JURY - Empanelment - Whether constitution of jury vitiated by order of judge that members of first, discharged, jury return to panel whence second jury subsequently selected - Whether selection of panel corrupted by informant assisting in handing out of documents - R v Gallagher [1998] 2 VR 671, considered; Juries Act 2000, s 30(4); Juries Regulations 2001, regs 5 and 10.

EVIDENCE - Hearsay - Whether evidence of co-offenders' out-of-court statements admissible as evidence of acts in furtherance of joint criminal enterprise - Whether evidence ought to have been excluded in exercise of discretion - Tripodi v R [1961] HCA 22; (1961) 104 CLR 1; Ahern v R [1988] HCA 39; (1988) 165 CLR 87, applied; R v Christie [1914] AC 545, referred to.

EVIDENCE - Unreliable witness warnings - Whether judge failed to warn sufficiently of risks of relying on evidence of co-offenders - R v Strawhorn [2008] VSCA 101; (2008) 19 VR 101, applied; DPP (Vic) v Faure [1993] VicRp 87; [1993] 2 VR 497; Jenkins v R [2004] HCA 57; (2004) 79 ALJR 252, referred to.

MURDER - Statutory felony murder - Common purpose - Manslaughter - Whether applicant or co-offender shot deceased - Whether sufficient case of manslaughter to be left to jury - Whether applicant believed his and co-offender's weapons to be unloaded - Whether applicant foresaw possibility that other weapons could be fired - R v Galas [2007] VSCA 304; (2007) 18 VR 205; Brown v R [2006] NSWCCA 395, applied; R v Vandine [1970] 1 NSWR 252; Johns v R [1980] HCA 3; (1980) 143 CLR 108, considered; Gilbert v R (2000) 201 CLR 414; Gillard v R [2003] HCA 64; (2003) 219 CLR 1; Dupas v R [2010] HCA 20; (2010) 241 CLR, 237, distinguished - Crimes Act 1958 (Vic), s 3A.

CONSTITUTIONAL LAW - Unlawfully obtained evidence - Documentary evidence seized under warrant issued on faith of affidavit not sworn or declared in accordance with ss 100 and 103 of Evidence Act 1958 - Whether evidence admissible - Whether s 5 of Evidence (Miscellaneous Provisions) Amendment (Affidavits) Act 2012 inconsistent with Charter right to fair trial - Whether repugnant to Kable principle - Whether requiring court to turn blind eye to police impropriety - Momcilovic v R (2011) 245 CLR 1; Nicholas v R [1998] HCA 9; (1998) 193 CLR 173, applied; Kable v DPP (NSW) [1996] HCA 24; (1996) 189 CLR 51; Fardon v AG (Qld) [2004] HCA 46; (2004) 223 CLR 575, distinguished; Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54; Ridgeway v R [1995] HCA 66; (1995) 184 CLR 19, considered - Evidence (Miscellaneous Provisions) Amendment (Affidavits) Act 2012, s 5; Charter of Human Rights and Responsibilities Act 2006, s 24.

TRIAL - Fair trial - Whether Crown in breach of obligation to call witness in interests of justice - Whether witness so lacking in credibility as to justify prosecutor's decision not to call him - Diehm & Anor v R [2013] HCA 42; (2013) 303 ALR 42, applied; R v Apostilides [1984] HCA 38; (1984) 154 CLR 563, referred to.

AGGREGATE OF ERRORS - Whether judge's refusal of multiple applications for discharge of jury productive of miscarriage of justice - R v Boland [1974] VicRp 100; [1974] VR 849; Crofts v R [1996] HCA 22; (1996) 186 CLR 427, applied.

DENIAL OF DUE PROCESS - Whether judge's refusal to grant applicant access to sections of subpoenaed documents productive of miscarriage of justice - Commissioner of Australian Federal Police v Magistrates' Court of Victoria & Ors [2011] VSC 3; Woolworths Ltd v Svajcer [2013] VSCA 270, referred to.

VERDICT - Whether unreasonable - Whether evidence sufficient to sustain finding of guilt beyond reasonable doubt.

SENTENCING - Validity of proceedings - Double punishment - Whether judge made sufficient allowance for criminality common to murder and armed robbery - Whether judge erred in taking into account quashed or spent conviction - Pearce v R [1998] HCA 57; (1998) 194 CLR 610, applied; Dietrich v R [1992] HCA 57; (1992) 177 CLR 292, referred to.

Applications for leave to appeal against conviction and sentence dismissed.

For the Intervenor (Attorney-General's Department):

1 Following a trial in the Criminal Division of almost five months' duration, on 12 June 2009 the applicant was found guilty of the murder of Erwin Kastenberger in the course of an armed robbery committed at Blackburn North Shopping Centre on 8 March 2005. After a plea in mitigation of penalty, on 13 November 2009, he was sentenced for those offences as follows:

[s 3 Crimes Act 1958 (Vic)]

[s 75A Crimes Act 1958 (Vic)]

[s 75A(2) Crimes Act 1958 (Vic)]

Sentenced as a serious and violent offender pursuant to s 6F of the Sentencing Act 1991 (Vic)

2 The applicant now seeks leave to appeal against conviction and sentence. The application has proceeded by way of an application to adduce fresh evidence which was heard on 19 March 2013 and the hearing of the remainder of the application for leave to appeal over a period of three days between 17 and 19 March 2014. By way of explanation, the reason it has taken so long to deal with the application is because of the large number of grounds which the applicant from time to time propounded and then amended, and in some cases amended again, and the time which he requested and was afforded to formulate written arguments and summaries which he wished the court to take into account.

3 As the result of a process of amendment and rationalisation over the last 12 months, the grounds of appeal as finally propounded are not as numerous or far reaching as they were at some points during the interlocutory stages of the proceeding. As will be seen, however, even as finally propounded, they include questions as diverse as an application to adduce what was alleged to be fresh evidence, the constitutionality of the Evidence (Miscellaneous Provisions) Act 1958, the nature and scope of the right to a fair trial afforded by s 24 of the Charter of Human Rights and Responsibilities Act 2006, and a number of more conventional grounds of appeal against conviction and sentence.

4 For the reasons which follow, we do not think any of the grounds of appeal is persuasive.

5 On 8 March 2005 at approximately 1:00 pm, an armed robbery was committed by two men outside the Commonwealth Bank within the Blackburn North Shopping Centre in the eastern suburbs of Melbourne. The targets of the robbery were Mr Kastenberger and his colleague, Robert Crowe, who were Chubb armoured van security guards conveying a large quantity of cash from their Chubb armoured van to the bank.

6 Each of the armed robbers wore a balaclava and carried a handgun. One of the armed robbers wore a yellow fluorescent vest and the other wore an orange fluorescent vest. Most of the eye-witnesses described the robber wearing the orange vest as the taller of the two and the one wearing the yellow vest as shorter. That evidence is discussed in more detail below. For ease of reference, we describe the two robbers as the 'taller' robber and the 'shorter' robber in what follows.

7 Mr Kastenberger had the Chubb bag containing the cash and the taller of the armed robbers yelled at him to get on the ground. Mr Kastenberger threw the bag in the general direction of the robbers and the shorter robber went to get it. The taller armed robber then struck Mr Kastenberger on the head with the firearm which the armed robber was carrying and, after Mr Kastenberger had been driven to the floor, fired a shot into Mr Kastenberger's right shoulder which severed his pulmonary artery and caused his death. The two armed robbers then fled with the shorter armed robber carrying the cash.

8 It was not in issue at trial that Mr Kastenberger was murdered. It was also not in issue that Leonard Ryan ('Ryan') was one of the armed robbers. The Crown case was that the applicant was the taller armed robber who shot and killed Mr Kastenberger. A third offender, Sean Hogan ('Hogan'), assisted the two armed robbers by alerting Ryan by mobile phone when the security guards were approaching the shopping centre.

9 The defence case was that the applicant was not one of the armed robbers or at least that the jury could not be satisfied beyond reasonable doubt that he was.

10 The issue for the jury was, therefore, whether the applicant was the armed robber who shot and killed Mr Kastenberger.

11 The Crown case centred on the evidence of Ryan (and to a lesser extent the evidence of Hogan) and objective evidence which the Crown relied upon as supporting those witnesses' testimony. The judge ruled that some of the objective evidence was capable of corroborating their testimony.

12 Ryan had earlier pleaded guilty to the armed robbery and to conspiracy to commit another armed robbery and was sentenced therefor to a total effective sentence of eight years' imprisonment with a non-parole period of six years. Before being sentenced, he undertook to give evidence against the applicant. Ryan then gave evidence at the applicant's trial that he and the applicant committed the armed robbery with the assistance of Hogan waiting outside, and that the applicant shot Mr Kastenberger during the course of it.

13 Hogan gave evidence at trial that he had waited in a stolen white van (OIJ 090) outside the shopping centre for the Chubb security van to arrive. Ryan, and a person whom Hogan did not know, then pulled up in a second stolen van. That person approached Hogan's van and gave him a scanner. Hogan said that Ryan also produced some lighter fluid with which the vans were later to be destroyed. Then, when the Chubb security van arrived, Hogan telephoned Ryan on a stolen mobile telephone and, after alerting Ryan to the arrival of the security van, Hogan drove away keeping the phone call connected. He claimed that he later heard yelling and screaming over the phone connection and then a gunshot.

(i) The relationship between Ryan and the applicant

14 Among other connecting factors, the Crown relied on evidence of a close relationship between Ryan and the applicant to show that Ryan's testimony against the applicant was unlikely to be an attempt to implicate him falsely.

15 Ryan deposed that the motive for the armed robbery was to obtain money to purchase a business, Precision Design Australia ('PDA'), in which the applicant was interested and in which in turn the applicant had offered Ryan employment with fringe benefits. Ryan and Hogan deposed that the armed robbery was to occur on 1 March 2005. According to Ryan, however, it had to be postponed when the applicant failed to attend at the pre-arranged meeting place that day. Ryan said that he met the applicant later on 1 March 2005 and gave him a 9 mm Browning handgun without any ammunition.

16 In the days leading up to the armed robbery, Ryan and the applicant went to two car rental firms, Europcar and Hertz. On the first occasion, on 28 February 2005, Ryan and the applicant hired a Ford Falcon sedan (SRN 852) from Europcar and paid for it using the applicant's Mastercard. Ryan said that it had been intended to use the Ford as a secondary getaway vehicle in the armed robbery planned for 1 March 2005. The car was returned to Europcar on 2 March 2005.

17 On 7 March 2005, Ryan and the applicant went to Hertz in Franklin Street in the city and the applicant hired a Nissan Maxima (TGX 223) and paid for it using his Mastercard. Initially, the Maxima was hired for only one day to be used as a secondary getaway vehicle on 8 March 2005. But the hire was later extended for a further three days. The car was returned to Hertz on 11 March 2005.[1]

18 Hogan deposed that Ryan gave him a piece of paper on which was written the name of a street in Kew, a registration number, 'OIJ 090', and the words 'white van'. Hogan said that on 8 March 2005 he went to the street in Kew and collected the van, which was stolen. From there, he drove it to the Blackburn North Shopping Centre where the armed robbery was to take place and waited to give a pre-arranged signal to Ryan when the guards arrived.

19 Ryan said that, after receiving the signal from Hogan that the guards had arrived, Ryan and the applicant entered the shopping centre through an entrance near some toilets. Both were wearing balaclavas, fluorescent tops, tracksuit pants and gloves, and each had a firearm. According to Ryan, he was carrying a .38 revolver and the applicant had the Browning 9 mm pistol which Ryan had given him on 1 March 2005. Ryan said that, as they approached the toilets, they confronted a person (Tony Laria) whom the applicant ordered to get on the floor. Then they confronted the two security guards as has previously been explained.

20 A number of eye-witnesses (Crowe, Duniam, Faulisi, Werninghaus, Barry, Grant, Laria, Simms and Spencer) gave evidence of what they saw of Mr Kastenberger's shooting.

21 Ryan said that, as he and the applicant left the shopping centre, they placed a piece of wood against the exit door to prevent anyone from following them. He claimed that the piece of wood had been left by Hogan for him and he had taken it to the shopping centre for that purpose. According to Ryan, he and the applicant left the shopping centre in a second stolen van (EWD 771) and later discarded it in Box Hill. At that point, they transferred to the Nissan Maxima hire car (TGX 223) and drove it to a park in Footscray. There, they disposed of stolen licence plates which they had fitted to the Maxima for the purposes of the armed robbery. Ryan said that the applicant also purchased some envelopes from Officeworks in the Williamstown Road area and the money was counted. A sum of $20,000 was placed into one of the envelopes for Hogan. The applicant retained the balance of the cash of approximately $142,000.

22 While there, the applicant told Ryan that he had lost his balaclava (described by Ryan as sheer like silk and open around the eyes then stitched up so you could not really see the person's eyes) and that he would have to go back to check the van in Box Hill. Before doing that, however, they both drove in the Maxima to Europcar in Hoppers Crossing. The applicant there hired a blue Commodore station wagon (RXG 298) for Ryan to drive to Sydney. At that point, they separated, the applicant taking the Maxima and Ryan taking the Commodore.

23 Ryan said that, by mistake, he left the envelope containing Hogan's $20,000 under one of the seats in the Maxima. When he realised what he had done, he endeavoured to contact the applicant and alert him to the problem. Ryan said, however, that he could not get in contact with the applicant and, therefore, he went to the vicinity of Hertz Rental premises in Franklin Street, Melbourne to see if the applicant had returned the Maxima to Hertz at that location. While there, Ryan attempted to call the applicant by telephone. Documentary evidence of a telephone call from a pay phone at 67 Franklin Street at 5:45 pm on 8 March 2005 to a telephone connected with the applicant was tendered at trial. In cross-examination, Ryan also gave evidence that, while he waited at Hertz in Franklin Street, he saw Andrew Keenan (the brother of an acquaintance, Darren Keenan) in Franklin Street. Andrew Keenan gave evidence that he had seen Ryan one day in the vicinity of his work place at 50 Franklin Street but he could not recall the date.[2]

24 Ryan said that he again attempted unsuccessfully to contact the applicant by phone and ultimately went back to the applicant's offices in Exchange Towers in Little Collins Street in the city. He found that the applicant was not there but that the applicant's van (PLN 189) was parked in a lane nearby. Ryan said that he went and waited at the nearby Menzies Tavern. He won a jackpot prize on one of the gaming machines at 6:29 pm. The manager of the tavern was called as a witness to confirm that Ryan won that prize. After leaving the tavern Ryan left a note under the windscreen wiper of the PLN van for the applicant to contact him.

25 Telephone records tendered at trial showed that a call was made from the Menzies Tavern to the applicant's mobile phone at 7:04 pm and that at 7:12 pm a call was made from a public phone at the intersection of King and Collins Streets to Hogan's mobile phone.

26 Ryan said that he telephoned Hogan to come to the city to collect his money. Ryan and Hogan met at Crown Casino and then drove in the Commodore to the vicinity of the applicant's offices in the city. They found that the van on which Ryan had left the note was gone.[3] Ryan and Hogan therefore drove in the Commodore to the applicant's home in Newport.

27 Ryan said that when they got to the applicant's home, they could not see the applicant's van, and so they went to get something to eat before coming back later. Ryan said that when they got back to the applicant's house, he parked approximately 70 metres away and left Hogan in the Commodore while he walked up to the house. According to Ryan, he argued with the applicant out on the nature strip. Brent James ('James') and his partner, Leonie Stevens ('Stevens') gave evidence of having seen Ryan and the applicant arguing on the nature strip. Ryan said that the applicant directed him to destroy the two vans used in the armed robbery and he told Ryan that, once that had been done, Ryan could obtain the $20,000 cash for Hogan from the Maxima from an address in the Docklands area. The applicant said that the Maxima could be found there with a key on the exhaust pipe.

28 Ryan returned to the Commodore and told Hogan that everything was sorted out. Then they drove in the Commodore to the locations in the eastern suburbs where the two stolen vans had been abandoned. The Commodore was detected going under the tollgate between the Footscray Road and Racecourse Road exits heading north over the Bolte Bridge at approximately 10:54 pm. After travelling east, Ryan set alight both vans with the lighter fluid. The van in Greensborough (OIJ 090) was completely destroyed and the van in Box Hill (EWD 771) was partially damaged. After that, Ryan and Hogan drove to Docklands and Ryan obtained the envelope containing the $20,000 from the Maxima and gave it to Hogan. From there, Ryan drove directly on to Sydney.

(vii) Records of use of Linton/Larkins phones (phones purchased in false names and used for the armed robbery)

29 On 1 March 2005 and 8 March 2005, Ryan and Hogan communicated by means of two mobile telephones which had been purchased in false names. The Crown relied on the call charge records for those phones to support Ryan's and Hogan's testimony.

30 The Crown also tendered call charge records of the applicant's mobile telephone service to show that he took no calls between 9:35 am and 7:32 pm on 8 March 2005 and to establish that, on the evening of 8 March 2005, an unanswered call was made from a payphone in Franklin Street and from the Menzies Tavern to telephones connected with the applicant.

31 Call charge records of calls between Ryan and the applicant leading up to 28 February 2005 were tendered as support of Ryan's evidence of his close relationship with the applicant; and call charge records of the applicant's office telephone service were relied on as supporting James's testimony (referred to below) that the applicant was not in the applicant's office in Exchange Towers on 8 March 2005 while James was there.

32 Ryan said that, sometime after the armed robbery, he met the applicant at the Australis Plaza in the city and they discussed the shooting. According to Ryan, he put it to the applicant that they had agreed in advance of the robbery that their guns would not be loaded. Ryan said that the applicant responded to the effect that he should keep his mouth shut and deal with it. Ryan also said that he gave the applicant one of two mobile telephones which Ryan had purchased in false names, so they could contact each other. One of those phones was later located by police at Ryan's house and the other at the applicant's home.

33 James was employed by the applicant during the latter part of 2004 and frequently visited the applicant at his office in Exchange Towers. James had a history of car theft and he said that, in the lead up to 8 March 2005, the applicant asked him to obtain a white van. The applicant did not say why he wanted the van.[4]

34 James also deposed that he was working in the applicant's office on 1 and 8 March 2005. He said that on 8 March 2005, he was the only person in the office between the hours of 11:30 am and 3:30-4:00 pm and that the applicant's unannounced absence at that time was out of the ordinary.[5] The applicant's primary mobile was left in the office on 8 March 2005 and it rang throughout the day.

35 James said that on the evening of 8 March 2005, the applicant called him and insisted that he come over to the applicant's house. James and Stevens did so and they observed Ryan arguing with the applicant on the nature strip.[6]

36 James said that, sometime after 8 March 2005, the applicant drove him to a car park in the Docklands area and showed him a Maxima rental vehicle and gave him the keys. He said that he was allowed to keep the vehicle for the next 48 hours.

37 James said that the applicant also showed him a storage locker he maintained at a Fort Knox storage facility in West Melbourne and that, after the applicant's arrest, James visited the storage locker on 12 May 2005 and helped to clear it out.

38 The applicant admitted making a number of cash payments of over $26,000 shortly after 8 March 2005. The payments were made in notes of large denomination and the Crown contended that the money had no discernible source from the applicant's bank accounts.[7]

(xii) Evidence that the applicant went to book flights on 9 March 2005

39 The Crown also relied on evidence, as evidence of attempted flight, that on 8 March 2005 the applicant went to Flight Centre in Queen Street, Melbourne and discussed booking a flight out of Australia. He said that he needed to leave within the week but had to sort out a passport. The applicant said that he wanted the ticket immediately and that he did not care what the airline was. In the following days, Flight Centre booked the applicant on a flight leaving Australia on 16 March 2005 returning on 8 April 2005 but the booking was later cancelled and a part-refund was paid. The Crown contended that the urgent nature of the request was demonstrative of consciousness of guilt.[8]

(xiii) Evidence relating to a Fort Knox storage locker

40 On 9 March 2005, the applicant hired a locker at the Fort Knox storage facility in West Melbourne for a term of 12 months. On 10 May 2005, the applicant and Ryan were observed getting out of a van (TIR 850) at the storage facility, each carrying a sports style bag, and the applicant was observed accessing his locker. On 11 May 2005, police searched the locker under warrant and seized a number of items which were tendered in evidence. They included a backpack containing a red beanie on which there was DNA matching the applicant's DNA and a receipt for a balaclava purchased from Bike Barn Motorcycles on 31 January 2005.

41 Ryan gave evidence that the applicant told him that he had purchased the balaclava which he used in the armed robbery from a bike store in town and Ryan thought that the name of the bike store might be 'Peter Stevens'.[9]

42 The applicant did not give evidence or call any evidence. Nor was there any record of interview. His case, which was put by defence counsel in cross-examination of Crown witnesses and in final address, was that the applicant had been falsely accused. Defence counsel contended that the applicant did not participate in the armed robbery at Blackburn North Shopping Centre on 8 March 2005. He was not there and so did not shoot Mr Kastenberger. The second offender at the armed robbery was somebody other than the applicant. Ryan was lying when he said the applicant was his co-offender and Ryan was not a credible witness. The police investigation was inadequate and evidence had been fabricated to incriminate the applicant. The applicant did not argue with James at the applicant's home on the evening of 8 March 2005. The applicant did not instruct Ryan to burn any vans, and he did not tell Ryan to collect any money from the Maxima in the Docklands area.

43 It was further contended on behalf of the applicant that Hogan was an unreliable witness. James's evidence was also unreliable in important respects and in conflict with Ryan's evidence. No relevant conclusions could be drawn from the cash transactions relied on by the prosecution.

Application for leave to appeal against conviction

Ground 1 - The application to admit new/fresh evidence

44 By way of a first ground of appeal, the applicant sought to adduce evidence of Helmut Kirsch ('Kirsch'), who did not give evidence at trial but was referred to throughout the trial as Middap, in order to establish that the applicant's conviction was a miscarriage of justice. Counsel for the applicant argued that Kirsch's evidence[11] raises a reasonable doubt as to whether the applicant was guilty of murder inasmuch as it indicated that another man, Helmut Staudacher (also known as Peter Brent James being the Brent James we have referred to above) was involved in the armed robbery and may have been the man involved in the shooting of Mr Kastenberger. As has been noticed, James gave evidence at trial but he later committed suicide in 2011.

45 For present purposes, Kirsch's evidence is contained in his:

(a) first affidavit sworn on 10 March 2012 and filed in this appeal;

(b) second affidavit sworn on 7 February 2013 and filed in this appeal; and

(c) oral evidence given in amplification of his second affidavit on 19 March 2013.

46 Prior to giving oral evidence, Kirsch sought a certificate under s 128 of the Evidence Act 2008. The certificate was granted on the basis that his evidence about specified meetings with James, at which various disclosures were made and firearms were produced, and about advice Kirsch gave to James, in relation to his answers to questions he was required to answer by the Chief Examiner, might expose Kirsch to prosecution for assisting an offender, or as an accessory after the fact to murder, or prosecution for firearms offences.

47 The Crown contended that much of Kirsch's evidence was inadmissible hearsay and that, even if this were not the case, it should not be admitted as fresh or new evidence. The Court received the affidavit evidence and permitted Kirsch to give evidence at a preliminary hearing, on the basis that the admissibility of his evidence would be determined subsequently.[12]

48 Evidence which was not led at trial will not be regarded as a sufficient ground for appeal unless the absence of the evidence at trial resulted in a miscarriage of justice.[13]

49 In deciding whether there has been a miscarriage of justice a distinction is generally made between 'fresh' evidence, that is evidence which was not available or could not have been relied on at the trial by an accused acting with reasonable diligence,[14] and 'new' evidence, that is evidence which could have been called at the trial but was not. Reflecting the adversarial nature of a criminal trial, a higher bar applies to the admission of evidence which the accused could have called at the trial. As Kirby J said in R v Abou-Chabake:

the concept of a miscarriage of justice is not an abstract investigation of truth ... It is an investigation in the context of the adversarial nature of a criminal trial. Where deliberate tactical decisions are made on the part of the accused as to the evidence that should or should not be called, and the issues that should or should not be pursued, there is nothing unfair, and there will be no miscarriage, in holding an accused to such decisions, even though it is conceivable that other decisions or something else may have worked rather better.[15]

50 If admissible evidence persuades the Court that there has been a miscarriage of justice because the appellant was innocent, or there is a reasonable doubt as to his or her guilt, it will quash the conviction and order entry of a verdict of acquittal or a new trial. That is the case whether the evidence is characterised as 'fresh' or only 'new'.[16]

51 If the Court is not persuaded of either of those matters, but the evidence is 'fresh' and there is a significant possibility that the failure to receive it could result in the maintenance of an unfair conviction, the verdict will be set aside because there would be a miscarriage of justice[17] if it were permitted to stand.

52 In Gallagher v The Queen,[18] Gibbs CJ said:

The authorities disclose three main considerations which will guide a Court of Criminal Appeal in deciding whether a miscarriage of justice has occurred because evidence now available was not led at the trial. The first of these, that the conviction will not usually be set aside if the evidence relied on could with reasonable diligence have been produced by the accused at the trial, is satisfied in the present case, and need not be discussed, although it should be noted that this is not a universal and inflexible requirement: the strength of the fresh evidence may in some cases be such as to justify interference with the verdict, even though that evidence might have been discovered before the trial. Two other matters that should be taken into consideration are whether the evidence is apparently credible (or at least capable of belief) and whether, if believed, the evidence might reasonably have led the jury to return a different verdict. Although I have stated the matters in that way, it will be seen that there has been some difference of expression, if not of opinion, in the judicial discussion of these questions. The combined effect of the two considerations was stated by Rich and Dixon JJ in Craig v The King,[19] as follows:

A Court of Criminal Appeal has thrown upon it some responsibility of examining the probative value of the fresh evidence. It cannot be said that a miscarriage has occurred unless the fresh evidence has cogency and plausibility as well as relevancy. The fresh evidence must, we think, be of such a character that, if considered in combination with the evidence already given upon the trial the result ought in the minds of reasonable men to be affected. Such evidence should be calculated at least to remove the certainty of the prisoner's guilt which the former evidence produced. But in judging of the weight of the fresh testimony the probative force and the nature of the evidence already adduced at the trial must be a matter of great importance.

Perhaps no more elaborate statement of the position can usefully be made.[20]

53 In Mickelberg v The Queen,[21] Toohey and Gaudron JJ said:

There is no very precise formulation of the quality which must attach to fresh evidence before it will ground a successful appeal. It has been said that it must be 'credible', 'cogent', 'relevant', 'plausible': see, e.g., Gallagher;[22] Craig v The King;[23] Ratten;[24] Lawless.[25] In essence, the fresh evidence must be such that, when viewed in combination with the evidence given at trial, it can be said that the jury would have been likely to entertain a reasonable doubt about the guilt of the accused if all the evidence had been before it (Gallagher,[26] per Brennan J) or, if there be a practical difference, that there is 'a significant possibility that the jury, acting reasonably, would have acquitted the [accused]' (Gallagher,[27] per Gibbs CJ and per Mason and Deane JJ.[28]).[29]

54 In summary, in R v Nguyen Kenny JA said that ordinarily a Court would not be satisfied that a fresh evidence ground was made out unless:

(b) the evidence is relevant and otherwise admissible;

(c) the evidence is apparently credible (or at least capable of belief) and;

(d) there is a significant possibility (or maybe a likelihood) that the evidence, if believed, would have led the jury, acting reasonably, to acquit the applicant if the evidence had been before the trial: see Gallagher at 399, 402, 410, 421 and Mickelberg at 273, 288, 301. (If there is any practical difference between a test expressed in terms of 'a significant possibility' and a test expressed in terms of a 'likelihood' none has thus far been suggested; for it has been said that 'likelihood' is no more than a 'substantial - a 'real and not remote' - chance regardless of whether it is less or more than 50 per cent'.[30]

55 Where an appellant seeks to rely on fresh evidence

the Court is concerned with the question of what effect the ... evidence would have had on the jury at the trial under appeal had that evidence been placed before it.[31]

56 In considering whether there has been a miscarriage of justice the Court will consider any admissible new or fresh evidence in the context of the whole of the evidence.

57 Kirsch is a man who well understands the process of giving evidence and the significance of perjury. In his affidavit he said:

1. I am a qualified legal executive and hold sufficient academic and professional experience for admission as a fellow of the Institute of Legal Executives. I have undertaken both post and undergraduate studies and hold inter alia, the Degree Diploma in Legal Practice and Certificate Business Studies (Law). During my engagement as a Managing Law Clerk I have instructed and have had the care and conduct of numerous trials and pleas in the Supreme, County and Magistrates Courts in a range of matters including murder, armed robbery and other serious indictable offences.

58 It is convenient to summarise Kirsch's evidence by initial reference to the framework of his second affidavit and in so doing to refer back where relevant to his first affidavit and forward to his oral evidence.

59 Kirsch described his relationship with James as follows:

1. I first met Helmet STAUDACKER [sic] in or about 1983. I had an intimate relationship with him from that time until about 2009.
2. After our intimate relationship ceased, we remained close personal friends until his death by suicide in about 2011.
3. Over the course of our relationship and close friendship, I was STAUDACKER's confidant. He confided much of his personal life to me over that time, including at times his criminal activities, his drug use and other personal issues.
4. On a number of occasions I assisted him with defending criminal offences with which he was charged over the years from 1983 onwards, including armed robberies. This was in the capacity as Managing Clerk of Yianoulatos Lawyers. I am not admitted to practice as a lawyer, although I am academically qualified.
5. On the basis of my past involvement with STAUDACKER, I know that STAUDACKER had participated in a number of armed robberies during that time, including as a 'get-away driver'. He was a career armed robber. His prior criminal history is evidence of that fact.
6. In essence, I was STAUDACKER'S closest friend over 25 years. He turned to me for personal and professional advice when he needed it, as did many other criminally active individuals.

60 Kirsch then described meeting with James and Ryan on or about 19 June 2005:

1. On or about the evening of 19 June 2005, STAUDACKER telephoned me and asked me to meet him at the North Melbourne football oval ('the oval') as soon as possible.
2. Prior to that evening, STAUDACKER had called me and asked me to meet him at this same football oval on a number of occasions over the years seeking counsel and advice; including once in about 1995 when he was involved in an armed robbery; and once in about 1997 when he was involved in a separate armed robbery with Brett MASTON.
3. On both of those occasions, STAUDACKER was in the company of another person, whom it was apparent was a co-offender in the offence for which he sought advice.
4. Sometime around midnight, I arrived at the North Melbourne football oval and met with STAUDACKER. Two other males were with him. I had never met either of the other males before. I now know one of these males to be Leonard RYAN. I do not know the identity of the other male and did not meet again after that night.
5. STAUDACKER and I then had a conversation, away from RYAN and the other male.
6. To the best of my recollection, that conversation went as follows:

STAUDACKER:

'Something big has happened, I'm in trouble.'

KIRSCH:

'Don't tell me what happened, but tell me if you were directly involved. Does it concern the other two?'

STAUDACKER:

Nodding and said, 'My mate needs a place to stay for a short while, he needs to stay off the radar.' (Pointing to RYAN.)

KIRSCH:

'OK, call me tomorrow.'

1. I was at the oval for about half an hour. I then left without saying anything further either to RYAN or the other male.
2. Nothing else of substance was said to me on that occasion about which I can give evidence.

61 This conversation amplified but is not inconsistent with [6] and [7] of the first affidavit describing the same events. It can be seen that it does not describe any affirmative answer to the question, 'tell me if you were directly involved?' Rather, it attributes nodding and reference to Ryan following the enquiry, 'Does it concern the other two?'

62 Kirsch then described meeting with James and Ryan on or about 20 June 2005:

1. The following day, on or about 20 June 2005, STAUDACKER telephoned me and we agreed to meet again at the oval.
2. Sometime in the late afternoon on that day, I went to the oval and met STAUDACKER. This time he was with only RYAN.
3. To the best of my recollection, that conversation went as follows:

KIRSCH:

'I need to know what I'm getting myself into.'

STAUDACKER:

'It's about the Chubb truck shit.'

1. I had read about the robbery and subsequent shooting of a Chubb security guard in the media.
2. STAUDACKER in the presence of RYAN said to me that RYAN was concerned that the police had been carrying out raids on various premises and that the police were after him and wanted to kill him, and that RYAN was in fear for his life.
3. I then had a further conversation with STAUDACKER to the best of my recollection as follows:

KIRSCH:

'If RYAN goes to the police, how will that affect you?'

STAUDACKER:

'I'll be OK.'

KIRSCH:

'Are you sure?'

STAUDACKER:

'Yes.'

1. My concern was that RYAN would implicate STAUDACKER if he surrendered to the police.
2. STAUDACKER did not say any anything [sic] more about the matter on this occasion. RYAN appeared to me to be nervous.
3. RYAN then said to me words to the following effect:

'I want to square the matter up' and 'I'm scared.'

1. I understood this to mean that RYAN wanted to hand himself in to police but was fearful. It was peculiar that RYAN did not ask me about bail or the course of the criminal process. I formed the belief, based on my past experiences and what RYAN did not ask me about, that RYAN had already been in contact with the police and was looking for assistance with his surrender.
2. I was not interested in assisting RYAN in any further way than referring him to a solicitor.
3. However, I agreed to help STAUDACKER. I handed to STAUDACKER a set of keys and the alarm code to a premises located at 600 Sydney Road, Coburg, Victoria, which was an empty hostel that was undergoing renovations at the time. STAUDACKER had been there before.
4. I told STAUDACKER that he and RYAN could use the hostel for a week or so.
5. Nothing else of substance was said to me on that occasion about which I can give evidence.

