R v Garofalo - [1998] VSCA 145

SUPREME COURT OF VICTORIA

COURT OF APPEAL Not Restricted

No. 87 of 1998

THE QUEEN
v
ALFREDO GAROFALO

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JUDGES: TADGELL, ORMISTON and CHARLES, JJ.A.
WHERE HELD: MELBOURNE
DATE OF HEARING: 22 October 1998
DATE OF JUDGMENT: 18 December 1998
MEDIA NEUTRAL CITATION: [1998] VSCA 145

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CRIMINAL LAW - Duties of prosecutor - Duty to provide defence with list of previous convictions of witnesses whose credit may be in issue - Whether failure to provide criminal record of principal witness led to miscarriage of justice - Whether verdict unsafe or unsatisfactory.

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APPEARANCES: Counsel Solicitors
For the Crown Mr T. Gyorffy P.C. Wood, Solicitor for
Public Prosecutions
For the Applicant Mr D.L. Allen T.F. Grundy & Co.

TADGELL, J. A.:

I should hesitate to conclude that a common law duty always and inevitably rests on the Crown to make a general disclosure of all previous convictions of witnesses for the prosecution. Subject to that reservation, I am in substantial agreement with the reasons that have been prepared by Ormiston, J.A., which I have had the benefit of reading in draft, and would accordingly join in orders allowing the application and providing for a new trial.

ORMISTON, J. A.:

This application depends for its ultimate success on the validity of a proposition that it is the Crown's duty to disclose to the accused the prior convictions of all, or of all significant, witnesses and that in the present case the prosecution wrongly failed to disclose the prior convictions of a principal witness for the Crown whose credibility was said to be essential to its case. The applicant was found guilty of attempting to obtain property by deception, contrary to ss.81 and 321M of the Crimes Act 1958, after a trial which took place over several days in March this year, and he was sentenced to be convicted and released upon entering into a bond to be of good behaviour for three years. That charge had arisen out of his making an unsuccessful claim against an insurance company for the replacement cost of certain lighting and audio equipment used in a night-club at the Central Club Hotel in Morwell which the applicant had claimed was stolen in the course of a burglary on 7 December 1995. The witness, Thomas Kokkinos, gave evidence not only that he had supplied most of the goods on a rental basis and had repaired the rest of the applicant's equipment at the request of the applicant but also that subsequently the applicant had agreed in advance that he might take away the equipment he had supplied and also the equipment he had repaired if the applicant should continue to fail to pay any of the agreed rent. Although the applicant admitted that certain of the equipment had been supplied by Kokkinos, in substance he denied his allegations relating to the rental arrangement and in particular denied any agreement with Kokkinos that he might take away all the goods on the morning in question, which was later said by the applicant in fact to have been one Sunday in late November, before the hotel had opened for business.
Although Kokkinos was cross-examined in detail as to these matters, it was not known by counsel, or by anyone else involved in the conduct of the trial on either side, that Kokkinos had one month earlier pleaded guilty to a number of counts of dishonesty, including two counts of burglary, two counts of theft, one count of handling, one count of counterfeiting money and three counts of obtaining property by deception, at the same time admitting some 28 previous convictions sustained at five court appearances from 1985 to 1990, a considerable number of which were for offences of dishonesty and for which he had been imprisoned for terms of up to three years. For the offences to which he had pleaded guilty in February this year Kokkinos was not sentenced until after the applicant's trial was completed but in April he was sentenced to a total effective sentence of one year and three months on certain State offences and, on Commonwealth offences, he was ultimately sentenced by the Court of Appeal to a term of two years' imprisonment with an order that he be released upon recognisance after serving a period of twelve months. Of course, the details of these later terms of imprisonment were not known at the time of the applicant's trial and so could not have been disclosed.
It can be seen that the witness's record was a bad one and that, of the offences committed by him, a significant number were offences of dishonesty. Whatever might be said of convictions for other kinds of offences, there could be little doubt that, if questions had been put to him as to his criminal record, the admission of those convictions may well have had a significant bearing on his credibility in the eyes of the jury. That is not the end of the matter, however, for the applicant asserts both that the failure to reveal this record resulted in a miscarriage of justice and, inasmuch as the witness's record was not placed before the jury or counsel given an opportunity to cross-examine upon it, the verdict was unsafe and unsatisfactory. If there were a duty to disclose, then, of course, in considering the consequence of that failure, one can only look at the matter on a hypothetical basis so that, consequently, any precise conclusion as to the credibility of the witness Kokkinos cannot be formed by this Court but ordinarily an appeal would be allowed if it could fairly be said that the applicant had lost an opportunity to be acquitted. Moreover, the first ground specifically raises that which must necessarily be asked in circumstances where an accused has been denied an opportunity to put evidence before the jury or to take a particular step in the course of the trial, namely whether there has been a miscarriage of justice resulting from the alleged failure to make disclosure.
In the present case, although there would be little doubt but that Kokkinos was an important witness as to the facts on the trial of the applicant, his credit, and more specifically his hypothetical want of credibility, could only have resulted in his own evidence being disbelieved or given such lesser weight as would create a reasonable doubt as to the prosecution case overall. The respondent therefore argued that the rest of the prosecution case was so strong as to make the acceptance of Kokkinos's evidence largely irrelevant, so that the applicant's conviction was inevitable. There is no doubt that a number of elements in the defence case of the applicant were confusing and a number of the documents tendered were difficult to explain in the light of the few events which were known with certainty. It is, however, unfortunately necessary to examine the factual basis for the case against the applicant to see whether the respondent's contentions have been fairly made out. So, before examining the nature of the prosecution's obligation to make disclosure as to Kokkinos's previous convictions, the evidence in due course will have to be summarised in some detail.
The charge which led to the prosecution of the applicant was one of attempting to obtain property by deception, the attempt being alleged to have occurred on 13 March 1996 when the applicant made an insurance claim in respect of the audio and lighting equipment, or, more precisely, at the time at which the applicant confirmed to an insurance investigator named Buckley that he wished to proceed with a claim which had earlier been forwarded to the AMP General Insurance Ltd. At the date of this confirmation of his claim it is said that he made a detailed statement to Buckley outlining the circumstances surrounding his claim, albeit that that statement was prepared and written out by Buckley, as the applicant's written and spoken English was said not to be good enough to enable him to write out the statement himself. It should be noted, despite the verdict reached below, that many of the matters described below remain mere allegations, hotly contested by the applicant.
The count on the presentment at the trial which began on 16 March this year at Bairnsdale more specifically alleged the false representations which constituted the alleged deception, as follows:

"(a) That he was the owner of a quantity of audio equipment and lighting equipment that had been removed from a building known as the Central Club Hotel situated in Commercial Road Morwell;
(b) That on the 7th day of December 1995 he discovered that the said audio and lighting equipment had been stolen during a burglary on the Central Club Hotel;
(c) That he had reported the burglary to a member of the Victoria police force at Morwell on the 7th day of December 1995."

It should be mentioned that although in paragraph (c) it is alleged that he represented that he discovered the burglary on 7 December 1995, there was no dispute but that he had always alleged that the burglary took place on 28 November 1995 and that he had merely sought to make a second report of the burglary on about 5 December. It was conceded that the variance in date was immaterial.
(a) Background and evidence at trial (other than applicant's versions of events)

