DPP (Vic) v Curran; Curran v The Queen

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2011 0244

DIRECTOR OF PUBLIC PROSECUTIONS (VIC)

DAVID ALLAN CURRAN

S APCR 2011 0275

DAVID ALLAN CURRAN

THE QUEEN

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JUDGES:	BUCHANAN, NETTLE and HARPER JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	20 September 2012
DATE OF JUDGMENT:	3 October 2012
MEDIUM NEUTRAL CITATION:	[2012] VSCA 244
JUDGMENT APPEALED FROM:	[2011] VSC 444 (Kaye J)

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CRIMINAL LAW – Conviction – Murder – Verdict – Whether unsafe and unsatisfactory – Whether weapon discharged accidentally during course of struggle – Evidence – Fresh evidence as to provenance of weapon – R v AHK [2001] VSCA 220, Coleman v R [2011] VSCA 301, Lawless v The Queen (1979) 142 CLR 659, applied.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr P B Kidd SC	Mr C Hyland, Solicitor for Public Prosecutions
For the Respondent/Applicant	Mr J P Dickinson SC with Mr M D Stanton	Robert Stary Lawyers

BUCHANAN JA:

NETTLE JA:
HARPER JA:

Following a 22 day trial in the Criminal Division, the applicant was convicted of the murder of Vinicio Cervi (the deceased) and, after a plea in mitigation of penalty, he was sentenced to 19 years’ imprisonment with a non-parole period of 15 years. He now seeks leave to appeal against conviction. The Crown appeals against sentence on the ground of manifest inadequacy.

The Crown’s case at trial

The Crown’s case at trial was that on 9 March 2009 the applicant was moving his belongings from a house in Preston which he had been renting from the deceased. At the same time the deceased was moving his belongings out of a factory property in Coburg which he had been renting from the applicant. During the course of the day, relations between the applicant and the deceased became tense. At the Preston property the deceased became upset at the state in which he perceived the applicant to have left the property and about the little amount of progress which he regarded the deceased as having made in moving his belongings. The applicant was also upset because of the filthy state in which he perceived the deceased to have left the Coburg property.

In the late afternoon the deceased arrived at the Coburg property when potential purchasers were undertaking an inspection. The applicant had moved the deceased’s trailer into the street to facilitate the inspection. The deceased became agitated when he saw that some damage had been done to the trailer. The applicant on the other hand remained calm and assured the deceased that he would have the damage repaired.

After the inspection had concluded, the applicant left the Coburg property and drove towards the Preston property to complete the removal of his possessions.

At 6.42 pm he sent a text message to a friend, Timothy Bell, saying:

Hi mate. I might have a full on blue with Vinnie and a would be mate me his tonight. There been treating me like a goose. I will go them on my own. But I need a chop out because I am go them tonight [sic].[1]

[1]It was agreed at trial that the term ‘chop out’ means help or assistance — see Reasons for Sentence, DPP v David Allan Curran [2011] VSC 444, [7].

The applicant arrived at the Preston house with his former girlfriend, Janette Allan, at about 7.50 pm. He got out of the car and walked into the property. Ms Allan stayed in the car. The deceased was at home at the property in the company of his girlfriend, Kylie Berwick, and her eight year old son.

Shortly after the applicant’s arrival, a fight broke out between the applicant and the deceased. During the struggle, four shots were fired. There were no eye-witnesses to the shooting and thus there was no direct evidence as to the precise circumstances in which the shots were fired. One shot struck the outside of the deceased’s lower leg. Another, which was fired at close range, penetrated the deceased’s abdomen and perforated his aorta, which caused his death.

There is no evidence to suggest the presence at the scene of more than one firearm. The circumstances by which that firearm came to be involved in the fight was an issue at the trial, and is a matter which requires review in this judgment.

Ms Allan came from the car and saw the deceased lying on the ground in the front garden with the applicant tending him. She and Kylie Berwick called emergency services, but the deceased died at the scene.

Very shortly after the shooting, the applicant gave a handgun to Janette Allan and told her to take it away, but not to hide it. She put it on the front seat of the car and covered it with a blanket. At much the same time a friend of the deceased, Paul Bassi, arrived at the scene and there was a verbal confrontation between him and the applicant in which the applicant was alleged to have said to Bassi: ‘You’re going to get it next’.

The applicant made a ‘no comment’ record of interview. But when questioned by police at the scene, and later at the Preston Police Station, he said that the weapon had had discharged during a struggle between him and the deceased.

The Crown went to the jury on the basis that they should find that the applicant took the gun with him to the Preston house and shot the deceased with the intention of killing or causing him really serious injury. The Crown’s thesis was that there was discontent between the deceased and the applicant as the result of the deceased asking the applicant to vacate the Preston house on short notice and that the discontent boiled over when the deceased confronted the applicant in front of prospective purchasers of the Coburg property about the damage done to the deceased’s trailer. The Crown argued that, although the applicant appeared to maintain his cool during that incident, he was in fact furious and it was that which caused him later that evening to go to the Preston property with the intention of either killing the deceased or at least inflicting really serious injury.

The Crown relied on the following evidence as sufficient to sustain that inference beyond reasonable doubt:

a) The text message to Tim Bell, which the Crown said showed that the applicant was expecting trouble and therefore took the gun to the scene with the intention of having a violent confrontation with the deceased.

b) The evidence of the deceased’s girlfriend, Kylie Berwick, which was to the effect that the applicant was aggressive and violent.

c) The evidence of her and her son, which was to the effect that the deceased did not appear to be armed when he went to answer the front door to the applicant.

d) The statement of Paul Bassi, (now deceased) which was to the effect that, following the shots, the applicant was still worked up with anger and threatened Bassi.

e) The testimony of Tim Bell, which was to the effect that, when he telephoned the deceased moments before his death, the deceased sounded to be in a calm state of mind.

f) The contrast in size and strength between the applicant and the deceased — the latter being bigger and stronger — which was said to imply that the applicant would have felt vulnerable and been more likely than the deceased to have taken a weapon with him.

g) The fact that there was a struggle between the two men, which was said to be inconsistent with the deceased having produced the gun because, if he had produced a gun, the applicant would not have been able to overpower him.

h) Janette Allan’s evidence as to the applicant handing her the gun shortly after the shooting, which was said to imply that the applicant was asserting ownership of the weapon.

i) The applicant’s statements to the police as to what had occurred, which did not condescend to an explanation of how the weapon was produced.

j) Expert medical and ballistic evidence, in conjunction with the fact that four shots were fired, which was said to be inconsistent with the gun discharging accidentally.

Defence Case

The defence case was that applicant and the deceased were good friends and that it was the deceased, not the applicant, who was acting irrationally and angrily on the day of his death; it was the deceased who produced the gun, not the applicant; and the gun discharged accidentally during the course of a struggle between the deceased and the applicant. The defence relied upon the following evidence in support of that version of events:

a)   Eyewitness accounts of the deceased as acting irrationally on the day and being very angry and abusive towards the applicant.
b)     Tim Bell’s telephone conversation with the deceased moments before his death and his observation that the deceased was ‘wasted’.
c)   Janette Allan’s testimony that she and the applicant only went to collect further belongings and that the applicant was in a calm mindset and unlikely to have taken her along if he anticipated violence.
d)     Ms Allan’s testimony that she did not see the applicant with a weapon in the car or when he got out of the car.
e)   DNA evidence — particularly evidence of the deceased’s DNA being found on the gun (especially on the grip and trigger) — and the lack of evidence of the applicant’s DNA being found on the gun.
f)   Kylie Berwick’s testimony that the deceased said moments before his death that he was expecting trouble from one or more people, which was said to explain why the deceased would have armed himself
g)     Ballistic and medical evidence which showed that the gun was discharged close to the deceased’s body and thus was said to point to accidental discharge during the course of a struggle.
h)     Ballistic evidence that the gun had a low trigger tolerance, which was said to support the probability that the gun went off accidentally during a struggle.
i)   The recording of the Janette Allan’s and Kylie Berwick’s 000 call did not support Bassi’s evidence that the applicant threatened him.
Grounds of appeal

There were originally three grounds of appeal but the third has been abandoned. Grounds 1 and 2 are that:

(1) The verdict is unsafe and unsatisfactory and cannot be supported having regard to the evidence.

(2) The judge erred in failing to exclude from evidence the statement of Paul Bassi, deceased.

There is also an application to add as an additional ground the following:
Since the applicant’s trial, fresh evidence has become available that:
(a) renders the verdict of the jury unreasonable or one that cannot be supported having regard to the evidence at trial and the fresh evidence;
(b)gives rise to a significant possibility that the jury would have acquitted the applicant; and or
(c)would have caused the judge to decline to admit the statements of Paul Bassi.
Ground 1 – Unsafe and unsatisfactory

Turning first to Ground 1, counsel for the applicant argued that the verdict was unsafe and unsatisfactory because of the possibility that the weapon discharged accidentally during the course of a struggle between the deceased and the applicant and that, having regard to the evidence adduced at trial or at least after taking into account the new evidence, it was a possibility which the jury could not rationally have excluded beyond reasonable doubt. Counsel advanced ten considerations in support of that contention.

The first was what the applicant told police when they came to the Preston property and then later at the Preston police station. In particular, counsel pointed to:

a) Detective Senior Constable Hanna’s evidence as to what the applicant told him at the Preston property:

I then said, ‘What’s your relationship with this guy’, indicating to the victim. To which he said, ‘He’s a good mate’. I said, ‘What’s his name?’ And he said, ‘Vinnie’. I said, ‘What happened?’ He said, ‘A blue broke out and that’s it.’ I said, ‘Did you shoot him?’ He said, ‘I don’t know if it was him or me’. I said, ‘Were you fighting with him?’ He said, ‘Yes, I was in a struggle with him.’ I asked, ‘What happened to the firearm?’ He said, ‘I asked the lady [Janette Allan] to remove the firearm‘. I said, ‘Where to?’ And he said, ‘I don’t know’. And I asked, ‘Where did this happen?’ And he said, ‘Here in the front yard’.

b) Sergeant Sheahan’s evidence as to what the applicant told him at the Preston property:

He was happy to speak with you, that’s right? - - - Yes.
It was immediately after you asked him that first question that he said that they were arguing or that he said that he and the deceased man were arguing and then started fighting? - - - Yes.
Do you have a recollection of that? - - - yes.
Then Mr Curran stated to you there was a ‘bang bang’ and he [the deceased] was shot? - - - Yes.
You were concerned at that stage about the location of the firearm? - - - Yes.
…
… You asked him a question and he told you directly that he’d given it to the girl out the front? - - - Yes.
And there was a girl out the front? - - - Yes.
He described her a blonde? - - - Yes.
And she was blonde? - - - yes.
It was shortly after that you were able to recover the firearm in the position that you’ve described in the front of the utility vehicle? - - - Yes.

c) Detective Senior Constable Camillo’s evidence as to what the applicant told him later at the Preston police station:

What David Curran said to you was that what had happened earlier on that evening was firstly that Mr Cervi was off his head on drugs; that’s right? - - - Yes.
David Curran said that he, being Cervi, suddenly began punching David to the face? - - - Yes.
That David Curran said that all that he could recall was that Cervi had him up against the fence? - - - Yep.
That’s right? - - - Yes.
That he had just heard gunshots; he told you that? - - - Yes.
He and Cervi were fighting over the firearm? - - - Yes.
Those were the words he said to you? - - - Yes.

We accept that the applicant’s statements are consistent with the shooting having occurred as a result of accident. It seems to us that they are also consistent with the possibility that the deceased rather than the applicant was the aggressor. As counsel for the Crown pointed out, however, the applicant said nothing expressly about who took the gun to the Preston property, and the fact that the applicant did not say anything to police about the provenance of the weapon does not help his case.

The second aspect of the evidence on which counsel relied was what he described as consistency between the applicant’s version of events and the versions of events given by other witnesses. Counsel referred to the evidence just recounted and submitted that there was a high degree of consistency between it and the following:

a) The evidence of Kylie Berwick that she heard the deceased say to the applicant that the applicant had shot him or got him and, immediately after that, heard the applicant respond with the interrogatory: ‘Where, where?’:

You heard a number of shots? - - - Yeah.
Having heard those shots, did you hear anything else coming from outside? - - - Just heard Vinnie saying, ‘You’ve got me.’ And Dave was just saying, ‘Where, where?’
When Vinnie said, ‘You got me’ can you say anything about his voice at that time? - - - Yeah it was weak.
Then you said you heard the accused say, ‘Where, where’; Is that right? - - - Yeah, yep.
What did you do? - - - Just sat in a wardrobe.
…
While you were in there did you actually hear the noise of sirens? - - - Yes.
Just pardon me. Having heard that did you come out of the wardrobe and have a look out the window? - - - Yes.
When you looked out the window what could you see? - - - I could see Vinnie laying on the ground on his side.
You see Vinnie laying on the ground on his side? - - - And Dave leaning over the top of him.
Dave leaning over the top. Where was Vinnie lying? - - - On the – near his truck.

b) The evidence of Janette Allan that, as she was still sitting in the car outside the Preston property, shortly after the applicant had gone in through the gate, she heard wrestling and punching noises which appeared to be or get close to the front fence, and then heard the discharge of the weapon and saw smoke rising near the first panel of the fence line, which is to say close to the front gate and just inside the property:

And you stayed in the car?---Yes, I stayed in the car.
So he didn't ask you to come with him or anything like that?---No.
…
Anyway, so you weren't asked to go. He got out of the car. Where did he go to then?---Where did I go?
No, where did he go?---He went into the property.
How did he enter the property?---He walked in.
…
You see that. And then if you just go over one further photo, to Photograph 15, that shows a view looking in the front gate. So there's – I think the evidence would indicate there are two ways of getting into the front of the property?---That's right.
One through the driveway and one through the gate. Can you say which way he went?---He went through the — the driveway.
So whereabouts; which side of the truck?---On the left side of the truck.
So, between the left side of the truck and that – the left sort of gate post there?---Yeah, because the area was really, or it seemed to me to be really tight, the truck being in there.
…
So, once he went into the property through that gap there what was the next thing that you saw or heard or did, for that matter?---Um, I was still — I was still talking to Tim on the phone and — but the — I had the phone in my hand and I remember — I remember hearing noises.
What sort of noises?---Um, it just sounded like a — a wrestling, a wrestling, punching, punching noise, and I'm not — I can't say 100 per cent. I don't know whether the window was down [sic] of the ute, I've got no idea. It must have been for me to hear, to hear those noises.
Had you heard any noises of voices or anything before that or not?---No, not before.
No, so you heard this wrestling, punching noise?---M'mm.
And then what did you do?---And I was still on the phone to Tim and I'd hopped out of the — I'd hopped out of the passenger side of the car, um, and then - - -
And where did you go to?---I'm pretty sure I was standing near the — near the passenger side of the door.
So that's still on the – sort of the road side rather than the house side?---Yes, it would have been still on the road.
…
So you said you could see Vinnie's head near there; is that right?---Just, just the top of his head.
Where were you looking to see that? Were you looking through an open gate or over the fence, or through the fence?---No not — the gate was opened, I couldn't — all I could see what his hair and the top of his head.
So was that over the top of the fence?---Yeah.
What was the next thing that happened?---I must have moved, moved around the car and then the next that I could see were two — it was like two clouds of smoke and they just — and the smoke went up into the sky. I heard, I heard shots and I thought they were — it sounded like a fire cracker.
These two clouds of smoke, did you see where they were?---Where they were?
Where did you notice these clouds of smoke?---I was, I was still out on the road. I probably would have been at the point of maybe the — the left side of the ute, still out on the road.
That's where you were?---Yes.
Where were the clouds of smoke?---They were beyond the fence line.
Beyond [inside] the fence?---Yeah.
Do you know whereabouts they were in the property?---How can I say? They were - - -
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I'm just asking you to say to the best of your recollection if you can [say] where you saw the smoke?---Maybe in the front — the first panel of the actual fence.
…
You mentioned something about the first panel?---First panel, yep.
We can see the truck and then to the left of that truck we can see a panel of the pickets that make up the fence?---That's right.
Is that what you mean is the first panel?---Yep, yes.
…
What did you do then?---And I headed towards — I headed towards the property after hearing it and I saw — I saw Vinnie.
Where did you see Vinnie?---I saw Vinnie close, close to the fence and - - -

What was he doing; what position was he in?---He — he was lying on his, on his left hand side in the first aid position. I remember him being - - -
…
And his position was very close to that fence line, that’s as you recall when you first went in there? - - - Yes.
You’re not able to say whether there was any pushing up against that front fence area? - - - I can’t say - - -

We accept that those aspects of the evidence are consistent with the applicant’s account to police that the weapon discharged in the course of a struggle with the applicant. As counsel for the Crown argued, however, there was also evidence which pointed the other way. Counsel referred in particular to the following:

a) Evidence given by Kylie Berwick that the applicant approached the front door aggressively and abused the deceased, and then they began to struggle:

So what then happened from the point when you saw him moving apparently towards the front door of the house?---What happened then?
Yes, what did you, you know, where did you go and what about Mr Cervi - - -?---Well - - -
- - - because you'd left him in the kitchen I think you told us?---Yes and I was sort of standing at the door and then I went to turn around to tell him that Dave was there and he was just behind me.
Mr Cervi was just behind you?---Yes.
And what happened then?---He ended up in front of me.
…
So what then happened at the front door there?---He just said to Vinnie: ‘What's your form, cunt’, and - - -
Sorry I just need to slow you down just a moment. He said to Vinnie: ‘What's your form, cunt’?---Yes.
So that was the first thing that was said?---That was the first thing that was said.
Anything about the tone of voice that was used?---Well it wasn't nice.
Did you then say something as a result of that?---Yes I asked Dave to fuck off as I had my son with me and he told me and my son to fuck off. Sorry, he said me and my son could go get fucked.
Where was your son at that point by the way?---Standing behind me on the side.
What then happened?---And then there was just scuffling and - - -
Now, how did that happen because the last thing you said to us about where Vinnie was, was that he was behind you. And did he get in front of someone?---Yes he ended up in front of me.
Did you actually see him leave the house, go out the door?---No I just — I was like — it was like they were there two seconds and then I turned and looked at Blake and turned back around and they were on the grass fighting.

b) Evidence of Kylie Berwick that, at one point, she looked out and saw the applicant holding a gun and the deceased pushing it down to the ground:

So we can see two black sort of plastic or rubber mats there?---Yes.
Which are some distance off to the right of the path as we see them and do you say that it was between where those mats are?---No, it's just sort of where my finger is but I was just sort of saying between where the maps are first.
It's closer to the path?---Closer to the brick — yes.
So what did you actually see at that point, what were they doing?---I just seen Dave on the ground.
How on the ground?---He was laying on the ground on his back with his hand in the ground like that with the gun and Dave — Vinnie was pushing was pushing his hand down on the nozzle [sic] or the top of the gun pushing it into the ground.
…
What direction was the gun pointing in?---It was pushed into the ground.
How was it pushed into the ground?---Vinnie was all — Vinnie was pushing the gun down towards the ground.
You're demonstrating in court Vinnie pushing it down and you're showing a hand of Vinnie on the sort of the top part of the gun pushing it down towards the ground is that right?---Yes.
…
And did you hear something said by Vinnie at this time?---Um, he told Dave to relax and they'd go for a walk to calm down.
Relax, calm down, they'd go for a walk?---Yes.
Well, did the accused say anything about that?---He just told him to get off him, he was ‘a cunt’.

c) Evidence of Kylie Berwick that, after looking away, she heard a shot and, when she looked out, she saw the applicant pointing the gun as if at a target:

And what did you see out there? Could you see either of — either the accused or Vinnie?---I seen Dave pointing the gun.
Where was the accused?---On the brick path.
…
So can I ask you is that — you know, how far along the pathway was it compared with where you'd seen them sort of on the ground?---It was right near where they were scuffling.
Right near where they were. Now, when you saw the accused at that point standing up what was he doing?---Pointing the gun.
In what direction?---Towards the — where Vinnie's car was parked.
Vinnie's truck was parked over in the - - - ?---Driveway.
The driveway; is that right?---Yes.
…
Could you see – and how was he standing, by the way? I withdraw that because I don't know that you've necessarily said that. What was he actually doing, pointing the gun?---Like he was aiming for a target.
Yes, but what was he actually doing, pointing the gun?---Like he was aiming for a target.
Yes, but what was he actually doing at that time? Was he on his feet?---Yep.
And can you say how he was standing?---He was standing with one foot in front of the other pointing the gun like this.
…
HIS HONOUR: For the purpose of the transcript you had your hand up at shoulder level an pointing directly ahead of you.

d) Evidence of Kylie Berwick that, after telephoning Paul Bassi for help and calling for an ambulance, she heard more shots and then the deceased say to the applicant, ‘you got me’:

When was it then that you got on the phone to Paul Bassi? Were you already on the phone to him at that time?---Yeah, I was on the phone and - - -
What did you tell him do you know?---I just, I was just — I couldn't even get my words out properly. I just kept saying, ‘Vinnie, Vinnie, Vinnie’ basically and - - -
You were trying to get him to come and help; is that right?---Yeah, yep.
As to what you actually ending up saying to him, you're saying you struggled to get your words out?---Yeah.
Then did you keep talking to him for long?---No I hung up and rung the ambulance.
When you say you rang the ambulance, did you ring 000?---Yes.
At this time you'd only heard the one gunshot I think you said; is that right?---Yep.
…
After you did that, or at some stage did you hear something else?---Yes.
…
What was that?---It was a few more shots.
Can you remember how many shots you heard?---Not exactly. It was a few.
…
Having heard those shots, did you hear anything else coming from outside?---Just heard Vinnie saying, ‘You've got me’. And Dave was just saying, ‘Where, where?’
When Vinnie said, ‘You got me’ can you say anything about his voice at that time?---Yeah it was weak.
Then you said you heard the accused says, [sic] ‘Where, where’; is that right?---Yeah, yep.
What did you do?---Just sat in a wardrobe.

e) Evidence of the firearms examiner, Mr Glaser, that the weapon could only be fired by pressure placed on the trigger:

Thanks, Your Honour, I wonder if I can just have a look at those, please. You told us about the trigger pull testing that was done indicating 1.4 kilograms of — is pressure the right term?---Yes, trigger pressure, yes.
Required, which is within normal limits, you tested this firearm by firing [it] yourself, is that so?---Yes, I did.
Did you ascertain that the only way in which you were able to discharge the weapon after it was loaded was by the normal method of applying pressure to the trigger? - - - That’s correct.
In other words, just by knocking the firearm or something like that, that couldn’t fire it?---Subjecting it to certain tests, knocking it, striking it with a mallet in various locations. As I said, I — as a result of these tests I say that it cannot be discharged by means other than pressure on the trigger.

f) Evidence of Mr Glaser that the weapon would have been more than 76 cm from the site of the deceased’s non-fatal leg wound:

Can I ask you about another topic and that is whether or not the lack of any stippling or anything surrounding the wound to the leg, whether that says anything to you about the distance of the muzzle to the entry point for the leg wound, at the time of the discharge?---Yes it does.
What does that reveal to you about that?---As a rough guide or rule of thumb, the partly burnt grains of powder ceased to bullet in flight beyond approximately 76 centimetres [sic].
…
So, based on that rule of thumb, do you say that the muzzle was something in excess of 76 cm from the surface of the skin?---Yes.

g) Evidence of the senior consultant pathologist, Dr Dodd, that the angle of the wound to the deceased’s knee was upwards and backwards at 45 degrees, which it was submitted made it unlikely to have resulted from a close struggle. It was more likely, counsel submitted, to have come from a distance and hit the deceased while he was on the ground rather than standing:

Now, the bullet wound to the leg, if we can turn to that. That entered the leg at the point where you told us, a little bit to the right of the — the centre, the right lower leg?---That's right.
Where did that bullet go to?---This bullet has gone upwards and backwards at an angle of approximately 45 degrees. And by that I mean if you look at the body in a standing neutral position the bullet has then gone upwards and backwards at approximately 45 degrees.
…
Might it indicate something else or be consistent with something else?---Well, the direction is downwards and towards the back of the calf, so I guess that's telling us something about the angle of the limb just for a moment for that blood to flow in that direction and then ultimately dry.
So, would that necessarily, though, require the person to be standing up or not?---If I think that — in a true standing position you would expect the blood to be going downwards directly to the heel.

h) Evidence of Mr Glaser that the weapon was between five and 30 cm from the fatal abdominal wound when fired and the evidence of Dr Dodd that the angle of entry to the abdominal wound was 90 degrees, which counsel also suggested was more likely to have come from a distance than close up in the course of struggle:

So it's not going to the left side or the right side, it's virtually going straight?---It's — the bullet wound itself is slightly to the left of the B9 as we've said, but it's — so it's gone towards the middle of the body, but in a more or less horizontal transverse plane.

Of the seven aspects of the evidence which we have just set out, the most damaging from the applicant’s point of view is Kylie Berwick’s testimony that she saw the applicant holding a gun and the deceased pushing it into the ground, and later saw the applicant standing and pointing the weapon as if at a target. The rest of it is equivocal and in some respects aids the applicant’s position. It is to be noted, therefore, that in his sentencing remarks the judge expressly rejected Ms Berwick’s evidence of seeing the deceased pushing the gun into the ground and of the deceased pointing it as if at a target, as not fitting with the objective facts and likely to have been motivated by her deep feelings for the deceased and her bitter hatred of the applicant.

The third consideration relied on by the applicant was the forensic evidence. Counsel for the applicant identified the following:

a) The evidence of the weapons examiner, Mr Glaser, to which we have already referred, that the shot which caused the fatal abdominal wound was fired at a distance of between five and 10 centimetres, coupled with the pathologist, Dr Dodd’s, acceptance of the proposition that a range of 10 centimetres was not inconsistent with a struggle:

HIS HONOUR: Is there anything about the appearance of the wound which indicates one way or other whether it was in a struggle or not?---No. I can only talk about the distance and in saying that it's of a certain distance it's conceivable that in a confrontation the trigger might have been pulled and the gun is discharged within that confine of a distance as we've said but whether it's accidental or during a struggle, I — you cannot tell pathologically.

b) Evidence of Mr Glaser that, because the cartridge case from the final round fired was not ejected from the pistol, there had to have been something impeding its ejection, which counsel submitted made it more likely that it was discharged unexpectedly.

c) Evidence of Mr Glaser that the fact that three cartridge cases were found in close proximity to each other was not inconsistent with the weapon having been held at different angles at different times, and thus not inconsistent with a struggle:

One analysis, or one view of — well, looking at those spent cartridge cases, in the positions that they were in, that's at least consistent with the weapon being held in different positions, within that area — being held at different orientations within that area, correct?---Yes.
In different angles within that area?---Yes.
Yes. And that would be consistent with a struggle having occurred in that area, correct?---I can't rule that out, no.

d) Evidence of Dr Dodd that there was a horseshoe shaped pattern of blood trickling on the deceased’s right leg, which was consistent with the deceased being initially crouched over, standing up and then lying on his back:

That's consistent, isn’t it doctor, with the leg being in a position which the shin is facing the ground to begin with?---Yes.
Which might be [the] right leg crouched over or at least crouched, that's right?---Yes.
Then the deceased person standing up, moving his leg closer to the up and down position?---Yes, I agree.
Then coming on to his back?---Yes.
So going from a crouching position to standing up and then falling back?---Yes.

e) Evidence of the examining physician, Dr Du Plessis, that the applicant had injuries which were consistent with a struggle.

f) Evidence of Dr Dodd that, although the deceased’s leg wound was not fatal, the possibility could not be excluded that it occurred in the course of a struggle.

We do not consider that any of that evidence provides particularly compelling support for the applicant’s argument. The possibility that some of the wounds might have been inflicted in the course of a struggle does not greatly lessen the probability that others were inflicted by shots fired at a significant distance. Further, although the probability that some of the shots were fired at a significant distance is not proof of guilt beyond reasonable doubt, it does fit with the fact, as the judge observed in his sentencing remarks, that there was strong evidence to support the idea that the applicant was the aggressor who went to the Preston property with the intention of verbally confronting and reproaching the deceased in the strongest terms for his earlier conduct towards the applicant at the Coburg factory.

The fourth consideration on which the applicant relied was that the evidence did not establish beyond reasonable doubt that it was the applicant who took the weapon to the Preston property. Counsel relied on the fact that that the applicant was excluded as a contributor to the DNA found on the weapon and that the deceased’s DNA was found on the barrel, grip and trigger; that Janette Allan did not see the applicant with the weapon in the car on the way to the property; and that neither Kylie Berwick nor her son saw the applicant with the weapon as he approached the front door of the property, or were in a position to make complete observations of the deceased exiting through the front door of the property.

We are not persuaded by that argument. Putting aside for the moment the fresh evidence, we consider that there was a basis on which to conclude beyond reasonable doubt that it was the applicant who took the weapon with him to the Preston property, albeit perhaps without the intention of using it. In his sentencing remarks, the judge expressed that process of reasoning as follows:

There is no direct evidence as to whom the weapon, which was produced in the struggle, belonged. Nor is there any direct evidence as to how it came to be involved in the struggle. I have given careful consideration as to whether I can, for the purposes of sentencing you, form any valid conclusions as to those matters. Having considered, and reviewed, the evidence given at your trial, I am satisfied, beyond reasonable doubt, that it was you who brought the weapon to the Preston premises, when you attended there that evening. I also consider that the jury would have been satisfied beyond reasonable doubt of that fact.
There are a number of individual pieces of evidence which, in combination, in my view, lead to that conclusion. First, there is the angry frame of mind with which you intended to attend the premises. I am not satisfied that you intended, on attending the premises, to inflict violence on Mr Cervi. However, I am satisfied that you anticipated that, in view of your irate frame of mind, a physical altercation might ensue between yourself and Cervi, on your arrival at the Preston premises. It was for that purpose that you had sought the assistance of Tim Bell. In my view, you had asked for his assistance, not in order to inflict violence on Mr Cervi, but, rather, to assist you, should violence erupt between you and Cervi. When Mr Bell declined your request to attend, you would have felt quite vulnerable. You were no physical match for Cervi, who, after his retirement from professional boxing, had kept in top physical condition. He was a large, strong and muscular man. You knew that if violence were to erupt between you and Cervi, he would easily get the better of you.
Secondly, and importantly, after the incident, you handed the weapon to Janette Allan, expressly telling her not to hide it. That conduct by you was, in my view, a strong indication that the weapon was yours, and that you had brought it to the premises. It is unlikely that you would have given the gun to Ms Allan, if the gun was not yours, and if it was not produced by you during your struggle with Mr Cervi.
Thirdly, there is no evidence that Mr Cervi had the weapon upon your arrival at Dalgety Street. At that time, he was in the company of Kylie and Blake Berwick. He was only wearing shorts. Neither of them saw him have the weapon. There was no reason for Mr Cervi to arm himself. Tim Bell had assured him that you were not visiting him with any violent intent. Even if he had wished to physically confront you, Mr Cervi would have well known that he did not need a weapon with which to overcome you. Indeed, it is doubtful that Cervi would have had time to arm himself with a firearm, after receiving Tim Bell’s phone call. Furthermore, if Mr Cervi did have a firearm, it is difficult to understand how you could have wrestled the firearm off him during the struggle, which ensued between you and Cervi, or how, otherwise, the weapon would have been in a position to inflict the two wounds which he received, given Mr Cervi’s significantly superior strength to yours.
Fourthly, shortly after the police arrived at the Dalgety Street premises, you gave brief accounts to Detective Senior Constable Hanna and Sergeant Sheahan, on separate occasions, in which you stated that, in the course of a struggle between yourself and Mr Cervi, the weapon discharged. After you were conveyed to the Preston Police Station, you gave a separate account of the incident to Detective Senior Constable Di Camillo. In that account, you stated, in a little more detail, that Mr Cervi was punching you to the face, that you and he were fighting over a firearm, and that you heard gunshots go off. In none of those three accounts did you say to the police that, either before, or in the course of, the struggle between Mr Cervi and yourself, Cervi produced the weapon. Nor did you give any other account as to how the weapon happened to be produced in the course of the struggle between yourself and Mr Cervi. In light of the other three factors, to which I have just referred, your failure to explain how the weapon was produced, when you had the opportunity to do so, was a further important piece of evidence supporting the conclusion that it was you who produced the weapon either before or in the course of the struggle between yourself and Cervi.

As I stated, all of those facts, taken together, satisfy me, beyond reasonable doubt, that it was you who brought the weapon to the Dalgety Street premises on that night.

Counsel for the applicant submitted that, contrary to the judge’s reasoning, the applicant’s instruction to Janette Allan to put the gun away was logically at least as consistent with the applicant wanting the gun out of the way in face of the arrival of Bassi at the scene as with any acknowledgment of ownership.

That may be so, but it does not contradict the judge’s conclusion that, when each piece of evidence to which his Honour referred was combined, they were capable of sustaining an inference beyond reasonable doubt that it was the applicant who took the weapon to the scene.

The fifth consideration relied upon was that the evidence did not establish that the applicant had his hands on the trigger of the weapon when the fatal shot was fired. Counsel referred again to the absence of evidence of the applicant’s DNA on the weapon and the existence of evidence of the deceased’s DNA on the trigger, grip and barrel, and counsel once more emphasised the proximity of the weapon to the deceased’s abdomen at the point of firing the fatal shot, evidence of Mr Glaser that, although the trigger weight tolerance was within limits, it was so light as to make the weapon almost unserviceable, and the possibility that up to three shots in addition to those which lodged in the deceased were fired. In counsel’s submission, it was highly unlikely that the applicant could have fired and missed three times and then somehow have fatally wounded the deceased by firing a fourth time from very close range.

In our view, that argument takes the matter little further. As we see it, this is a case in which there are possibilities either way, about which reasonable minds could differ, and the conclusions to which one comes will largely depend upon one’s perception of the aggregate effects of the evidence. Of itself, there is nothing which is necessarily inconsistent between the applicant firing three shots at a distance, and missing with each one of them, and then firing for a fourth time at closer range. Indeed, such a possibility appears not unlikely in view of the forensic officer, Mr Wroebel’s, evidence as to the absence of gun shot residue from the deceased’s leg wound and its presence on his abdominal wound. The absence of the applicant’s DNA from the weapon is more compelling. But that too is not conclusive. For it will be remembered that Ms Allan handled the weapon in order to remove it to the front seat of the utility, and yet there was no evidence of her DNA on the weapon either. The presence of the deceased’s DNA on the weapon, especially on the grip and trigger, points more strongly to it having belonged to the deceased; for, on the Crown case, there was no opportunity for the deceased to grip the trigger at any point after the applicant first approached the front door of the Preston property. It is also consistent with the deceased having introduced the weapon and the two men having then struggled over it, in the course of which the deceased was fatally wounded. But that point too is not certain. There are other logical possible explanations which leave open a conclusion of guilt beyond reasonable doubt.

The sixth consideration on which counsel relied was what he said was the inherent unreliability of Kylie Berwick as a witness. We accept that she was unreliable. From our reading of the transcript of Ms Berwick’s evidence, it appears that she was a most partisan witness who repeatedly told lies and exaggerated. Just as importantly, the judge, who had the benefit of seeing and hearing her give evidence, reached exactly the same conclusion. In his sentencing remarks, his Honour said:

I have significant reservations about the aspects of Ms Berwick’s evidence, in which she claimed to have actually seen those two parts of the incident, which occurred between yourself and Mr Cervi. Ms Berwick was clearly very emotionally involved in the evidence which she gave. I understand, and indeed sympathise, that she felt very deeply for Vinicio Cervi. However, those feelings caused her to harbour a bitter hatred towards you, which, I consider, affected her evidence as to what she claimed to have observed take place in the front yard of the premises at Preston. That evidence does not fit with the objective facts. Nor does it fit with her evidence, and the evidence of

her son Blake, that throughout the incident, she remained with Blake, caring for him and reassuring him.
In cross-examination, Ms Berwick was aggressive and uncooperative. She admitted that she had told untruths, and indeed, at some stages, she was cavalier in doing so, seemingly admitting to telling lies when, on a proper analysis, she may not have done so. As a result of those matters, I do not consider that Kylie Berwick was a sufficiently reliable witness, in respect of her evidence as to the two times in which she saw you holding the gun in the front yard.

The seventh consideration was evidence that the deceased consumed methyl amphetamine (speed) on the day he was killed and throughout the weekend which preceded it, and was behaving paranoically in the hours leading up to the killing. It included the testimony of Kylie Berwick (which on this point the applicant was disposed to accept) that the deceased had a problem with drugs; and forensic evidence that his blood was found to contain 0.3 milligrams per litre of methamphetamine, which in a post-mortem setting represented a moderate concentration, and 0.05 milligrams per litre of Alprazolam (sometimes known by the trade name Xanax) which was quite a low concentration. The forensic pharmacologist, Dr Drummer, said that methamphetamine is a powerful stimulant drug which is known to increase aggression, cause paranoia and result in restlessness and agitation. Janette Allan said that the deceased appeared to her to be agitated and possibly affected by drugs. Kylie Berwick deposed that the deceased was pretty angry about the state of the Preston property and ‘really pissed off’ that the applicant had not got his stuff out and that, when he got to the Preston property, he was throwing his own things off the back of the truck onto the ground and smashing them because he was upset. Matthew Campbell, who was one of the prospective purchasers who inspected the Coburg factory premises on the day of the killing, gave evidence of seeing the deceased arrive. He said that the deceased was angry and swearing and throwing things onto his truck and yelling at the applicant that the applicant was ‘going to fuckin’ fix it’. The applicant was trying to calm the deceased down and ‘taking it all in his stride’. Morgan Evans, another of the prospective purchasers, gave evidence to much the same effect. Kylie Berwick said that, after the deceased got back to the Preston property and had spoken to Tim Bell by telephone, he said ‘It’s like they want to fucking gang up on me’. According to Tim Bell’s evidence, there was no basis for the deceased to conclude that anyone was ganging up on him. He told the deceased that there was not going to be any blue: ‘Look mate, don’t worry, just fucking help him move, job’s done’. Bell also said that the deceased sounded wasted as if he were under the influence of something. Contrastingly, according to Janette Allan, the applicant was behaving normally, in a good mood, and not in any way aggressive.

We accept that that evidence suggests that the deceased was more likely than the applicant to be the aggressor. But it was not the only evidence relevant to that question. There was also Kylie Berwick’s testimony that, when the applicant came to the front door, he immediately said to the deceased ‘What is your form cunt?’ which was followed by a fight between them. Blake’s evidence corroborated that. There is, too, the text message which the applicant sent to Tim Bell, in which he stated that he anticipated the possibility of a ‘full on blue with Vinnie and it would be mate me his tonight’ [sic] because ‘there been treating me like a goose’ [sic]; and that he would ‘go them on my own’ [sic].

An eighth consideration was advanced by counsel for the applicant in support of the proposition that the text message to Tim Bell did not reveal an intention to confront the deceased. In counsel’s submission, the expression ‘go them’ was a misspelling of ‘go there’, and he argued that was supported by Tim Bell’s evidence as to the way in which he interpreted the text.

We think that to be unlikely. As we read it, what the applicant was saying in the text was that he anticipated the possibility of a confrontation with the deceased and a would-be mate of the deceased. Hence the following sentence: ‘There [which we take to mean ”they’re”] been treating me like a goose’.

There is also Tim Bell’s evidence that:

I was having a drink, I wasn’t going to help anyone and have a blue with a would-be mate of Vinnie’s, I rang Vinnie: ‘No, there’s no mates here we’re not blueing, everything’s fine,

and his testimony that he ‘reckoned that [the applicant] was going there and they were all going to give him a hiding’; and, to same effect in cross-examination: ‘I figured that [the applicant] was going there to get his shit [meaning his possessions] and there was a going to be a bit of smack-up; they were going to give him a kicking’.

If ‘chop-out’ meant someone to give the applicant a hand with moving his possessions, as Tim Bell at one point suggested it might, it would make no sense for the applicant to be saying in the same breath that he would ‘go there’ alone. On the other hand, if a ‘chop-out’ meant a backup, as the last mentioned evidence suggests was the way in which Tim Bell truly interpreted it, it would fit with the applicant’s statement that he would ‘go them’ alone.

At all events, we think that the way in which a jury would be likely to interpret the text is that the applicant’s intention in going to the Preston property was to ‘go them’, meaning to have a confrontation with the deceased and the ‘would-be mate’ of the deceased, who the applicant believed would be present; and that, in seeking a ‘chop out, you’ the applicant was asking Tim Bell to go with him to the Preston property as a back-up. As the judge put it, the applicant at least anticipated that a physical altercation might occur and it was for that purpose that he sought Tim Bell’s assistance.

Counsel for the applicant argued as his ninth consideration that there was no motive for the applicant to wish to confront the deceased or harm him in any way. We do not accept that submission. There is evidence that the applicant was angry about the condition in which the deceased left the Coburg factory premises. Tim Bell said this about it:

In relation to when he was speaking about the state of the factory, not to put too fine a point on it, but it seemed to you that he was having a whinge about the state of the factory?---He was pissed off. He'd looked after Vinnie's house; he'd painted it, kept it clean, renovated the joint and made it nice. His factory was nice; he's a bit of clean freak, everything should be kept tidy. It wasn't respected and the joint was a mess.
So he was whinging about the state of it; that's right?---Basically, yeah.

There was also evidence that the applicant was offended by the manner in which the deceased behaved in front of the would-be purchasers at the factory premises. Janette Allan said this about it:

So when Mr Cervi came back to the factory, did he say something about the trailer being damaged did he?---Yes he did.
What can you remember was actually said by him and then by the accused in reply, if anything?---He had said to, "What the eff had happened to the trailer."
That's all right, whatever language he used, you can say that in court?---"I don't" — OK, yeah. "What the fuck had happened to the trailer."
Who did he say that to?---He had just said it out aloud.
When he said that, where was he, was he inside or outside?---He was outside on the concrete area, in the driveway.
Was there anyone else outside at that time?---The other people were in the — actually inside the, inside the actual factory.
So what about the accused?---And he was halfway – he may have been next to the – the real estate people and then after the incident he walked down towards me. And that's when David said to me, ‘Can you believe the immaturity of what – of his attitude?’
I'll have to ask you to repeat that last bit. You said after the incident he walked down towards you; is that right? ---M'mm.
Then what did he say?---He just said, ‘Can you believe the immaturity?’ Something in the reference about the immaturity of Vinnie and his — in his response because he knew that we had people in the premises and were trying to sell it.

Perhaps most importantly, there was the text message to Tim Bell in which the applicant complained that ‘they’, meaning the deceased and his ‘would-be mate’, had been treating him like a goose and that he was going to ‘go them’ that night in a ‘full on blue’.

In summary, we consider that there was adequate evidence from which to infer a motive of wishing to get even for the wrongs which the applicant perceived the deceased to have done him. In any event, however, the existence of motive is not

an essential link in the chain of reasoning to guilt,[2] and it is only essential links, as well of course as the ultimate inference of guilt, of which a jury must be satisfied beyond reasonable doubt.[3]
[2]De Gruchy v The Queen (2002) 211 CLR 85, 93 [29]–[31](Gaudron, McHugh and Hayne JJ); R v Cavkic (2005) 155 A Crim R 275, 289 [2].
[3]Shepherd v The Queen (1990) 170 CLR 573, 585 (Dawson J).

Finally, counsel for the applicant advanced as his tenth consideration a submission that the jury could not have been confident that the deceased confronted Bassi when he arrived at the Preston property shortly after the shooting and said: ‘You’re gonna get it next’. Counsel relied on the fact that Janette Allan did not hear those words spoken; no such words could be heard on the 000 tape recording, even though much else being said could be heard, including the applicant’s instruction to Janette Allan to put the gun away; and Bassi’s partner Anna Anagnostopoulos, who was standing with Bassi, said at the committal hearing and again at the trial that she could not recall hearing those words.

We accept that submission up to a point. In our view, it was not open to the jury to be satisfied beyond reasonable doubt that the applicant spoke those words to Bassi. But we do not accept the submission advanced by counsel for the applicant that the alleged threat to Bassi was an essential link in the chain of reasoning to guilt, or that the Crown’s failure to establish the threat beyond reasonable doubt otherwise means that the verdict must be regarded as unsafe and unsatisfactory. Indeed, even if that evidence had been disregarded altogether, we consider that there would have remained a substantial circumstantial case that it was the applicant who fired the fatal shot with intent to kill or inflict really serious injury.

The criteria of an unsafe and unsatisfactory verdict are defined by the majority’s judgment in M v The Queen,[4] as follows:

If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence.[5] In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.[6] Although the propositions stated in the four preceding sentences have been variously expressed in judgments of members of the Court in previous cases, we have put aside those differences in expression in order to provide authoritative guidance to courts of criminal appeal by stating the propositions in the form in which they are set out above.

[4](1994) 181 CLR 487, 494–495 (Mason CJ, Deane, Dawson and Toohey JJ).

[5]Chamberlain v The Queen (No 2) (1984) 153 CLR 521, 618–619; Chidiac v The Queen (1991) 171 CLR 432, 443–444.

[6]Chidiac v The Queen (1991) 171 CLR 432, 443, 451, 458, 461–462.

More recently, in Klamo v R,[7] Maxwell P essayed the test this way:
[7](2008) 18 VR 644.

The approach required of appellate courts in considering the ‘unsafe and unsatisfactory’ ground involves the following steps:
1.   The court of criminal appeal must ask itself whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.
2.   In considering that question, the appeal court must bear in mind that the jury has the primary responsibility of determining guilt or innocence and has had the benefit of seeing and hearing the witnesses.
3.   In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced.
4.   It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred.
A guilty verdict can only be said to have been ‘reasonably open’ to the jury if there was no aspect of the evidence which obliged — as distinct from entitled — the jury to come to a different conclusion. In Libke v R, Hayne J (with whom Gleeson CJ and Heydon J agreed) said in relation to the ‘unsafe and unsatisfactory’ ground:
... But the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant’s guilt. It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard.

In other words, the question posed in M v R, namely:
Was it reasonably open to the jury to be satisfied beyond reasonable doubt of the accused’s guilt? requires the court of criminal appeal to decide:
... whether the state of the evidence was such as to preclude a jury acting reasonably from being satisfied of guilt to the requisite standard.

To adopt some helpful metaphors from recent interstate appellate decisions, the question is whether there was a ‘solid obstacle to reaching a conclusion beyond reasonable doubt’ or whether, instead, the ‘path to a conviction was open’.[8]

[8]Ibid 653–4, [38]–[40] (citations omitted); see also Baker v R [2010] VSCA 226, [40]–[44] (Maxwell P).

Despite the ten considerations identified by counsel, we are not persuaded that there is a solid obstacle in the way of concluding beyond reasonable doubt that the applicant is guilty of murder. For the reasons given in relation to each of the ten considerations, we are not convinced that any of them individually or collectively necessitates the conclusion that guilt beyond reasonable doubt is not established.

Ground 2: The admission of Paul Bassi’s statement

Prior to the empanelment of the jury, the judge ruled that a passage of the witness statement of Paul Bassi, deceased, was admissible under s 65(2)(b) of the Evidence Act 2008.[9] It included Bassi’s allegation that the applicant threatened him shortly after the shooting by saying to Bassi that he [Bassi] would ‘get it next’.
[9]R v Curran (Ruling No 1) [2011] VSC 279, [6].

Counsel for the applicant submitted that the judge erred in ruling that the statement was made ‘in circumstances that made it unlikely that the representation was a fabrication’, by failing to take into account ‘circumstances’ wider than those immediately surrounding the making of the statement. In particular, counsel submitted, the judge erred by failing to take into account or give sufficient weight to the evidence that:

a) Janette Allan said that she did not hear those words spoken;

b) The tape recording of the 000 call did not contain those words although it did pick up many other words spoken between the applicant and Bassi.

c) Although Anna Anagnostopoulos stated in her statement to police that she had heard a man at the scene say words to the effect of ‘you will get it next’ she did not remember hearing those words when she was examined at the committal hearing and trial.

Counsel for the applicant argued further that, inasmuch as the statement was directly inconsistent with the other available evidence, it could not be said that the representation was made in circumstances that there was ‘unlikely to be a fabrication’ within the meaning of s 65(2)(b). It was also to be borne in mind that Paul Bassi was a very good friend of the deceased, and appeared to have actively involved himself in getting the applicant out of the Preston property.

We do not find those submissions to be persuasive. In his ruling, the judge referred to each of the considerations mentioned and explained why, despite them, the statement was unlikely to be a fabrication. Relevantly, his Honour said this:

In considering that question, the consistency or inconsistency of the representation with other parts of the Crown case is relevant, but it is just one factor. See Williams v R,[10] but compare R v Ambrosoli.[11]
Each case necessarily depends on its own circumstances. In determining that question, the court is entitled to take into account, if it be the case, that the relevant representation was contained in a statement made to the police on a serious occasion, in circumstances in which the witness had signed the usual acknowledgement as to its truth and accuracy.[12]
On the other hand, it is also relevant for the court to consider whether the representor, at the time at which he made the statement, might have felt any need to state the facts in a particular manner, which might avoid or diminish any culpability for the described incident as attaching to him. Thus in Williams v R, the statement by the witness Stewart was held to held to be inadmissible because, on the facts of that case, Stewart himself might have been implicated in the offence, at least by being an accessory after the fact to it.
[10][2000] FCA 1868, [54].
[11][2002] NSWCCA 386, [28]–[29].
[12]Harris v R [2005] NSWCCA 432, [44]–[45].
…

Having considered the matters argued by counsel,[13] I am persuaded that the representation, contained in Mr Bassi’s statement, that is, that the accused man made the threat to him that he would be next, was made in circumstances, which make it unlikely that the representation was a fabrication. I have reached that conclusion for four principal reasons.
First, the statement was made by Mr Bassi on the same evening as the events described by him, at what would seem to be the earliest practicable opportunity for him to do so. The statement was made shortly after the occurrence of a serious incident, and in circumstances in which Mr Bassi would have realised the importance of what he was doing.
According to Mr Radi’s statement, Mr Bassi read the statement over and initialled each page of it. Mr Radi explained the acknowledgement which Mr Bassi then read and signed in his presence. That acknowledgement is in the usual form, namely ‘I hereby acknowledge that this statement is true and correct and I make it in the belief that a person making a false statement in the circumstances is liable to the penalties of perjury’.
Secondly, at the same time, Mr Bassi’s partner, Ms Anagnostopoulos, made her statement to a different police officer at Preston which she signed and acknowledged at 12.36 am. In that statement, she gave a similar description of the threat made by the accused man to Mr Bassi. She apparently did not know the accused man, but said that the man (who appears was the accused) said: ‘Go or you’re next’. There is nothing in the depositions, which suggests that there had been any collaboration between Ms Anagnostopoulos and Mr Bassi before Ms Anagnostopoulos made her statement. The fact that Ms Anagnostopoulos did not remember that aspect of her evidence, in cross-examination at the committal, may effect the jury’s ultimate assessment of her reliability as a witness, in relation to that aspect of her evidence. However, it does not, in my view, affect the probabilities of whether the statement by Mr Bassi, namely, that the accused man had threatened in the manner described, was a fabrication.
The third relevant matter is that it is clear, on the evidence, that when Mr Bassi arrived at the premises at Dalgety St, the accused man was in a particularly irate frame of mind. In particular, he was very angry with Mr Bassi, who he considered in some way to have been responsible for the fact that Mr Cervi had been shot. On the triple 000 call, he can be heard directing his anger at Mr Bassi in aggressive terms. After saying to Mr Bassi that he had started it, which Mr Bassi denied, the accused man is heard to say angrily: ‘Fucking grab that and I’ll finish it now’. Those circumstances, in my view, add to the improbability of the relevant part of Mr Bassi’s statement, with which I am concerned, being a fabrication.
In this connection I do not consider it to be particularly significant that the recording of the triple 000 call does not include the making of the threat by the accused man to Mr Bassi that he would be next. The recording is of a conversation between the emergency services operator and Ms Allan. It does pick up parts of what the accused man and Mr Bassi said. However, some parts of the conversation are quite faint. In those circumstances, it is quite possible that the recording of the triple 000 call would not contain the whole of the confrontation between the accused man and Ms Bassi.
The fourth matter, which supports the admissibility of the representation under s 65(2)(b), is that shortly after the threat was made, Mr Bassi and Ms Anagnostopoulos departed from the Dalgety St premises. Mr Bassi had specifically driven to those premises at Dalgety St at the request of Kylie Berwick. When he left, he had not seen Ms Berwick. He had not been allowed in the yard of the property. He had previously been told that Mr Cervi, who was a long standing friend of his, had been shot. In those circumstances, it is likely that Mr Bassi only left at that stage for a good reason, which outweighed his intention to stay and render assistance to Ms Berwick and Mr Cervi. That consideration adds to the probability that he left, because of a pressing concern for his safety and his family’s safety.
In those circumstances, I am satisfied that the representation, referred to by Mr Bassi, that is, that the accused man made a threat to him that he would be next, was made in circumstances which make it unlikely that the representation was a fabrication. Accordingly, and subject to the application of s 137, I am satisfied that the representation would be admissible under s 65(2)(b) of the Act.

[13]In effect, the same matters as have been argued here in support of Ground 2.

With respect, we agree with his Honour. For all the reasons mentioned, we think that, as the evidence stands, the statement was unlikely to be a fabrication.

Counsel for the applicant submitted that, even if that be so, the prejudice to the applicant of not being able to cross-examine Bassi on it was so great as to outweigh the probative value of the evidence. We do not accept that submission.

In his ruling, the judge dealt with the question as follows:

The question, then, is whether the probative value of the evidence is outweighed by the danger of any unfair prejudice to the accused. The fact that the evidence is of probative value against an accused person does not, of course, mean that it has unfairly prejudicial effect in the case. Section 137 is concerned with unfair prejudice, such as might occur where there is a risk of evidence being misused by a jury in an in impermissible manner.
…
Of greater concern to me is the fact that, if I were to admit the evidence, it would not be able to be tested and challenged in cross-examination by Mr Casement. Although there is some conflict in the authorities on this point, it does appear that the preponderance of the cases do support the proposition that unfair prejudice, referred to in s 137, may include or consist of an unfair forensic disadvantage to an accused in defending a charge against him. See Kennedy v Wallace;[14] R v Suteski;[15] R v Le;[16] and Galvin v R.[17]
[14](2004) 208 ALR 424, 455–457, [122]–[128] (Gyles J).
[15](2002) 56 NSWLR 185, 201, [126] (Wood CJ at CL).
[16](2002) 130 A Crim R 256, 288–289, [93]–[96] (Sheller JA).
[17] (2006) 161 A Crim R 449, 459 [40] (Howie J).

The fact that the defence is unable to cross-examine Mr Bassi, whose statement is to be tendered, is, I consider, a matter of some unfair prejudice to the accused. Cross-examination is an important tool in the hands of counsel for the defence, and its importance should not be understated. It is, essentially, an element of an accused person’s right to be heard.
The critical test is whether the probative value of the evidence in this case outweighs the unfair prejudice arising to the accused as a result of his inability to have his counsel test it by cross-examination.
As I have already stated, I consider that the part of the evidence of Mr Bassi, in which he relates the threat made to him by the accused, has reasonably substantial probative value in respect of the prosecution case against the accused. If I admitted that part, or indeed, any part of the statement by Mr Bassi, I would direct the jury, pursuant to s 165 of the Act, that they must exercise caution in the use of that evidence for a number of reasons, including that it was not on oath; the jury did not have the opportunity to hear Mr Bassi relate the evidence first hand to them; they did not have the opportunity to observe his demeanour in giving that evidence, and most importantly, they did not have the advantage of seeing and hearing the evidence tested by cross-examination.
I accept that those directions would not entirely eliminate all the disadvantage to the accused in not being able to the test the evidence by cross-examination. However, in my view, such a direction would to a significant extent, reduce that disadvantage. The direction would as I have noted, in plain terms, require the jury to exercise particular caution concerning accepting the truth and accuracy of the statement. It would specify to the jury the particular reasons why the statement may be unreliable.
The experience of the law, and of this court, is that juries are particularly astute to follow directions of the type which I have adumbrated, and that they do have an appropriate appreciation of the type of reasons why such directions are given to them. Furthermore, as I have already noted, in this case the evidence will be read to the jury, and not tendered to them in a written statement, and thus it will not assume undue prominence in the trial.
In those circumstances I do not consider that the probative value of the evidence in the statement of Mr Bassi, of the threat made to him by the accused, is outweighed by the danger of any unfair prejudice to the accused. Rather, I am of the opinion that the probative value of the evidence substantially outweighs any danger of any unfair prejudice to the accused arising out of the fact that the accused’s counsel cannot cross-examine Mr Bassi.

We agree with the judge. Allowing that relevant prejudice may inhere in the inability of an accused to cross-examine the maker of a statement tendered against him under s 65(2)(b), appropriate directions to the jury will ordinarily overcome the problem to the extent that the statement should be admitted.

Counsel for the applicant made much of the fact, as the judge recognised, that directions will not necessarily overcome all of the prejudice to an accused of not being able to cross-examine the maker of a statement admitted under s 65(2)(b. But that will almost invariably be the case with a statement admitted under s 65(2)(b), just as it sometimes was with statements admitted under the former s 55AB of the Evidence Act 1958 (when an earlier opportunity to cross-examine the maker of the statement had not been availed of).[18] It does not mean that the statement should be excluded. So long as it is perceived that the effect of directions on the jury will sufficiently reduce prejudice to the point where it is outweighed by the probative value of the evidence, the statement ought not be excluded under s 137.
[18]See and compare Sonnet v R (2010) 30 VR 519, 533 [52].

Counsel for the applicant submitted but did not develop a further argument that the judge erred in admitting Bassi’s statement because, at the point of the trial at which his Honour ruled it to be admissible, he did not know sufficient of other evidence which would later emerge in the trial to be able to say that the probative value of the statement would outweigh the prejudice.

The difficulty with that argument, however, is that counsel was unable to identify any other evidence which later emerged in the trial which relevantly changed the position from where the judge had understood it to be at the time of his ruling. Just as importantly, no application was ever made to the judge on the basis of any subsequently emerging evidence for his Honour to reverse his ruling or to discharge the jury in light of that further evidence.

Finally, on this aspect of the matter, counsel for the applicant submitted that, in light of the evidence which under Ground 3 he contended should be admitted as fresh evidence, it can be seen that there is a real probability that Bassi’s statement was deliberately false and made in order falsely to shift blame from himself for his act in having given a gun to the deceased prior to the killing.

For reasons, which follow, we are disposed to set aside the applicant’s conviction and order a new trial at which the fresh evidence may be given. It will then be a matter for the trial judge to determine, in light of the evidence to be adduced at the new trial, whether such doubt is cast on Bassi’s statement that it should be excluded. Without wishing to pre-empt that decision in any way, however, we should say that, as at present advised, we are not persuaded that the fresh evidence would have that effect.

Ground 3: Fresh evidence

Going then finally to the proposed new ground of appeal, the evidence which is said to be fresh evidence consists of an affidavit sworn by Paul Bergman on 20 October 2011. In it, he deposes that he knew the deceased for over 20 years and knew Paul Bassi so closely since they were children as in effect to regard him as a brother. He states that he was with Paul Bassi and the deceased at Cramers Hotel in Preston shortly before the deceased’s death and on that occasion they both spoke to him of how they wished to get the applicant out of the deceased’s house. Bassi said he would live there with the deceased and help him pay the bills. The deceased said he was living in the applicant’s factory and wanted to move back into the house, but that the applicant was a friend and that he had agreed with the applicant that he could stay there. It seemed to Bergman that the deceased was in two minds about moving back into the house. Bassi said, however:

[F]uck him [the applicant], why should he live there, I will help you pay the bills, and I will help you get him out of the house.

Mr Bergman further deposes that the deceased asked him what he should do and that Bergman replied that, if the deceased had an agreement with the applicant, he should just talk to the applicant and see how they could come to an arrangement. He told the deceased that it was not fair to go and tell someone to get out of the house if there is an agreement in place, and that shifting house takes time.

Mr Bergman says that the conversation was continued later that evening at Sylvesters Pizza. Bassi was forcing the issue and said words to the effect that he would get the applicant out, just leave it to me. He was set on getting the deceased into his house as soon as possible because he wanted to live there too. At that time, Bassi’s own house, which was being renovated, had no floorboards or plaster and was not fit to live in. Bassi said to Mr Bergman that he would smash the tenant at the deceased’s house if he had to.

Mr Bergman also says that, after the deceased’s death, he caught up again with Bassi and it appeared to Bergman that Bassi was very affected by the deceased’s death. Bergman disposes that Bassi told him that he was feeling guilty because he had given the deceased a gun to protect himself while moving his belongings into the house. Bassi also stated that he had been worried because the applicant had a lot of friends and that he had wanted the deceased to be safe.

Finally, Mr Bergman records in his affidavit that, after the deceased’s death, Bassi’s behaviour was changing. He was taking drugs and gambling a lot and his mind seemed to be everywhere. He told Mr Bergman numerous times that he was feeling guilty about the deceased’s death and that some people were blaming him for it. He also said that he had a gun and would use it if anyone came to hurt him. Not long later he hanged himself.

The principles which govern the admissibility of fresh evidence were restated by Winneke P in R v AHK,[19] and have since been applied in a number of decisions of this court.[20] As Winneke P said:[21]

The fundamental question for the Court, in each such case, is whether it perceives that a miscarriage of justice has occurred.[22] In answering this question authorities binding on this Court have laid down three general considerations which should guide the Court in coming to its conclusion. The first of these, although it is not an inflexible rule, is that the conviction will not usually be set aside if the evidence relied on could, with reasonable diligence, have been produced by the accused at his trial. The second and third considerations, which are inter-related, are that the ‘fresh evidence’ is apparently credible or plausible or, at least, capable of belief and, in the view of the Court, is sufficiently relevant and cogent in the sense that, if considered in combination with the evidence already given at the trial, the Court considers that there is ‘a significant possibility that the jury, acting reasonably, would have acquitted the applicant of the charge if the new evidence had been before it in the trial’.[23] It is in respect of these last considerations that there has been, over the years, some difference of judicial opinion although it was the test adopted by this Court (albeit with a qualification) in R v Nguyen & Tran.[24] However, at the end of the day, it should not be forgotten that the expressions of judicial opinion to which I have referred are practical guidelines which do not detract from the force of the fundamental principle that an appellate court must allow an appeal if a miscarriage of justice is shown to have occurred. An appellate court will always receive ‘fresh evidence’ if it can be clearly shown that the failure to receive it might have the result that an unjust conviction is permitted to stand.[25]

[19][2001] VSCA 220, [9].

[20]See, for example, R v Kucma (2005) 11 VR 472; R v DD [2005] VSCA 308.

[21][2001] VSCA 220, [8].

[22]Cf Gallagher v The Queen (1986) 160 CLR 392, 395 (Gibbs CJ).

[23]Ibid 402 (Mason and Deane JJ).

[24][1998] 4 VR 394, 400–401 (Kenny JA).

[25]See R v McIntee (1985) 38 SASR 432, 435 (King CJ).

More recently, in Coleman v R[26] Buchanan JA explained the requirement that there be a significant possibility that the evidence if available at trial would have resulted in an acquittal, as follows:
[26][2011] VSCA 301, [23]–[24].

The question then becomes whether the evidence was sufficiently relevant and cogent in that, if considered in combination with the evidence already given at the trial, there is ‘a significant possibility that the jury, acting reasonably, would have acquitted the applicant of the charge if the new evidence had been before it in the trial’ to use the words of Winneke P in R v AHK.[27] His Honour continued:
[27][2001] VSCA 220, [8] (Winneke P). See also Gallagher v R (1986) 160 CLR 392, 402 (Mason and Deane JJ); R v DD [2005] VSCA 308; Mickelberg v R (1989) 167 CLR 259, 273 (Mason CJ).
An appellate court will always receive ‘fresh evidence’ if it can be clearly shown that the failure to receive it might have the result that an unjust conviction is permitted to stand.

In Craig v R Rich and Dixon JJ stated the test in these terms:
It cannot be said that a miscarriage of justice occurred unless the fresh evidence has cogency and plausibility as well as relevance. The fresh evidence must, we think, be of such a character that, if considered in combination with the evidence already given upon the trial, the result ought in minds of reasonable men to be affected. Such evidence should be calculated at least to remove the certainty of the prisoner’s guilt which the former evidence produced. But in judging of the weight of the fresh testimony the probative force and the nature of the evidence already adduced at the trial must be a matter of great importance.[28]
[28](1933) 49 CLR 429, 439.

The test may be expressed in terms of significant possibility or likelihood. In Mickelberg v R[29] Toohey and Gaudron JJ said:
In essence, the fresh evidence must be such that, when viewed in combination with the evidence given at trial, it can be said that the jury would have been likely to entertain a reasonable doubt about the guilt of the accused if all the evidence had been before it or, if there be a practical difference, that there is ‘a significant possibility that the jury, acting reasonably, would have acquitted [the accused].’[30]

Likelihood here means a substantial chance, one that is real and not remote.[31]
This court must consider all the new evidence itself, ‘forming and acting upon its own belief in, or disbelief of, the evidence, and upon its own view of the facts of the case including the evidence at the trial …’.[32]

[29](1989) 167 CLR 259.

[30]Ibid 301.

[31]Boughey v The Queen (1986) 161 CLR 10, 21 (Mason, Wilson and Deane JJ). See R v Nguyen and Tran (1998) 4 VR 394, 401 (Kenny JA).

[32]Ratten v R (1974) 131 CLR 510, 518 (Barwick CJ).

To that needs be added the requirement, stated by Barwick CJ in Lawless v The Queen[33] that, in deciding whether evidence satisfies those criteria, the court should hear the evidence itself and have it tested by cross-examination:

in the case of an application for a new trial on the ground of the discovery of fresh evidence, the court should satisfy itself that the fresh evidence was likely to be believed by the jury and was likely, having regard to the other available evidence, to produce a different result from that which followed the former trial. This means, in my opinion, that, in general, the Court of Criminal Appeal should itself hear the fresh evidence and have it tested before it …

[33](1979) 142 CLR 659, 665.

Consistently with those requirements, Mr Bergman was cross-examined on his affidavit by senior counsel for the Crown. Counsel tested Mr Bergman at length as to whether Mr Bergman had always understood the significance of what he said Bassi told him about giving the deceased a gun to protect himself and, if so, why Mr Bergman had not gone to the police immediately or at least once he appreciated that the applicant was on trial for murder and was later convicted and sentenced to imprisonment. Mr Bergman said that he had been in fear, that not all police were trustworthy, that he had his own life to get on with and that he had not wanted to get involved. Counsel put to Mr Bergman that he had nothing to fear in going to the applicant’s solicitors, and Mr Bergman agreed with that; but, as he pointed out, at the time he did not know the applicant or anything of his solicitors.

Counsel also questioned Mr Bergman extensively as to what it was which had ‘finally pricked his conscience’ to speak up about what he said Bassi told him about giving a gun to the deceased and counsel put to Mr Bergman, in effect, that he had only spoken up after he had discussed the matter with the applicant in gaol. Mr Bergman agreed that he had only spoken up after seeing the applicant in gaol but said in substance that it was not so much the result of speaking to the applicant as being conscious of him in close proximity and, therefore, as someone who was affected by what had occurred.

Counsel then put a number of questions to Mr Bergman to the effect that he had set out in his affidavit gratuitously to besmirch Bassi, to which Mr Bergman responded that all he had done was write down events as he recalled them and that, so far from seeking to besmirch Bassi, he had significantly ‘toned down’ what he could have said which was unfavourable to Bassi, his way of life and his involvement with drugs. Pressed as to why he had mentioned Bassi’s involvement with drugs, Mr Bergman responded that he had done so because he believed that, if Bassi and the deceased had not been on drugs, the shooting may never have occurred.

Counsel also put to Mr Bergman that he had fabricated his evidence as to what happened in the lead-up to the deceased’s death and as to what Bassi told him about giving a gun to the deceased. Mr Bergman denied that. He swore that his evidence was true; that he had nothing to gain from coming forward; and that he had only come forward after consulting his parish priest as to whether it was the right thing to do.

Finally, counsel put to Mr Bergman, and Mr Bergman accepted, that he had a number of prior convictions, including convictions in the Magistrates’ Court at Preston on 8 May 1990 for attempted burglary, and going to equipped to steal; convictions in the Magistrates’ Court at Preston on 25 August 1992 for possession of stolen property or property suspected of having been stolen; findings of guilt in the Magistrates’ Court at Melbourne on 28 October 2004 of criminal damage and recklessly or intentionally causing injury, for which no convictions were entered but for which his release from custody was conditioned on a 12 month community based order; and convictions in the County Court at Melbourne in April 2006, for false imprisonment, indecent act, threat to kill and criminal damage, for which he was sentenced to a total effective sentence of 26 months’ imprisonment with a non-parole period of 18 months.

There is no dispute that Mr Bergman’s evidence could not with reasonable diligence have been produced by the applicant at trial. As Barwick CJ said in Ratten v The Queen,[34] great latitude must be extended to an accused in determining what evidence by reasonable diligence in his own interest he could have had available at his trial, and it will probably be only in an exceptional case that evidence that was not actually available to him will be denied the quality of fresh evidence. Here, there can be no issue that the evidence of Mr Bergman could not have been discovered with reasonable diligence because he had no way of knowing that Bassi made disclosures to Mr Bergman of the kind of which Mr Bergman has now given evidence.
[34](1974) 131 CLR 510, 517.

Counsel for the Crown submitted, however, that, in light of Mr Bergman’s cross-examination, he ought be viewed as an unsatisfactory witness of bad character whose testimony should be rejected. In particular, counsel said, quite apart from Mr Bergman’s antecedents, he was unable to give a satisfactory explanation as to why (if he had come forward as a matter of conscience, as he claimed) he had not come forward before he met the applicant in gaol; that it was evident that he had only come forward after speaking to the applicant in gaol; and that he was unable to say why he chose to put in his affidavit the matters which he included as to Bassis’ bad character and misconduct prior to his death.

Further, in counsel’s submission, the account of events offered by Mr Bergman is inherently improbable, given that there is no other evidence of animosity between the deceased and the applicant of a scale likely to have led Bassi to suppose that the deceased required a weapon to protect himself from the applicant; especially given that the deceased was a former professional boxer and physically a much larger man than the applicant; there was no opportunity for the deceased to have armed himself with the weapon in the short period of time between his telephone call with Bell and the applicant’s arrival at the deceased’s home; neither Ms Berwick nor the deceased’s son had seen the deceased with a weapon as he went to the front door to respond to the applicant’s arrival; the deceased was clothed only in a pair of ‘cargo-pants’ shorts in which it would not have been possible or at least practicable to conceal the weapon (a relatively large automatic pistol of some 24 centimetres in length); and logically it was improbable that Bassi would have confided in Mr Bergman that Bassi had given the deceased a weapon when, on Mr Bergman’s version of events, many people were by then loudly blaming Bassi for the deceased’s death and threatening recriminations.

Evidently, there is some force in the Crown’s submissions. There are aspects of Mr Bergman’s evidence which are problematic and his antecedents throw doubt on his credit. There is also the question of how likely it is that what he says about events is true, in face of the inconsistent objective and other apparently reliable evidence about the events in issue. On the other hand, having watched and heard Mr Bergman cross-examined at some length, it strikes us that his evidence in cross-examination was so remarkably consistent with his affidavit as to point against it being a fabrication or confabulation, even allowing for the possibility that he may have memorised the affidavit; his explanation as to why he included references to Bassis’s involvement with drugs and Bassi’s errant behaviour in the lead-up to the deceased’s death did not appear to us to be illogical when viewed from Mr Bergman’s perspective; and his antecedents, although of course significant, are not such as to imply that he is an inveterate liar or even likely to subject himself to the risk of prosecution for perjury. We also think it to be significant that the Crown did not put to Mr Bergman, and did not suggest in submissions, that he had any ulterior motive for coming forward and giving evidence, such as money or advancement or other favourable treatment, and there was no suggestion in cross-examination that he had not consulted with his priest, as he said he did, as to the propriety of his proposed course of action before coming forward.

All things considered, we have concluded that Mr Bergman’s evidence is apparently credible or plausible or at least capable of belief.

Counsel for the Crown submitted that, even if that be so, it is impossible to regard Mr Bergman’s evidence as sufficiently relevant and cogent in the sense that, if considered with the evidence already given at the trial, there is a significant possibility that the jury acting reasonably would have acquitted the applicant. Counsel stressed, among other features of the case, the improbability that the deceased would have felt sufficiently threatened by the applicant to arm himself in anticipation of the applicant coming after him; what counsel described as the absence of evidence that the deceased was angry or violent or aggressive at the time of the applicant’s arrival at his home; the lack of evidence of the deceased having the weapon in his possession; the evidence to which we have already referred, that the applicant went to the deceased’s home with confrontational intent to ‘do them’; and forensic evidence as to the range and trajectory of a bullet fired from the gun into the deceased’s leg, which it was said was utterly inconsistent with a struggle in which the weapon went off.

We do not accept that submission. Mr Bergman’s evidence goes to a matter which was central to the Crown case of whether the applicant took the weapon with him to the Preston house or whether the deceased produced it. We have already explained the central significance of the issue. Certainly, the Crown relied upon a concatenation of circumstantial evidence of the kind which counsel identified in his submissions, and it may be that, notwithstanding the fresh evidence, a jury might still be satisfied beyond reasonable doubt of the applicant’s guilt. But some of the circumstances on which the Crown relied would be capable of assuming a very different significance if the fresh evidence were accepted; and not least amongst those would be the range and trajectory of the bullet which entered the deceased’s leg.

Put aside the fresh evidence, and thus in the absence of any evidence that the deceased had a gun with him when the applicant arrived, it is not at all improbable that a jury would approach its consideration of the range and trajectory of the bullet with the preconception that it was likely to have come from a gun which the applicant took with him to the crime scene with the intent to use it if needs be. Contrastingly, if there is evidence that the deceased had a gun with him when the applicant arrived, there is a real possibility that the jury would approach the evidence as to range and trajectory with at least a willingness to accept that the bullet came from a gun which the deceased produced. And that difference assumes even greater significance once it is coupled with evidence given by Dr Dodd in re-examination by the prosecutor as to how the angle and trajectory of the bullet could be explained consistently with the weapon having discharged in the course of a fight:

If, for instance, there was some fighting going on and then the victim fell backwards for a moment and the gun was discharged I think that’s very likely because that would explain the trajectory quite adequately and alternatively if the victim’s knee was drawn up towards his chest perhaps, that may facilitate that trajectory being explained because the distance is a little bit shorter now rather than – when the leg is being extended.

A further significant aspect of the evidence of which the jury’s approach might substantially be affected by Mr Bergman’s testimony is the evidence of the deceased’s DNA being found on the grip, trigger and magazine of the gun. Absent Mr Bergman’s testimony, the jury might readily enough accept that the applicant brought the gun with him to the crime scene and that the deceased’s DNA got onto it in the course of a struggle after the applicant produced it. That changes, however, once Mr Bergmans’ evidence is introduced, because then Mr Bergman’s testimony and the DNA evidence become mutually corroborative of the possibility that the weapon was given to the deceased by Bassi and produced by the deceased when the applicant arrived at the scene.

Yet another important aspect of the evidence of which the jury’s perception would likely be affected by Mr Bergman’s testimony is the content of the applicant’s text message to Bell. As we have explained, as it stands it implies that the applicant went to the deceased’s home with confrontational intent. Absent Mr Bergman’s testimony, the jury might readily enough conclude that the confrontational intent went as far as carrying a gun to be used if needs be. Introduce Mr Bergman’s testimony, however, and the perception may well change to one of confrontational intent limited to a punch-up to which the deceased’s response was to introduce the gun given to him by Bassi.

Examples can be multiplied. The short point is, however, that the question of who took the gun to the scene was logically a critical issue in the case, as indeed it was opened for the Crown and argued in final addresses to the jury, and Mr Bergman’s testimony is capable of bearing significantly on the conclusion to which the jury comes on that issue. If the jury were to accept Mr Bergman’s evidence, as we consider it might do, the jury might then well conclude that the deceased produced the weapon or at least that there is a reasonable possibility that he did and, therefore, a reasonable possibility that the deceased died as a result of accident in the course of the struggle. Either way, the jury would be bound to acquit, as they were correctly instructed by the judge; and, in our view, that is enough to require that the conviction be quashed and that there be a new trial.

Conclusion and orders

In the result, we shall grant leave to add the proposed new ground of appeal, grant leave to appeal, and treat the appeal as instituted and heard instanter and allowed. We shall order that the conviction be quashed and that a new trial be held.

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[2012] VSCA 244

3 October 2012