R v Sharp [2005] VSCA 44

26. At the hearing of the application, leave was sought to add further grounds, namely:

"7. The learned trial judge erred in his directions concerning `independent evidence supportive of' (i.e. corroborative of) Mr Coulson's and Mr Murphy's accounts; and in particular he erred: (a) in failing to define `independent evidence supportive of' (or corroborative of) their evidence; (b) in leaving as `independently supportive of' (or corroborative of) their accounts evidence that was incapable of fitting that description, namely: (i) in the case of Mr Coulson, all items left except the finding of the blood-spattered jeans; (ii) in the case of Mr Murphy, the finding of the shock absorber in Dunlop Street and `his observations of the body being placed in the boot are confirmed by Mr Coulson's evidence. 8. The learned trial judge erred in directing that, `If you accept [Mr Murphy's] evidence beyond reasonable doubt, then Peter Sharp is guilty of murder'. 9. The learned trial judge erred in directing the jury that, `as a matter of law, I instruct you that there is no evidence before you that Robert Coulson murdered Stephen Wilks'. 10. An aggregate of errors caused the trial to miscarry."

30. The Court permitted counsel for the applicant to present argument on the merits of the proposed grounds and reserved its decision on the application to add them.

35. It was common ground that the applicant and the deceased were known to each other and resided in the same block of flats, with the deceased visiting the applicant on an almost daily basis to purchase marijuana from him.

38. Adam Murphy, another resident of the block, in evidence-in-chief stated that he also visited the applicant regularly to purchase marijuana. On Friday 4 May 2001, he attended the applicant's flat for this purpose. He had seen the deceased arrive there by taxi about an hour earlier. When he entered, he found the applicant and the deceased sitting at a table. They were discussing car parts. Another man, who he knew as John, was also present. There were shock absorbers and other parts on the floor and in boxes. The witness said that he left at between 3 and 4 p.m.

41. At approximately 11.30 p.m., he was in his own flat when there was a loud knock at the door. The applicant was outside and appeared to be in an agitated state. He requested Murphy to go with him, saying, "Adam, come downstairs. Something's happened. Something's happened." He then led the witness to his flat.

44. On entering, Murphy saw a man lying on the floor in the loungeroom with his legs facing towards the front door. The man was clutching hold of a chair with his legs, and his body was making jerking movements. He was gurgling blood from his mouth.

47. Murphy asked the applicant, "What's happened. Why don't you ring an ambulance". The applicant responded, "No one is ringing an ambulance here. This is what happens in the criminal world. I'm going to teach you all about it." He then picked up a motor vehicle shock absorber and said to Murphy, "I gave him a good one with this."

50. Observing that the person on the floor was in serious distress, Murphy said, "Look at him, he's very badly hurt, ring an ambulance." The applicant responded, "He's all right. I've seen worse than this before" and lifted his shirt to show some scars on his body. The applicant went to the sink, picked up a bottle of green dishwashing liquid and then walked over to where the man was lying. He lifted his head and squirted the contents of the bottle into his mouth. Murphy stated that he could see foam, and the man started to wriggle and move as he pleaded with the applicant to let him go, telling him that he had a wife and children. The applicant responded "Shut up you big girl", or used words to that effect.

53. The applicant then directed Murphy to "Take it [the shock absorber] far away and throw it down a drain." After wrapping it in a piece of clothing or a pillow case, he gave it to Murphy, with the further instruction "You go and get rid of this." Just before he left the flat, Murphy saw the applicant go to his bedroom and return with a mash hammer. The applicant told him "I'm going to finish him off with it." The victim was still alive when Murphy left, although he was aware that he was seriously injured.

56. Murphy went to his car and drove until he came to a street that ran off Ascot Vale Road. He turned into it and threw the shock absorber on to the nature strip. He then drove to the nearest telephone box and called his father at whose house he spent the remainder of that night. He did not mention what had happened, as he was afraid for his wife and children.

59. When he returned to his flat, at about 11.30 a.m. on the next day, he noted that the applicant's car was not parked outside the block. He showered, changed his clothes and went back to his father's home.

62. He was back in his own flat, at around 11.30 p.m., when the applicant again knocked on his front door. He pretended that he was not at home, but the applicant called out "Adam, I know you're in there. Your car is downstairs. You'd better open up." As he opened the door, the applicant called to a person downstairs "Come here, Robbie." The applicant then said to Murphy "You'd better not say anything to anyone or tell the police anything that happened." He told him that "Robbie" [Robert Coulson] and he wanted to stay until about 3 or 4 in the morning because his own flat stank. Murphy admitted them and the two men slept on the floor until around 3 a.m., when the applicant said to Coulson, "Robbie, we've got to do-what we've got to do." They then left. About five minutes later, Murphy heard banging downstairs and looked out his window. He saw Coulson and the applicant carrying something in the shape of a body wrapped in black plastic. They put this object in the boot of the applicant's car. Murphy left his flat that night and never returned to it.

65. In cross-examination, Murphy said that, at the time that he made a statement to police about these matters, on 15 May 2001, he was under the impression that he had been arrested and had no option but to go with them. He agreed that, as at the time of the trial, he had not been charged in relation to the assistance that he had provided to the applicant, and did not believe that he would be. He understood that, if he came to court and swore up to his statement, no prosecution would be instituted against him, but denied that, as a consequence, he had a motive to lie.

68. He agreed that, at the committal proceeding, he had described the shock absorber as yellow in colour, whereas the one that he identified in court was orange. He said that he could not recall whether it was picked up by the applicant from a chair, a table or the floor of the loungeroom. He said also that, at the time of the committal hearing, he did not know that the particular car part was called a shock absorber and that he had later learned this from the police.

71. He agreed that, at the committal proceeding, he had been asked whether the applicant had indicated to him how the injuries to the deceased were sustained, and that he had answered, "No, he didn't." He said that the reason that he responded in this fashion was that he thought that he had been asked whether the applicant told him why he had injured him.