The applicant had been a part-owner of the Central Club Hotel in Morwell since about 1988. The hotel had a night-club which the applicant had employed Angelo Marasco and, through him, Algeo Di Quinzio to manage in about 1995. They had told the applicant that the existing premises should be renovated and reopened under a new name, "The Arena". Marasco and Di Quinzio gave evidence of the renovations which were carried out and as to how they approached Tom Kokkinos for quotations for the installation of new sound and lighting equipment. According to Marasco it was largely left to them to carry out the necessary negotiations.
It seems that the discussions took place in early 1995, possibly as late as May. As to the terms of the arrangement between Kokkinos and the applicant there were a number of versions. Although it seems that matters of detail were left to Marasco and Di Quinzio, both Kokkinos and Marasco gave evidence that there was a meeting between them and the applicant with probably Di Quinzio present, although the latter was not sure he was there. According to Kokkinos there were two meetings, one in Melbourne and one at the hotel where it was discussed that he was to install equipment and also to repair existing equipment which was on the premises, such as lighting and sound equipment, which could still be used. Kokkinos thought the value of the equipment to be installed was in the range of $20,000 to $30,000 including labour costs and the like. It was said that there were some written quotations but none were put in evidence. It seems that in broad terms it was agreed that instead of paying in full for the equipment and the repair work, the applicant would hire the equipment from Kokkinos at the rate of $520 per week but that the applicant would have the right to purchase the equipment when business improved and to apply the rental payments towards the cost. Marasco and Di Quinzio gave evidence also as to this meeting but said the final dealings were left to the applicant and Kokkinos.
Kokkinos said that at about the time the work was completed a hiring agreement was entered into between the parties. His evidence went no further, however, than to say that an agreement was prepared and that he gave it to Di Quinzio for delivery to the applicant. Di Quinzio said nothing of it, nor did Marasco. A document dated 6 May 1995 was produced and tendered in evidence purporting to be between Kokkinos's firm, "Audio Technics" and "Arena Night-club (Alfredo)" which listed by quantity over two dozen types of equipment. The hire fee, except for the cost of two added items for fluid and lamps, was $520 weekly. The only term set out on the document took this form:
"I the hirer hereby acknowledge receipt of the equipment described on this hire contract in good order and I unconditionally agree to the terms and conditions set on the reverse side hereof."
Unfortunately the copy tendered had no terms or conditions on the back and there was no signature by either party and, in particular, none in the space provided for the "signature of hirer". Kokkinos did not suggest that he had a signed copy, nor did he have a draft or pro forma which had the terms and conditions set out on the reverse side. Despite various attempts to determine what those terms might be, neither Kokkinos nor any other witness was able to give direct or indirect evidence about them. The learned judge in his charge suggested that they might have given rise to a hire-purchase agreement but that would be mere speculation, it seeming rather that the probabilities were that it was an agreement for mere hire. In any event, it was not signed and the applicant denied that he was party to any such agreement.
There was also a good deal of doubt as to precisely what had been supplied by Kokkinos and what had been merely repaired by him. A number of items were referred to by the various witnesses but there seemed no precise consistency, especially as several items were referred to by their brand names. It is clear, however, that not all the items installed on the site were new, Kokkinos saying that only the new items appeared on the alleged contract (which he then described as a "quote"), and he added that there were some amplifiers, turntables and lighting cams which he had repaired and returned to the night-club, the value of which he asserted was under $10,000.
The applicant did not mention the agreement in the course of his interview with the insurance investigator and denied that he signed or had even seen the hire contract document tendered in evidence, although he conceded that some work had been done for the night-club at the direction of Marasco in the first half of 1995. In his evidence-in-chief at the trial the applicant likewise denied that he had ever entered into any agreement with Kokkinos whether to hire goods or otherwise, but he conceded that Kokkinos had been brought in by Di Quinzio to repair certain of the equipment in 1995. His version was that he steadily purchased and replaced equipment over the years since he had acquired the hotel. I should add that Di Quinzio said that the applicant had given him some blank cheques to purchase some necessary pieces of equipment, which had been used to buy a few items, but thereafter there seemed little mention of this equipment.
After a successful opening night business at the new night-club was disappointing and the profitability of the hotel remained uncertain. Kokkinos said that he never received any payment from the applicant and it seems likely that there was little money available from which rent could be paid. He said that in August 1995 he had travelled down to Morwell to discuss the arrears of rent with the applicant. He said that the applicant requested more time, asking Kokkinos to leave the equipment for another month or two so that he could build up sufficient funds to make some payment. Kokkinos had agreed to this, but said that it had been agreed that, if things did not work out, he could come and collect from the night-club both his equipment and the other sound and lighting equipment which he had repaired. Kokkinos said that between then and November 1995 he had telephoned the applicant on about three further occasions. A new manager confirmed that there had been some three or so phone calls in which the subject of rent had been mentioned but that he had gained the impression that the applicant owned the equipment. The applicant denied any such arrangement or conversations relating to the collecting of the equipment.
The circumstances leading to the taking of the goods on the morning of Sunday, 26 November 1995 are as confused, if not more so, than any other part of the evidence. It seems clear enough that Kokkinos, with an employee or associate named Theo Papageorgiou and a third man, came down to Morwell in two vans, arriving at the hotel at about 10 a.m. Somewhere between that time and noon all the electrical and lighting equipment in the night-club, except for some wiring and one or two lights, was taken and loaded into the vans. It is not clear whether and when it had been agreed that Kokkinos could enter the premises to take all those goods away. In his evidence-in-chief Kokkinos referred only to the agreement made approximately two months earlier to which I have just referred whereby the applicant agreed that, if the rental was not paid, Kokkinos could take the equipment away, including the applicant's equipment upon which Kokkinos had merely performed some repair and renovation work. In re-examination it appeared that Kokkinos alleged that he had spoken to the applicant a few days before his arrival warning him that he would take the goods away on the Sunday in accordance with their agreement if the applicant did not pay, but no further agreement was alleged. This addition to his evidence about these events was sufficient to provoke the learned trial judge into commenting: "You have just remembered that, have you?" Kokkinos conceded that he had no signed copy of either "agreement", nor had he sent the applicant any invoices or letters of demand. Kokkinos's threat, but not any agreement by the applicant, was confirmed in the most general of terms, by Papageorgiou.
Nevertheless it is clear that, when Kokkinos and his associates arrived at the hotel, the only person present was a member of the hotel staff, Jennifer Street. Unless he made an arrangement to be present earlier, the applicant would not normally arrive until 12 noon which was the time at which the hotel opened for business on Sundays, and it was about that time that the applicant in fact arrived. It seems from evidence given by a member of the cleaning staff, Giovanna Di Ciero, that nobody had come to the premises before 10 a.m. and the key had been given to Street. The latter said that at about 10.45 Kokkinos knocked on the door and said he had come to pick up the ladder from the night-club, but she maintained that she had told him that she could not let him in because "the management" was not then there and she did not have authority. She told him to come back after midday when the applicant would be present. Papageorgiou confirmed that Kokkinos had spoken to a female member of staff, although he did not hear what was said, but he had gone to the back of the night-club where Kokkinos had opened the doors in order to take out the equipment, which they did without seeing any other person. It is not insignificant that Papageorgiou, who was present assisting Kokkinos on at least two critical occasions, admitted in cross-examination a string of convictions, most of which were serious and several of which were for dishonesty.
Kokkinos's version was that he spoke to one of the hotel staff, presumably Street, but he appears not to have remembered much of the conversation. He said that he waited for a little while, between half an hour and an hour, stating that he was waiting for the applicant. However, for no explained reason he did not wait until 12 noon being the time which Street said was the time when the applicant was likely to arrive. Kokkinos did not state explicitly how he had got access although he suggested that he may have been allowed to walk straight through to the night-club area. He had removed all the equipment (except for the wiring and one or two lights) which was listed on the so-called hire agreement, but he said that he also took a couple of amplifiers, some turntables and some lighting cams which had also been repaired and restored by him, possibly up to $10,000 worth of work. He said that after loading the equipment into the vans he waited a little longer at the premises but still the applicant did not arrive. He told Miss Street, so he asserted, that he had spoken with the applicant earlier and then set off in the vans for Melbourne.