63 Paragraphs [26]-[30] are odds with [8] of the first affidavit:

1. The following day STAUDACKER and I met at the North Melbourne Football oval. This time only a male person whom I now know to be RYAN was also in attendance. I said I can help but wanted to know what I was getting myself into and what the matter concerned was. STAUDACKER indicated that he was involved with the 'Chubb Truck shit'. He did not offer any more details and I did not press the matter further. He was clearly nervous and I thought at the time that he might have been scared of or pressured by RYAN.

64 Note in particular the statement in the first affidavit, 'He did not offer any more details and I did not press the matter further'. Conversely, [26], [27] and [30] of the second affidavit now allege conversations of substance.

65 Further, whereas the first affidavit includes the statement that James 'indicated that he was involved with the Chubb Truck shit',[32] the second affidavit did not depose to any words to this effect. Rather, the conversation concerns Ryan as a person involved.

66 The second affidavit then describes a meeting between James and Kirsch at Arden Lodge in the following week:

1. Sometime in the afternoon during the following week, STAUDACKER attended at Arden Lodge. Although I was seeing him regularly, this was unarranged. I was managing the facility. I was in the office and STAUDACKER came in.
2. I was surprised and asked him what he wanted. STAUDACKER said: 'I have some cameras for sale. They are worth $2000.00.' I asked him where they came from. He laughed and said words to the effect that: 'No, this is Ollie's alibi.' Ollie referred to Hugo Rich. I said: 'No, I don't need them.'
3. I then asked further questions of STAUDACKER in respect of his comment that they are 'Ollie's alibi.' STAUDACKER was present for about half an hour.
4. On legal advice, I am unwilling to give further evidence about what STAUDACKER then said or produce any exhibits without a certificate.

67 This evidence was amplified orally. Before going to that, however, it may be observed that it is surprising the first affidavit makes no reference at all to the incident referred to in [36]-[39] of the second affidavit, involving as it did express reference to the applicant.

68 In oral evidence, Kirsch initially said James used the words (or words to the effect that),[33] 'This will harm Mr Rich. This is the alibi'. The reference to harm was a material change from the second affidavit and followed total omission of this conversation from the first affidavit.

69 Subsequently in evidence, Kirsch said that James's de facto worked for Kirsch as a receptionist and James often called in. On this occasion James came in with a plain cardboard box in a jovial mood. James may have been affected by some substance. James said, 'This is Ollie's alibi'. Amongst the items James produced were a DVD recorder, four surveillance cameras and a .38 four inch Smith & Wesson revolver.

70 When Kirsch asked James what he was talking about, James was incoherent. At the time, his methamphetamine habit was significantly affecting his conduct. The impression Kirsch got was that James was 'quite negative' towards the applicant. Kirsch had the impression that James believed that 'this' would harm the applicant significantly. James 'rumbled on' about creating some dates or something on the camera by altering the times. 'Whether it was for him or some other person I don't know'.

71 It may be observed that this evidence in large part is of the impression Kirsch had of an incoherent statement by an apparently drug affected person who was laughing and in a 'jovial mood'. Nevertheless, the production of video equipment was accompanied both by reference to its potential use to provide an alibi for 'Rich' (and no-one else) and explicit reference to a proposal to tamper with it by altering dates.

72 The second affidavit then describes a meeting between Kirsch, James and Ryan on or about 27 June 2005:

1. Approximately a week later, STAUDACKER contacted me and again requested that we meet. We agreed to meet at the empty hostel.
2. Sometime in the evening, I went to the empty hostel to meet with STAUDACKER. RYAN was also present.
3. I recall that when I arrived, RYAN appeared to me to be nervous and guarded. STAUDACKER appeared to be assuring RYAN and said to him words to the effect that I could be trusted.
4. I explained to RYAN that I had previously worked at Yianoulatos Lawyers as a Managing Clerk, and that I could perhaps provide him with some legal or practical support.
5. STAUDACKER then said to RYAN words to the following effect, referring to me: 'He knows all about it.' These comments appeared to comfort RYAN, as he appeared to relax.
6. To the best of my recollection, I had a conversation with RYAN in the presence of STAUDACKER to the following effect:

RYAN:

'The police will put me off, that's the word on the street, the police will put me off. They have been raiding homes and looking for me. I am really scared'

KIRSCH:

'What do you want me to do for you?'

RYAN:

'I want a solicitor to escort me to the police station when I surrender myself.

I also want him to sit in on an interview. The policeman I want to surrender to is called lddles. I have spoken with lddles. If I surrender myself to him, I'll be ok. I just need to get to see him.'

1. Ryan said he had written to the Herald-Sun newspaper and the Attorney-General's Department. This statement has stuck in my mind as I had never heard a person in RYAN's say such a thing, or adopt such a course if it was true. It was highly unusual. But it was apparent from RYAN's conduct and his statements that he was fearful of the police, although he insisted on surrendering himself and on being accompanied in that process.
2. RYAN then stated that he wanted to get on with his life. He told me that he was in the process of settling down with his girlfriend's family in Ballarat and wanted to start his own family. He then said to me: 'I'm no dog' and repeated this a number of times.
3. However, at no stage did he tell me what it was that he intended to tell the police or Iddles after surrender.
4. During this conversation I asked RYAN to assure me that he would not implicate STAUDACKER. RYAN said to me that he would not and said:

1. I told RYAN that the Prisoners' Advocate Legal Service would make arrangements for him to surrender himself including a solicitor to accompany him. I gave him the business card of Mr Peter Monagle, Solicitor, who was then working for the Legal Service.
2. I am informed that soon afterwards, RYAN surrendered himself to the police accompanied by a solicitor from the Prison Advocate Legal Service, Mr Monagle, and was arrested and charged with armed robbery.

73 There are differences in complexion between this account and that contained in the first affidavit as reflected in [12] of the first affidavit:

1. STAUDACHER sought of [sic] broke the ice and committed RYAN by saying that he had already told me about the 'Chubb truck'. This was not true, but it seemed to give RYAN some confidence. He explained that police were actively looking for him. When RYAN was referring to the 'Chubb truck' I was only vaguely aware of the matter from media reports.

74 In part we accept that these differences are matters of incidental detail only which, taken by themselves, could not be regarded as particularly significant. Nonetheless, the changes in emphasis occurred in a particular context to which we shall return below. The changes include matters such as the following. Saying that 'He knows all about it' differs from saying 'that he had already told me about the "Chubb truck"'. As the accounts given of the earlier conversation indicate, a reference to the truck was potentially no more than a labelling of the incident. Further, the claim in the first affidavit that Kirsch was only vaguely aware of the matter from media reports is scarcely credible and does not sit comfortably with [25] of the second affidavit quoted above.

75 Furthermore, in [45] of the second affidavit Ryan is said to have stated in plain terms that he had spoken with police[34] about surrender. This may be contrasted with [15] of the first affidavit:

1. I continued to speak to RYAN, and had the very distinct impression that RYAN had already made some effort to establish contact with police and indicated that he made some efforts including written to the Herald-Sun and also to the Attorney-General's office claiming that he had had 'no confidence' that he would have made it to court. I formed the view that RYAN may have already spoken to IDLES [sic] by telephone. ...

76 It may also be contrasted with the oral evidence of Kirsch that he drew the inference from the overall circumstances that Ryan had already spoken to police, which likewise does not accord with the terms of the second affidavit.

77 The second affidavit next describes contact between Kirsch and James after June 2005 and before October 2005.

1. I was suspicious of RYAN and I was concerned that RYAN would implicate STAUDACKER based on what he had told me previously and I told STAUDACKER of my concern on several occasions.
2. STAUDACKER said to me that he trusted RYAN and he wasn't worried.
3. I however desired to protect STAUDACKER from RYAN and what he might say to the police about what had occurred.
4. Sometime in about July 2005, I assisted STAUDACKER by giving him a position as manager of Centennial Lodge, which I owned and operated, and employing his then girlfriend Raelene FAGAN at various lodges.
5. As a result of my employment of him, I saw STAUDACKER almost on a daily basis. As a rule however, we would not discuss this matter in any detail.

78 The appointment of James as a manager does not sit comfortably with Kirsch's oral evidence that at the time of the June 2005 meeting James had a methamphetamine addiction which was significantly affecting his conduct. More fundamentally, the second affidavit does not attribute any confessional statement to James up to this point in time.

79 The second affidavit then goes on to describe a meeting with James at Arden Lodge in about August 2005:

1. Sometime in about August 2005, STAUDACKER said that he wanted to 'go for a walk.' I understood that he wanted to talk to me about something sensitive.
2. STAUDACKER informed me that members of the Victoria Police Homicide Squad had been pressuring him to make another statement implicating Hugo RICH. I was not aware that he had made any previous such statement to Victoria Police, given my advice to him previously. Nor had there been any mention of Hugo RICH in any previous discussion with him. I was therefore highly surprised that STAUDACKER had made this comment.
3. I said to STAUDACKER words to the effect that he should not get any further involved and not speak to the police. STAUDACKER agreed. He requested my assistance to have a solicitor present with him should the police want to speak to him again.
4. I subsequently contacted Mr MONAGLE and directed him to accompany STAUDACKER should the police want to speak with him again.
5. We then returned to Arden Lodge. I do not recall for how long we spoke.

80 The terms of [58] relating to the first mention of the applicant are inconsistent with [37] of the second affidavit quoted above (ie the relatively dramatic video camera incident). In oral evidence Kirsch resiled from the statement that there had been no mention of the applicant in any previous discussion with James. As we have already observed, it is surprising that Kirsch's sworn evidence of the sequence and contents of statements about the applicant is materially inconsistent.

81 We note that the substance of this portion of the second affidavit appears to equate in part to [23]-[24] of the first affidavit. In the first affidavit, however, the conversation takes place in November 2005 and there is no reference to Kirsch advising James that he should not get further involved with the police:

1. In early November 2005, STAUDACKER once more contacted me and asked to meet. I informed STAUDACKER that he could come to Arden Lodge at 302 Arden Street North Melbourne.
2. Upon his arriving, we left Arden Lodge, and again went for a walk, where STAUDACKER advised, that members of the Homicide Squad of the Victoria Police had been pressuring him to make another statement implicating RICH.

82 More materially perhaps, the change in chronology is accompanied by the omission in the second affidavit of the following significant passage from the first affidavit:

1. STAUDACKER also informed me, that he had received 'a message' through a person named TADIC (having apparently been the other person with RYAN at the North Melbourne park earlier) who was directing STAUDACKER to distribute items that could be falsely planted so that RYAN could somehow assist police in locating them in an effort to secure possible bail.

83 It will be recalled that, when describing the meeting with two men in the park in North Melbourne in his second affidavit, Kirsch deposed: 'I do not know the identity of the other male and did not meet again after that night'. In oral evidence, Kirsch confirmed that he did not know the identity of the other male. There is a marked difference in the two accounts. Information and belief as to Tadic's identity appears to have evaporated.[35]

84 The second affidavit then goes on to deal with the role of the Office of the Chief Examiner in 2005:

1. Sometime in late 2005, STAUDACKER told me that he had been served with a summons to appear before the Chief Examiner. I cannot recall the circumstances in which this was raised.
2. Again, in accordance with my desire to protect STAUDACKER, I arranged for STAUDACKER to have representation before the Chief Examiner. I again directed Mr Monagle to appear with STAUDACKER at the hearing.
3. I gave advice to STAUDACKER about what he should say.
4. On legal advice, I am unwilling to give further evidence about what STAUDACKER then said without a certificate.
5. However, I can say that STAUDACKER said he was concerned that if his co-operation was apparent to his previous associates, he would be branded a 'dog' and his life would be in danger. Being known as a 'dog' within the circles in which STAUDACKER moved was life-threatening. From my experience, to co-operate with the police and make a statement against another person would only be an option of last resort, given the potential consequences.
6. I am aware that STAUDACKER attended the Office of the Chief Examiner on or about 20 December 2005.
7. STAUDACKER gave further evidence in January 2006 and June 2006.
8. I specifically asked STAUDACKER not to tell me what he said at the examination.
9. At this stage, I had serious concerns about my own involvement and level of knowledge. It became increasingly apparent that STAUDACKER's involvement in the 'Chubb truck shit' [sic]. However, despite my concerns, I still wished to assist STAUDACKER.

85 This evidence was materially amplified in the oral evidence. Kirsch confirmed that, after Kirsch had launched a proceeding against the Chief Examiner, James expressed concern to him about being labelled a dog. This evidence places the conversation with respect to his concern after 4 October 2006 (see below).

86 Kirsch further said that in 2005, prior to the initial questioning of James by the Chief Examiner, James attended the Arden Lodge manager's office. Kirsch was uncertain of the date of that attendance, but said that it was a month or two after the occasion on which Kirsch describes James attending Arden Lodge offering to sell the video cameras and showing him the .38 Smith & Wesson revolver. That earlier attendance occurred on an uncertain date during the week following the meeting of approximately 20 June 2005. On the second occasion James produced three firearms. The first was a Ruger .22 calibre silenced automatic pistol. The second was a German 'toggle' 9 mm Luger with seven round capacity. The third was a Smith & Wesson .38 revolver. James complained about the Luger and said some 'fuckwit' had attempted to modify it and had ruined the silencer. He also said the Luger continually misfired. When Kirsch examined the .38 Smith & Wesson revolver and the Luger, each gun had been recently fired. James asked if Kirsch could repair the Luger and the Ruger. The Luger had the toggle damaged, which meant it could fire accidently. Kirsch could not fix it.

87 The second affidavit further describes a meeting with James and Hogan in about June 2006:

1. In about June 2006, STAUDACKER was to give further evidence before the Chief Examiner.
2. Shortly before that time, STAUDACKER attended at Arden Lodge. He said that he wanted to 'take a walk.'
3. We walked towards the Lost Dogs Home near the rear of Arden Lodge.
4. Standing by a car in that location was Paul HOGAN. I was surprised to see Paul HOGAN there, although I knew who he was, I did not know why STAUDACKER had arranged for him to be there.
5. To the best of my recollection, STAUDACKER said in my presence and in the presence of HOGAN words to the following effect:

'I have not lagged any one. Everything with Ryan is sweet. What we agreed is what I have said, its [sic] ok.'

1. Hogan appeared to be listening intently to what STAUDACKER was saying.
2. I was not aware of what STAUDACKER said to the Chief Examiner or to HOGAN previously. However, as it was apparent that STAUDACKER wanted me to agree with his statement in the presence of HOGAN, I did so.
3. STAUDACKER and I then spoke about many other issues with the case and the hostel management. HOGAN said nothing and simply smoked cigarettes.
4. After about half an hour, STAUDACKER and HOGAN left.

88 No such meeting was referred to in the first affidavit despite the fact that Kirsch must have known at the time of its making that Hogan gave evidence at the trial of the applicant describing his involvement in the fatal armed robbery. In oral evidence, Kirsch also said that in the period between the attendances by James before the Chief Examiner Kirsch spoke to James weekly if not more frequently. Kirsch described those conferences insofar as they related to the offending as follows:

You have to understand the basis of my relationship with James. It's a very, very, longstanding one and for some time an intimate one. I was concerned about his welfare. Was he getting involved - he was getting himself involved with some very serious people but, of course, I didn't have the presence of mind at that time, nor did he tell me, he was actually engaged. If his involvement was anything in this matter, I assumed, from his past conduct, it would have been as a get away driver, certainly not as a principal actor. So I wasn't making the connection at that time.[36]

89 It follows that none of the conversations described by Kirsch up to this point in time involved an admission by James of direct involvement in the offending.

90 The second affidavit then goes on to deal further with the release of transcript of the examination of James before the Chief Examiner:

1. On or about 4 October 2006, on instructions from STAUDACKER, the Prisoners Advocate Legal Service commenced proceedings in the Supreme Court of Victoria against the Office of the Chief Examiner and the Department of Public Prosecutions, for the purpose of suppressing details of the Office of the Chief Examiner proceedings and the evidence given by STAUDACKER in those proceedings. Victoria Legal Aid approved a grant to Prisoners Advocate Legal Service to cover counsel's fees in these proceedings.
2. I drafted the writ and the application for legal aid funding for these proceedings.
3. The Supreme Court of Victoria rejected the application.

1. I am informed that subsequently to this, transcripts of the evidence given by STAUDACKER to the Chief Examiner were obtained by RICH. I believe this occurred sometime in the first half of 2007.
2. As a result, I discussed this with STAUDACKER.
3. In the course of these discussions, STAUDACKER said to me words to the following effect:

STAUDACKER:

'RICH has become aware of what RYAN and I did with the hire car' and 'If I am linked to the hire car, I am fucked.'

1. He made various comments about this hire car and a white Ford van. I was not clear about what the context or meaning of these statements was at the time, nor am I really clear now. I did not ask any further questions.
2. Subsequently to this, on instructions from STAUDACKER, the Prisoners Advocate Legal Service again commenced proceedings in the Supreme Court of Victoria against the Office of the Chief Examiner and the Department of Public Prosecutions, for the purpose of suppressing details of the Office of the Chief Examiner proceedings and the evidence given by STAUDACKER in those proceedings.
3. The Supreme Court of Victoria rejected the application.
4. After the failure of that application, there was nothing further I could do to assist STAUDACKER.
5. His drug use had escalated significantly and our relationship was strained. I also no longer trusted him given that he was co-operating with police, despite my earlier advice as to the dangers of that.

91 It may be noted that this affidavit does not acknowledge the fact that Kirsch himself read the transcript of the evidence of James before the Chief Examiner.

92 It is also to be noted that this evidence puts the escalation of drug use by James as occurring in 2007. One may contrast this with the oral evidence of Kirsch to which we have already referred.

93 In oral evidence Kirsch also described the course of the advice he gave James as follows:

You said you were discussing the Office of the Chief Examiner's proceeding? - - - Yes. Staudacher had previously asked me - he'd been pressured by police, although the words he's used, that, 'They want to talk to me about Ollie and the armed robbery'. I said, 'Well, look, just avoid them. It's as simple as that. Don't get involved', which I made out was exactly the same course I was adopting. He later become [sic] summoned to appear before the Chief Examiner. He asked me about it. I said, 'Well, you're compelled to attend. Tell them as little as possible'. Again this is just general advice. I'm not aware, at this time, of even the issues that are being alleged at the time between Mr Rich and Staudacher. I subsequently later read his evidence.

94 The second affidavit then deals with further events at Centennial Lodge:

1. In the course of a discussion at Centennial Lodge about his management and the effects of his conduct on the business, STAUDACKER made a comment to me.
2. On legal advice, I am unwilling to give further evidence about what STAUDACKER said without a certificate.

1. I was concerned that STAUDACKER had commenced regular drug use and had misused his position as manager of Centennial Lodge to obtain drugs and to distribute them from the premises.
2. My relationship with STAUDACKER therefore commenced to deteriorate.
3. Subsequently, police raided the lodge and two firearms were recovered as well as a quantity of drugs in his own room and in the manager's office.
4. After the raid, I spoke with STAUDACKER about the potential charges that could be laid.
5. On legal advice, I am unwilling to give further evidence about what STAUDACKER said without a certificate.
6. STAUDACKER was not charged in relation to any of this conduct.
7. At that point I was estranged from STAUDACKER. In fact, I had obtained court orders against STAUDACKER to remove him from the premises.
8. I wanted nothing more to do with him, or this affair, any longer. I no longer spoke with STAUDACKER.

95 This evidence was amplified orally as follows. Kirsch said that at that stage James was heavily addicted to ice. He was stealing money and doing all sorts of things. Kirsch's relationship with James was virtually at an end and they had a heated exchange at the top of the steps at Centennial Lodge just outside the manager's residence. Kirsch was concerned that money was going missing from Centennial Lodge and that two pistols which were missing from Kirsch's premises had been discovered during a police raid at Centennial Lodge. Kirsch says he told James he had to get off the gear and that he was out of control. Kirsch said that he would not 'cover' for James anymore and that James was deliberately continuing to 'draw himself in'. Drugs and other issues were addressed and then Kirsch said 'what the fuck are you getting yourself involved in ... murders and all sorts of shit'. James said 'it was an accident'.[37]

96 This is an inherently ambiguous statement, as Kirsch himself acknowledged. It may be understood as indicating James's involvement was accidental or that the killing was accidental. Following this confrontation, Kirsch says his relationship with James of 28 years ended.

97 Kirsch further said that he formed a belief as to what was going on and when asked whether any of the evidence he had given was 'tainted' by his belief Kirsch said 'yes it has to be of course' before affirming the accuracy of his account of events.

98 The second affidavit also purports to depose to Kirsch's contact with the applicant:

1. Prior to the attendance of IDDLES in 2010, after his conviction, RICH called Arden Lodge. I was told by an employee, Sarah LO, that RICH had called and had asked to include me on his approved telephone list.
2. Although I had not spoken to him for over a decade or more, and our relationship was not friendly, I agreed to accept telephone calls. I had no idea what he wanted.
3. Sometime later, I cannot recall how long, RICH telephoned Arden Lodge.
4. I spoke with him. The conversation was pleasant. There was no discussion about his case other than a cursory reference to his conviction. He wanted some help in obtaining software and I sent him some money to pay for it or purchased it, I do not recall.
5. He continued to call about once a week for about 6 months. Very often he would talk to LO. Sometimes I would speak with him. I allowed him to use her to assist him with whatever he wanted. That was the purpose of Prisoners' Advocate Welfare Service.
6. During those conversations, which were between 15 minutes and half an hour, we discussed some aspects of the case and the evidence. I never had any contact with RICH other than these telephone calls.
7. I never disclosed any of the details of my discussions with STAUDACKER to RICH. This was predominantly because I did not want to implicate myself in any way.
8. Sometime in about January 2012, Tate [sic] Lawyers contacted me and asked if I would prepare an affidavit. I agreed.

99 In cross-examination Kirsch said of the first affidavit, 'there was ongoing narrative as to what I could give and not give'. The communications with the applicant and his solicitor extended over perhaps a year. There were six or more drafts. Kirsch typed up suggested amendments. The second affidavit was produced on the basis of the first affidavit but after a conference with counsel and an instructing solicitor. There were a number of suggestions put to Kirsch. The applicant made suggestions in a 'very, very small manner'. There were a number of amendments to the initial draft. All of this contact followed the extensive telephone conversations with the applicant about aspects of the case and the evidence to which Kirsch himself referred in his second affidavit.

100 In addition to the matters described or foreshadowed in his affidavits, Kirsch gave oral evidence as to one further matter. He stated that about six months prior to the armed robbery James said he was trying to raise $130,000 for the acquisition of a web server and design company in Queensland. Kirsch reviewed documentation (which he claimed he no longer had) and counselled against the investment. James had trouble raising the money and said 'Look, I'll raise the money'. Kirsch 'drew [his] own conclusions as to how he'd raise the money'.

101 In oral evidence, Kirsch said that he regarded the applicant as a potential soldier for the Nazi Party with a great deal of intelligence. He conceded that he may have introduced James to the applicant in 1984 as James stated at trial.

102 In oral evidence he further explained his preparedness to give evidence:

I'm probably one of the most reluctant witnesses, you would think. I don't want to become involved in this matter, never have. I have somewhat of a history with Mr Rich. Quite frankly, I'm simply motivated, though this will be the last opportunity I have, I've since sold most of my assets in the state and will leave - to right what I consider is a potential wrong. Of course ultimately it's a matter for this honourable Court but I have my own view.

103 It may be recalled that in oral evidence Kirsch acknowledged that he read the transcript of James's evidence before the Chief Examiner. He was thus aware prior to the trial of the substance of the evidence James would give at trial.

104 The applicant sought to rely on the following matters to which Kirsch deposed:

(a) Evidence that, on or about 20 June 2005, James and Ryan jointly sought the assistance of Kirsch about consequences of the 'Chubb truck shit'.

(b) Evidence that, in the following week, James produced video camera equipment to Kirsch at Arden Lodge and laughed and said words to the effect of 'this is Ollie's alibi', said further or gave the impression that 'this will harm Rich', and spoke further of a proposal to create dates on the camera by altering times.

(c) Evidence that, on or about 27 June 2005, James and Ryan again sought the assistance of Kirsch and Ryan discussed surrendering to the police.

(d) Evidence that, in about June 2006, James and Kirsch met Hogan and James made a statement implying co-operation with Ryan:

I have not lagged anyone. Everything with Ryan is sweet. What we agree is what I have said, its [sic] OK.

(e) Evidence that, in 2006 before he was questioned by the Chief Examiner, James attended the Arden Lodge manager's office and produced three firearms including a 9 mm Luger. The Luger had the toggle damaged, which meant it could fire accidentally.

(f) In 2007, Kirsch discussed with James the fact that the applicant had obtained transcript of what James had said in evidence before the Chief Examiner and James said 'Rich has become aware of what Ryan and I did with the hire car' and 'if I am linked to the hire car, I am fucked'.

(g) After a police raid upon Centennial Lodge when James was manager of the Lodge and at the conclusion of the relationship between Kirsch and James, there was a conversation between James and Kirsch in which Kirsch said, 'what the fuck are you getting yourself involved in ... murders and all sorts of shit?' James replied 'it was an accident' or 'it was just a fuckin' accident'.

(h) About six months prior to the armed robbery, James stated that he needed $130,000 to invest in a web server and design company in Queensland. After initial trouble raising the money James said, 'look I'll raise the money'.

105 The applicant's counsel submitted that the evidence is forensically significant because:

(a) It demonstrates association and collusion between Ryan and James and undermines the extent to which James's evidence can be seen as independently corroborative of that of Ryan.

(b) It demonstrates association and collusion between Ryan, Hogan and James and undermines the extent to which the evidence of James and Hogan can be seen to be corroborative of that of Ryan.

(c) It provides a basis for attacking the credit of James whose evidence (eg as to the absence of the applicant from his office at the time of the killing) was significant to the Crown case.

(d) It supports the possibility that James was involved in the offending.

(e) It would found, or tend to support, the hypothesis that Ryan and James framed the applicant.

106 In Mickelberg,[38] Toohey and Gaudron JJ said:

The underlying rationale for a court of criminal appeal setting aside a conviction on the ground of fresh evidence is that the absence of that evidence from the trial was, in effect, a miscarriage of justice: see, e.g., Gallagher v The Queen.[39] There is no miscarriage of justice in the failure to call evidence at trial if that evidence was then available, or, with reasonable diligence, could have been available: see Ratten v The Queen,[40] per Barwick CJ, noting however, that there may be somewhat greater latitude in the case of criminal trials than in the case of civil trials. See also Lawless v The Queen.[41]

107 The Crown submitted that Kirsch's evidence is not 'fresh' evidence.

108 We accept that Kirsch was reluctant to give evidence at the date of the applicant's trial and we further accept that considerable latitude is to be extended to the applicant in assessing whether Kirsch's evidence could have been relied on at trial if the applicant had acted with reasonable diligence.[42]

109 Nevertheless, we are ultimately unpersuaded that Kirsch's evidence was not reasonably available to the applicant at his trial, for a series of interrelated reasons.

110 First, the applicant has known Kirsch since at least 1984, although the evidence does not satisfactorily establish that they were close[43] in the period leading up to the applicant's arrest.[44]

111 Secondly, the applicant had the transcript of the evidence given by James to the Chief Examiner prior to trial and James was subjected to extensive cross-examination based on this transcript both on the voir dire and before the jury. That cross-examination covered the dealings of James with both Ryan and with Kirsch.

112 Thirdly, as counsel for the applicant properly conceded upon the fresh evidence application, the matters covered by James in the course of his evidence are not strictly fresh evidence in substance.

113 Fourthly, the evidence of James at trial plainly described:

• the introduction of Ryan to Kirsch for the purpose of seeking advice; and
• the delivery of the video equipment to Kirsch.

114 As to the first matter, James described approaching Kirsch prior to June 2005 with a request for assistance for Ryan and the fact that in consequence Kirsch facilitated the accommodation of Ryan in a rehabilitation centre in Sydney Road, Coburg. James agreed that he visited Ryan for four to six weeks while Ryan stayed in the facility and that during that time took part in discussions with Ryan and with the solicitor, Monagle.

115 As to the second matter, not only did James describe the provision of the video recorder to Kirsch but at one point James was cross-examined as follows:

Did you offer for sale a video hub recorder with three black domed cameras stating that this was Rich's alibi on it, meaning the hub recorder which I have asked you questions about? --- Definitely not, no.

116 It is difficult to reconcile this puttage with any view other than that counsel at that time had instructions as to what James said to Kirsch. It may be noted that there is no evidence from Kirsch that any other person was present at the time of the conversation in issue. It may also be noted that it is only Kirsch who says James offered the recorder for sale. The consistent evidence of James at trial was that he gave a DVR to Kirsch. He was in turn cross-examined on the basis that he had stolen the DVR.

117 Ryan also gave evidence of arrangements with James, including the following:

• James assisted Ryan to obtain accommodation at the rehabilitation facility described above.
• Kirsch introduced Ryan to the solicitor Monagle.
• Kirsch arranged a late night meeting at North Melbourne Football Club under the car park (a meeting which when described by Kirsch was characterised by the applicant's counsel as 'clandestine').
• At the time he was dealing with Kirsch, Ryan expressed concern the police would view him as the shooter.
• James was a 'junkie' using ice in 2005.

118 Fifthly, there is no evidence as to whether the applicant's legal advisors did or did not seek to obtain a statement or proof of evidence from Kirsch prior to the completion of the applicant's trial. This is despite the fact, as we have noted, that the puttage to James in cross-examination on behalf of the applicant included material conversations between Kirsch and James.

119 Sixthly, there is no evidence from the applicant himself as to whether or not, and to what effect, he communicated with Kirsch prior to the completion of the trial.

120 When these matters are taken together we are simply not persuaded that the evidence sought to be led from Kirsch is in the relevant sense 'fresh'. It was substantially foreshadowed at trial and we are not satisfied that it was not reasonably obtainable from Kirsch at the time of trial.

121 We turn then to the questions of relevance and admissibility. We accept that Kirsch's evidence might be regarded as relevant but the question of admissibility is more complex.

122 At the outset of the application to adduce Kirsch's evidence, counsel for the respondent raised a preliminary objection that the evidence was hearsay and as such inadmissible.

123 Counsel for the applicant argued that it was not. To the contrary, the evidence of James's production of the video recording equipment and the 9 mm Luger pistol was direct evidence of circumstantial facts suggestive of the possibility that James, rather than the applicant, was the shooter; Kirsch's evidence that James and Ryan together sought advice from Kirsch about the 'Chubb truck shit' was direct evidence of an association between James and Ryan which, counsel said, confounds the Crown's case at trial that James and Ryan were independent; and the evidence of James's statement that 'it was just a fuckin' accident' was direct evidence of the fact of James's contemporaneous state of mind.

124 Alternatively, counsel for the applicant argued, to the extent that any of the new evidence was hearsay, it was admissible as such under one or more of the exceptions to the common law hearsay rule or as now prescribed by s 65(2)(d) or 65(8) of the Evidence Act 2008.[45]

125 We start with the question of whether Kirsch's evidence is hearsay. Kirsch's evidence of James's production of the video recording equipment and the Luger pistol is not. It is direct evidence of facts which Kirsch alleges he saw and thus of which he purports to have personal knowledge.

126 It is less clear whether Kirsch's evidence that James and Ryan together sought advice about the 'Chubb truck shit' is hearsay. Inasmuch as it is evidence that the two men acted together in seeking advice from Kirsch, it is direct evidence of a fact: that the two men were sufficiently associated jointly to seek advice from the one source. To that extent, it is not hearsay. Inasmuch, however, as it is evidence that the two men jointly sought advice in relation to the 'Chubb truck shit', it is evidence of an implied assertion: that the two men were associated in relation to the 'Chubb truck shit'. To that extent, depending upon which of the five recognised approaches to the classification of implied assertions one adopts,[46] it might or might not be hearsay.

127 A similar analysis applies to the evidence of James's alleged statement to Hogan.

128 The evidence of James's statement, concerning the transcript of what he had said to the Chief Examiner relating to the hire car, might be regarded as direct evidence of association with Ryan. Beyond that, the statement 'if I am linked to the hire car I'm fucked', although on its face relating to the consequences of implicating the applicant, might be seen as an implied assertion as to James's own conduct.

129 The evidence of James's statement that 'it was just a fuckin' accident' is equally problematic. Whether it should be regarded as hearsay depends on the purpose for which it was sought to be adduced. If the purpose of its adduction were to establish, as a fact, that the shooting was an accident, it would follow that the evidence was adduced for its testimonial value or, as it is now put in the Evidence Act 2008, as evidence of the existence of a fact which it can reasonably be supposed James intended to assert. As such it would be hearsay. If it were adduced, say, for the purpose of demonstrating that James had such a knowledge of the killing as to imply an involvement in the killing, or perhaps as demonstrating such an attempt by him to downplay the gravity of the killing as to imply a consciousness of complicity in the killing, it would be evidence of an implied assertion and, once again depending upon which of the five recognised approaches to the classification of implied assertions one adopted,[47] it might or might not be hearsay.