74. It was put to him that he had provided his version in order to protect Coulson, who, he was aware, was responsible for the death of the deceased and of whom he was fearful. Murphy rejected both limbs of this suggestion. He asserted that he had never formed any close association with Coulson, of whom he did not think very highly, and had no reason to assist. Coulson, he claimed, had talked of violence in his presence, and had uttered threats, including threats to kill, against other persons. However, he denied that he was afraid of him.

77. He agreed that he had appeared at the Werribee Magistrates' Court in December 1999, charged with theft from a shop, and admitted that he was involved in a separate burglary and theft on 3 April 1997, relating to the stealing of cigarettes from a newsagency. He said that, nevertheless, he regarded himself as an honest person following the birth of his daughter at which time he commenced full-time employment and developed some stability in his life.

80. John Wilkinson gave evidence that he was acquainted with the applicant and had visited his flat on about half a dozen occasions. On a day in May 2001, he went there at about 4 or 5 p.m. and sold a number of stolen car parts to the applicant for $200. There were two people in the flat when he arrived; the applicant and the deceased, the latter being described by Wilkinson as "a bit drunk and stoned". They were drinking UDL alcoholic drinks and smoking marijuana. Wilkinson left after approximately 30 to 40 minutes.

83. On prior occasions on which he had been to the flat, Wilkinson had seen a bucket that contained a number of tools, including a mash hammer. This was described as a small sledge hammer with a fibreglass handle, rubber grip and a head 3 or 4 inches long by 2 inches square. He agreed that, in his statement to the police, he had said that he had seen the mash hammer at the flat about a week before the deceased was killed, and that, at the committal hearing, that he had seen it on the day that he delivered the car parts. He asserted that both answers were correct.

86. Robert Alan Coulson stated that he knew both the applicant and the deceased. He also was a regular visitor at the applicant's flat in Ascot Vale to buy and smoke marijuana. He was present there just after midday on Friday 4 May 2001. There was another person named John [Wilkinson] and a man named Adam or Adrian [Murphy] who lived above the applicant in the flat at the time. Coulson said that he stayed for a couple of hours, smoked some marijuana and had something to eat. He left after John, at a time variously stated to be, "early", "after dark", and "before midnight". He stated that he could not recall saying at the committal hearing that he left between 9 p.m. and midnight.[4]

89. He said that he next called in at the flat on the following morning, but found that the applicant was not at home. He returned at 10 or 12 o'clock, met up with the applicant with whom he then went to a service station. The applicant asked him "Do you want to help me to do something for two grand?" Coulson stated that he responded "Not for blood" indicating that, if the request had something to do with killing or bashing someone, he would not become involved. The applicant told him that he wanted assistance with a body, and he agreed to help. He said that he did so because he was afraid that if he refused he would attract the ire of the applicant.

92. They then returned to the flat. Coulson saw, in a wardrobe in the applicant's bedroom, the outline of a body covered in plastic. The body appeared stiff and smelt like rotting meat, he said. He could not remember what happened after that except that the applicant and he went to the applicant's grandmother's house to get a shovel. He was told that they needed one to dig a hole.

95. They then disposed of what Coulson described as a "mini sledgehammer" by throwing it into the Maribyrnong River, near a bridge in Maribyrnong Road. He said that this object had a square head, a yellow handle and was about 30 to 40 centimetres in length. Later, Coulson went with the applicant to the flat of the man that he knew as Adam or Adrian. They had some marijuana and slept until 3 or 4 a.m. when they returned again to the applicant's flat. After tying up the body with rope, they put on some dishwashing gloves and placed it in the boot of the applicant's motor car. They went back into the flat and waited until morning.

98. At between 7 and 9 a.m., the applicant and he left in the applicant's car. After some discussion, they drove along the Hume Highway, stopping on a few occasions to make some minor purchases, and to fix the brakes on the vehicle. Finally, they turned off into a side street and then down a dirt road next to some railway tracks. They stopped and tried to dig a hole in which to place the deceased, but found that the soil was very hard and made slow progress. After a while, they paused and went for a drive as the applicant was thirsty. They stopped at a farming property which they entered to obtain a drink for him. They there saw a metal star picket leaning against a fence. The applicant told Coulson to take it.

101. They returned to the chosen grave site and continued to dig, using the star picket. When the hole was of sufficient size, they placed the body of the deceased in it. They then covered the body with dirt, moss and branches.

104. A couple of days after burying the deceased, Coulson went with the applicant to a car detailing business in North Melbourne. The applicant enquired as to the best way of removing blood and purchased a cleaning agent which he subsequently used, with other detergents, to clean his flat. About one or two weeks later, Coulson contacted the police. In the period between burying the body of Mr Wilks and his report to the police, he spent most of his time with the applicant, sleeping at the applicant's flat and in his own house.

107. In cross-examination, Coulson accepted that he had been violent in the past, but claimed that, after he sustained a gunshot in February 1995, he had changed his ways. The major turning point in his life came, however, a little later, he said, as he recovered from a mental breakdown. He was cross-examined at length in relation to his psychiatric history and hospital records. There is no need to set out the detail of that history as admitted by him. It is sufficient to state that it became apparent that he had suffered from a serious mental illness from his early teenage years, that he had, on various occasions, made threats of violence against others, and that he had been hospitalized as a consequence of his mental state only a short time prior to the death of the deceased. He was again admitted to hospital between 3 and 10 August 2001. He said he could not recall reporting to staff on that occasion that he was preoccupied with the belief that he had murdered someone.[5]

110. He stated that when he made his report to the police, on 13 May 2001, he refused to be interviewed by them as he feared that he might be charged. He said that he was given a formal caution in relation to his possible role as an accessory to murder at that time, but had since been informed that no proceedings would be instituted against him. He did not report the matter earlier than he did by reason of a desire to do so without being detected by the applicant who he feared.

113. He agreed that, in the period prior to the death of the deceased, the applicant and he had been good friends and associates. He (Coulson) at the time that he had been last released from a mental hospital before these events [17 April 2001] had few possessions. The applicant assisted him by buying some clothing for him and, on one occasion, lent him some shoes to wear. He agreed that, in the 17-day period between his release and the death of the deceased, he thought that he needed treatment. He was drinking, taking speed[6] and using marijuana, as well as taking the medication that had been prescribed for him by the doctors.

