White v The Queen [2011] VSCA 441

CRIMINAL LAW - Sentence - Sentenced to a total effective sentence of 26 years' imprisonment with a non-parole period of 20 years - Whether failure to discount or the extent of cumulation amounted to double punishment - Whether total effective sentence, cumulation and non-parole period manifestly excessive - Parity - Application for leave to appeal against sentence refused.

1 I have read the reasons in draft of Harper JA and agree that the applications for leave to appeal against conviction and sentence should both be refused.

2 The Crown case against the applicant, Wally White, reads like a classic western - without the horses, and with no hint of romance. On the evening of 28 November 2004, at approximately 11.40pm, White and two co-offenders, Tame Kohunui and his brother John, arrived at the Freccia Azzurra Club in Springvale Road, Keysborough. They were not welcome. They did not come as members, or even guests. They were confronted before they entered the premises by a security guard. Knowing that he would be there, and that he would not be pleased to see them, White brought with him a high powered rifle, comparable to an AK 47. The Kohunui brothers were armed with knives; not everyday kitchen knives, but a samurai sword half a metre in length, and a curved dagger. Nobody at the Club that night could have been long unaware of the significance of the events which were unfolding.

3 To some it would have been a nightmarish repetition of an event earlier that month. On 2 November 2004, the Kohunui brothers and a third man, Marc Herbert, had robbed the Club of about $10,000. This had at least three effects. First, it kindled the brothers' enthusiasm for this method of raising funds. Secondly, it induced the Club to hire an armed security guard, Jason Gully. Thirdly, while the brothers knew about the hiring of a guard, it did not daunt them; rather, as the sentencing judge said when sentencing the applicant:

I am satisfied beyond reasonable doubt that the three of you were aware that a security guard was present at the Freccia Azzurra Club prior to the second armed robbery and that it was for that reason that you brought the loaded high powered firearm to the armed robbery.

4 Mr Gully must have realised, when he met the three men at the Club that night, that the odds were stacked against him. So he obeyed their instruction to accompany them inside. Once there, John Kohunui went behind the bar to collect money from the safe and the tills. The applicant remained with Mr Gully. The situation became increasingly fraught. The applicant was loud and aggressive, much if not all of this being directed at Mr Gully. The guard attempted to calm him. But when Tame Kohunui moved towards them, the confrontation escalated. Mr Gully drew his revolver.

5 What followed was, in that highly charged atmosphere, inevitable. There was a gunfight. Mr Gully managed to shoot Tame Kohunui once in the buttock. But the applicant reciprocated by firing a number of shots at Mr Gully. The resultant wounds to his head and chest were fatal. As the three robbers fled with Mr Gully's revolver and some $10,000 in cash, they left their victim lying mortally wounded amongst the debris on the floor.

6 The brothers each pleaded guilty to one charge of manslaughter and one of armed robbery arising out of the events of 28 November. They also pleaded guilty to the armed robbery committed on 2 November. But the applicant chose a different course. As a result, he faced two trials, at each of which he pleaded not guilty to one count of murder and one count of armed robbery.

7 The first trial resulted in a hung jury. The second began on 15 October 2007. At its conclusion a month later, on 17 November, the applicant was convicted on both counts. On 28 February 2008 the following year he was sentenced to 22 years' imprisonment on the count of murder and to seven years' imprisonment on the count of armed robbery. The sentencing judge directed that four years of the sentence on count 2 be cumulated with the sentence on count 1. The result was a total effective sentence of 26 years' imprisonment. His Honour fixed a non parole period of 20 years.

8 White now seeks leave to appeal against both conviction and sentence.

9 The principal issue at each trial was the identity of the third member of the raiding party. There was no question about the presence of the brothers, because they pleaded guilty. The applicant maintained that the third robber was Marc Herbert. But the Crown case to the contrary was supported by the direct evidence of the two Kohunui brothers, who each swore that it was the applicant who joined them in the robbery, and who carried and fired the rifle.

10 The prosecution also relied on evidence of admissions said to have been made by the applicant to a friend of his and of the Kohunuis, Kean Lek, on the day after the robbery in which the applicant said it was he who shot and killed the security guard. Another piece of evidence relied on by the Crown was a statement said to have been made by the applicant to another mutual friend, Huy Din, a week or so after the robbery in which the applicant said he had a bad feeling about the situation and that 'he was going to go down for it'. And a third piece of evidence was from another friend, Riki Tourangi, who, after being charged with assisting the offenders (having supplied the knives used by the Kohunui brothers and helping them to flee to Queensland) agreed to wear a recording device while having a conversation with the applicant a few months after the robbery. The Crown's case was that the applicant displayed knowledge of the 28 November 2004 robbery that only a person who was there could have had; and, furthermore, he referred to 'us' in a context which placed him at the scene.

11 When interviewed by the police after the robbery, the applicant said that he was at home with his girlfriend, Chhen So, on 28 November. In her evidence at the second trial, she told a very different story. She said that the applicant 'stayed home', but only '... until later that evening.' She added that 'He would have left some time after 10.00 or 10.30.' It was then put to her that telephone records indicated that she had spoken to him by telephone on a number of occasions that night. She could not remember those calls, but confirmed that he was not then at home. To the best of her recollection, he returned at about 1.00am. Records of the calls from her mobile phone to his that night, and of the calls from his to hers, were tendered in evidence. In the absence of any suggestion that the telephones were in use not by White and So but by others, this evidence speaks very powerfully of White being on the road that night, and in the area of the Freccia Azzurra Club, at the time of the robbery of 28 November.

Leave to appeal against conviction: the changing grounds

12 The original notice of application for leave to appeal against conviction raised two proposed grounds. These were that the verdicts were unsafe and unsatisfactory, and that the trial judge erred in failing to give the jury a Faure warning in relation to the applicant's girlfriend, Chhen[1] So, who was one of the Crown witnesses at trial.

