R v Heaney

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 546 of 2007

THE QUEEN
	v
DANIEL HEANEY

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JUDGES:	ASHLEY, REDLICH and KELLAM JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	9 February 2009
DATE OF JUDGMENT:	17 April 2009
MEDIUM NEUTRAL CITATION:	[2009] VSCA 74

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CRIMINAL LAW – Conviction – Causing serious injury intentionally – Victim stabbed twice – Whether verdict bad for latent duplicity – Whether judge’s directions productive of uncertainty – Whether real prospect that verdict was not unanimous in respect of at least one stabbing – Jury verdict not disclosing whether one or both stabbings established offence – Whether relevant – Application refused.

CRIMINAL LAW – Sentence – Whether sentence of nine years’ imprisonment with non-parole period of six years’ imprisonment manifestly excessive - Very serious example of serious offence – Absence of remorse – Importance of general and specific deterrence, denunciation and protection of community – Matters in mitigation – Self-inflicted injury a form of punishment – Some evidence of rehabilitation – Application refused.
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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr C J Ryan SC	Mr Craig Hyland, Solicitor for Public Prosecutions
For the Applicant	Mr D A Dann	Clarebrough Pica

ASHLEY JA:

On 3 August 2006 a jury in the Supreme Court found Daniel Heaney not guilty of attempted murder but guilty of causing serious injury intentionally.[1] He was sentenced to be imprisoned for nine years, with a non-parole period of six years’ imprisonment. Now he seeks leave to appeal against both conviction and sentence.
[1]Crimes Act 1958 (Vic) s 16, maximum penalty 20 years’ imprisonment.

The conviction application

The grounds upon which the applicant relies are these:

GROUND 1:The guilty verdict of the jury was unsafe and unsatisfactory in that the verdict was bad for latent duplicity and/or uncertainty.
GROUND 2:The trial of the applicant miscarried as a result of the Learned Prosecutor’s reliance upon alleged discrepancies between the Applicant’s evidence and matters that he had put by his Counsel.

Circumstances of the offending

The incident which gave rise to the counts on the presentment occurred on 6 October 2004. It was scarcely in dispute that, however it occurred, the applicant, then a man aged 47, twice stabbed Laura Muntz, then a woman of nearly 50 years. The applicant and Ms Muntz had been in a domestic relationship of sorts. The wounds were to the victim’s chest and abdomen and were inflicted with two different knives.

The applicant was presented on a count of attempted murder. There were two alternative counts. The first was the count upon which the applicant was convicted. The second was a count of recklessly causing serious injury.

It was not in substance in issue at trial, although it remained for the Crown to prove it, that each of the stab wounds had inflicted serious injury. As the trial was fought, the key issue was whether the Crown had proved that one stabbing at least was a conscious and voluntary act done with relevant intent.
The evidence of the complainant and the applicant
The gist of Ms Muntz’s evidence was that she and the applicant had been drinking, first at a hotel, then at her home. They got into an argument as to whether the applicant should attend her forthcoming 50^th birthday party. Thereafter, she went to the toilet. The applicant came to the doorway and said, ‘if I can’t go to your 50^th birthday, no one’s going to go’. Then he struck her in the chest with the handle of a knife. She told him not to be ridiculous, and not to be stupid, grabbing the blade of the knife at the same time. He forced her to let go of the knife. Then, having pulled up her pants with his permission, she went to take a step out of the toilet. The applicant stabbed her in the chest, saying that he knew she would try to do that,[2] which is why he had a second knife - which he then produced. He told her to sit on the toilet, and that maybe he would let her live. She told him to calm down. He said that it was her fault that he had no friends and nowhere to live. He stepped forward and pointed the blade of the second knife towards her abdomen saying ‘if I can’t go to your 50^th, no one’s going to go. I’m going to fuckin’ kill you and then I’m fuckin’ well going to kill myself.’ Then he stabbed her in the abdomen.
[2]That is, attempt to leave the toilet.

The chest wound extended through the internal mammary artery and through Ms Muntz’s lung. Surgery was required to clip the artery and repair the lung.

The wound to the abdomen passed into the pancreas, transecting the common bile duct. The knife, then, had penetrated about two thirds of the way through Ms Muntz’s body. Complicated surgery was required to repair the wound.

The applicant’s evidence-in-chief was to this effect: In October 2004 he had moved into the complainant’s home in the course of their relationship. On the evening of the incident Ms Muntz, a Ms McGuire and himself had been drinking at a hotel. They had returned to Ms Muntz’s home at about 9.30am, and continued drinking. Conversation had got around to Ms Muntz saying that the applicant didn’t like her family and that it would be a good idea if he didn’t come to her forthcoming 50^th birthday party. This did not concern him ‘in the slightest’. He ‘wasn’t going anyway’. Probably, at various times in the course of their conversations about personal matters, Ms Muntz and he yelled at each other.

Ms McGuire left, at his suggestion, it could have been at 12.30am. The applicant rang a friend and asked if he could ‘prop’ at the latter’s place for the night. The friend said ‘no problems’. The call, I interpolate, was shown to have been made at 12.37am. By the time he made the call, he was leaving – that is, he had decided to leave. Whilst Ms Muntz was outside farewelling Ms McGuire, he put various items of equipment that he needed for his work together.