116. Coulson admitted the commission of a number of criminal offences, which included the making of threats to kill. He denied the allegation put to him that it was he and not the applicant who had murdered Wilks.

119. In addition to the evidence of these witnesses, there was a deal of forensic and other evidence of a non-controversial character to which I need not refer in detail in the present context, but which indicated that the deceased had sustained injuries in the applicant's flat, that he had been transported in the boot of the applicant's motor car, that both the car and the applicant were present at the grave site and that the deceased had been struck with a shock absorber found in a street some distance from the applicant's flat.[7]

122. The applicant had declined to answer questions when interviewed by the police. He gave no evidence at the trial and called no witnesses.

126. Recognizing that there is some over-simplification in the following summaries of their respective stances before the jury, the positions adopted by the prosecution and the defence in the trial were relatively straightforward.

129. The prosecution argued that there was unchallenged forensic evidence supporting the assertion that the deceased received injuries in the applicant's flat. It was also apparent from the evidence of the pathologist, who conducted the post mortem examination, as to the nature and number of those injuries, that the deceased had been savagely assaulted with murderous intent. There was no dispute that the deceased had been murdered and only the identity of the perpetrator was in issue in the trial. The defence had accepted that the victim's body had been transported by the applicant in his car to the grave site. There was, it was submitted, evidence given by Murphy, as to his observations and the making of admissions by the applicant to him, that he had struck the deceased with a shock absorber and that he intended to "finish him off" with a mash hammer. The injuries sustained were consistent with this version. Coulson gave evidence, supported by that of the forensic investigators, that he assisted the applicant in the disposal of the deceased's body. The case against the applicant, it was submitted, was overwhelming. He attempted to counter what was an overwhelming case against him by attempting to take advantage of the unfortunate history of Coulson and to create a doubt by making a bold assertion that Coulson, and not he, was responsible.

132. On the other hand, the defence not only challenged the prosecution case by advancing the possibility that Coulson had murdered the deceased in the applicant's flat, and then enlisted the help of the applicant to transport and bury his body, but contended that the jury should be positively satisfied that this is what happened. The applicant, it was submitted, had returned to his flat, to find Coulson there and the body of the deceased on the floor. Fearing Coulson, he provided assistance to dispose of it. The versions provided by Coulson and Murphy, it was submitted, should be rejected by the jury as inherently unreliable: in the case of Coulson primarily because he had a powerful motive to lie arising from his own guilt, and in that of Murphy because of his fear of being implicated and of Coulson. In the circumstances, it was argued, the jury could not be satisfied beyond reasonable doubt that the applicant was guilty.

137. Before addressing this ground, some reference is required to the circumstances under which the trial judge discharged one of the members of the jury and then determined that the trial could continue with the eleven remaining.

140. The jury of twelve persons was empanelled on 29 July 2002 and the trial proceeded without incident until 6 August 2002. On that day, a juror, C, suddenly left the jury box and went to the jury room for no apparent reason. Subsequently, after a brief conversation with his Honour's tipstaff, the juror handed him some notes for forwarding to the judge. In the light of this surprising conduct and the contents of the notes, his Honour indicated to counsel that he considered that he should hear evidence from the juror for the purpose of ascertaining whether he should be discharged pursuant to the provisions of the Juries Act 2000. The prosecution submitted that it was not necessary for a trial judge to hear evidence in such circumstances and that it was open to him to deal with the matter on the basis of his own observations and knowledge, but counsel for the applicant argued that this course should be adopted. The juror was then called into court in the absence of the remainder of the panel, and gave evidence, indicating his various concerns.[8] After further discussion with counsel, his Honour ruled that the juror should be discharged on the basis of s.43(d) of the Juries Act. This decision, and that of his Honour not to make available to counsel the notes made by the juror and handed to him, were the subjects of the abandoned ground 1 and proposed ground 6 of the application. It is not now contended that his Honour fell into error in either respect.

143. That leaves for consideration the complaint that, having discharged a member of the jury during the trial, the whole of the jury should have been sent away and a re-trial conducted. In support of this contention, six propositions have been advanced:

1. There was an unacceptable risk that the juror had been regarded as acting irrationally by other jurors. There were indications that he had been conveying his views of what he perceived as weaknesses in the Crown case. This may have contaminated the approach of the other jurors in that those views would be associated with the thoughts of an irrational person.

2. The judge took into account "the fact that views may be expressed by persons who no longer remain on the jury at the time of that jury's final deliberations is well and truly countenanced by these courts". It was accepted that that statement was correct, but inappropriate in

circumstances where the assessment by other jurors of the defence might have been infected by perceived irrationality.

149. What, if any, views that may have been held by the juror were conveyed to the other members and what impression, if any, that they may have formed of them can only be the subjects of conjecture. However, it can, I think, be accepted that the circumstances under which the juror was discharged and the reason for his removal would have been apparent to the other jurors. Against that background, the notion that the remaining 11, presumably rational, members would disregard the instructions given to them and, contrary to their oaths or affirmations, irrationally reject propositions advanced in support of the defence case because their deliberations were contaminated by the irrational utterances of the removed juror needs only to be stated to be rejected.

3. The judge appeared to have paid no regard to the fact that it is preferable to have a jury of 12 persons and that, unlike trials for almost all offences other than murder, majority verdicts are not permitted.

153. There is nothing to support the claim that his Honour (one of the most experienced trial judges in this State) was not conscious that, by enacting that the jury in a criminal trial would be constituted by 12 persons save in the circumstances addressed by the Juries Act itself, the legislature indicated a preference for 12 jurors in such trials. Nor is there any reality in the suggestion, unsupported by any remark or other indication made by him to the contrary, that he paid no regard to a preference long and deeply embedded in our criminal justice system and with which he was well acquainted.

