1 We have had the considerable advantage of reading in draft the reasons for judgment of Priest JA. We gratefully adopt his Honour's summary of the evidence given at the trial. We have, however, come to a different conclusion on the merits of the appeal. For reasons which follow, we would dismiss the appeal against conviction.

2 As Priest JA has noted, the prosecution case against the appellant was based solely on admissions he was alleged to have made - at different times and in different places - to eight different people. The sole ground of appeal turns on the following passage in the judge's charge, dealing with the evidence of admissions:

This evidence is permitted to be given and we sometimes call them 'admissions' because normally it is considered to be relatively unlikely that an innocent person would untruthfully implicate himself in a crime or make an untruthful admission of fact against his or her interest.

3 It was common ground on the appeal that this statement ought not to have been included as part of the charge. As the High Court said in Burns v The Queen:

[O]bservations of this kind, although they may explain the rational basis for the use of confessional evidence, do not provide any useful guide as to the manner in which such evidence may be used by a jury, and if repeated to a jury would be likely to mislead them.[1]

Error having been conceded, the appellant bore the ultimate burden in this Court of establishing that inclusion of the impugned statement in the charge was productive of a 'substantial miscarriage of justice'.[2] We are not persuaded that it was.

4 A misdirection of this kind may be - but is not necessarily - productive of a miscarriage of justice. Whether there has been a miscarriage is to be assessed by considering the misdirection in the context of the trial as a whole - including, in particular, the issues litigated in the trial - and the importance (or otherwise) of the misdirection in that context. No issue was raised in the appellant's trial about whether the admissions - if made - were true. The only matter put in issue concerning the admissions was the prior question of whether the Crown had proved that the appellant had made the admissions.[3]

5 As Maxwell P pointed out in James v The Queen, it is well established that the making of an informed decision by defence counsel about which issues to contest is itself an exercise of the right to a fair trial.[4] For that reason, appeal courts attach very great significance to such decisions in considering whether the course of a trial has occasioned a miscarriage of justice.

6 In the present case, the decision about how to deal with the evidence of admissions was an informed decision of just that kind. That is, there was a rational basis for the decision to concentrate solely on the question whether the admissions were made at all. The taking of that course is explicable on the basis that it was most likely to maximise the prospects of an acquittal.[5] It is readily apparent why defence counsel chose not to run an alternative argument to the effect that, if the admissions were made, they were not true. To have done so would have had obvious forensic disadvantages, not the least being the need to confront the improbability of the appellant having falsely made such similar statements (about having stabbed someone) to so many different people.

7 The misdirection therefore related to a matter which was not in issue in the trial. In the context of this trial, it occasioned no miscarriage of justice.

8 In Mule v The Queen,[6] the High Court held that a trial judge should not, when directing the jury as to how they might use various statements made by the accused to the police, differentiate between exculpatory assertions and those that were adverse to his interest. Relevantly, the trial judge had advised the jury that the exculpatory assertions were not supported by evidence of the accused on oath, and therefore did not have the same weight as the evidence that he had admitted ownership of the drugs.

9 The decision in Mule followed many years of uncertainty as to whether exculpatory assertions in a record of interview should be viewed as evidence of the truth of their contents. The position differed as between England and Australia. The traditional English view was that, in accordance with the hearsay rule, only those statements that were incriminating were capable of being acted upon by the jury. Australian cases generally took a more flexible approach.

10 The Court in Mule (Gleeson CJ, McHugh, Gummow, Hayne and Heydon JJ) commented that the trial judge had correctly told the jury that the whole of the recorded matter was available for their consideration, and that his Honour's direction accorded with both the accepted view of the law in this country and the current state of the law in the United Kingdom.[7] The fact that the trial judge had considered it appropriate to direct the jury that any exculpatory statements made by an accused did not have the same weight as admissions might, if viewed as a direction of law, have involved error. In the particular circumstances of the case, however, there was no reason to think that the jury would have been left with the impression that they were bound to accord less weight to the exculpatory statements than the admissions.[8]

11 The present case differs from Mule in that it does not concern any combination of exculpatory statements and admissions. Accordingly, there was no need for the trial judge to address the question of how to differentiate between such statements and admissions, even assuming that any such differentiation might have been warranted.

12 It is of assistance, nonetheless, to examine what may be regarded as carefully considered dicta in Mule. The Court cited with approval McLure J's endorsement, in the West Australian Court of Criminal Appeal,[9] of the comments of Thomas J in Cox.[10] Those comments were to the effect that it was 'undesirable that juries be given general a priori directions as to what sorts of evidence are likely to be true, or as to the weight which should be accorded to different parts of the one statement'.[11]

13 In the cited passage from Cox, Thomas J went on to say this:

There is, of course, no reason why the trial judge should not point out that such [exculpatory] statements have not been made on oath and (where appropriate) that they have not been tested by cross-examination. He may explain the traditional reasons why admissions against interest are commonly regarded as reliable evidence, and make any appropriate comments about particular parts of the evidence. The weight which may fairly be accorded to a self-serving statement varies so much from case to case that it is unwise to lay down any general disparaging directions concerning such statements, although of course, critical comments may be made in appropriate cases.[12]

14 The High Court in Mule gave qualified endorsement to this passage, as follows:

Apart from the words emphasised in that passage, it is a sound guide to jury direction. In view of the long-standing controversies about why admissions are received, and in view of the fact that an admission need not have been against interest at the time it was made, it is undesirable to direct juries along the lines suggested by the words emphasised.[13]

The appellant's alternative submission to this Court is that, in the present case, what the trial judge said in the paragraph in question amounted to an erroneous instruction of law. The paragraph contains some obvious hesitations, and some internal corrections. It is wrong to read it by overemphasising one fragment of it. It is necessary to read it as a whole and in context. If so read, it had conveyed to the jurors that, as a matter of law, they were bound to give less weight to some parts of what was said to the police than to others, then it would have been a misdirection. (Whether it would have involved a miscarriage of justice is another matter. In this case no jury, acting reasonably, could have failed to discriminate, in terms of weight, between the admissions as to the identity of the tablets and as to possession and the assertions as to purpose.) As the judge said in the same paragraph, as he told the jury at the commencement of the trial, and as he said again later in his summing-up, it was for the jury, and the jury alone, to decide what weight to give particular parts of the evidence. There is some internal inconsistency in the paragraph, but it is impossible to accept that the jury would have been left with the erroneous impression claimed by the appellant. This conclusion is reinforced by the consideration that experienced trial counsel made no complaint at the end of the summing-up.

In the circumstances of this case, it was appropriate for the trial judge to tell the jury that they were entitled to give less weight to the assertions of purpose than to the admissions of possession, and to explain why that was so. The summing-up, considered as a whole, made it sufficiently clear that ultimately, this was a question for the jury, and the jury alone.[14]

16 It is important to examine why the High Court in Mule considered it undesirable for a trial judge to 'explain the traditional reasons why admissions against interest are commonly regarded as reliable evidence'. In their Honours' view, giving such an explanation was undesirable because of the 'long-standing controversies about why admissions are received, and in view of the fact that an admission need not have been against interest at the time it was made'. The Court in Mule was concerned that - in the context of the particular case - such an explanation had the potential to engender confusion in the minds of the jury as to how to deal with a combination of exculpatory assertions and admissions, a matter that had long been viewed as troubling.

