R v Halliday

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 893 of 2007
No 553 of 2009

THE QUEEN
	v
THOMAS KEITH HALLIDAY

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JUDGES:	BUCHANAN, ASHLEY and WEINBERG JJA
WHERE HELD:	MILDURA
DATE OF HEARING:	6 May 2009
DATE OF JUDGMENT:	2 September 2009
MEDIUM NEUTRAL CITATION:	[2009] VSCA 195
JUDGMENT APPEALED FROM:	R v Halliday (Unreported, Supreme Court, Justice Harper, 16 November 2007)

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CRIMINAL LAW – Applicant convicted of murder of estranged partner and sexual offences against her daughters at first trial – Convicted of sexual offences against own daughter following subsequent trial – During final stages of first trial, jury inadvertently provided with applicant’s prior convictions – Whether jury ought to have been discharged – R v Knape considered – Standard of proof in relation to uncharged acts following HML v The Queen discussed – Appeal upheld in relation to first trial – Retrial ordered in respect of charges of murder and sexual offences against step-daughters – Application dismissed in relation to second trial – Applicant to be re-sentenced on two remaining incest counts as separate non-parole period required to be fixed in light of successful appeal on other counts

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J D McArdle QC and Mr T Gyorffy	Mr C Hyland, Solicitor for Public Prosecutions
For the Applicant	Mr P Tehan QC and Mr F Andrighetto	Cynthia A Toose & Associates

BUCHANAN, JA
ASHLEY, JA
WEINBERG, JA:

After a trial lasting 19 days, the applicant was convicted in the Supreme Court at Mildura of the murder of Shelley Stephenson, his one-time de facto spouse. He was also convicted, on the same presentment, of various offences of a sexual nature against her two young daughters, aged 10 and 11 respectively.

The applicant was subsequently convicted, in the Supreme Court at Melbourne, and before the same judge, on two counts of incest with his own natural-born daughter. He was sentenced ‘globally’, in respect of both trials, to life imprisonment. A non-parole period of 30 years was fixed.

THE MILDURA TRIAL

The sexual offence counts (counts 1, 2, 4, 5 and 6) were included in the same presentment as the count of murder (count 3) because they were said to provide both the explanation, and the motive, for the murder. The Crown case was that the applicant had planned for some months to kill the deceased in order that he could have unrestricted access to her daughters.

Ms Stephenson disappeared on 2 March 2006, and was never heard from again. Her body has never been found. By reason of the applicant’s relationship with the deceased, her two young daughters were relevantly to be regarded as his step-daughters. For that reason, counts 1 and 2, which alleged acts of sexual penetration, were characterised as counts of incest. The applicant was also charged with having maintained a sexual relationship with a child below the age of 16 (count 4) and with two counts of having engaged in an indecent act (counts 5 and 6).

The Incest Counts

Counts 1 and 2 alleged that in the period between 3 and 18 April 2005, the applicant on two separate occasions committed incest with SS, the older of the two girls. She gave evidence that the applicant twice had intercourse with her while her mother was away on an interstate trip. The applicant denied this claim. However, the jury accepted the complainant’s evidence, and he was convicted on these counts.

The Murder Count

The Crown alleged that on 2 March 2006, the applicant murdered the deceased. They had previously lived together for just over three years but, in December 2005, their relationship had come to an end.

There was no direct evidence of any kind of the applicant’s involvement in the death of the deceased. There was, however, a substantial body of circumstantial evidence that suggested that he had killed her. For example, there was evidence from the applicant’s son, Ian, that the applicant had told him, in the weeks leading up to her disappearance, that he intended to kill her. In addition, for reasons that were never adequately explained, the applicant did not report her disappearance immediately. His accounts to the police, and to others, of his last contact with her were varied and contradictory. He made two statements to the police without mentioning in either that they had quarrelled on the morning of her disappearance. He also told the police, in the course of a formal record of interview, that he had no memory of anything that had occurred in the hours immediately after he last saw her.

It was not in dispute that the applicant and the deceased had been together on the morning of her disappearance. It was also common ground that she had not been seen since. There was nothing to suggest that she might have wanted to harm herself, or that she would willingly absent herself from her two daughters. Significantly, her mobile telephone, her prosthetic arm, and a sum of cash belonging to her were located in the applicant’s truck after her disappearance.

The Crown relied upon the evidence of SS, the older daughter, to the effect that the applicant had had sexual intercourse with her in April 2005, almost a year before the disappearance of the deceased. As previously indicated, that evidence was said to be relevant as to motive. The Crown additionally relied upon the evidence of both girls concerning the applicant’s having had intercourse with them after their mother’s disappearance also as being relevant to motive.

It should be noted that in addition to the various counts involving sexual offences, evidence was led of a number of ‘uncharged acts’. Some of these were said to be relevant to the specific counts involving sexual offences. All were said to be relevant to the count of murder.

There was evidence that in the period leading up to the disappearance of the deceased, the applicant took steps to enable him to gain custody of the two girls. He arranged to become their guardian if, by chance, their mother happened to die. In February 2006, just weeks before her disappearance, a solicitor acting on the applicant’s behalf prepared a power of guardianship in order to anticipate that very eventuality.

Evidence was led at the trial of the applicant’s unnatural and prurient interest in the physical and sexual development of the two girls. Their school principal said that she had concerns at the time about his behaviour, and that she had made them clear. She considered his interest in the girls to be obsessive. She described him as ‘controlling’. She noted, in particular, that he had become extremely angry about what, in her view, had been an entirely appropriate friendship between the older girl and a boy at her school. In the principal’s opinion, the applicant’s attentiveness to this girl went well beyond that of a merely concerned adult.

The principal said that, in April 2006, only a month or so after the disappearance of the deceased, and after the girls had been removed from the applicant’s care, the school sought and obtained an intervention order so as to protect them from him.

There was another aspect of the principal’s evidence that was particularly significant. She described the applicant’s general attitude towards her, and others with responsibilities at the school, as ‘confronting’. She said that he was often verbally aggressive. Yet, on the afternoon of the deceased’s disappearance, he had gone out of his way to approach her in a manner that she described as ‘friendly and cordial’. He told her, on that day, that the deceased had ‘gone walkabout’, but that she would be back soon. Just how he knew, on that afternoon, that the deceased had gone ‘missing’ was never satisfactorily explained.

When formally interviewed by the police regarding the disappearance of his former de facto, it was suggested to the applicant that not only had he told his son, Ian, that he intended to kill her, but also that he proposed to dispose of her body by putting it, together with some gravel, in a disused hot water cylinder, and dumping it nearby in the river. The applicant did not deny that suggestion. Moreover, as previously indicated, he claimed that he had no memory whatsoever of anything that took place on the day of her disappearance.

When the police confronted him with the allegation that he had regularly molested the two young girls, the applicant replied that if that was what they had claimed, then he must have done so.

The Count of Maintaining a Sexual Relationship

According to the evidence, within a day or two of the disappearance of the deceased, the applicant again had intercourse with the older girl, and also committed an indecent act with her younger sister. According to SS, he then had intercourse with her regularly thereafter, ‘about every second night’. That evidence formed the basis of count 4. It was also said to be relevant as to motive on the count of murder.

The Indecent Act Counts

Counts 5 and 6 alleged that in the weeks following the disappearance of the deceased, the applicant on two separate occasions touched the younger girl in the area of the vagina. In fact, her evidence was that he did this on a regular basis. However, two instances only were singled out, and formed the basis of the charges brought against him.

THE MELBOURNE TRIAL

At his subsequent trial in Melbourne, the applicant was convicted of two counts of incest with his daughter, who was aged 17 at the time of the alleged offences.

The evidence against the applicant in respect of these charges was overwhelming. As part of the police investigation into the disappearance of his former partner, a listening device had been installed in the applicant’s home. That device clearly recorded him importuning his daughter to have intercourse with him. It also clearly recorded the sounds of sexual activity. To make matters worse from the applicant’s point of view, he made full admissions regarding that matter when formally interviewed by the police. In essence, there was no viable defence to these charges.