4. His Honour gave too much weight to expense, inconvenience and possible trauma to witnesses in the circumstances.

157. It was clearly appropriate for the trial judge to have regard to the expense, inconvenience and possible trauma to witnesses that could be occasioned by the discharge of the jury and the conduct of a new trial at some later time. A criminal trial subjects all of those involved in it to some level of stress and inconvenience; often of a severe degree. There are many reasons why a trial, once commenced, should not be abandoned lightly. Those reasons include the desirability of the earliest possible resolution of the very serious issues that lie at the heart of most such proceedings. In the present matter, evidence had been heard and the trial was reaching its latter stages. His Honour directed his mind to the existence of any potential for a miscarriage of justice and decided that it was proper that the proceeding should continue. There is nothing in either his comments or the circumstances that could reasonably give rise to concern that he fell into error in arriving at this conclusion by placing undue emphasis upon the clearly significant considerations of expense, inconvenience and possible trauma to witnesses.

5. His Honour, at no stage, specifically directed that the trial continue with the remaining jurors in accordance with s.44(1) of the Juries Act 2000.

161. True it was that the judge did not make the specific statement that the trial would continue with the remaining jurors in accordance with s.44(1) of the Juries Act, but it would seem indisputable that that was the effect and intention of the course adopted. After discharging the juror, his Honour heard further argument as to what should then occur. By so doing, he demonstrated that he did not assume that the trial would proceed and then addressed what he correctly perceived to be a separate question - whether in the circumstances the interests of justice required that the remaining jurors should be discharged.

6. His Honour erred by employing the test used in applications for the discharge of the whole of the jury pursuant to s.43[9]

tria[l]tria[l]civil tria[l]criminal tria[l]

of the Juries Act when considering whether the trial should continue in circumstances encompassed by s.44[10]

169. The test under s.43 for the discharge of the whole jury was expressed by the trial judge in his ruling on this matter in terms of the presence of a "high degree of necessity", but as the Court of Criminal Appeal stated in Boland:

"The power of a trial judge to discharge a jury when some incident occurs during a trial which may adversely affect its fairness depends for its exercise upon the principle stated in Winsor v. R.. The principle is really one of necessity. There must be evidence `a high degree of need for such discharge', that high degree being `such as in the wider sense of the word might be denoted by necessity'." (Footnotes omitted.)[11] (My emphasis.)

Although, as is apparent from this extract, his Honour should have spoken of a high degree "of need" and not "of necessity", as a practical proposition no consequences flow from his description of the issue to be determined by him.

174. Whilst, as counsel for the applicant submitted, the test set out in Boland was regarded as applicable to the differently worded s.44 of the Juries Act 1967[12], there is no good reason for holding that a different approach is required under the substituted provisions of ss.43 and 44 of the Juries Act 2000. This view appears to have been accepted by the Court in a number of cases subject to the later Act and, as far as I am aware, the test as formulated in Boland has been regularly applied in trials conducted in both the Supreme and County Courts to the present time.

177. I should add that, in my opinion, there is no tension between the views expressed above with respect to the six propositions advanced on behalf of the applicant and those stated by the majority of the High Court in Wu v. R. Gleeson, C.J. and Hayne, J. there said:

"It may be accepted that a criminal trial by jury in New South Wales must begin before a jury of twelve. At common law if a juror died or was taken ill a fresh jury had to be sworn, although it seems that sometimes the eleven remaining jurors were re-empanelled and a fresh juror sworn in the place of the disabled juror. But the whole purpose of s.22 is to provide that a trial can proceed before a jury despite the discharge of one or more of its members. That is, there can be a fair and lawful trial of an accused despite the discharge of a juror in the course of the proceedings."[13]

"no-one should think that, once a juror dies or is discharged, the trial should automatically continue with the remaining jurors. Conviction by a jury of less than twelve is a denial of a long-standing right of those tried for serious crime under the common law system. Given the mandatory terms of s.19[14] of the Jury Act, some positive reason, beyond the death or discharge of a juror, must exist for the judge to make the order that the trial continue with less than twelve jurors.

...

Furthermore, although two stages are involved in the making of a s.22 order, the first stage cannot always be separated from the second stage. Before the judge discharges a juror for illness or `any other reason', the judge will usually need to consider whether exercising the power of discharge has implications for the continuation of the trial with the remaining jurors."[15]

183. As earlier mentioned, the trial judge in the present case recognized that there were two stages involved and addressed separately the questions of the discharge of the juror and the discharge of the jury. In relation to the latter, he specifically directed attention to the necessity to ensure that a fair trial could be conducted and the factors which militated in favour of continuing or aborting the trial in the particular circumstances.

190. In the course of the hearing before us, counsel for the applicant indicated that proposed ground 8 would not be separately argued and should be considered in the context of the claimed deficiencies encompassed by ground 4.

193. I will nevertheless address proposed ground 8 directly. There can be no doubt that it would have been apparent to all involved in the trial, even had the trial judge not specifically so indicated, that the practical consequence of the acceptance of Murphy as a reliable witness was the conviction of the applicant for murder. Indeed, this had been accepted by counsel in the course of discussion. There is, accordingly, no substance in the complaint[16] that, in the particular circumstances, the statement by his Honour in his Charge that:

"if you accept [Mr Murphy's] evidence beyond reasonable doubt, then Peter Sharp is guilty of murder"

effectively usurped the jury's function in the trial. The deceased had been savagely beaten with a heavy implement. The inference that he had been murdered was both overwhelming and non controversial in the proceeding. The only matter in serious dispute was the identity of the perpetrator. If accepted, Murphy's evidence supplied the answer to that question.

198. When considering the potential impact of his Honour's statement upon the deliberations of the jury, the context in which it was made must be taken into account. At that time his Honour was directing the jury as to the considerations to which they should have regard in determining the reliability of the evidence of witnesses generally, and those whose evidence could be regarded as particularly important in the case. He made specific reference against that background to the significance of the evidence of Coulson and Murphy.

201. After dealing with the differing claims and perspectives presented by the prosecution and defence concerning Coulson and instructing them that his evidence had to be scrutinized with "special care" before reliance was placed upon it, his Honour turned to that given by Murphy, which he appropriately referred to as "critical". He drew the attention of the jury to the significance of the acceptance of that evidence, reminding them of the various criticisms that had been made of it, and of course of Murphy himself as a reliable witness, and the fashion in which the prosecution responded to those criticisms.