It should be noted at this stage that the applicant denied at all times, including when giving evidence at the trial, that he had made any agreement with Kokkinos either for the supply of the equipment or permitting it to be retaken, or that Kokkinos had told him that he was coming down to collect all the equipment.
So far as the evidence relating to the applicant was concerned, Street said that shortly after midday the applicant came to set up the hotel for business. She made no mention to him of the taking of the goods because, as she had said, she knew nothing of it and the applicant made no comment until, half to three quarters of an hour later, he spoke to Street saying that equipment was missing from the back of the premises. She had told him of the visit earlier by Kokkinos, who was unknown to her, but the applicant said that "He thought he might know who it was". He immediately went into his office and rang somebody up. After the telephone conversation she was asked whether she had let Kokkinos into the hotel, which she denied, and he had told her that he had been hiring equipment and that he had owed the person money. She said that the applicant had then immediately rung the police and they had come down shortly thereafter.
Kokkinos's version of the first of these telephone conversations, supported to a limited extent by Papageorgiou, was that, while they were driving back towards Melbourne, he had received a telephone call on his mobile telephone from the applicant who had expressed surprise that the equipment had been taken. According to Kokkinos, the applicant had demanded that he return and reinstall the equipment, but he had received the reply that, unless the applicant was able to pay immediately, he was not prepared to return. During the conversation the applicant had told him that the police were there. Upon being asked, the applicant had confirmed that he still had no money, so that Kokkinos had continued on his way.
Sergeant Gibson and Det. Sen. Const. Suares both gave evidence that they attended the hotel at about ten to one where they first spoke to Street and then to the wife of the applicant. They had understood that the applicant had reported a burglary of sound equipment and Suares was told by Street that a person by the name of "Tom" had picked up the equipment. They went to the rear of the premises where they saw the applicant in a small office talking on the telephone. They gathered that he was speaking with a person whom he called Tom and that the tone of his conversation ranged from agitation to friendliness. Gibson said that the applicant had claimed that Tom had removed the equipment without giving him a chance to pay.
The applicant had then come out to speak to the two police officers. They said that he had asserted to them that Tom had gained entry and had removed the sound and lighting equipment belonging to the applicant because, so Tom had claimed, he had not paid for the sound and lighting equipment. The police officers said that the applicant had told them that he was making arrangements for the property to be returned and for money to be paid to Tom. In consequence, so he had told them, the matter had been resolved and that he was going to get his equipment back, so that he wished no further action to be taken. As they then understood the matter from what both Street and the applicant had told them, there had been no illegal entry so they said they would not take any further action. Suares advised the applicant that it was a civil matter and he should speak to a solicitor. Because of the conclusions they had reached the two police officers did not complete any paperwork in relation to the matter and no report of the incident was entered into the police records.
Some two days later the cleaner said that she had spoken to the applicant who had asked her if anybody had knocked on the door while she was cleaning on the previous Sunday. From the cross-examination it appeared that the applicant had told her that equipment had been stolen from the hotel.
On the following Tuesday, 5 December 1995, Suares came into the watchhouse area of the local police station and saw the applicant standing at the counter. He was talking to a male police officer who seemed confused. She then asked if she could help and he told her that he had come to collect a crime report for the burglary. Although she explained that no burglary had occurred, the applicant had responded: "Well, my solicitor told me to come in and see you". The applicant had some papers spread out on the counter. He told her that among them there was a list of the equipment which had been stolen and that his solicitor had told him to give it to the police. Suares took a copy of the list and gave him back his original documents, asking for further details about "Tom". Reiterating that it was a civil matter, she told him he should return to his solicitor. He had asked for a police crime report or a copy of an existing report but he had been told by her that none was in existence because no crime had been reported.
It seems that by early 1996 the business of the hotel had deteriorated further while at the same time the applicant had suffered an illness which required him to undergo surgery. He called in John Rodney Beyer, a director of Cashflow Concepts, a company engaged in the business of assisting firms in financial difficulties. The applicant had told Beyer that his partners were trying to force him to relinquish control and that the income of the hotel had dropped because of his absence through illness. Beyer had then engaged John William Neale to take over the management of the hotel. They had both gone to Morwell where they advised him that the debt level was too high and had to be reduced. The night-club could not function because of the absence of sound and lighting equipment. When asked why, the applicant had told them that the equipment had been stolen.
They therefore advised the applicant to make an insurance claim for a number of items for which the business had suffered loss on damage. Neale asked the applicant if the burglary had been reported to the police and had been told that it had. He asked him whether he had put in an insurance claim but was told that none had been made. Neale told the applicant he would need a copy of the police report before he could make such a claim and the applicant had told Neale that he would obtain that report in order that the latter might compile a detailed list of the stolen equipment.
Neale had filled out an AMP Insurance Claim form while the applicant answered his questions for that purpose. Neale identified a copy of an AMP insurance claim form which he said he had filled out in his own handwriting on behalf of the applicant and in which it was alleged that the burglary had been discovered on 7 December 1995 and the means of entry was stated to be "unknown". It also stated that the premises had been occupied by "customers" at the time of the burglary. The value of goods stolen was stated as $30,000 being the figure first provided by the applicant. The reason for Neale filling out the form was, so it seems, that the applicant had considerable difficulty in reading and writing English.
For this reason and because he was suffering from the after-effects of his illness and operations, it was contended that the applicant did not have a precise memory of the goods which he claimed had been stolen. He did not have an actual list and had no precise familiarity with the equipment used since he had left that over the last year or so to Marasco and Di Quinzio. So the help of a discotheque operator, one Frank James, was enlisted who had both worked in the night-club at the applicant's hotel and was sufficiently familiar with the types of equipment used and their values to prepare an accurate list. James gave evidence of how he was approached by the applicant who had asked him to prepare a suitable quotation. He had asked him to prepare a list of the items which had been stolen and from that he said he would make an estimate of the kinds and values of equipment required for a venue of that size. There were difficulties because the applicant could not state the exact brands but apparently he was able to state the quantity of each item, which James wrote down and produced a quotation the following week fixing the replacement value at $40,442. This enabled the insurance claim form to be completed.
However, the applicant did not sign the form himself. It was sent to Beyer who signed his own name and forwarded it to the insurance company. It was dated 21st February 1996 but it should be noted that the claim and statements then made therein were not the basis of the charge brought against the applicant. One may add, for what it is worth, that both Beyer and Neale in cross-examination expressed the opinion that they thought that the applicant had an honest belief that he could make the claim against the insurance company.
Attached to the claim form was a white copy of a form headed "Notice to Victim", a document which was explained as a means of making a written report to the police of the commission of an offence such as a burglary. The particular document in this case forwarded with the claim was dated 7th December 1995 and referred to the "theft of sound equipment from hotel", giving it a value of $30,000. There was a good deal of evidence, which need not here be summarised, as to how such reports come into existence and suggesting that this was perhaps not a form completed in the customary way. It certainly had no number and police records did not reveal any report of such a burglary whether in late November or early December 1995.

(b)

Evidence of the applicant's statement, forming the basis of the charge, and his other versions of events

Not long afterwards, on 13 March 1996, an investigator engaged by AMP Insurance visited the applicant at his home. He asked the applicant a number of questions and compiled a statement, which was written out by the investigator, and this was signed by the applicant. At the same time the applicant signed, at the request of the investigator, each page of a photocopy of the original claim form. It is these statements which form the basis of the charge against the applicant. It should be mentioned, before summarising the statement, that the applicant has reiterated his inability to read English and so his claimed failure to understand the document put before him for signature by the investigator on that day.
It is unfortunately necessary to repeat here, in the summary of his record of interview and in the summary of the applicant's evidence at the trial, much of which has already been summarised, in order to see whether the applicant's own versions could provide independently a basis for his conviction.
In the statement signed on 13 March 1996, there were set out the circumstances surrounding the applicant's claim. The history of the applicant's ownership in the hotel was described; in particular he stated that the two other partners in the business were not working partners. He had said that he ran the business including the night-club. The owners had spent a great deal of money on the maintenance, upkeep and refurbishment of the hotel, in particular they spent $191,000 in 1995 on refurbishment of the disco area. The equipment was said by him not to be "top notch" and that over the years it had been replaced gradually with better quality items. Some detail of this expenditure over the years was given including the spending of $1,800 on ceiling lights in 1995. He said he did not believe that he still had the receipts but he would value the total disco equipment at approximately $35,000. He had claimed that the goods were owned "outright by my company" and that "no person has any interest in them, no money is owed on any of these goods". The applicant then said in the statement that, on what he believed was either the first or second Sunday of December 1995, he had found all his sound equipment stolen from the disco area. He gave details of the security system which would have been turned off at about 8 a.m. when the cleaners arrived. He had arrived at midday after the cleaners had gone, but Street had already opened up the premises. He saw two ladders on the dance floor and then found all his sound equipment missing, as were his speakers and some of the lights. He had concluded that somebody had stolen them as he had given no person permission to remove any of the goods. He was shocked, so he did not examine the premises for any signs of forced entry. His wife rang the police and they arrived at about 12.29 p.m. Having been shown "what was gone" they told him to write out a list to supply to them. He said they had not asked him any questions on that day. The CIB had not attended but "on the next day or so" he compiled the list of stolen goods which, so he claimed, he took to the Morwell police station. It was given to the policewoman who had attended the premises and he said that she had taken it inside and photocopied it and brought it back to him. He had returned about a week later to the Morwell police station and this time spoke to a plain clothes policewoman who had referred to the list and asked him if it was complete, which he confirmed. At that time he had not thought of his insurance policy but had simply hired equipment while he waited for the police to finish their investigation. He had become ill in January 1996 and had been hospitalised for an operation, so that his wife was then running the hotel. He had employed Beyer who had arranged for the applicant to make a claim on AMP Insurance. The applicant said that Beyer had asked him questions which were then recorded by Beyer on the document. It was not completed in the applicant's own handwriting and the signature was not his signature or handwriting. He said that on the day of making the statement (13 March) he had again read through a copy of the claim form and then acknowledged that the answers had been true and correct, signing the bottom of each page of the photocopy. He said that when the claim form had been sent an assessor had asked for a copy of the crime report. No report had been completed so he again attended at the Morwell police station in February 1996. He had told a policeman that he was never given a copy of the report and a quarter of an hour later that policeman returned with a white copy of an incident report which had been filled out. He did not know the policeman's name but described his appearance. He concluded by saying that he had no knowledge as to the identity of any suspects responsible for the theft. When he had spoken with the police that is what he had told them. In the applicant's own evidence he later suggested that he had made this comment because he had not seen any person taking the goods.
On 17 July 1996 Det. Sen. Const. Suares arrested the applicant at the hotel. She also took some documents from a filing cabinet in his office including a copy of the original insurance claim and of a police Notice to Victim form, as well as the documents provided by James.
On that day he was interviewed. At the trial an edited version of the record of interview was provided to the jury. Many of the deletions appear to have been made because the applicant said that he did not wish to answer and many of the other answers are unintelligible.
In the final version of the record of interview the applicant maintained that it was his equipment which was taken from the hotel. He had seen most of the equipment and, if there was other equipment there belonging to Marasco or Kokkinos, he would not have known about it. He confirmed that there was only one burglary, which was on a Sunday and before he made the crime report on 5 December. Many questions were devoted to the reporting of the burglary and as to how he got hold of the "Notice to Victim" form put in evidence, but it is not practical to summarise all those questions and answers. It seems the purpose of the questioning was to suggest that the crime report produced by the applicant was false but, although the applicant was originally charged with making and using a false document, those matters formed no part of the single count brought at the trial.
In the course of the interview the applicant had denied that Kokkinos had quoted him $30,000 or any other sum to have work done for him at the hotel. He had asked to see a quotation but no document other than the unsigned contract could be produced to him. He denied that the equipment in his disco was supplied by Kokkinos and said that it was all his own equipment. The only new lights were $1,800 worth of lights bought through Marasco. He had confirmed that each of the items on his claim form had been obtained over the years since he had acquired the hotel. He denied any rental contract or other agreement with Kokkinos, but, when asked whether he denied that Kokkinos installed the equipment, he had said: "No. I don't deny install the equipment and I do not - I never been asked any money either." He denied that Kokkinos had ever rung demanding money but there had been a few telephone conversations asking Kokkinos to fix certain equipment. He said it was possible that Kokkinos made some arrangement with Marasco or Di Quinzio, but he did not know of it. When asked whether he would have expected to pay something, he said that he would have expected to see an invoice, to see what it cost and then Kokkinos would have been paid. Otherwise, as he put it, he had presumed "it was just arrangement between the DJs". When it was squarely put that the applicant had been saying that Kokkinos was lying about everything, he had responded: "Yeah. Most of it ... that's all new stuff ... I never heard of that story before." He maintained that only a small amount of material belonged to Kokkinos but he did not know because he was not responsible for it being placed at the night- club. Again he maintained that most of the property on the list prepared by James had been bought by him, but James was the person who compiled the list after the applicant had told him what needed to be replaced.
In his answers the applicant had also denied any further agreement with Kokkinos whereby he would get two further months to pay before the goods would be retaken. He said that, if Kokkinos had told him of his proposed visit, he would have been at the hotel that morning. He denied that he had made the telephone call to Kokkinos just as the police arrived on that day, but said that he was on the phone to someone else. He was asked some questions about the financial deterioration of his business and his need to obtain money, but he had maintained that he merely wished to replace the equipment so that he could run the night-club.
It should be said finally that many of the questions and answers seem confused and in many senses unintelligible, but it was suggested at the trial that this largely flowed from the applicant's poor knowledge of English. For example, he explained his earlier answer that he had had no idea who was responsible for the burglary by saying that he could not have given any different answer because he had not seen Kokkinos take the goods.
At the trial the only evidence called for the defendant was that of the applicant himself, of which only the barest summary can be given. He gave evidence of his business arrangements with Marasco and Di Quinzio and of meeting Kokkinos through them. He said that Marasco and Di Quinzio looked after the renovations. He had never received any invoice for any work from Kokkinos, nor had he entered into any contract with him or been asked to sign any contract. He denied that Kokkinos had ever demanded any specific sum from him. Likewise he denied receiving any notification from Kokkinos that he was coming to collect his equipment. He himself had arrived at the hotel about midday and shortly thereafter discovered all the equipment except for the wiring and one light was missing. He was so shocked that it had been left to his wife to telephone the police. He may have been on the telephone when the police arrived but they had only waited 20 minutes. He said that the male officer said that they had another call and had to go, and that, if he wanted to press charges, he would have to see them later. It is possible that he had told the police that his equipment would be returned.

He continued his evidence by saying that he had gone to the police station to deliver a list of the goods which had been stolen. This had occurred before he had gone into hospital in January. In all, over January and February, he had been in hospital for some 15 days. He then confirmed the evidence of Beyer and Neale as to their advice to make an insurance claim for the stolen goods. He said he never wanted to obtain cash but simply wished to replace all the equipment in order to run the night-club again. He confirmed that a claim form was filled out by Neale and Beyer and said that he had not read the insurance policy properly because he could not read English very well and could not write English at all.
He agreed that he had told Buckley that he did not know who stole the property but he had said that because he did not see anyone actually stealing it. He also agreed that on the day of the theft he had spoken to Kokkinos on the telephone, but Kokkinos had not told him that he had the property with him. He had given Kokkinos one week to bring the property back. He said the goods were not returned by the following Monday and so he had gone to the police with the list of the goods which were missing. He denied any wrongdoing in obtaining the police report form.
After the defence case was closed the learned judge noted that the applicant had no prior convictions. Consequently counsel recalled the applicant to the witness box formally to give evidence that he had no such convictions.

(c) Issues raised at trial and on appeal

Whatever be the obligation to provide lists of prior convictions of witnesses, the present appeal can only be resolved if the Court is able to conclude that there has been a miscarriage of justice, as ground 1 asserts, or if it can conclude that the verdict was unsafe and unsatisfactory, as ground 2 asserts. In either case that must raise for consideration the extent to which the provision in this case of that information about the witness Kokkinos would have been material to the conduct of the defence case, inasmuch as the Court must enquire whether the inability to put questions as to Kokkinos's credit may fairly have led to the loss by the applicant of a chance of being acquitted on the count charged against him. For this purpose it is important to understand the issues raised by the charge, which for practical purposes may most easily be ascertained from the way in which the issues were contested at the trial, although it does not follow that in every case one is bound to look only at the way in which the parties chose to put their cases. In the present case the Court, as occurs unfortunately in the vast majority of applications, does not have any transcript of the addresses. One must therefore glean the issues from the cross-examination and, more importantly, from the manner in which the issues were described by the learned trial judge in his charge.
I may say, without equivocation, that it is most regrettable that the learned trial judge failed to provide the customary judge's report, as is required by statute and rule: see Crimes Act 1958 s.573 and Criminal Appeals and Procedures Rules 1998 Order 2 Rule 27. The essence of the issue raised by the present grounds of the application was stated in the original notice served in April this year, the late amendment affecting only its formulation. Not only has it become an unfortunate habit of some judges to refuse to provide such reports in accordance with their obligations, but in the present application it is doubly unfortunate in that the opinion of the very experienced trial judge was not available as to the significance of the credit of Kokkinos in the present trial. Of all situations where a report will be of use, it is in cases which raise the significance of a particular witness and his credit, such as that of Kokkinos, where the judge's assessment will provide invaluable assistance to an appeal court. There were a number of issues in the present trial, or at least there could have been a number of issues, but the manner in which the case was fought and the significance of each witness is a matter upon which a trial judge can give direct assistance, albeit not conclusive of the merits of an application. Here one of the arguments has been that there was a considerable body of other evidence which was more than sufficient to justify the conviction of the accused and indeed it was asserted that there was here sufficient evidence to make the applicant's conviction certain without the need to rely on Kokkinos's evidence. One might hope, therefore, that in the future trial judges will comply with their obligation to provide a report and, in cases such as the present, attempt to provide some estimate of the significance of the impugned witness.
Nevertheless one may gather some clues as to the nature of the contest in this trial from the relatively succinct charge to the jury by this experienced judge. From the outset his Honour emphasised that a critical question was the dishonesty of the applicant which meant that they had to be satisfied to the relevant standard of proof, in his words "that he acted without any belief that he had a legal right to make the claim or that he believed he had no legal right to make the claim". As was pointed out, this is not a case where there had been any admission of that kind because the applicant "consistently maintained that he believed that he had a right to make this claim". So the jury was told that it did not matter whether or not the belief was mistaken in law or was entirely unreasonable "so long as the belief is genuinely held". Whether or not his Honour expressed the principle with precision, he then emphasised that it did not matter whether the applicant had used deception to make the claim. I rather think that, as appeared later, what he was emphasising was that the Crown could not rely on some mere incidental misrepresentation or deception, and was saying that there were three deceptions charged which, although alternative, were of the essence of the Crown case in that one or other had to be proved. I should repeat that it seems that deception (c), to the effect that he had reported the burglary to the police on 7 December 1995, was not pursued inasmuch as there was clear evidence from the police witnesses that the applicant had made some attempt to make a report, albeit that that report (and there was probably one other) was made on 5 December 1995, the variance being treated as immaterial.
The issues were therefore confined to the deceptions said to have formed part of the making of the insurance claim, (1) that he was the owner of the audio and lighting equipment removed from the hotel and (2) that he had discovered that the audio and lighting equipment had been stolen during a burglary on 7 December, the variance again being treated as immaterial. As the learned judge pointed out, the case depended not on the putting in of the claim form but upon the statement made to the investigator on 13 March 1996 and additionally the signatures then added to the copy claim form. His Honour appeared to concentrate, not so much upon whether the facts there stated were true but upon whether there was any other reasonable explanation, e.g. that he believed that he was entitled to claim the insurance moneys. Presumably that reflected the manner in which the case had been fought.
Consequently, after analysing the legal elements of the charge and noting that it was accepted that the applicant intended to get the money for his own purposes, his Honour returned to the manner in which the applicant had described and understood the events of late November and early December.
The learned judge said that the Crown case was that the applicant was aware that the night-club had to be upgraded and that Kokkinos had been approached to provide new equipment which the applicant agreed to hire and that thereafter there was to have been an arrangement by which he could buy it. The case was that in fact Kokkinos had upgraded and installed the equipment, the night-club had been opened but no rent had been paid and Kokkinos had then started asking the applicant to pay the rental. Further that situation had continued until August or September when Kokkinos and the applicant had agreed that the applicant should have another couple of months and that, if he had not paid by then, Kokkinos could take all the equipment away. The judge seemed also to accept that the Crown had sought to maintain a case that there was a further conversation wherein Kokkinos had said that, if he had not been paid by the following Sunday, he was going to come down and pick up all the equipment.
His Honour then explained to the jury that there are leasing agreements and the like, the effect of which may be that if the lessee is lawfully in possession of the property, it will be theft if some person takes it away without the lessee's consent. The prosecution case was that, although there was not a written agreement, there was an agreement whereby Kokkinos could come and take the property if the accused did not pay, although that could not depend upon an artificer's lien. He said therefore the issue was whether the applicant had agreed that Kokkinos should have a right to take the property back if he did not pay. His Honour then dealt with the various versions as to the applicant's reporting the matter to the police as a burglary and as to the dispute about the telephone conversation, in particular as to whether the applicant had said he was going to get his property back, so that in consequence the police did not put in a report that a burglary had been committed. The judge, however, pointed out to the jury that in fact a report had been put in early in December.
The learned judge then dealt with the making of the claim and the filling in of the form before the alleged attempt was said to have occurred, i.e. when he was interviewed by the insurance investigator. It had been argued that his answers in the course of his later record of interview which were said to be at variance with what the applicant now said and from which it had been contended that the jury should infer that the applicant had been acting dishonestly throughout.
His Honour then turned to the applicant's case, which he summarised by first referring to the applicant's claim that he had a full range of equipment in the night- club until it was renovated. The judge said that the accused's case was that Kokkinos had come down to repossess his property and was ready to take it and did take it, "no matter what the accused said". He then repeated the argument that Kokkinos had said that there was an agreement whereby he could take back the equipment and that Papageorgiou would confirm that, but the judge pointed out that Papageorgiou had not sworn up to that story and had admitted a number of convictions. The judge said that the argument had continued by contending that the police may well have proceeded in a different way, especially if they had interviewed Street more carefully, so that they might not have believed what Kokkinos then said. It had also been argued that the applicant's position had been consistent, inasmuch as he had gone to the police within a few days with a list of the property said to be stolen.
His Honour then pointed out that English was not the applicant's mother tongue so that he did not have a perfect command of English and that may have explained some of the answers in the course of the record of interview. However, his Honour said that the applicant had been consistent in asserting that he believed he was entitled to make the claim and that precisely what was on the list might well be explained by the circumstances in which it had to be prepared. One may assume that this also formed part of counsel's address. The judge reiterated that the question about which the jury had to be satisfied in considering the issue of dishonesty was whether the applicant "fully realised that he had no right to make that claim and had no right to claim on the insurance company as he did".
It was in those relatively simple terms and on that relatively confined question that the learned judge left the issue to the jury. Some one-and-a-half hours later they brought in a verdict of guilty.
It seems that within a short time the applicant or his advisers discovered Kokkinos's criminal history. Indeed, before the notice of appeal (as it was then formulated) was put in, Kokkinos had been sentenced by another judge to various terms of imprisonment, albeit that those sentences were varied on appeal. In his notice filed on 15 April 1998 the applicant set out in some detail what he had discovered, alleging that, if it had been known, his counsel would have used the material to attack the credit of Kokkinos. The evidence placed before the Court as to this undisclosed material is relatively limited but entirely sufficient for the purpose. Affidavits have been filed on each side. Counsel for the applicant at the trial has stated that he was not aware of Kokkinos's prior convictions or of his recent pleas of guilty and that he would have put that material before the jury in order to attack his credibility. He conceded that he had not asked the prosecution as to Kokkinos's prior convictions but that he had detected nothing in the depositions or in his instructions which suggested that there was such a record, although he had received material from which he was able to attack Papageorgiou's evidence. For the respondent an affidavit has been filed which concedes that the material relating to Kokkinos's record was not made available during the trial at Bairnsdale but makes clear that the deponent, who was the instructing solicitor at the trial, knew nothing of Kokkinos's previous convictions or of the other proceedings. Apparently those proceedings were conducted at Melbourne and nothing in the file kept by the Office of Public Prosecutions relating to this prosecution, the police brief or the depositions contained any indication that Kokkinos had such a history or was awaiting sentence. The deponent also stated that the applicant's legal representatives had made no request as to Kokkinos's history, nor did counsel at the trial.

