Parker v The King

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2022 0177

ADAM TROY PARKER	Applicant
v
THE KING	Respondent

---

JUDGES:	NIALL, BOYCE and WHELAN JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	26 February 2024
DATE OF JUDGMENT:	23 April 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 72
JUDGMENT APPEALED FROM:	[2022] VCC 1931 (Judge Hassan)

---

CRIMINAL LAW – Appeal – Conviction – Charges of arson and reckless conduct endangering life or serious injury – Jury directed that ‘logic’ dictated a finding of guilt on reckless conduct charge if guilty of arson – Defence counsel originally sought to ‘leave’ recklessness to jury but changed position in response to judge – Evidence at trial left open possibility that recklessness was not proved – Whether substantial miscarriage of justice – Appeal allowed – Re-trial ordered.

CRIMINAL LAW – Appeal – Conviction – Applicant contended evidence of sexual conduct irrelevant and prejudicial – Leave to appeal refused.

Criminal Procedure Act 2009 s 276; Jury Directions Act 2015 ss 1, 3, 5, 9, 10, 11, 12, 14, 15, 16, 17.

Baini v The Queen (2012) 246 CLR 469; Kalbasiv The Queen (2018) 264 CLR 62.

---

Counsel
Applicant:		Mr R Barton
Respondent:		Mr BK Kissane KC with Mr G Buchhorn
Solicitors
Applicant:	Sarah Pratt & Associates
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

NIALL JA
BOYCE JA:

We have had the advantage of reading in draft the reasons for judgment of Whelan JA. We agree that the appeal must be allowed.
As those reasons expose, and we agree, the judge misdirected the jury on how they were to approach charges 2 and 3. Although her Honour correctly identified for the jury the elements of those offences, it did not follow as a matter of logic or inevitable reasoning that guilt on the arson charge necessarily meant the applicant was guilty of either charge 2 or 3. It was an error to direct the jury in the way that occurred.
The ultimate issue is whether the error amounts to a substantial miscarriage of justice. As Whelan JA observes the verdict of guilty on charge 2 was not inevitable.[1] Further, the direction in effect took the elements of the reckless endangerment charges away from the jury.
[1]See Baini v The Queen (2012) 246 CLR 469, 480 [30] (French CJ, Hayne, Crennan, Kiefel and Bell JJ).
In certain circumstances agreement, acquiescence or the failure to object to a direction may mean that there has been no substantial miscarriage of justice. That may be the case where the course of the trial was informed by a considered forensic decision. That is not this case. Counsel in this Court frankly accepted that the decision to agree with the course suggested by the judge was an error on his part.
If the question whether there has been a substantial miscarriage of justice is informed by the terms of the Jury Directions Act2015 then there has been a substantial miscarriage of justice. The impugned direction was not, in our view, ‘requested’ in accordance with s 12 of that Act. That meant that the judge was obliged not to give the direction[2] unless she considered that there were ‘substantial and compelling reasons for doing so’.[3] There were no ‘substantial and compelling reasons’ to give an erroneous direction that robbed the applicant of a real chance of acquittal.
[2]Section 15.
[3]Section 16.
But it may be doubted whether the impugned direction ought be analysed by reference to the Jury Directions Act. Defence counsel placed identity in issue. He thereby at least put recklessness in issue on charges 2 and 3. It is doubtful whether a direction that foreclosed upon recklessness in the event that the jury found against the applicant on identity could amount, in any event, to a ‘particular direction[] in respect of … the matters in issue’ for the purposes of s 12 of the Jury Directions Act. A direction that had the effect of removing a matter in issue, is not easily seen as being a direction in relation to a matter in issue.
However analysed, the direction was wrong and the jury were misdirected in an important respect. The misdirection resulted in a substantial miscarriage of justice and this Court must allow the appeal under s 276(1)(b) of the Criminal Procedure Act2009.
We agree with what Whelan JA has written on proposed ground 2.

WHELAN JA:

The applicant was charged on indictment with a number of offences allegedly committed in the early hours of New Year’s Day 2021. The charges all related to a fire which destroyed a property in Warrnambool. He was charged with an offence of arson (charge 1); alternative offences of reckless conduct endangering life (charge 2), or reckless conduct endangering serious injury (charge 3); and two charges of assault (charges 4 and 5).
The applicant pleaded guilty to one charge of assault (charge 5). On 7 July 2022, the applicant was convicted in the County Court after a trial of arson (charge 1), reckless conduct endangering life (charge 2), and assault (charge 4).
On 8 November 2022, the applicant was sentenced as follows by the trial judge:

Charge

Offence

Maximum

Sentence

Cumulation

1 Arson 15 years 5 years Base

2 Conduct endangering life 10 years 4 years 2 years

4 Assault 5 years 9 months Concurrent

5 Assault 5 years 6 months Concurrent

Total Effective Sentence: 7 years’ imprisonment

Non-Parole Period: 5 years’ imprisonment

Section 6AAA Statement: 9 months’ imprisonment on charge (5)

Other relevant orders: 381 days reckoned as pre-sentence detention

Proposed grounds of appeal

The applicant seeks leave to appeal against conviction on the following grounds:
1.The learned trial judge erred in directing the jury that they must find the applicant guilty of the offence of either conduct endangering life or conduct endangering serious injury (alternate charge) if they were satisfied beyond reasonable doubt that the applicant was guilty of the charge of arson.
2.The learned trial judge erred in admitting the evidence of Ms Tina [White] about the explicit sexual activity of the applicant that was made in her statement after application by the learned prosecution for a s 32 Evidence Act 2008 ruling about an identified uncharged act.

Overview of the facts

In the afternoon of New Year’s Eve 2020, the applicant attended a wedding in Warrnambool with Angela Baker. Samuel Gordon and Tina White attended the same wedding. After the wedding, the four of them returned to Ms Baker’s home. While they were there, the applicant assaulted Mr Gordon. There was conflicting evidence as to whether he assaulted him on one or two occasions. This assault was the subject of one of the assault charges (charge 5).[4] The applicant pleaded guilty to that charge.
[4]The applicant was sentenced for charge 5 on the basis that he punched Mr Gordon several times to the face but in a single episode: DPP v Parker [2022] VCC 1931, [7] (‘Reasons’).
The prosecution evidence at trial was that Ms White and Ms Baker intervened between the applicant and Mr Gordon, and that the applicant also assaulted Ms Baker. That assault was the subject of charge 4, of which the applicant was found guilty by the jury.
Ms Baker and Mr Gordon gave evidence that in the course of the conflict the applicant threatened to burn the house down.
After the assault on Mr Gordon, Ms Baker and Mr Gordon left the house and went to a caravan parked in the driveway. The caravan was close to the house. Ms Baker left the caravan and went to a friend’s house nearby to get help. Ms White remained with the applicant in Ms Baker’s house for a short time before also leaving and going to the caravan.
Approximately 10 to 15 minutes later, Ms White and Mr Gordon saw flames coming from the house. Mr Gordon’s evidence was that very shortly prior to seeing the flames he saw a person with a silhouette and clothing like the applicant’s run past.
Ms Baker stayed at the friend’s house for 15 to 20 minutes before returning to find her house on fire.
Ms Baker’s house was destroyed in the fire. A family dog was found deceased in a rear bedroom. Expert evidence at the trial was to the effect that the fire had been deliberately lit.
In relation to the charges of arson and the endangerment alternatives, the defence case was that the jury ought to have a doubt as to whether it was the applicant who had lit the fire. In particular, evidence was relied upon which, it was contended, suggested the possibility that Ms Baker had lit the fire herself or arranged for others to do so. Those propositions were expressly put to her in cross-examination.[5]
[5]Transcript of Proceedings, DPP v Parker (County Court of Victoria, CR-21-01050, Judge Hassan, 28 June 2022 to 7 July 2022) (‘T’) 81.

