1 The applicant was presented for trial before a County Court jury on the following charges:

1. one count of aggravated burglary (count 1);[1]
2. four counts of common assault (counts 2-5);[2] and

1. one count of reckless conduct endangering persons (count 6).[3]

2 These offences were alleged to have been committed on 5 November 2004 in Thomastown at an automotive workshop called Quicksilver Automotive Performance (the 'workshop'). The workshop was operated by Vasko Jovanovski ('Vasko'), the victim of the assault which constituted count 5. The applicant was said to have been acting in concert with John and Michael Selim (to whom we will refer, respectively, as 'JS' and 'MS', and collectively as the 'Selims').

3 By his own choice, the applicant was unrepresented at the trial (and on the appeal). He crossexamined the prosecution witnesses himself, and addressed the jury at the conclusion of the evidence. The trial judge directed an acquittal on count 4 at the close of the Crown case. After a trial of 15 days, the jury returned a verdict of guilty on all other counts. The trial judge sentenced the applicant to two years' imprisonment, wholly suspended for two years.[4]

4 The applicant now seeks leave to appeal against conviction. There are numerous grounds of appeal. For reasons which follow, we need deal only with one ground. We would grant leave to appeal, and allow the appeal, on the ground that the jury's verdict is unsafe and unsatisfactory - that is, it 'cannot be supported having regard to the evidence'.[5] We would therefore quash the convictions and enter a judgment of acquittal on all counts.

5 According to the Crown case, the applicant and the Selims arrived at the workshop in two separate cars: the applicant in a white Mercedes Benz; the Selims in a black BMW. They arrived intending to enforce a debt of $700 allegedly owed to the Selims by Brane Stankovski, who was then at the workshop. (We will refer to Mr Stankovski as 'Barney', the name used by all witnesses when referring to him.)

6 The Crown's case was that the applicant was complicit in the actions of JS and MS. In accordance with an agreement or understanding which the three had reached earlier in the afternoon, they entered the workshop with the intention of assaulting Barney and Vasko. The applicant stood at the roller door while the Selims went to the kitchen located within the workshop. JS was carrying a handgun. MS was carrying a knife (count 1 - aggravated burglary).

7 Once in the kitchen, MS attacked Barney with a knife (count 2 - assault). JS pointed a gun at Barney's face (count 3 - assault). He also pointed the gun at another man in the kitchen, Toni Sokolovski ('Sokolovski') (count 4 - assault). He also pointed the gun at Vasko's face (count 5 - assault). He then fired a bullet from the handgun through the ceiling of the workshop, into an office located above (count 6 - recklessly endangering persons). After JS fired the bullet, the Selims left the workshop. The applicant left soon afterwards.

8 The applicant's case was that his presence at the workshop was innocent. He was present as a customer of Vasko's and was, in fact, on his way to pick his son up from school. Having arrived late on the scene and seen the commotion, he attempted to make peace.

9 Vasko had started the workshop business in 1993 and had known the applicant since that time. The applicant often came to the workshop to get his cars fixed. It was common ground that they were friends and business associates.

10 On 3 November 2004, the applicant telephoned Vasko and told him that Barney, who was a friend of Vasko's, owed $700 to the Selims, who were friends of the applicant's. Vasko knew the Selims because he had repaired their cars.

11 On 5 November 2004, Barney arrived at the workshop and Vasko told him about the telephone call from the applicant about the debt. Barney immediately telephoned the applicant. Because the phone was on speaker, Vasko was able to hear the conversation, and recognised the applicant's voice. He had no recollection, however, of what was said.

12 Half an hour later, the Selims arrived. At that time, Vasko was in the kitchen with Barney, Sokolovski and Lube Ognenovski ('Lube'). JS produced a gun and showed it to everyone. He pointed the gun towards Vasko's head, which made Vasko feel scared. MS then produced a knife and began waving it in the direction of Barney, who pushed the table to protect himself. There was a fight between them.

13 JS fired the gun into the ceiling above the kitchen. This frightened Vasko. There was an office immediately above the kitchen, on the mezzanine floor. According to the informant, Sadler, the bullet went through the ceiling and into the upstairs office. The Selims left after about 'two, three minutes'.

14 Vasko gave no evidence about the applicant's arrival. He said that, after the Selims had left, he spoke with the applicant 'about what happened'. He could not recall any details of the conversation. After about 10 or 15 minutes, the applicant left. Vasko did not see the applicant threaten anyone.

15 Robert Talevski helped Vasko from time to time at the workshop. He had in the past worked on cars belonging to the applicant, including two white Mercedes.