204. Not only did his Honour's statement emphasize the practical consequence of the acceptance of Murphy's evidence, but served and was clearly intended to ensure that the jury did not act on it without proper regard to its possible deficiencies.

207. There is simply no substance to the complaint in proposed ground 8 whether approached as a ground of appeal or otherwise.

210. I now turn to the complaints encompassed by ground 4. On the assumption that the jury complied with the instructions given to them by the trial judge, they would, of necessity, before returning a verdict of guilty, have had to be satisfied beyond reasonable doubt as to the reliability of the evidence of Murphy. There would seem to be no room for doubt that this was accepted by all concerned and the trial was clearly conducted on that foundation. Murphy had, on his own version, assisted the applicant and his evidence was challenged essentially, as I have indicated, on two bases both directed to the truth of his evidence. The claim was made that his involvement in the situation was such that he had two powerful motives to lie, namely a concern that he would be charged if he did not co-operate with the police, and a fear of Coulson. There was, in the evidence, some support for the contention that he was concerned about his own position with respect to the police, but precious little for the claim that he was so apprehensive of violence from Coulson that he would falsely incriminate the applicant. In any event, this possibility was clearly put before the jury and can be assumed to have been taken into account by them. His role as an accomplice was also evident, and the contention that he had provided a false version to ingratiate himself with the police and thereby avoid prosecution was squarely put and easily understood.

213. There is no reason whatever to suspect that the jury would not have considered these possibilities or that, in consequence of the absence of a specific accomplice warning, they may not have subjected the evidence of this critically important witness to the most careful scrutiny. However, this was not a situation in which the provision of an accomplice warning was required. It was never suggested that Murphy was other than an accessory after the fact[17] (to employ the old but still useful term) and, generally, such warnings are not required to be given with respect to the evidence of persons falling within that category.[18]

216. Counsel for the applicant contended, however, that the situation in the present case should be viewed differently, as the rationale underlying the approach generally adopted was not applicable. In other words, he argued that the courts had distinguished between cases in which an accomplice could be seen as possibly having a motive to attribute responsibility falsely to an accused (this would more often be the case in relation to accessories to whom responsibility might be attributed for the principal offence or who may have been concerned to mitigate their own level of culpability) and those whose motivation would ordinarily be to assist the alleged offender (as in the case of those who subsequently assist the offender).

219. Here, it was submitted, Murphy had a motive to implicate falsely the applicant. This contention rested entirely upon the assertions that Coulson was guilty of the murder and that Murphy was afraid of him. The position of Murphy as an accomplice by reason of his disposal of the shock absorber, of course, would not vary according to the identity of the perpetrator. His possible fear of Coulson was a matter to which the jury would be expected to have regard to in their consideration of the reliability of his evidence. However, of itself, the possibility that he might be afraid of the applicant would not, in my opinion, remove the rationale underlying the ordinary approach so as to require the provision of an accomplice warning. Nor would it give rise to the need for the trial judge to give a warning on any of the other proliferating bases addressed in the authorities and to which a plethora of names have been attached. Essentially, the situations so addressed represent, at least for the most part, little more than the recognition of potential sources of unreliability that, it is felt, may not be identified by the members of a jury or, if identified, the full significance of which may not be apparent to them. Attributing to the jury in the present case a modicum of common sense, and bearing in mind that all of the arguments and considerations upon which reliance has been placed before us were put before them, the provision of any further instruction or warning with respect to the evidence of Murphy could not be seen to have been required.

222. The trial judge did give the jury a warning concerning the evidence of Coulson in view of the witness's history[19] of mental illness. Nothing more was necessary. On his own version, he too had assisted the principal offender after the event and, accordingly, was in a similar position to Murphy in that respect. It is reasonable to assume that the jury would have considered the evidence of Coulson in the light of the defence contention that he was the actual perpetrator and was lying to protect himself. The entire defence case was centred on the presentation of Coulson not simply as seriously mentally disturbed who should therefore be regarded as an unreliable historian, but as the actual killer of the deceased. Again, attributing to them a modicum of sense, whether or not there was any reasonable possibility that this may have been the case would have been to the forefront of the minds of the members of the jury from a very early stage in the trial. The possibility that he had lied to conceal his own guilt or that his evidence could be regarded as unreliable by reason of his mental instability and drug use are hardly matters that would have escaped the attention of the jurors in the circumstances, or needed to be emphasized further by the provision of any warning additional to that given by the trial judge.

226. As earlier mentioned, the trial judge did provide a warning to the jury concerning the evidence of Coulson. It was put in the following way:

"Now, it is clear that for a number of years Robert Coulson has been suffering from a mental illness. It has resulted in his admission to a number of mental institutions. As recently as 17 days before 4 May 2001 he was discharged from one such institution and thereafter continued to receive medication. Indeed, in the period subsequent to these events Mr Coulson had further contact with mental health authorities. Further, during the period up to and including the events the subject of this trial, Mr Coulson was using daily amounts of marijuana, a drug which, on his own admission, was regarded as being deleterious to his state of mental health. On his own evidence, the long periods of treatment for his affliction had adversely affected his memorandum. All these matters may well affect Mr Coulson's capacity to give reliable evidence and, in these circumstances, I instruct you that you should scrutinise his evidence with special care before relying upon it. Indeed, you should look for other independent evidence supportive of his account. The Crown submit that there are a number of independent pieces of evidence supportive of Mr Coulson's account. These included the evidence of the accused's shoe print, cigarette butts and car tyre tracks being found at the grave site; the confirmation of the mountain bike at the Cambrey farm and the taking of the star picket from there; the finding of the shovel and star picket at the home of the grandmother of the accused; the wrapping of the body in garbage bags as described by this witness. Additionally, submitted by the Crown, there was the supporting evidence to be found in the blood cleaning endeavours at the accused's flat; the evidence of Murphy and Wilkinson as to the existence of a mash hammer; and the presence of the accused's blood spattered jeans in his flat. The defence argued that virtually all of these matters related to the disposal of the deceased's body and not to the circumstances surrounding the murder of Stephen Wilks. The defence emphasised those matters relating to Mr Coulson's mental state, to which I have referred, including the self-medication with marijuana at the relevant period. Additionally, the defence pointed to what it submitted were lies told by the witness as to his inability to get away from Peter Sharp and go to the police between 6 and 13 May and as to the time he left the accused's premises on the fatal evening. As for his evidence as to the disposal of the mash hammer, the defence emphasised that it had never been found."[20]

230. Counsel for the applicant has submitted that his Honour fell into error in not then proceeding to define what was meant by the expression:

"independent evidence supportive of his account".

