R v Weiss [2004] VSCA 73

Court of Appeal (Vic)|2004-05-05|Before: CALLAWAY and BATT, JJ.A. and HARPER, A.J.A.

The applicant, who is now aged 32, was presented in the Supreme Court on one count of murder. Two juries were discharged without verdict. After a third trial occupying 20 days the jury returned a verdict of guilty. The applicant admitted four findings of guilt and two previous convictions from appearances in the Magistrates' Court between 1991 and 1994. The learned trial judge did not regard them as relevant to sentencing. Following a plea for leniency, the applicant was sentenced to 20 years' imprisonment with a non-parole period of 16 years. A declaration was made regarding 506 days' pre-sentence detention. The applicant seeks leave to appeal against both conviction and sentence.

There were five grounds of appeal in the notice of application for leave to appeal against conviction, but ground 3 was not pressed. Notice of application for leave to add three further grounds was given but was not pursued in relation to proposed ground 7. The four grounds of appeal against conviction and the two proposed grounds are, accordingly:

At the outset of the hearing we asked Mr Tehan what steps had been taken to inform counsel for the applicant at the trial ("defence counsel") of proposed ground 8 and referred to what Phillips, J.A. had said on that subject in R. v. Portelli[1]:

"[W]here there is a ground of appeal impugning the conduct of previous trial counsel or previously instructed solicitors, notice of the relevant ground of appeal should be given, in writing, to the former practitioner as soon as the ground is taken and he or she should be provided with a copy of any affidavit in support. Secondly, the former practitioner should be invited to respond on affidavit, if he or she wishes to do so, and to that end, at least as a general rule, legal professional privilege should be expressly waived. An affidavit should then be filed to establish that those steps were taken and with what result."

Mr Tehan informed us that defence counsel had been kept fully informed and, later in the day, an affidavit was sworn by his instructing solicitor to that effect. An affidavit sworn the following day informed us that defence counsel did not wish to make any response.

The Court permitted argument to be put on proposed grounds 6 and 8 but reserved its ruling on the application for leave to add those grounds. In my opinion that application should be granted. The application was not opposed.

Before turning to counsel's submissions, I shall say something briefly about the facts. Helen Elizabeth Grey was found dead in her home in Eumemmerring on the morning of Friday 25th November 1994. Her body was lying on a couch in the loungeroom and there was a child's cricket bat, with blood on the blade, on the floor near the couch. A forensic pathologist concluded that the cause of death was injuries to the head, a minimum of three blows, consistent with the deceased's having been struck with such a bat. An expert in bloodstain pattern interpretation agreed that there had been at least three blows. There were hairs wedged into the bat and he had no doubt that it had been used to inflict the injuries. It was either very likely or highly likely that the blows had been struck from behind the couch.

For nearly six years the identity of Ms Grey's assailant remained a mystery. The applicant was one of those interviewed in 1994, but he said that he had come home early from soccer training on the night of Thursday 24th November and had not gone out again. He claimed that he had spent the night in bed with his then de facto partner, Jean Horstead. She confirmed his account. The applicant's and Ms Horstead's child, A, was born shortly after Ms Grey's death. The applicant and Ms Horstead stayed together for another three years, when they separated and she went to live in the United States and formed a relationship with Eddie Keller. Ms Horstead's family moved interstate in 2000. She then telephoned the Dandenong police to say that she had provided a false alibi for the applicant in 1994. Her information was relayed to the Homicide Squad and ultimately to Detective Sergeant Mitchell, who went to the United States and took a statement from her.

Ms Horstead was the principal witness at the trial. Like Mr Keller, she gave evidence via video link from Atlanta, Georgia. She said that, at about 6 p.m. on Thursday 24th November 1994, Mick Havers and Carolyn Heenan came to the house she shared with the applicant in North Dandenong. There was an angry conversation. Ms Heenan had made allegations to the applicant, in confidence, about Ms Grey's private life. She had discovered, from Ms Grey, that the applicant had repeated them to her. The applicant became upset and indignant. At one point he said, "Set the alarm clock for 4 o'clock because I've got something to do. I'm going to get that bitch." or words to that effect. Mr Havers and Ms Heenan left at about 6.30 p.m. and the applicant went to soccer training.

According to Ms Horstead's evidence, the applicant returned at about 8.30 p.m. After 9.30 p.m., when the two of them were watching television, he looked at her and said that he was going somewhere. He did not say where he was going but he went out and came back at about 10.30 p.m. or a little later. Ms Horstead said that, when he walked into the loungeroom, he was shaking from head to toe and was as white as a ghost. She asked him what had happened and, after some hesitation, he said something along the lines of "I did it. I killed her." She asked him what he meant. He said something along the lines of "I knocked her off. I killed Helen." He then told her that he had driven to a main road near Ms Grey's house, left the car there and walked a short distance to a small park opposite the house. He saw two friends of the deceased, a man and a woman, leave. He waited to see whether they would return.

According to Ms Horstead, the applicant said that he then went and knocked on Ms Grey's door. When she answered, he said that his car had broken down and he needed to use her telephone to call for help. He told Ms Horstead that he entered the house and that the deceased lay on the couch because she was not feeling well. He pretended to make a telephone call in the kitchen but then turned around, picked up a cricket bat, walked towards the deceased and started beating her with it. He said that he approached her from the back of the couch and described the brutal injuries that he inflicted. The applicant put the cricket bat down next to the couch and took the rubber grip from the handle. He left, closing the door behind him. Ms Horstead claimed that the applicant told her that, as he was driving home, he threw the rubber grip out of the car. She asked him about fingerprints, to which he replied that he had taken care of that by wiping the telephone with his sock. She said that she asked him no further questions on the Thursday night.

On the Friday morning, at the applicant's suggestion, they visited Mr Havers and Ms Heenan. They were there for about ten or 15 minutes, when Ms Heenan came in and said that Ms Grey had been killed. She said she needed to find Ian Grey, the deceased's husband, from whom she was separated. That afternoon detectives came to their house and asked the applicant to accompany them. Whilst he was away, Ms Horstead noticed spots of blood on the applicant's tracksuit pants. She said that she panicked and burned the pants in the back yard. When the applicant returned, he said that they would need to get their stories straight before they were further questioned by the police. The following Tuesday they went to the Dandenong Police Station and, as I have said, she made a statement corroborating his account that they had spent the early evening at home together and not left the house.

Ms Horstead said that she had provided a false alibi because she feared for her life, her family and her children and that her relationship with the applicant had ended because he was having an affair with someone else. That was the girl, Renée, the subject of the question referred to in ground 5. In cross-examination she said that she was relieved when she discovered the affair, because she was looking for an excuse to end the relationship. At Mr Keller's suggestion, she telephoned the applicant on five occasions, after her statement to Detective Sergeant Mitchell in 2000, in an attempt to get him to speak about the murder. She was conscious that she had perjured herself in her first statement and said that she was afraid that, if the applicant's guilt could not be established, it might seem suspicious that she knew details of the killing that had not yet been made public. She had also been told by Detective Sergeant Mitchell that an indemnity was a possibility if her story were corroborated.

The applicant gave evidence at the trial. Contrary to the statement he had made at the time, he admitted that he had gone to Ms Grey's house on the evening of Thursday 24th November 1994. He said that he and Ms Grey had not seen much of each other since he had told her of the rumours about her private life, that he thought she might have been a bit angry with him and so he decided to visit her and sort it out. He denied any animosity or intention to abuse or assault her. He left the house he shared with Ms Horstead at about 9.50 p.m.

The applicant said that he parked his car in the street opposite the street in which Ms Grey lived, because she had told him that the police were following her and had advised him to park some distance away so that he would not attract their attention. He said that he then went straight to Ms Grey's house. The security door was open and the front door was not properly snibbed, so that it opened when he knocked. He grabbed the doorhandle and called out the deceased's name. There was no answer. He called out a second time and still there was no answer. He then looked towards the couch and saw that she was lying on it and that there was a cricket bat leaning against the couch. He walked across and, at first, he did not see any blood. It will be as well to set out the next part of the applicant's evidence as he gave it:

"What did you do then?---I approached, approached the couch, I thought she might have been - might have been sleeping - I didn't think nothing of it, and I sort of again I have gone, Helen, hello, and then when I got right up close I realised that there was blood everywhere and I sort of - I put my hand on her shoulder and I said, hello, Helen, and she didn't answer me. Yes; and then?---Well, I knocked the - unfortunately when I was walking up to the couch I knocked the cricket bat with my leg and it fell over and after I realised that Helen was dead I picked up the cricket bat and - it is hard to ascertain how long - because all kinds of things go through your mind at that time - but all I could think of was something obviously has gone terribly wrong here, I just want to get out of here. Yes?---And as I picked up the cricket bat obviously I realised that I had touched the grip, I had touched the cricket bat and I was just going to take off and just take off out the door, but I was afraid that I might have left fingerprints on the cricket bat and I decided to take the grip off it. Why were you worried about it if you'd left fingerprints on the cricket bat?---I'd just walked in on a dead body. If I left fingerprints - my fingerprints were on record - obviously, I was afraid that I'd be the number one - I'd be - I'd be blamed for the murder."

