Pears v The King

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2024 0234

RICHARD PEARS	Applicant
v
THE KING	Respondent

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JUDGES:	KENNEDY, BOYCE and KAYE JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	21 February 2025
DATE OF JUDGMENT:	14 March 2025
MEDIUM NEUTRAL CITATION:	[2025] VSCA 35
JUDGMENT APPEALED FROM:	DPP v McKinnon & Anor [2024] VCC 1356 (Judge Riddell)

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CRIMINAL LAW – Appeal – Conviction – Applicant convicted of recklessly causing injury, theft, and robbery – Whether verdicts unreasonable or cannot be supported having regard to the evidence – Where inconsistencies in evidence of two main prosecution – Where consistency as to involvement of applicant as a secondary offender – Inconsistencies not such that verdicts not open – Whether verdicts inconsistent with not guilty verdict of co-offender on a separate offence – Verdicts explicable and do not affront logic and common sense – Application for extension of time refused where application for leave to appeal would fail.

Criminal Procedure Act 2009, s 275.

M v The Queen (1994) 181 CLR 487; SKA v The Queen (2011) 243 CLR 400; Pell v The Queen (2020) 268 CLR 123; Holland v The King [2025] VSCA 5; Booth v The King [2024] VSCA 318, referred to.

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Counsel
Applicant:		Mr J Barrera
Respondent:		Mr L McAuliffe with Mr J Sivratnam
Solicitors
Applicant:	Stary Norton Halphen
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

KENNEDY JA
BOYCE JA
KAYE JA:

This application arises out of a violent assault that was allegedly perpetrated against the complainant, Renata Manning (‘Manning’) in Manning’s home in Sunshine in the early hours of the morning on 9 September 2022. The incident was witnessed by Manning’s housemate and sometimes partner, Bradley Hucker (‘Hucker’). The applicant and his co-accused — being William McKinnon (‘McKinnon’) and Boban Djurkovic (‘Djurkovic’) — were all known to Manning.
Following the incident, the applicant was charged with one charge of aggravated burglary (charge 1); one charge of intentionally causing injury (charge 2); one charge of recklessly causing injury (charge 3); one charge of theft of a Subaru car (charge 4); one charge of robbery of a Subaru car key and certain money (charge 5); and, as an alternative to charge 5, one charge of theft of the Subaru car key and certain money (charge 6). He pleaded not guilty to these charges.
In the events leading up to the alleged offending, on 2 September 2022, McKinnon attended the home of Hucker and Manning and asked for $50.00 that he claimed that Hucker owed him. Manning was present at the time and it is apparent that he did not like the fact that McKinnon came into his home, demanding money. The next day, Manning smashed two front windows of McKinnon’s house in retaliation. McKinnon contacted Hucker, and told him that Manning had smashed his windows. During the following week, McKinnon made efforts to find Manning in an attempt to get money to fix his windows.
The prosecution case was that on the evening of 9 September 2022, the applicant, McKinnon and Djurkovic were drinking at a Bottle-Mart. Later in the night, they visited the house of Hucker and Manning. The evidence of Manning was that, after being asleep on the couch, he was suddenly woken up by a punch. His evidence was that all three men punched him and that McKinnon was demanding the car keys. He described McKinnon punching him ‘repeatedly,’ while the applicant held him with his arms behind his back. He also saw McKinnon punch Hucker. Eventually, the men took his car keys and some money out of his wallet and his car was driven away. The evidence of Hucker was that McKinnon came in first and attacked Manning, applying punches, saying that he wanted money to repair his windows. His evidence as to the applicant’s involvement varied, and will be described in more detail, below. However, he did give evidence that the applicant put Manning in a headlock, slapped him, and demanded that he give his car keys to McKinnon. He also said that McKinnon punched him in the face, giving him a black eye.
The trial judge ruled on 3 June 2024 that the applicant had no case to answer on charge 1 and entered a verdict of not guilty in respect of that charge. After a 12 day trial in the County Court, the jury found the applicant guilty of charges 3, 4, and 5 and not guilty of charge 2. McKinnon was found guilty of charges 2, 4 and 5, but not guilty of charges 1 and 7. No verdict was required on charge 6 because it was an alternative charge to charge 5. Charge 7, which was a charge of common assault against Hucker, was an additional charge brought against McKinnon only.
On 30 August 2024, the applicant was sentenced to a total effective sentence of 8 months’ imprisonment with a 30 month community correction order. McKinnon was sentenced to a total effective sentence of 4 years and 5 months’ imprisonment, with a non-parole period of 3 years. Djurkovic had pleaded guilty and was separately sentenced.
The applicant seeks an extension of time in which to seek leave to appeal his conviction. The sole ground is that the verdict of the jury on charges 3, 4, and 5 was ‘unreasonable or cannot be supported having regard to the evidence.’
For the following reasons, we have refused the application for an extension of time.

Extension of time

The application for extension of time was made on 20 December 2024, over three months out of time.[1] The applicant’s explanation for the delay was that it arose due to difficult personal circumstances of counsel that delayed his consideration of the appeal.[2]
[1]Pursuant to s 275 of the Criminal Procedure Act 2009, an application for leave is to be filed within 28 days of the date of sentence. The applicant was sentenced on 30 August 2024.
[2]Affidavit of Jonathan Barrera in support of extension application, [2]–[20].
However, it is unnecessary to consider the merits of the explanation for the delay. Given that the application for leave to appeal must ultimately fail, it would be futile to grant the extension of time.

Summary of evidence

We commence with an overview of the evidence, viewed in the context of the cases of each party.
The prosecution case against the applicant was that he intentionally assisted or encouraged McKinnon in the commission of the offences. The applicant’s case was that the prosecution had not demonstrated to the requisite standard that he was criminally involved in any offending by McKinnon.
McKinnon accepted that he caused the injuries to Manning, but maintained that he was acting in self-defence. He also claimed that there was an agreement for him to take the car key and the car, and denied taking the money.
The primary witnesses in the case were Manning and Hucker, who were called by the prosecution. No evidence was led by defence for the applicant or McKinnon.

