R v Georgiev

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 335 of 1999

THE QUEEN
	v.
MENDE GEORGIEV

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JUDGES:	BROOKING, ORMISTON and PHILLIPS, JJ.A.
WHERE HELD:	MELBOURNE
DATES OF HEARING:	29 and 30 November 2000
DATE OF JUDGMENT:	13 March 2001
MEDIUM NEUTRAL CITATION:	[2001] VSCA 18

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CRIMINAL LAW – Murder – Killing to protect drug trafficking business and avenge attack on business partner – Evidence of drug trafficking as establishing motive – Confession essential to Crown case – Propensity evidence and motive – Permissible and impermissible use – Whether danger of impermissible use of evidence of drug trafficking – Behaviour and lies as showing consciousness of guilt – Evidence of confession – More cogent where facts admitted not otherwise known to recipient – Prompt narration of confession to third person – Admissible both to repel recent invention and to confirm recipient’s awareness of facts not in public domain – Adequacy of directions – Crown witness – Special warning not required.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J.D. McArdle, Q.C. Mr R.T. Barry	P.C. Wood, Solicitor for Public Prosecutions
For the Applicant	Mr P.F. Tehan, Q.C. Ms S. Cure	Cole & Magazis

BROOKING, J.A.
PHILLIPS, J.A.:

This is an application for leave to appeal against conviction of murder. The jury was empanelled on 8 November 1999 and, after some significant time was lost during the trial through debate over points of law in the absence of the jury, on 3 December the jury found the applicant guilty as charged. On 16 December, after hearing a plea in mitigation by counsel, the judge sentenced the applicant to 20 years’ imprisonment, fixing a non-parole period of 16 years. The applicant now seeks leave to appeal against conviction on a number of grounds.

The essential facts may be briefly stated. At about 9.15 p.m. on 11 March 1995, in Park Street St. Kilda near Fitzroy Street, a drug user and dealer, one Stuart Lance Pink was ambushed and shot three times with a .22 calibre gun. One of the bullets entered his brain and led to his death a few hours later. The Crown’s case against the applicant was that this was a revenge killing, carried out by him in response to a previous drug-related incident involving the deceased. Apparently, in the months preceding his death, the deceased had gained the reputation among the local drug community as “a rip”. He would either approach heroin users and offer to sell them heroin and then only give them a substitute, pocketing the money he gained to purchase heroin for himself; or he simply robbed other drug dealers, acting alone or in company with his associate, one Okanlar. The deceased would use a pocket knife to threaten his victims, stealing cash, jewellery and drugs. During one of these robberies, which was committed only a few days before his death, the deceased in company with Okanlar stabbed a drug dealer, one Tomislav Juricic (commonly called "Tom"), who was a friend and associate of the applicant. The Crown case was that the killing of the deceased was the “pay back”, the applicant having been the “trigger-man” while his friend Juricic waited nearby in a car.

The case against the applicant was a strong one. It included evidence from those who knew him, including Joanne Guziak, with whom the applicant had been living for about five years. Their relationship came to an end in April 1995 (about a month after the killing) and she gave evidence of the applicant’s regular dealing in heroin and of “Tom’s” being stabbed in the hand during a “rip off”. Most importantly, she also gave evidence of conversations she had with the applicant on 11 March and in the early hours of 12 March, in which the applicant told her that he had killed the deceased, and how and when. As the judge said to the jury, if they accepted this evidence the applicant had indeed confessed to the killing.

The confession was critical to the Crown case; as the jury were told by the judge, it was the Crown case. In his final address prosecuting counsel said that a verdict of guilty depended upon the jury’s accepting the essence of Joanne Guziak’s evidence, and the judge directed the jury, at both the start and the end of his charge, that without the confession there was insufficient evidence to convict the accused; the other evidence was there simply to assist them, if it did, in deciding whether to accept the evidence of the confession. Thus, when dealing with the elements of the crime and the standard of proof, the judge told the jury that there was only one element in issue, was it the accused who killed the deceased; that the Crown must prove that it was beyond reasonable doubt; that the Crown could succeed only if it proved beyond reasonable doubt that the accused made the alleged confession to Ms Guziak; and that the confession could be understood only in the context of the allegations made by the witnesses that the applicant was engaged with Juricic in drug dealing. This last is a consideration to which we shall return.

Ground 1

Ground 1 is that the judge erred in admitting evidence of drug dealing by the applicant other than dealing at or about the time of the offence. Evidence from Joanne Guziak included the evidence of general drug dealing by the applicant during the period of his relationship with her; the applicant’s supplying Guziak with heroin during their relationship; the drug “rip off” involving the deceased; and drug dealing between 11 March and 16 April (some weeks after the killing). Another witness, Mohar, gave evidence of his purchasing heroin from the applicant during late 1994 and early 1995 and of his purchasing heroin daily from the applicant over a period of one and a half years. It is now contended that the only evidence of drug dealing which should have been admitted was of dealing in the months prior to 11 March 1995, the day of the killing. Mr. Tehan submitted that evidence of drug dealing back, say, to 1 January 1995 might have been admissible, but evidence of drug dealing by the applicant before that was certainly not.

In our opinion, the submission is somewhat unrealistic. Discussion of the evidence before the jury was empanelled makes it plain that the judge admitted the evidence because it related to the applicant’s motive (the killing as a “pay-back” for the attack on Juricic). Of course it is well recognised, as counsel submitted, that evidence of the commission of other offences is highly prejudicial because of the antipathy it engenders, in many cases unjustly eroding the presumption of innocence. But here the evidence of drug dealing was highly relevant; it was an integral part of the Crown case in so far as it established a motive and we see no error in its admission. That there should be a notional cut-off at 1 January 1995 is purely arbitrary. What was relevant was the nature and extent of the applicant's drug dealing before and at the time of the murder, and in particular that he appeared to be in an established business of drug dealing with Juricic. There is nothing in ground 1.

Ground 2

Ground 2 was that the judge erred in failing to give the jury appropriate warnings in relation to the evidence of the applicant’s drug dealing. Mr Tehan pointed to the fact that his Honour gave no direction - and indeed none had been sought - that the jury should not reason from the applicant's drug dealing (if they accepted the evidence in that regard) to his guilt of the crime of murder. Such reasoning was proscribed by high authority, he said; the proscription was exemplified in the exclusion generally of propensity evidence.

Mr Tehan referred us to numerous authorities in this connection. The principles he invoked are well established and this ground does not raise any new question of principle: it is simply a matter of applying recognised principles to the facts of this case. But since Mr Tehan placed special reliance on BRS v. R.[1] and dealt with that decision at some length, we shall in due course make a number of references to it.
[1](1997) 191 C.L.R. 275.

One can begin with the proposition that where evidence is led which is admissible for one purpose but not for another and there is a possibility that the jury will use it for an impermissible purpose the judge should direct them as to the purpose for which it may and the purpose for which it may not be used. One can add to this the proposition that the giving of such a direction is of particular importance where there is a danger that the jury will use admissible evidence for an improper purpose that is prejudicial to the accused, and the greater the possible prejudice, the greater the need for the warning. In particular, where evidence of criminal or reprehensible behaviour is admissible and admitted, it is especially important for the judge to tell the jury of the limited purpose for which the evidence is available and to warn them that it cannot be used as suggesting that the accused is the kind of person likely to commit a crime. With sexual offences, and particularly where there is a danger that the jury will regard the accused as predisposed to offences against certain kinds of victim, the need for a direction becomes even more pressing. Yet another proposition is that the failure of counsel for an accused person to seek a direction about the limits of the permissible use of evidence showing criminal or reprehensible conduct on the part of the accused will not necessarily stand in the way of a determination that there has been a miscarriage of justice.

These are general propositions. Mr Tehan submits that this jury should have been directed that the only legitimate use of the evidence of drug trafficking by the applicant was for the purpose of the Crown’s attempt to establish a motive for the murder and that they could not reason that because he was a drug dealer he was the kind of person likely to commit murder.

The present case is unusual, in that on the Crown case the killing had its origin in the criminal activities of the applicant and his partner, Juricic, those criminal activities being the very thing in respect of which the direction is now said to have been essential. It would not have been a simple matter, but it would have been possible, to construct a direction which, while warning the jury not to make an impermissible use of the evidence of the applicant’s drug dealing, yet told them how they could use it as bearing on the existence of a motive for the killing. The Crown case was that this killing had a clear motive and that this motive had been admitted by the applicant in the course of his confession to Joanne Guziak, that confession indeed being explicable only by reference to the background circumstances giving rise to the motive, including Pink’s knifing of Juricic and Pink’s theft of the heroin and cash which he was carrying (which we shall call for brevity “the Pink incident”). The Crown always made it clear that the Pink incident was part of its case as affording the motive for the killing, but the only reference in the judge's charge to this matter of motive is an extremely brief mention, in the summary of the Crown’s final address, of the argument that the motive was the cutting of Juricic’s hand by the deceased. In this passage the judge by a slip in two places refers to “the motive for the robbery”, but it is not suggested that the jury can have been in any doubt that the Crown was concerned with the motive for the killing. But the reference is a very short one, and all that is mentioned is the physical injury to Juricic, no mention being made of the theft of heroin and a substantial sum of money, both of which formed part of the property of the trafficking partnership. His Honour did not give the jury what may be described as the usual direction about motive. The omission of such a direction can only have assisted the accused in a case where a clear and plausible motive was assigned by the Crown and in addition an admission of that motive formed part of the confession on which the Crown heavily relied.

In our opinion the charge as delivered was more advantageous to the applicant than it would have been had his Honour constructed a special and appropriate direction which, while making it clear that heroin traffickers were not as such to be regarded as predisposed to homicide, yet made it clear to the jury how it was that the Crown said that this particular heroin trafficker had a motive for killing this particular victim.

Notwithstanding the attacks made by the applicant’s counsel on Joanne Guziak and the witness Mohar, having regard to the evidence as a whole (including the failure of the applicant to testify) it was in our opinion virtually inevitable that the jury would find that the applicant was at the time of the killing a professional trafficker in heroin. We do not think the failure of his counsel to ask the judge for the direction which it is now said was essential is to be explained on the basis that there was a real prospect that the jury would not be satisfied that the applicant was a trafficker and his counsel did not wish the judge to be giving a direction on the assumption that the jury might find him to have been one. Nevertheless the omission of counsel to ask for a direction may well have been due to a forensic decision on his part, and a sound one at that, the view having been taken that it was better to have nothing said about propensity and motive than to have a direction from the judge about the use it was open to the jury to make of the suggested motive if they found it established. The taking of such a decision would be the more likely in the light of other considerations, to which we shall refer shortly, which might well lead counsel to form the view that the omission of a direction against propensity reasoning really did not matter in this case. The applicant was at trial represented by two counsel, including extremely experienced senior counsel.

In Crampton v. R.[2] Gleeson, C.J. said:
[2](2000) 175 A.L.J.R. 133 at 136.

“[16]Secondly, it is common for appellants in criminal appeals to retain counsel different from the counsel who (by hypothesis, unsuccessfully) conducted the trial. This increases the tendency to look for a new approach to the case, and carries the danger that trial by jury will come to be regarded as a preliminary skirmish in a battle destined to reach finality before a group of appellate judges.