The judge’s charge on the endangerment alternatives

Proposed ground 1 contends that the learned trial judge erred in directing the jury that they must find the applicant guilty of the offence of either conduct endangering life or conduct endangering serious injury if they were satisfied beyond reasonable doubt that the applicant was guilty of the charge of arson. The judge did give the jury a direction to that effect, and she repeated it a number of times in the charge.
The first such direction which the judge gave the jury was as follows:
Now, after having said all that, in this case, logic dictates that if you are satisfied beyond reasonable doubt that Adam Parker was the person who committed the arson, you will also be satisfied that Adam Parker committed the offence of either reckless conduct endangering life or reckless conduct endangering serious injury. That is because if you find beyond reasonable doubt that Adam Parker was the person who lit the fire, it is an act with such dangerous and unpredictable consequences and it occurred in circumstances where he was at least indifferent to the whereabouts of Sam Gordon and Tina White, in these circumstances he did expose them to an appreciable risk of death or serious injury. You will only need to decide if the risk they were exposed to was a risk of death or a risk of serious injury and I will explain that to you more fully later.
So just to recap; there are multiple charges, you consider each charge on the basis of the evidence that relates to it but in this case logic dictates if you find Mr Parker guilty on charge 1, the arson, the person who lit the fire, then you would necessarily find him guilty of either charge 2 or charge 3. Do you understand, members of the jury? The corollary is if you were to find him not guilty of the arson, that you were not satisfied that the prosecution have proven beyond reasonable doubt that he was the person who started the fire, the corollary or the alternative is that you would necessarily find him not guilty of both charges 2 and 3.[6]
[6]T308.
The substance of this direction was repeated another four times in the course of the charge.[7]
[7]T337–8; T340–2; T343; T359–60.

Elements of the endangerment offences

The relevant elements of the reckless endangerment offences were:
•The accused committed the conduct alleged.
•The accused committed that conduct voluntarily.
•The conduct endangered another person’s life, or placed another person in danger of serious injury.
•The accused acted recklessly.
•The accused acted without lawful authority or excuse.[8]
[8]Judicial College of Victoria, Criminal Charge Book [7.4.14]–[7.4.15].
The element of endangerment required the jury to be satisfied that a reasonable person would have realised that the conduct was placing, or may have been placing, another person at risk of death, or serious injury.[9]
[9]Ibid.
The element of recklessness, by contrast, addresses the accused’s state of mind, not that of a reasonable person. In order to satisfy this element, the jury had to be satisfied that the accused had seen that an appreciable risk of death, or serious injury, was a probable consequence of the conduct.[10]
[10]Ibid.
Charge 2 on the indictment specified Mr Gordon and Ms White as the persons whose lives were placed in danger. The alternative charge 3 on the indictment specified the same two persons as those placed in danger of serious injury.
The judge directed the jury that a conviction on either charge 2 or charge 3 had to follow if they were satisfied beyond reasonable doubt that the applicant had lit the fire because this was a conclusion that ‘logic dictates’. The conclusion which the judge considered logic dictated was said to be based upon the fact that the act in question had dangerous and unpredictable consequences, and that ‘it occurred in circumstances where he was at least indifferent to the whereabouts of Sam Gordon and Tina White’.
As will be seen, in detailed discussions which the trial judge had with trial counsel, counsel for the prosecution (without hesitation) and counsel for the defence (after some initial resistance) accepted the correctness of the judge’s analysis.
On the hearing of this application, the respondent relied upon defence counsel’s acceptance of the judge’s analysis.
Before addressing the interactions between the trial judge and counsel on this issue, it is necessary to review the evidence at trial on the matters which were potentially relevant to the question of whether a reasonable person would have realised that lighting the fire was placing, or may have been placing, another person at risk of death or serious injury, which I will call ‘the endangerment element’; and the question of whether the accused had seen that an appreciable risk of death or serious injury was a probable consequence of lighting the fire, which I will call ‘the recklessness element’.