He said that he did not think the police would believe him if he told them the truth. He went home, discarding the grip from the cricket bat handle on the way. He told Ms Horstead that Ms Grey was dead and told her what had happened at the house. The applicant said that they decided to say that he had not left home and knew nothing about it.

In the months leading up to his separation from Ms Horstead she had two or three times threatened to go to the police and say that he had been the murderer of Ms Grey. (Ms Horstead's evidence was to the same effect, but she said that the applicant used to counter with threats against her parents and her.) He did not think that she would carry out those threats and was surprised when she called him from the United States. He gave evidence about the five telephone conversations and about the circumstances in which, according to his account, the police conducted two interviews with him on 28th November 2000. He claimed that Detective Sergeant Mitchell had told him that they had new scientific evidence and that he should start thinking about manslaughter and that Detective Sergeant Thomas had given him the same advice. He said that, in the course of the second interview, he had admitted to killing Ms Grey but had tried to make it look like an accident so that he would be charged only with manslaughter, but that the admission was false. He denied killing the deceased.

There were 17 prosecution witnesses, but the applicant was convicted mainly on the combination of Ms Horstead's evidence that he had confessed his guilt to her on the Thursday night and the confession he himself made to the police in the second of the two interviews. Grounds 1 and 2 are to the effect that the record of that interview should have been excluded from evidence. It will be convenient, in these reasons, to begin with those grounds, but it should be explained that Mr Tehan put grounds 4 and 8 at the forefront of his submissions. At our invitation, he took us through the relevant parts of the transcript and identified three episodes in the course of the trial which we watched on video in open court. I shall refer to them later. He then argued grounds 1 and 2 together, followed by ground 6. Mr Russell argued ground 5.

The applicant was, as I have said, questioned by the Homicide Squad on 28th November 2000. Although the questions are sequentially numbered, there were two interviews. The first interview (questions 1 to 386) began at 9.55 a.m. and concluded at 11.40 a.m. The second interview (questions 387 to 526) began at 12.25 p.m. and concluded at 12.55 p.m.

During the first interview the applicant denied that he was even present at the scene of the killing on the relevant night. Questions 358 to 361 read:

"Q358 Do you know what the murder weapon was that killed Helen Grey? A From - from what I believe it was a base-, a cricket bat or a base ball bat, one or the other. Q359 How do you know that? A Because throughout the investigation that's what last interview they told me, that she'd been beaten to death with a bat, so a baseball bat or a cricket bat. Q360 Rightio. Is there - can you give me any reason for - any reason for why your DNA would be on the murder weapon? A Not at all. Not at all. Q361 Is there anything else you'd like to say to me at this particular point regarding the murder of Helen Grey? A No, nothing whatsoever."

The applicant was then charged with the murder of Helen Grey and the first interview concluded. The applicant asked to have access to Detective Sergeant Thomas, an officer known to him. The interview was being conducted on the ninth floor of the police building in St Kilda Road. Detective Sergeant Thomas was on the 16th floor. He was not then involved in the investigation but, being informed of the applicant's request, came down to see him. He entered the interview room and the two men were alone for a relatively short time. There is a dispute as to what was said between them. In the second interview, which followed shortly thereafter, the applicant confessed to the killing of Ms Grey but said that it was an accident. He also said that he struck her when she was standing up and that she fell back on to the couch. That was contrary to forensic evidence to the effect that she was lying on the couch and struck from behind.

Questions 387 to 393 were of a formal character. It was next established that the applicant had had a conversation with Detective Sergeant Thomas since the first interview. He was then asked whether there was "anything different" he wanted to say. He answered, "I think that it's about time that, you know, I come forward and - and just told you guys the truth and shut this case and finish it off and just get it over and done with, you know."

"Q397 Righto. Well, what you - what you have told me, and please correct me if I'm wrong, but what I understand is that you - you've told me that on the 24th of November of 1994 you returned from soccer training and you didn't go out that night. A On the Thursday when Caroline had a go at me that I said somethin' to Helen I was upset with Helen, but I said, `Look, I don't want to see Helen around ever again,' and the next day [sic] I thought I'll go and have a go at her. I went over there, we had a bit of an argument, things happened, she asked me to leave and I said, `Look,' rah, rah, rah and it was just - it was a kerfuffle. I don't remember exactly what happened, but all I remember is that she came at me, asked me to leave her house, we had a bit of a wrestle, she slapped me across the face and just pushed me and pushed me towards the bat and I grabbed the bat and I hit her. I didn't - I didn't think that I would kill her. I didn't mean it. It was an accident and she just fell and I ran and the next day I found out she was dead. And I am sorry I did it. I'm so sorry. It was never meant to happen. It was never meant to happen like that. I did not go over there with the intention to kill her. I just wanted to just give her my mind and just a mouthful. I'm just sorry."

At question 425 the applicant repeated that he did not mean to hit Ms Grey. At question 449 he said that he did not mean even to harm her. He just wanted her to know how he felt. He wanted to yell at her. At question 520 he said that he did not plan to kill her and at question 521, again, that he did not mean to do it.

The witnesses on the voir dire included Detective Sergeant Mitchell, the senior of the two officers who conducted the interviews, Detective Sergeant Thomas and the applicant. The applicant said that when he was brought in for questioning, whilst they were in the car, Detective Sergeant Mitchell said that the police "had new scientific evidence" and that "if it was me, he would start thinking manslaughter". Detective Sergeant Mitchell denied that he engaged in any such conversation. The applicant also claimed that, in the course of his conversation with Detective Sergeant Thomas, the latter had said, "It looks like you are going to go down and, if I were you, I'd start thinking about taking manslaughter." The applicant said that he asked how he would go about doing that and that Detective Sergeant Thomas replied that the applicant would have to tell them he did it and that he would organize another interview. Detective Sergeant Thomas denied those allegations.

The judge did not make any express finding about the alleged conversation in the car, but it is clear that he did not accept it. Among other things, his Honour said that he did not accept the applicant's evidence that he was pressured by Detective Sergeant Thomas "or by any other police officer" into a false confession. He expressly rejected the applicant's evidence about the nature of his conversation with Detective Sergeant Thomas and accepted the latter's evidence. His Honour said:

"Detective Sergeant Thomas gave evidence before me that prior to entering the interview room, he thought the accused (who had been told he was going to be charged with murder) had called for him to discuss a `welfare-type issue'. I accept the evidence of Detective Sergeant Thomas given before me yesterday, that he then had the conversation which he deposed to before me, which was, in substance, that the accused wanted to speak to him, that he was under significant emotional pressure, that he wanted to tell the truth, that he had not told the truth to the police in the first interview, and that he wished to tell the investigating police the truth."

He then gave reasons why he considered that that evidence was persuasive.

Mr Tehan submitted that it was not necessary to consider the judge's resolution of the conflicting accounts as to what transpired between the applicant and Detective Sergeant Thomas because question 360 was a "trick" question designed to induce a confession. The consequence was either that the confession was not voluntary or that "the interview should have been excluded under the public policy discretion or general unfairness discretion". (Nothing turns on the fact that ground 2 treats unfairness as a matter going to admissibility, as opposed to a discretion to exclude admissible evidence,[2] and, for reasons that will appear, it does not matter that the grounds do not refer to the public policy discretion.) Mr McArdle reminded us that we must decide grounds 1 and 2 in the light of R. v. Swaffield and Pavic v. R.[3]

As we shall see, the judge accepted that the applicant had been misled by question 360. The applicant had, understandably, taken it to mean that the police had, or were claiming that they had, his DNA on the murder weapon. His Honour did not, however, accept that Detective Sergeant Mitchell, who asked the question, intended to deceive the applicant. He accepted Detective Sergeant Mitchell's evidence to that effect on the voir dire and gave reasons for doing so. Some of those reasons may be more persuasive than others, but the judge saw Detective Sergeant Mitchell give his evidence and the finding was open.[4] Subsidiary submissions about earlier questions asked in the course of the first interview fall away if that finding is not disturbed. I accept it, together with his Honour's assessment of Detective Sergeant Thomas's evidence. He was entitled to consider that the applicant's credibility was diminished by the fact that he first mentioned manslaughter after counsel asked him, "Well did the topic of manslaughter come up?"[5]

It follows that the applicant did not decide to make the statements he did in the second interview because Detective Sergeant Mitchell had suggested that he plead to manslaughter when they were coming in in the car or because Detective Sergeant Thomas had suggested that he give an account consistent with manslaughter. Moreover, because question 360 was not asked with intent to deceive, public policy does not enter into the question. All that remains for consideration is the likely effect of question 360. The position is analogous with a bona fide, but mistaken, assertion to a person being interviewed that there were eyewitnesses. If the person then confessed, the assertion would be innocent but its likely effect would still have to be assessed.