234. This argument was based upon the following passages in the judgment of Callaway, J.A. in McLachlan:

"The most important point for present purposes is that corroborative evidence must connect or tend to connect the accused with the crime charged in the sense explained in the passages cited by Phillips CJ in R v Pisano [1997] 2 VR 342 at 347.

...

Corroboration, in this context, is evidence from a source independent of the accomplice which implicates the accused in the crime charged by tending to show both that the crime was committed and that the accused committed it. It will not do so if it is not credible and it is by implicating the accused that it renders the evidence to be corroborated more probable: see Doney v R [1990] HCA 51; (1990) 171 CLR 207 at 211. It need not confirm the details of the accomplice's testimony: see R v Rayner [1998] 4 VR 818 at 851-852 per Brooking JA. The jury must understand what corroboration is in order to decide whether, in their opinion, a particular piece of evidence satisfies the test. That is so even in cases where the judge directs them as to the only items of evidence that could afford corroboration. It is even more important where, as in the present case, the jury are told to look for that kind of evidence and are given examples. As corroboration is only a sub-set of evidence that tends to confirm or support the evidence of the accomplice, the definition his Honour gave was much too wide."[21]

238. However, as his Honour makes clear in those passages, he was directing his attention to the instructions to be given by a trial judge in relation to the evidence of a witness who may be characterized by the jury as an accomplice[22] and not to the notion of support for evidence which may be regarded as potentially unreliable on some other basis.

241. Here the provision of a warning was deemed necessary by the trial judge by reason of the witness's history of drug-taking and mental instability and it was the possible impact of those influences upon his ability to provide reliable evidence to which regard was required.

244. What his Honour did was list the various pieces of evidence upon which the Crown relied to provide that support and the defence response to them. It was implicit in those instructions that the jury were entitled to have regard to the various pieces of evidence, if accepted, as falling within the category of independent evidence capable of supporting his account. There was no suggestion that there may have been any other such evidence or statement made by him which may have possibly conveyed to the jury the impression that they were entitled to look more broadly for supportive evidence.

247. There was evidence, specifically that given by the forensic investigators, capable of confirming parts of his version. There is, of course, no requirement that the entirety of a witness's evidence be so supported and rarely would such confirmation be available. Fundamental to the notion of support, setting to one side witnesses who come within the traditional scope of the accomplice rule, is the presence of independent evidence that would justify the acceptance of the evidence from a potentially unreliable source; in other words, evidence that can be seen to enhance the unreliability and accuracy of the witness's account. The pieces of evidence listed by the trial judge as being capable of supporting the evidence of Coulson, viewed in this way, were appropriately put before the jury. The potential sources of unreliability were not only obvious but also dealt with in his Honour's charge.

250. With respect to the witness Murphy, there was no warning given or required. I have earlier addressed this aspect. The arguments advanced by the parties concerning his reliability were pointed out by the judge in his charge. There was neither any obligation in law nor a practical need for him to do more.

254. In the course of directing the jury, the trial judge stated:

"In dealing with the evidence given by a witness, it is important to remember that it is the answer given by the witness that constitutes the evidence, not the question put by counsel, except to the extent to which the witness agrees with the question. Questions, particularly in cross-examination, may be asked and allegations of fact may be put to a witness in an extremely positive, confident and convincing manner. That is a skill that barristers possess. But no matter how positively or confidently the proposition is put, it is the answer given by the witness that provides the evidence in the case.

...

You will bear that proposition in mind in this case where allegations were put to several witnesses and were denied by them, a prime example being the allegation put to Mr Coulson that he murdered Stephen Wilks; a proposition that he denied. As a matter of law, I instruct you that there is no evidence before you that Robert Coulson murdered Stephen Wilks. Neither the allegations of counsel in cross-examination nor the assertions in a final address constitute evidence. Furthermore, it is important to remember that Robert Coulson is not on trial here. The ultimate question for you is whether Peter Sharp murdered Stephen Wilks, a matter you determine on the evidence before this court. If you are satisfied beyond reasonable doubt that he did so, then your duty is to convict. If the Crown fail to satisfy beyond reasonable doubt that he did so, then it is equally your duty to acquit the accused. However, in making that determination, you will take into account the criticisms made by the defence both as to the quality of the evidence presented by the Crown, particularly the evidence of the witnesses Murphy and Coulson, and the defence criticism of the absence of evidence, particularly forensic evidence, which it was submitted should have been placed before you."

258. These instructions followed an address by counsel for the applicant in which he asserted more than once and, judging from the generosity of the language employed, with vigour that

"you should be satisfied - actually have no doubt - that Coulson did the murder."

262. In his concluding remarks in his address, he submitted:

"Robert Coulson, ladies and gentlemen, he murdered Stephen Wilks in a brutal fashion. He probably would have a defence to it by reason of a mental impairment, because that is an open defence under the law, not guilty by reason of mental impairment. And if he was having a psychotic episode at the time because he either needed more treatment or the illicit drugs he had consumed, it seems, in vast quantities had got the better of him, and he acted on that urge that he professes he had at the time, then he would not be to blame, as tragic as it is saying that, because really a person is only responsible for their actions if they intend to do it. And if a person doesn't have the capacity to form that intention to kill someone, then a fair and reasonable person on the courts of law would say, well, you shouldn't be held responsible. There might be other avenues in terms of the ultimate disposition as to what would happen to that person. But as a general principle, he could be found not guilty by reason of what were the old insanity laws, not guilty by reason of mental impairment. My final submission to you is this: a tragic verdict would be one of guilty and, in my submission, is not open on the basis that the Crown, the State, has failed to reach that burden of proof beyond reasonable doubt. And the real tragedy that this case highlights would be the deficient funding of the psychiatric health system that enabled one Robert Coulson with murderous intent, to adopt a phrase of my learned friend's, to be wandering the streets. And it has led tragically and unfortunately to, it seems on the evidence, the slaying in a totally unprovoked way, or manner, of an innocent victim, Stephen Wilks, who at the time seeming was hurting no one."