There were more arguments when Ms Muntz returned to the house. He said he was going, and went to pick up his work tools, which were in the laundry. Then -

She started screaming and going, ‘Yeah, that would be right, every time we try to work something out you take the easy road and leave’, you know, and when I turned around to talk to her she was coming at me with a, well, what appeared to be a carving knife in her hand.

and
Where were you in the laundry at that time? ---Virtually just inside the, how can I put it, if you take one foot inside the laundry, virtually my boots were sitting just down around there somewhere.
Where was she when you saw her with this knife? --- Well, she was more or less making her way from the kitchen area, um, if you could imagine that’s the kitchen area up there, more or less making her way towards me. I suppose she would have been, just sort of to fathom a guess, probably halfway in between the two areas.
What was her, what was her demeanour like? --- Well, you know, she was, you know, saying stuff like, ‘Every time we got to discuss something you want to leave’ and she’s got the knife in her hand going, you know, ‘Every time we try to work something out you want to piss off’, (demonstrating) blah, blah, blah, a little bit stronger language than that.
What was the level of her voice? --- It was extreme.

and
… As she came at me more or less towards the, coming into the laundry, I made the mistake – well, she said something along the lines of, ‘Go on, run away little boy’, something like that, and I laughed at her, which wasn’t a real good idea, and the laundry light itself was off, the toilet light was on, the kitchen light was on and I backed up towards the back door, she had the knife out in front of her. She took a, I suppose not so much a swipe but more or less like a jab at me, at me face. I balked to one side. I nearly fell over. That’s probably more or less beside the sink area. I sort of backed up to the window ledge and on the shelf there just above where the, can I refer to a photo?
Yes, you can look at 39? --- Just more or less where the, that window ledge is there, there was a small knife.
Sorry, what photo are we looking at?
39? --- Sorry, 39. There’s a small knife, it was either on the window ledge or on the sink, I can’t remember 100 per cent. That was normally used to, when you take the food out of a can, just say for instance a pet can, that was used basically put it in the bowl and mince it up, it was generally washed and just put back on the side there. I grabbed …
Would you look at photograph 43 as well? --- Yes.
What do you say about that knife? --- Yeah, that looks like it, yeah.
Yes, thank you. Go on? --- Sorry?
Continue then? --- I grabbed the knife, I straightened up, that’s when she was sort of coming at me again. It wasn’t entirely dark but, as I say, the light was off, there was just the light more or less emanating from the kitchen and the laundry. There was another blow coming towards me face, I blocked it with me hand and basically at that point I knew I had been cut straight away, I popped her with me hand and threw me shoulder into a (indicating) …
Pause there for a moment. Do you know where you were cut, please? --- It’s probably very hard for the jury to see from here, but it is cut along here and back down here (indicated).
Right? --- It was more or less through the bone.

and
Once you hit, you pushed into her, do you know where the knife you had, where it was? --- I had it in my left hand.
What happened to Ms Muntz? --- Well, once I threw meself into her, I suppose she went flying backwards and I basically went flying forwards and I think, this part I’m not 100 per cent sure of because we both more or less ended up sprawling, but she may have hit the – how would you put it? – the doorway – what would you call it? – more or less the architrave of the doorway, and I more or less come not directly on top of her but more or less directly on top of her and I ended up down on one knee. I remember me arm was more or less up against the cupboard there, there’s a cupboard in the laundry, and Ms Muntz went straight back more or less off of that doorframe into the toilet area.
Right, Just a minute. If you look at 27 … ? --- Yeah, I more or less ended up with, I suppose like an elbow, it ended up, how can I put it? – in that space between the two doors, around there somewhere.
Just hold it up so the jury can see where it was? --- Yeah. Just about here somewhere (indicating).
Right? --- I was more or less back here (indicating). If you can imagine that’s a window ledge there (indicating), when I blocked it, blocked it and threw me weight and me shoulder into her body and we both went backwards. I suppose she was sort of underneath me but not directly underneath me as she went back and I think her back more or less hit the back here (indicating) and it sort of more or less spun her into the toilet area and I ended up like on one knee on that area here (indicating).
All right now when that happened, what happened then?---I started to try and get up and I knew that somewhere between here and here (indicating) that we'd made contact, that she'd been injured with a knife. When I, I went to get up she said something along the lines of, ‘You've done it now’, and when I looked at her, because I'm in a darkened area here and she's in the toilet, she pointed the knife at me again and come straight at me this time.
As she came towards you what happened?---I'm not sure whether I got stabbed standing up or whether it actually happened on the ground, but I ended up flat on me back on the area sort of here (indicating), me feet were around this area here and I suppose me head over to this area a little bit.

and
Where was Ms Muntz when you fell?---Well, she fell, she fell on top of me but her body was, she landed on the left-hand side of me with her body, more or less like her chest across the top of me, probably just up a bit further, and I tried to get up but her body weight was on me. She jumped to her feet. I tried to get up and it was at that point of time I felt a sharp pain in me chest, I didn't realise until then that I'd been stabbed.
Did you see what happened to Ms Muntz?---She jumped up and jumped back into the toilet and slammed the door.
Now what happened to you?---Well I, I tried to get up but I couldn't because of the pain in me chest. So I've looked down and all I could see was this handle of a knife sticking out of me chest and I thought, ‘Well, that can't be that knife’ because otherwise I couldn't feel anything, I couldn't feel any pain, nothing, and it was sort of, it was very surreal.
What did you do with the knife?---Well, I suppose because of a combination of being pissed and that, I thought, I said, ‘Is that the best you can do?’ And I pulled the knife out, which turned out to be a very bad move.
Then what happened to you?---As soon as I pulled it out I could hear, like, blood and all these noises going into me chest and I threw the knife behind me, I tried to get up and I think I got about, I probably got me head about 10 inches off the ground, probably just trying to get me shoulders up and that was the end of me. I collapsed.
Do you know what happened to the other knife that you had in your hand?---I've got no idea, I've got no idea. I imagine probably in that fall that that's how she may have got her second injury, but to my recollection I can only remember her being injured once.

The applicant’s account was challenged in cross-examination. Later, I will refer to some of that cross-examination. But this is clear: upon the applicant’s account, Ms Muntz had been the instigator of violence. Indeed, she had stabbed him in the course of a struggle. The first stab wound inflicted upon Ms Muntz had been an accident. The circumstances in which Ms Muntz had received the second stab wound were unknown to him.

There is no doubt that the applicant did receive a stab wound. Who inflicted it, and how it came to be inflicted, were matters in controversy at trial.

In the event, the jury was confronted by starkly different accounts of the incident in which Ms Muntz received the two stab wounds. The Crown, of course, had to prove its case. The jury might have rejected the applicant’s account and yet not have been satisfied to the criminal standard that the Crown had established the applicant’s guilt on one or more of the counts on the presentment. Indeed, the jury’s not guilty verdict on the count of attempted murder very likely reveals such a process at work.