The judge was satisfied that the confession in the second interview was voluntary and he was not persuaded that its reception in evidence would be unfair to the accused. Those conclusions were based, in part, on his acceptance of Detective Sergeant Mitchell's evidence about question 360. They were also based on a conclusion that the applicant gave the second interview for the reason he had stated to Detective Sergeant Thomas, namely that he wanted to tell the truth but had not told the truth in the first interview and now wished to do so. That was consistent with his Honour's impression, later mentioned in the sentencing remarks, that in the course of the second interview the applicant appeared to be genuinely remorseful. I have watched the video and I agree with that assessment.

Prior to R. v. Swaffield and Pavic v. R. the general approach to confessional statements was to consider them under three headings: voluntariness, fairness and public policy. Reliability was relevant to voluntariness, both at common law and having regard to the provisions of s.149 of the Evidence Act 1958. It was also relevant to fairness, although it did not exhaust the fairness discretion. In R. v. Swaffield and Pavic v. R. it was said that it would be better to consider voluntariness first, then an exclusion based on considerations of reliability and finally an overall discretion which might take account of all the circumstances of the case to decide whether a conviction obtained by the use of such evidence would come at a price that was unacceptable having regard to contemporary community standards. It was acknowledged that, because questions of reliability did not exhaust the fairness discretion, it would still be necessary to consider any forensic disadvantage that might be occasioned by the reception of a confessional statement that was improperly obtained. [6]

In my opinion, in the light of those two cases and the authorities to which they refer, the critical issue in the present case is reliability, i.e. whether question 360 was really likely to elicit an untrue admission of guilt. [7] If it was, the second interview should have been excluded, either because the confessional statements were involuntary or because their use would prejudice the applicant's right to a fair trial. If question 360 was not really likely to elicit an untrue admission of guilt, there is no basis for saying that those statements should have been excluded on the basis that they were involuntary or that it was unfair to receive them in evidence. They occasioned no forensic disadvantage irrespective of their reliability. Can it be said that question 360 was really likely to elicit an untrue admission of guilt?

The applicant was asked in evidence in chief on the voir dire how he understood the question and answered:

"I was - I was under the impression that my DNA has been found on the murder weapon in some way or another. I wasn't sure how that could have been possible, but I remembered Miss Horstead saying earlier in the phone conversations that they did retract blood from her and my son and I thought there might have been a possibility of the DNA being planted."

He then explained that he meant "planted on the murder weapon". He had earlier given evidence that Ms Horstead had told him that American police had asked her to supply a sample of her blood and also a sample of A's blood and that he had believed her. Asked what he thought the purpose of the request was, he answered:

"Well, I was - I wasn't - I still am not too familiar with DNA, but she told me that apparently they can determine the father's DNA from both the mother and the child, and the purpose of them getting DNA, I was under the impression, to see whether they - my DNA was on the murder weapon."

The next day, still in examination in chief, he was asked the following questions and gave the following answers:

"When [Detective Sergeant Thomas] came and saw you and spoke with you, why didn't you simply maintain your position, `It wasn't me, Jean's lying'? Why did you think you had no choice? Was it simply because of what he said or was there something else? I'm not suggesting there was, I just want you to as best as you can articulate, to tell the court what was going through your mind, the thought processes that were going on?---Look, I believed Mr Thomas when he came down and told me there was no way out, that that was the only chance to get off lightly. I wasn't - I wasn't sure if that was enough to take me to trial or to convict me, just on her say-so but Dean Thomas told me it was. I wasn't sure whether they had Dean (indistinct) a weapon. Possibly they - - - You told us yesterday that - - - ?---They could've planted it - - - They told you that - just a moment; you told us yesterday that when Mitchell put that to you towards the end of the first interview, you understood it to mean that they'd found your DNA on the murder weapon; correct?---Yes, that's correct. But what you're saying is you weren't sure that they in fact had found it or whether they'd planted it. Is that what you - - -?---That's correct - no, not in fact found it, in fact planted it."

I have watched that part of the video of the voir dire. The second last sentence of the first answer was "I wasn't sure whether they had DNA on the murder weapon."

We must guard against the error of holding that the second interview was correctly received in evidence just because Detective Sergeant Mitchell acted in good faith and the applicant lied about his conversation with Detective Sergeant Thomas. A person can make involuntary statements and lie on the voir dire. It may be unfair to use a confessional statement without accepting everything said by the accused. There is a public interest, transcending that of the accused, in ensuring that truly unreliable confessions are excluded. That has always been so and is reinforced by the approach to impugned confessional statements in R. v. Swaffield and Pavic v. R.

Within minutes of the conclusion of the first interview, the applicant had decided to admit that he had killed Ms Grey but to say that it was an accident. Question 360 was asked almost at the end of that interview and he understood it to mean that his DNA was on the murder weapon. The judge accepted the applicant's evidence on that point. His Honour said:

"Indeed the accused, in his evidence, has given evidence that he thought that is what they meant: that somehow the police had or were claiming they had his DNA on the murder weapon. I accept the accused's evidence on that point, that that is what he thought they meant. I think that an ordinary interviewee hearing that question would come to the conclusion that the interviewee's DNA had been found on the murder weapon."

It would be surprising if question 360 and the belief it engendered did not contribute to the applicant's decision to say that he had killed Ms Grey but to minimize his guilt. If necessary, I would be prepared to find affirmatively that that was so.[8]

Granted that question 360 induced the confession, whether or not there were other contributing factors, was the question really likely to elicit an untrue admission of guilt? It is not conclusive that the Crown conceded that it was unreliable as to matters of detail. Prior to the voir dire the prosecutor said:

"[W]e have a position. The position is that it is truthful in so far as he was there and he inflicted the blows. We say that having admitted that what he was doing was trying to minimise his position by minimising the number of blows and his description of how it occurred, we say is contradicted by the forensic evidence. We will say and submit to the jury that a proper inference from the forensic evidence is that she was lying on the couch at the time, in much the same position as she was found that are in the photographs, that he was standing behind the couch."

The issue is whether the question was really likely to elicit an untrue admission that the applicant killed Ms Grey. True or false, it was not unlikely that an admission of guilt would be accompanied by statements designed to minimize guilt.

Accepting his Honour's findings about the truth of the police evidence on the voir dire, we are dealing with an innocent misrepresentation, believed by the applicant, that his DNA was on the murder weapon. The video makes it clear that, in the last answer set out at [30] above, the applicant was insisting that any such DNA had been planted, not just found. Such a misrepresentation, like a false statement that there were eyewitnesses, is at least apt to elicit an untrue confession of guilt. A courageous person would not be panicked into a false story even by the alarming assertion that his or her DNA had been found on the murder weapon, but this branch of the law is not designed for persons of honesty and moral fortitude. It contemplates human beings who tell lies in response to promises, threats, insistent importunity and the like.

In deciding whether question 360 was really likely to elicit an untrue admission of guilt, I disregard other evidence at the trial tending to corroborate the parts of the confession on which the Crown relied. We are not concerned with whether the confession was true in the light of all the evidence, but with the likely effect of the inducement. It is nevertheless permissible to bear in mind that the applicant would later tell the jury that he was present at Ms Grey's house that night and, fearing that he would not be believed, removed and discarded the grip from the cricket bat handle and arranged a false alibi[9] and that he had made false statements to the police in 1994. It is just such a person, as opposed to someone who did not go to the house at all, who would be alarmed by an assertion that his DNA had been found on the murder weapon. Accordingly, in my opinion, question 360 was really likely to elicit an admission of guilt [10]

, but was it really likely to elicit an untrue admission from the applicant?

At this point we must recall that the judge did not only reject the applicant's claims that Detective Sergeant Mitchell and Detective Sergeant Thomas had advised him to think about manslaughter. His Honour also accepted the latter's evidence that the applicant had told him that he was under significant emotional pressure and wanted to tell the truth.[11]

The judge said that he was satisfied that question 360 was not the reason why the applicant gave the second interview. I accept his Honour's finding concerning Detective Sergeant Thomas's evidence, but I would express my conclusion as follows: the belief engendered by question 360 contributed to the applicant's decision to give the second interview but, because it was not the only contributing factor and the other contributing factors were emotional pressure and a desire to tell the truth, the question was not likely to elicit an untrue admission of guilt.[12] The nature of the other contributing factors eliminated the risk that it would do so. Accordingly I would not uphold grounds 1 and 2.