266. The possibility that his Honour may have fallen into error in his assessment of the state of the evidence regarding Coulson has been the subject of a deal of attention in the appeal. Counsel for the applicant and the respondent have presented both oral and written submissions on the question. There is no need to deal with any of the specific matters raised in this process as they take the position no further, nor do any of them suggest any greater significance should have been attributed to particular items of evidence whether considered separately or in combination, or present any different perspective to the situation with which the trial judge was confronted.

269. It is sufficient to state that it is apparent upon perusal of the transcript that there was no support in the evidence for these extravagant claims and that his Honour's statement that there was no evidence that Coulson was responsible for the death of the deceased was accurate.

272. However, the contention has been advanced that, as a consequence of the manner in which his Honour expressed himself in the passage set out above, the jury may well have concluded that he was instructing them to exclude Coulson from their deliberations as a possible perpetrator. It is, as counsel for the applicant in this Court contended, one thing to say that there is no evidence capable of supporting a finding that an individual murdered the deceased, and quite another to state that no foundation exists for a reasonable hypothesis that he may have been responsible. Such an hypothesis may be available as a matter of human experience and be based upon the limitations or unsatisfactory character of the Crown case itself. Of course, where a jury is presented with a mere assertion or a speculation that appears to have emanated from deep within some marginal reaction in which common sense, human experience and reason hold no sway, the hypothesis will fall of its own inanition.

275. A comparison was drawn between the instructions given by the trial judge in the present case and those which were the subject of consideration by the High Court in Barca v. R.[23] However, only at a superficial level do they appear similar. It is worthwhile, I think, to set out two of the passages of the remarks of the trial judge in Barca to which the Court referred:

"There is not any evidence in this case that the accused ever took the deceased to his father's home: no evidence at all. Nor has the accused in his case, in his interviews with the police or at any time or anywhere ever suggested that this is so; so that any argument that has this as a basis must be rejected by you. Do you understand that? There is not a tittle of evidence in this case that this accused person ever took the deceased to his father's home. There is no evidence in this case, not a tittle of evidence, that the father or any of the brothers were in any way involved in the killing of this man, nor has the accused ever suggested that this is so: so that any invitation extended to you acquit this man because this murder may have been done by his father is completely without foundation in evidence and would be a completely wrong thing for you to do.

...

You will remember what I told you yesterday, that there is no evidence before you that this man was ever taken by him on that day to his father's house; still less is there any evidence that his father, or anybody else, fired these shots; and these are arguments that were put by counsel, theories, and if they have no sub-stratum of evidentiary fact, then, gentlemen, you pay no attention to them. Nothing that counsel says in a case is evidence. It can never take the place of evidence. Your oath is to `well and truly try and true deliverance make according to the evidence'; and that is all you are concerned with, and it is for you to decide the guilt or innocence of this man on the evidence given in this court and you are not to take into account any theories or arguments of counsel unless they have an evidentiary basis; unless they are based on evidence that you accept, or a reasonable inference from that evidence."[24] (My emphasis.)

"The remarks made by the learned trial judge when he intervened at the conclusion of the address by defence counsel could only have been understood as meaning that it would be wrong for the jury to accept that the evidence was consistent with the hypothesis that the murder had been committed by Carmello Barca. In other words, the jury were in effect directed to reject one of the main arguments put forward on behalf of the defence, and to decide one issue of fact in favour of the prosecution. This was a misdirection. It was for the jury to decide for themselves whether they were satisfied that the evidence as a whole was inconsistent with the hypothesis that Carmello Barca and not the applicant had murdered the deceased. Of course it was not proved that Carmello Barca had committed the murder. Moreover, the learned trial judge was perfectly correct in saying that there was no evidence that the applicant took the deceased to Carmello Barca's house or that Carmello Barca fired the shots that killed the deceased. However, although a jury cannot be asked to engage in groundless speculation it is not incumbent on the defence either to establish that some inference other than that of guilt should reasonably be drawn from the evidence or to prove particular facts that would tend to support such an inference. If the jury think that the evidence as a whole is susceptible of a reasonable explanation other than that the accused committed the crime charged the accused is entitled to be acquitted."[25]

281. When regard is had to the point at which the instruction in the present case was given and the clearly defined limits within which it was expressed, there can be no doubt that the trial judge intended to do no more than draw the attention of the jury to the need to distinguish between evidence and assertion. In view of the nature and the forceful presentation by defence counsel of totally unsupported allegations of murder made against Coulson, his Honour had, I consider, ample justification and an obligation to point out this distinction. He clearly did not intend his instruction to suggest that there was some obligation upon the defence to adduce evidence or provide some evidentiary foundation for the existence of a reasonable hypothesis consistent with innocence.

284. Divorced from its context, the instruction upon which ground 9 rests could be seen as possibly permitting some confusion in the minds of jurors as to whether the applicant may have been under some obligation to adduce evidence of an incriminating character against Coulson before they could have any regard to the possibility that he may have been responsible for the killing of the deceased and, therefore, in the absence of such evidence that hypothesis could be excluded. However, when that context is taken into account, I consider that the possibility of a misunderstanding of this kind can be discounted. His Honour provided instructions with respect to the onus and standard of proof in a criminal trial, expressed in a conventional form. His charge to the jury included a comprehensive summary of both the evidence in chief and cross-examination of the major witnesses in the trial and, in particular, those matters which bore upon the competing hypotheses presented by the parties. He drew the attention of the jury to the various criticisms made of the Crown case on behalf of the defence at different points in his Charge and summarized the arguments presented by counsel for the applicant in his address.