[17]Thirdly, it is usually difficult, and frequently impossible, for a court of appeal to know why trial counsel did, or failed to do, something in the conduct of the case. Decisions as to the conduct of a trial are often based upon confidential information, and an appreciation of tactical considerations, that may never be available to an appellate court. The material upon which a judge, either at trial or on appeal, may form an opinion as to the wisdom of a course taken by counsel can be dangerously inadequate, and, when it is, the judge may have no way of knowing that. Ordinarily, a barrister knows more about the strengths and weaknesses of his or her client’s position than will appear to a judge, whose knowledge of the case is largely confined to the evidence.
[18]Fourthly, as a general rule, litigants are bound by the conduct of their counsel …. This principle, which is an aspect of the adversarial system, forms part of the practical content of the idea of justice as applied to the outcome of a particular case. For that reason, courts have been cautious in expounding the circumstances in which an appellant will be permitted to blame trial counsel for what is said to be a miscarriage of justice ….”

Hayne, J. spoke to similar effect.[3]

[3]175 A.L.J.R. at 162-3

The Crown case was that the applicant murdered because he was a professional heroin trafficker avenging an injury done to his partner and an injury done to his business and seeking to protect his business for the future. The Crown said that it proved its case essentially by proving a confession, and this was not simply a confession of murder but a confession that the murder was motivated as the Crown alleged. (When we speak of the confession we include what according to Joanne Guziak was said to her by the applicant shortly before the killing.) Joanne Guziak gave evidence of what might be called the background, by which we mean the fact that the applicant and Juricic had for a considerable time been professional heroin traffickers in a substantial way of business. She said that the applicant had told her of the Pink incident two days after it occurred. The confession of which she gave evidence, if accepted, makes it clear that the murder took place because of the Pink incident. More particularly, Ms Guziak gave evidence of a telephone conversation late in the afternoon of the day of the killing in which the applicant said that he and Juricic had seen in Fitzroy Street the man who had cut Juricic’s hand, that he and the man had walked past each other but the man had not seen him because the applicant was drinking a stubby and that he (the applicant) was coming home to get something. Guziak said that the applicant and Juricic later in fact came to her home, that she thereupon asked the applicant whether the gun was at “our place” or at Juricic’s place and that the applicant said it was at Juricic’s place. She further gave evidence that in the early hours of the following day the applicant told her he had called the victim “a fucking maggot” and shot him. She further said, “I asked him why he shot [Pink] instead of Tom, or why he shot the man instead of Tom if it was Tom’s hand that the person had cut, and he said, ‘Because Tom didn’t have the guts to do it’”.

The words used in the confession are understandable only in the context of the applicant’s trafficking partnership with Juricic and the Pink incident. The case not being one where there was or could reasonably be any suggestion that the applicant was bragging or fantasising or for any other reason making a false confession, the confession could not reasonably be regarded as true with regard to the fact of murder unless it was accepted as true with regard to the essential background of a heroin trafficking partnership between the applicant and Juricic and the Pink incident. The motive was inextricably bound up with the confession of murder. In other words, acceptance of the Crown case of murder really required acceptance of the motive put forward. Unless the applicant was trafficking in heroin in partnership with Juricic and the Pink incident occurred, Ms Guziak’s evidence of a confession made to her became incredible. Certainly the jury could not have found, as they were told they must find if they were to convict, that the making of the confession was established beyond reasonable doubt.

In these circumstances the jury really had to be satisfied of the existence of the drug-dealing partnership and of the Pink incident before they could convict the applicant. As noted already, the judge made it clear to the jury at the outset that, as the Crown conceded at the trial, the applicant could not be convicted unless the jury were satisfied beyond reasonable doubt that the confession was made to Joanne Guziak. Just before the jury retired, his Honour reminded them of this and said to them that in order to come to the conclusion that the confession was made “you would have to conclude that he was dealing in drugs, as in the context that was suggested, because that is so integrally connected with the alleged confession, that if you weren’t satisfied of that, you could hardly make any sense of the confession and be satisfied beyond reasonable doubt about it”. The words “as in the context that was suggested” would have been understood by the jury as including the Pink incident.

In our view it is not realistic to fear that the jury may have reasoned impermissibly that heroin traffickers are more likely to kill than other persons. The evidence of motive (which, according to the defence in cross-examination, was not confined to the accused) was tied by the judge to the evidence of the confession; the jury were told that they were to be satisfied of the first before they could be satisfied of the second, and further that proof of the confession beyond reasonable doubt was critical to a finding of guilt. In the circumstances of this case any danger that the jury would act on a view about the propensity of heroin traffickers to murder seems to us to have been non-existent or at least insignificant.

We come now to BRS v. R.[4], the case on which, as we said earlier, Mr Tehan principally relied. In the first place, that was a case where the other criminal conduct was of the same character as that charged. In the second place, the offence was a sexual one, and moreover the case was one of suggested homosexual offences against both boys, the complainant and W. In the third place, as it seems to us, the Crown prosecutor in his address relied impermissibly on propensity, or, if he did not intend to do so, there was a very serious danger that the jury would have treated him as putting a propensity argument[5]. Gaudron, J. was of the view that prosecuting counsel virtually invited the jury to rely on propensity[6]. A different view was taken by McHugh, J.[7]. For ourselves, with respect, we find it impossible to avoid the conclusion that there was in BRS a danger, and a serious danger, that the Crown prosecutor’s address would lead the jury into a misuse of the evidence. None of these features is present in this case.
[4](1997) 191 C.L.R. 275.
[5]Extracts from the address appear at 296, 301 and 306-7.
[6]at 301.
[7]at 307.

In BRS Brennan, C.J. dissented on the ground that the appellant could not have obtained any greater advantage in the trial than an absence of any reference by the judge to the evidence of W. Toohey, J. observed[8] that the failure of the appellant’s counsel to clarify the basis on which the evidence of W went in could not be said to be part of some strategy on behalf of the appellant. His Honour ultimately concluded[9] that there was a likelihood that the appellant did not receive a fair trial as a result of the misuse by the jury of W’s evidence. In the judgment of Gaudron, J. the reference[10] to offences of the kind charged should be noted. We have earlier mentioned her Honour’s view that the Crown prosecutor had virtually invited the jury to reason from propensity. Having concluded that there was a clear risk of the misuse of W’s evidence, her Honour continued[11]:

“As already indicated, there was a real risk that the jury might use W’s evidence as positive proof of the appellant’s guilt. In my view, that risk far outweighed any advantage that might have been obtained by the trial judge’s failure to give directions as to the use which that evidence could properly be put. Indeed so serious was that risk that, in my view, the trial judge should have instructed the jury with respect to its use notwithstanding the limited directions sought by defence counsel. In this last regard, it is sufficient to note that there is a duty on the part of a trial judge to give proper directions if there is a serious risk of injustice, whether or not those directions are sought. Correspondingly, failure of counsel to seek directions cannot be fatal
to the success of an appeal or an application for leave to appeal if it appears there has been a substantial miscarriage of justice.” (Footnotes omitted.)

McHugh, J. concluded[12] that there was a miscarriage of justice because the jury may have convicted by a reasoning process that a proper direction would have denied to the jury.

[8]at 294.

[9]at 295.

[10]at 298.

[11]at 302.

[12]at 310.

In our opinion, there was no real risk that the present jury, in the course of reasoning to a conviction, would make an impermissible use of the evidence that the applicant was a heroin trafficker. The latter evidence was led to show motive and motive was tied by the judge very plainly to the question whether the jury should be satisfied that the confession was made as claimed - and everything turned on the confession. We would not uphold ground 2.

Ground 3

Ground 3 is that the judge erred in directing the jury that certain behaviour and lies told by the applicant could be used as consciousness of guilt.

One of the two lies upon which the applicant now focuses was this: in his record of interview on 21 March 1996, the applicant denied that he had spoken to Juricic in recent times, whereas a telephone intercept[13] on 17 March 1996 plainly records a conversation between the two of them. It is now submitted that this should not have been left to the jury as a lie from which they might properly infer consciousness of guilt. As we apprehend it, it is argued now that the lie in question was not sufficiently related to the murder; but given the part allegedly played by Juricic in the murder, on the Crown case, we think the submission far-fetched. Indeed, the admissibility of the telephone conversation on 17 March, which was detected by telephone intercept, was the subject of specific submissions before the judge and in the course of that discussion counsel for the accused (who was not counsel before us now) conceded its admissibility. It is now submitted that that was in relation to credit only, but we see nothing in the discussion to indicate that the concession was so limited.
[13]No.441.

The second lie to which applicant's counsel directs attention was the applicant's denial in his record of interview that he was a drug dealer. The Crown said that this assertion was shown to be a lie. In his record of interview the applicant denied that either he or Juricic had ever been engaged in trafficking in heroin, although he admitted that he himself had bought it for Joanne Guziak and had been caught while he was in possession of it.

The point now taken was not raised in the notice of application filed by the applicant’s solicitor shortly after the trial at which he had been represented by two experienced counsel. No exception was taken to the charge by counsel for the applicant notwithstanding that the judge invited exceptions at three different points.

The matter had arisen in a curious way at an early stage of the trial. On 8 November senior counsel for the applicant was putting a submission seeking the exclusion of telephone intercepts which suggested that the applicant was trafficking in drugs after 30 June 1995. In the course of this submission counsel suddenly raised another point. The passage is as follows:

“MR LOVITT: There is one other aspect about the drugs. The Crown are relying on the fact that our client denied when he was interviewed on 21 March 96, he denied when it was put to him that he had ever dealt in drugs. They say that that can be used to effectively, it would seem, if you take the evidence that he had from the 30 June onwards, it can be used as some indication of a consciousness of guilt which can then be used to bolster up the credit of Miss Guziak and so forth.
HIS HONOUR: I don’t think I’ll trouble you with the other part of the argument.
MR LOVITT: No, I thought there might be other explanations for that. As Mandy Rice-Davies said, ‘Well, he would, wouldn’t he?’”

Counsel then went on to deal with another matter. When the judge came to give his ruling he did not deal with this matter of consciousness of guilt that had been mentioned in passing by applicant’s counsel.

Towards the end of the Crown case the judge raised with counsel the question what alleged lies were capable of being relied on by the prosecution as showing consciousness of guilt and how they should be precisely identified. One of the lies thereupon specified by the prosecutor was that with which we are presently concerned. After the prosecutor had made a submission about the Crown case generally on consciousness of guilt, senior counsel for the applicant was invited to respond, and it is clear that the ensuing short discussion resulted in his taking up the position that it was open to the jury to treat this suggested lie as evidence of consciousness of guilt of the crime charged. That is for present purposes an important concession.

Quite early in his charge the judge dealt with consciousness of guilt, giving the jury lengthy directions which have not been criticised save for the suggestion now made that certain things relied on by the Crown as evidencing consciousness of guilt should not have been left to the jury on that basis. His Honour emphasised that to be relied on as showing consciousness of guilt the supposed lie had to relate to a material issue, had to be shown to be an intentional falsehood and had to be a lie which the jury were satisfied manifested consciousness of guilt. As to the last point, the jury were told time and again that there might be an innocent explanation for the telling of a lie and that before using the lie in the way suggested by the prosecutor they had to consider the possibility of other explanations and had to be satisfied that the guilty explanation was necessarily the correct one. In dealing with the particular matter of the denial of drug trafficking the judge told the jury:

“That is the specific matter the Crown relies on and again you apply the tests I’ve already mentioned to you to that. Is it a lie? Of course, that depends on whether you are convinced by the evidence of Guziak and Mohar that in fact he was trafficking in drugs, because if he wasn’t it’s not even a lie, or at least you can’t be satisfied it was a lie. Then the next question is, if it were a lie, is it told only because he’s implicated in this murder or may it be told for other reasons? And you apply the test I have already mentioned to you.”