Evidence of Manning

In examination-in-chief, Manning’s evidence was that on 2 September 2022 he and Hucker were at home in the early morning and he was asleep. He said he heard ‘a lot of banging and shouting’ and three men came to his house and he saw McKinnon shouting at Hucker and asking ‘for his $50.00’. He said that the applicant was also there, but he was not doing anything. His evidence was that Hucker got punched in the head by McKinnon.
Manning said that, as a result of this incident, he took action by throwing two rocks through McKinnon’s window. He then went to stay with his girlfriend for a week because he was in the process of moving out of Hucker’s house. He said there was no other reason he went to stay with his girlfriend.
Manning said that he subsequently went back to Hucker’s address to visit on a Friday afternoon after finishing work. He drove a Subaru to the house. Hucker was going out for a while and he believed Hucker asked him to put the car in the garage. Hucker went out for about two hours, while Manning slept. After Hucker returned, he woke up and then went back to sleep, watching tv on the couch. It was a ‘really deep sleep.’
Manning was then suddenly woken up to a punch on his head on the left side. Three men were yelling at him. There were ‘multiple’ punches which were ‘non-stop’. When he opened his eyes he saw three people around him. When asked what the three men were doing he replied that they were yelling at him, trying to grab him, punching him and kicking him. He knew the men, who were Hucker’s friends: they were McKinnon, the applicant and ‘Boban’ (Djurkovic).
Manning said that the incident went on for a while, maybe a couple of hours. He was asked to give more detail about who did what. His evidence was:
I was sleeping and then I woke up to a punch. Then I remember trying to — it all happened so fast, but I think I tried to wrestle um Mr McKinnon and then I believe [the applicant] grabbed me from behind and he had me like that. So, my arms were behind my back and I couldn’t move them or defend myself and then Mr McKinnon would punch me repeatedly in the head at the front of the head, at the side of the head, the back, the top of the head. It was- was punching me in my body.
His evidence was that Djurkovic was assisting by holding him down, or punching him, while the applicant was ‘just trying to hold me still so that Mr McKinnon could punch me’. However, he believed they were all hitting him full force.
He stated that he had tried to stand up, when he was first woken, but was taken to the ground very fast and once on the floor he was lying on his tummy, almost trapped in the corner of the couch.
He said McKinnon was asking for his car keys and wallet and identification and, while looking for them, was threatening to kill him if he was not able to pay for the window; also, that if he was to call the police that he was going to die. He believed the three men took his car keys and that things were taken out of his wallet which included $120.00 and his passport. He also identified a cash card with his name on it that was his, but was no longer in his possession at the end of the night. The Subaru was also taken out of the garage, but he did not know who drove it away.
Manning was also asked about the photograph of a cat ornament from the premises and whether it played any part in what happened on the night. His evidence was that when he was sitting on the couch with the applicant ‘holding me down and in place’ that McKinnon picked up the cat ornament and held it over his head and threatened to kill him with it.
Whilst lying down on his stomach ‘being repeatedly stomped on’ by the three attackers, he also said that he was able to turn his head and see that Hucker was also being attacked by McKinnon. He said ‘he’ would punch me and then punch Hucker and then back and ‘punch and stomp and kick me’. He said that Hucker was bleeding from somewhere on his face, but he could not exactly remember where.
Manning said that it was about 30 minutes before he went to the hospital as Hucker was in shock and was not feeling up to it straight away. It then took some time before he was attended to. Subsequently, a nurse arranged for him to speak to the police by telephone. He had a number of injuries, including 10 fractured ribs, and he remained in hospital for 6 days. When asked if he was able to say who had done the most punching and kicking, he said ‘no’.
Under cross-examination:
(a)he agreed that he had said in his police statement that he remembered seeing McKinnon as the one that punched him, and that he also saw the applicant ‘was trying to hold me down’.
(b)he said that he could not actually remember whether the first punch was to the left or right side of his head.
(c)he agreed that he had smoked one to two grams of cannabis before falling into a very deep sleep, prior to the incident.
(d)he maintained that all three men came in at the same time and that the applicant was there the whole time.
(e)he denied that the applicant asked: ‘don’t you think that’s enough?’ and ‘what the hell is going on here?’ His response was: ‘Why was he holding me down then?’
(f)he rejected the suggestion that the applicant did not physically restrain him, hold him, or grab him, but agreed that he did not threaten him.
(g)he disagreed with the proposition that the applicant had already left when McKinnon was yelling about the car and the car keys, though he agreed that it was McKinnon who took his phone and his wallet. He also said that when Hucker and McKinnon went outside to sort out the cars, that the applicant and Djurkovic continued to hold him down.
(h)he denied that he agreed to provide the car to McKinnon as collateral for the broken windows.
(i)he gave various estimates of the duration of the assault. At one point he said that he was not confident how long the assault lasted because at the time it ‘went very slow.’
(j)he maintained that there was ‘multiple stomping’, even though Hucker did not give evidence of stomping.
(k)he believed that he saw Hucker hit more than one time, but he was not counting.
(l)he initially said that there was no back door, but later he said there was a back door but it was not used because the backyard was overgrown. He also suggested that he was trapped inside the house for 2 hours when Hucker had gone out.
(m)he disagreed with the suggestion that the real reason he parked the car in the garage was to hide from McKinnon, but he also accepted that he had put in his police statement that he asked to park his car in the garage because he did not want anyone to see him.