17 Of particular relevance to the present appeal is that the High Court stressed the importance of not over-emphasising one fragment of a trial judge's charge. 'It is necessary to read it as a whole and in context'.[15] If the judge's statement had conveyed to the jurors that, as a matter of law, they were bound to give less weight to some parts of what was said to the police than to others, it would have been a misdirection. But - and this is of pivotal importance - the Court went on to say that it was 'another matter' whether such a misdirection would have involved a miscarriage of justice. That was so because, in their Honours' view, 'no jury, acting reasonably, could have failed to discriminate, in terms of weight' between the exculpatory assertions and the admissions. The jury had been told repeatedly that it was for them, and them alone, to decide what weight to give particular parts of the evidence. Moreover, that conclusion was reinforced by the consideration that experienced trial counsel made no complaint at the end of the summing up.[16]

18 It follows from Mule that a misdirection may, or may not, amount to a miscarriage of justice. Whether a particular misdirection has that consequence is to be assessed taking into account the context in which it occurs. The whole of the charge must be considered, and it must be considered in the light of the manner in which the trial was conducted. Logically, even a finding that there had been a miscarriage of justice would not determine the outcome of an appeal. The statutory requirement in this State is that this Court be satisfied that the 'error' (assuming such error be found to have been committed) gave rise to a 'substantial miscarriage of justice'.[17]

19 The use of what was formerly known in this State as the 'proviso' in cases involving misdirection as to law was by no means uncommon.[18] Some misdirections are plainly so fundamental as to require the conclusion that there was a substantial miscarriage of justice. A failure to direct the jury adequately as to the onus of proof would, we think, fall into that description.

20 A misdirection of the kind that occurred in the present case does not fall into that category, however. It is not so fundamental that it could be said to go 'to the root of the proceedings'.[19] As we have said, it must be seen in context, and assessed against the background of the manner in which the trial itself was conducted.

21 In R v Rudd,[20] this Court was faced with a similar question to that raised by this appeal. There, the accused had been convicted on one count of reckless conduct endangering life. The Crown case was that he had discharged a shotgun through the front bedroom of a house while one of its occupants was present in the bedroom. At his trial, the prosecution was permitted to lead extracts of various telephone calls made by the accused to his wife from the Melbourne Remand Centre. The prosecution contended that, during the telephone conversations, the accused had made a series of express admissions, as well as what were described as 'implied admissions' consisting of false statements designed to be exculpatory. The defence wished to rely upon other passages, from the same and other telephone calls between the accused and his wife, which were said to be purely exculpatory. The trial judge ruled that the exculpatory passages were inadmissible.

22 On appeal it was held that, as a matter of fairness, most of the exculpatory passages relied upon by the defence should have been admitted under the 'mixed statement' exception to the hearsay rule. The trial judge had erred in refusing to admit them. Moreover, the trial judge had erred in failing to give an appropriate direction as to the use which the jury could make of those inculpatory passages which had been admitted.

23 As to those inculpatory passages, the trial judge in Rudd had directed the jury that 'such evidence [admissions by the accused about his involvement in the crime] is permitted [to be given] because it is thought unlikely that an innocent person would make untruthful admissions against his own interest'.[21] In dealing with the admissibility of a mixed statement containing inculpatory and exculpatory parts, Redlich JA (with whom Maxwell P and Vickery AJA agreed) said:

Ordinarily, a statement which is purely exculpatory or self-serving is not evidence of the truth of its contents and is not admissible. The clear exception is usually expressed as follows. A self-serving statement will be admissible where it forms part of a mixed statement made before the accused is charged, which contains both inculpatory and exculpatory passages. Hence, where one party puts in evidence a statement made by the other, the whole of the statement, including self-serving parts, becomes evidence of the truth of what was stated. The genesis of the exception is the essential notion of 'fair play'. The exception is identified in Cross as being that 'when an admission is read, everything ought to be read which is fairly connected with that admission'. Thus a statement of the accused placed in evidence by the Crown becomes evidence for the accused as well as against him. The accused is not confined to passages of his statement that qualify or explain the admissions upon which the Crown relies.[22]

It is for the jury to decide what weight they will attach to the exculpatory parts of the accused's statement and to consider the possibility that what was said may be true. They may give different weight to different parts of the statement. In Berry, I said:

[87] In the joint judgment in Mule a particular direction given in relation to the exculpatory portion of an accused's statement was considered. The High Court observed that any direction which conveys to the jury as a matter of law that they are bound to give less weight to some parts of what was said to police than to others would constitute a misdirection. The court stated that there would be no error of law if a trial judge directed the jury that they were entitled to give less weight to the appellant's exculpatory assertions than they were to his inculpatory admissions so long as it was made clear that it was for the jury to decide what weight should be given to particular statements.

[88] The joint judgment in Mule also drew a distinction between directions of law and the trial judge's right to make observations on the facts or comment upon such a matter. The court said:

An observation by the trial judge that the appellant's out of court assertions, although disclosed in evidence by the prosecution's tender of the video tape, were not sworn testimony, that, unlike the admissions, they were not against the appellant's interests and that the jury could give them less weight than the admissions, was proper. ... As an observation on the facts, in the circumstances of this case, it was not inappropriate to point out that while the admissions of possession were accepted by both sides at the trial to be true, the assertions about purpose were in dispute, that they were not supported by any sworn testimony and that they were self-serving. It would also not have been inappropriate to point out that the jury might think them to be of less weight than the admissions.

[89] The joint judgment in Mule cited a passage with approval from the judgment of Thomas J in Cox in which it had been said that it was 'undesirable that juries be given general a priori directions as to what sorts of evidence are likely to be true, or as to the weight which should be accorded to different parts of the one statement'. The court also stated that it was undesirable to direct juries by providing an explanation of the traditional reasons why admissions against interest are commonly regarded as reliable evidence.

The passages from Mule to which I referred in Berry show that the trial judge here adopted a flawed approach to the impugned exculpatory statements. With respect, it was not correct to assume that any exculpatory parts of the applicant's statements could carry no evidential weight, or that the jury would have to be so directed, or that it would be desirable to suggest to the jury why any admission against interest, by contrast to self-serving statements, was more likely to be reliable.[23]

25 Having concluded that the trial judge had erred, both in refusing to admit exculpatory passages that were admissible and in misdirecting the jury as to how to they should view the inculpatory passages that were led, Redlich JA turned to consider whether the 'proviso' to s 568(1) of the Crimes Act 1958 (Vic) (as then applied) could be invoked. The Crown's submission was that, notwithstanding the errors of law that had been established, there had been no 'substantial miscarriage of justice'.

