His Honour's references to assumption were, I think, overwhelmed by his references to matters found and matters of which the jury was satisfied. There was, in effect, a direction, in the context of what was intended as a warning in respect of Brown's evidence, that findings of fact critical to the guilt or innocence of the applicant, would need to be found - upon evidence which included the evidence of Brown - before the warning could come into play.

63 Second, his Honour directed the jury that, if it was satisfied that Preston was dead, and was satisfied that Brown's conduct or connection with the events was such as to make him a person who shared in the guilt, then

" ... if you reach that point you can fairly call Mr Brown an accomplice and for the purpose of what I am about to tell you, I will assume you have reached that point. You may not. If you accepted his account of events you wouldn't reach the point because his account involves him as being merely present.

So, first of all, you need to address that question in considering Gavin Brown's evidence. If you reject the suggestion that his involvement was confined to his mere presence, as he says, then you should apply this direction when considering his evidence."

64 In my respectful opinion, the substance of what his Honour there directed the jury was this: if the jury accepted Brown's account of his role in the affair, then he was not an accomplice; and the warning which his Honour thereafter gave had no application to his evidence. But such an approach would mean that Brown's evidence was to be considered by the jury, at the outset, unaffected by any warning; and that only after the evidence had already been rejected in a relevant way should he be treated as an accomplice, and his evidence be subjected to appropriate scrutiny. Such a warning, applicable after the witness's evidence had been already rejected (at least in part) would have had limited utility. On the other hand, acceptance of key aspects of the witness's evidence, without the same being affected by a warning, would really defeat the object of the warning.

65 With respect, I consider that the learned judge's charge was in error in the passages which I have cited. Moreover, the error was repeated in the re-direction. This was no small matter in a case where the very fact of death was in dispute. Brown's evidence was much relied upon by the Crown to show death and the manner of death, and his credibility as a witness was much in dispute. Although it is possible that individual members of the jury reasoned to the applicant's guilt in reliance upon the recorded confession, or in reliance upon the Crown's circumstantial case, it is impossible to exclude the real possibility that all or some of the jury reasoned to guilt in reliance on Brown's evidence. Indeed, having regard to the way in which the Crown went to the jury, it seems likely that the jury did reason in such a way. In the event, the likelihood is that the finding of guilt turned on the jury's assessment of Brown's credibility. The error in the direction, in the circumstances, ought be regarded as material.

66 The question which then arises is whether, as counsel for the Crown submitted, the proviso to s.568(1) of the Crimes Act could be applied. The meaning of the proviso was explained by the High Court in Weiss v The Queen;[11] see also, in this Court, R v Weiss (No.2).[12] Having regard to the circumstances which I have described, I cannot be satisfied, on consideration of all the evidence, of the applicant's guilt. Although there was at least one other path to a finding of guilt, Brown's evidence was central to the preferred Crown case. His credibility was able to be assessed by the jury better than this Court could do. It may be said that, probably, the jury accepted him as a credible witness in respect of his key evidence. But the immediate problem is then that the jury's assessment was made in circumstances where a necessary warning concerning his evidence had not been given. That robs the jury's probable acceptance of his evidence, and its finding of the guilt of the applicant, of a good deal of the force which would otherwise attend it.

67 Because as it seems to me, there must be a new trial, I should add this: Certainly not wishing to constrain the trial judge, I suggest, tentatively, that it might be best on the retrial for the judge to give a Faure warning in respect of Brown's evidence, but to supplement it by a direction that it would be unsafe to convict on the witness's uncorroborated evidence, and that the jury should look for evidence which could corroborate[13] his evidence. I doubt that the jury would examine Brown's evidence any less closely because he was not described as a putative accomplice, whilst any problem arising in the particular circumstances of the case by reason of the conditional nature of an accomplice warning would be avoided.

68 Although, for reasons which I have given, I consider that the applicant has made good his application in reliance on ground 4 (a), I should refer to the other issues agitated on the appeal. I shall do so in the order in which they were addressed by the applicant's counsel.

Ground 5

69 Counsel for the applicant submitted that, in the case of Gavin Brown, a "Faure or similar warning" should have been given "either instead of or in addition to a modified accomplice warning." He did not press an argument that a similar warning should have been given in the case of Leanne Brown or Mr Brown Snr.

70 Concerning Gavin Brown, the argument was really a follow-on from the matters agitated in connection with ground 4. I have already said that an unqualified warning adapted to the circumstances of the case needed to be given. The matter is not advanced by putting a particular label to the necessary warning.