Evidence of Hucker

In examination-in-chief, Hucker gave evidence that, as at September 2022, he had been a ‘housemate’ of Manning since 2018. He knew Djurkovic, the applicant and McKinnon who all drank at a local bottle shop together.
On Friday 2 September 2022, McKinnon arrived at his house very late and drunk while he and Manning were in the loungeroom watching television. McKinnon was ‘belligerent’ about $50.00 he claimed that Hucker owed him. It was just McKinnon and a friend from Sydney who came in. McKinnon was vocally aggressive, but he was not physically aggressive at that point, and he could not remember whether he was physically aggressive later on.
McKinnon subsequently rang him up and said that his boyfriend had smashed his windows. He felt bad so he went round to give him his $50.00 and a six pack. In the meantime, Manning had disappeared for a week, though he did later admit that he smashed the windows.
On Friday 9 September 2022, Manning returned home after work. At the time he was on the verge of moving out so he had 95% of his possessions in his car, which was a Subaru. He asked Hucker if he could put the car in the garage and Hucker agreed, given the crime levels in Sunshine. Hucker then went out for about an hour and a half and returned, whereupon the two men sat on the couch in the loungeroom watching television. They both then fell asleep.
Hucker was woken up by the sound of the front door opening and saw McKinnon coming through his front door. McKinnon walked in and had ‘this big grin on his face’, he looked down and saw Manning there, and then he was ‘laying into him, into his head,’ while Manning was asleep. McKinnon started applying ‘pretty powerful punches around the head,’ while Manning was still asleep and after that he picked Manning up and threw him over a glass coffee table after which point he was flat on the floor and could not get up. It was at this point that ‘everything happened after that’ because they had him ‘pinned on the floor, he couldn’t get up’. McKinnon was cursing that he wanted the money to repair his windows in an amount of $600.00. Once on the floor, Manning was ‘belted … non-stop’ by McKinnon. He described it as ‘pretty horrific’ and that it was ‘like watching a movie but in front of you’. Hucker also described Manning having ‘the living daylights beaten out of him’.
Hucker tried to get involved, but McKinnon ended up giving him a black eye. He said that as McKinnon was hitting Manning in the face he said ‘this is for you’. He collected his eye and said: ‘this is for you not telling me that he’s here’, referring to the fact that he had not rung McKinnon to tell him that Manning was there.
Hucker’s evidence was that the only person who initially came in was McKinnon and that Djurkovic came in between 10 to 30 minutes later. He also said that the applicant later came in and was ‘barked orders’ by McKinnon. The orders were what he wanted him to do, ‘basically, to carry out the act of assault… on [Manning]’. McKinnon also took their mobile phones. However, when asked if he saw the applicant do anything, his response was ‘not really’.
At that point, the prosecutor obtained leave to question Hucker under s 38 of the Evidence Act 2008, and put his earlier statement to police of 27 September 2022 to him. In that statement, Hucker had stated that the applicant had walked in and said ‘Brendon, don’t you think that’s enough’, but McKinnon kept going, laying punches and kicking him until Manning asked him to stop and begged for some water. Once he had the water, the applicant stated that Manning had to pay for the windows and that it would be a lot easier if he just gave McKinnon the money. McKinnon then started assaulting Manning again and asked him where his car keys were, but Manning would not tell him. The statement then read:
Richie stepped in and put Renata in a head lock, saying ‘come on mate, give him your car keys so you don’t get hurt anymore. You know what he wants’…Richie then put a couple of punches into Renata’s head. He hit Renata in the right side of the head. It looked like he hit his cheek bone area.
The evidence of Hucker at this point was that these statements were correct. He stated that if he had said it ‘back then’ it was probably more ‘embedded’ in his memory. He stated that it had been more than two years and that he had ‘forgot about that part of it’. He would now say that his previous evidence that he did not see the applicant place Manning in a headlock and punch him was wrong.
Hucker’s evidence was that Manning ultimately handed over the car keys ‘by force’ and that Manning ‘had had enough’. McKinnon said he was taking the car as ‘collateral for the windows’. Hucker did not agree to him taking the car, but went out to move his car and the Subaru was driven away with another car.
When Hucker went back inside, Manning was a ‘mess’, in tears, covered in blood, and in a lot of pain. The whole loungeroom was in disarray. He suggested that Manning go to the hospital and they call an ambulance, but Manning initially resisted and it took about 45 minutes to an hour before he drove him to the hospital. There was then a fair wait until Manning was admitted, at which point Hucker returned home.
Under cross-examination by McKinnon’s counsel, Hucker accepted that he had given evidence at the committal that there was a delay of up to 40 minutes before Djurkovic came in to the premises, and that the applicant came in some 5–10 minutes after that. However, Hucker ultimately stated that Djurkovic came in about 20 minutes after McKinnon, though it could have been longer. He also agreed that he had said that he did not see the applicant doing anything during his examination-in-chief, and also at his committal. His evidence was that there was ‘just one vision’ in his mind that was that one particular person was doing the brutal force that nearly killed someone.
Under cross-examination by counsel for the applicant, Hucker agreed that he had given evidence of one particular vision which was one person assaulting Manning and that that person was McKinnon. He also agreed that he was unsure about what the involvement of the other two men was. However, he denied that he could be mistaken in his statement about what the other two did. He agreed that, after the applicant walked in he said: ‘what the hell is going on here?’ and ‘Brendan don’t you think that’s enough?’. Further, that both the applicant and Djurkovic said: ‘calm down boys, just separate’. He also agreed that that was when the assault ended. He agreed that he did not witness the applicant joining in the assault, nor encouraging it, and the same was the case for Djurkovic. He agreed that the applicant did not assault, restrain or threaten Manning, or him, at any point, and that McKinnon was the only one to assault Manning and him. He also agreed that the applicant did not take their property and he thought the applicant was outside when there was a discussion about the car and the keys.