26 Redlich JA accepted that submission. In so doing, his Honour emphasised that an appellate court may apply the proviso (as it then existed under the Crimes Act 1958 (Vic)) despite not having seen the witnesses at trial. He added that, where the prosecution 'relies principally upon circumstantial evidence', the appellate court 'will be well placed to make ... a determination as to the guilt of the appellant'.[24]

27 Where the prosecution relies on evidence of admissions, two distinct questions are raised for the jury's consideration. As Barwick CJ, Gibbs and Mason JJ said in Burns:

It is clear and elementary law that once a confessional statement has been admitted into evidence its weight and probative value are matters for the jury. It is for the jury to determine whether the alleged confession was made and whether it was true in whole or in part. Unless the jury are satisfied that so much of a confession as tends to show the guilt of the accused was true they cannot treat it as a proof of guilt.[25]

28 The impugned statement in the present case formed part of the following passage from the charge:

It is not uncommon for evidence to be led, as it was in this case, against an accused person of a statement made by him in connection with the alleged crime. Indeed, that's really what this case is at its heart all about.

This evidence is permitted to be given and we sometimes call them 'admissions' because normally it is considered to be relatively unlikely that an innocent person would untruthfully implicate himself in a crime or make an untruthful admission of fact against his or her interest. However, before you can rely on any evidence of admission at all, you must, as I have already said to you, be satisfied of two things: first, you must be satisfied that the accused person did make the statement, the admission; and, secondly, you must be satisfied that it is true and, as I say, that is the centrepiece of the Crown case, the prosecution case here, that there are these admissions and because it is the centrepiece, because it is the evidence which the Crown says leads to a conviction in this case, it is evidence that must be looked at to see whether you can accept it beyond reasonable doubt.[26]

29 His Honour thus directed the jury - correctly - that there were two matters of which they had to be satisfied: first, that the admissions were made and, secondly, that they were true. Importantly, however, the impugned statement concerned only the second of these issues, namely, the truthfulness of any purported admission. As we said earlier, the defence case was directed at showing that none of the alleged admissions was made. There was no attempt to advance an alternative case to the effect that, if the admissions were made, they were not truthful.

30 This analysis serves to demonstrate that the impugned statement concerned a matter which was not put in issue in the trial. That being so, it is of no consequence that the statement was made with the authority of the trial judge. In any event, as the extract from the judge's charge shows, the judge was careful to direct the jury that they must be satisfied that the statements attributed to the appellant were true. Later in the charge, his Honour repeated those directions, in the clearest of terms:

Central to the Crown's case is this evidence of admissions. To convict Mr Tunja you need to be satisfied beyond reasonable doubt that he made an admission of killing on the night and be satisfied beyond reasonable doubt that the admission was true. Even if you are satisfied that he made an admission, if you are not satisfied it is true, then unless there is some other admission that you are satisfied beyond reasonable doubt that he made, and that you are satisfied in relation to that, that it is true, you cannot convict.

31 In Burns, the majority canvassed different circumstances in which there might be a greater, or a lesser, need for a direction to the jury that they must be satisfied of the truth of alleged admissions. Their Honours said:

In some cases it may be clear or undisputed that a confession was made and the crucial question may be whether it has any probative value: for example, it may be suggested that the confession had no weight because it was extracted by force or given under a mistake or because the accused when making it was ill in body or disturbed in mind. In a case such as the present, where the accused person alleges that the confession which he is said to have made is a complete concoction, a reasonable jury, once satisfied that the confession was made, might readily be satisfied also that it was true. In such a case the absence of a specific warning to the jury that they should not act upon the confession unless they were satisfied of its truth might be of less significance than in a case where it was not in issue that the statement was made, but it was claimed that it was untrue.[27]

32 As can readily be seen, the present case is similar to that with which the High Court was there concerned. In both cases, the defence case was that the alleged admissions were not made at all. In the present case, as in Burns, a reasonable jury 'once satisfied that the [admission] was made, might readily be satisfied also that it was true'. This was most obviously the case with the admission which the appellant was alleged to have made to Ms Arvidson the day after the killing, when he said that he had 'cut someone's throat'.

33 Our conclusion that there was no miscarriage of justice does not depend on any failure by defence counsel to take exception to the impugned passage. The point is a more fundamental one. It is that the defence made a deliberate, rational, decision about how to conduct the trial - a decision to put in issue the making of the alleged admissions, and not to put in issue whether, if the admissions were made, they were truthful.

34 Although the decision in James concerned the question whether an alternative count should have been left to the jury, the statements of principle (taken from decisions of the High Court and of this Court) were not so confined. As Maxwell P noted, the principles were expressed quite generally and are of general application, 'founded as they are on the basal concept of a fair trial in an adversarial system'.[28]

35 It is sufficient for present purposes to repeat two of those statements of principle. The first is from Gleeson CJ in Nudd v The Queen:

A criminal trial is conducted as adversarial litigation. A cardinal principle of such litigation is that, subject to carefully controlled qualifications, parties are bound by the conduct of their counsel, who exercise a wide discretion in deciding what issues to contest, what witnesses to call, what evidence to lead or to seek to have excluded, and what lines of argument to pursue. The law does not pursue that principle at all costs. It recognises the possibility that justice may demand exceptions. Nevertheless, the nature of adversarial litigation, with its principles concerning the role of counsel, sets the context in which these issues arise. ... It is the fairness of the process that is in question; not the wisdom of counsel. As a general rule, counsel's decisions bind the client. If it were otherwise, the adversarial system could not function. The fairness of the process is to be judged in that light.[29]

36 The second is the illuminating passage from the 1974 judgment of the Full Court in Re Ratten,[30] as follows:

Under our law a criminal trial is not, and does not purport to be, an examination and assessment of all the information and evidence that exists, bearing upon the question of guilt or innocence. Even the Crown has some degree of choice as to what witnesses it will call. And the accused is completely free to decide how he will conduct his defence. He has the right to choose what issues he will contest, what facts he will dispute, whether he will give evidence or not, whether he will call witnesses or not, and, if he elects to call witnesses, which ones he will call. All these rights are fundamental to the conception of fair trial under our system of criminal justice.

In conformity with this conception of fair trial, if an accused person can show that he has been prevented by surprise, fraud, malpractice or misfortune from presenting at his trial evidence of substantial importance which he desired to present ... then ordinarily the fact that he has been tried and convicted without such evidence having been called involves that he has been deprived of his right to a fair trial and that there has, in that respect, been a miscarriage of justice.

But on the other hand, if the reason why the additional evidence was not called is merely that the accused and his advisers made a deliberate choice not to call particular witnesses or a particular class of evidence, then obviously the accused has not been denied, but has exercised, his right to a fair trial, and there has been no miscarriage of justice of the kind described above.[31]

37 For these reasons, in our view, the making of the impugned statement was not productive of a miscarriage of justice. The statement concerned a matter which was not in issue in the trial. If we were wrong about that, we are quite satisfied - for essentially the same reasons - that the appellant's conviction was inevitable once the jury were satisfied that the admissions (or some of them) were made. The misdirection had no bearing on their consideration of that question.[32]

38 As a result of a misdirection as to the way the law views admissions, there has been a substantial miscarriage of justice in this case.