71 Concerning Leanne Brown and her father, nothing need be said in light of counsel's approach in the hearing of the appeal.

Ground 3

72 The question whether a direction about conduct in concert should be given was raised by the learned judge. His Honour expressed concern, first, that the jury might reason that the applicant's recorded account was in substance - though not in detail - true; and second, that the jury might conclude that Brown had been the killer, or at least, having regard to all the evidence concerning the trip to Powelltown, and the return of two men only, that Brown had "greatly understated his role". Concerning the first of those situations, the jury should be told that if the two men, acting in concert, had together killed Preston, then the applicant was guilty of murder. Concerning the second postulated situation, a question would arise whether the applicant was implicated as acting in concert with Brown. If Brown had been the killer and he and the applicant had not been acting in concert, then the applicant should be acquitted.

73 The position taken by the learned prosecutor was that there was no evidence that Brown had taken any part in the killing. The applicant's recorded version, which implicated Brown, was not evidence against Brown; and all else was speculation. Further concerning the applicant's version of events, the evidence of the pathologist denied its reliability.

74 The prosecutor further reminded his Honour that it had never been put to Brown that he had killed Preston. I interpolate that this was so. The applicant's case was conducted on the footing, inter alia, that it had not been proved that Preston was dead.

75 Ultimately, however, the prosecutor conceded that if the jury accepted the applicant's confession, then he was guilty of murder by acting in concert with Brown, and the jury should be so instructed. That could be dealt with by "a fairly light touch".

76 The position taken by counsel for the applicant - subject, of course to his maintaining that the evidence did not establish Preston's death - was, as I understand it, that a direction as to conduct in concert should be given.

77 Against the background described, the learned judge directed the jury as follows:

"The case is being put to you by the barristers on a basis that very much focuses on the account of what occurred on the bush track given by Gavin Brown. My comment to you on the facts is: you may take the view that there are aspects of the account you can accept and aspects you cannot accept. Given that, I am just going to tell you what the law is about what is called 'acting in concert', and it is this: If two persons agree to commit a crime and both play a part in its commission - one by acting and one by being present and holding themselves ready to help if needed, they are each equally guilty of the crime.

The obvious illustration is a bank robbery, where one person points the gun at the teller and one takes the money out of the drawer and one is sitting in a car outside. They are all guilty of robbery. Having said that, mere presence at the scene of a crime being committed by another does not amount to acting in concert, even if the person who is present intends that the other should commit the crime. The difference is that if your presence is there by agreement for the purpose of helping the other to commit the crime, even if it does not turn out that he needs your help, then you are acting in concert with that person.

An agreement of this kind might be the result of a carefully worked out plan or it might be made without even a word spoken or on the spur of the moment. So to prove an accused is guilty as a person acting in concert with another to commit the crime, the Crown would have to prove that the crime was committed; that there was an agreement between two persons to commit it; and that the person who is alleged to be acting in concert was a party to the agreement and was present at the scene of the crime pursuant to that agreement, either helping or holding himself ready to help if called upon.

The Crown here does not put the case on this basis. The Crown says you should accept Gavin Brown's version of what happened. Brown says his involvement did amount to mere presence. If you reject that and find beyond reasonable doubt that Andrew Preston was murdered by the two of them acting in concert as I have described, then the accused would be guilty of murder. That of course is entirely a matter for you, based on your assessment of the facts."

78 The jury asked a question relevant to this issue. His Honour re-directed as follows:

"Can I go on then to the second matter you have raised, which is acting in concert? The case is being put to you on a basis that very much focuses on the account of what occurred on the bush track given by Gavin Brown. I have told you that you have to decide what evidence you will accept or reject, and I told you that you may look for corroboration, for example, of Gavin Brown's evidence. I will repeat what I told you about that in a moment.

My comment to you on the facts is that you may take the view that there are aspects of Gavin Brown's account that you can accept and aspects that you cannot accept. Because that is open to you, I have to tell you something about what the law is in relation to what is called acting in concert, and it is this. If two persons agree to commit a crime and both play a part in its commission, one by acting and one by being present and holding themselves ready to help if needed, they are each equally guilty of the crime.

The obvious illustration is a bank robbery where one person points the gun at the teller, one takes the money out of the drawer and one is sitting in the car outside. They are all guilty of robbery. Having said that, mere presence at the scene of a crime being committed by another does not amount to acting in concert even if the person is present intending that the other should commit the crime.