13 These grounds were superseded by a full statement of grounds filed on 23 December 2009. It, however, raised only one ground, as follows:

The learned judge erred in his directions on the standard of proof; and in particular he erred:

(a) in redirecting in a manner apt to compel the jury to analyse their own doubts and consider whether such doubts were reasonable (T 1444);

(b) in failing to direct that to be satisfied beyond reasonable doubt is to be sure or certain and that a reasonable doubt is a doubt which they, the jurors, entertain;

(c) in failing to direct that the applicant must be acquitted unless the jury were satisfied beyond reasonable doubt - i.e. sure or certain - that all alternative hypotheses consistent with innocence were excluded.

14 Counsel for the applicant abandoned this ground at the hearing of the application before this Court. Instead, he relied on five proposed new grounds. These are contained in a document, filed on 6 June 2011 and headed 'Grounds of Appeal for the Applicant', which is an idiosyncratic blend of issue and submission, and is reproduced below exactly as it was filed:

1. A miscarriage of justice flowed from the following evidence not being put before the jury:

(a) Alan Herbert

Father of Mark (sic) Herbert, prisoner sentenced in regard to the first armed robbery at the Freccia Azzurra Club. See attached statutory declaration.

(b) Chhen So

Girlfriend of the applicant. See attached statutory declaration.

Chenn So's fresh evidence is particularly relevant given the pressure Ms Chhen appeared to be under at the second trial. Ms Chhen's evidence in the second trial went further than that in the first trial. See evidence of Chhen So at:

First trial;

T 694 L11 to T 697

Second trial;

T 18 Ll to T 20 L21

T 926 L13

T 18 L 15 His Honour 'Her reaction when she came into court worried me. Is there any suggestion she has been intimidated?' Mr Horgan 'Yes there is.'

T 19 L3 to L23 Chhen marked physical reaction entering courtroom. Her evidence stood over to the next day.

T 53 L21 to T 56 L31 Informant presence in courtroom. Trial defence counsel object.

T 54 L1 Mr Stuart 'I am concerned that she [Chhen] may feel, rightly or wrongly, intimidated or pressured by the presence of the witness who took her statements and who has dealt with her in so far as the events of 4 and 5 October are concerned.'

(c) Katrina Dixon

Girlfriend of Mark (sic) Herbert. See attached statutory declaration.

It is submitted that the attached evidence of the above three witness amounts to fresh evidence that:

i. was not available at trial;

ii. is admissible;

iii. is credible; and

1. creates a likelihood that the evidence, if believed, would have led the jury, acting reasonably, to acquit the applicant.

R v Nguyen [1998] 4 VR 394 at [400]

R v Abou-Chabake [2004] NSWCCA 356; (2004) 149 A Crim R 417 (NSW CCA)

Ground 2: Standard of proof

1. The learned judge erred in his directions on the standard of proof; and in particular he erred:

(a) In reversing the onus of proof when explaining the standard of proof to the jury. The learned judge's embellishment in his explanation of the standard of proof with the cojoined question 'Have the prosecution eliminated beyond reasonable doubt the possibility it was Herbert?' not only misled the jury that the defence had to prove something but distracted the jury from their principle purpose which was have the prosecution proved (sic) their case beyond reasonable doubt;

(b) Repeatedly explaining the standard of proof to include the erroneous consideration 'Have the prosecution eliminated beyond reasonable doubt the possibility it was Herbert?' when in fact it is that all alternative hypotheses consistent with innocence must be excluded and the hypothesis involving Herbert is only one hypothesis.

(c) In using a 'shorthand' reference to the standard of proof confusing the jury and causing the jury to believe that the two alternate 'standards of proof' were interchangeable.

p 211 [26] to 212 [2] Prosecutor's opening 'Mark Herbert was indeed the third armed robber ... it is not my task to prove he was, it is my task to prove he wasn't and that Wally White was, to your satisfaction beyond reasonable doubt.'

Charge T 1356 L7-l4

T 1440 L2 - T 1444 L19

Ground 3: Failure to direct on all possible verdicts

1. A miscarriage of justice flowed from the learned judge not directing the jury as to all the possible verdicts open to them. His Honour failed to direct the jury that it was open to the jury to find the appellant guilty of Armed Robbery but not Murder. Although the defence case was that it was Mark Herbert who was the third robber (and this was the defence case put during closing addresses), the learned trial judge should still have explained to the jury that on the evidence before them it was open to the jury to find the applicant guilty of Armed Robbery but not Murder.

R v Nguyen (2001) 118 A CrimR479 at [20]

R v Heyes (2006) 12VR401

R v Ciantar [2006]VSCA 263 (30 Nov 2006)

Ground 4: Directions on Consciousness of Guilt

1. A miscarriage of justice flowed from the learned trial judge failing to direct the jury that before the jury could use the alleged lies of the accused as to his whereabouts on the night in question as going to consciousness of guilt, they must exclude the possibility that the applicant lied to conceal his involvement in the crime of assisting an offender. The learned trial judged omitted to provide the jury with an extended Edwards direction regarding the applicant's alleged lies. The learned trial judge failed to direct the jury that the evidence on which the prosecution relied on as to the applicant's alleged lies going to his consciousness of guilt could stem from the applicant being wary of being implicated as either an accessory after the fact to Murder or as an armed robber.

Charge T 1365 L11 to 1375

Edwards v R [1993] HCA 63; (1993) 178 CLR 193 at 211

Ground 5: Discharge of the Jury

1. A miscarriage of justice flowed from the learned trial judge's treatment of an incident involving the witness Mr Herbert making an aggressive comment to the accused in the hearing of some of the jury.

(a) No direction was given to the jury from the learned judge about how the jury should treat this incident;

(b) Counsel for the accused was pressured to not cross examine Mr Herbert as to what he said.

p 494 [1] His Honour 'Was I right that Mr Herbert said something to the accused as he went out?'

p 515 [29] His Honour 'My only worry is that they are looking for a direction about it and it may be that I'll decide I do need to say something specific about it.'

p 506 [18] - 518 [20] Discussion

Charge p 1340 [28] top 1341 [1] The trial judge's very brief mention in his charge about this incident was insufficient.