The test which the judge had already mentioned had been expressed by him as follows:

“… is this a lie which necessarily shows only a consciousness of guilt of murder, or could it have been told for some other reason? If there could be another reason attributed to it in the context of this case and what was happening then you can discount that as a lie which shows a consciousness of guilt of murder.”

In the course of summarising the prosecutor’s final address on consciousness of guilt his Honour said this:
“The last matter he relied on as a lie was the proposition by the accused that he was not involved in drug dealing at the relevant time, and Mr Hillman argued that the reason he denied that can only be a consciousness of guilt in this context because he realized that such a position would implicate him in the motive for the killing and therefore implicate him in the murder.
You remember, of course, what I told you about the test you must apply to these sort of matters and also that a denial by someone of such an allegation that he was involved in drug dealing may not necessarily, in itself, amount to a lie as a consciousness of guilt, but Mr Hillman argued that it should.”

His Honour’s summary in his charge of the final address for the defence makes it clear that the argument put by the defence was simply that the jury should not be satisfied that the accused had lied when he denied that he was a drug trafficker and that it was not suggested by counsel that if they were satisfied that the denial was deliberately false they should not treat that lie as showing consciousness of guilt because there were other possible explanations for it, notably, an unwillingness to confess the commission of criminal offences.

It is by no means uncommon for counsel to submit that a lie should not be left to a jury as possibly showing consciousness of guilt of the crime charged because the lie does not relate to a material fact: in this instance, as already explained, the drug dealing was a most important consideration. On the other hand it may be said to be unusual for counsel to submit that an alleged lie should not be left to the jury because the jury could not possibly be satisfied, having regard to possible innocent explanations, that the lie was told because of consciousness of guilt of the crime charged. (We note in passing that in Edwards v. R.[14] Deane, Dawson and Gaudron JJ. thought that the innocent explanation was so plausible that the lie could not have been probative of guilt, but in that case the existence of the innocent explanation was not contested by the prosecution; indeed it had been suggested by it.) In the present case the applicant’s counsel were content to have the question treated as a jury question. They made this clear when the question was expressly raised shortly before the evidence in the case was completed and, notwithstanding that the charge afforded them considerable time for reconsideration, they at no stage sought to depart from the position they had taken up. The point was not raised until the grounds of appeal were amended at a very late stage. We are not prepared to say that the judge should have withdrawn this alleged lie from the jury’s consideration on the ground that they could not have been satisfied that the reason for the telling of the lie was as the Crown alleged. True it is that the jury were required to consider as a possible explanation a desire of the applicant not to incriminate himself as a drug dealer. On the other hand, the jury were entitled to have regard to the fact that the applicant faced a charge of what is, from a practical point of view, the most serious crime known to the law and to take into account the fact that he was willing in the course of his interview to admit the commission of drug offences. It is of significance here that his counsel, who were in a good position to form a judgment, chose not to invite the judge to withdraw the question from the jury.
[14](1993) 178 C.L.R. 193 at 212-3.

In relation to conduct as distinct from lies, there are two matters upon which applicant’s counsel now focuses. The first is a conversation between the applicant and an associate, one Ozel, on 24 August 1995 (recorded by means of a telephone intercept). In this conversation the applicant is heard telling Ozel to say nothing, if he is interrogated by police. The Crown contended before the jury that the advice from the applicant to Ozel “to say nothing” could be considered, if they saw fit, to evidence consciousness of guilt, and applicant’s counsel now contends that that was not the case. Indeed, counsel goes so far as to argue that because the exercise of the right to silence cannot be used as evidence of guilt, no more can this advice to another to exercise that right to silence. We very much doubt if that is correct, but it is irrelevant here; for in context, it cannot be said, in our opinion, that the applicant was simply advising on the right to silence. As respondent’s counsel put it, the applicant was not “tendering legal advice. It was more a matter of dictating strategy”. The critical part of the conversation, as recorded by the telephone intercept, went as follows:-

"You know, Tom got grabbed by the coppers today.
Where at?
From home.
And ...
Right ... if worst comes to worst and they come to grab you or question you on anything like that.
M’mm.
You say nothing.
I don’t.
All right?
Yeah.
Just work out some times you help us out as a DJ and that’s all you know.
All right.
Even if they bash you, anything.”

This quite plainly was telling Ozel to “say nothing”, but at the same time he was to tell the police about “some times you help us out as a DJ and that’s all you know”. This was dictating strategy. We see no reason why it could not be used, if the jury saw fit, as evidence of consciousness of guilt.

The other matter relied upon in this context was conversations which the applicant had with his parents about the “red runners”. Again detected by telephone intercepts, these conversations amounted to a direction by the applicant to his parents to “get rid of the red runners”. It is now contended that on the evidence at trial “red runners” were not shown to have any connection whatsoever with the killing of the deceased and that on that account the direction to “get rid of the red runners” could not properly have been used by the jury as consciousness of guilt.

The difficulty with this submission is that, although no connection was demonstrated, when the matter was first discussed, counsel for the accused put his submission in this way:-

"We turn to the runners. We say the major problem here is there is just not enough nexus between what the Crown want to lead and the rest of the evidence in the case. What the Crown want to lead is that on the day that Juricic is taken into custody by the police, 24 August, after the accused speaks with Juricic, he then contacts his home and says effectively ‘Get rid of the red runners; and I suppose it’s quite clear from the material that he is saying ‘Tom’s been interviewed about a murder, apparently the police are after a pair of runners, inferentially red ones, get rid of the red runners’. The prosecution no doubt say that shows a consciousness of guilt. He wants to get rid of the red runners, first of all, there is no evidence that a pair of red runners is relevant in this case.”

It seems to us that counsel demonstrates, in that submission, the relevance of the conversations that the applicant had with his parents to the possibility of consciousness of guilt. It is not a question whether the red runners were in fact connected with the murder; what is significant is that the applicant apparently supposed that they were relevant to the murder, or at all events that was something which the jury might consider. If they considered that the applicant regarded the red runners as relevant to the murder, it was open to the jury to use his direction to his parents to get rid of them as evidence of consciousness of guilt. The submission now that there was no connection whatsoever between the red runners and the murder is, we think, a somewhat opportunistic submission because of the evidence that transpired; the possibility that they were considered to be connected was plainly adumbrated in the earlier discussion. Indeed, the attitude of counsel for the accused was confirmed later when, in the course of discussion, counsel said quite specifically that he had no objection about the telephone calls “over red runners”, as such.

In all the circumstances, ground 3 fails.

Ground 4

Ground 4 is now pursued only in part. Paragraph (a) was that the judge erred in permitting the Crown to lead evidence from Kaye Guziak. Her evidence was of a conversation she had with her daughter, the witness Joanne Guziak, on the day after the killing, a conversation in which Joanne told her mother (Mrs Guziak said) of what the applicant had said to her, Joanne, on the day of the killing and in the small hours of the following day. The judge allowed the prosecution to lead this evidence from Mrs. Guziak because, in his opinion, certain cross-examination had tended to suggest recent invention on the part of Ms Guziak, and it is not now claimed on this application that the judge erred in that respect. None the less part (b) of ground 4 is still pursued: that is, that the judge erred in failing properly to direct the jury in relation to the use to be made of the evidence of Kaye Guziak. The complaint is that the judge ought to have directed the jury expressly that they could use the evidence of the mother, if they accepted it, only to bolster the credit of the daughter and not as evidence of the fact.

The critical evidence of Joanne Guziak, the daughter, has already been canvassed in paragraph [15]. In brief it was that in more than one conversation on 11 March and during that night, after the killing, the applicant had told her not only that he had shot a man in St. Kilda, but also how and why, in what the judge characterised to the jury as “a total confession to the commission of this crime”, if they accepted Ms Guziak's evidence. As already mentioned, prosecuting counsel told the jury in his address that the confession, as recounted to the court by Joanne Guziak, was critical to the Crown case; and the judge directed the jury expressly that a verdict of guilty depended upon their accepting Joanne Guziak’s evidence that the applicant made the confession to her; that without the confession there was insufficient evidence to convict the accused; and, again, that the Crown could succeed only if it proved beyond reasonable doubt that the accused made the confession to Ms Guziak.

In the course of a lengthy cross-examination, defence counsel put to Ms Guziak that she had concocted the story of the applicant’s confession from snippets of information in the media and from gossip in the drug scene. (Ms Guziak was at the time using heroin.) It was also put to her that she had concocted the story because, by the time she disclosed it to police on 17 April, she had split up with the applicant and there was ill-feeling between them. In the judge’s opinion this was to suggest recent invention and on that account his Honour allowed the prosecution to lead from Joanne's mother’s evidence that on the day following 11 March, "probably around lunch time", Joanne had spoken with her by telephone and had recounted the essence of the applicant’s confession.

As we have said, there is no complaint now made that the judge erred in permitting the Crown to lead this evidence from Mrs. Guziak: ground 4(a) is not pursued. Obviously, in so far as it was suggested to the daughter in cross-examination that she had concocted the story after the applicant and she had split up and when there was ill-feeling between them, it was relevant that the daughter had spoken with the mother more than a month earlier, which was well before their separation. If the jury accepted the mother’s evidence - and defence counsel submitted that they should not - it went to bolster the credit of the daughter and thus to rebut the suggestion of recent invention. By yet another ground added by late amendment, the applicant now seizes upon that purpose for which the evidence was led, contending that the jury should have been told of its limited use. In particular, it was important, Mr. Tehan submitted to us, that the jury should have been directed expressly that they could not regard the evidence of Mrs. Guziak as evidence of the fact – meaning the fact (as recounted by the daughter) that the applicant had made the confession to her. Undoubtedly, Mrs. Guziak’s evidence in that regard was hearsay: it was evidence only that her daughter had told her of the applicant’s confession. The daughter’s evidence of that confession was, of course, itself hearsay as to the killing, but not as to the confession, for the confession was itself admissible as an admission against interest by the applicant. The fact in issue was the killing: the applicant had admitted to the killing (according to the daughter) and her evidence that he had so admitted to the killing was admissible (it is sometimes said) as an exception to the hearsay rule. The mother’s evidence was altogether different and, thus far, could be regarded only as inadmissible hearsay, save for its purpose of rebutting the suggestion of recent invention.

Although the distinction upon which the applicant relies between evidence which is probative for its own sake and evidence which is admitted simply to bolster credit is well established and is significant to lawyers, it may be moot how far a jury would follow and apply the distinction in a case like this, where the question revolves around an alleged confession by the accused and the credit in question is that of the person to whom the confession was supposedly made and who has recounted its making in the witness box. Doubtless, however, that very uncertainty made it more important, not less, for the judge to give a proper direction in this regard. Here the judge did explain why the evidence of Mrs. Guziak was allowed in: it was relevant, if the jury accepted it, to rebut the suggestion of recent invention. What the judge did not do was to add expressly that that was the only purpose for which the evidence could be used and that the jury could not properly use it otherwise. Yet therein, we think, lies the answer to the complaint now made; for although that may ordinarily be the position, in this instance the evidence could properly be used for other purposes.

It is not in dispute that the jury were entitled to use the evidence of Mrs. Guziak to bolster the credit of her daughter Joanne (that is, to rebut the suggestion that she had concocted the story out of snippets of information in the media and otherwise and, in particular, at a time after she and the applicant had split up and thus at a time when there may well have been ill-feeling on her part against the applicant). Mr. Tehan argues that it must follow that, if the evidence be admitted for the foregoing purpose, it cannot be used by the jury as evidence that the applicant did make confession to the daughter: in that respect, the mother’s evidence was simply hearsay. However that may be in some other case, it was just not so in this instance: Mrs. Guziak's evidence was not "simply hearsay". It was relevant for its own sake and we refer in particular to the timing of the conversation which the mother said she had with her daughter.