39 I would thus quash the appellant's conviction for murder and order a retrial. It is necessary that I state my reasons for these conclusions.

40 On 21 November 2009, in the vicinity of 60 Alamein Road, West Heidelberg,

41 Following a trial in the Supreme Court, on 6 August 2011 the appellant was convicted of Mr Biram's murder.

42 Neave JA refused the appellant leave to appeal against his conviction, on the three proposed grounds it was then sought to agitate, on 19 September 2012.

43 Pursuant to s 315(2) of the Criminal Procedure Act 2009 (Vic) the appellant elected to have the application for leave to appeal against conviction determined by a court of three. As a result, on 3 April 2013, the Court (Harper, Tate and Priest JJA) granted the appellant leave to appeal on a single ground (two others having been abandoned) as follows:

The learned trial judge erred in directing the jury that evidence of admissions by an accused person were permitted to be called in evidence because normally it is considered relatively unlikely that an innocent person would untruthfully implicate himself in a crime or make an untruthful admission of fact against his or her interest.

44 For reasons I will later explain, this ground should, in my view, be upheld.

45 Rowan Biram's death came during a brawl in Alamein Road, West Heidelberg, in which he and a number of young males participated.

46 It arose this way. During the evening of Saturday 21 November 2009, Mr Biram was at his home at 58 Alamein Road. It seems that at about 11.45pm an argument broke out between a group of people at a neighbouring property at 57 Alamein Road. The appellant was then present at that address.

47 The argument, which was very loud, spilled into Alamein Road, and involved a large group screaming at each other. Mr Biram went outside to investigate. He remonstrated with the group, yelling at them. Several males became involved in a physical fight with Mr Biram. The fight was volatile and fluid, and proceeded onto and across the road. People were seen to be removing palings from a fence, presumably for use in the fracas. At one point, in the vicinity of 60 Alamein Road, Mr Biram was seen to be on top of an individual, Dylan Lawrenz.

48 It was while Mr Biram was on top of Lawrenz that his throat was cut. The wound extended through his carotid artery and jugular vein. According to Dr David Ranson, the pathologist who carried out a post mortem examination, the ruptured blood vessels would have bled very extensively and very rapidly, and death would have occurred within 10 seconds or so.

49 None present purported to see the actual infliction of the wound, or to be able to identify the attacker. It was the prosecution's case, however, that the appellant cut Mr Biram's throat whilst he was atop Lawrenz.

50 The principal issue in the appellant's trial for murder was whether the prosecution could satisfy the jury beyond reasonable doubt that the person who cut Mr Biram's throat was the appellant. No issue was distinctly raised that the person who injured Mr Biram might not have had murderous intent.

51 It is accepted by the respondent on this appeal that the prosecution case revolved around various admissions said to have been made to a variety of witnesses - 'admissions are the [prosecution's] case'. Absent the admissions, there was no evidence - other than the fact that the appellant was in the vicinity when Mr Biram met his death - which could support the appellant's conviction.

52 The evidence of admissions upon which the prosecution relied came from eight separate witnesses. Some claimed that they had overheard the appellant make admissions. Some alleged that the appellant had made admissions directly to them. Some recounted admissions which might be characterised as confessional (that is, complete admissions of guilt) - that he had struck the fatal blow. At least one - perhaps two - said he had recanted.

53 It is necessary that I set out so much of the evidence of the alleged admissions as will make the ground of appeal comprehensible.

54 Leonard Jack had been living at Christine ('Tina') Baxter's residence at 63 Alamein Road for a few months. During the day on Saturday 21 November 2009 he drank bourbon 'pretty much all day'. In the evening he drank cask wine. At some stage in the evening he heard 'lots of people screaming'. It came from the street. There was a knock at the door and he opened it. The appellant was at the door and said, 'I think I just killed somebody', and 'Can I come in Mamma T?' ('Mamma T' being Christine Baxter, with whom Mr Jack was living). Mr Jack refused the appellant entry, told him to 'fuck off' and shut the door. In cross-examination, when pressed with his police statement in which he had said that the appellant exclaimed, 'I just stabbed somebody', Mr Jack claimed that the appellant said, 'I just stabbed somebody, I think I killed him.' There was evidence from which it might be inferred that Mr Jack was significantly intoxicated.

55 Christine Baxter had started drinking in the morning and drank cask wine all day on 21 November 2009. She had previously described herself as an alcoholic and the evidence would suggest that she was also significantly intoxicated. After going to sleep she was awakened by knocking at her door. The appellant was there, and he said, 'Big Mamma T, can you let me in? I just cut someone's throat' or 'stabbed someone'. She told the appellant to 'fuck off'. In cross-examination she was confronted with her statement to the police made 23 November 2009, in which she had said nothing about any admission having been made. She explained this by saying that at that time she was in a state of grief over the recent death of one of her daughters.

56 Another occupant of 63 Alamein Road, Matthew McCrae, who lived at that address with one of Christine Baxter's daughters, Adele Patterson, said that during the afternoon of 21 November 2009 he drank a six pack of 'VB' stubbies of beer. When he was getting ready for bed he heard 'a bit of screaming and then someone knocking on the door'. He went to the lounge room and he saw Mr Jack talking to the appellant. The appellant was saying, 'Let me in, let me in', and that he had stabbed someone. Mr Jack told him he could not come in and to 'rack off'.

57 Emily Patterson is a daughter of Christine Baxter, and was visiting her mother because of her sister's funeral. In the evening, while she was getting ready to go to bed, she heard noise coming from the street. She saw Mr Jack at the door telling the appellant to go away; and heard the appellant twice say, 'Big Mamma T let me in, I just stabbed somebody'.

58 The same night, Brad McNeil, who was 13 years of age, attended a birthday party at premises at 12 Perth Street, which is around the corner from where the killing took place. A VATE[33] provided most of his evidence-in-chief. Mr McNeil claimed that the appellant arrived at the party and he overheard the appellant tell someone - 'whispering in his ear ... pretty much sounded like out loud' - that, 'I had to jump on, up on top of him and slit his throat ... [but] don't tell anyone about it'. Later, the appellant returned to the premises and 'was just telling us that he didn't do it'.

59 Harley Bulman turned 13 years of age on 21 November 2009. He was the teenager whose birthday was being celebrated. His VATE statement formed the bulk of his evidence-in-chief. He described the appellant saying: 'Don't tell no-one but I just, me and Ricky just killed someone ... he's like, I slit his throat and then Ricky stabbed him in the gut'. It was significant that the Mr Bulman included the detail that the appellant had said that the victim had been stabbed in the 'gut' by 'Ricky',[34] since the objective evidence demonstrated that such a claim could not be true. The pathologist's evidence established that the victim has suffered only one incised wound and that was to his neck. (I should note at this point that the trial judge instructed the jury of the importance of this evidence as an example of a purported admission of something which did not happen.) In cross-examination Mr Bulman claimed to have no recollection of anyone coming into his house and telling him that he and a friend had just killed somebody.

