Thi Quyen Le v The Queen [2016] VSCA 100

Mr M Pedley, Solicitor for Public Prosecutions (Cth)

1 Following a jury trial, the applicant was found guilty on one charge of conspiracy to import a commercial quantity of a border controlled drug, namely heroin, contrary to ss 11.5(1) and 307.(1) of the Criminal Code 1995 (Cth) (the 'Code').

2 The applicant now seeks leave to appeal against her conviction. Originally the appeal was founded on three separate grounds which raised the common complaint that the trial judge failed to instruct the jury that the fault element for the offence required an intention to import a commercial quantity of heroin and, in fact, directed the jury that it was not necessary for the prosecution to establish that the applicant intended that the quantity of the drug to be imported was a commercial quantity. At the oral hearing of the appeal, these grounds, though not abandoned, were for good reason not pressed. For the reasons that follow, the fault element which the prosecution must establish does not include an intention as to the quantity of the drug to be imported.

3 At the hearing of the appeal, counsel for the applicant sought leave, which was granted, to rely on an additional, fourth ground. The complaint related to the failure of the trial judge to give an Azzopardi direction in relation to the accused's failure to give evidence at trial. The trial judge had asked counsel for the accused at trial whether such a direction was requested. Counsel intimated that he did not require such a direction. As appears from the reasons to follow, there was an apparent forensic advantage to be gained if an Azzopardi direction was not given, and accordingly its absence did not give rise to the risk of a substantial miscarriage of justice. As this ground also fails leave to appeal must be refused.

4 Between 16 August 2012 and 20 March 2013, a Melbourne based group of Vietnamese-Australians conspired to import heroin into Australia from Vietnam, on an ongoing basis, as and when the heroin was available, and as and when it was required in Melbourne. The principals of the conspiracy were said to be Suky Lieu and Anh Lanh Vo. There was also an associate of Lieu, Van Thi Hong Nguyen, who had family contacts in Vietnam and was able to source the supply of the heroin for Lieu and Vo.

5 By the time the conspiracy was on foot, Lieu had already been significantly involved in domestic drug trafficking for some time. The conspiracy had developed after he and Vo agreed that, in return for payment by Lieu, Vo would assist Lieu to import heroin on an ongoing basis by providing Lieu with access to her existing network of drug couriers, who would be able to travel to Vietnam and return to Australia with concealed quantities of heroin.

6 The Crown case was that the applicant was a close and trusted associate of Vo, and that she had joined the conspiracy by about November 2012 at a time when Vo recruited a man named Truong, to act as a drug courier. The Crown alleged that the applicant's role in the conspiracy was to act as one of Vo's 'courier managers'.

7 The position of the applicant at trial was that she did not engage in acts in furtherance of the conspiracy alleged by the Crown, and that she was unaware of an agreement or plan to import a commercial quantity of heroin from Vietnam to Australia. In his closing address, counsel for the applicant conceded that while the applicant may have been involved in some sort of conspiracy, she was not part of the larger conspiracy alleged by the Crown:

What I say is that the Crown's theory, just short of evidence that puts [the applicant] in the bigger conspiracy that you heard evidence about in this case, the one that's alleged against Vo, Lieu and Nguyen.

What I say to you is that at best, it can be said that [the applicant] is something like a subcontractor, if we can put it in contractual terms, to a much larger scheme of which she is now aware of its full scope and range. She simply acts at the direction of Vo to do smaller chores within a larger scheme, so it's much like a subcontractor is asked to do things, perhaps on a building site, not knowing the whole range of the project but is asked to do limited work on the project.

Counsel for the applicant submitted to the jury that even if they believed that the applicant was guilty of a lesser crime, that they needed to acquit her of the 'greater crime'. Counsel submitted that the circumstantial evidence as presented by the Crown, could be explained by theories consistent with innocence, and for that reason that the jury should hold a reasonable doubt as to the elements of the offence being met.

8 Prior to the empanelment of the jury an issue arose as to whether the prosecution was required to prove that the accused intended to import a commercial quantity of the relevant drug. His Honour ruled as follows:

A dispute has arisen between the parties about the elements of the charged offence, conspiracy to commit an offence of importing a commercial quantity of a border controlled drug and accordingly I have been asked to rule on this issue.

The prosecutor and Mr Gumbleton, appearing on behalf of the accused, Nguyen, have prepared documents setting out their respective positions on the elements of this offence.

