appellant. Leave to amend grounds granted; application otherwise to amend and adduce new evidence refused; application for leave to appeal granted; appeal allowed; convictions on counts 1 and 3 quashed;...
Key principles
Evidence from a police officer expressing the view that a poor-quality photographic reproduction is a likeness of the accused is inadmissible where no adequate foundation has...
Where the Crown case is circumstantial and individual strands are weak, an error of law in admitting one strand of evidence may render the conviction unsafe and unsatisfactory...
An appellate court may, in exceptional circumstances under s.568(2) of the Crimes Act, direct a judgment and verdict of acquittal without ordering a retrial; factors relevant...
Conduct alleged to be an attempt must be shown to go beyond mere preparation; if the evidence proves only preparatory acts, the conviction for attempt is unsafe and must be...
Issues before the court
Whether the opinion evidence of a police officer that a poor-quality photocopy of a driver's licence photograph was a likeness of the accused was...
Plain English Summary
The Court of Appeal allowed Michael Tadic's appeal. It held that a police officer's bare opinion that a poor photocopy of a driver's licence photograph was the applicant's likeness was inadmissible because there was no adequate foundation to show the officer had a special ability to identify the person. The circumstantial Crown case relied on that evidence and other weak strands, so the conviction for the NAB loan attempt (count 1) was unsafe. The Court also accepted that the evidence for the large Latrobe Home Loans application (count 3) proved only preparatory acts and not an attempt. Exercising its statutory discretion, the Court quashed the convictions on counts 1 and 3 and entered verdicts of acquittal.
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Deep Dive
1,648 words · generated 18/06/2026
What happened
Michael Tadic was tried in the County Court on five counts relating to attempts or actual obtaining of financial advantages by deception and one count of obtaining property by deception. The alleged offences arose from multiple mortgage and personal loan applications submitted in various names ('Michael Tadic', 'Michael Portelli', 'Michael Jabman') between April and June 1998. Each application was accompanied by supporting documents, including photocopies of identity documents; notably a photocopied Victorian driver's licence bearing a photograph appeared in relation to the NAB application in the name 'Michael Tadic' (count 1) (see [35], [44]).
Whether the Crown's circumstantial case was sufficient to support the conviction on count 1 (attempt to obtain $20,000 loan from NAB) given that the...
Whether the conduct relied upon for count 3 (attempt to obtain $330,000 from Latrobe Home Loans) constituted more than mere preparation and...
Whether, having found an error of law in admitting the identification opinion and concessions on count 3, the Court should order a retrial or...
Cited legislation
No linked legislation citations have been extracted yet.
After a 15-day trial the jury convicted Tadic on counts 1 and 3 (attempts to obtain personal loan facilities for $20,000 and $330,000 respectively) and acquitted him on counts 2, 4 and 5 ([10], [13]). On sentence, the term imposed was suspended. Tadic appealed to the Court of Appeal seeking leave to appeal against conviction.
On appeal, several matters were conceded by the Crown: the evidence for counts 5 and aspects of count 3 (that the conduct did not go beyond mere preparation) were conceded ([17], [29]). A central contested issue was the admissibility and probative value of evidence given by a detective, Acting Senior Sergeant Peck, who expressed the view that the photographic images on the driver's licence photocopies were 'of the accused' ([71], [75]). Callaway J.A. concluded that the officer's opinion was admitted without an adequate foundation and failed the common law test of relevance; that admission was a wrong decision of law under s.568(1) of the Crimes Act and had practical significance ([75], [76]). Given the weakness of the Crown's circumstantial case and other considerations (including that the sentence had been served and the operational period expired), the Court exercised its s.568(2) discretion and directed judgments and verdicts of acquittal on counts 1 and 3 ([78], [81], [87]). Ormiston J.A. reached the same outcome for somewhat different reasons, emphasising that the totality of the Crown's case on count 1 was insufficient given the poor-quality photocopy and the absence of the original licence ([5]).
Why the court decided this way
The decision rests on two interrelated pillars: evidentiary admissibility/foundation for identification evidence, and sufficiency of circumstantial proof in a case where key strands are weak.
