Borg v The King

SUPREME COURT OF VICTORIA
COURT OF APPEAL

S EAPCR 2022 0180

LEONARD BORG	Applicant
v
THE KING	Respondent

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JUDGES:	PRIEST, TAYLOR and KAYE JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	11 April 2024
DATE OF JUDGMENT:	16 April 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 65
JUDGMENT APPEALED FROM:	DPP v Borg (Unreported, Supreme Court of Victoria, 2 April 2012, Lasry J)

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CRIMINAL LAW – Appeal – Conviction – Murder – Application for an extension of time – Whether defence counsel incompetent – Where counsel’s cross-examination relied on an overheard conversation between witnesses – Where counsel accused a witness under cross-examination of being the murderer – Where counsel’s cross-examination criticised by trial judge for repeating prosecution case – Incompetence not demonstrated – Application for an extension of time refused – TKWJ v The Queen (2002) 212 CLR 124 considered.

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Counsel
Applicant:		Mr C Mandy SC with Mr G Chipkin for the Applicant
Respondent:		Mr M D Stanton and Mr G Buchhorn for the Respondent
Solicitors
Applicant:	Christopher Dale OAM
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA
TAYLOR JA
KAYE JA:

Introduction

Almost 12 years ago, on 2 April 2012, after a trial in the Supreme Court of nine weeks’ duration, a jury found the applicant guilty of murdering an associate, Peter Rule.
Following the jury’s verdict, the applicant pleaded guilty to handling stolen goods and cultivating a narcotic plant, cannabis.
On 21 November 2012, the judge imposed a total effective sentence of 23 years and nine months’ imprisonment, with a non-parole period of 19 years.[1] That sentence was, however, held to be manifestly inadequate on an appeal by the Director of Public Prosecutions, and, on 22 July 2013, this Court resentenced the applicant to a total effective sentence of 28 years and nine months’ imprisonment, with a non-parole period of 24 years and nine months.[2]
[1]DPP v Borg [2012] VSC 565 (Lasry J).
[2]DPP v Borg [2013] VSCA 181 (Buchanan, Nettle and Osborn JJA). The individual sentences were 28 years’ imprisonment for murder; 12 months’ imprisonment for handling stolen goods; and three years’ imprisonment for cultivating a narcotic plant.
On 1 December 2022 — about a decade out of time[3] — the applicant sought to file a Notice of Application for Leave to Appeal Against Conviction (‘the Notice’) and Written Case, together with an application for an extension of time within which to file the Notice (‘the application’). The application for an extension of time was supported by an affidavit sworn by the applicant on 6 November 2022 (‘the affidavit’).
[3]By virtue of s 275(1) of the Criminal Procedure Act 2009, any application for leave to appeal was required to be filed within 28 days after the applicant was sentenced; that is, on or about 29 November 2012.
If granted an extension of time, the applicant seeks leave to appeal against conviction on a single ground: ‘A substantial miscarriage of justice resulted from the incompetence of defence counsel’.
For the reasons that follow, we consider the application for extension of time should be refused. In our opinion, the putative appeal so lacks merit that an extension of time ought not be granted.
The application for extension of time
Although the discretion whether to extend time must be informed by what the interests of justice require in the circumstances of the particular case, the principles that govern an extension of time focus attention principally on two factors: first, the length of the delay, and the reasons for it; and, secondly, the prospects of the proposed appeal succeeding should the extension be granted. The guiding principles were summarised in Madafferi,[4] and need not be repeated.
[4]Madafferi v The Queen [2017] VSCA 302, [11] (Priest, Hansen and Coghlan JJA) (‘Madafferi’).
When he filed his application for an extension of time, the applicant was unrepresented. In his application, prepared without the assistance of a legal practitioner, the applicant advanced the following ‘reasons’ for failing ‘to serve a notice within the prescribed time’:
•he is illiterate and cannot read or write;
•he has a ‘McKenzie friend’^[[5]] assisting him ‘with all preparations’ because he has ‘difficulty understanding all legal matters’;
•he requires assistance ‘with preparing documents and filing’;
•a clinical, consulting and forensic psychologist examined him on 24 May 2012, and found him to have a full scale IQ of 73;
•since 2015 his family has funded him so that he has a computer in his cell equipped with the Dragon Premium 13 application, enabling him to place a disk in the drive and have the computer read the contents to him;
•he is ‘innocent of this offence of murder’, but has ‘no experience with legal matters and [has] been moved to [four] different gaols and to find someone to assist [him] with legal knowledge in gaol is almost impossible’;
•he has ‘no money’ and relies totally on Legal Aid funding;
•he has resorted to the help of McKenzie friends in gaol ‘and some of those had lawyer friends to give legal advice’;
•he had ‘some help here and there’, and ‘received advice from a Senior Legal Counsel [who] stated this matter is capable of getting back into the Court of Appeal’ due to comments made by the trial judge about senior counsel who defended the applicant, the judge having come to his ‘rescue’ throughout the trial ‘protecting’ him from his own counsel; and
•he is ‘now ready to lodge a conviction appeal with the help of a McKenzie’s [sic] friend and if the matter can be filed [his] family said they would mortgage their house to assist with legal bills if Legal Aid wont [sic] assist [him] to lodge an application for leave to appeal conviction’.
[5]See McKenzie v McKenzie [1971] P 33; [1970] 3 WLR 472; [1970] 3 All ER 1034.
Omitting inessential parts, the applicant’s affidavit — once more prepared without the assistance of a legal practitioner — contains the following:
2I have the help and assistance of a McKenzie’s [sic] friend to prepare this affidavit.
3 I am 38 years old.
…
8When convicted in 2012 and re-sentenced I had great difficulty understanding why I was convicted as I am illiterate and can not [sic] read or write and could not understand what was really happening in Court at that time of my life.
9[A psychologist] examined me for a clinical interview and made [an assessment of a Full Scale IQ of 73] indicating that I function in borderline range of intelligence. While my Verbal Knowledge Score fell in the low average range my non verbal reasoning fell in the mild range of impaired functioning. Chronological Age Equivalence was 10 years 2 months.
I was further assessed [using the Slosson Intelligence Test].
The overall IQ on this test was 72, placing me in the borderline range of functioning. Chronological Age Equivalence was 9 years 8 months.
10In 2015 my parents paid for a computer and an application known as [Dragon Premium 13], which enables me to place a disk in the disk drive and the computer will read the contents to me.
11Since 2015, I have been able to listen to the daily Court procedures [scil, proceedings?] at my trial of 2012, by placing the disk in the computer and listen to it on a daily basis.
12I had great difficulty up until 2015 talking to inmates as being illiterate and not being able to read and write inmates judged me poorly.
13As the years went on I tried to get help from Legal Aid to help me with a conviction appeal and help from inmates that had some legal knowledge to help me.
14I have now matured more in this environment and with the help of some legally minded inmates have come to terms with that a conviction appeal is possible and further advice from a Senior Legal Counsel that I should lodge an application for leave to appeal against conviction.
…
17I have managed to get some good legal advice and opinion from a Senior Counsel and he stated that Justice Lasry who was the trial judge in 2012 trial has given very strong comments in the trial and has established incompetence of Legal Counsel and this should be enough to have the matter looked at for a application for Leave for a Conviction appeal.
18I am lodging an application for leave to appeal against conviction on one ground of a substantial miscarriage of justice resulted from the incompetence of defence counsel.
On the eve of the hearing in this Court, a solicitor acting pro bono for the applicant filed an affidavit in support of the application for extension of time, sworn 10 April 2024. That affidavit, supported by a host of documentary material, addressed a number of matters said to bear upon the delay in filing a notice seeking leave to appeal against conviction: the applicant’s capacity to understand legal matters (including his IQ being 72 or 73); prison conditions leading to delay (including that he had been moved between prisons at least 30 times; had been moved between units a number of times; and had lost relevant documents in the moves); the timeline for the delay (including details of correspondence and telephone calls to lawyers endeavouring to obtain help with an appeal, and his attempts to obtain legal aid funding); the applicant’s communications with the Registry of this Court; and his attempts to make contact with his senior counsel at trial. We need not otherwise set out the contents of the affidavit, save to say that it provided a more complete and satisfactory explanation for the delay than could be gleaned from the documents prepared by the applicant without legal assistance.
In written submissions, counsel for the respondent had opposed the application for an extension of time, submitting that the reasons advanced in support of the application are insufficient, and the proposed ground of appeal is without merit. Counsel submitted that, even accounting for the factors identified by the applicant — including his reduced literacy skills, impaired intellectual capacity and limited resources — the extraordinary near-decade delay remains largely unexplained. This is especially so when the applicant first gained access to text-to-audio technologies and various ‘McKenzie friends’ in 2015.
Fortunately, by the time his applications were heard in this Court, the applicant was represented by a solicitor and counsel. Hence, more than a year after the applicant filed his application for an extension of time and other documents, in early March 2024, the solicitor and counsel — both senior and junior — agreed to act for the applicant on a pro bono basis. We express our gratitude to them for doing so, We also acknowledge the very substantial amount of work that they must have done in preparation for the case. Although the solicitor filed the further affidavit dated 10 April 2024 referred to above, however, pro bono counsel and solicitor did not seek to file a revised application for leave to appeal against conviction or written case, being content to rely on the documents filed personally by their client, supplemented and perfected by oral submissions.
At the outset of the hearing of this Court we indicated to counsel that, since the application for an extension of time would likely ‘rise or fall based on the merits of the putative application for leave to appeal against conviction’, counsel should direct their oral submissions to the merits of the proposed application for leave appeal.
As we will explain, when the merits of the proposed appeal are properly analysed, we consider it to be abundantly clear that it inevitably must fail. It would therefore be futile to grant the application for an extension of time.
The prosecution case at trial
Before turning to an analysis of the merits of the putative appeal, it is necessary to say something of the prosecution case.
The evidence at trial established that the applicant and Peter Rule knew each other and had a number of mutual acquaintances.
Further, the evidence established that, at relevant times, the applicant was growing cannabis crops hydroponically at different locations. One of those locations was a rented factory at 1 Rosanna Court, Craigieburn (‘the Craigieburn factory’), which, in March 2009, came to the attention of the police. The Craigieburn factory crop consisted of about 20 plants. Another location where the applicant cultivated cannabis was a factory that he was renting at 20 Ivanhoe Court, Thomastown (‘the Thomastown factory’).
It seems that the applicant had become friendly with one Michael Spiropoulos (‘Spiropoulos’) in the course of working with him. The applicant told Spiropoulos about the cannabis crops he was growing, and asked Spiropoulos to assist with their cultivation. After several refusals to do so, Spiropoulos agreed.
The evidence suggested that, over time, the applicant grew suspicious of Peter Rule, whom he considered could not be trusted with the knowledge that he was cultivating cannabis. It appears that the applicant became concerned that Mr Rule had informed the police about the Craigieburn factory crop, and told Spiropoulos of those concerns. The applicant also told an associate, Danny Harris (‘Harris’), that he found a hat which he believed belonged to Mr Rule in the vicinity of the Craigieburn factory.
On the prosecution case, the applicant picked Mr Rule up from his home on 15 November 2009 and took him to dinner. After dinner, the applicant drove Mr Rule to a factory in Campbellfield, occupied by an individual, Corey Small. The applicant told Mr Rule that there was a gun hidden in the factory and they should look for it. During the search, the applicant produced a .22 semi-automatic rifle and shot Mr Rule a number of times, killing him (charge 1 – murder).
After shooting Mr Rule, the applicant telephoned Spiropoulos and told him to purchase 15 bottles of bleach, some garbage bags and rags. He instructed Spiropoulos to meet him at the Campbellfield factory and bring the bleach and other items. The evidence was that the applicant and Spiropoulos spent more than an hour cleaning the factory. Thereafter, the applicant drove Mr Rule’s body in the boot of his blue Volvo motor vehicle to the Thomastown factory, telling Spiropoulos to return to the Thomastown factory the following day.
By the time that Spiropoulos arrived the next day, 16 November 2009, the applicant had started burning parts of Mr Rule’s body. A chainsaw was purchased to assist in its dismemberment. The process of dismemberment continued over three days, some body parts being placed into a black tub containing acid. Once the dismemberment of Mr Rule’s body was completed, the applicant and Spiropoulos drove to the Great Ocean Road in the vicinity of Anglesea and Lorne, where they disposed of various items throughout the bush, and washed the tub of acid into the ocean. They purchased new clothes at a menswear shop in Lorne, following which they returned to clean the applicant’s vehicle and to wash and repaint the Thomastown factory floor.
On 23 April 2010, police executed a search warrant at the Thomastown factory and located a white Iveco truck (charge 1 – handling stolen goods), which was listed as a stolen vehicle. Police also located a hydroponic cannabis crop of approximately 64 plants (charge 2 – cultivate narcotic plant). The Thomastown factory had been rented for the purpose of cultivating cannabis, the first crop being established in late April 2009, the second crop in late September 2009 (with approximately 30 to 40 plants), and the third being the crop located by police during their search.
The defence case at trial
That Peter Rule had been murdered was not in issue in the applicant’s trial, the principal issue being the identity of his killer. As we have mentioned, the prosecution case was that the applicant murdered Mr Rule because he suspected that Mr Rule had given information to police about a cannabis crop that the applicant was growing at a rented factory. In essence, the defence case was that the jury could not be satisfied beyond reasonable doubt that the applicant was the murderer, a number of prosecution witnesses being nominated as potential suspects.[6] As we will later discuss in greater detail, Mr Rule’s former housemate, Phillip Lancaster (‘Lancaster’), was among those nominated.
[6]See, e.g., [83] below.
The proposed ground of appeal
The applicant’s sole proposed ground of appeal against conviction contends, as we have said, that a substantial miscarriage of justice resulted from the incompetence of senior counsel who defended him at trial. In a document styled Applicant’s Revised Written Case, signed by the applicant personally, ostensibly dated 27 March 2023 — that is, before counsel took up the applicant’s cause pro bono — he submitted that a substantial miscarriage of justice occurred ‘due to the incompetence of defence counsel at trial’. The applicant submitted in writing ‘that the defence counsel on more than one occasion, deliberately or otherwise, displayed professional negligence’, such occurrences having been identified by the trial judge.
In contending that his counsel was incompetent, the applicant submitted in writing that senior counsel at trial did not have his instructions to accuse Lancaster of the murder of Peter Rule, ‘adding that Phillip Lancaster was the murderer in conjunction with Danny Harris, Neil Higgins and Spiropoulos’. The matter was ‘further complicated by [named senior counsel’s] claim that it was based on conversations between several witnesses overheard by [named senior counsel] during the trial outside Court during a break’ (‘the overheard conversation’).
The applicant went on to submit as follows:
This conviction appeal is based on five aspects of Senior Counsel’s conduct;
·     Firstly, the conversations Senior Counsel heard outside the Court at the trial during the break between Crown witnesses, Phillip Lancaster, Jason Todd and Danny Harris and not revealing to anyone what she had heard.
·     Secondly, Senior Counsel, not discussing the conversations she heard with the applicant and what options were available to him after she heard the conversations.
·     Thirdly, Senior Legal Defence Counsel [named] could not crossexam [sic] Jason Todd, Kathleen Harris, Danny Harris, Phillip Lancaster, Neil Higgins and Michael Spiropoulos inrelation [sic] to the conversations, [named senior counsel] heard outside the Court during the break, from the bar table as stated by Trial Judge Lasry “Surely you know as Counsel you can’t be cross-examining a witness about something that you claim to have actually witnessed and expect to get away with it”
·     Fourthly, [named senior counsel] should have requested to discharge the jury once it came to light that [named senior counsel] overheard certain conversations outside the Courtroom on the break, that were of a [sic] exculpatory nature for her client, and a new trial started with [named senior counsel] as a Defence witness.
·     Or as an alternative stepped down as Defence Counsel and become a Defence witness and new Defence Counsel continue on with the current trial.
·     Trial Judge Lasry stated to “[Named senior counsel], if something happens outside the Court which you heard and you want to use that to attack the credit of this witness then you potentially become a witness in this case. Is that really what you want to do?”
·     Fifthly, the cross-examination of Steven Bousattout as Trial Judge states … “what possible forensic benefit could there be to you [sic] client in getting this witness to say that which he could never have said in-chief, that your client was involved in the killing of Peter Rule according to what Spiropoulos told him” …