287. At its heart, the applicant's defence involved primarily a challenge to the evidence of Murphy and, to a lesser extent, that of Coulson who was ascribed the role of a mentally deranged murderer. His Honour summarized the defence position appropriately:

"The defence submitted that the location of the death scene in the accused's flat and the cleaning up of the blood by him would not be sufficient to fix him with Mr Wilks' murder. The defence submitted you should not accept the evidence of Murphy as to the admissions made by the accused of bashing the deceased or the evidence of Coulson as to his and the accused's respective roles in the disposal of the body. Both Murphy and Coulson, argued the defence, were unreliable witnesses. It was put that, whilst the accused's jeans and running shoes may have had the deceased's blood on them, it was possible that they had been worn by another person, Coulson. However, the police investigators had failed to adequately test the jeans for the DNA of other persons. Conversely, they had failed to conduct a detailed inspection of Coulson's clothes; and they had also failed to fingerprint the bathroom and the murder weapon. It was the defence submission that the state of the evidence was such that it was insufficient to prove the accused's guilt beyond reasonable doubt."

With respect to the defence concerning Coulson, his Honour stated:

"On the evidence, it was a motiveless murder. [Counsel] suggested that the deceased had been attacked from behind, there being no defensive injuries on his body. [Counsel] suggested this was an unprovoked and crazy attack by a crazy person. He suggested that Mr Coulson, as a person with a severe psychiatric illness, could have been responsible for it."

Rather than withdraw the possible guilt of Coulson from consideration by the jury, his Honour put that hypothesis before them, without comment in an appropriate way.

298. It follows from the above that this proposed ground must also fail.

301. There being no substance in any of the proposed grounds, I would refuse leave to add them.

304. For the reasons given above, I am of the view that grounds 3 and 4, also fail.

307. Accordingly, I would dismiss this application.

[1] Compare the passage from R. v. Kilbourne [1973] A.C. 729 at 758 referred to in Doney v. R. [1990] HCA 51; (1990) 171 C.L.R. 207 at 211. See also R. v. Taylor [2004] VSCA 98; (2004) 8 V.R. 213 at 228 [29].

[2] The sentencing judge, on 10 February 2003, imposed a sentence of 20 years' imprisonment for this offence, in respect of which he fixed a non-parole period of 15 years.

[3] Three other grounds (numbered 1, 2 and 5) were abandoned and the application to add one proposed ground (numbered 6) was not pursued and therefore need not be addressed.

[4] The relevant part of the transcript was tendered as a prior inconsistent statement.

[5] Although counsel for the applicant at the trial appeared to be referring to and reading from a document, it does not appear that any record of such a report was tendered as a prior inconsistent statement or that there was any evidence adduced to support this assertion.

[7] There were, however, some criticisms made of the extent of the forensic investigations conducted which do not bear on the issues raised in this application and have not been the subject of submissions.

[8] There is no need, in the present case, to address the broader issue of the proper approach to be adopted by a trial judge when confronted with a selection of this kind. Understandably, his Honour was concerned to investigate the matter and it appears to me that what he did was entirely appropriate in the circumstances.

[9] Section 43 reads: "(1) Subject to sub-sections (2) and (3), if a juror dies or is discharged during a [, the judge may direct that the shall continue with the remaining jurors.] (2) A [ cannot continue with less than 5 jurors. (3) A cannot continue with less than 10 jurors.]

(4) The verdict of the remaining jurors is a sufficient verdict."

[10] Section 44 reads: "A judge may, during a [, discharge a juror without discharging the whole ] jury if- (a) it appears to the judge that the juror is not impartial; or (b) the juror becomes incapable of continuing to act as a juror; or (c) the juror becomes ill; or (d) it appears to the judge that, for any other reason, the juror should not continue to act as a juror."

[11] R. v. Boland [1974] VicRp 100; [1974] V.R. 849 at 866 per Adam, Little and McInerney, JJ. See also Crofts v. R. [1996] HCA 22; (1996) 186 C.L.R. 427 per Dawson, J. at 432.

"In the event of the death or illness of any juror or of the death or dangerous illness of any near relative of a juror during any inquest or of the discharging of a juror during the inquest for any other reason that appears to the court to be good and sufficient, except for a felony for which the accused is liable to be sentenced to death, the court shall have power if it thinks fit to direct that the trial shall proceed with a number of jurors reduced in no case to less than ten where twelve or more jurors were originally impanelled or five where six jurors were originally impanelled and the verdict of such remaining jurors shall be a sufficient verdict."

With some differences which are inconsequential for present purposes, the provisions of s.44 are now expressed in similar language and to similar effect in ss.43 and 44 of the Juries Act 2000.

[13] [1999] HCA 52; (1999) 199 C.L.R. 99 at [21].

[14] Section 22 of the New South Wales Act to the Victorian Act is expressed in similar mandatory terms as the Victorian Act.

[15] [1999] HCA 52; (1999) 199 C.L.R. 99 at [21] and [30].

[17] An argument to the effect that, as the deceased was alive at the time he left the flat, he may arguably have been criminally liable as an accessory to the murder itself, was advanced in the Court of Appeal. This suggestion was never raised in the trial.

[18] R. v. Ready and Manning [1942] VicLawRp 20; [1942] V.L.R. 85; R. v. Carrenceja and Asikin (1989) 42 A.Crim.R. 402; R. v. Weiss [2004] VSCA 73 at [54].

[19] "If it appears that a witness whose evidence is important has some mental disability which may affect his or her capacity to give reliable evidence, common sense clearly dictates that the jury should be given a warning, appropriate to the circumstances of the case, of the possible danger of basing a conviction on the testimony of that witness unless it is confirmed by other evidence. The warning should be clear and, in a case in which a lay juror might not understand why the evidence of the witness was potentially unreliable, it should be explained to the jury why that is so. There is no particular formula that must be used; the words used must depend on the circumstances of the case."

Bromley v. R. [1986] HCA 49; (1986) 161 C.L.R. 315 per Gibbs, C.J. at 319_._

[21] R. v. McLachlan [1999] VSCA 127; [1999] 2 V.R. 553 at [30].

[22] See Jenkins v. R. [ 2004] HCA 57.

[23] [1975] HCA 42; (1975) 133 C.L.R. 82.