16 Talevski recalled the applicant and the Selims coming to the workshop three days before the incident. On that occasion, JS had asked Vasko whether he could fix his car. Vasko replied that this was 'not a problem'. JS then started to wave his finger around, as if he was pointing a pistol in Vasko's direction. It seemed to Talevski that JS was saying to Vasko, 'if the car's not fixed properly, watch out'. Vasko looked scared. At one point, MS or JS said to Vasko, 'Tell Barney to ring us up'.

17 On the day of the incident, Talevski was cleaning his car's engine, just outside the roller door at the entrance to the workshop. MS and JS walked into the workshop, MS carrying a 'Rambo knife' and JS carrying a gun.

18 In his evidence at the trial, Talevski said that the applicant had arrived with the Selims, approximately half a minute or a minute after them. In the course of crossexamination (by the applicant), however, Talevski was taken to his committal evidence, given more than three-and-a-half years earlier. At that hearing, Talevski had said that there were no cars in the driveway to the workshop when the Selims walked in, and that a white Mercedes had pulled up in the driveway 'some time after all this kerfuffle started in the workshop between the two men and Barney and Vasko'. Talevski confirmed at the trial that the answers he had given at the committal were true and correct.

19 Talevski confirmed other evidence he had given at the committal, to the effect that when the applicant got out of his white Mercedes in the driveway, he came over to where he (Talevski) was, just outside the entrance to the workshop. The applicant walked past Talevski some two to three metres, inside the workshop.

20 On Talevski's evidence, the Selims went 'straight to Barney'. MS attacked Barney with the knife, and Barney protected himself with his hands. JS waved the gun around, towards Barney and Vasko, and fired a shot up into the ceiling.

21 Asked whether he had seen what the applicant was doing, Talevski said he 'was basically directing the traffic'. Asked to explain what this meant, he said that the applicant was saying 'You have to do this, you have to do that'. Talevski acknowledged, however, that he had not actually heard anything said by the applicant.

22 According to Talevski, when the gun was fired, the applicant said to the Selims, 'Come on, come on, let's leave'. (We note that no other witness gave evidence of the applicant making a statement in such terms). In evidence-in-chief, Talevski said that all three then left, running out the roller door. In cross-examination, however, Talevski agreed that the applicant had remained after the Selims left and had stood around near the entrance way with Vasko.

23 On 5 November 2004, Barney went to visit his friend, Vasko, at Vasko's workshop. He arrived, he thought, at about 2:30 or 2:40pm. Vasko told him about his conversation with the applicant on 3 November 2004. Barney then telephoned the applicant. He believed he did so because he knew the applicant was with JS.

When you spoke to Mr Slaveski can you recall what the conversation was about? --- I said, that - I just asked, I said, 'Apparently, apparently I owe some money to some friend of yours or a friend of mine by the name of John Hitler' and he said, 'Hold on you know, he's right next to me.'

Do you know Johnnie Hitler by the other name? --- No.[6]

Did you have a conversation with Johnnie Hitler? --- Yes I did, very brief and I asked him, 'How do I owe you money' and he said to me, 'You don't owe me any money' and he said, 'Hold on, Michael' his son wanted to have a chat to me.

Did you have a chat to Michael? --- Well Michael grabbed the phone on the other side and he said, he started using bad language towards me.

Are you able to recall what he said and what language he used? --- Yeah the words that, 'I'm gonna' or 'I'm gonna fuck your mother' or similar to that extent I said, 'Don't talk to me like that' because I'm older than the person, I've known him for a while. I said, 'Let go' or something like - to that effect.

Was there anything else discussed? --- Yes just straight after that he said, 'I'll come and kill you' or something like that. And then he goes, 'Where are you?' I said, 'I'm - where were you - where did you go to find me.' I said, 'That's where I am, at my mate's mechanical workshop.'

Can you let us know in just shorter sort of brief what took place over the conversation between you and Michael please? --- He swore at me. I answered him back not to speak to me like that and then he said I'll come and kill you and hung the phone up. Where are you, I want to come and kill you, and then he arrived at the place within ten minutes.

25 Soon after this conversation, the Selims entered the kitchen area of the workshop where Barney was sitting. According to Barney, this was five or 10 minutes after his phone conversation. Upon their arrival, MS produced a knife and moved towards Barney, who was sitting at a desk. MS said, 'I'm going to kill you' and the pair began to tussle. Barney attempted to fend him off with a piece of wood. This flicked out of his hands and the pair continued to fight 'hands to hands'. Barney suffered cuts from this. He was scared the whole time.