We note also that in an affidavit sworn on 24 April 2023, styled Applicant’s Affidavit in Relation to Waive [scil, waiver of?] Legal Professional Privilege, the applicant set out his ‘main complaint’:
6.My main complaint is that [senior counsel] should have recused herself when she overheard exculpatory information outside the Court during the break and become a Defence witness as she would have made a believable Defence witness as to what she had heard as the cross-examination of the Crown witnesses was very detailed especially of Crown witness Phillip Lancaster none of this information was in the Brief of Evidence.
7.Nor did [senior counsel] disclose this information to me however it became crystal clear this information could have only come from what she had heard outside the Court during the break by her cross-examination of Phillip Lancaster and other Crown Witnesses.
In oral submissions in this Court, senior counsel for the applicant refined the case somewhat. Hence, counsel relied on three ‘particulars’ of trial counsel’s incompetence, which, counsel submitted, in combination had occasioned a substantial miscarriage of justice. First, by ‘making positive allegations’ to Lancaster — and Harris[7] — that they were ‘involved in the murder’ of Mr Rule trial counsel’s cross-examination tended to reverse the onus of proof. Trial counsel made the allegations without instructions, thereby breaching ethical rules that bound her. Counsel submitted that the jury would have known that trial counsel operated on instructions. The jury would thus have understood the applicant’s position to be that ‘all of these other people were conspiring together to frame him to shift the blame from themselves’, something that the jury would have been entitled to view as a ‘farfetched, desperate claim … and one without foundation’. Counsel submitted that ‘in that context the onus of proof was diluted, because the jury may well have considered from those kinds of assertions that the defence was required to demonstrate somehow who the alternative offenders were, and in that way the credit of the defence was damaged’. Secondly, trial counsel should not have cross-examined witnesses about matters which she had allegedly overheard. In this Court, counsel submitted that, ‘if they were meaningful utterances, defence counsel would have and probably should have returned the brief and become a witness’. Counsel contended that, ‘prima facie, at least one of those utterances [is] … from one of the witnesses telling another — perhaps coaching another — to say that there was “bad blood” between them’. That, counsel argued, ‘was a significant issue … in terms of the fair trial of the [applicant]’. In effect, counsel submitted that trial counsel should have become a witness in the defence case once it became clear that the overheard conversation involved a witness being coached, or involved the witnesses putting their heads together. Thirdly, trial counsel should not have elicited Spiropoulos’ ‘prior consistent statements’, by having Steven Bousattout repeat Spiropoulos’ account that the applicant had been involved in killing Mr Rule.
[7]The written case filed personally by the applicant had not distinctly made any complaint about trial counsel’s cross-examination of Harris suggesting his possible involvement in the murder of Mr Rule. In his oral submissions, however, senior counsel for the applicant made it clear that, although it might have been understood prior to the hearing in this Court that this particular of incompetence was restricted to the cross-examination of Lancaster, it should also be understood as relating to the cross-examination of Harris.
At this juncture it is convenient to note that, at the direction of the Court, Registry staff informed senior counsel whose competence was in issue on the ground of appeal (providing the parties’ written cases), and invited her to consider whether she wished to file any affidavit material (or make submissions) with respect to the matters raised.[8] Counsel subsequently advised the Registry by email that she did not wish to provide submissions.[9]
[8]See Knowles (a Pseudonym) v The Queen [2015] VSCA 141, [127]–[147] (Ashley, Redlich and Priest JJA) (‘Knowles’).
[9]We also note that, prior to the hearing in this Court, the parties’ attention was drawn to the fact that, when a barrister, Priest JA had acted for senior counsel in a professional capacity, and that senior counsel was informed that Priest JA would be a member of the Court. Neither the parties nor counsel objected, however, to Priest JA sitting.
Principles applicable to resolution of the proposed ground of appeal
As we have mentioned, in contending that the incompetence of senior counsel at trial caused the trial to miscarry, counsel for the applicant in this Court organised their submissions into three principal topics: first, senior counsel’s cross-examination of Lancaster and at least one other (in that, without having instructions to do so, she accused them of being involved in the murder of Peter Rule); secondly, senior counsel’s conduct with respect to the overheard conversation (including the contentions that senior counsel: failed to reveal the contents of the overheard conversation; failed to discuss with the applicant the ‘options available to him after she heard the conversations’; was unable to cross-examine on the overheard conversation; and, should have requested a discharge of the jury and become a defence witness in a new trial, upon hearing conversations that ‘were of [an] exculpatory nature for her client’); and, thirdly, senior counsel’s cross-examination of Steven Bousattout (in that it had no forensic benefit for the applicant).[10]
[10]The applicant’s senior counsel at his trial was, at the direction of the Court, invited by the Registrar to provide an affidavit responding to the allegations of incompetence (see Knowles, [144]–[145]). She declined the invitation.
The principles that inform the resolution of the first ground were discussed in Anile:[11]
[11]Anile v The Queen [2018] VSCA 235, [213]–[217] (Priest, Beach and Weinberg JJA) (citations as in original).
We accept that incompetence in the manner in which a trial was conducted is not, of itself, a sufficient basis for concluding that a miscarriage of justice had occurred.
In R v Birks[12] Gleeson CJ set out the relevant principles as follows:
1.A Court of Criminal Appeal has a power and a duty to intervene in the case of a miscarriage of justice, but what amounts to a miscarriage of justice is something that has to be considered in the light of the way in which the system of criminal justice operates.
2.As a general rule an accused person is bound by the way the trial is conducted by counsel, regardless of whether that was in accordance with the wishes of the client, and it is not a ground for setting aside a conviction that decisions made by counsel were made without, or contrary to, instructions, or involve errors of judgment or even negligence.
3.However, there may arise cases where something has occurred in the running of a trial, perhaps as the result of ‘flagrant incompetence’ of counsel, or perhaps from some other cause, which will be recognised as involving, or causing, a miscarriage of justice. It is impossible, and undesirable, to attempt to define such cases with precision. When they arise they will attract appellate intervention.[13]
In Nudd v The Queen [14] Gummow and Hayne JJ said:
[A]n appeal against conviction must ultimately focus upon the trial and conviction of the accused person not the professional standards of the accused’s counsel. Was what happened, or did not happen, at trial a miscarriage of justice?
Of course, for a trial to be fair it is not necessary that every tactical decision of counsel turns out to have been carefully considered or wise. It is not the role of this Court to investigate such decisions in order to determine whether they were made with the fullest possible examination of all relevant considerations. Often decisions are made in the course of a trial that turn out to be ill advised in retrospect. That does not make them wrong or imprudent at the time that they were made. Nor does it make the client necessarily a victim of unfairness.[15]
[12](1990) 19 NSWLR 677.
[13]Ibid 685.
[14](2006) 225 ALR 161, [25].
[15]TKWJ v The Queen (2002) 212 CLR 124.
In a passage from TKWJ, referred to in Anile, Gleeson CJ said:[16]
It is undesirable to attempt to be categorical about what might make unfair an otherwise regularly conducted trial. But, in the context of the adversarial system of justice, unfairness does not exist simply because an apparently rational decision by trial counsel … is regarded by an appellate court as having worked to the possible, or even probable, disadvantage of the accused. For a trial to be fair, it is not necessary that every tactical decision of counsel be carefully considered, or wise. And it is not the role of a Court of Criminal Appeal to investigate such decisions in order to decide whether they were made after the fullest possible examination of all material considerations. Many decisions as to the conduct of a trial are made almost instinctively, and on the basis of experience and impression rather than analysis of every possible alternative. That does not make them wrong or imprudent, or expose them to judicial scrutiny. Even if they are later regretted, that does not make the client a victim of unfairness. It is the responsibility of counsel to make tactical decisions, and assess risks. ...
[16]TKWJ v The Queen (2002) 212 CLR 124, 130–131 [16] (‘TKWJ’).
Further, Gaudron J observed:[17]
There are two reasons why the question whether an accused was competently represented poses difficulties for an appellate court. First, the conduct of a criminal trial frequently involves defence counsel in making tactical decisions designed to obtain a forensic advantage or, perhaps, to avoid a forensic disadvantage. Those decisions may contribute to a defect or irregularity in the trial. ... The second reason is that, ordinarily, it is not possible to know what was in defence counsel’s brief.
Where decisions taken by counsel contribute to a defect or irregularity in the trial, the tendency is not to inquire into counsel’s conduct, as such, but, rather, to inquire whether there has been a miscarriage of justice ... In that exercise, the question whether the course taken by counsel is explicable on a basis that has or could have resulted in a forensic advantage is a relevant, but not necessarily a decisive, consideration.
The question whether there has been a miscarriage of justice is usually answered by asking whether the act or omission in question ‘deprived the accused of a chance of acquittal that was fairly open’. The word ‘fairly’ should not be overlooked. A decision to take or refrain from taking a particular course which is explicable on the basis that it has or could have led to a forensic advantage may well have the consequence that a chance of acquittal that might otherwise have been open was not, in the circumstances, fairly open.
One matter should be noted with respect to the question whether counsel’s conduct is explicable on the basis that it resulted or could have resulted in a forensic advantage. That is an objective test. An appellate court does not inquire whether the course taken by counsel was, in fact, taken for the purpose of obtaining a forensic advantage, but only whether it is capable of explanation on that basis.
As already indicated, if there is a defect or irregularity in the trial, the fact that counsel’s conduct is explicable on the basis that it resulted or could have resulted in a forensic advantage is not necessarily determinative of the question whether there has been a miscarriage of justice. It may be that, in the circumstances, the forensic advantage is slight in comparison with the importance to be attached to the defect or irregularity in question. If so, the fact that counsel’s conduct is explicable on the basis of forensic advantage will not preclude a court from holding that, nevertheless, there was a miscarriage of justice.
[17]Ibid 132–3, [24]–[28] (citations omitted).
TKWJ was a case in which the appellant had faced charges for sexual offences involving the son and daughter of a woman with whom he was then living. To enable separate trials to be conducted, the indictment was amended to allege offences against only the son. During the trial, counsel for the accused informed the prosecutor that he intended to lead evidence of his client’s good character. The prosecutor responded that, were that to be done, he would seek to call the daughter to give evidence concerning the allegations relating to her. As a result, defence counsel did not lead character evidence. The appellant contended that the failure of defence counsel to do so led the trial to miscarry. McHugh J described the principles governing a ground alleging the incompetence of trial counsel in the following manner:^[18]
Where an appellant contends that the conduct of his or her counsel has caused a criminal trial to miscarry … the appellant carries a heavy burden. This is a consequence of the adversarial nature of our legal system and the role and function of counsel. Criminal trials are not inquisitions. They are contests ‘in which the protagonists are the Crown on the one hand and the accused on the other’. Ordinarily, a party is held to the way in which his or her counsel has presented the party’s case. That is because counsel is in effect the party’s agent. Counsel is ‘ordinarily instructed on the implied understanding that he is to have complete control over the way in which the case is conducted’. The discretion retained by counsel in the running of a case is very wide. …
But how does a court of criminal appeal determine whether counsel’s conduct of the trial has led to a miscarriage of justice? By what standards is counsel’s conduct judged? And, if counsel has failed to present the case properly, must the appellant show that the conduct possibly affected the verdict? The unattractive answer to the latter question must be that it depends on what counsel did or did not do.
In some cases, the conduct of counsel may be such that it has deprived the accused of a fair trial according to law. If the conduct of counsel has resulted in an unfair trial, that of itself constitutes a miscarriage of justice. If, for no valid reason, counsel fails to cross-examine material witnesses or does not address the jury, for example, the accused has not had the trial to which he or she was entitled. In such a case, the failure of counsel to conduct the defence properly is inconsistent with the notion of a fair trial according to law. It cannot be right to insist that the appeal can succeed only if the court thinks that counsel’s conduct might have affected the verdict … No matter how strong the prosecution case appears to be, an accused person is entitled to the trial that the law requires. In principle, therefore, where the trial has been unfair, the accused should not have to show that counsel’s conduct might have affected the result.
But in other cases — perhaps the majority — the conduct of counsel — although irregular — will not necessarily deprive the accused of a fair trial. Not every error makes the trial unfair. Nevertheless, the irregular conduct of counsel may have affected the outcome. And a miscarriage of justice always occurs when there is a significant possibility that a material irregularity at the trial has resulted in the conviction of an accused person.
…
The critical issue in an appeal like the present is not whether counsel erred in some way but whether a miscarriage of justice has occurred. However, ‘whether counsel has been negligent or otherwise remiss ... remains relevant as an intermediate or subsidiary issue’. That is because the issue of miscarriage of justice in such cases ordinarily subsumes two issues. First, did counsel’s conduct result in a material irregularity in the trial? Secondly, is there a significant possibility that the irregularity affected the outcome? Whether a material irregularity occurred must be considered in light of the wide discretion that counsel has to conduct the trial as he or she thinks best and the fact that ordinarily the client is bound by the decisions of counsel. Accordingly, ‘it is not a ground for setting aside a conviction that decisions made by counsel were made without, or contrary to, instructions, or involve errors of judgment or even negligence’. The appellant must show that the failing or error of counsel was a material irregularity and that there is a significant possibility that it affected the outcome of the trial.
In what circumstances then, will the appellant be able to discharge the heavy burden of establishing that counsel’s conduct constituted a material irregularity amounting to a miscarriage of justice? Where the appellant can show that counsel has conducted the trial with flagrant incompetence, it is likely that the appellant will have established a material irregularity in the conduct of the trial that will provide the stepping stone to a finding of a miscarriage of justice.
[18]Ibid 147–50, [74]–[77], [79]–[80] (citations omitted; emphasis added).
Finally, in Knowles, it was argued that trial counsel’s failure to adduce allegedly exculpatory evidence had given rise to a miscarriage of justice. This Court said:^[19]
TKWJ reinforced earlier decisions which had emphasised that where it is contended on appeal that a trial went wrong because of counsel’s ‘flagrant incompetence’, what must be investigated is whether the process failed so as to result in a miscarriage of justice; rather than upon why — that is, the alleged incompetence of counsel — the process failed. But the importance of TKWJ is that it was stated or agreed in by four of their Honours, with more or less emphasis, that in determining whether the process failed, the subjective reason why counsel took the course complained of — it might be not seeking a particular direction, or making a particular submission, or not adducing particular evidence — was ordinarily irrelevant. The question whether the process failed, in the kind of case now under discussion, was to be resolved by deciding whether the course taken, objectively ascertained, was capable of explanation as having been taken for the purpose of obtaining a forensic advantage (although the fact that a forensic advantage might be objectively perceived did not necessarily mean that there had been no miscarriage of justice). Framing the enquiry that way gave due recognition to the fact that counsel will likely make many forensic decisions in the course of a trial, and an accused is ordinarily bound by the way in which his or her counsel conducted the trial.
[19]Knowles, [131] (citations omitted; emphasis as in original).
The overheard conversation
Although relied upon by the applicant’s counsel in this Court as the second ‘particular’ of trial counsel’s incompetence, it is convenient to turn first to the overheard conversation, to which several aspects of trial counsel’s alleged incompetence relate.
Issues connected with the overheard conversation first arose during the cross-examination of a prosecution witness, Jason Todd (‘Todd’), and, next arose during the cross-examination of Lancaster. Todd gave evidence that he used to work as a collection agent for a car yard owned by Danny Harris, repossessing motor vehicles. He met Peter Rule — who would sometimes help Harris possess cars — through Harris in 2005. Todd said that from time to time when Peter Rule and Lancaster lived together he would drop in on them to say hello. He met the applicant through Peter Rule in 2007 or 2008. The last time he saw Peter Rule was on Friday, 13 November 2009, when Mr Rule came to the car yard trying to sell two cars. A week later, on 20 November 2009, the applicant came to the yard, ‘just for a visit’. Todd said that police spoke to him for the first time on 2 December 2009, after Mr Rule went missing.