60 An important witness was Dominique Arvidson, who gave evidence of a conversation with the appellant the day after the crucial events. By November 2009 she had known that appellant for two or three weeks, having met him four times. At some stage on 21 November he borrowed her car. The following day, whilst they were driving together, the appellant put his head in his hands and said: 'I cut someone's throat.'

61 Nina Patterson was a friend of Dominique Arvidson. While relaxing at her boyfriend's house in the evening of Saturday 21 November 2009 (during which time she had been drinking bourbon) some time after 10.00pm she received a telephone call from the appellant. She said, 'He said he thinks he might have stabbed someone'. Shortly afterwards she spoke to him again by telephone and, 'He just said that what he told me before, he didn't do anything, he didn't do it, he was just talking shit'.

62 The defence called no evidence. There was no record of interview with police. Thus there was no version from the appellant before the jury concerning the admissions alleged against him.

The conduct of the defence case and the assessment of witnesses

63 In the course of the trial defence counsel did not suggest collusion between any of the relevant witnesses. Although counsel on the appeal submitted that defence counsel at trial had put the reliability of the supposed admissions in issue - in the sense that the appellant may have said what was attributed to him, but due to the circumstances the accuracy of the statements should be regarded as dubious - my impression is that counsel's principal attack on the witnesses in each case was that the admissions were not made. He did not, as I see it, endeavour to craft an alternative case that the jury might find that the admissions were made but that they were untrue. (As will become clear, I do not share the view that counsel's conduct of the trial in this regard is at all determinative of the outcome of the appeal.) Further, he did not float any motive that the witnesses might have had for incorrectly attributing admissions to the appellant.

64 Quite clearly, a number of the accounts suffered from the infirmity that large volumes of alcohol had been consumed by the relevant witness.[35] The accounts of those witnesses who resided together may have - although I appreciate that this was not put by defence counsel - been subject to contamination (whether unconscious or otherwise). Given his age, and the circumstances in which he claimed to have overheard the appellant's admissions, a properly instructed jury might not have been prepared to give Mr McNeil's evidence much weight. Moreover, the account supposedly given to Mr Bulman plainly was wrong in detail (although, as I earlier observed, the judge gave a direction to the jury about that). From an objective perspective, the most compelling evidence was that of Ms Arvidson, to whom admissions were said to have been made the following day. Her evidence did possess, one would have to accept, a flavour of verisimilitude.

65 It is fair to say, in my view, that the evidence of the witnesses as to the appellant's alleged admissions occupied a spectrum, from that which was lacking in weight to that which possessed moderate strength (Ms Arvidson's evidence being at the high end of the spectrum).

66 Assessment of the reliability of the witnesses, and thus as to whether the admissions were made, was a jury question. There was no other evidence. Admissions were the prosecution case. It thus cannot be gainsaid that it was necessary for the jury to be given proper instructions as to how they went about assessing this crucial evidence.

67 One of the respondent's principal submissions in this Court was that the impugned direction went only to the truth of the admissions, which was not put in issue by trial counsel (who had contended that the utterances had not been made). The failure to make it an issue, so it was argued, meant that a misdirection with respect to it was of no consequence. Although perhaps attractive on a superficial level, for reasons that I will explain, this submission cannot be accepted.

68 In the course of his Charge to the jury the judge gave the following directions:[36]

It is not uncommon for evidence to be led, as it was in this case, against an accused person of a statement made by him in connection with the alleged crime. Indeed, that's really what this case is at its heart all about.

This evidence is permitted to be given and we sometimes call them 'admissions' because normally it is considered to be relatively unlikely that an innocent person would untruthfully implicate himself in a crime or make an untruthful admission of fact against his or her interest. However, before you can rely on any evidence of admission at all, you must, as I have already said to you, be satisfied of two things: first, you must be satisfied that the accused person did make the statement, the admission; and, secondly, you must be satisfied that it is true and, as I say, that is the centrepiece of the Crown case, the prosecution case here, that there are these admissions and because it is the centrepiece, because it is the evidence which the Crown says leads to a conviction in this case, it is evidence that must be looked at to see whether you can accept it beyond reasonable doubt.

69 The appellant argues that a substantial miscarriage of justice flows from the instruction: 'This evidence is permitted to be given ... because normally it is considered to be relatively unlikely that an innocent person would untruthfully implicate himself in a crime or make an untruthful admission of fact against his or her interest.'

70 It is submitted by the appellant that what the trial judge told the jury in this brief passage was wrong. The respondent does not dispute that this is so. To make good his submission, the appellant's counsel places substantial reliance on what was said by the High Court in Burns:[37]

[O]bservations of this kind, although they may explain the rational basis for the use of confessional evidence, do not provide any useful guide as to the manner in which such evidence may be used by a jury, and if repeated to a jury would be likely to mislead them. It would be a grave misdirection to tell a jury that there is a presumption that a confession made by an accused person is true. The jury, in deciding whether in the light of all the circumstances of the case they are satisfied of the truth of the whole or part of a confession, must approach that question without the aid of any presumption except that of innocence.

71 Although the trial judge in the present case did not speak of a 'presumption that a confession made by an accused person is true', counsel for the respondent conceded before us that his Honour ought not to have included the impugned observation in his charge. Error thus was conceded. Counsel for the respondent argued, however, that although the observation should not have been made, no substantial miscarriage of justice was occasioned by it. He submitted that conviction was inevitable. I cannot agree.

72 In order to defend the conviction - despite the acknowledged error in the judge's directions - counsel for the respondent in essence submitted, first, that the impugned remarks would not have been understood by the jury as a direction of law; and, secondly, that the criticised statement was but a minor infelicity in an otherwise impeccable Charge.

73 Contrary to the first of those submissions, I have no doubt that, given its position in the directions, the manner of its expression and the fact that it was not identified as a mere comment (which the jury were free to reject), the jury would have understood the impugned part of the judge's remarks to have been a binding instruction of law. In so far as the respondent may have contended otherwise, such contention cannot be accepted. The judge told the jury that the evidence is permitted to be given. Presumably this is to be understood as it is permitted by the law. The judge then assigned a reason why the law permitted such evidence to be given - because normally (that is, as a general rule, ordinarily, normally) it is considered (again, presumably by the law) relatively unlikely (that is, somewhat unlikely or comparatively unlikely) that a person would make an untrue admission against interest. Without in any way torturing the language used - indeed, to give the words used their ordinary meaning - in my opinion the jury would have understood the impugned passage to have been a binding direction of law to the effect that the law considered that, as a general rule, it is somewhat unlikely that a person would make an admission that was not true.

74 So understood, the direction given by the judge - with the imprimatur of his office - gave the evidence of admissions a special status that it did not deserve. The evidence would have been elevated in the eyes of the jury. Although the judge would not have intended it to be such, it was, in my view, a makeweight for the admissions. And although I do not necessarily accept that the directions undermined the burden and standard of proof, nevertheless the direction had the effect of giving the evidence of admissions undue weight or legitimacy.