The difference is that if your presence there is by agreement for the purpose of helping the other to commit the crime, even if it turns out that the other person does not need your help, then you are acting in concert with that person. An agreement of this kind might be the result of a carefully worked out plan, or it might be made without a word being spoken. It might be made on the spur of the moment.

But to prove that a person is guilty on the basis that they are acting in concert with another who committed the crime, there must be an agreement between the two persons to commit it and the person who is alleged to be acting in concert has to be a party to the agreement and to be present at the scene of the crime, either helping or holding himself ready to help if called upon.

The Crown here does not put the case on this basis. The Crown says you should accept Gavin Brown's version of what happened. Brown says his involvement did amount to mere presence. If you reject that and find beyond reasonable doubt that Andrew Preston was murdered by the two of them acting in concert as I have described, then the accused would be guilty of murder. That, of course, is entirely a matter for you based on your assessment of the evidence and your findings on the facts."

79 According to the applicant's submission in this Court, the learned judge should not have charged the jury about conduct in concert, for it had not been the Crown case. The direction had been apt to confuse the jury. There was a realistic risk, in light of the jury question, that the jury had reasoned to guilt in reliance as conduct in concert.

80 According to the submission for the Crown in response, the issue was necessarily raised. If the applicant and Brown had acted in concert, then the accomplice warning had been given in apposite circumstances. Further, if the jury took the view that Brown's role had been different to that which he asserted in his evidence, it would not have exculpated the applicant, bearing in mind the fact that, from first to last, the Crown case had been that the applicant as principal murdered Preston.

81 In my opinion the learned judge was not wrong to charge, in the most part, as he did. Absent any substantial debate, and direction, about the admissibility in the applicant's trial of his version of events which incriminated Brown, it was possible that the jury might have reasoned that the two men, acting together, had killed Preston - even by the method which the pathologist effectively dismissed. In such circumstances, the jury needed to be told how to approach the question of guilt or innocence. That his Honour did, whilst reminding the jury that this was not the way that the Crown put its case.

82 I do doubt, however, the correctness of so much of the charge as raised the possibility, in effect, of Brown having killed Preston whilst the applicant stood by. In my opinion, there was no evidence which permitted a conclusion to that effect. One question was asked in cross-examination of Brown which proposed that only he and Preston had left the vehicle. Brown denied it. That was the relevant evidence in that connection.

83 So far as there may have been, in the one way which I have identified, a direction which was in error, I could not conclude - no exception having been taken - that it caused a miscarriage of justice. There is no realistic prospect that the jury reasoned to the applicant's guilt from the starting point that Brown killed Preston; and even if the jury had done so, the concert warning gave a proper protection.

Ground 2

84 The judge did not give any of the kinds of direction - particularly concerning the recorded conversation - which are contemplated in Burns v The Queen.[14]

85 The Crown claimed that the applicant admitted to the crime of murder on two occasions. First, on the occasion that the recording device malfunctioned; and second, in the recorded conversation. Ms. Brown gave vive voce evidence about the first conversation. Her memory was faulty, and she was permitted to refresh it from a statement made to police on the day that the conversation took place. Whilst her account of that conversation essentially corresponded with what the applicant said later in the recorded conversation, the accuracy of her account of the earlier conversation was put in issue. Then, as to the recorded conversation, there was no doubt what the applicant had said. The question was whether what he had said by way of admissions was true in whole or in part. That was a second aspect of the challenge to the first conversation.

86 I do not think that the jury could have doubted that the main area of dispute was whether, accepting that some of what the applicant said in the recorded conversation was untrue - that is, the nature of the fatal attack; and, on the Crown's case, Brown's involvement - none the less his admission that he killed Preston was true; or else, as his counsel put it, was "something false to suit the situation ... as a sense, if you like, of sometimes big noting, sometimes of bravado or false bravado."

87 Any doubt that there could have been must have been removed when the learned judge, referring to the submissions of the applicant's counsel concerning the recorded conversation said this:

"They say the taped confession, or what is said by the Crown to be a confession, is unreliable, because the method of death described cannot be true and because there may be other explanations for what Mr Mitchell was recorded as saying, and Mr Crisp has suggested 'big-noting himself' as one of those possible explanations."

