Evidence - Deposition of deceased witness - Tendered pursuant to s 55AB of Evidence Act 1958 - Whether accused had 'full opportunity of cross-examining' witness at committal hearing - Quaere whether failure of Crown to provide accused with transcript of interview of witness deprived accused of full opportunity of cross-examining witness - R v Stackelforth (1996) 86 A Crim R 438; R v Cheprakov [1997] 2 NZLR 169; Gorman v Fitzpatrick (1987) 32 A Crim R 330, considered - Evidence Act 1958, s 55AB.

Fair trial - Whether failure of Crown to provide accused with transcript of interview of witness rendered trial unfair - Whether transcript would have significantly damaged Crown case or advanced accused's defence - R v Grey [2001] HCA 65; (2001) 184 ALR 593, applied.

Jury - Challenge - Peremptory - Whether valid when made in absence of accused - The Queen v Johns [1979] HCA 33; (1979) 141 CLR 409, considered; Eastman v The Queen (1997) 76 FCR 9, referred to - Secrecy - Judge declining in part counsel's request for access to full text of jury question - Whether productive of miscarriage of justice - R v Black [2007] VSCA 61; (2007) 15 VR 551, distinguished.

1 Following a trial in the Criminal Division, the applicant was convicted of one count of conspiracy to murder Mario Condello. He also pleaded guilty to a related count of theft of a motor car, two counts of being an unregistered person in possession of a firearm and one count of possessing cartridge ammunition without a permit. After a plea in mitigation of penalty, he was sentenced to a total effective sentence of 20 years' imprisonment with a non-parole period of 16 years. He now seeks leave to appeal against conviction and sentence.

2 The Crown charged that, between 29 May 2004 and 9 June 2004, the applicant conspired with Michael Thorneycroft, Greg Hildebrandt and Carl Williams to murder Mario Condello. Thorneycroft pleaded guilty not long after he was arrested. Hildebrandt pleaded guilty some time after Thorneycroft. Williams then pleaded guilty and admitted that he was the organiser of the enterprise. The applicant pleaded not guilty.

3 At the applicant's trial, the Crown alleged that the applicant was to be the gunman who would kill Condello, for which Williams agreed to pay the applicant between $125,000 and $140,000. Thorneycroft was to be the driver of the get-away car, for which he was to receive some $30,000.

4 In preparation for the killing, the applicant and Thorneycroft carried out surveillance on Condello's home. They were first seen there by the police on 1 June 2004.

5 As time went by, the applicant and Williams became concerned that Thorneycroft might not be up to the job, because of the effects of his heroin habit. Consequently, although Thorneycroft remained part of the conspiracy, the applicant recruited Hildebrandt as a potential replacement driver.

6 Some days before 4 June 2004, the applicant drove Thorneycroft to Hildebrandt's address in Noble Park and there collected a nine millimetre pistol. On 4 June 2004, the applicant and Hildebrandt drove to Mario Condello's house and there conducted surveillance from Hildebrandt's car.

7 On 5 June 2004, Thorneycroft stole the car which was to be used as the get-away vehicle. On the same day, the applicant advised that the murder would take place the following morning. In fact nothing occurred on that occasion, because the applicant and Hildebrandt went out clubbing the night before.

8 On 6 June 2004, Thorneycroft was still potentially in the conspiracy and the applicant continued to update him and keep him informed.

9 On the night of Monday 7 June 2004, and again of 8 June 2004, the applicant and Thorneycroft conducted further surveillance and discussed, among other things, where they could park cars for the purposes of the killing. In the meantime they left the stolen car parked in Raven Street Noble Park, near Hildebrandt's home.

10 On 9 June 2004, Hildebrandt left home in his own car and drove to a hotel to meet the applicant. The two of them then drove back together to Raven Street, Noble Park and collected the stolen car. From there they travelled in the stolen car and in Hildebrandt's own car in convoy to the South Caulfield/East Brighton area, communicating en route by two-way radio. They went first to Nelson Street, where they parked Hildebrandt's car, and then together in the stolen car to Raymond Grove, Caulfield South adjacent to the East Brighton cemetery.

11 Their moves and conversations were monitored and covertly recorded by police using listening devices fitted to the cars. Although difficult to follow, it is possible to hear Hildebrandt saying plainly to the applicant 'Is that him, it is him back there?', and the applicant saying to Hildebrandt, 'I'm going to have to walk up beside him and shoot him'. Then follows the sound of the nine mm pistol being 'racked', which is to say, cocked ready to fire.

12 At that point, armed police intervened and arrested the applicant and Hildebrandt in North Road, East Brighton, very close to the Condello family home at 292 North Road, East Brighton. The applicant was found in possession of a loaded .45 automatic pistol, a loaded .38 revolver and a black sports bag containing a balaclava.

13 The applicant gave evidence on his own behalf. He admitted that it was his voice which could be heard on covert police recordings. But he claimed that he was only pretending to be involved in the conspiracy and he refused to identify the target of the conspiracy. He went to the jury on the basis that the Crown had failed to prove beyond reasonable doubt that his participation was genuine and that the target was Mario Condello.

14 A number of grounds of appeal against conviction were abandoned. Those which remain are Grounds 1, 4, 5, 8, 19, 22, 23 and 25. We shall deal with them in that order.

15 At the outset of the trial, defence counsel applied that the judge recuse herself on the ground of apprehended bias. He submitted that, when sentencing Williams and Hildebrandt before the applicant's trial, the judge had made findings of fact which went beyond what was necessary for the purposes of passing sentence and which would indicate to a fair minded lay observer that her Honour had determined that the applicant was guilty as charged.

16 Before this Court, senior counsel for the applicant withdrew the suggestion that the judge made findings which went beyond what was necessary for the purposes of sentencing Williams and Hildebrandt. But he contended that the findings which her Honour was required to make had resulted in apprehended bias.

17 The judge described the findings the subject of complaint in her ruling on the bias application,[1] as follows:

In respect of the plea of Williams, the Crown put before the court a summary of the factual material they said was relevant, in relation to the charges to which he had entered a plea of guilty. A copy of this material had been provided to counsel for Williams earlier, and certain of the parts were disputed by him. He gave evidence upon the plea, as to those matters that he disputed, and one of the disputed matters related to the conspiracy to murder Mario Condello, with which the accused man is charged.

That disputed area of fact was, what was said by Michael Thorneycroft, who had pleaded at an earlier stage, made statements and given evidence at a committal in respect of the accused Sonnet, Williams and Hildebrandt.

Williams, indicated in his evidence, in the course of the plea, that the arrangements for the murder were made with the accused Sonnet, but he disputed, that there was any agreement to make any payment for that planned murder. He stated, that the accused Sonnet came to an agreement with him to murder Condello, because Condello had put a contract out on his life. He further stated, that it was not only his life but that of his father and another person, adding at a later stage 'who knows who the third person is whose life is in danger'.

Accordingly, I had to determine, for the purposes of sentencing Williams, whether there was any payment to be made for the killing, if the killing eventuated. There is no doubt that if a substantial sum of money is to be paid to ensure that a person is to be murdered the criminality is at a high level as it is clearly defined as a contract killing, rather than a peremptory strike, or in the heat of the moment. Having examined the material available, which included intercepted material of conversations involving the accused Sonnet and Thorneycroft and the evidence of Williams and Thorneycroft on this issue, I determined that I was satisfied to the required standard, that a promise or offer of money had been made by Williams. That is the complaint in relation to the sentencing remarks of Williams.

In relation to the sentence of Hildebrandt, once again, the Crown put before the court, a summary of the factual material they said was relevant in relation to the charge to which he had entered a plea of guilty. A copy of this material had been provided to counsel for Hildebrandt, and a part of that summary was disputed by his counsel. The current complaint relates to the finding of fact, on his sentence, that some days prior to the arrest of Sonnet and Hildebrandt, Hildebrandt was holding a gun on behalf of the accused Sonnet. Once again, this was a matter agitated by counsel for Hildebrandt, as a result of the outline of the Crown case presented against his client. I determined, on the available material before me, that Hildebrandt was holding a gun on behalf of the accused man Sonnet, but I was not satisfied to the required

standard, that it was either of the guns found in the possession of Sonnet, at the time of his arrest.

Further, in relation to the sentencing remarks of Hildebrandt, it was submitted that it was unnecessary to make any comment as to his relationship with the accused Sonnet. In respect of that matter, it is my opinion that it was necessary to determine the prospects of rehabilitation of Hildebrandt as part of the sentencing process. The evidence given before me by his mother and a long term friend, was that the involvement of Hildebrandt in a crime of this nature was totally out of character, it was equally inconsistent with his previous convictions which were of a minor nature. His mother gave evidence, that the accused Sonnet was a long term friend of Hildebrandt, having grown up as neighbours and school friends. She further said, because of the trouble that the accused man had been in, and his influence over Hildebrandt, that she had barred Sonnet from her home.

Accordingly I was satisfied that the prospects of Hildebrandt for rehabilitation were reasonable, provided that he no longer associated with persons such as Williams and Sonnet in the future. Complaint is also made that I made a reference to a 'bizarre admiration for Sonnet and Williams'. That was made in the context of his oft repeated desire to meet Carl Williams, as recorded on the listening devices via telephones and cars, and was a part of the fact finding in respect of his prospects of rehabilitation. That was based, not on the view that either of them was guilty of this crime, but on the matters known about Williams and Sonnet at the time of Hildebrandt making the statements about wishing to meet Williams. At that time, the accused man Sonnet had convictions for multiple armed robberies, possession of guns, and drug offences, whilst Williams was consistently appearing in the press as being a gang lord, controlling a large drug trafficking network, and related to the various murders that had been occurring earlier. The description of a 'bizarre admiration' reflects the view that persons who are usually admired, possess different qualities to those the subject of his admiration.[2]

18 Her Honour declined to recuse herself for apprehended bias, she said, because:

In relation to these sentences, one would expect, that a fair minded lay observer would read the whole of the sentencing remarks and note the references within, firstly, the Williams sentence to:

1. The Crown opened the circumstances under which they say these crimes were committed, you [Williams] elected to give evidence before me [on the plea] during which you disputed a number of those circumstances to which the Crown had referred. You were cross examined by Mr Horgan SC on behalf of the Crown as to some of those matters.
2. In relation to the task of fact finding, it is my view that it is not relevant to the sentence that I have to impose that I determine all of the issues that have been raised by you as being disputed. There are certain matters

which are necessary to determine but also many that are clearly not relevant and will have no impact upon the sentence that I will impose.

1. I will refer to the objective facts that are not disputed in any way when I am referring to the circumstances of the murders and conspiracy. Any areas in which the matters are contested by you, and may have relevance to the sentence to be imposed, I will indicate and deal with specifically as I state those circumstances.
2. There are a number of matters to which the prosecutor referred which are part of the background material, but which do not particularly impact upon your sentence but do place the three murders and conspiracy to murder, to which you have pleaded guilty, in context. Accordingly, I will include some of those matters that I consider will be of assistance in comprehending the whole of the circumstances.