THE GROUNDS IN SUPPORT OF EACH APPLICATION
The Mildura Trial

There were three grounds argued in support of the application for leave to appeal against conviction. They were:

2.The learned trial judge erred in failing to discharge the jury upon evidence being given by the witness Detective Matthew Garbutt as to the terror of the witness Ian Halliday of the applicant and the reliance upon this evidence by the prosecutor in her final address; alternatively, the trial of the applicant miscarried because of the introduction of and reliance by the Crown upon this evidence.
3.The learned trial judge erred in failing to discharge the jury upon the applicant’s prior convictions by way of the further presentment coming into the possession of the jury; alternatively, the trial of the applicant miscarried for this reason.
4.The learned trial judge erred in failing to give adequate directions to the jury upon relationship evidence.

It will be convenient to deal with these grounds in that same order.

Ground 2

Detective Matthew Garbutt gave evidence of a conversation which he had with the applicant’s son, Ian, on 23 May 2006. He said that Ian had come into the police station on that day, and told him that the applicant was responsible for the death of the deceased.

Under cross-examination, Detective Garbutt was asked whether he had taken notes during that conversation. He said that if any notes had been taken, they would have been included in the brief. Then he added, non-responsively:

He wouldn’t make a statement on that occasion because he was terrified of his father, and it was not until a later stage, being 25 June, that a formal statement was taken from him.

Detective Garbutt was then cross-examined in more detail regarding his dealings with the applicant’s son. He was asked about the events of 29 June 2006, which was the day on which the applicant was arrested. He said that Ian had assisted the police on that day by telephoning his father, at their request, and telling him that he was going on to another job. It was then put to Detective Garbutt:

Q: He wasn't going on another job was he, he was going back to Aroundagain?
A: He didn't want to go back to Aroundagain because he was fearful that his father would come to Aroundagain after he made that phone call. We, we informed him that we'd have sufficient police members and surveillance on his father so that he wouldn't be able to have a confrontation with him.

It is of some significance that when Detective Garbutt gave this evidence, counsel for the applicant did not complain to the trial judge. He did not, at that stage, seek to have the jury discharged.

However, that was not the end of the matter. In her closing address, the learned prosecutor referred to Detective Garbutt’s evidence. She noted that the defence case was that the son, Ian, was a complete liar, and that the applicant had never said anything to him about having the deceased killed. She continued:

It's a pretty powerful thing isn't it, for a son to go into the witness box and give evidence that his father had killed his partner. You might think it's a pretty powerful thing. You heard from Detective Garbutt in terms of the making of the statement, how he's terrified of his statement, first up, in the making of that statement. Terrified in terms of when he made the phone call to his father - remember I'm talking about when they were sitting in the car, just a very short time before the accused man was arrested.

Even at that stage, counsel for the applicant made no complaint about the reference by the prosecutor to Detective Garbutt’s evidence. It was not until the following morning that he indicated, for the first time, that he was ‘concerned’ about the matter.

Counsel said, in the absence of the jury:

Garbutt's evidence was unsolicited and gratuitous and non-responsive, but what it's done Your Honour is this. It has introduced before the jury an evidentiary basis for the jury believing that Mr Halliday is a person who has a propensity to violence; he has conducted himself in a way that has terrified and petrified his son to the point where his son is prepared to make a statement implicating him in a murder.

The trial judge treated counsel’s remarks as though they amounted to an application for a discharge of the jury. In fact, no formal application of that kind arising out of Detective Garbutt’s evidence, or the prosecutor’s reference to it, was ever actually made. In any event, his Honour concluded that there was no basis for having the jury discharged. The relevant parts of his ruling were as follows:

This is an application to discharge the jury on the grounds that there has been put before the jury material that is highly prejudicial to the accused and not relevant to the issues between the parties. The material goes to the relationship between Mr Ian Halliday and his father, the accused, Mr Tom Halliday.
There was a reference in a statement made by Ian Halliday to the police on 25 June 2006 to what Ian Halliday alleged was a dispute between himself and his father, during which his father threatened to hit Ian with an axe handle and grabbed Ian by the arm, just below the elbow, saying that he, Mr Halliday senior, could ‘plant’ his son there and now.
That evidence has not been led before the jury. It has not been led for what seems to me to be entirely appropriate forensic reasons, appropriate from the prosecution end and reflecting a position which, as I accept, the defence understood the prosecution would adopt. The course of events has largely conformed with what the defence understood to have been the Crown's position in relation to Ian's evidence; but by something of a side wind the matter has raised its head again.
In his evidence yesterday, Mr Garbutt, the final witness called by the Crown, on two occasions spoke about what he described as Ian Halliday's terror of his father. In my opinion it was unfortunate that those references were made. I do not place any blame for the fact that they were made, but the word ‘unfortunate’ has been chosen by me because I think it best reflects the position with which we are now faced.
…
Mr O'Doherty submitted that the combination of Mr Garbutt's evidence and Ms Williams' address is so damaging to the position of the accused that nothing can rectify that damage or, at least, nothing would neutralise that damage, and that, accordingly, the jury should be discharged.
I heard submissions in opposition to the application …
I … am of the view that at this late stage of the trial at least, this is not a matter which warrants the discharge of the jury. That is not to say that I would have been of any different view had the matter been raised at an earlier point in the trial. It is not for me now to consider what might have been had this matter arisen on the second or third day. Nevertheless, I am entitled to take into account the stage at which the trial has reached and all other relevant circumstances.
In my opinion it would be unfortunate if this matter were further addressed in the course of the final addresses from counsel on either side. It should be left to lie where it is, save that I will charge the jury on the question of propensity. I intended to do that, subject to anything counsel might say, in any event. And I will, I hope, tailor my remarks about propensity evidence so as to draw the sting from the references, made in particular by Mr Garbutt, to Mr Ian Halliday being terrified of his father.
The context in which the fear was put appears from Ms Williams' final address when she specifically referred to the incident in the police car. In my opinion the jury are likely to take the view that in the circumstances in which he then found himself, Mr Halliday would inevitably have been apprehensive. He had been asked by the police to speak as generally as he could about matters described in one of Mr Tom Halliday's statements to the police. The police hoped, if not anticipated, that Mr Halliday would have a conversation with his father that was much wider in its range than that which ultimately took place. In those circumstances, it is not surprising that the police told Mr Halliday that they would ensure his physical safety. It was a position the police would naturally take in order to reassure Mr Halliday and in order to put him in the best possible frame of mind to do what the police hoped he would do. I think the jury will confine references to Mr Halliday's fear of his father to that particular situation and will not see these pieces of the evidence as reflecting upon Mr Halliday senior in a way that would paint him as a man of violence.
In any event, I will do what I can to ensure the jury does not take that view of the accused's character.

It was submitted before us, with some justification, that Detective Garbutt ought not to have said anything to the jury about Ian Halliday being in fear of his father. It was further submitted that the prosecutor ought not to have relied upon that evidence in the way that she had. It was said that this evidence tended to show that the applicant had a history of violence, a characterisation which was not only highly prejudicial, but also undercut his entire defence to the charge of murder.

In that regard, it was submitted that the applicant’s case, at trial, had been that he was a gentle man, who had taken a protective and caring role in relation to both his former partner and her two daughters. It was submitted that once that Detective Garbutt had given those non-responsive answers, the only proper course would have been to discharge the jury.

We are not persuaded by that submission. In our view, the trial judge was entitled to reject any application to discharge the jury that was based solely upon Detective Garbutt’s evidence having been given. The applicant’s defence rested substantially upon his contention that his son, who claimed to be terrified of him, was a complete liar. The two passing references made by Detective Garbutt to what the son had said to him about his father would not, in our view, have diverted the jury from their task, or have led to their deciding this case on the basis of prejudice.

It follows that ground 2, standing alone, fails.

Ground 3

However, as will be seen, ground 2 must be read in conjunction with ground 3.