75 Indeed, in the course of his final address, the prosecutor had made a submission to the effect that ordinarily people did not make untrue admissions. As a comment, this was something that the jury would have been free to reject. But the gravamen of this mere comment was repeated by the judge, clothed as a direction of law, and with the authority of the judge's office behind it. The thrust of the comment would thus have assumed a particular validity in the eyes of the jury.

76 In the course of argument, there was some cavilling with the notion that the impugned statements were the 'introduction' to the Burns direction of which the criticised passage is part. It is probably unnecessary to say much about that other than that is a matter of impression and judgment. My distinct impression is that the criticised passage was indeed an introduction to the necessary directions on admissions, and would have been so understood by the jury.

77 Additionally, as was pointed out during argument, the challenged passage was surrounded by otherwise correct and oft repeated directions in conformity with Burns. But to my mind it matters little whether the passage was at the start, at the end or in the middle. And it is of little importance that it was immersed within otherwise correct instructions. What is important is its prominence in the overall scheme of the Charge. In my opinion, the jury, given its position in the directions, would have regarded the passage as important and as binding. It would have been very influential in the jury's overall consideration of the admissions. Moreover, since it was clothed as a direction of law confined to admissions, being true to, and understanding, their oaths (or affirmations or promises), it must be assumed that the jury would conscientiously have applied the direction when considering the evidence of admissions, no matter that it was surrounded by otherwise impeccable directions. Any suggestion that the impugned direction would have been swamped by otherwise correct instructions simply cannot be accepted. Indeed, it would be a startling proposition to accept that a prominent misdirection may be ignored because it is surrounded by a plethora of correct directions, since the system of trial by jury is prefaced on the joint assumptions that the jury will understand - and apply - the directions of law that they are given. As Gleeson CJ and Gummow J remarked in Gilbert:[38]

The system of criminal justice, as administered by appellate courts, requires the assumption, that, as a general rule, juries understand, and follow, the directions they are given by trial judges.

78 In argument, reference was also made to Pemble,[39] and to the recent decision of this Court in James.[40] As I followed what was put, it was suggested that the recent decision in James - which concerned, and is confined to, the necessity to leave alternative verdicts in non-murder cases - might mean that, defence counsel not having distinctly put in issue that the admissions may have been made but nonetheless may have been unreliable, the judge's misdirection was of no moment. With respect, such a suggestion cannot be accepted for several reasons.

79 First, the failure to take exception, so as to have the misdirection corrected, was tantamount to counsel conceding a matter of law incorrectly to the detriment of his client. By his silence defence counsel could not give tacit endorsement to a plain misdirection. Little attention has been given in this State to the following statement of principle by Hunt J in Stokes & Difford[41] (a case where defence counsel had apparently sought to avoid a direction to the jury on intoxication). Hunt J observed, in a passage with which I respectfully agree:[42]

The disavowal by counsel then appearing for the appellants that intoxication was being raised as an issue, though no doubt made for tactical reasons which were bona fide thought to be in the best interests of their clients, did not relieve the judge of the duty to give directions in relation to that issue in this case: Pemble [1971] HCA 20; (1971) 124 CLR 107 at 117-118, 130. Counsel cannot concede a matter of law to the disadvantage of the accused: Pemble at 133; Galambos (1980) 2 A Crim R 388 at 395, 396-397. The judge must comply with his duty to put to the jury any issue sufficiently raised by the evidence even if that issue gives an air of unreality to the case sought to be made by the accused in relation to some other issue: Lawson and Forsythe [1986] VicRp 53; [1986] VR 515 at 548; [1986] VicRp 53; (1986) 18 A Crim R 360 at 394-395; Marshall (unreported, Court of Criminal Appeal, NSW, Gleeson CJ, Priestley, Sharpe JJ, 17 July 1990) at pp 1-2.

80 Secondly, the reasoning underpinning the suggestion is that a jury will always act on the evidence in the manner advanced by the parties, to the exclusion of other alternative analysis. Such a view ignores the reality of trial by jury. The jury - so long as they abide the judge's directions of law - are free to analyse the evidence in any way they see fit, and reach any decision reasonably open on the evidence, no matter how the parties have chosen to conduct the case. They are not bound to analyse the evidence according to the manner of presentation of the parties' cases by counsel. Indeed, juries are instructed that they are free to ignore the comments and arguments of counsel (and judge) if they do not agree with them. Gaudron ACJ, Gummow, Kirby and Hayne JJ observed in R P S:[43]

Before parting with the case, it is as well to say something more general about the difficult task trial judges have in giving juries proper instructions. The fundamental task of a trial judge is, of course, to ensure a fair trial of the accused. That will require the judge to instruct the jury about so much of the law as they need to know in order to dispose of the issues in the case. No doubt that will require instructions about the elements of the offence, the burden and standard of proof and the respective functions of judge and jury. Subject to any applicable statutory provisions it will require the judge to identify the issues in the case and to relate the law to those issues. It will require the judge to put fairly before the jury the case which the accused makes. In some cases it will require the judge to warn the jury about how they should not reason or about particular care that must be shown before accepting certain kinds of evidence.

But none of this must be permitted to obscure the division of functions between judge and jury. It is for the jury, and the jury alone, to decide the facts. As we have said, in some cases a judge must give the jury warnings about how they go about that task. And, of course, it has long been held that a trial judge may comment (and comment strongly) on factual issues. But although a trial judge may comment on the facts, the judge is not bound to do so except to the extent that the judge's other functions require it. Often, perhaps much more often than not, the safer course for a trial judge will be to make no comment on the facts beyond reminding the jury, in the course of identifying the issues before them, of the arguments of counsel.

To attempt to instruct the jury about how they may reason towards a verdict of guilt (as distinct from warning the jury about impermissible forms of reasoning) leads only to difficulties of the kind that have arisen in the present case.

81 Thirdly, no matter the forensic decisions of counsel, the judge has an obligation to afford the appellant a fair trial according to law. Consistently with the notion that counsel cannot concede a matter of law wrongly to his or her client's interests, in my opinion, as a general rule counsel cannot, by his or her inaction, contemplate for his or her client a trial which does not conform to the applicable legal principles. This Court is, in my view, bound to follow Pemble,[44] in which Barwick CJ said:[45]

Whatever course counsel may see fit to take, no doubt bona fide but for tactical reasons in what he considers the best interest of his client, the trial judge must be astute to secure for the accused a fair trial according to law. This involves, in my opinion, an adequate direction both as to the law and the possible use of the relevant facts upon any matter upon which the jury could in the circumstances of the case upon the material before them find or base a verdict in whole or in part.[46]

82 It might be argued by some that the contemplated fair trial according to law includes one where the posited departure from the law was tolerated by counsel, the underlying idea being that a trial does not become unfair because the departure from law is one that counsel did not seek to correct. To my mind, such a notion is unpalatable, and inconsistent with the obligation of the trial judge to ensure that the trial is according to law. James was a case where alternative verdicts were not left. It has nothing to say about a case of misdirection with respect to evidence. Pemble was a case where, among other things, the judge gave inadequate directions on reckless murder and alternative verdicts - including the possibility of complete acquittal - in circumstances where defence counsel did not ask for acquittal, instead inviting a verdict of manslaughter. Barwick CJ said:[47]

Here, counsel for the defence did not merely not rely on the matters now sought to be raised; he abandoned them and expressly confined the defence to the matters he did raise. However, in my opinion, this course did not relieve the trial judge of the duty to put to the jury with adequate assistance any matters on which the jury, upon the evidence, could find for the accused.

