R v Shalala, Zoudi & El-Azar [2007] VSCA 199

Court of Appeal (Vic)|2007-09-17|Before: VINCENT and REDLICH JJA and HABERSBERGER AJA

CRIMINAL LAW - Appeal against conviction - Concession made in defence opening - Whether or not admission of fact - Integrity of DNA evidence - Challenge to DNA evidence - Whether pre-trial admission - Sections 7(3), 8(1), 8(4) Crimes (Criminal Trials) Act 1999 (Vic) - Withdrawal of concession - Fundamental right of defence to put prosecution to its proof - Error in refusing to allow withdrawal of concession - Role of case management in criminal trials - Error affecting both accused's trials on all counts - Convictions of Shalala and El-Azar quashed.

PROCEDURE - Evidence adduced in accordance with the procedure in R v Thynne - Whether the witness's statement should be placed in witness's hands in the presence of the jury.

1 The applicants, Allan Shalala, Elia El-Azar and Jack Zoudi, were found guilty by a jury of numerous offences which occurred over a period of days when the applicants were searching for a man named Rizki. He allegedly owed Shalala money. The jury found that the applicants, whilst acting in concert, kidnapped two associates of Rizki, Geoffrey Cook and David Golombek in order to obtain information as to the whereabouts of Rizki. The applicants Shalala[1] and El-Azar[2] were found guilty of having kidnapped both Cook and Golombek while Zoudi[3] was found guilty only of Cook's kidnapping.

2 The applicants now appeal against their convictions. It is unnecessary to consider in detail all of the grounds advanced by the applicants. The Crown concedes that the conviction of El-Azar on the Golombek counts must be quashed on the ground that the trial judge erred in prohibiting the defence from challenging certain DNA found on a rope in the garage of El-Azar which the Crown alleged contained DNA of the victim Golombek. For the reasons which appear below, this error requires the setting aside of the convictions of both El-Azar and Shalala on all counts. On a different basis, Zoudi's appeal must also be allowed as his convictions are unsafe and unsatisfactory.**

**3 The circumstances of the offences were summarised by the trial judge in her reasons for sentence. What follows draws upon that summary.

4 Over a period of four to five days, commencing Thursday 9 January 2003, the applicants were seeking Rizki to recover from him money allegedly owed by him to Shalala. On that Thursday night the three applicants went to a flat in Simmonds Street, South Yarra where Rizki's brother lived, and where Rizki occasionally stayed. Also visiting there that night was one David Golombek, who also knew Rizki, and Shalala and El-Azar sought his assistance to find him.

5 The next day Shalala and El-Azar made contact with Golombek by phone and in person, and through him were introduced to one Geoffrey Cook who also knew Rizki. Shalala and El-Azar arranged to meet Cook on Friday night at the McDonalds at Clifton Hill. He was persuaded to go with the two men he met there, who the jury must have found were Shalala and El-Azar (the Crown did not allege that Zoudi was then present). During the course of the journey Cook was blindfolded. He had acquiesced that far but at some stage after that became unwilling to go any further. Against his will he was taken to a location which he thought was a house, where he was kept tied up for some of the time, and repeatedly asked for the whereabouts of Rachid Rizki. He was asked to make phone calls to locate him. At this location he caught a glimpse at one stage from under the blindfold of a "Jack Daniels" insignia and of a gas heater in the wall. It later emerged that there was a "Jack Daniels" poster on the wall above a gas heater at Zoudi's house. Although Zoudi was not identified as present at the house by Cook, the Crown case was that Zoudi was present at the house during Cook's detention.

6 While at the house to which he was taken, Cook's car keys and mobile phone were taken from him. At some stage the fascia to his car stereo was also taken from his possession.

7 Cook was forced to sign a document in which he purported to give his car away. During his captivity he was assaulted by being hit to his face, knocked to the ground and stomped or jumped on to the side of his chest. As he was blindfolded he could not identify who did this but he said it was at the first location, being the house where he had glimpsed the Jack Daniels insignia. After his release he was diagnosed as having suffered a cracked rib, and bruising around his eye and on his face.