1. The accumulation of above grounds errors amounted to a miscarriage of justice.

15 The five proposed grounds upon which the applicant now relies first came to the attention of the Court on the morning of the hearing of the application. Nor were they provided to the Crown before the date of hearing, despite being referred to the applicant's submissions. The Court nevertheless proceeded to hear the leave application on the basis of these five grounds, while reserving its position about the late notification.

16 Evidence that was not available to the accused at trial may be used as a basis for a finding that there has been a miscarriage of justice. Such evidence may establish the innocence of the applicant; or it may raise a reasonable doubt about his guilt. If the former, the original verdict will be quashed, a verdict of not guilty will be substituted, and the applicant will be discharged. If the latter (being of such credibility and cogency that, although when read with the evidence given at the trial, it does not establish innocence, it nevertheless raises such a doubt about the applicant's guilt that it is likely there would have been a different verdict) the Court may quash the verdict and order that a new trial be had.[2]

17 Counsel for the applicant conceded that none of the pieces of fresh evidence put forward would, if accepted, establish his client's innocence; rather, they fell into the latter category.

18 In determining whether the evidence is 'fresh', the applicant must show that the evidence was neither available to him at the trial, nor could with reasonable diligence have been discovered and made available for use by that time.[3] However, in order to establish that there has been a miscarriage of justice, the applicant must also demonstrate that the evidence is relevant and otherwise admissible, and that it is apparently credible (or at least capable of belief) or plausible.[4]

19 Irrelevant evidence is, of course, never admissible. That was and is the problem with the first two of three statutory declarations relied upon by the applicant.

20 One of the inadmissible two was made by Mr Alan Herbert, father of Marc Herbert. In this declaration Mr Herbert stated:

... that, on or about November 2004 I had received a sum of money from my son Marc (deceased) approximately $1,500 which he had won at the Casino. I did not include this in the statement taken by the homicide squad. I remember a police officer disputing the date in which my son had purchased certain items e.g. TV etc.

21 This evidence is irrelevant. The fact, if it be a fact, that Marc Herbert gave his father the proceeds of some winnings at the Casino says nothing at all about Wally White's activities on 28 November 2004. It seems that the applicant wanted to argue that what Marc Herbert really meant was that the $1,500 came not from gambling, but from his participation in the robbery of 28 November. Marc's role, if any, that night was very relevant. But the applicant cannot, at least not in the circumstances which presently obtain, successfully put forward as fresh evidence a statement which says one thing but, if it is to be used to the applicant's advantage, must be taken as saying something else.

22 The statutory declaration made by Katrina Dixon, a former girlfriend of Marc Herbert, upon which counsel for the applicant also relied, is also irrelevant. She declared that, as she and Herbert were driving past the 'pokies on Springvale Road', in late 2004, he turned to her and said 'that's the place I done over and the security guard got shot'. While she added that Herbert 'never mentioned to me about a Wally White being involved in any of this!' she did not suggest that her boyfriend admitted to being the gunman.

23 These statements are irrelevant because they are no more than statements of the uncontested truth. Marc Herbert did commit an armed robbery on the venue. That venue did happen to be the place where Mr Gully subsequently got shot. The declaration says nothing new. It cannot, therefore, constitute fresh evidence.

24 That leaves the fresh evidence said to be available from Chhen So. At trial Ms So swore that during an access visit about a month after the first trial, while the applicant was on remand, she spoke to him about rumours that he had been involved in the robbery. The applicant's response was to accuse her of pressuring him. She took this, she said, to mean that the pressure was financially based, although he did not say that.

25 For its part, the prosecution relied upon this evidence as an admission by the applicant that he had a motive for his involvement in the robbery. Indeed, counsel for White submitted at the hearing of the appeal that fresh evidence in refutation should now be allowed because motive was a crucial part of the Crown's case.

26 In truth, however, motive was far from crucial. Armed robbers usually have a financially-based motive for doing what they do. It was not in this case especially important for the Crown to prove that White's motive was to improve the financial position of himself and his domestic partner. And in any event Ms So's evidence on the point was equivocal. As has been seen, she did record the applicant's suggestion that she was putting him under financial pressure; but she also said that the financial position of the household was 'fine' - she had funds with which to pay off the two loans for the land and the building and to sustain her living expenses. She had purchased a block of land at the end of 2003 in Lynbrook and had taken out a mortgage in her own name with the ANZ Bank. In November 2004 work had started on building a home on this land.

Were you under financial pressure as at November 2004?---I was under financial - I had purchased some curtains, they were about $12,000 to $14,000. That was the only pressure, apart from just general bills, paying the mortgage or the loan and all that. That was ... yes.

Can I come back to my question: were you and he under financial pressure in November 2004?---Money for the curtains, if you call that pressure, yes, but ...

MR HORGAN: Thank you.

MR STUART: 'But'.

MR HORGAN: Have you got some objection?

MR STUART: My learned friend interrupted the answer.

HIS HONOUR: Did you want to add something? I think you said 'but'?---Just curtains, that's it. I didn't - just besides having my general land loan and construction loan, general living expenses, there was no other financial pressure besides purchasing some curtains.

28 The fresh evidence now raised by the applicant in relation to Ms So is to be found in a statutory declaration made by her on 24 March 2009. Ms So in this new document declared that she wanted:

... to correct my statements that were made during the last trial against Wally White. At the time I was scared and felt quite distressed while my family and I were intimidated by the St Kilda Homicide Squad.

She described being under financial pressure when the mortgage payments fell into arrears and the house was under threat of repossession, but it clear from the statement that this pressure was operative not at the time that the robbery occurred, but later after the applicant was arrested. She stated that, even though he was in prison, the applicant 'felt the pressure as much as I did, he wanted to help but he didn't know how to being where he is. ... He kept telling me to stop pressuring him, he wouldn't accept the land for our home to help me or to get himself a lawyer I had to refinance the house.'