Pemble emphasises, in my view, that the failure of counsel in this case to take exception to the direction now impugned can hardly be determinative.[48]

83 Although it might be accepted - as was raised during argument on the appeal - that the judge need instruct the jury only on so much of the law as they need to know to decide the real issues in the case,[49] that does not carry with it the concomitant that the judge has a licence to give incorrect directions to the jury on the use of evidence which is critical to the resolution of the case, notwithstanding that a particular use of the evidence has not been put in issue by counsel at the trial.

84 Acceptance beyond reasonable doubt that the admissions were made, and that they were true, in this case was essential to conviction. The other side of that coin is that a reasonable doubt about one or other of those two limbs would lead to acquittal. If the jury's assessment of the admissions was influenced by an erroneous direction, the effect of which may have been to elevate their status, or at least to have given the jury an incorrect starting point in their assessment of them, in my opinion there has been a miscarriage of justice.

85 It is necessary that I deal with a further aspect. In Burns, it was observed:[50]

In some cases it may be clear or undisputed that a confession was made and the crucial question may be whether it has any probative value: for example, it may be suggested that the confession had no weight because it was extracted by force or given under a mistake or because the accused when making it was ill in body or disturbed in mind. In a case such as the present, where the accused person alleges that the confession which he is said to have made is a complete concoction, a reasonable jury, once satisfied that the confession was made, might readily be satisfied also that it was true. In such a case the absence of a specific warning to the jury that they should not act upon the confession unless they were satisfied of its truth might be of less significance than in a case where it was not in issue that the statement was made, but it was claimed that it was untrue.

86 The very fact that a jury might readily conclude that an admission is true upon acceptance that it was made, provides a strong reason, in my opinion, why it was necessary to give a direction that did not give the evidence of admissions special endorsement. Once the jury dismissed the appellant's primary 'defence', which involved the assertion put to witnesses in cross-examination that the admissions were not made, it was but a short step for the jury to accept them as true - more so when considered against the backdrop of a binding direction of law to the effect that the law considered that, as a general rule, it is somewhat unlikely that a person would make an admission that was not true.

87 I do not ignore that eight witnesses gave evidence of varying weight about the appellant's alleged admissions. But there was also evidence that he recanted. Thus to Nina Patterson, as she testified, 'He just said that what he told me before, he didn't do anything, he didn't do it, he was just talking shit'. And to Brad McNeil he said 'he didn't do it'.[51] As far as I can see, the judge gave no direction about the use of these denials.[52] It is at least arguable that the denials were admissible in favour of the defence as exculpatory statements, pursuant to the 'mixed statements' exception.[53] But it is unnecessary to decide that question. It is enough to say, in my opinion, that whether the admissions were true remained a jury question, no matter the forensic choices of counsel. Had they not been misdirected, there were infirmities in the evidence of admissions that might well have influenced the jury's assessment of their weight - and thus whether they were true - in a manner adverse to the prosecution. The effect of the impugned direction was, however, to give them weight in a manner prejudicial to the defence.

88 Is the identified miscarriage of justice 'substantial'? Resolution of that question necessarily must involve consideration of the text of s 276(1)(b) and (c) of the Criminal Procedure Act 2009, and its recent interpretation by the High Court in Baini v The Queen.[54] In the course of argument, counsel for the appellant, Mr Dann, agreed that it would have been 'open' to a properly instructed jury to have convicted his client on the evidence of admissions. In Baini, however, the majority of the Court made it clear that, although demonstration that there has been 'a substantial miscarriage of justice' may be affected by the strength of the prosecution case at trial; and that, in some cases, it may be possible for the Court to conclude that there has not been a substantial miscarriage of justice because, despite the error, irregularity or other cause of complaint, the evidence properly admissible at trial required the conclusion that the appellant was guilty of the crime alleged; the inquiry to be made is whether a guilty verdict was inevitable, not whether a guilty verdict was open.[55] If it is said that a guilty verdict was inevitable - that is, that a verdict of acquittal was not open - the Court must decide that question on the written record of the trial with its attendant 'natural limitations'. The fact that the jury returned a verdict of guilty may, in an appropriate case, influence the answer to the question. If the result of the trial may have been different had the error not been made, then there has been a substantial miscarriage of justice.[56]

89 In discussion on the appeal, the question arose whether the failure of defence counsel at trial to take an exception might not bear on whether there has been a substantial miscarriage of justice. Although I would not, of course, make an unqualified assertion that the failure to take exception in a case like this could never be a factor to be taken into account in considering whether a miscarriage of justice is substantial, nevertheless care must be exercised lest a focus on the failure to take exception be permitted to obscure proper appreciation of the critical inquiry - despite the error, was conviction inevitable?

90 Moreover, a factor that seems often to be ignored in some current judicial thinking is that there are two ends to the Bar table. Not only does defence counsel carry an obligation to ensure (as best he or she is able) that a trial does not miscarry due to the failure to give correct directions, but so too does counsel for the prosecution. With respect, there is much wisdom in the remarks of the Full Court (Crockett, McInerney and Beach JJ) in Caine,[57] (a case which concerned a misdirection on the defence of provocation to which no exception was taken). The Court observed:[58]

We turn to consider the relevance of the fact that no exception was taken at the trial to the charge on provocation. We do not think that the learned judge received the assistance from either end of the Bar table to which he was entitled. The duties of counsel in a criminal trial during and after the charge are responsible and important. Counsel for the defence are under a duty to their client to ensure that by taking exceptions to deficiencies in the charge they ensure as far as they can that their client's case is put to the jury in a way which is as favourable to the client's interest as the rules of law, including the common law right to a fair trial, require. We consider that counsel for the prosecution has a duty to take exceptions with a view to correcting errors in the charge including errors which make a conviction more likely but depart from the law. It is not in the public interest that any citizen receive other than a fair trial according to law. It is not in the public interest that a trial be followed by use of the resources of the judicial system in the expensive necessity of an appeal and a new trial. We do not suggest that in this case counsel for either party deliberately refrained from taking an exception.

These observations are, in my opinion, as relevant today as when they were first made.

91 Defence counsel at trial did not enjoy much experience in conducting murder trials. This may explain, at least partially, the failure to take exception. Counsel for the prosecution was more experienced. In circumstances where the misdirection (and thus error) is conceded, however, to my way of thinking it is not a very productive exercise to investigate to any great extent why neither counsel sought to correct the erroneous directions.