It will be recalled that this was the third trial. Mr Tehan submitted that it was conducted against a background of pre-existing tension between the judge and defence counsel, who had often appeared before his Honour in murder trials and whose conduct had been the subject of severe condemnation by the judge in two rulings at the first trial. Counsel had asserted, in the presence of the jury, that the judge was biased against his client and acting unjudicially. His Honour suspected that that was part of a strategy to achieve a favourable verdict by improper means. He warned counsel that he would lodge a formal complaint with the Ethics Committee of the Victorian Bar if similar conduct occurred again. At the trial with which we are concerned defence counsel again made allegations of bias, on the part of the judge, in the presence of the jury.

There were three particularly serious confrontations. I shall refer to them without setting out longer passages of transcript than are necessary. To do so would be unedifying and would not convey the advantage we acquired from watching the video in open court. Words that appeared to have a particular significance on paper acquired a different significance when one could observe facial expressions and gestures and hear the tone of voice.

The first of the three confrontations to which I have referred occurred during Ms Horstead's cross-examination on the afternoon of 21st March 2002, which was the sixth day of the trial. Defence counsel asked the witness a question to which she gave a largely non-responsive answer. Counsel interrupted her. The judge told him not to talk over the witness, because she was entitled to answer the question. Counsel replied, "Well, she's not answering it, and you know it, Your Honour, with respect." The judge said that it was for him to do the judging in the case, not defence counsel, and that he did not need to be told what he knew and what he did not know. He knew what counsel had asked, he knew what the witness was saying and he knew the rules of evidence. After a few more exchanges counsel said, "I give up. I give up, Your Honour." and briefly sat down. The judge told counsel his understanding of the witness's attempted answer. Counsel again said, "I give up." His Honour told counsel that, if he would like to comply with the rules, he could press ahead, to which counsel responded, "I can't win, Your Honour, with respect, it's just not fair." After further exchanges, in the course of which counsel asked for the jury to be sent out but his Honour declined to take that course, the first confrontation ended as follows:

"[DEFENCE COUNSEL]: Don't tell me I'm not complying with the rules, Your Honour, that's unfair and you're taking advantage of your position on the Bench to say that to me, with respect. It is just not giving my client a fair trial. [PROSECUTOR]: Your Honour, I would like this dispute to be dealt with in the absence of the jury. I don't think it's - - - HIS HONOUR: I'd like us to keep going. Would you like to withdraw what you just said, Mr [Defence Counsel]? I'll give you the opportunity, right now. [DEFENCE COUNSEL]: What, Your Honour? What did I say - - -? HIS HONOUR: You don't know what you said? [DEFENCE COUNSEL]: Well, I said, don't - I'll have to try and think of it now. HIS HONOUR: Now's the time to withdraw, Mr [Defence Counsel] - - - [DEFENCE COUNSEL]: I am not getting a fair trial, that's what I - I think that was the gravamen of what I was saying, Your Honour. HIS HONOUR: What you said was, `You're taking advantage of your position'. I will now give you, here and now, the opportunity to withdraw what you have said. [DEFENCE COUNSEL]: Your Honour's on the Bench, I'm not. Of course I regret saying things like that. HIS HONOUR: I didn't ask you whether you regretted it. I asked you do you withdraw it? [DEFENCE COUNSEL]: Yes, Your Honour."

The judge then invited counsel to proceed. Counsel said that he would "plod on" and that maybe it would be best if he simply played the tape with the entirety of the witness's evidence at the last trial and the tape of the committal, because that seemed to be safer.

The cross-examination continued and at 4.02 p.m. the jury left the court. The judge then expressed his concern that the conduct of defence counsel might so alienate the jury that directions might have to be given to distinguish between counsel's conduct and the fair trial of his client. Referring to the confrontation that afternoon, his Honour said that some members of the jury looked quite "shell shocked". There followed submissions in the course of which defence counsel expressed his regret for what had happened but complained both that the judge was allowing Ms Horstead to give non-responsive answers and that his Honour was intervening inappropriately to criticize counsel's questions. The judge rejected both those submissions. The next morning defence counsel said that he would adopt a suggestion that his Honour had made to "diffuse the situation". After the jury had entered the court counsel told the judge that he was sorry for the exchange that had occurred the previous afternoon. His Honour replied, "That's quite all right Mr [Defence Counsel]. We'll put it behind us and press ahead." That response reflected the judge's view that the jury were well able to put the confrontation out of their minds and concentrate on the task at hand.

The second confrontation occurred during the cross-examination of Detective Sergeant Mitchell on the morning of 28th March 2002, which was the 11th day of the trial. Defence counsel had asked the witness a question that did not admit of a simple answer but had criticized the witness for not answering yes or no. His Honour pointed out the ill-advised form of the question, to which counsel responded, "Let's forget the school lessons, Your Honour", and invited counsel to ask it again. Counsel said that he would move on to something else. The judge asked whether he did not want an answer to the question. That led to the following exchange:

"[DEFENCE COUNSEL]: I think Your Honour demonstrates over and over again that you have an approach to defence counsel that's unfair in my submission. HIS HONOUR: Well, if you follow the rules, Mr [Defence Counsel], everyone will get along fine. [DEFENCE COUNSEL]: I'm not alone, Your Honour. All right. HIS HONOUR: Do you want to ask the question and get an answer or do you want to - - - [DEFENCE COUNSEL]: Well, let's waste some time if you like, and we'll have it played. I mean I can't remember what I just asked him, I'll try and remember it, but there's been a satisfactory diversion now to throw the questioner, I mean it all plays into the hands of the Crown. That's what it's all about, isn't it? It's a disgrace in my opinion, Your Honour. HIS HONOUR: Would you like to withdraw what you've just said? [DEFENCE COUNSEL]: What? HIS HONOUR: That the purpose of my intervening was to play into the hands of the Crown, number 1 - - - [DEFENCE COUNSEL]: Well, it is not helping - - - HIS HONOUR: - - - and number 2, that it's a disgrace. Two allegations you have just made in the presence of the jury. Here and now I give you the opportunity to withdraw each and both of them. [DEFENCE COUNSEL]: So I'm stood over so that I've got to withdraw them all the time - - - HIS HONOUR: You're not stood over. [DEFENCE COUNSEL]: Yes, all right, I withdraw them."

The third confrontation took place that afternoon. Detective Sergeant Mitchell was still being cross-examined. At one stage the judge was moved to remind defence counsel to behave properly, to which counsel replied, "Is this going to be another homily from the Bench, Your Honour?". The judge reiterated that they were in a court of law and counsel should learn to behave properly. The cross-examination continued without incident for some six pages of transcript. There was then a ruling to which defence counsel responded by saying that he could not win. A little later he asked the witness a question about an answer given in the second interview. The prosecutor interjected that reference should be made to the next answer too. Defence counsel said that the prosecutor could re-examine if he wanted to and added, "You want the usual help, do you?" That led to the following exchange:

"HIS HONOUR: Mr [Defence Counsel], `the usual help'? You keep suggesting directly and indirectly, in front of this jury that I am going in to help the prosecutor. Let me tell you a fact of life, Mr [Defence Counsel] - - - [DEFENCE COUNSEL]: I saw the witness looking at Your Honour and the prosecutor. HIS HONOUR: Let me tell you a fact of life, Mr [Defence Counsel]. I require every barrister in my court to follow the rules of court. As I told the jury at the start, it is my sworn function as a judge of this court to require this trial to be conducted in accordance with law and fairly. That's what I am doing. If you wish to keep saying in front of this jury that I am helping the prosecutor, that is your choice. You are wrong, and I think you would be well advised to ask questions and not make factually erroneous allegations. Get on with your questions. [DEFENCE COUNSEL]: I saw the witness, on several occasions, looking to Your Honour, virtually, it seemed to me, expecting Your Honour to assist - - - HIS HONOUR: So the witness is in it too, is he? [DEFENCE COUNSEL]: Yes. HIS HONOUR: That's your allegation, is it? [DEFENCE COUNSEL]: Yes, Your Honour. HIS HONOUR: Thank you. Press on."