29 The land there referred to was owned by the applicant's elderly aunt. Eventually, however, the applicant was persuaded by his aunt to take a transfer of that land before she died and it was used to prevent the Bank repossessing the land and house owned by Ms So. Ms So noted that '... because I wouldn't co-operate with the St Kilda Homicide they dropped the hold for the house to be repossessed not knowing that Wally's aunty had already saved it from being repossessed.'

30 Although this account is, as counsel for the applicant acknowledged, somewhat 'stream of consciousness', it would seem that Ms So seeks now to say that her earlier evidence that the applicant responded that he felt pressured by her when she raised rumours of his involvement in the robbery, was in fact a reference to his resistance to taking a gift of his aunt's land, well after the robbery, when he was on remand. If that is accepted, the applicant's reference to pressure could not be used by the Crown to show a motive for him to participate in the robbery.

31 Ms So also declared that she felt she was being harassed by the members of the homicide squad visiting her 'constantly', especially at her workplace. According to this statement, the police offered to help in alleviating the threat of repossession of her house but then used that to place her under pressure, she says, to give misleading evidence at the trial. So she writes:

So, our house being in the position of repossession in which the St Kilda Homicide Squad knew of, advised me that they could save our house from being repossessed only if I co-operate with them. They wanted me to say that Wally White said he done it but at no time did Wally ever say to me that he committed the crime that was brought against him. ...

...

It started to get more dramatic during the last trial where it was a stand over situation where I was in a position to do and say as I was told. Even if on any occasion something wasn't correct I had no choice. From then I started to question mine and my family's safety. I started having anxiety attacks every so often and had to be on prescribed medication, something I've never had before. Everything was too overwhelming for me, I was afraid that my life would be in danger if not my own family, had I not done what I was told to do by the St Kilda Homicide Squad. ...

32 The Crown submits that this Court could not find the evidence of Ms So to be credible given that, in making her declaration asserting she lied at the trial, she shows herself to be a perjurer. Moreover, as the applicant's partner, Ms So also has an obvious motive to lie when giving this new evidence. None of the matters now covered by her statutory declaration were the subject of evidence at trial, not even following extensive cross examination by experienced defence counsel. Nor were any allegations of impropriety put to any of the police witnesses at trial. Alternatively, there was no miscarriage of justice. The Crown case was strong. There is no likelihood, the Crown submission continued, that - when considered in the context of the other evidence relied upon by the Crown - this evidence would have led the jury to return a different verdict.

33 It should also be observed that the assertion by a witness that he or she perjured himself or herself at the trial is not of itself sufficient to admit fresh evidence. In Davies v The King[5] the Court said:

A declaration by a witness that he has committed perjury cannot possibly be accepted as a ground in itself for setting aside the result of a trial in which the witness has given evidence. If the contrary were held, the whole administration of both civil and criminal justice would be undermined. The subsequent discovery that some evidence (as in this case) is said by the witness who gave it to be false, or is actually proved to be false, cannot, as a general rule, be allowed as a ground in itself for setting aside a verdict or judgment. But if the verdict is open to objection upon a ground affected by such evidence, the case is different. It would not be wise to attempt to frame a universal rule even for such cases. As the Full Court indicates in its judgment, the subsequent statement that the original evidence is false may be explainable by pressure brought to bear upon a witness or by the operation of any one of an indefinite number of motives. Each case should be treated in relation to its own facts.[6]

34 This passage is applicable here. Taken at its highest, the additional evidence of Ms So undermines the proposition that the applicant had a particular motive - to improve the household finances of himself and his domestic partner Chhen So - to commit the robbery on 28 November 2004. But motive is not an element of the crime of either armed robbery or murder, although it has a powerful forensic role to play. Even without this evidence, then, it seems to me that it was open to the jury to convict the applicant on the compelling testimony otherwise relied upon in the Crown case. That evidence included that given by the two Kohunui brothers, and by the three witnesses Lek, Din or Tourangi. When considered in the context of that evidence, I do not think that even had Ms So given evidence that the applicant made no mention to her of being involved in the robbery on 28 November 2004, and that his reference to 'pressure' related to post event financial worries, it would have caused the jury to entertain a reasonable doubt about the guilt of the applicant. In other words, the general rule about the unacceptability of a declaration that the witness committed perjury remains applicable to the circumstances of this case. This verdict is not open to objection upon a ground affected by this evidence. I would therefore dismiss Ground 1.

35 The applicant complains that the trial judge, in explaining the standard of proof in his charge, included the erroneous statement that the onus lay on the Crown to eliminate beyond reasonable doubt that the third robber on 28 November 2004 was Marc Herbert. This suggested that, if the jury was satisfied to the requisite standard that the Crown had eliminated Marc Herbert, then the applicant must have been the third robber. But that was wrong. It might have been someone else again. Accordingly, the applicant submits, his Honour should have explained that the Crown was required to satisfy the jury that all alternative hypotheses consistent with innocence, of which only one was that it was Marc Herbert who was involved, had been excluded.

36 The impugned passage appears during his Honour's summary of the defence case. After noting that the defence does not have to prove anything, his Honour pointed to what he described as 'three blocks of evidence' which according to the defence demonstrated that the applicant was not the man who murdered Mr Gully: first, evidence that the Kohunui brothers had everything they needed for the second robbery and did not require the assistance of the applicant; secondly, the pattern of telephone calls from the Kohunui brothers to the applicant shortly before the robbery; and finally, ten items of circumstantial evidence that it was Marc Herbert who was the third robber, and the man who fired the rifle. His Honour further noted that the defence attacked the credit not only of the Kohunui brothers, but also of Marc Herbert, and Messrs Dinh, Lek and Tourangi, as well as that of Ms So. And, his Honour reminded the jury, the applicant's account (given to the police when interviewed by them) was that he was at home when the robbery took place. His Honour continued:

All of that, the defence say, means that you cannot find beyond reasonable doubt that it was Wally White who was the armed robber with the rifle and as the prosecution made clear in their own address, the defence does not have to prove it was Marc Herbert, the issue is has the prosecution proved beyond reasonable doubt it was Wally White? Has the prosecution eliminated beyond reasonable doubt the possibility it was Herbert?