In the course of cross-examination, senior counsel for the applicant put questions to Todd, apparently based on a conversation that she claimed to have overheard that morning outside the courtroom:[20]
[20]Emphasis added.
[COUNSEL]: You also know a fellow by the name of Phil Lancaster, who you have known for a very long time as well, haven’t you, as long as you have known Danny Harris, 20 years or so?---Yes.
You are good friends with him, too, aren’t you?---Yes.
Again, you would assist him whenever you could with anything?---Yes.
And be prepared to help him out if he needed it?---Yes.
Phil Lancaster was with you outside court this morning, wasn’t he?---That’s correct.
As was Danny Harris?---Yes.
You were discussing the evidence that you were going to be giving, weren’t you?---Yes.
Who was it that said the words, ‘You’ve got to say that there was bad blood between them’? Was that you?---I didn’t hear that. I don’t believe that was said.
You don’t believe that was said?---No.
What were you discussing specifically?---Just general. Danny’s wife, Kathleen, was nervous. We just told her to relax.
You told her what to say, didn’t you?---No.
Was it you who told her to say, that she had to say there was bad blood between - - -?---I don’t think you heard that. I don’t think that was said.
You may not think I heard it?---I was sitting there and I didn’t hear it.
Was it you who said it?---I didn’t hear it said at all.
Who else was there apart from Kathleen Harris and Danny Harris?---Phil Lancaster.
And you say you didn’t hear either Phil Lancaster or Danny Harris say it?---No.
I am putting to you that that’s a lie; you heard it?---I heard no such thing. After you came around the corner we stopped speaking.
Well, that’s a lie, because you didn’t stop speaking, did you?---Basically we stopped speaking.
You just told the jury you were talking about your evidence, the evidence you were going to give?---As soon as you came around the corner and told us to be quiet, nothing else was said about anything.
I came around the corner and I advised you that I was present and so you should be careful what you say, in fairness to you. At that point you had not been discussing your evidence at all, had you?---I don’t know what we were discussing.
Well, I know what you were discussing and it wasn’t your evidence?---No, it was you.
That’s right?---Yes.
The second time, after that, you then had a discussion with the others outside court about the evidence that you were going to give, that’s the truth, isn’t it?---No.
I’m putting to you that you are lying. What do you say about that?---I say you’re mistaken.
The subject of the overheard conversation next arose during the cross-examination of Lancaster, a former friend of Peter Rule, who also gave evidence in the prosecution case.
Lancaster’s evidence was that he had known Mr Rule for ‘close to 20 years’. Their relationship was ‘like a marriage, a volatile relationship, but [they] were good friends’. Over the years, they shared houses together at Broadmeadows and Meadow Heights. Lancaster said that he and Mr Rule had their ‘ups and downs’, and had a fist fight in early November 2009. Mr Rule had threatened him, and they argued and had a physical fight. The fight was ‘a couple of years’ before Mr Rule went missing. Lancaster said that, after the fight, he and Mr Rule ‘sort of parted [their] ways a bit and just never really stayed much in contact after that’, although they did shake hands five or six months before Mr Rule went missing. At that time he had told Mr Rule that he ‘went strange’ when Mr Rule mixed up and double-dosed on his anti-depressant and diabetes medication. Mr Rule, he said, ‘wasn’t really a cranky person but he just said silly things’.
During extensive cross-examination, Lancaster gave evidence that he had known Harris and Todd for more than 20 years, but had never heard the name Corey Small. Harris and his wife Kathleen, Lancaster said, treated Mr Rule ‘like a son’. Lancaster’s evidence was that Mr Rule had ‘gone silly’ when he was not taking his medication. He said that he had taken out an intervention order against Mr Rule ‘about a year or so’ before his disappearance because Mr Rule had started threatening Lancaster’s wife and son following a dispute over money. After the intervention order was taken out, Mr Rule called Lancaster ‘a police informer, a dog, a pig, a rat, a thief, that sort of thing’, because he had gone to the police. That was how they came to fight. But although they fought, Lancaster said, he ‘never hated the man’. Lancaster said that, in the course of the fight, Mr Rule hit him in the ribs with an iron bar, and he in turn punched Mr Rule so hard that ‘he went straight down’, unconscious or semi-conscious. At that point, Lancaster said to Harris, who was present, ‘I think I’ve killed him’. Harris then called the police and ambulance, and Mr Rule was taken away.
Under cross-examination, Lancaster denied that, after the fight, he had told others that he would ‘knock’ — that is, kill — Mr Rule. Very significantly, in the course of her lengthy cross-examination of him, defence counsel put to Lancaster that he, Harris (and possibly others), with the assistance of Spiropoulos, murdered and dismembered Mr Rule. Lancaster denied those allegations. As we have mentioned, that ‘puttage’ by defence counsel was one of the matters put at the forefront in support of the proposed ground of appeal.
In that part of her cross-examination of Lancaster concerning his alleged role in the murder, senior counsel for the applicant put to him that he and Harris (and possibly Neil Higgins) had Spiropoulos purchase items that they ‘needed to assist in dismembering the body of Peter Rule’. Counsel put to Lancaster that when police ‘started breathing down [their] neck’, Lancaster and Harris ‘dragged Michael Spiropoulos into it and convinced him to be the bunny to take the heat off [them] and frame [the applicant]’. The cross-examination continued:[21]
[21]Emphasis added.
[COUNSEL]: You convinced Michael Spiropoulos?---I don’t know this Michael.
To frame [the applicant], what do you say about that?---The jury and everybody in this place, that is an absolute lie, a fabrication, upon my son’s life, I will swear, that is a lie. Absolute lie. I am embarrassed by the question.
You knew that police were asking about [the applicant], didn’t you?---Of course.
You knew that because Danny [Harris] told you that?---No, Danny didn’t tell me that, I just knew the police had been interviewing us over Peter Rule’s disappearance.
How did you hear about the police wanting to speak to [the applicant]?---Would have been when - - -
How did you hear about it, not when, how?---I heard it from Danny.
Heard it from Danny?---Yes.
You are a liar, Lancaster?---Beg your pardon.
You are a liar.
HIS HONOUR: The proper way to put that question is to say, ‘I suggest to you, Lancaster, you are lying about that’.
[COUNSEL]: Yes. I suggest to you you are lying about these things, Lancaster, that I have just put to you.
HIS HONOUR: What do you say about that?---I say no, not lying.
[COUNSEL]: Only on Monday of this week, you were outside this courtroom sitting with Jason Todd, Kathleen Harris and Danny Harris and talking about your evidence and you said – was it you who said or someone else who said.
HIS HONOUR: Just a minute.
[PROSECUTOR]: I object to the question. We had all this on Tuesday and I object to it being repeated, this line of questioning.
HIS HONOUR: Members of the jury, I am going to give you a slightly earlier break while we deal with this issue. You can stand down Lancaster.
There was then the following exchange between the trial judge and counsel:
HIS HONOUR: [Counsel], if something happened outside the court which you heard and you want to use that to attack the credit of this witness then you potentially become a witness in this case. Is that really what you want to do?
[COUNSEL]: No, but I did put it to Jason Todd.
HIS HONOUR: Yes, and I was concerned about it then. I don’t know what happened outside the court, I don’t know what you think you heard, I don’t know whether what you think you heard was accurate or not. I will not permit you to further cross-examine this witness on the basis that you think you heard something. If you want to pursue this and potentially rebut this witness’ denials then you become a witness in the case; do you understand that?
[COUNSEL]: I do understand that.
HIS HONOUR: What are you doing?
[COUNSEL]: I was hoping he would admit it.
HIS HONOUR: I am sure there are plenty of other people who become witnesses in cases and hope they don’t have to go through that process as well. Surely you know as counsel you can’t be cross-examining a witness about something that you claim you actually witnessed and expect to get away with it.
[COUNSEL]: I understand what Your Honour is saying and yes, Your Honour is quite right. I won’t pursue that. There was no objection when I did it in relation to Todd.
HIS HONOUR: [Counsel], you are senior counsel, surely you know better that to be wanting to verbal a witness based on something you think you heard outside the courtroom. If somebody else was present and it is an important issue potentially that other person is a witness, but I don’t know what happened and whether you had your junior with you or your instructor or whether it was simply you but you can’t, on the basis of something you think you heard in a conversation outside the court start cross-examining the witness on the basis that you heard something, surely you know better than that.
[COUNSEL]: Your Honour is right, it probably should have at best been in the form of a question. I hear what Your Honour is saying and understand what Your Honour is saying.
HIS HONOUR: Good. Having sent the jury out we will take a morning break.