The Crown case concluded shortly thereafter. The jury were discharged for the Easter break and at 3.49 p.m. they left the court. Defence counsel informed the judge that he proposed to call his client and there was discussion about the course that the trial would take when it resumed on the following Wednesday. The judge then said there were some matters that he would like counsel to consider over the break. One was that, in his opinion, defence counsel's conduct had got worse since the ruling at the first trial to which I have earlier referred. The problem was cumulative. A once tolerant jury, by reason of repetition, might ultimately lose its tolerance. His Honour intended to consider, over the Easter break, what warning, if any, he should give the jury to stop prejudice against the applicant taking root in their minds

The other matter related to the confrontations that had occurred that day. They included clear assertions by defence counsel of the judge's misuse of his judicial office. The withdrawal at the end of the second confrontation had been a "parody of a withdrawal". No graver allegation could be made against a judge, his Honour continued, except perhaps venal corruption. Defence counsel had repeatedly made the allegation of deliberate assistance to the prosecution, "clearly and plainly, explicitly and implicitly, in the presence of the jury, despite warning after warning". Counsel, he said, was guilty of gross professional misconduct, which brought disgrace upon himself, disgrace upon the Bar and disgrace upon the Court.

The trial resumed on the Wednesday after Easter but the jury were excused until the next day. On the Wednesday defence counsel applied for the jury to be discharged. His primary ground was that he had so often been accused of improper conduct by the judge that the jury were likely to think that he was breaking the rules and acting unfairly towards crucial prosecution witnesses and that that would rub off on his client. A subsidiary ground was ostensible, not actual, bias on the part of the judge. The latter submission was rejected and nothing more need be said about it. The application for discharge was opposed by the Crown. His Honour ruled that the appropriate course was to remedy the matter by a short direction the next morning. He acknowledged that the jury had been temporarily affected by "the abuse and sarcasm" to which he had been subjected by defence counsel but expressed his confidence that they would act sensibly and fairly if they were appropriately directed and given something else to concentrate on. His Honour also said that he was entirely confident that defence counsel had not been seeking to implement a strategy of sabotaging the trial and that the application for discharge had not been made with a view to manufacturing a ground of appeal.

When the jury returned on the Thursday morning, the judge reiterated some of the basic features of a criminal trial that he had earlier explained to them, including their role as the judges of the facts and the role of counsel. Counsel, he continued, had a limited function to perform and the jury should not be distracted by irrelevancies. A couple of times there had been some sharp words between the judge and defence counsel. The jury were not to be distracted by that at all. Those things could happen in the heat of the moment and, as the jury had observed, it did not last and "we get on with things". A little more was said to the same effect and the trial resumed.

Mr Tehan took us to several other passages in the transcript, either in further elaboration of ground 8 or in support of ground 4. Some of them recorded exchanges in the absence of the jury.[13] Others showed his Honour intervening in the course of cross-examination. [14] Sometimes counsel's response was one of frustration. Sometimes it went much further, as in the following exchange, which took place during the cross-examination of Detective Sergeant Thomas on 27th March 2002:

"[DEFENCE COUNSEL]: It would probably be best if Your Honour didn't intervene, if I may say so. HIS HONOUR: You follow the rules, Mr [Defence Counsel]. You don't make comments, you ask questions. [DEFENCE COUNSEL]: Your Honour always does this. HIS HONOUR: I only do it - - - [DEFENCE COUNSEL]: As soon as the defence make a point, you try and dismantle it. HIS HONOUR: I only do it when the rules are broken, Mr [Defence Counsel]. If you break the rules, I correct you; if [the Prosecutor) breaks the rules, I correct him. If you both don't break the rules, I'll keep out of it. Go on."

Later that afternoon, in the absence of the jury, counsel pressed his complaint that the judge intervened unduly in the course of defence cross-examination, saying that he had never seen his Honour do it to a prosecutor and that "pedantic interjections" threw the questioner and tended to "curry support" for the witness.

Although there were further tense exchanges between the judge and defence counsel in the absence of the jury, there were no further incidents in the presence of the jury after the Easter break. The charge began at 12.31 p.m. on 10th April 2002, which was the 17th day of the trial. Immediately after lunch, his Honour turned to the function of counsel. He said that he was sure that the jury had been assisted by the presentations and final addresses of both the prosecutor and defence counsel[15] and continued:

"As I have also previously directed you, and I now repeat, do not be distracted by the occasional sharp word which has been said between [Defence Counsel] and me during the trial. Those matters sometimes happen during trials, and they are soon behind us. I am unaffected by it, and you must be unaffected by it too. In particular, I direct you not to treat the accused Mr Weiss as responsible for, or a part of, [Defence Counsel's] occasional heat of the moment comments during the trial. Mr Weiss is in no way responsible for that, and is in no way accountable for that, as I am sure you appreciate. [Defence Counsel] correctly told you this morning, and I agree with him, leave the personalities of the lawyers out of it."

The jury retired to consider their verdict at 2.22 p.m. the next day. They returned a verdict of guilty at 3.53 p.m. on 13th April 2002.

Mr Tehan submitted that, of the authorities dealing with misconduct by counsel, the best analogy with the present case was R. v. Lars and Ors[16] but that the circumstances were also akin to those in R. v. McIntyre[17]. The former case turned on a combination of excessive judicial intervention and a running quarrel between the judge and counsel for the appellant Lars that began within a day or two of the commencement of proceedings before the jury and continued thereafter to the very end of the evidence. Some of counsel's remarks to the judge resembled remarks made by defence counsel in the present case[18], but both his Honour and counsel were at fault and there was no remedial action of the kind described above. The convictions were quashed not so much because of the judge's repeated interruptions but because there was an unacceptable risk that the exchanges between the judge and counsel diverted the jury from their proper function and gave them the impression that his Honour had formed an adverse view of the defence sought to be raised not only by Lars but also by the other accused[19]. The conduct of counsel in R. v. McIntyre was so bad that Hulme, J., who delivered the leading judgment, said that it was far worse than anything he had experienced or heard about in his career[20]. Again some of counsel's remarks resembled remarks in the present case[21], but the conviction was quashed because the incidents that occurred were calculated to lead the jury to doubt the worth of listening to anything that defence counsel said. I do not think that the same could be said here.[22]

Significantly, Hulme, J. said that he would not readily infer that a jury was diverted from its task by such incidents.[23]

Courts are very cautious before intervening on the ground of counsel's incompetence or misconduct but, as R. v. Lars and Ors and R. v. McIntyre illustrate, there are occasions where appellate intervention is required. As Gleeson, C.J. said in R. v. Birks[24], it is impossible, and undesirable, to attempt to define such cases with precision.

There is no gainsaying the deeply offensive character of the allegations that defence counsel made or his discourtesy to the judge, but the critical issue is the likely effect that they had on the jury. In my view, having watched the video, their principal conclusion would have been that, on more than one occasion, counsel was frustrated and lost his temper. Jurors are not "twelve innocents"[25], but men and women with enough presumed experience of the world to put frustration and bad temper into perspective. The Easter break intervened and there were no further incidents in their presence. They were directed on the subject immediately after the Easter break and again in the course of the charge. The directions did not expressly address the danger that the jury might think defence counsel had acted improperly and unfairly to Crown witnesses but, if they formed that impression, they would have understood from the charge that the applicant was not responsible for any such misconduct on the part of counsel.[26]

There remains the issue whether there is such a risk that the jury were distracted from their task, either by the exchanges to which I have referred or by the judge's interventions[27], that we should conclude that the trial miscarried. That issue links grounds 4 and 8. It is unnecessary to decide whether, on every occasion, his Honour's interventions were well judged. As Mr McArdle pointed out, they went to the form of the questions asked rather than their topic. They fell far short of a descent into the arena of the kind that occurred in R. v. Mawson[28] or R. v. Lars and Ors[29]. It is true that we must gauge their effect in conjunction with the tension between the judge and defence counsel, but the whole must be put into perspective in the way I have tried to do in [51] above. In all the circumstances I am not persuaded that there is a real risk that the jury were prevented from giving proper consideration to the evidence, the attacks made on the credit of prosecution witnesses or the arguments of counsel or that, on any other basis, there was a miscarriage of justice. I would not uphold either of these grounds.

It was common ground at the trial that an accomplice warning should be given in relation to the evidence given by Ms Horstead and an accomplice warning was given in conventional terms. The critical paragraph reads:

"An accessory after the fact to murder is what is in law called an accomplice. An accomplice is someone who shares the guilt of a crime, either being the one who committed it or one of the ones who helped in it. It is the experience of the law, ladies and gentlemen, that evidence of accomplices is frequently unreliable. Accomplices tend to justify their own conduct. In doing so, they often seek to shift the blame wholly or partly on to others. They often construct untruthful stories, which tend to exculpate the guilty and implicate the innocent. Accordingly, there is a rule of law which applies to this case, namely it is dangerous to convict an accused on the uncorroborated evidence of an accomplice. It follows, therefore, that you first should look for corroboration of the evidence of Ms Horstead, that the accused confessed to her on that Thursday night when he came home that he had killed the deceased."

His Honour then explained the meaning of corroboration and the division of responsibility between judge and jury in relation thereto and identified the categories of evidence which in law were capable of corroborating Ms Horstead's evidence of the Thursday night confession.