26 As MS produced a knife, JS produced a gun and held it near Vasko's head. He told everyone not to move. JS also pointed the gun at Barney, which made him scared.

27 As MS and Barney continued to tussle, JS said 'stop' and fired a shot. This made Barney scared because he did not know if he had been hit. JS then said, 'Quick, let's get out of here'. MS said, 'Come on, come on' and then the applicant appeared in the doorway.

28 Barney first saw the applicant 'at the end of the incident'. There were three or four people standing at the roller door. The applicant said to the Selims, 'Quick, quick, get out of here, police will arrive', after which Barney asked, 'What was that all about?'

29 In cross-examination, Barney agreed that, after the Selims had left, the applicant stayed in the workshop and spoke to him and Vasko for a few minutes. The applicant put to Barney the following account of what happened:

APPLICANT: ... the Selims went in their own car and I stayed back and I was really surprised, if you can recall. I did ask Vasko and yourself 'What is all of this? This is stupid. You were all friends,' and then Vasko was telling me what had happened and also yourself. Am I right to say that? ---

BARNEY: Yeah.

The witness then said (in response to a question from the judge):

I totally agree with what [the applicant] is saying. It's just the visit that happened just - there were just - at the end it was all done in a rush. He made sure that the Selims didn't get in trouble - 'Quick, quick, go out. Police are coming.' 'What happened?' and all that, he knew what happened. It's like he knew what happened and wanted to usher them out and then he asked us. Now, I'm not saying - I'm not in his shoes to know what - but that's what it looked like, you know, like 'Why are you getting up to all this stupidity?' but first he made sure that they went.

30 The applicant then asked the witness: 'How would I know what had happened?' Barney said: 'I don't know'. The trial judge clarified that all Barney had said was that it seemed to him that the applicant knew. Then there was this exchange:

ACCUSED: So you dispute that I was there as a customer, do you, sir? --- I guess so.

Why do you say that? --- Because the way things happened that's how.

The way things happened? --- Yes. When you came in through the roller door and everything was finished you weren't surprised - you weren't surprised.

But you were shocked you said, sir? --- I was shocked, yes, I was shocked.

But I was shocked as well? --- No you were answering them now. You were saying, 'Quick, quick, get out of here before the police come' and that's why I put it to (indistinct) back there. You knew exactly what was going to happen because you were with them before that.

31 Barney confirmed that he had worked for the applicant for almost a year and that, over a period of almost 10 years, there had never been any problems between them. He confirmed that he had spoken to the applicant by phone before the incident, and said that it was possible he had spoken to the applicant afterwards as well.

32 Toni Sokolovski was at the workshop at the time of the incident. He was there to pick up his car from being serviced. He went to the office, where he saw Barney, a friend he had not seen for some time. He sat down with Barney and Vasko for coffee.

33 After they had spoken for 'a little while', Sokolovski said that 'two chaps ... walked in, one with a knife, and the other approached, approached sort of me and sort of - approached Barney, with a gun, came out of his, out of his pants'. The men approached Barney and there was a scuffle. The man with the gun also pointed it at Vasko.

34 Sokolovski was scared. Initially, he tried to slip away. He 'scraped against a wall' and 'behind the closet'. He then made for the roller door. As he did, a man standing in front of the door - near the gas bottles - said, 'Stay here' or 'Just stay here'. The person said this a number of times, but gave no explanation. The man motioned with his hands. He was wearing a white tracksuit.

35 A few seconds later, Sokolovski heard a gunshot and he ran out with another person. The man in the tracksuit did not leave. Sokolovski and the other man ran to a factory down the road. A couple of minutes later, he saw a black BMW drive past, followed by a white Mercedes Benz. He could not see who was driving either car. He had first seen the Mercedes Benz in the driveway of the workshop.

36 Barbara Hewish was an administrative assistant at Lalor East Primary School, which the applicant's children attended. She gave evidence that, on 5 November 2004 at around 2:45pm, the applicant - in company with his wife - picked his children up from school. The applicant gave evidence that this occurred straight after he had left the workshop.[7]

37 Lube was a supplier of windscreens to the workshop. On the day of the incident, he had parked his van inside the roller door. He greeted Vasko, who offered to make him coffee. At that moment, however, Lube's phone rang and he went back to his van to take the call. He was writing down the customer's details when he

heard a bit of commotion behind me, a couple of guys walked in, one looked like he had a hand gun, and as soon as that happened, it sort of shocked me a bit, and I went to get out of the workshop.

38 When Lube reached the roller door, a person (whom he identified as the applicant) stopped him. Lube said, 'Look, I've got nothing to do with this. Can you leave me out?' The applicant responded, 'No, you can't, no-one's going nowhere. Everyone stays inside'.