It may be seen from the foregoing passages of cross-examination, that the applicant’s senior counsel in effect put to Todd that, in a conversation between Todd, Lancaster, Danny Harris and Kathleen Harris, which counsel had overheard, one of the participants in the conversation — counsel appeared to suggest it was Todd — had told Kathleen Harris what to say in her evidence, and, specifically, told her, ‘You’ve got to say that there was bad blood between them’. Further, when Todd asserted that the group had stopped speaking when counsel came around the corner, counsel put to Todd — apparently based on her own perception of what had occurred — ‘Well, that’s a lie, because you didn’t stop speaking, did you?’. Counsel also claimed that, ‘in fairness’ to those in the group, she had advised them she was present, and they should therefore be careful what they said.
It may also be seen from the foregoing passages that, in her cross-examination of Lancaster, senior counsel started — but did not complete — a question premised on Lancaster having a conversation outside the courtroom on Monday of that week with Todd, Kathleen Harris and Danny Harris ‘talking about your evidence’, it not being clear from the question whether the determiner ‘your’ related only to Lancaster, or, alternatively, all participants in the conversation.
Finally, it may be seen from the foregoing passages that, once the prosecutor objected to the question immediately above, in the absence of the jury the trial judge warned counsel — quite properly — that if she wanted to attack Lancaster’s credit using something that she had heard outside the courtroom, she risked becoming a witness in the case. Counsel then indicated that she understood what the judge was saying, and would not pursue the matter.
The significance of counsel having attempted to use the overheard conversation in her cross-examination of Mr Todd and Lancaster will be discussed below.[22]
[22]See [75]–[77] below.

Defence counsel accused Phillip Lancaster of murder

As we have indicated, aspects of senior counsel’s cross-examination of Lancaster are of central importance to the applicant’s proposed ground of appeal. One of those aspects, described above, was counsel’s attempted use of the overheard conversation as a source of questioning. Another aspect of central importance related to those parts of her cross-examination in which senior counsel for the applicant put to Lancaster that he had murdered Mr Rule and dismembered his body, and had recruited Spiropoulos to ‘frame’ the applicant.[23]
[23]See [44] above.
We have previously set out in some detail those parts of the discussion between the trial judge and counsel in which the trial judge expressed his concern about counsel using conversation that she supposedly had heard outside the courtroom as a springboard for cross-examination.[24] After that discussion, the court took a break. Significantly, immediately following that break, in the absence of the jury the judge raised with the applicant’s counsel whether she had put to Lancaster that he had murdered Peter Rule ‘on instructions’. As the following discussion makes plain, however, counsel did not have those instructions:[25]
[24]See [45] above.
[25]Emphasis added.
HIS HONOUR: [Counsel], you have accused Lancaster of murder in a public courtroom; have you done that on instructions?
[COUNSEL]: No, Your Honour.
HIS HONOUR: You haven’t?
[COUNSEL: I need to think about that, Your Honour. When I say I haven’t done it on instructions, I haven’t - - -
HIS HONOUR: Let me give you an example of what I’m talking about. I appeared for an accused in this very courtroom where I put to the main Crown witness that the main Crown witness was the killer. That was in circumstances where my client had been present and the question was who had done the killing. I had clear instructions from my client as to who the killer was. As I understand the ethical rules, before someone is accused of a serious offence, and it doesn’t get much more serious than murder, it has to be able to be done on instructions. It’s difficult for me to see, and I may be able to be corrected, how, in the way in which this cause has been run, you could have those instructions because you have opened to the jury on the basis that your client had nothing to do with the death of Peter Rule, he wasn’t present.
[COUNSEL]: That’s right.
HIS HONOUR: It’s one thing to point to facts which may disclose that other people, that is, people other than your client, had the opportunity and perhaps the motivation to cause the death of the deceased; it’s quite another thing, in my view, to be putting to a witness in some considerable detail how that occurred. Over the break I’ve been trying to imagine how you could have instructions to the effect that you have just been putting to Lancaster, that is that, in some detail, he and Harris formulated a plan and engaged the assistance of Spiropoulos, who he says he doesn’t know, to abduct Rule, kill him, take him from one place to another and dispose of his body.
…
[COUNSEL]: I understand what Your Honour says.
HIS HONOUR: As I understand it, and I don’t think I’ve been in this situation, but as I understand it, there are some ethical principles that require the exercise of very great caution before, in a public courtroom like this, senior counsel get to their feet and accuse a witness of having committed a murder. It’s not a small matter. And genuine, or otherwise, the witness is obviously someone taken aback by the allegation; I suppose on one view, you could say it’s because he’s been discovered, although I frankly think that is not the reason. But at all events, it’s pretty clear, isn’t it, that these things can only be done on instructions.
Counsel went on to explain her conduct as follows:
[COUNSEL]: Yes, that is my answer, Your Honour. I have to be totally frank about that. It’s difficult because I’m in the position where I want to put to the jury that an alternative theory fits the facts.
HIS HONOUR: You can do that.
[COUSEL]: I thought as a matter of fairness that I should be fairly and squarely putting to the witness that he is responsible, with others, in the disappearance and killing of Peter Rule. If I didn’t go to the point of putting that to him - - -
HIS HONOUR: But you did that on Tuesday, in a general way, which I thought was unobjectionable. You put to him that he had something to do or was involved in the disappearance of Peter Rule. Fair enough.
[COUNSEL]: And probably that’s where I should have left it.
HIS HONOUR: In my opinion, that is where it should have stopped. This is now just guesswork.
[COUNSEL]: I agree, Your Honour.
At least two things may gleaned from the exchanges between the trial judge and defence counsel set out above: first, senior counsel did not have instructions from the applicant to put to Lancaster that he was the murderer; but that, secondly, in circumstances where she considered that an ‘alternative theory’ was available, counsel thought that ‘as a matter of fairness [she] should be fairly and squarely putting to the witness that he is responsible, with others, in the disappearance and killing of Peter Rule’.
It is also noteworthy that, the ‘ethical rule’ applicable at the time of the trial, specifically referred to by the judge, was rule 156 of the Victorian Bar Incorporated Practice Rules, which, unlike its successor,[26] did not distinctly require counsel to possess his or her client’s instructions before criminality was suggested to a witness in cross-examination.[27] Rule 156 provided:
156 A barrister should not attribute to another the offence with which the client is charged, unless the facts or circumstances disclosed by the evidence in the case, or which form part of the barrister’s instructions, or rational inferences to be drawn from them, raise at least a reasonable suspicion that the offence may have been committed by such other person.
[26]See now rule 65 of the Legal Profession Uniform Conduct (Barristers) Rules 2015, which is in the following terms:
65 A barrister must not allege any matter of fact amounting to criminality, fraud or other serious misconduct against any person unless the barrister believes on reasonable grounds that:
(a) available material by which the allegation could be supported provides a proper basis for it, and
(b) the client wishes the allegation to be made, after having been advised of the seriousness of the allegation and of the possible consequences for the client and the case if it is not made out.
[27]It is also noteworthy that rule 38, which dealt with similar subject-matter, similarly did not require a barrister to have distinct instructions from the client in order to suggest criminality or fraud. Rule 38 is in the following terms:
38 A barrister must not cross-examine so as to suggest criminality, fraud or other serious misconduct on the part of any person unless:
(a) the barrister believes on reasonable grounds that the material already available to the barrister provides a proper basis for the suggestion;
(b) in cross-examination going to a fact in issue, the suggestion is part of the case for the client; or
(c) in cross-examination going to credit alone, the barrister believes on reasonable grounds that affirmative answers to the suggestion would diminish the witness’s credibility.
We also note that, immediately prior to the promulgation of rule 156 (and rule 38), the position in Victoria appears to have been that counsel did not require his or her client’s distinct instructions in order to put questions to a witness in cross-examination which suggested the commission of a criminal offence. Thus, the Victorian Bar followed a ruling of the General Council of the Bar of England as follows:[28]
In cross-examination as to credit it is not improper for counsel to put questions suggesting fraud, misconduct or the commission of any criminal evidence [scil, offence] (even though he is not able or does not intend to exercise the right of calling affirmative evidence to support or justify the imputation they convey) if he is satisfied that the matters suggested are part of his client’s case and has no reason to believe that they are only put forward for the purpose of impugning the character of the witness.
[28]See Sir Gregory Gowans, The Victorian Bar – Professional Conduct, Practice and Etiquette (Law Book Co, 1979), 74.