1. The Crown opened in this matter in some detail, and I shall also refer to it in some detail, as it is important to note not only the overall circumstances, but your [Hildebrandt's] particular involvement in it. Four people have been charged with this offence of conspiracy to murder Mario Condello. You are the second person to plead guilty, the other person being Michael Thorneycroft. The other two persons charged, Sean Sonnet and Carl Williams, are pleading not guilty.[3]
2. The facts as presented in this case are ...[4]

19 The judge added that neither Williams nor Hildebrandt disputed that they were party to the conspiracy with the applicant and Thorneycroft to murder Mario Condello, or that the applicant was intended to be the shooter. Their pleas of guilty were admissions of precisely those facts and there was no other basis on which she could sentence them.

20 The judge considered that, in those circumstances, it would be clear to a fair minded lay observer with knowledge of the facts that, when sentencing Williams and Hildebrandt, her Honour was dealing only with those offenders, and that her remarks as to the overall circumstances of the offending were no more than a reiteration, for that limited purpose, of the undisputed view of the facts put forward by the Crown in relation to those offenders for the purposes of their sentencing.

21 Her Honour was strengthened in that conclusion, she said, by the fact that it has long been a common practice in this state for one judge to be assigned to deal with all related matters arising out of a single criminal enterprise, with the aim of achieving consistency in rulings and the sentencing of co-offenders. In that context, it is standard and well regarded practice for a judge to determine factual issues concerning the involvement of one accused as against another before the trial of the latter, for the limited purpose of sentencing the former. Accordingly, if an accused pleads guilty on an undertaking to give evidence for the Crown at a later trial of a co-accused, it is commonplace for the trial judge to sentence that accused and, therefore, to make findings as to that accused's role or place in the hierarchy of offending for the purposes of passing sentence, before commencing the trial of the co-accused.

22 In our view, the complaint of apprehended bias should be rejected. We do not consider that the judge's findings in relation to Williams or Hildebrandt would lead a fair minded lay observer to conclude that her Honour might not bring an impartial mind to the resolution of the question or questions she was required to decide during the course of the applicant's trial. As the judge said, findings of the kind which were made for the purposes of sentencing Williams and Hildebrandt are made and understood to be made only as against the offender whom they concern and do not imply in any sense or degree the pre-determination of issues against a co-accused who comes later to be tried.

23 Arguably, such findings may give rise to an expectation that the judge will decide an issue or issues in the subsequent trial of the co-accused adversely to him or her. But even then it does not follow either that the judge will approach the issues in the trial of the co-accused otherwise than with an impartial and unprejudiced mind or that there is an acceptable basis for inferring that there is a reasonable apprehension that the judge will approach the issues other than in that way. As Mason J said in Re JRL; Ex Parte CJL:[5]

There may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate an expectation that he is likely to decide issues in a particular case adversely to one of the parties. But this does not mean either that he will approach the issues in that case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that his previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way. In cases of this kind, disqualification is only made out by showing that there is a reasonable apprehension of bias by reason of prejudgment and this must be 'firmly established'.[6] Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour.

24 It is different with some forms of civil proceedings where the judge constitutes the tribunal of fact.[7] The risk of apprehended bias in cases of that kind is greater simply because of the more expansive role which a trial judge must play in non-jury civil litigation. But in the case of criminal jury proceedings, the fact that a judge has sat on the trial of one co-accused is not a reason per se to exclude him or her from sitting on a subsequent trial of another co-accused.

25 In R v Kearns,[8] Spigelman CJ[9] said that:

I do not see any reason why, having heard from the witnesses in the course of one trial, in which the Appellant arose, whether as a witness or otherwise, a trial judge would be seen, by a fair minded independent lay observer, to be likely to act in the course of a second trial in a manner which would be anything other than impartial and unprejudiced. Judges with professional training are well aware that a trial must proceed on the basis of the evidence adduced in that trial. What has occurred on a prior occasion, including in a trial before that judge, must be put out of the judge's mind, in terms of his or her conduct in the second trial.

These are matters that arise frequently where co-offenders are tried in separate trials. The kind of prejudice that may occur from a trial judge having expressed some view on a prior occasion should not be seen to arise simply as a matter of inference from the mere fact that adverse evidence of some character was heard by the trial judge.

This is something of which the judges in the District Court are well aware. They will approach their decision making in a subsequent trial without any impact on their capacity for impartiality. That would be, in my opinion, understood by a fair-minded, independent lay observer.[10]

26 With respect, we entirely agree. The nature and volume of criminal trial practice in this state is such that the system would break down unless judges could be relied upon to deal sequentially with the trials of co-offenders and put out of their minds whatever might occur in one such trial for the purposes of another. The fair minded lay observer may be taken to know that that is the way the system works and to accept that it does so fairly and impartially.[11]

27 Contrary to the submissions advanced on behalf of the applicant, it is not at all unrealistic to proceed on the basis that judges are able to and do bring that sort of impartiality to bear on the task at hand. After all, the law daily requires at least as much mental self-discipline on the part of lay jurors when confronted by evidence admissible against one co-accused which is inadmissible against another, or by pre-trial publicity concerning matters in issue which must be excluded from consideration. And, as Spigelman CJ said in R v Kearns,[12] judges have the added advantage of professional training and experience.

Ground 4: Evidence of Thorneycroft admitted under s 55AB

29 At relevant times, s 55AB of the Evidence Act 1958 provided as follows:

55AB Certain depositions may be used at trial

(1) In this section -

(a) deposition includes -

(i) any statements admitted in evidence at a committal proceeding in accordance with Schedule 5 to the Magistrates' Court Act 1989; and

(ii) any deposition taken by a coroner under section 15 of the Coroners Act 1958 or section 57 of the Coroners Act 1985;

(b) magistrate includes a coroner appointed under the Coroners Act 1985.

(2) If on the trial of a person for an offence it appears to the Court -

(a) that any person whose deposition was taken before the Magistrates' Court -

(i) is refusing to be sworn or give evidence; or

(ii) is dead; or

(iii) is out of Victoria; or

(iv) is so ill as not to be able to travel; or

(v) cannot, after diligent search, be found; or

(vi) has become mentally ill; or

(vii) is keeping or being kept out of the way to avoid giving evidence; or

(viii) is incapable of giving evidence; and

(b) that the deposition -

(i) was taken in the presence of the person being tried, and that the person being tried or his or her legal practitioner had a full opportunity of cross-examining the witness or, if the deposition is that of a witness called by or on behalf of the person being tried, that the informant or prosecutor or his or her legal practitioner had a full opportunity of cross-examining the witness; and

(ii) purports to be certified as correct by the licensed shorthand writer or person appointed to record the deposition (as the case requires) -

the deposition and any exhibits mentioned in it may be used as evidence in the trial without further proof unless it is proved that the deposition was not in fact certified by the person purporting to have certified it.

(3) If a deposition is used as evidence in a trial the deposition is, under like circumstances, admissible in any subsequent trial of the same person on the same charge.

30 Thorneycroft died of a drug overdose before the applicant's trial. Before his death, however, he made two witness statements and was cross-examined on those statements at the applicant's committal hearing. At the applicant's trial, the Crown tendered the statements and transcript of cross-examination pursuant to s 55AB of the Evidence Act 1958 and, over objection, the judge ruled that they were admissible.

31 In opposing the tender, defence counsel identified seventeen issues on which he said he would have wished to cross-examine Thorneycroft, and he contended that, because Thorneycroft's death made that impossible, it would be unfair to admit the statements. The judge rejected the argument. In a reserved ruling,[13] her Honour dealt seriatim with each of the seventeen issues and explained that she did not consider that the lack of opportunity for further cross-examination on the issue was sufficient reason to exclude the statements. In the majority of instances, it was because counsel who appeared for the applicant at the committal hearing cross-examined Thorneycroft at length on the issue in question. In other instances, it was because the judge regarded the issue as so peripheral as to be of little if any consequence.

32 In the written submissions filed on behalf of the applicant in advance of the hearing of the application for leave to appeal, it was contended that the judge erred 'by failing to uphold the arguments put in opposition to admission that were made by the applicant'. At the outset of oral argument, however, senior counsel for the applicant announced that he also wished to argue that the applicant had not had a 'full opportunity of cross-examining' Thorneycroft at the committal hearing because the applicant had not then been aware of the existence of a transcript of a police interview of Thorneycroft conducted on 6 June 2004. It followed, in counsel's submission, that one of the two essential conditions for the admissibility of the statements under the section had not been satisfied and thus that the statements ought to have been excluded on that basis.

33 As counsel summarised the argument, it was that:

a) if counsel who appeared for the applicant at the committal hearing had known of the existence and contents of the transcript, he may have wished to cross-examine Thorneycroft on parts or all of it;

b) inasmuch as the Crown failed to disclose the existence of the transcript at that time, counsel was denied the opportunity of determining whether so to cross-examine Thorneycroft on parts or all of the transcript;

c) the applicant was thus deprived of 'a full opportunity of cross-examining' Thorneycroft; and

d) consequently, a condition of admissibility of the statements and transcript of committal cross-examination had not been satisfied and, therefore, they ought not to have been received.

34 Alternatively, counsel submitted, if the Crown's failure to disclose the transcript at the time of the committal hearing did not mean that the applicant had not had a full opportunity of cross-examining Thorneycroft within the meaning of the section, still, in the absence of Thorneycroft from the witness box, the significance of the matters dealt with in the interview was such that the statements and transcript of committal cross-examination should have been excluded as unfair in the exercise of discretion.

35 The argument that there had not been a full opportunity of cross-examining Thorneycroft was not put before the trial judge. Although defence counsel was supplied with a copy of the transcript of interview during the course of pre-empanelment argument and, after taking time to consider its contents, made lengthy submissions as to what he contended were significant prior inconsistent statements compared to the contents of Thorneycroft's two witness statements, his argument was confined to the discretionary exclusion of the witness statements and committal cross-examination as a matter of fairness. Implicitly, he accepted, and the judge proceeded on the basis, that the applicant did have a 'full opportunity' of cross-examining Thorneycroft within the meaning of the section and that the opportunity was availed of.

36 Senior counsel for the applicant argued, however, that if the statements and committal cross-examination were inadmissible as the result of failure to satisfy one of the statutory conditions of admissibility, they should have been excluded, and that, given defence counsel's objection to the tender, he could not be taken to have waived the objection to admissibility (despite his failure to identify the true juridical basis of his objection). Further, in counsel's submission, the matters dealt with in Thorneycroft's witness statements and transcript of interview were not peripheral. They went to fundamental issues (namely, the identity of the target of the conspiracy and Carl Williams' involvement in the conspiracy) and, as counsel observed, the prosecutor had acknowledged at trial that, without the Thorneycroft witness statements and committal cross-examination, the Crown might well fail to satisfy the jury beyond reasonable doubt of the identity of the target and of Williams' involvement in the conspiracy.

37 In those circumstances, counsel contended, one could not exclude as a reasonable possibility that, but for the receipt into evidence of Thorneycroft's witness statements and committal cross-examination, the applicant would have been acquitted of the offence with which he was charged.

38 Alternatively, counsel argued, if the matter fell to be decided as one of fairness, the matters dealt with in the transcript of interview were significant, and would have provided a fruitful source for effective cross-examination of Thorneycroft with which to damage his credibility. Given the acknowledged importance of Thorneycroft's evidence to the Crown case, that made the admission of his statements unfair.