Ground 1
Discussion

In order to understand the charge which his Honour gave, it is necessary to refer to discussions initiated by his Honour. Thus:

Another issue is the - my impression is that at one level the case is very simply a matter of whose account is going to be accepted. On the other hand, that may not be so and I wanted to inquire as to whether that was the position seen by the parties, or whether there is a further question as to whether there are issues nonetheless still remaining, if one accepts, for argument's sake, the evidence of Ms Muntz, whether there are any defence issues that still arise if that version is accepted. Now we have the situation that there are two, it seems, correct me if I am wrong, but the case seems to be that there were two separate instances in which Ms Muntz was stabbed, although they make - on one view it is all one episode but there may be differences between them, there may be subtle differences between them, and there's a case that's been in the Court of Appeal that's yet to be handed down involving attempted murder, as it happens, in which a large number of shots were fired, allegedly under duress, but in two separate locations, and there was one charge of attempt and there was an issue raised on appeal as to whether that was inherently bad for duplicity. Now I think common sense would suggest that we shouldn't worry about that sort of thing, but knowing how things can look different in other places, and being mindful for the need for the accused, for the case against the accused to be properly presented and properly explained by me, it might be desirable that I say to the jury something along the lines that to convict on the counts, it applies to at least the first two counts, I think, and perhaps the third as well, that they need to be unanimous that, satisfied beyond reasonable doubt that at least one of the stabbings was carried out with intent to kill before they can convict, and if they are not unanimous as to at least one their duty is to acquit. That would be one approach to that.

Then there was this interchange between his Honour and the prosecutor:
PROSECUTOR: … if the jury were to find that his actions were not conscious, voluntary and deliberate, then that would really wipe out the three of the counts, I would have thought.
HIS HONOUR: I was going to say, that's what I was wanting to say. As I apprehend it, a conscious voluntary requirement applies to each of the counts.

Thereafter, there was this interchange between his Honour and both counsel:
PROSECUTOR:        If they say they are satisfied beyond reasonable doubt that the acts were conscious, voluntary and deliberate they would then have to consider the mens rea aspect, attempted murder and then intentionally cause serious injury if not satisfied as to the intent to kill, and if not satisfied of intent to cause serious injury then they'd consider recklessly cause serious injury.
HIS HONOUR:        Well, that's a very - yes, that strikes me as a very good way of putting it. Would you agree with that, [counsel for the accused]?
COUNSEL:     I agree with the way - - -
HIS HONOUR:        I think it greatly simplifies their task.
COUNSEL:     That was the view I took of the whole case, I agree with what my learned friend has said.

Counsel for the accused put his client’s position this way:
COUNSEL: In this case what we are saying is that as a result of circumstances there was nothing that he did that could have prevented what transpired. That doesn't involve any willed or act or voluntary act. What transpired was a result, therefore, of an accident.

The prosecutor explained the Crown’s case as follows:
The Crown's case is that there's an expression of intent and then the intent is acted upon on two occasions and that this is all part of the one episode and amounts to either 1, 2 or 3 on the presentment.

The discussion culminated in his Honour’s observation that he thought ‘the suggestion about putting the conscious voluntary issue to the jury first would greatly simplify the presentation of the issues to the jury.’

Out of all this, it is in my opinion quite clear that his Honour was concerned to ensure that, in respect of what was being treated by the parties and his Honour as a single transaction, there was no prospect of the jury arriving at a verdict adverse to the applicant in which some of the jury members relied upon the circumstances of the first stabbing and others relied upon the circumstances of the second stabbing. Hence his observation that the jury would need to be told that it must be unanimous that at least one of the stabbings (assuming satisfaction that it was a conscious and voluntary act) had been carried out with intent to kill or other relevant intent.
The Charge
The learned judge gave the jury a memorandum for its assistance. He also gave a substantial oral direction.

The memorandum said this in respect of the count on which the applicant was convicted:

To succeed on this Count, the Crown must prove the following elements beyond reasonable doubt:
1. That either or both stabbings were conscious and voluntary acts.
2.That in consciously and voluntarily stabbing Laura Muntz, the accused intended to cause serious injury to her, …

The memorandum also stated, under the heading ‘Preliminary Question Common to each Count’ –

Are you satisfied beyond reasonable doubt that either or both stabbing (sic) was a conscious and voluntary act?
If yes, you must then first consider the remaining element in dispute in Count one.
Count 2
In relation to Count two, are you satisfied beyond reasonable doubt that in consciously and voluntarily stabbing Laura Muntz, the accused intended to cause serious injury to her?
If yes, your verdict is guilty on Count two.
If no, your verdict is not guilty on count two and you must then consider the remaining element in dispute in Count three.

I turn to the oral directions given by the learned judge. Concerning proof of conscious and voluntary act, he gave this direction:

I want to say something about the first element, that is the conscious and voluntary act requirement, because it is of particular significance in this case for a couple of reasons.
You will see that it is the first element in each of the charges, so it is common to all three, and if the Crown does not satisfy you all beyond reasonable doubt that at least one of the stabbings was a conscious and voluntary act, the Crown will have failed to prove the first element of each count. That will be the end of your deliberations and your proper verdict will be not guilty on each of the three counts.
It is also significant because if the Crown satisfies you beyond reasonable doubt that one of the stabbings was conscious and voluntary, the Crown can then invite you to infer that the accused intended to stab Ms Muntz on that occasion. If you draw that inference an issue then arises for you as to whether the inference is open and should be drawn from that inference, and all the other evidence in respect of that particular stabbing, that there was a specific intent of the kind alleged.
In relation to Count 1 the specific intent is intent to kill, in Count 2 the specific intent is to cause serious injury, and in Count 3 the mental element that is involved is set out there on that sheet that you have.