39 Lube confirmed that the applicant had not done anything else. He had done nothing to physically prevent Lube from leaving the workshop. Lube confirmed the accuracy of the following statement (which he had accepted in his evidence at the committal):

[A]s far as you're aware the only thing on your version that this fellow in the white tracksuit had to do with this was that, when you saw him near the entrance to the workshop, he said words ... that you understood to be that you were to stay where you were ...?

40 The applicant put to Lube in cross-examination that what he had actually heard the applicant say was, 'Hey, stop! You're friends! What are you guys doing?' Lube disagreed, stating that he knew what he had heard.

41 Having left the factory, Lube waited for about 20 minutes. He saw a few cars drive off, one of which he identified as a black car, and then returned to the workshop.

42 The applicant admitted being friendly with the Selims. He saw them a couple of times per week through his computer store. He admitted that he was having coffee with them on 5 November 2004 when Barney telephoned him, looking for the Selims' phone number.

43 The applicant denied, however, that he had knowledge of or involvement with Barney's alleged debt to the Selims. His evidence was that his 3 November 2004 phone call to Vasko - if it occurred at all - only concerned his car. As regards the 5 November 2004 phone call from Barney to the applicant's phone, the applicant said that he had simply handed the phone along to the Selims, without considering what the phone call concerned.

44 Very soon after that phone call, he received a phone call from his children's school, informing him that his son had fallen in the mud. He replied that he would pick his son up. He decided that, on his way to the school, he would visit the workshop to check the status of a car being repaired there. This was a car he was intending to lend to his secretary. He would meet his wife at the school, while his father would look after his shops.

45 Accordingly, the applicant drove to the workshop and parked his car, a white Mercedes Benz, about seven metres from the roller door. He did not hear the gunshot because of the very loud sound system in his car. The applicant's version of what occurred was as follows:

I said to - I got out of the car you know. I walked up to Vasko. I said, 'Vasko what's happening here?' He says, 'Oh Johnny and [Barney] and Michael are arguing' and I can hear screaming. I said, 'What do you mean they're arguing, over what?' He goes, 'Over some money' words to the effect. I don't remember every word but something like that. And I said, 'Well why don't you stop all this. This is ridiculous they're friends. They're friends of yours and they're friends of mine. You're the boss here, you take control the situation.'

As Vasko, being the boss, he's got the right, your Honour, not me. I said, come on, Johnnie has repaired his car here, his [sons] have repaired the car here, Barney is your friend, they're all friends, stop all this. And while we arguing - sorry, while they're arguing, we are still, your Honour, standing at the roller door ...

46 According to the applicant, he asked Vasko what was happening, and Vasko replied:

[T]hey started arguing and Michael is there, where my office is, and Barney was pushing the table, so he doesn't get to him.

[U]pon me arriving at that particular workshop, at that particular time, Vasko said, he's got a knife, he's pushing and Johnnie had a gun, he fired, words to the effect, I said, what are you talking about, this is stupid, they're all friends, and I said, stop it, mate, let's stop this, these people know each other. He says, I don't know, Barney owes him money, words to the effect, and Michael owes him money. I said, but, they're all friends.

I said 'Vasko, what's happening mate, this is stupid?' So Johnny and Michael are walking towards - of course from the kitchen area where the incident took place allegedly. Then they're walking out towards the roller door and I said, 'Michael, Johnny what happened?' He goes, 'Sky this, this man threatened my son.' I said, 'What do you mean he threatened your son?' And he said, 'They threatened my son mate.' This is [Barney] your Honour ... And Johnny said, 'Nobody threatens my son that he's going to kill him'. ... So I stayed back. I said, 'Johnny this is stupid, you guys are friends; work it out. If he owes you money you got to pay him. If you owe him money you've got to pay him. Slowly, maybe the man has difficulties.' We all owe money to somebody, either to the bank or to family members or to cousins. We all can get into financial difficulties your Honour. But there's no need to go out of stupid ways. He says, 'He threatened my son.' I said, 'Well sit down and work it out.' And then, Michael and Johnnie, your Honour, left. I stayed back for another five to ten minutes, and I said to Vasko, I said, Vasko, I have to go and pick up my son, but I said, please, let's look into the car as well, and we spoke a lot more about the case ... let's get back to the car now, that's the reason that I came here. He goes, okay, Sky, okay, I'm just - this is stupid, they're all friends, they - it shouldn't have happened, I said, mate, you fix Johnnie's BMW, you fix this, Johnnie's other son's car, I think his name was David.