Evidence relevant to the endangerment element and the recklessness element

The house which was destroyed in the fire was a brick veneer, single storey freestanding house. The house had a lounge room or living room, a short hallway at the front door, a second hallway, three bedrooms and a walkthrough kitchen. The house was cluttered and was not large.[11] In the driveway of the house there was a caravan, approximately one to one and a half metres from the side of the house.[12]
[11]A detailed description of the house was given by a police officer from the Victoria Police Forensic Services Centre, Ms Laura Noonan, at T96–7. Photographs were tendered showing the interior of the house after the fire, and the exterior showing the position of the caravan.
[12]T216.
Expert evidence given at the trial, which in the end was uncontroversial,[13] was that the fire was deliberately lit, and that there were at least two points of ignition, with the possibility of a third. The two definite points of ignition were in the second hallway, and in what was described as the south-eastern bedroom.[14] There was a third possible point of ignition near the front door.[15] There was no fire damage to the caravan.[16]
[13]T238.
[14]T97–100.
[15]T101–4.
[16]T96.
The applicant did not give evidence, and there was no record of interview tendered. The evidence of what occurred on the night was thus relevantly confined to the three other people present in the house, being Ms Baker, Ms White, and Mr Gordon.
All of the occupants in the house that night had been drinking during the afternoon and evening. The evidence was that the applicant was intoxicated.[17] There was evidence that Mr Gordon had used ‘ice’ on New Year’s Eve and on the day before.[18] Mr Gordon also said his memory had been poor for ten years as a result of concussions which he had received in the past when he was a boxer and as a result of multiple car accidents.[19]
[17]T31. In her sentencing Reasons, the judge specified intoxication as part of the explanation for the offending: at [19].
[18]T204.
[19]T181.
Given the judge’s statement that one of the critical factors in her relevant conclusion was that the applicant had been ‘at least indifferent’ to the whereabouts of Mr Gordon and Ms White, it is necessary to review the evidence concerning the whereabouts of Mr Gordon and Ms White, both earlier in the evening and shortly prior to the fire.
As earlier referred to, Ms Baker, Mr Gordon, Ms White and the applicant all returned to Ms Baker’s home on New Year’s Eve 2020 after attending a wedding in the afternoon. Ms Baker went to the wedding with the applicant.[20] Mr Gordon and Ms White were in a relationship at that time.[21]
[20]T17.
[21]T122, 177.
The evidence as to the movements of the four participants throughout the evening prior to the period shortly before the fire was as follows.
Ms Baker said that after the four had gathered at her house, the applicant went out alone to get alcohol, leaving Mr Gordon, Ms White and herself in the house.[22] Upon the applicant’s return, there was conflict between the applicant and Mr Gordon, prompted, Ms Baker suggested, by jealousy on the part of Mr Gordon as Ms White’s boyfriend. This resulted in what Ms Baker said was the first assault by the applicant on Mr Gordon.[23] As a result of this first assault, Ms Baker left the house with Mr Gordon. They were gone, she said, for ‘a couple of hours’, visiting friends of hers and unsuccessfully looking to buy ‘ice’.[24] Ms Baker’s evidence was that on their return, the applicant assaulted Mr Gordon for a second time and assaulted her as well.[25]
[22]T18–19.
[23]T19–21.
[24]T22–4. In cross-examination, she agreed they were gone for ‘roughly’ three hours: T35.
[25]T24–5.
Ms White’s evidence was that Mr Gordon went with the applicant to get alcohol earlier in the evening and that they were gone for an hour or so.[26] Ms White said that after their return, Ms Baker and Mr Gordon left together. Initially, she could not recall why,[27] but eventually she said that she thought there was an ‘altercation’ and that the applicant had hit Mr Gordon.[28] She said that Mr Gordon and Ms Baker were gone for about three hours.[29] There was an altercation when they returned, and Mr Gordon was hit by the applicant again.[30] Ms White suggested that the reason for the second assault was accusations being made by the applicant about Ms Baker and Mr Gordon having had sex while they were away.[31] Ms White said that during this assault Ms Baker ‘got pushed’ by the applicant.[32]
[26]T124–6.
[27]T126.
[28]T127–8.
[29]T128.
[30]T138.
[31]Ibid.
[32]T140.
As already indicated, Mr Gordon frankly explained that he had significant problems with his memory as a result of prior concussions.[33] Like Ms White, and inconsistently with Ms Baker, Mr Gordon said that he went with the applicant when the applicant left the house to obtain alcohol.[34] Mr Gordon recalled leaving again later with Ms Baker, but he explained that his memory was very poor and he could not remember the circumstances. He said that he and Ms Baker were away for roughly an hour.[35] Upon their return, Mr Gordon said that there was an argument about alcohol and that he was assaulted by the applicant.[36] Unlike both Ms Baker and Ms White, Mr Gordon’s evidence was that he was assaulted on one occasion only, not on two, although his memory of why he left with Ms Baker was, he said, very poor.
[33]T181.
[34]T179.
[35]T180–1.
[36]T182–3.
The evidence given as to the movements of the relevant persons shortly prior to the fire was as follows.
Ms Baker’s evidence was that after what she said was the second assault on Mr Gordon, she ‘grabbed’ him and put him in the caravan. She said she left him there and went to a friend’s nearby to make a call for help. She was at the friend’s for about 15 to 20 minutes, and when she returned, her house was on fire.[37]
[37]T25–8.

Ms White said that after the second assault on Mr Gordon, Ms Baker took him outside. She said she was ‘a bit unsure as to where they went’.[38] She was left alone with the applicant.[39] She was unable to remember what the applicant had said or done while she was with him.[40] She said she then also left the house and went to the caravan, looking for Mr Gordon and Ms Baker. She found Mr Gordon alone in the caravan and stayed with him there for 10 to 15 minutes.[41] The last she saw or heard of the applicant was when they were both in the lounge room, before she left, going out the front door.[42] She left the caravan when she saw flames coming out of the front door of the house.[43]
[38]T143.
[39]Ibid.
[40]T145.
[41]T145–6.
[42]T147.
[43]T149.
In cross-examination, Ms White agreed that Ms Baker and Mr Gordon had left together, and that Ms Baker had not said that she was taking Mr Gordon to the caravan.[44] She agreed that she and Mr Gordon kept quiet in the caravan because they did not want the applicant to find Mr Gordon.[45]
[44]T165.
[45]T166.
Mr Gordon’s evidence was that after the applicant assaulted him, the applicant ran out the back door of the house. Neither Ms Baker nor Ms White gave that account. He said that Ms Baker pulled him outside and told him to hide in the caravan.[46] He said Ms White did not come into the caravan straight away, but she eventually joined him there.[47] He said that he saw a figure matching the applicant’s description run past about 30 seconds before they noticed the fire.[48]
[46]T186.
[47]T187.
[48]T188.
Evidence was given by both Mr Gordon and Ms Baker that the applicant, in the course of the various altercations, had threatened to burn the house down.[49] In Mr Gordon’s cross-examination, the following interchange occurred:
Mr Parker did not say, ‘I will burn the house down’, did he?---I believe he already did, that’s why we had to get out of the house.[50]
[49]T27–30, 62, 183–5, 189.
[50]T208.
The evidence was that all of the interactions with the applicant inside the house occurred in the lounge room.[51]
[51]T139, 147, 179.
The following relevant conclusions about the whereabouts of Mr Gordon and Ms White emerge from this review of the evidence:
•Shortly before the fire Mr Gordon left the house with Ms Baker and was taken by her into the caravan. They did not say where they were going. Earlier in the evening, Mr Gordon had left the house at least once and probably twice. He and Ms Baker had left the house together for a period of hours and (among other things) had visited friends of Ms Baker. Earlier, he had probably left the house with the applicant for a period to obtain alcohol.
•Ms White stayed in the lounge room of Ms Baker’s house throughout the night until she left to look for Ms Baker and Mr Gordon. Ms White did not know where they had gone. She left the house through the front door. She found Mr Gordon in the caravan.

Analysis of the evidence as to the endangerment element and the recklessness element.

The judge was obviously correct in the observation she made that setting a domestic house on fire was an act with dangerous and unpredictable consequences. It was this circumstance, combined with the circumstance that, according to the judge, the applicant was ‘at least indifferent’ to the whereabouts of Mr Gordon and Ms White, that, in the judge’s view, meant that it necessarily followed that the applicant was guilty of one of the reckless endangerment charges, if he was guilty of the arson.
In my opinion, on the evidence, it did not inevitably follow that, if the jury were satisfied beyond reasonable doubt that the applicant had lit the fire, they would necessarily be also satisfied that the recklessness element was established, namely, that the applicant had seen that an appreciable risk of death, or serious injury, to Mr Gordon and Ms White was a probable consequence of the conduct. On the evidence, a jury may well have reached that conclusion, but it was not a conclusion that necessarily followed from the conclusion that the applicant had lit the fire.
In my opinion, it was open to the jury to conclude that they had a reasonable doubt as to whether the recklessness element had been established, even if they found the applicant had lit the fire. In other words, it was open to them to conclude that there was a reasonable possibility that the applicant had not seen that an appreciable risk of death, or serious injury, to Mr Gordon and Ms White was a probable consequence of his conduct. The factors which may have led a jury to so conclude (assuming they were satisfied he had lit the fire) include the following:
•There was no-one present within the house, other than the applicant, when he lit the fire.
•Ms Baker and Mr Gordon had left the house without saying where they were going. Earlier in the night, they had gone away for some hours, visiting other houses.
•Ms White had left the house through the front door.
•Ms White and Mr Gordon were in the caravan and were anxious that the applicant should not discover that they were there.
•In order to light the fire, the applicant had to go to at least two, and perhaps three, locations within the house. The house is not large. The three locations were the second hallway, a bedroom, and near the front door. The applicant knew there was no-one, other than himself, in each of those locations; and he also must have known there was no-one in the lounge room after Ms White left.
•The caravan was separate from the house, even though it was close to it. There was no fire damage to the caravan, so it was sufficiently separate to avoid damage in the fire which did occur.
•The applicant was intoxicated.[52]
[52]Intoxication is potentially relevant to subjective state of mind in this context: LexisNexis, Bourke’s Criminal Law Victoria (online at 18 March 2024) [7480.85].
Clearly, the judge was on firmer ground in relation to the endangerment element, which is judged objectively. For present purposes, however, my relevant conclusion is that the judge was not correct in asserting that the recklessness element was necessarily established if it were accepted that it was the applicant who had lit the fire.
It is necessary to now address the relevant discussions between the trial judge and counsel on this issue.