88 The question which arises is whether, the issue having been very clearly defined, it was incumbent on his Honour to direct the jury that unless it was satisfied to the requisite standard[15] that so much of the confession as tended to show guilt was true, the jury could not treat it as proof of guilt. Counsel for the applicant referred to R v Robertson,[16] R v Green,[17] and R v Buckley[18] as exemplifying situations in which a direction should be given. Counsel for the Crown submitted that such a direction is not mandatory, citing R v Ross.[19] He sought to distinguish the issues which arose in each of Burns, Robertson, Green and Buckley on the one hand, and the instant case on the other.

89 I accept, as was conceded by counsel for the applicant, that it is not mandatory to give a Burns direction, of whatever kind, in every case where the Crown relies upon an alleged confession by the accused. Whether such a direction should be given must depend on the circumstances of the case. No doubt the present case is factually distinguishable from authorities cited to us. But the question is one of principle, to be applied to the instant facts.

90 In my opinion, a direction such as I mentioned a few moments ago should desirably have been given in this case. The circumstances of the matter, which I have described in some detail, show why that is so. On the other hand, if this was the only ground of appeal, I doubt - having regard to the way in which the key issue was highlighted at trial, and having regard also to counsel's conduct in not seeking a pertinent direction - that the application should have been granted and the appeal allowed. Counsel took a forensic course which was readily explicable. The judge made only passing reference to the recorded conversation - in the passage in his charge to which I earlier referred; and in dealing with corroborative evidence in the context of the Gavin Brown warning. The first reference, based on counsel's submission, assisted the applicant; the second reference - which did address truthfulness - was made in a context - corroboration - about which, from the applicant's standpoint, the less said the better.

Ground 6

91 Counsel for applicant focussed upon a single alleged lie in support of the submission that an Edwards[20] or at least a Zoneff[21] direction should have been given. The alleged lie was the statement by the applicant, on the evening of 29 April 2002, that Preston had been put on a train to Newcastle. According to counsel's argument it was the very sort of lie which the jury might conclude had been told out of consciousness of guilt of murder. Concerning the failure of trial counsel to take exception when the judge did not give a consciousness of guilt direction, applicant's counsel relied upon R v Chang[22] to make the point that the ground can succeed despite exception not being taken to a relevantly deficient charge. Counsel added that in this case the judge had given no direction about lies at all.

92 Having regard to the circumstance that, in my opinion, this application should be granted and the appeal allowed, I think it is inappropriate to add much to the mountain of judicial pronouncements concerning consciousness of guilt directions. The course which the judge took represented the culmination of discussions between his Honour and counsel during the trial. The Crown disavowed reliance upon alleged lies told by the applicant - and, once one begins to list them, they make an imposing catalogue - for any purpose. Its case was simply put: The applicant had murdered Preston, as appeared by one or more of the eyewitness account of Gavin Brown, the applicant's admissions in the recorded conversation, and the circumstantial evidence. The applicant was thus able to go to the jury focusing upon, and attacking that case - in substantial part by attacking the credibility of the main Crown witnesses. That was a very favourable situation from the applicant's standpoint.

93 I am not persuaded, in the circumstances, that the judge should have concluded that there was a real danger that the jury might have reasoned to a finding of guilt on the footing that the particular lie revealed consciousness of guilt of the crime alleged. Contrary to the argument advanced for the applicant, I see no reason to think that the jury would have ignored the obvious routes to a finding of guilt in favour of reasoning by the indirect means of consciousness of guilt. I consider, therefore, that an Edwards direction was not required.

94 It is more debatable whether a Zoneff direction should desirably have been given. In support of ground 6, as I have said, counsel focused upon a particular lie - albeit that it was told on more than one occasion. But the applicant told many lies, not only in respect of the events of the evening of the 29 April. Indeed, it was part of his own case that he had told lies. So, for instance, it was his case that all of what he had said about the events at Powelltown was untrue, which could be the more readily seen because his account of killing Preston by injecting him with air was palpably untrue.

95 Given the circumstances which I have mentioned, the argument that a Zoneff direction could and should have been given in respect of the particular lie which counsel identified, and that lie only, had a certain unreality about it. If such a direction had been given, it was likely to have invited the jury's consideration of what should be made of the applicant's other lies. I should think that applicant's counsel at trial would have wished to avoid the jury turning its mind to that matter.

96 In all, although the Crown disavowed reliance upon the applicant's lies in proof of guilt, the learned judge might have thought it prudent to give a Zoneff direction - but in broader terms than was contended for on this appeal. That is not to conclude the issue. Whether such a direction was required necessitated consideration not only of Zoneff itself, but of the warning given in Dhanhoa v The Queen[23] by Gleeson CJ and Hayne J against the too ready giving of an Edwards or Zoneff direction. I do not presume to say what course should be taken upon a re-trial.