Right near the end of the cross-examination, he agreed that the assault stopped once the applicant walked in and asked McKinnon ‘don’t you think that’s enough?’. When asked if he felt bad about saying in his police statement that the applicant and Djurkovic were involved, he said he did not know where counsel was coming from. He said: ‘like whatever I says-what I said…’ and that it was a lot to remember, but all he remembered was one person doing those injuries.
Under cross-examination he also:
(a)acknowledged that he and Manning had an intimate relationship where Manning had been violent to him, had engaged in drug use, and had a short fuse when he drinks.
(b)disagreed with Manning’s evidence that there was no exit door to the premises and that the backyard was so overgrown as to prevent access. He also denied that Manning was trapped in the house on the night of the incident for 2 hours.
(c)agreed that he gave evidence that he got a black eye and said he thought he also had a cut to the eye. He initially claimed that he mentioned the black eye in his police statement, but later accepted that it was not mentioned.
(d)gave evidence that when he visited Manning in hospital they discussed details of the assault and that Manning seemed bothered that he hadn’t made a police statement and asked him to make a statement. He later provided a statement on 27 September 2022.
(e)agreed that the applicant was not ‘there’ on 2 September 2022; that he did not enter his home, and that he didn’t see him outside.
(f)agreed that part of the reason Manning parked in the garage on 9 September 2022 was to protect his valuables, and part of it was because of McKinnon.
Under re-examination, Hucker was initially asked about his evidence that the assault stopped when the applicant came in, and that he did not see the applicant do anything to Manning. He said this was ‘correct’. His police statement was then read to him again. In particular, he was reminded of his evidence that the applicant put Manning into a headlock. His response was: ‘Yeah, okay, excuse me. That part, I must have missed out on it. Sorry. …I must have forgotten about it’. He also agreed that it could not be correct that the assaults stopped and that it had confused him the way counsel had worded his question. He stated that he did not think the applicant did anything but went on to say: ‘I’ve said that in the first statement… So, that must have happened’, but that with everything else that had happened he had forgotten about ‘that’. He reiterated later that he thought there was a headlock. However, when asked about whether there was a punch, he said there might have been a couple of taps to the head, ‘light taps, not hard fist punches,’ making a slapping motion.

Complaint evidence

An audio recording of a triple zero call made at 12:30 pm on 10 September 2022 was adduced into evidence. It recorded the first complaint made by Manning when he was at Sunshine Hospital. He reported that he had been sleeping and that the next thing he knew he was being punched in the head ‘very, very, very hard’. He said the incident went on for about two hours, and referred to it as ‘more or less a straight torture’. He described ‘three of them’ standing on top of him, trying to break his ribs and just ‘kill me’. He stated that they stole his car, with ‘pretty much everything in there’, as he was meant to be moving in with his girlfriend. He also claimed the men were using a cat statue to hit him, but he could barely feel pain as he was so sore. He said that ‘he’ threatened to kill him and his housemate with heroin.
Detective Mlodzic gave evidence that he called Sunshine Hospital and had a conversation with Manning. This appears to have been around lunchtime on 10 September 2022. Manning reported being asleep on the couch before being beaten and tortured by three men. He knew the men and described them as ‘Brendan, Boban and Richie’. Manning said he was held down for approximately three hours by the three men, during which time ‘[the applicant] kept leaning into [his] ribs’. When he tried to leave, McKinnon attempted to assault him with a cat statue before telling the other two men to kill him if he tried to leave again. When the three men left the house they told Manning that if he called the police they would kill him.
Detective Senior Constable Theodossiou arrived at Footscray Hospital at 2:30 pm on 10 September 2022. Manning advised her that three offenders entered his address while he was asleep on the couch and immediately began assaulting him. His housemate was home at the time. He had met the offenders a handful of times. The detective also took photographs of Manning’s injuries while at the hospital, which were adduced into evidence.
Senior Constable Wilson attended at the Sunshine premises at 1:15 pm and had a conversation with Hucker. Hucker said that three people had let themselves into the house uninvited and had words with Manning about money that he owed for some smashed windows. The verbal interaction then got physical. The offenders picked up a cat statue, assaulting Manning, and the offenders picked up a coffee table, threatening them with it. The incident went for approximately three hours and in the process a car was stolen. Hucker stated that there was the ‘main instigator’ who had the problem with Manning, but that the other two were still ‘heavily involved.’
Under cross-examination the Senior Constable agreed that he said there were words about money before the incident became physical. Further, he said that Hucker did not detail the sequence in which the three men entered. He also agreed that Hucker had said there was a main instigator, but he did not describe any specific actions of the other two.

Evidence of Dr Gaya

Dr Gaya was a forensic physician at the Victoria Institute of forensic medicine. He prepared a report in relation to the injuries sustained by Manning following his alleged assault.
Dr Gaya reported that half of the ribs on the left side were fractured, with three confirmed, and one suspicious on the right side. This included a number of displaced fractures, which were more significant. He opined that the pattern of rib fracture suggested ‘multiple impacts with significant force’. He highlighted the multiple fractures on the left side, raising the high suspicion for a flail chest, where a segment of rib detaches from the chest wall. He stated: ‘this can be caused by severe blunt force trauma such as direct blow, kick[ing] or stomping to the chest wall’. The rib fracture pattern suggested Manning sustained significant blunt trauma to the chest.
Dr Gaya also found that Manning had bilateral nasal fractures, likely due to ‘direct impact’ to the nose. He also had head and neck injuries, bruises and abrasions due to blunt force trauma, which could include punches, kicks or scraping against any rough surface. There was also earlobe bruising and a possible laceration to the earlobe which was consistent with something sharp, such as broken glass. He also had bleeding in the white of the left eye and a black eye, as well as bruising on the left side of the upper leg, probably caused by blunt trauma, or that which could be ‘compression from clothing’ and he gave the example of someone taking a collar and pulling them tightly in a rapid motion.
Manning had intravenous pain relief and was closely monitored for breathing issues. He was discharged from hospital on 15 September 2022 for follow up with a chest x-ray and referral to a maxillofacial surgeon.
The ultimate opinion of Dr Gaya was that: ‘the pattern and distribution of injuries raises a strong possibility of an assault and the presence of multiple injuries across different body regions including serious rib fractures highlights the extent of the event that caused these injuries’. In his view, the injuries were more likely representative of a situation where there was ‘infliction’. Although not life-threatening, they were significant, especially on the left side of the chest.
Under cross-examination Dr Gaya agreed that he could not conclude whether the injuries were inflicted by more than one person, and he agreed that it was reasonably possible that the injuries were inflicted by one person. He also agreed that he could not say over what period of time period the injuries were inflicted, though it was within the realm of possibility that the injuries were inflicted within less than one hour.