37 An issue was raised by the Crown during the charge in the absence of the jury about whether his Honour used 'reasonable' in the passage quoted above. While the word appears in the transcript, senior counsel for the Crown and his junior maintained his Honour did not use it. His Honour's recollection was to the contrary, but out of an excess of caution, he raised the matter with jury and repeated:

The issue is, has the prosecution proved beyond reasonable doubt it was White; have they eliminated beyond reasonable doubt the possibility that it was Herbert.

38 Counsel for the applicant submitted that the inclusion of the sentence 'Has the prosecution eliminated beyond reasonable doubt the possibility it was Herbert?' would have caused confusion for the jury, by undermining the preceding direction.

39 I agree with the submission of the Crown that his Honour's charge was impeccable. In accordance with the principles enunciated in R v AJS[7] the trial judge, having ascertained that the real issue in the case was the identity of the third man on 28 November 2004, directed the jury on only so much of the law as was necessary to enable it to resolve that issue; and he tailored his explanation of how the law applied to that question. His Honour also made it clear throughout that the burden lay on the Crown to prove each element of its case, and that the accused need prove nothing. So, for example, the Crown points to the following passage from the charge:

As I have indicated, the way the case has been presented to you and argued has been on the basis that there is only one issue: was it the acts of the accused? Mr Stuart, at the very outset, said to you that whoever was the man with the rifle that night did commit a murder; the question is, has the Crown proved beyond reasonable doubt that that person was the accused? But just because the defence has adopted this approach, that does not mean that you do not have to be satisfied of all of those elements beyond reasonable doubt before you can convict the accused. So all of those things have to be established beyond reasonable doubt for the accused to be guilty of murder.

40 I do not accept the applicant's contention that the direction given by his Honour was either confusing or reversed the burden of proof. Once the defence raised an alternative hypothesis consistent with innocence - that it was not the applicant, but Marc Herbert, who was involved - his Honour did no more than direct the jury that it must be satisfied beyond reasonable doubt that the Crown had excluded that hypothesis. His Honour repeatedly reminded the jury that the onus lay on the Crown to prove each element of its case beyond reasonable doubt. No exception was taken by experienced trial counsel. This ground must fail.

Ground 3 (Failure to direct on all possible verdicts)

41 The applicant says that the trial judge should have explained to the jury that it was open to them to find the applicant guilty of armed robbery but not of murder. This was notwithstanding that the defence claimed that Marc Herbert, not the applicant, was the third robber. His Honour was obliged to direct the jury that each count stood on its own and should be considered separately.

42 The Crown submits that, applying the R v AJS[8] principles, such a separate direction was unnecessary and irrelevant. All of the evidence in this case was relevant to both counts. Given the way the case was run, there was no view of the evidence open to the jury that would have enabled then to convict the applicant of one offence and not the other.

43 In my opinion, this ground must also fail. There was no realistic prospect that the jury would convict of one count and not of the other. Counsel for the applicant conceded that it was not open on the evidence for the jury to find that, although the applicant was present, he was not the one who discharged the firearm. In my view, a direction in the terms asserted by the applicant was unnecessary. Indeed, as the Court observed in R v McCulloch,[9] such a requirement would have 'a remarkable air of unreality about it when regard is had to the manner in which the trial was conducted on behalf of the applicant.' Again, very experienced defence counsel did not take any exception.

Ground 4 (Directions of consciousness of guilt)

44 The applicant told the police that he was at home when the robbery took place. The prosecution allege that this was not just a lie going merely to the applicant's credit, but could also be used by the jury as evidence of consciousness of guilt. That being the position of the Crown, the applicant submits that the trial judge ought to have given an extended Edwards direction[10] to the effect that there may have been reasons, apart from the realization of guilt, for the applicant to have lied in his record of interview about his whereabouts on the night of 28 November. In the current case, the applicant submits that his Honour failed to direct the jury that the lies 'could stem from the applicant being wary of being implicated as either an accessory after the fact to murder or as an armed robber.' Counsel submitted that it was open on the evidence for the jury to find that the applicant's involvement was limited to assisting Tame Kohunui, who was shot in the buttock, after the robbery.

45 When in his charge the trial judge gave directions to the jury about the use they might make of lies told by the applicant to establish consciousness of guilt, his Honour said:

The fourth requirement is this: you must be satisfied that the reason why the accused told the lie was because he believed that he had committed the crime you are considering or some aspect of it and he believed that he would be implicated in that crime if he told the truth. In other words, he told the lie because he believed the truth would tend to show he was responsible for the crime and he wanted to avoid that happening.

In considering whether this is the case you should be aware that people may lie for all sorts of reasons. Lying to avoid being linked to a crime he has committed is only one possible motivation. Other possibilities include things of a general nature which might cause people to lie like panic or shame or fear of the police, the desire to move police attention away from themselves, guilt about the exposure of some unrelated wrongdoing or perceived wrongdoing. Here you must also consider possibilities more specifically referable to this accused, such as concern about the exposure of some aspect of his drug trafficking activities. He seems to have made no secret of the fact he was a drug trafficker but there might be some aspect of it he was concerned not to reveal and this might provide the explanation you might think for one or more of the alleged lies, but that is a possibility specifically referable to him. Another possibility is concern that he would be wrongly implicated because of his association with the Kohunuis.

It is for the prosecution to eliminate all these other possibilities. If you cannot exclude the possibility that the accused lied for one or more of these other reasons, you cannot use the lie as evidence that he has implicitly admitted responsibility for the crime. You may only use the lie in this way if you are satisfied the reason for the lie was that the accused believed he had committed the crime you are considering or some aspect of it and he believed that by telling the truth he would be implicated in it.

46 The Crown says that the direction given by his Honour was full and complete. The directions in their terms made it clear that the lies were relevant only to the crimes under consideration, namely, murder and armed robbery. There was no suggestion put at trial that an alternative reason for him to have lied was an apprehension that he might be implicated as an accessory after the fact. And no exception was taken.