97 Even if I was firmly of opinion that it were better - although this was not argued on the appeal - that a general direction about lies had been given, I doubt that a miscarriage of justice should be taken to have occurred in the absence of such a direction. Application of the principle explained by McHugh and Gummow JJ in Dhanhoa[24] would lead me to the conclusion that it was not reasonably possible that the particular failure to direct may have affected the verdict. The case put by the Crown, which the applicant had to meet, focused on matters other than the applicant's lies. The Crown did contend that the applicant had lied about the means by which Preston was killed, but that was also the applicant's case, and in any event it was not the lie relied upon on this appeal. I see no reason to think that the jury used that lie in an impermissible way.

Ground 1

98 The attack on the ruling by the learned trial judge that the recorded conversation was admissible was based upon an alleged error in the exercise of his Honour's discretion, reference being made to The Queen v Swaffield; Pavic v The Queen[25] and to R v Carter.[26] The gist of the attack was that, at least from 19 May 2003, the applicant was a suspect; and that Ms Brown was acting as an agent of the state in the course of a police procedure which deliberately and consciously sought to get around s.464 of the Crimes Act. No challenge was made to the voluntariness of any confession made by the applicant,[27] although counsel submitted that in the course of the recorded conversation Ms Brown sought to exploit her relationship with the applicant, and attempted to elicit admissions from him.

99 For the Crown, counsel submitted that an examination of his Honour's ruling showed that he had taken account of all relevant matters in the exercise of his discretion. His ruling was consistent with authority and with the proper exercise of discretion. The confessions, counsel contended, should be considered as occurring in the investigatory phase, the applicant had been speaking with a person on equal terms, and the confession had been facilitated, not manipulated. Even if use of the covert recording should be considered a ruse, such conduct is lawful in the investigative stage of the criminal process.[28]

100 Before the learned trial judge, the main attack on reception of the admissions pertained to their reliability. The learned judge concluded that the reliability of the admissions was not impugned by the improbability that death had been caused by injecting Preston with air. That flourish was explicable by the applicant's understandable desire to implicate Brown - and so, implicitly, make it less likely that Ms Brown would report what he had said to the police. Alternatively, his Honour posited, it might be that the applicant and Brown had injected Preston with air; and that the applicant believed this to have been the cause of death.

101 I could not say that his Honour's conclusion[29] was not open. The applicant might well be thought to have made at least one very telling observation as to why he had killed Preston.

102 The next challenge at trial to the admissibility of the record of conversation took as its starting point the Crown's concession that Ms Brown, at the critical time, was an agent of the police. What had occurred, counsel argued, was an interrogation. This was not a conversation which had "flowed naturally." The conversation had to be considered in the context of the formerly close relationship between Ms Brown and the applicant - bearing in mind, of course, that they were respectively the mother and father of two children.

103 The learned judge concluded that:

• Ms Brown had expressed a concern, in the conversation, for her brother's situation. But nothing suggested that this was not genuine.

• Ms Brown had asked a number of leading questions. Some questions had approached cross-examination. But one such question followed earlier admissions, and taken as a whole the conversation was a naturally flowing one, given the relationship between the parties to it.

• The case was not one - unlike Swaffield & Pavic - where the applicant had previously refused to answer police questions.

• Although Ms Brown used her pre-existing relationship with the applicant to facilitate the conversation, there was no basis for concluding that he was relevantly vulnerable to, or overborne by, her.

• The matter was still in the investigative stage when the conversation took place.

• The crime under investigation was very serious. The means adopted in the investigation were not disproportionate to the problem confronting the police.

• Save for the subterfuge that the conversation was recorded, the applicant was not relevantly misled - cf Carter.

104 I have already said that his Honour's conclusion upon the challenge to reliability was open. Then, as to the attack founded upon the conversation being in substance on interrogation, his Honour's conclusions, this bearing upon his exercise of the relevant "broad discretion,"[30] were, I consider, open to him. He was not constrained to rule the conversation inadmissible. Further, in exercising his discretion, the ruling shows that he considered relevant matters and did not consider irrelevant matters.

105 Another judge might have concluded that there was a greater element of interrogation by Ms Brown than his Honour assessed there to have been. But that was a matter of fact and degree; and I certainly would not say that his Honour's assessment of the situation, looking at the conversation in whole, was in error.