Discussion of the recklessness element

The observation was made earlier that the defence case in relation to the arson and endangerment charges was that the jury ought to have a doubt as to whether it was the applicant who had lit the fire. On those charges, that was the only issue which defence counsel addressed in final submissions.[53] Indeed, only a brief passing reference was made to the assault charge, before returning again to the question of ‘the identity of the person who started the fire’.[54]
[53]T285–91.
[54]T290–1.
The last prosecution witness was to conclude their evidence on Tuesday 5 July 2022. Prior to adjourning on Monday 4 July 2022, the judge began addressing with counsel the matters that were in issue and upon which she would be required to direct the jury.
The judge referred to the issue of ‘identity’ (who lit the fire) and asked whether anything else was in issue. There was then a discussion with counsel for the defendant about the expert evidence, at the conclusion of which counsel for the defendant accepted that the evidence established that the fire was intentionally lit. In response to the proposition put by the judge that ‘the only issue with the fire is who lit it’, defence counsel agreed.[55] The judge then addressed with counsel for the defendant whether ‘endangerment’ and ‘recklessness’ were in issue, and an interchange occurred involving counsel for the prosecution and the defence about an agreement between them, with both counsel advising the judge they needed to speak to each other.[56]
[55]T238.
[56]T239–0.
The discussion that afternoon concluded with the judge saying:
So there’s going to be no dispute the fire was deliberately lit by someone, just not him. And you will inform me tomorrow about this issue of recklessness.[57]
[57]T241.
The following morning the final prosecution witness concluded their evidence and defence counsel indicated that the defence was not calling evidence. Her Honour then addressed the matters in issue with counsel in the absence of the jury.
After again stating that ‘identity’ was in issue, the judge said:
Now, let’s go to the issue that we were discussing later yesterday. If the jury are satisfied that Mr Parker lit the fire, does it follow that — and it seems to me it does, but I’ll hear what you have to say — it follows in a matter of logic that there has to be a conviction on either charge 2 or 3. If he lit the fire, he endangered Ms White and Mr Gordon. The only question for the jury will be an assessment of whether their life was at risk, or whether it was just serious injury.[58]
[58]T255.
The prosecutor agreed with the position as suggested by the trial judge. When defence counsel was asked for his position, he responded:
My position is that I’m leaving recklessness to the jury, and disputing - - -[59]
[59]Ibid.
At that point, the judge interrupted him to ask how it was contended that the conduct was not reckless.
The judge then said the following:
Listen to this, and I just want your comment on this. So I have to direct the jury on multiple charges, which I’ll do, and I’ll give a standard direction. This is what I was proposing to say.
However, in this case, logic dictates that if you are satisfied beyond reasonable doubt that Adam Parker was the person who committed the arson, you will be satisfied also that Adam Parker committed the offence of either reckless conduct endangering life, or reckless conduct endangering serious injury.
This is because, if you find he has lit the fire, it is an act with such dangerous and unpredictable consequences, and it occurred in circumstances where he was at least indifferent to the whereabouts of Mr Gordon and Ms White. In these circumstances, he did expose them to an appreciable risk of death or serious injuries. You will only need to decide if the risk they were exposed to was a risk of death, or a risk of serious injury.[60]
[60]T256.
The trial judge then asked defence counsel how he contended that ‘recklessness isn’t made out’ if it were found beyond reasonable doubt that the applicant had lit the fire in circumstances where he was at least indifferent to the whereabouts of people who had been in the house.[61] Defence counsel referred to ‘the decision in Crabbe’[62] before saying, ‘I can’t argue against it, no’.[63]
[61]T256.
[62]A reference to R v Crabbe (1985) 156 CLR 464; [1985] HCA 22.
[63]T257.
The judge then said: ‘I’m not going to leave recklessness to the jury’.[64]
[64]Ibid.
The prosecutor agreed. The judge then said that arson is ‘an inherently dangerous and unpredictable act’, in response to which defence counsel said: ‘Yes’.[65]
[65]Ibid.
The trial judge stated that she intended to direct the jury in the terms she had indicated. The prosecutor agreed with that course and, in that interchange, defence counsel remained silent. Shortly after, the following interchange took place:
HER HONOUR: I have to give them multiple charge direction and I will, as a matter of logic, direct them about the relationship between charges 1, 2 and 3. No sole evidence direction, no Liberato direction. Accused not giving evidence? [Defence counsel]?
[DEFENCE COUNSEL]: Yes. Yes, that’s a direction that you do give
under - - -
HER HONOUR: Prior inconsistent statements?[66]
[66]T258.
The judge did give a separate consideration direction,[67] as she had foreshadowed that she would.
[67]T307.
The judge gave the jury the direction now the subject of complaint (quoted in full earlier) for the first time on Tuesday 5 July 2022.[68] Not long afterwards, she gave the jury a break and asked counsel whether there were any exceptions. Defence counsel did not take exception to the direction which had been given and which is now the subject of complaint.[69] After some discussion, counsel for the defendant asked whether the separate consideration direction had been given, which prompted the following interchange:
HER HONOUR: Yes, I have, and I — but I gave that extended direction about how in this case logic demands that if you are guilty on
charge 1 - - -
[DEFENCE COUNSEL]: Yes.
HER HONOUR: - - - or not guilty on charge 1, there has to be a follow-through effect in respect of 2 and 3.
[DEFENCE COUNSEL]: No, there’s no problem with that. That’s not what I’m going to.[70]
[68]T308.
[69]T324.
[70]T328–9.
Notwithstanding the various interchanges about what was in issue, the judge in the charge did go through each of the five elements of the endangerment offences, accurately directing the jury in relation to both the endangerment element and the recklessness element.[71] In that context, however, she twice repeated the substance of the direction she had given earlier, saying that endangerment ‘is not being put into dispute’ and that recklessness, if he did the act, was also ‘not really disputed’.[72]
[71]T339–42.
[72]T340–1.
The trial judge was conscious of the fact that she had repeated the direction now complained of a number of times, observing to the jury at one point that she had said it ‘ad nauseam’.[73]
[73]T343.
After the jury left the Court on the afternoon of Tuesday 5 July, the judge asked whether there were any exceptions. Defence counsel said there were no exceptions.[74] He then went on to make some submissions about matters he requested the judge to refer to in summarising the submissions he had made.[75]
[74]T346.
[75]T346–9.
On Wednesday 6 July 2022, one of the jurors was sick. The matter did not proceed that day. There was a discussion with counsel where no presently relevant matters were raised.
On Thursday, 7 July 2022, the trial judge resumed her charge by repeating again, at the outset, the direction of which complaint is now made. On that occasion, she added:
So to be clear, it is not in dispute that he endangered them and it is not in dispute that he was reckless, but what you need to decide, what is a matter for your determination is essentially the nature of the risk he created.[76]
[76]T360.
That was said, of course, in the context of the judge having repeatedly made it clear that the relevant issue which was in dispute was whether the prosecution had proved beyond reasonable doubt that it was the applicant who had lit the fire.
The judge concluded her charge and the jury retired to consider their verdict on the morning of Thursday 7 July. The judge asked whether there were any exceptions. Defence counsel said there was an exception, and he raised a concern about the summary the judge had given the jury of his closing submissions. No exception was taken to the direction of which complaint is now made.[77] The judge brought the jury back to address the issue defence counsel had raised.[78]
[77]T368.
[78]T370.
The jury returned with guilty verdicts on charges 1 (arson), 2 (reckless endangerment of life) and 4 (assault of Ms Baker) on the afternoon of Thursday 7 July 2022.