Once more, the significance of counsel having directly put to Lancaster that he murdered Peter Rule and dismembered his body, and then recruited Spiropoulos to falsely accuse the applicant, will be discussed below.[29] We will also discuss below the significance of similar allegations having been made to Harris.[30]

Judge’s intervention during cross-examination of Steven Bousattout

[29]See [83]–[85] below.

[30]See [98] below.

A further aspect of defence counsel’s alleged incompetence revolved around her cross-examination of Steven Bousattout (‘Bousattout’), or, more particularly, the trial judge’s intervention in the course of that cross-examination.
Bousattout, called by the prosecution, gave evidence that whilst he was employed as a motor mechanic at an engineering company, situated in Glenbarry Road, Campbellfield, he met Spiropoulos, who was an apprentice, and the applicant, who was a tradesman. Bousattout’s evidence was that Spiropoulos told him that he and the applicant had set up an engineering business. In April 2010, Spiropoulos came to stay at his home in Wallan; and, on 7 April 2010, a police officer, Paul Rowe, who had come to speak to Spiropoulos, located a small axe leaning up against the door of his shed. The axe did not belong to Bousattout.
Cross-examined by defence counsel, Bousattout said that Spiropoulos had been staying ‘a couple of months’ before police came to his property on 7 April 2010. The day before police came to his place, Spiropoulos had told him ‘about what had happened at Glenbarry Road and afterwards’, and they had another conversation on 7 April 2010 after the police left. There was then the following passage of cross-examination:
I am asking you to do your best. Go on. He [Spiropoulos] told you he thought he was in trouble?---Yep, because Leonard [the applicant] had done something that, yeah, I didn’t think it was right anyway.
Have you finished?---I didn’t think it was right because, like I said before, it came from a kid and I thought that is a bit far-fetched.
Be that as it may that you didn’t necessarily believe him?---Yes.
Just tell us please and tell the jury what it is that you say that Michael [Spiropoulos] said to you about it, even though you didn’t believe him, what did he say to you about it?---Michael did tell me that Leonard had shot this Peter Rule or - - -
What else did he tell you?---That’s when he said he thinks he is in trouble. Then again, I didn’t believe him because the story is far-fetched.
Did he tell you about where the shooting was?---No, I don’t recall he told me about the shooting - where it was.
Did he tell you about it, about what was done after the shooting? In other words, did he tell you about cleaning the area?---I don’t recall. I don’t recall him saying anything like that.
You don’t recall him saying anything like that at all?---No.
Mr Bousattout, Michael has given evidence that he in fact did speak to you about it and that he had told you, he didn’t go into a great amount of detail but he gave you some details, you say you have no memory?---I don’t recall him giving me any details.
What about after 6 April, did you find out any more from Michael Spiropoulos after 6 April?---After the 6th, when the police came, yes.
After the 7th and how long after 7 April?---I don’t recall how long after.
Mr Bousattout?---On the day I asked him a lot of questions but.
On 6 April you asked him a lot of questions?---On the 7th.
On 7 April?---When the police were at my house.
After the police had gone you are saying you asked him a lot of questions?---Yes.
Is that when he gave you more detail?---He could have but I am not sure, I am not sure whether it was that day.
Mr Bousattout, I am going to put to you that he, this is Michael Spiropoulos, gave you an account which included that the area where the shooting had said to be, had occurred, was cleaned by him and Leonard; what do you say about that?---He could have but I don’t recall him saying anything like that.
Did you ask him any questions about it, specifically about where it was that this shooting was said to have occurred and what was done with the body?---I am not sure, I can’t remember much from that year.
Mr Bousattout, you have been spoken to a number of times by police since 7 April?---Yes, I have.
At least on two occasions, you have been asked to provide a statement about the things you have talked about?---Yes.
You have been able to do that, haven’t you?---Yes.
So you have been able to think about what it is that you are going to say to the police, do you agree with that?---I suppose.
You were able to remember things that went into your statement?---Yeah.
You have known that you would have to come to court to give evidence in this trial?---Yes.
And you say it has all gone now, not all of it but most of it has gone?---My memory is not too good.
Is there a reason for that?---Yes.
What is that?---I lost my stepson a month ago.
I am very sorry for your loss, you say this is affecting your ability to give evidence?---No, it is not affecting my ability to give evidence.
Then let’s put it this way - - -
Before senior counsel could complete the last question in the passage of cross-examination set out immediately above, the trial judge invited the jury to take the morning break ‘a bit early’. There was then the following exchange between the trial judge and the applicant’s senior counsel in the absence of the jury:[31]
[31]Emphasis added.
HIS HONOUR: [Counsel], what is this all about? Why – and in particular, if I can particularise the question, it is not the first time you have gone [and] done it – why do you insist on asking witnesses to repeat prior consistent statements, in this case made by Michael Spiropoulos, what possible forensic benefit could there be to your client in getting this witness to say that which he could never have said in-chief, that your client was involved in the killing of Peter Rule according to what Spiropoulos told him? What possible advantage is there to your case in doing this?
[COUNSEL]: It is to highlight and bring forward the inconsistency between what this witness says and what Mr Spiropoulos says, that is the first aspect of it, but the more important aspect is the timing because this witness is giving evidence about matters which are totally inconsistent with the evidence of Mr Spiropoulos which are, in my submission - - -
HIS HONOUR: What is an example of that? What is the example of the inconsistency?
[COUNSEL]: One example that stands out is that he says Michael Spiropoulos went to live with him two months prior to 7 April and that is totally inconsistent with what Mr Spiropoulos says. Michael Spiropoulos said he gave details to this witness which this witness unfortunately now is unable to be recall. I want to be able to mount an argument to the jury that he has, I am going to put it to this witness, that he is lying about making these observations of the clean floor.
HIS HONOUR: This witness is lying about it?
[COUNSEL]: This witness is lying about that because Michael Spiropoulos told him about and he is only wanting to assist Michael Spiropoulos. That is an argument I can mount pretty strongly given the evidence of - - -
HIS HONOUR: Can’t you do that on the basis that he had been told – couldn’t you simply put to this witness, I suppose it is – I haven’t been at the bar now for four and a half years. I can’t help but cringe. Can’t you just put this to this witness that he was told by Spiropoulos about some cleaning and that is why he is saying it? How can you possibly think it is your client’s interest to have the witness repeat that he was told by Spiropoulos that your client shot Peter Rule? Goodness me. Your client won’t understand this but I am now intervening on his behalf because I can’t for the life of me see how you are not doing his case harm by this cross-examination. I am sorry to say that, but that is what I think. If there is a particular point of inconsistency, can’t you just deal with that point without strengthening the Crown case along the way.
[COUNSEL]: I do understand what Your Honour is saying. I appreciate it and I will take that on board.
HIS HONOUR: You need to think about what you are doing. You need to prepare your questioning on the basis that you want from a witness particular things that help your case, and that will not include, in this case, that Spiropoulos told this man that your client shot Peter Rule. But you asked an open-ended question. I am sorry to be irritated about it but I can barely believe my ears. You said to him, ‘What did he tell you?’.
[COUNSEL]: Your Honour has every right to be irritated and angered by it.
HIS HONOUR: I am concerned for your client.
[COUNSEL]: I understand that and I do apologise and I will speak to my client about it.
HIS HONOUR: Apologise to him not me. It is not the first time it has happened. For some reason you think it is important for you to re-state the Crown case in cross-examination. I can’t for the life of me see the benefit. This is latest example of it. I would urge you to think carefully about the way you are questioning these witnesses. We will take a break.