(d) Prosecutor's duty is to inform defence of accused's prior convictions

It was asserted on behalf of the applicant and equally firmly denied on behalf of the respondent that there was a duty upon the prosecutor in every trial on presentment to inform those representing the accused of all prior convictions of the witnesses which the prosecution proposed to call. In particular, counsel for the respondent said that those statements in the authorities cited which appeared to reflect some general duty are each dependent upon the terms of some statute, regulation, practice note or the like and that there was no general principle other than that which had given rise to the practice in this State that, if a request was made on behalf of the accused to that end, the prosecution would inform the defence of any material convictions.
It will be necessary to return to the alleged practice below, but I cannot accept that the prosecution's duties are so limited.
The duty of the prosecution in these circumstances may seem, in general terms, to be clear but how it is to be effectuated appears less plain. On the obligations of prosecutors generally the High Court has delivered a number of judgments: Ratten v. The Queen (1973) 131 C.L.R. 510 (esp. at 517); Richardson v. The Queen (1974) 131 C.L.R. 116 (esp. at 120-121); Whitehorn v. The Queen (1983) 152 C.L.R. 657 (esp. at 664-665) and Apostilides v. The Queen (1984) 154 C.L.R. 563 (esp. at 575-576). For example, in Whitehorn Dawson, J. (with whom Gibbs, C.J. and Brennan, J. agreed) described (at 675) "the general obligation which is imposed upon a Crown prosecutor to act fairly in the discharge of the function ... ultimately to assist in the attainment of justice between the Crown and the accused". In only one decision of the High Court, to my knowledge, has the prosecution's obligation to make disclosure of adverse material arisen for consideration, namely in Lawless v. The Queen (1979) 142 C.L.R. 659, but the material there said to have been withheld was a witness statement not the criminal history of any witness. The argument and judgments concentrated primarily on whether an undisclosed statement, said to conflict in part with the evidence of another Crown witness, could amount to "fresh evidence" and, assuming it did, whether it was likely that a different verdict would have been returned. It was also argued that the prosecution had wrongly failed to call the evidence or to give a copy of the witness statement to defence counsel. The majority, however, saw the potential evidence as failing to have such cogency and relevance as would have led to a different verdict, so that they said relatively little on the disclosure issue. All members of the Court appeared to agree that it would have been good practice or "better" (at 667 and 674) for the prosecution to have informed the defence of the existence of such a statement, but the majority appeared not to have considered it necessary that the statement itself should have been provided. Having regard to the doubtful significance of the material and the manner in which the issue was treated by the Court, the observations as to disclosure must be treated as having limited application and certainly having little bearing on the issue before this Court, especially if one has regard to the fact that the Court carefully eschewed any discussion of general principle other than confirming what had been said in Richardson about the prosecutor's obligation to call witnesses.
Since that time there has, however, been examination in detail of the relevant authorities and principles in three other courts of final appeal, by the New Zealand Court of Appeal in Wilson v. Police [1992] 2 N.Z.L.R. 533, by the Irish Court of Criminal Appeal in The People v. Kelly [1987] I.R. 596 and, most recently, by the House of Lords in R. v. Brown (Winston) [1998] A.C. 367, all carefully drawn to our attention by counsel for the applicant. Counsel for the respondent here contended that the decisions of all courts outside Victoria depended on their own statutory regime or local practice, but in at least two of these cases it was made clear that the appeal was to be resolved by the application of common law principles: see esp. Wilson at 535, 536 and 542 and Brown at 371 and 374. In Kelly discussion of the issue and the (English) authorities made it abundantly clear that only general principles were in issue. What is critical to the three decisions is not so much the practice recognised or laid down in those jurisdictions but a recognition of the common law obligation of the prosecution to make proper disclosure of relevant witnesses' prior convictions in terms which cannot be described as perfunctory or restricted. It must be conceded that neither Wilson nor Brown is direct authority for the question now under consideration, inasmuch as Wilson arose out of summary proceedings and Brown raised and rejected a contention that similar disclosure should be made of the records of defence witnesses, but each proceeded from the basis of the principle applicable to disclosing prosecution witnesses' convictions in trials on indictment
In Wilson the judgment of the Court (Cooke, P. and Casey and Hardie Boys, JJ.) was given by Cooke, P. After a very careful examination of the authorities and reference to textbooks and information supplied from England by senior counsel and the Crown Prosecution Service, Cooke, P. concluded that the common law principle, founded on the prosecution's duty of fairness, was "that the prosecution must disclose convictions of witnesses relevant to credibility" (at 540). Finally the Court defined the rule in these terms, in the course of setting out three propositions (at 542):
"Before all defended trials, whether on indictment or summary, the prosecution should as a general rule notify the defence of any conviction known to the prosecution of a proposed witness whose credibility is likely to be in issue, if that conviction could reasonably be seen to affect credibility."
For that purpose the Court stated that, insofar as there were computers available, then a check should be made as a matter of course for trials on indictment, but there were circumstances in which the prosecution might choose not to disclose convictions such as unfair exposure of past convictions or the apparent absence of any issue as to credibility, but there it was laid down that the prosecution should still notify the defence in general terms of the existence of such a conviction which it had thought unnecessary or inappropriate to disclose, giving the defence an opportunity of applying for some remedy. It should be noted that the Court at all times confined the rule to convictions reasonably likely to bear on credibility: see at 537 and 542.