Although a different view has been taken in England,[30] the position in Victoria is that an accomplice warning does not have to be given in relation to the evidence of an accessory after the fact.[31] (I shall use that expression to include a person guilty of the indictable offence created by s.325 of the Crimes Act.) There is a good deal of authority to the same effect in other States.[32] The reason[33] was explained by Mann, C.J., Gavan Duffy and Martin, JJ. in R. v. Ready and Manning[34]:

"In our opinion a person who knows nothing of the crime until it has been committed and is therefore not privy to it before its committal and then `receives, relieves, comforts or assists' the principal criminal does not fall within the reason of the rule which requires corroboration of the evidence of accomplices and unless required by authority to do so we should not think it proper to insist on such corroboration. An accessory after the fact takes no part in the acts which constitute the principal crime. The rule in question recognises the temptation presented to an accused person to buy his own immunity from punishment by offering what is called King's evidence, true or false, against the alleged co-offender. Such a temptation does not exist in the same way in the case of an accessory after the fact, whose interest lies in establishing, if he can, the innocence of the alleged principal offender."

That is not to say that a suitable warning should not be given if it is required by the particular facts of a case, for example where an accessory after the fact does have an incentive to shift blame to the accused.

Mr Tehan submitted that a Faure direction[35] should have been given instead of the accomplice warning. That submission invited attention to R. v. Latina[36], in which Southwell, A.J.A. explained, with the concurrence of Phillips, C.J. and Brooking, J.A., that, properly analysed, Faure's case stands as authority for no new principle. The duty to warn in the manner contemplated by that case arises only where the factors which make the evidence potentially unreliable are so strong that it becomes unsafe to assume that the jury will rely on the arguments of counsel, even if those arguments are repeated and emphasized by the judge. Only then does it become necessary to give a warning which emanates from the judge with the weight of judicial office.[37]

Accordingly we asked Mr Tehan to identify the factors on which he relied. He mentioned eight, not in order of importance:

1. Ms Horstead had been in a relationship with the applicant for some years and that relationship had continued after Ms Grey's death.

2. Ms Horstead had told false stories to the applicant on the telephone with a view to facilitating his prosecution.

3. She had a motive to stay in the United States. She was about to marry Mr Keller but her United States visa had expired.

4. She was using marijuana every night at the time of the offence.

5. Nearly six years had passed between her first statement, which provided an alibi to the applicant, and her later statement that he had confessed the murder to her.

6. The relationship had broken down because of the applicant's affair with Renée, so that the jury might think that she was revengeful.

7. She had a grievance against the applicant because he had failed to send maintenance to support his son A in the United States.

8. Ms Horstead had feared that she herself would be charged and had been given an indemnity by the Crown.

In my opinion all those factors were well within the capacity of the jury to evaluate for themselves.[38] There was no need for a direction with the authority of the judge's office. Generally speaking, such warnings should not be given unless they are required. Given unnecessarily, they tend to blur the division of responsibility between the judge as the arbiter of the law and the jury as the tribunal of fact.[39] Subject to [58] below, neither an accomplice direction nor a Faure warning was required. As it was common ground that an accomplice warning should be given, there was no wrong decision on a question of law at the trial, nor, in my opinion, was there a miscarriage of justice. On the contrary, the applicant had the benefit of a direction that Ms Horstead belonged to a class of witnesses whose evidence was frequently unreliable and that it was dangerous to convict him on her evidence unless it was corroborated.

There is another reason to think that no injustice was done by the direction that was given. I mentioned earlier that R. v. Ready and Manning does not mean that a suitable warning should not be given where the rationale for that decision is absent. It may have been absent here. The Full Court explained that the interest of an accessory after the fact ordinarily lies in establishing the innocence of the alleged principal offender. Ms Horstead, by contrast, was anxious to establish the applicant's guilt and she perceived that she had an interest in doing so. It will be recalled that she attempted to get the applicant to speak about the murder on the telephone because she was conscious that she had perjured herself and was afraid that suspicion might fall on her[40]

. In those circumstances an accomplice warning may not have been so very far from what was required, but I do not decide this ground on that basis, because it is not the way the case was argued.

By the time the applicant was being cross-examined on the 13th day of the trial, the jury were aware that he and Ms Horstead had broken up some time after the murder of Ms Grey and that the reason, or ostensible reason, had been the applicant's affair with Renée. They were not aware of Renée's age. The prosecutor wished to ask questions designed to elicit the fact that she was only 14. He sought a ruling from the judge before doing so, saying:

"My instructions are indeed the evidence of Jean Horstead in the first trial are that the reason why she had cross words with Renée was that Renée was 14 and that he was carrying on with a 14 year old. Now that hasn't come out as such in this trial, but [Defence Counsel] has led from this witness about Horstead's credit as to why she was angry and that they had angry discussion. Now I want to put to him that one of the - one part of the angry discussion with him was that Jean was angry because this girl was 14. Now if he has got any objection to that, he can say that now, otherwise I will just do it. It is clear he asked him about the angry discussions and I want to fill in one of the details which, as I said, Horstead has given sworn evidence about it in the first trial and that is the reason why Horstead was angry."

His Honour ruled that the questions might be asked and that the evidence should not be excluded in the exercise of the Christie discretion[41]. With great respect, I do not think that that ruling can be supported and Mr McArdle found it difficult to do so. In the first place, we are concerned only with Renée's age. The jury already knew about the affair. Her age was not relevant to any issue in the trial. If it was probative at all, it was insufficiently probative.[42] Secondly, evidence cannot be led from one witness solely to bolster the credit of another, even in cross-examination. It is not admissible for that purpose.[43] Thirdly, if, contrary to my view, evidence of Renée's age did have significant probative value, it was outweighed by its prejudicial quality. The jury became aware, in effect, that the applicant had had carnal knowledge of a girl of 14.

The consequences of that error are to be determined in the light of s.568(1) of the Crimes Act, which provides:

"(1) The Court of Appeal on any such appeal against conviction shall allow the appeal if it thinks [1] that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence or [2] that the judgment of the court before which the appellant was convicted should be set aside on the ground of a wrong decision of any question of law or [3] that on any ground there was a miscarriage of justice and in any other case shall dismiss the appeal: Provided that the Court of Appeal may, notwithstanding that it is of opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred."

I have inserted the numbers in square brackets to facilitate reference to the three limbs of the sub-section. Other Australian jurisdictions have similar provisions, ultimately derived from the English Criminal Appeal Act 1907.

The relationship between "miscarriage of justice" in the body of s.568(1) and "substantial miscarriage of justice" in the proviso has occasioned difficulty. There is a valuable review of the authorities in the judgment of Brooking, J.A. in R. v. Gallagher[44]. Four months later the difficulty arose again in R. v. Konstandopoulos[45]. The Court was of opinion that a defective Edwards direction[46] had been given, but it had been argued by the Crown that the proviso should be applied. I concluded that the question whether a substantial miscarriage of justice has actually occurred invites attention to whether there has been a fundamental irregularity or whether, even in the absence of such an irregularity, the appellant has been deprived of a chance which was fairly open to him or her of being acquitted. The question whether there was a miscarriage of justice, i.e. the issue presented by the third limb of the sub-section rather than the proviso, does not invite attention to those issues. It points rather to whether the trial miscarried. One of the multiplicity of ways in which that might occur was an inadequate instruction to a jury as to how they should handle a particular piece of evidence. [47] I held that such a miscarriage had occurred at Konstandopoulos' trial but that he had not been deprived of a chance which was fairly open to him of being acquitted and accordingly the proviso applied. Winneke, P. and Kenny, J.A., with whom I specifically consulted on this point before writing the judgment, concurred.

There have been further authorities since then. One of them was R. v. McLachlan[48]. Applying R. v. Konstandopoulos, I mentioned three reasons why the construction of s.568(1) adopted in that case is to be preferred.[49] They were, first, that to say that "miscarriage" and "substantial miscarriage" in the same sub-section have different meanings accords with the ordinary principles of statutory interpretation; secondly, it also conforms with day-to-day practice whenever a court of criminal appeal says that a ground is made out (other than under the first or second limb of the sub-section) but that the proviso applies; and, thirdly, it avoids the anomaly of saying that the Crown must prove that there was no miscarriage of justice where there was a wrong decision on the admissibility of evidence but that the appellant must prove that there was a miscarriage of justice where there was an inadequate direction concerning the use or scrutiny of evidence. There is no reason, of principle or fairness, why that should be so.