His Honour informed the jury that the competing positions of the parties were as follows:

I was about to go to a very short statement about the position of the Crown and the accused. The Crown case is that each stabbing was a conscious and voluntary act. It relies on the nature and location of the blows struck, the evidence of Laura Muntz about the statements to her by the accused while holding the knives about planning to kill her and himself, the arming of himself with two knives, her evidence about that, the circumstances of the stabbing as she describes them, the evidence of her and Ms McGuire about his anger, Ms Muntz's evidence that he said he had done it now, each or together demonstrating that each act of stabbing was a conscious and voluntary act by him.
The accused's counsel challenged the evidence, and I will come back to that later, relied on by the Crown and relied upon the accused's own evidence, which points to the stabbing of Ms Muntz as being accidental and not a conscious and voluntary act on his part.
Counsel for Mr Heaney submitted that, on the evidence that you should accept, the Crown cannot discharge the onus of proof upon it and prove that either stabbing of Ms Muntz was a conscious or voluntary act.

In further directions about the element of conscious and voluntary act, his Honour addressed the circumstance that there had been two stabbings. Thus:

The slightly more complicated matter that I need to mention to you before I go any further about this first element, the conscious and voluntary act, is a complication that arises because you have two acts of stabbing. They were very close together in time and form part of the one transaction, the one incident, but on whichever account you accept, either Ms Muntz or Mr Heaney, there were some differences between them. That then raises as a possibility that the facts you accept may lead you to the conclusion that the first element, that is the conscious and voluntary act element, is proved beyond reasonable doubt in respect of one of the stabbings and not the other. If that is the way some or all of you ultimately view the situation, if you find yourselves in that situation, you will then need to consider whether the Crown has proved the second element of intention to kill in respect of that stabbing.
If on the other hand you are satisfied beyond reasonable doubt that both stabbings were conscious and voluntary acts then you will need to consider whether the Crown has proved an intent to kill in respect of either or both of those stabbings. It may be said that the bottom line is that if you are satisfied beyond reasonable doubt that one of the stabbings was a conscious and voluntary act done with intent to kill, your proper verdict is guilty on Count 1, even though you may not be unanimous that all the elements are proved beyond reasonable doubt in respect of the other stabbing.
To take an example, and this is simply hypothetical, I should have said before that I am usually at pains to try and not give any indication to the jury about how I might be thinking because it is your decision and not mine, and this example is simply there as a hypothetical example, but I find it usually helps to explain what to date and this point has been a somewhat academic dissertation by giving you an example to explain it.
Suppose some of you had a reasonable doubt about whether the first stabbing was a conscious and voluntary act but you were all satisfied beyond reasonable doubt that the second stabbing was a conscious and voluntary act done with intent to kill, then your proper verdict is guilty on Count 1.

and
… there was something I meant to mention. If you look at the first sheet of the two sheets I gave you, the language that I chose in paragraphs 1 and 2 was designed to deal with that point that it is theoretically possible that you may come to the conclusion that one stabbing was not conscious and voluntary but another was. The first point put is that either or both of the acts of the accused in stabbing Laura Muntz were conscious and voluntary acts. Then the wording in the second is designed to cover all eventualities, that in consciously and voluntarily stabbing Laura Muntz the accused intended to kill her. That is why I had that language there. It enables you to deal with that element while at the same time covering the possibility of different views about the consciousness and voluntariness of the first stabbing, or the second stabbing.

Immediately before going to specific directions in respect of count 2, his Honour summarised what the Crown must prove, if it was to establish the count of attempted murder, this way:

The ultimate question for you on Count 1 is whether on the evidence you have accepted the Crown has proved beyond reasonable doubt that the accused consciously and voluntarily stabbed Laura Muntz and did so with an intent to kill her. If the Crown satisfies you beyond reasonable doubt that it has proved the two elements we have identified in respect of the same stabbing your verdict will be guilty on that count. If the Crown has not satisfied you beyond reasonable doubt that it has proved those elements, your proper verdict, it must follow, on Count 1 will be not guilty (my emphasis).

and
But if you are satisfied beyond reasonable doubt that there was a conscious and voluntary stabbing, you would then look at Count 1 and consider whether the specific intent has been proved in respect of the conscious and voluntary stabbing. If you are satisfied beyond reasonable doubt that it was, your verdict is guilty on Count 1 (my emphasis).
If not so satisfied you move on to Count 2 because what the Crown has failed to prove at that point is not that there was a conscious and voluntary act, but that it was not done with a specific intent.

The learned judge gave this direction in respect of count 2:

Now if you have not been satisfied beyond reasonable doubt that either or both stabbings were conscious and voluntary acts it is your duty to acquit the accused of all counts. So you will only consider Count 2 if you are already satisfied that there was a conscious and voluntary stabbing, and so in fact when you come to consider Count 2, if you do, it will be because you are not satisfied beyond reasonable doubt that there was intent to kill in respect of the conscious and voluntary stabbing, but you will need to then consider whether there was an intent to cause serious injury in that conscious and voluntary stabbing, which all proves that we have a great capacity to complicate matters, don't we? (my emphasis).

No exception was taken by counsel for the applicant to his Honour’s directions concerning proof of the elements of the offences.

Before finding the applicant guilty on count 2, the jury had a single request. It sought a transcript of Ms Muntz’s evidence as to the sequence of events concerning the stabbings.
Submissions for the applicant
Counsel submitted, by written outline, that the oral directions given by the learned judge were productive of uncertainty for at least two reasons:

1.10 First, and notwithstanding the tenor of the Judge’s hypothetical example, the Judge’s directions leave open the real prospect that while the jurors may unanimously have found only one of the stabbings to be a conscious and voluntary act, they were not unanimous as to whether this act was the first or second act of stabbing.

and
1.14 The evidence at trial revealed two discreet (sic) acts of stabbing. The Judge having left it open to the jury to discriminate between the two stabbings, and having directed the jury in the manner already described above, there can be no certainty that the jury were unanimous as to one particular act, or, if they were so unanimous, which act they were unanimous about.

In support of those submissions, the outline cited R v Trotter[3] and R v Yankovski.[4]

Resolution of Ground 1
[3](1982) 7 A Crim R 8, 18.
[4](2007) 17 VR 315, 319–323, [16]–[24], Chernov JA.