8 The applicants demanded $10 000 from Cook, which gave rise to count 10. A friend named Justin was called on Cook's mobile phone and arrangements were made for two of the captors to take Cook to meet Justin at a service station where Justin was to bring as much money as he could - one or two thousand dollars. On arrival at that service station and being allowed by his captors to go to talk to Justin without the blindfold, Cook escaped by getting into the car being driven by Justin's friend. This occurred at about dusk on Saturday 11 January 2003.

9 Sometime over that weekend Shalala produced the document signed by Cook together with his car and car keys to a dealer in Ford vehicle parts and exchanged them for car parts. The jury found Shalala guilty of theft of Cook's car.

10 After El-Azar's arrest a few days later, the stereo fascia board from Cook's car was found in the car in which El-Azar and Shalala had been driving over that weekend.

11 On Sunday 12 January 2003 at about midday, Golombek, on his way to the Rizki flat in South Yarra, was confronted in the carpark of those flats by Shalala and El-Azar. He was forced into the car and driven away against his will. Part way through that journey he was told to put on a beanie as a blindfold, and to lie down and not talk. He was taken to a location he identified as "like a garage or storeroom" where he was tied with rope[4] to a swivel chair, with the beanie still covering his eyes, while three men demanded information from him about the whereabouts of Rizki. The trial judge held that there was no evidence that Zoudi was the third man and directed the jury to enter verdicts of acquittal on all of the charges against Zoudi which related to the kidnapping of Golombek. Golombek, still blindfolded, was taken to another location which he described as "like the inside of a house or flat or apartment". His feet were bound again but not his hands. During his captivity threats were made, including a threat that body pieces would be taken and that his captors knew where he lived.

12 Golombek was moved to a third location and then back to what he said was the second location where he said he was hogtied and left to lie that way on the floor overnight. Next morning, a decision was apparently made to release him. He was taken in a car with El-Azar and Shalala, and eventually let out of the car in Prahran. His total captivity was approximately 24 hours.**

The refusal to allow El-Azar to challenge the DNA evidence

**13 In opening his case at the trial, counsel for El-Azar told the jury that it would not be disputed that Golombek's DNA was found on a green rope which was found in El-Azar's garage. Counsel, who also appeared for El-Azar on this appeal, informed the Court that this concession was made because the depositions did not reveal any basis upon which a realistic challenge could be made to the DNA evidence.

14 Later in the trial, the prosecution provided further material concerning the continuity of the DNA evidence, in particular the sample said to have been taken from Golombek which was used as a reference to match the DNA located on the green rope. This material caused defence counsel to reconsider the question whether the integrity of the DNA sample had been compromised. Counsel sought to withdraw his earlier concession so that he could explore the integrity and continuity of the DNA sample in the trial. In his written submission to this court, counsel for El-Azar set out an extensive list of matters which had led him to question the continuity of the sample. A number of these matters had been raised with the trial judge in support of counsel's application to permit him to explore in evidence the handling of the DNA sample. It is not necessary to consider the validity of the particular concerns which informed the application.

15 The trial judge allowed counsel to explore some of the issues concerning the continuity of the sample on the voir dire. Mr Fowler, an analyst from the Victorian Forensic Science Centre (VFSC) and Mr Butera, a VSFC liaison officer, were examined. Ultimately, however, her Honour refused to permit counsel for El-Azar to explore this evidence before the jury. In ruling on the point, her Honour found that the opening remarks by defence counsel amounted to a clear admission that there was no dispute as to the continuity or integrity of the reference sample from David Golombek. The relevant part of the ruling was in these terms:**

In my view I should refuse to let [counsel] for Mr El-Azar, withdraw admissions he made to the jury in that response to the Crown opening insofar as he now seeks to challenge the continuity and integrity of the reference sample of David Golombek who as I say, is the alleged victim of some of the charges.

My reasons for this are put very briefly. First, there must be some meaning and respect given to efforts at trial management in their attempt to isolate matters that are really in dispute in cases for the justice system to run with any degree of efficiency but also for it to maintain respect from the community as it watches the time and cost as trials extend in time.