Relevant provisions of the Jury Directions Act

The express statutory purposes of the Jury Directions Act2015 include the simplification and clarification of the issues that juries must determine, the simplification and clarification of the trial judge’s duties in giving jury directions, and the clarification of the fact that it is one of the duties of legal practitioners to assist the trial judge in deciding which jury directions should be given (s 1).
Amongst the express statutory ‘guiding principles’ set out in the Act is a recognition that it is the responsibility of the trial judge to determine the matters in issue in the trial, and that one of the duties of legal practitioners is to assist the trial judge in that determination (s 5).
The Jury Directions Act contains detailed provisions in relation to directions. Part 3, containing ss 9 to 17, is headed ‘Request for directions’. Section 9 sets out the purposes of those provisions. Amongst those express statutory purposes is to assist the trial judge to discharge his or her duty to determine the matters in issue in the trial, and to ensure that legal practitioners discharge their duty to assist the trial judge in that determination.
Section 10 provides that Part 3 does not apply to ‘general directions’ (as defined), or to directions the trial judge is required to give under any legislative provision. The definition of ‘general directions’ (s 3) provides that they are directions ‘concerning matters relating to the conduct of trials generally’, including a specified list of such directions. The direction complained of in this application does not fall within the s 10 exclusions. Part 3 does apply to this direction.
Section 11 of pt 3 provides (among other things) that after the close of evidence and before final address, defence counsel must ‘inform the trial judge whether he or she considers’ that specified matters are or are not in issue, the first of which is ‘each element of the offence charged’.
Section 12 provides that after the matters in issue have been identified in accordance with s 11, prosecution and defence counsel ‘must each request that the trial judge give, or not give, to the jury particular directions in respect of’ specified matters, the first of which is ‘the matters in issue’.
Section 14 provides that the trial judge must give the jury a requested direction ‘unless there are good reasons for not doing so’. In determining whether there are good reasons for not doing so the trial judge must have regard to the evidence in the trial, the manner in which the respective cases were conducted, whether the direction concerns a matter not raised or relied upon by the accused, and whether the direction would involve the jury considering the issues in a manner different from the way the accused has presented the case.
Section 15 provides that, subject to s 16, the trial judge ‘must not give the jury a direction that has not been requested under section 12’.
Section 16 provides that the trial judge must give the jury a direction if the trial judge considers that there are ‘substantial and compelling reasons for doing so even though the direction has not been requested under section 12’. Before doing so, the judge must inform the parties and invite submissions. Section 17 provides that the earlier legislative abolition of what was known as the rule in Pemble v The Queen[79] does not limit the s 16 obligation.
[79](1971) 124 CLR 107; [1971] HCA 20.

Applicant’s submissions on proposed ground 1

The applicant’s written case contended that the direction given by the judge was erroneous because ‘the element of endangerment was still a matter for the jury to assess to the relevant standard of proof beyond reasonable doubt’, and that the directions given removed that element from the jury’s consideration. It was submitted that it was ‘reasonably open for the jury alone to assess whether they were satisfied beyond reasonable doubt about the alleged linkage between lighting the fire in the house and endangerment of any persons in the caravan’.
In oral submissions, counsel for the applicant, who was counsel at the trial, submitted that he had allowed the issue to ‘slip away’ before the trial judge, but that he now takes a ‘different view’. He submitted that the trial judge’s direction, said to be based upon ‘logic’, removed two elements of the relevant offences from the jury’s consideration. He relied upon what he said was the effective removal of both the endangerment element and the recklessness element, and said that his primary argument was based upon the endangerment element. He submitted that it was open to the jury to find that both of these elements had not been established beyond reasonable doubt, as everyone had left the house at the time the fire was lit, and the applicant knew that. He submitted that while the caravan was close to the house, it was not connected to the house.

Respondent’s submissions on proposed ground 1

On behalf of the respondent it was submitted in the written case that the ‘battleground’ in the trial was the issue of identification. Reliance was placed upon defence counsel’s duties under the Jury Directions Act to identify the matters in issue. It was submitted, relying upon the High Court decision in Huynh v The Queen,[80] that it was the trial judge’s duty to decide what the real issues in the case were, and to direct the jury only on so much of the law as they needed to know to guide them on those issues.
[80](2013) 87 ALJR 434, 441 [31] (the Court); [2013] HCA 6.
It was submitted that endangerment had not been put in dispute, and that that reflected ‘the reality’ that it was ‘inevitable’ that that element would be satisfied if it were established that the applicant had lit the fire.
It was submitted that ‘even if the judge’s direction was considered to be in error’, there had been no substantial miscarriage of justice ‘having regard to defence counsel’s consent to the removal of the element of endangerment from the jury’s consideration’. For that proposition the respondent’s written case cited a passage from the majority judgment in the High Court case of Kalbasi v Western Australia (‘Kalbasi’).[81] In the written case the respondent then added the words: ‘and given that a conviction on charge 2 was inevitable’.
[81](2018) 264 CLR 62; [2018] HCA 7 (‘Kalbasi’). The paragraph cited is at [58].
In oral submissions, senior counsel for the respondent emphasised that the trial had been run on the single issue of ‘identity’. When challenged with the proposition that the judge had been in error to describe the relevant conclusions as being dictated by logic, senior counsel emphasised that the relevant issue was the way in which the case had been run. In substance, it was submitted, what the trial judge was saying was that these matters were not in issue. It was said to be a ‘short inference’ from finding that a person had lit a domestic house fire to finding relevant endangerment and recklessness. Reliance was placed upon the Jury Directions Act, but it was submitted that even before that Act, the High Court had made it clear that a judge should only give the jury directions on matters in issue.
Senior counsel for the respondent accepted that there was no evidence that the applicant knew where anybody was at the time the fire was lit, as all of the previous occupants had left without saying where they were going.