92 Asking myself the question whether conviction would have been inevitable despite the error, I do not think it would have been. The misdirection had the effect of elevating the admissions to a status that they did not deserve. In their consideration of them, applying the directions that they were given, the jury would have thought that the law afforded the evidence of admissions particular legitimacy. But for the fact they were set off on a false path, in my view it is far from certain that inevitably the jury would have convicted. Thus the conviction cannot be permitted to stand.

93 For the sake of completeness, I should observe that, since this was a case of misdirection (rather than a failure to give a direction), in my view, had it been in operation, the provisions of the Jury Directions Act 2013[59] would not have saved the conviction.

94 For these reasons the ground of appeal is, in my opinion, made out. I would thus allow the appeal, quash the conviction and order a retrial.

[1] Burns v The Queen [1975] HCA 21; (1975) 132 CLR 258, 262 ('Burns').

[2] Criminal Procedure Act 2009 (Vic) s 276(1). See Baini v The Queen [2012] HCA 59; (2012) 246 CLR 469, 477 [18], 478-9 [22]-[23].

[4] James v The Queen [2013] VSCA 55, [4]. Whelan JA agreed: [119].

[5] T K W J v The Queen [2002] HCA 46; (2002) 212 CLR 124, 133 [26]-[27], cited in Ali v The Queen [2005] HCA 8; (2005) 79 ALJR 662, 677 [99].

[6] [2005] HCA 49; (2005) 79 ALJR 1573 ('Mule').

[7] Ibid 1577 [14], citing Lopes v Taylor (1970) 44 ALJR 412; R v Cox [1986] 2 Qd R 55 ('Cox'); Spence v Demasi (1988) 48 SASR 536; R v Aziz [1996] AC 41.

[8] Mule [2005] HCA 49; (2005) 79 ALJR 1573, 1577-8 [18], 1579-80 [24].

[9] Mule v The Queen [2004] WASCA 7. McLure J concurred in the result, but her reasoning differed from that of Templeman and Wheeler JJ.

[10] [1986] 2 Qd R 55, 65.

[11] Mule v The Queen [2004] WASCA 7, [31], quoted in Mule [2005] HCA 49; (2005) 79 ALJR 1573, 1579 [23].

[12] Ibid (emphasis added by the High Court).

[13] Mule [2005] HCA 49; (2005) 79 ALJR 1573, 1579 [23].

[14] Ibid 1579-80 [24]-[25] (our emphasis).

[17] Criminal Procedure Act 2009 (Vic) s 276 (emphasis added).

[18] Crimes Act 1958 (Vic) s 568(1). This section was repealed on 1 January 2010 by the Criminal Procedure Act 2009 (Vic) s 422(4), as amended by the Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 (Vic) s 54(h).

[19] Cf R v A J S [2005] VSCA 288; (2005) 12 VR 563, 570-1 [29]-[32].

[20] [2009] VSCA 213; (2009) 23 VR 444 ('Rudd').

[21] Trial Transcript, R v Rudd, 3 September 2007 (Judge Nixon) 211, cited (but not quoted verbatim) in Rudd [2009] VSCA 213; (2009) 23 VR 444, 448 [16] (Redlich JA).

[22] Rudd [2009] VSCA 213; (2009) 23 VR 444, 453-4 [43] (citations omitted).

[23] Ibid 454-5 [44]-[45] (citations omitted).

[25] Burns [1975] HCA 21; (1975) 132 CLR 258, 261 (emphasis added).

[26] The statement in question is highlighted.

[28] James [2013] VSCA 55, [12].

[29] Nudd v The Queen [2006] HCA 9; (2006) 80 ALJR 614, 618-19 [9] (emphasis added).

[30] [1974] VicRp 26; [1974] VR 201.

[32] Baini v The Queen [2013] VSCA 157, [18], [24].

[34] The reference to 'Ricky' is probably to Ricky Magee, an individual who, together with other young males, was charged with affray in relation to the incidents during which Mr Biram met his death.

[35] The trial judge gave a warning to the jury concerning the potential unreliability of witnesses affected by drugs or alcohol. Relevantly for present purposes, he included the evidence of the witnesses Leonard Jack, Christine Baxter, Matthew McCrae, Dominique Arvidson and Nina Patterson.

[37] Burns v The Queen [1975] HCA 21; (1975) 132 CLR 258, 262 (Barwick CJ, Gibbs and Mason JJ).

[38] Gilbert v The Queen (2000) 201 CLR 414, 420 [13].

[39] Pemble v The Queen [1971] HCA 20; (1971) 124 CLR 107.

[40] James v The Queen [2013] VSCA 55.

[41] R v Stokes & Difford (1990) 51 A Crim R 25.

[43] R P S v The Queen [2000] HCA 3; (2000) 199 CLR 620, 637 [41]-[43] (citations omitted).

[44] Pemble v The Queen [1971] HCA 20; (1971) 124 CLR 107.

[46] I note that s 15 of the Jury Directions Act 2013, due to come into operation on 1 July 2013, requires a trial judge to 'give the jury any direction that is necessary to avoid a substantial miscarriage of justice'; but that, in an apparent response to Pemble, by s 16 it is sought to abolish any rule of common law under which a trial judge is required to direct the jury about 'any defences and alternative offences open on the evidence but which have not been identified as such during the trial', or 'any alternative basis of complicity in the offence charged and any alternative offence in issue'.

[47] Pemble v The Queen [1971] HCA 20; (1971) 124 CLR 107, 118.

[48] See Zhu v The Queen [2013] VSCA 102, [20]-[23] (Redlich JA and Kaye AJA).

[49] Alford v Magee [1952] HCA 3; (1952) 85 CLR 437, 466. See also R v Getachew [2012] HCA 10; 286 ALR 196, 204 [29].

[50] Burns v The Queen [1975] HCA 21; (1975) 132 CLR 258, 261 (Barwick CJ, Gibbs and Mason JJ) (emphasis added). See also R v Russo (No 2) [2006] VSCA 297, [11]-[12]; R v Green [2002] VSCA 34; (2002) 4 VR 471, 481, [31]; R v Brooks [1999] VSCA 5; (1999) 103 A Crim R 234, 247-8.

[51] Whether the appellant's statements to Mr McNeil amounted to a recantation is, perhaps, a matter of interpretation. The prosecution relied on the statements as corroborating the fact that the appellant had earlier made an admission. In directing the jury, the judge told them that 'as a matter of law' the 'only use' they could make of the evidence was in 'support' of the other evidence that the appellant had made the earlier admission that Mr McNeil had said that he had made. It is unnecessary in the circumstances to determine whether this instruction was correct.

[52] On the appeal no complaint was made about any failure to give a direction concerning any denial or recantation.

[53] R v Rudd [2009] VSCA 213; (2009) 23 VR 444, 458 [59].

[54] (2012) 293 ALR 472. See also Andelman v The Queen [2013] VSCA 25.

[55] Whether a verdict was open is the question presented by s 276(1)(a).

[57] R v Caine (2010) 48 A Crim R 464.