According to Mrs. Guziak, the relevant conversation she had with Joanne on 12 March occurred in the morning of that day or at about midday, but in any event before she saw the news item on the television that evening about the killing. This evidence was relevant to the daughter’s having had the conversation with her mother well before the cause of any suggested ill-feeling between the daughter and the applicant, but it wore another aspect too. For if the jury accepted the mother’s evidence, the conversation was had before the killing became public knowledge, and the conversation was relevant then to establish the daughter's state of knowledge - more particularly her awareness of facts that were not yet in the public domain. The relevance of such evidence can be seen in what was said in Burns v. R.[15] by Barwick, C.J., Gibbs, J. and Mason, J.[16]:-

“Where an accused by his confession admits facts not then known to his interrogators which are subsequently found to be true, this circumstance affords strong evidence that the confession was in fact made. Where, however, the accused by his confession admits only facts already known to his interrogators the probative value of the truth of what is admitted on the issue whether the confession was in fact made is less cogent …”.

See also in Burns[17] per Murphy, J., referring to R. v. Kerr (No. 2)[18]; Matusevich v. R.[19] per Gibbs, J.[20], per Murphy, J.[21] and per Aickin, J.[22]; Lattouf & Carr[23] per Moffitt, P.)

[15](1975) 132 C.L.R. 258.

[16]at 264.

[17]at 267-8.

[18][1951] V.L.R. 239 at 246.

[19](1977) 137 C.L.R. 633.

[20]at 638-9.

[21]at 648.

[22]at 665-6.

[23](1980) 2 A.Crim.R. 65 at 74-75.

And so in the present case, in considering how probable it was that the applicant made the confession, it was material to consider whether the alleged confession admitted facts which were true and were unlikely to have been known to Joanne Guziak unless the applicant himself had related them to her. The mother’s evidence of what her daughter said to her on the day after the killing corroborated Joanne’s evidence that very shortly after the killing she was aware of certain facts (facts which were true and which the jury could be asked to find she was unlikely to be aware of unless she had them from the applicant). The words of the Full Court in R. v. Kerr (No. 2)[24] could, with appropriate modifications in the light of the facts, be applied to the present case:

“Whether the accused did make the statement alleged was the vital question in the case. He said he strangled the girl and gave a reason why he did it. Any independent proof that that reason was founded on fact and was more likely to have come from him than to have been mentioned or suggested by the police was an important contribution to an enquiry whether he did or did not make the statement.”

In the present case what was important was the Crown’s allegation that, very shortly after the killing and so at a time when she was unlikely to have had knowledge of the facts from a source other than the accused, he made a confession to Joanne Guziak in which he related those facts. The mother’s evidence that Joanne told her of the confession the day after the killing, if accepted, showed that, at a time when Joanne was unlikely to have learned of the facts from a source other than the applicant, she was aware of them. She manifested her awareness of them by herself relating them as having been told to her by the applicant.[25]

[24][1951] V.L.R. at 246.

[25]On the question of use of the evidence of the mother as making the fact of the confession more probable, reference may be made to Walton v. R. (1989) 166 C.L.R. 283 at, e.g., 300-301, where the use of statements made by a person to show state of mind is discussed. The matter of “utterances used as circumstantial evidence” is dealt with at great length in Wigmore, Chadbourn Revision, Vol. VI, pp.313ff. As to utterances as indicating circumstantially the speaker’s own state of mind, see pp.320 et seq. Although it is only to state the obvious, we refer also to Wigmore, Vol. II, Chadbourn Revision, p.97.

On that analysis, the mother’s evidence was not "simply hearsay", nor was it evidence that went solely to rebut the suggestion of recent invention which was made in the course of cross-examination of Ms Guziak. It went also to establish the daughter's knowledge or awareness of facts at a time when they were not yet in the public domain, something relevant to the probability that the confession was made as she claimed in her evidence. When hearsay is admitted for the purpose of rebutting a suggestion of recent invention, and only for that purpose, this should of course be brought to the jury’s attention. But here there was a further use for this evidence, otherwise than as hearsay, and it would not have been correct for the judge to direct the jury that the only use to which the evidence could be put was to bolster the credit of Joanne Guziak by rebutting the suggestion of recent invention. It is true that neither the Crown nor the judge referred to this further use of the evidence and to that extent it did not figure at the trial; but none the less it is relevant now to our consideration of the complaint which is very belatedly made on this application for leave to appeal. We say that for two reasons. First, it means that had the trial judge given the jury a direction about the further use to which the mother's evidence could be put the direction might well have redounded to the disadvantage of the accused; and secondly, the further use to which that evidence might be put could well have provided a sound forensic reason for the accused's counsel’s not seeking during the trial the very direction which it is now said, by counsel on this application, should have been given.

That is not to say that the matter was simply overlooked: it was not. At one pause during the charge, prosecuting counsel raised the matter with the judge:

“MR. HILLMAN: One [matter I seek to raise] is whether or not the jury should be given a specific direction as to the use to be made of the evidence of Mrs. Kaye Guziak as to the telephone conversation from Joanne Guziak on the basis that it was admitted for the purpose of rebutting the suggestion of concoction in the period between the time of the shooting and the occasion when she first contacted police.
HIS HONOUR: I had in mind just simply mentioning what you said, I think it was you.

MR. HILLMAN:     I did say that.
HIS HONOUR:      Normally that evidence is not admissible but because of the line of cross-examination it became relevant.
MR. HILLMAN:     I simply say that the jury should be told that by Your Honour.”

In continuing his charge, the judge went on then to describe the suggestion in cross-examination of concoction and to explain, specifically, that that was why the Crown had been permitted to call Mrs. Guziak; for without that suggestion of recent invention, his Honour told the jury, “Mrs. Guziak’s evidence would not have been admissible”. The judge added:
“I have read the conversation to you as described by Ms Guziak and Mrs. Guziak and I will not go over that again but Mr. Hillman argued that Joanne Guziak did make such a call to her mother and it was important because the time was likely to be Sunday the 12th. It rebuts the suggestion that her story was made up from information later obtained and that at that time the accused and Ms Guziak were still together. He had not left her. With the result that she went to the police and made the statement.’
Mr. Hillman argued that there is some detail in her account of this confession which was unlikely to have been made up. Not that there was anything to contradict those facts, but they were details that were unlikely to have been put in by her if she was making it up, for instance, the walking with the stubbie. ...”

Despite taking other exception, applicant’s counsel made no complaint about the charge in this respect: in particular, he did not seek the direction which it is now said should have been given.

It can be seen from the foregoing that the judge came close to mentioning to the jury the further use to which the mother’s statement might have been put, namely, that in confirming the daughter’s evidence about the timing of the conversation between the mother and the daughter, it confirmed too the daughter’s knowledge or awareness of facts which, at the time, were not in the public domain. It was not just that there was some detail in the account of the confession “which was unlikely to have been made up”, as the judge said: it was that the account contained detail of which the public were as yet unaware, making it more probable that the confession was made as claimed. The failure of the judge to set this specifically before the jury was surely to the advantage of the applicant and, as we have said, might well have led to counsel not seeking the direction now in question. Indeed there is some reason in the transcript for supposing that the further use to which the evidence might have been put had occurred to counsel: for senior counsel said when canvassing Mrs. Guziak's evidence on the Crown's application to lead it:-

"If we knew the Crown were likely to be able to show that Joanne Guziak spoke to her mother on 12 March with the result that the mother videotaped the news on the night of 12 March some time, then other possibilities arise in relation to Miss Guziak’s knowledge of Pink [the deceased], knowledge of what occurred, what contact she’d made in the 24 hours after the shooting of Mr Pink, perhaps less than 24 hours, what conclusions she may have drawn, what conclusions she may have fantasised about, and cross-examination of her, as I said, would have proceeded in a somewhat different way.” [Our emphasis]

Counsel was concerned too, he said, that "it’s led to this matter being unduly highlighted”.

In the end we see nothing in the ground now taken. A direction that the jury should not use Mrs. Guziak's evidence otherwise than to bolster her daughter's credit in relation to the making of the confession was not appropriate in the particular circumstances of the case; and if in this regard anything more should have been put to the jury by way of direction we think it would have worked only to the disadvantage of the accused. At all events his counsel saw no need to take exception to the charge and we would not uphold this ground of appeal.

Ground 5

Ground 5 is that the trial judge erred in failing to give the jury appropriate warnings in relation to the witness Joanne Guziak, whose evidence of the confession was so important to the Crown case. It is said that the jury should have been directed to treat her evidence with particular care and to scrutinise the evidence most closely, simply because it was the lynchpin of the Crown case. But the judge told the jury, quite specifically, that they had to be satisfied beyond reasonable doubt that the confession was made and that it was true. What called for some special

warning, over and above that, is now said to have been the status of the witness and her relationship with the applicant; that they had a son in respect of whom there was now a custody dispute; that she contacted the police in a fit of anger; that she was jealous of the applicant’s relationship with another; and that her relationship with the applicant had itself been stormy. It was submitted, too, that she was an unreliable witness, having been heavily involved in using heroin, having been diagnosed as one with a personality disorder, as having an acute problem with heroin and alcohol abuse, and having received psychiatric and psychological attention in the past and having worked as a prostitute. There were other matters too, but the deficiencies in her evidence were all fully explored before the jury. In the circumstances of this case she is not a witness for whom it should be said a special warning is appropriate according to D.P.P. v. Faure[26] and we think ground 5 fails. The judge dealt in his charge at great length with the cross-examination of Joanne Guziak and the submissions of the defence concerning her. He told the jury that her credibility, her reliability and her honesty were essential matters in the case.
[26][1993] 2 V.R. 497. See, too, for example, the discussion in R. v. Heaney [1999] VSCA 169.
Ground 6

Ground 6 is that the verdict is unsafe and unsatisfactory, but this is put on the grounds earlier stated and it is not claimed that this involves any further review of the evidence. On that footing, as we see nothing in the other grounds, it follows that ground 6 fails too.

In our opinion the application should be dismissed.

ORMISTON, J.A.:

In this application I have the misfortune to differ from the other members of the Court as to two aspects of the trial and the failure of the learned trial judge to give what I consider to be appropriate warnings as to the use of certain evidence

which, in my opinion, was otherwise properly admissible to prove certain aspects of the Crown case. The two particular aspects arose, first, out of the admission of evidence as to the applicant’s long-term and serious drug trafficking and, secondly, out of the proper admission of evidence to rebut the suggestion of recent invention by the principal witness, the former wife of the applicant.

The differences in our conclusions arise partly from a difference in approach to the need for judges to give warnings where evidence is relevant and admissible for one purpose but not for another, and in part over the significance and the use likely to have been made by the jury at the trial of those two facets of the evidence. As to the balance of the manifold grounds of appeal, I would respectfully agree with what the other members of the Court say as to the rejection of those grounds.