The complaint reflected in that ground arose in the following circumstances. During the course of the prosecutor’s address, the jury were referred to the various counts in the presentment, and handed several copies of that document. Regrettably, those copies contained a list of the applicant’s prior convictions. The offending material was quickly retrieved, but only after it had been seen by at least one member of the jury.

What took place is best summarised in the transcript. The page containing the prior convictions was provided to the jury shortly before the luncheon break. About an hour later, at 1.58 pm, and in the absence of the jury, the judge said:

I'm afraid that I have to advise everybody that the copy of the presentment which was given to two or three members of the jury before lunch, contained the prior convictions of the accused. My associate was alert enough to see what she thought might have been the reaction of one of the jurors to the document when that juror was presented with it. She informed me of her observations. I then checked and have confirmed that the two or three copies that were given to the jury contained that additional sheet, and subject to anything counsel might say, I don't think there is any alternative but to discharge the jury. But I will of course hear from counsel; in fact I would be indebted for any thoughts that counsel might have.

It is important to note that the judge’s immediate and intuitive response to what had unfortunately occurred was to state that there did not seem to be any alternative but to discharge the jury.

Ultimately, however, his Honour was dissuaded from that course. The prosecutor argued that there was no need to discharge the jury because the prior convictions were of no relevance. She observed that they consisted firstly of an assault (which went back to 1979), and secondly of a breach of an intervention order, and a firearms offence, namely, shortening the barrel of a firearm (which went back to 1999). She submitted that convictions of that kind would be regarded by the jury as being of only the most marginal significance. She further submitted that those convictions would have had no prejudicial effect because the jury would have been aware, in any event, of the applicant’s tendency towards violence. Both young girls who gave evidence against him had described acts of violence on his part towards them.

The prosecutor further submitted that any prejudice that might otherwise have resulted from the disclosure of the prior convictions could be overcome by a strong direction that the document that the jury had been given had contained material that was irrelevant, and should be entirely ignored. She submitted that it should be assumed that the jury would fully obey that instruction.

Counsel for the applicant strongly opposed that course. He submitted that the disclosure of the applicant’s prior convictions, particularly when combined with the closing address of the prosecutor which had focussed upon his possessiveness, domination, and violence, was simply devastating. He further submitted that no direction by his Honour to the jury to ignore the prior convictions could overcome the prejudice that the applicant had suffered by reason of their having been inadvertently disclosed.

Counsel for the applicant submitted, in support of the application for a discharge, that there was a ‘high degree of necessity’ that the trial be aborted. He said:

Your Honour, we submit there is a high degree of necessity to discharge the jury, we say that for a number of reasons, firstly Your Honour, the Crown have throughout the course of the trial and throughout the course of my learned friend's address to the jury emphasised the violence of our client. It is a focal point of their case against Mr Halliday, that he has demonstrated in his domination of the children, particularly the two young girls, a propensity to instil fear into them. One of the girls, I think it was [SS], in her evidence in her VATE statement, he told her that he was going to hurt her mother, that he was going to get people up from Melbourne to kill her. The case is predicated on evidence of expressed intention to commit the most violent of crimes. The Crown assert that he has been violent to his wife … The nature of the charges to which Mr Halliday has been found guilty, fit into the category of offences of violence. The first count of first charges breaching terms and conditions of an intervention order. On the face of it, it may not involve a demonstration of violence. It certainly does demonstrate a breach of a court order and one would assume that it is directed at a person who took out the order for protection. We have heard a lot in this trial Your Honour, about protection orders. Orders to protect children, we've heard a lot about Mr Halliday's efforts to breach those controls once the children were taken off to the grandparents. The witnesses have come along and given evidence about how he tried to breach those protective provisions that were put in place in respect of the children. The unlawful assault charge on the further presentment Your Honour, is a crime of violence. Possessing a firearm whilst being a prohibited person, is a special type of offence, it is an offence that arises out of some prior history of the person involved. My learned friend's instructor informs that he is a prohibited person because of the intervention order, presumably, in this case, but that is a very serious offence, possession of a firearm, being a prohibited person.
The fourth offence Your Honour, is shortening the barrel of a long-arm, again that is a discrete and specific offence, related to a firearm, which carries with it, the imputation that a firearm has been shortened for a particular purpose. You just don't go around cutting the barrel off a gun unless you've got some sinister purpose in mind, one might assume.
The fact that there is no conviction recorded, Your Honour, is not to the point. The fact is he was given a community based order which controls him, sets certain requirements that he has to comply with, there are core conditions of those orders and there may well have been special conditions imposed here.
He also had a condition that he had to perform 100 hours of unpaid community work. Now whilst it is true that he was not convicted he was certainly sentenced to a disposition that reflects at least a degree of seriousness. My friend says, well the jury, from her observation, are attentive and they will adhere to Your Honour's direction without regard to these prior convictions.
We don't necessarily share that optimism, Your Honour, we say there is a real danger here that Mr Halliday will be viewed in the light of what emerges here as to his antecedents as a person who is prone to violence, notwithstanding Your Honour is going to give directions that propensity has got nothing to do with this case at all.
The fact of the matter is he is a man who stands guilty of four serious offences in relatively recent times Your Honour involving violence. He is before the court on the most serious charge of violence that one can imagine. He is entitled, Your Honour, he is entitled to the best chance of an acquittal that is available to anybody. He is entitled to have his defence put to him with all its warts and blemishes without extra baggage which this imposes upon him and which he has to carry, which he need not have to carry apart from the unfortunate circumstances.
We say, Your Honour, as a matter of fairness that the jury ought to be discharged and he ought to have his trial proceed as it was proceeding up until a few hours ago, without this additional burden that he now has to deal with Your Honour. Do we address it in our remarks to the jury? Do we try and reinforce what Your Honour is going to say? Do we take the risk of doing that and heightening this? Do we try and find out what the circumstances of this offending was to proffer an explanation.
One of the things about this case Your Honour is we say notwithstanding our learned friend's strenuous assertions about our client's violence, we say Mr Halliday is not a violent man. We will be going to the jury saying that he is not violent at all, in fact he is a carer who had the missing person's wellbeing foremost in his mind. Makes a mockery of that submission to have the jury possess this information that shows him to have at least the means and the ability and perhaps the intention of being violent.
For all of those reasons, Your Honour, we say a warning will not suffice to ensure that Mr Halliday receives a fair trial for which he is entitled. As I said earlier in the submission, Your Honour, the high degree of need to discharge the jury is partly based on a high degree of need for Mr Halliday to have a fair trial, Your Honour, and that is our position.

There was a proper evidential foundation for counsel’s submission that the applicant’s case was based upon his being accepted by the jury as a man who was not disposed to violence. In a formal statement that the applicant made to the police on 19 March 2006, well before he was suspected of any involvement in the death of the deceased, he described in some detail his movements on the day of her disappearance.

The Crown tendered that statement as an exhibit and the jury therefore had it with them when they retired to consider their verdict. In it, the applicant acknowledged that his relationship with the deceased had its problems, but stressed that there had never been any physical altercation between them. He added that he had never struck the deceased, nor even threatened to do so. He claimed that the only reason that she had moved away from the home they had shared in December 2005 was because she and the applicant’s own daughter did not get on.

The applicant’s statement to the police went on to state that the deceased had serious mental health issues. He said that she had been suffering from stress and depression, and that she had attempted suicide on a number of occasions. He maintained that he had been a caring and attentive partner, and said that their relationship had been harmonious even after she left him.