Other evidence

Manning engaged in a pre-text call with McKinnon on 14 September 2022 from hospital wherein McKinnon said that when he fixed the window he could have his car back. McKinnon also said: ‘You know, you wanna be a gangster and throw rocks through a window and when … things turn out badly you wanna call the police’.
Mervyn Dabeesing, a friend of McKinnon, gave evidence about the earlier incident on 2 September 2022. His evidence was that he and the applicant and McKinnon attended at Hucker’s home. He and the applicant had a chat outside for about 10–15 minutes and then the applicant left. McKinnon entered and he later followed inside and he heard McKinnon asking Hucker to pay back $50.00. Manning intervened and told McKinnon to get over it, at which point McKinnon told him to mind his own business. His evidence was that Manning thereupon got ‘stroppy,’ but there was no physicality between McKinnon and Hucker, and he did not see Hucker being punched.
The applicant was interviewed by police on 5 October 2022. He denied putting Manning into a headlock and giving him a couple of punches to the head. He stated that he ‘didn’t touch him’ and that he ‘didn’t drive any car.’
The informant, Detective Senior Constable Thompson gave evidence, including that:
(a)he produced CCTV footage of the Subaru being driven in convoy with McKinnon’s ute at 2:10 am between Hucker’s residence and McKinnon’s residence in Sunshine.
(b)he confirmed that Manning’s car key was seized at McKinnon’s address, and that McKinnon also provided details for the location of the Subaru which was a street away.
(c)he detailed various allegations of violence made by Hucker against Manning, particularly in July 2021 and March 2022. His evidence was that Manning had been served with a family violence safety notice and a family violence intervention order. Charges had also been laid against Manning in relation to the incident in March 2022, though they were ultimately withdrawn. Manning had also made an application for an intervention order against Hucker, but it was not pursued.

Proposed ground 1: the verdicts of the jury on charges 3, 4, and 5 were unreasonable or cannot be supported having regard to the evidence

Applicant’s submissions

The applicant submitted that the verdicts in respect of charges 3, 4, and 5 were unreasonable and could not be supported by reason of inconsistencies within the evidence of Hucker as well as inconsistencies between the evidence of the two men.
The applicant also submitted that there was an inconsistency between the verdict in respect of charge 7, and the guilty verdicts in respect of charges 3, 4, and 5.
In respect of the evidence of Hucker, the applicant highlighted that the judge had said to the jury that if they were satisfied that the applicant participated in the way described by Manning then they should have no difficulty in finding that the applicant intentionally caused injury to Manning. However, if they were satisfied that the applicant was part of causing the injury as described by Hucker, then they would still need to consider whether he intended to cause injury himself, or by assisting or encouraging McKinnon.
The applicant submitted that the jury’s verdict of not guilty in respect of charge 2 therefore meant that they were not satisfied of Mr Manning’s evidence about the applicant’s involvement and must therefore have relied on Hucker’s evidence. However, this was unreasonable due to the bizarre way Hucker’s evidence unfolded.
The applicant highlighted the different versions of Hucker’s evidence in respect of the applicant’s involvement, as we have described already. He submitted that this was not a trial where a witness gave exculpatory evidence, then had an earlier statement put to them, and then confirmed the contents of that statement. Rather, the evidence of Hucker unfolded in a ‘bizarre way’: first that the applicant was not involved; then confirming his police statement that there was involvement; then that the applicant was not involved under cross-examination by both counsel; then again in re-examination, before the statement was put to Hucker again and the details of punches then changes to taps or slaps. The applicant noted that the very experienced prosecutor in the case had commented that he had never experienced anything like this.
The applicant also highlighted that Hucker did not make his statement to police until two and a half weeks after the incident in circumstances where Manning appeared ‘bothered’ that he had not made an earlier statement, and where the two men had conversations about the assault. Further, Hucker’s complaint to Senior Constable Wilson did not go into detail about the order in which the three men went into the house, nor did it detail what actions the two other men took. Senior Constable Wilson also gave evidence that Hucker had said there was a discussion about money before the altercation became physical, whereas Hucker had said under cross-examination that it was ‘all physical’.
The applicant also cited an array of inconsistencies between the evidence of Manning and that of Hucker. In respect of the assault this included:
(a)the difference as to when the three men were said to enter. While Hucker gave evidence of a staggered entry, the evidence of Manning was that he was almost immediately set upon by all three men.
(b)Manning did not give any evidence that the applicant put him in a headlock, or that he received punches whilst in a headlock.
(c)the duration of the assault could not be determined. The applicant pointed to various different estimates given by both men about the length of time the assault lasted, the delay in getting to the hospital, as well as the length of time waiting at the hospital. He submitted that Hucker suggested it took two hours to convince Manning to go to the hospital, and also highlighted evidence of Manning that he waited for four to five hours before admission. The applicant submitted that, given the admission time was 3:11 am, the duration of the assault would be within an hour, which was consistent with the evidence of Dr Gaya.
The applicant also identified a number of other alleged inconsistencies, which included:
(a)there was inconsistency as to the applicant’s involvement in the incident of 2 September 2022. Manning gave evidence that the applicant was ‘there’ with McKinnon, though he did not do anything; Hucker said the applicant was not there and did not enter the home.
(b)Manning initially gave evidence that there was no back door to go outside. However, he later said that there was a back door, but it was not used because the backyard was overgrown. He also claimed that he was trapped inside for two hours when Hucker went out in the hours preceding the charged incident. However, Hucker’s evidence was that Manning could have got out through the back and that the backyard was not so overgrown that you could not get access out. He also denied locking Manning inside the house.
(c)the evidence of Manning that he did not park his car in the garage to hide from McKinnon conflicted with his second statement to police that he asked to park his car in the garage because he did not want anyone to see he was there. It also conflicted with evidence of Hucker that part of the reason Manning parked his car in the garage was to hide from McKinnon.
The applicant also submitted that Manning had significant credibility and reliability issues, citing, inter alia, that:
(a)Manning’s account about the rocks incident was problematic. Although he initially gave evidence that, when he went to Manning’s house to throw the rocks he did not know which car McKinnon drove, he later changed this evidence to not knowing which model car he had. He also initially said he had gloves on from working, but later accepted that he put gloves on to avoid detection.
(b)Manning claimed that he had never heard Hucker refer to him as his intimate partner, despite the fact that police records suggested otherwise.
(c)Manning claimed he had never acted violently towards Hucker except in self-defence and had never been charged with any offence, whereas police records show charges had been issued (but later withdrawn). There were also photos of injuries sustained by Hucker consistent with his allegations. Manning also had kickboxing training.
(d)the complaint to Detective Senior Constable Theodossiou was absent any detail about who allegedly did what.
(e)Manning had a motive to lie in order to avoid the criminal consequences of damaging the windows.
(f)contrary to what was recorded in the hospital records, he denied telling hospital staff that he had thoughts of harming his attackers and that he would confront them if he bumped into them.
Finally, the applicant submitted that there was inconsistency between the verdict of not guilty on charge 7 concerning McKinnon, and the verdicts of guilty in respect of the applicant in respect of charges 3, 4, and 5. The applicant’s submission was that both Manning and Hucker gave evidence that McKinnon assaulted Hucker. However, there was nothing in the evidence from which it could be supposed that their evidence was more reliable or credible in relation to charges 3, 4, and 5, than it was in relation to charge 7. It followed that the not guilty verdict on charge 7 was factually inconsistent with the guilty verdicts on charges 3, 4, and 5.
In oral submissions counsel highlighted that there was no independent evidence of the applicant’s alleged involvement in respect of charges 3, 4, and 5. Further, that the evidence of injuries was unnecessary for establishing charge 7 as it was a common assault charge. His submission was that the further objective evidence (for example, supporting the existence of the injuries) did not relate to the question of the applicant’s involvement in the offending.