130 The evidence of the request by James for advice concerning the proposed acquisition of a business interest and the giving of that advice by Kirsch is not hearsay. It is direct evidence of a course of conduct by James and Kirsch with respect to a proposed business transaction.

(v) Does the Evidence Act 2008 apply?

131 Assuming for the sake of argument that the evidence that James and Kirsch together sought advice about the 'Chubb truck shit', the evidence of James's statement to Hogan, and the evidence of James's statement that 'it was just a fuckin' accident', is to some extent hearsay, we turn next to the question of whether that evidence would come within any of the exceptions to the hearsay rule. That necessitates consideration of a further issue of whether the relevant exceptions are the common law exceptions to the hearsay rule which applied at the time of trial or the exceptions to the hearsay rule which have come into operation under the Evidence Act 2008 since the trial. In turn, for the reasons which follow, that depends on which of the two possible bases the applicant seeks to have the new evidence taken into account.

132 In order that new evidence may be taken into account on appeal, it must be demonstrated that there has been a 'miscarriage of justice'. For that purpose, as we have explained, 'miscarriage of justice' is used in two different senses. In the first sense, a miscarriage of justice exists where, on the material before a court of criminal appeal, including any new evidence, it is apparent that the applicant is innocent of the offence of which he has been convicted or if there is such a doubt about his guilt that the conviction should not be allowed to stand. In the second sense, a miscarriage of justice exists where, upon consideration by the court of criminal appeal of so much of any new evidence as qualifies as 'fresh evidence', it is apparent that, if the fresh evidence had been accepted by the jury, it would likely have resulted in a different verdict or that there is a significant possibility that the jury acting reasonably would have acquitted.

133 Accordingly, the task of a court of criminal appeal in the first class of case is different to its task in the second. In the first class of case, the court must consider all of the evidence called at trial together with any new evidence (whether or not the new evidence was available to the applicant to be called at trial) and, on that basis, form its own view of the facts; always bearing in mind the facts which were proved at trial. If the court is thereby satisfied of the applicant's innocence, or entertains such a doubt as to the applicant's guilt that it considers the verdict should not be allowed to stand, the court will quash the conviction and enter a judgment and verdict of acquittal.

134 In the second class of case, the court must first determine whether the new evidence qualifies as 'fresh evidence' in the sense that it could not have been discovered by reasonable diligence on the part of the applicant and thus been available to the applicant to be called at trial. Then, if the new evidence qualifies as fresh evidence, the court must determine whether the trial was unfair in the sense that, if the jury had had the benefit of the fresh evidence, as well as the evidence adduced at trial, there is a significant possibility that the jury acting reasonably would have acquitted the applicant. To put it another way, if the applicant could have discovered the fresh evidence by reasonable diligence at the time of trial and called it at trial, is there a reasonable possibility that it would have made a difference to the verdict?

135 In the first class of case, there is no need to inquire into whether the trial was fair or unfair. It may be assumed that it was fair. The question is whether, on the material before the court of criminal appeal, including any new evidence, it appears that the applicant is innocent or that his guilt is in such doubt that he should not stand convicted. Logically, it follows that the admissibility of any new evidence falls to be determined by the court according to the law of evidence as it stands when the matter is before the court.

136 In contrast, in the second class of case, the essential issue is whether the trial was fair or unfair by reason that evidence which would have been admissible at trial, but could not be called because it could not have been discovered by reasonable diligence on the part of the appellant at the time of trial, may have made a difference to the verdict. Self-evidently, such fresh evidence would not have been admissible at trial, and so could not have made a difference to the verdict, unless it were admissible according to the law of evidence as it was at the time of trial. Logic dictates, therefore, that the admissibility of the fresh evidence falls to be determined by the court of criminal appeal according to the law of evidence as it was at the time of trial.

137 Counsel for the applicant did not suggest that Kirsch's evidence was such as to satisfy the court of the applicant's innocence or to create such a doubt as to his guilt as to lead this Court to quash his conviction and enter a judgment and verdict of acquittal. Nor could counsel responsibly have done so. On no sensible view of the matter could Kirsch's evidence lead to the conclusion that the applicant is necessarily innocent or that there is such a great doubt about his guilt that his conviction should be quashed and he be discharged.

138 The application to adduce Kirsch's evidence as new evidence thus falls to be decided according to whether the new evidence is fresh evidence which, had it been available to the applicant to be called at the time of trial, would have raised a significant possibility of a different verdict. Hence, the admissibility of Kirsch's evidence falls to be determined according to the law of evidence as it was at the time of trial.

(vi) Is the new evidence admissible under a common law exception to the hearsay rule?

139 As we apprehend counsel's argument, the evidence that James and Ryan jointly sought advice in relation to the 'Chubb truck shit' was advanced as evidence of an implied assertion that the two men were associated in relation to the 'Chubb truck shit'. The evidence of Hogan's statement was said to be admissible on a similar basis. The evidence of James's statement that 'it was just a fuckin' accident' was advanced on the basis that 'it' referred to the shooting and as evidence of an implied admission that James had such knowledge of what occurred at the shooting as to imply that he was complicit in the offending. The evidence of James's statement concerning the applicant's knowledge of what James had said to the Chief Examiner is also put forward as demonstrating complicity in the offending.

(a) The evidence that the two men jointly sought advice in relation to the 'Chubb truck shit' would be admissible under the common law exception to the hearsay rule for implied assertions as to a person's own conduct.[48]

(b) The evidence of James's statement to Hogan would be admissible on the same basis.

(c) The evidence of James's statement that 'it was just a fuckin' accident' would be admissible under either:

(i) the common law exception to the hearsay rule for implied assertions as to a person's own conduct;[49] or

(ii) the common law exception to the hearsay rule for statements of contemporaneous state of mind or intention,[50] in that it reflected James's view that the shooting was accidental;

(d) The statement concerning the hire car would be admissible pursuant to the common law exception to the hearsay rule for implied assertions as to the maker's own conduct.

141 We also note in passing that, if the admissibility of the evidence had fallen to be determined under the Evidence Act 2008, it would have been admissible under s 66A, as a representation as to the maker's state of mind and, possibly, also under s 65(8) as a previous representation adduced by an accused if the evidence is given by a person who saw, heard or otherwise perceived the representation being given. But, if it matters, we doubt that it could be regarded as made in such circumstances as to render it sufficiently reliable to be admissible under s 65(2)(d).

142 At various points in his oral evidence before this Court Kirsch sought to express a personal opinion as to who killed Mr Kastenberger and as to the true meaning of statements made to him at particular times by James. Those opinions would not have been admissible in evidence at common law and would not be admissible under the Evidence Act 2008. In particular, Kirsch could not give evidence at trial that 'it is perfectly obvious what occurred. James has substituted Rich, in my opinion, and made him the fall guy'.

There can be no doubt that the Court of Criminal Appeal is required to form some view as to the credibility of the fresh evidence. In some cases the Court of Criminal Appeal will be able to reach a firm conclusion as to whether the evidence is trustworthy or unreliable, but in many cases it will be able to do no more than decide whether or not the evidence is apparently credible, or capable of being believed.[52]

144 In the present case, for a combination of reasons, we do not accept that Kirsch's evidence is credible. Views might differ about the individual weight to be attributed to each of these considerations but taken together they compel the view that no jury properly instructed could regard Kirsch as a witness of truth and reliability or place any meaningful reliance upon his evidence.

145 First, there is the matter of Kirsch's criminal record. This goes back to 1974 and indicates some 23 appearances before the courts (omitting appeals). The offences include, as best as we can count them, some 111 convictions for a variety of acts of dishonesty. These culminate in a conviction in the County Court on 2 July 2004 for an attempt to pervert the course of justice. On appeal, the sentence was increased to two years' imprisonment with one year and 91 days of the sentence suspended for three years from the initial date of sentence (a period of 274 days having already been served by way of pre-sentence detention). The convictions for offences other than dishonesty offences culminate in two convictions for accessory after the fact to murder in the Supreme Court on 2 September 1991. Kirsch was sentenced to a total effective sentence of five years' imprisonment. At the time of the events now in issue, it is plain that Kirsch was a hardened criminal and had demonstrated himself to be chronically dishonest. Moreover, the convictions for attempting to pervert the course of justice and for accessory after the fact to murder demonstrate a fundamental contempt for the rule and processes of the law. Whilst not conclusive in itself, this criminal record raises serious questions as to the reliability of Kirsch's evidence.

146 Secondly, there is the fact, as Kirsch said, that the first and second affidavits are the products of lengthy consultation with the applicant. It is this context that lends particular significance to the changes between the first affidavit and both the second affidavit and the oral evidence of Kirsch.

147 Incidentally, we do not accept, as [110] of the second affidavit asserts, that Kirsch never discussed details of his discussion with James during the course of conversations with the applicant after his conviction. The affidavit which was obtained as a result of these conversations was entirely concerned with these discussions.

148 The material changes which have occurred in Kirsch's evidence have come about as the events in question became increasingly distanced in time. They relate to events now substantially occurring six to eight years ago. In our view, the evidence reflects and embodies what the applicant wants it to say.

149 Thirdly, Kirsch said that his affidavits were not based on contemporaneous notes. This fact bears particularly upon the credibility of his purported recall of the precise terms of statements.

150 Fourthly, Kirsch conceded that his evidence was 'tainted' by the belief he now had as to the underlying facts of the offending.

151 Fifthly, although Kirsch denied prior knowledge of the substance of James's evidence (surprisingly given his knowledge of the Chief Examiner's transcript), Kirsch's evidence appears to be substantially constructed around recorded evidence of James. It bears all the hallmarks of deliberate use of that evidence as its basis for further detailed embroidery and fabrication.

152 Sixthly, there is a very marked sequential embellishment of the first affidavit in the second, for example the evidence as to 'Ollie's alibi'. In turn, the second affidavit was materially embellished in the oral evidence by matters such as the motive evidence and substantial amplification. Whilst this may be explained away in part by reluctance in the first instance to make self-incriminating statements, this explanation does not adequately explain the differences.

153 Seventhly, there is the manner in which Kirsch gave his oral evidence. This may be shortly described as evasive and opinionated. It was neither direct nor matter of fact.

154 Eighthly, as we have sought to demonstrate, the various versions of Kirsch's evidence are riddled with inconsistencies. A number of these relate directly to the applicant and others relate to significant matters rather than incidental details.

155 Ninthly, there is the studied ambiguity of aspects of the evidence. This is exemplified by the affidavit's terms in respect of the discussion about cameras and 'Ollie's alibi'. The second affidavit indicates Kirsch asked questions of James concerning this issue during a period of about half an hour. Kirsch's oral evidence failed entirely to convey a coherent account of a response.

156 Tenthly, there is the timing of Kirsch's evidence. Even if it be accepted that Kirsch had an intimate relationship with James up until 2009 and thereafter remained his friend until the death of James in 2011, the apparent evidentiary injustice to which Kirsch says he is now responding must have been plain from the time he read the Chief Examiner's transcript prior to the applicant's trial.

157 Finally, there is the real possibility, having regard to the evidence as a whole, that Kirsch is in fear of violence from the applicant in the same way as he describes James as being in fear of the applicant. Kirsch's description of the applicant as someone whom he regarded as a potentially good soldier for the Nazi Party does nothing to diminish this possibility.

158 Further, we do not accept that there is a significant possibility that the evidence, if believed, would have led the jury acting reasonably to acquit the applicant if the evidence had been led at trial.

159 It should be noted at the outset that this is not a case such as Gallagher in which the fresh evidence if accepted would necessarily result in an acquittal. Rather, the evidence goes to elements of the circumstantial case as a whole.

160 In written submissions counsel for the applicant stressed the following matters:

1. It is impossible to be sure about what might have happened at trial had the evidence of Kirsch been available. The defence case might have been conducted differently in some important respects.
2. First, the Appellant's conviction depended upon the jury accepting Ryan as a credible witness and accepting his trial evidence as reliable. As the Trial Judge said in his charge to the jury:

... before you could convict the accused of either or both of these offences you would have to be satisfied beyond a reasonable doubt as to the reliability and credibility of the evidence of Mr Ryan to the extent that it implicates the accused.

1. The Kirsch evidence provides a basis to undermine the credibility of Ryan's evidence that was central to the Appellant's conviction. The evidence could be used as a fertile area of cross-examination that was not available at trial. The defence did not ask all the questions at trial that might have been asked.
2. Secondly, to the extent that the case against the Appellant relied upon the corroboration of Ryan's evidence by Hogan and James, the fresh evidence demonstrates a connection between the parties such that the independent corroboration is no longer either independent or corroborative. It undermines the contention that James was separate from the participants in the offending.
3. Thirdly, it provides a meaningful basis to a new hypothesis that James was the third participant with Ryan and Hogan. It entirely undermines James' credibility and would allow the Appellant to conduct a positive defence which was not argued at trial.

161 In order to address the probative force of Kirsch's evidence it is necessary to identify more precisely what it bore upon. It is not enough to postulate that it may have enabled more questions to be asked in cross-examination by the defence.

162 Dealing first with the proposition that Kirsch's evidence demonstrated an association between Ryan, Hogan and James, it must be observed that it demonstrated no such association prior to the killing. It is wholly concerned with conduct after the offending and does not undermine the conclusion that James did not participate in the offending. Nor does it undermine Ryan's evidence that he had nothing to do with James prior to the arrest of the applicant.

163 In essence, the evidence of association reinforced the evidence at trial which demonstrated an association between James and Ryan after the killing. Thus, amongst other things, James said that the applicant had shown him a storage unit at Fort Knox and, after the applicant was arrested, he had gone with Ryan, Ryan's brother and the applicant's partner, Blackney, to the Fort Knox storage unit and removed material. They had also gone to the applicant's office and removed equipment including a printer and surveillance gear, cameras and recording system which had been installed on 22 March 2005. James said that after the equipment had been installed the applicant had asked him if it was possible to recreate the day of 8 March 2005.

164 James said that after removing the equipment he had initially parked the van at his house and a few days later parked the van full of equipment at Blackney's house and left her the key. He further gave evidence that he had given Kirsch a DVR and, although he agreed he had made inconsistent statements as to when he had done so, James ultimately maintained that he did so shortly after the arrest of the applicant. This is consistent with the evidence of Kirsch.

165 Next, in the course of his cross-examination James said that prior to 25 June 2005 he approached Kirsch with a request that Kirsch assist Ryan and that Ryan had then stayed at a rehabilitation centre run by the Prisoners' Advocate Legal Service in Sydney Road, Coburg. James had visited Ryan a couple of times a week during this period. During one of those meetings Ryan said that the police suspected him of being the shooter. A solicitor, 'Peter Monagle', had jointly advised both James and Ryan and had accompanied James to his police interview on 1 June 2005. Ryan gave evidence to similar effect.

166 In our view the evidence of Kirsch does not add materially to James's evidence at trial of association with Ryan.

167 The applicant submitted in particular, however, that Kirsch's evidence was fresh evidence that James sought advice from Kirsch about the offending in a way which somehow implicated James in that offending. The basis for this proposition is very thin. Neither Kirsch's description of the initial meeting on 19 June 2005 nor his description of the conversation on the following day contains any request by James for advice from Kirsch. Indeed, James is said to have been asked how he would be affected if Ryan went to the police and responded, 'I'll be OK'.

168 James is further said to have subsequently told Kirsch that he trusted Ryan. Kirsch gave oral evidence:

I'd asked Staudacher. I said, 'are you sure what you're doing here'. He said 'yes'. 'Are you sweet with it? What if he implicates you or something'. He said 'he won't. It was sweet, which indicates nothing other than a prior arrangement.'

169 The accounts of these and subsequent conversations may be compared with the detailed description of the discussion between Kirsch and Ryan on 27 June 2005 about Ryan's proposed surrender to police. The highest the evidence rises is the evidence that James told Kirsch that the police 'want to talk to me about Ollie and the armed robbery', to which Kirsch responded that James should avoid the police and not get involved.

170 There is no evidence that James sought advice as such as to any circumstance which implies any direct involvement in the armed robbery and killing. Indeed, Kirsch himself made clear that James did not admit to any involvement in the offending.

171 The fact that James sought and obtained advice and legal assistance from Kirsch with respect to the release of the transcript from the Office of the Chief Examiner was squarely before the Court at trial and advances the matter no further.

172 It was further submitted for the applicant that the oral evidence referred to above demonstrated an agreement with Ryan about what James would tell police. In our view, it not only does not reflect a request by James for advice from Kirsch in terms reflecting any implied consciousness of culpability but also falls well short of demonstrating any arrangement with Ryan as to what would be said. The evidence indicates no more than repeated statements by James that he trusted Ryan.

173 We note next that no particular weight was placed in submission to us upon what was said in Kirsch's evidence concerning statements made by James when the video equipment was delivered to him. This is hardly surprising. The evidence as a whole showed that the video equipment could never have provided a true alibi. It was not installed until 22 March 2005, after the offending. In other words, on any view of the matter if the equipment was intended to provide 'Ollie's alibi' it would not be a true alibi.

174 Moreover, on one view, Kirsch's evidence is significantly corroborative of the Crown case. In particular the evidence that James 'rumbled on about creating some dates or something on the camera by altering the times':

(a) may be regarded as rebutting any suggestion by the defence that a proposal to create an alibi for the applicant in this way was a subsequent invention by James;

(b) explains the use of the term 'Ollie's alibi' in a way entirely adverse to the applicant;

(c) if accepted as being made by James soon after the alleged request by the applicant, might be seen by any jury as directly confirmatory of James's evidence that the applicant asked him to create a false CCTV record for 8 March 2005; and

(d) if such a request were made by the applicant, it might be regarded by a jury as reasonably consistent only with the desire to avoid culpability for the offending which occurred on 8 March 2005.

175 Likewise, little was made in submission of Kirsch's evidence as to a statement made by James to Hogan in June 2006 implying co-operation with Ryan. Once again, this is hardly surprising. There is nothing in that statement which takes the relationship between Ryan and James any further and its meaning with respect to Hogan is obscure. It might be said to disclose a greater acquaintanceship between James and Hogan than James acknowledged in cross-examination at trial, but it is difficult to see that it goes any further.

176 On the other hand, specific reliance was placed upon Kirsch's evidence of James's production of three firearms to Kirsch in 2005. We do not think the coincidence of the presence of a 9 mm handgun amongst those weapons produced at that time could be regarded as particularly probative of anything. More fundamentally, the proposition that James would knowingly keep the handgun actually used in the killing for an extended period of time after the event and then give it to Kirsch is inherently improbable. It is even more improbable once it is realised that James is said to have stated that the Luger continually misfired and that upon examination by Kirsch the Luger had been recently fired. The notion that a misfiring gun would continue to be knowingly used in the 12 months after it had been used in a fatal shooting is implausible.

177 We come next to a series of statements which were said either individually or in combination to reflect confession of direct involvement in the killing.

178 First, there is the initial statement made to Kirsch on 19 June 2005, 'something big has happened, I'm in trouble'. This statement transitioned directly into a request for short-term help in providing accommodation for Ryan. We do not accept that it contains anything that could sensibly be said to link James directly with the killing.

179 Next, there is the exchange which Kirsch said in evidence occurred in his last meeting with James, namely, the response 'it was just a fuckin' accident' to the question 'what the fuck are you getting yourself involved in ... murders and all sorts of shit?' We do not think that the response could sensibly be regarded as raising a real possibility that James was involved in the actual killing. The involvement enquired of was on its face the involvement of James in assisting Ryan and the applicant. As James's second affidavit made clear, that involvement had led to the possibility that James would be branded in the underworld as a dog and that his life would be in danger. The response on its face relates to this involvement.

180 Indeed, each of the statements attributed to James by Kirsch expressing concern as to his own position leads to the same obvious explanation; although for the reasons we have given, we simply do not accept that there can be any confidence Kirsch's latest formulation of what was said is accurate and reliable.

181 Ryan's evidence at trial was that he was told by the applicant the shooting was an accident. Even if the 'accident' referred to is the killing, not the subsequent involvement of James, the reference does not imply personal knowledge of such an accident.

182 Next, we turn to the evidence that in 2007 James expressed concern that the applicant had obtained a transcript of what he had said in evidence before the Chief Examiner about the hire car. We have described elsewhere the evidence James gave at trial to the effect that on the day after the robbery the applicant had taken James to a car park at Docklands and told him he could use the Nissan Maxima parked there. James had done so for 48 hours.

183 We accept that, divorced from context, the statements might be regarded as implicating Ryan and James jointly in the offending. The evidence of James to the Chief Examiner was however put back to him in detail during his cross-examination at trial. It seems clear that evidence did not disclose any joint use by James and Ryan of the hire car. We do not accept that the evidence could be regarded as materially incriminating. On any view of the evidence, the applicant must have known the underlying facts, namely, when and for what period he loaned the Nissan to James. James was already 'linked to the hire car'. There was no revelation in this.

184 Lastly, there is the evidence that some six months before the armed robbery James was trying to raise $130,000 for the acquisition of a web server and design company in Queensland and said to Kirsch 'I'll get the money'. If this evidence were accepted it would demonstrate a motive to engage in armed robbery. In the absence, however, of any evidence whatsoever linking James to the robbery, we do not accept that this evidence could be regarded as probative of any reasonable possibility that James was directly involved.

185 In the result, we are not persuaded that Kirsch's evidence provides any meaningful basis for the hypothesis that James participated in the robbery with Ryan and Hogan; a hypothesis which we note was squarely put to James in cross-examination on behalf of the applicant and rejected. Nor do we consider that Kirsch's evidence undermines the credibility of James's evidence in any material respect.

186 Consequently, we do not accept that the evidence of Kirsch, if called at trial, would have given rise to any real possibility the jury would have acquitted the applicant, let alone a significant possibility.

187 For the above reasons, we would dismiss the application to admit fresh evidence. That is to say, we do not accept that it has been demonstrated to be 'fresh' in the relevant sense. We do not regard it as credible. In particular, we do not accept it could be regarded as truthful and reliable as to matters of detail. We do not accept that if adduced at a trial it would have given rise to any real possibility of acquittal.

It seems to me, with all respect, that where the trial was by jury, the accused was entitled to have the question of his guilt determined by the verdict of the jury, and that the Court of Criminal Appeal, in considering the effect of the fresh evidence, should consider what effect it might have had upon a reasonable jury. It is not enough that there is a bare possibility that a jury might have been influenced by the evidence to return a verdict of not guilty. On the other hand, it is too severe, and indeed speculative, a test, to require that the Court should grant a new trial only if it concludes that the fresh evidence was likely to have produced a different result, in the sense that it would probably have done so. I have had the advantage of reading the reasons for judgment prepared by Mason and Deane JJ who suggest that the Court of Criminal Appeal will conclude that the unavailability of the fresh evidence at the time of the trial will have involved a miscarriage of justice if the Court considers that there is a significant possibility that the jury, acting reasonably, would have acquitted the appellant if the new evidence had been before it at the trial. I am in substantial agreement with this statement. However, I would emphasize that no form of words should be regarded as an incantation that will resolve the difficulties of every case. No test can detract from the force of the fundamental principle that the appeal must be allowed if a miscarriage of justice is shown to have occurred. It is only a practical guide to the application of that principle to say that the court will grant a new trial if, having approached the matter with the caution that is always demanded when fresh evidence is produced in a criminal case, and having weighed the credibility of the fresh evidence and considered its cogency in the light of the evidence given at the trial, it considers that a jury might reasonably have reached a different verdict if the evidence had been available at the trial.

189 In the present case, having weighed the credibility of Kirsch's evidence and considered its cogency in the light of the evidence given at trial, we do not consider that it might reasonably have led a jury to a different verdict at trial.

190 Under the heading of ground 2, the applicant made four complaints about the way in which the jury was empanelled:

1. The judge did not expressly authorise his associate to assist in the calling of the panel pursuant to s 30(4) of the Juries Act 2000;

2. After a jury had been empanelled and was discharged, the judge directed them to be added to the panel from which a new jury were to be selected, rather than return to the jury pool room in accordance with reg 10(2) of the Juries Regulations 2001;

3. Juror 204[54] did not swear the oath in accordance with sch 3 to the Juries Act;

4. The informant involved himself in the empanelment of the jury by assisting Juries Commissioner's officers and the judge's tipstaff in handing out documents to members of the panel from which the jury were to be selected.

(i) Authorisation under s 30(4)

191 Section 30 of the Juries Act 2000 provides that:

Selection of panels

(1) A trial judge must cause a pool supervisor to be notified when a panel is required by the court.

(2) The pool supervisor must then either -

(a) select from a pool or pools a sufficient number of persons to empanel a jury for that trial; or

(b) allocate all of a pool.

(3) The persons selected or allocated constitute the panel for that trial.

(4) The trial judge must authorise a person to assist in the calling of the panel and the selection of the jury.

(5) The proper officer may split the panel into two or more parts if he or she considers that it is not practicable for the whole panel to be present in the court at the one time or that it is expedient to do so for any other reason.

192 The gist of the applicant's first complaint about the way in which the first jury were called over is that the judge did not state in open court that he had authorised or that he thereby authorised his associate to assist in calling the panel pursuant to s 30(4), either before the associate began to call the panel or at all.

193 There is no substance in that complaint. Section 30(4) does not require a judge to state expressly that he or she has authorised or authorises a particular person to assist in the calling of the panel or the selection of the jury. What it requires is that the judge in fact 'authorise' a person to assist. As was conceded, there is no reason to think that the word 'authorise' is used in that context in a sense other than its plain and ordinary meaning and, according to ordinary acceptation, an authorisation may be either express or implied (unless of course it is otherwise expressly provided or the context so requires). There is no contrary provision or implication of contrary intention in relation to s 30(4). For the purposes of the section, an authorisation may be implied.

194 No doubt, it may be good practice for a judge to state expressly in open court that he or she authorises or has authorised a particular person to assist in calling the panel and the selection of the jury. Increasingly these days, that is ordinarily done. But where a judge's associate proceeds to call the panel in the presence of the judge with the judge's apparent authority, it will usually be sufficient to imply that the judge has authorised or thereby authorises the associate so to proceed.

195 In any event, in this case the matter was put beyond doubt when, at the outset of the empanelment of the second jury, the judge announced that he had authorised the associate to call the panel and to assist in the selection of the jury:

You should listen to the information carefully and pay careful attention to the information you will be given on paper shortly to see if you recognise any of the names or have any other information or knowledge about the case. If you do, you should apply to be excused when my associate, whom I have authorised to do this, asks you in a moment.

196 Immediately after a jury ('the first jury') had been empanelled and retired to select a foreman, but before the case was opened, it was brought to the judge's attention that a challenge to one of the members of the panel had been uttered by the applicant's solicitor on the applicant's instructions rather than by the applicant himself. The judge was persuaded that, because the applicant had not uttered the challenge himself, there was sufficient risk of contravention of s 39 of the Juries Act[55] to warrant that the jury be discharged, and so his Honour discharged the jury. The judge then directed that members of the discharged jury return to the floor of the court where the remainder of the panel were still seated and be added to the panel from which a second jury was then drawn.

197 At the time of the trial, reg 10 of the Juries Regulations 2001 provided[56] that:

(1) If a jury is empanelled and sworn, any person who has been selected and allocated but has not been empanelled must without delay return to the jury pool room, and that person again forms part of the pool.

(2) If a jury empanelled for any trial is discharged by a judge, the members of that jury must without delay return to the jury pool room, and if any juror has not attended for jury service for the period specified in the summons or for any period that the Juries Commissioner in special circumstances directs, the person again forms part of the pool.

198 The gist of the applicant's second complaint under ground 2 is that, by ordering the members of the discharged jury to be added back to the panel, the judge contravened reg 10(2) of the Juries Regulations 2001 and thereby caused a miscarriage of justice. Counsel for the applicant argued that reg 10(2) required in all circumstances that, if a jury is discharged, the members of the discharged jury must return to the jury pool room.

199 We do not think there to be any substance in that argument. Regulation 10 is to be construed in context and, critically for this purpose, the context includes reg 5. It was as follows:

The Juries Commissioner may summon a panel of jurors to a court and if a judge or the Juries Commissioner consider[s] it necessary the panel may be selected from a jury pool or be augmented from a jury pool.

200 Reading regs 5 and 10 together so as to give coherent effect to the regulations as a whole, we consider that the correct construction of them is that:

a) perforce of reg 10(1), upon the jury being discharged, each member of the discharged jury ('discharged juror') became once again a member of the jury pool and, other things being equal, would have been required to return to the jury pool room;

b) perforce of reg 5, the judge was empowered to order that each of the discharged jurors, as members of the pool, be added to the panel from which to select the second jury;

c) it was implicit within regs 5 and 10 that if, as here, the judge chose to direct the discharged jurors to join the panel, the judge was empowered to direct that they join the panel directly, by going straight from the jury box to join the remainder of the panel on the floor of the court, rather than indirectly by first returning to the jury pool room and then returning to join the remainder of the panel on the floor of the court.

201 We are fortified in that conclusion by the fact that the same procedure was adopted in R v Gallagher[57] and it was not suggested that there was anything questionable about it.

202 The applicant's third complaint under ground 2 was that Juror 204 was not properly sworn and that the failure properly to swear the juror was a fundamental defect in the empanelment process which deprived the applicant of a fair trial.

203 The answer to that, however, as counsel for the Crown pointed out, is that, if Juror 204 were not properly sworn, he was discharged with the other members of the first jury and any defect of the kind alleged in relation to the first jury had no effect upon the validity of the appointment of the second jury. Counsel for the applicant ultimately conceded that was so.

(iv) Involvement of informant in empanelment process

204 Finally, under ground 2, it was contended that the informant had become involved in the empanelment process by assisting court officers to hand out a list of prospective witnesses to the panel before the jury was selected; and, because the informant was not duly authorised under s 30(4) of the Juries Act to assist in the empanelment of the jury, the jury were invalidly appointed.

205 We do not accept that contention. Section 30(4) does not require a judge to authorise someone acting as a mere usher or otherwise assisting an authorised person with the purely mechanical tasks associated with the empanelment of a jury, such as, for example, shepherding pool members from the jury pool room to and from the court room, or to or from the jury box, or handing out documents or headsets or other paraphernalia.

206 No doubt, it is a good idea to avoid anyone associated with the prosecution, including the informant or any other police officers, from appearing to be associated with the authority of the court. Consequently, a judge should take care to avoid an informant or other police officer becoming involved in any part of the process or doing anything which might conceivably be seen by a layman as associated with the authority of the court. But, that said, there is no suggestion here that what the informant did amounted to anything more than courteously assisting court officers to pass documents down the rows of seated panel members at the outset of the pre-empanelment process. In our view, such behaviour fell well short of anything which might legitimately be regarded as exceptionable.

208 Ground 3 claims that the judge erred 'by allowing the prosecution to adduce inadmissible hearsay evidence from Hogan which tended to identify the applicant as the second offender in the armed robbery'.

209 The evidence in question was that on the night of the robbery Ryan told Hogan that his share of the proceeds of the robbery had been left under the seat in the hire car and that Ryan had later left a note on the applicant's van, saying that Ryan needed to talk to him before he returned the hire car. Hogan said that he went with Ryan to a laneway in the city to search for a van near the applicant's place of work, and that when it was not found Ryan got him to drive over the Westgate Bridge. The aspect of the evidence which the applicant argued was inadmissible hearsay was that Ryan told Hogan that:

(a) when they went to an area in the city they were searching for 'Hugo's van';

(b) they were going to the area where the applicant was living, to make sure that the message which Ryan had put on the van had been taken from it;

(c) when they returned to the applicant's street after having a meal, Ryan said 'the car's here now', referring to a van parked near the applicant's house;

(d) when Ryan came back to the van he said that 'everything's sorted out' implying that the applicant had taken care of the payment.

210 In a ruling handed down on 3 December 2008,[58] the judge held that the evidence which it was anticipated Hogan would give[59] came within the exception to the hearsay rule articulated in Tripodi v The Queen[60] and Ahern v The Queen.[61] That permits the admission of hearsay evidence given by one person who has agreed to commit a crime, about acts or declarations made by another party to the agreement, in furtherance of their common purpose. The principle requires reasonable evidence of the pre-concert to be adduced before the acts or words of one of the parties in furtherance of the alleged common purpose become admissible against another party to the agreement.[62] The hearsay evidence sought to be adduced cannot be relied upon for that purpose.

211 The judge held that the impugned statements were made in furtherance of the purpose of the robbery, which involved the sharing of the stolen funds between the participants.[63] His Honour rejected defence counsel's argument that none of Ryan's evidence could be taken into account as evidence independent of the hearsay evidence in considering whether there was reasonable evidence of the participation of the accused in the arrangements.

212 On the basis of the Crown opening, the evidence given at the Basha hearing and other circumstantial evidence which the Crown proposed to lead, his Honour was prepared to assume that there was 'reasonable evidence of the participation of the applicant in the pre-concert'. The ruling was subject to the qualification that the matter might need to be re-considered in the course of the trial.[64] Later in the trial, after Ryan had given evidence and Hogan was about to do so, there was some discussion between the judge and defence counsel in which defence counsel sought to revisit the ruling, or to have Hogan's evidence excluded because of its inconsistency with Ryan's evidence. The judge declined to revisit the ruling, observing that 'in broad terms the evidence has been what I expected it to be'.

213 The applicant contends that Hogan's evidence was 'mere narrative' which did not relate to the future conduct of those involved in the agreement. Counsel for the applicant submitted that by the time Ryan made the impugned statements the robbery was complete and it was unnecessary for the men to do anything more to pursue their purpose. Counsel further submitted that there was no reasonable evidence, independent of the evidence of Hogan and Ryan, that the applicant was a participant in the agreement to carry out the armed robbery. The arguments made in reliance on the 'unsafe and unsatisfactory ground' (ground 10) were relied upon in support of this ground as well. Finally, counsel contended that, even if the evidence were admissible, its probative value outweighed the danger of unfair prejudice to the applicant and the judge should have exercised his Christie[65] discretion to exclude it.

214 The Crown contends that his Honour correctly ruled that the evidence was admissible despite its hearsay character, under the Ahern principle.

215 In our view, his Honour correctly held that the evidence was not merely a narrative of a crime 'which had already taken place'. In R v Su,[66] this Court held that evidence of statements made in a phone call by a co-conspirator in a conspiracy to import drugs, that some of the conspirators had been apprehended in Melbourne, was admissible despite the fact that the conspiracy had been thwarted by the time the phone call was made. The Court rejected the argument that the conversation was simply a narrative of a past event, holding that the fact the statement was intended to warn a co-conspirator meant that it was a statement made in furtherance of the conspiracy.

216 The declarations made in this case were more closely related to the agreement to carry out an armed robbery than the declarations made in Su. Here, although the robbery had been accomplished earlier in the day, the three participants in the armed robbery had intended to divide the proceeds between them. Hogan's evidence was that he was to be paid $20,000 for acting as the spotter. Ryan's evidence was that he had gone to the hire car office in an attempt to retrieve the money left in the hire car, in order to make the agreed payment to Hogan. The delivery of the spoils was part of the alleged agreement. That meant that the acts and declarations of Hogan and Ryan were admissible against the other participants in the pre-concert, as long as there was reasonable evidence on the basis of which his Honour could conclude that the applicant was a participant in the agreement to undertake the armed robbery.[67]

217 In this case, the judge was entitled to regard the evidence of Ryan at the Basha hearing about matters implicating the applicant, combined with the evidence that Hogan drove to Maddox Road on the night of the robbery, as 'reasonable evidence' of the applicant's involvement in the pre-concert and the offending. His Honour could also rely on circumstantial evidence supporting that participation, including the use of the applicant's credit cards to hire the cars used and proposed to be used in the robbery, the applicant's phone silence on the day of the robbery and the applicant's expenditure of $20,000 in cash in the week after the robbery. Thus, Hogan's hearsay evidence as to what Ryan said to him about 'Hugo's van' and Hugo's house was admissible under the Ahern principle.

218 His Honour did not err by failing to exercise the Christie discretion to exclude Hogan's hearsay evidence. Whilst Ryan denied that he told Hogan about 'Hugo's house' and 'Hugo's van', if the jury rejected that denial Hogan's evidence had significant probative value, particularly when combined with Stevens's evidence that she saw a white van close to the applicant's house and the evidence of James, and Ryan to the same effect. The evidence was not unfairly prejudicial to the applicant.

Ground 4 - The learned trial judge erred by failing to (a) adequately detail the dangers that were inherent in convicting the applicant on the evidence of Ryan and Hogan in his warning to the jury; and (b) by failing to give a full unreliable [witness] warning for James.

220 At the trial, the Crown accepted that an accomplice warning should be given in relation to the evidence of Ryan and Hogan. In his charge, the judge told the jury that there were special rules relating to evidence given by accomplices, which applied to Ryan and Hogan's evidence. He said that:

Certain consequences follow from it being determined that these two witnesses are accomplices. Their evidence must be scrutinised by you with a clear warning in mind that I am about to give you. The warning is this: it is the experience of the law that when giving evidence accomplices will often seek to justify their own conduct. In doing so they may try to shift the blame for their offending wholly or partly on to others. In the process they will often construct untruthful stories which tend to excuse the guilty and incriminate the innocent. Mr Desmond puts to you that is precisely what has occurred in this case.

Although judicial experience shows that the evidence given by accomplices is frequently unreliable, that does not mean you may not take it into account. However I am required by the law to warn you that it is dangerous to convict an accused person on the uncorroborated evidence of an accomplice. I will repeat that. It is dangerous to convict an accused person on the uncorroborated evidence of an accomplice.

So where the evidence of an accomplice is relied on by the Crown, as it is here with Mr Ryan and Mr Hogan, it is dangerous for you to find the accused man guilty of either offence on that evidence in the absence of corroboration. I will come shortly to describe what corroboration means.

221 His Honour went on to describe what could amount to evidence corroborating Ryan and Hogan's evidence of the applicant's involvement and then repeated his original warning, telling the jury that

So I warn you that whilst you may convict the accused on the evidence of an accomplice, and upon that evidence alone it would be dangerous to convict unless it is corroborated. If you intend to rely on the evidence of Leonard Ryan and Sean Hogan in any material respect, that is to rely on it to incriminate Hugo Rich in either or both of these offences, you must scrutinise it very carefully, and only if you are satisfied about the evidence beyond reasonable doubt can you use it against the accused without corroboration.

I should also tell you that the Crown does not rely on the evidence of Ryan and Hogan to corroborate each other, in other words, when you are looking to see what evidence supports particular evidence of Mr Ryan, the Crown does not point you to the evidence of Mr Hogan, and vice versa. So when you are looking to see whether there is corroboration of the evidence that they have given, you should not rely on the evidence of the other as being corroborative. Do you understand that? They are to be looked at separately. If you are examining a particular piece of evidence given by Ryan which might tend to incriminate Mr Rich and you are looking to see whether it is corroborated, you don't look at the evidence of Mr Hogan and vice versa.

As I said, I will come back to this when I come to deal with the issue of how these witnesses might be assessed by you and I will identify the evidence relied on by the Crown which they say corroborates the evidence of Mr Ryan and Mr Hogan, but it is important for you, members of the jury, to remember that both these two witnesses are in a special category of witnesses and they are not assessed in the same way as other witnesses. They are in a special category to which special rules apply which I have endeavoured to point out to you.

222 Defence counsel took exception to the accomplice warning, submitting that the judge should make reference to other matters said to be particular dangers of relying on Ryan and Hogan's evidence. The judge declined to do so on the basis that the matters raised were arguments put by counsel, rather than dangers which should result in rejection of the evidence.

223 Nevertheless, the judge reminded the jury of the arguments made by defence counsel about the unreliability of Ryan and Hogan, making specific reference to the argument that both had received lower sentences for their part in the armed robbery because they had given undertakings to give evidence against the applicant. He said that:

The purpose of that evidence was to demonstrate that Ryan and Hogan are accomplices and also enables the criticism to be made of their evidence that they had a motive to tell lies. You will remember the arguments put, particularly on behalf of the accused by Mr Desmond, that of course each of them gave undertakings to give evidence in respect of which they then received a lesser than otherwise expected sentence. That was, Mr Desmond relied upon, a reason why you would treat their evidence with great care because they had a motive to tell lies.

224 His Honour then turned to the position of the witness James, referring to defence counsel's argument that James should not be considered a witness of truth. His Honour said the following:

However, in summary, among other things, Mr Desmond put to you that Mr James had gone from being a suspect, at least in his mind, to being a witness, and referred, as I have said, to his criminal history. This is entirely a matter for you, members of the jury, but if you accept the evidence that Mr Desmond refers to for the purpose of suggesting that Brent James is unreliable, then you should scrutinise his evidence about Rich's absence from the office during the day on 1 March and 8 March 2005, and the events on the evening of 8 March 2005 with special care. You should only act upon his evidence if after this scrutiny you accept its truth and that you accept that it is safe to convict on it despite its unreliable source.

225 His Honour pointed out that the prosecutor had accepted there were inconsistencies in James's account of the events of 8 March 2005. He also told the jury that the prosecutor relied only upon James's evidence 'in a limited way' in order to demonstrate that the applicant was not in the office on the day of the robbery and that his mobile phone was silent.

226 When later summarising the evidence, his Honour again told the jury that Ryan and Hogan were accomplices and referred to his previous warning that 'it is dangerous to convict an accused person on the uncorroborated evidence of an accomplice'. He said that the Crown relied on the evidence of Hogan and Stevens as to the meeting between the applicant and Ryan at the applicant's house, where Ryan said he had gone to retrieve Hogan's $20,000 share of the proceeds of the robbery. He described other evidence which the Crown relied upon to corroborate their evidence and referred to the arguments made by defence counsel as to inconsistencies between the evidence of Ryan and Hogan and the unreliability of James.

227 His Honour summarised James's evidence, again reminding the jury that:

If you think that he is as unreliable as Mr Desmond puts to you that he is, and that the factors which he relied upon are significant in coming to a view about Mr James' reliability and credibility, then you should first of all scrutinise this evidence carefully, and, secondly, look for other evidence that might support Mr James' evidence. Whether you think that is the position is a matter for you.

228 After completing the summary of James's evidence, his Honour again reminded the jury they should scrutinise his evidence with care and not look at it in isolation from the other evidence.

229 Later in his charge, the judge once more drew the attention of the jury to defence counsel's arguments as to why the jury should not rely on the evidence of Ryan, who was described by defence counsel as 'a liar motivated by self-benefit', Hogan who was said to be 'similarly unreliable' and who had a motive to lie in order to obtain a lenient sentence and James, whom defence counsel said was 'at risk of being charged himself.'

230 Counsel for the applicant submitted that the warnings given by his Honour were inadequate. In relation to ground 4(a) he contended that the judge should have given a more detailed explanation as to the reasons why it was dangerous to rely on the uncorroborated evidence of Ryan.

231 In relation to 4(b), he argued that the unreliable witness warning relating to James's evidence did not go far enough. His Honour had simply told the jury that they might regard James's evidence as unreliable. Counsel submitted that although James was not an accomplice in the armed robbery, he had a motive to lie equivalent to that of an accomplice,[68] because the police had initially treated him as a suspect for the robbery and he was a possible alternative offender. Counsel argued that a full Faure warning[69] was required so that the jury were warned with the full weight of the judge's authority of the dangers of convicting a person on the evidence of a 'tainted witness' and of the importance of finding other supporting evidence.[70] The trial judge should have explained the reasons for the warning and should have told the jury what would amount to corroboration of James's evidence. Counsel prayed in aid that, in Faure, counsel had referred to the matters which cast doubt on the witnesses evidence and the judge had repeated these arguments. Despite the unreliability of the evidence having been brought to the jury's attention, it was held in that case that the judge's general comment about the need to scrutinise the witness' evidence with care was insufficient to guard against a miscarriage of justice. The same was said to be the case here.

232 In support of the argument that James was a possible alternative offender, counsel pointed to James's evidence that he had received a mysterious phone call while he was driving home from work saying that 'it's under the seat,' which James could have been intended to divert suspicion from himself and cast it on the applicant. He also relied on James's initial denial that a receipt for cigarettes, which was found in the Fort Knox storage locker, could have been his[71] and his later admission, when confronted with records showing a bank transaction for the relevant amount, that the receipt related to cigarettes purchased by him. Reference was also made to other inconsistencies between Ryan's and James's evidence (which are discussed under cover of ground 10 below). Particular reliance was placed on the conflict between the evidence of Stevens, Hogan and Ryan that they saw a white van parked outside the applicant's house on the evening of the robbery, and James's evidence that he drove that van home, parked it in his driveway and purchased a retrospective City Link pass for it at 1:00 am on 9 March 2005. Counsel submitted that the need for a warning with the full weight of his Honour's authority was reinforced by the fact that James was part of a criminal milieu[72] and that he had a proven history of dishonesty.[73] His Honour, he said, had not sufficiently drawn these matters to the attention of the jury.

233 The Crown submitted that his Honour was not required to give such a warning to prevent a miscarriage of justice. His Honour had instructed the jury to approach James's evidence with considerable care. Further, a full warning could have disadvantaged the applicant, who sought to rely on some aspects of James's evidence as a basis for attacking the evidence of Ryan and Hogan. James's evidence that he had not seen the note which Ryan said he had left on the PLN van and that he had left the van parked in his driveway was favourable to the defence attack on Ryan's evidence.

234 As counsel for the applicant submitted, Ryan had an extensive criminal history and was prepared to lie when he considered he would be advantaged by doing so. This was exemplified by the preparation of a document by Ryan, Hogan and the applicant while remanded in custody, in which they recorded various possible innocent explanations of matters relevant to the offences charged ('the relevant issues document'). In our view, however, ground 4(a) is not made out.

235 The accomplice warning given by his Honour was strongly expressed and twice repeated. His Honour referred at length to defence counsel's arguments about the unreliability of Ryan and Hogan's evidence. His Honour told the jury that Ryan's evidence was 'contentious' and that it was the experience of the law that accomplices often try to shift their own guilt onto others. As was required,[74] his Honour directed the jury as to the need for corroboration and the matters which were capable of corroborating Hogan and Ryan's evidence.

236 We also reject ground 4(b). Because James was not an accomplice, he did not fall within the special class of witnesses whose evidence is seen as so intrinsically unreliable that a trial judge must give a warning with the weight of his judicial office and direct the jury on the evidence which is capable of being treated as corroboration.[75] The question is whether a warning about James's evidence, as opposed to a judicial comment, was necessary and practical in the circumstances of the case in order 'to avoid a perceptible risk of miscarriage of justice'.[76]

237 The factors which should be taken into account in deciding whether that was the case were described in Miletic and summarised in R v Strawhorn[77] as follows:[78]

In [Miletic] the Court identified four aspects of that general principle. The first is that a perceptible risk is one that is real, or of substance, as opposed to a theoretical or insignificant risk. Secondly, the factors calling for the warning must be such that it would be unsafe to leave the jury to rely only upon the arguments of counsel. Thirdly, weight should be given by an appellate court to the judge's assessment of what was necessary in the circumstances of the trial. Finally, the consequences of failure to give the direction depend upon whether, in the event, there has been a miscarriage of justice. In Bromley v R,[79] Brennan J in referring to the circumstances in which a warning is required stated:

The rules of practice requiring the giving of a warning owe their existence, as Lord Hailsham acknowledges in Spencer ... "partly to the inherent dangers involved, and partly to the fact that the danger is not necessarily obvious to a lay mind": ... If the danger is equally obvious to the lay mind, a failure to warn of its existence is much less likely to result in a miscarriage of justice and thus much less likely to provide a ground for quashing a conviction than if the court has a special knowledge of the danger. If the danger is so obvious that the jury are fully alive to it without a warning, no warning need be given. As Barwick CJ said in Kelleher ...:

"The rule of practice as to the warning to be given to the jury is related to the reasons which have prompted it. In my opinion, it does not require a warning where those reasons have no play".

When the danger is not obvious to the lay mind, the absence of the usual warning may leave a Court of Criminal Appeal unable to say that a reasonable jury properly directed on the evidence would have convicted.[80]

In Miletic,[81] the Court said:

In our opinion a distinction should also be drawn, in cases such as the present, between circumstances that it is well within the ability of the jury to assess for themselves and factors the full significance of which may be more apparent to the judge: cf Bromley v R ... and Carr v R ... Appellate intervention is much more likely to be warranted in the latter case than in the former. Where a concatenation of circumstances is within the capacity of a jury to evaluate, in the light of their own experience and with the benefit of counsel's addresses, it is only in exceptional cases that a warning is required. More often it is simply a matter for the judge to decide whether or not it is appropriate to make a comment for the assistance of the jury.[82]

In R v Weiss,[83] Callaway JA, in reference to a Faure warning, said as follows:

... 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 emphasised by the judge. Only then does it become necessary to give a warning which emanates from the judge with the weight of judicial office.[84]

238 Counsel for the applicant sought to cast suspicion on James as the third man at the robbery and the shooter. In his evidence, James freely acknowledged that at an earlier time he may have been a suspect for the shooting, but said that there was no evidence which directly implicated him. We do not accept the applicant's argument that James's evidence was comparable to that of the prisoners in Ali. In that case, this Court held that, although the judge told the jury that the prisoners were 'dangerous witnesses' and their evidence should be carefully scrutinised, the judge's failure to identify the matters capable of constituting corroboration of their evidence gave rise to a miscarriage of justice. In Ali, however, all of the witnesses were present in the prison cell during the attack on the victim, the appellant told all those present not to say anything about his attack on the victim, one of the witnesses allegedly put sticky paper over the security camera lens in the cell at the appellant's direction and none of the prisoners did anything to discourage the assault. By contrast, James had only a very peripheral involvement in the events leading up to the robbery and, as his Honour noted in his ruling relating to jury warnings, James 'received no benefits from giving evidence and [did not] receive any indemnity against prosecution.'[85]

239 James was cross-examined over a period of five days during which inconsistencies between earlier evidence he had given to the Chief Examiner and the evidence he gave at the trial were fully exposed. As well as telling the jury they should scrutinise James's evidence carefully, his Honour identified inconsistencies in James's evidence, told the jury that the Crown relied upon it for only limited purposes and referred extensively to defence counsel's submissions on his unreliability. In Miletic, this Court differentiated between cases where the circumstances are within the capacity of a jury to evaluate in the light of their own experience and with the benefit of counsel's addresses, and those exceptional cases where a stronger warning is required.

240 In our opinion, it would have been obvious to the jury that they should take considerable care in relying on James's evidence. The jury were perfectly capable of assessing his credibility, having regard to his Honour's comment and counsels' arguments. Accordingly we agree with his Honour's ruling that

The attack on Mr James credibility has been clear for the jury to see. The fact of inconsistency, the attacks on his credibility and his prior convictions will not of themselves require the full warning to be given.[86]

Ground 5 - Failure to leave alternative possible verdict of manslaughter

242 It was contended under ground 5 that the judge erred by not leaving manslaughter to the jury as a possible alternative verdict. As originally put in the applicant's written case, the argument was that there was a viable case of manslaughter to the effect that, if the applicant were the robber who shot the deceased, it was reasonably possible that he shot without intention to kill or inflict really serious injury. It was submitted that possibility could not be excluded as a reasonable possibility because:

(a) the co-accused did not give evidence that the shooting of a guard was planned or intended;

(b) there was no forensic evidence that the shooting was intentional;

(c) it was not possible to discriminate between an intentional and unintentional shooting in video footage of the incident played to the jury;

(d) one witness gave evidence that the deceased was 'body-slammed' before the witness heard a gunshot, suggesting that the weapon discharged accidentally; and

(e) the entry point of the bullet into the right shoulder of the deceased, and the distance from which the weapon was fired, were consistent with the possibility of accidental shooting.

243 As counsel for the applicant later conceded in oral argument, however, the suggestion that the applicant may have fired unintentionally flew in the face of the way in which the trial was conducted. As the judge observed in one of his rulings on the subject:

Neither senior counsel for the Crown, nor leading counsel for the accused wishes me to leave manslaughter as an alternative verdict. I had originally indicated that I would not leave manslaughter and I propose to adhere to that position.[87]

244 The argument as originally put also overlooked that defence counsel was opposed to the judge inviting the jury to consider the possibility of unintentional shooting, because of the risk that it would lead to the applicant being convicted of murder under s 3A of the Crimes Act 1958. As the judge said in his ruling on that point:

The prosecutor has submitted that I should incorporate into my description of the legal elements of murder a reference to s.3A of the Crimes Act which is in the following terms:

(1) A person who unintentionally causes the death of another person by an act of violence done in the course or furtherance of a crime, the necessary elements of which include violence for which a person upon first conviction may under or by virtue of any enactment be sentenced to Level 1 imprisonment (life) or to imprisonment for a term of 10 years or more shall be liable to be convicted of murder as though he had killed that person intentionally.

...

Mr Desmond on behalf of the accused submits that I should not refer to s.3A on the basis of the manner in which the case has been conducted.

There is no question that the Crown have conducted this case such that if the jury are satisfied that the accused participated in the armed robbery, then the shot which the Crown say he fired was fired with an intent to kill. Mr Desmond submits that there is no factual basis on which s.3A, as an alternative means of reaching a verdict of guilty of murder, could be put to the jury.

I have reviewed the evidence of the eyewitnesses, apart from that of Mr Ryan who, as I understand his evidence, did not actually see the shot being fired. As far as I can tell, all witness[es] who saw the shot fired describe it as a deliberate shot. Even the witness who described wrestling, Ms Werninghaus, appeared to describe the shot being fired deliberately after the wrestling had come to an end. Most describe the person firing the gun as pointing the firearm at Mr Kastenberger. I cannot identify anything in any of that evidence that might suggest the shooting was 'unintentional'. Apart from some evidence about 'wrestling', Mr Tinney has not referred me to anything else.

In the circumstances, I do not consider that there is any factual basis on which s.3A of the Crimes Act can be relied upon as the second basis for a verdict of guilty of murder. I do not propose to direct the jury about it thus the prosecutor should not rely on it in the course of his address.[88]

245 As a result, during the course of oral argument in this court, counsel for the applicant abandoned any suggestion of manslaughter based on a possibility that the applicant might have shot the deceased unintentionally and instead put the argument for manslaughter on a new and different basis. It was that a viable case of manslaughter inhered in what he submitted was the reasonable possibility that Ryan was the shooter and that his actions in taking a loaded weapon into the robbery and using it to shoot the deceased were beyond the scope of the common design to rob and what the applicant foresaw as the possible incidents of the robbery being carried out.

246 Despite that fundamental change in tack, the history of this proceeding suggests that the applicant might be inclined at some later stage to argue once again that the shooting was unintentional. Consequently, before dealing with the new argument, we should make clear that we agree with the judge that there was not sufficient evidence to render an unintentional shooting a reasonable possibility.

247 The fact that the co-accused did not give evidence that the shooting of the guard was planned or intended is not of itself sufficient to raise the possibility the shooting was accidental.

248 Equally, although the forensic evidence was in some ways ambivalent, it was so in respects which are of no assistance to the applicant. The pathologist, Dr Burke, considered that the bullet which caused the deceased's death was fired from an 'intermediate distance range' but said that gun barrel testing would be required to say how far the barrel was from the deceased's skin when fired. Alan Pringle, the expert firearm and tool mark examiner called by the Crown, stated that, based on the damage to the deceased's shirt and the marking on his wound, the weapon was discharged with the muzzle in contact with or very close to the deceased's shirt.

249 We accept that the video footage was inconclusive as to the identity of the shooter. But there is nothing in it which implies that the shooting was unintended. Whether one views the footage at ordinary speed or in slow motion, the only impression which we are able to derive from it is of two robbers emphatically going about the commission of their offence with force and purpose.

250 As to the applicant's contention concerning the significance to be attributed to the so-called 'body-slam' evidence, the substance of the evidence was as follows:

• Bruce Colin Duniam said that he saw two offenders, one shorter and one taller, and two security guards. The shorter offender ran up to one of the security guards and grabbed the bags of money and the taller offender:

ran into the [other] security guard, basically ran with his body weight into him pushing him against the wall. It was basically over within five seconds. There was - he was running quite on adrenalin, he ran into him, knocked the security guard into the window, spun around and then he shot him. ... I didn't see that he had a gun, I heard a shot and realised afterwards because the security guard had died that he had shot him.

• Maria Faulisi said that she saw two men run from a huddle towards the corridor. The taller of them then returned and lifted his arm with a gun. She saw the deceased walking very slowly in front of the bank towards the entrance and then heard the sound of 'a popgun go off and shot him'.
• Genevieve Werninghaus said that she saw two men wrestling. One was in dark clothing with a balaclava and a yellow fluoro top and the other was in dark clothing. The man without the fluoro top went to ground with his feet towards the Go-Lo store and his back towards the Commonwealth Bank. The man with the balaclava had a pistol in his right hand and was aiming it at the man on the ground. He then lent over the man on the ground and fired a shot.
• Elizabeth Marie Grant said that she heard yelling from the man that was shooting.[89] He was wearing an orange fluoro shirt and was in front of the Commonwealth Bank. He yelled at the security guard and then shot him in the head.
• Maxine Nola Barry said that she saw three men and then one of them point at a man who seemed to be falling. When she first turned and observed that taking place, it looked as though the man who was pointing was pointing his finger. Then she realised it was a gun. She said that it looked like an extension of his hand, like a long black finger. The man who was shot was almost lying on the ground when the orange-topped offender took a pace towards him, made the pointing action and then the shot was fired.
• Bethan Esme Sims said that, after she saw the yellow-topped offender, she heard a loud bang. She looked over to the orange-topped offender and saw that he was holding a gun in his right hand. He had his arm outstretched with the weapon pointing slightly down. She had no doubt it was the orange-topped offender who shot the guard although she agreed that she might have been mistaken when she had earlier stated that the deceased was shot in the head.
• Finally, there was Leonard Ryan's evidence. He said that the idea had been to intercept the guards before they reached the inside of the bank. When he and the applicant came out the corridor from the toilet area it was at a brisk walk, not 'full running', and the applicant was yelling 'Get on the ground'. Ryan said that he was pointing his gun in front of him towards the guards and he thought that the applicant was doing the same. The applicant was in front of Ryan and approached the guard closest to the entrance to the Bank and, as that was happening, a bag was thrown over to Ryan's left side to the right of the Go-Lo stuff. Ryan said that he ran over to the bag and grabbed it. He might have touched the second guard but he did not think that he had. As he bent down to get the bag, his sunglasses fell out of his pocket. At that point, he heard a loud 'pop', like a broom handle falling off a wall and slapping down on the linoleum floor. He did not register it as a gunshot, he described it as surreal. He did not think anyone had been shot because he did not see the guards take their guns out. The applicant was right up against the first guard, the deceased. The applicant came around the corner and then retreated to the exit sign where he stood making sure that everything was taken care of while Ryan was grabbing the bag. The applicant told Ryan to go back and grab his sunglasses and Ryan turned around and went back and picked them up. He then ran back the way he came in, although he became disorientated and ended up in another room. He realised what he had done and then came back out where the applicant was waiting. They then both made their way to the waiting van.

251 In our view, none of that evidence implies the existence of a reasonable possibility of accidental shooting. All of it is consistent with a deliberate shooting and, if the evidence of Mr Duniam, Ms Werninghaus and Ms Sims be accepted, it establishes beyond reasonable doubt that the shooting was deliberate.

252 We turn to the new argument that (notwithstanding defence counsel's position at trial that it was not open to reject Ryan's evidence that the applicant was the shooter without also rejecting Ryan's evidence that the applicant was the other participant in the armed robbery) it was open to the jury to find there was a reasonable possibility that the applicant and Ryan were the robbers; but that Ryan, rather than the applicant, was the shooter; and that Ryan's actions in going with a loaded weapon into the robbery and firing it at the deceased were beyond the scope of the common design to rob and beyond what the applicant foresaw as a possible incident of carrying out the robbery.

253 Counsel for the Crown advanced three arguments in opposition to that contention. First, he submitted that, if there were sufficient evidence to yield a reasonable possibility of the applicant being present but not the shooter, the fact that the applicant was acting in concert with Ryan in the commission of an armed robbery would necessarily have rendered the applicant guilty of murder by reason of s 3A of the Crimes Act 1958.

254 Secondly, counsel said, because the jury were directed that they could not convict the applicant of murder unless satisfied beyond reasonable doubt that the applicant was the shooter, and because the jury as so directed found that the applicant was guilty of murder, it must follow that the jury were satisfied beyond reasonable doubt that the applicant was the shooter. Hence, it could not have made any difference to leave manslaughter to the jury as a possible alternative verdict and, accordingly, the fact that it was not left as a possible alternative verdict did not result in a miscarriage of justice.

255 Thirdly, counsel argued that, in any event, there was not a viable case of manslaughter to be left to the jury.

(ii) Section 3A

256 Taking each of the Crown's submissions in turn, and assuming for this purpose that Ryan and the applicant were the offenders and that Ryan was the shooter, we do not accept that the fact that the applicant was acting in concert with Ryan in the commission of an armed robbery would necessarily have resulted in the applicant being found guilty of murder under s 3A of the Crimes Act 1958.

257 Section 3A provides that:

Unintentional killing in the course or furtherance of a crime of violence

(1) A person who unintentionally causes the death of another person by an act of violence done in the course or furtherance of a crime the necessary elements of which include violence for which a person upon first conviction may, under or by virtue of any enactment, be sentenced to level 1 imprisonment (life) or to imprisonment for a term of 10 years or more shall be liable to be convicted of murder as though he had killed that person intentionally.

(2) The rule of law known as the felony-murder rule (whereby a person who unintentionally causes the death of another by an act of violence done in the course or furtherance of a felony of violence is liable to be convicted of murder as though he had killed that person intentionally) is hereby abrogated.

258 Armed robbery is a crime of which the necessary elements include violence and which is punishable on conviction by more than 10 years' imprisonment,[90] and an act of violence within the meaning of the section includes not only physical force but also those aspects of intimidation and seeking to intimidate by the exhibition of physical force or menaces as at common law were considered to constitute of violence.[91] It follows that, if someone is shot dead during the course of an armed robbery, the shooter could be convicted of murder on the basis of s 3A. But it does not follow that another party to a joint criminal enterprise to commit the armed robbery would necessarily be guilty of murder.

259 As this court held in R v Galas,[92] where, in the context of a joint criminal enterprise to commit a violent offence of the kind to which s 3A applies, one offender commits a willed act of violence in the course or furtherance of the crime which results unintentionally in the death of a victim, that offender is guilty of murder by reason of s 3A. But, depending upon another participant's state of knowledge, the other participant may be found guilty of unlawful and dangerous act manslaughter. As the court explained:[93]

Finally, it is submitted that R v Butcher is authority for the proposition that there is not room for manslaughter to be left as an alternative to statutory murder. In R v Butcher the Full Court held that the trial judge was correct in not leaving manslaughter by an unlawful and dangerous act to the jury. The court said:[94]

In the circumstances of this case, the only act being considered was the holding out of the knife whilst demanding money and we are unable to see how manslaughter by an unlawful and dangerous act could have been put as an alternative to murder unless the robbery was at an end.

On this basis, counsel for the second applicant submits that manslaughter by unlawful and dangerous act was subsumed by statutory murder because any unlawful and dangerous act causing death also amounted to an act of violence causing death.

It is thus argued that the second applicant should not be retried on the count of manslaughter, but instead should be acquitted by direction of this court. This argument cannot be accepted. It is apparent that for an act to be unlawful and dangerous, it need not be a violent act of the nature required by s 3A of the Act. In this case, irrespective of the knowledge of the second applicant as to whether or not the handgun in the possession of the first applicant was loaded, he was engaged in a joint enterprise. It was open to the jury to conclude that the use of violence [of a degree less than that employed] was part of the planned enterprise and that death by reason of that violence was a possible result of the enterprise.

Accordingly, a retrial of the second applicant on the count of manslaughter is the appropriate order to be made in all the circumstances.

260 In short, a person who enters into an agreement to commit a violent offence may be liable for a s 3A murder committed by the principal offender if the killing or the infliction of really serious injury was a possible incident of the planned endeavour. But, where the accomplice contemplated that an unlawful or dangerous act might occur within the scope of the enterprise but did not and ought not have contemplated that death or really serious harm would be caused to the victim, the accomplice may be convicted of manslaughter only.[95]

261 Turning to the Crown's second contention, we do not accept that it is a sufficient answer to the applicant's new argument that the jury were directed that they could not convict him of murder unless satisfied that he was the shooter and that, because they found him guilty of murder, they must have been satisfied beyond reasonable doubt that he was the shooter. To hold otherwise would be against the High Court's edict in Gilbert v The Queen,[96] which was later affirmed in Gillard v The Queen,[97] that:

if manslaughter should have been, but was not, left to a jury as an available verdict on the appellant's trial for murder, the verdict of guilty of murder did not preclude the possibility that the jury may have failed to apply the instructions they were given. No party in this appeal sought to reopen the decision in Gilbert. It follows from what was decided in Gilbert that, in deciding here whether no substantial miscarriage of justice has actually occurred and thus, whether the proviso to s 353(1) of the Criminal Law Consolidation Act applies, account may not be taken of the findings implicit in the jury's verdicts at the appellant's trial. It must be assumed that the jury may have chosen to disregard the instructions they were given, and convict the appellant of murder and attempted murder, rather than return verdicts of not guilty. Once it is accepted that the jury may have disregarded the instructions they were given, it is not permissible to reason, as the respondent submitted, from the fact that the jury returned verdicts of guilty on all three counts to the conclusion that the jury must therefore be taken to have applied the trial judge's instructions. Once it is said, as it was in Gilbert, that the jury may have disregarded the instructions they were given, it cannot be said that some levels of disobedience may be less probable than others.

If account cannot be taken of findings made by the jury at the appellant's trial, it is not possible for this Court to say that he did not lose a chance of more favourable verdicts than those returned. The appeal must be allowed, the orders of the Full Court of the Supreme Court of South Australia set aside and in their place there be orders allowing the appellant's appeal to that Court, quashing his convictions and directing that a new trial be had.

262 It is true, as counsel for the Crown submitted, that in Dupas v The Queen[98] the High Court based their decision to uphold a refusal to stay the appellant's trial on what their Honours described as akin to a species of constitutional fact, that:

the capacity of jurors, when properly directed by trial judges, to decide cases in accordance with the law, that is, by reference only to admissible evidence led in court and relevant submission, uninfluenced by extraneous considerations. That capacity is critical to ensuring that criminal proceedings are fair to an accused.

263 Contrary to counsel's submission, however, there is no inconsistency between the species of constitutional fact so identified and the recognition in cases like Gilbert[99] and Gillard[100] (and, before that, in Mraz)[101] that juries may be influenced by the consequences of their findings. Nor is there any contradiction between the species of constitutional fact recognised in Dupas and the pragmatic recognition in Gilbert and Gillard that, in the modern context of concern for victims of crimes and their relatives, a jury faced with the choice of murder or acquittal may hesitate to acquit but nevertheless be glad to take the middle road of manslaughter when and if it is offered to them.

264 Indeed, in Dupas[102] the High Court expressly differentiated between the aspects of jury behaviour recognised in Gilbert and Gillard and the assumed efficacy of the jury system in relation to 'ordinary' questions of fact which regularly arise for determination. More recently, in James v The Queen[103] the plurality affirmed that distinction as follows:

In Gilbert the jury was instructed that on the view of the facts for which the defence contended the accused was entitled to outright acquittal. The direction accorded with the law as it was understood at the time. The understanding proved to be wrong, as on the view of the facts for which the defence contended, it had been open to convict Gilbert of manslaughter. The question in this Court was whether the Queensland Court of Appeal erred in dismissing Gilbert's appeal against his conviction for murder under the proviso in s 668E(1A) of the Criminal Code (Q). The majority held that the verdict did not preclude the possibility that the jury had not applied the instructions concerning proof of the elements of murder. Gleeson CJ and Gummow J disavowed that appellate courts are to assume a mechanistic approach to fact-finding on the part of the jury. In this context, their Honours observed that the jury's findings of fact are made in the context of instructions as to the consequences of the findings. They referred with approval to statements in Mraz v The Queen concerning the 'realities' of jury deliberations when murder is in issue. In Mraz those realities were that murder was punishable with death. Gleeson CJ and Gummow J considered that an equally influential contemporary reality is that '[t]his is an age of concern for the victims of violent crime, and their relatives' (emphasis added). Callinan J, the other member of the majority, also reasoned that it is contrary to human experience, where there is a choice of decisions, that what is chosen will be unaffected by the variety of choices offered.

The rationale of the decision in Gilbert is discussed in Gillard. In that case manslaughter was not left when, on a view of the facts, it was an available verdict, albeit not one for which the defence contended. As Hayne J explained, the holding in Gilbert precluded the appellate court from taking into account the findings made by the jury and for this reason it could not be concluded that Gillard had not lost a chance of more favourable verdicts than those that the jury returned.

Gilbert and Gillard are concerned with the consequences of the wrongful neglect of the obligation to leave manslaughter to the jury in any circumstance in which it is open. History and recognition of the gravity of conviction for murder inform the obligation...[104]

265 It was submitted on behalf of the Crown that, given the way the trial was conducted - which is to say, that the Crown put its case solely on the basis that the applicant was the shooter and the defence put its case solely on the basis that the applicant was not present - it would have been unfair to the applicant to have left manslaughter as a possible alternative verdict. To do so, it was said, would have necessitated raising the possibility that the applicant was present but not the shooter and, in turn, that would have exposed the applicant to a risk of conviction of murder under 3A of the Crimes Act 1958 to which he would not otherwise have been subject. Alternatively, in the Crown's submission, it was plain that defence counsel and the judge were aware of that risk and ad idem that, in view of the way in which the case had been run, the fairest thing for the applicant was to avoid the risk by not leaving manslaughter as a possible alternative verdict.

266 Either way, counsel said, it must follow that, by acting as the judge did in those circumstances, his Honour made the trial as fair for the applicant as he could make it and, therefore, it did not now lie in the mouth of the applicant to say that the judge's decision not to leave manslaughter to the jury as a possible alternative verdict resulted in the applicant receiving an unfair trial.

267 Superficially, that submission is attractive. On one view of the matter, an informed choice of the kind made in this case is little different to an informed choice by an accused to waive the inadmissibility of evidence in the hope of thereby deriving a forensic advantage. Where an accused makes an informed choice of the latter kind, it is not considered that a trial is unfair just because the hoped for forensic advantage does not materialise. As McHugh J said in R v Suresh:[105]

It would undermine the system of adversarial criminal justice if the admission of technically inadmissible evidence, not objected to for rational forensic reasons, could result in the quashing of a conviction because the forensic tactics had failed to bring about the accused's acquittal.

Why should it be regarded as any more productive of an unfair trial if a choice of the kind made in this case in the hope of deriving a forensic advantage turns out in hindsight to have been the wrong choice?

268 As a matter of the highest authority, however, Gilbert[106] and more especially Gillard[107] are clear that it is no answer to a judge's failure to leave a viable case of manslaughter as an alternative to murder that the judge may have been acting in accordance with what the judge or defence counsel perceived to be the accused's best chance of acquittal. If there is a viable case of manslaughter which is not left to the jury, and the accused is convicted of murder, there will be a substantial miscarriage of justice by reason of the accused having been deprived of the chance of an acquittal of murder. We are bound to follow that approach.[108]

269 We turn then to the Crown's third contention, and so to the question of whether there was a viable case of manslaughter to be left to the jury. We do not think that there was.

270 According to Ryan's evidence, although the original plan was to use loaded weapons, neither Ryan nor the applicant was able to source any ammunition for the .38 revolver or the 9 mm Browning automatic which Ryan claimed Hogan had procured for the robbery. As a result, Ryan said, he and the applicant agreed between themselves to commit the robbery using unloaded weapons, in effect by bluffing the security guards and then grabbing one of the guard's weapons in order to hold the guards at bay. According to Ryan, it was only in the course of the armed robbery when he heard 'a pop' that he realised the applicant must have loaded his weapon in breach of the agreement to go in with weapons unloaded.

271 In order to find the applicant guilty of manslaughter as opposed to murder, the jury would need to have accepted Ryan's evidence that Ryan agreed with the applicant to commit the robbery with unloaded weapons but to have rejected Ryan's evidence that it was the applicant who, in breach of the agreement, went in with a loaded weapon and fired it at the deceased. As has been seen, the judge considered it was so unlikely the jury would adopt that course, and that to do so would have been so wholly at odds with the way in which the case had been argued by both the Crown and the accused, that there was not a viable case of manslaughter to be left to the jury.

272 With respect, we agree with the judge's conclusion, although for different reasons. We accept that, logically, the jury might have been disinclined to accept parts of Ryan's evidence while at the same time rejecting other parts of his testimony. But the jury were properly directed that they were entitled to do just that[109] and, in our view, the possibility that Ryan was telling the truth in some respects and lying in others cannot be dismissed as fanciful. After all, it would have been plain to the jury that Ryan had an extensive criminal background and had fabricated a large number of matters in order to shift blame from himself onto others. Further, as with any apparently credible confabulation, Ryan had only to change one or two details concerning matters of which he alone[110] had knowledge, and so upon which he could not be contradicted, in order to present the view that it was the applicant rather than Ryan who had secretly loaded his weapon and shot the deceased.

273 Admittedly, the preponderance of eye-witness evidence was that the taller of the two offenders was the shooter, and there was evidence that the taller offender was wearing an orange vest and the shorter offender wore a yellow one. But, as we view that evidence, the number of witnesses in favour of an orange-topped shooter was about equal to those in favour of yellow and there were other variations in the description of the offenders.

274 For example, the eye witness Crowe, who was one of the two security guards, said that the shooter wore a black balaclava and 'one of those yellow fluorescent work tops'. He also said that each of the offenders had a yellow fluoro top and he told police that the taller of the two offenders was the first one through the door to the toilet area. 'He was 6' tall, not overweight, athletic type build, medium build and quite fit looking'. Contrastingly, according to another witness, Duniam, one of the offenders was taller and heavier than the other, and the taller offender, who was the shooter, was 'Fat, unkempt. Fast food diet', while the shorter of the two offenders was 'probably 5'8", 5'10"' and also 'probably a little bit overweight'.

275 To different effect, the witness Ms Faulisi said that:

They had like workmen's fluoro tops. The taller one had an orangey top and one was a little bit shorter and he had a greenie [sic], yellowy [sic] top ... They were tall men, they were big men ... they ran from the huddle towards the corridor ... the shorter man went first and then the other one went and then he came back ... the one with the orange top, the taller of the men.

What did he do when he came back? --- He lifted his arm with a gun and he - I noticed the security man walking very slowly in front of the bank towards the entrance and he, I heard like a popgun go off and shot him. Initially the man didn't seem to move, he moved his head a little bit, and I saw his face and then the girl in the shop sort of pulled me down and said ---

They were both big men. One was taller, well over 6' tall. They were big but they weren't like, you know, they didn't have big stomachs or anything, they weren't like I'd call a big overweight man, just like big strong men.

276 In contrast, the witness Werninghaus said that the first things she saw was two men wrestling:

One man was in dark clothing wearing a balaclava with a yellow fluoro top and the other gentleman was also in dark clothing from what I remember ... Eventually one man, not the man with the yellow fluoro top but the other man, he stumbled and fell to the ground ... After that the man with the dark clothing and the balaclava then lent over the man and fired a shot ... After I heard the shot the man on the ground fell back and I didn't notice any further movement after that. The other man with the dark clothing and the yellow fluoro top then ran from the shopping centre.

As to the man that you saw in the balaclava and the fluorescent top, are you able to describe his height and build? --- He appeared to be approximately 170 to 180 cm and of slight frame.

Are you able to say anything else about the clothing that he was wearing? --- No, just that except all the clothing was dark clothing, long-sleeved top and the bright yellow fluoro at the front.

I just remember seeing the orange top, the bandit on the right who was a lot bigger than the other one in size, like the one I saw that had the gun was probably like a footballer build, he was a big stocky bloke.

What colour top was that? --- That would have been orange I'd say.

... but the height of the person who you say ultimately fired the shot, can you give us some estimate in relation to that person? --- Probably over 6'. I just remember he had big stocky legs.

In terms of that person's build, how do you describe it? --- A footballer.

The other fellow, can you assist us with his approximate height? --- Just, probably 5'5" I suppose, with a small frame.

The guy in the yellow was shorter ... He was also wearing a balaclava and black pants and a yellow fluorescent top.

Your evidence is that your attention was drawn back to the man in the orange top? --- Yes.

What did you see? --- I saw his arm stretched out, his right outstretched with a gun in his hand ... It looked like a kid's pistol, like a country and western pistol-type thing ...

... When you saw his arm extended with that in it, what happened, what did you see him do? --- After, it was after the shot, his arm was extended pointing slightly down, he also seemed to panic, and then they took off ... The guy in the orange went to go to the left but the guy in the yellow had run towards the right, so the guy in the orange then ran after him towards the exit ...When the guy in the orange noticed he ran back towards where the guy in the yellow had run.

279 The witness Barry said that, as far as she recalled, the two robbers were wearing tops which were of the same colour; and the witness Grant said that the two men looked like they were both over six feet; they were about the same height and 'they both looked tall and slim'. Later she agreed that in her second statement to police she had stated that she only saw one offender (the orange topped shooter). When it was suggested that her statement was consistent with her only seeing the one offender, Barry stated that her friend had seen the other offender.

280 Lastly, there was the CCTV footage but it seems to us that it was so brief and of such poor quality as to be of virtually no use at all.

281 Additionally, even if the balance of evidence were that the shooter wore an orange vest, the only evidence that the applicant wore that vest was evidence given by Ryan; and if Ryan, rather than the applicant, wore the orange vest, why would Ryan not attempt to shift the blame to the applicant by stating falsely that it was the applicant who was wearing the orange? After all, how likely is it that the Crown would have withdrawn the charge of murder against Ryan, as it did, and facilitate a substantially reduced sentence for armed robbery of the kind he received, if he had not presented himself as the participant who had no idea that the weapon would be loaded? Certainly, for Ryan to swear falsely that the applicant was the shooter would have been perjury. But, on the evidence, Ryan was a proven liar and cheat with a substantial criminal background whom a jury might well have been persuaded would go that far to save himself.

282 In the result, as the judge said, the jury could not have convicted the applicant of murder unless they accepted Ryan's evidence that the applicant was the shooter. To that extent, the Crown case was dependent on Ryan and, in some respects, on other testimony and objective evidence which tended to support his testimony. Given that it was open to the jury to doubt Ryan's veracity on critical issues, and there was good reason for the jury to suspect that Ryan may have falsely accused the applicant of being the shooter, we consider that it would have been open to the jury to have a reasonable doubt as to whether the applicant was the shooter.

283 That is not the end of the matter, however, for if the jury accepted Ryan's evidence that he and the applicant planned to go with unloaded weapons - and the jury would need to have accepted that evidence if the applicant were to have any chance of being found guilty of manslaughter as opposed to murder - we find it impossible to suppose that the jury would not also have accepted Ryan's evidence that it was planned that Ryan should seize one of the guard's loaded weapons.

284 More particularly, the jury would have understood that Ryan did not stand to gain anything by lying about that. If anything, it made his involvement appear more egregious than it would otherwise appear to be. In effect, it was an admission against interest. Defence counsel never sought to have Ryan gainsay that he agreed with his accomplice to use his unloaded weapon to intimidate the guards and thereby seize one of the guard's loaded weapons. The defence case was simply and only that it was not demonstrated beyond reasonable doubt the applicant was the accomplice with whom such details may have been agreed. And, there was never any suggestion put to Ryan, still less evidence that Ryan and his accomplice ever agreed that Ryan should not fire the weapon which he intended to seize from the guard. The ineluctable implication of what Ryan said about taking one of the guard's guns was that it was intended that he should or might fire that weapon when and if the need arose to do so in the course of the robbery.

285 In those circumstances, it seems to us that this case is in essential respects like those in Brown v R,[111] in which the New South Wales Court of Criminal Appeal approved the following ruling of the judge at first instance:

If it were the case that the accused Brown in fact had given evidence admitting his participation in the robbery but saying that the gun was never meant to be used or saying that he was unaware that it was a loaded weapon or evidence of that type, then I am of the view that manslaughter would properly be the subject of a direction to the jury as submitted. However, that is not the case. In my view, the evidence of Evans and O'Connor, and, for that matter, Weekes, is evidence of participation in the robbery. It is the law, as I believe Carruthers AJ correctly stated in Spathis and Patsalis,[112] particularly between paragraphs 277 and 304 of his judgment and in particular the quote at paragraph 303 which I have given ... that the unlawful and dangerous act of involving the use of a dangerous weapon, namely, a point 38 revolver, is such that its discharge involving the wounding or killing of a person is squarely within the felony murder concept. The use of a gun being to wound or kill another human being was a contingency that is, on the evidence, one which is certainly open to the jury to conclude. The evidence which would remove the concept of that contingency, in my view, simply does not exist here. In other words, as I have said, the admissions of participation in the robbery made do not, in my view, remove the concept of wounding or killing being a contingency which must have been in Brown's mind when the events took place.[113]

286 In turn, that ruling is consistent with the notion that a common intent to threaten violence is equivalent to a common intent to use violence, which was considered by Herron CJ in R v Vandine[114] and referred to by Stephen J with apparent approval in Johns v The Queen.[115] It is also in accordance with the strict approach taken by the courts in cases of a criminal enterprise to commit a felony of violence (or now an offence to which s 3A applies) to the question of whether any divergence between what is done and what is agreed is sufficient to place an act altogether beyond what was contemplated as a possible incident of carrying out the common design.

287 Herron CJ summed up the position in R v Vandine,[116] as follows:

Courts have not been over-astute in giving a negative answer to the question whether or not the particular act causing the death charged came within the common design provided there was evidence that it was a part of the joint enterprise. An example of this is seen in R v Smith.[117] It was held that as the appellant had taken part in a concerted attack and that since, in the circumstances, it must have been within his contemplation that one of his confederates might use a knife, which he knew him to be carrying, on the deceased, that use was within the scope of the concerted action. The decision of a Bench of five on the facts of that case reveals how far the criminal courts will act on inference to be drawn from facts surrounding the concerted arrangements, the inference eventually being drawn that the fatal wound was within the ambit of the concerted arrangement so that everything which was within it was the responsibility of each party who chose to enter into the criminal purpose. That case provides an example of how, in a criminal case, the Court is entitled to take a common sense view of criminal activities. There the knife, used to inflict the fatal wound, was carried by one of the appellant's confederates inside the building and at the time of the stabbing the appellant was outside the building; none the less the Court inferred that it would be used if occasion arose in order to facilitate the robbery, overcome resistance or make good the escape.

288 In Johns v The Queen,[118] Stephen J reiterated the same point as follows:

As Glanville Williams says, ... 'it seems that a common intent to threaten violence is equivalent to a common intent to use violence, for the one so easily leads to the other'.[119] It was just such an approach to which Herron CJ referred in R v Vandine,[120] when, in reviewing recent decisions of the English courts, he spoke of the willingness of courts to infer from the knowledge of an accused that his companion was carrying a weapon, that the former also knew it might be used, its use in fact being regarded 'as within the ambit of or a consequence of the common purpose of the original disturbance'. In R v Smith[121] the Court of Criminal Appeal emphasized how cogent might be an accomplice's knowledge of the principal offender's possession of a deadly weapon in leading to the conclusion that their common purpose extended to the use of that weapon and to the resultant killing of the victim. The Court of Criminal Appeal reverted to the matter in R v Anderson; R v Morris[122] again in the context of principals of the second degree, not accessories before the fact. Their Lordships there stressed the importance to be attached to knowledge, by those engaged in a criminal venture involving violence, of the possession by one of them of a weapon which, if used, might cause death.

289 More recently still, as the New South Wales Court of Criminal Appeal observed in Brown,[123] the point was emphasised in the observations of Carruthers J in R v Sharah[124] that, in a case where an accused lends himself to a criminal enterprise knowing that a potentially lethal weapon is to be carried by one of his companions, the notion of contemplation that the weapon might be used as a possible incident of carrying out the common design does not require the establishment of any form of positive authorisation.

290 We do not overlook that there is a difference between a case like Brown, in which an accused contemplates that his accomplice will carry and may use the accomplice's own loaded weapon and the accomplice does so, and a case like this where, ex hypothesi, the accused contemplates that his accomplice may seize and fire a guard's loaded weapon and, contrary to expectation, the accomplice loads and fires his own weapon instead. But, for present purposes, we do not think that to be a significant difference. Bearing in mind, as Herron CJ said in R v Vandine,[125] that courts are not to be over-astute in giving a negative answer to the question of whether an act causing death is beyond the scope of a common design to commit a violent crime, but rather approach such issues with a common sense view of criminal activities, we take the view that, if it be within the contemplation of an accused that his accomplice may seize and fire a guard's loaded firearm as an incident of carrying out an armed robbery to which both the accused and accomplice are party, the fact that the accomplice chooses instead to load and fire his own firearm is a mere variation of the agreed plan to rob and, accordingly, within the scope of the common design.

291 Ultimately, of course, the question of what was and was not within the scope of the common design in this case was one for the jury. But, as we have said, given that it would not have been open to the jury to convict the applicant of manslaughter (rather than murder) unless the jury accepted that it was reasonably possible that Ryan agreed with the applicant to go in with unloaded weapons, and given that the only evidence of the existence of such an agreement was Ryan's testimony that it was intended to use the unloaded weapons to intimidate the guards and so seize one of the guard's loaded weapons, it would have been inevitable that, if the jury had thought there to be a reasonable doubt as to who of Ryan and the applicant was the shooter, the jury would also have been bound to conclude that there was no evidence to annihilate the contingency that the guard's weapon once seized might be fired. Hence, the jury would have been bound to conclude that use of a loaded firearm was within the contemplation of the applicant as a possible incident of carrying out the common design.

292 It follows, therefore, that, even if manslaughter had been left to the jury as a possible alternative verdict, they would have been bound to convict the applicant of murder by reason of s 3A.

293 For those reasons, we are not satisfied that the judge's decision not to leave manslaughter as a possible alternative verdict deprived the applicant of a chance of a more favourable verdict than the jury returned[126] and so was not productive of a miscarriage of justice. We reject ground 5.

Ground 6 - Wrongful admission of unlawfully obtained evidence

294 Section 5 of the Evidence (Miscellaneous Provisions) Amendment (Affidavits) Act 2012 ('the Amendment Act') incorporated a new s 165 into the Evidence (Miscellaneous Provisions) Act 1958, as follows:

(1) If an affidavit signed before 12 November 2011 by a person and by a person duly authorised to administer oaths contains words indicating that the first person states that the affidavit is made on oath or affirmation -

(a) it is not, and was not at any time, necessary that -

(i) the oath or affirmation be made orally; or

(ii) the first person signed the affidavit in the presence of the person duly authorised to administer oaths; or

(iii) the person duly authorised to administer oaths signed the affidavit in the presence of the first person; or

(iv) if the first person signed the affidavit in the presence of a person duly authorised to administer oaths, the person so authorised observed the person signing the affidavit; or

(v) the affidavit contained the statement required by section 126; and

(b) the words indicating that the first person states that the affidavit was made on oath or affirmation are and are taken always to have been effective by way of oath or affirmation even if anything referred to in paragraph (a)(i) to (v) was not done or did not occur.

(2) A warrant, an order, a summons or other process issued or made by a court or a judicial officer in reliance, directly or indirectly, on an affidavit referred to in subsection (1) is not invalid only by reason of the fact that, but for subsection (1), the affidavit would not have been duly sworn or affirmed.

(3) For the purposes of the prosecution of an alleged offence, the fact that, but for subsection (1), an affidavit would not have been duly sworn or affirmed is to be disregarded in determining whether evidence obtained in reliance, directly or indirectly, on that affidavit ought to be admitted.

(4) Subject to subsection (3), this section does not limit a discretion of a court -

(a) to exclude evidence in a criminal proceeding; or

(b) to stay a criminal proceeding in the interests of justice.

(5) This section does not affect the rights of the parties in -

(a) the proceedings known as Director of Public Prosecutions (Vic) v Marijancevic (No 264 of 2011), Director of Public Prosecutions (Vic) v Preece (No 263 of 2011) and Director of Public Prosecutions (Vic) v Preece (No 265 of 2011) in the Supreme Court of Victoria, Court of Appeal; or

(b) any other proceeding in which a court, before the day on which the Evidence (Miscellaneous Provisions) Amendment (Affidavits) Act 2012 receives the Royal Assent, has made a ruling on the validity of-

(i) an affidavit referred to in subsection (1); or

(ii) a warrant, an order, a summons or a process issued or made in reliance, directly or indirectly, on an affidavit referred to in subsection (1); or

(c) any other proceeding in which a court, before the day on which the Evidence (Miscellaneous Provisions) Amendment (Affidavits) Act 2012 receives the Royal Assent, has made a ruling on the admissibility of evidence obtained under a warrant, an order, a summons or other process issued or made in reliance, directly or indirectly, on an affidavit that, but for subsection (1), would not have been duly sworn or affirmed.

(6) In this section affidavit includes a document purporting to be an affidavit.

295 Under cover of ground 6, the applicant contended that s 5 of the Amendment Act was inconsistent with the applicant's right to a fair trial under s 24 of the Charter of Human Rights and Responsibilities Act 2006 ('the Charter'). Counsel recognised that any inconsistency with the Charter would not invalidate the section but he submitted that, in the circumstances of this case, it was appropriate for the Court to make a declaration of inconsistent interpretation under s 36(2) of the Charter.

296 We do not think that to be so. For reasons to which we shall come, we are not persuaded that s 5 of the Amendment Act is inconsistent with the applicant's right to a fair trial. But, even if it were, we should not be disposed to make the declaration which is sought. As Crennan and Kiefel JJ observed in Momcilovic v The Queen,[127] s 36 of the Charter does not oblige this court to make a declaration. Given the nature of this case and that s 6 of the Amendment Act provides for the repeal of the Act on the first anniversary of the first day on which all of its provisions are in operation, the utility of such a declaration would be remarkably limited.

297 The argument that s 5 deprived the applicant of the right to a fair trial was that it deprived him of the ability to argue that evidence obtained as a result of improperly sworn affidavits ('the subject evidence') should not have been admitted at trial. The subject evidence was documentary evidence in the nature of financial records tendered to show that, shortly after the commission of the offence, the applicant received a large amount of cash which was likely to have been part of the proceeds of the crime. The subject evidence was said to have been inadmissible because an affidavit used in support of an application for a search warrant under which the evidence was obtained was not properly sworn or affirmed in accordance with s 100 or s 103 of the Evidence Act 1958. The defect in the oath or affirmation which was alleged was that, as a result of a practice which may have been endemic to certain sections of the police force at the time, the deponent did not utter the oath or affirmation at the time of signing the affidavit. It is the same allegation as was considered by this court in Director of Public Prosecutions v Marijancevic.[128] Although the alleged defect was not known of at the time of the trial - indeed it only came to light as a result of Marijancevic - the applicant contends that s 5 deprived him of a fair trial on the basis that:

(a) if the defect had been known of at the time of trial, he could and would have objected to the receipt of the subject evidence;

(b) but for s 5, it would now be open to him to contend that, because the subject evidence was admitted in ignorance of the unlawful means whereby it was obtained, his trial was unfair; and

(c) therefore, inasmuch as s 5 purports to preclude him from so demonstrating that his trial was unfair, it is inconsistent with his right to a fair trial.[129]

298 We reject the argument. Logically, the applicant's inability to contest the admissibility of the subject evidence[130] is incapable of depriving him of a fair trial unless the admission of the subject evidence was productive of an unfair trial. Equally, the admission of the subject evidence could not have been productive of an unfair trial unless, as a matter of public policy or fairness, the subject evidence should have been excluded.[131] In our view, neither public policy nor fairness, nor any other relevant legal consideration, required that the subject evidence be excluded.

299 As Stephen and Aickin JJ observed in Bunning v Cross,[132] the common law discretion to exclude unlawfully obtained evidence is largely based on considerations other than fairness:[133]

What [it] involves is no simple question of ensuring fairness to an accused but instead the weighing against each other of two competing requirements of public policy, thereby seeking to resolve the apparent conflict between the desirable goal of bringing to conviction the wrongdoer and the undesirable effect of curial approval, or even encouragement, being given to the unlawful conduct of those whose task it is to enforce the law. This being the aim of the discretionary process called for by Ireland it follows that it by no means takes as its central point the question of unfairness to the accused. It is, on the contrary, concerned with broader questions of high public policy, unfairness to the accused being only one factor which, if present, will play its part in the whole process of consideration.[134]

300 In this case, however, there was no unfairness to the applicant. On the basis of the agreed facts on which this part of the appeal is to be resolved, there were no threats or violence or compulsion associated with the discovery of the subject evidence. There was no trickery or subterfuge employed in its ascertainment. This was not a case about admissions or confessions or of identification evidence wrought by improper methods. The subject evidence was real, objective evidence and there was nothing said or done by the police in obtaining it which may have detracted from its reliability or cogency. Nor was there anything said against the truth or honesty of the contents of the affidavits by which the police obtained it. All that was put against its admissibility was that the police, whether in ignorance or recklessly or possibly even knowingly, failed to swear their affidavits in accordance with a statutory requirement that they utter the oath or affirmation at the time of signing.[135]

301 Of course, as this court has said before, proper attention to the making of oaths and affirmations is a matter of high public importance.[136] Failure to observe such formalities, particularly by police, is a cause for real concern. But where, as here, there has been no iniquity or reckless impropriety in the gathering of evidence, no threats or violence or compulsion associated with its discovery and no effect upon the reliability or cogency of the proof thereby obtained, the great public importance of bringing wrongdoers to conviction is likely to transcend the risk of the court being seen by the admission of such evidence to approve or encourage the unlawful conduct of those whose duty it is to enforce the law.

302 In this case, the offence was murder in the course of an armed robbery of a bank, in a populous shopping centre in the middle of the day, of a security guard doing his duty. According to the evidence, the offender shot and killed the guard at point blank range after forcing him to the floor. By any measure, it was an awful and outrageous offence. Hence, in the absence of gross police impropriety, the importance of bringing the wrongdoer to conviction was and is bound to prevail over any risk of the court being seen to approve or encourage an erstwhile practice of police failing to swear affidavits in accordance with statutory formalities. Therefore, even if it had been known at the time of trial that the affidavit was improperly sworn, it would not have been right to exclude the subject evidence. Then, as now, both policy and fairness demanded its reception.

303 Counsel for the applicant contended that, be that as it may, s 5 of the Amendment Act infringed the Kable[137] principle because s 5 requires the court to 'turn a blind eye to serious police impropriety' and thereby 'impairs the institutional integrity' of the court in a manner which is inconsistent with the court's role as a repository of federal jurisdiction.

304 We reject that contention. In relevant respects, s 5 of the Amendment Act is similar to s 15X of the Crimes Act 1914 (Cth). In Nicholas v The Queen,[138] a majority of the High Court upheld the constitutional validity of that provision. The reasoning of the High Court in Nicholas is applicable here.

305 Section 15X was enacted to overcome the High Court's decision in Ridgeway v The Queen[139] that evidence of an illegal importation of narcotics procured by police officers as a result of a controlled operation, in which they acted unlawfully in the facilitation of the importation, should be excluded as a matter of public policy. The section provided that:

In determining, for the purposes of a prosecution for an offence against section 233B of the Customs Act 1901 or an associated offence, whether evidence that narcotic goods were imported into Australia in contravention of the Customs Act 1901 should be admitted, the fact that a law enforcement officer committed an offence in importing the narcotic goods, or in aiding, abetting, counselling, procuring, or being in any way knowingly concerned in, their importation is to be disregarded, if:

(a) the law enforcement officer, when committing the offence, was acting in the course of duty for the purposes of a controlled operation; and

(b) for the purposes of the operation:

(i) the Australian Federal Police, by written request ... asked ... that the narcotic goods, while subject to the control of the Customs ... be exempted from detailed scrutiny by officers of the Australian Customs Service; and

(ii) the request for exemption was granted.

306 The appellant in Nicholas attacked the constitutional validity of s 15X as an attempt by the Parliament to usurp or impermissibly interfere with the judicial power of the Commonwealth. In upholding the validity of the section, Brennan CJ said:

To suggest that the statutory will of the Parliament, expressed in s 15X, is to be held invalid because its application would impair the integrity of the court's processes or bring the administration of criminal justice into disrepute is, in my respectful opinion, to misconceive both the duty of a court and the factors which contribute to public confidence in the administration of criminal justice by the courts. It is for the Parliament to prescribe the law to be applied by a court and, if the law is otherwise valid, the court's opinion as to the justice, propriety or utility of the law is immaterial. Integrity is the fidelity to legal duty, not a refusal to accept as binding a law which the court takes to be contrary to its opinion as to the proper balance to be struck between competing interests. To hold that a court's opinion as to the effect of a law on the public perception of the court is a criterion of the constitutional validity of the law, would be to assert an uncontrolled and uncontrollable power of judicial veto over the exercise of legislative power. It would elevate the court's opinion about its own repute to the level of a constitutional imperative. It is the faithful adherence of the courts to the laws enacted by the Parliament, however undesirable the courts may think them to be, which is the guarantee of public confidence in the integrity of the judicial process and the protection of the courts' repute as the administrator of criminal justice.

The fact that, s 15X apart, on the trial of an offender for an offence against s 233B of the Customs Act or for an associated offence, the courts would reject evidence of the illegal importation of the relevant narcotic goods by a law enforcement officer does not establish that s 15X is beyond the legislative power of the Parliament. Once the Parliament has enacted s 15X, it is the duty of the courts to apply it. In doing so, the courts defer to the legislative competence of the Parliament and affirm their own adherence to the rule of law. In striking a balance between the factors relevant to the Ridgeway discretion, subject to the conditions prescribed by Div 3 of Pt 1AB, the Parliament expresses where the balance of public interest lies. The declaration of the balance of public interest devolves on the court when the Parliament is silent, but once the Parliament has spoken, it is the voice of the Parliament that declares where the balance of the public interest lies.[140]

Once it is accepted that the legislature may make or change the rules of evidence it is clear that it may make or change the rules governing the discretionary exclusion of evidence. In particular, it may make or change rules governing the factors which a court is to take into account in exercising that discretion. In the case of this particular discretion, the exercise of which depends upon the balancing of competing considerations, I see no intrusion on the judicial power by the legislature saying that in some kinds of case, one consideration (that of preserving the reputation of the courts by their not being seen to condone law breaking) is to be put to one side in favour of the consideration that persons committing a particular kind of crime should be convicted and punished.

It is said that if the courts do that, their reputation is harmed because they are seen to condone the breaking of the law by law enforcement officers. But that is to ignore a fundamentally important consideration - that the courts would receive evidence which otherwise may have been rejected because that is the effect of the statutory injunction to disregard the fact that the law was broken by the law enforcement officers. There would, in these circumstances, be no harm to the reputation or integrity of the judicial process if the courts were to follow the law and there would be no harm to the reputation of the courts if, applying the law, a court received the evidence in the course of trying the issues joined between prosecution and accused. Moreover, it is always necessary to recall that not every breach of the law by those who should enforce it led to rejection of their evidence at common law; a discretion was exercised. Harm to the courts has not been seen, in Australia or elsewhere, as the inevitable consequence of the reception of such evidence.

As was noted in Bunning v Cross[141] there was a marked contrast between the approach manifest in R v Ireland[142] (and in Bunning v Cross) and the approach that had, until then, been taken in the English and Canadian courts. Since then, the general effect of English cases has been to favour the reception of evidence even though it has been illegally obtained.[143] (The question in England has also now been affected by legislation.)[144] In Canada the matter is controlled by s 24(2) of the Charter of Rights and Freedoms which provides, in effect, that if evidence is obtained in breach of the Charter, the evidence is excluded if it is established that, having regard to all of the circumstances 'the admission of it in the proceedings would bring the administration of justice into disrepute'.[145] In the United States, the view that appears to have prevailed is not that a defence of entrapment is necessary to 'preserve the institutional integrity of the system of federal criminal justice'[146] but that the relevant question is whether the accused would have committed the offence but for the actions of the law enforcement officers.[147] In none of these jurisdictions, then, has the reception of evidence obtained illegally been seen as presenting such a threat to the integrity of the judicial process, or the reputation of the courts, as to require its rejection in all cases. Nor is there any reason to consider that the factors affecting the decision whether to admit evidence that one element of an offence charged against an accused which has been constituted by the illegal conduct of law enforcement officers are so different from those that bear on whether to receive evidence obtained illegally that a different conclusion should be reached.

No doubt the conduct of law enforcement officers who participated in controlled operations involving the importation of drugs into this country was a deliberate and serious breach of the law (a breach ordinarily attracting condign punishment) but the choice made by the legislature is that these facts are to be disregarded in deciding whether to receive evidence of their conduct. That choice is, as I have said, the choice of the legislature, not the courts and is not a choice which leads to damage to the reputation of the courts.[148]

308 Counsel for the applicant contended that the considerations which applied to s 15X were different to those which apply to s 5 of the Amendment Act because, at the same time as Parliament enacted s 15X, it also enacted s 15I. It provided that:

(1) Subject to subsection (2), a law enforcement officer (other than a member of the police force of a State) who, in the course of duty, for the purposes of a controlled operation, engages in conduct that, apart from this subsection, would constitute a narcotic goods offence is not liable for that offence if, at the time when he or she engages in that conduct, there is in force a certificate given under section 15M that authorises the controlled operation.

(2) Subsection (1) does not apply if:

(a) the conduct of the officer involves intentionally inducing the person targeted by the operation to commit an offence against section 233B of the Customs Act 1901 or an associated offence; and

(b) the person would not otherwise have had the intent to commit that offence or an offence of that kind.

(3) Subject to subsection (5), a member of the police force of a State who, in the course of duty, for the purposes of a controlled operation, engages in conduct that, apart from this subsection, would constitute a narcotic goods offence is not liable for that offence if, at the time when he or she engages in that conduct, there is in force a certificate given under section 15M that authorises the controlled operation.

...

(6) If, because of subsection (1) or (3), a person who has imported narcotic goods into Australia is not liable for an offence under paragraph 233B(1)(b) of the Customs Act 1901, the narcotic goods are, nevertheless, for the purposes of section 233B of that Act, taken to be goods imported into Australia in contravention of that Act.

309 In counsel's submission, by so enacting s 15I, Parliament enacted a particular view of public policy - that law enforcement officers should not be liable for what would otherwise be punishable as crimes committed in the course of controlled operations - and that, by enacting s 15X, Parliament altered the law of admissibility to accord to that new norm of public policy. In contrast, counsel said, the Amendment Act maintains the unlawfulness of swearing or declaring an affidavit otherwise than in accordance with statutory formalities, and so maintains the public policy of discouraging conduct of that kind. By enacting s 5 of the Amendment Act, Parliament has purported to require that the court disregard such illegality and public policy.

310 In our view, that submission breaks down at several levels. First, s 15I did not apply to past importations. As Brennan CJ observed in Nicholas, the consequences for the admissibility of evidence obtained as a result of offences committed in the course of controlled operations before the coming into force of s 15I were left to s 15X.[149]

311 Secondly, it was not suggested in any of the judgments of the majority in Nicholas that the constitutionality of s 15X depended on any norm of public policy enacted by s 15I with respect to future controlled operations.

312 Thirdly, if there were anything in the notion that s 15I created a new norm of public policy with respect to future controlled operations and that s 15X changed the laws of admissibility to accord to the newly created norm, s 5 of the Amendment Act is logically on stronger ground than s 15X. As enacted by s 5 of the Amendment Act, s 165(1) of the Evidence (Miscellaneous Provisions) Act deems compliance with the statutory requirements for swearing and affirming affidavits to be unnecessary in the case of the affidavits to which it applies. Section 165(2) adds that a lack of compliance does not invalidate any order or warrant made or issued in reliance on it. Thus, the newly enacted norm of public policy pertinent to affidavits to which s 165 applies is that compliance with formalities is not and never was required and, by reason of s 165(3), the law of admissibility is amended to accord to that newly enacted norm of public policy.

313 Counsel for the applicant argued that Nicholas should be distinguished on the basis that it did not deal with the question of whether legislation akin to s 15X offends the Kable principle.

314 That submission is also misplaced. Although neither Brennan CJ nor Hayne J referred to Kable by name, each of their Honours expressly rejected any suggestion that s 15X impaired the integrity of the court's processes or brought the administration of criminal justice into disrepute - which is tantamount to rejection of infringement of the Kable principle - while the other majority judgments were replete with references to Kable.[150]

315 Finally, no doubt recognising those difficulties, counsel for the applicant advanced a further contention in oral argument that s 165(1) of the Evidence (Miscellaneous Provisions) Act offends the Kable principle because it has the aim and purported effect of requiring the court to treat a very limited and specifically defined class of improperly sworn affidavits as lawfully sworn while at the same time treating all such other improperly sworn affidavits as unlawfully sworn. In counsel's submission, so to require is calculated to undermine public confidence in the court's exercise of its power or function to exclude unlawfully obtained evidence, because:

• in effect, it requires the court to disregard the unlawfulness of the means used to obtain evidence in a limited class of case;
• it is evident that the object of the exercise is to save the State from the political embarrassment or inconvenience which would otherwise flow from the unlawfulness of the means by which the evidence was obtained in that class of case; and
• in consequence, it requires the court to treat the State differently to and more favourably than other litigants.

Based on observations of Gummow J in Fardon v Attorney-General (Qld),[151] counsel contended that such was a powerful indication that s 165(1) was repugnant to or inconsistent with the institutional integrity of the court and, therefore, in breach of Kable requirements.

316 We reject the argument. Once it is accepted, as it was in Nicholas, that it is competent for Parliament to provide that particular participants in a designated class of unlawful conduct shall be immunised from the consequences of its unlawfulness, and that there is no Kable impediment to the courts giving effect to a provision of that kind, there is plainly nothing unconstitutional or otherwise contrary to Kable in a provision like s 165(1) which requires a court to regard conduct which would otherwise have been unlawful as being and always having been lawful. If anything, so to provide stands significantly less chance of undermining public confidence in the courts than requiring the courts, as they were in Nicholas, not to exclude a limited and specifically defined class of unlawfully obtained evidence notwithstanding that it continued to be unlawfully obtained evidence at the time of its admission.

318 By way of ground 7, it is contended that the aggregate effect of the errors alleged in grounds 1 to 6, coupled with the judge's refusal of defence counsel's several applications for the jury to be discharged, occasioned a miscarriage of justice.

319 We do not accept that contention. As will be apparent from what we have said thus far, we are not persuaded of any of the errors alleged in grounds 1 to 6. We are equally unpersuaded that the judge was in error in refusing to discharge the jury.

320 His Honour's reasons for refusal are set out in his Rulings Nos 1 to 11. It is unnecessary to restate them. Suffice to say that, in our view, each accords with relevant principle[152] and we are fortified in that view by the applicant's failure to identify any specific error within them.

322 The applicant contends that he was denied the opportunity properly to prepare his defence prior to his trial or properly to conduct the trial. In his oral submissions, he argued that two rulings made by his Honour had deprived him of a fair trial.

323 In the first ruling (Ruling No 5) the judge refused the applicant access to an unredacted version of a police information report which referred to a phone call to Crime Stoppers in which the caller said that 'Leonard Ryan and Hugo Rich are responsible for shooting the security guard.' The applicant only had access to the redacted version, which did not identify the caller.

324 At the trial, defence counsel sought to gain access to that information on the basis that it would assist him to show that the police investigation had been orchestrated to identify the applicant as the shooter and to establish that the caller was a person who was either involved in the robbery or connected with a person who was involved, who was seeking to deflect attention from the real perpetrator and towards the applicant.

325 The Chief Commissioner of Police appeared at the hearing of the application to oppose the provision of information about the identity of the person who made the phone call, on the basis that the applicant did not have a legitimate forensic purpose for seeking the information and that, even if he did have such a purpose, public interest immunity applied. Because his Honour held that the accused did not have a legitimate forensic purpose in seeking the information, it was unnecessary for him to consider the public interest immunity issue.

326 Before us, the applicant did not press the argument that his Honour erred in rejecting the argument that the identity of the caller might have shown that the police manipulated the evidence in order to implicate the applicant in the offending. Instead he argued that the female caller must have known Ryan or the applicant or been the partner of one of the suspects. He submitted that the caller might well have been James's partner, Leonie Stevens and, if so, her identification would support the defence hypothesis that James was involved in the armed robbery and was attempting to frame the applicant. In passing we note that, although in his ruling the trial judge referred to defence counsel's assertion in argument that 'a female is identified' as the caller, we are unaware of any evidence that the caller was a female and his Honour did not refer to the caller's sex in his ruling.[153]

327 Counsel for the applicant argued that, if she were identified, Stevens could have been cross-examined about her motives for making the call in order to cast doubt on her credibility. It will be recalled that she gave evidence about seeing a van and the applicant arguing with another man on the nature strip outside the applicant's house in Maddox Road.

328 In our view, the refusal of access to the identity of the caller to Crimestoppers did not deprive the applicant of due process. In considering whether the applicant had a legitimate forensic purpose for seeking the information or was simply engaged in 'fishing' for information that might, if successful, come up with evidence that could assist him, the applicant was required to demonstrate that there was a reasonable possibility or, to put it another way, that it 'was on the cards' that the identity of the caller would assist the defence.[154]

329 Although courts apply the test of 'legitimate forensic purpose' more liberally in criminal cases than in civil matters, we do not consider that his Honour erred in holding that the attempt to ascertain the identity of the caller was simply a fishing expedition. The applicant's claim for access was based on the assertion that Stevens might have been the caller and, on that hypothesis could have been cross-examined about her reasons for telephoning Crimestoppers. But it was not necessary to disclose the caller's identity before cross-examining Stevens as to whether she had a motive for giving evidence unfavourable to the applicant, and counsel for the applicant was not handicapped in his cross-examination of James and Stevens by the unavailability of that information. During the trial it was put to James that he had been present at the robbery and had carried a gun, which he denied. It could have been put to him, but was not, that he had encouraged his partner to make the call to Crimestoppers identifying the applicant, in order to throw the police off the scent.[155] The applicant was not deprived of a fair trial because he did not have access to the caller's identity.

330 It is also arguable that the public interest in preventing the release of the identity of a caller to Crimestoppers - which is intended to allow people to report serious crimes to the police without putting themselves in danger of reprisal - would outweigh the public interest in providing the applicant access to evidence as to the identity of the caller; particularly having regard to the limited usefulness of that evidence. This case did not involve the identity of a police informer. In cases that do, the authorities suggest that public interest immunity will generally apply.[156] There are obvious parallels, however, between the identification of a person who calls Crimestoppers to report the identity of persons involved in a murder and the identification of a police informer. Although it is unnecessary to reach a conclusion on whether the Commissioner could have claimed public interest immunity, the point is strongly arguable.

331 In the second ruling (Ruling No 27)[157] his Honour, in effect, refused the applicant access to the hard drive of Ryan's computer. The background to the ruling was that the accused subpoenaed Ryan on 10 July 2008 seeking access to the computer hard drive, and to two lever arch folders entitled 'Relevant Issues' or 'Relevant Individual Issues' together with lever arch folders containing summary reports for witnesses and telephone intercept material.

332 During the committal hearing, the applicant had issued an almost identical subpoena. The Magistrate held that he had a legitimate forensic purpose in obtaining access to this material. Twenty three folders of material printed out from the hard drive were released to the applicant and reviewed by the Magistrate, who then released the documents he believed to be relevant. The Magistrate did not make orders giving the accused access to material on the hard drive, although he anticipated that such orders might be made in the future. The applicant maintained that the hard drive might still contain encrypted files, or files might have been deleted, which were relevant to his defence.

333 In his first ruling[158] on the matter, the judge took the view that there was a reasonable possibility that documents secreted on the hard drive might provide information bearing upon the credibility of Ryan's evidence. He adjourned the hearing on the subpoena to permit the hard drive to be examined by an independent expert for a report about its contents.

334 The expert provided a report containing, among other things, listings of all files on the hard disk, including 102 files which had been previously deleted and 749 encrypted files. The report was provided to the Crown and defence counsel but not to the applicant personally.

335 After Ryan had completed his evidence, the question arose whether the expert report should be provided to him and the applicant. Ryan's solicitor was asked to obtain instructions relating to the contents of the expert report. On 24 April 2009, Ryan gave evidence at a voir dire that he had been through the files on the hard drive and that Mr Garnett's review was fairly complete. He also indicated the files which he was prepared to produce. He had previously instructed his solicitor that some of these documents had already been released to the applicant, some were privileged, some were irrelevant, and ten or fifteen related to another person's legal matters. Ryan also gave instructions as to the contents of the deleted files. His Honour was provided with two spreadsheets identifying the various deleted and encrypted files by reference to Ryan's instructions to his solicitor. Later a folder of hard copy documents was handed to the court and provided to the accused.

336 His Honour ruled that there had been sufficient compliance with the subpoena seeking access to deleted and encrypted files. His Honour said:

During the course of the committal proceedings an extensive exercise was gone through by the Magistrate which considered all the material printed from Mr Ryan's computer. What we are now concerned with is documents which were encrypted or deleted. Mr Ryan has given evidence about those and identified files which he is prepared to permit the accused to have access to which do not compromise his security and which are not the subject of legal professional privilege. In my view, in the unusual circumstances in which this issue has arisen, that is sufficient compliance with subpoena.[159]

337 The applicant submitted that his Honour had erred in deciding that the applicant would not have been assisted by gaining access to the hard drive without the judge himself inspecting all the files which Ryan was not prepared to release. When asked about what was thought to be in the encrypted or deleted files, the applicant's counsel said that it could 'potentially have contained anything,' including drafts of the 'relevant issues' document produced while he, the applicant and Dickson were on remand. This document fabricated explanations for various matters and was to be used for their defence. Although the applicant had access to this document and Ryan had been cross-examined on it, it was said that there may well have been other versions of it among the encrypted files, which could have been used to attack his credit. The fact that the applicant did not gain access to those documents had deprived him of due process.

338 In our view, the applicant was not deprived of due process because he was not permitted to examine the actual contents of the hard drive. As his Honour observed, the applicant was given access to the 23 volumes of material printed out for the purposes of the committal. Nothing arose out of Ryan's cross-examination at the Basha hearing which indicated there were likely to be encrypted documents on the hard drive that would assist the applicant. When cross-examined at trial the applicant relied on only two of the documents which had been printed out for the purposes of the committal. Moreover, defence counsel had had the list of file names for three or four months before Ryan was cross-examined and no application was made to examine particular files.

339 In our opinion, the attempt to examine all the encrypted and deleted files was no more than a fishing expedition. It was the 'relevant issues' document compiled by the applicant, Ryan and Dickson which was most damaging to Ryan's credit and he was extensively cross-examined on it. The applicant was not deprived of due process because he did not gain access to all encrypted files.

341 The applicant contends that the trial miscarried because the Crown did not call Dickson as a witness, despite the fact that his name appeared on the presentment.

342 Dickson had made a statement to the police on 13 March 2005 giving Ryan an alibi for the armed robbery. In a second statement made on 26 May 2005 he agreed that the alibi was false and said that he had gone to Ballarat that day because he knew something about the proposed armed robbery and did not want to be in Melbourne when it occurred. In that interview he said he knew the applicant 'a little bit' and had met him on about four occasions through Ryan.

343 In a later statement made on 14 December 2006 he said he had been told by Ryan that something was going to happen on 1 March and 8 March 2005 and that he should not be around. As a consequence he had gone to Ballarat on both occasions.

344 The only direct evidence that Dickson could have given about the applicant's involvement related to the alleged conversation between the applicant and Ryan about a week after the robbery in which Ryan confronted the applicant about the shooting and the applicant said 'Keep your mouth shut and deal with it'. Ryan said that Dickson was present during this conversation. Ryan also said that Hogan left the guns used in the robbery with Dickson who later brought them to Ryan's attention. Hogan denied that this had occurred.

345 On 18 September 2008, Mr Dickson was called to give evidence on a voir dire. On 19 September, at the request of the applicant's counsel, the judge warned him not to speak to any other witnesses. When he was recalled on 22 September 2008 he was asked whether he had sought permission in the prison to phone Ryan and whether he had done so. He denied doing so until he was confronted with a record showing he had been given permission to telephone Ryan by the Governor. He then admitted he had spoken to Ryan about the alibi, which he had originally intended to provide Ryan. The matter was referred to the Director of Public Prosecutions in relation to his possible prosecution for perjury.

346 The prosecutor advised the judge that he did not intend to call Dickson because he was unreliable and had perjured himself after he had been specifically warned by the judge not to have contact with other witnesses.

347 Just before completion of the Crown case, defence counsel asked the judge to invite the prosecutor to reconsider his decision not to call Dickson. In his ruling his Honour noted that Dickson's evidence had only limited relevance to the applicant's involvement in the armed robbery. The judge referred to The Queen v Apostilides,[160] which held that it was for the prosecutor to decide whether a witness should be called, though the trial judge could question the prosecutor as to the reasons for declining to call a witness and could invite the prosecutor to reconsider the decision at the close of the Crown case. His Honour declined to invite the prosecutor to reconsider his decision, noting that the prosecutor had provided him with detailed reasons for the failure to call Dickson.

348 Counsel for the applicant argued that there was a substantial miscarriage of justice as a consequence of the prosecutor's failure to call Dickson. He contended that Dickson's cross-examination could have been used as the basis for an attack on Ryan's credibility, in order to raise a reasonable doubt about the applicant's participation in the armed robbery. He submitted that the prosecutor could not differentiate between Dickson and Ryan and Hogan, both of whom were called as witnesses despite the fact that they were both liars and there were evidentiary conflicts between them. In particular Ryan had admitted preparing a detailed script (the relevant issues document) in order to exculpate himself. There was no rational basis on which the prosecutor could have refused to call Dickson whilst at the same time calling Ryan and Hogan as Crown witnesses. Further, there had been a miscarriage of justice because the applicant had been deprived of the opportunity to cross-examine Dickson in order to attack Ryan and Hogan's credibility.

349 The Crown argued that it was appropriate not to call Dickson because he had provided a false alibi for Ryan, denied that he had spoken to Ryan after being warned not to do so and later admitted to that conversation. The fact that he was not called and could not be cross-examined by the applicant did not give rise to a miscarriage of justice because his evidence was 'not essential to the evidence of the unfolding of the case for the Crown.'[161] In any case, Ryan had been very extensively cross-examined. Further, the applicant's counsel had himself conceded that Dickson was a blatant liar. On 18 December 2008 the applicant made a bail application which was unsuccessful. During the course of the submissions in support of that application Mr Desmond on behalf of the applicant made submissions about the Crown case and its strength or lack of it and said, in relation to Dickson, the following:

Your Honour is in the best position having heard it, and insofar as I address that issue of fact-finding, I mean he gives them Rich on the critical issue but he is a most unimpressive witness in relation to all manner of detail that he ought be expected to answer, to the extent that Dickson inculpates Rich, this is the word of a bald faced liar who on oath denies having spoken to Ryan during cross-examination and assures the judge of a Supreme Court, "I've got no intention of so", and then denies it the following Monday until he's then confronted with the note of Governor Smith is a name I'll use, I can't remember the Governor's name. "Did you make that call? Yeah." Water off a duck's back to these people. He - the papers have been referred to the DPP, the defence have heard no further as to what's happened in that regard, but of course the DPP is proposing to call Dickson as a witness of truth in that context.

350 We accept the Crown submissions. The consequences of the failure to call Dickson 'objectively perceived' did not result in a miscarriage of justice. Dickson was not a direct eye-witness to the offence or to the events which preceded it.[162] Although Dickson's evidence of the conversation between the applicant and Ryan was direct evidence of the applicant's involvement in the armed robbery and murder, it was of relatively limited importance to the Crown case compared with the evidence of Ryan and Hogan. Its primary use would have been to provide the basis for an attack on the credibility of Ryan and Hogan. But the fact that Dickson was not called did not deprive the applicant of other bases on which he could attack their credibility. Both Hogan and Ryan were very extensively cross-examined on credit issues. The jury heard Hogan's denial of the evidence that Dickson dropped off the guns. The prosecutor did not merely have a suspicion that Dickson might be unreliable. Dickson had perjured himself in the same proceedings.[163]

351 Moreover, in reality the applicant was to some extent advantaged by the failure to call Dickson. In Diehm v Director of Public Prosecutions (Nauru)[164] where the prosecutor had not called a witness whom the High Court described as material, because he was drunk at the time he had been intended to give evidence, it was held that there had been no miscarriage of justice. In reaching that conclusion the High Court took account of aspects of his earlier statement that would have strengthened the prosecution case. In this case, if Dickson had been called as a witness he was likely to have testified about the conversation between the applicant and Ryan. If the jury had accepted that evidence it would very probably have reinforced their conclusion as to the applicant's involvement in the armed robbery.

Ground 10 - Unsafe and Unsatisfactory Verdict

353 The applicant contends that on the whole of the evidence it was not open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.[165] He argues that the Crown case relied on 'five pillars' and that 'the evidence comprising each pillar, was not sufficient to establish guilt beyond reasonable doubt separately or collectively, because the evidence was either contradicted, vague or inconclusive'.

354 The applicant personally made oral submissions on this issue, relying on an aide memoire he had drafted of 1151 pages and a large wall chart, which attempted to link the arguments in support of ground 10 to the evidence of Ryan, Hogan and James.

355 The Crown case at trial was in part a 'direct' one based on the evidence of Ryan and in part a circumstantial one made up by a number of pieces of circumstantial evidence that were relied on to support the evidence of Ryan. We begin by describing the 'five pillars' which the applicant submitted were essential to the Crown case. We go on to explain why we consider that it was open to the jury to convict the applicant.

(1) Ryan's evidence, which was said to be unreliable and incredible.

(2) Hogan's evidence, which was said to be materially inconsistent with Ryan's evidence and thus to prevent the Crown from relying on Hogan's evidence to corroborate the evidence of Ryan.

(3) James's evidence, which was also said to be unreliable and to contradict aspects of Hogan and Ryan's evidence.

(4) The evidence of eye-witnesses about the physical characteristics of the offenders and their movements, which was also said to be contradictory and unreliable.

(5) The circumstantial evidence relied upon by the Crown, which was said to be unsatisfactory.

357 We will explain each of these submissions in turn.

(iii) Pillars 1, 2 and 3 - Ryan, Hogan and James

358 The first three 'pillars' can be dealt with together. The applicant argued that improbabilities in Ryan's evidence and contradictions between the evidence of Ryan and Hogan and/or between Ryan and James made the evidence led by the Crown insufficient to demonstrate the guilt of the applicant beyond reasonable doubt.

359 Before setting out the applicant's arguments on these issues we observe that at the outset of the judge's charge the jury were directed that before they could convict the applicant of either or both of the offences charged they would have to be satisfied beyond reasonable doubt as to the reliability and credibility of Ryan 'to the extent that it implicates the accused'.

360 In oral argument the applicant incorrectly asserted that the Crown relied upon the evidence of Hogan to corroborate the evidence of Ryan. We reject that submission. As we have already said,[166] early in the charge the trial judge gave an accomplice warning concerning Ryan's evidence which made it clear that it would be dangerous to convict the accused man on the basis of the uncorroborated evidence of an accomplice.

361 His Honour then directed the jury as to the meaning of corroboration:

Let me come then to what corroboration means. Having told you that it is dangerous to act on the evidence of either Ryan or Hogan without corroboration, what does corroboration mean? Well the first thing it means is that it has to be independent evidence, that is independent of Ryan or Hogan and independent evidence which connects or tends to connect the accused man with the crime or crimes charged. Independent evidence, independent of the accomplice, which connects or tends to connect Hugo Rich with either or both of the crimes charged.

To be supportive in the way required by the law corroborative evidence must tend to show the crimes were committed, and here there is really no issue about the crimes being committed, and that it was the accused who committed them: in this case Hugo Rich with Ryan and Hogan. The evidence, the corroborative evidence does not itself have to independently prove these things. Evidence which is corroboration is required to tend to show the truth of the accomplice's evidence and that the accused committed these offences. Having stumbled over that I will put it to you again.

Evidence which is corroboration, that is independent evidence tending to connect the accused man with the crimes charged, does not have to itself independently prove the involvement in the crime. What it must do is tend to show the truth of the accomplice's evidence on the issue of, in this case, Mr Rich's involvement. That is, it must make the accomplice's evidence about the accused's responsibility for and participation in these offences more reliable.

362 Thereafter, the judge then repeated the accomplice warning.

363 When his Honour came to direct the jury as to the nature and use of circumstantial evidence he again emphasised the centrality of Ryan's evidence:

It does seem to me to be plain that Leonard Ryan is at the centre of the Crown case. If you do not accept his evidence, and as I have already directed you, you would be compelled to verdicts of not guilty. The Crown rely on his evidence and on the other circumstances which they say supports it, but the only direct evidence of the involvement of the accused in these offences comes from Leonard Ryan.

364 The judge then directed the jury as to the drawing of inferences and made clear that ultimately they must have regard to the combined force of the circumstantial evidence. After further directions with respect to aspects of the circumstantial evidence, his Honour again returned to the issue of corroboration and repeated the substance of his accomplice warning and the essence of his direction as to what constituted corroboration. His Honour said further:

When coming to corroboration itself, if you have examined the evidence which I will shortly identify as being relied upon by the Crown as being capable of amounting to corroboration and have rejected that evidence as actually amounting to corroboration, then the evidence of the accomplice would be uncorroborated. If that occurred you would apply to that evidence the warning that it is dangerous to convict an accused on the uncorroborated evidence of an accomplice. As I also said this morning, you are entitled to convict the accused on that evidence if it is uncorroborated but you may only do so after you have subjected the evidence to close examination and reached the view that in this particular case it is safe to rely on the evidence despite it being uncorroborated.

When considering the evidence given by Mr Ryan you should examine what evidence corroborates him, if any, and then as part of examining the total picture of course you would examine both witnesses and then perform a similar exercise in relation to Mr Hogan. As I said to you earlier, the Crown do not rely and I tell you that you may not rely on the evidence of Ryan or Hogan for the purpose of corroborating each other. You must look for evidence independent of both of them.

365 Thereafter, the judge went on to identify a series of matters capable of being regarded as corroborating Ryan's evidence on relevant matters:

(1) the evidence of James and Stevens as to the meeting between the applicant and Ryan outside the applicant's house in Maddox Road on the night of 8 March 2005;

(2) the evidence of James that the applicant requested James to obtain a white van for him prior to 8 March;

(3) the receipt for the black balaclava, which was found in the Fort Knox locker and which evidenced the purchase of a silk balaclava on 31 January 2005 from Bike Barn, a business in the city;

(4) the hire of two vehicles as secondary escape vans on 28 February and 7 March respectively;

(5) the evidence of James that the applicant was not at the office at 530 Little Collins on 8 March 2005;

(6) telephone records showing lack of use of phones by the applicant on 8 March 2005;

(7) the evidence that the applicant attended at a Flight Centre on 9 March 2005 and made an urgent request to book overseas travel;

(8) betterment evidence relating to receipt of cash moneys by the applicant immediately after the robbery; and

(9) evidence showing Ryan's attempts to contact the applicant after he left the applicant's company on the afternoon of 8 March 2005.

366 His Honour further directed the jury specifically with respect to the issue of motive.

367 His Honour next gave specific directions with respect to the Crown case as to evidence of consciousness of guilt.

368 Finally, his Honour dealt separately with the evidence as to the relationship between Ryan and the applicant.

369 As the passage set out above shows, the judge made entirely clear in his direction on corroboration that Ryan's evidence could not be relied upon to corroborate Hogan's implication of the applicant in the offence or vice versa.

370 There was no error in the judge's directions to the jury as to the manner in which they should approach Ryan's evidence. Nevertheless, the applicant submitted that Ryan's evidence was incredible. In support of that submission he relied on contradictions and improbabilities in the evidence of Ryan, Hogan and James relating to:

371 The applicant attacked Ryan's evidence about the applicant's involvement prior to the robbery and argued that the various conversations which he said he had with the applicant and with Hogan could not have occurred as Ryan described.

372 As we have said, Ryan's evidence was that the applicant's motive for the robbery was to purchase an interest in PDA and that the applicant offered Ryan an opportunity to work for the company. Ryan said that in 2004 he had a conversation with the applicant in which the applicant said he needed money for this purpose.

373 The applicant submitted that this evidence of motive was clearly unreliable, because PDA was never for sale. In support of that claim he relied on the evidence of the solicitor Mr Grundy that the applicant had entered into a consultancy agreement with PDA on 10 December 2004, under which he would be paid $4,680 per month, although ultimately that agreement came to nothing.

374 He also argued that Ryan's account of the applicant's involvement in planning was inconsistent with his answer in response to the question whether the applicant had 'much of a role in planning' the robbery to which Ryan had responded:

No that's one thing that he didn't really want to prepare anything. He wanted to keep at arm's length from, you know, going out there or having to steal cars and all that sort of stuff ...

375 This evidence was also said to be inconsistent with James's evidence that the applicant had asked him to get a white van[167] within a month of 8 March 2005 and that on one occasion the applicant attempted to steal a vehicle and had wrecked the steering lock.

376 In his evidence in chief, Ryan said that when he returned from Sydney in late January 2005 he approached Hogan and told him that he 'knew a location that had potential [for a robbery] and that he should go and check it out and if it all works out that could be the place where everyone gets their money to do what they had to do.' Ryan said he spoke to the applicant and Hogan about the robbery and it was decided 'I suppose collectively to do what has to be done to eventually get towards that goal of getting the money from Blackburn'. He had suggested that the applicant meet Hogan, but when he and the applicant drove down to Hogan's workshop one day the applicant refused to get out of the car. After that he communicated with Hogan and had kept the applicant 'updated as to the progress of things'.

377 By contrast, Hogan said he was 'pretty sure' he had been approached in 'late April, early March', then 'late April', then 'late February 2005' when he had a discussion with Ryan at the Inkerman Hotel. However, he also said that 'we actually had our first conversation in December at the pub' and admitted to driving Ryan to the Blackburn North Shopping Centre in December 2004, 'for an armed robbery down the track which I had nothing to do with at the time.' Hogan said that on that day Ryan got a piece of wood cut at Bunnings and said he would use it in the armed robbery. There was a conflict between his evidence that the piece of wood was obtained in December and Ryan's evidence that Hogan got the piece of wood cut on the day of the robbery and left it in the car park for Ryan to pick up.

378 The applicant also relied on a conflict between Ryan, Hogan and James as to who stole the vans used in the robbery. Ryan said he stole one van on the evening of 7 March 2005, but he thought that Hogan had stolen the other. That van was left parked in Kew for use in the aborted 1 March 2005 robbery. The applicant had definitely not stolen it. Hogan denied stealing any van. James gave the evidence described above about the applicant trying to source the vans, but said that the applicant ended up getting Lenny (that is Ryan) to get the vans.

379 Finally, the applicant relied on Ryan's evidence that he kept Hogan and the applicant apart and communicated with them separately and Hogan's evidence as to Ryan's statements to him after the robbery in which Ryan referred to the applicant. He argued that, if Ryan was attempting to conceal the applicant's identity from Hogan, he would not have made the alleged statements identifying him.

380 The applicant also relied on contradictions between Ryan and Hogan's evidence as to the obtaining of the guns and the ammunition used in the robbery. Ryan gave evidence that he had asked Hogan to get the guns to be used in the robbery 'through his bikie connections' and that before Ryan returned from Barwon Heads on 27 February 2005, Hogan had dropped a gun 'which might have been a Browning' and a revolver around to Mark Dickson and, when he came back, the guns (without ammunition) were in his room. He said that he had discussed the fact that they had no ammunition with the applicant and with Hogan, and the applicant had told him that he was trying to get ammunition. Ryan said he had handed a gun to the applicant on 1 March 2005, after the robbery planned for that day did not proceed.

381 By contrast Hogan denied that he had obtained the guns, or that Ryan told him they needed ammunition, and said he had never attempted to source any ammunition. As noted, Dickson was not called as a witness in support of the Crown case that he had done so.[168] Hogan said that Ryan had obtained the guns. At the hearing of the appeal, the applicant submitted that it should have been inferred that Ryan got the guns from his storage locker. He also submitted that, although the judge had referred to the conflict between Hogan and Ryan on this point in his charge, he had not emphasised it sufficiently.

382 The Nissan Maxima was hired on 7 March 2005 and returned on 11 March 2005, after James had use of it. James's evidence was that he had gone with the applicant to a place in the Docklands and collected the car. He could not recall the date on which he picked it up but said he thought he had possession of it for 48 hours. When cross-examined he conceded that it was possible that he had the car from the afternoon of 7 March 2005 but he then questioned why he would not have then driven the Maxima to the applicant's house on the 8th rather than Stevens's car. In turn when it was explicitly put to him that he took the car on 7 March James stated that he did not agree with the suggestion that he took the Maxima from work on 7 March. James also gave evidence that he had taken a photo of the Maxima the afternoon he received it with a newspaper dated 9 March 2005 visible in the picture. James said he would be able to produce the photo in court but the next day stated that he was unable to produce the photo as it was stored on a computer disk that was secured with a password and he had forgotten the password.

383 The applicant submitted that there was a conflict between James's evidence that he had had possession of the Nissan for 48 hours and Ryan's evidence that he picked up the applicant at Burnley Railway station in the Nissan Maxima on the morning of 8 March 2005. He submitted that this could not have occurred, because James had the car at that time. James's partner, Stevens, gave evidence that the applicant lent James the Nissan for one day, but did not recall when that occurred.

384 We note that the various inconsistencies in James's evidence were carefully drawn to the attention of the jury in his Honour's charge.

385 It is now convenient to refer also to the evidence relating to a storage locker at Fort Knox Storage. Darren Keenan gave evidence that he had opened a locker at Fort Knox Storage in December 2004 at Ryan's request and had given Ryan the keys to it. Ryan denied having asked Keenan to get him a locker in Keenan's name or receiving a key to it in December 2004, though he said he had been to the locker with Keenan. He later conceded that he might have 'utilised my ex-flatmates storage locker'. It was put to him that there was an activity report showing that the locker had been opened at 10:57 am on 8 March 2005. Ryan denied that he opened the locker at that time and said that he was then waiting to pick up the applicant at the Burnley Station at 10:30 am. The applicant relied on Ryan's concession that, if he accessed the locker at 10:57 am, he could not have picked up the applicant at Burnley between 10:30 am and 10:40 am as he claimed.

386 James said that he visited the applicant in his Newport home on a number of occasions. On the evening of 8 March 2005 he drove there in the Ford Fiesta[169] belonging to Stevens, after receiving a phone call from the applicant. On arrival the applicant asked him to fix his computer, and 'it had turned out to be a minor little problem to do with the modem'. He said that he and Stevens socialised with the applicant and his partner for a while after he had fixed the modem. However, in crossexamination it was put to James that although the applicant's Bigpond account did not show the account was accessed on that date, 'it would be necessary to access it to restart [the computer] to fix it up' if there was a problem. James conceded 'That could be correct' and said he would give an example of why it would not necessarily have been the case. The trial was then adjourned to the following week and he gave no further evidence on the matter.

387 At another point in his evidence, James said that he drove the PLN van home from work, and parked it at home and that he and his partner, Stevens, drove to the applicant's house in her Ford Fiesta. He had seen the applicant and Ryan arguing on the nature strip. His evidence relating to the van was inconsistent with Stevens's evidence that she drove him to and from work on 8 March 2005,[170] and with Ryan and Hogan's evidence that they saw the van parked close to the applicant's house. But Stevens confirmed James's evidence that he saw the two men arguing on the nature strip.

388 There is no doubt that there were inconsistencies in Ryan's evidence and inconsistencies between the evidence of Ryan, Hogan and James. However, all these witnesses were cross-examined at great length about both prior inconsistent statements and the differences between their various accounts. So far as the planning issues were concerned, the jury could well have taken the view that the differences between Ryan and Hogan's evidence as to when they began planning the robbery were relatively inconsequential. In the case of the evidence about provision of guns and ammunition, it would have been open to the jury to reject Ryan's evidence that he had obtained the guns from Hogan, because it was inconsistent with Hogan's evidence. On the other hand, the jury might have considered that Hogan should not be believed on this issue. Clearly, Hogan was concerned to give the impression that he had played a limited role in the lead-up to the robbery. He also had a strong motive for not making admissions which tended to confirm that he knew that the shooter's gun was loaded. Moreover, if the other evidence were sufficient to implicate the applicant in the armed robbery, a difficulty in determining the precise source of the guns would not require the jury to acquit the applicant. James's evidence as to the use of the hire car was not sufficiently certain to demonstrate that Ryan could not have used it in conjunction with the robbery.

389 It would also have been open to the jury to reject Hogan's evidence that Ryan told him about the applicant's involvement after the shooting occurred. Again, for the reasons explained below, the rejection of that evidence by the jury would not have required the applicant's acquittal.

390 It was open to the jury to prefer the evidence of Ryan and Hogan about the presence of the van outside the applicant's house to the evidence of James that he had parked the van in his own driveway. Stevens's evidence was that she had driven James to work, picked him up and driven to the applicant's house in her Ford Fiesta. Consistently with Ryan and Hogan's evidence, she said she saw a white van out the front of the house which she had seen previously when the applicant had lent it to James. Perhaps most importantly, as we have said, both Stevens and James said they saw the applicant and Ryan arguing outside the applicant's house on the evening of the robbery.

(viii) Pillar 4 - Eye witness and video camera evidence

391 The applicant relied on the video camera evidence to support his contention that Ryan, rather than the other robber, was the shooter. He argued that the evidence of the eye witnesses was inconsistent and inconclusive. They gave varying accounts of the precise sequence of events and their descriptions of the comparative heights and builds of the armed robbers also varied. The evidence of the various eye witnesses is summarised above.[171]

392 Hogan's evidence was that the man who approached his van when he was waiting outside the shopping centre was 'around six feet tall, a little overweight with gingery hair. Although this supported the eye witness' evidence that a taller and a shorter man were involved in the robbery, the jury could have rejected it on the basis that Hogan's evidence was intended to incriminate the applicant. We shall return to the significance of that evidence below.

393 The applicant contended that the circumstantial evidence contradicted aspects of Ryan, Hogan and James's evidence. We have already referred to the evidence relied upon by the applicant to cast doubt on James's evidence that he went to the applicant's house to fix his computer on the night of the robbery.

394 The other inconsistency, which was arguably more important, related to James's evidence about his presence in the applicant's office and the applicant's absence from the office on the day of the robbery. James said that he was in the applicant's office on 8 March 2005 'doing some touch-up work on the web site' from approximately 10:00 am to 4:30 pm and that the applicant was not present. James said that the applicant was absent, and it was unusual for him not to be in the office all day without any explanation. He said that while he was there he had received a phone call on his mobile phone from Gavin Carr and that in the course of the conversation he became aware of the armed robbery and the shooting. He thought he received a maximum of two calls from Carr, but he remembered only one.

395 James said that the applicant had more than one mobile phone, but his primary phone was an iPhone or iMate. It was in its cradle in the applicant's office on 8 March 2005 and there were a number of calls to it. In his evidence in chief James said that he did not answer any of them. In cross-examination he said he might have answered one or two of them but there was some confusion as to whether the cross-examiner was inquiring about 8 March 2005 or 1 March 2005.

396 The applicant argued that, although James said in his evidence to the Chief Examiner that he noticed that the word 'mum' or 'mother' came up on a number of occasions when the applicant's phone rang, his mother's phone records did not show that she had called that phone. He also argued that, although James said he worked in the office all day on 8 March 2005, this was contradicted by computer records which showed that James did not access the computer in reception until 2:50 pm. A USB which was tendered and showed all computer files worked on by James did not indicate any work done by James on the computer in the applicant's office on 8 March 2005 prior to the reception computer being turned on at 2:50 pm.

397 It was further submitted that James's phone records provided only limited confirmation of his presence within the office, because the location of his mobile phone could not be confirmed at the time when he received calls on it. It was also contended that there was a gap in the receipt of calls between 12:00 noon and 2:07 pm during which James could have been absent from the office and that period coincided with the occurrence of the armed robbery.

398 The applicant submitted, too, that the applicant's own lack of telephone activity was explicable in a number of ways. For example he may have switched his mobile phone off or onto silent mode and failed to turn it back on. He contended there was no adequate comparative material showing patterns of use on other days. Once again we shall return to the significance of the phone record evidence below.

(x) Conclusion on ground 10 - Was it open to the jury to convict the applicant?

399 In our view, despite the inconsistencies in the evidence which we have noted above, it was open to the jury to accept that a combination of the following matters materially intersected with and tended to confirm Ryan's evidence. His Honour correctly identified the core of these matters as capable of corroborating Ryan's evidence.

(1) The evidence of a longstanding and close relationship between the applicant and Ryan. This relationship could have been regarded by the jury as providing a context in which Ryan's evidence that an armed robbery was discussed with the applicant was rendered more probable.

(2) The evidence of the applicant's involvement in the hiring of cars before the robbery. On its face there is a remarkable coincidence between the dates of the hiring of the two cars by the applicant and the two dates for which the robbery was planned.

(3) The evidence of James that the applicant was not present in his office on 8 March 2005 together with telephone and computer records demonstrating lack of activity by the applicant at the office. If it were accepted the applicant was not in his office this was a factor materially corroborating Ryan's evidence.

(4) The preponderance of evidence from eye-witnesses that it was the taller of the two offenders who shot Mr Kastenberger. The applicant was perceptibly taller than Ryan. If it were otherwise concluded the applicant participated in the robbery then this evidence supported the view the applicant was the killer.

(5) Evidence that the applicant hired a car for Ryan on 8 March 2005 in which Ryan initially searched for the applicant after they separated and then travelled to Sydney after meeting with the applicant at his home late on the night of 8 March 2005.

(6) The evidence of James and Stevens that they saw Ryan and the applicant arguing in front of the applicant's house on the night of 8 March 2005.

(7) The evidence that the applicant attended a Flight Centre office early on 9 March 2005 and made an urgent request to book overseas travel.

(8) The evidence that the applicant attended the Fort Knox facility on 9 March 2005 (when Ryan was in Sydney) and hired a locker, inside which a receipt for a black balaclava which had been purchased on 31 January 2005 was subsequently found, and the further evidence that the applicant was seen to use the locker on 10 May 2005.

(10) The finding by police in the applicant's office of a telephone which Ryan stated he had given to the applicant for the purpose of communication in the aftermath of the armed robbery.

401 The applicant made submissions about a number of these elements of the circumstantial evidence and it is necessary to say something further about each in turn.

402 Ryan gave evidence that he met the applicant in the early 1990s and said that they became extremely good friends. They remained in contact thereafter although they were separated for a while. In 2004 they resumed seeing each other regularly and were in contact nearly daily either by phone or in person. At that time Ryan was not working but was in receipt of sickness benefits.

403 Ryan was cross-examined by reference to telephone records and challenged as to the degree of contact he had with the applicant. He accepted that there were gaps in the telephone records relating to their primary mobile phones[172] but said the records would not show his use of public phones or the fact that he regularly dropped into the applicant's office and helped him out by doing a bit of running around.

404 The witness Jonathan York also gave evidence that he met the applicant for the first time in late 2004 at the Flower Hotel, Port Melbourne. After getting to know the applicant, York met the applicant regularly for a drink. On one occasion the applicant introduced York to Ryan who had just returned from Sydney. The applicant introduced Ryan to York as a very close friend 'more like a son'. The applicant told York that he and Ryan had known each other for quite a while and both the applicant and Ryan described how they had helped each other and said they owed each other a lot.

405 There was of course no evidence from the applicant himself as to the closeness of his relationship with Ryan.

406 In our view it was open to the jury to accept that Ryan and the applicant had a close relationship in the months prior to the robbery. The relationship might further be regarded as a credible context for the arrangements Ryan says he made with the applicant. In the absence of a close relationship it could be thought improbable that the applicant would allow Ryan to be the primary organiser of the robbery or would readily agree to Ryan making separate arrangements with Hogan and the applicant respectively. We doubt that the relationship evidence would persuade a jury that Ryan was unlikely to incriminate someone who was dear to him (as the Crown has submitted). Nevertheless, even if it be accepted that the relationship evidence ultimately could not go beyond providing a context for the balance of the evidence it could still be regarded as bearing on the probabilities relating to that evidence in the ways that we have described.

(xii) The hiring of the cars prior to the robbery

407 In broad terms Ryan's evidence was that the armed robbery was his project and that he took charge of the planning. He said that he had a series of conversations with the applicant about it at a café downstairs near the applicant's office. We have already referred to the applicant's submission that Ryan gave inconsistent evidence as to the extent of the applicant's participation in the planning process.

408 Ryan said the original plan was that the armed robbery would be carried out on Tuesday 1 March 2005 (Tuesday being the day on which Chubb Security Company made delivery to the shopping centre).

409 There were discussions about obtaining a secondary vehicle for Ryan and the applicant to travel out to the van they used to get to the robbery and to provide a secondary escape vehicle after the robbery. Ryan said that at one stage the applicant told him he was having difficulty getting a van and in particular could not successfully use a device he had for opening van locks for the purpose of stealing a van. Ryan said that he and the applicant agreed to meet up on 28 February 2005 at Europcar to hire a car as a secondary vehicle on the following day.

410 The evidence showed that on 28 February 2005 at 2:33 pm a blue Ford Falcon SRN 189 was hired from Europcar in the name of Leonard Jones. Leonard Jones was Ryan's name at the time and his driver's licence was produced when the car was hired. The applicant paid for the hire with his credit card. Ryan said that an arrangement was also made to meet in Footscray Road near the Bolte Bridge at Gate E of the Thiess railway carpark the following morning. Ryan's evidence was that the applicant did not arrive as agreed at 10:30 am. Ryan remained in the vicinity for about 20 minutes and then went into town and saw the applicant there. At 12:30 pm on 1 March 2005 the hire was extended for two days.

411 There is no evidence from the applicant as to why he hired the car with Ryan. On the face of it they did so jointly. It was put to Ryan in cross-examination that he needed a car to take a girl out that night and that the applicant had agreed to hire it for him. Ryan denied this and said he was not seeing girls other than a woman named Rachel at that time.

412 Ryan's evidence that he went on to give the applicant a 9 mm 'Roscoe' (handgun) on 1 March 2005 was also challenged. For present purposes however it is necessary to turn to the second car hire incident.

413 Ryan's evidence was that when the robbery did not proceed it was agreed to roll it over to the following week. Ryan said he discussed with the applicant again organising a hire car.

414 Ryan said he was present on 7 March 2005 when the applicant hired a silver Nissan Maxima TGX 223 at the Hertz depot in Franklin Street in the city. The applicant used a driver's licence he produced and again paid with his credit card. The hire was subsequently extended to 11 May 2005.

415 The applicant submitted that he had a good reason to hire a car, because he needed a motor vehicle to use until his purchase of a Mercedes was finalised. He also put in issue the presence of Ryan at the time of hire. But from the Crown point of view there is no evidence that Ryan was not present and undisputed evidence that the applicant hired the car. Ryan's evidence was that after collecting the car he and the applicant drove to an engineering works in Somerville Road, Brooklyn, where the applicant was having some work done on his Mercedes van. Thereafter Ryan dropped the applicant off and continued on driving the vehicle, remaining in possession of it until the afternoon of 8 March 2005 when it was taken by the applicant.

416 The jury were in our view entitled to have regard to the coincidental hiring of a car by the applicant in circumstances consistent with Ryan's evidence involving a repetition of conduct engaged in the previous week. There was again no explanation for the hire by way of evidence from the applicant himself.

417 Ryan's evidence was criticised as conjectural: 'I was there because he ended up using a different licence. He didn't use my licence this time. He used one of his, probably one of the bodgies.' It was further submitted that the evidence was deficient in critical detail. Ryan could not remember whether the applicant was served by a male or female that day. Nor could he remember where he first caught up with the applicant before going to the Hertz office. None of these details in our view compelled the conclusion that Ryan's evidence as to the joint hiring of the car should be rejected. Other aspects of Ryan's evidence were quite circumstantial, for example, 'I am at the counter because I remember the paperwork from even this one. There's actually a missing piece of paper because there was a paper he had to sign ...'.

418 Ryan's further evidence was that on the afternoon of 8 March 2005 when he was searching for the money which he had left in the Nissan Maxima he attended Hertz in Franklin Street.

Yes I gave the customer service representative the impression that I'd been with Mr Rich during the day and that I had left something of importance in the car that I needed to retrieve, that was just in case somehow I missed him or something like that.

419 Submissions by the applicant placed emphasis on the use of the word 'impression' but when Ryan's surrounding evidence is examined it is plain he was saying that he told the person he spoke to at Hertz 'I'd been with him and I'd left that in the car.' We do not think much can be made of a particular word used by Ryan in the course of his very protracted cross-examination. Conversely, the evidence that the applicant hired the car not only fits with Ryan's account of the pre-offence arrangements but intersects with Ryan's account of his post-offence conduct in a circumstantial way, ie the evidence that he returned to the Hertz office from which independent evidence shows the applicant hired the car.

420 In our view it was open to the jury to regard the evidence that the applicant hired the two cars on the dates described by Ryan as materially confirmatory of his evidence.

421 We have referred to the applicant's attack on James's evidence that he was present in the office for most of the day of 8 March 2005 and that the applicant was not there during the day or at least at the time of the armed robbery. Although there were phone records showing calls to James's mobile at 12 noon, 2:07 pm, 2:09 pm and 5:30 pm, it was not possible to show where his phone was located when the calls were received. Moreover some of those calls were of very short duration and might not have been answered. On the other hand, James gave evidence about answering the land line and receiving a telephone call about a printer. That was confirmed by telephone service records that three calls were made from the office of Konica Australia at 2:22 pm, 4.02 pm and 5:22 pm to the office land line. There was also phone record evidence showing that James received calls from Carr's landline to his mobile phone. Although the phone records did not unequivocally prove that James was present in the office at the times he claimed, they tended to reinforce the credibility of his evidence on that matter. Although the short duration of some of these calls could have meant that they were not answered, but simply resulted in a message being left, it is unlikely that James would have recalled them if he had not answered them.

422 More importantly there was no record of the applicant using his computer terminal within the office on that day or of him using a telephone within the office including his primary mobile telephone and the office telephone. The evidence revealed a lack of telephone activity after 9:17 am on 8 March 2005 and a sequence of unanswered calls during the day.

423 Although the applicant submitted that his own lack of telephone activity could have been explained in a number of ways, there was no evidence supporting any explanatory circumstances. As to the submission that there was no evidence of the applicant's general patterns of phone use, the mobile phone records from the early evening onwards on 8 March 2005 were before the jury and presented a dramatic contrast in usage pattern with that which occurred earlier in the day. Despite the applicant's criticisms it was in our view open to the jury to accept the evidence of James as to the applicant's absence from his office on the day of the armed robbery. That evidence was materially corroborated by the absence of any objective evidence that the applicant was present and by objective evidence tending to support the view he was not.

424 In turn the evidence that the applicant was not in the office at the time of the armed robbery coupled with the absence of any evidence of computer or telephone activity by him was capable of being regarded by the jury as material confirmation of Ryan's evidence that the applicant participated in the armed robbery.

425 As has been noticed, the preponderance of evidence from eyewitnesses described the offender who shot Mr Kastenberger as being the taller of the two involved in the robbery. The weight of the evidence in this regard was conceded by defence counsel in the course of argument at the trial. The applicant was perceptibly taller than Ryan and it follows that if the jury accepted that the applicant was present at the time of the shooting there was a simple circumstantial basis for regarding Ryan's account of his role in the robbery and of the identity of the offender who killed Mr Kastenberger as fundamentally correct.

426 On 8 March 2005 the applicant and Ryan travelled to Hoppers Crossing in the afternoon and hired a car from Europcar which Ryan used thereafter. Mr Ferraro, the operator of the dealership, gave evidence and produced records of the rental of a Holden Commodore RXG 298 at about 3:07 pm on 8 March 2005. The hire agreement was in the name of Hugo Rich. The renter produced a driver's licence with the applicant's home address and gave the applicant's mobile phone number. Someone else accompanied the applicant at the time of the hiring. The vehicle was initially hired to 12 March 2005 but someone telephoned and extended the hire to 16 March 2005.

427 The evidence may thus be regarded as showing that the applicant hired cars for Ryan on successive days being the day before and the day of the armed robbery. The successive hire of cars immediately prior to and after the robbery are circumstances which the jury might regard as directly corroborating Ryan's evidence and confirming the closeness of his association with the applicant at the time of the robbery. Further, the hiring of a Commodore for Ryan enabled Ryan to leave Victoria shortly after the robbery.

428 In turn the third hiring by the applicant is the threshold event leading to the complicated story of Ryan's efforts to relocate the Maxima in order to retrieve Hogan's money.

429 Ryan's evidence was that after he had been given possession of the Holden by the applicant he realised that he had left the money set aside for Hogan under the seat of the Nissan Maxima.

430 Ryan's evidence as to his movements was itself corroborated to a material extent by pay phone records showing that Ryan called the applicant from Franklin Street and the Menzies Tavern and the evidence of the witness, Andrew Keenan, who said that he saw Ryan in Franklin Street at about this time. The record of the prize won at the Menzies Tavern at 6:29 pm also directly confirmed Ryan's evidence, as did a further phone record of a call at 7:12 pm to Hogan from a public phone at the intersection of King and Collins Streets.

431 The evidence as to Ryan's movements leads to the evidence of James and Stevens as to the confrontation between Ryan and the applicant outside the applicant's house on the night of 8 March 2005. It follows that the evidence of the third car hire was again capable of being regarded as a material element in the combination of matters that might be regarded as confirming Ryan's account of the robbery. The applicant's involvement in the third car hire meshed directly with Ryan's detailed circumstantial account of his movements after the robbery.

432 Ryan's evidence was that after he failed to contact the applicant at the Hertz office in Franklin Street he went to the Menzies Tavern and drank through till about 8:00 pm. He then telephoned Hogan and arranged to meet him at Crown Casino. After meeting there, Hogan drove Ryan (who was affected by alcohol) out to the applicant's house in Maddocks Road, Newport. The applicant was not at home so the two men went to an Indian restaurant to eat and then returned at about 9:30 or 10:30 pm. Ryan asked Hogan to park about 70 metres down the road from the house and then went in to speak to the applicant and Sandra Blackney. He and the applicant went outside and had an animated discussion. In turn James and Stevens gave evidence that they saw Ryan and the applicant arguing outside the house when they arrived there.

433 Stevens said that when they got to the applicant's house there was a white van out the front and the applicant and another man were out near the van talking. They were not having a normal conversation. She said that she could not hear the conversation but the applicant's arms were as she put it 'just flopping'. He was talking with his arms and with his hands. She said she recognised the van that she saw - it was an old van which the applicant had lent James on a few occasions. She did not know at that time who the person was she saw speaking with the applicant.

434 When they arrived at the applicant's house they parked maybe two houses away from the house and got out of the car. The applicant said 'go inside I'll be there in a minute' or something like that and they went inside.

435 James said that when they got to the applicant's house they parked out the front of the house and Ryan was there. He knew Ryan through the applicant. He saw Ryan at the applicant's office two or three times a week. James said that there was a conversation between Ryan and the applicant on the nature strip directly in front of the walkway up to the front door of the applicant's house. It appeared to James that the two men were arguing. He could not hear what they were saying but he and Stevens were ushered inside the house.

436 Ryan says that when he asked the applicant about Hogan's money the applicant asked him where the vans were. Ryan told the applicant that he knew where one van was because it was where they had left it. Ryan was told by the applicant that, if he went and burnt the vans, then by the time he got back to the city and went to a certain place in Docklands he would find a key in the muffler of the Nissan Maxima. In turn if he opened the boot he would find Hogan's envelope of money.

437 Ryan said he had an argument with the applicant and argued amongst other things about the fact that he did not know the applicant's gun was loaded prior to the shooting. Ryan said he was arguing with the applicant when James and Stevens arrived and the applicant asked them to go into his house.

438 Hogan's evidence (including the evidence which is the subject of ground 3) substantially confirmed Ryan's evidence as to what occurred after leaving Crown Casino but lacked some significant details. Hogan said that he parked some 50 or 60 metres from the applicant's house after returning to the house for a second time and then did not see anybody else. When Ryan came back Ryan said 'everything's sorted out'.

439 Ryan said that he and Hogan then went to Lower Plenty and burnt one of the vans using lighter fluid. They travelled back to Box Hill and attempted to burn the other van. Then they returned to Docklands where they found the Maxima and obtained the money which was given to Hogan. Hogan gave similar evidence although he said he remained in the car at Box Hill and when the envelope of money was recovered. Ryan said he drove back then to Crown Casino, dropped Hogan off and commenced his trip to Sydney.[173]

440 The defence contested that Ryan and the applicant had an argument outside the applicant's house on the night of 8 March 2005 and asserted the applicant was not present at his house as Ryan claimed. In our view, it was open to the jury to accept the evidence of Ryan corroborated as it was by James and Stevens and to be satisfied that the argument occurred.

441 In turn the evidence of the argument materially implicated the applicant in the whole post-offence sequence of events described by Ryan and tended strongly to confirm Ryan's account as to the applicant's involvement in the armed robbery.

442 The applicant submitted that his mobile telephone records demonstrated that he was elsewhere on the night in question. But detailed examination of the records shows that he could have been present at his house within the time band generally described by Ryan and in particular after about 10:00 pm.

443 Justine Bunn gave evidence that the vehicle RXG 298 was used on the Citylink Tollway at 10:54 pm on 8 March. The toll record shows the vehicle went through toll point 3B, located on the Bolte Bridge heading outbound, followed by toll point 2D at the Tullamarine outlet located after Footscray Road and before Racecourse Road. The vehicle could not have exited after Racecourse Road without activating another toll point. The evidence that the vehicle travelled north at this time is consistent with Ryan and Hogan's evidence of travelling from the applicant's house at Newport out to the east to destroy the two vans.

444 James gave evidence that he went to the applicant's house after receiving a telephone call from the applicant. He could not identify any call from the phone record other than one that occurred just after 7:30 pm.[175] It would take him about 15 minutes usually to drive to the applicant's house from his home but he could not say exactly what time he arrived there.

445 We accept that if James left Altona Meadows to drive to the applicant's house within 10 minutes of having received a telephone call from the applicant shortly after 7:30 pm this does not fit with the evidence as a whole as to the movements of the applicant. Nevertheless we are not persuaded this evidence prevented the jury from accepting the evidence of James and Stevens that they witnessed the argument between Ryan and the applicant and that it in fact occurred.

446 We do not accept that the jury were bound to reject the evidence of the three witnesses as to the happening of the argument simply because of incidental variations in their accounts as to when the argument occurred. In particular the fact that Ryan had been drinking earlier that evening and that Stevens gave evidence she and James drank red wine at the applicant's house would as a matter of common experience tend to suggest that their estimates of time may not be precise.

447 Lastly in this connection, we record that there was no objective evidence corroborating the fact that James worked on the applicant's computer on the night in question as James asserted he did. We accept that, if he worked on the ADSL connection as he said he did, objective evidence should be available of that fact. Despite this deficiency however it remained open to the jury, on the whole of the evidence, to accept that the argument between the applicant and Ryan occurred.

448 Ms Quimby MacIntosh gave evidence that on 9 March 2005 the applicant went to the Flight Centre travel agency in Queen Street at about 8:45 am and was asked to return after 9:00 am. The applicant seemed quite keen to make a booking. He came back at about 9:30 am and spoke with Ms MacIntosh. He told her he wanted to book a business class ticket and was very specific about his destination and the date he was leaving. He wanted a business class ticket from whichever airline she could get him on 'pretty much straight away'. He did not make any enquiries about cancellation fees. He offered to leave his credit card and said he had to sort out some passport details.

449 The travel agency worked on the itinerary all day and the applicant came back in the afternoon and dealt with another employee. The itinerary was produced in evidence and involved travel to Rome, Palma Majorca, Dusseldorf, Berlin, Tel Aviv, the Isle of Man, Berlin, Tel Aviv and back to Melbourne. The booking was made on Lufthansa for a total price of $8,929. Payment was made on 11 March 2005.

450 On Friday 11 March 2005 the applicant came back to the travel agency near closing time and said he needed to change his dates. The proposed flight was put off for a month. Subsequently the ticket was put on hold and then on 13 April some $6,062 was refunded.

451 Mr Grundy, a solicitor practising from an office in the same building as the applicant's office, gave evidence that the applicant told him on 11 March 2005 that he was going to Europe and the United Kingdom, to visit some relatives in Germany and to visit his bank in the United Kingdom. The applicant asked Grundy whether he could do some work on the case of one MacRae for Grundy while the applicant was in the United Kingdom. MacRae was a United Kingdom citizen being held at Port Phillip Prison at the time. The Singapore Government was seeking to extradite him. Grundy agreed.

452 On or about 11 March 2005 Grundy signed a passport application for the applicant verifying his photograph. Grundy agreed in cross-examination that the possibility of someone going overseas on MacRae's behalf had been previously discussed and further agreed the applicant may have approached him about the proposal before 8 March 2005.

453 In our view the jury was entitled to treat the Flight Centre evidence as evidence of an apparently urgent desire to leave the country on the morning after the bank robbery and the killing. On the other hand, it must be acknowledged the applicant's actions did not crystallise in flight and in itself only limited weight could be placed upon this evidence.

454 The Crown called evidence from a forensic accountant demonstrating that the applicant had spent an aggregate amount of $20,440 in the week following the robbery when he had no discernible source of funds. There is no evidence directly linking this cash to the robbery but it is significant that the majority of money consisted of bundles of $100 or $50 notes.

455 The analysis undertaken related to the applicant's financial affairs between 4 October 2004 and 30 April 2005. The forensic accountant who gave the evidence acknowledged that his methodology might not enable him to trace all the financial transactions undertaken by the applicant. In cross-examination he further acknowledged that the records he had available (of matters such as automatic teller machine withdrawals) reflected a number of cash transactions. He agreed that the applicant's expenditure was financed by debt and unsourced deposits. He said he did not have access to monthly journals or monthly invoices and if there were other documents relating to the applicant's affairs then these would be relevant to his enquiries. When police searched the applicant's office no books of account were found relating to businesses conducted by the applicant.

456 The cash deposits made by the applicant in the period prior to 8 March 2005 totalled a figure in the order of $10,100.

457 In our view the jury were entitled to infer that the applicant had received a cash sum on or about the date of the robbery. The amount in issue was greater than that involved in other cash transactions reflected in the applicant's financial records as examined by the forensic accountant and it was substantially disbursed by payments in large denomination bank notes. It was not such as to demonstrate a truly dramatic influx of funds somehow proportionate to what was stolen. But the receipt of the cash in issue was a matter to which the jury could have some regard as a legitimate element in the circumstantial case as a whole.

458 On 9 March 2005 the applicant attended the Fort Knox Storage facility and hired a storage locker. The locker was one metre by one metre and the applicant provided a personal identification number which enabled him to access the locker. At the time of hiring the applicant provided a driver's licence in his name and was driving a Mercedes Benz Vito van.

459 On 10 May 2005 the activity report produced by the Operations Manager, Ms Blair, showed that the unit was opened, then closed, then opened again and closed again.[176] Ryan gave evidence that he attended the storage facility with the applicant on 10 May 2005. The locker was searched on 11 May 2005 and a receipt for a black silk balaclava which had been purchased from Bike Barn on 31 January 2005 was found in a bag within it. Items located with the receipt contained traces of DNA consistent with that of the applicant.

460 Ryan described the applicant as wearing at the time of the armed robbery a black balaclava consistent with the one found, namely, sheer like silk and open around the eyes but stitched up so you could not really see the person's eyes. Ryan gave evidence that the applicant told him that he had purchased the balaclava which he used in the armed robbery from a bike shop and Ryan thought the name of the store might have been 'Peter Stevens', 'or something like that but there is a bike store in town where it had been bought'.

461 The applicant submitted that this evidence was of no probative value because Ryan and James also had access to the locker. In particular, he placed emphasis upon Ryan's evidence that James had a key. The key was used by Ryan, James, Blackney and Ryan's brother to clear out equipment from the storage unit on 12 May 2005, being the day the applicant was arrested. The applicant further submitted that it could not be shown that he had placed the receipt in the bag found in the locker. We accept that there are surrounding circumstances which diminish the weight that could be given to this evidence. Nevertheless the combination of circumstances including the dates of use and presence of the balaclava is one to which the jury was entitled to give some weight in assessing the Crown case.

(xx) The telephone given by Ryan to the applicant

462 The Crown case also relied on evidence that a telephone which Ryan said he had given to the applicant so that they could communicate in the aftermath of the robbery was found in the applicant's office by investigating police on 11 May 2005.

463 The evidence was that two telephones were purchased in the name of Smith on 21 March 2005. Ryan said he gave one to the applicant at a meeting in a café in the Australis Plaza on that day. Ryan said he gave the applicant a phone because the applicant said he did not want Ryan coming around to his office at that stage. The discovery by investigating police of one of the two phones at Ryan's home in Inkerman Street in May and the further discovery of the other phone (a Sony Ericsson T105 with a particular identification number) in the applicant's office when it was searched was capable of being regarded by the jury as evidence tending to support and confirm the truth of Ryan's evidence concerning his dealings with the applicant albeit perhaps only with respect to conduct subsequent to the armed robbery rather than the robbery itself.