39 The Crown contended to the contrary. Senior counsel for the Crown submitted that, despite the Crown's failure to make the interview transcript available to the applicant at the time of the committal proceedings, the applicant still had a full opportunity of cross-examining Thorneycroft within the meaning of the section. Furthermore, judged in light of the very extensive cross-examination to which Thorneycroft was subjected at the committal hearing, the contents of the interview transcript ought not be viewed as sufficiently significant to render receipt of the witness statements unfair.

(i) Full opportunity of cross-examining the witness

40 Unfortunately, there does not appear to be a great deal of authority on the meaning of 'full opportunity of cross-examining the witness' in the context of the section. Counsel submitted that they had been unable to find any which bore directly on the issue.

41 In R v Cheprakov,[14] Hansen J spoke of 'an opportunity to cross-examine' in the context of s 184 of the Summary Proceedings Act 1975 (NZ). He said that it meant an opportunity for 'meaningful cross-examination'. He concluded that 'meaningful cross-examination' in that case had been hindered by the limited time available to the defence to investigate and prepare for cross-examination; the unavailability of a report on physical exhibits prepared by the Environmental and Scientific Research Institute; the unavailability of a pathologist's report; and an inability to view 'crucial exhibits'.

42 At first sight, that appears to provide relevant guidance. It is to be noted, however, that, although s 184 of the Summary Proceedings Act 1975 (NZ) as first enacted was substantially identical to s 55AB of the Evidence Act 1958, it was later amended by substituting for the requirement of a full opportunity of cross-examining, a two-part statutory exclusionary test of: (1) whether the prejudicial effect of admitting the statement would outweigh the probative value of the statement; and (2) whether 'if for any other reason the Court were satisfied that it was not necessary or expedient in the interests of justice to admit the statement'.[15] Hansen J's reference to meaningful cross-examination was by way of explication of the second limb of that statutory test as opposed to the full opportunity of cross-examining which previously appeared in the section.

43 Closer to home, in R v Stackelforth,[16] Allen J (with whom Hunt CJ at CL agreed) referred to the statutory requirement of a full opportunity of cross-examining the witness in s 409(1) of the Crimes Act 1900 (NSW)[17] as 'a full opportunity, in a realistic and practical sense, of cross-examination at the committal'. Arguably, if Hansen J's notion of a right to meaningful cross-examination requires access to documents relevant to the cross-examination, a full opportunity of cross-examining requires at least as much.

44 There are, however, also some indications the other way. As Bongiorno JA noted in DPP v BB and QN,[18] s 55AB can be traced back to the Justices Act 1890 (Vic) and from there to s17 of the Indictable Offences Act 1848 (UK) ('Jervis's Act').[19] When the section was first enacted, the words of the section were declaratory of the common law hearsay rule and thus of the common law's conception of the right or liberty to cross-examine as it stood at that time.[20] That meant an opportunity to confront the witness, ask questions and require immediate answers.[21] It does not seem to have had anything to do with the production or availability of documents.

45 The principle can be traced to ancient Rome.[22] It was inhibited greatly by such bodies as the Star Chamber and the Inquisition, but endured and eventually flourished in English common law. By 1720 it was established that

the other side ought not be deprived of the opportunity of confronting the witnesses, and examining them publicly, which has always been found to be the most effectual method of discovering the truth.[23]

In Davis,[24] Lord Bingham of Cornhill commented that the practice of confronting defendants with their accusers so that the truth may be cross-examined and established was recognised by such authorities as Sir Matthew Hale, Blackstone and Bentham who regarded the cross-examination of adverse witnesses as 'the indefeasible right of each party, in all sorts of causes'. The common law right to cross-examine one's accuser has been part of the United States constitution since 1791 when the 6th Amendment provided that in all criminal trials an accused enjoyed the right to be confronted with witnesses against him. It is rooted in the notion that cross-examination is the most effective method 'of discovering the truth.'

46 Some impediments were recognised as enough to prevent a full opportunity of cross-examining. They included lack of sufficient notice of the opportunity for cross-examination,[25] authoritative restrictions on the right or liberty to cross-examine,[26] physical disabilities of the witness which prevented adequate questioning or the giving of proper answers,[27] language difficulties unable to be accommodated in one way or another[28] and the refusal of a witness to answer questions.[29] But we have not found any case in which it was held that the right or liberty of cross-examining required access to relevant documents for the purposes of the cross-examination. Nor is that surprising, given that it took almost two centuries following the establishment of the common law hearsay rule before the obligation of the Crown to provide an accused with documents of that kind was fully recognised.[30]

47 Counsel for the applicant submitted that, even if that be so, the modern and better approach to statutory construction is to treat an Act of Parliament as always speaking, and thus to interpret the words of the statute in accordance with their current meaning.[31] On that basis, he contended, a full opportunity of cross-examining should be understood as an opportunity to confront the witness armed with the documents which these days the law requires the Crown to provide.

48 There is some force in that submission. The section is expressed in terms of indeterminate scope and at a high level of generality and, generally speaking, textual features of that kind are regarded as indicia of an intention that the application of a section should vary over time.[32] But, as against that, there are also indications that words of the section are to be construed in accordance with their natural meaning at the date of their enactment. The language of the section is ambiguous and is of such antiquity as to have had a meaning at the time of first enactment that is different to what is contended to be its modern denotation.[33] There is also a further difficulty that, even if the purpose of the section is to give effect to the common law hearsay rule as it might develop from time to time, it is not clear that there has been any relevant change in the common law hearsay rule.

49 On one view of the matter, the specific impediments identified in the cases as sufficient to breach the common law right of cross-examination (such as lack of sufficient notice, physical disabilities, unresolved language difficulties and unprivileged refusal of witnesses to answer questions) are merely particular manifestations of the application of a more general test of fact and degree in which the issue is defined by the opportunity afforded to an accused to 'discover the truth'. According to that view of the matter, the phrase 'full opportunity of cross-examination' is one of protean content. It does not necessarily mean the fullest opportunity but it is not enough that there be just any or some mere opportunity. What it requires in a given case is to be determined according to whether an asserted impediment to a full opportunity of cross-examination has realistically deprived the accused of an opportunity of discovering the truth.

50 The other view of the matter is that the specific impediments identified in the cases are all concerned with restrictions on the opportunity to confront the witness, ask questions and require immediate answers, and have nothing to do with the provision of documents, because the hearsay rule, as it was then and is now, has nothing to do with discovery of relevant documents. The point may be demonstrated by contrasting two types of case in which the utility of cross-examination is compromised. In the first class of case, the trial judge compromises the utility of cross-examination by unduly restricting the right or liberty of the accused to confront, put questions to and require immediate answers from the witness. In the second class of case, the judge allows the accused unrestricted scope to cross-examine the witness, but it is later found that the Crown withheld documents which could have significantly affected the utility of the cross-examination.

51 In the first class of case, the accused would be entitled to complain on appeal that the common law hearsay rule had been breached, and thus that the witness's evidence was inadmissible, because the accused, being the party against whom the witness's evidence was tendered, was not given full opportunity to cross-examine the witness. But, in the second class of case, the decision of the New South Wales Court of Appeal in Gorman v Fitzpatrick[34] suggests that the accused had a full opportunity of cross-examining the witness and that the witness's evidence would have been admissible. In such a case, the accused's proper complaint would be that that the Crown's failure to furnish the relevant documents made the trial unfair and that the verdict should be set aside on that basis.

52 In Gorman, the accused were charged with conspiracy and the issue was whether the proceedings should be stayed as an abuse of process. They contended that lengthy procedural delays had resulted in a situation which prevented them from getting a fair trial. One of their arguments was that a witness who had been cross-examined at the committal hearing had died before trial and so there was no opportunity to cross-examine him on the way in which the Crown had reformulated its case since the committal hearing. They claimed that, in those circumstances, it would be unfair for the Crown to tender the witness's deposition under s 409(1) of the Crimes Act 1901 (NSW).[35] The case was decided on the basis that the degree of unfairness was insufficient to warrant a stay. But, in reasoning to that conclusion, Kirby P expressly noted that the accused had a full opportunity of cross-examining the witness within the meaning of s 409(1), even though:

They would have been in a better position to cross-examine him effectively if they had had, at the time of their cross-examination, the full particulars which were later given.[36]

53 Ultimately, counsel for the applicant contended that, in the circumstances of this case, it makes no difference whether the Crown's failure to disclose the interview transcript is properly to be described in terms of depriving the applicant of a full opportunity of cross-examining Thorneycroft or in terms of the Crown's failure to disclose as rendering the admission of Thorneycroft's statement unfair For in this case, counsel submitted, what demonstrates that there was not a full opportunity of cross-examining Thorneycroft is that, because the applicant did not have a chance to cross-examine him on the transcript, the admission of Thorneycroft's statement was unfair.

54 That being so, it is unnecessary to make a final decision as to whether a full opportunity of cross-examining includes being provided with relevant documents. We propose to deal with the matter by deciding whether the Crown's failure to provide the defence with the transcript of Thorneycroft's interview at the time of the committal hearing rendered the trial unfair.

(ii) Whether Crown's failure to disclose transcript of Thorneycroft interview rendered trial unfair

55 In light of what the High Court said in R v Grey,[37] we take the law to be that, if provision of the transcript of interview to defence counsel at the time of the committal hearing was capable of significantly strengthening the attack then made on Thorneycroft's credibility, or otherwise significantly damaging the Crown case or advancing the applicant's defence, the Crown's reliance on Thorneycroft's depositions at trial would have been unfair; and, in view of the Crown's concession as to the importance of Thorneycroft's evidence, would have been productive of a substantial miscarriage of justice. The question is whether the Crown's failure to provide the transcript of interview realistically deprived the defence of an opportunity of significantly damaging the Crown case or strengthening the applicant's defence.

56 As was earlier noted, the transcript of interview was made available to defence counsel at trial and, and after taking time to consider its contents, he made submissions to the judge to the effect that it contained statements which, when compared to Thorneycroft's witness statements, amounted to significant prior inconsistent statements. Senior counsel for the applicant told this Court that he relied on those submissions. Relevantly, they were as follows:

COUNSEL: There are a number of prior inconsistent statements made by Thorneycroft which the defence can't cross-examine Thorneycroft on. This is a document that wasn't seized by counsel [sic] at the committal.

HER HONOUR: If you just take me to the inconsistencies that you rely upon, then that is going to make it easier when I actually read the document.

...

COUNSEL: There is one significant one I have already read out - I am just trying to find it - it was early on at p. 10, it is to do with the wog people. 'I'm not sure and I didn't hear, like, just some other second person and I didn't worry about it.' Those two statements, the defence say, are prior inconsistent statements to his subsequent claim as to the identity of the target [of the conspiracy to murder Condello] in any meaningful way.[38]

At p. 14, this is a reference to Williams: 'Like, he was talking about in general terms' as opposed to specific terms. It is a prior inconsistent statement, the defence say. Still on p. 14, his description of the conversation at the pub in Essendon ' and drank heaps and shit like that'. In my submission, that description is wholly different to the description he gave as to what he said.

...