It seems that the judge was concerned that there was no possible forensic benefit to the applicant in counsel having Bousattout give evidence that Spiropoulos had told him that the applicant had admitted to Spiropoulos involvement in Mr Rule’s killing. Faced with the cross-examination, the trial judge could ‘barely believe [his] ears’ and could not help ‘but cringe’. Indeed, the judge was ‘irritated’ by the cross-examination, and questioned how counsel could possibly have thought that it was in her client’s interest to have Bousattout repeat that he was told by Spiropoulos that the applicant had shot Peter Rule.
The significance of senior counsel’s cross-examination of Mr Bousattout will also be examined below.[32]
[32]See [104]–[105] below.
Respondent’s submissions
With respect to the ‘overheard conversation’, the respondent’s counsel in this Court submitted that, insofar as the applicant’s complaint appears to be that his counsel was incompetent in not relinquishing her position as counsel in order to become a witness, it is impossible to assess that complaint without knowing what evidence senior counsel would have been capable of giving. Nothing in senior counsel’s cross-examination of Todd or Lancaster permits any conclusion — firm or otherwise — to be drawn favouring the view that any evidence from counsel might have advanced the defence case. It is not necessarily a sign of incompetence, the respondent’s counsel submitted, that senior counsel did not offer herself as a witness when her suggestions to witnesses in cross-examination, based on the overheard conversation, did not elicit anything helpful to her client’s case. At best, the respondent’s counsel orally submitted, what counsel overheard ‘would only go to the credibility of Todd’. The real question, counsel submitted, is whether it ‘caused any damage’. As to that, in circumstances where none of the relevant witnesses — apart from Harris, who had already given an account of some animus in a statement made ‘long before’ — gave ‘any evidence of bad blood whatsoever’, the overheard conversation had no material significance.
As to the cross-examination of Lancaster, the respondent’s counsel submitted that there had been no material error or irregularity. The main issue in contention concerned the identity of Mr Rule’s killer. Although the defence generally put the prosecution to its proof, the respondent’s counsel submitted, the defence nominated a number of potential suspects as the potential killer, Lancaster being one such person. When it was put to him, Lancaster denied that he had murdered Mr Rule (or been complicit with others in his disappearance). Upon direct inquiry from the judge in the absence of the jury, senior counsel initially stated that she had instructions to accuse Lancaster of murder. She went on to explain, however, that her reason for asking that question was to ensure that the witness was fairly informed about an alternative theory of Mr Rule’s disappearance which the jury may be invited to consider. Although the trial judge accepted that it was not unobjectionable to put to a witness in a general way that they may have been involved in the deceased’s disappearance, the judge considered it unnecessary to descend into specific allegations. The respondent’s counsel contended that, even if some rule of conduct had been breached by senior counsel’s ‘puttage’, the applicant is likely in the eyes of the jury to have obtained a tangible forensic benefit, by creating the impression that there existed a solid basis for the suggestions made. Finally, on this topic, the respondent’s counsel submitted orally that if the cross-examination amounted to an error or irregularity — which was not conceded — there had been no substantial miscarriage of justice in circumstances where the trial judge gave the jury a number of ‘protective’ directions which would have ensured that the jury properly understood that the applicant bore no onus of proof.
So far as the cross-examination of Steven Bousattout by senior counsel was concerned, the respondent’s counsel submitted that it elicited nothing harmful to the defence case, and could not constitute an error or irregularity. As the respondent’s counsel put it in oral submissions, ‘this didn’t go anywhere … [it] was clearly a forensic decision by senior counsel to expose what may have been an inconsistency’. Bousattout had given evidence that, when he arrived at the Campbellfield factory on 16 November 2009, he observed part of the floor, including in front of the female toilets, to be ‘spotless clean’. By her cross-examination, senior counsel established that Bousattout had been told by Spiropoulos about what he said had taken place at the factory. At that point, senior counsel asked, ‘What did he tell you?’. Bousattout responded that he was told by Spiropoulos that the applicant had killed Mr Rule, but that he could not recall any other details and considered the story to be ‘far-fetched’. The trial judge’s intervention in the absence of the jury, referred to above,[33] occurred shortly afterwards. Senior counsel for the applicant explained that the questions were designed to show there were inconsistencies between Spiropoulos’ evidence and the account he supposedly gave to Bousattout, so that she could put to Bousattout that he was lying to support Spiropoulos. As we have said, the respondent’s counsel submitted that there was nothing harmful to the defence in eliciting from Bousattout what Spiropoulos told him about the applicant, given that Spiropoulos himself had already given such evidence. More importantly, the respondent’s counsel submitted, what he said to Bousattout hardly advanced Spiropoulos’ credit, given that he only spoke to Bousattout on the very day he went to police, 5 April 2010, after having remained silent for months. Counsel for the respondent completed his oral submissions on this topic by submitting that, ‘although people might not agree with those reasons’, it is clear that there were ‘forensic reasons’ for exploring the ‘potential inconsistency’.
[33]See [60] above.
Counsel for the respondent further submitted that, not only did none of the matters relied upon as particulars of counsel’s incompetence constitute material errors or irregularities, they could not have affected the outcome of the trial. Indeed, counsel submitted, the evidence establishing the applicant’s guilt was overwhelming. Acknowledging that, to ‘a great extent’, the prosecution case relied on the evidence of Spiropoulos, the respondent’s counsel submitted that the jury were acutely aware of Spiropoulos’ role in disposing of Mr Rule’s remains and attempts to conceal the murder, and of the need to treat his evidence with caution. Spiropoulos’ evidence was, counsel submitted, supported by the evidence of other witnesses, and by independent sources.
A non-exclusive list of the items of evidence relied upon includes the following:
·Harris gave evidence that the applicant, after discovering a hat, had shared his belief that Mr Rule had been ‘snooping’ around a cannabis crop and had informed police of that operation, so much providing motive.
·Spiropoulos gave evidence that he and the applicant went to Hermidale in New South Wales to purchase a rifle about one week before Mr Rule’s disappearance. A man named Allan O’Connor stated he sold a .22 Ruger semiautomatic rifle to two men in November 2009, and call charge records relating to the applicant’s telephone put him close to the NSW border on 10 November 2009.
·In April 2010, the rifle, a silencer, a gun bag, two magazines and ammunition (fired and not fired) were found in the applicant’s utility.
·Various items Spiropoulos said had been used to conceal the murder and dispose of Mr Rule’s body could be linked to the applicant.
·Call charge records put the applicant in Campbellfield at the time of the killing.
·Mr Rule’s DNA was found inside the Campbellfield factory’s female toilets on the lower right-hand side corner of a door and on a shelf leg positioned against the wall.
·The applicant was alleged to have driven Mr Rule’s body in the boot of his blue Volvo to his factory in Thomastown, and the evidence showed that he later pressure-cleaned the car and disposed of the carpet from the boot; so that, when police searched the blue Volvo, there was no carpet in the boot.
·Call charge records showed that both Spiropoulos and the applicant were in Thomastown at the time Mr Rule’s body was dismembered.
·Spiropoulos stated that he and the applicant disposed of garbage bags containing remains in the bush along the Great Ocean Road, this debris being located by police in April 2010.
·After they emptied the tub of acid into the ocean, Spiropoulos and the applicant purchased new clothes.
·After returning from an overseas trip, the applicant washed and repainted the floor of the Thomastown factory.
·Police observed the applicant removing what was alleged to be the rifle, a silencer and a plastic bag containing bullets, which had been secreted inside the Thomastown factory.

Analysis

In our opinion, none of the matters relied upon by the applicant under the general umbrella of senior counsel’s alleged incompetence could properly found the conclusion that the applicant’s trial miscarried. Indeed, we consider that, even if it be accepted that there were some blemishes in the manner in which senior counsel presented the applicant’s case, overall her presentation of the case was competent.
As we have said, the applicant relied principally on three main ‘particulars’ of alleged incompetence. First, the applicant complained that, notwithstanding that she did not have instructions to do so, senior counsel accused Lancaster (and Harris) of murdering Peter Rule. Secondly, with respect to the overheard conversation, the applicant complained (among other things) that counsel ‘overheard exculpatory information’, yet did not seek a discharge of the jury and ‘become a defence witness’ in a new trial. And, thirdly, the applicant complained that senior counsel’s cross-examination of Bousattout was without any forensic benefit to him, in that she had Bousattout repeat that Spiropoulos had told him that the applicant was involved in the killing of Mr Rule. Whether taken alone or in combination, however, we consider that none of these matters establish that there was incompetence on senior counsel’s part resulting in a substantial miscarriage of justice.
The overheard conversation
Turning first to the second particular of trial counsel’s alleged incompetence, the issue of the overheard conversation first arose during senior counsel’s cross-examination of Todd.