464 Putting the above matters together, the evidence most strongly corroborative of Ryan's account of the applicant's involvement in the armed robbery was:

• the evidence as to the hiring of two successive cars respectively prior to the initial date proposed for the robbery and immediately prior to the robbery;
• the evidence of the applicant's absence from his office on the day of the robbery;
• the evidence suggesting that the killer was the taller of the two armed robbers;
• the evidence of the hiring of a further car in the aftermath of the robbery and its provision to Ryan and of Ryan's efforts to subsequently recontact the applicant;
• the evidence of the argument outside the applicant's house on the night of 8 March 2005; and
• the discovery of the twin phone purchased by Ryan for the applicant when the applicant's office was searched by police.

465 The other matters to which we have referred were also capable of acceptance by the jury as tending to confirm the truthfulness of Ryan's account of the robbery and the applicant's role in it. When regard is had to these matters as a whole, it was in our view plainly open to the jury to accept Ryan's evidence as truthful and reliable with respect to the robbery and shooting.

467 For the sake of completeness, we record that there are some limited aspects of the evidence upon which the Crown relied as supporting Ryan's evidence upon which we accept the jury could place little weight, either because they did not intersect directly with Ryan's account of his dealings with the applicant or because we accept they were ultimately of little probative value. These matters include:

• the evidence as to motive;
• the evidence that Ryan and Hogan collected Hogan's money from a location in Docklands; and
• the evidence the applicant asked James to get him a white van.

468 We have already referred to Ryan's evidence that the applicant said he needed money to purchase interest in PDA and that Ryan could in turn be offered a role with side benefits, such as a good car, a credit card and overseas travel. In particular, Ryan said that the applicant told him at the end of 2004 that he needed $200,000 to make the deal with PDA happen.

469 Ryan's evidence was that he put the proposal for the armed robbery to the applicant initially on the basis that he could get money for PDA from it and that there was ongoing reference to PDA in subsequent discussions.

470 The evidence ultimately showed that the applicant entered into a consultancy agreement with Precision Design Australia Pty Ltd commencing on 10 December 2004. This agreement provided for a payment to the applicant of a consultancy fee and did not demonstrate that the applicant had an objective need for a substantial amount of cash money (in the order of $200,000) at the time of the robbery. The motive for the applicant's involvement in the robbery suggested by Ryan was thus not established. On the other hand, the dealing with PDA confirms that the applicant may well have discussed PDA with Ryan and to this incidental extent was consistent with his evidence.

471 James gave evidence that because he had a history with car theft the applicant asked him to obtain a van. He did not recall where the conversation took place but said he was asked to obtain a white van. James was cross-examined as to the detail of what occurred and the defence ultimately submitted that his evidence was inconsistent and unconvincing. It is sufficient to say that for our part we accept that it could not be regarded as materially corroborating the truth and reliability of Ryan's evidence.

472 The Crown also relied on the fact that Ryan's evidence was that the envelope containing the money for Hogan was collected from the Nissan Maxima at a location in Docklands. Hogan was less sure about the location. In any event whatever may have been the recurrent associations that the applicant had with Docklands, we do not think much could be inferred from the location of the pick-up.

473 For the reasons already given, we do not consider that the limited weight to be accorded to Ryan's evidence relating to the motive for the robbery, James's evidence about the request to steal a van and Hogan's evidence about the collection of the envelope meant that it was not open to the jury to find the applicant guilty of murder or armed robbery.

Conclusion on application for leave to appeal against conviction

474 It follows that the application for leave to appeal against conviction will be dismissed.

Application for leave to appeal against sentence

475 The applicant seeks leave to appeal against sentence, on three grounds:

(1) The sentence is a nullity because the proceedings were a nullity.

(2) The judge subjected the applicant to double punishment for the offence of armed robbery.

(3) The judge erred in failing to prevent the Crown from referring, in the course of the plea, to one of the applicant's former convictions which was quashed on appeal to the High Court.

476 The submission put in support of ground 1 was expressed in the applicant's written case as follows:

The applicant stood before an incompetent proceedings that the law could have ever recognised, denying the judge any lawful authority to impose any sentence or ordering a term of imprisonment.

Counsel for the applicant was invited to expand on the argument but he informed the court that he had nothing to add to what was set out in the written case.

477 In our view, therefore, the argument is untenable. The applicant was put up for trial on a Presentment signed by the Director of Public Prosecutions and otherwise in apparent conformity with s 353 of the Crimes Act 1958.[177] The applicant has not identified any defect in the Presentment or any other reason why it should be regarded as invalid. No objection was taken to its validity in the course of the trial. No question as to the judge's standing or authority to impose sentence was voiced in the course of the plea. We reject ground 1.

478 The argument under ground 2 was that the judge erred by taking into account as an aggravating circumstance of the murder that it was committed in the course of the armed robbery. It was submitted that, because the applicant stood to be sentenced separately for the armed robbery, taking the robbery into account on the charge of murder amounted to double punishment. Alternatively, it was contended that the judge erred in failing to moderate the sentence imposed on the charge of murder to take account of the extent of criminality which was common to both charges.

479 We do not think those submissions to be persuasive. We allow that there was a degree of overlap between the murder and the armed robbery. Although the elements of each offence were mutually exclusive, the gravity of the murder was informed by the fact that it was committed in the course of the robbery. We also accept that the judge was bound to make an allowance for the overlap in order to avoid the risk of double punishment. But it does not follow that the judge was bound to reduce the sentence imposed on the charge of murder. To the contrary, this offence of murder was among the worst instances of that offence, among other reasons, just because it was committed in the course of violent armed robbery. As such, it necessitated a sentence appropriate to the worst instances of the offence of murder.

480 We allow that, to the extent of the overlap, it was necessary for the judge to moderate the sentence imposed on the charge of armed robbery.[178] But we are not persuaded that the judge failed sufficiently to moderate the sentence imposed on the charge of armed robbery. This armed robbery, like the murder, was among the worst instances of the offence that may be imagined. It demanded a condign sentence made sterner still by the applicant's antecedents, recalcitrance and very limited prospects of rehabilitation. Given the nature and gravity of the offending, and that the maximum penalty is 25 years' imprisonment, we do not consider that a sentence of 20 years' imprisonment was in all the circumstances too much.

481 Moreover, even if it were, it would make no difference to the sentence imposed on the charge of murder or, therefore, to the total effective sentence. Thus, we would dismiss the application for leave to appeal under s 280(1)(b) of the Criminal Procedure Act 2009. We reject ground 2.

482 The argument under ground 3 was formulated in the applicant's written case, as follows:

It is submitted, that [because] ... it would have ... been impermissible for the Court itself to ... receive [a] submission based on a 'quashed or spent' former conviction ... the judge had [a] duty to [stop] the Crown prosecutor from [making a] submission [based on such a conviction] as it really stood for nothing higher tha[n] [making] inappropriate attempts to convey to the judge [a need] to ... impose the full weight of the statutory penalty - and such a penalty was so ultimate[ly] imposed.

483 Counsel for the applicant was invited to expand on that argument, too, but once again stated that he had nothing to add to the written case. We proceed accordingly. As we apprehend the argument, it amounts to saying that the prosecutor should not have referred to any 'quashed or spent' former conviction; and, because he did, the judge was thereby influenced to take into account an irrelevant consideration which vitiated the exercise of his sentencing discretion.

484 We reject the argument. The only reference to 'quashed or spent' conviction, which we can find in the transcript of the plea hearing is in the following passage of the prosecutor's submission on plea:

MR TINNEY: As to the armed robbery itself, my friend has conceded that it's obviously enough a serious example of the offence of armed robbery and clearly that must be so by an offender with a highly relevant past history and the Crown would say, no prospects of rehabilitation on the material, and I'll come back to that shortly.

Your Honour knows that Mr Rich was released on parole on 3 October 2004. That's another matter, I won't keep going back to it, your Honour, because it stands to no proposition at all, of course, but my friend has placed it before you as providing some guidance.

Mr Rich was on parole, he was on parole following a very lengthy sentence for armed robbery and other offences. He was released on parole on 3 October 2004 and within a very short space of time was planning to commit an offence. The offence itself - I now speak of the armed robbery - was obviously a high yield, high stakes offence given the nature of the target, the fact that the targets were armed. It involved, as your Honour has said, significant planning. On Mr Rich's behalf, the carriage of a loaded firearm is a, and your Honour scarcely needs me to make this submission, I would have thought, your Honour has seen the video footage and has seen a passing parade of witnesses who had the misfortune to be present in that shopping centre on the day in question, lunch time. A loaded firearm, a highly visible and dangerous armed robbery committed at a time when, as we say, there are very many civilian bystanders, young and old present up against uniform guards known to possess loaded weapons so obviously a high level of risk of confrontation and discharge of weapons in that setting, children in pushers, as your Honour sees, school students in the vicinity. They're all of them aggravating circumstances in terms of each of the crimes as indeed, of course is the very significant aspect of it being committed whilst on parole for the same offence.

As to the murder, my friend concedes it's a serious example of that offence. Discharge of a nine millimetre weapon deliberately into Mr Kastenberger, who'd done nothing to provoke the shooting. He was just doing his job. The money had been thrown away, he was totally compliant. His murder was totally unnecessary to effect the armed robbery. In that sense, it's submitted that it's a brutal and a senseless killing in a public place of a guard just going about his daily duties.

Your Honour has had a brief opportunity and no doubt your Honour will read them again, the victim impact statements to which I referred your Honour earlier but the impact has been profound obviously on a number of levels and to a number of people.

My friend has taken your Honour to Mr Rich's history and he's ultimately concluded in his submissions that there are prospects of rehabilitation.

HIS HONOUR: Primarily by the effluxion of time?

MR TINNEY: Yes. Mr Rich is not a 24 year old such as Mr White committing an offence and standing to be sentenced when 26 with the history of Mr White. Mr Rich is Mr Rich, standing to be sentenced for the offence committed by him as a mature man with the history that he's got whilst on parole.

Your Honour knows that there were certain sentences passed upon Ryan. I don't take your Honour to those other than to refer to her Honour's remarks in those sentencing remarks as to the armed robbery sentence that would have been passed for Ryan being in the mid-double figures but for the level of cooperation and the undertaking and the guilty plea. I refer to paragraph 66 of her sentencing remarks.

There is in this case a total absence of any remorse as demonstrated by a range of activity in the course of the trial. Your Honour can have regard to that if needs be pursuant to the provisions of s 5(2C) of the Act. There has been a total lack of regard for the court and the court process. That would only be relevant, of course, in relation to an assessment that your Honour makes in relation to his prospects for change.

He has demonstrated a track record showing a flagrant disregard for the court and orders imposed by the court and for that matter orders imposed by the Parole Board. It leads us to a submission that the Crown is generally reticent in making in this sort of proceeding, that Mr Rich has absolutely no prospects of rehabilitation.

He has the convictions that have been either admitted or proved, they include the two trials for armed robbery. He is now by my calculations 56 years of age. Since 1984, he has spent a total of approximately 36 months not in custody.

I repeat that, since 1984, he has spent a total of approximately 36 months not in custody.

Your Honour sees from the history that he received his first term of immediate imprisonment in October 1981 for deceptions, two years with a non-parole period of 12 months. Upon his release, he committed further dishonesty offences. In 1984 for thefts and deceptions he received five years with a three year non-parole period in the County Court. He was paroled in relation to those matters; I have a certificate that I can - that my friends have been provided with, but if there's any issue I'll provide it. He was paroled in March 1986. By December 1986, he was arrested in relation to Commonwealth offences that are not prior convictions, as your Honour will be aware. It deals with the issue of his custodial placement throughout this period. So, December 86 arrested in relation to the Commonwealth offence of importation, for which he was convicted in the County Court - - -

MR DESMOND: How is it relevant?

MR TINNEY: - - - in October of 1988, and he received a seven year term with a five year non-parole period. Now, ultimately he succeeded in his appeal with the High Court leading to an order that he be retried and ultimately the Commonwealth Director never bothered with that retrial as Mr Rich had already served his minimum term and been paroled - paroled on 27 April 1990.[179] The only reason I raise that, your Honour, was, it spells out the length of time that Mr Rich has been out of custody in the last quarter century.

PRISONER: I'm entitled to a total (indistinct).

MR TINNEY: So, having been paroled on 27 April 1990, in relation to those matters, which ultimately his appeal in the High Court was successful, on 2 December 1991, he was arrested in relation to the series of armed robberies ...

This history will be spelt out in some decisions that I will refer your Honour to. As your Honour's been told, he was convicted of a number of those. He had a measure of success in the Court of Appeal, which led effectively to his being sentenced for one of the armed robberies in 1997, retried on the other in 2000 and various nolle prosequis being announced for the remaining counts after that successful retrial.

Rich remained in custody from 2 December 1991 until being paroled in October 2004. As your Honour has been told, in that time he was serving sentences for the two armed robberies by that stage. Each of those armed robberies, by the way, were very serious examples of that offence. One involve[d] an armed robbery upon the Armaguard van making a collection from the Glen Waverley supermarket at 12.35 one afternoon.

The other was a forced entry to the Nunawading National Australia Bank branch just prior to the branch opening, and the armed robbery then of the cash that was awaiting collection by the Armaguard escort, and as I say the facts of those can be seen in various judgments that your Honour has been referred to along further, and I will refer to them again shortly.

In the course of the committal hearing, so these are not matters back in 1991, in the course of the committal hearing he issued threats to kill the informant. As you have been told that was the subject of a two and a half year cumulation following trial in relation to that matter. In the course of the armed robbery trial before Judge Byrne he threatened to kill the prosecutor, Ms Douglas, he made a series of contemptuous remarks to the trial judge and that then led to his conviction for contempt of court in 1998 for which again there was a measure of cumulation.

The upshot is that Mr Rich has spent a total of 22 of the last 25 years in custody. Within a very short space of time of being released on parole he was involved, though the truth of this was yet to be determined, your Honour has got the interview of Mr Rich though in relation to the various fraud allegations. He was involved in a series of frauds for which he made admissions. He awaits trial in the County Court for those. The current armed robbery and murder occurred whilst - - -

HIS HONOUR: And that, is there a time fixed for that trial?

MR TINNEY: It is - I am not involved in that your Honour, 20 October or thereabouts of this year, your Honour. The current armed robbery and murder occurred whilst on parole for armed robbery within five months of such release after being in custody for 13 years.

485 We see nothing improper in the prosecutor so mentioning the conviction which was quashed by the High Court.[180] It seems to us that it was necessary to refer to it in order to provide the judge with a complete understanding of the time which the applicant had spent in gaol. There is also nothing in what the prosecutor said about it, or the manner in which he said it, which appears calculated or likely to have caused the judge to give it improper weight. As the prosecutor told the judge, the only reason he referred to the matter was to explain the length of time which the applicant had spent in custody in the last quarter century. The important point, which was accurately reflected in the judge's sentencing remarks, was that the applicant committed the subject offences shortly after serving the previous 13 years in gaol. Accordingly, we reject ground 3.

Conclusion on application for leave to appeal against sentence

486 The application for leave to appeal against sentence will be dismissed.

[1] The trial judge ruled the hire of these two vehicles was capable of amounting to corroboration of Ryan's evidence of the need for a second car for escape from the armed robbery. The trial judge decided not to inform the jury that this and other evidence was capable of amounting to corroboration. Rather, he decided to identify those parts of that evidence (ruled to be capable of being corroborative) and to tell the jury the prosecution relied on the evidence as corroboration.

1. [2] The trial judge ruled that the phone records of telephone calls to and from the applicant's mobile phone on the afternoon and evening of 8 March 2005 (Exhibit Q) were capable of corroborating Ryan's evidence that he was attempting to contact the applicant to obtain Hogan's share of the robbery.

[3] The trial judge ruled that the evidence was capable of amounting to corroboration that Ryan was trying to contact the applicant on the evening of 8 March to collect Hogan's money.

[4] The trial judge ruled this as being capable of amounting to corroborating the evidence of Ryan and Hogan.

[5] The trial judge ruled that the evidence of James, that the applicant was not at the office on 8 March 2005, and the phone evidence as to the lack of use of phones connected with the applicant around the time of the armed robbery (apart from calls explicable by the making of calls by James to his partner Leonie Stevens) was evidence which tended to negate the suggestion that the applicant was in his office and was capable of corroborating Ryan and Hogan.

[6] The trial judge ruled their evidence was capable of amounting to corroboration of Ryan and Hogan that there was a problem with Hogan's share of the robbery and this explained the argument.

[7] The trial judge ruled that the majority of those cash transactions after 8 March 2005 were capable of amounting to corroboration of Ryan and Hogan.

[8] The trial judge ruled that the attendance of the applicant at the Flight Centre and the urgent request to book overseas travel was capable of amounting to corroboration and of consciousness of guilt.

[9] The trial judge ruled the evidence of the applicant's purchase of a black silk balaclava on 31 January 2005 was capable of amounting to corroboration of Ryan's evidence that the applicant wore a black silk balaclava during the robbery.

[10] The defence did not call any witnesses.

[11] The relevance of this distinction is discussed below.

[12] Under Crimes Act 1958, s 574.

[13] Gallagher v The Queen [1986] HCA 26; (1986) 160 CLR 392, 395 (Gibbs CJ), 402 (Mason and Deane JJ), 410 (Brennan J); R v Abou-Chabake [2004] NSWCCA 356; (2004) 149 A Crim R 417, 428 [63]; R v AHK [2001] VSCA 220, [8] (Winneke P).

[14] R v Nguyen [1998] 4 VR 394, 400 (Kenny JA, Winneke P and Callaway JA agreeing).

[15] [2004] NSWCCA 356; (2004) 149 A Crim R 417, 428 [63] (citations omitted).

[16] Ratten v The Queen [1974] HCA 35; (1974) 131 CLR 510, 518, 520 (Barwick CJ, McTiernan J agreeing).

[17] A 'substantial miscarriage of justice' is now required under Criminal Procedure Act 2009. Presumably this would also be established.

[18] [1986] HCA 26; (1986) 160 CLR 392 ('Gallagher').

[19] [1933] HCA 41; (1933) 49 CLR 429, 439.

[20] Gallagher v The Queen [1986] HCA 26; (1986) 160 CLR 392, 395-6 (citation in original).

[21] [1989] HCA 35; (1989) 167 CLR 259 ('Mickelberg').

[22] [1986] HCA 26; (1986) 160 CLR 392, 395-396, 401-402, 408-409.

[23] [1933] HCA 41; (1933) 49 CLR 429, 439.

[24] [1974] HCA 35; (1974) 131 CLR 510, 519-520.

[25] [1979] HCA 49; (1979) 142 CLR 659, 671, 676-677.

[26] [1986] HCA 26; (1986) 160 CLR 392, 410.

[29] Mickelberg v The Queen [1989] HCA 35; (1989) 167 CLR 259, 301 (citations in original).

[30] R v Nguyen [1998] 4 VR 394, 400-401 (Kenny JA, Winneke P and Callaway JA agreeing), citing as follows: 'See Boughey v R [1986] HCA 29; (1986) 161 CLR 10 at 21, Mickelberg at 301, Cheney v R [1991] FCA 37; (1991) 28 FCR 103 at 108 and R v Heffernan (unreported, Court of Criminal Appeal, 20 May 1994)'. See also Miechel v The Queen [2010] VSCA 225; Coleman v The Queen [2011] VSCA 301 (where the Court asked whether there was 'a substantial chance' that the fresh evidence would have resulted in the jury acquitting the appellant) and Greensill v The Queen [2012] VSCA 306, which cited the test as set out in R v Nguyen.

[31] R v Kucma [2005] VSCA 58; (2005) 11 VR 472, 487 [52] (Eames JA).

[35] Tadic was the subject of further evidence at trial.

[37] Kirsch subsequently rephrased this as 'it was just a fuckin' accident'.

[38] [1989] HCA 35; (1989) 167 CLR 259.

[39] [1986] HCA 26; (1986) 160 CLR 392, 395, 402, 410.

[40] [1974] HCA 35; (1974) 131 CLR 510, 516-517.

[41] [1979] HCA 49; (1979) 142 CLR 659, 666, 675-677.

[42] Ratten v The Queen [1974] HCA 35; (1974) 131 CLR 510, 517 (Barwick CJ).

[43] The detail of the 'history' of the relationship between Kirsch and the applicant was never satisfactorily clarified for the Court.

[44] But nor does it establish that there was any inhibition upon the applicant or his legal advisors approaching Kirsch. Indeed the disclosed history of contact after the applicant's conviction tends to confirm that there was not.

[45] Section 65(2)(d) provides that the hearsay rule does not apply to a representation against the interests of the person who made it, if made in circumstances which make it likely that it is reliable. Section 65(8) provides, inter alia, that the hearsay rule does not apply to evidence of a previous representation adduced by an accused if the evidence is given by a person who saw, heard or otherwise perceived the representation being given.

[46] JD Heydon, Cross on Evidence (Aust ed) [31040]-[31060].

[48] Dysart Peerage Case (1881) 6 App Cas 489, 502; Lloyd v Powell Duffryn Steam Coal Co Ltd [1914] AC 733; J D Heydon, Cross on Evidence (Aust ed) [31060].

[50] Walton v The Queen [1989] HCA 9; (1989) 166 CLR 283, 288-9 (Mason CJ), 300-1 (Wilson, Dawson and Toohey JJ); cf 307 (Deane J); J D Heydon, Cross on Evidence (Aust ed) [31045].

[51] [1986] HCA 26; (1986) 160 CLR 392.

[53] [1986] HCA 26; (1986) 160 CLR 392.

[54] The number given to a particular juror to preserve anonymity.

[55] See now, however, Sonnet v R (2010) 30 VR 519, 549 [106].

[56] Since replaced by the Juries Regulations 2011.

[57] [1998] 2 VR 671 (Brooking, Callaway JJA and Ashley AJA).

[59] There were some minor differences between the anticipated evidence and the terms in which it was given, but these were of no significance.

[60] [1961] HCA 22; (1961) 104 CLR 1.

[61] [1988] HCA 39; (1988) 165 CLR 87, 94-5 ('Ahern'). The principle was originally applied in a case where the accused were charged with conspiracy to commit an offence Tripodi v The Queen [1961] HCA 22; (1961) 104 CLR 1, but was later applied to situations of pre-concert.

[62] Tripodi v The Queen [1961] HCA 22; (1961) 104 CLR 1, 6-7.

[63] By contrast, his Honour held that the evidence which the Crown had intended to lead from Hogan as to the reason for the armed robbery not proceeding on 1 March and the identity of the proposed accomplice to that robbery was mere narrative and was therefore inadmissible; Ruling 18 [25].

[65] R v Christie [1914] AC 545 ('Christie').

[67] R v White ([2003] VSCA 174; 2003) 7 VR 442, 464 [60] (Chernov JA).

[68] R v Ali [2002] VSCA 194; (2002) 135 A Crim R 426 ('Ali').

[69] DPP (Vic) v Faure [1993] VicRp 87; [1993] 2 VR 497 ('Faure').

[71] James denied smoking the relevant brand.

[72] Hickey & Komljenovic v The Queen (1995) 89 A Crim R 554.

[73] Holt & Merriman v The Queen (1996) 87 A Crim R 82.

[74] Jenkins v The Queen [2004] HCA 57; (2004) 79 ALJR 252, [29].

[75] No longer the case under the Evidence Act 2008 s 164.

[76] R v Miletic [2008] VSCA 101; (2003) 185 A Crim R 326 ('Miletic').

[77] [2008] VSCA 101.

[79] [1986] HCA 49; (1986) 161 CLR 315.

[81] [1997] 1 VR 593.

[83] [2004] VSCA 73; (2004) 8 VR 388.

[90] R v Butcher [1986] VicRp 4; [1986] VR 43, 46-51; R v Galas [2007] VSCA 304; (2007) 18 VR 205, 212 [25].

[91] R v Butcher [1986] VicRp 4; [1986] VR 43, 53; R v Galas [2007] VSCA 304; (2007) 18 VR 205, 213 [31].

[92] [2007] VSCA 304; (2007) 18 VR 205.

[94] R v Butcher [1985] VR 43, 59.

[95] See the similar position which applies under the common law felony-murder rule: Markby v The Queen [1978] HCA 29; (1978) 140 CLR 108, 112-3; see also The Queen v Barlow (1997) 188 CLR 1; Gillard v The Queen [2003] HCA 64; (2003) 219 CLR 1, 9 [15] (Gleeson CJ and Callinan J).

[96] (2000) 201 CLR 414; subject now to Jury Directions Act 2013 s 16 ('Gilbert').

[97] [2003] HCA 64; (2003) 219 CLR 1, 41 [133] (emphasis added, citations omitted) ('Gillard').

[98] [2010] HCA 20; (2010) 241 CLR 237, 248-9 [29] ('Dupas').

[99] Gilbert v The Queen (2000) 201 CLR 414, 421 [17] (Gleeson CJ and Gummow J).

[100] Gillard v The Queen [2003] HCA 64; (2003) 219 CLR 1, 41 [133] (Hayne J).

[101] Mraz v The Queen [1955] HCA 59; (1955) 93 CLR 493, 508 (Williams, Webb and Taylor JJ).

[102] Dupas v The Queen [2010] HCA 20; (2010) 241 CLR 237, 248 [28]-[29].

[103] James v The Queen [2014] HCA 6; (2014) 306 ALR 1.

[104] Ibid 7 [21]-[23] (citations omitted).

[105] [1998] HCA 23; (1998) 153 ALR 145, 151 [23] (McHugh J), see also 148-9 [12]-[13] (Gaudron and Gummow JJ); R v Munro [2005] VSCA 260, [44]-[45].

[107] [2003] HCA 64; (2003) 219 CLR 1.

[108] In relation to matters dealt with before the commencement of s 16 of the Jury Directions Act 2013.

[109] Dublin, Wicklow & Wexford Railway Co v Slattery (1878) 3 App Cas 1155, 1201; Cubillo v The Commonwealth [2000] FCA 1084; (2000) 103 FCR 1, 46 [119]-[120]; MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606, 617 [34].

[111] [2006] NSWCCA 395 ('Brown').

[112] R v Spathis and Patsalis [2001] NSWCCA 476, [303] (Carruthers AJ).

[113] [2006] NSWCCA 395, [48].

[114] [1970] 1 NSWR 252.

[115] [1980] HCA 3; (1980) 143 CLR 108, 119.

[116] [1970] NSWR 252, 257 (Herron CJ, Maguire and Isaacs JJ agreeing), cited in Brown v R [2006] NSWCCA 395, [12].

[117] [1963] 1 WLR 1200.

[118] [1980] HCA 3; (1980) 143 CLR 108, 119.

[119] Citing Glanville Williams, Criminal Law, The General Part, 2nd ed, 397-398.

[120] [1970] 1 NSWR 252, 257.

[121] [1963] 1 WLR 1200.

[122] [1966] 2 QB 110.

[123] [2006] NSWCCA 395, [11].

[124] (1992) 30 NSWLR 292, 301 (Carruthers J, Gleeson CJ and Smart J concurring).

[125] [1970] NSWR 252, 257.

[126] James v The Queen [2014] HCA 6; (2014) 306 ALR 1, 7 [22].

[127] (2011) 245 CLR 1, 225 [597] ('Momcilovic').

[128] [2011] VSCA 355; (2011) 33 VR 440 ('Marijancevic').

[129] Grey v R [2001] HCA 65; (2001) 184 ALR 593, 601 [26]; Lee v New South Wales Crime Commission [2013] HCA 39; (2013) 302 ALR 363, 420 [190]; Sonnet v R (2010) 30 VR 519, 534 [55].

[130] On the basis that it was obtained by reason of improperly sworn affidavits.

[131] On the basis that it was obtained by reason of improperly sworn affidavits.

[132] [1978] HCA 22; (1978) 141 CLR 54, 74.

[133] Which applied at the time of the applicant's trial.

[134] See also R v Em [2003] NSWCCA 374 [73]-[78].

[135] It was assumed for the purposes of argument, without deciding whether it was so, that it was necessary for the police to utter the oath or affirmation at the time of signing.

[136] Marijancevic [2011] VSCA 355; (2011) 33 VR 440, 458-9 [66]-[68].

[137] Kable v DPP (NSW) [1996] HCA 24; (1996) 189 CLR 51; see also New South Wales v Kable [2013] HCA 26; (2013) 298 ALR 144, 148 [16]; James Stellios, 'Kable, Preventative Detention and the Dilemmas of Chapter III' (2014) 88(1) ALR 52.

[138] [1998] HCA 9; (1998) 193 CLR 173 ('Nicholas').

[139] [1995] HCA 66; (1995) 184 CLR 19.

[140] [1998] HCA 9; (1998) 193 CLR 173, 197-8 [37]-[38].

[141] [1978] HCA 22; (1978) 141 CLR 54, 73 (Stephen and Aickin JJ).

[142] [1970] HCA 21; (1970) 126 CLR 321.

[143] R v Sang [1979] UKHL 3; [1980] AC 402; R v Khan [1996] UKHL 14; [1996] 3 WLR 162; [1996] All ER 289.

[144] Police and Criminal Evidence Act 1984 (UK) s 78.

[145] This provision has given rise to much litigation in the Supreme Court. See, eg, R v Collins [1987] 1 SCR 265; R v Wijesinha [1995] 3 SCR 422; R v Stillman [1997] 1 SCR 607.

[146] United States v Russell [1973] USSC 88; (1973) 411 US 423, 445 (Stewart J dissenting).

[147] Hampton v United States [1976] USSC 68; (1976) 425 US 484, 488-9 (Rehnquist J); 492 n2, (Powell J). Both the majority and dissenting judgments in Jacobson v United States [1992] USSC 44; (1992) 503 US 540 appear to accept that the relevant question is whether government agents' conduct caused the accused to commit the offence.

[148] Nicholas [1998] HCA 9; (1998) 193 CLR 173, 274-5 [238]-[241].

[150] See for example 203 [57] (Toohey J), 206-7 [68] (Gaudron J), 232-33 [146] (Gummow J).

[151] [2004] HCA 46; (2004) 223 CLR 575, 617 [102] (Gummow J).

[152] R v Boland [1974] VicRp 100; [1974] VR 849, 866; Crofts v The Queen [1996] HCA 22; (1996) 186 CLR 427, 432.

[153] In the argument preceding his Honour's pre-trial ruling, Mr Trewavas who gave evidence for the Chief Commissioner made no reference to the sex of the caller and nor did counsel for the Chief Commissioner.

[154] The principles are set out in Commissioner of Australian Federal Police v Magistrates' Court of Victoria and Ors [2011] VSC 3, [28]. See also, Woolworths Ltd v Svajcer [2013] VSCA 270, [16].

[155] Mr Desmond put the following to James:

Were you present on 8 March 2005 at the Blackburn shopping centre with Leonard Ryan committing an armed robbery?

Were you present at the Blackburn shopping centre carrying a gun?

And did you either shoot the guard and/or pick up the bag of cash?

---Definitely not. That's frowned upon in my business, or my ex-business. There's no reason to do that at all. Coward's act, dog's act. Mongrel.

[156] The authorities are discussed in Heydon v Magistrates' Court [2001] SASC 65; (2001) 87 SASR 448, [1] (Doyle CJ), [66] (Perry J); Jarvie v Magistrates Court of Victoria [1995] VicRp 5; [1995] 1 VR 84.

[159] R v Rich (Ruling 27) [2009] VSC 161 (Ruling No 27) [26].

[160] [1984] HCA 38; (1984) 154 CLR 563 ('Apostilides') see also Richardson & Ors v The Queen [1974] HCA 19; (1974) 131 CLR 116 ('Richardson').

[161] Apostilides [1984] HCA 38; (1984) 154 CLR 563, 573-4 and see also 575-6.

[162] Compare Apostilides where the witnesses who were not called were present at the events which preceded the alleged rape and the High Court declined to grant special leave because the Full Court had held there was a substantial miscarriage of justice; Whitehorn v The Queen [1983] HCA 42; (1983) 152 CLR 657 where the failure to call the seven year old complainant in an indecent assault case complainant was held to be productive of a miscarriage of justice. Compare Richardson where the failure to call an eye witness who was unreliable and had possibly encouraged the accused to attack the victim was not held to have given rise to a miscarriage of justice.

[163] Cf Apostilides [1984] HCA 38; (1984) 154 CLR 563, 576.

[164] [2013] HCA 42; (2013) 303 ALR 42.

[165] M v The Queen (1994) 181 CLR 487, 492 (Mason CJ, Deane, Dawson and Toohey JJ); see also Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559, 596-7 (Hayne J, Gleeson CJ and Heydon J agreeing).

[166] See above at [220].

[167] It was put to James in cross-examination that there were inconsistencies in the evidence he gave at the OCE hearing and at the Basha hearing as to whether he was asked to obtain one van or two vans or a car or a three tonne truck and about the timing of this conversation with the applicant and where it occurred.

[168] We have previously discussed ground 9, which alleges that this failure gave rise to a miscarriage of justice.

[169] Stevens referred to this car as a Ford Festiva.

[170] Stevens conceded that she might not have driven him to or from work on 8 March 2005 but nevertheless affirmed in cross-examination that it was the van which James had previously driven.

[171] See above at [6] and [250].

[172] In particular the records showed substantial gaps in the calls made by each user to the other during February.

[173] When returned on 16 March the car (Holden Commodore RGX 298) had travelled approximately 2,100 kilometres.