So, all I tried to do, your Honour, is, you know, if they're friends, just work things out, there's no need to do stupid things. After me staying back for five to ten minutes, even Vasko said - it could've been longer, I don't know, I didn't time it, I just went, your Honour, to pick up my son, I met my wife at the school.

47 In cross-examination, the applicant denied seeing Lube or Sokolovski at the workshop. As the Crown pointed out to the jury, this evidence was inconsistent with the basis on which the applicant had cross-examined them, and was contrary to the applicant's record of interview.

48 Another aspect of the record of interview on which the Crown relied was the applicant's response to the question, 'Has [JS] ever assisted you with collecting money from people who owe you money?' The applicant replied, 'I probably just take him to a few people, yeah.' Both in submissions and under crossexamination, the applicant denied giving any such answer. He claimed that the record of interview had been falsified.

49 As noted at the outset, the Crown case was that what occurred in the workshop represented the carrying into effect of an agreement between the applicant and the Selims. Whether such an agreement had been made - and, if so, what the elements of it were - could only be established by inference. The case against the applicant was, as the judge correctly instructed the jury, wholly circumstantial.

50 In a supplementary outline of submissions, filed in response to questions from the bench, the Crown accepted that - at least so far as concerned the offences of aggravated burglary and reckless endangerment - the Crown had to prove beyond reasonable doubt that the applicant had either:

• agreed with the Selims that 'the proposed action against Barney' would involve the use of weapons; or
• otherwise foreseen that the Selims would use weapons.

51 What must not be overlooked is that, on the Crown case, the alleged agreement was not confined to 'the proposed action against Barney'. Count 4 against the applicant alleged an assault on Sokolovski, while count 5 alleged an assault on Vasko. The Crown case, as her Honour explained to the jury, was that all of the offences committed by the Selims in the workshop were within the scope of the prior agreement. Moreover, as her Honour also explained, the Crown had to prove that, at the time of entering into the alleged agreement, the applicant 'had the state of mind necessary to commit the offence alleged in each count on the presentment'.

52 In other words, the Crown case was that the applicant's agreement with the Selims encompassed the following elements, each of which the applicant himself intended or foresaw:

• the Selims would enter the workshop while carrying weapons and intending to commit assault (count 1);
• Barney would be put in fear by MS (count 2) and by JS (count 3);
• Vasko would be put in fear by JS (count 4);
• the Selims would assault an innocent bystander (Sokolovski) (count 5); and
• JS would fire the gun, creating as a probability an appreciable risk of serious injury to persons in the workshop (count 6).

(The count involving Sokolovski was taken away from the jury at the conclusion of the Crown case, but this was simply because there was no evidence to establish that Sokolovski had been assaulted.)

53 According to the Crown's supplementary submission, the evidence which established beyond reasonable doubt that the applicant either agreed to or foresaw the use of weapons by the Selims was the following:

• the conversation between the applicant and Vasko on 3 November, in which the applicant said that Barney owed the Selims $700, this debt being 'the ultimate cause for the Selims coming to the workshop';
• the previous visit of the applicant and the Selims to the workshop, when JS asked Vasko to fix his car and waved his finger around as if he was pointing a pistol;
• the fact that the applicant and the Selims were together immediately before the incident and that, in the telephone conversation which took place between MS and Barney immediately prior to the incident, MS - in the presence of the applicant - threatened to kill Barney;
• the fact that the applicant arrived at the workshop 'in close succession to the Selims';
• the fact that the applicant assisted them by standing near the roller door;
• the fact that the Selims produced the weapons either immediately upon entering the workshop or soon after entering;
• the fact that, from his position near the roller door, the applicant must (it should be inferred) have seen the Selims in the kitchen with the weapons; and
• the fact that the applicant assisted the Selims by:

a. attempting to prevent Sokolovski from leaving the workshop;

b. attempting to prevent Lube from leaving the workshop after JS had fired the gun; and

c. speaking with the Selims after JS had fired the gun.

54 It may be accepted that the inference of prior agreement contended for by the Crown was open to be drawn on this evidence. For reasons which follow, however, we are far from persuaded that it was the only inference reasonably available. As appears from the Crown's summary set out above, the evidence relied on to prove the prior agreement - taking the Crown case at its highest - was very limited.

55 The course of events made it perfectly clear that the Selims themselves had resolved to enforce - by means of violence, or threats of violence, and using weapons - the repayment of the $700 which they claimed Barney owed them. They had armed themselves for the purpose and, on the uncontested evidence, carried out their plan to the extent of terrifying everyone in the workshop, including Barney.