In addition the prosecutor and Mr Gumbleton have filed detailed written submissions on this issue. Mr Anger, who appears on behalf of Quyen Le, has adopted the submissions made by Mr Gumbleton.

As the parties have provided such detailed written material together with oral submissions and many relevant authorities I do not intend to repeat all the arguments put rather, I shall rule on this matter now and provide brief reasons thereby enabling the proceeding to continue as expeditiously as possible. I do, however, in respect of this and all other rulings, reserve the right to provide further reasons at a later date.

I accept the prosecution statement of the elements of the offence contained in Exhibit 1, Elements Of The Offence Of Conspiracy, and in the prosecutor's oral submissions. I make this ruling for these reasons.

1. The prosecution submission is consistent with the relevant provisions of the Code, in particular 11.5(1); 11.5(7A); dictionary definition of 'special liability'; 307.1(1) and 307.1(3).

2. The prosecution submission is, in my opinion, supported by the following authorities: R v LK and R v RK, (2010) 266 ALR 399 (see paragraph 117); Franze v R [2014] VSCA 352; Luong v The DPP [2013] VSCA 296; Papadimitrou v R (2011) 214 A Crim R 50; Quaid v R [2011] WASCA 141; (2011) 210 A Crim R 374; R v Standen 2011 NSWSC 1038 (see also written directions to jury on elements of offence provided by James J).

3. In respect of the principal issue in dispute, that is whether the prosecution is required to prove intention as to quantity, I rule that it is not an element of the offence of conspiracy to import a commercial quantity of a border controlled drug that the prosecution prove that any of the accused knew or intended to import a commercial quantity of a border controlled drug. I do not accept the defence submission that the absolute liability provision can only apply where the border controlled substance is in fact a commercial quantity.

When pressed on this submission, Mr Gumbleton, in my opinion appropriately, accepted that this proposition was not expressly stated in the Code or relevant authorities. He stated that I was being asked to adopt, '...a novel approach' (transcript 191).

The defence submissions are, in my opinion, contrary to the express terms of the Code, particularly 11.5(7A), and are contrary to the numerous authorities to which I have referred.

I therefore rule the prosecution have accurately stated the requisite elements of the offence in Exhibit 1 and in the prosecutor's oral submission.[1]

9 The judge, in conformity with that ruling directed the jury that they must be satisfied beyond reasonable doubt of the following elements:

(1) the accused made an agreement with at least one other person to commit the offence of importation of a commercial amount of a border controlled drug;

(2) at the time the agreement was made the accused meant to enter into the agreement;

(3) when the parties made the agreement they intended that the offence of importation of a border controlled drug would be committed: this does not require proof of intention of the quantity;

(4) the accused or one other party committed an overt act pursuant to the agreement.

10 The third element is the element which founds the complaint of the applicant.

11 The original three grounds of appeal, as drafted, were:

Ground 1: The learned trial [judge] erred in law in his directions to the jury in that he erred in his formulation of the offence of conspiracy by failing to direct the jury explicitly that it was necessary for the prosecution to prove beyond reasonable doubt that the accused entered into an agreement to import a border-controlled drug, aware that the agreement related to a commercial quantity of such a drug.

Ground 2: The learned trial judge erred in law in failing to direct the jury that inherent in the entering into a conspiratorial agreement in respect of the importation of a commercial amount of a border controlled drug is knowledge or understanding on the prat of a conspirator that the amount involved is a commercial quantity.

Ground 3: The learned trial judge erred in law by failing to direct the jury that a component of the required intention for the applicant was that she intended that the offence the subject of the conspiracy namely the importation of a commercial amount of heroin, would be committed pursuant to the agreement.

12 These grounds can be briefly dealt with together.

13 The applicant was charged with the statutory offence of conspiracy pursuant to s 11.5 of the Code. While the words 'conspires' and 'conspiracy' used in s 11.5 are to be construed in accordance with the established meaning of the established meaning of those concepts at common law, s 11.5(7A) expressly modifies the common law in respect of what must be established in order to prove the element of intention for the Code offence of conspiracy. Section 11.5(7A) provides that any special liability provisions that apply to an offence, also applies to the offence of conspiracy to commit that offence.

14 For the offence of importing a commercial quantity of a border controlled drug, contrary to s 307.1(1), s 307(3) provides that 'absolute liability applies' to the physical element of the circumstances stipulated in s 307.1(1)(c). That is, that the quantity of the border controlled drug imported is a commercial quantity.