There seems little dispute that there are occasions on which the rules of evidence permit the calling of evidence because it is relevant or otherwise admissible to establish one aspect of a case, yet the same evidence is clearly inadmissible to prove or to attempt to prove another. The difficulty is that, more often than not, although it is inadmissible for the second purpose, it can often be seen that it might appear, wrongly, to the jury to be relevant to that second aspect if admitted. The manner in which the apparent difficulty arises cover a variety of circumstances. Commonly it occurs where what would appear to be hearsay is admitted for the limited purpose of proving that a statement was made[27], though it is not admissible to prove the truth of the statement[28], secondly, where evidence is admissible against one accused but not against another[29], and again, rather more frequently in recent years, where evidence as to criminal or other wrongful conduct is admitted to prove the background to the commission of the alleged crime (preferably only to prove the relationship between the accused and others)[30], character (in certain circumstances)[31], or to deny accident and the like, but it is not admissible to establish that, merely by reason of the accused’s bad character, the accused was the kind of person who was likely to have committed the alleged offence or was the person who in fact had committed the offence.
[27]For example, in order to prove a person’s state of mind or to prove the fact that a conversation has taken place: see Walton v. The Queen (1989) 166 C.L.R. 283 at 300-306 and Bull v. The Queen [2000] H.C.A. 24; 74 A.L.J.R. 836. Likewise, in order to prove “recent complaint”: see e.g. Crofts v. The Queen (1996) 186 C.L.R. 427; or to prove a prior inconsistent statement: cf. R. v. Thynne [1977] V.R. 98 at 99; Morris v. The Queen (1987) 163 C.L.R. 454 at 468-470.
[28]Bull para.[126] at 857-858.
[29]See R. v. Gunewardene [1951] 2 K.B. 600 and R. v. Torney [1983] 8 A.Crim.R. 437 (C.C.A. of Victoria) at 438: cf. the rule as to co-conspirators in Ahern v. The Queen (1988) 165 C.L.R. 87.
[30]See, e.g., BRS v. The Queen (1997) 191 C.L.R. 275; Gipp v. The Queen (1998) 194 C.L.R. 106 and R. v. Best [1998] 4 V.R. 603.
[31]When evidence of good character has been led or prosecution witnesses have been attacked: cf. Donnini v. The Queen (1972) 128 C.L.R. 114; Phillips v. The Queen (1985) 159 C.L.R. 45; Melbourne v. The Queen (2000) 198 C.L.R. 1.

The issue raised by both grounds 2 and 4 is what is the proper course for a judge to take where evidence has a multiple admissibility or a multiple relevance, as it has been called. Wigmore in his work on Evidence (Tillers Revision, 1983)[32] describes the issue as one of “multiple admissibility; evidence applicable to more than one purpose”. In Cross on Evidence (loose-leaf Australian edition)[33] the matter is described as “multiple relevance and admissibility”. To my way of thinking multiple admissibility is a misnomer, for there is no great difficulty if evidence is admissible on a number of grounds, except to the extent that for some purposes a direction may have to be given as to how it might be used. The problem really arises where evidence adduced has an apparently multiple relevance but “limited admissibility”, for that, as the discussion in both works makes clear, involves the evidence being relevant for several purposes, though admissible for only one purpose, or sometimes for a limited number of purposes. The term “limited admissibility” is now adopted in “The New Wigmore. A Treatise on Evidence” (1996) by Professor Leonard in what is the only, unnumbered volume of a new, reorganised edition of Wigmore. The first chapter analyses the subject in detail on a largely theoretical basis but the author discusses the form of instructions to juries in

para.1.11.5 and the American rules as to appellate review of them in para.1.11.6.[34] The evidence is not admissible generally, for example, in cases of hearsay, propensity and the like. In such cases the evidence is inadmissible on one or more grounds, despite the fact that it may be used for a particular purpose (or purposes) and is thereby admissible for that purpose. The evidence which otherwise would be excluded as inadmissible may well be relevant to the facts in issue as being capable of being seen by the jury as bearing upon the likelihood that the alleged offence can be made out. That is clearly so in the case of hearsay and more arguably so in the case of propensity, although Lowery v. The Queen[35] and a number of more recent cases appear to accept its general relevance. In such cases it is accepted that the judge is obliged to explain how the evidence may be used, for its admissibility is limited and an absence of explanation could easily result in a miscarriage of justice.[36]
[32]Vol.1 Para.13.
[33]At para.[1520].
[34]See also para.1.8.1 on the “Limitations of Limiting Instructions”. Of course much of what is said in the whole chapter is affected by rules of evidence and practice peculiar to U.S. jurisdictions. I have not found any of the formerly customary footnote references to cases in other jurisdictions.
[35][1974] A.C. 85.
[36]In the New Wigmore rules to similar effect are set out on pp.1.90-1.91.

One may accept that, for many years in criminal trials, evidence as to the criminal behaviour, “the character and tendencies”[37], of the accused, including the commission of specific offences other than those charged, has been treated as prima facie inadmissible, certainly if sought to be led solely for the purpose of showing that the accused is the kind of person likely to have committed the offence charged.[38] As one of many examples one may take a passage in the judgment of Dawson, J. in Harriman v. The Queen[39], but, as his Honour there said:
[37]Dawson v. The Queen (1961) 106 C.L.R. 1 at 16, per Dixon, C.J., cited with approval in Bull at 855 para.[111] per McHugh, Gummow and Hayne, JJ. and in KRM v. The Queen [2001] H.C.A. 11 at para.[21] per McHugh, J.
[38]See, e.g., Makin v. A.G. (N.S.W.) [1894] A.C. 57 at 63.
[39](1989) 167 C.L.R. 590 at 597.

“This is not because the evidence is irrelevant. On the contrary, it is excluded because a jury is likely to regard it as proving too much and it is for that reason likely to proceed upon prejudice rather than proof.”

Cf. R. v. Tektonopoulos[40] per Winneke, P. with whom Charles and Batt, JJ.A. agreed. If it is to be admitted, however, then it should only be admitted upon the basis that the jury are firmly and clearly warned as to the use to which it may be put and, more importantly, as to the uses to which it may not be put. So far as relationship evidence is concerned, this is abundantly clear from Wilson v. The Queen[41] where Menzies, J. said[42], in explaining why there had not been a mistrial by reason of the admission of the evidence of threats of violence by the accused towards the deceased, admitted as evidence of the relationship between the parties:
[40][1999] 2 V.R. 412 at 417.
[41](1970) 123 C.L.R. 334.
[42]At 345.
“His Honour carefully directed the jury upon the use that they could make of the evidence and warned them against treating the statement as evidence of the actual state of mind of the applicant.”

Again, Owen, J. in his judgment, in explaining why he reached the same conclusion, said:[43]
“The learned judge was at pains to direct the jury that these statements were not to be treated as any evidence of the fact that the applicant did wish or intend to kill his wife but could be used only to show that the relationship between them was one of enmity.”

Barwick, C.J. stated[44] why the evidence of the quarrel between the parties was admissible and why the words of those quarrels were likewise admissible:
“It is impossible, in my opinion, to maintain the proposition that, though the fact of quarrelling may be admissible, the primary evidence of the quarrelling, namely the words and gestures passing between the parties in the course of the quarrel, may not. Of course, care must be taken by appropriate directions to the jury to properly confine their use of such statements. Here the trial judge took adequate precautions in that behalf.” (Emphasis added.)

[43]At 346.

[44]At 340.

From the variety of circumstances in which it has been held that a warning should be given as to the wrongful use of evidence of limited admissibility, it may reasonably be concluded that the general rules as to jury directions on this subject are not confined to cases of “propensity evidence” (including “similar facts”, relationship and “guilty passion” evidence) arising out of sexual behaviour with the complainant and other persons, as was suggested in argument. Those rules have indeed been emphatically restated recently in the High Court and in this Court, but they should not be so limited, unless the evidence is, for other reasons, generally admissible.[45]
[45]Cf. Donnini at 123; B v. The Queen (1992) 175 C.L.R. 599 at 609 and Bull, generally.

In the light of what has recently been said by a majority of the High Court in Bull[46] it is necessary to trace only briefly the statements of high authority which require a proper warning where evidence admissible only for certain purposes is led. The passage most frequently now taken as a starting point is contained in the judgment of Barwick, C.J. in Donnini[47], a case involving the use of evidence of prior convictions obtained in cross-examining an accused who had put his character in issue. The need for a clear statement to the jury as to the limited use to be made of such evidence[48] was adapted as a general proposition by Dawson and Gaudron, JJ. in B.[49] Their Honours dissented but the passage has been cited on several other occasions in later High Court judgments, including Bull. They said:

“Where, in a criminal case [the judge] admits evidence admissible for one purpose but inadmissible for another – as he is ordinarily bound to do – he should direct the jury that they must not use the evidence for the purpose for which it is inadmissible, particularly where the use of the evidence for that purpose would be adverse to the accused.”

Reference to that judgment appear in BRS[50]. In turn those passages were relied on in Gipp[51]. Moreover, in the judgment of the majority in Bull[52], the passage from B[53] was relied upon for the following proposition which would appear to be of general application:
“When evidence is tendered which contains matter that is wholly inadmissible by reason of an exclusionary rule of evidence such as the rule against hearsay, the rule against proving the criminal character or disposition of the accused or a statutory rule, a trial judge will often have to determine whether it has evidentiary value for some other purpose in the trial. If it has, the evidence may be admissible for that purpose although usually the jury, if there is one, has to be warned that the evidence can only be used for the admissible purpose and for no other purpose. Sometimes, it may be necessary to go further and specifically warn the jury that the evidence cannot be used as proof of a particular fact or issue or to reason in a particular way.”

[46]At 847 para.[69]. The case was not cited in argument but the relevant passages merely draw together certain general principles in a case where a statutory provision made certain evidence inadmissible for specified purposes.

[47]At 123.

[48]See at both 123 and 127-128 and at 133-134 per Menzies, J.

[49]At 619.

[50]At 302, 305 and 326.

[51]At 112, 156 and 164-9.

[52]McHugh, Gummow and Hayne, JJ. at 847 para.[69].

[53]At 619.

It would seem therefore to be now clear that where evidence is admitted for a limited purpose but which is inadmissible for another purpose, the jury must be properly instructed as to the use to which they may put that evidence. The obverse of this proposition, in my opinion an obvious one, is that the judge should ordinarily warn the jury as to how the evidence may not be used.[54] It is clear that this must be done in this State where evidence of, say, “recent” (i.e. prompt) complaint is let in,[55] for there is then a very special limited relevance for that evidence and a high chance that the jury may misuse it. Cases like BRS and the other cases discussed above would seem also to make it clear that juries must be warned against the misuse of propensity or other character evidence let in only for a limited purpose. To my way of thinking, as Bull makes clear, that equally applies to hearsay and in particular to the hearsay evidence which is let in, say, as a means of rebutting a cross-examiner’s suggestion of recent invention by a witness. Recent invention and the principles which the courts have laid down as to its admission and use was authoritatively discussed by the High Court in TheNominal Defendant v. Clements[56]. The question of appropriate jury directions was not there in issue but in the course of his analysis of the relevant principles Windeyer, J. said[57]:

“And, finally, if evidence of an earlier statement be received, the grounds for doing so should be made clear to the jury lest they should regard it as evidence of the facts stated.” (Emphasis added.)

That statement seems entirely consistent with the discussion in both Wigmore and Cross. Cross, for example, in discussing examples of multiple relevance chooses evidence of previous convictions, saying[58] “it is necessary for the judge to instruct the jury that it must not take the evidence into account as showing the guilt of the accused directly”. Likewise Wigmore[59] says:
“Here the only question can be what the proper means for avoiding the risk of misusing the evidence. It is uniformly conceded that the instruction of the Court suffices for that purpose, and the better opinion is that the opponent of the evidence must ask for that instruction. Otherwise he may be supposed to have waived it as unnecessary for his protection.”
[54]See R. v. Dolan (1992) 58 S.A.S.R. 501 at 503 per King, C.J.
[55]See, e.g., Crofts.
[56](1960) 104 C.L.R. 476 and cf. Bull at 849 para.[79].
[57]At 495.
[58]At para.[1520].
[59]At para.13.