The relevant issue — substantial miscarriage of justice

Consequent upon the discussions between the trial judge and counsel as set out, the trial judge and counsel all proceeded on the basis that a conclusion as to guilt on one or other of the endangerment charges inevitably followed from a conclusion that the accused lit the fire. In other words, they proceeded on the basis that proof of the charge 1 conduct inevitably led to proof of the endangerment element and the recklessness element on either charge 2 or 3.
In the relevant discussions at the trial, and in the submissions before us, the endangerment element and the recklessness element were often not clearly differentiated, and were sometimes conflated. These elements, however, raise significantly different issues.
The endangerment element is assessed objectively and requires the jury to be satisfied beyond reasonable doubt that a reasonable person committing the same conduct as the accused would have realised that he was placing another at risk of death, or serious injury, or that he may have been placing another at that risk. The observation was made earlier that the judge’s analysis was based on firmer ground in relation to this element. This element is satisfied if a reasonable person ‘may’ have realised he was placing another at risk. I am not persuaded that the judge’s analysis, in the circumstances of this case, was erroneous on this element. A house fire is inherently dangerous and unpredictable, as the judge said. Mr Gordon and Ms White had left the house, but a reasonable person would have realised that they could still be close by, or could return, and that his conduct ‘may’ be placing them at a relevant risk.
The recklessness element is assessed subjectively and requires the jury to be satisfied beyond reasonable doubt that the accused saw that an appreciable risk of death, or serious injury, was a probable consequence of his conduct. Not only must the jury be satisfied of what the accused in fact subjectively saw, but they must be satisfied that he saw that the risk was probable. The judge’s analysis was to the effect that proof the accused lit the fire inevitably led, in the circumstances of this case, to proof of this subjective state of mind. For the reasons already explained, in my opinion, the judge’s analysis which led to this conclusion was flawed, and the conclusion itself was erroneous. It was open to the jury to have a reasonable doubt as to whether the appellant subjectively saw that an appreciable risk of the relevant kind to Mr Gordon and Ms White was probable.
What I consider to have been the erroneous conclusion led to a position where, while the jury were given directions on each of the elements of the reckless endangerment offences, consideration of the recklessness element which, on the evidence, might have been seen as open to reasonable doubt, was removed from their consideration.
This all occurred with the agreement of both counsel for the prosecution and counsel for the defence, but at the instigation of the trial judge.
Section 276(1)(b) and (c) of the Criminal Procedure Act2009 provides that this Court must allow an appeal against conviction where there has been a substantial miscarriage of justice ‘as the result of an error or an irregularity in, or in relation to, the trial’, or where there has been a substantial miscarriage of justice ‘for any other reason’.
The issue is whether what occurred here amounted to a substantial miscarriage of justice.
In Baini v The Queen French CJ, Hayne, Crennan, Kiefel and Bell JJ said that there is no single universally applicable description which can be given for what is a substantial miscarriage of justice for the purposes of s 276(1)(b) and (c). Ultimately, it requires a judgment to be made.[82]
[82](2012) 246 CLR 469, 479 [26]; [2012] HCA 59.
Notwithstanding the brief assertion in the respondent’s written case that conviction on charge 2 was inevitable, no substantive submission to that effect was advanced in the written case or orally, other than by way of reliance on counsel for the defence’s concession. For the reasons already explained I do not accept that conviction on charge 2 was inevitable. This is not a case where there is no substantial miscarriage of justice because conviction on the relevant charge was inevitable.[83]
[83]Ibid 480 [30] (French CJ, Hayne, Crennan, Kiefel and Bell JJ).
Of critical importance in this application are the provisions of the Jury Directions Act which apply in this State and which constitute a statutory re-formulation of the duties of counsel and the trial judge in identifying the relevant issues. Authorities concerning a judge’s duty to instruct the jury, and the consequences of errors or omissions in that context, decided otherwise than in the context of the Jury Directions Act, must be treated with considerable caution. Nevertheless, the respondent relies on one such authority, Kalbasi, and consideration of that authority is of assistance, before turning to a consideration of what occurred by reference to Jury Directions Act.