On its own, Todd’s evidence was of relatively minor importance. At the risk of repetition, Todd’s evidence was that he worked at a car sales business owned by Danny Harris, Airport Car Sales, between August 2009 and January 2010. Todd met Peter Rule — who assisted Harris in repossessing vehicles — Lancaster and the applicant through Harris. Mr Rule and Lancaster lived together.
In our view, such of the cross-examination of Todd as was impugned by the applicant was of little consequence. Todd admitted that, outside the courtroom, he discussed with Harris the evidence that he was going to give. He said that Harris’s wife, Kathleen, was nervous and that they just told her to relax. Todd denied telling Kathleen Harris that she had to say that there was ‘bad blood’ (between individuals who were left unidentified). Senior Counsel challenged that denial, alleging that it was a ‘lie’. Counsel asserted, ‘I know what you were discussing and it wasn’t your evidence’, but Todd again denied that he was lying. We have no doubt that senior counsel should not have expressed a personal view, but, in the overall context of the trial, the expression of counsel’s personal view was wholly inconsequential. It certainly could not be said to be the source of a miscarriage of justice, substantial or otherwise.
We consider that the balance of senior counsel’s cross-examination of Todd was of a reasonable standard, and, overall, quite competent. Thus, for example, it exposed that there were other persons who bore animosity to Peter Rule; and the witness accepted that when he saw the applicant on 20 November 2009 — less than a week after Mr Rule’s disappearance — he was acting normally.
The topic of the overheard conversation next arose during the cross-examination of Lancaster. As has previously been discussed,[34] in her cross-examination of Lancaster, senior counsel commenced a question premised on Lancaster having a conversation outside the courtroom on Monday of that week with Todd, Kathleen Harris and Danny Harris ‘talking about your evidence’. Counsel did not, however, finish her question, so that the attempted ventilation of the subject of the overheard conversation with Lancaster was of no significance whatsoever.
[34]At [47] above.
Of course, the precise nature of what senior counsel overheard was never revealed. In those circumstances, it is entirely speculative to contend that what senior counsel may have overheard was of an ‘exculpatory nature’. At no stage did counsel announce in open court what she claimed to have overheard. And, according to the applicant’s written case and affidavit of 24 April 2023, she did not reveal to him what she had overheard. Indeed, the only hint as to what senior counsel may have overheard arises from her questions to Todd, in which she appeared to put to him that he had told Kathleen Harris what to say in her evidence, and, specifically, told her, ‘You’ve got to say that there was bad blood between them’.
Inferring from senior counsel’s questions that she may have overheard Todd coaching Kathleen Harris on one aspect of her evidence (that is, ‘You’ve got to say that there was bad blood between them’), we consider that, at best, so much may have formed the basis of a relatively modest attack on Todd’s — and, perhaps, depending on other foundational cross-examination, Kathleen Harris’s — credit. It is, however, somewhat unrealistic to suggest that such coaching could properly be characterised as being exculpatory of the applicant in any meaningful sense. It is also somewhat unrealistic to suggest that, as the circumstances appear to have presented themselves, senior counsel should have sought a discharge of the jury so as to become a witness in a new trial. Finally, the record of the trial shows that, notwithstanding that she should not have run the risk of making herself a witness (for example, as to a prior inconsistent statement by Todd), counsel was able to cross-examine sufficiently to put to Todd in effect that he had coached Kathleen Harris in an aspect of her evidence.
Finally, given that, at its highest, it appears from the available material that cross-examination on the overheard conversation could only have borne on credit, senior counsel being prevented from questioning Lancaster on the topic is of no real moment.
Counsel putting to Phillip Lancaster that he murdered Peter Rule
We now turn to the first particular of counsel’s alleged incompetence, which concerned counsel putting to Lancaster, and to Harris, that they had been involved in the murder and disappearance of Mr Rule. As earlier discussed,[35] Lancaster said in evidence-in-chief that he had a volatile relationship with Peter Rule, but they were friends. They had a major disagreement and parted company, but they reconciled in 2009 when Mr Rule — who was on antidepressants and tablets for diabetes — came to the car yard and apologised to Lancaster.
[35]See [41] above.
In our opinion, senior counsel’s cross-examination of Lancaster was, for the most part, competent. Hence, she elicited that Mr Rule did not always take his medication, and he went ‘silly’. Lancaster took out an intervention order in 2008, when Mr Rule threatened Lancaster’s wife and son. There was a dispute over the purchase of saucepans, and Lancaster paid the disputed amount to Mr Rule to calm the situation. The intervention order was taken out because of threats, Mr Rule being volatile over matters relating to money. Mr Rule also made threats to other people. Senior counsel brought out that there was an abusive phone call by Mr Rule to Lancaster; and, at one point, there was a fist fight between them, in the course of which Lancaster rendered Mr Rule unconscious. In the course of the fight, Lancaster said he was going to ‘knock’ Mr Rule, although he said, ‘That was quite common language in the way we spoke to each other’. When Mr Rule disappeared, Lancaster was blamed for the disappearance, and he was interviewed by police as a suspect.
Senior counsel then in effect put to Lancaster — we consider appropriately — that he was involved in the disappearance of Mr Rule. In further cross-examination, senior counsel drew out that an individual, Neil Higgins, had a motive to harm Mr Rule, since Mr Rule had gotten his son into trouble over an armed robbery. Senior counsel also brought out that, on one occasion, Lancaster’s tyres were punctured and his windscreen was damaged, and he blamed Mr Rule for it. On another occasion, Lancaster, while driving to work through the Burnley Tunnel, found that someone had loosened screws on the gas bottle on the back of his utility. All of this occurred a couple of years before Mr Rule disappeared. Lancaster agreed that he was ‘furious’ over the incident relating to the gas bottle, and that led to a confrontation with Mr Rule in December 2008.
During further cross-examination, Lancaster described three fights that he had had with Mr Rule. He gave evidence that Mr Rule was connected with the Vigilantes motorcycle club and that Mr Rule ‘potentially stood to upset them greatly if he did the wrong thing’. There had been an incident in which the house of a past president of the Vigilantes had been set on fire and the finger was pointed at Mr Rule. Senior counsel also cross-examined Lancaster about carrying out vehicle repossessions with Mr Rule.
Senior counsel then questioned Lancaster about Mr Rule’s disappearance, and engaged in the ‘puttage’ which led to the trial judge’s intervention.[36] The cross-examination included the following:
[36]See [51] above.
Lancaster, on Sunday night 15 November 2009, you were with Danny Harris and you were with Peter Rule, weren’t you?---No.
You went with Danny Harris to Peter Rule’s house on that night to pick him up and to go and do repossession work and you were in Danny Harris’ silver Maverick?---I was in Danny’s silver Maverick but we never stopped to pick up Peter, he wasn’t with us.
Did you meet Neil Higgins there or meet him later?---I don’t recall meeting Neil Higgins at all.
You took Peter Rule out with you, was he still alive at that point?---I don’t know what you are saying.
You took him to Bolinda Road to the scrap metal yard, that’s what happened, isn’t it?---No, it is not.
Was he acting silly on that occasion?---I don’t understand where you are going.
I’m putting to you you had Peter Rule with you on that Sunday November 2009, that Sunday night?---Definitely not.
Something went horribly wrong and you and Harris killed him?---Well, that’s news to me, I don’t know how you can accuse me of that sort of thing.
Well I have, what do you say about that?---Wrong, absolutely wrong.
Danny Harris and maybe you enlisted the help of others including Michael Spiropoulos?---I don’t even know a Mickael Spiropoulos.
…
What I’m putting to you, Lancaster, is that you took Peter Rule to that place, to that address of 22 Glenbarry Road, Campbellfield on the night of 15 November 2009, what do you say about that?---Absolutely wrong.
When you got there, you went inside and you decided – not just you, you and Danny Harris as well, decided it wasn’t a good place to dispose of Mr Rule’s body so you returned to Bolinda Road, what do you say about that?---Not true.
…
What I’m putting to you is that that place, Bolinda Road is a perfect place in which you do dismember and dispose of the body of Peter Rule. … I put it to you that that is what you did?---I can tell you absolutely straight faced, no, it is a lie, I don’t know whether you are getting your information from, it is shameful what you are saying.
…
You and Danny Harris and possibly Neil Higgins got Michael Spiropoulos to buy items you needed to assist in dismembering the body of Peter Rule?---I say to you no. Fabrication. No
The discretion retained by counsel in running a case is very wide, counsel ordinarily being instructed on the implied understanding that he or she is to have complete control over the way in which the case is conducted.[37] And in this case it must have been well understood by the applicant from the outset of the trial that the ‘defence’ was that another or others were responsible for Peter Rule’s disappearance. Indeed, in her response to the prosecutor’s opening, the applicant’s senior counsel told the jury that the
circumstantial evidence will prove one thing and one thing only, and that is that Michael Spiropoulos and others, but not Leonard Borg, are in some way responsible for the disappearance of Peter Rule.
[37]TKWJ, 147 [74]; R v Birks (1990) 19 NSWLR 677, 684 (Gleeson CJ).
On the assumption that senior counsel believed on reasonable grounds that the material already available to her provided a proper basis for the suggestion,[38] so far as we are aware, no ethical, evidentiary or other rule — other than, perhaps, one of prudence — constrained counsel to refrain from putting to Lancaster that he was the murderer unless she had distinct instructions from the applicant to do so. Indeed, generally speaking (and subject to applicable ethical and evidentiary rules), senior counsel’s overarching instructions would have been understood to give her complete control over the way in which the applicant’s case was conducted.
[38]See [54] above.
Although we consider that it was unnecessary for senior counsel to put to Lancaster directly and categorically that he murdered Mr Rule (as opposed, say, to simply asking him whether he was involved in the killing) — and to that extent, may have gone a little too far — we do not consider that so much occasioned any miscarriage of justice. Up to the point when she asked the impugned questions, senior counsel’s cross-examination was, as we consider our summary of it demonstrates, quite competent. But if indeed counsel did go too far, so much would not have worked to the detriment of her client. Counsel made the point clearly for the jury’s benefit that there were viable alternative suspects for Mr Rule’s murder. Moreover, any danger of the jury inverting the of the onus of proof due to trial counsel’s cross-examination was ameliorated effectively by strong directions by the trial judge.[39]
Evidence of Danny Harris
[39]See [106]–[108] below.
Given that trial counsel’s cross-examination of Harris became the source of criticism in the oral submissions of the applicant’s counsel concerning the first particular of incompetence, we consider it to be both useful and necessary to review that cross-examination so as to gain a broad impression of counsel’s competence in her questioning of important witnesses. Indeed, a review of her cross-examination of Harris reveals it to have been generally effective in demonstrating that people other than the applicant might have borne responsibility for Mr Rule’s demise.
In evidence-in-chief, Harris said that he had met Peter Rule through Lancaster seven years previously, and Mr Rule introduced him to the applicant. Harris said he and the applicant had ‘their moments’ in their relationship. They had one argument in 2009, but otherwise had a good relationship. Mr Rule would accompany Harris in carrying out the repossessions of vehicles. The applicant also accompanied Harris on repossessions, and sometimes the three of them would go out together. Harris gave evidence that he visited the applicant’s property in Craigieburn twice a month. On one of those occasions in 2009, he went upstairs and saw a marijuana crop being grown there. There were about 20 plants with bright lights. Harris said that in 2009 he knew Spiropoulos, whom he had met about four times. On one occasion, about six months before Mr Rule went missing in November 2009, Harris observed an altercation between Mr Rule and the applicant in a truck on the Westgate Freeway. Mr Rule put the applicant in a headlock and started pushing him around, but the applicant did not fight back.
Harris gave evidence that, on a previous occasion, after police had raided the Craigieburn factory, he had a conversation with the applicant in which the applicant said that he thought Mr Rule had been snooping around his property, since he found a hat there that he thought was Mr Rule’s. The applicant thought that Mr Rule had given him up to the police, because they had the altercation in the truck two weeks previously. Harris said, ‘once in the car, we were driving along and Peter [Rule] had said to Louie [the applicant] that he knew he had a factory and was growing cannabis, or dope … and [the applicant] just said, “Get fucked, you cunt”’. On another occasion in October 2009, when Harris and the applicant were driving down the road, the applicant all of a sudden said, ‘I’ll get that cunt’.
In his evidence, Harris said that the last occasion he had any contact with Peter Rule was on 14 November 2009, at Mr Rule’s house. Subsequently, Harris became aware that the applicant was going overseas, the applicant having visited Harris the night before he left. The applicant telephoned Harris about three weeks later from overseas. When Harris explained to the applicant that Mr Rule had gone missing, his response was, ‘He’s probably gone bush’. Before going overseas, the applicant owned a blue Volvo sedan. In early 2009, he owned the Volvo, a Ford Fairlane and a red Pulsar. Harris saw the applicant after he returned from overseas. The applicant told Harris that the Homicide Squad had been to his house and left a card, and asked if Harris could drive him to the Broadmeadows Police Station.
Senior counsel’s cross-examination elicited a number of matters that supported the applicant’s essential ‘defence’. Hence, when she cross-examined Harris about vehicle repossessions, he agreed that car owners whose cars were repossessed sometimes became angry (although he denied there was a scam whereby, after a vehicle was repossessed, the agent was told that the vehicle was missing, and he retained the car). Counsel also brought out that Mr Rule would get ‘shitty’ if he did not get his own way. Further, Harris agreed under cross-examination that Mr Rule on many occasions did not take prescribed medication for depression and diabetes. Sometimes, Harris said, there were occasions when Mr Rule would be off his medication — in particular, his anti-depressant medication — for months. When he was off his medication Mr Rule would get aggravated, angry and aggressive. Harris sometimes thought that Mr Rule was a bit schizophrenic — he was strange sometimes — and there were signs that he was not taking his medication.
Under cross-examination, Harris confirmed that Mr Rule was a member of the Vigilantes motorcycle club; would talk about his associations and friendships with people within the Vigilantes; and would sometimes talk about his associations with the underworld (talking about gangsters, the Faraday kidnappers and Chopper Read); so that Harris and Lancaster warned Mr Rule not to get involved and to keep his mouth shut. Harris said that Mr Rule had a few enemies, and there were times when Mr Rule was behaving erratically and he would just disappear (normally taking his dog with him).
Further, in her cross-examination of Harris, senior counsel elicited that an individual, Neil Higgins, and others in his family, bore animosity towards Peter Rule. According to Harris, Mr Rule had a lot to do with Brad Higgins — they were ‘knocking around’ together — who was in a lot of trouble with the police. Harris said that Neil Higgins, Brad Higgins’ father, was not happy about his son associating with Mr Rule, and he called Mr Rule some pretty horrible names, ‘scum and everything’. Harris had heard of an incident in which Brad Higgins was arrested and charged with armed robbery, having used Neil Higgins’ tow truck. Mr Rule told Harris that the tow truck had been used in the armed robbery. Neil Higgins was angry with Mr Rule, saying that Mr Rule got away with it (while his son got arrested). There were other occasions when Neil Higgins expressed animosity towards Mr Rule over allegations that Mr Rule had been informing in relation to Neil Higgins’ brothers. They thought that Mr Rule was a ‘dog’ (that is, an informer). Harris agreed he was aware things got ‘pretty bad’ between Higgins family members and Mr Rule after the armed robbery. Harris also agreed in cross-examination that in October 2009 two cars outside Mr Rule’s house were set alight, and Brad Higgins was charged in relation to that. At the time, Brad Higgins was on bail. When Brad Higgins attended at the police station to report on bail, he was arrested. Neil Higgins blamed Mr Rule for Brad being in custody, because he thought that Mr Rule had burnt his own car, yet Brad was getting the blame. Neil Higgins described Mr Rule as a ‘dog’. Harris denied that he knew that Mr Rule was informing on Neil Higgins’ nephew, Colin.
Senior counsel also brought out that the applicant’s relationship with Peter Rule was not hostile. When cross-examined about the incident that occurred while driving over the Westgate Bridge, Harris said that, when Peter Rule got the applicant in a headlock, he did not fight back. Harris agreed he ‘had never seen [the applicant] be violent’. Harris was also cross-examined about a conversation in a car when Mr Rule told the applicant that he knew he was growing cannabis at his factory. There was nothing in the conversation, however, that exhibited any ‘animosity’ between them. Further, when cross-examined about the conversation in the vehicle in which the applicant said in reference to Mr Rule, ‘I’ll get that cunt’, Harris agreed that the conversation was simply general talk about Mr Rule, and it did not exhibit any form of animosity between them. Harris also agreed that, from time to time, he himself would say something like that about Mr Rule in a jovial fashion. When he did so, Harris did not mean to kill Mr Rule. Harris was aware that there was a physical confrontation between Lancaster and Peter Rule. There was a dispute over saucepans, and Mr Rule became abusive and threatening to Lancaster, causing Lancaster to become concerned over threats made to his family.