The latter observation seems, as I already have attempted to point out, inconsistent with statements in cases such as BRS and Tektonopoulos. The whole of that particular passage was in fact cited with approval where the evidence was otherwise strictly hearsay but was allowed in as showing the state of a person’s feelings which were there relevant: see Adkins v. Brett[60]. The learned judge says the rule “is one of well nigh everyday application in actual trials”. I should add that in my own experience such warnings have been frequently given and, for myself, that was the practice I adopted at trial, in particular by so directing the jury immediately some such hearsay or partly admissible evidence was admitted as relevant to prove only a limited fact and not the truth of the facts contained in the statement itself. Whether or not it is essential to do so at that stage[61], I thought it best to make the limited purpose immediately clear to the jury. I have no reason to believe that that practice is unusual. In the present case the only issue is whether the judge should have given appropriate directions in the course of his charge.
[60](1920) 184 Cal. 252; 193 P. 251 at 251-254 per Olney, J. (see Wigmore, Vol. 1, p.700).
[61]In R. v. Beserick (1993) 30 N.S.W.L.R. 510 at 516 Hunt, C.J. at C.L. certainly thought an immediate warning was necessary in the case of “propensity” evidence. See also R. v. Eyles (1917) 17 S.R. (N.S.W.) 377 at 380-381 per Street, J. (Sly and Gordon, JJ. concurring) (Hearsay).
Grounds 1 and 2

Grounds 1 and 2 of the application raised the admissibility of, and the adequacy of the judge’s direction as to, evidence tending to show that the applicant had been and was continuing to engage to a significant extent in drug trafficking. At first the argument sought to exclude the evidence altogether and then it was said, alternatively, that the evidence of drug dealing covered too wide a period which could not be relevant for the purposes sought by the prosecution. In the circumstances, however, the whole of the evidence was relevant to show the background to the relationship between the applicant, his partner in drug-dealing (Tomislav (“Tom”) Juricic) and the deceased, albeit that it covered a period in excess of two years. It was important and relevant to the Crown case that the applicant should be shown to be engaged in the drug trade not merely casually, but on a systematic long-term basis which went back for several years and extended some short time at least after the commission of the offence, although the judge rightly excluded evidence of any later dealings. The Crown sought to show that it was the applicant’s business, his apparent means of living, such that it was contended that he was a person who would brook no interference in that trade. This, of course, was not being established to show a proclivity for disposing of his rivals; rather it was intended to show that the dispute his partner had had with the deceased, which, so it was alleged, arose out of an attack by the deceased Pink on the applicant’s partner and an attempt by him to steal drugs from him which had resulted in a cut to Juricic’s hand, was of a kind likely to provide a motive for a serious drug dealer to retaliate to preserve his and his partner’s business.

Although the trial was conducted upon the basis that the sole issue was whether the jury could be satisfied beyond reasonable doubt as to the applicant’s confession to his former wife, Ms Guziak, nevertheless, because of the potential unreliability of her evidence by reason of her drug addiction and her falling out with the applicant immediately before she reported the alleged confession, the additional circumstantial evidence adduced was important to bolster the reliability of Ms Guziak’s account of the confession. As to this, the applicant’s connection with the deceased man was critical, for otherwise there was no evidence that they had had any social or business dealings, nor could he be identified at the scene of the shooting. There must, therefore, have been some reason why, as allegedly was related to Ms Guziak, the applicant would have gone out deliberately to shoot and kill Pink. Although no evidence was directly given about it, there seemed to have been some altercation between Tom Juricic and Pink which suggested that the deceased had been trying to interfere with Juricic’s trafficking. That would hardly in itself have provided a motive for the applicant to go out and shoot Pink, but there were two other factors upon which the Crown relied which would have made it far more likely that the applicant would wish to obtain revenge for what was apparently a relatively slight injury to an acquaintance, namely, that the applicant had for some time been heavily engaged in drug trafficking and secondly, that Juricic was his “partner” or colleague in that business. Those two facts would have made it more likely that the applicant would wish to preserve their business from the kind of interference and threats which Pink appeared to cause, which were known in the “trade” as “rip-offs”.

That essentially was the alleged motive for the killing, and indeed it could have been the only motive, for that was the sole connection, albeit tenuous, between the applicant and the deceased. Otherwise it would have been a senseless murder and this one was, on the evidence of the actual shooting upon which the Crown relied, a premeditated execution. Thus it was important for the Crown to show not merely that there was this so-called connection between the applicant and the deceased but that the applicant had reason to see the deceased’s activities as threatening him significantly in a relevant way, namely threatening the profitable drug business Juricic and he had built up.

A motive therefore was clear, if it could be established. The Crown sought to prove that by establishing, somewhat indirectly, the applicant’s connection with Juricic, as well Juricic’s altercation with Pink. Just as importantly, from the viewpoint of the Crown case, it had to establish that the applicant was engaged in the drug trade, not in a minor way, not in a way which merely provided drugs for him or his wife Ms Guziak, but in a serious and systematic way so as to make it likely that he would deal drastically with those who attempted to interfere with that business.

Consequently, for the purposes of attempting to ensure that Ms Guziak’s story of the confession would be believed, the prosecution case emphasised not only the motive but also that aspect of the motive which made revenge the more likely, namely that the applicant was a long term and serious drug dealer. As I read the transcript there was considerable emphasis placed by counsel for the Crown on the motive but even greater emphasis on that aspect which would make violent revenge the more likely, namely that he was seriously involved in drug trafficking at the relevant time. At various stages there was discussion as to what the onus of proof might be as to this element of the supporting or confirmatory circumstantial case. I would gather that, as it went primarily to the reliability of the confession and not to an element in a separate circumstantial case, the judge accepted that it need not be proved beyond reasonable doubt, but that some formula should be used to the jury which would emphasise that they should be firmly satisfied of the allegation, if they were to rely upon it.

The issue as to the applicant’s alleged motive and the interrelated issue of the extent of his drug dealing appear to have played a significant part in the trial at all stages. That is not surprising having regard to Ms Guziak’s alleged character and the risk that the Crown case might fail because she might be treated by the jury as wishing to obtain revenge on the applicant for his desertion and because her lifestyle, especially her addiction to drugs, made it easier to attack her credibility, to the extent that it was ultimately held by the judge (as was not ultimately challenged in the appeal) that her cross-examination tended to suggest that she had recently made up the story, at the very least that she had made it up after the time when the applicant left her.

These aspects of the conduct of the trial were reflected in part in the learned judge’s charge. For example, the summary of the police evidence was directed specifically to questions from the accused’s counsel as to the number of suspects and as to other persons who could well have had a motive to kill Mr Pink. Likewise counsel’s addresses, as related by his Honour, placed considerable emphasis on the existence of the motive, although the applicant’s then counsel naturally enough disputed it. As summarised by the judge, in somewhat abbreviated terms, counsel for the Crown argued “that the motive for the robbery was the cutting of Tom’s hand by the deceased”. The argument then went into the supporting evidence including the evidence about the injury to Juricic and his treatment. This was said to support the account by Ms Guziak of the applicant’s confession. The learned judge then summarised prosecution counsel’s arguments relating to drug dealing, concluding in these terms:

“Mr Hillman said when you put all that together you should be satisfied of the evidence that he was dealing in drugs and that this was important because that was the motive which Ms Guziak said and the comments which related to the admission and therefore it supports the admission.” (Emphasis added.)

It was at this point that the learned judge diverted from his account of counsel’s arguments to deal with the question of the onus of proof relating to the applicant’s drug trafficking. He said that defence counsel had suggested that the Crown would have to prove this aspect of the applicant’s behaviour beyond reasonable doubt, but the learned judge said that that was not in law “strictly correct”. So he said (ibid) that -

“It is nevertheless a direction of law by me to you that because the drug dealing is so integrally involved in the events as described by Ms Guziak and the motive that she attributes in this confession that she says was made, that it would be quite unrealistic for you to accept her evidence about this confession unless you were pretty confident that he was a drug dealer at the time and involved with Tom in drug dealing. Otherwise the whole thing does not make any sense in the context of this case.” (Emphasis added.)

Naturally counsel then appearing for the applicant primarily attacked the credibility of Ms Guziak as the essential witness to the Crown case. Nevertheless he made a number of references to motive. According to the judge’s summary counsel had immediately chosen to give an example of another suspect and the sort of evidence available against that person who likewise “had a motive, the rip off”. Later counsel, according to the charge, sought to challenge Ms Guziak’s story about the cutting of Juricic’s hand by Mr Pink, which he said really depended upon her evidence. Moreover, counsel had attacked in some detail the evidence about the applicant’s degree of involvement in the drug trade which was likewise essential to the arguments based on motive. Furthermore, as likewise appears from the judge’s charge, counsel had spent some time trying to show that one aspect of the applicant’s alleged motive was not accurate, namely that at the relevant time he had been a trafficker in heroin, and thus, as the prosecution put it, a person likely to protect that business.

At the end of his charge the learned judge returned to the principal issues which he said had to be resolved by the jury. He referred to the confession as being the critical evidence without which the jury could not be satisfied of guilt beyond reasonable doubt, but he also briefly reminded the jury of matters in the evidence which, if proved, were consistent with and supported the confession and about which the Crown said “that he was, [they] should find, a dealer in drugs with Juricic, that the motive to kill Pink was produced as a result of that drug involvement and the event with Pink …”. The learned judge then came to four matters which he said the jury should consider before they gave their verdict. In the first place, the onus rested on the Crown to prove the applicant’s guilt and secondly, in the present case the Crown had to prove beyond reasonable doubt that the confession was made to Ms Guziak. Thirdly, and most significantly for present purposes, his Honour said:

“To come to that conclusion, you would have to conclude that he was dealing in drugs, as in the context that was suggested, because that is so integrally connected with the alleged confession, that if you weren’t satisfied with that, you could hardly make any sense of the confession and be satisfied beyond reasonable doubt about it.”

Although the learned judge did not here use the word “motive”, it is clear that the confession, in his opinion, could not stand unless it was shown that the applicant was trafficking in drugs in the way alleged for, implicitly, there would be no reason or motive otherwise for the applicant to carry out the shooting.

Furthermore it had been apparent from the outset at the trial that the issue of motive was critical to the Crown case. Ms Guziak’s evidence was in part directed to that issue and Mr Mohar’s evidence was directed to it entirely. So also were two aspects of consciousness of guilt, said to be derived from two lies about the applicant’s conduct during the course of his record of interview. The learned judge in the course of an early ruling which dealt with a number of items, acknowledged the significance of the issue as to motive and the significance for that purpose of circumstantial evidence directed to showing that the applicant was heavily involved in the drug scene, as he described it. Although no mention was made in the course of that ruling about the nature of the directions which would have to be given relating to that kind of misconduct, during the argument junior counsel for the prosecution said that the evidence of these matters was highly relevant and that “any prejudice is outweighed by the probative value”. More significantly he said: “Your Honour ought to be able to give an appropriate direction to the jury about any improper use of that evidence.” To this the learned judge replied: “Yes, I understand that.”