His Honour’s rejection of the application for a discharge of the jury was in the following terms:

Not long before the luncheon adjournment this morning and while the Crown prosecutor was addressing the jury in her final address, she sought to have the jury look at the presentment so they could better understand the points which she was then seeking to make. Some members of the jury did not have their copies of the presentment with them at that stage. As a consequence and in order to avoid resort to the jury room to recover copies of the presentment that had been left in that room, additional copies were made while the address proceeded. Those additional copies, four in number, were then handed to those members of the jury who did not have with them the copy that they had originally received.
The copies that were handed to the jury in this way contained a sheet that should not have been given to the jury. That was the sheet which contained the particulars of previous appearances by the accused before the courts. There were two such, each of them before the Magistrates' Court at Mildura and each involving a number of separate charges. The first set was dealt with on 5 June 1979 and the second set on 12 March 1999. The accused was then 18 years and 38 years old respectively. The particulars of the alleged prior offences are as follows:
That Mr Halliday appeared at the Mildura Magistrates’ Court on 5th June 1979 on charges of theft and being found in premises without lawful excuse and was sentenced to be released on entering into a bond in the amount of $200 to be of good behaviour for a period of 6 months; and that Mr Halliday appeared at the Mildura Magistrates’ Court on 12th March 1999 on charges of breaching the terms and conditions of an intervention order, unlawful assault, possessing a firearm whilst being a prohibited person and shortening the barrel of a longarm and was sentenced without conviction to be released on a community based order for a period of 12 months with a special condition that he perform 100 hours of unpaid community work.
The question now arises as to whether the jury should be discharged as a result of four of their number receiving the inappropriate copy of the presentment. I do not know and no one outside the jury knows whether the four members who received the illegitimate copy, read the inappropriate page. Nobody outside the jury knows whether if that page was read, its contents were disseminated to other members of the jury. Nevertheless, the possibility that the page was read cannot be discounted. If it was read, the likelihood that its contents were mentioned to other members of the jury is, in my opinion, high.
It is in those circumstances that I have heard applications from the prosecution and the defence. Ms Williams on behalf of the prosecution has urged me not to discharge the jury. She has submitted that the matters contained in the illegitimate sheet to which some members of the jury had access, are irrelevant; that the jury can be told that they are irrelevant and that given that none of them resulted in the recording of a conviction, the jury can also be informed of that fact. Ms Williams submitted that, given that a high degree of necessity must be shown before a jury is discharged at this stage of the trial, such a point has not been reached. The accused is charged with offences that in the general context make the subject matter of the illegitimately copied pages insignificant in the greater scheme of things. For those reasons Ms Williams submits that the jury ought not be discharged.
On behalf of the defence, Mr O'Doherty has urged upon me strongly, as indeed Ms William made her submissions, that the high degree of necessity has been reached. Mr O'Doherty pointed to and relied upon the fact that although (save in relation to her alleged death) no incidents of personal physical violence are alleged against the accused in his relationship with Shelley Stephenson, nevertheless the prosecution have painted him as a man not adverse to violence.
There is evidence of aggression, resulting in what the Crown would say was emotional victimisation. There is evidence that the accused indicated to a number of people his inclination, if not desire, to kill Shelley Stephenson; and generally the Crown have sought to portray Mr Halliday as a man to whom violence is not a stranger. This, Mr O'Doherty submits, will run directly in the face of submissions which he would wish to put to the jury to the effect that, far from being a man of violence, particularly in relation to his dealings with Shelley Stephenson and her daughters, the accused was a caring person who - as Mr O'Doherty will submit to the jury - sought to support Shelley Stephenson in important ways and also to support her children. Those foreshadowed submissions, Mr O'Doherty put to me in support of the proposition that the jury should be discharged, would be undermined if the jury were to be aware of the matters the subject of the illegitimately copied page.
I have taken the several submissions carefully into account. This is a very difficult matter to resolve with justice to all concerned. We have reached a stage in the trial where it would be of more than inconvenience were a fresh trial to be had. On the other hand, the question of justice to the accused must of course be given its proper weight. In giving that consideration the weight it deserves, I must take into account not only the possibility of prejudice to the accused but also the possibility that that prejudice could be neutralised by appropriate directions to the jury. We must I think, give juries credit for common sense and for an appropriate sense of justice. One cannot of course judge a jury from its behaviour during the course of a trial, even a long trial such as this. One can, however, observe that a particular jury has been appropriately attentive and given every indication that it weighs with proper appreciation, instructions given to it. That is my observation of this jury, although that is not a consideration which weighs heavily with me at present.
Putting the various submission in the scales as best I can, it seems to me that the trial can proceed with no injustice to the accused provided that the jury are given an appropriate instruction or direction about the circumstances that have now arisen. I propose to tell the jury that the matters referred to in the page which ought not to have been copies were and are entirely irrelevant to their consideration and that the Crown concedes as much. I propose also to tell the jury that no conviction has been recorded against the accused. I propose to tell the jury that if any member of the jury did read the page in question but did not reveal its contents to any other member of the jury, then that step must not be taken for the reasons which I endeavoured to articulate when I first addressed the jury, namely that untested material cannot be considered by them. This material is tested; and should any member of the jury raise with any other member such material as a point of discussion, then the member with whom the matter is raised should report it to me.
If directions of that kind are given to the jury then in my opinion the accused will not suffer an injustice as a result of one or up to four members of the jury seeing the page which ought not to have been shown to them.

Shortly after his Honour delivered that ruling, the jury returned to Court and were given the following direction:

Mr Foreman, ladies and gentlemen, before lunch you will remember that four of your number were handed a copy of the presentment. That was done because, as I understand it, those four members of the jury had left the original copies with which they were originally provided in the jury room and therefore they did not have a copy when Ms Williams sought to take you through the presentment.
The four copies which were handed to the jury contained a page which had on it inadmissible material. I do not know whether any member of the jury, any of those four read that material. If it was read I do not know whether the juror or jurors who read it have informed any other members of the jury about its contents. The matter is important only in this sense, the material was irrelevant, it was uncontested and untested. It has nothing at all to do with this case. It has to do with two occasions when Mr Halliday was many years ago before the courts. On neither occasion was any conviction recorded, accordingly no conviction has been recorded against Mr Halliday.
The position therefore is that not only is the material in the sheet that ought not have been handed to the jury, irrelevant, and the Crown concede it's irrelevant, but it must not be taken into account by any member of the jury in any way. If you have not discussed it amongst yourselves, don't discuss it. You'll remember at the beginning of the trial I stressed the importance of the jury bringing into their consideration at any stage, but particularly when the jury retired to consider its verdict, untested material, and I warned you against becoming private investigators. You will remember I hope that I have said that if any juror were tempted to ignore the warning I then gave, that juror would not be able to refer to anything that the juror had discovered in discussions with other members of the jury, because if that were to happen I would require the other members of the jury to report the matter to me as being a serious breach of the juror's oath. I simply remind you of those matters so that you will take them into account if you need to. I don't know whether you will or not.

What you will need to remember is that whether this material has been seen or not, it is irrelevant to your considerations. You must not take it into account. It does not reflect - it must not to be seen to reflect adversely upon Mr Halliday. It is entirely irrelevant to your deliberations. So with that prohibition against that matter going any further, and a re-emphasis of it being totally irrelevant to your consideration, I'd ask Ms Williams to resume her address.