In my opinion, the first submission noted above could not be accepted. The learned judge made it crystal clear that the jury’s first task was to decide whether it was satisfied to the criminal standard that at least one – or it could have been both – of the stabbings was a conscious and voluntary act. Then, in respect of any stabbing about which it was so satisfied, it must consider if the Crown had proved any one, and which, of the specific intent specified by the three counts. There was absolutely no risk, I consider, that the jury might have thought that a guilty verdict could be returned if some of its members were satisfied that one stabbing had been a conscious and voluntary act done with requisite intent, whereas other jurors were satisfied that the other stabbing had been a conscious and voluntary act done with requisite intent. It follows that it cannot be said, as it could be said in R v Trotter,[5] that -

Whilst it is clear that the jury must have been unanimous that the applicant had committed an indecent assault on Doru, it is impossible to know whether there was unanimity on the part of the jury in respect of one or other of the two acts of the indecent assault. All members of the jury might have been unanimous on the fact that the applicant had committed an indecent assault on Doru Capalb, but some members of the jury might have arrived at that conclusion on the basis of the bathroom assault and others on the basis of the bedroom assault. There is no way of knowing which was the act which the jury found to be an indecent assault.

[5](1982) 7 A Crim R 8, 18.

In that case, it may be noted, the trial judge had not addressed, in his charge to the jury, the circumstance that the presentment alleged one indecent assault but that the evidence disclosed two separate incidents, each of which was capable of being adjudged to be an indecent assault.

The second submission advanced for the applicant - that is, that there is no way of knowing whether the jury found the applicant guilty on the basis that the offence was made out by the first or second act – or, indeed, by both of them – is correct. The question which arises is whether that demonstrates latent duplicity in the count.

It is, in my view, very clear that counsel and the learned judge approached this matter on the basis that what occurred constituted a single (sometimes it is called ‘composite’) transaction. That is the way in which his Honour described it in his pre-charge discussions with counsel. It is apparent that both counsel accepted such a characterisation. Thus the prosecutor referred to the one episode being constituted by an expression of intent which was acted upon on two occasions. Hence also the characterisation by counsel for the accused that ‘what transpired was the result of an accident’.

The learned judge surely expressed the agreed position in his charge when he told the jury, more than once, that for the Crown to prove its case it must establish that at least one of the stabbings was a conscious and voluntary act accompanied by relevant intent. This was saying, in substance, that the single count might be proved by a unanimous conclusion that one or both of the stabbings met that description.

If the characterisation of what occurred as a single transaction was correct, the direction was unexceptional. Before this Court, however, counsel for the applicant submitted that it was incorrect; and that the Crown must have proceeded, had it wished to rely upon the two stabbings, by way of two separate counts.

Counsel for the applicant had difficulty, as I perceive it, in articulating why the incident should not be characterised as a single transaction. At one point he submitted that maybe it was open to look at it in those terms. But later he submitted that the circumstances were really the converse of those which arose in R v Goldman.[6] He called in aid R v Cascone,[7] particularly a paragraph in the judgment of Charles JA to which Chernov JA referred in R v Yankovski.[8] The present case, he submitted, was quite unlike the circumstances which arose in Yankovski. He then contended that there were two distinct incidents which had been separated by an indeterminate period of time. At another point, he seemed to submit that the fact that the learned judge had given the direction which he did – counsel agreed that it had been given to ensure that the applicant received a fair trial – demonstrated the latent duplicity in the presentment. Counsel accepted that there has been a judicial tendency, in Australia as in England, to apply what may be called the single transaction analysis. But he submitted that it could not save this presentment from the vice of latent duplicity.
[6][ 2007] VSCA 25.
[7]Unreported, Court of Appeal (Phillips CJ, Charles and Buchanan JJA) 4 June 1998.
[8](2007) 17 VR 315, 321-322, [20]–[21].

Before going further, it is desirable to consider the likely time lapse in the entirety of the incident. In that connection, the manner in which evidence in chief was adduced from Ms Muntz - it being at least clear from the verdict that the jury did not accept the applicant’s account – is of significance. The prosecutor asked short questions, of the ‘what happened next’ kind. Ms Muntz replied in very considerable detail. It is, I think, pretty clear that the way in which the witness gave her evidence had a tendency to elongate the likely time elapse between the stabbings. In that period, on her account, relatively few remarks were passed and there was not much in the way of movement by either she or the applicant. In all, the gist of her evidence was that the two stabbings occurred within a quite abbreviated period of time

In Director of Public Prosecutions v Merriman,[9] a case involving a fact situation dissimilar to that which arises for our consideration,[10] attention was drawn to the principles which inform duplicity, and their application.
[9](1973) AC 584.
[10]It involved the charging of two brothers with an offence in a single count on an indictment.

Lord Morris of Borth-y-Gest said this:

It is furthermore a general rule that not more than one offence is to be charged in a count in an indictment. By rule 4 of Schedule 1 to the Indictments Act it is provided as follows:
‘(1) A description of the offence charged in an indictment, or where more than one offence is charged in an indictment, of each offence so charged, shall be set out in the indictment in a separate paragraph called a count.’

The question arises – what is an offence? If A attacks B and, in doing so, stabs B five times with a knife, has A committed one offence or five? If A in the dwelling house of B steals ten different chattels, some perhaps from one room and some from others, has he committed one offence or several? In many different situations comparable questions could be asked. In my view, such questions when they arise are best answered by applying common sense and by deciding what is fair in the circumstances. No precise formula can usefully be laid down but I consider that clear and helpful guidance was given by Lord Widgery C.J. in a case where it was being considered whether an information was bad for duplicity: see Jemmison v Priddle [1972] 1 Q.B. 489, 495. I agree respectfully with Lord Widgery C.J. that it will often be legitimate to bring a single charge in respect of what might be called one activity even though that activity may involve more than one act. It must, of course, depend upon the circumstances[11]

[11]Ibid 593.