Respondent’s submissions

The respondent submitted that the alleged inconsistencies did not preclude a jury, acting reasonably, from being satisfied of the applicant’s guilt beyond reasonable doubt in respect of charges 3, 4, and 5.
The respondent accepted that the evidence of the two men was inconsistent in several respects. However, so much was accepted by the prosecutor and also emphasized by the applicant’s counsel. The judge’s charge contained unimpeachable directions in respect of the various inconsistencies. Moreover, the inconsistencies did not require rejection of both accounts. Rather, it was the province of the jury, as it was properly directed, to assess and ultimately accept, prefer, or reject part, or all, of the evidence of either witness.
The respondent initially accepted that the jury’s verdicts compelled a conclusion that the jury preferred Hucker’s ultimate account to that of Manning.[3] This was not unreasonable given, inter alia, some of Manning’s memory issues, that he had smoked some cannabis before falling into a deep sleep, and that he was on medication when making his police statements. The respondent submitted that Hucker’s ultimate account provided a reasonable basis for the verdicts on charges 3, 4, and 5.
[3]There was a qualification to this statement in footnote 17 of the Respondent’s Response to the Applicant’s Written case as follows: ‘Insofar as these verdicts are irreconcilable with Mr Manning’s evidence of the applicant’s involvement in assaulting him together with Mr McKinnon and Mr Djurkovic from the beginning of the incident.’

However, in oral submission counsel highlighted that the evidence of Manning was also before the jury and the jury could ‘put together’ the evidence in whichever way they chose, consistent with the judge’s directions. He ultimately accepted that they could have preferred Manning, and used Hucker as supportive evidence.
The respondent accepted that Hucker’s evidence was internally inconsistent, but submitted that the jury had been given appropriate directions as to how to deal with this inconsistency. The jury was also entitled to take into account the explanations given by Hucker, who maintained that the account in his first statement was accurate, and more embedded in his memory. He did not disavow the truth of this statement where it was put to him, except to clarify that the applicant slapped Manning, rather than punching him. Given the greater contemporaneity of that statement, it was open to the jury to accept that account.
In terms of the alleged inconsistency arising by reason of the verdict on charge 7, the respondent submitted that each verdict of guilt was supported by additional independent evidence beyond the account of Hucker and Manning.
In support of charge 3, Manning’s injuries were photographed by Detective Senior Constable Theodossiou and verified by the evidence of Dr Gaya.
In support of charges 4 and 5, CCTV footage depicted Manning’s Subaru being driven at 2:10 am on 10 September in convoy with McKinnon’s vehicle at a location in Sunshine on a route between Hucker’s and McKinnon’s homes. The key to Manning’s vehicle was also located at McKinnon’s address on 15 September 2022.
By contrast, charge 7 was unsupported by any additional independent evidence. Additionally, neither Wilson nor Mlodzik made mention of a black eye, and no photographs were taken of Hucker’s alleged injuries.
The acquittal of McKinnon on charge 7 therefore did not necessitate a conclusion that the jury found Hucker’s evidence to be unsatisfactory, unreliable or untruthful, let alone that the jury positively disbelieved his account. Rather, it was logically explicable as reflecting a reasonable and ‘cautious approach’ by a jury requiring ‘something additional’ before reaching a conclusion beyond reasonable doubt, as was available in respect of charges 3, 4, and 5. It is also consistent with the jury having followed the judge’s instruction to separately consider the case in respect of each accused, and in respect of each charge, and to apply to each charge the requirement that all of the ingredients must be proved beyond reasonable doubt.