There was, as I understand it, no other reference during the trial or in the charge to the limited use to which the jury might put the evidence of the applicant’s involvement in drug trafficking. Moreover, there seems to have been no further discussion as to whether the judge should or should not give some appropriate direction. It has been argued that counsel made a deliberate decision not to complain about the judge’s omission but there is, in my opinion, notwithstanding counsel’s very great experience, no direct or indirect indication that a decision of that kind had been made. Sometimes one can readily infer that there has been a tactical decision but on this occasion, with great respect to those who think the contrary, I cannot be satisfied that such an inference should be drawn. Counsel for the prosecution had already conceded the need and there had been no response in the course of argument suggesting to the learned judge that the concession was misconceived or, more importantly, that counsel thought it undesirable that any reference should be made to the matter or, possibly, that he would rather leave that until a later stage in the trial. The directions in the charge as to the law and as to the use of evidence were brief and came, conventionally, at the beginning of the charge and it was not for a considerable time later that counsel was asked whether they had any objection. The charge had clearly appeared to counsel to be so satisfactory, at least in terms of the summary of evidence, that no objection was taken except by counsel for the Crown who raised two quite different matters. In the circumstances I am inclined to the opinion that counsel merely overlooked the absence of what might be described as the conventional warning or, at the very least, I cannot be satisfied that there was any tactical decision to refrain from seeking such a direction.

Furthermore, I cannot be satisfied, as has been suggested, that the question of motive was overlooked by the judge in his charge or that the absence of reference to motive was such that counsel would have been inclined to leave the subject well alone, thus also justifying the decision not to seek a direction about the use of the evidence relating to drug dealing. I have described certain aspects of the charge above but the essence of the case, what made the prosecution story hang together, even though there was the confession to Ms Guziak, was that the jury might perceive that there had been a good reason why a person engaged in drug trafficking would wish to dispose of Mr Pink. That remained one of the central issues in the trial, one which was certainly not conceded by the applicant and indeed was challenged by vigorous cross-examination seeking to deny it. The jury must have been aware that that was seen as a very important part of the Crown case.

The critical issue so far as ground 2 is concerned is whether the learned trial judge was obliged to give a warning as to the misuse of the evidence relating to the applicant’s drug trafficking activities and, if he was so obliged and failed to do so, whether that resulted in a miscarriage of justice. As a starting point, there would seem little dispute that ordinarily where evidence is given of an accused’s criminal or other improper activities, the judge will give a direction to the effect that, merely because the accused has been involved in those activities or has those proclivities, that fact or those facts cannot ordinarily be used by the jury in themselves as making it more likely that the accused has committed the offence charged. That shorthand description of the proper charge is, of course, an oversimplification for the evidence of that kind normally would not be relevant or admissible if it did not play some part in helping to establish the accused’s guilt. Preferably it should be pointed out that, merely because the accused has that record or possesses those characteristics, the jury should not reason from his propensity for criminal behaviour that the accused is the type of person who was likely to have committed the offence charged and thereby be satisfied beyond reasonable doubt of that person’s guilt.[62] It was quite a different matter for the jury to reason that, because the applicant was involved in the drug trade, he was more likely to have a motive for disposing of a rival.
[62]See, e.g., R. v. Grech [1997] 2 V.R. 609 at 614; Best at 616; R. v. FJB [1999] 2 V.R. 425 at 431.

It is usually seen[63] to be desirable that the judge should point out the limited purposes for which the dangerous evidence might be used, emphasising that those are the only purposes for which it might be used, before turning to the obverse in terms such as McHugh, J. suggested in BRS[64]: “You cannot use [the] evidence to conclude that the [accused] is a person of bad character who is likely to commit offences of the kind with which he is charged.” Alternatively, as his Honour had expressed a test earlier in his proposed relevant “model charge”[65]: “However, except in those … ways, you must not use that evidence in determining whether the accused is guilty of the offences with which he stands charged.” (Emphasis added.) Additional complications arose in BRS in that the accused deliberately placed his character in issue and secondly, there was only one witness called as to other alleged offences and, at least in the eyes of McHugh, J.[66] and Brennan, C.J.[67], there was a real risk that that evidence would have taken on a greater significance which apparently it did not then possess. In the present case, on the other hand, it is clear that the applicant’s drug trafficking activities were, if not essential to the Crown case, the second most important issue in the case about which there was much evidence and cross-examination and the significance of which was emphasised in the charge. They were not, therefore, facts which could be hidden and forgotten and therefore it is the less likely that counsel would have taken the view “least said, soonest mended”.
[63]See now also Bull.
[64]At 309.
[65]Ibid.
[66]At 309-311.
[67](Dissenting) at 285-286.

This, moreover, was not a case which involved either character evidence or “similar facts” or propensity evidence of the kind which has caused so many problems in recent years. The character of the applicant went only to motive and in this particular case not even a motive which could be said for certain to be peculiar to the applicant. Tom Juricic, for one, was a person who would have had an almost identical motive for disposing of Pink and, at least according to the cross-examination and arguments put on behalf of the applicant, there may well have been others in the underworld who would have similarly viewed Pink’s propensity for rip-offs. Of course, the more likely it was that the applicant had a motive for killing Pink, the more likely it was that the jury would accept Ms Guziak’s evidence of his confession inasmuch as it depended on her account of the applicant’s enmity towards Pink or, more precisely, his reason for having him “eliminated”. The charge therefore had to be carefully tailored so as to allow the jury properly to use the evidence, if they were so satisfied, of the applicant’s drug trafficking activities which would allow them to be more confident in accepting the confessional evidence. Nevertheless, as to the impermissible use of that evidence, one could fairly return to first principles or at least to that practice which requires the explanation of, and warning to the jury about, prejudicial evidence admitted only for limited purposes.

The evidence here in question may be described as relationship evidence, rather than “background” evidence[68], going relevantly to a specific issue, namely the motive of the applicant. It also assisted in an understanding of the confession as related by Ms Guziak. Its admission was entirely consistent with that passage of the judgment of Kennedy, J. in R. v. Bond[69], a passage cited with firm approval by Menzies, J. (with whose judgment McTiernan and Walsh, JJ. concurred) in Wilson[70]:

“The relations of the murdered or injured man to his assailant, so far as they may reasonably be treated as explanatory of the conduct of the accused as charged in the indictment, are properly admitted to proof as integral parts of the history of the alleged crime for which the accused is on his trial.”

The passage was likewise cited with approval by Barwick, C.J.[71] In Wilson it was confirmed that evidence of that kind had for many years been admissible in aid of proof of motive but, as may be gathered, it was there held to have a wider relevance, in particular in order to rebut a claim of accident. It was there held that threats of violence by the accused and an unhappy relationship with the victim over a number of years, though prejudicial, should be admitted and that its probative value outweighed its prejudicial nature.

[68]Cf. Harriman at 630-631 per McHugh, J.; B at 610 per Deane, J.; Gipp at 166-169 paras.[176]-[183] per Callinan, J.; Best at 612 per Callaway, J.A.

[69][1906] 2 K.B. 389 at 401.

[70]At 344.

[71]At 338.

The significance of Wilson lies not only in its acceptance that surrounding circumstances and relationship evidence may be relevant to matters other than the proof of motive, but also in that it accepts that in those cases a proper direction must be given so that seemingly incriminating evidence of this kind will not be misused by the jury. In the present case the evidence is primarily used for an accepted purpose, namely, to show that the applicant had or might have had a motive for killing the deceased. As I have said, it was important evidence in the circumstances since it provided a link, or a potential link, which otherwise did not exist. But it was in the end evidence only of motive. Many may have a motive to do harm: but few believe that they have reason to cause injury and fewer still turn belief into action. Of course, as was clearly established in one of the leading cases on the issue, Plomp v. The Queen[72], proof of motive may go further than merely proving intent and may be used as occurred in that case, as part of a circumstantial case to prove the actual death of the victim: see per Dixon, C.J.[73] Nevertheless, as Menzies, J. said[74] in a judgment in which all other members of the Court (Dixon, C.J., Kitto, Taylor and Windeyer, JJ.) concurred:

“It hardly needs to be stated that to prove motive for a crime and no more could never be sufficient evidence upon which to convict anyone and it is to this that it seems to me some of the authorities cited are really directed, but, in a case like this, proof of such matters as I have just indicated does bear upon the probability that the applicant killed the deceased.”

[72](1963) 110 C.L.R. 234.

[73]At 242-243.

[74]At 248-249.

Those considerations merely emphasise that in cases where proof of motive forms a significant part of the Crown case and where proof of that motive is dependent on criminal activity or other misconduct, the judge should be careful to give proper directions to the jury in relation to that evidence. In the first place, the existence of a motive is not the same as proof of the killing by the accused. The evidence goes to help in proof sometimes of intent only and sometimes of both intent and the actus reus, but to say that it may be used by the jury as part of the proof of a circumstantial case merely emphasises that it is not direct proof, but proof which depends upon the drawing of inferences, so that a proper direction as to the drawing

of inferences in relation to this kind of conduct and in relation to motive is essential in almost every case.

It has been argued that the learned judge might be seen deliberately to have avoided giving a charge as to motive, for that would only have assisted the Crown case. Likewise it is said that counsel, so it could be inferred, was astute to have the subject left untouched. The need for a charge as to motive varies and I can find very little about the need generally for such charges in the authorities.[75] Sometimes it is essential where a case is wholly circumstantial but it is dealt with by way of explanation of how such a case may be proved. On other occasions there may be reason to direct the jury as to its limited use, even if it can be used as in Plomp. Proof of motive or opportunity cannot, so the jury should ordinarily be told, establish a Crown case beyond reasonable doubt, though it can assist in a significant way.[76] But that kind of direction is one which favours or protects the accused. Facts may vary, so here the prosecutor could not have insisted on any such direction, but, with respect, it is hard to see that the matter would have been greatly advanced, so far as the prosecution case was concerned, by any further direction on the subject.
[75]Usually it is merely one “fact” (also capable of being described as “relationship” evidence) in a circumstantial case. How to deal with the subject, and how not to deal with it, was discussed in Plomp and Wilson. See also Chamberlain v. The Queen (No. 2) (1984) 153 C.L.R. 521 at 565, 572; Alistair v. The Queen (1984) 154 C.L.R. 404 at 461-462; R. v. Tsingopoulos [1964] V.R. 677; Murphy v. The Queen (1985) 4 N.S.W.L.R. 42 at 59-60. The most recent, brief, discussion in the High Court was in Penney v. The Queen [1998] H.C.A. 51 at paras.[26]-[29]; 72 A.L.J.R. 1316 at 1321-1322 per Callinan, J. with whom the other members of the Court concurred.
[76]Cf. Plomp and Wilson. In those rare cases where proof is an essential part of the Crown case, such as arguably was the present case, the jury should be told that the motive must be proved beyond reasonable doubt.

More importantly, the jury must be told that proof of improper behaviour, proof of convictions and the like which might be such as to suggest to the jury that an accused is of a violent or otherwise immoral character cannot in the ordinary case be used by the jury as such in proof of the crime itself. They must ordinarily be told that merely because they reach the conclusion that the accused is of a bad or violent character, they must not reason from that alone to the fact that he committed the specific offence. Furthermore, I do not believe that a direction to that effect cannot be understood by a jury, if it is made clear what the evidence may properly be used for and why it may not be used for any further and improper purposes by them. It is done in many trials and, although one may suspect that from time to time the distinction is not fully understood because the charge does not make it entirely clear, one should not assume that the jury cannot understand why proof of motive, propensity, proclivity, character and the like are ordinarily not a proper basis for

reaching final conclusions as to the guilt of an accused. A direction along those lines should have been given at this trial.