106 Again, there was perhaps room for a conclusion that the conversation was recorded at a time when the matter had proceeded beyond the investigative phase. It might be said, unlike the situation of the first conversation considered in Carter, that the applicant was by then a suspect. But a conclusion that the matter had proceeded beyond the investigative phase was not, in my opinion, mandated - even if it could be decisive. Other than Brown's account, given 12 months after 29 April 2002, unsupported by the discovery of a body, there was an absence of evidence that a crime had been committed. Brown's account was evidently susceptible to challenge. Beyond that, there was Ms Brown's oral account of what the applicant had said to her on 19 May 2003. But viewed as at 22 May 2003 (that is, the day before the conversation was recorded) there was evident potential to challenge the reliability of her account. The fact that it was mirrored in what the applicant said in the recorded conversation on 23 May does not deny that such was the case.

Ground 8

107 In my opinion there was nothing to this ground. There were two accounts of what the Crown alleged was the killing of Preston - that given by Gavin Brown, and that given by the applicant. Neither of them opened up the possibility of there being anything else but an intent to kill or to do really serious injury. The submission made for the applicant that the version given by Gavin Brown was consistent with some lesser intent appears to me to be quite unreal. On Brown's account, the

applicant left Preston and went some distance to his vehicle, armed himself with a weapon some 20 centimetres in length, returned, and stabbed his victim in the back. Such a sequence speaks emphatically of at least an intention of causing really serious injury.

Ground 9

108 Having regard to my conclusion that, of the issue specific grounds, ground 4 alone has been made out, this ground must have failed.

Order

109 In my opinion, the application for leave to appeal against conviction should be granted, the appeal allowed, and a new trial had.

110 I agree, substantially for the reasons advanced by Ashley JA, that the appeal against conviction should be granted, the appeal allowed and a new trial ordered.

111 I agree that this application to appeal against conviction should be granted, for the reasons advanced by Ashley JA, the appeal allowed, and a new trial had.

[1] The applicant gave an account, in February 2003, that he made Ms Brown leave their home because she was using drugs. That version of events, as I understand it, did not get into evidence.

[2] By then a spa company.

[3] The Queen v Mitchell and Brown (2005) VSC 42.

[4] The Queen v Mitchell and Brown (Ruling No.2) (2005) VSC 43.

[5] The sentencing remarks are published as The Queen v Gavin James Brown (2005) VSC 63.

[6] Which raised the question whether the evidence could only lead to Brown being considered an accessory after the fact, such a person not being, in Victoria, an accomplice - see the position as summarised by Callaway JA in R v Weiss [2004] VSCA 73; (2004) 8 VR 388 at 394 - 395, [54].

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

[8] R v Sharp [2005] VSCA 44 at [3] per Callaway JA.

[9] R v Parsons and Stocker [2004] VSCA 92; (2004) 145 A Crim R 519 at 527 [22] per Buchanan JA.

[10] Which counsel for the Crown provided to the Court in the course of argument.

[11] [2005] HCA 81; (2005) 80 ALJR 444.

[12] (2006) VSCA 161.

[13] Or confirm or support.

[14] [1975] HCA 21; (1975) 132 CLR 258 at 261 per Barwick CJ, Gibbs and Mason JJ.

[15] As to which see the authorities cited at footnotes 16 and 17.

[16] [1998] 4 VR 30 at 40-41 per Winneke P.

[17] [2002] VSCA 34; (2002) 4 VR 471 at 481-482, [31]-[32] per Charles JA;

[18] [2004] VSCA 185; [2004] 10 VR 215 at 223-224, [29]-[30], per Nettle JA.

[19] [1922] HCA 4; (1922) 30 CLR 246 at 255-256 per Knox CJ, Duffy and Starke JJ; compare Isaacs J at 258.

[20] Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193.

[21] Zoneff v The Queen (2000) 200 CLR 234.

[22] [2003] VSCA 149; (2003) 7 VR 236.

[23] [2003] HCA 40; (2003) 217 CLR 1 at 12, [34]

[24] At 13, [38] and 18, {60].

[25] [1998] HCA 1; [1998] 192 CLR 159.

[26] [2000] VSCA 6; (2000) 1 VR 175.

[27] Compare R v SL [2005] VSCA 292.

[28] Citing Kirby J in Swaffield & Pavic at 220-221.

[29] And his explanation in that connection - perhaps particularly the first aspect of that explanation.

[30] Swaffield & Pavic, supra, at 202 per Toohey, Gaudron & Gummow JJ.