56 What needed to be proved, however, was that the applicant was a knowing participant in both the formation and the execution of that plan. Stripped to its essentials, the evidence relied on to establish the applicant's complicity in the violent offences committed by the Selims amounted to no more than the following:

• he had told Vasko on a previous occasion that Barney owed the Selims $700;
• he had been present on a previous occasion when JS had made a menacing gesture to Vasko (not Barney) about the repairing of his car, and had then asked Vasko to tell Barney to ring him;
• he had received a phone call from Barney wanting to speak to the Selims, and he was present when (according to Barney) JS told Barney that he did not owe JS any money and then MS made a threat to kill Barney and asked him where he was; and
• he was present at the door of the workshop during the violent assaults by the Selims, and told two individuals that they were not allowed to leave.

57 That evidence was consistent, in our view, with the applicant's having been aware that the Selims intended to approach Barney and demand repayment of the debt but having been unaware of any intention to put Barney or Vasko in fear or, alternatively, of any intention to use weapons in the course of the enforcement action. There was simply no evidence to suggest that the applicant had any prior knowledge that either of the Selims was carrying a weapon. The mere fact that the applicant had (on the Crown case) overheard MS make a threat to kill while speaking to Barney on the telephone could not have established that knowledge beyond reasonable doubt. Nor could the applicant's presence in the workshop, or his statements to bystanders, have done more than raise a suspicion about what he might have known in advance.

58 More significant still, in our view, is the confirmation by prosecution witnesses that, after the Selims had departed, the applicant remained and spoke with Vasko about what had occurred. It will be recalled that Barney 'totally agree[d]' with the applicant's account - that he had said to Vasko afterwards, 'What is all of this? This is stupid. You were all friends.'[8] This was the account which the applicant gave - repeatedly, and consistently - in the course of his own evidence.

59 For the applicant to have behaved in that singular way is, in our view, very difficult to reconcile with the Crown's contention that he was party to an agreement to launch a violent attack on Barney and Vasko (and any bystander who happened to be present). On the contrary, the applicant's conduct after the Selims left seems to us to be wholly consistent with what were accepted to be longstanding and amicable relationships with both Barney and Vasko, relationships which he would not have wished to damage, certainly not on account of a small debt owed to others.

60 On this evidence, the applicant was primarily concerned to protest at the breakdown of relations between the protagonists which he had just witnessed. His protest was a remarkable piece of pretence if - as the Crown alleged - he had agreed with the Selims that the armed attack would take place and that he would play a part in it.

61 There was no challenge to any of the evidence (given both by the prosecution witnesses and by the applicant himself) about the good relations which had long existed between the applicant and the targets of the attack, Barney and Vasko. It seems highly improbable that, for the sake of enforcing the repayment of $700 owed by Barney to the Selims, the applicant would have willingly joined in a violent attack not only on his friend and former employee, Barney, but on his friend, business associate and trusted car repairer, Vasko.

62 Nothing said by the prosecutor in final address addressed any of these questions. He described the Crown case in these - very confined - terms:

From the outset when I opened to you, ladies and gentlemen, some time ago I said to you this. That the case was always put against the accused that he was acting in concert; in other words, it was an agreement between himself, Michael Selim and John Selim, that they would go to the garage and that they would enforce the debt.

It is notable that there is no mention here of any agreement to use weapons, or to assault Barney and Vasko.

63 The prosecutor then referred to the evidence given by four witnesses[9] about what they had heard the applicant say in the workshop - both to bystanders (about not leaving) and to the Selims (about the need for them to leave quickly). This evidence was said to establish that

the accused was there, he knew why he was there, there was no coincidence why he was there, that he and the Selims had turned up to demand money from Barney Stankovski.

Again, no mention of weapons or violence. The common purpose was simply to demand repayment.

64 The prosecutor said nothing as to how the evidence proved the applicant's foreknowledge - that is, before he arrived at the workshop - that anything more than a demand for repayment was contemplated. Counsel did not seek to demonstrate why the jury should be satisfied that the applicant knew, and agreed, that the Selims would be armed and would assault Barney and Vasko (and a bystander if necessary), and that the attack would involve the discharging of a gun and the probable endangerment of persons.

65 When the prosecutor turned to the substantive offences, he relied only on the evidence of the conduct engaged in by the Selims and their use of a gun and a knife respectively to put the individual victims in fear. While that evidence clearly established the Selims' guilt, it proved nothing about whether the applicant was criminally responsible for (each aspect of) the Selims' violent conduct. The only matter referred to in support of the Crown case of acting in concert was 'his conduct at the garage'.