On p. 15 he says that 'Williams was identifying the other side, has to be the money man'. I would say that is an inconsistency.

HER HONOUR: On what basis?

COUNSEL: Because he has purported on a subsequent occasion to say Mario [Condello] has been identified. He repeats: 'He must be the money man on the other side'. (That is still on p. 15.)

...

COUNSEL: At p. 21: 'And no one had said to me... (reads) ... that at all'. If I understand that correctly, that would be a prior inconsistent statement.

COUNSEL: Page 21, Thorneycroft's second sentence: 'And no one had said to me 'Mick' you know, offered me money or anything like that at all.' He is asked: 'Was anyone ever offered money or given money ... (reads) ... stage, of course he would have been.' The defence say that is inconsistent.

HER HONOUR: If you look at the top of p. 22 he says: 'See in the end he was like ... (reads) ... and that would have been from - - -'

...

COUNSEL: Yes. The inconsistency is 'I wouldn't have a clue how much but I think all up he's spent about 9 grand so far.' He is asked: 'Had Sean been given any money ... (reads) ... grand so far.' That is the inconsistency.

...

COUNSEL: His description as to the conversation at p. 53, your Honour. Again, it is detail criticism. 'So Carl was there when you were talking about the motorbike ... (reads) ... to go get the cunt.' It is not 'pop' which was the verb that was used previously, 'and like ...', et cetera, et cetera.

...

COUNSEL: If your Honour pleases. Page 61 he is asked by Scott [Wallace]: 'So in relation to this job we are talking about with is the matter ... (reads) ... on the same phone call.' I am happy to check but my recollection is he was asserting it was Sonnet who range him up and that wasn't a conversation he had with Williams as well.

...

COUNSEL: At p. 62 at the bottom he is saying he didn't know the name [of the target of the conspiracy to murder Condello] or whatever. That is a prior inconsistent statement. 'like, I didn't know, I still don't know ... (reads) ... Like I didn't know then, but I know it's been ongoing for a month or so because the other person pulled out and all that kind of stuff' and he says it was the Chinaman who pulled out. In my submission, there he is saying even now, as he is speaking to the police officer, don't know, didn't know who it was, by any name at all. That is what it amounts to.

57 The judge did not rule as such as to whether she was persuaded that anything said in the transcript of interview amounted to a prior inconsistent statement. She did not mention the subject in the formal ruling.[39] But we take it from her Honour's responses to counsel's submissions in the course of argument, that she rejected the submissions. We propose to deal with them in turn.

58 We begin with the statement identified at page 10 of the transcript of interview, which defence counsel contended was inconsistent with Thorneycroft's statement in his deposition that he knew that the target of the conspiracy was to be Mario Condello. In our view, that contention is untenable. When read in context (which includes from the bottom of page 7 to the middle of page 12 of the transcript) it is apparent that the identified section of transcript was directed to the identity of two persons whom Andrew Veniamin had killed on behalf of Williams. That had nothing to do with the identity of the target of conspiracy to kill Mario Condello:

WALLACE: Alright so Carl [Williams], Carl told you about who Andrew [Veniamin] had knocked?

THORNEYCROFT: Well not, not all of them I guess but just a couple yeah.

WALLACE: Alright. Do you know what ones they are?

THORNEYCROFT: Um Victor Pierce.

WALLACE: Victor Peirce. And what else? Do you know when he told you that?

THORNEYCROFT: That was about 4 days or no 5 days at the hotel

WALLACE: At the hotel?

THORNEYCROFT: The Marriot I think it is.

...

WALLACE: Alright um so Carl mentioned that, that Andrew had done that one. Yep. What was the other one he said that Andrew had done?

THORNEYCROFT: Um, see he said I don't even know like, he said it but I wasn't listening ... sort of thing. Because ... (inaudible) ... saying I went upstairs when he ... (inaudible) ... and I went upstairs to speak [to] him not really about ya know talk 'cause he's saying don't talk in the room, bar door was closed so we gone upstairs.

...

WALLACE: You said before about.

THORNEYCROFT: Yeah.

WALLACE: Yeah.

THORNEYCROFT: There was a name like he said and the person like, it's to do with all the wog people, it's to do with the like not Gatto but it's to do with like their people, um, some wog bloke or something, I'm not sure. And I didn't hear.[40]

WALLACE: Right.

THORNEYCROFT: It's just like some other second person and I didn't worry about it.

...

WALLACE: But you said before that, um, that Carl had said Andrew had done Victor Peirce.

THORNEYCROFT: Mm.

WALLACE: Did he nominate the other one that Carl had done, sorry, that um, that ah, Andrew Veniamin had done?

THORNEYCROFT: See he did alright when I wasn't listening.

WALLACE: Alright.

THORNEYCROFT: I was listening but.

WALLACE: Nah.

THORNEYCROFT: I didn't, I just didn't hear properly. I did but I didn't.

WALLACE: Yeah.

THORNEYCROFT: It's just that I didn't ...(inaudible) ...

WALLACE: He did mention ... (inaudible) ... you only remember one name?

THORNEYCROFT: He said Victor Peirce.

WALLACE: Yeah, okay, yeah.

THORNEYCROFT: I don't know I'm just saying that.

WALLACE: That's alright mate.

THORNEYCROFT: I know that 'cause I know Victor and the other person's name I don't know.

WALLACE: Alright.

THORNEYCROFT: Um.

59 We go next to what were said to be the prior inconsistent statements at pages 14 and 15 of the transcript of interview. Defence counsel's submission was that the generality of what was there said disaccorded with the detail given in the statement concerning the matters mentioned at pages 14 and 15.

60 We are unable to identify any such inconsistency. As it appears to us, there is a remarkable degree of correspondence between the two. Starting at page 14 and, in order to derive the context, continuing to the top of page 16 of the transcript, the relevant passage was as follows:

WALLACE: Yep. Alright. Um, alright just concentrating on the matter that you were involved with. What direct conv, what direct conversation, just run through, you've mentioned with the direct conversation you said that Carl said to burn the clothes and the car, that, what else did he say about it?

THORNEYCROFT: Like he was talking about in general terms.

WALLACE: Yeah, in general, yep.

THORNEYCROFT: Like Sean [Sonnet] was there when it was said to[o].

WALLACE: Yep.

THORNEYCROFT: This, he spoke of it a few times. The first night like I don't even know, the first night we went to some pub in Essendon and drank heaps and shit like that. That's when the first time when they rang me up and like trying to get a hold of me for ages.

...

WALLACE: Yeah. What, what I'm interested in Michael is.

THORNEYCROFT: Mm, mm.

WALLACE: Um, direct conversation.

THORNEYCROFT: Yep.

WALLACE: That Carl has had about the conspiracy, alright, that we've, that we've, that we're talking about today.

THORNEYCROFT: Mm, mm.

WALLACE: Um, what else did he say in regard to, um, in regard to that one?

THORNEYCROFT: Heaps of different shit, there's that many different times. He saw me the first time to, um, make sure you're not watched persons and ... (inaudible) ... behind like the other side ya know has to be money man.

WALLACE: Mate, say again?

THORNEYCROFT: The person who, who whatever Sean, the person he's going to do.

WALLACE: Yeah.

THORNEYCROFT: That's the money man.

WALLACE: He's the money man?

THORNEYCROFT: He must be the money man on the other side.

WALLACE: On the other side? And what did you think that was, the other side?

THORNEYCROFT: I meant like to what is that like what Carl is sort of thing. Like I guess he's the money man too.

WALLACE: Oh okay. So like he's equivalent on the other side, the other camp?

THORNEYCROFT: Yeah. Yep. And with this bloke ... (inaudible) ... and like he's a threat to Carl or some shit like that, um.

WALLACE: And that's who Sean was suppose to?

THORNEYCROFT: Yeah.

WALLACE: Right.

THORNEYCROFT: Um.

WALLACE: To knock, Sean was suppose to knock the money man?

THORNEYCROFT: Carl didn't tell me though that this bloke was a threat to him or nothing like that.

WALLACE: Right.

THORNEYCROFT: But I know that now but that was from Sean.

61 The corresponding passages in the witness statements appear at paragraphs 14 and 15 of the first witness statement, thus:

14. ... I understood Carl to mean that we would need to use a stolen car or motor bike to do the shooting and then we would need a legitimate car which is not stolen to get away after the shooting. I understood that he meant that we would have to use the stolen car or motor bike to get to the legit car or bike. ... Carl then said 'make sure of it Mick'. Carl then told Sean and I to make sure that we burn all of the clothes that we were wearing and the car or the motor bike properly. Carl said for us to do this because this will get rid of the DNA....

15. Whilst Sean, Carl and I were talking Sean told me that there was a SS Commodore already stolen which had been left around the corner from the job and that he had the keys for it. I later found out from conversations with Sean that the job he was referring to was the killing of a bloke called Mario who was the money man on the 'other side'.[41]

62 Judged next to each other, the degree of detail given in the transcript and the witness statement appears to be essentially the same.

63 That takes us to the statements at pages 21 and 22 which were said to be prior inconsistent statements. As can be seen from the submission set out above, it is not wholly clear what the inconsistency was alleged to be. We gather that the thrust of it was that there was some degree of disconformity between what Thorneycroft said in his deposition about amounts to be paid and what he had earlier said in the interview as to what he knew of what was to be paid. To give the context, we begin at the bottom of page 20 of the transcript and continue halfway down page 22:

WALLACE: If I can get back to burning the clothes and the car, did he mention anything else at that stage about what you had to be careful about or anything like that or?

THORNEYCROFT: See when he actually mentioned, but the first time he even mentioned about the car, clothes and all that sort of stuff. See he was talking in general, I was there but he wasn't actually saying he was saying it to me.

WALLACE: Yeah.

THORNEYCROFT: But to Sean too.

WALLACE: To Sean yep.

THORNEYCROFT: Well Carl's dad was there as well, we were just having a drink.

WALLACE: Right.

THORNEYCROFT: I was drunk, I was like fuckin'.

WALLACE: And Carl, and Carl's dad was he talking?

THORNEYCROFT: And no one had said to me Mick, you know, offered me money or anything like that at all.

WALLACE: Yeah.

THORNEYCROFT: Ya know nothing.

WALLACE: Was anyone ever offered money or given money?

THORNEYCROFT: I guess Sean would have been offered at that stage, of course he would have been.

WALLACE: Yeah.

THORNEYCROFT: I mean he's the money.

WALLACE: Had he been, had Sean been given any money by that stage?

THORNEYCROFT: Yeah.

WALLACE: How much?

THORNEYCROFT: I wouldn't have a clue how much but I think all up he spent about 9 grand so far.

WALLACE: Who spent it?

THORNEYCROFT: Sean I think all up.

WALLACE: And where did he get that from?

THORNEYCROFT: From Carl. I never seen him receive any money. I've seen him ask for money and go into a bedroom.

WALLACE: Yep.

THORNEYCROFT: But never seen how much he got.

WALLACE: Yep.

THORNEYCROFT: Or anything like that.

WALLACE: And did Sean tell you how much he got?

THORNEYCROFT: Um, see in the end he was like, he told me he's received probably about 7 grand, but I think probably about 9 or something yeah.