In Kelly the Irish Court of Criminal Appeal (consisting of Finlay, C.J., Lynch and Lardner, JJ.) expressed concluded views on the issue, having considered only the English authorities including R. v. Collister and Warhurst (1955) 39 Cr.App.R. 100 and R. v. Paraskeva (1982) 76 Cr.App.R. 162, being some of the earlier cases which gave expression to the principle. The primary proposition stated by Finlay, C.J. (at 599) was to this effect:
"If the prosecution is aware of a previous conviction for a criminal offence of a prosecution witness they should inform the defence before the trial of that fact and of the nature of the conviction."
The Court went on to say, presumably upon the basis of the lack of extensive computer records in the Irish Republic at the time, that there was no duty to make exhaustive or widespread enquiries. Nevertheless, in order to cope with this difficulty, they laid down a further principle that, if there were serious convictions, unknown at the trial, recorded against a significant prosecution witness, that fact upon its discovery may amount to new evidence, which might have led to a different verdict, thus justifying the setting aside of the verdict.
In the most recent of these cases, Brown, the House of Lords had to consider whether the prosecution had an obligation to disclose prior convictions of defence witnesses but concluded that there was no such obligation. However, the argument proceeded from a careful analysis of the prosecutor's general duties to a consideration of those duties which related to the provision of material as to evidence to be called by the Crown, finally distinguishing those cases in order to reach its final conclusions. Thus in the speech of Lord Hope of Craighead (with whom Lords Goff, Slynn, Clyde and Hutton agreed) his Lordship first referred (at 374-375) to the fact that the rules of disclosure owed their origin to "the elementary right of every defendant to a fair trial" and that: "It would be contrary to that principle for the prosecution to withhold from the defendant material which might undermine their case against him or which might assist his defence". In the course of analysing the English authorities, by means of which indirectly his Lordship approved what had been there described as the "important judgment" in Wilson, the common law rules were described as requiring, not the leading of evidence which might undermine the Crown case, but disclosure of it to the defence, and as a corollary (at 377):
"The investigation process will also require an enquiry into material which may affect the credibility of potential Crown witnesses. Here again, the prosecution is not obliged to lead the evidence of witnesses who are likely in its opinion to be regarded by the judge or jury as incredible or unreliable. Yet fairness requires that material in its possession which may cast doubt on the credibility or reliability of those witnesses whom it chooses to lead must be disclosed."
In this country there has been virtually no reported discussion of this issue except indirectly, as has been described in the judgment of Charles, J.A. (with whom Winneke, P. and Hayne, J.A. agreed) in R. v. Lewis-Hamilton [1998] 1 V.R. 630 at 634- 635. The issue discussed in that case was the obligation of the Crown to disclose a conflicting version of evidence contained in a victim impact statement and for that purpose it was necessary to look at those few cases where the question of disclosure of material of that kind had been discussed. An unreported New South Wales decision of the Court of Criminal Appeal in R. v. CPK (21 June 1995) discussed only the prosecution's obligations to disclose relevant conflicting evidentiary material: see at pp.5-6 of the judgment of Gleeson, C.J., with whom Clarke, J.A. and Hulme, J. agreed. Likewise the other authority cited dealt primarily with the need to disclose other information in the hands of prosecuting authorities which might throw doubt on the Crown case or on prosecution witnesses but which might otherwise be said to raise other problems of policy: The Queen v. K (1991) 161 L.S.J.S. 135. There, in a passage which Charles, J.A. cited at 634-635, King, C.J. (with whom Cox and Debelle, JJ. agreed) said that the obligation on the prosecution to disclose extended "to any information in the possession of the prosecution which reflected materially upon the credibility of prosecution witnesses" but that there must be limits to what had to be disclosed (at 6). In the passage cited by Charles, J.A. King, C.J. made this brief observation:
"There is clear authority for the proposition that the prosecution must disclose to the defence any convictions of prosecution witnesses of which the prosecution is aware. R. v. Paraskeva [1983] Vol. 76 Crim.App.R. 162."
It may be observed that the case there cited, though frequently cited for similar propositions, contains little or no discussion of principle but the duty on the prosecution to disclose convictions which are known was there said to be "not in dispute".
Notwithstanding the absence of direct authority in this country relating to the obligation to disclose prior convictions, I would conclude, by reference to considerations both of authority and principle, that at the least there is, in general terms, a common law duty to make disclosure of previous convictions of prosecution witnesses, though the precise manner in which this duty should be worked out and applied may depend upon the court in which the prosecution has been brought, the means of obtaining that information and possibly other circumstances relevant to the individual case, as analysed below. Counsel for the respondent, however, denied that there is any such duty except to the extent that a specific request is made for the criminal history of particular witnesses, so far as that is relevant and capable of being obtained. Counsel asserted that in that limited form that was in fact the practice in Victoria, but counsel for the applicant did not accept that that was so and I have not been able to find any support for such a restriction to the general principle. There is no reference in the authorities to the need for a request, except in circumstances very different from those presently under consideration: cf. the reference to summary hearings in Wilson at 542. There is, to my knowledge, no reference in any of the practice books to such a need. For example, in the recently published (1998) Victorian Trial Manual compiled by His Honour Judge Mullaly, there is no reference in the relevant paragraph 8.206 to any need to make a request, except in relation to the accused's own antecedents. However, it should be noted that the only authority referred to in the Manual is the earliest of the English cases, Collister and Warhurst. Moreover among the materials provided on behalf of the respondent was the work entitled Preparation of Criminal Trials in Victoria edited by Richard M. Read (1984). The two passages which were cited do not support the respondent's contentions. In the chapter written by the then Director of Public Prosecutions, J.H. Phillips Q.C. (as he then was), in paragraph 1.18 it is said:
"There are other cases where, as a matter of fairness, the accused and his legal advisers should be informed as to a prior conviction or convictions of a prosecution witnesses. I mean by this a prior conviction or prior convictions which materially affect the witness's credit."
Likewise in a chapter written by Mr Read, in para.2.57 it is said:
"In the course of preparing a case for trial, or during the trial, the preparation officer may become aware that a Crown witness is of bad character and does in fact have prior convictions. It is then the Crown's duty to request the informant to obtain the 'Criminal History sheet' (Form 260) relevant to that particular witness. In due course the trial prosecutor should inform defence counsel of the precise nature of prior convictions relevant to the defence."
No reference to any request was contained in either passage. Neither as a matter of principle nor as a matter of practicality should any such qualification be read in to the principle stated.
The suggested qualification is inconsistent with the principle which is based on fairness and propriety, although its application must pay heed to the availability of the information to the prosecuting authorities. In terms of fairness, it is invidious that the accused should have to identify in advance those witnesses whose credit it is desired to attack; indeed, knowledge of the witness's record may suggest a line of attack not otherwise obvious. The qualification is impractical in that, in order to avoid identifying those witnesses at risk of attack or in order to avoid criticism afterwards for failing to challenge a particular witness, or both, the accused and their representatives will simply request that the prior convictions of all witnesses be supplied, resulting in exactly the same perceived difficulties. It might be more sensible if the Crown were to ask if disclosure were sought in relation to any group of witnesses whose evidence is uncontroversial, but that could be done at directions hearings (such as the Pegasus Two hearings) which are becoming more common in criminal proceedings. It cannot affect the principle.
A number of other criticisms were made of the principle to the extent that it required provision by the Crown of lists of prior convictions without any specific request. It should be said at once that it is not necessary in the present case to refine the application of the rule in order to apply it to the circumstances of this trial. For reasons which appear elsewhere there can be little doubt that Kokkinos was a witness of prime importance to the Crown case, described as the "key witness" by counsel who appeared at the trial, for it is evident his evidence (at the very least) set the scene for that which followed, including the making of the alleged dishonest claim. Further his prior convictions were serious, recent and relevant to the issues in the trial, again for reasons stated elsewhere. Moreover the type of conviction, primarily for offences involving dishonesty, were of the kind commonly used to impugn the credibility of witnesses and were germane to the kind of evidence Kokkinos gave at this trial as to the making of certain challenged agreements.
Notwithstanding that it will not be difficult to see how the principle should apply in the present case, any rule of practice derived from the principle must be tested against its general practicability in circumstances where the prior convictions may not be so closely tied to the kind of attack on credit which the applicant wishes to make. It was not directly said that it was impossible to obtain these convictions under present circumstances. Rather it was suggested that it was not as easy as the press of a computer button which the applicant asserted was all that was necessary. There is no doubt that criminal histories are available on computers of the kind described in Wilson, but it was asserted that it would be a long and expensive process to print them out. Of course they need not be printed; they may be merely transmitted by computer or on a disc, which so many of the criminal bar are adept at using.
Doubtless if the enquiries have to be made in every case, whether tried on presentment or summarily and whether or not a plea is to be made, the task might become unnecessarily burdensome. For the present it is sufficient to say that the rule as stated, without any requirement for a prior request, should not be taken to extend beyond all trials on presentment or indictment, the matter of the application of the rule to summary hearings being left for another day, but as to which see Wilson generally. Nor is it strictly necessary to hold that the rule applies to all witnesses including expert witnesses and witnesses as to formal matters. Although one could say that the rule applies generally, it may fairly be assumed that a certain amount of common sense will apply. One hopes that this would at least occur in the case of the somewhat ridiculous example put by the respondent to the Court of the trial, which fortunately still must be reasonably rare, where some 174 witnesses were to be called, but, if a trial has to be run in that way, then fairness demands that a disclosure in some form should be made.
Finally it is not here presently necessary to say whether all convictions should be disclosed including convictions many years in the past or convictions for minor and otherwise irrelevant offences. In practical terms one would doubt that the distinction would have any significant bearing except to the extent that a decision might have to be made whether to supply any prior convictions at all. The information will have to be obtained from the computer before any decision is made and there would be little practical purpose in suggesting that some convictions might be deleted but others provided to the defence, unless all are truly "stale". The suggestion of Cooke, P. in Wilson (at 542) might well be adopted, namely that, if the conviction were so far in the past or for so relatively minor an offence as not to "bear on credibility", then the prosecuting authorities might choose simply to inform the defence that there were convictions of that class which would (or would not) be forwarded on request, but that otherwise it was not intended to do so. Again it is unnecessary to express a final view on this issue.
Counsel for the respondent raised one somewhat different issue in opposition to the application of any general rule imposing the burden on the prosecution. It was said that the provision of the witness's record might infringe the witness's privacy. Again a resolution of this question is presently unnecessary but for the most part it would seem unlikely to arise in an inordinate number of cases, nor were any specific examples given to suggest the contrary. It is not necessary to consider what might be done in relation to what are commonly called "spent" convictions but the suggestion of Cooke, P. again may seem to be useful and appropriate, namely that, if there be a doubt, the prosecution might simply inform the defence of that fact and no more.
Consequently, at least for present purposes, the rule may be stated that, at the least, in trials on presentment or indictment, the prosecution should inform the defence of any convictions of every proposed witness whose credibility may be in issue, if proof of any such conviction may reasonably be seen as capable of affecting the witness's credibility. It is irrelevant that counsel or instructing solicitor or any other person directly engaged in the prosecution of the particular charge is unaware of any relevant conviction, for it is for the prosecution to make the necessary enquiries on computer or otherwise, although it could not be suggested that their obligations go further. Again for present purposes that level of enquiry must be seen as having been necessary, so that, without examining that issue further, the ignorance of both counsel and instructing solicitor was irrelevant in the present case.

(e) Did the failure to provide Kokkinos's criminal history result in a miscarriage of justice?

Whatever be the precise formulation of the rule for future purposes, there is no doubt, in my opinion, that the prosecution wrongly failed to provide the applicant's legal representatives with the criminal history (both the prior convictions and the pleas to later offences) of Kokkinos. That was both relevant in the necessary sense and of a kind likely, if not certain, to be used for the purpose of attacking his credibility.
The failure to disclose the prior convictions led to the inability of the applicant's counsel at trial to cross-examine Kokkinos effectively as to his credit. That consequence cannot be doubted because there was no other way (except by chance) in which counsel could have discovered the criminal history of Kokkinos. In the present case it can also be said without hesitation that counsel would have cross- examined Kokkinos if he had had the information. There was no question of the applicant being thereby at risk of cross-examination as to credit by the prosecutor. He had no criminal record and, in any event, counsel chose to cross-examine Papageorgiou as to his credit by putting questions as to that witness's record.
Moreover, in the present case, the significance of any cross-examination of Kokkinos as to his record cannot seriously be doubted. At the time of the trial Kokkinos had a record of 28 previous convictions and of pleas of guilty to nine further charges, most of which were for offences of dishonesty which were committed over a period from 1985 to July 1996, that is at times before and after his dealings with the applicant alleged at the trial.
Consequently, although any conclusion involves a degree of speculation, there can be little doubt that considerable damage could have been caused to Kokkinos's credibility if his record had been admitted or proved. Since Kokkinos was alleging some unusual business transactions, which the applicant denied, his credibility most likely would have been severely shaken and the jury may well have had considerable doubts as to his version of events, or at least sufficient uncertainty as to lead it to have reasonable doubts as to the reliability of his evidence.
The only real question, then, is whether those possible, indeed, likely doubts, would have undermined the prosecution case sufficiently for it to be said that the applicant fairly can be seen to have lost an opportunity of obtaining a verdict of acquittal. The answer to that question requires some appreciation of the role of Kokkinos's evidence in the prosecution case. Doubtless it can be said that the charge brought against the applicant did not depend on Kokkinos's evidence directly to prove any element about which the jury required to be satisfied, inasmuch as the nature of the contract alleged by Kokkinos related only indirectly to the applicant's beliefs. Rather the prosecution sought to assert that the applicant had made certain false representations in order to obtain payment of his insurance claim made in February or March 1996. The primary claims of deception were two misrepresentations, (1) that the applicant was the owner of the audio and lighting equipment removed from the night-club and (2) that that equipment had been "stolen during a burglary". The dates alleged in the counts were treated as immaterial and the third misrepresentation could not be proved and was not relied upon.
In each case, however, those representations raised issues as to the applicant's belief as to his right to that equipment. In the one case, if the arrangements with Kokkinos had not been as Kokkinos had asserted, the applicant might have been accepted as believing that most, if not all, of the equipment taken had belonged to him when it was taken, or, at least, that he believed that he had a right to retain possession of it whatever other legal claims Kokkinos might have made against him. In the second, the applicant's asserted belief as to a theft or burglary depended almost entirely on his belief as to his right to possession of the equipment, inasmuch as acceptance of Kokkinos's version would have made it almost impossible to accept that the applicant had honestly described the events as a theft or burglary.
Now it may be said, without wishing to suggest that the applicant ought not to be believed, but as the respondent argued, that the applicant's versions of the events had many inconsistencies of a kind which no doubt could properly have led the jury to a conclusion of guilt beyond reasonable doubt. His behaviour on the day, his apparent withdrawal of the charge, the version of events put to the insurance investigator, his often incoherent and defensive answers in the record of interview and even his evidence at the trial would have given prosecuting counsel much to attack. However, it must be noted that, so far as one can gather, no case was put on the basis of an assertion that his statements were lies of a kind which evidenced a consciousness of guilt. I am not sure that such an argument could have been advanced in these circumstances (and it is presently unnecessary to decide that question), but in any event no warning was given and no such argument was summarised or referred to in the charge. The Crown had sought to make a positive case, albeit that that involved asserting that the representations were, in effect, untrue; but its case also relied on showing that the applicant had no right or title to the equipment and could not have believed that he did.