Lord Diplock, with whom Lord Salmon agreed, said that –

The rule against duplicity, viz. that only one offence should be charged in any count of an indictment, which is now incorporated in rule 4(1) of Schedule 1 of the Indictments Act 1915, has always been applied in a practical, rather than in a strictly analytical, way for the purpose of determining what constituted one offence. Where a number of acts of a similar nature committed by one or more defendants were connected with one another, in the time and place of their commission or by their common purpose, in such a way that they could fairly be regarded as forming part of the same transaction or criminal enterprise, it was the practice, as early as the eighteenth century, to charge them in a single count of an indictment[12]

[12]Ibid 607.

The approach enunciated in Merriman has been considered and applied in Australia; and in many instances, without consideration of principle, the same approach has been adopted.

In Walsh v Tattersall[13] an employee was charged with obtaining by dishonest means payments of benefits made under the South Australian Workers’ Compensation legislation. A particular count related to payments made over a 12 month period. The High Court held, by majority, that the employee’s conviction should be quashed. Gaudron and Gummow JJ held that the applicant had not been charged with an offence under the relevant legislation, for it created a discrete offence in respect of the receipt of any one payment or benefit. Kirby J held that the count was bad for duplicity, the purpose of the relevant section being to create a separate offence for each payment. Dawson and Toohey JJ dissented.
[13](1996) 188 CLR 77.

The case turned particularly upon the relevant legislation, but Dawson and Toohey JJ in their joint judgment and Kirby J dealt with the question of duplicity.

Dawson and Toohey JJ, having analysed the case brought against the applicant on a particular count, said this:

The proscription against duplicity is succinctly stated by Archbold:
‘The indictment must not be double; that is to say, no one count of the indictment should charge the defendant with having committed two or more separate offences ... This rule though simple to state is sometimes difficult to apply ... Duplicity in a count is a matter of form, not evidence.’

The rule has been described as one of elementary fairness, to enable the defendant to know what it is of which he has been charged or found guilty and so that he has the opportunity of making a no case submission or a sensible plea in mitigation. That duplicity is a matter of form, not a matter relating to the evidence called to support the count, is emphasised by the Court of Appeal in Greenfield. For this reason S v The Queen is, in our view, not a case of duplicity. (Footnotes omitted)[14]

[14]Ibid 84.

Their Honours then referred with evident approval to the statement by Lord Diplock in Merriman which I set out above. So much is clear from this later passage in their Honours’ judgment, in which Merriman was footnoted:

As Prior J observed, what was involved was one activity of a continuing kind. In that situation it is legitimate to bring a single charge.[15]

[15]Ibid 86.

Kirby J referred to the strict application of the rule against duplicity in England and Australia over a very long period, and to the emergence in England by a less stringent approach - citing Merriman - which had led a number of Australian courts to depart from the stringency suggested by the old line of authority. Thereafter he stated principles governing duplicity which included the following:

There are special features of criminal procedure which continue to sustain the general tendency in favour of a rule of precision and specificity which has hitherto been enforced in this branch of the law. The reasons have been given many times, including in this Court. In Johnson v Miller, Evatt J gave a classic exposition:
‘It is of the very essence of the administration of criminal justice that a defendant should, at the very outset of the trial, know what is the specific offence which is being alleged against him. This fundamental principle has been deemed applicable to bodies which are not strictly judicial in character. But the rigorous application of the principle by courts of justice proper is to be regarded as deriving from the court's inherent power and jurisdiction. It is inherent because it is an essential and integral part of any system of administering justice according to law. For various reasons, including the miscarriages caused by technical objections to matters of form, the formal indictment, information or complaint is allowed to become more sparing in the information it imparts. Side by side, the jurisdiction to order particulars may call for more frequent exercise. It is an essential part of the concept of justice in criminal cases that not a single piece of evidence should be admitted against a defendant unless he has a right to resist its reception upon the ground of irrelevance, whereupon the court has both the right and the duty to rule upon such an objection. These fundamental rights cannot be exercised if, through a failure or refusal to specify or particularise the offence charged, neither the court nor the defendant (nor perhaps the prosecutor) is as yet aware of the offence intended to be charged. Indeed the matter arises at an even earlier stage. The defendant cannot plead unless he knows what is the precise charge being preferred against him. If he so chooses, a defendant has a right to plead guilty, and therefore to know what it is he is being called upon to answer.’

More recently, and after Merriman was decided in the House of Lords, the same strict rule was followed in this Court in S v The Queen. Gaudron and McHugh JJ explained why:
‘The rule against duplicitous counts in an indictment originated as early as the seventeenth century ... It may be ... that the rule grew out of the strict formalities associated with criminal pleadings at a time when the difference between misdemeanour and felony was the difference between life and death. However, the rule against duplicitous counts has, for a very long time, rested on other considerations. One important consideration is the orderly administration of criminal justice. There are a number of aspects to this consideration: a court must know what charge it is entertaining in order to ensure that evidence is properly admitted, and in order to instruct the jury properly as to the law to be applied; in the event of conviction, a court must know the offence for which the defendant is to be punished; and the record must show of what offence a person has been acquitted or convicted in order for that person to avail himself or herself, if the need should arise, of a plea of autrefois acquit or autrefois convict ...
The rule against duplicitous counts has also long rested upon a basic consideration of fairness, namely, that an accused should know what case he or she has to meet.’