On the following morning, counsel for the applicant renewed his application for a discharge of the jury. His Honour again rejected that application, this time saying:

Yesterday after hearing from the parties, I rejected an application made by the defence to discharge the jury on the basis that some four members of the jury had in their possession for a short period in the jury box in the court room, a portion of the full presentment which dealt with the prior criminal history of the accused.
I rejected the application then made on the basis that it seemed to me that an appropriate warning to the jury could be given and that if the jury followed that warning as I expect they will no injustice would be done to the accused.
The presentment, as I said in my reasons yesterday, contained two sets of matters relevant to Mr Halliday's prior criminal history. The first set of those circumstances occurred in 1979 and raise I think no real concern, although of course the jury ought not to have been given any opportunity to know anything about them at all. The second set of matters relating to Mr Halliday's criminal history occurred in 1999 or at least were before the Mildura Magistrates' Court in that year, and involved breaching the terms and conditions of an intervention order, unlawful assault, possessing a firearm whilst being a prohibited person and shortening the barrel of a longarm. No convictions were recorded in respect of any of those charges.
Those matters are more recent and more relevant than the matters raised in 1979. I nevertheless was yesterday of the view that an appropriate direction would neutralize any effect that might otherwise result in an adverse conclusion and an improper conclusion being drawn by a member of the jury or any members of the jury. In my direction to the jury after my ruling, rejecting the application to discharge the jury, I referred to the duty of all members of the jury not to discuss anything that might have arisen from the distribution to some of the members of the jury of the relevant criminal history sheet. I also referred to the fact that Mr Halliday has not been convicted of anything.
I then reiterated a warning that I had given to the jury at the beginning of the trial. That warning was to the effect that if the jury or any member of it were to discover information which might be thought by a member of the jury to be relevant, outside evidence called properly in the court and properly tested in accordance with law, then that matter could not be discussed by the jury because the members of the jury who raised it would face the prospect that other members of the jury would fulfil their duty and report the matter to me.
That direction being repeated, albeit in terms that were I hope adapted to the particular problem that then presented itself yesterday, I am confident that this jury will obey a direction not to discuss anything in relation to the sheet that some members of the jury received yesterday. If the matter is not the subject of jury discussion and if the jury also obey the direction that the history in question is irrelevant, as the Crown concedes, and must not be taken into account by them, then the effect of the improper distribution of the relevant material can, I think, be neutralized.
Mr O'Doherty this morning, accepting the ruling I made yesterday, raised as he is perfectly entitled to do additional matters which in his submission were of such concern as to warrant that ruling being revisited. Mr O'Doherty referred to two passages in the address of Ms Williams to the jury yesterday afternoon. In the first of those passages at transcript p.1401 Ms Williams referred to a hypothetical circumstance where someone is killed by a shotgun.
There is, in that reference, a reference to firearms and there is therefore that link to the 1999 criminal history of Mr Halliday.
Mr O'Doherty also referred to a passage at p.1405 of the transcript where Ms Williams referred to Mr Ian Halliday being, ‘Dragged back to [his] father's place.’ Ms Williams went on to say that, ‘We are not concerned about whether he was flogged or not by his father.’ Mr O'Doherty submits that this too is a reference which brings in the 1999 criminal history because it brings to mind an assault occasioned by Mr Tom Halliday and therefore is a link with the charge of unlawful assault that Mr Halliday faced in March 1999 before the Magistrates' Court in Mildura.
In my opinion the references by Ms Williams will not be seen by the jury as bringing in the charges in respect of which no conviction was, in any event, recorded. I am confident that this jury will by now have put out of its mind, to the extent that it was ever there, any link between the 1999 charges and the matters which are presently before the jury. I will in addition, to reinforce the point, charge the jury on propensity evidence. I will not refer to the 1999 charges because that would necessarily raise the matter in an undesirable way. I will however, direct the jury in strong terms that they must not reason that because Mr Halliday or anybody else did certain things, then he is the kind of person who would do the things with which he is charged. That, it seems to me, would be a direction that would further neutralise any difficulty that might have arisen as a result of the unfortunate occurrence yesterday. For those reasons it seems to me that I ought not to accede to the application to the discharge the jury.

His Honour did, as he foreshadowed, give the jury a general direction against propensity reasoning in his charge. That direction is the subject of a separate ground of appeal. It is set out in full below at [85], where its adequacy as a direction geared towards other matters is discussed. It can fairly be said that what his Honour said to the jury in that passage scarcely addressed the presentment issue at all, almost certainly so as to avoid highlighting that matter. If there were a high degree of necessity to discharge the jury, the propensity direction given could hardly have overcome that need.

It was submitted before us that his Honour ought to have discharged the jury, and that his failure to do so had resulted in a miscarriage of justice.

The applicant placed considerable reliance upon a decision of the Full Court in R v Knape.[1] There the accused had been convicted on several counts of robbery and illegal use of a motor car. He sought leave to appeal on the ground that evidence of his prior bad character had inadvertently been given at his trial. The circumstances under which that had occurred were as follows. The accused had called one Robert Jones as a witness on his behalf. During his evidence in-chief, the witness was asked by the accused, for a relevant purpose, ‘How long have you known me?’ The witness answered that he had known the accused since about 1960, and then added, non-responsively, that they had met ‘at Bendigo Training Prison’.
[1][1965] VR 469

The trial judge assumed, in Knape, in favour of the accused, that the non-responsive answer given by Jones had not been pre-arranged. He further assumed, entirely reasonably, that the jury were likely to infer, from that answer, that the accused had been a serving prisoner.

However, in deciding not to discharge the jury in Knape, the trial judge took into account the fact that the accused, whilst awaiting trial, had absconded, a fact that was in evidence. Indeed, it was also in evidence that the accused and his alleged co-offenders had escaped from legal custody while the trial was being conducted. In addition, the jury would have known that Jones, with whom the accused clearly had a close association, had a long criminal record. In those circumstances, he concluded that the inadvertent disclosure of the bad character of the accused was of less significance than it might otherwise have been.

The Full Court in Knape concluded that the trial judge had erred in failing to discharge the jury. In a joint judgment (Winneke CJ, Pape and Starke JJ), their Honours said:

The law has long recognized the prejudicial effect of evidence of prior conviction and bad character, and that such evidence is calculated to render a fair trial improbable. Thus as a matter of high policy evidence of such matters, apart from the well-known exceptions, is rigidly excluded.
…
However, if evidence of bad character is inadvertently and improperly given there is undoubtedly a discretion in the trial judge to determine whether or not the jury should be discharged, a discretion to be exercised according to the circumstances of the particular case. An examination of the authorities leads us to the view that unless it can be said, upon the evidence, that the irregular disclosure could not in any way affect the judgment of the jury in coming to their decision of guilty or not guilty, the trial judge should exercise his discretion in favour of the accused.
In England, the courts, while reaffirming the principle that the discretion must be exercised in the light of the facts of each individual case, have gone a long way in asserting the right of the accused in such circumstances to the discharge of the jury, and a new trial. In R v Peckham (1935) 25 Cr App R 125, at p. 128; [1935] All ER Rep 173, Lord Hewart, CJ, said: ‘In the opinion of this Court, where a statement with regard to a prisoner's previous record is inadvertently made from the witness box to his prejudice, and his counsel applies for the trial to be begun again before another jury, the Court ought to begin the trial again.’ In R v Firth (1938) 26 Cr App R 148, at p. 153; [1938] 3 All ER 783, the Court of Criminal Appeal held that the trial ought to be begun again before another jury where three elements were present:--
‘(1) A statement with regard to a prisoner's previous record or of that kind inadvertently made from the witness box;
‘(2) the statement must be to the prejudice of the prisoner;
‘(3) an application by prisoner's counsel for the trial to be begun again before another jury.’

Whilst these statements appear to us, if we may respectfully say so, to be too absolute in terms, for it may, for instance, be that the objectionable evidence is adduced by pre-arrangement where the prisoner thinks that the jury are hostile or the trial is going badly for him, we nevertheless agree generally with the principles so enunciated.
In this State, we think that similar considerations have guided this Court. In R v Coman, [1953] VLR 581; [1953] ALR 1010, the Court laid down as general principles that there is no rule of law that a jury must be discharged if evidence of bad character is given, and that it is a matter of discretion for the trial judge in each case. These principles were expressly reaffirmed by the Court in R v Forster, [1955] VLR 253; [1955] ALR 782. These decisions, of course, bind us and, if we may say so, are clearly right. But they do not purport to lay down any principles on which the discretion of the trial judge ought to be exercised, and that is what really concerns us here. In Coman's Case the facts were very special. The trial judge held that the disclosure was not inadvertent, but deliberate and pre-arranged. Accordingly he refused to discharge the jury and the Court of Criminal Appeal upheld the exercise of his discretion. In R v Maher, [1955] VLR 256; [1955] ALR 785, the Court, after referring to the English case of R v Featherstone (1942) 28 Cr App R 176;[1942] 2 All ER 672, stated the principle to govern the exercise of discretion in the terms in which we have above expressed it. In doing so, we do not think that there was any departure from the general principles laid down in Coman's Case. The Court tacitly accepted those principles as it was bound to do, and went on, as we have said, to indicate the basic consideration which should guide the trial judge in the exercise of his discretion. With the observations of the Court in that case we respectfully agree, and accept it, as we are bound to do, as laying down the general rule.
We think that is the approach the learned judge should have made to the exercise of his discretion in this case, and further that it is the question which we should pose for ourselves in considering the application of the proviso of s 568 of the Crimes Act to this appeal.
In this case, having regard to the prejudicial nature of the objectionable disclosure, and to the fact that it is apparent that it destroyed the underlying basis of the defence, we find it impossible to say that the jury would inevitably, or without doubt, have convicted if such inadmissible evidence had not been given, and, accordingly, the Crown has not satisfied us that no substantial miscarriage of justice has actually occurred.[2]

[2]Ibid 472-474.