Identification evidence and foundation: The Court applied the common law test of relevance to opinion evidence identifying a person from a photograph. Callaway J.A. treated Detective Peck's bare expression that the images were 'of the accused' as insufficiently probative because the witness did not testify to particular points of similarity or establish that he had a 'significant advantage' in making the identification. The witness had only limited observational opportunity and had been in possession of the photographic files prior to purported comparison; the photographs themselves were of poor quality and had degraded further since trial ([65], [71], [75]; fn 7). Put simply, the judge below erred in admitting that identification opinion.
Circumstantial case and safety of verdict: The prosecution's case was circumstantial. Callaway J.A. and Ormiston J.A. both emphasised that when individual strands in a circumstantial 'cable' of proof are weak, an error affecting one strand can be decisive. The licence photocopy and the officer's opinion formed an important strand in linking the applicant to the application in his name. With that evidence excluded or discredited, the Court held that the Crown had not established beyond reasonable doubt that Tadic authorised or participated in the loan application in his name (count 1) ([59], [76]; Ormiston J.A., [5]).
Attempt v mere preparation (count 3): The Crown conceded there was insufficient evidence to require more than preparatory acts in respect of the large Latrobe application; the Court accepted the concession and quashed the attempted-offence conviction ([17], [81]).
Discretion to acquit rather than order retrial: Although the ordinary course after finding such errors is to order a new trial, s.568(2) permits the Court, in exceptional circumstances, to enter a verdict of acquittal. Callaway J.A. exercised that discretion, relying on the totality of the circumstances, the insufficiency of the evidence, the Crown concessions, the sentence already served and the expiry of the operational period without breach, to conclude that acquittals were appropriate ([78], [81]).
Before and after state of the law
Before this decision the principles governing admissibility of identification/opinion evidence and the requirement for adequate foundation had long been part of common law evidence practice. Authorities were cited and discussed in the judgment (for example Smith v R was referred to, though the Court found it unnecessary to decide its effect in this case) ([75]; Ormiston J.A., [2]). The Court reiterated the established approach: a witness must have demonstrable advantage or special opportunity for comparison and must be able to point to specifics supporting the identification opinion.
The decision does not create a new rule, but it applies and reinforces the necessity for a proper foundation where identification from photographs is concerned, particularly where the photograph is of poor quality. It also demonstrates appellate readiness to quash convictions where such foundational errors materially affect a circumstantial case hinging on weak strands. Finally, the Court clarified the exercise of s.568(2) discretion, citing established authorities (Fowler, Kaighin, Bartlett) and exercising the power to acquit rather than direct a retrial in exceptional circumstances ([78]).
Key passages with plain-English translation
Callaway J.A.: "The evidence given by this witness was insufficiently probative to satisfy the common law test of relevance." ([75])
Plain English: The detective's bare opinion that the photos showed the accused did not help the jury because he did not explain why his view was reliable; the judge should not have allowed it.
Ormiston J.A.: "the totality of the Crown case on count 1 was insufficient to support the conviction." ([5])
Plain English: Looking at all the evidence together, there was not enough to prove beyond reasonable doubt that Tadic was responsible for the loan application in his name.
Callaway J.A.: "In my view they are of the accused." (Detective Peck's evidence, quoted at [75])
Plain English: This was the officer's simple statement identifying the photos as the accused, a conclusion the Court found unsubstantiated because no proper comparison or special knowledge was shown.
Callaway J.A.: "There should be a judgment and verdict of acquittal on both counts." ([81])
Plain English: The Court decided it was preferable to declare Tadic not guilty of those charges rather than order a retrial, given the weaknesses and practical factors in the case.
What fact patterns trigger this precedent
Cases in which identification of an accused depends significantly on a photocopy or degraded image, where the original document is not produced; especially where the image quality is poor ([65], [44]).
Circumstantial prosecutions that rely on multiple weak strands, where one strand is an identification opinion lacking proper foundation; the decision shows appellate courts will scrutinise whether that error made the overall verdict unsafe ([59], [75]).
Attempt charges where the prosecution’s evidence shows only preparatory steps; such convictions are at risk of being quashed ([17], [81]).