Harris also gave evidence under cross-examination from which it might be inferred that considerable hostility existed between Lancaster and Peter Rule. Harris said that, about 12 months before 2009, he was at the factory in Killara Road, Campbellfield, and Peter Rule was there. Someone asked how Phil Lancaster was going, and that ‘set [Mr Rule] off’. He started calling Lancaster a ‘dog’ and a ‘cunt’, and was behaving in an aggressive manner about him. A telephone call was made by someone to Lancaster, and Mr Rule got on the telephone and Harris heard Mr Rule saying that he was going to ‘bash’ Lancaster. Peter Rule said to Lancaster ‘to make sure that he brought a body bag with him because he was going to be in it’. Mr Rule was challenging Lancaster to come and fight with him. Harris said that Mr Rule ‘was putting knives in his back pocket for when Lancaster came around, but [they] took them off him’. On the day that Mr Rule put knives in his back pocket, he was being aggressive and volatile. Harris was not going to let Mr Rule have knives on him when Lancaster arrived. As soon as Mr Rule saw Lancaster, he started abusing him; spat on him; bared his ‘bum’ at him; and ripped Lancaster’s shirt. He was being ‘pretty provocative’, he was ‘angry’ with Lancaster. Harris said that Mr Rule grabbed an iron pole from the truck, then walked in front of the truck and jabbed Lancaster in the stomach with it. Things were ‘getting very out of hand’. Lancaster knocked Mr Rule down. Police and ambulance were summoned, and they attended. When Mr Rule came to, he was still calling Lancaster on the telephone and abusing him. After that, Lancaster obtained an intervention order.
Senior counsel’s cross-examination also drew out evidence from which it might be inferred that Harris bore Peter Rule some antipathy. There was an incident at Harris’ scrap metal yard, situated at Bolinda Road, Campbellfield, where Mr Rule came to the yard, and, when he saw Lancaster, started yelling out abuse at him, ‘calling him a dog, cocksucker, cunt and informer’. Mr Rule was aware that Lancaster had shown police messages Mr Rule had sent him on his phone, causing Mr Rule to get abusive and aggressive over that. When Harris told Mr Rule he should apologise, Mr Rule got angry with him. Harris kicked Mr Rule’s car door, jamming Mr Rule’s hand inside it, and told him to ‘piss off’. As he drove to the gate, Mr Rule got out and yelled abuse and made threats to Harris. As a result, Harris picked up steel and threw it at Mr Rule’s vehicle, breaking the back window. Mr Rule had been ‘so aggressive, so abusive, so volatile, that he’s almost run over two little kids’. Before that incident, Harris said, there had been a couple of other incidents between him and Mr Rule where Mr Rule became aggressive and violent to Harris.
There was a deal of other cross-examination of Harris on a variety of topics, including whether he had been at Corey Small’s factory in Campbellfield before 15 November 2009; the circumstances in which he made his two statements to police on 2 December 2009 and 23 April 2010; his claim that he had seen a cannabis crop at the applicant’s Craigieburn premises; visits that he had made to Mr Rule’s premises; the applicant’s purchase of the blue Volvo; whether he had spoken to Spiropoulos about Mr Rule going missing; that the applicant seemed happy and relaxed before he went overseas; that when he returned from overseas, the applicant seemed relaxed when told that the Homicide Squad had been to his house; and other matters which it is not necessary to recount.
Senior counsel’s cross-examination of Harris concluded as follows. Harris denied the suggestion put to him that he was at Peter Rule’s premises on the morning of his disappearance, Sunday, 15 November 2009. Harris gave evidence that he was at Mr Rule’s premises the previous day, Saturday 14 November 2009, in order to pick up an air-conditioner, and denied the cross-examiner’s suggestion that he was lying about that. He also denied that something went wrong and Mr Rule lost it. The relevant passage of cross-examination was:
Harris, Wally Hoppner, a neighbour of Mr Rule’s, has given evidence that on the morning of Sunday, 15 November 2009, he saw a light coloured Nissan Patrol pull up across the driveway and he saw that that light coloured Nissan Patrol had both of its back doors open. Do you understand? I'm telling you that's the evidence that he has given?---Yeah.
That was you, wasn’t it?---Not on the 15th. That was the 14th when I put the air conditioner in the back.
What I’m putting to you is that you are lying about that. That was in fact on the Sunday morning. What do you say about that?---You're wrong.
You are there on that Sunday morning to pick up the air conditioner and arrange with Peter Rule to pick him up that evening to go around and do repossessions. What do you say about that?---I say you’re wrong.
And you are lying, and you are lying because you want to distance yourself as much as possible from Peter Rule on the day of his disappearance. What do you say about that?---You're wrong.
And you need to distance yourself from Peter Rule on the day of his disappearance because you know you are responsible for his disappearance. What do you say to that?---You’re wrong.
Leanne Hoppner, the neighbour behind, has given evidence that she saw a silver four-wheel drive parked outside Peter Rule's unit after 8.30 p.m. on Sunday, 15 November 2009.
That, too, was you, Harris, wasn’t it?---You're wrong.
You were there?---No, I wasn’t.
To pick him up?---No, I wasn’t.
And to take him to do repossessions?---You're wrong.
To drive around looking for vehicles?---You are wrong.
What happened? Did something go wrong?---Nothing went wrong. I wasn't there on the 15th.
Did Mr Rule lose it?---I wasn’t there on the 15th.
HIS HONOUR: I thought we had been over this, [senior counsel]. You know the rules.
[SENIOR COUNSEL]: Yes, Your Honour. If Your Honour pleases, I have nothing further.
As we have indicated, we consider that senior counsel’s cross-examination of Harris was, for the main part effective to bring home to the jury that individuals other than the applicant might have harboured a motive to cause Peter Rule harm. If, perhaps, she overstepped the line with Harris towards the end of her questioning, it is impossible to say that it caused any prejudice to her client.[40] Importantly, the impression that one gains from the cross-examination of Harris (and other witnesses) is that, on the whole, it was competent.
The evidence of Steven Bousattout
[40]See [106]–[108] below.
The third aspect of senior counsel’s supposed incompetence related to her cross-examination of Steven Bousattout.
We have earlier set out some of Bousattout’s evidence.[41] In 2009 and 2010, he worked at Wallan Engineering in Campbellfield. He there met Michael Spiropoulos, an apprentice, and the applicant. Subsequently, in 2010 or 2011, Bousattout worked at Driven Engineering at 20 Glenbarry Road, Campbellfield, for a period of six months. One Monday morning while he was working there, Bousattout noticed a patch above the ramp — between the female toilet to where the ramp started — which was ‘spotless clean’. Corey Small was present when he saw the patch. Further, in April 2010, Bousattout located a small axe at his home, leaning against the sliding door to the shed. Spiropoulos was living at the premises at that time.
[41]See [58]–[59] above.
In cross-examination, Bousattout said that Spiropoulos told him what had happened at Glenbarry Road the day before the police came to Bousattout’s home on 7 April 2010. Bousattout said that he did not believe what Spiropoulos said to him — that the applicant shot Mr Rule — because Spiropoulos was a ‘kid’. After the police left on 7 April, Spiropoulos gave more details to Bousattout, including an account of the area where the shooting occurred, and that it was cleaned by him and the applicant.
Senior counsel then commenced to ask Bousattout about the circumstances in which he made a statement to the police. Bousattout stated that his memory was not good, because he had recently suffered a tragedy. It was at this point that the judge intervened, asked the jury to leave the court and then questioned counsel about her cross-examination of the witness as to what Spiropoulos told him.[42]
[42]See [60] above.
Cross-examination then resumed, and senior counsel put to Bousattout an inconsistency in his evidence concerning the account he gave police in his statement; that is, that he found the small axe in Spiropoulos’ car, and that he took it out of the vehicle and put it against the wall, near the roller door in the shed. Bousattout also agreed that, in his first statement to the police, he did not say anything about noticing something on the concrete at the factory where the applicant was alleged to have killed Mr Rule. Subsequently, in January 2012, the informant, Detective Paul Rowe, telephoned Bousattout and asked him if he had noticed anything in relation to the concrete at the factory where the applicant was alleged to have killed Mr Rule. Senior counsel then put to Bousattout the statement that he made to police on 19 January 2012 (two months before the trial) in which he said that he noticed the concrete was very clean and had been cleaned in one patch. Bousattout agreed that the first occasion on which he was asked to think about that matter was very recently, two years after he had made his first statement. Counsel then put to Bousattout that he was lying about making those observations, and that he had said he made the observations because other persons, including Spiropoulos and Corey Small, had told him about the matter and said that they wanted Bousattout’s support. Senior counsel then cross-examined Bousattout about some other, more minor, matters.
Once more, we consider that the cross-examination of Bousattout was competent. It addressed relevant matters, and counsel was able to demonstrate that Bousattout had been inconsistent in his evidence. The impugned piece of cross-examination, in which the judge intervened, could be criticised as unnecessary. But in context, it was quite innocuous, given that the account, given to Bousattout by Spiropoulos, that was the subject of cross-examination, was one which was given either very shortly before, or after, the police attended and spoke to the witness.
In our view, the cross-examination of Bousattout was not the source of any detriment to the applicant’s case. Indeed, any potential detriment was nipped in the bud by the intervention of the trial judge.
Judge’s directions
As we have mentioned, one of the principal complaints made by the applicant’s counsel in oral submissions concerned with the first particular of trial counsel’s alleged incompetence was that her cross-examination was apt to invert — or, at least, ‘dilute’ — the onus of proof. We do not accept that this is so. In circumstances in which the judge gave repeated and firm directions, making it clear that the burden of proof rested on the prosecution and that the defence carried no onus, we consider there to have been no danger that the jury would have misused trial counsel’s ‘puttage’.
One example of the directions given by the trial judge in his charge suffices to illustrate the point:
… In a criminal trial the Crown must prove its case beyond reasonable doubt. That is not able to be quantified with numbers. You must be satisfied beyond reasonable doubt before you can reach a verdict of guilty. If at the end of considering the evidence in this case you have a reasonable doubt about any of the elements and, in particular, the one that is in contention here, you must acquit the accused. On the other hand, likewise, consistent with your oath, you must convict, or find the accused guilty, if you have no reasonable doubt about the elements of the offence.
To come back to the position of the accused, as I said, there is no responsibility on him to prove anything, there is no onus to demonstrate anything, and I mention that again because, as you have seen during the course of the trial, a number of witnesses have been cross examined and submissions have recently been made on behalf of the accused about people such as Harris, Higgins, Lancaster and Spiropoulos, himself, who might well have some motivation to do some harm to Peter Rule. Indeed, it was directly put to Phillip Lancaster, Danny Harris and Neil Higgins that they were somehow involved in the disappearance and killing of Peter Rule, and it was certainly put to Spiropoulos that he was framing Borg and protecting others in the course of his evidence. It is important that you be absolutely clear that because [the applicant’s counsel] chose to put those questions to those witnesses does not mean that she set out to prove that someone else murdered Peter Rule. She doesn’t have to do that. As she said to you in the course of her address, she can’t do that. She is entitled to raise the possibility and it is a matter for you to consider what you think of it, but Leonard Borg is not required to prove that any of those people killed Peter Rule before you bring in a verdict of not guilty. You may think it is unlikely, a matter for you, that any of Lancaster, Harris or Higgins were involved in the death of Peter Rule and you may still come to the conclusion that neither was Leonard Borg or at least that the prosecution haven’t proved it beyond reasonable doubt. So in order, and this is the fundamental point I want you to understand, in order to find the accused man not guilty, you do not have to be satisfied that someone else killed Peter Rule. The question always is whether or not the Crown have proved beyond reasonable doubt that Leonard Borg killed Peter Rule. If the answer is no, then the verdict must be not guilty.
As a barrister I used to urge juries to go into their jury room, ask for a whiteboard, ask the tipstaff … to go down to what was then McEwans, the hardware store in Bourke Street, buy a tin of red paint and a brush, bring it back and paint on the whiteboard ‘beyond reasonable doubt’ because I wanted them to remember throughout the course of the deliberations that the test is whether or not the prosecution have proved their case against the accused beyond reasonable doubt. Perhaps metaphorically you might care to follow the same procedure.
We have no reason to think that the jury would not have understood and applied these directions.
Conclusion
Properly analysed, none of the matters relied upon by the applicant could found the conclusion that senior counsel’s incompetence caused his trial to miscarry.
In those circumstances, even had the applicant advanced a satisfactory reason for his delay in attempting to invoke this Court’s jurisdiction, it would be futile to grant an extension of time.
The extension of time will be refused.

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[2024] VSCA 65

16 April 2024