15 The Dictionary section in the Code, defines a 'special liability provision' to mean, inter alia,

(a) a provision that provides that absolute liability applies to one or more (but not all) of the physical elements of an offence ...

16 With respect to absolute liability, s 6.2 of the Code relevantly provides

...

(2) If a law that creates an offence provides that absolute liability applies to a particular physical element of the offence:

(a) there are no fault elements for that physical element; and

(b) the defence of mistake of fact under section 9.2 is unavailable in relation to that physical element.

17 There is no authority which directly addresses the question raised. There is however a line of authority which deals with proof of physical elements that are subject of a special liability provision under the Code.

18 In R v LK; R v RK,[2] the High Court considered the proper interpretation of s 11.5 and the elements of the Code offence of conspiracy. The decision confirms that the offence of conspiracy has a single physical element of conduct, that is, conspiring with another person to commit a non-trivial offence and a default fault element of intention in respect of that physical element.[3] With respect to proof of the requisite agreement and accompanying intention, the joint reasons state:

The offence of conspiracy under the Code is confined to agreements that an offence be committed. A person who conspires with another to commit an offence is guilty of conspiring to commit that offence. It was incumbent on the prosecution to prove that LK and RK intentionally entered an agreement to commit the offence that it averred was the subject of the conspiracy. This required proof that each meant to enter into an agreement to commit that offence. As a matter of ordinary English it may be thought that a person does not agree to commit an offence without knowledge of, or belief in, the existence of the facts that make the conduct that is the subject of the agreement an offence (as distinct from having knowledge of, or belief in, the legal characterisation of the conduct). This is consistent with authority with respect to liability for the offence of conspiracy under the common law. Subject to one reservation, it is how the fault element of the offence created in s 11.5(1) operates. The reservation concerns the application of s 11.5(2)(b). As these reasons will show, this provision informs the meaning of 'conspires' in sub-s (1) by making clear that at least one other party to the agreement must have intended that an offence be committed pursuant to the agreement. It also speaks to proof of the accused's intention. The reservation arises because s 11.5(2)(b) is subject to s 11.5(7A), which applies any special liability provisions of the substantive offence to the offence of conspiring to commit that offence. A special liability provision includes a provision that absolute liability applies to one or more (but not all) of the physical elements of an offence. Proof of the intention to commit an offence does not require proof of knowledge of, or belief in, a matter that is the subject of a special liability provision.[4]

19 In Papadimitriou v The Queen,[5] the Western Australian Court of Appeal considered the adequacy of directions given by the trial judge for an offence of conspiracy to traffic a commercial quantity of a controlled drug (MDMA), contrary to ss 302.2(1) and 11.5(1) of the Code. Buss JA, with whom Hall J agreed, identified the relevant elements as follows:

It was necessary for the Crown to prove that Mr Papadimitriou and one or more of the other alleged conspirators meant to enter into the agreement to commit the offence of trafficking in MDMA.

Subject to one qualification, this necessarily involved proof that Mr Papadimitriou had knowledge of, or belief in, the existence of the facts that made the conduct the subject of the agreement an offence (as distinct from having knowledge of, or belief in, the legal characterisation of the conduct).

The facts that made the conduct the subject of the agreement an offence were:

(a) taking possession of MDMA; and

(b) preparing the MDMA for supply with the intention of selling any of it or believing that another person intended to sell any of it.

It was necessary for the Crown to prove that Mr Papadimitriou had knowledge of, or belief in, the existence of these facts; that is, relevantly, the Crown had to prove that Mr Papadimitriou knew or believed that one or more of the conspirators would take possession of MDMA and that the MDMA would be converted into ecstasy tablets with the intention of selling at least some of the tablets.

The qualification to which I have referred is that it was not necessary for the Crown to prove that Mr Papadimitriou knew or believed that the quantity of MDMA to be trafficked would be a commercial quantity (as defined in s 300.2 of the Code). See s 302.2(1)(c) of the Code read with s 302.2(3), the definition of 'special liability provision' in the Dictionary, s 11.5(2A) and s 11.5(7A). See also LK [117].[6]

20 Franze v The Queen,[7] concerned an offence of joint attempted possession of a commercial quantity of an unlawfully imported border controlled drug. The prosecution relied upon the attempt and joint commission provisions of the Code in ss 11.1 and 11.2A.[8] The Court (Maxwell P, Neave and Weinberg JJA) held that because of the special liability provisions, it was not necessary for the Crown to prove the applicant's intention to possess a commercial quantity of the drug involved. In so concluding, the Court specifically rejected the applicant's assertion that where the prosecution relied upon joint commission to establish criminal liability, it was necessary to prove that the applicant had entered into an agreement to possess the relevant drugs in at least commercial quantities.