66 What, then, is to be made of the evidence that the applicant stood at the roller door and attempted to prevent the departure of people who had been innocently caught up in the violence? The prosecutor submitted to the jury that Mr Slaveski had stood by the roller door because

that was his role, that was his function. His function was to stop anyone from leaving and raising the alarm. That's why he did that, that's why he said stop. That's why he said stop to these people from leaving, because he was worried that those witnesses would go and raise the alarm.

67 Unlike the obvious function performed by the driver of a getaway car, it is far from clear what purpose this conduct served, particularly if - as Talevski stated in his evidence - the applicant had arrived 'some time after this kerfuffle started'.[10] The object of enforcing repayment of the debt was to be achieved by the Selims' direct attack on Barney with the knife and the gun, and by the firing of the gun. The applicant's action in standing motionless at the door contributed nothing to the effectuation of that purpose. Nor was it an irresistible inference that the applicant was trying to prevent witnesses to the criminal acts from escaping and raising the alarm. Although the witnesses said he had told them not to leave, it was common ground that he did nothing to block their exit physically.

68 The question to be addressed, of course, is whether it was open to the jury on the whole of the evidence to be satisfied beyond reasonable doubt that the applicant was guilty of the offences.[11] Naturally, as the Crown's submission emphasised, the Court in deciding that question must make 'full allowance for the advantages enjoyed by the jury'.[12] This is not a case, however, where the doubts which we consider a reasonable jury must have had - because of the paucity of the evidence and the implausibility of the case against the applicant - can be resolved by reference merely to the fact that the jury saw the witnesses and this Court did not. (As will appear, the course which the trial took - at the applicant's instigation - is likely to have confused the jury and distracted them from their task.)

69 The Crown's supplementary submission relied on the High Court decision in R v Nguyen,[13] where the court was said to have considered 'a similar argument regarding a similar factual scenario'. While it is true that the ground of appeal there under consideration was the same - that is, whether the jury's verdict was unsafe and unsatisfactory - the factual circumstances were quite different.

70 In that case, the accused had gone, in company with two other men, to the residence of a person (M) who owed money for drugs. Once inside, the accused was identified by several witnesses as having had a samurai sword which he was swinging around. The issue was whether the jury could reasonably have concluded that the accused was complicit in the murder and attempted murder subsequently committed by his cooffender (H). The High Court concluded as follows:

On the whole of the evidence, it was open to the jury to be satisfied, beyond reasonable doubt, that all three men had come to the flat searching for [M] for payment of a debt. In particular, the jury could be satisfied that [the accused] knew that they went to the flat searching for [M] for payment of a debt, and that, either before or after arriving at the flat, [the accused] armed himself with a sword with which he sought to enforce the demands for information that all three were making. The jury could further be satisfied that [the accused] used the sword in a way that showed his willingness to inflict cutting injuries on those in the flat. Those findings of fact were not inevitable, but they were open.[14]

Once it is shown that the jury could conclude that [the accused] was party to an arrangement to collect a debt using violent means if necessary, the question becomes: what level of violence did [the accused] agree would be used, what level of violence did he foresee might be used, what level of violence did he encourage [H] to use? It matters not whether he knew that the debt was for sale of drugs or on some other account. If, as was open to the jury, it was found beyond reasonable doubt that [the accused] saw [H] using a gun in a threatening manner, an appreciable time before the first shot was fired, it was also open to the jury to conclude that, in the light of what [the accused] had already done in the room and his not dissociating himself from the use of the gun, he agreed in the use of deadly force, contemplated that it might be used, or encouraged its use.

Whether or not [the accused] was (or appeared to be) drunk, whether or not he appeared to be behaving foolishly, he had threatened those in the flat with the sword and had cut two if not three of them before a shot was fired. The jury could conclude that he saw that [H] had a gun, and that [H] was attempting to intimidate the occupants of the flat by spinning the cylinder. It was open to the jury to conclude that [the accused] was complicit in the attempted murder of [A] and the murder of [B].[15]

72 The present case had none of the features which were held in Nguyen to support the conclusion that the accused 'was party to an arrangement to collect a debt using violent means'. Specifically, the applicant:

• arrived separately from the Selims, in a different car, and - according to Talevski - some time after they had begun their attack;
• was unarmed, and committed no violent act;
• was but a passive observer - from some distance away - of the violent acts being committed by the Selims; and
• did nothing, and said nothing, to assist or encourage the Selims to commit the acts of violence.

73 Although the prosecutor made much of what were said to be lies told by the applicant, this was not a case about the applicant's credit. The question was whether the evidence led by the Crown proved the case. Moreover, the jury could not ignore the fact that in important respects the applicant's version of events was independently corroborated.