Appeals where, in addition to evidentiary insufficiency, practical considerations (sentence served, operational periods, Crown concessions) make a retrial unjustifiable and s.568(2) acquittal appropriate ([78], [81]).
How later courts have treated it
The judgment cites and follows established authorities regarding s.568(2) and the exercise of appellate discretion (Director of Public Prosecutions (Nauru) v Fowler; Kaighin; R v Bartlett) and sits comfortably within that line of authorities ([78], fn 11-13). The Court referred to Smith v R but did not decide how that High Court decision affected the law; it expressly avoided extending its reasoning into that area ([2], [75]). The treatment in this judgment signals to later courts that:
Appellate intervention is appropriate where an improperly admitted identification opinion materially affects a circumstantial case.
The Court will exercise s.568(2) discretion sparingly, but will do so where the totality of circumstances justifies finality by acquittal.
Because the Court did not purport to change identification law, but applied existing rules, later courts should take this case as an exemplar of strict application of foundation requirements for lay identification and careful use of s.568(2) acquittal powers.
Still-open questions
Smith v R: The Court expressly declined to decide the effect or application of Smith v R in the present circumstances ([2], [75]). For practitioners, the precise interface between this decision and Smith remains undecided on these facts; where Smith articulates different thresholds or tests for identification evidence that might apply to this fact pattern, that issue remains open for future resolution.
Degree of foundation required for police opinion evidence: The judgment emphasises the need for a 'significant advantage' or demonstrable opportunity for comparison, but there remains granular uncertainty as to the minimum content of foundation evidence required in cases involving degraded or photocopied images. How much observational detail or specific points of similarity a witness must give in different contexts will be developed in future cases.
Limits of s.568(2) discretionary acquittal: The Court exercised the discretion here in part because of particular practical considerations (sentence served, operational period expired, Crown concessions). Whether s.568(2) would be exercised where those practical considerations are absent remains a context-dependent question. The precise balance of factors that will lead to an acquittal rather than a retrial warrants further doctrinal development in subsequent appeals.
Conclusion
R v Tadic is a cautionary appellate decision emphasising rigorous foundation requirements for opinion identification evidence, particularly when the photograph is a poor-quality reproduction and the original is not produced. It also illustrates the readiness of the Court of Appeal to scrutinise circumstantial cases and, in exceptional circumstances, to exercise statutory discretion under s.568(2) to enter acquittals rather than remitting matters for retrial. Practitioners should ensure that photographic identification evidence is properly founded at trial and that attempt charges are supported by evidence of conduct beyond mere preparation.
Criminal law - Evidence - Police evidence that a photograph was a likeness of the applicant - Whether sufficiently relevant to be admissible - Whether judgment and verdict of acquittal should be entered - Crimes Act1958 s.568(1)(2).
[3]
In this application I have had the advantage of reading the judgment of Callaway, J.A. in draft form, which sets out succinctly the issues raised before this Court. I have reached the same conclusion, but for somewhat different reasons. Nevertheless I also find it unnecessary to say anything about the effect or application of Smith v. The Queen[1].
[4]
In order to dispose of this application I would prefer to conclude only that the totality of the Crown case on count 1 was insufficient to support the conviction. The issue of the photograph has been, arguably, overstated, for this photograph was not one of the applicant perpetrating the alleged crime. It was only a means to an end, namely, a means to obtaining a financial advantage by deception from the National Bank. It is difficult to believe that such poor reproductions of a driver licence could properly persuade a jury, especially as the original driver licence was not produced by those participating in the fraud. In the light of the concession that the applicant did not personally participate in any of the proved acts whereby the financial advantage was sought, the photograph could not in itself have served to identify the applicant as an offender other than by showing that in some way he had provided the licence to those who were shown in fact to have taken part in the fraud. In any event an inference had to be drawn that, by reason of his providing the licence, together with the other information about him which was used, he authorised or was party to an application in his name for a loan from the bank. To reach that conclusion his participation had to be shown to have been the only inference which could reasonably have been drawn. Having regard to the fact that the actual licence was not produced but only some poor reproduction of it (conceivably worse now than at the time of the alleged offence or at the time of trial), I do not believe the jury was entitled to draw that inference, nor were they entitled to infer on the whole of the material that the applicant was party to the alleged fraud. The verdict was therefore, in my opinion, unsafe and unsatisfactory. Consequently I would, for
[5]
somewhat different reasons, agree with the orders proposed by Callaway, J.A.
