The Background
5 There is no need to set out the evidence adduced at the applicant's trial in substantial detail as there would appear to be no controversy concerning much of the background circumstances.
6 Kenneth David Duong was a student at Debney Park Secondary College on 10 September 2001. At about 2 o'clock on the afternoon of that day, on being sent out of his classroom for some reason, he sat under a tree in the schoolyard. Approximately ten minutes later, a group of young Asian males wearing dark clothing, walked towards him. He recognized two of its members, neither being the applicant. One of the group swung a metal pole at him and another pulled out a machete from his clothing. He became aware that he had been hit by one or other of these objects, although he had sensed no impact, as he felt blood running down his face. Duong ran towards the adjacent Mount Alexander Road on which he tripped and fell. Whilst on the ground, he was attacked again, before the group suddenly ran off. Duong did not know how many of his assailants chased him and, specifically, he could not identify the applicant as one of those involved in these events. The occurrence was witnessed by a number of persons in the vicinity, variously referring to the attacking group as constituted by four, five or six males.
7 That Duong was attacked in this fashion was not in dispute in the applicant's trial. What was challenged was the Crown contention that he was a participant in what had taken place.
8 Although there was some evidence that one of the group had a hairstyle similar to that of the applicant, he was not identified by any witness and there was no observation or forensic evidence that could lead directly to the identification of him as one of the assailants. Further, there was no evidence that he was acquainted with or had any association of any kind with the victim. The prosecution, to support its contention that he was implicated, relied upon the evidence of two witnesses, Robert Augustini and Darren White, who attempted to follow the group as they ran from the scene, the fact that he was located, not long after the event, in the company of persons who, it was reasonable to infer, were involved, and his explanation as to the circumstances under which he came to be with them.
9 Although neither Augustini or White was able to keep the members of attacking group under observation for the entire period after they left Mount Alexander Road they saw enough to direct the police to an area in a reserve where four young men, including the applicant, were sitting near a large stormwater culvert. Two metal pipes and three machetes were located nearby. Later investigations disclosed the presence of Kenneth Duong's blood on the clothing of all, save that of the applicant.
10 When interviewed, the applicant stated that he was at home in St Albans at about 2 p.m. to 2.30 p.m. when he received a telephone call from a friend to go to Flemington "as there was a problem". He said, "Okay, I will come down" and caught a train to North Melbourne and then another to Flemington, arriving there at about 3 p.m. He said that he walked to a McDonalds' store and called his friend who gave him directions to the reserve in which they were sitting. He joined them and was in their company when all present were arrested by the police. The applicant denied any involvement in the events in the schoolyard and said that he knew nothing of the weapons that the police found, although he indicated that he may have touched one.
The Grounds
11 As this very brief outline indicates, the case against the applicant rested upon the jury accepting that the persons subsequently intercepted by the police comprised or, were at least part, of the group who attacked the victim. The evidence of witnesses was that a group of four to six Asian males were involved and that they were followed to the general area in which the applicant and his companions were found. As the group was not under observation for the entire period, the possibility of a change in its composition could not be discounted[2]. Of the persons taken into custody, only the applicant had no blood of the victim on his clothing, and, as I have pointed out, he was not identified by the victim or any of the witnesses as a member of the attacking party.
12 There would seem to be no doubt that all involved in the trial accepted that whilst the presence of the applicant in the circumstances was highly suspicious, it was incapable of itself of providing an adequate foundation, in the face of the applicant's denial of involvement, for the inference to be drawn beyond reasonable doubt, that he was a party to the affray. The focus of the Crown's case was therefore placed upon the applicant's version of his movements and, in particular, his claim to have been contacted at his home between 2 p.m. and 2.30 p.m. and requested to provide assistance to his friends[3].
13 The prosecutor argued that the jury should conclude that the applicant had deliberately provided a false version of the circumstances under which he came to be in the company of other persons involved in the affray, for the sole purpose of avoiding responsibility for his participation in it. This contention, in turn, rested entirely upon the evidence of independent and reliable witnesses, that made it apparent that the applicant did not leave school at around 2.00 p.m., as he claimed when interviewed, and that he could not have received a telephone call at around 2.30p.m. or reached the reserve after 3.00 p.m. These were not matters about which the applicant may have been mistaken, the prosecution submitted to the jury, and therefore he could be seen to have deliberately lied. The only reasonable explanation of having done so was his knowledge that disclosure of the truth would expose his guilt, the argument proceeded.
14 In response, counsel for the applicant submitted to the jury that his client, according to his record of interview, was not wearing a watch on the day and simply was mistaken and uncertain. No adverse inference could in that situation be properly drawn he argued. Even if, his client had not told the truth, it could not be concluded that he was guilty of involvement in the affray as there were a number of reasons why he may not have been prepared to disclose all that had transpired from his perspective.
15 If the other evidence was correct (and there is nothing to suggest that it may not have been), there can be no doubt that the applicant was at least wrong about the various estimates of time to which he referred in the course of questioning by police. Evidence was adduced from teachers at the school attended by the applicant that, whilst he was present during the morning, he did not respond to a roll call at an art class that commenced at 1.40 p.m. The jury was entitled to conclude that he had left before that time also, as, the prosecutor pointed out to the jury, the applicant could not have arrived at the Flemington reserve at about 3.10 p.m. as he claimed in his interview when regard was had to the uncontroverted evidence of Detective Sergeant Hardy that he was taken into custody at around 2.30 p.m.
16 Against this background, it is significant that, save that he claimed to have seen a clock at the Flemington railway station showing 3 o'clock, as the following extracts from the record of his police interview show, the applicant at no stage indicated any confidence that his estimate of a relevant time was accurate or, indeed expressed a significant degree of certainty: