Harika v The King

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2022 0139

PHILLIP ANTHONY HARIKA	Applicant
v
THE KING	Respondent

S EAPCR 2022 0178
PETER JOHN HAMANN	Applicant
v
THE KING	Respondent

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JUDGES:	PRIEST, MACAULAY and TAYLOR JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	2 November 2023
DATE OF JUDGMENT:	14 December 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 317
JUDGMENT APPEALED FROM:	[2022] VCC 1392 (Judge Doyle)

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CRIMINAL LAW – Appeal – Conviction – Aggravated home invasion and associated offences – Whether jury verdicts unreasonable or cannot be supported having regard to the evidence – Whether picture identification evidence sufficient to establish presence – Whether recent possession of stolen property capable of establishing presence – Leave to appeal refused.

CRIMINAL LAW – Appeal – Conviction – Picture identification evidence – Admissibility – Whether reasonable not to hold identification parade – Leave to appeal refused.

Evidence Act 2008 s 115, 137.

M v The Queen (1994) 181 CLR 487; Lang v The Queen (2023) 97 ALJR 758; Trainer v The King (1906) 4 CLR 126; Bruce v The Queen (1987) 74 ALR 219; Gilson v The Queen (1991) 172 CLR 353 considered.

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Counsel
For the Applicant Harika:	Mr J Shaw
For the Applicant Hamann:	Mr J Connolly
Respondent:	Mr CB Boyce KC
Solicitors
For the Applicant Harika:	Valos Black & Associates
For the Applicant Hamann:	Melinda Walker
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA:

I agree with the orders proposed by Macaulay JA, whose reasons for judgment I have had the advantage of reading in draft. Although I am in substantial agreement with those reasons, I wish to add a few observations of my own.
With respect to the applicant Harika’s sole ground, which contended that the jury’s ‘verdicts in relation to all charges on which the applicant was found guilty were unreasonable or cannot be supported having regard to the evidence’, my reasons for agreeing with Macaulay JA are relatively simple.
When a person is found in possession of recently stolen property, the ‘doctrine’ of recent possession — a form of inferential reasoning sometimes misleadingly referred to as creating a ‘presumption’ of fact — permits the inference to be drawn that he or she must be either the thief or a receiver of the property.
Thus, in Trainer, Griffith CJ described the recent possession of stolen property as an illustration of circumstantial evidence (albeit he spoke of a prima facie ‘presumption’):[1]
It is a well known rule that recent possession of stolen property is evidence either that the person in possession of it stole the property or received it knowing it to have been stolen, according to the circumstances of the case. Prima facie the presumption is that he stole it himself but if the circumstances are such as to show it to be impossible that he stole it, it may be inferred that he received it knowing that someone else had stolen it. This is only an illustration of the rule as to circumstantial evidence.
[1]Trainer v The King (1906) 4 CLR 126, 132 (‘Trainer’).
In Gilson, Brennan J explained that the possession of recently stolen property is circumstantial evidence capable of supporting an inference that the possessor is either the thief or a receiver:[2]
Although it is clear enough that evidence of recent possession of stolen goods is sufficient to support a conviction for either larceny or receiving, the reference by Griffith CJ [in Trainer, 132–3] to a ‘presumption’ may be taken to suggest that some evidential onus passes to the accused and that, prima facie, that onus is to rebut a presumption of larceny. To understand what his Honour said in that way is to mistake the true effect of evidence of recent possession. It is merely circumstantial evidence which is capable of supporting an inference of either larceny or receiving according to all the circumstances of the case but it raises no presumption of guilt and the jury are bound to acquit if, on the whole of the evidence, they entertain a reasonable doubt.
[2]Gilson v The Queen (1991) 172 CLR 353, 367–8.
The High Court had earlier observed in Bruce:[3]
Where an accused person is in possession of property which is recently stolen, the jury is entitled to infer as a matter of fact, in the absence of any reasonable explanation, guilty knowledge on the part of the accused. Such an inference will be drawn from the unexplained fact of possession of such property and not from any admission of guilt arising from the failure to proffer an explanation. It is the possession of recently stolen property in the absence of explanation or of explanatory circumstances, which enables the inference to be drawn. Thus the absence of any reasonable explanation must not itself be explicable in a manner consistent with innocence.
[3]Bruce v The Queen (1987) 74 ALR 219, 219 (Mason CJ, Brennan, Deane, Dawson and Gaudron JJ).
In the present case, the evidence established that three armed and disguised intruders broke into the home of Ms Eden McElligott and Mr Dassidy Bell in Craigieburn at about 12.30 am on 25 September 2018 (charge 1). Having terrorised Ms McElligott and Mr Bell — including causing not insignificant injuries to Mr Bell (charge 2) — over a period of about 40 minutes, the three intruders left the premises, taking with them property that they had stolen, including gold and silver jewellery; a Play Station 4 game console; a MacBook Pro computer; a Gucci tote bag; a Louis Vuitton wallet with various personal and bank cards; tools; and cash (charges 4 and 5). The intruders drove away from the premises in Mr Bell’s black 2013 Chrysler 300C sedan — which they had also stolen (charge 8) — taking with them the goods that they had stolen and Mr Bell’s dog, ‘Villain’. Since the three thieves had been in the premises for about 40 minutes, it must have been a little after 1.00 am when they left with the stolen goods in the stolen Chrysler.
There is evidence establishing that, at about 3.00 am that same morning, the applicants Harika and Hamann, together with Jake O’Reilly and a fourth male, Sean Ware, arrived at the residence of Krystal Varvatsoulis in West Heidelberg, where they remained until 6.45 am. Whilst there, O’Reilly repaid in cash a debt that he owed to Varvatsoulis, and Harika offered Varvatsoulis the dog, Villain, taken from Mr Bell about two hours previously. Upon departing, Harika left Villain in Varvatsoulis’ possession.
Shortly after leaving Varvatsoulis’ home, Harika arrived at the residence in Lalor he shared with Leah Doody, and asked her if she wanted food. She did not. Harika then left, and, at 8.48 am, was captured on CCTV footage at a Hungry Jacks restaurant in Bundoora, in the driver’s seat of the Chrysler, and in possession of a gold chain and a watch, stolen hours earlier from Mr Bell.
Very soon thereafter, Doody observed Harika in the front yard of their shared residence, holding a hose and washing the stolen Chrysler, which was parked in the driveway. Hamann handed her a watch, a black purse and a plastic bag containing jewellery — all of which had been stolen in the invasion of Mr Bell’s and Ms McElligott’s home — telling her to ‘put it away’.
Less than half an hour after his visit to Hungry Jacks, at some time prior to 9.15 am, police went to Harika’s residence and found the stolen Chrysler. Other property stolen from Bell and McElligott was located inside Harika’s residence. As a result, police arrested Harika.
In summary, the evidence established that, within two hours or so of the completion of the home invasion in Craigieburn, Harika was at Varvatsoulis’ home in West Heidelberg in possession of the pilfered dog. He remained there for almost three hours, until 6.45 am. Within about two hours of leaving Varvatsoulis’ home, at 8.48 am, Harika was at a Hungry Jacks restaurant in Bundoora — in possession of some of the stolen jewellery and driving the stolen Chrysler — having stopped first at his Lalor home. Fewer than 30 minutes later, he was found at his residence in possession of the stolen Chrysler, giving it a wash.
The evidence permitted two possible hypotheses only: first, that Harika was one of the intruders who had stolen the dog, the jewellery and the Chrysler; or, secondly, that Harika had received the stolen property from someone else. Given the very close temporal correspondence of Harika’s possession of the stolen property to the home invasion, and the lack of opportunity to have received it from someone else, it plainly was open to the jury to reject the second hypothesis as unreasonable. Indeed, I consider that it would have been unreasonable for the jury not to have rejected it.
In my view, based solely on his possession of the recently stolen property, it clearly was open to the jury to be satisfied beyond reasonable doubt that Harika had stolen the items, and that he had done so in the course of the home invasion.[4] That being so, I consider that the jury could have put the identification evidence to one side completely, yet still have been satisfied beyond reasonable doubt that Harika was one of the three intruders.
[4]See Dean v The Queen [2020] VSCA 100, [62] (Beach, Kaye and Weinberg JJA).
It follows from the foregoing that I regard as untenable the submission of Harika’s counsel to the effect that, once the identification evidence is removed from the equation, the other evidence proved no more than Harika might have been the receiver of the stolen property in his possession.
Furthermore, I regard the applicant Hamann’s single ground — which complains that the judge erred in finding that it would not have been reasonable to have held an identification parade — as being wholly devoid of merit.
By reason of s 115(5)(c) of the Evidence Act 2008, picture identification evidence adduced by the prosecution is not admissible if the accused was in the custody of investigating police when the pictures were examined, unless it would not have been reasonable to have held an identification parade that included the accused. Subsection (6) provides that ss 114(3)–(6) apply in determining, whether it would have been reasonable to have held an identification parade. Very significantly, s 114(4) provides:
(4)It is presumed that it would not have been reasonable to have held an identification parade if it would have been unfair to the accused for such a parade to have been held.
Quite plainly, in circumstances where, first, Hamann was found unconscious at 11.25 am on 25 September 2018; secondly, police suspended an interview with Hamann that day at 1.22 pm because he was falling asleep; thirdly, at 7.00 pm police checking on Hamann assessed him as being drug-affected and disorientated; and, fourthly, at 9.35 am a forensic medical officer assessed Hamann as not fit for interview; it would have been unfair to Hamann to have held an identification parade. There is little doubt that if Hamann was so drug-affected and disorientated as to be unfit for interview, he was in no position to give informed consent to participation in an identification parade. Moreover, his drug-affected demeanour would have been likely to have drawn a putative identifying witness’s attention to him, blighting the efficacy of any parade. Given his compromised state, it clearly would have been unfair to Hamann to have held

an identification parade. Thus, consistently with s 114(4), it may be presumed that it would not have been reasonable to have held an identification parade. Indeed, I consider that, had police attempted to place Hamann into an identification parade despite his impaired state, they unquestionably would have opened themselves up to criticism.

Finally, in my opinion it is absurd to suggest that, once Hamann was moved to the Melbourne Custody Centre (‘MCC’), police would have had any realistic opportunity to arrange an identification parade in which Hamann could participate. Because of what would have been required to properly conduct an identification parade — including the extreme difficulty of assembling an adequate array — it would have been almost impossible for police to have had Hamann participate in an identification parade at the MCC (even assuming a willingness on his part to do so). Moreover, the difficulties associated with having Hamann released from the MCC into the custody of police for the sole purpose of conducting an identification parade demonstrate the complete impracticality of attempting such an exercise.

MACAULAY JA:

Introduction

Two applicants, each convicted after a trial before a jury, seek leave to appeal their convictions by reference to the use made of identification evidence at their trials.
On 17 May 2022, the applicants, Peter Hamann and Phillip Harika, were convicted of aggravated home invasion,[5] causing injury intentionally,[6] common assault,[7] extortion with threat to kill,[8] and three charges of theft.[9] Their convictions followed a 15-day trial by jury in the County Court. Hamann also pleaded guilty to a single charge of possession of a drug of dependence on a separate indictment. Following a plea of guilty, a co-offender, Jake O’Reilly, was also convicted of aggravated home invasion and associated offences arising from the same event.
[5]Contrary to Crimes Act 1958, s 77B.
[6]Contrary to Crimes Act 1958, s 18.
[7]Contrary to Common Law.
[8]Contrary to Crimes Act 1958, s 27.
[9]Contrary to Crimes Act 1958, s 74.
After a plea in mitigation on 20 July 2022, the applicants were sentenced on 29 August 2022. Harika was sentenced to a total effective sentence of 9 years’ imprisonment with a non-parole period of 6 years and 10 months.[10] Hamann was sentenced to a total

effective sentence of 9 years and 8 months’ imprisonment, with a non-parole period of 7 years and 3 months.[11]
[10]Harika’s sentence comprised 7 years and 4 months’ imprisonment (base) for aggravated home invasion, 2 years and 6 months (6 months’ cumulation) for causing injury intentionally, 1 year and 6 months (6 months’ cumulation) for extortion with threat to kill, 1 year and 6 months (2 months’ cumulation) for one theft charge, 1 year (2 months’ cumulation) on each of the other theft charges, and 1 year (2 months’ cumulation) for common assault.
[11]Other than being fined $100 in respect of the possession of a drug of dependence, Hamann’s sentences on the other charges were the same as those imposed on Harika, except that Hamann was sentenced to 3 years’ imprisonment (12 months’ cumulation) for causing injury intentionally, and 1 year and 3 months (4 months’ cumulation) for common assault.

The case brought by the prosecution featured picture identification evidence, namely, evidence that the two victims of the home invasion had identified each applicant from photoboards prepared by police as being one of the three offenders who had invaded their house. The admission of that identification evidence was opposed at a pre-trial hearing by each applicant, albeit on somewhat different grounds. In a ruling made on 1 February 2021, Judge Carlin[12] ruled the evidence admissible (the ‘Ruling’).[13]
[12]Judge Carlin was not, ultimately, the trial judge. The trial judge was Judge Doyle.
[13]DPP v Harika & Ors (County Court of Victoria, Judge Carlin, 1 February 2021) (‘Ruling’).
In allowing the admission of the identification evidence against Harika, the judge rejected a submission that the evidence should be excluded pursuant to s 137 of the Evidence Act 2008 on the basis that its probative value was outweighed by the danger of unfair prejudice to Harika. In allowing the admission of picture identification evidence against Hamann, the judge found that the precondition to its admissibility — namely, that it would not have been reasonable to hold an identification parade[14] — was established.
[14]Evidence Act 2008, s 115(5)(c).
Each applicant relies upon a single proposed ground of appeal.
Harika contends that the jury’s verdicts in relation to all charges on which he was found guilty were unreasonable or cannot be supported having regard to the evidence. In written submissions, Harika narrowed that contention by particularising it as follows: ‘It was not possible for the jury to be satisfied beyond reasonable doubt that the offender in the duct tape balaclava was the applicant’.
Hamann contends that, when admitting the picture identification evidence, the judge erred by finding that it would not have been reasonable to have held an identification parade that included him when it was not open on the evidence to make that finding.
As will become evident, Harika’s proposed ground focuses upon the evidence available to the jury to reach any reasonable conclusion about the identity of the third offender (accompanying Hamann and O’Reilly). Hamann’s proposed ground focuses upon the Ruling of Judge Carlin permitting the admission of the picture identification evidence.

Background facts

At approximately 12:30 am on the morning of 25 September 2018, three offenders broke into a house in Craigieburn occupied by Mr Dassidy Bell and Ms Eden McElligott. O’Reilly admitted to being one of the offenders by pleading guilty to charges related to the home invasion. By their verdicts the jury found that the other two offenders were the applicants, Hamann and Harika.
What follows is an abbreviated summary of the prosecution case, which the judge found was accepted by the jury by virtue of its verdicts.
For a month or so before 25 September 2018, O’Reilly had been interested in conducting a home invasion at the property occupied by Bell and McElligott in Craigieburn, believing them to have a large amount of cash from the proceeds of selling drugs. On 4 September 2018, he had a text message exchange with Harika. O’Reilly referred to Harika as ‘Uncle Philip’ and Harika referred to O’Reilly as ‘home boy’. O’Reilly said he would visit Harika ‘a bit later’, and Harika asked him, ‘What does the Craig burn house mean?’.
In the days shortly before 25 September, O’Reilly communicated with Ms Krystal Varvatsoulis regarding a debt of $600 that he owed her. O’Reilly told Varvatsoulis that he intended to obtain the money to pay her from some ‘coke dealers’ who lived in Craigieburn. Not having a car of his own, O’Reilly told Varvatsoulis that he needed to find someone who would drive him to Craigieburn and assist him in getting the money.
On the evening of 24 September 2018, Harika and Hamann were at Harika’s home in Lalor with their respective partners, Leah Doody and Courtney Matthews. Following text messages that evening between O’Reilly and Harika, Harika and Hamann left Lalor to collect O’Reilly sometime after 9:45 pm. On the prosecution case, all three travelled to Craigieburn, where Bell and McElligott lived.
Soon after midnight, Bell awoke from the sound of his dog barking and some banging noises. Whilst he went to investigate, McElligott retreated to the ensuite off their bedroom. Harika, Hamann and O’Reilly broke into the house. Harika was wearing a balaclava with duct tape attached and holding a hatchet, Hamann was wearing a hoodie and holding a crowbar, and O’Reilly was wearing a makeshift balaclava and holding a makeshift sword. The offenders threatened and assaulted Bell, including by inflicting a deep cut on his arm with a weapon that later required surgery.
After 40 minutes or so the three intruders left the house, taking Bell’s black 2013 Chrysler sedan. In it they took numerous items stolen from the house, including a Playstation 4, a Macbook Pro, a Gucci tote bag, a Louis Vuitton wallet with various personal cards and bank cards, clothing, jewellery, $6,000 cash, Milwaukee tools and other valuables. They also took Bell’s dog, Villain. They told Bell that $20,000 should be left outside his gate if he wanted his dog back.

At about 3:00 am, the three offenders and another person whom they had collected on the way, Sean Ware, arrived at the home of Varvatsoulis in Heidelberg West. O’Reilly paid her the $600 that he owed. A man called Batsakis was also with Varvatsoulis at her home. Harika, Hamann, O’Reilly and Ware remained at Varvatsoulis’s property until they left sometime after 6:45 am. Harika offered Bell’s dog to Varvatsoulis and it was left with her.
Sometime later, Harika arrived back at his house in Lalor. He woke his partner, Ms Doody, and asked her if she wanted some food. She said she did not. Soon after, he left again. At 8:48 am, Harika and Hamann were captured on CCTV in the stolen Chrysler sedan at a Hungry Jacks store in Bundoora. Harika, in the driver’s seat, could be seen holding a gold chain belonging to Bell and wearing a gold watch.
When Ms Doody woke up again at Harika’s house, she heard voices in the front yard. Upon opening the door, she saw tools and boxes in front of her. Ms Doody observed Harika holding a hose and washing Bell’s car, parked in the driveway. Hamann handed her a watch, black purse and plastic bag containing jewellery, all of which had been stolen in the home invasion. He told Doody to ‘put it away’. She placed those items in her handbag.
Sometime before 9:15 am, police attended at Harika’s house in Lalor. There they arrested Harika and Ware. They also found the stolen Chrysler sedan at the house. Items stolen from Bell and McElligott were located inside Harika’s house. Ware, who had been asleep in the back seat of the Chrysler, awoke and resisted police and had to be subdued. Hamann fled the property in an attempt to avoid arrest. He was arrested a few minutes later in a nearby street, passed out, and was found to be in possession of a small amount of methylamphetamine.
O’Reilly, who was not at Harika’s house at the time of the arrests, was arrested some days later at his house in Montmorency.

Harika’s application

Since Harika’s application involves the question of whether it was open for the jury to be satisfied beyond reasonable doubt on the whole of the evidence that Harika was one of the offenders involved in the home invasion, it is necessary to refer to some additional facts which relate particularly to him, and the way in which the prosecution put its case against him.

Events subsequent to arrest

Police interviewed Harika at the Broadmeadows Police Station at about midday on the day of his arrest, 25 September 2018. Harika denied being involved in the home invasion. He said he did not know anything about the Chrysler vehicle found at his house or how it had come to be there.
He said he had remained at his house overnight on 24/25 September, going to sleep at around 7:00 or 8:00 pm and only leaving the house for about 20 minutes to go for a walk to the nearby park, after which he came back and returned to bed. He was unable to tell police anything about a dog called Villain. Nor could he explain how the Chrysler came to be parked in his driveway, with his own vehicle, a Mercedes Benz, parked between the Chrysler and the street. He told police that the reason he was washing the Chrysler when they arrived was because it was muddy.
He agreed that he had taken tools, watches, make-up, a handbag and other property from or beside the car and put them in a room in his house. He explained that he wanted to hide the property because he was ‘just trying to steal stuff’. He said he had only noticed the car was there between half an hour and an hour before police arrived when he went outside and saw two men sleeping in it. He said one was ‘Peter’ (meaning Hamann), both were ‘stoned’, the tools were outside the car and there was also ‘stuff’ inside the car.
During a break in the interview, Harika told police he could show them where the dog was. He then accompanied police to Varvatsoulis’s house which ultimately enabled them to locate Villain and return it to Bell.
At Varvatsoulis’s house the police located evidence of text messages between Varvatsoulis and O’Reilly and a weapon which matched the description of one used during the home invasion.
Harika refused to take part in an identification parade.[15] Bell identified Harika from a police photoboard presented to him on 27 September 2018. He identified Harika as the offender who had been wearing the duct tape balaclava. Bell gave evidence at the trial describing certain physical attributes of the person in the duct tape balaclava including his size and build, hair colour, that he was clean shaven, the colour of his eyes and the size of his mouth. Doody also gave evidence about Harika’s movements and what she saw and heard on the evening of 24 September and during the early hours of 25 September, up to and including the arrival of the police.

The prosecution case at trial

[15]A person’s refusal to take part in an identification parade is a ground for enabling the later admission of picture identification evidence (eg, from a photoboard) of that person where the relevant examination of the pictures occurred while the person to be identified was in police custody: Evidence Act 2008, s 115(5)(a).

In her closing address to the jury, the prosecutor submitted that the account Harika gave in his record of interview was ‘riddled with lies’ and that it should be rejected. Even aside from Bell’s photo board identification of Harika, the prosecutor argued that an array of other evidence taken in combination would enable the jury to find beyond reasonable doubt that Harika was one of the offenders. In summary, the evidence the prosecutor relied upon included the following:
•the descriptions given by Bell and McElligott of the physical features of the offenders, whom they were able to observe in the house for around 40 minutes;
•the evidence of both Varvatsoulis and Batsakis of the appearance and features of the three men who were at the Heidelberg house with Ware at and after 3:00 am on 25 September;
•the text message exchange between Harika and O’Reilly on 4 September 2018 about the Craigieburn house and further text message exchanges between Harika and O’Reilly on 24 September about meeting on that night;
•the CCTV footage depicting Harika in the stolen Chrysler at Hungry Jack’s on the morning of 25 September wearing the gold watch and handling the gold chain, and using rolled-up cash retrieved from the sun-visor to pay for the food;
•the fact that a balaclava fitting the description of the one seen on ‘the larger male’ at the Craigieburn house was found in Harika’s bedroom in Lalor;
•the fact that Harika was found in possession of the Chrysler and that the stolen items were located in rooms within his Lalor house;
•the implied admission that Harika had been to Varvatsoulis’s house by him taking police there to show where the dog may be found;
•the absence of any credible explanation as to how Harika came to possess the goods and the car.
In addition to those matters, the prosecution relied on the photoboard identification of Harika made by Bell.

Defence case at trial

In closing submissions to the jury, Harika’s counsel said there was no question that Harika had knowingly handled stolen goods and wanted to keep them. It was conceded that he lied to police about not driving the Chrysler but argued that it may be thought that he did so because he felt he would be blamed for the home invasion when in fact he had only received stolen goods.
Harika’s counsel argued that the photoboard identification evidence was totally unreliable. Apart from that evidence, counsel argued, none of the other evidence would enable the jury to conclude beyond reasonable doubt that Harika was one of the offenders. In particular, the fact that Harika was able to show police where the dog could be found may possibly be explained by O’Reilly having told Harika about the home invasion and that a dog had been stolen and left at the particular address in Heidelberg West. Because Harika owned and bred dogs himself, it was argued that it would make sense that, as a dog-lover, Harika would do such a thing.
Even if it were accepted that Harika had been at the Heidelberg West address, counsel argued, that would not enable the jury to infer that he had been involved in the home invasion which had taken place several hours earlier, 25 kilometres away. Further, it may be accepted that Harika and O’Reilly knew one another well. Even if it were accepted that O’Reilly had been planning the home invasion for a few months and had, at one time, tried to recruit Harika for the home invasion, counsel argued that the evidence suggested that Harika had not agreed to participate. O’Reilly was still telling Varvatsoulis on the 24th that he was looking for someone to assist him. It was submitted that the jury might think that Harika was only willing to handle the stolen goods.

Applicable legal principles

In M v The Queen,[16] the High Court laid down the test that is to be applied in a case in which it is contended that the finding of guilt was unreasonable or could not be supported having regard to the evidence. There, the Court said that
where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. 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.[17]
[16](1994) 181 CLR 487; [1994] HCA 63.
[17]Ibid 494.
In Lang v The Queen,[18] after referring to that passage, Gordon and Edelman JJ said:
As this Court said in the circumstantial case of Coughlan v The Queen, an assessment of whether a verdict is unreasonable and therefore whether a miscarriage of justice occurred requires this Court ‘to weigh all the circumstances in deciding whether it was open to the jury to draw the ultimate inference that guilt has been proved to the criminal standard’ and to assess whether ‘the prosecution has failed to exclude an inference consistent with innocence that was reasonably open’. In doing so, this Court must respect the advantages of the jury including in seeing and hearing audio-visual recordings (which, on this appeal, were not before this Court) as well as assessing the credibility of witnesses.[19]
[18](2023) 97 ALJR 758; [2023] HCA 29.
[19]Ibid [143] (Gordon and Edelman JJ).
In the same case, also referring to the test identified in M v The Queen, Jagot J explained:
The question ‘which the court must ask itself is whether it 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’. This question ‘is one of fact which the court must decide by making its own independent assessment of the evidence’. While ‘[i]n most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced’, if ‘a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal’ then the court may conclude that no miscarriage of justice has occurred.
…
In a case where the evidence is circumstantial, this means that the appeal court must ‘weigh all the circumstances in deciding whether it was open to the jury to draw the ultimate inference that guilt has been proved to the criminal standard’. A circumstantial case must not be considered ‘piecemeal’. If, on the whole of the evidence, ‘the prosecution has failed to exclude an inference consistent with innocence that was reasonably open’, then the jury is not able to draw that ultimate inference . Accordingly, in a circumstantial case, it is impermissible to consider any piece of evidence in isolation from the whole. This fundamental principle is of the utmost importance in the present case.[20]
[20]Ibid [250]–[251] (Jagot J).
Applying these principles, for Harika to succeed on his proposed ground of appeal, this Court must conclude that on the whole of the evidence it was not open to the jury to be satisfied beyond reasonable doubt that he was guilty of home invasion. In practical terms, the question is whether it was open to the jury to be satisfied beyond reasonable doubt that he was one of the offenders present at the Craigieburn house. If the prosecution failed to exclude an inference consistent with innocence that was reasonably open on all of the evidence, it would not be open to the jury to be satisfied of guilt beyond reasonable doubt. However, in considering the whole of the evidence in a circumstantial case such as this, the evidence must not be considered in a piecemeal fashion. Individual pieces of evidence must not be considered in isolation.

Submissions

Harika submitted that it was not open to the jury to be satisfied beyond reasonable doubt that he was the offender in the duct tape balaclava. According to Harika, the body of evidence showing that he was in possession of the car and items stolen from the home invasion, on the morning after the home invasion, could not of itself prove that he was one of the offenders at the home invasion in Craigieburn. On that evidence, the hypothesis that he merely took possession of stolen goods could not be excluded. That hypothesis, consistent with innocence of the charged offence, remained reasonably open. It followed, he submitted, that it was not open to the jury to be satisfied beyond reasonable doubt that he was guilty of home invasion.
The only piece of evidence, Harika submitted, that had the capacity to differentiate a hypothesis consistent with guilt from one consistent with innocence was Bell’s identification of him from the photoboard. Yet, argued Harika, that evidence should not have been accepted by the jury. At best for the prosecution, that evidence could not reasonably have been accorded enough weight to ‘increase the strength of the Crown’s circumstantial case’ and displace the hypothesis consistent with innocence.
One reason Harika gave for the identification evidence having no probative value was that the identification was made from the size of the offender’s mouth, of an offender wearing a balaclava, when the shape and size of the offender’s mouth was not distinctive and the mouth could only be observed through a hole in the balaclava. Further, the photoboard did not contain photographs of men wearing balaclavas with mouth holes, Bell appeared to be a poor observer (referring to Bell’s observations of other features said to be inaccurate or unreliable), there was no evidence of Harika’s DNA on any balaclava and, in general, identification evidence is potentially unreliable.[21]
[21]Counsel referred to the directions regarding identification evidence, set out in s 36 of the Jury Directions Act2015, which are to be given to a jury when requested by the prosecution or defence counsel.
Harika argued that each other piece of evidence relied on by the prosecution in aid of its case could be accommodated within the hypothesis of him only being the recipient of stolen goods. For example, his knowledge of the whereabouts of the dog could plausibly be explained by him having been told by O’Reilly that a dog had been taken in the home invasion and left at an address in Heidelberg West. Further, even if the jury accepted it as probable that he, Harika, had been at Varvatsoulis’s house from about 3:00 am on 25 September, that also could be accommodated within the ‘receiver of stolen goods’ hypothesis. That is to say, he only attended Varvatsoulis’s property at 3:00 am in order to receive the stolen goods.

Consideration

In short, Harika’s argument invites this Court to consider pieces of evidence in isolation from the whole. That is, his argument relies upon a ‘divide and conquer’ strategy with respect to the body of circumstantial evidence. He isolates the identification evidence — and even some other pieces of evidence, such as him taking police to the location of the dog and the likelihood that he attended Varvatsoulis’s house at 3:00 am — from the other body of evidence relied upon by the prosecution. Having erected a hypothesis consistent with innocence from that ‘other body’ of evidence, he then seeks to argue why those other pieces of evidence are inadequate to undermine the innocent hypothesis or, put in the affirmative, to convert an innocent hypothesis into a conclusion of guilt beyond reasonable doubt.
In argument, Harika used the identification evidence as a balancing factor or as a pivot on which other evidence turned, as if it was separate from the other circumstantial evidence. He repeatedly urged the Court to ‘leave aside’ the identification evidence, examine what picture the other evidence supported, and then return to the identification evidence to assess what difference it could make.
This form of reasoning is impermissible. As has been frequently emphasised, circumstantial evidence must be assessed as a whole.[22] No single piece of evidence is to be looked at in isolation and weighed independently from the entirety.
[22]See above at [55]; see also R v Hillier (2007) 228 CLR 618, 638 [48]; [2007] HCA 13.
The process of evaluating circumstantial evidence is not a linear process but a dynamic, interactive one. That is, one does not start with one piece of evidence and assign it weight, move to the next and do the same until all pieces are separately weighed, and then give the whole of them some score. Rather, each piece of evidence is used to interrogate others, and is interrogated by others, each piece growing or shrinking in weight in that process, until a conclusion is reached about the cogency of the whole as a unit. In that way, the strength of some items of evidence may help resolve doubts about others.
Further, I do not accept that the identification evidence was as weak as Harika contends, still less that it had no probative value. Counsel for Harika went so far as to assert that it was ‘simply not possible to identify someone from a photoboard where the person you are seeking to identify is wearing a balaclava’. But Bell and McElligott were in the presence of the three offenders for approximately 40 minutes. Their opportunity to observe the size and shape and other visible body features of each offender was significant. In the case of Bell, he had the opportunity to view the offenders at close range, seeing and hearing them speaking. As pointed out in argument, the balaclavas that were worn by two of the offenders were not rigid. They moved and stretched with facial movements. Bell was able to describe the features of the person’s mouth, eyes and hair, and that he was clean shaven.
Additionally, Bell and McElligott’s identification of the offenders was not simply limited to facial characteristics. The jury had the opportunity to see the accused in the courtroom and to evaluate the cogency of the whole of the evidence with respect to identification.
Although Harika challenged the admission of the identification evidence before trial on the basis that its probative value was outweighed by the danger of unfair prejudice to him, he did not contend on the application for leave to appeal that it was wrongly admitted into evidence before the jury. Nor was any complaint made about the way in which the judge directed the jury as to how it could use the evidence. In short, the identification evidence went before the jury on the basis that it had probative value, the judge directed the jury how it may use the evidence in proof of the prosecution case, and no challenge was made about either of those circumstances.

Before the jury, counsel for Harika did not submit that the identification evidence lacked any probative value, but submitted that it was weak. Before this Court, the argument was put that the identification evidence was of such frailty that it could not reasonably have advanced the Crown’s circumstantial case beyond what could be established without it. None of that alters the question before this Court; namely, whether it was open to the jury on the whole of the evidence to find Harika guilty beyond reasonable doubt. Even if the identification evidence was assessed as having only modest strength, such evidence was capable of contributing to the cogency of the whole of the circumstantial evidence in proof that Harika was one of the offenders.
For completeness, I do not accept Harika’s foundational proposition in any event. That is, I do not accept that if you removed the identification evidence, a jury could not reasonably have excluded the inference that Harika was a mere receiver of stolen goods. Indeed, in my view, even without the identification evidence there remained a powerful circumstantial case that Harika was present at the home invasion. Here, I am referring to Harika’s association with O’Reilly, who planned the home invasion; his association with Hamann if, as was the case, the jury found Hamann to be involved in the home invasion; his text message exchanges with both O’Reilly and Hamann prior to the home invasion; his possession of the car and stolen goods so soon after the home invasion; his knowledge of the whereabouts of the dog stolen during the home invasion; and, as submitted by the respondent on the appeal, his apparent exercise of dominion over those stolen items so soon after the home invasion. All of that evidence, collectively, points strongly to an involvement beyond that of being a mere receiver of goods stolen by someone else.
In my view, the whole of the evidence relied upon by the prosecution plainly had the capacity to enable the jury to reasonably exclude the only alternative hypothesis relied upon by Harika — namely, that he was a mere recipient of the stolen goods. It follows that it was open to the jury to be satisfied beyond reasonable doubt that Harika was one of the three offenders in the home invasion at Craigieburn on 25 September 2018.
Harika’s application for leave to appeal against conviction must be refused.

Hamann’s application

As indicated, Hamann’s proposed ground of appeal concerns the correctness of the Ruling made by Judge Carlin before the trial. The judge ruled that evidence of the identification of Hamann by Bell and McElligott from photoboards presented to them on the afternoon of 27 September 2018, while Hamann was in police custody, could be admitted as evidence in the trial.

Applicable legal principles

Part 3.9 of the Evidence Act 2008 concerns identification evidence. Section 115 provides for the exclusion of evidence of identification by pictures (including photographs). ‘Picture identification evidence’ is defined to mean identification evidence relating to an identification made wholly or partly by the person who made the identification by examining pictures kept for the use of police officers.[23]
[23]Evidence Act 2008, s 115(1).
Most relevantly, s 115(5) prohibits the admission of picture identification evidence, when the examination takes place while the accused is in police custody, unless one of three criteria is satisfied:
(a)the accused refused to take part in an identification parade; or
(b)the appearance of the accused had changed significantly between the time when the offence was committed and the time when the accused was taken into that custody; or
(c)it would not have been reasonable to have held an identification parade that included the accused.

Hamann was in police custody at the time Bell and McElligott identified him from the photoboards. Hamann did not refuse to take part in an identification parade (because it was not offered), nor was it suggested that his appearance had changed significantly since the offence. The point on which the admissibility of the photoboard identification evidence was debated was whether it was established that it would not have been reasonable to have held an identification parade that included Hamann. That is, the point of contention was the satisfaction of s 115(5)(c).
Section 115(6) applies the provisions of ss 114(3)–(6) when determining whether s 115(5)(c) is satisfied. Section 114(3) lists a number of non-exclusive matters which a court is to take into account in determining whether it was reasonable to hold an identification parade. They are: the kind and gravity of the offence, the importance of the evidence, the practicality of holding an identification parade, and the appropriateness of doing so. Sections 114(4) and (5) describe situations in which it is presumed that it would not have been reasonable to have held an identification parade. Relevantly to this case, s 114(4) provides:
It is presumed that it would not have been reasonable to have held an identification parade if it would have been unfair to the accused for such a parade to have been held.[24]
[24]Evidence Act 2008, s 114(4).
Section 114(6) instructs the court not to take into account the availability of pictures or photographs that could be used in making identifications when determining whether it was reasonable to have held an identification parade.

Events subsequent to arrest

From the evidence given on the application, Judge Carlin detailed at length the events that occurred between Hamann’s arrest on the morning of 25 September 2018 and the presentation of the photoboards to Bell and McElligott, which occurred between 4:00 pm and 5:00 pm on 27 September 2018.[25] It is not necessary to set out every step in that chronology. The critical events are as follows:
[25]Ruling, [50]–[87].
(a)at 11:25 am on 25 September 2018, Hamann was located, passed out, in parkland in Lalor and was conveyed to the Broadmeadows Police Station;
(b)at about 1:20 pm, Detective Sergeant Campbell commenced to interview Hamann but the interview was suspended at 1:22 pm because Hamann was falling asleep;
(c)sometime after 7:00 pm on 25 September, Detective Senior Constable Feben checked on Hamann in an interview room at the Broadmeadows Police Station, and considered that he was drug-affected and disorientated;
(d)at 8:00 pm, Detective Senior Constable Feben asked Dr Rowse, a forensic medical officer with the Victorian Institute of Forensic Medicine, to attend the Broadmeadows Police Station and assess Hamann (along with Harika and Ware) for fitness for interview, telling her that both Hamann and Ware were severely drug-affected when arrested and slept all afternoon;
(e)after assessing Hamann (and Harika and Ware), Dr Rowse informed Detective Senior Constable Feben at 9:35 pm that Hamann was not fit for interview. Her own notes indicated that she told Detective Senior Constable Feben that she could not be certain if Hamann was limited by cooperation, drug-affect, flat mood or baseline functioning;
(f)in her evidence to the judge, Dr Rowse said that because she could not determine the precise cause for Hamann’s state, and whether or when he might become fit for interview, she thought it best to tell the police he was unfit for interview and not suggest any re-assessment. Detective Senior Constable Feben gave evidence that Dr Rowse in fact told him that Hamann would not be fit for interview the next morning or in the foreseeable future;
(g)Dr Rowse told Detective Senior Constable Feben that Harika was fit for interview in the presence of an independent third person, and told another police officer that Ware was not fit for interview but may be fit for interview after a period of rest. Following that advice, Detective Senior Constable Feben recommenced interviewing Harika at 11:48 pm that evening;
(h)Hamann was charged around midnight, remanded in custody by a bail justice, kept overnight in the cells at Broadmeadows Police Station and taken to Melbourne Custody Centre for a filing hearing at the Melbourne Magistrates’ Court at around 11:30 am on 26 September 2018. Detective Senior Constable Feben gave evidence that he would have preferred to keep Hamann in police custody and interview him on the morning of the 26 September, but no further questioning of Hamann occurred because of Dr Rowse’s advice;
(i)for the same reason, Hamann was not asked if he was willing to participate in an identification parade;
(j)during 26 September, further medical assessment was obtained with respect to Ware and he was interviewed at around 11:56 am. That afternoon, Detective Senior Constable Feben also finished interviewing Harika;
(k)after appearing in court on 26 September and being further remanded in custody, Hamann remained at the Melbourne Custody Centre under the legal custody of the Chief Commissioner of Police until 29 September 2018. There was no attempt to re-interview him or ask if he wished to participate in an identification parade, nor whether he wished to speak to a duty lawyer about doing so;
(l)police commenced compiling photoboards for Hamann on the morning of 27 September 2018. Bell, who had been in hospital due to his injuries, was discharged from hospital on the afternoon of 27 September, and he and McElligott went straight to the police station. McElligott identified Hamann from a photoboard at 4:25 pm on 27 September, and Bell identified Hamann from a photoboard at 4:45 pm on the same day.

The Ruling

Defence counsel submitted to the judge that the photoboard identification of Hamann was inadmissible under s 115 of the Evidence Act 2008 because Hamann was in police custody at the time, had not refused to take part in an identification parade and it had not been demonstrated that it would not have been reasonable to have held an identification parade.
Crucially, the judge accepted the evidence of Detective Senior Constable Feben as to his understanding of Dr Rowse’s advice about Hamann’s fitness for interview. That is to say, the judge accepted that the detective understood that Hamann was not only unfit for interview on the night of 25 September 2018, but that he would also not be fit for interview in the foreseeable future. The judge found that there was no obvious investigative advantage to the police in not interviewing Hamann; indeed, if anything, there was a disadvantage. The judge reinforced her finding by comparing Hamann’s situation with that of Ware, who was held overnight, reassessed the next morning, and, being found fit, then interviewed.
The judge went on to find:
Whatever else might be unreasonable, in my view, it would clearly not be reasonable for police to hold an identification parade involving a suspect without the informed consent of that suspect. A fortiori, it would not be reasonable to do so if they knew or believed the suspect was not fit for interview and therefore not able to give informed consent. There is a clear forensic imperative in conducting photo board exercises promptly. Given Detective Senior Constable Feben’s belief that Hamann was not only unfit but that he would not become fit any time in the foreseeable future, in my view, it would not have been reasonable for him to have held an identification parade prior to showing the photo boards to Bell and McElligott, irrespective of the practicalities of such an exercise during Hamann’s remand at the Melbourne Custody Centre.[26]
[26]Ruling, [91] (emphasis added).
After also dismissing an argument that the photoboard identification evidence should be excluded pursuant to s 137 of the Evidence Act 2008 — not challenged on this application for leave to appeal — the judge ruled that the photoboard identifications by Bell and McElligott were admissible.[27]

Submissions

[27]Ruling, [97].

Before this Court, Hamann submitted that the judge erred by applying a subjective test when determining the question of whether it would not have been reasonable to have held an identification parade when, instead, s 115 of the Evidence Act 2008 requires an objective test to be applied. Hamann focused upon the judge’s findings about what Detective Senior Constable Feben understood and believed about Hamann’s fitness to be interviewed and, by implication, the reasonableness of holding an identification parade involving Hamann. Hamann submitted that a finding about the detective’s subjective belief did not constitute a finding that it was not reasonable to hold an identification parade.
Secondly, Hamann was critical of the judge’s reference to evidence concerning certain directions given in the Victoria Police Manual with respect to the removal of prisoners from a police gaol, and the practicality of moving a prisoner from the Melbourne Custody Centre to a police station for the purpose of conducting an identification parade.
In that regard, counsel for Hamann submitted that what the manual said was irrelevant. Further, on the evidence given to the judge, the judge could not have been satisfied that Hamann’s location at the Melbourne Custody Centre, at the time of the examination of the photoboards, made the holding of an identification parade unreasonable. Police logistical difficulties, Hamann submitted, did not feature among the specific examples of impracticalities referred to in s 114(3).
Hamann laid particular stress on the requirement in s 115(5) that the criteria must be satisfied ‘when the pictures were examined’. In his submission, the police did not adequately explain why it was logistically impractical to hold an identification parade at the Melbourne Custody Centre, or why the photo board identification could not be delayed for a day for Hamann to be re-assessed. In any event, Hamann submitted that because the issue involved one of procedural fairness, the standard should be set closer toward logistical ‘impossibility’ rather than mere impracticality. Accepting police explanations for not holding an identification parade in this case, he argued, amounted to excusing their failure to request a further assessment of Hamann before moving him to the Melbourne Custody Centre.
Overall, Hamann submitted that on the state of the evidence it was simply not open to a judge to find that the test was met.
The respondent submitted that the effect of the evidence before the judge was that the informant, Detective Senior Constable Feben, was told by Dr Rowse during the evening of 25 September 2018 that Hamann was, at that time, unfit for interview, and that it was unknown when, if at all, he would become fit for interview.
Regarding the first contention — that the judge erred by applying a purely subjective test to whether s 115(5)(c) was satisfied — the respondent submitted that a proper reading of the Ruling disclosed that the judge reached her own conclusion about whether, in the circumstances that existed, it would not have been reasonable to have held an identification parade. The respondent relied upon the judge’s statement (set out in the passage extracted at [81] above) that
… in my view it would clearly not be reasonable for police to hold an identification parade involving a suspect without the informed consent of that suspect. A fortiori, it would not be reasonable to do so if they knew or believed the suspect was not fit for interview and therefore not able to give informed consent.
As for the second contention — that the judge erred in her consideration of evidence concerning the practicality of holding an identification parade with a remanded person within a custody centre — the respondent emphasised the judge’s finding that it would not have been reasonable to hold a parade in all the circumstances ‘irrespective of the practicalities of such an exercise … at the Melbourne Custody Centre’. The respondent submitted that at least part of the judge’s reasoning for this conclusion was that a parade would have necessitated further delay. The judge had concluded — reasonably, the respondent argued — that there was a forensic imperative in showing the photoboards to the relevant witnesses as expeditiously as possible.
Because time was of the essence for all concerned, the respondent contended that it was reasonable in all the circumstances to not wait until some indeterminate point in the future in the hope that Hamann may have the capacity to consent to an identification parade but, instead, to proceed with the photoboard process to secure whatever evidence could be obtained.

Consideration

The question raised by the proposed ground of appeal is whether, on the evidence adduced, a legal criterion had been satisfied. Although the standard of appellate review was not the subject of any detailed argument on the appeal, in my view, on the question raised there is but one legally permissible answer even though that answer involves a value judgment.[28] It is, therefore, for this Court to determine whether or not the judge was correct to find that the criterion set out in s 115(5)(c) was satisfied. The test for this Court is not whether it was open to the judge to so find.
[28]GLJ v The Trustees of the Roman Catholic Church of Diocese of Lismore [2023] HCA 32, [16] (Kiefel CJ, Gageler and Jagot JJ).
For the reasons that follow, I conclude that her Honour was correct to find that it would not have been reasonable to have held an identification parade that included Hamann in the circumstances that existed between 25 and 27 September 2018.
Hamann correctly conceded in this court that it would have been unfair to him had the police sought his consent to participate in an identification parade, and even more so had he been required to participate in an identification parade, at a time when a doctor had assessed him to be unfit to be interviewed. Hamann also properly conceded that it would have been unfair for police to seek his consent to participate in such a parade if they believed him unfit to be interviewed. It follows, applying s 114(4), that it must be presumed not to have been reasonable to have held an identification parade whilst Hamann was unfit to be interviewed or after his consent had been sought and obtained while he was unfit or believed to be unfit.
I reject Hamann’s contention that the judge applied a subjective test in determining that it would not have been reasonable to have held an identification parade that included him. The judge, logically, took into account Detective Senior Constable Feben’s subjective belief as an integer in her overall reasoning to determine, objectively, that it would not have been reasonable to have held a parade. Her Honour’s reasoning toward her objective finding may be summarised as follows:
•Detective Senior Constable Feben understood that Dr Rowse was of the opinion that Hamann was unfit to be interviewed on the evening of 25 September 2018, and would not be fit to be interviewed the following morning or in the foreseeable future;
•The detective had a reasonable basis for that belief because of the evidence Dr Rowse gave as to what she said to the detective, including that she had been unable to determine the cause of Hamann’s unfitness and, implicitly, how long he would remain unfit;
•It would not have been reasonable to conduct an identification parade without Hamann’s informed consent;
•So long as he remained unfit for interview, Hamann was unable to give informed consent to participate in an identification parade;
•There was a clear forensic imperative to conduct any identification process promptly;
•Therefore, because of the imperative to conduct any identification procedure promptly, and with Hamann being incapable of giving informed consent to participate in an identification parade in the foreseeable future, it was not reasonable to conduct an identification parade at the time Bell and McElligott examined the photoboard at the Broadmeadows Police Station.

Turning to Hamann’s second argument, in my view there was an air of unreality about Hamann’s argument concerning the practicality of conducting an identification parade on 26 or 27 September 2018.
Hamann accepted as a general proposition that there is a need to implement any identification procedures as expeditiously as possible both for forensic reasons and in the interests of an accused. Both the acknowledged time imperative to complete any identification process and the logistical challenge inherent in arranging an identification parade while Hamann was being held at the Melbourne Custody Centre are factors which reasonably informed the question of practicality, practicality being one of the statutory factors to be taken into account when determining whether it was reasonable to hold a parade. To the extent that it mattered, practicality was a factor weighing strongly in favour of the conclusion that it was not reasonable to conduct an identification parade featuring Hamann on the afternoon of 27 September 2018.
In any event, as noted, the judge determined that it was not reasonable to hold an identification parade ‘irrespective’ of the practicalities of doing so. By that, the judge is to be taken as saying that she based her decision upon the fact that throughout the relevant timeframe, Hamann had been assessed as unfit to be interviewed and, by necessary implication, it was not reasonable to seek his consent to an identification parade, still less to conduct one. It would have been unfair to Hamann to do so. Although the judge did not rely upon this reasoning, nor needed to, on the facts of this case the criterion set out in s 115(5)(c) could have been satisfied by resorting to the presumption set out in s 114(4).
Far from it not being open to the judge to come to that conclusion, it was plainly correct for the judge to do so.
Leave must therefore be refused to Hamann to appeal against his conviction.

TAYLOR JA:

For the reasons expressed by both Priest JA and Macaulay JA, I agree with the orders proposed by Macaulay JA.

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[2023] VSCA 317

14 December 2023