[6]
The applicant, who is now aged 54, was presented in the County Court on two counts of attempting to obtain a financial advantage by deception (counts 1 and 3), two counts of obtaining a financial advantage by deception (counts 2 and 4) and one count of obtaining property by deception (count 5). After a trial occupying 15 days, he was found guilty on counts 1 and 3 and acquitted on the other counts. Following a plea, he was sentenced to six months' imprisonment on count 1 and nine months' imprisonment on count 3, making a total effective sentence of nine months' imprisonment, which was wholly suspended for an operational period of two years. The applicant seeks leave to appeal against conviction only.
[7]
The grounds of appeal, as substituted by order of the Registrar made on 12th June 2002 read:
[8]
"1. The verdicts of guilty on counts 1 and 3 were, in the circumstances, inconsistent with the verdicts of not guilty on counts 2, 4 and 5. 2. The verdict of guilty on count 1 was unsafe and unsatisfactory having regard to the evidence led to prove that the applicant was the Michael Tadic who applied for the loan from National Bank Australia. 3. The learned trial judge erred in directing the jury about the use they may make of signatures found on exhibit `D' concerning count 1 and exhibit `AJ' - charge pp.582 1.7 to 583 1.2. 4. The verdict of guilty on count 3 was unsafe and unsatisfactory having regard to the evidence led to prove that the applicant was the Michael Jabman who applied for the loan from La Trobe Home Loans. 5. The verdict of guilty [on] count 3 was unsafe and unsatisfactory having regard to the evidence led to prove that there was an attempt to obtain a financial advantage form La Trobe Home Loans. 6. The learned trial judge erroneously summarized the evidence led by the Crown in relation to the element of attempt in count 3 - evidence at p. 173 1.9 to p176 1.16 pp.183 1.3 to 184 1.27 and charge at p.583 11.3 to 23."
[9]
Mr Elston, who appeared for the respondent at the hearing of the application, conceded grounds 5 and 6. The reason for conceding ground 5 was that there was insufficient evidence to establish that the alleged conduct of the applicant relevant to count 3 was more than merely preparatory to the commission of an offence.[2] The jury's error may be explained by the way in which the learned trial judge summarized the evidence relevant to that count (ground 6). I have no doubt that it is proper for us to accept those concessions.
[10]
Counsel for the respondent also conceded that, even if the application were otherwise unsuccessful, the sentence on count 1 should stand and the order for suspension remain. That is to say, the sentence of nine months' imprisonment imposed on count 3 would be set aside leaving the sentence of six months' imprisonment on count 1 wholly suspended for two years from the date on which sentence was passed below. That concession, too, should be accepted in the circumstances of this case, one of which is that the two year operational period has now expired without incident. It is unnecessary to say anything about the view that might be taken in a different case where there is no appeal against sentence but one of several convictions is quashed.[3]
[11]
Concessions were also made by Mr Stuart, who initially appeared for the applicant at the hearing of the application. He informed the Court that ground 2 would be argued only as part of ground 1 and, in response to a question from the Bench, agreed that there were only two issues remaining to be considered: first, whether the conviction on count 1 was inconsistent with the acquittals on counts 2, 4 and 5; and, secondly, whether ground 3 was made out. That is not to say that, in the latter case, the proviso to s.568(1) of the Crimes Act1958 might not have to be considered.
[12]
I said that Mr Stuart initially appeared for the applicant because, after lunch on the first day of the hearing on 25th June 2002, counsel announced that his instructions and those of his instructing solicitor had been withdrawn.[4] I interpolate that, in my opinion, Mr Stuart's argument had been diligently prepared and attractively presented. When the hearing resumed on 4th February 2003 the applicant appeared in person. I understood him to adopt what Mr Stuart had said in support of grounds 1 and 3 and counsel's written outline of submissions. Some of the applicant's submissions were, however, made under cover of ground 2 as an independent ground.