Ground 5 illustrates the anomaly referred to at the end of [63] above that R. v. Konstandopoulos avoids. On one view, the judge's ruling involved a wrong decision on a question of law within the meaning of the second limb of s.568(1). That would be so if the evidence was inadmissible, as I consider it was, and counsel's objection at trial was an objection to its admissibility. On another view, his Honour's ruling involved only a mistaken exercise of the Christie discretion. That may be only a miscarriage of justice within the meaning of the third limb. On the construction of s.568(1) adopted in R. v. Konstandopoulos, it is for the Crown in either event to establish that the proviso applies. The opposite view makes the incidence of the burden of proof depend on the characterization of the error.

When I wrote my judgments in R. v. Konstandopoulos and R. v. McLachlan I believed that there was no authority, binding on this Court, that required a different conclusion. My intention was to cut the Gordian knot of the cases and restore principle to s.568(1). In R. v. McLachlan[50] I drew comfort from the fact that Gleeson, C.J., McHugh, Gummow, Kirby and Callinan, JJ. appeared to have adopted the same approach in Fleming v. R.[51]

Three years later, in Festa v. R.[52], Hayne, J. emphasized that a provision like s.568(1) must be read as a whole so that attention is directed to the substantial merits of the case and not merely to matters of form.[53] His Honour continued[54]:

"Secondly, the proviso to the common form provision can be seen as accepting that a basic premise of the common law is that an accused person is entitled to a trial according to law. For that reason, alone, any departure at trial from what the law requires is a miscarriage of justice. But the proviso recognises that not every departure, at trial, from the proper application of the law warrants setting aside a conviction."

The distinction in the last two sentences is consistent with the view adopted in R. v. Konstandopoulos that "miscarriage of justice" and "substantial miscarriage of justice" address different issues.

Festa v. R. was concerned with the second limb of the Queensland equivalent of s.568(1). The relationship between the third limb and the proviso did not arise. TKWJ v. R.[55] was, by contrast, concerned with the relationship between the third limb of the New South Wales equivalent of the sub-section and the proviso. McHugh, J. expressed conclusions almost diametrically opposed to those that I reached in R. v. Konstandopoulos and R. v. McLachlan. The relevant passage[56] is too long to set out in full. His Honour concluded, reluctantly, that the authorities compelled the view that, in most cases,[57] the proviso has no operation in relation to the third limb and that it is for an appellant who relies on the third limb to show that the irregularity affected, or may have affected, the result of the trial. No other member of the Court dealt with the issue in such direct terms, although there are passages in the judgment of Gaudron, J. that are consistent with McHugh, J.'s view. Notwithstanding Gummow, J.'s agreement with both her Honour and Hayne, J., the ratio is, I think, that there was no miscarriage of justice on any view[58].

I am reinforced in that conclusion by R. v. Soma[59]. Gleeson, C.J., Gummow, Kirby and Hayne, JJ.[60], and Callinan, J. in a separate judgment,[61] clearly distinguished between the Queensland equivalents of the third limb of s.568(1) and the proviso.[62] All the footnoted passages are important, but especially [15] in the joint judgment. In that paragraph their Honours said that the question whether the outcome of the trial may have been different pertained to the proviso but that no question of applying the proviso could arise unless, on the facts of R. v. Soma, the Court of Appeal were first satisfied that there had been a miscarriage of justice within the meaning of the third limb. That affords strong support for the approach adopted in R. v. Konstandopoulos[63]. Their Honours distinguished not only between the two stages of the appellate inquiry but also between the issues presented by the third limb and the proviso.[64]

It is unnecessary to take the matter further in the present case because, even if the burden lies on the Crown to show that the proviso applies, the burden is discharged. Pursuant to his Honour's ruling the prosecutor asked the questions he desired to ask and the applicant admitted that Renée was only 14. He added that she was nearly 15. That evidence was referred to by the judge twice in his charge, first in the course of summarizing the evidence that had been given at the trial and then in the course of summarizing the prosecutor's final address. The prosecutor had said in his address that Ms Horstead eventually got a good excuse to leave the applicant that would not make him suspicious, namely his affair with a 14 year-old girl. It is important to notice that the prosecutor did not use Renée's age as a matter going to the applicant's credit.

The reception of this evidence did not amount to a fundamental irregularity of the kind described in Wilde v. R.[65] and other cases. The question is whether it deprived the applicant of "a real chance of acquittal".[66] Given the weight of the evidence against him and the fact that the evidence elicited as a result of the judge's ruling was not deployed as a matter going to his credit, I am satisfied that the questions and answers about Renée's age did not deprive him of such a chance of acquittal. To take a different view, in the context of this case, would be unrealistic. The jury were not going to believe Ms Horstead or disbelieve the applicant or convict him because of a sexual liaison, even with a child.[67]

Before parting with this ground, there is an aspect of my reasoning that I should expose in case it is an error. Putting fundamental irregularity to one side, there are two expressions that are used to describe cases where the proviso does not apply. One expression refers to the loss of a chance of acquittal, whether a "real chance" or a "chance which was fairly open". The other expression is that the conviction of the appellant was inevitable. It is clear from the authorities that they are different ways of expressing the same test. I have always proceeded on the basis that the proviso may be applied where the wrong decision on a question of law or other irregularity made no difference[68] and that that is all that is meant when it is said that an appellant's conviction was inevitable. It was "inevitable" in the sense that this jury would still have convicted the appellant in the absence of the irregularity, not that he or she would have been convicted by any reasonable jury. In other words, I have not regarded the proviso as inapplicable simply because, for reasons wholly unconnected with the wrong decision or other irregularity, a reasonable jury might have acquitted the appellant or confined the proviso to cases where a verdict of acquittal would be perverse. I have adopted my customary approach in this case, believing it to be normal practice in this State, but I acknowledge that I have been troubled by some statements of high authority. If the test were inevitability, in the sense that any reasonable jury properly instructed would inevitably have reached the same conclusion as this jury, I could not apply the proviso to this case.[69] A new trial would have to be directed.

For these reasons I would dismiss the application for leave to appeal against conviction.

The applicant seeks leave to appeal against sentence on the sole ground that the sentence was manifestly excessive. Mr Tehan supported that ground by reference to the following factors:

1. The applicant was a relatively young man at the time of the offence. He was aged 23. He had no significant previous convictions or findings of guilt.

2. He did not go to Ms Grey's house armed with a weapon and, as the judge accepted, the crime was not premeditated.

3. He had over the years been a good and conscientious worker, who had made a contribution to local community affairs, in particular in the areas of youth and sporting activities.

4. He has a genuine affection for his son A, living in the United States, from whom he will be further separated by a sentence of imprisonment.

Counsel particularly emphasized the non-parole period which, he submitted, was unduly long having regard to the applicant's age and prospects of rehabilitation.

Mr McArdle conceded that the sentence was stern but maintained that it was within the range available to the judge. This had, after all, been the murder of a woman in her own home. She was unwell and her six year-old child was left to discover the body the next morning. It was common ground that there was no evidence of remorse. There could not be, for the applicant continues to assert his innocence and, at the trial, tried once more to cast suspicion on Ian Grey. His instructions were that his confession in the second interview was false. [70]

That deprives him of what would have been a mitigatory factor and bears on his prospects of rehabilitation. He is not to be punished for putting the Crown to its proof or for seeking leave to appeal, but the course he has taken disentitles him to any discount for pleading guilty.

It has often been said that manifest excess admits of little argument. Having regard to the brutality of the crime, evidencing an intention to kill, not just to cause really serious physical injury, and the other factors referred to in [73] above, I do not consider that the sentence was outside the range or that his Honour was bound to fix a shorter non-parole period.

Accordingly I would also dismiss the application for leave to appeal against sentence.

I agree with Callaway, J.A., whose reasons for judgment I have had the considerable benefit of reading in draft.

The Court of Criminal Appeal was established in England by the Criminal Appeal Act 1907. Seven years later, s.4(1) of that Act was introduced in Victoria as s.4(1) of the Criminal Appeal Act 1914. It is now s.568(1) of the Crimes Act 1958. In R. v. Gallagher[71], Brooking, J.A. referred to the frequency with which it had been invoked in this and the other jurisdictions in which it operates. In those circumstances it was, he said, extraordinary that, 90 years after it was first enacted, doubts should exist about its effect.

Since R. v. Gallagher, s.568(1) and its corresponding provisions elsewhere have been further considered. Yet doubt remains. It seems to me that, to the extent that this Court can put those doubts to rest, it should. It is in this context that I record my respectful agreement with that construction of the section which, in R. v. Konstandopoulos[72], this Court adopted.

I also record my agreement, in the present case, with Callaway, J.A., whose reasons for judgment I too have had the considerable benefit of reading in draft.

[1] [2001] VSCA 183 at [24]. See also R. v. Japaljarri [2002] VSCA 154; (2002) 134 A.Crim.R. 261 at [42] and R. v. Brown ([2002] VSCA 207; 2002) 5 V.R. 463 at [32]- [36].