Consideration

The ground of appeal advanced in this case is based on s 276(1)(a) of the Criminal Procedure Act 2009, which provides that a court should allow an appeal against conviction if it is satisfied that ‘the verdict of the jury is unreasonable or cannot be supported having regard to the evidence’. In order to succeed on this ground, the applicant must establish that it was not open to the jury to be satisfied, beyond reasonable doubt, of his guilt on the charge that was before it.[4]
[4]M v The Queen (1994) 181 CLR 487, 492–3 (Mason CJ, Deane, Dawson and Toohey JJ); [1994] HCA 63; SKA v The Queen (2011) 243 CLR 400, 405–6 [11]–[14] (French CJ, Gummow and Kiefel JJ); [2011] HCA 13; Pell v The Queen (2020) 268 CLR 123, 147 [45]–[46] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon & Edelman JJ); [2020] HCA 12.
In Klay Edward Holland v The King this court outlined the relevant principles to be applied as follows:[5]
(a)The applicant must demonstrate that, on the whole of the evidence, it was not open to the jury to be satisfied beyond reasonable doubt of the offence charged.
(b)The appellate Court must make its own independent assessment of the evidence giving full weight to the jury’s advantage in seeing and hearing the evidence.
(c)The jury is ‘the constitutional tribunal for deciding issues of fact’. To set aside a jury verdict on the ground that it is unreasonable is a ‘serious step’ and not to be taken without particular regard to the jury’s advantage of seeing and hearing the evidence.
(d)The court must proceed on the basis that the jury accepted that the evidence of material witnesses relevant to the accusation … were credible and reliable. The function of this Court is then to examine the record to see whether, notwithstanding that assessment, either by reason of other evidence, inconsistencies, discrepancies, or other inadequacy, the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt.[6]
[5][2025] VSCA 5.
[6]Ibid [9] (Taylor, Kaye and T Forrest JJA) (citations omitted).
It is convenient to first consider the submission that the verdicts of the jury were unreasonable, or could not be supported, by reason of inconsistencies in the evidence.
Turning then to the complaint about Hucker’s evidence, the judge did observe that if the jury were satisfied that the applicant participated in the way described by Manning, then they should have no difficulty finding the applicant intentionally caused injury to Manning.
However, for the following reasons we do not accept that it necessarily follows from such an observation that the jury must have rejected Manning’s account generally, or more particularly in respect of the applicant’s involvement.
First, such an isolated comment should not be considered out of context, divorced from the rest of the comprehensive and careful directions given by the judge, which were not subject to challenge. Thus, the judge also directed the jury that they might accept all, some, or none, of a particular witness’s evidence. She also expressly made clear, in a number of passages, that the jury might act on the evidence of one witness alone, or accept a combination of their evidence. Thus, she said that, if they rejected the evidence of Hucker about the applicant’s involvement, then they would ‘come back to’ the evidence of Manning and determine whether they accepted it, or they might accept the evidence of Hucker, or ‘a combination’ of the evidence of both men about [the applicant], or they were entitled to reject the evidence. When the judge came to direct the jury about the specific issue of reckless intention, she also reiterated that they might find that the applicant’s actions were those described by a ‘combination’ of the evidence of both Manning and Hucker.
Secondly, the submission is incorrectly premised on an assumption that the accounts of the two men about the applicant’s involvement were entirely inconsistent. Although there was certainly inconsistency as to the precise acts said to be perpetrated by the applicant, there was an overall consistency as to the role the applicant was said to play. Thus, notwithstanding that Manning maintained that the applicant also inflicted punches, and, at one point, appeared unable to estimate who punched him more, the preponderance of his evidence was that the applicant’s role was very much secondary to that of the main ‘instigator’, McKinnon. This included his evidence that the applicant grabbed and held Manning with his arms behind his back so that McKinnon could have free rein to punch him ‘repeatedly’; that the applicant was ‘holding [him] down and in place’; was ‘just trying to hold [him] still so that Mr McKinnon could punch[him]’; was ‘trying to hold [him] down’; as well as Manning’s response under cross-examination (to the suggestion that the applicant had asked whether there had been enough): ‘why was [the applicant] holding me down then?’.
The evidence of Hucker of course, even at its highest, identified a lesser level of participation. However, his evidence of the applicant’s use of the headlock was consistent with Manning’s evidence that the applicant was the secondary offender, whose role was to assist or encourage McKinnon by restraining Manning. Such evidence was also consistent with the clear motive of McKinnon to seek redress for the injury to his property.
In such circumstances, we therefore do not accept the applicant’s submission that the jury verdicts mean that the jury must have rejected the evidence of Manning. It therefore remains to consider the other submissions within this framework.
Turning, first, to the submissions about Hucker’s evidence, it may be accepted that the way his evidence unfolded was troubling. However, the jury was correctly directed that they might use the inconsistencies in Hucker’s evidence to assess his credibility and reliability. Further, that it was for them to determine which account, if any, to believe, having regard to the explanations given by Hucker for the differences.
Notwithstanding the difficulties with his oral evidence, there was also some basis for the suggestion that Hucker generally adhered to his police statement when it was put to him, save for the amended reference to ‘taps,’ rather than punches. Although the statement was not made until 27 September 2022, it was clearly more contemporaneous with the incident than his oral evidence. The jury was also well able to consider whether the police statement might have been defective in the light of the matters the applicant raised (including that the two men discussed the assault in its aftermath). The credibility of his police statement could also gain some support from Hucker’s first complaint made shortly after the incident to Senior Constable Wilson. Notwithstanding the lack of extensive detail in that complaint, Hucker clearly identified the applicant as a participant who was ‘heavily involved’, though not the ‘main instigator’.
Finally, and most importantly, the evidence of Hucker was not the only evidence available to the jury. Rather, for the reasons given already, the jury was also entitled to consider the evidence of Manning; evidence of the extensive injuries that Manning suffered; as well as the fact that both Manning and Hucker placed the applicant at their house for at least part of the time during which the attack occurred.