When the justice of a situation requires, there clearly must be discretion in the court to allow departure from earlier admissions, whether to reverse previous rulings or revisit issues about what matters will be allowed to be led and not led. But in my view, at a stage that this trial has now reached after some weeks of evidence I would need to be convinced that there is a real issue about the sample taken from David Golombek, as has been said in evidence on 13 January 2003 - a real issue that it may have lost some of its integrity.

Secondly, and because I had not recalled those comments in [counsel's] response in front of the jury I had allowed the pursuit of some of this evidence last week. On voir dire on Friday afternoon I heard from a witness, Mr Butera, the liaison officer at the Victorian Police Forensic Science Laboratory who had received what have been tested as the David Golombek samples. I also heard the forensic scientist Mr Fowler tested on how the samples came to him and in what form with what labels and numbers. Some of the areas where [counsel]wanted to raise and explore issues of how either numbering or labelling - not on the samples but on the description in the computerised records - was placed or changed. On hearing these witnesses in voir dire and their explanation of these matters I am not

convinced that they raised any serious question about the continuity of the samples at these points.

Thirdly, to reopen the issue after four weeks of evidence means that some witnesses already long since called and excused may not have been questioned on matters that have now been or are now sought to be reopened. That would have been due to what was believed to have been a concession that certain matters were not in dispute. Here, specifically, it seems that Dr Wills falls into this category, she being the doctor who took the DNA samples from Mr Golombek and was not asked to describe them, and specifically whether they included 2 buccal swabs.

While if it were necessary I could give leave to the Crown to recall her, I consider that would be to extend indefinitely and for no apparently good reason the course of this trial and it points to the very reason why matters are set earlier on and the holding of parties to what they do open to the jury should be given real credence.

For those reasons I am not going to permit [counsel] to explore the issue of the continuity of the David Golombek DNA reference sample.

**16 On the appeal, the Crown initially argued that there was no error in this ruling. In a supplementary submission filed after the hearing of the appeal, the Crown reconsidered that position and, with admirable fairness, conceded that counsel for El-Azar should have been given the opportunity to put the Crown to its proof with respect to the integrity and continuity of the DNA sample. In our view, this concession was appropriately made.

17 The trial judge's observations, both in the ruling and in other parts of the transcript, show that her Honour treated the opening remarks of defence counsel as an admission which could only be withdrawn with her leave.

18 Apart from a plea of guilty, at common law admissions of fact were not permitted in a criminal trial.[5] To avoid the inconvenience of proving facts that were not in controversy, statutory provisions were introduced to permit an accused person to admit facts.[6] Initially the respondent submitted that the opening remark of defence counsel was an admission made pursuant to statute and could not be withdrawn save in exceptional circumstances.[7]

19 The indication in the opening address that the defence did not dispute the integrity of the reference sample of David Golombek used to link Golombek's DNA to the green rope, was not a formal admission made pursuant to statute. Though compliance with the provisions of the Criminal Trials Act is now commonplace in County Court trials, it was not suggested that there had been any exchange of documents between the parties that contained any written admission on this issue. The remark in opening did not constitute a pre-trial admission made pursuant to s 7(3) of the Crimes (Criminal Trials) Act 1999 (Vic) ("Criminal Trials Act"). Even if a written pre trial admission relating to the reference sample had been made in accordance with that procedure, s 8(1) only confines the prosecution and defence in opening their respective cases to the matters set out in their respective documents unless there are exceptional circumstances. Section 8(4) permits the defence to depart from admissions made in pre-trial documents exchanged pursuant to s 7 upon informing the court and the prosecution of its intention to depart substantially from a matter set out in the defence response. Such admissions are not binding as the accused may contest a fact in a manner inconsistent with the pre trial admission[8] and which may have been repeated in the opening remarks.[9] Nor was it suggested at trial or on appeal that the defence remark in opening amounted to an admission under ss 149A or 149AB of the Evidence Act 1958 (Vic).[10]

20 The oral argument on appeal was conducted on the basis that the concession was made for the first time in defence counsel's opening before the jury. The informal making of concessions in this manner has been commonplace for many years. This has had the practical effect in many cases of avoiding the calling of witnesses to establish facts that were perceived as incontrovertible or otherwise not in dispute. It is often quite appropriate to deal with matters in this fashion. However for a number of reasons, and generally, it is preferable that any concession or admissions of significance be made or recorded in proper form.