47 In my opinion, it is apparent from the terms of this direction that his Honour clearly told the jury that they must be satisfied that the lies related to a consciousness of guilt that the applicant was involved in the armed robbery and the murder.

48 On 24 October 2007, at the end of the eighth day of hearing, as Marc Herbert was leaving the courtroom and while the jury were still present, it would appear that he said something to the applicant, who was then in the dock. The trial judge raised the matter with counsel after the jury left for the day. The following exchange took place with counsel:

HIS HONOUR: Was I right that Mr Herbert said something to the accused as he went out?

MR STUART: I heard something. May my instructor approach the dock, Your Honour?

HIS HONOUR: I didn't hear what it was.

MR STUART: Nor did I, Your Honour.

HIS HONOUR: I don't even know if it was said to the accused. I don't know. He was saying something as he walked near the door or between the accused and the door but I don't know whether it was ...

MR STUART: I don't know whether the security officer heard it.

HIS HONOUR: No.

SECURITY OFFICER: I didn't, Your Honour.

HIS HONOUR: If no one in the court heard it, I will probably assume no one in the jury heard it. But I think some of them might have seen what I saw, which was he was definitely saying something.

MR HORGAN: Something definitely happened because I looked around.

MR STUART: My client didn't hear what was said. Something was said.

HIS HONOUR: He might not have been - I am probably in the best position to see it and I am not convinced he was talking to the accused because he didn't seem to be looking at him, although he wasn't far from him. He was sort of walking along the back row of the chairs.

MR STUART: Your Honour, I don't know that anything can be made of it one way or the other in the end.

HIS HONOUR: There is no doubt the accused was the closest person to him. If he didn't hear it, I will just leave it at that. I will adjourn until 10.30 tomorrow morning.

49 The following day his Honour questioned Marc Herbert in the absence of the jury. It seems that by this point the jury had sent a note to his Honour in the following terms:

The comments to [sic] the witness Marc Herbert to the accused Wally White as he left the court yesterday were clearly heard by some members of the jury. Would the judge like to direct us on this matter?

His Honour then questioned Mr Herbert, who said he told the accused man 'plead guilty' or 'something like that'. His Honour then had the jury brought back into the courtroom and asked that the foreperson make a note of what the various jurors said they heard.

50 Counsel were then provided with a copy of the resulting jury note. The note read as follows:

? Cunt. I'll see you again.

Herbert made eye contact with a number of jurors as he said this.

51 After considering the matter, counsel for the accused indicated he intended to cross examine Mr Herbert, noting that:

A jury is entitled to take into account the demeanour and the manner of conduct of a witness, not only when he or she is in the witness box but in walking to and from that witness box, and if he or she demonstrates animus against the accused as this on one view is, or he lies about what was said, a jury can take into account the whole of what occurs in court. ... In addition to that, if a witness evidences a threat to the accused: 'I will see you again', then that animus I am entitled to explore.

The prosecutor, however, submitted that these events, where only some of the members of the jury heard what was said, in effect transforms the jury into witnesses in the case they are trying. That is unprecedented. It would therefore be fraught with danger for counsel for the accused to cross examine on evidence of this nature.

52 The trial judge then put to counsel for the accused the following:

Mr Stuart, do you want the jury discharged because I think that is what I will have to do if you are going to cross-examine him about what happened? Because I can't make them witnesses in the case. You want to make them witnesses. You want to put to him that he is lying about what he said. There are jurors who have personal knowledge of that. They are witnesses to that incident. They can't stay on the jury once that becomes an issue. The jury will decide that issue, to the extent it is relevant at all, on the basis of what their fellow jurors tell them, not on the basis of what the evidence is, won't they?

53 Counsel for the accused indicated he was in a bind about what to do. A discussion then ensued between his Honour and both counsel. At one point his Honour said the following:

You see, Mr Stuart, you might be right, that I can't stop you confronting Herbert with this issue, but at the moment, I think, as soon as you do I will have to discharge the jury and you can call them as witnesses in the next trial if you like, if it is such an important issue, but I can't leave it on the basis that some of them are personal witnesses to the issue that you want to explore. ...

The trial judge then had the following exchange with the accused's counsel:

But sometimes it just happens that way. Anyway, what I will do is I will stand down and you can talk about whether there is some way you are both prepared to try to steer through it. Unfortunately, I can't rely on your judgment, being here and having witnessed it all, in terms of how it may be construed in the future. It is a pity, I think, but there you have it, that's the way things are.

MR STUART: Sorry, I didn't follow that, Your Honour.

HIS HONOUR: Well, the fact of the matter is even if you say 'I would like to proceed in such-and-such a way', in some months' time a different court might decide, notwithstanding what you have said, there is some difficulty and that means we have got to start again anyway, which makes me cautious.

MR STUART: Your Honour, if Your Honour is worried that some appellate lawyer will come along - - -

HIS HONOUR: That's what happens all the time.

MR STUART: It does, Your Honour. And a powerful answer to such a submission is that that wasn't how trial counsel saw it.

HIS HONOUR: You would have thought that would be a powerful answer, but it isn't always.

MR STUART: Your Honour, that often has more effect where nothing has been drawn to the attention of trial counsel.

HIS HONOUR: Yes, that is true.

54 Following a short adjournment, defence counsel informed his Honour that he and the prosecutor had reached an agreed position, namely, that he would not pursue the matter with the witness in cross examination. He invited his Honour not to give any directions on the matter at that stage, but instead to give general directions concerning witnesses, their credibility and their reliability during the charge.

55 His Honour pointed out that the jury had sought a direction from his Honour in their first note. He was, however persuaded by both counsel to tell the jury that it was not appropriate to give any directions at this point in the trial. Accordingly, when the jury returned to the courtroom, his Honour said:

On the second matter you raised about the incident in the courtroom yesterday afternoon, the two barristers have both submitted to me, and I have accepted it, that I shouldn't give you any specific direction about that incident. In due course, at the end of the case I will be giving you some directions at some length about the credibility and reliability of witnesses and about your role in that process. So that is all I'm going to say about that at the moment.