Before us, it was submitted on behalf of the applicant that Knape was directly relevant, and applicable, to the facts of this case. It was submitted that, in accordance with the reasoning in that case, it could not be said that, but for the disclosure of the applicant’s prior convictions, the jury would inevitably have convicted.

The Crown replied by submitting that whatever Knape might be thought to have decided, it was no longer to be regarded as authoritative in this State. Essentially, the Crown relied upon two judgments delivered relatively recently by Nettle JA in support of that submission.

In R v Alipek,[3] a trial presided over by his Honour shortly before his appointment to this Court, he stated that he had doubts as to whether Knape was still good law.
[3][2004] VSC 58.

In R v Hortis,[4] a judgment delivered some months later, and after his Honour’s appointment to this Court , he explained:

The decision of the Court of Criminal Appeal in R v Knape suggests that an irregular disclosure of evidence of an accused's bad character must result in the jury being discharged unless it can be said that the disclosure could not in any way affect the judgment of the jury in coming to their decision of guilty or not guilty. But that is not the law. As is shown by subsequent decisions of the Court of Criminal Appeal in R v Boland and R v Vaitos, and was observed by the New South Wales Court of Criminal Appeal in R v George, Harris and Hilton, the informing principle is one which places responsibility on the trial judge to determine in light of the nature of the trial and the extent of the prejudice caused by the disclosure whether it is necessary to discharge the jury in the interests of ensuring a fair trial.
That approach was sanctioned by the High Court in Crofts v R, in which it was said that much depends on the seriousness of the occasion in the context of the contested issues, the stage at which the mishap occurs, the deliberateness of the conduct, and the likely effectiveness of a judicial direction designed to overcome its apprehended impact. The point was reiterated by this Court in R v Su. There are no rigid rules. The principle is one of necessity. There must be a high degree of need for discharge before that course should be adopted.[5]

[4][2004] VSCA 143

[5]Ibid [18]-[19] (citations omitted).

It should perhaps be noted that neither Winneke P nor Batt JA, who sat together with Nettle JA in Hortis, expressed any view in that case about whether Knape had been correctly decided. Hortis involved a self-represented applicant whose complaint about his bad character having been brought out before the jury was entirely without substance.

For present purposes, it is unnecessary to determine whether, as Nettle JA has concluded, Knape is no longer to be regarded as good law. However, this much can be said. Knape has never been regarded as laying down an inflexible rule which requires a jury to be discharged whenever evidence of bad character, no matter how inconsequential in the context of the trial, is inadvertently placed before a jury. Rather, that case holds, as do numerous others, that the question to be considered in such circumstances is whether there is a ‘high degree of necessity’ for the jury to be discharged.

Counsel for the applicant accepted that this was indeed the test to be applied in any application for a discharge of the jury. He was right to do so. That has been the law in this State since at least R v Harrison.[6] Nothing said in Knape was at odds with that proposition. To the contrary, Knape expressly affirmed that there is no general rule that a jury must be discharged when evidence of bad character is given. The reasoning in Knape accorded precisely with that adopted in the earlier cases of R v Coman[7] and R v Maher.[8]
[6][1957] VR 117, 125 and 126.
[7][1953] VLR 581.
[8][1955] VLR 256.

Moreover, the Full Court in Knape made it abundantly clear that the statements of Lord Hewart CJ in R v Peckham[9] and R v Firth,[10] both of which suggested that a jury must always be discharged in such cases, were ‘too absolute in terms’.[11] The reason why the appeal in Knape succeeded was because the trial judge had exercised his discretion wrongly, having taken into account an irrelevant consideration, namely that the applicant’s bad character was already before the jury.
[9](1935) 25 Cr App Rep 125.
[10](1938) 26 Cr App Rep 148.
[11]R v Knape [1965] VR 469, 473.

With great respect to Nettle JA, we do not regard Knape as being irreconcilable with either of the two High Court decisions cited before us, Maric v R[12] and Crofts v The Queen.[13] Nor was there any indication in R v Vaitos,[14] long considered an important case on the subject of discharge of the jury, that Knape was regarded as having been wrongly decided. Indeed, in Vaitos, Young CJ stated clearly that nothing said in Knape should be taken as having laid down an inflexible test when determining whether a jury ought to be discharged. In his Honour’s terms, to do so would restrict the exercise of a discretion that was intended to be broad and general. Essentially, all that Knape had done was to provide guidance, against the background of a somewhat unusual case, on how that discretion might properly be approached.[15]
[12](1978) 20 ALR 513.
[13](1996) 186 CLR 427.
[14](1981) 4 A Crim R 238.
[15]Ibid 243.

It is instructive to note that some of the leading texts on the subject of criminal procedure in this country still refer to Knape as good law.[16] Indeed, it is generally regarded as one of the seminal decisions on the subject of discharge of a jury.In R v Allen,[17] Knape was treated, as least implicitly, as having being correctly decided.
[16]James Glisson and Sydney Timouth, Australian Criminal Trial Directions (1996) [4-2700].
[17]Unreported, Full Court of the Supreme Court of Victoria, Young CJ, Lush and Dunn JJ, 19 December 1974.

The basic question therefore is still, as it has always been, whether there is a ‘high degree of necessity’ to discharge the jury. That test was originally stated as far back as Winsor v R.[18] It has been endorsed by the High Court, and is of course binding upon us.
[18](1866) LR 1 QB 390. See also R v Weaver [1967] 1 QB 353.

In Maric, evidence that was prejudicial to the accused came before the jury. An application for a discharge was rejected. The New South Wales Court of Criminal Appeal affirmed the conviction. The High Court reversed that decision and ordered a retrial. Their Honours said that the test for determining whether the wrongful admission of evidence had led to a miscarriage of justice was whether the Court of Criminal Appeal could be satisfied that the irregularity had not affected the verdict, and that the jury would certainly have come to the same conclusion had that irregularity not occurred. With respect, that approach seems to us, for all practical purposes, to be indistinguishable from that taken in Knape.

In Crofts, the accused was tried on numerous counts involving sexual offences against a child. The prosecutor elicited from the complainant evidence that the accused had committed not just those acts, but also a series of uncharged acts against the same child. Perhaps somewhat unusually, the evidence regarding those uncharged acts was treated as inadmissible in the circumstances of that particular case. It was also acknowledged to have been highly prejudicial. Nonetheless, the trial judge refused to discharge the jury, having decided instead to give them a strong warning against paying any attention to it. The High Court held that, in the circumstances, the refusal to discharge the jury had occasioned the risk of a substantial miscarriage of justice. It was not possible to say with assurance that, but for the admission of the inadmissible evidence, the conviction was inevitable.

In a joint judgment, Toohey, Gaudron, Gummow and Kirby JJ said:

No rigid rule can be adopted to govern decisions on an application to discharge a jury for an inadvertent and potentially prejudicial event that occurs during a trial. The possibilities of slips occurring are inescapable. Much depends upon the seriousness of the occurrence in the context of the contested issues; the stage at which the mishap occurs; the deliberateness of the conduct; and the likely effectiveness of a judicial direction designed to overcome its apprehended impact.[19]

[19]Ibid 440.