21 There is no need to set out the various problems that can arise when informal processes are adopted and sufficient to state that concessions, whether formally or informally made, can on occasions assume considerable significance and affect dramatically the course of the trial. For this reason, and whatever the process adopted, admissions of fact must be approached with considerable care by all involved.

22 In the context of an adversarial and accusatorial proceeding, the making of admissions is understandably a valuable process which avoids unnecessary cost and inconvenience to the community and those affected. These are clearly important objectives but they cannot be attained at the expense of the fair trial of the accused.

23 Whether the concession was first made in a pre trial document filed in accordance with the provisions of the Crimes (Criminal Trials) Act 1999 (Vic) and repeated in the defence opening, or was raised for the first time in the defence opening, there is no substance in the Crown submission that they can only be withdrawn in exceptional circumstances. The Crimes (Criminal Trials) Act contains no such limitation and there is no good reason in principle why such a rigid approach should be adopted.

24 In the absence of statutory provisions to the contrary, a concession made in exercise of defence counsel's mandate may be withdrawn unless to do so will result in irreparable unfairness to the other side.[11] As Gleeson CJ observed in R v Birks:[12]**

[I]n the running of a trial, counsel often have cause to regret things they have done or left undone. Damage control is part of the art of advocacy ... the mistake could have been rectified.

**25 In the present case, the Crown would not have been prejudiced by defence counsel's withdrawal of the concession. If prejudice had been raised the trial judge would still have needed to consider whether the prejudice was of such an order that the defence should be shut out from pursuing such a course. Where the interests of justice would have laid having regard to all of the circumstances need not be considered as here the Crown was still able to call the evidence it wished relating to the DNA. The learned trial judge's refusal to allow defence counsel to withdraw his concession did not rest upon any finding that the Crown would be prejudiced but upon the view that there was no merit in the course the defence wished to follow as the Crown would establish continuity if the evidence was called and because the calling of such evidence would extend an already lengthy trial.

26 We doubt that defence counsel required permission of the trial judge to withdraw the concession made in opening but defence counsel was wise to raise the matter with the trial judge. Absent cogent reasons for such a withdrawal, both the prosecutor and the judge would have been entitled to comment in strong terms about the change in the defence position. But that says nothing as to the defence right to do so.

27 Where the defence in a criminal trial seeks to withdraw an admission made in opening or during the case, the fundamental right of the defence to put the prosecution to its proof will generally constitute a sufficient and powerful reason why the defence is not to be denied the right to do so or to adduce evidence in support of the newly adopted position.

28 It is not for the trial judge to remove or keep issues of fact from the jury's consideration because the judge has formed the opinion that such issues should or would be resolved adversely to the accused.[13] Her Honour's view of the merit of the course which the defence wished to pursue was not to the point. An issue had arisen which the appellant was entitled to have determined by the jury.

29 The importance of effective judicial control over the manner in which a trial is conducted is not to be understated. But care is called for in the application of case management principles. The trial judge's application of these principles was unfortunately misplaced. Such considerations can rarely prevail when weighed against the right of the defence to put the prosecution to its proof on important questions of fact. They must not be allowed to override the need to ensure that the accused has had a trial according to law. In Queensland v J L Holdings Pty Ltd[14] the High Court considered the role of case management in the context of an appeal against a refusal, in a civil case, by a trial judge of an application by the defendant to add a defence. Dawson, Gaudron and McHugh JJ observed:**

Case management is not an end in itself. It is an important and useful aid for ensuring the prompt and efficient disposal of litigation. But it ought always to be borne in mind, even in changing times, that the ultimate aim of a court is the attainment of justice and no principle of case management can be allowed to supplant that aim.[15]

These observations are equally applicable in the setting of a criminal trial.[16]

**30 In its further submission, the Crown also abandoned any reliance on the proviso in respect of the conviction of El-Azar on the Golombek counts. The respondent conceded that in accordance with the dicta in Weiss v The Queen[17] the foreclosure of an issue of fact of such importance as the provenance of the Golombek DNA sample constituted "a serious breach of the presuppositions of the trial" particularly as there was no practical difficulty in the prosecution adducing the evidence of continuity of Golombek's DNA sample.