WALLACE: And that would have been from who?

THORNEYCROFT: But that wasn't like he was ... (inaudible) ... he was going to get way more of course.

WALLACE: Yeah. What do ya reckon what do ya reckon he was, or what do ya reckon he was going to get?

THORNEYCROFT: Well he changed his story 3 times he told me.

WALLACE: What?

THORNEYCROFT: 150, 140 and 120.

WALLACE: Right.

THORNEYCROFT: And.

WALLACE: And who told you that?

THORNEYCROFT: Um, Sean.

64 The corresponding sections from the depositions appear in paragraph 26 of Thorneycroft's first statement as follows:

Sean told me that he was getting paid $120 grand (thousand) for doing the job. Sean also told me at different times in conversations that he was getting paid $130,000 and $140,000. I cannot recall exactly when those conversations took place. I thought he was talking 'shit' because he kept changing the amount. He told me that if I drive for him he would give me $30 thousand and I said yeah. Sean did not tell me who was paying him. Sean did not need to tell me who was paying him the money as I knew it was Carl Williams. I knew this from what had been said at the pub and also I had seen Carl give Sean money at his apartment. I later had conversations with Sean about the money which I will refer to later in the statement.

When I was in the garage with Sean we had a conversation. Sean was sitting on my motor bike and I sat on the couch. Sean told me that we would be better off doing a job like the one we had heard on the radio on the way back from Mario's earlier that night. I can recall that there was something on the radio about an armed robbery in Dandenong or something like that. I said that it would probably be better for him to do that as he would get less gaol time than doing the murder. Sean said that he knew if he killed Mario that no matter what he knew he would get grabbed for it and that he was going to have to hide out for a few days to wait for the gun residue to get off his skin. I asked Sean if $140,000 was worth his life in gaol and Sean said 'no'. I can't remember exactly what words Sean used but he then indicated to me that he didn't want to do the killing of Mario but that he had already received $9,000 from Carl Williams and had spent the money and couldn't pull out...

65 We are unable to see that there was any significant inconsistency between the passage about which complaint was made and the corresponding section of the witness statements.

66 Possibly, defence counsel had in mind the difference between statement in the transcript that:

... he told me he's received probably about 7 grand, but I think probably about 9 or something yeah.

I can't remember exactly what words Sean used but he then indicated to me that he didn't want to do the killing of Mario but that he had already received $9,000 from Carl Williams and had spent the money and couldn't pull out.

67 If so, however, we do not think that the difference between those two propositions (and, logically, there is no necessary inconsistency between them) could conceivably have affected the jury's assessment of Thorneycroft's evidence.

68 We turn to the passage complained about at page 53 of the transcript of interview. As best we can tell, the passage to which defence counsel referred as a prior inconsistent statement was the following:

WALLACE: And was the motorbike discussed as being used in the job?

THORNEYCROFT: My bike, by Sean. Sean was just saying like we use that bike and I'm like ... (inaudible) ...

WALLACE: Well how did, how did he say you would use the bike?

THORNEYCROFT: He's like fuckin' can you ride it, he goes fuckin' like we'll take this and he goes like fuckin'.

WALLACE: Take this for what?

THORNEYCROFT: Take it to go get the cunt and like and then he's like ya sure you can ride, ya sure you're up for it Mick. You don't look like too healthy and then turned it into a big joke like Mick you'll ride up you get the bloke, it'll be in the papers you'll ride up get to the bloke, man pulls out gun fuckin' and fuckin' the next minute other man flips motorbike or something like that and like.

69 To put that in context, we begin at the bottom of page 54:

THORNEYCROFT: But just to everything he was, like I mentioned it to Carl about the bike.

WALLACE: Yeah.

WALLACE: Was there any other conversations you had with Carl Williams about, about any of this stuff, about this job that we talked about? About this one you're in custody for?

THORNEYCROFT: Um, I'm just saying like he wanted me, like he wants to use my the car, wants to use the bike for the same like he goes fuckin' stupid like this ... (inaudible) ...

WALLACE: Yeah, what car?

THORNEYCROFT: He wanted to use my girlfriend's car as the second getaway car and shit like that, and I'm like fuckin'.

WALLACE: And that's Carl wanted to use?

THORNEYCROFT: No, Sean.

WALLACE: I'm asking about Carl though, what did Carl, what other conversations did you have with Carl?

THORNEYCROFT: I was telling Carl this.

WALLACE: Oh, you were telling Carl?

THORNEYCROFT: Yeah.

WALLACE: Yeah.

THORNEYCROFT: I was telling this to Carl like Sean wants me to use this wants me to do that, ya know.

WALLACE: Right, and what did Carl say about that?

THORNEYCROFT: He's fuckin' stupid and that and like and I go.

WALLACE: What Carl was stupid?

THORNEYCROFT: Like yeah he goes don't fuckin', ya know, don't do that. I go, mate I go of course not I fuckin' no way in the world. I go, listen, I go, listen this is what I'm trying to find Carl I go, I go, I stole the car.

70 Although not exactly the same, when those two passages are taken together, they appear to us to align closely with the following sections from paragraphs 29 and 30 of the Thorneycroft's first witness statement:

29. ... Sean and I have then spoken in the garage. Sean told me that I had to steal a car. I told Sean that I would get one. I think I told Sean that it would be better to do the job on a motorbike as it would be easier to get away. Sean said that we could use my motorbike and I told him 'no' as it was registered in my brother's name, Stephen Thorneycroft. Sean was virtually insisting that we would use my motorbike and I was saying 'no way'. Sean said that we could burn the motorbike and I said that the motorbike had serial numbers and that they could be traced back to my brother. Sean again said that we could burn the bike and we could change the plates. I said it would still get back to my brother. Sean would not take no for an answer. I told Sean that I would steal a motorbike. Sean then left.

30. I think it was the following day but I am not sure that I rang Carl. I told Carl that Sean wanted me to use my own car and motorbike to [do] the job. Because I was talking on the telephone I would not have said 'the job or to kill Mario' I would have said this in some sort of code but I can not recall what I said. What I was trying to tell Carl was that it would be stupid to use my own car or bike when I could steal one. Again I would have said this in some sort of code. I can not recall what Carl replied. I think I may have told him that I needed to talk with him again.

71 The position then becomes clearer when regard is had to the following passages from paragraphs 14 and 15 of Thorneycroft's second witness statement, which it is to be noted was made only after he was apprised for the first time of covert police recordings of conversations he had with Carl Williams on 2 June 2004 at 12.36 pm and on 2 June 2004 at 2.48 pm.:

14. The police have detailed a conversation I had with Carl WILLIAMS on the phone on the 2nd of June 2004 at 12.36 PM. The police have advised me that during this conversation with Carl I have stated something similar to 'I just seen me mate, he just come past, he's fuckin off his head, he shouldn't even be in his car, you know what I mean, he wants to go and see me sister with me with fucken with me girl's car and me brother's bike'. I can recall this conversation I had with Carl and have referred to this call in paragraph 30 of my previous statement. I can now further recall the code I used when speaking to Carl. When I said 'me mate' I was referring to Sean SONNET. When I said 'me sister' I was referring to 'Mario's'. I do not have a sister and Carl also knows that I do not have a sister. The police have then advised me that later in this conversation I have said something to Carl similar to 'Sweet but not like with them'. When I said this I meant that it was ok to do the 'job' but not to use my girlfriend's car or my brother's motor bike. The reason that I was telling Carl about this was that Carl was the money man and he was in charge. Sean had told me that no matter what, he was going to use my girlfriend's car or my brother's bike and would not take no for an answer. I was telling Carl in this call that I didn't want to use my girlfriend's [car] or my brother's motor bike because I thought he would sort it out with Sean.

15. The police have detailed a conversation I had with Sean SONNET on the phone on the 2nd of June 2004 at 2.48 PM. The police have advised me that during this conversation with Sean SONNET I have stated something similar to 'I've already spoken to him as well. I spoke to him about 2-3 hours ago straight after you left I rang...' and I have also stated something some [sic] similar to 'he said to me of course not to... with the other thing, not to use' and I have also stated something similar to 'remember when we were at the pub he goes don't ... he goes even with stamps and stuff. I go I know, I'm going out today Sean and I'm getting one of those things'. I can recall this phone conversation with Sean. When I said 'I've already spoken with him', I was referring [to] Carl WILLIAMS. When I said 'of course not to', I was telling Sean that Carl had said of course I was not to use my brother's motor bike or my girlfriend's car. When I refer to my brother's motor bike I actually mean my own motor bike which is registered in my brother's name, being Steven [sic] THORNEYCROFT. When I mentioned the 'stamps and stuff' I was referring to the conversation that Sean and I had with Carl at the pub the day earlier. During the conversation at the pub both Carl and I agreed that it was stupid to use my bother's motor bike because it could be traced back to my brother as the motor bike has stamps which can identify it...

72 It seems to us that so far from constituting a prior inconsistent statement, when read in light of the second witness statement and the covert recordings on which that was based, and the knowledge that Thorneycroft was not aware of the covert recordings at the time of the interview or his first statement, page 53 of the transcript of interview provides powerful additional support for the truth of what Thorneycroft said in his first statement. And we say 'additional support', because it was extensively corroborated by the police surveillance evidence and covert recordings, as was acknowledged by defence counsel in the course of final address.

73 We come then finally, however, to the passages at pages 61 and 62 of the transcript of interview which were said to be prior inconsistent statements. The submission made in relation to those passages was that they show that, contrary to the contents of Thorneycroft's statement that he knew that 'Mario' was the target of the conspiracy to murder, 'he is saying even now, as he is speaking to the police officer, don't know, didn't know who it was, by any name at all'. We think that there is force in that submission.

74 The relevant section begins near to the top of page 61 and continues to page 63 of the transcript as follows:

WALLACE: So in relation to this job we're talking about which is the matter you're in custody for now, who arranged for that?

THORNEYCROFT: Who arranged what, what from to actually seen the first person I spoke to?

WALLACE: Yep.

THORNEYCROFT: Was Sean on the phone.

WALLACE: Right.

THORNEYCROFT: But he was with Carl then and I spoke to Carl too on the same phone call.

WALLACE: Yep.

THORNEYCROFT: And then met up with them later on that night.

...

WALLACE: Right. And was that when, was that when it was all arranged? Or when you were told what was going on?

THORNEYCROFT: Nah see I wasn't told nothing. It was like fuckin'. I was told that they wanted to talk to me, they wanted to see me and we've gone out and drank and.

WALLACE: Yep.

THORNEYCROFT: That night we just like fuck, like Sean's like going I'm true to me word and all that sort of shit. Ya know like Mick like fuckin' kept going over just wanted Carl to hear like yeah he does what he's going to say.

...

WALLACE: And what did Carl say to that?

THORNEYCROFT: Nothing just, just heard it ya know. But not once like he kept going Sean this is what.

WALLACE: Beat his chest over it.

THORNEYCROFT: Virtually yeah fuckin' true to me word I do what I say. So he said it like fuckin' half the night. Not all night, kept mentioning it.

WALLACE: Yep.

THORNEYCROFT: And shit like that.

WALLACE: And what was he talking about then?

THORNEYCROFT: Like I didn't know, I still don't know who's the persons' name or whatever, but he was saying like the person he's going to knock him. Like he fuckin' he's gunna like he's whatever, I know he's accepted money and that and he got money for it and that. He's just like fuckin' saying like I'm going to do it fuckin' I said I'm going to do it and it's going to get done. Like I didn't know then.

WALLACE: Yep.

THORNEYCROFT: But I know now it's been ongoing for a month or so 'cause the other person pulled out and all that kind of stuff.

WALLACE: Yep.

THORNEYCROFT: Um.

WALLACE: And who was it that pulled out?

THORNEYCROFT: The Chinaman.

75 Defence counsel's submission focused on the emphasised words: 'I still don't know who's the person's name or whatever'. He contended that they were an expression of Thorneycroft's state of knowledge at the time of the interview. That appears to be so.

76 Possibly, the sentence 'I still don't know who's the persons' name or whatever' was intended to speak in the historical present. As the prosecutor submitted to the trial judge, and her Honour appears to have accepted, the last five words of the answer: 'Like I didn't know then', suggest that he did know at the time of interview. But, even if that is so, the apparent inconsistency dictates that the provision of the transcript of interview to the defence at the time of the committal hearing would have significantly strengthened the attack then made on Thorneycroft's credibility and been capable of significantly damaging the Crown case and advancing the applicant's defence.

77 It follows, in our view, that the judge erred in the exercise of the fairness discretion in failing to exclude the statement and the committal cross-examination.

78 Ten days after the hearing of the appeal, counsel for the applicant sent to the court further written submissions in which they listed what they contended were further inconsistencies as between the transcript of interview and Thorneycroft's statement or, if not inconsistencies, material matters which, had they been known at the time of the committal hearing, might have had a significant effect on Thorneycroft's examination at the committal hearing. In case it proves to be important, we deal with each of them in what follows.

In TS[42] paras [26]-[27] Thorneycroft said that Sonnet told him that the target was to be 'Mario', the money man on the other side. However, in CR - at p.10 ('some wog bloke or something, I'm not sure. And I didn't hear ... About drugs and that), pp.26-33 (p.30: 'No I don't know ... [who this other bloke is] ... Just the money man that's all'), p.62 ('Like I didn't know, I still don't know who's the person's name or whatever') & pp.15-16 - it is apparent that Thorneycroft does not know the identity of the target.

80 That repeats the point we have just dealt with. For the reasons just given, we accept that the inconsistency was significant.

Thorneycroft said that he didn't think that Sonnet was going to go through with it and Williams tells Thorneycroft not to worry as he has secured someone else to do the job: CR at pp.18, 25-26, 27, 32-33. This is relevant to the defence of sham. In TS para [71] Thorneycroft said that Williams told Thorneycroft simply 'not to worry about the job anymore'.

82 That statement is incorrect. Thorneycroft did not say in the transcript of interview that Williams had secured someone else to do the job. He said that, when he told Williams of his concerns about the applicant's behaviour and commitment to the job, Williams at first responded with concern but that later, as time went by, his attitude became more relaxed. Thorneycroft said in the transcript of interview that he speculated as to whether the reason for the change in Williams' apparent attitude was that Williams may have engaged someone else to do the job. But he also said that Williams never told him that Williams had engaged someone else and that Thorneycroft had no idea whether Williams had engaged someone else. The relevant passages of the transcript are as follows:

WALLACE: Okay. So tell me about, what, well how did that conversation take place with Sean and Carl?

THORNEYCROFT: Um, Carl's on the fuckin' ya know, no don't let the fuckin' car go to waste sort of thing what fuckin' you're paying for it. Don't give a fuck. Like fuckin' guess what ...(inaudible)... me anything he goes I can fuckin' get rid of that. I go what? I go Sean just, just I was going to give you a fifty bucks but anyway you fuck the ... (inaudible).

WALLACE: What did Carl say about that?

THORNEYCROFT: Nah, I was thinking to meself like.

WALLACE: Yeah.

THORNEYCROFT: Why are you saying I want to put the car fuck I'm no way I'm putting the car in the lock like in me thing ...(inaudible)...

WALLACE: Didn't you put ya.

THORNEYCROFT: ... to take parts off it in me, in me garage and take parts off it. Why, why do you want to do that anyway. Why don't you try and do something different anyway, or go and fuckin' kill someone and getting all this money?

WALLACE: Yeah.

THORNEYCROFT: But like I thought I didn't say nothin' then, I didn't say nothin' at all, um. See most of the times I spoke to Carl I was saying shit like just I don't think he's [scil. the applicant is] going to do it and stuff like that.

WALLACE: You said that, you said to Carl you don't think?

THORNEYCROFT: Yeah, I don't think he's going to do it, I don't think.

WALLACE: Who are you referring to there.

THORNEYCROFT: Sean.

WALLACE: You don't think Sean's going to?

THORNEYCROFT: Go through with it, do it all that sort of shit. Like ...(inaudible)...

...

WALLACE: And what did Carl say when you told Carl that?

THORNEYCROFT: At first like just see, just let it go and just wait, ya know what I mean, see how things pan out a little bit, ya know, the next couple of days, um. See and I seen him, I went and seen Roberta yesterday.

...

WALLACE: And what?

THORNEYCROFT: Into that ya know fuckin' it was like a complete turnaround. Everything was like nah it's cool everything's under control, it was like, it's not we've got someone else now like.

WALLACE: Okay, so.

THORNEYCROFT: I'm not sure if they have or haven't I wouldn't have a clue, but it was like.

...

WALLACE: You talk about another person, who told you about the other person?

THORNEYCROFT: Which, which person?

WALLACE: You said that someone else, you said someone else they've got someone else now, it's sweet ya know.

THORNEYCROFT: I'm not, yeah, I've got, see I don't know if they have definitely got someone...

WALLACE: Yep.

THORNEYCROFT ... to do this person or what it is_, I just thought_ that's why 'cause like the other times when I spoke to him [scil. Williams] it was like sort of he goes let it go, the first time let it go and see how it pans out. The time after that was like, I just, ya know, I fuckin' I don't know...(inaudible)... fuckin' do the fuck around and that like. He was just half ...(inaudible)... not buying time or waiting just like fuckin'. I think he was like the second or third time I seen him I think he was showing off, but I think it was the coke too. 'Cause the coke, it make him go quiet like he doesn't talk on it.

...

THORNEYCROFT: They didn't say don't worry about the person that's getting knocked, they didn't say that, sorry ...(inaudible)...

WALLACE: Okay, okay, okay.

THORNEYCROFT: They just said what I said boss.

WALLACE: What was that?

THORNEYCROFT: They said just look don't worry about it. Don't worry about it. They didn't say don't worry about Sean, they just said don't worry about everything, everything's under control.

83 In our view, those passages of the transcript of interview are consistent with what Thorneycroft said on the subject in his witness statement.

84 As to the defence of sham, it is true that Thorneycroft said in the transcript of interview that, on some occasions, he doubted whether the applicant was going to go through with the killing. But that does not take the matter any further either, because he said exactly the same thing at the committal hearing:

You say, don't you, that indeed - in your statement at one stage you thought that Sean didn't want to go on with it either? ---Yes.

Is that right? --- Correct.

Has that been your impression all along, that he didn't really want to go on with it? --- Yes, it sort of was like that, not - at the start I wasn't sure but then when he kept changing his amounts of money then offered me different amounts of money, offered me to drive for him, and then offered me just to steal the car, offered me 40,000 to steal the car and 30,000 to drive for him, it's like, what, steal a car for 40,000 but to drive - if I want to drive for him and steal the car I'll get less - like, that's pretty stupid I thought.

...

Do you say that as at the day before you were arrested, 8 June, that neither of you nor Sean really intended to go on with this? --- Sean might have in the end because he was caught at the place but I didn't, no.

But as at the day before, your impression was that he didn't intend to go on with a shooting? --- Yes, I didn't think he would, no.

...

You say the position between you and Sean was that neither of you really intended to go on with the shooting? --- I wasn't sure of his belief, but I thought to myself from the things he was doing and things he was saying to me that he didn't want to go through with it...

At CR pp. 50-55 Thorneycroft states that a conversation concerning a motorbike took place with Sonnet and Carl Williams in Thorneycroft's garage. In TS para [14] & [15] and at CL pp. 172-173 & 181 Thorneycroft said that this conversation took place in a pub in Essendon.

86 We accept that there is an apparent inconsistency between the transcript of interview in which Thorneycroft stated that there was a conversation about using a motor bike for the job, and that the conversation took place at his house in the garage a couple of days after the meeting in the hotel at Essendon, and the transcript of cross-examination at the committal hearing in which he stated that the conversation took place at the meeting in the hotel at Essendon. In the scheme of things, however, it appears to be a matter of relatively little significance. There was no dispute at trial as to the existence of a conspiracy to murder. The only issue was whether the applicant's participation in it was a pretence.

At CL p.161 Thorneycroft said that Carl Williams had never been in Thorneycroft's house. In TS all conversations held in Thorneycroft's garage are between Thorneycroft and Sonnet. The garage conversation is crucial because it is in such a conversation that Thorneycroft claims that Sonnet revealed the identity of the target: see TS para [26]. Yet in CR at pp. 50-55 Thorneycroft states that a three-way conversation between Sonnet, Williams and Thorneycroft took place in Thorneycroft's garage. There is, consistent with the rest of CR, no revelation of identity.

88 Contrary to the submission implicit in that description, we discern no inconsistency between the fact that there was a conversation between Thorneycroft, the applicant and Williams, in Thorneycroft's garage, and Thorneycroft's statement that Williams was never in Thorneycroft's house. Nor do we comprehend any inconsistency between the fact of there having been a meeting between Thorneycroft, the applicant and Williams, in the garage, and another later meeting between Thorneycroft and the applicant, to which Thorneycroft referred in paragraph 26 of his witness statement, in which the applicant told Thorneycroft that the target's name was Mario.

89 Contrastingly, we think that there is force in the point that there is no mention of Mario's name in the transcript of interview, although we note that defence counsel did not seek to make anything of the point at trial.

In TS paras [6]-[7] and at CL at pp. 99-103 and 180 Thorneycroft states that on the first night that Sonnet came to his house Sonnet pulled out a gun and pointed it towards the ground. It was then that Sonnet, according to Thorneycroft, asked Thorneycroft to drive for him. Thorneycroft stated that at that stage he knew there was to be a shooting. In CR, however, at pp. 61-65, Thorneycroft stated that 'the first person I spoke to' was Sonnet and Williams, then they came to his house, 'and we've gone out and drank'.

91 That is correct as far as it goes. There was no mention in the transcript of interview of the applicant having a gun when he came to the Thorneycroft's house. There is equally no doubt, however, that he did have a gun and that he did hide it at Thorneycroft's house, as is recorded in paragraph 7 of the statement. The covertly recorded conversations are clear on the point and there was never any dispute about it at the trial. In those circumstances, we do not consider that the identified difference was material.