21 The text of the Code is unambiguous. Proof as to the quantity of the drug to be imported is dealt with under the special liability provisions of the Code as a matter of absolute liability. The Crown is not required to prove the fault element as to the quantity of the drug to be imported. The trial judge was correct to rule as he did. There was no error in the trial judge's directions.

22 We would therefore refuse leave on grounds 1 to 3.

23 Under this additional ground, the applicant submits that a substantial miscarriage of justice occurred as a result of the jury being given no Azzopardi direction as to the fact that the applicant did not give evidence in the trial.

24 There was direct evidence given by one Truong, a co-offender of the applicant, who was a courier who said that he had met the applicant and Ms Vo in Vietnam. The prosecution evidence was otherwise circumstantial. The Crown relied on voluminous telephone intercepts, in which the applicant and her co-conspirators allegedly talked in code about drugs; telephone records which connected the applicant to co-conspirators in Vietnam and Australia; and the fact that the applicant was at the airport on the day that one of the couriers was intercepted.

25 The Crown also relied upon post offence conduct under pt 6 of the Jury Directions Act 2013 ('JDA'), namely lies told by the applicant in her record of interview which was tendered as evidence, and relied on by the Crown as lies evidencing consciousness of guilt. The lies relied upon by the Crown included her claim that she was at the airport on the particular date just to 'go out' and 'walk around', that she 'didn't really know' Ms Vo very well, despite telephone intercepts of multiple conversations between them and that she gave Ms Vo a ride to the airport because Ms Vo also wanted to go to the airport that day. The Crown submitted that these lies were 'implausible explanations' and were told with the purpose of distancing herself from the conspiracy.

26 The applicant did not give evidence at trial. By way of oral submission, counsel for the applicant at trial submitted that while she may have told some lies, there were reasonable hypotheses consistent with innocence that could explain such lies and the circumstantial evidence upon which the prosecution relied.

27 The provisions under pt 3 of the JDA, place immediate responsibility upon counsel for the parties to ensure that the jury are given all directions that are necessary to deal with the issues in the case. The provisions are also designed to assist the trial judge in determining the appropriate jury directions to be given,[9] and to ensure that counsel give the trial judge sufficient assistance in determining what directions should be given.[10]

28 Section 11 of the JDA provides that both the prosecution and defence counsel are required to request that the trial judge give, or not give, jury directions in relation to the matters in issue or the evidence in the trial relevant to a matter in issue. Section 13 provides that a trial judge need not give a direction that relates to matters not in issue, or directions that are not requested. Section 15 operates as an exception to s 13, in that even if counsel state that a particular direction is not required, a trial judge is obliged to give any direction that may be necessary to 'avoid a substantial miscarriage of justice.'[11]

29 As we have said, defence counsel, when asked if he would like 'an Azzopardi direction about the failure of the accused to give evidence' replied that he did not ask for such a direction. Although no exception was taken to the judge's charge, it is now said on appeal that the trial judge should have appreciated that an Azzopardi direction was necessary to avoid a substantial miscarriage of justice, and was therefore obliged by virtue of s 15 of the JDA to have given such a direction.

30 The rationale for the giving of an Azzopardi direction is to ensure that an adverse inference is not drawn against an accused in a criminal trial because they exercise their right not to give evidence. In Azzopardi v The Queen,[12] Gaudron, Gummow, Kirby and Hayne JJ,[13] stated that in an accusatorial trial, an accused is not required to explain or contradict matters which are already the subject of evidence at trial. These matters must be assessed by the jury against the requisite standard of proof, without regard to the fact that the accused did not give evidence. They said:

[i]t follows that if an accused does not give evidence at trial it will almost always be desirable for the judge to warn the jury that the accused's silence in court is not evidence against the accused, does not constitute an admission by the accused, may not be used to fill gaps in the evidence tendered by the prosecution, and may not be used as a makeweight in assessing whether the prosecution has proved its case beyond reasonable doubt. It by no means follows, however, that the judge should go on to comment on the way in which the jury might use the fact that the accused did not give evidence.