31 It follows from the Crown's concession that El-Azar's conviction on the Golombek counts must be overturned. That raises questions as to whether the error infects El-Azar's conviction on the counts connected with the kidnapping of Cook, and also whether the error affects the convictions of Shalala on both kidnappings. We would answer both of these questions in the affirmative.

32 We turn first to the effect of the error on El-Azar's convictions on the Cook counts. The Crown submitted that any error found to have vitiated convictions in respect of the Golombek counts could not infect the convictions on the Cook counts, having regard to the judge's separate consideration directions to the jury and the way in which the prosecutor put the case in closing argument. As counsel for the crown pointed out, her Honour in the course of her charge directed that the jury must be satisfied of the guilt of the accused on each separate count before reaching a verdict of guilty on those counts. In his closing address, the prosecutor said that although there was much evidence against the three accused "as a team" the evidence against each of the accused needed to be considered, and it was not simply a case of "one in or all in" or guilt by association.

33 In our view the addresses to the jury by the prosecutor and the trial judge's direction to which counsel referred do not obviate the conclusion that the error in relation to Golombek's DNA taints El-Azar's conviction on the counts concerning Cook's kidnapping. The Crown case was that the kidnappings and related offences committed by each of the applicants were part of an ongoing course of conduct directed to the same end supported by the same motive; to find Rizki and recover moneys allegedly owed to Shalala. Accordingly, the evidence presented in relation to each kidnapping was closely intertwined. Some evidence was common to both of the kidnapping counts. The evidence of the presence of Golombek's DNA on the rope was strongly probative in relation to Golombek's kidnapping. Its presence in El-Azar's garage was important circumstantial evidence which tended to establish the identity of El-Azar as a kidnapper. Such conclusions as the jury may have drawn from such evidence in relation to that count could be utilised by the jury when considering the count of kidnapping Cook. Viewed in the context of the trial, much of the evidence relevant to the kidnapping of Golombek was clearly likely to influence the jury's view of the Cook kidnapping, and of El-Azar's role in it. The suggestion that the jury would not have recognised or treated this evidence as relevant to the Cook counts cannot be sustained.

34 In our view the proviso cannot save the Cook counts. The respondent, having accepted that there was a miscarriage of justice in El-Azar's trial on the count of kidnapping Golombek, the real possibility that there may have been a miscarriage of justice in his trial on the count of kidnapping Cook cannot be discounted,so closely intertwined was the evidence against El-Azar in respect of the two kidnappings.

35 Turning to the consequences of the success of El-Azar's appeal for Shalala, the Crown case at trial was that Shalala and El-Azar had jointly committed the offences connected with the kidnapping of Golombek. Much of the evidence relied upon by the Crown applied to both applicants. Again the respondent placed reliance upon the directions given to the jury that they must consider each charge against each accused separately and upon submissions made to that effect by the prosecutor in his closing address. But as the trial judge reminded the jury there were key factual issues that applied to many of the charges. A considerable body of evidence relating to the kidnapping of Cook and Golombek was cross-admissible. The DNA evidence in relation to the rope found in El-Azar's garage, whilst having direct relevance to the count that El-Azar kidnapped Golombek, also constituted probative evidence against the other applicants on the same count. The circumstances surrounding the kidnapping of both victims was closely connected as was the case made against each applicant. Much of the prosecutor's argument at trial emphasised that the applicants acted in concert in the kidnapping of both victims in pursuance of a common motive for both kidnappings. The jury's view of El-Azar's involvement would inevitably have influenced its view as to Shalala's involvement.[18] In such a case, one cannot discount as a real risk, the possibility that the miscarriage of justice in the trial of one offender has resulted in a miscarriage with respect to the co-offender.[19]

36 The error rendered unsafe Shalala's conviction on the counts concerning the kidnapping of Golombek. It also infected the counts relating to the kidnapping of Cook for the reasons we have already given in relation to El-Azar.