56 Neither counsel sought to have the jury discharged. Later, during the charge, his Honour returned to the subject. He said:

You raised at one point a question about the conduct of one witness in the courtroom but not in the witness box. Well, you are not required to be blind to conduct inside the courtroom but not in the witness box and you can take that into account.

57 Counsel on this application now submits that defence counsel at the trial was pressured not to cross examine Mr Herbert. And the direction given by his Honour was insufficient.

58 I disagree. In my opinion, his Honour dealt impeccably with a novel and difficult situation. It is clear that defence counsel and the senior prosecutor, both of whom are experienced trial counsel, were parties to the decision to proceed as outlined above. His Honour stood the matter down on several occasions to give counsel time to consider the notes provided by the jury and then to decide on a course of action. No application was made to discharge the jury, and no objection was taken to the manner in which this was handled - as indeed there could not have been, given that his Honour accepted a position agreed to between counsel. Forensically, it was in the applicant's interests not to discharge the jury. A balance needed to be struck between, on the one hand, allowing the jury who had witnessed the incident to take into account Mr Herbert's animosity towards the applicant when assessing the former's credibility, and on the other, not pressing the matter so far that the discharge of the jury became inevitable. In my view, the reference to the necessity to discharge the jury if defence counsel proceeded to cross examine Herbert did not place undue pressure on counsel. It was to do no more than properly inform him of what the judge rightly saw as the consequence of adopting that course. This ground too must fail.

59 In my opinion, none of the proposed grounds of appeal are made out. I would accordingly refuse leave to appeal against conviction.

Application for leave to appeal against sentence

60 The applicant seeks leave to appeal against sentence on the following proposed grounds:

1. The learned judge erred in failing to discount either of the individual sentences or the extent of cumulation between those sentences on account of double punishment arising from the fact that the shooting formed part of the armed robbery.
2. The direction for cumulation, the total effective sentence and the non-parole period are manifestly excessive.

61 During the course of the hearing of the application, counsel sought leave to add a further ground raising the parity principle in relation to the sentences imposed on the Kohunui brothers. The Court reserved its position on this application.

62 It will be remembered that the sentencing judge directed that four years of the sentence of seven years imposed on the armed robbery count were to be served cumulatively on the 22 years imposed for the conviction for murder. The result was a total effective sentence of 26 years' imprisonment.

63 The applicant submits that the shooting of Mr Gully formed an integral part of the armed robbery, with that act of violence enabling the theft of the money. There should, therefore, have been either total concurrency, or at least a much greater degree of concurrency. The absence of any reasons for directing the cumulation that he did suggests that his Honour could not have considered the issue of double punishment, and, in the absence of such consideration, impermissibly loaded both sentences with elements of the criminality of the other.

64 The Crown says there was no double punishment. The armed robbery had its own set of victims, while Mr Gully was the particularly tragic victim of the shooting. The former included two members of the Club's staff, who submitted victim impact statements. What is more (the Crown submission continued) both of the sentences were open and within range. A degree of cumulation was appropriate; indeed, that was recognised by the Court of Appeal when it re-sentenced the Kohunui brothers and directed cumulation in the order of 50 per cent.[11] And the Court there recognised that the killing of Mr Gully was, in the case of the Kohunui brothers, a serious example of manslaughter by unlawful and dangerous act. Had the brothers not assisted the authorities and not pleaded guilty, Kellam JA indicated the appropriate sentence on that count would have been in the range of 12 to 14 years' imprisonment. And the range for the counts of armed robbery would have been seven to ten years.[12] That is a highly persuasive indication of the seriousness of each of the offences. By analogy, 22 years' imprisonment for murder was open and appropriate. It does not suggest that there was any loading of the sentence because the murder took place in the context of an armed robbery. Likewise, the sentence imposed on the applicant for armed robbery was within the range indicated by Kellam JA.

65 In his sentencing remarks his Honour acknowledged that the two crimes formed part of the one episode. Nonetheless, his view was that some cumulation was necessary 'to reflect the serious additional criminality involved in the two crimes notwithstanding that they were committed in the one episode.'[13]

66 I agree with his Honour. These were very serious examples of both offences. A degree of cumulation was open in order to evince the Court's condemnation of the applicant's conduct in not only engaging in an armed robbery, but also shooting a man who was performing his duty and who was attempting to induce a semblance of calm in a highly charged situation when he was callously gunned down. It is clear by his Honour's reference to the two offences as being part of the one episode that the judge was cognisant of the need to take into account double punishment. In my view, there was no element of double punishment, and four years' cumulation was well within range. This ground must fail.

67 In addition to submitting that the cumulation the subject of ground 1 is manifestly excessive, counsel for the applicant contended that the total effective sentence and the non-parole period 'overstated the total criminality' and as a result are manifestly excessive. Counsel added that the applicant is a protection prisoner.

68 As the Court of Criminal Appeal of this Court said in R v Kenny:[14]

In order to make good a submission that that the sentences passed are excessive, it is essential for an applicant to show that the sentences are manifestly and not merely arguably excessive. Such a submission is not one which is capable of a great deal of elaboration.

69 In this case, the applicant has the further difficulty that the judge, in his reasons for sentence, carefully considered the relevant factors. In these circumstances, the words of Maxwell P in R v Studdard[15] are apposite:

When the sentencing task has obviously been performed carefully and cogently by the sentencing judge, to whom our law confides that function, it will always be difficult, in my view, for a submission of manifest excess to succeed. The appellant must persuade the appeal court that, despite the sentencing function apparently having been conscientiously discharged, nevertheless the judge went so badly wrong ... that this Court should be satisfied that the discretion was not properly exercised at law.

70 I do not think that, in this case, his Honour went wrong at all. The sentences were in my opinion in each case within the range which was open to the judge.