The applicant, however, also made extensive submissions about the evidence of Manning, citing inconsistencies between his evidence and that of Hucker, and suggesting that he had a number of credibility and reliability issues.
It may be accepted that there were a number of inconsistencies between the evidence of Manning and Hucker. However, a large number of these inconsistencies were about peripheral, inconsequential matters which were not directly concerned with the critical aspects of the assault, and which might be readily explained by the effluxion of time following a traumatic event. In any event, the jury was well able to consider these matters for themselves, in the light of the extensive submissions of counsel, and the judge’s careful and comprehensive directions.
Insofar as the alleged inconsistencies were directed to the charged incident, the jury were entitled to take into account the realities of the dynamic and intense environment surrounding the incident, generally. In this context, it may not be surprising that neither man could nominate a precise duration of the assault. The inconsistency as to the precise actions of the applicant, as well as his time of entry were more significant. However, as we have already explained, there was a general consistency between the evidence of the two men as to the nature of the role played by the applicant.
Insofar as the evidence of Manning is concerned, the prosecutor rightly accepted that there were a number of issues for the jury to consider. This included his memory issues, as well as his troubled relationship with Hucker. The suggestion that he had a motive to lie was also raised with the jury, who were well able to consider the issue for themselves.
Despite these issues, insofar as Manning gave an account of the critical incident, that account was generally cogent, coherent, and consistent, making necessary allowances for the vulnerability and limitations to which he was subject, which included coming out of a deep sleep. Whatever might have acted to obscure Manning’s powers of perception, be it prior ingestion of drugs and/or grogginess at being awoken from sleep, the evidence of his condition did not mean that he was rendered unable to apprehend that he was being set upon — physically — by three men acting together.
For these reasons, we are not satisfied that the inconsistencies, considered individually, or cumulatively, were such that the verdicts on charges 3, 4, and 5 were not open to the jury.
It remains to deal with the submission that there were inconsistent verdicts.
The principles relating to a complaint of inconsistent verdicts were recently summarised by this court in Booth v The King in the following terms:
When considering a complaint of inconsistent verdicts, the test is one of logic and reasonableness. The applicant must satisfy the court that no reasonable jury applying their minds properly to the facts could have given the verdicts they did.
As the applicant accepted, this test is not easily satisfied. If there is a proper way by which purportedly inconsistent verdicts may be reconciled, resulting in a conclusion that the jury properly performed their function, that conclusion will generally be accepted.
One way to reconcile purportedly inconsistent verdicts is on the basis that they were simply the result of ordinary directions that the jury must consider each charge separately, be satisfied of guilt beyond reasonable doubt, and that they may accept a witness’s evidence in whole or in part. Indeed, an acquittal on a particular charge does not necessarily mean that the jury found the relevant witness’s evidence to be untruthful. A jury might believe that a witness is likely to be telling the truth, but still require something more before reaching a conclusion of guilt beyond reasonable doubt. Or a jury might consider a witness to be more reliable, or specific, about some parts of their evidence than others.
Another way to reconcile purportedly inconsistent verdicts is on the basis that the jury took a ‘merciful’ view of the facts. A jury may consider that, although a number of charges have been proved beyond reasonable doubt, justice is sufficiently met by convicting on less than the full number of charges. This is a legitimate approach for a jury to take, even if it may not appear strictly logical to an appellate court.
Nevertheless, cases will remain where the verdicts affront logic and common sense, and strongly suggest that the jury failed properly to perform their duty. The verdicts may suggest confusion in the minds of the jury or a misunderstanding of their function, uncertainty about the legal differentiation between offences, or a lack of clarity in the directions given to them. An appellate court must intervene in such a case. That said, there are no hard and fast rules for when appellate intervention is required, which will depend on the facts of the case.[7]
[7][2024] VSCA 318, [125]–[129] (Beach, Kennedy and Orr JJA) (citations omitted).
The judge in this case gave clear directions that the jury should consider the case against each accused only in the light of the evidence against that person. She also directed them to consider each charge separately, in light of the evidence which applied to that charge.
Consistent with this unimpeachable approach, it is important to consider both the quality, and nature, of the evidence led in respect of the different charges.
In terms of the quality, it will be recalled that Manning’s ability to see the assault on Hucker was severely constrained. On his evidence, he was not only being subject to a vicious, continuous attack, he was also lying down on his stomach, while endeavouring to turn his head.
In terms of the nature of the evidence generally, no objective evidence was led to support the existence of the black eye Hucker referred to. This may be compared with the evidence of Dr Gaya, as well as the photographs, which provided objective support for the injuries suffered by Manning in support of charge 3. There was also CCTV evidence and evidence surrounding the location of the keys to support charges 4 and 5.
Although, as the applicant submitted, it is not necessary that there be an injury in order to establish a common assault, the jury was entitled to take the absence of any objective evidence of injury into account in considering charge 7. In particular, they were entitled to consider whether they could rely on the oral evidence, alone, particularly given the limitations surrounding Manning’s evidence in respect of that charge.
In these circumstances, we are not satisfied that the acquittal of McKinnon on charge 7 means that the jury must have found the evidence of the Manning and Hucker to be unreliable or untruthful in all respects. It is instead consistent with the jury discharging their function and giving careful consideration to the particular evidence led in respect of each individual charge. We are certainly not satisfied that the different verdicts ‘affront logic and common sense.’

Conclusion

The application for an extension of time in which to make an application for leave to appeal is refused.
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[2025] VSCA 35

14 March 2025