37 The conviction of El-Azar and Shalala on all counts must be quashed and a new trial ordered.**

**38 Ground 6 of Zoudi's appeal is that the guilty verdicts against him were unsafe as they could not be supported by the evidence given at trial. Largely, the submissions his counsel advanced in support of this ground were made at trial in the course of a 'no case' submission made on Zoudi's behalf. Her Honour rejected the submission, ruling that the impugned counts could be left to the jury.

39 The trial judge directed the jury that before they could find Zoudi guilty of the false imprisonment of Cook, they needed to be satisfied that he was present in the house during Cook's detention. The substantive question raised by Zoudi's appeal is whether there was sufficient evidence before the jury to support the inference that he was present in the house at that time. The Crown relies upon the undisputed evidence that Zoudi was one of the three men who went to Rizki's flat on the Thursday night and upon evidence given by Golombek of a threat Zoudi made on that occasion. From this, counsel for the Crown submits, the jury could infer that Zoudi was willing to assist his co-accused in recovering the money owed to Shalala, and was willing to threaten violence to that end. Combined with Cook's evidence about the presence of the Jack Daniel's poster above the heater, which suggested that Zoudi's house was used in the kidnapping of Cook, the Crown submits that it was open to the jury to infer that Zoudi was present for and participated in the kidnapping and in the violence inflicted on Cook.

40 All of these charges rested on the assertion that Zoudi was present with El-Azar and Shalala during the period that Cook was kidnapped. His presence could not be established beyond reasonable doubt on the evidence presented at the trial. It is not enough that it is more probable than not that he was. The Crown must exclude any reasonable hypothesis consistent with innocence. That requires little citation of authority. The principle was discussed in Knight v R[20] later subsumed in M v R[21] As Dixon J said in Martin v Osborne:[22]**

If an issue is to be proved by circumstantial evidence, facts subsidiary to or connected with the main fact must be established from which the conclusion follows as a rational inference. In the inculpation of an accused person the evidentiary circumstances must bear no other reasonable explanation. This means that, according to the common course of human affairs, the degree of probability that the occurrence of the facts proved would be accompanied by the occurrence of the fact to be proved is so high that the contrary cannot reasonably be supposed.

**41 In our view the occurrence of the facts upon which the Crown relied was insufficient to persuade a jury, acting reasonably, that they could reject as a rational inference, the possibility that Zoudi was not present during the period that Cook was confined at his flat. An inference that the applicant was probably guilty or even that his guilt was very probable will not suffice. An acceptance of all of the Crown's circumstantial proof was, in our opinion, insufficient to satisfy the criminal standard. That doubt is one which the jury should have experienced. We do not think that upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty.

42 It follows that Zoudi should be granted leave to appeal against conviction, that the appeal should be allowed, the conviction quashed and a judgment and verdict of acquittal be entered.

43 As there may be a further trial of El-Azar and Shalala, it is desirable that we briefly express our opinion in relation to two of the remaining grounds. Ground 5 of El-Azar and ground 4 of Shalala raised the contention that Cook was a witness whose evidence was "unreliable" and as a consequence the trial judge was under a duty to warn the jury of the dangers of acting upon his evidence.[23] In our view Cook did not fall into a category of witness for which a warning was required. The applicants' defence, involving the allegation that Cook had not been kidnapped and had voluntarily accompanied them to Rizki's flat, did not necessitate some specific warning. The attack upon Cook was at the heart of the applicants' defence. The jury must have been well aware of the basis upon which the reliability of Cook was attacked. Cook was not amongst any particular category of witness which required a direction nor was there any hidden danger in any aspect of his evidence. This was not a case in which a warning was required to avoid the danger of a miscarriage of justice.