[13]
If the matter rested there, there would accordingly be three issues for the Court to consider: first, whether the verdict of guilty on count 1 was inconsistent with the acquittals on counts 2, 4 and 5;[5] secondly, whether ground 3 is made out and, if so, whether it warrants appellate intervention; and, thirdly, whether the applicant's submissions, which included an application for leave further to amend the grounds of appeal, should be accepted. A further issue was raised by Eames, J.A. One always does that with hesitation but, by that stage, the applicant was unrepresented. In the peculiar circumstances of this case, I think it is expedient in the interests of justice that that further issue be considered.
[14]
Before proceeding, I shall say something about the facts. For reasons that will become apparent, it is unnecessary to do so in the detail that would have been required had it been necessary for me to express a concluded view on grounds 1 and 3 or on the applicant's own submissions.
[15]
Count 1 charged that the applicant dishonestly attempted to obtain a financial advantage for himself in the form of the provision of a personal loan facility of $20,000 from National Australia Bank Ltd. ("NAB"). The attempt was said to have taken place between 28th April and 4th May 1998. Count 2 charged that, on or about 18th May 1998, the applicant succeeded in dishonestly obtaining a financial advantage for himself in the form of the provision of a personal loan facility of $20,000 from NAB. Count 3 charged that the applicant dishonestly attempted to obtain a financial advantage for himself in the form of the provision of a personal loan facility of $330,000 from Latrobe Home Loans. The attempt was said to have taken place between 20th May and 30th June 1998. Count 4 charged that, on or about 24th May 1998, the applicant dishonestly obtained a financial advantage for himself in the form of the provision of a personal loan facility of $20,000 from Colonial State Bank. Count 5 charged that, on or about 26th June 1998, the applicant dishonestly obtained, from one Lisa Gribble, a computer and a number of computer components and accessories with the intention of permanently depriving Ms Gribble of that property. In each count particulars were given of the deceptions on which the Crown proposed to rely.
[16]
The personal loan facility the subject of count 1 was negotiated between Elizabeth Tan and Andrew Tsoukalas of PRD Home Loans Pty. Ltd. ("PRD") on the one hand and Paul Wolf, the manager of the Glenroy branch of NAB on the other. In April 1998 a loan application was faxed by PRD to NAB. The application was in the name of "Michael Tadic". Faxed with it as attachments were a number of documents purporting to relate to the financial position of the applicant. The application was refused by NAB. The deceptions on which the Crown relied were false representations that the applicant -
[17]
(a) had been employed as an owner/driver by Mattren Paving Pty. Ltd. since 1995;
(b) earned a taxable income of $59,508 for the financial year that ended on 30th June 1997;
(c) owned a 1987 Toyota Hiace van valued at $7,500;
(d) owned a Kenworth prime mover valued at $70,000; and
(e) operated an account with Colonial State Bank which had a credit balance of $1,700.
[18]
The loan application and supporting documents were Exhibit "B" at the trial. In the book of exhibits with which we were provided Exhibit "B" consists of nine pages numbered 2 to 10. Page 2 is a cover sheet. Pages 3, 4 and 5 are the application form, on the first page of which appear the representations (c), (d) and (e) above. The application form included a telephone number and an address, both of which the Crown sought to show were linked with the applicant. Page 6 of Exhibit "B" is a photocopy of a Colonial State Bank access card, a Medicare card, a heavy vehicle driver licence and an Australian Coaching Council card in the names of "Mr M. Tadic", "Michael Tadic", "Michael Tadic", and "Mr Mick Tadic" respectively. The only card with a photograph is the driver licence[6]. As we shall see, the Crown invited the jury to conclude that that photograph was a likeness of the applicant. Pages 7, 8, 9 and 10 purport to be Michael Tadic's income tax return for the year 1st July 1996 to 30th June 1997. It contains the representations (a) and (b) above.
[19]
The personal loan facility the subject of count 2 was negotiated between Mr Tsoukalas of PRD and Michael O'Gorman, the business banking manager of the Glenroy branch of NAB. In April 1998 a loan application was faxed by PRD to the bank and later Mr O'Gorman attended the PRD office, where he was given the original application. It was in the name of "Michael Portelli" and Mr O'Gorman was introduced to a person who claimed to be Michael Portelli. The attachments on this occasion also included a driver licence with a photograph. It purported to be a photograph of Michael Portelli. It was not the same photograph as that on the licence relevant to count 1.