Kalbasi

In Kalbasi, the appellant had been convicted of attempting to possess prohibited drugs with intent to sell or supply them to another, contrary to ss 6(1)(a) and 33(1) of the Misuse of Drugs Act 1981 (WA). Section 11 of that Act operated to deem a person in possession of a specified quantity of a prohibited drug, subject to proof to the contrary, to possess it with intent to sell or supply to another. Section 11 did not, however, apply to attempts to possess.
The police had intercepted a quantity of methylamphetamine in plastic bags and replaced it with rock salt. The evidence was that the appellant was present when the bags were opened and certain preparations directed at sale were commenced, but that after sampling what was in the bags he had left. The appellant was charged with an attempt to possess because of the police substitution of the methylamphetamine with rock salt.
At trial, the appellant’s case was that he did not have control (and thus, possession) over the ‘drugs’. When questioned by the judge, defence counsel agreed that the jury could be directed that there was no contest on the element of intention. This was based on an erroneous belief, held by defence counsel and the judge, that the deeming provision in s 11 applied to attempts to possess.
An appeal to the Court of Appeal of Western Australia was dismissed, on the basis that despite the error there had been no substantial miscarriage of justice. The applicable legislation was s 30 of the Criminal Appeals Act 2004 (WA). Relevantly, the Act provided that the Court of Appeal must allow an appeal where there was a ‘wrong decision on a question of law by the judge’ or ‘there was a miscarriage of justice’. But subject to a provision (once existing also in Victoria and usually referred to as ‘the proviso’) whereby even if a ground of appeal were decided in favour of an offender, the Court may dismiss the appeal ‘if it considers that no substantive miscarriage has occurred’.
On appeal to the High Court the appellant contended that if his trial had not been conducted on the mistaken understanding of s 11, it would have been necessary for the prosecution to exclude the reasonable possibility that he was in possession of a small quantity of the ‘drugs’ as a sample with a view to purchase for his own use.
Relying upon an affidavit of defence counsel stating that he would not have acceded to the direction to the jury if he had recognised that s 11 did not apply to the charge, the appellant contended that he had effectively been tried for a lesser offence of possession simpliciter. The appellant sought to draw analogy with a kind of case (‘an error of the kind in Quartermaine v The Queen’) in which the judge omits properly to direct the jury on an element of liability with the result that the jury returns a verdict of guilty of a particular crime without having considered whether that crime was committed.[84]
[84]Kalbasi (2018) 264 CLR 62, 81 [51]–[52], 82 [54] (Kiefel CJ, Bell, Keane and Gordon JJ); [2018] HCA 7, citing Quartermaine v The Queen (1980) 143 CLR 595; [1980] HCA 29.
In rejecting that submission, a majority of the High Court (Kiefel CJ, Bell, Keane and Gordon JJ) said, in the passage cited by the respondent in the written case:
In a trial where no issue arises as to proof of a particular element of the offence charged, and the accused through his or her counsel consents to the removal of that element from the jury’s consideration, then it may be that no miscarriage of justice at all will have occurred because of that removal.[85]
[85]Kalbasi (2018) 264 CLR 62, 83 [58]; [2018] HCA 7.
In Kalbasi the majority did not say that a miscarriage of justice will not have occurred if the accused through his or her counsel consents to the removal of an element from the jury’s consideration — only that it may be that no miscarriage of justice will have occurred. Immediately before the passage cited by the respondent and quoted above, the majority said ‘the question is always whether there has been a substantial miscarriage of justice, and the resolution of that question depends on the particular misdirection and the context in which it occurred’.[86]
[86]Ibid 83 [57].
A crucial basis upon which the majority in Kalbasi held that there was no substantial miscarriage of justice was that, in their view, there was no basis in the evidence or in the way the appellant’s case was advanced at trial which left open that he may have been in possession of some lesser part of the substitute ‘drugs’ with a view to purchase for his own use.[87]
[87]Ibid 84 [60].
Gageler J dissented. He observed that the ‘ultimate question ordinarily to be addressed’ in the application of the proviso is whether the jury’s verdict might have been different had the error not occurred.[88] In addressing that question, he said, the Court of Appeal was entitled to take into account the way the parties’ cases had been conducted, and the directions the jury had been given.[89]
[88]Ibid 85 [64].
[89]Ibid 88–9 [74].
The trial judge had directed the jury that a person can possess something temporarily and even for a limited purpose. He gave the example of someone who borrows a book.[90]
[90]Ibid 90–1 [78]–[79].
For Gageler J, these directions left open the possibility that the jury could have found the appellant guilty of possession on a basis inconsistent, or even ‘mutually exclusive’, with an intention to sell or supply.[91] Thus, he said:
[O]nce Mr Kalbasi was found to have possessed the obviously commercial quantity of what he believed to be methylamphetamine, it was not ‘inconceivable’ that the jury could not have been satisfied beyond reasonable doubt that he possessed that substance with an intention to sell or supply it to another.[92]
[91]Ibid 91 [80]–[81].
[92]Ibid 91–2 [82].
Nettle J also dissented. He said the ‘starting point’ in applying the proviso was whether, upon the whole of the record, the accused was proved guilty beyond reasonable doubt.[93] In some cases, he said, it may not be open to the appellate court to be satisfied of guilt if the processes designed to allow the jury’s fair assessment of the issues have not been followed. In each case, it is a question of degree.[94]
[93]Ibid 105 [123].
[94]Ibid 106–7 [127].
The error, he said, was failing to bring home to the jury the need to be satisfied of an essential element.[95] Whilst he accepted that a judge is not required to direct on an element not in issue, and that ‘in one sense’ the element of intention had not been in issue at trial, he said:
But here that is no answer. Counsel cannot concede a matter of law disadvantageous to the accused, especially when the ‘concession’ is the consequence of error. Saying that a trial judge is required to direct a jury on only those elements of an offence that are in issue does not mean that defence counsel’s mistaken view of the law relieves the judge of his or her responsibility to direct the jury correctly.[96]
[95]Ibid 109 [132].
[96]Ibid 109–10 [133] (citations omitted).
The judge’s direction, Nettle J said, was a ‘serious departure’ from the requirements of a fair trial. It reversed the burden of proof as to intent and undermined the appellant’s argument that it was not proved beyond reasonable doubt that he had possession.[97]
[97]Ibid 113–15 [140]–[143].
Like Gageler J, Nettle J observed that the judge’s directions on possession meant that some of the ways in which the jury may have found Kalbasi to have been in possession were inconsistent with an intention to sell or supply.[98]
[98]Ibid 111–13 [137]–[139].
Edelman J was also in dissent. He agreed with Nettle J’s conclusion that the trial judge’s direction was a ‘serious departure’ from the requirements of a fair trial.[99] He said the removal of the element from the jury in this case was a ‘fundamental defect, amounting to a serious breach of the presuppositions of the trial’. In such a case, it was neither necessary, nor appropriate, for an appellate court to attempt to determine the appellant’s guilt. To conclude otherwise, he said, ‘would be to replace a trial by jury with a trial by appellate judges’.[100]
[99]Ibid 116 [146].
[100]Ibid 121–2 [162].

Consideration of what occurred by reference to the Jury Directions Act

Counsel and the judge in this case addressed the question of what matters were in issue. But the manner in which that was done diverged in some respects from the strict wording of pt 3 of the Jury Directions Act.
Section 11 of pt 3 provides that defence counsel must ‘inform’ the trial judge whether he or she considers that specified matters, including each of the elements of the offence charged, are or are not in issue. Although defence counsel accepted the judge’s analysis, it is difficult to characterise what occurred before the trial judge as constituting defence counsel ‘informing’ the trial judge of what he considered was in issue in the relevant respect.
Similarly, while defence counsel accepted the judge’s analysis, the direction complained of was not one which was ‘requested’ by defence counsel within the meaning of s 12. The only possible ‘request’ for the direction emanating from counsel was constituted by the prosecution’s express adoption of the judge’s analysis.
In my opinion, the expressed attitude of the prosecution in adopting and supporting the judge’s analysis is properly to be characterised as a ‘request’ for the direction which the judge had formulated and which she then gave the jury. On that basis, the trial judge was required by s 14 to give the requested direction unless there were good reasons for not doing so.
If, on a proper analysis, there had been no ‘request’ for the direction complained of, s 15 of the Jury Directions Act precluded the trial judge from giving the direction, unless there were substantial and compelling reasons to do so, as provided for by s 16 of the Act.
Section 16 has been the subject of consideration by this Court, but that consideration has not addressed a situation relevantly analogous to the situation under consideration here.[101]
[101]See, eg, Gul v The Queen [2017] VSCA 153; Dunn (a pseudonym) v The Queen [2017] VSCA 371; Keogh v The Queen [2018] VSCA 145.
However, given my conclusion that the direction was founded on a flawed analysis, in my opinion, it is clear that, if there was no ‘request’ under s 12, s 16 could not apply.
If there was a ‘request’ for the direction complained of under s 12 by the prosecution, which seems to me to be the correct interpretation of what occurred, the judge was required to give the direction unless there were good reasons for not doing so. The manner in which the case had been conducted, and defence counsel’s acceptance of the judge’s analysis, were relevant matters to be taken into account. On the other hand, it was also relevant that the analysis and the consequent direction had emanated from the judge not the parties; that that analysis was flawed; and that the direction had the effect of removing an element, as to which it was open on the evidence for there to be found a reasonable doubt, from the jury’s consideration.
The issue now to be determined is whether as a consequence there was a substantial miscarriage of justice. That is what the Criminal Procedure Act provides. The Jury Directions Act is most important, and in most, if not almost all, cases, its provisions will be determinative of that issue in this context. Of course, if, in particular circumstances, the Court concludes a substantial miscarriage has occurred, the appeal must be allowed, notwithstanding the provisions of the Jury Directions Act.