44 Grounds 3 and 4 of El-Azar and grounds 2 and 3 of Shalala and Zoudi concerned the procedure followed during the evidence-in-chief of Cook. The trial judge permitted the prosecutor to adduce evidence from him in accordance with the decision in R v Thynne[24] which approved the course adopted by Dixon J in R v Neal & Ors.[25] The trial judge had allowed the prosecutor to establish that Cook had previously made a statement to police which was placed in Cook's hands in the witness box in the jury's presence. He was then asked leading questions in conformity with the content of that statement. Counsel for the respondent in the course of oral argument correctly conceded that the trial judge had erred in permitting the statement to be placed in the witness's hands in the jury's presence thereby revealing to the jury that the witness was being asked to confirm the content of portions of his written statement. Such a course may be permitted where the witness has been declared hostile and the prosecution has been given leave to cross-examine in such a manner. The procedure in Thynne confines the extent of a prosecutor's cross-examination to leading questions in conformity with the witness's statement without disclosing the fact to the jury that the witness, at a time contemporaneous with the events, has made a prior statement consistent with the testimony he is asked to give. The procedure in Thynne is sometimes followed in preference to a declaration that the witness is hostile with a consequential grant of leave to the party calling the witness to be able to cross-examine the witness on his prior statement.[26] This procedure confines the cross-examiner to leading questions in conformity with the witness's statement without disclosing the existence of the statement. The cross-examiner is not permitted to impeach the credit of the witness or otherwise cross-examine the witness about their statement or the reasons for any variation of their evidence from the content of their statement.[27]**

[1] Shalala was found guilty of two counts of kidnapping, two counts of false imprisonment, and one count of theft, intentionally causing injury, theft of a motor vehicle, blackmail, assault and making a threat to kill.

[2] El-Azar was found guilty of two counts of kidnapping, two counts of false imprisonment, and one count of theft, intentionally causing injury, blackmail, assault and making a threat to kill.

[3] Zoudi was found guilty of one count of false imprisonment, blackmail, theft and intentionally causing injury (these counts related to the kidnapping of Cook), and also pleaded guilty to one count of possession of a drug of dependence, namely cannabis L.

[4] The DNA evidence which El Azar's counsel wished to challenge was found on this rope.

[5] Rattray v Roach [1890] VicLawRp 36; (1890) 16 VLR 165 cited with approval in Munday v Gill [1930] HCA 20; (1930) 44 CLR 38, 68 (Isaacs J), 80 (Gavan Duffy and Starke JJ).

[6] Sections 149A and 149AB Evidence Act 1958; s 7 Crimes (Criminal Trials) Act 1999.

[7] This appears to draw upon the term used in s.8(1) of the Crimes (Criminal Trials) Act.

[8] See Cross on Evidence (Australian Edition) [3190].

[9] S. 16 Crimes (Criminal Trials) Act 1999 - The judge and any party with the leave of the judge may comment upon this departure.

[10] S.149AB (3)- admissions made under the Evidence Act must comply with the formal requirements of the statute before they have any binding effect.

[11] Rv Clarke (2006) 13 VR 75 [57] [62] (Nettle JA with whom Charles JA agreed)

[13] R v Rajakaruna (No 2) [2006] VSCA 277; [2006] 168 A Crim R 1, [4] (Callaway JA), [49]-[55] (Redlich JA).

[16] See Gipp v R (1998) 194 CLR 106, [136] (Kirby J); Truong v R [2004] HCA 10; [2004] 223 CLR 122, [151] (Kirby J).

[18] See R v Rajakaruna (No 2) [2006] VSCA 277; [2006] 168 A Crim R 1, [55] (Redlich JA).

[19] See R v Merriman [2007] VSCA 133, [20]-[21] (Vincent JA); R v Celebicanin & Nyrir (1991) 53 A Crim R 374, 379 (Crockett J, delivering the judgment of the Court).

[23] The applicants cited DPP v Faure [1993] VicRp 87; [1993] 2 VR 497 and R v Miletic [1997] 1 VR 593.

[26] For examination of the Thynne procedure and its rationale see R v Cuong Quoc Lam & Ors (Ruling No 6) [2005] VSC 280, [8]-[10], Ruling No 8 [2005] VSC 282, [13]-[16], Ruling No 9 [2005] VSC 283, [26]-[32].

[27] R v Cuong Quoc Lam (Ruling No 9), [28].

Crimes (Criminal Trials) Act 1999(Vic)

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