74 First, there was the corroboration from Vasko, Talevski and Barney that, instead of fleeing with those who were said to be his co-offenders, the applicant had remained in the workshop. According to Vasko, he had stayed for as much as 10 or 15 minutes; according to Barney, he had expressed concern about what had occurred. Secondly, the teacher from his child's school was able to confirm that, at 2:45 on the afternoon of the incident, the applicant and his wife did collect their child from school, just as he had told the jury he had been asked to do. Thirdly, Talevski confirmed that the applicant had not arrived at the workshop until some time after the fighting had broken out between the Selims and the two victims.

75 The applicant is unlikely to have made a good impression on the jury. As noted at the outset, he elected to be unrepresented at his trial, having dispensed with legal representation. As the transcript records, the applicant was variously irascible, rude, argumentative, repetitious and impatient. The trial judge, who showed exemplary patience and forbearance throughout the trial, had to adjourn proceedings more than once because of conduct by the applicant - in front of the jury - which she described as 'unacceptable'. The appeal hearing on 14 June 2012 had to be stood down for similar reasons.

76 In particular, the applicant almost certainly did himself a great disservice in the eyes of the jury by raising - in cross-examination and throughout his own evidence and final address - allegations of a police conspiracy against him. He vehemently maintained that the whole case against him was a 'set up', engineered by corrupt police on account of his having terminated the employment of a particular female employee who, he alleged, was in a relationship with one of the investigating police officers. The applicant made a variety of allegations against police: forced collusion between prosecution witnesses; tampering with evidence; falsifying the record of interview; abuse of power in pursuing him over civil debt; and threatening him with reprisals. In final address, the applicant made particularly lurid allegations - of the torture of children, the killing of a 15-year-old, and an attempt by police to shoot him.

77 The judge was put in a very difficult position. The serious nature of the allegations raised questions of fairness to both prosecution and defence. In the event, her Honour permitted the prosecutor to reopen his case to call additional evidence to meet the allegations. This had the unfortunate consequence of making an already long trial much longer, and of exposing even more starkly in front of the jury the applicant's hostility to police and his emotional volatility.

78 Two police officers who had participated in the initial investigation, but who would not otherwise have given evidence in the trial, were crossexamined extensively by the applicant as he sought to make good his allegations. More than once the judge had to point out to the applicant that accusing these witnesses of lying and being corrupt was unlikely to assist him. As her Honour also noted, some of the answers which these witnesses gave in crossexamination involved the giving of hearsay evidence about matters which had not been adduced through the prosecution witnesses. Notwithstanding that her Honour rightly warned the jury that they could not treat this evidence as proof of the facts stated, the giving of the evidence was most unhelpful to the applicant.

79 The lengthy exploration of these collateral issues must necessarily have distracted the jury from its task. Instead of focusing on whether the Crown had proved its case against the applicant, the jury's attention was diverted - through the concluding days of the trial - to a consideration of whether the applicant had made out his claims of corruption on the part of the police.

80 The applicant persisted in pursuing his allegations, despite the judge's repeated reminders that his trial could not be 'a royal commission into how the Mill Park CIU investigate matters'.[16] In the event, the unequivocal denials by the police witnesses justified the prosecutor submitting to the jury that the applicant had produced 'not one skerrick' of evidence to substantiate his serious allegations, and that his making of unfounded allegations showed that he was not to be believed on anything. This must have caused great damage to the applicant's case, especially because he did not have defence counsel to remind the jury to focus on the elements of the Crown case and on the paucity of probative evidence.

[1] Contrary to s 77(1) of the Crimes Act 1958 (the 'Act').

[2] Contrary to the common law and to s 31 of the Act.

[3] Contrary to s 23 of the Act.

[4] See DPP v Slaveski [2010] VCC 61.

[5] Criminal Procedure Act 2009 (Vic) s 276(1)(a).

[6] JS was also known as 'Johnnie Hitler'.

[7] See [44]-[46] below.

[9] Lube, Sokolovski, Talevski and Barney.

[10] See [18] above.

[11] R v Klamo [2008] VSCA 75; (2008) 18 VR 644, 653-4 [38].

[12] M v The Queen [1994] HCA 63; (1994) 181 CLR 487, 494.

[13] [2010] HCA 38; (2010) 242 CLR 491 ('Nguyen').

[15] Ibid 501 [37]-[38] (emphasis added).

[16] As he stated in front of the jury, the applicant was at the time taking civil action in the Supreme Court against a number of police officers regarding these and related matters: Slaveski v State of Victoria [2010] VSC 441.