Of course this evidence did not directly prove, as in the “propensity” cases, that the applicant had a proclivity for disposing of his rivals by violent means. It showed only that he had been a trafficker in heroin for some time. Sometimes the other criminal conduct led for admissible purposes will be of relatively minor significance, so that a jury would not be expected to reason from the lesser behaviour to guilt on so serious a charge as murder.[77] Here, however, the evidence was of the kind of drug trafficking which may have provided a motive for the killing. It was the kind of drug trafficking which might be visited with a heavy sentence and, more importantly, the jury may well have shared the community’s despising and condemnation of such behaviour. If that was a possibility, as I believe it was, it was important that the judge make clear that the fact that the applicant was the kind of person who would willingly and continuously engage in heroin trafficking could not be used by them to conclude that for that reason in itself he was likely to have committed the alleged murder. They should have been told that this evidence was capable of being used by them only for the purpose to determine whether the applicant may have had a motive for the killing.
[77]See, e.g., Donnini at 133-134 per Menzies, J.

It was finally said that although any direction as to the use of this highly prejudicial material was not given, experienced senior and junior counsel failed to take objection and so, even if it cannot be said that they specifically waived the point, they must have taken a tactical decision not to raise it because any warning would have created unnecessary complications even if it had been feasible. I have already said that I can see no reason why it would not be feasible, for it has been accepted for many years that, if prejudicial material is admitted to establish motive, suitable directions as to the use of that material ought ordinarily to be given. Of course, it must be relevant to establishing the accused’s guilt if it is to be admitted at all, so that proof of motive naturally tends to make it more likely than not that the accused’s guilt may be established. But it was here only admissible to establish motive or more precisely, the background of drug-dealing which may have provided a motive for an attack on Pink. It did not, however, provide direct proof of the applicant’s participation in the murder: it did so indirectly, circumstantially, so that its proof made it likely that there was a reason for the applicant to shoot Pink. It could go no further; the applicant’s alleged character as such did not make it more likely that he had carried out the killing.

So far as I can understand the course of the trial and in particular the charge there is nothing which indicates that a conscious decision was made by the applicant’s then counsel. Nor is there any material from which such an inference can be drawn, except that no exception was taken. Even then the failure to raise it as a matter for redirection may itself have been a tactical decision inasmuch as drawing attention to the applicant’s drug-trafficking activities as a separate issue by way of a redirection may have seemed to be unnecessarily emphasising an unfortunate aspect of the applicant’s character, relevant though otherwise may have been held to be. For myself I think that unlikely because the drug-trafficking formed such a significant part of the Crown case and was the subject of a considerable amount of discussion, including about the onus of proof, in the course of the charge. If the charge had dealt with this evidence at the proper time in the course of other directions as to the use of evidence then at least there would have been an attempt to give the jury the required directions as to its manifest prejudicial nature at an appropriate time. [For the present I am assuming that it is not here suggested that some direction should have been given at the time the evidence was first led, for prejudice of this kind can be insidious and to many minds ought to be explained to the jury at the earliest opportunity.] In short, I am not satisfied that there was any conscious decision not to raise the point.

At the end of the day the failure to give a direction of this kind must be shown to have led to a miscarriage of justice. I do not think it hard for that to be shown where evidence of this kind is let in for a limited purpose, albeit an important purpose so far as the Crown case is concerned. It is not a case for the application of the proviso, as has been said on many occasions, for the issue here is whether the applicant can be shown to have lost a real chance of acquittal by reason of the absence of the required direction and warning.[78]
[78]See, e.g., BRS at 295 per Toohey, J.; at 301 per Gaudron, J. (“serious risk of injustice”); at 308, 310 per McHugh, J. (“It is impossible to conclude that [the appellant] must inevitably have been acquitted”); at 330, per Kirby, J. (“perceptible risk of a miscarriage of justice”).

The applicant was entitled to a proper trial and, notwithstanding what some may consider to be the strength of the other evidence, it cannot be said that the jury might not have taken a different view if they had been told properly how to approach this prejudicial evidence. In the present case, the prosecution rested, as all conceded, on the alleged confession to the applicant’s former wife. Apart from specific inconsistencies which were brought out in cross-examination which the jury may have discounted on a rational basis, there could have been a good deal of doubt about the veracity of this principal Crown witness, or at least the jury may have perceived there to have been some doubt as the defence presented its case. She admitted to having been a heavy drug user for many years and clearly only went to the police with the alleged confession after the bitter and acrimonious breakdown of her relationship with the applicant. Without an appropriate warning the jury may have reasoned that because the applicant was shown to be a drug trafficker, his denials of the murder should thereby be discounted and in consequence Ms Guziak’s evidence should be believed. They should not have reasoned in that way but it is impossible now to know how they approached the evidence both of Ms Guziak and as to the applicant’s trafficking. The only thing one does know is that an appropriate direction as to the use of this prejudicial material was not given and thereby the applicant may well have been denied a real chance of a fair trial and of an acquittal. In those circumstances, the absence of objection by counsel cannot deny the right of an applicant to complain of a defect in the charge which may have had that consequence: see BRS generally. Ground 2 is therefore made out and on that ground alone there should be a new trial.

Ground 4

The second issue upon which I have the misfortune to differ from the other members of the Court relates to the failure of the learned judge to direct the jury as to the uses which could not be made of the evidence adduced from Mrs Kaye Guziak called in rebuttal of the suggestion of recent invention by her daughter as to the confession of the applicant. An argument that the judge erred in allowing the evidence to be called, as was originally alleged on the ground (4(a)) that the judge was wrong to consider that recent invention had been suggested by counsel then appearing for the applicant, was specifically abandoned at the outset of the application. In the ordinary case evidence confirming another witness’s story is permitted on very rare occasions but specifically it is permitted where a suggestion of recent invention is made and then, ordinarily, it may be used only for the purpose of rebutting a suggestion of concoction or recent invention and for nothing more.[79]
[79]See generally: Nominal Defendant v. Clements; R. v. Martin (1996) 65 S.A.S.R. 590; (No. 2) (1997) 68 S.A.S.R. 419; (No. 3) [1999] S.A.S.C. 375 and Bull at 849 para.[79].

In the present case no direction was given as to the use of this evidence either at the time it was given or in the course of the judge’s general instructions about the use of evidence. Furthermore, when summarising Mrs Guziak’s evidence, there was again no mention of the limited use to which the prosecution had sought to put it. In fact it was only the suggestion of the prosecution which led to there being any direction at all. Counsel for the Crown said that there should be a specific direction that the evidence as to the telephone conversation she received from her daughter was to be used “on the basis that it was admitted for the purpose of rebutting the suggestion of concoction in the period between the time of the shooting and the occasion when she first contacted the police”. His Honour responded by acknowledging that “normally that evidence is not admissible” but that it had become relevant because of the line of cross-examination. Counsel said that the jury should be told that by his Honour and when, after dealing with another issue, the matter reverted to counsel for the applicant, he said he did not wish to comment on it. It was actually some time later that the judge did refer to the evidence in the course of summarising the Crown case. In the course of summarising the argument that it was unlikely that Ms Guziak had invented the story he said:

“He put to you that it was because the cross-examination was put on the basis that she invented the story based on pieces of information that she got from the news media, and rumour, underworld – drug-world rumour by the time the 17^th April came when she made her own statement. [I]t was because of that that the Crown was permitted to call Mrs Guziak, and that is true, Mrs Guziak’s evidence would not have been admissible, it was only made admissible because of the allegation that all these matters were invented and invented from information after the Sunday morning, and Mr Hillman argued that you should accept, after hearing Mrs Guziak, the conversation which by its terms should be inferred to be referring to the Sunday morning 12^th March.”

After referring to the conversation in general terms his Honour said:
“It rebuts the suggestion that her story was made up from information later obtained and that at the time the accused and Ms Guziak were still together.”

That was in essence all that his Honour said about the admissibility of the evidence to rebut recent invention and it must be said, with respect, that what he said was by no means clear and indeed it was even less clear that his Honour was giving a direction about the matter rather than merely summarising and commenting on prosecution counsel’s argument. To me the vice is clear: this was evidence which purported to describe a number of facts which came from a witness whose evidence would otherwise not have been admissible, but which was allowed to be called, at least at first, for one distinct purpose, namely the rebutting of recent suggestion and thereby merely the restoration to the extent appropriate of the witness Ms Guziak’s credit and especially the evidence as to the phone call and possibly also as to the timing of the conversation.

It is said that this evidence was admissible not merely to restore the credit of the witness Ms Guziak. That is possibly so, although the point was certainly not raised at trial in a direct way. Certainly the time at which the statement to Mrs Guziak was made was very important but in my opinion its importance went to the reliability of Ms Guziak’s evidence. If she could have discovered the facts, or sufficient of the facts, from an evening television news broadcast, then her version was the less reliable, but, because the mother gave evidence supporting the statement that the phone call relating the confession was made before those news broadcasts, it could be seen that it was more reliable, for the very purpose of restoring the credit of Ms Guziak, so far as that was necessary.

I accept that the evidence was of greater use to the prosecution than is usual when evidence of this kind is led to restore credit after an attack of “recent invention”. As was pointed out on a number of occasions during the trial the evidence, if correct, served to show that the confession was repeated by daughter to mother at a time before all details were available from news broadcasts on radio and television. In that sense it also served to boost the reliability of the daughter’s account. But it could have taken the Crown case no further. It was not independent evidence of the confession, to be used as an exception to the hearsay rule, because it was an admission against interest. That could only arise if the jury accepted the daughter’s version. I concede that the mother’s evidence could not have been described, as counsel for the applicant put it in argument, as admitted solely to restore the credit of the daughter. It had, or might have been seen to have, a second relevance and ground of admissibility, but that, to my way of thinking, does not relieve the judge of the need to direct the jury as to what the evidence may not be used for. Some jurors, whether or not familiar with other systems of proof[80], may have seen the repetition of the confession as making it the more likely that it was true, a conclusion which cannot be countenanced if it depends on hearsay of the primary account.
[80]The need for more than one witness is an accepted part of the criminal law of Scotland and other civilian systems: cf. the authorities referred to in R. v. Rosemeyer [1985] V.R. 945 at 960.

What, therefore, was required was a direction as to how the evidence could not be used. That is entirely consistent with the authorities referred to earlier. The jury should have been told that they could not rely on it as independent evidence of the matters said to have been admitted by the applicant.

The contents of the mother’s evidence were important, but I cannot accept that it could have been used as an independent means of proving the applicant’s alleged admission, so that the jury were not entitled to use it independently as proof of the apparent facts relating to the applicant adduced in evidence from the mother. If the jury would not otherwise, notwithstanding this material, accept the daughter’s evidence, because of its unreliability on other critical grounds, then they could not act on the mother’s account independently, for that was in truth hearsay on hearsay, or at the very least, hearsay of a confession or an admission against interest. The jury could not rely on the mother’s evidence in that way and should have been clearly instructed to that effect.

In my opinion the jury may have relied separately on the mother’s evidence as proof of a confession by the applicant, so that the failure to give such an instruction led to a miscarriage of justice. The confession was critical to the prosecution case. The possibility that the mother’s version may have been misused, for example if the jury had doubts about the daughter’s version even allowing for some restoration of her credit, meant that the applicant lost a real chance of acquittal, so leading to a perceptible risk of a miscarriage. The absence of objection cannot overcome a defect of that kind in the charge. On this ground also I would have allowed the application and the appeal. Otherwise I would agree in the reasoning and conclusions contained in the judgment of Brooking, J.A. and Phillips, J.A.

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[2001] VSCA 18

13 March 2001