92 We also observe that there is no inconsistency as between the answer given in the transcript of interview, that Thorneycroft first spoke to Sonnet and Williams when they came to his house and took him out for a drink, and the statement in the witness statement that the applicant had previously come to his home and pulled out his gun and asked him to drive for him. The answer given in the transcript of interview was in response to questioning as to when Thorneycroft first learned of the details of the job he was invited to do. As appears from the witness statement, the occasion when the applicant pulled out his gun and asked the applicant to drive for him occurred a day earlier when Williams was not present. At that stage, the applicant said, he knew that he was being invited to commit a crime but did not know what the details of the crime would be. He gave the same evidence when he was cross-examined about the subject at pages 101-103 of the transcript of the committal proceeding.

In TS para [50] and CL pp.226-228 Thorneycroft speaks of going up to the pool on the roof of a building where Williams has an apartment and wanting to talk to Williams about Sonnet not being up to the job. Thorneycroft is unable to speak about this in detail because of Williams' fear of being overheard. Nevertheless, in CR at pp. 7-10 Thorneycroft says that on the roof of the building Williams spoke of having had 7 people killed, that Williams was 'being a big shot', that Thorneycroft heard 'clearly' that 7 persons had been killed and that there was talk about 'Andrew'.

94 There is no inconsistency in that either. It can be seen from the transcript that the conversation concerning the seven persons whom Williams said he had killed was a different and earlier occasion to the conversation about Thorneycroft's concerns over the applicant's commitment to the project.

In TS paras [26] & [50] and CL at pp. 193, 291 & 302-323, Thorneycroft stated that Sonnet told him that he would give Thorneycroft $30,000 to drive and $40,000 to steal a car. However, at CR at p.21 Thorneycroft stated that no-one had offered him money at all.

96 We have dealt with that point, in effect, already, at paragraphs 64 to 66. For the reasons there stated, we think it to be immaterial.

In TS paras [15] & [27] and at CL at pp. 195-196 Thorneycroft stated that Sonnet told him that the target was the money man. However, in CR at pp. 15-16 Thorneycroft says that it 'must' or 'has to be' the money man.

98 We accept that there is substance in that point. Possibly, the reason for the difference is that the witness statement and the cross-examination at the committal hearing were concerned with a different and later occasion to that mentioned at pages 15 and 16 of the transcript of interview. The latter was the first occasion when the job was outlined. As was noted when dealing with the objections taken by defence counsel at trial, Thorneycroft was clear that at that point he did not know the identity of the target. According to his witness statement, he was given the details by the applicant on a later occasion. That is consistent in the transcript of interview:

THORNEYCROFT: Carl didn't' tell me though that this bloke was a threat to him or nothing like that.

WALLACE: Right.

THORNEYCROFT: But I know that now but that was from Sean.

99 Nevertheless, we consider that the apparent disparity is something which might have been exploited to the applicant's advantage if the transcript of interview had been available to the applicant at the time of the committal hearing. It strengthens our conclusion that, because it was not provided, the applicant was deprived of a realistic chance of acquittal.

101 Ground 5 was a variation of Ground 4. At the committal stage of the proceeding, the applicant made a 'Form 8A request'[43] for all police notes pertinent to the matters in issue. The Crown responded, but did not include in the documents supplied a copy of some notes taken by Mr Wallace of the interview on 9 June 2004. Mr Wallace, however, was made available for cross-examination at trial, at the applicant's request, and the applicant was provided with a copy of Mr Wallace's notes at that time for the purposes of cross-examination.

102 In the applicant's written submissions filed in advance of the hearing of the application for leave to appeal, it was contended under Ground 5 that the Crown's failure to make the notes available at the time of the committal hearing meant that there had not been a full opportunity to cross-examine Thorneycroft and, therefore, that his deposition was either inadmissible or should have been excluded in the exercise of discretion. In oral argument, however, it was conceded by the applicant's counsel that the notes added nothing to the transcript.

103 It follows from what we have said about Ground 4, that Ground 5 succeeds to the same extent as Ground 4.

Ground 8: Challenge to jurors in the absence of the applicant

104 The applicant sought and was granted permission not to be in court for significant parts of the trial. He asked that it be so because he confessed himself unable to behave and that, if not excused, he was bound to disrupt the trial. He was so absent from court during the empanelment of the jury, having first delegated to his counsel the exercise of his rights of peremptory challenge. Under Ground 8 it was contended that the arrangement was contrary to s 39 of the Juries Act 2000 and thus that the trial was a nullity.

105 We reject the contention. Although s 39 of the Juries Act 2000 envisages that an accused will exercise his or her right of challenge personally, and may do so with the aid of the accused's solicitor, we see nothing in or about the section that requires an accused personally to exercise the right of challenge, or otherwise which prohibits an accused authorising his or her counsel to exercise the right of challenge on behalf of the accused.[44]

106 Granted, it is not the practice which is normally followed in this state, as compared to say the position in Western Australia which was considered in The Queen v Johns.[45] It is also a practice which should be avoided in most cases. There needs to be very good reason to depart from the usual practice of requiring the accused to voice his or her own challenge to potential jury members. But this was an exceptional case, in which there was good reason for the applicant to be removed from the court room at his request,[46] and so to adopt the course that was taken.

Ground 22: Communication between jury and judge

108 As was earlier noted, the applicant gave evidence at trial. At the conclusion of his cross-examination, but before he was re-examined, the jury sent a message to the judge that they wished to have a view. The judge told counsel of the jury's request, and when counsel asked: 'a view of what', the judge said that she would make an enquiry. Later, after the applicant had completed his evidence, and the defence case had closed, the judge told counsel that there would be a view of North Road, Raymond Grove, probably Nelson Street, Sussex Street and Weber Street, East Brighton, and that counsel would see exactly what the jury saw. Her Honour said, however, that she was not prepared to disclose in any more detail what it was the jury wished to see, because to do so might disclose the way in which the jury was thinking. The view was subsequently conducted on that basis.

109 Under Ground 22, counsel for the applicant contended that, by refusing to disclose precisely what it was the jury wished to see at the locations to which they were taken for the view, the judge caused the trial to miscarry.

110 The principles which apply to communications between the jury and the judge are tolerably clear.[47] The judge should in almost all cases state in open court the fact and content of any communication which the judge has received from the jury. Exceptionally, if the communication discloses information which the jury need not and perhaps should not have disclosed, the communication should be dealt with by announcing the fact of the communication and so much of the communication as is unexceptionable, keeping back however any information which ought not to have been revealed. But such cases will be rare. If a communication is to do with the matters in issue, the parties are entitled to know what it is and, if appropriate, to make submissions as to the way in which it should be responded to. It is also of assistance to the judge that they are able to do so.

111 In this case, we see no justification for the judge's refusal to disclose the full terms of the jury's communication. Assuming as we do that it was confined to the matters at which they wished to look, the parties were entitled to know what they were. With respect, the judge was in error. But the suggestion that the error resulted in a miscarriage of justice cannot be accepted. As was in effect conceded in oral argument, although the judge's refusal to disclose the details of the jury's request was unwarranted, and no doubt irritating, it did not make the slightest difference to the outcome of the trial.

Ground 23: Failure to allow accused to be excused

112 During the course of the judge's charge to the jury, the applicant dispensed with legal representation and sought to be excused. To begin with, the judge refused to accede to that request, taking the view that because he was no longer represented it was better for him to be present. The applicant then so misbehaved by interrupting communications between the judge and the foreman of the jury that the judge enquired of the applicant whether he wanted to be there. When he answered that he did not, the judge allowed him to leave.

113 Under Ground 23, the applicant contended that, by failing to accede to his request to absent himself more swiftly, the judge suffered the applicant to behave in a fashion which did irreparable harm to his defence and thereby caused his trial to miscarry.

114 We reject that contention. The applicant had no right to be excused, still less to dictate that, if he did not get his way, he would so misbehave as to cause difficulties.[48] What he did, he did advisedly, well understanding the potential consequences of his behaviour. In those circumstances, it is not unfair that he should have to live with such if any consequences as it may have entailed.

115 In case it matters, however, we are not persuaded that there were any consequences. Immediately upon the applicant leaving the court, the judge gave the jury a direction specifically warning them against attributing any significance to his departure. It was as follows:

Ladies and gentlemen, don't use Mr Sonnet's behaviour as a means of assessing him or determining this issue. You apply the evidence. All right?

I would much have preferred that he stayed in court but I don't think we would have got through this unfortunately. Unfortunately, he is no longer represented. He terminated his representation this morning. That's why there is no one here for the defence, which is why I particularly wanted him to remain, as you can imagine. It would be preferable if there were someone here, but that doesn't prevent this case going on. The most important thing is that all of the evidence is in, all of the addresses are in and all I am about to do now is summarise. So all of those things that have happened this morning just have no relevance to it. Just behave as though Mr Sonnet is here and he is still represented. If he's not represented, one of the things is I will ensure that what occurs in respect of him is fair - that's my role, despite his view of it.

There is no reason to suppose that the jury failed to heed that direction.

Ground 25: Warning concerning Thorneycroft's evidence

116 The judge gave the jury a comprehensive warning about the risks of acting on Thorneycroft's' evidence. Under Ground 25, it was contended nonetheless that the warning was insufficient, in that it did not include a direction in terms that the jury's inability to see and assess Thorneycroft in person made his evidence dangerous to act upon, and because the judge 'ameliorated' the strength of the warning which she did give by her observation that Thorneycroft's absence from the witness box was also productive of difficulty for the Crown.

117 We do not think there is any substance in either of those criticisms. As to the first, the judge made plain that the jury were at a disadvantage in the assessment of Thorneycroft's evidence by reason of his absence from the witness box. Her Honour specifically directed the jury as to the existence and effect of that disadvantage, as follows:

Here we have what I describe as a relatively unusual situation in respect of the evidence of a witness. The law permits a witness who has given evidence and been cross-examined at a preliminary hearing, which, as you have now all heard, is referred to as a committal proceeding, to have that evidence read aloud or played to the jury if certain things have occurred, certain things which prevent them from being able to give evidence in person. In this case the witness Michael Thorneycroft has died and, accordingly, is unable to give his evidence before you. The readback of his statements was videotaped and that has been played to you. Equally, the cross-examination of the committal proceedings was video-recorded and that was played to you. However, most unfortunately, the image of Michael Thorneycroft was not recorded and you have only been able to listen to his answers. Now, I say unfortunately because I have just been telling you about what use you can make of demeanour, how a person looks as they are giving their evidence and you do not have that opportunity here. You are not able to see him because it was unfortunately not recorded at the time, but you do at least still have the chance to hear him and you can try and listen to his voice and the manner in which he answers to try and make that assessment. Often in relation to these matters there are no video recordings at all so it is just read aloud by the prosecutor, which really gives you no indication of the witness at all. So we are fortunate to have it recorded in part, but unfortunate that it also does not contain the video image.

I said to you earlier, and I will say it again, the defence are at a disadvantage in this case in relation to this evidence, the evidence of Thorneycroft, as they have not been able to put to Mr Thorneycroft any other matters that they may dispute in relation to his evidence. So you, therefore, do not know what his responses would have been. The committal proceeding is a preliminary hearing; the issues are not always the same that are raised there as are raised at trial because it is a testing of the witness to see whether there is sufficient evidence for the person to go on trial. It is a different process. So here Mr Desmond has been limited in what he could put because he cannot put anything to the witness that has not been put at the committal. That is the only puttage that there was. He has mentioned to you a number of matters that he would have put to Mr Thorneycroft during this trial. You should note those matters and you should attach what worth you think they merit, remembering the disadvantage the defence may suffer as a result of the absence of Michael Thorneycroft. But you are still, as I have indicated because it has been permitted, entitled to look at his evidence and assess it in the same way as you would other witnesses. But just keep in mind that certain things were not able to be put.