[20]
The personal loan facility the subject of count 3 was negotiated by Ms Tan and Mr Tsoukalas of PRD on the one hand and Wesley Brown, a consultant with Latrobe Home Loans. Although the application was provisionally approved, it was not proceeded with. The application was in the name of "Michael Jabman" and the attachments included a driver licence with a photograph. Although the name on the licence is Michael Jabman, the photograph is very similar to that relevant to count 2. It could be the same.
[21]
The application for the personal loan facility the subject of count 4 was submitted by Ms Tan of PRD to Kim Taylor of Colonial State Bank. It was in the name "Michael Portelli". The supporting documents did not include a driver licence or a photograph. It is unnecessary to refer to count 5 except to say that the name "Michael Portelli" was used again and that the driver licence and photograph that were used resemble those relevant to count 2. They could be the same.
[22]
The real Michael Portelli was called as a witness at the trial. He said that he had no knowledge of the three applications that had been made in his name. Counsel for the applicant began his cross-examination by disclaiming any suggestion that Mr Portelli had made any of those applications. James Valos, a solicitor, gave evidence that he had acted for the applicant, that the applicant had told him that he had changed his name to Michael Jabman and that the witness had acted for him under that name. Mr Stuart argued, by reference to similarities between the various supporting documents attached to the loan applications, that the applicant was just as much a victim of counts 1 and 3 as Mr Portelli had been of counts 2, 4 and 5.
[23]
The case against the applicant was therefore circumstantial. There was no dispute concerning the conduct that had taken place. What the applicant denied, and the Crown had to prove, was that he was implicated in that conduct. So far as count 1 is concerned, the Crown relied on a number of circumstances, none of which was by any means conclusive. There were a limited number of strands in the cable of proof and, whilst the cable may have been sufficient in itself, none of the strands was particularly strong. In those circumstances any error of law relating to one of the strands in the cable invites careful scrutiny, because it is all the more likely to have been significant in practical terms.
[24]
The applicant wished to adduce evidence for the first time on appeal that his wallet, including his licence, had been lost in 1995. In that case, as Mr Elston pointed out, the evidence about to be considered would be of little or no moment; but the significance of the evidence is to be judged in the light of the way in which the trial was in fact conducted and the case that was left for the jury's consideration.
[25]
The application for a personal loan facility the subject of count 1 was, as we have seen, accompanied by a driver licence purporting to be that of the applicant and bearing a photograph which the Crown said was a photograph of the applicant. The photograph was of very poor quality. The exhibits have further degraded since the trial. The relevant exhibit in its present form is practically worthless. Even before degradation, there must have been a very real question whether the photograph was a recognizable likeness of the applicant.
[26]
Detective Acting Senior Sergeant Peck was called as a witness for the Crown. It was known that he would be asked to express an opinion as to whether that photograph was a photograph of the applicant. The admissibility of such evidence was challenged by defence counsel before the witness was called.
[27]
Her Honour ruled that the evidence might be led. The witness did not testify to any particular points of similarity, nor was an adequate foundation laid to show that he had a significant advantage in saying whether the photograph was a likeness of the applicant.[7] Indeed he dealt with the photograph relevant to count 1 and the three other photographs together and without distinction. The relevant part of his examination in chief reads:
[28]
"PROSECUTOR: Did you have, in the course of this investigation, before you loan applications purporting to be from Jabman, Tadic and Portelli?---Yes, I did. Did you examine upon those loan applications photographs of Victorian driver's licences that were available?---Yes. Could I ask you a bit more exactly, please, which loan application files it was that you took into account in making the observations that you are now going to refer to?---Loan applications of Jabman, Tadic and two of Portelli. What was it on those as to photographs that you took into account?---Victoria driver licences. Is there anything you are able to say as to the images on the Victorian driver's licences?---In my view they are of the accused. And what do you base that on?---My comparison, my dealings with the accused, viewing the photographs."