Analysis — was there a substantial miscarriage of justice?

In determining whether there was a substantial miscarriage of justice, the relevant matters, in my opinion, are the following:
(1)The issue upon which the defence conducted the trial in relation to the relevant charges was who lit the fire. The defence case was that there was a reasonable doubt as to whether it was the accused.
(2)The proposal to instruct the jury that ‘logic dictates’ that a conclusion that the accused lit the fire necessarily meant that a conviction must result on either charge 2 or charge 3 emanated from the trial judge. It did not arise as a consequence of defence counsel ‘informing’ the judge that the recklessness element was not in issue. It was not a direction ‘requested’ by defence counsel. It did constitute a direction ‘requested’ by the prosecution on the basis that the prosecutor endorsed the judge’s analysis and the proposed direction which the judge had formulated.
(3)The judge’s analysis was flawed in relation to the recklessness element. In my opinion, ‘logic’ did not ‘dictate’ that a conclusion that the accused lit the fire necessarily required a conclusion that he subjectively had seen that an appreciable risk of death, or serious injury, to Mr Gordon and Ms White was a probable consequence of his conduct.
(4)Prior to the trial judge propounding the relevant analysis, defence counsel was proposing to ‘leave’ recklessness to the jury. There was tension between defence counsel advancing submissions as to recklessness and the defence case as conducted. The defence case as conducted was that there was a reasonable doubt that the applicant was the one who had lit the fire. Submissions on his state of mind if he did light the fire may have been seen as compromising that position. Nevertheless, defence counsel could have ‘left’ the issue with the jury without making detailed, or any, submissions in relation to it. That is the course he adopted in relation to the assault charge. The interchanges between the judge and defence counsel in which defence counsel conceded to the position propounded by the trial judge do not suggest that the concession was prompted by a concern that leaving the recklessness element to the jury, and having the judge direct on it without the statements about what ‘logic dictates’, would undermine the defence case as to who lit the fire.
(5)In the face of the judge’s expressed views that her analysis was correct, defence counsel changed his position and accepted the judge’s analysis. It must be said that it is implicit in the submissions made to us that defence counsel, who appeared at the trial and before us, acknowledges that this was an error on his part.
(6)The judge and both counsel then proceeded on what I consider to have been a flawed analysis.
(7)The position here is not dissimilar in some relevant respects to the position in Kalbasi. There was a mutual error of the judge and counsel. The error had the effect of removing an element of the charged offence from the jury’s consideration. Whereas the majority in Kalbasi held that on the facts of that case there had not been a substantial miscarriage of justice because there was no basis in the evidence or in the way the appellant’s case was advanced at trial which left open the possibility that the relevant element was not proved, I do not consider that that is the position here. Here, the evidence in the case did leave open the possibility that the relevant element was not proved.

If the relevant direction is characterised as one which had been ‘requested’ by the prosecution under s 12 of the Jury Directions Act, then, in the particular circumstances of this case, in my opinion, there were ‘good reasons’ for the judge not to give it, as provided for by s 14. The good reasons were that the direction, and the analysis upon which it was founded, had emanated from the trial judge, not from counsel; that the analysis was flawed; and that the direction removed an element of the offence from the jury’s consideration when the evidence in the case left open the possibility that that element had not been proved.
If the relevant direction were characterised as not being one which had been ‘requested’ under s 12, the judge should not have given it, and was indeed precluded from doing so by s 15. Section 16 could not justify the direction based on the flawed analysis.
The removal from the jury’s consideration of the recklessness element of the endangerment offences was, in my opinion, in the circumstances of this case, a substantial miscarriage of justice.
I would grant leave to appeal, allow the appeal on ground 1, set aside the conviction on charge 2, and order a new trial on that charge.[102]
[102]The prosecution would also presumably re-try the applicant on the alternative charge 3.

Proposed ground 2 — evidence of Ms White

Proposed ground 2 concerns evidence of Ms White about what occurred between her and the applicant during the period that night when Ms Baker and Mr Gordon were absent from the house for some hours. In her opening the prosecutor had described it as the applicant ‘hitting on’ Ms White.[103]
[103]T10C.
In Ms White’s statement, she had said that, apart from some kissing between them, the applicant had exposed himself to her — ‘he flopped his dick out at me’. Initially, she did not include that aspect of the encounter in her evidence-in-chief, but the prosecutor was permitted to take her to her statement after the judge granted leave under s 32 of the Evidence Act 2008. When asked whether that refreshed her memory of things happening other than kissing, Ms White responded:
Yeah, but that was about it, yeah. So it was just mucking around.[104]
[104]T138.
She then agreed that what was in her statement was true.[105]
[105]Ibid.
The applicant submits that this ‘gratuitously introduced’ evidence was not relevant and was ‘highly prejudicial’ as it was ‘inviting the jury to reason that the applicant was a sex offender’. Defence counsel had objected when the s 32 application was made.[106]
[106]T132.
Prior to granting leave under s 32, the judge heard submissions.
The relevance of the ‘flopped his dick’ evidence was debated. At first, the judge found it difficult to see any relevance.[107]
[107]T133.
The prosecutor submitted that she wished to lead the evidence because she had opened it, and because she expected the accused to give evidence and rely on what had happened between him and Ms White in his explanation of the fighting with Mr Gordon.[108]
[108]Ibid.
At that point defence counsel kept open the possibility of the applicant being called. Whether the applicant gave evidence or not, defence counsel told the judge he intended to rely on the encounter. But he said he would rely on it to the extent of the kissing only, and he submitted that the ‘flopped his dick’ part should not be admitted and should not have been opened.[109]
[109]T132–5.
Once defence counsel confirmed he would be relying on some parts of the encounter (the kissing), the judge gave leave.[110]
[110]T135.
In my opinion, the evidence complained of was entirely inconsequential.
In the context, particularly given Ms White’s own dismissive reaction, to describe it as ‘highly prejudicial’ and as inviting the jury to reason that the applicant was a ‘sex offender’ is far-fetched.
Neither counsel made any reference to the evidence in their final addresses.
I would refuse leave to appeal on this proposed ground.

Sentence

The sentence on charge 2 must be set aside consequent on the successful appeal on ground 1.
No submission was made to us as to any consequent effect on the other sentences.
The sentences and orders otherwise made should be confirmed.
The total effective sentence will then be 5 years’ imprisonment. I would fix a non-parole period of 3 years and 6 months.

---

Charge	Offence	Maximum	Sentence	Cumulation
1	Arson	15 years	5 years	Base
2	Conduct endangering life	10 years	4 years	2 years
4	Assault	5 years	9 months	Concurrent
5	Assault	5 years	6 months	Concurrent
Total Effective Sentence:		7 years’ imprisonment
Non-Parole Period:		5 years’ imprisonment
Section 6AAA Statement:		9 months’ imprisonment on charge (5)
Other relevant orders:		381 days reckoned as pre-sentence detention

[2024] VSCA 72

23 April 2024