118 Contrary to the applicant's submission, it was not dangerous for the jury to act on Thorneycroft's evidence merely because it was not given from the witness box, and the judge was not required to direct the jury that it would be dangerous to act on Thorneycroft's evidence merely for that reason. Furthermore, the judge later directed the jury, correctly, that because Thorneycroft was an accomplice, it would be dangerous to act on his evidence in the absence of corroboration and identified for the jury the evidence which was capable of amounting to corroboration of Thorneycroft's testimony. In the circumstances, we are unable to see that it would have added anything to the degree of caution with which the jury approached Thorneycroft's evidence to have been told that it was also dangerous to act upon it because it was recorded. In reality, the jury were left in no doubt that they were at a disadvantage in assessing Thorneycroft's evidence because he was not in court to give his evidence and that it was dangerous to act upon it because he was an accomplice.

119 As to the second criticism, the judge continued, immediately after the directions extracted above, with the following observation:

I should say, equally, the Crown were not able to ask for clarification of anything either so, to a degree, there is a problem for the Crown, but it is really a more significant problem for the defence.

120 Contrary to the applicant's submission, that remark did not detract from the strength of the warning previously given. Relevantly, it amplified the warning, and thus the degree of care with which the jury were likely to approach Thorneycroft's evidence. It was an accurate and appropriate observation by way of guidance for the jury.

121 Counsel for the applicant advanced a further submission in oral argument, that the judge erred in the formulation of the accomplice warning she gave concerning Thorneycroft's evidence by suggesting that, if the jury found that Thorneycroft's evidence was corroborated, they were entitled to treat his evidence like that of any other witness. Counsel relied in support of that proposition on the observation of Buchanan JA in R v Parsons and Stocker,[49] that:

If a trial judge were to suggest to a jury that, once corroboration is found, the jury might treat the evidence of an accomplice in the same way as they would treat the evidence of any other witness, the jury would be misdirected. An accomplice remains a person with a potential motive to lie. He is not an independent witness free of interest in the outcome of the case.

122 We do not accept the submission. Of course, it would have been an error to suggest that the existence of corroboration allows a jury to ignore that an accomplice is not disinterested and so treat the evidence of an accomplice as if it were given by witness who is not an accomplice. But that is not what happened in this case.

[Thorneycroft] received a reduced sentence for that promise [to give evidence for the Crown] and he acknowledged that he could be re-sentenced by the Court of Appeal if he failed to live up to that promise. In other words, his sentence could be increased by the Court of Appeal if he did not give evidence against the accused man and the others in accord with his statement. That puts his evidence into a special category, that of an accomplice.

124 After that, her Honour went on to explain the nature of an accomplice, and continued:

It is the experience of the law that the evidence of accomplices is frequently unreliable and that is because accomplices seek to justify themselves and justify their own conduct. In doing so, they often seek to shift the blame wholly or partly on to others. In the process they can construct untruthful stories which tend to exculpate the guilty and implicate the innocent. As a result of that being the experience of the law, there has been developed a rule of law which applies to this case. You should consider it dangerous to convict an accused upon the uncorroborated evidence of an accomplice...

125 Finally, her Honour outlined the notion of corroboration, and identified the evidence which was capable of amounting to corroboration, and then concluded with the admonition that:

Where you find that the evidence of an accomplice is corroborated by that of other independent evidence, no particular problem arises. You would then consider the accomplice's evidence in the same way and scrutinise it in the same way as you would any other evidence in the case. But when you are doing that, you should keep in mind that the witness, being an accomplice, may be unreliable and may have a motive or reasons to be untruthful.[50]

126 Arguably, that last section of that direction could have been more felicitously expressed, in order to remove any possible suggestion that an accomplice's evidence is to be equated to the evidence of a witness who is not an accomplice. But as it stands, it tracks the model charge[51] very closely and it does make plain that, even where the evidence of an accomplice is corroborated, the jury must bear in mind that as an accomplice a witness may be unreliable and may have a motive or reasons to be untruthful.

127 We do not think there to be a realistic possibility of the jury having approached the assessment of Thorneycroft's evidence otherwise than upon the basis that he might well have been unreliable with motive or reasons to lie.

129 For the reasons earlier given, we consider that the Crown's failure to provide the applicant with the transcript of the Wallace interview at the time of the committal hearing meant that Thorneycroft's statement should have been excluded from evidence as a matter of fairness. Its importance to the Crown case was such that, by reason of the judge's failure to exclude it from evidence, the applicant was deprived of a realistic chance of acquittal. It follows that the conviction sustained below should be set aside.

130 Counsel for the applicant submitted that, given Thorneycroft's statement would have to be excluded from evidence at any re-trial, a judgment and verdict of acquittal should be entered. We reject that contention. Despite the importance of Thorneycroft's statement to the Crown case, we consider that there was sufficient evidence apart from the statement to sustain a conviction. We will order accordingly that a new trial be had.

[1] [2007] VSC 287.

[3] Williams later pleaded guilty, as has been noted.

[5] [1986] HCA 39; (1986) 66 ALR 239, 245-246; see also R v George (1987) 9 NSWLR 527, 536.

[6] R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546, 553-4; R v Watson; Ex parte Armstrong [1976] HCA 39; (1976) 136 CLR 248, 262; Re Lusink; Ex parte Shaw (1980) 55 ALJR 12, 14; 32 ALR 47, 50-1.

[7] Livesey v Bar Association of New South Wales [1983] HCA 17; (1983) 151 CLR 288, 294; Klewer v Dutch [2000] FCA 509; (2000) 99 FCR 217.

[8] [2003] NSWCCA 367, [38].

[9] With whom Dunford and Hidden JJ agreed.

[10] Ibid [38]-[40]; see also MJD v R [2006] NSWCCA 151, [34]-[36]; Dionisis Papadopoulos v R [2010] SASCFC 30, [20].

[11] R v George (1987) 9 NSWLR 527, 536 (Street CJ); S & M Motor Repairs Pty Ltd v Caltex Oil (Australia) Pty Ltd (1988) 12 NSWLR 358, 380-381 (Priestley and Clarke JJA); Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488, 493 [13] (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ) and 517 [80] (Callinan J), cf 508 [53] (Kirby J); McCreed v R [2003] WASCA 275; (2003) 27 WAR 554, [10].

[12] [2003] NSWCCA 367.

[13] [2007] VSC 583.

[14] [1997] 2 NZLR 169, 175 [30].

[15] See R v L [1994] 2 NZLR 54, 59.

[16] (1996) 86 A Crim R 438, 454.

[17] Which is relevantly identical to s 55AB of the Evidence Act 1958.

[18] [2010] VSCA 211, [17].

[20] Rex v Radbourne [1730] EngR 84; (1787) 1 Leach 457; Reg v Hall [1973] 1 QB 496, 502-14 (CA); Reg v Thompson [1982] 1 QB 647, 656-7, 659 (CA).

[21] Cazenove v Vaughan (1813) 1 M & S 6, whether or not the opportunity was availed of: Reg v Hendy (1850) 4 Cox CC 243; Rex v Black (1909) 74 JP 71.

[22] Coy v Iowa [1988] USSC 154; 487 US 1012, 1015 (1988); Crawford v Washington [2004] USSC 59; 124 SCT 1354, 1359 (2004); R v Davis [2008] 1 AC 1128; David Lusty, Anonymous Accusers; An Historical & Comparative Analysis of Secret Witnesses in Criminal Trials.

[23] Duke of Dorset v Girdler (1720) Prec Ch 531-532, 24 ER 238.

[24] [2008] 1 AC 1128, 1138 [5]; K-Generation v Liquor Licensing Court [2009] HCA 4; (2009) 237 CLR 501, 574 [254].

[25] Wigmore s1377, R v Downey [1900] VicLawRp 107; (1900) 25 VLR 582, 589-590; R v Thrower [1934] VicLawRp 59; [1934] VLR 292, 294.

[26] R v Mitchell (1892) 17 Cox CC 503; R v Horan [1951] VicLawRp 32; [1951] VLR 249, 251; Wigmore s 1371.

[29] Savage v Blanchard 20 Rich 167, 172.

[30] Lawless v The Queen [1979] HCA 49; (1979) 142 CLR 659, 674, 678; Clarkson v DPP [1990] VicRp 65; [1990] VR 745, 755; R v Brown [1997] UKHL 33; [1998] AC 367, 377; R v Garofalo [1999] 2 VR 625, 632 [57] et seq; Grey v R [2001] HCA 65; [2001] 75 ALJR 1708; Mallard v The Queen [2005] HCA 68; [2005] 224 CLR 125, 133 [17].

[31] Chappell and Co Ltd v Associated Radio Co of Australia Ltd [1925] VicLawRp 46; [1925] VLR 350, 361; Deputy Commissioner of Taxation v Clark [2003] NSWCA 91; (2003) 57 NSWLR 113, 148 [18]; Pearce & Geddes, Statutory Interpretation in Australia 6th ed, [4.9].

[32] A number of the authorities are analysed in Deputy Commissioner of Taxation v Clark [2003] NSWCA 91; (2003) 57 NSWLR 113, 145 [138]-[144] (Spigelman CJ).

[33] Babaniaris v Lutony Fashions Pty Ltd [1987] HCA 19; (1987) 163 CLR 1, 23.

[34] (1987) 32 A Crim R 330.

[35] Which was relevantly identical to s 55AB of the Evidence Act 1958 (Vic).

[36] (1987) 32 A Crim R 330, 338.

[37] [2001] HCA 65; (2001) 184 ALR 593.

[39] [2007] VSC 583.

[40] Our emphasis denotes the passage which defence counsel submitted was a prior inconsistent statement.

[42] TS means Thorneycroft's statement.

[43] Magistrates' Court (Committals) Rules 1999, r 801 and Form 8A.

[44] Cf The Queen v Johns [1979] HCA 33; (1979) 141 CLR 409, 415.

[46] R v Abrahams [1895] VicLawRp 73; (1895) 21 VLR 343, 347_; R v Vernell_ [1953] VicLawRp 79; [1953] VLR 590, 596; Reg v Jones (No 2) [1972] 1 WLR 887, 891; Eastman v The Queen (1997) 76 FCR 9, 43-4.

[47] R v Black [2007] VSCA 61; (2007) 15 VR 551.

[48] See the cases cited above in n 46; R v Jones [2002] EWCA Crim 2949; [2003] 1 AC 1, 10-13 [6]-[13]; R v Pomfrett [2010] 1 WLR 2567, 2571.

[49] [2004] VSCA 92; (2004) 145 A Crim R 519, 523 [34].

[51] 'Judge Kelly's Charge Book' (which has been used countless times in this state to direct juries as to the way in which to approach the assessment of an accomplice's evidence).