It is perhaps debatable whether that passage should be read as casting doubt upon the reasoning in Knape. The Crown submitted that it should be so read. It submitted that, in earlier cases, where evidence of bad character had been inadvertently disclosed, there had grown up almost an expectation that a discharge would be automatically granted.[20] Knape was said to reflect that approach, and was therefore said to be outmoded.
[20]See R v Peckham (1935) 25 Cr App Rep 125; R v Palmer (1935) 25 Cr App Rep 97; and R v Firth (1938) 26 Cr App Rep 148.

The Crown submitted that the law in this State is now to be understood in accordance with Nettle JA’s views in Hortis. Whether or not a trial judge discharges a jury is a matter entirely within his or her discretion. It was the Crown’s contention that, irrespective of the basis upon which such an application is made, and no matter how prejudicial the evidence might be that comes before the jury, there is no prima facie rule that a discharge will be warranted. To the extent that Knape proposes a different test, so the Crown argues, the reasoning in that case should be regarded as having been subsequently rejected and the case itself overruled.

One matter has been clearly resolved. When a trial judge has refused an application to discharge a jury, and the accused has then been convicted, any appeal to this Court is not against the failure to discharge the jury as such, but rather against the conviction.[21]
[21]Maric v R (1978) 20 ALR 513, 520.

The Crown submitted that the trial judge had decided correctly not to discharge the jury in this case. It argued that it should be assumed that the jury had obeyed his Honour’s strongly worded direction that they were to put out of their minds the prior convictions of the accused that had been inadvertently disclosed to them. It was further argued, as it had been below, that the conviction for assault, which went back to 1979, was so old that the jury would have regarded it as innocuous. It was further argued that neither of the two more recent convictions, namely that for breach of an intervention order, and that for shortening the barrel of a firearm, would have been viewed by the jury as being in any way significant. It was submitted that the jury would have understood that a breach of an intervention order might have nothing whatever to do with domestic violence. Likewise, being in possession of a weapon with a shortened barrel would not, so it was said, have had any of the sinister connotations which counsel for the applicant apprehended.

These submissions are not without some force. However, having given them anxious consideration, we are not in the end persuaded by them. We are unable to accept the contention that the disclosure to the jury of the applicant’s prior convictions could not, or did not, in any way influence their deliberations.

The knowledge that the applicant had been dealt with in 1999 for breach of an intervention order would, we think, have had a particular resonance in this case. It suggested that he had a history of domestic violence, in sharp contrast to his basic defence that he was a kind, caring and, above all, non-violent partner to the deceased.

The shortening of the barrel of the firearm was well capable of having a particularly unpleasant connotation. It suggested that the applicant was a man of particularly violent disposition, as well as implying that he would engage in serious criminal conduct. If anything, the evidence given (non responsively) by Detective Garbutt added to that picture.

The fact that the trial judge’s associate noted, and remarked upon, the reaction of a juror upon seeing the further presentment, and appreciating that the applicant had prior convictions, was a matter of some significance. It was also important, we think, to note that his Honour’s immediate response, upon learning of what had occurred, was that he had no choice but to discharge the jury. First impressions can be telling.

The provision to the jury of a formal document, which contained the applicant’s prior convictions, cannot, in our view, be dismissed as a mere irregularity. The jury had that document for some time. The fact that the incident occurred late in what was a comparatively short trial in no way detracts from our conclusion that this was a case in which the jury ought to have been discharged.

The applicant had a right to have his defence, such as it was, considered on its merits. His guilt or innocence should have been determined on the evidence admissible against him, and without his prior convictions having been disclosed. As we have indicated, some, at least, of those convictions were significant and highly prejudicial. The firearms conviction also carried with it the risk that the jury might speculate that a gun had been used to kill the deceased, a conclusion for which there was simply no evidence.

Even allowing for the proposition that ‘a fair trial is not the same as a perfect trial’,[22] an aphorism upon which the Crown relied heavily, the applicant did not, in our view, receive that to which he was, by law, entitled. It need hardly be said that an accused should receive a trial in which ‘the relevant law is correctly explained to the jury and the rules of procedure and evidence are strictly followed’.[23] A failure to provide a trial that meets those requirements means that there has been a miscarriage of justice.
[22]R v Wagner (1993) 66 A Crim R 583, 595.
[23]Mraz v The Queen (1955) 93 CLR 493, 514 (Fullagar J).

In the particular circumstances of this case, we consider that the jury should have been discharged after it was discovered that the applicant’s prior convictions had inadvertently been placed before them. Notwithstanding the careful directions by his Honour to the jury to put out of their minds those convictions as irrelevant, the risk that one or more might not have been able to do so was too great to allow the trial to continue. Any such risk could easily have been obviated by the simple expedient of discharging the jury, and starting the trial afresh.

Our system of justice assumes, as it must, that juries obey instructions given to them by trial judges.[24] However, where, as in this case, material of a highly prejudicial kind has been placed before them, with all the attendant risks that such material poses, we would take some convincing that a conviction gained in such circumstances should be permitted to stand. We are not so convinced.
[24]Gilbert v The Queen (2001) 201 CLR 414, 425.

It follows that in relation to the count of murder, and in relation also to the other counts that were the subject of the Mildura trial, there must be a new trial.

Ground 4

As there is to be a new trial, we should say something more about ground 4. That ground complains of a failure on the part of the trial judge to direct the jury adequately as to ‘uncharged acts’ or, perhaps, ‘relationship evidence’. That evidence was led mainly in relation to the counts alleging sexual offences. However, given the relevance of those counts to the count of murder, on the basis that they formed the motive for the killing, that evidence clearly had an impact upon the count of murder as well.

At the time of the applicant’s trial, the High Count had not yet delivered judgment in HML v The Queen.[25] It was hardly surprising, therefore, that his Honour gave no consideration to whether the jury should be told anything about the standard of proof required in relation to allegations of ‘bad character’ (as his Honour put it) where that evidence was led for strictly limited purposes.
[25](2008) 235 CLR 334.

Ultimately, his Honour gave the jury the following directions regarding propensity reasoning, and the use which they could make of evidence of bad character:

I continue with an emphasis on the importance of what I have just said. That importance can be appreciated in relation to a form of reasoning that is absolutely prohibited. You cannot and must not reason that because someone is guilty of another offence, that person is the kind of person who would be likely to commit the offence presently under consideration by you. That kind of reasoning is prohibited because it can easily result in a very unjust outcome. I pause for a moment to reiterate that few outcomes can be more unjust than a wrongful conviction. The danger can be illustrated by two examples. One is an every-day example and you may be able to relate to it personally. Assume that as a school child, you had the reputation as a mischief maker; just high spirits really, but enough to annoy some teachers at least. One of those teachers is in charge of your class. There is a disturbance. You have had nothing to do with it, yet you are blamed because you are the kind of kid who causes that kind of trouble. Your sense of injustice at that result, will no doubt rankle with you for days if not longer. You have been unjustly convicted of something simply because you have a reputation as a mischief maker. Another more serious example. Suppose you have been convicted of burglary. You have served your time in prison. On your release, burglaries suddenly increase in the area where you live. If that increase in burglary is the only evidence against you, your conviction for those fresh burglaries could be, as no doubt you will appreciate, a terrible injustice. You might have lived an entirely blameless life since your release from gaol but someone who knew your record (it is not beyond the bounds of possibility that someone would know your record), and knew of your release, might have commenced a series of burglaries in your neighbourhood. The real burglar might have done so, safe in the knowledge that you, with your prior convictions, would be suspected; and the police, being keen to catch the burglar, would go for you. Meanwhile the real burglar would not be under suspicion. The police, on this hypothesis, would go for the easy target. The result might be you have been wrongly charged, wrongly convicted and wrongly put back in prison before the true culprit was even suspected, let alone brought to justice. All that leads to the proposition that it is simply too easy to assume that a previous wrongdoer is responsible for a present wrong, especially if the present wrong looks something like a past offence. If that were so, the police would solve crimes merely by arresting the nearest villain with a matching criminal record. The real criminal would escape to continue his or her criminal career. The community would lose both ways: the real criminal is still at large, the person who was not guilty is back in gaol. Good policing does not work like that. More particularly for our purposes, the courts must not work like that.
Suppose you are satisfied beyond reasonable doubt that Mr Halliday is guilty of Count 1, you do not reason that because he is the kind of man who committed that offence once, he is the kind of man who is likely to commit it twice. You do not reason, if you find him guilty on Count 2, that he is the kind of man who is likely to commit murder. And you do not reason, if you are satisfied beyond reasonable doubt that he is guilty of murder, that he is the kind of man who is likely to commit any of the other offences with which he is charged. You can see the reason. It is very important to bear it in mind.
The next point I make may already have occurred to you. A great deal of evidence has been called that goes to the character of Mr Halliday. Is that evidence also of the class that cannot be used to reason, that he is the kind of person who is likely to have committed one or more of the offences with which he is charged? If not, how can it be used? The starting point, to answer that second question, is that we are not here talking about the use of conclusions drawn from a finding of guilt on a criminal charge. For reasons I have given, such a finding cannot be used in that way.
In answer to the second question, we are concerned with something different. We are concerned with evidence which the Crown says demonstrates that Mr Halliday was a man who liked to control others and was infatuated with both [S] and [C] but especially [S].
It is on the basis of this evidence that the prosecution asks you to find that Mr Halliday had a motive to kill Shelley Stephenson and to commit the other crimes alleged against him.
If you accept the evidence upon which the prosecution relies, then you can, if you think it appropriate, use that evidence as the basis of a finding of guilt. But of course you would not bring down that verdict unless you were satisfied beyond reasonable doubt that each element of the charge under consideration had been established.
To very quickly reiterate. You cannot reason that because Mr Halliday is guilty of one of the counts he faces he is guilty of any others. But you can use evidence of his character, if you find that evidence established, as a basis for considering the charges which he faces.

The jury were told that they had to be satisfied beyond reasonable doubt of the existence of motive before they could act upon it. That direction may have been unduly favourable as regards the count of murder. Motive was, in one sense, nothing more than a piece of circumstantial evidence which was by no means indispensable, in the circumstances of this case, to a finding that the applicant was guilty of murder.[26]
[26]R v Best [1998] 4 VR 603, 618.

The jury were not told that they had to be satisfied to the criminal standard in relation to any of the individual acts that were said to go to motive, namely, the various acts of sexual impropriety that were treated as ‘uncharged acts’, but were said to cast light upon the likelihood that the sexual offences charged had been committed.

As the law now stands, after HML a direction along the lines for which the applicant now contends seems to be required.[27] The jury ought to have been told, in relation to the various acts said to demonstrate the applicant’s ‘guilty passion’ for the two young girls, that they had to be satisfied beyond reasonable doubt that those acts were committed. No doubt, on a retrial, the jury would be so directed.
[27]R v Sadler (2008) 20 VR 69, [65] and R v McKenzie-McHarg [2008] VSCA 206.

In addition, we consider that the trial judge should have identified the evidence more clearly than by simply referring to it as evidence of ‘bad character’. He should have instructed the jury as to its possible relevance, and the limited use to which it could be made. The direction that the jury could ‘use evidence of [the applicant’s] character, if you find that evidence established, as a basis for considering the charges which [the applicant] faces’ was not, in our view, a sufficiently clear exposition of the way in which uncharged acts could be used. The warning against propensity reasoning that was given was not, we consider, sufficient to meet that object.

The principles that govern this aspect of the law are set out in a number of recent cases. These include R v McKenzie-McHarg,[28] where this Court emphasised the importance of such limiting directions being given, and being accurately formulated.
[28][2008] VSCA 206.

The uncharged acts, described as ‘bad character’ by the trial judge, were identified in this case as including a description of the two victims and the applicant together in a bed, the applicant’s hands down the elder girl’s pants, and displays of her pubic hair and underwear. His Honour described this evidence as going to the applicant’s character, and as showing that he was both a man who liked to control others, and that he was infatuated by the older girl in particular. The jury were also told, at least implicitly, that these uncharged acts were relevant as going to motive for the murder.

In our view, the trial judge, in his charge to the jury, failed adequately to explain that they could only use the evidence of uncharged acts for the limited purpose specified in the authorities, namely, to show the applicant’s unnatural sexual interest in the two girls. In other words, they should have been told that the uncharged acts, if proved, went only to establish a ‘guilty passion’, or ‘relationship’, thereby putting in context the allegations of sexual offences contained in the counts. They should have been told that the uncharged acts were led for ‘contextual and explicative’ purposes, and did not of themselves amount to evidence of guilt. [29]
[29]R v Sadler (2008) 20 VR 69, 88.

It is true, as the passage set out earlier reveals, that the jury were warned not to engage in propensity reasoning. That was appropriate insofar as it went. However, the trial judge’s failure to specify with precision the positive, though limited, use to which uncharged acts could be put, meant that there was a risk of confusion, and a chance that this evidence would be misunderstood.

It is unnecessary, having regard to our finding that the jury should have been discharged, to determine whether we would have allowed this appeal on the basis of ground 4, or whether this would have been a case for the application of the proviso.

Ground 6

For the sake of completeness, it should be noted that the applicant contended in ground 6 that the verdict was unsafe and unsatisfactory. That ground was not pressed in those terms, but was invoked merely as a ‘catch all’, reflecting the errors earlier identified, both individually and in combination. It was not submitted that the applicant was entitled to an acquittal rather than a retrial. It follows that nothing more need be said about this ground.

THE MELBOURNE TRIAL

In relation to the Melbourne trial, the applicant submitted first that the same criticisms could be levelled at his Honour’s charge in relation to uncharged acts as were made in relation to the Mildura trial. It was next submitted that the trial judge should have given what was described as a ‘Burns direction’[30] regarding the confessional material. Finally, it was submitted that the first count should have been withdrawn from the jury on the basis of R v DWB.[31]
[30]Burns v The Queen (1975) 132 CLR 258.
[31](2008) 20 VR 112.

We reject each of these grounds. There was no evidence of uncharged acts, as such, led in this trial in relation to the applicant’s daughter. She did not give evidence. It is true that the applicant, in his record of interview, admitted that he had had intercourse with her on a number of occasions. No doubt that was why count 1 on this presentment was framed as it was. Nonetheless, there was ample justification for pleading this particular count as a ‘first occasion’ count since the applicant acknowledged in his record of interview that he had been having sex with his daughter from about 2003 onwards.

As regards the Burns direction, the short answer is that no such direction was sought. In any case, where the evidence consists almost exclusively of confessional statements, a direction that the jury should not act upon that material, unless satisfied beyond reasonable doubt that it is true, adds little to the standard direction as to the burden of proof.

In our view, there was no defence whatsoever to the second count. An assertion, proffered somewhat lamely in oral submissions, that the applicant may have been fatigued when he confessed, and that his confession might therefore be suspect, was not supported by any evidence, apart from a single answer in the record of interview indicating that he was tired. The confession was utterly damning. It was powerfully and amply corroborated by the tape-recorded material. It was hardly surprising, in those circumstances, that the jury deliberated for only a short time before convicting the applicant on these counts.

SENTENCE

The applicant is to be retried on the count of murder and the various counts alleging sexual offences against his step-daughters. He remains, however, convicted and sentenced on the two counts of incest regarding his own daughter. Because he was sentenced ‘globally’, arising out of the convictions in both trials, no separate non-parole period was fixed in relation to the two latter counts. The question of his sentence in relation to those counts will have to be further addressed at some point.

The appropriate course seems to be to hear further submissions on the applicant’s behalf in relation to those two counts of incest, and then to re-sentence him on those counts.

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[2009] VSCA 195

2 September 2009