[29]
In my respectful opinion, her Honour erred in admitting that evidence. Reference was made in the course of argument to Smith v. R.[8], but I find it unnecessary to say anything about that case. It is enough to say that the evidence given by this witness was insufficiently probative to satisfy the common law test of relevance.[9] There was, accordingly, a wrong decision of a question of law within the meaning of s.568(1) of the Crimes Act and, for the reasons I have explained, the decision had practical significance. The unrepresented applicant should be given leave to amend the grounds of appeal to raise this issue and the ground should be upheld.
[30]
In the ordinary course, if the appeal succeeded only on that ground and the grounds that have been conceded, there would be a direction for a new trial on count 1. The ordinary course is important. Among other things, it avoids a judicial determination otherwise than on trial by jury in circumstances where it has not been held that the evidence adduced at trial required an acquittal[10]; but there is no doubt that s.568(2) confers a discretion which, in exceptional circumstances, may be exercised in favour of directing a judgment and verdict of acquittal even where it has not been held that the evidence at the trial was insufficient. There are many cases establishing and illustrating that proposition. It is sufficient for present purposes to refer to Director of Public Prosecutions (Nauru) v. Fowler[11], Kaighin v. R.[12] and R. v. Bartlett[13].
[31]
In the present case, in my view, there should be a judgment and verdict of acquittal on both counts. In the case of count 3, that is because the evidence at trial was insufficient to show conduct going beyond mere preparation. In the case of count 1, it is because of the whole of the case as now understood by the Court of Appeal, but in particular the facts that the sentence has been fully served, that the operational period has expired, that there was no breach during the operational period and that the Crown concedes that, even if the present application succeeded only in relation to count 3, the sentence on count 1 should not be disturbed.[14]
[32]
That conclusion makes it unnecessary to consider the other issues that I earlier identified. It is tempting to say something of the inconsistency argument because of the care that Mr Stuart took in developing it; but, as Justice Heydon has pointed out extrajudicially, it is better not to decide more than need be decided. The same is true of the applicant's submissions, except to say that, to a large degree, they represented an attempt to re-try the case in the Court of Appeal. It is very unlikely that the Court would or could have received the new evidence that the applicant desired to lead.
[33]
1. The applicant is granted leave to amend the notice of application for leave to appeal against conviction by adding a ground 7 reading:
[34]
"The learned trial judge erred in admitting the evidence of Geoffrey Raymond Peck at pp.389 l.28-390 l.13."
[35]
2. The applications otherwise to amend the grounds of appeal and to adduce new evidence are refused.
[36]
3. The application for leave to appeal against conviction is granted.
[37]
4. The appeal is treated as instituted and heard instanter and is allowed.
[38]
5. The convictions sustained by the appellant on counts 1 and 3 are quashed and the sentences passed thereon are set aside.
[39]
6. The Court directs a judgment and verdict of acquittal to be entered on each of those counts.
[40]
As the applicant is now unrepresented but previously incurred costs, an indemnity certificate should be granted pursuant to s.14 of the Appeal Costs Act1998.
[41]
I have had the advantage of reading in draft the reasons for judgment of Callaway, J.A. I agree with the orders which his Honour proposes, and with his reasons.
[4] The applicant explained to us, when the hearing resumed, that that was because his advisers were not prepared to argue the additional grounds that he wished to raise.
[46]
[5] Possibly some reference would have to be made to the verdict of guilty on count 3. It will be quashed because the conduct was merely preparatory, but the jury's view that there was a sufficient connection between that conduct and the applicant might have to be taken into account in assessing the inconsistency argument.
[7] The witness had been asked only what opportunity he had had of observing the applicant on one particular day in August 1998. He said that he had had a constant opportunity because he had been in the applicant's presence for most of the morning. Cross-examination and re-examination established that the witness had had the files containing the photographs in his possession prior to that date.
Leave to amend grounds granted; application otherwise to amend and adduce new evidence refused; application for leave to appeal granted; appeal allowed; convictions on counts 1 and 3 quashed; sentences set aside; judgment and verdict of acquittal directed on counts 1 and 3; indemnity certificate granted (Callaway J.A., [87], [97]; Ormiston J.A., [5]).