31 The danger that an Azzopardi direction is designed to address is plain enough, but as was conceded by senior counsel who appeared for the applicant on the appeal, if there is a forensic advantage to be gained by the applicant in not giving the direction, the trial judge will not be obliged to give the direction. The applicant submits that there was no forensic advantage in not giving the direction, and therefore, its absence has led to a substantial miscarriage of justice.

32 We are not presently concerned with particularising what counsel actually thought was the forensic disadvantage, if the direction were given, but rather, with discerning whether objectively there was or was not a forensic advantage in pursuing the path taken by trial counsel.[14] If objectively, this Court can discern some form of forensic advantage, then it will be assumed that it is that advantage which motivated counsel. As this court said in Knowles (a pseudonym) v The Queen,[15] discussing the decision of the High Court in TKWJ v R:[16]

TKWJ reinforced earlier decisions which had emphasised that where it is contended on appeal that a trial went wrong because of counsel's 'flagrant incompetence', what must be investigated is whether the process failed so as to result in a miscarriage of justice; rather than upon why - that is, the alleged incompetence of counsel - the process failed. But the importance of TKWJ is that it was stated or agreed in by four of their Honours, with more or less emphasis, that in determining whether the process failed, the subjective reason why counsel took the course complained of - it might be not seeking a particular direction**,** or making a particular submission, or not adducing particular evidence - was ordinarily irrelevant. The question whether the process failed, in the kind of case now under discussion, was to be resolved by deciding whether the course taken, objectively ascertained, was capable of explanation as having been taken for the purpose of obtaining a forensic advantage **(**although the fact that a forensic advantage might be objectively perceived did not necessarily mean that there had been no miscarriage of justice). Framing the enquiry that way gave due recognition to the fact that counsel will likely make many forensic decisions in the course of a trial, and an accused is ordinarily bound by the way in which his or her counsel conducted the trial.[17]

Was there a forensic advantage to be gained from no Azzopardi direction?

33 The applicant submits that this case was an 'extreme' example of a case where an accused had not given evidence and the particular features of the evidence meant that an Azzopardi direction was essential. As the submissions of both parties focussed so heavily upon whether there could be competing innocent hypotheses for the circumstantial evidence relied upon by the prosecution, there was, it is said, a high risk of an adverse inference being drawn against the applicant because she did not give evidence. This risk was increased because of the 'demonstrable' lies told by the applicant in her record of interview and her failure to provide evidence of an innocent explanation for those lies. The applicant submits that the absence of explanations by her must have been at the forefront of the jury's mind. An Azzopardi direction was here not merely 'desirable', but essential to ensure the jury did not engage in impermissible reasoning from the failure of the accused to give evidence.

34 The applicant relied on Johnston v The Queen.[18] In that case defence counsel had told the jury that he anticipated an Azzopardi direction as to the accused's right to silence. By an oversight the trial judge did not give that direction. McLellan CJ at CL said:

The appellant submitted that the need for a direction in the present case was heightened by the fact that the prosecution asserted that the appellant had lied in his ERISP. The trial judge addressed this matter in his directions and reminded the jury that the Crown asserted that the alleged lie 'was told because Mr Johnston knew the truth of the matter about which he lied would implicate him in the offence, or to put it another way, because he was afraid of the truth.'

By putting the matter in this way his Honour raised for the jury's consideration whether the appellant's failure to give evidence meant that he was not able to rebut the Crown's submission. Given this, although I would otherwise be of the view that an Azzopardi direction should have been given the need for it became undoubted. The failure to give the direction had the consequence that the appellant lost the chance of an acquittal.[19]

35 There are a number of matters which distinguish Johnson from the present case. First, the provisions of the JDA, as outlined above, did not apply. As the Crown submits, the need for an Azzopardi direction must be considered in light of the significant changes to the law brought about by the JDA. Second, in Johnson, counsel had wanted an Azzopardi direction. The situation here is quite different as counsel expressly stated that he did not ask for an Azzopardi direction.

36 Further, the fact that the prosecution relies upon consciousness of guilt reasoning from lies told by the applicant, does not necessarily give rise to a need to give an Azzopardi direction. Each case will turn on its own facts. We consider it undesirable to attempt to identify any circumstances in which an Azzopardi direction must be given. Whether there is a need for an Azzopardi direction, will be influenced by the way in which the Crown and defence case are framed.