[2] See R. v. Swaffield and Pavic v. R. [1998] HCA 1; (1998) 192 C.L.R. 159 at [69].

[4] Although it was not incumbent upon me to do so, I have watched much of the video of the voir dire. It was more informative than the transcript, but it did not equate with being in court.

[5] I do not, however, perceive the inconsistency that his Honour did between the applicant's assertions (a) that he told Detective Sergeant Thomas that he knew who killed Ms Grey and (b) that Detective Sergeant Thomas told him that his best chance was manslaughter. The link, already apparent before this question, was that Detective Sergeant Thomas did not believe him and implied that no one else would believe him unless he named the killer.

[6] See, especially, the judgment of Toohey, Gaudron and Gummow, JJ. at [69]-[70] and [78].

[7] I adopt this expression from Cornelius v. R. [1936] HCA 25; (1936) 55 C.L.R. 235 at 246, where a similar expression was used in relation to the predecessor of s.149 of the Evidence Act. As to whether a misrepresentation to a person in custody goes to voluntariness or fairness, see McDermott v. R. (1948) 76 C.L.R. 501 at 512 lines 4-6 and 17-22, 515 and 516; R. v. Swaffield and Pavic v. R. at [75] and R. v. Wyatt [1972] VicRp 105; [1972] V.R. 902 at 905 lines 45-50. Plainly, a misrepresentation may go to reliability, its significance depending on all the circumstances including its effect on the accused.

9] This evidence was not led on the voir dire, but the transcript reveals the reasons for that and the judge knew what the defence case would be. Indeed, in one of his answers the applicant said that Ms Horstead knew what was said between them "on the night of my return from Helen's house". I express no opinion on the question whether an accused person may be asked on a voir dire whether an impugned confession was true. See R. v. Semyraha [2000] QCA 303; (2000) 118 A.Crim.R. 1 especially at [5]-[6] and [12].

[10] The test is not whether the question was more likely than not to elicit an untrue confession, but whether there was a real and not remote chance of its doing so, regardless of whether that chance was less or more than 50 per cent. That is the ordinary meaning of "likely" and consistent with the purpose both of s.149 of the Evidence Act and the common law rule. See fn. [ above and ]Boughey v. R. [1986] HCA 29; (1996) 161 C.L.R. 10 at 20-21.

[11] Above at [[] and [].

12] I accept not only Detective Sergeant Thomas's evidence about what the applicant said but also the truth of what the applicant said about his motivation to confess.

[13] Compare R. v. Lars and Ors. (1994) 73 A.Crim.R. 91 at 131 and R. v. McIntyre [2000] NSWCCA 6; (2000) 111 A.Crim.R. 211 at [21].

[14] We were also taken to five passages in the course of the applicant's evidence. They are not within the grounds of appeal, but Mr McArdle raised no objection and I have taken them into account.

[15] At the end of the charge the judge praised both counsel for their "very clear and helpful addresses", which he twice described as "excellent".

[18] See, for example, extract (11) from the transcript set out in the report at 139.

[21] See, for example, extract (vi) from the transcript set out in the report at 216.

[22] Mr Tehan submitted that his Honour's evident disapproval of counsel's conduct would have discredited him in their eyes, but see [[] above and [] below.

[25] Compare R. v. Ev Costa (unreported, Court of Appeal, 2nd April 1996) at 15-16 of the joint judgment.

[26] Compare R. v. Lars and Ors at 132.

[27] Reference was made to R. v. Chairman of General Sessions at Hamilton; ex parte Atterby [1959] VicRp 101; [1959] V.R. 800; R_. v. Mawson_ [1967] VicRp 23; [1967] V.R. 205 at 207-208; Wakeley v. R. and Bartling v. R. [1990] HCA 23; (1990) 64 A.L.J.R. 321; R. v. Cunningham (1992) 61 A.Crim.R. 412; R. v. Mercer (1993) 67 A.Crim.R. 91; R. v. Esposito (1998) 105 A.Crim.R. 27 and R. v. Thompson [2002] NSWCCA 149; (2002) 130 A.Crim.R. 24.

[30] Davies v. Director of Public Prosecutions [1954] A.C. 378 at 400.

[31] R. v. Ready and Manning [1942] VicLawRp 20; [1942] V.L.R. 85; R. v. Carranceja and Asikin (1989) 42 A.Crim.R. 402 at 417; R. v. Gill and Mitchell [2003] VSC 321 at [14].

[32] The authorities were discussed by Heydon, J.A. in R. v. Clark [2001] NSWCCA 494; (2001) 123 A.Crim.R. 506 at [50]- [52].

[33] Mr McArdle suggested that a further reason was that an accessory after the fact was not particeps criminis, but an accessory after the fact was so regarded in Davies v. Director of Public Prosecutions at 400. At common law there was but a single felony in which the principal in the first degree and any accessory before, at or after the fact were participants. Accessories at the fact were later called principals in the second degree. Much depends on the sense in which the expression particeps criminis is used, especially since the abolition of felony and the creation of a distinct offence in s.325. See R. v. Cervelli [1998] 3 V.R. 776 at 786 and R. v. Welsh [1998] VSCA 138; [1999] 2 V.R. 62 at [3]. It has long been recognized that the conduct of an accessory after the fact is, in truth, quite distinct from that of the other participants. Blackstone described it as "an offence of a different species of guilt, principally tending to evade the public justice": 4 Bl.Comm. 3.ii.4.

[35] Director of Public Prosecutions v. Faure [1993] VicRp 87; [1993] 2 V.R. 497.

[36] Unreported, Court of Appeal, 2nd April 1996.

[37] At 10-11. See also R. v. Holt and Merriman (1996) 87 A.Crim.R. 82 at 89.

[38] Sometimes an indemnity would have to be explained, but not here. The issue was adequately explained in the course of the evidence and required no further elaboration with the authority of the judge's office.

[39] Compare R. v. J. (No. 2) [1998] 3 V.R. 602 at 635-636 and Azzopardi v. R. (2001) 205 C.L.R. 50 at [49]-[52].

41] R. v. Christie [1914] A.C. 545.

[42] R. v. Stephenson [1976] VicRp 34; [1976] V.R. 376 at 380-381.

[51] [1998] HCA 68; (1998) 197 C.L.R. 250 at [38]- [39]. In the former paragraph their Honours held that there was not only a wrong decision on a question of law within the meaning of the second limb of the New South Wales equivalent of s.568(1) but also a miscarriage of justice within the meaning of the third limb. In the latter paragraph they considered the application of the proviso to the wrong decision on a question of law but also concluded that "the miscarriage of justice was a substantial one". Having regard to the decision, at the end of [38], that there was a miscarriage of justice within the meaning of the third limb, [39] was unnecessary if "miscarriage of justice" and "substantial miscarriage of justice" meant the same thing. Their Honours' approach conforms with the day-to-day practice to which I referred in R. v. McLachlan at [51]. See also R. v. Soma [2003] HCA 13; (2003) 212 C.L.R. 299, discussed at [[] below

[57] His Honour's references to "many cases" in [71] must be read in the light of [72]-[73].

[58] See Gleeson, C.J. at [17] and, especially, Hayne, J. at [102] and [115] and, in relation to Gummow, J.'s agreement with Gaudron, J., Cassell & Co. Ltd. v. Broome [1972] UKHL 3; [1972] A.C. 1027 at 1087 B-C.

[62] The body of s.568(1) appears in s.668E(1) of the Criminal Code. The proviso is found in s.668E(1A).

[63] McHugh, J. decided the case on a different basis: see [79]-[82].

[67] I do not forget that this was the second occasion when criminal activity on the part of the applicant came out in evidence or that this evidence came almost at the end of the trial.

[68] Compare Arulthilakan v. R. and Mkoka v. R. [2003] HCA 74; (2003) 78 A.L.J.R. 257 at [23].

[69] Another jury might have taken a different view of Ms Horstead's evidence or the reliability of the applicant's confession, for this was a case that largely turned on the credibility of the two principal witnesses.

Criminal law - Appeal against conviction - Grounds on which appeal may be allowed - "Miscarriage of justice" and "substantial miscarriage of justice" - Criterion for application of proviso - R. v. Konstandopoulos [1998] 4 V.R. 381, R. v. McLachlan [1999] VSCA 127; [1999] 2 V.R. 553, Festa v. R. [2001] HCA 72; (2001) 208 C.L.R. 593, TKWJ v. R. [2002] HCA 46; (2002) 212 C.L.R. 124 and R. v. Soma [2003] HCA 13; (2003) 212 C.L.R. 299 considered - Crimes Act 1958, s.568(1).

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