71 The reference to the applicant serving his time in protection as noted in [67] above arose for the first and only time as a mere statement from the Bar table. No evidence was called in support. The judge made allowance for it in his reasons for sentence. He then said:

It is difficult to assess what the circumstances of your incarceration are likely to be. The position between you and the two Kohunuis may mean that some placement options will not be open to you because of the need to separate you from them. It may be necessary to take steps for your protection. Your counsel accepted on the plea that in the present circumstances it was not possible to go any further than to say that your incarceration is likely to be more burdensome than it would otherwise be for an indeterminate period. I proceed on that basis, and I have taken that matter into account.[16]

72 There is no basis upon which this Court, in these circumstances, can take the matter further. As this Court said in the following extract from its judgment in Carroll v The Queen:[17]

There is clear authority in this Court that evidence of this kind - showing that a person became a protection prisoner subsequent to being sentenced - satisfies the tests laid down in R v Eliasen[18] for the admission of evidence on appeal.[19] But, as those authorities make clear, the question for the appeal court is whether, having regard to the material, a different sentence should be substituted for that passed by the sentencing judge. That will, in turn, require an assessment of the actual effect on the appellant of his classification as a protection prisoner. As was pointed out, respectively, by Kellam JA and Whelan AJA in R v Males,[20] the degree of restriction varies greatly from one case to the other.

73 To this passage may be added an extract from the judgment of this Court in The Queen v Males:[21]

In recent times it has become common for counsel to make a submission from the Bar table that a particular prisoner is in protective custody or, alternatively, by reason of the nature of his or her offence, will be placed in protective custody, without the provision of any detail to assist the sentencing judge as to the degree of burden that may be placed upon that prisoner. A substantial proportion of prisoners in Victoria are in protective custody of varying types and for a variety of reasons. The circumstances of that protective custody can vary significantly. There are prisoners in protective custody in high security prisons, which custody places significant limits upon their ability to mix with other prisoners, engage in programs and access facilities which are otherwise available to mainstream prisoners. On the other hand, there are prisoners in protective custody in prisons which cater entirely for prisoners with a protected status, where access to all services, facilities and programs provided by the prison are in no way limited. It is incumbent upon counsel for both the prosecution and the defence to provide such information as is available as to the true circumstances of protective custody and the actual hardship such custody is likely to cause, if a submission is made before a sentencing judge that such a matter is relevant to the sentencing task faced by that judge.

75 On behalf of the applicant it was submitted that, notwithstanding the differences between the circumstances of the two Kohunui brothers and the applicant, there was such a disparity between the sentences imposed on the co-offenders so as to offend the parity principle.

76 The two Kohunui brothers received the same sentence and non-parole period. Each of them pleaded guilty to one count of manslaughter and to two counts of armed robbery (the first of which was for the robbery committed on 2 November 2004). The maximum penalty for manslaughter is 20 years' imprisonment. They were sentenced on 8 May 2007 as follows:

No information was before this Court about any declaration made by the sentencing judge pursuant to s 6AAA of the Sentencing Act 1991.

78 The different circumstances pertaining to the Kohunui brothers were that they pleaded guilty to a count of manslaughter, while the applicant was convicted following trial of murder; Tame Kohunui co-operated with the police; and they both agreed to give evidence at the trial of the applicant. The applicant acknowledges that given these factors, a discounted sentence was open. But, he submits, the disparity was not justified. It was asserted on his behalf that Tame Kohunui was the ringleader of the group, and that it was he and his brother who were instrumental in organising both of these robberies. They had significant prior convictions - in particular Tame, who had a number of convictions for violence[22] - while the applicant's prior convictions were less extensive.[23] Furthermore, it was Tame Kohunui's rapid approach to Mr Gully, knife in hand, during the standoff that caused the incident to escalate, resulting in the gunfight.

79 The Crown points out that a discount of 40 to 50 per cent for co-operation with the authorities to bring a co-offender to justice, particularly where there was a chance that the Crown case could not have been established without such assistance, is not uncommon. There were many mitigating factors applicable to the Kohunui brothers that are simply not present for the applicant. And whatever role the brothers played in instigating the robbery, as his Honour found, it was the applicant who took the initiative to bring the firearm when it became apparent that the Club had engaged a security guard and it was he who killed Mr Gully.

80 In my opinion, the differences in the sentences are justified. While I would allow the applicant to raise this proposed ground, albeit very late, I would refuse leave to appeal on this basis.

81 I would refuse leave to appeal on all three grounds.

82 I have had the advantage of reading in draft the reasons of Harper JA. I agree with his reasons and conclusion that leave to appeal should be refused on all grounds.

[1] This is the spelling adopted by Ms So.

[2] Ratten v The Queen [1974] HCA 35; (1974) 131 CLR 510, 520-521 (Barwick CJ); affirmed in Lawless v The Queen [1979] HCA 49; (1979) 142 CLR 659, in particular 674-675 (Mason J).

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

[4] Ratten ibid 518, R v Nguyen and Tran [1998] 4 VR 394, 400 (Kenny JA).

[5] [1937] HCA 27; (1937) 57 CLR 170.

[7] [2005] VSCA 288; (2005) 12 VR 563, [55] (Maxwell P, Nettle JA and Redlich AJA).

[8] [2005] VSCA 288; (2005) 12 VR 563, [55] (Maxwell P, Nettle JA and Redlich AJA).

[9] [2009] VSCA 34; (2009) 21 VR 340, [27].

[10] Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193, 211 (Deane, Dawson and Gaudron JJ).

[11] R v John Kohunui; R v Tame Kohunui [2009] VSCA 31, [37] (Kellam JA).

[13] [2008] VSC 39, [42].

[14] Unreported, 2 October 1978, Young CJ.

[15] [2006] VSCA 112, [26].

[17] [2011] VSCA 150, [39]-[40] (Maxwell P)

[18] (1991) 53 A Crim R 391, 394.

[19] R v Rostom [1996] VicRp 60; [1996] 2 VR 97.

[20] [2007] VSCA 302, [38], [40], [5].

[21] [2007] VSCA 302, [40] (Kellam JA).

[22] R v John Kohunui; R v Tame Kohunui [2009] VSCA 31, [31] and [32].

[23] R v White [2008] VSC 39, [34].