37 If a forensic advantage in not seeking such a direction can objectively be discerned, a trial judge will not be obliged to give one, particularly where counsel specifically asks that it not be given.

38 The Crown submits that objectively viewed, there was a rational choice made by defence counsel at trial not to seek an Azzopardi direction. Seeking such a direction could have distracted the jury from the defence case which was that the prosecution had been unable to exclude the innocent explanation that the applicant was not party to a conspiracy of the breadth alleged. An Azzopardi direction it was said would have highlighted the applicant's failure to give evidence in support of that innocent explanation.

39 It needs to be recognised that the giving of an Azzopardi direction is not mandatory. While it 'will almost always be desirable' to give a warning to the jury that the accused's silence cannot be used against him, whether defence counsel requires it, and whether it is necessary to avoid a risk of a substantial miscarriage of justice will depend upon the circumstances of the case.

40 The reasoning in Azzopardi rests upon the fundamental proposition that as a criminal trial is an accusatorial process, in which the prosecution bears the onus of proving the guilt of the accused beyond reasonable doubt, the fact that an accused does not give evidence at trial cannot be used against him, is not an admission of guilt by conduct and cannot fill in any gaps in the prosecution case. The fact that the jury might be so instructed will not necessarily dispel defence counsel's misgivings that jurors, using their common sense, will consider it safer to act upon uncontradicted evidence, and will employ the logical process of reasoning identified by Mason CJ, Deane and Dawson JJ in Weissensteiner v The Queen that:[20]

the inferences to be drawn from the evidence may be more readily discounted in the absence of contradictory evidence from a party who might be expected to give or call it. In particular, in a criminal trial, hypotheses consistent with innocence may cease to be rational or reasonable in the absence of evidence to support them when that evidence, if it exists at all, must be within the knowledge of the accused.[21]

41 It appears that the risk of such reasoning led Jerrard JA (with whom Macpherson JA and Jones J agreed) in R v Surrey,[22] to state that whilst the law had not to date developed in this way, in an appropriately strong circumstantial case where there has been no explanation from the defendant put before a jury, it would be better if that point (a full Azzopardi direction) were not made by the trial judge to the jury. His Honour also concluded that the fact that trial judge did give a 'micro-Weissensteiner' direction, may have encouraged the jury to draw a conclusion which was in fact inevitable.[23]

42 Counsel may not wish anything to be said that could have the unintended but possible effect of alerting the jury to this logical process of reasoning. Whether that possible disadvantage outweighs the benefit that flows from the jury being told that they should not impermissibly use the accused's failure to give evidence, must be a matter for counsel, to be assessed in the individual circumstances of each case.

43 If the forensic benefit of not giving the direction is not discernible to the trial judge, then in order to comply with the requirements of s 15, it will be desirable to seek reasons from defence counsel why such a direction is not sought. This was not such a case. There was an obvious forensic disadvantage that could be discerned if the jury's attention was directed to the fact that the applicant had not given evidence. This was a circumstantial case where the focus of the defence was on the fact that there were innocent explanations for circumstantial facts and lies that the prosecution had been unable to exclude. Defence counsel could reasonably have concluded that there was a tactical advantage in not focussing any attention on the fact that the applicant had not proffered such explanations in evidence.

44 Where, as here, there is an objective and entirely rational explanation as to why counsel for the accused may have wished to avoid the giving of an Azzopardi direction, the applicant cannot now rely on s 15 of the JDA to complain that there has been a substantial miscarriage of justice.

45 For the foregoing reasons, the application for leave to appeal should be refused.

[1] DPP v Le (Unreported ruling, County Court of Victoria, Judge Coish, 17 April 2015) 291-292.

[2] (2010) 241 CLR 177.

[3] Ibid 234-5 [141] (Gummow, Hayne, Crennan, Keifel and Bell JJ).

[7] [2014] VSCA 352.

[9] Jury Directions Act 2013 (Vic) s 8(a).

[11] Xypolitos v The Queen (2014) 44 VR 423, 431 [37].

[15] [2015] VSCA 141 ('Knowles').

[16] [2002] HCA 46; (2002) 212 CLR 124.

[17] Knowles [2015] VSCA 141 [131].

[18] [2007] NSWCCA 133 ('Johnson').

[19] Ibid [16]-[17] (emphasis added).

[20] [1993] HCA 65; (1993) 178 CLR 217.

[22] [2005] QCA 4; [2005] 2 Qd R 81.