In the latter sense the prosecution case depended heavily on Kokkinos's evidence and I am not satisfied, notwithstanding the apparent inconsistencies in the applicant's versions, that, if the Crown case had been obliged to rely on the other materials (primarily those versions of the applicant and the police evidence), a case could have been made out beyond reasonable doubt. For the purpose of considering those inconsistencies it must be remembered that the applicant had not only a poor grasp of English and a relatively limited commercial background but was also recovering from two recent operations, such that any analysis of or comment upon his own understanding of the acquisition of, and his rights to, the equipment would not necessarily provide a reliable guide to the actual legal relationship of the parties or, more importantly, to his belief as to their relationship, unless there had been a clear, direct and unequivocal admission of guilt by the applicant.
I do not believe that anything said by the applicant, upon which the prosecutor might have relied, could be characterised as a clear admission that he believed that he had no relevant interest in the equipment. Even his equivocal attitude to the police when they first came on Sunday 26 November is not conclusive. Assuming the telephone conversation took place with Kokkinos, an arrangement with an alleged "thief" may not always show that a person withdrawing a charge of theft or the like does not believe that he or she had rights in the subject property. Indeed I would understand it to be quite common, whether rightly or wrongly, for charges to be withdrawn or not pursued by persons entitled to goods, either because the parties deprived would rather sort it out with the "miscreants" or would simply prefer not to subject themselves to the hassle of giving evidence. On the day there was clearly some retreat or compromise by the applicant (albeit said to be in the hope of recovering the goods), but his claim may be seen to be supported by his actions in the following week, of which there may be some doubts as to details but none as to the fact that he visited the police station to make a report of the theft or burglary. The fact that the police did not then treat it seriously reflects only on the sufficiency of their enquiries on the Sunday because there was a strong argument that there was in fact an unlawful entry onto the premises by Kokkinos, if not by his disreputable friend. In short, the jury may have thought there had been a compromise but that does not mean that the applicant did not believe he had rights to the property taken or, more particularly, that the jury may not have been left in doubt as to the lack of those beliefs.
As to the later events, it is clear that the applicant was persuaded to pursue his beliefs by making a claim on his insurance policy by Beyer and Neale who had been brought in to assist him to manage the business. It was their suggestion, not his, however imperfect his description of the events had been. As to what then occurred, it must again be remembered that, apart from his imperfect command of English, he had by then had two reasonably serious operations and was only then recuperating. That may, in the eyes of the jury, have made his answers to the investigator excusable, even if it be accepted that some of them were inaccurate. A similar explanation could be given for his poor, if not incoherent, response to many of the answers put in the record of interview. In my opinion, none of those answers, alone or in combination, could have proved the Crown case to the required extent.
Counsel for the respondent pointed to the fact that the applicant had never denied that certain of the goods delivered by Kokkinos had not been paid for by him and that likewise Kokkinos had admitted that certain of the goods taken by him on 26 November were not his property. It was therefore suggested that it was not important that Kokkinos's version might further be attacked on the grounds of his want of credibility, for his right to the equipment was essentially the only issue where his evidence could have been seen to be relevant to the applicant's belief as to the ownership of the equipment. Rather, so it was said, those facts in themselves and his behaviour on the day of the so-called burglary demonstrated that the applicant could have no honest belief in his right to the equipment and that his claim had been dishonest. That, however, is to oversimplify the case brought against him and the nature of his defence. If the prosecution case were as cut and dried as the arguments sought to make out, then Kokkinos's evidence would have been of little consequence. In fact prosecution counsel at the time described Kokkinos as the "key Crown witness" and for good reason.
As stated above, the applicant's answers to the investigator and to the police exhibited much confusion, to say the least, but there was, and remains, reason to think that his answers were to some degree affected both by his poor command of the English language and the state of his health. It was for the Crown to refute that he had had an honest belief that the goods were his and that they had been stolen by Kokkinos and his colleagues. If Kokkinos's evidence had been clear and his claim to the equipment could not have been doubted, then the applicant would have been hard-pressed to explain how he could have allowed the claim to have been forwarded to the insurer in the first place and why he sought to maintain it in unqualified terms to the investigator. On the other hand, if there were uncertainty as to Kokkinos's claim and in particular as to how much of the equipment taken remained the applicant's property, any uncertainty as to Kokkinos's dealings with the applicant might be seen to serve to justify the apparent confusion as to certain of these details in the applicant's mind or at least to leave a reasonable doubt as to his dishonesty, which the learned judge saw as really the only issue.
As presented at the trial, however, there seemed little doubt on the face of it that the applicant had entered into some contract as to the equipment for which he had made no payments. In turn there was said to be little doubt that Kokkinos had been fully entitled to take back his own equipment from the hotel, even if that had involved taking back some of the applicant's own equipment which Kokkinos maintained he had a right to take by reason of the later agreement to that effect with the applicant. However, if the basis of Kokkinos's evidence were to be truly thrown into doubt, then the applicant's appreciation of his rights and role might well have seemed different to the jury. There was in truth little direct support for most of Kokkinos's evidence and even as to the circumstances of the alleged burglary his only support came from the discredited Papageorgiou. For the rest it depended on his own say so and upon inference. Looking only to Kokkinos's taking of the equipment, what might seem merely an honest attempt to regain his own property depended almost entirely on his own evidence except for Papageorgiou's dubious corroboration. The jury had only Kokkinos's word that he did not gain entry by deception, though he pretended to Street that he had come to collect a ladder and had arrived at a time before the applicant normally opened the hotel on Sundays. Moreover, one has only Kokkinos's direct word for his earlier warning and for the curious arrangement which enabled him to take the applicant's other equipment to pay for the repair work.
Whether or not Kokkinos had the right to take the equipment which he said he supplied and which was being rented by the applicant, the likelihood of the jury accepting those aspects of Kokkinos's story referred to in the last paragraph if they had known that the taking of the equipment was effected by a person guilty over the years of some 37 offences, aided and abetted by an accomplice with at least 15 prior convictions, must have been significantly reduced. Moreover, the jury might well have thought that both this evidence and indeed the rest of Kokkinos's evidence lacked credibility if they had considered Kokkinos had been trying to avoid being himself charged with burglary or theft of at least some of the equipment. Such an allegation was made in the course of the cross-examination but it had little or nothing at that time to support it. It is not for this Court to reach any conclusion whether such a charge could have been sustained but proof of Kokkinos's record might have changed the atmosphere of the trial dramatically. That which Kokkinos asserted may well have been treated with greater caution and that which the applicant said in answer, notwithstanding its deficiencies, may well have been looked at in a different light.
It could still be said, as was emphasised by the respondent on this application, that there seemed to be at least a quantity of equipment, perhaps worth up to $20,000, which Kokkinos on any view supplied, for which the applicant conceded he had made no payment and to which he made no claim of right. Here it must be remembered that the actual proportions of goods supplied by Kokkinos and of the applicant's goods repaired depended largely, although not exclusively, on what Kokkinos said he had done and on Kokkinos's own records. But he had forgotten to bring most of those records, so he said, and could produce only the unsigned and otherwise unverified and dubious rental agreement which purported to show a long list of equipment supplied by Kokkinos. The learned judge seemed sceptical of the authenticity of this document, but told the jury that, if there were a rental agreement, it did not follow that Kokkinos necessarily had a right to take the goods away for non-payment. The applicant would have been "lawfully in possession" of the equipment and, if Kokkinos had taken it without the applicant's consent, it would have been a theft. That may have been an oversimplification in that Kokkinos might have terminated the supposed rental agreement if he had given notice when the applicant failed to comply with the terms of the agreement, but there was clearly no evidence of that, indeed no records existed as to any correspondence, any notices or indeed no accounting records at all.
Moreover, this analysis by the learned judge, although technical, shows why Kokkinos's credit was so important. The only clear basis, on this hypothesis, for Kokkinos to retake possession without stealing the equipment would have been if the jury had been satisfied that Kokkinos had made the explicit agreement that, after two months of failure to make payments, he could retake the goods together with the applicant's equipment which he had repaired. If that agreement were thrown into doubt, the jury might not have accepted Kokkinos's asserted right. In the circumstances, whatever the weaknesses of the applicant's case, one cannot be sure how the jury would have assessed Kokkinos's evidence of the parties' arrangements if they had known of his record. The possible doubt as to his evidence might also have affected the jury's opinion as to the alleged phone conversation with Kokkinos as he drove back to Melbourne in that that seemed to support the police view that there had been no real theft.
Finally it is said that the alleged contract to take the equipment, the alleged notice of his intention to arrive and the retaking of the goods all occurred in the previous year and it was the applicant's beliefs in February and March 1996 which were critical. Undoubtedly the applicant was unlikely to have analysed his rights in the equipment as the learned judge did, but some factors may be noted. It was not his idea to make the insurance claim; he was persuaded to do so by Beyer and Neale when first recuperating from his operations. A degree of confusion and uncertainty might well have been accepted by the jury as explaining what otherwise might seem to be certain lapses of memory. If they had a doubt whether most of the equipment taken was that of Kokkinos or whether the majority of that equipment belonged to the applicant, though repaired by Kokkinos, they may have thought his failure to refer to Kokkinos's interest in the equipment as a forgivable oversight. One should add that similar doubts may well have been engendered about the applicant's answers to the investigator or the police, as summarised above.
None of the matters to which I have referred either alone or in combination is necessarily compelling in the sense of showing that the applicant was innocent of the charge, but the question is whether there may have been enough to raise a reasonable doubt in the minds of the jury. I am of opinion that there was, in that any established want of credibility in Kokkinos may have fairly raised such a doubt. The failure of the prosecution to notify the applicant's legal advisers of Kokkinos's criminal record led directly to applicant's counsel being unable to attack his credit with that material. Having regard to the issues raised at, and the conduct of, the trial, I consider that this has resulted in a miscarriage of justice, and likewise that the verdict should be characterised as unsafe and unsatisfactory. These circumstances fairly lead to the conclusion that the applicant may have lost a chance of being acquitted on this charge, so that the application should be granted, the appeal allowed and an order made for a new trial.

CHARLES, J. A.:

I have had the advantage of reading in draft the reasons for judgment that have been prepared by Ormiston, J.A. For the reasons given I agree that this application should be allowed and a new trial ordered.

JUDGES:	TADGELL, ORMISTON and CHARLES, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	22 October 1998
DATE OF JUDGMENT:	18 December 1998
MEDIA NEUTRAL CITATION:	[1998] VSCA 145

APPEARANCES:	Counsel	Solicitors
For the Crown	Mr T. Gyorffy	P.C. Wood, Solicitor for Public Prosecutions
For the Applicant	Mr D.L. Allen	T.F. Grundy & Co.

"(a)	That he was the owner of a quantity of audio equipment and lighting equipment that had been removed from a building known as the Central Club Hotel situated in Commercial Road Morwell;
(b)	That on the 7th day of December 1995 he discovered that the said audio and lighting equipment had been stolen during a burglary on the Central Club Hotel;
(c)	That he had reported the burglary to a member of the Victoria police force at Morwell on the 7th day of December 1995."