For the foregoing reasons of history, good prosecution practice and fair conduct of criminal trials, the general rule of our legal system is still this: that a prosecutor may not ordinarily charge in one count of an indictment, information or complaint two or more separate offences provided by law. In the present case, the Full Court recognised that this was the general rule and the preferable prosecution practice. So much is borne out by many authorities. But certain questions remain. They are what exceptions to, or modifications of, the strict rule are allowed, and what is to happen where, as here, no objection is taken at the trial but only later on appeal?
The apparent artificiality of insisting on applying the rule against duplicity in its full rigour has been highlighted by actual and theoretical instances that have arisen, or been contemplated, where criminal acts occurred in very close proximity to each other. If, for example, criminal acts occurred within a few minutes of time and in close physical proximity, could they be regarded as components of the one activity, so as to be susceptible to treatment as a single count? If the events were seen as part of the one transaction or criminal enterprise this approach has been held to be permissible in England. If a precise understanding of the charge laid, although evidenced by multiple acts, is that it represents a single crime, then a single count is permissible. Many of the apparently conflicting judicial opinions, so criticised by the commentators, represent nothing more than attempts by judges to characterise multiple acts upon which the prosecution relied and to decide whether or not they could be fairly viewed as the one transaction or criminal enterprise so as to escape an attack on the ground of alleged duplicity. The usual explanation given for adopting this approach is that, only by doing so, would the judges be able to avoid reducing the law to technical absurdity. [16]

and
Various verbal formulae have been offered as a suggested test for whether the criminal acts are sufficiently close in time and space as to ‘fairly and properly be identified as part of the same criminal enterprise or the one criminal activity’. These valiant attempts by judges have been criticised as ‘glib’. Judges themselves have acknowledged that judicial views in particular cases are not always easy to reconcile. Ultimately, what is presented is a question of fact and degree for decision in each case Various indicia are proposed to sustain a single count against the charge of duplicity, notwithstanding that it may permit evidence to be adduced of events which, taken individually, could constitute separate offences. The indicia include: (a) the connection of the events in point of time; (b) the similarity of the acts; (c) the physical proximity of the place where the events happened; and (d) the intention of the accused throughout the conduct. Perhaps an indication of the considerable difficulty of the task to be found is in the fact that, in many of the leading cases, there is (as in this case) a division of judicial opinion.[17]

[16]Ibid 105–107. (Citations omitted).

[17]Ibid 108. (Citations omitted).

His Honour’s analysis differed from that of Dawson and Toohey JJ at a number of points. It is unnecessary, I think, to list the areas of divergence. What is presently relevant is that whilst his Honour firmly concluded that the strict approach to resolving questions of duplicity should not be relaxed, his review of the authorities showed that the concept of events within the one criminal activity not creating a problem of (latent) duplicity was itself well established, and that various indicia – though wanting in precision of application - had been identified as being pertinent to the question whether a particular case did or did not involve a single criminal activity.

Each of Dawson and Toohey JJ and Kirby J referred to S v The Queen[18] The nature of the indictment, of the evidence led, and the way in which the appeal was disposed of in the High Court were described by Bongiorno AJA in R v Goldman.[19] On no view were the circumstances in S as summarised by Bongiorno AJA those of a single criminal activity in respect of any of the three counts on the indictment. Moreover, evidence of repeated sexual misconduct by S other than that constituting an offence as charged would probably have been admissible as evidence of uncharged acts. The potential for a miscarriage of justice was very considerable. Understandably, in all the circumstances, in S there was no reference to Merriman.
[18](1989) 168 CLR 266.
[19][2007] VSCA 25, [75]-[80].

The single criminal activity basis of discrimination has been applied in many cases in the various Australian jurisdictions in the last decade and more. Its application reveals, as might be expected where what falls for consideration is a question of fact and degree, a series of fact-specific decisions. I should refer to some of them, for at least they convey the flavour of the way in which the courts have applied the single (or ‘composite’) activity test. It is convenient to begin with Gardner v Caporn,[20] in which Roberts-Smith JA reviewed a number of decisions of other Australian superior courts.
[20][2005] WASCA 153.

In that case, the applicant was charged and convicted on a count of assault occasioning bodily harm. One issue which arose on appeal was whether the charge was bad for latent duplicity. The applicant’s contentions were summarised by Roberts-Smith JA this way:

… it is submitted that here there were a number of acts which could be said to have constituted assaults, at least two discrete injuries, a live issue of causation of injury and various defences raised by the defendant and that in those circumstances it was erroneous to ‘roll up’ the appellant’s conduct into ‘one continuous incident’ justifying a single charge. The submission continues that as a matter of law it is impermissible for the prosecution to lay a single count in circumstances which could lead to the outcome in this case, with the Magistrate finding, as he did, that the initial push may have been a justifiable response to provocative words, that he was left ‘in some doubt’ as to the causation of injuries on the complainant’s arm, but nonetheless convicting the appellant of causing the injuries to the complainant’s face.[21]

[21]Ibid [103].

His Honour (with whom Steytler P and Wheeler JA relevantly agreed) opined that:

It cannot be the law that every single blow (or series of blows) in a continuous assault must be charged as a separate assault. That conclusion does not change because each blow causes a different injury to the victim. In may be that in a particular case, the first blow (which perhaps causes a disabling injury) is justified as being in self-defence or provocation but immediately succeeding blows causing further injuries are not. That possible outcome does not dictate the charging of them as separate assaults.
The authorities relied upon by the appellant do not lead to any different conclusion.[22]

In that connection his Honour referred to a number of authorities, including, most recently in the case of the High Court, Walshv Tattersall.

[22]Ibid [105].

His Honour then reviewed a number of cases in which the problem of single criminal activity or not had been raised. He said this:

[120] As Kirby J observed in Walsh, ultimately, what is presented is a question of fact and degree for decision in each case, citing R v Eades (1991) 57 A Crim R 151 , 156 — a case in which the applicant was convicted on a single count of drug trafficking based on the location of various packets of prohibited drugs in his house. On appeal it was held that there being no relevant separation in time or circumstance, there was no justification for a submission that there were separate offences which should have been charged in separate counts.
[121] Notwithstanding that the decision in each case will turn upon its own facts, it is instructive to consider how the problem has been resolved in other cases involving assaults.
[122] In R v Xu Dong Chen, unreported; SCt of Qld; 21 October 1997 the appellant appealed against two convictions of assaulting police officers. The police officers had been called to a Chinese medical centre, where they told the appellant to leave. There was an escalating altercation. The appellant pushed Constable ‘A’ hard in the chest. That was one assault. The officers attempted to arrest the appellant. He evaded them. Constable ‘B’ struggled with the appellant during which the appellant grabbed his genitals. That was a second assault. Constable ‘B’ tried to handcuff the appellant who swung the handcuffs around and struck Constable ‘A’ on the nose with them. This was another assault. The appellant spat at Constable ‘B’, hitting him on the cheek. This was an assault. A few seconds later, the appellant spat in Constable ‘A's’ face. That was an assault. Finally, having handcuffed the appellant with the assistance of the occupant of the neighbouring office, the police officers took him downstairs and put him in a police car. While being put in the police car, the appellant again spat on Constable ‘B’. That was an assault. The court said that thus during the one incident, six assaults could be identified and although the whole incident took minutes rather than hours, they were separated in time and were of different kinds. They occurred mainly in the premises, but also on the way to or in the police car.
[123] The court (Davies JA, Shepherdson and White JJ) said at 4:
‘There are no doubt cases in which, notwithstanding that offences could be charged separately, it is nevertheless permissible and even appropriate to prefer only one charge. One obvious class of such cases is that where the offence may be constituted by continuing conduct. But also where one act constitutes a number of offences (stealing a number of articles at one time) or where there are a number of similar acts, each constituting a separate offence, but in a short space of time — a flurry of blows, whether with or without a weapon or a succession of shots — there is, in most cases, little practical advantage in separating them and no loss of fairness to an accused in failing to do so.’ (Footnotes omitted)

[124] Their Honours noted that although the alleged assaults occurred within a short space of time and were part of a connected series of events, they were of different kinds, the evidence with respect to them differed both in quantity and quality and there were defences open to some which arguably were not open to others. The evidence was different in part because various witnesses were coming in and out of the premises and saw different parts of the incident; evidence of some of the witnesses supported the appellant's testimony that his spitting on Constable ‘B’ at the car was in response to being kicked several times in the leg by the Constable.
[125] Referring to Stanton v Abernathy and Walsh v Tattersall, their Honours acknowledged that courts have never managed to produce a technical verbal formula of precise application which constitutes an easy guide and the question will always be one of fact and degree for decision in each case. They concluded that:
‘Unlike those cases where events are so close in time and place that they can be viewed as one composite activity, the latent duplicity here, once exposed, left the appellant without knowledge of the particular act alleged as the foundation of the charge resulting thereby in a substantial miscarriage.’

[126] Stratis v Police, unreported; SCt of SA; No 6886; 7 October 1998 was an appeal to a single Judge of Supreme Court of South Australia from conviction by a Magistrate of one count of assault occasioning bodily harm. The appellant was a patron in a nightclub. The complainant was another patron. It was the complainant's evidence that the appellant struck him in the chest, causing him to fall backwards onto the floor. The complainant got up and the appellant punched him in the face with a clenched fist. The complainant collapsed to the floor and was dragged away to the toilet by his friends. While he was being carried away, the appellant struck him again. Witnesses gave conflicting accounts. The complainant's girlfriend, for example, said the complainant was first felled by a powerful straight leg kick from the appellant. With respect to a ground of appeal that the charge was bad for duplicity and the conviction bad for uncertainty, Wicks J, after referring to Merriman and Walsh v Tattersall, held (at [31]):
‘… the incident which occurred at the nightclub between the bar and the dance floor involving the pushing of [the complainant] followed by one or more punches to the head should be treated as constituting a single act of assault. It would be taking far too technical an approach to the subject to require the prosecution to analyse what occurred blow by blow and to treat each blow as a separate count.’

[127] However, his Honour considered the blow to the complainant's head while he was being taken to the toilet was sufficiently removed from the other act or acts of assault to be regarded as a separate incident and to be the subject of a separate count. His Honour concluded (at [38]):
‘… this is a case where the allegations relating to the assault near the bar of the dance floor area of the nightclub on the one hand and the assault while on the way to the toilet on the other, should have been particularised so as to distinguish one from the other. I am satisfied that this is an instance of 'latent duplicity' and that on that account, the conviction cannot stand.’

[128] Haskett v Police[2005] SASC 174 was another single Judge appeal from a conviction on one count of assault occasioning bodily harm, but in which a different outcome was arrived at. The prosecution case was relevantly that the appellant who had been a passenger in a car, angrily confronted the driver and passenger of another car with which they had nearly collided. He tore up the other driver's licence and threw the pieces on the ground. When the other passenger bent to retrieve them, the appellant hit him in the head several times with a rock. The other passenger fell to the ground. While he was lying there, the appellant kicked him several times. On appeal Doyle CJ rejected a submission the charge was bad for latent duplicity, saying (at [18]):
‘… on the evidence all of the alleged blows were struck by Mr Haskett within the space of a few seconds, perhaps within no more than 10 seconds. All of them were part of one course of conduct and constituted what any reasonable person would regard as a single incident. It would be artificial to treat each separate blow and each kick as a separate assault. It would be equally artificial to separate the blows from the kicks. In deciding whether a charge based on several acts occurring in the course of a single incident does give rise to latent duplicity, judgments of degree must be made. It is also relevant to consider whether the approach taken by the Prosecution is likely to be productive of unfairness or uncertainty at the trial. After considering all of these matters, and the relevant principles, I am satisfied that the Prosecutor was entitled to proceed as the Prosecutor proposed. This was, in substance, a single assault.’

[129] The present case is entirely distinguishable from R v Morrow and Flynn [1991] 2 Qd R 309, in which the convictions of the applicants were quashed because although they had been jointly indicted on one count of assault causing bodily harm, the evidence disclosed seven possible offences, some alleged to have occurred in a motel room and others in a police station, and at least four of which could not be said to be the same (that is, a single offence in terms of s 567 of the Criminal Code (Qld)).
[130] These cases are illustrative only because they show the application of principle to different circumstances.[23]

[23]Ibid [120]–[130].

Applying principle to the circumstances of the case, his Honour held that:

The facts upon which the presentment relied were so closely related in time and place as to comprise a single assault consisting of a number of applications of force.[24]

[24]Ibid [133].

Roberts-Smith JA did not mention, in his review of the decisions of other courts, R v Khouzame and Saliba.[25] That was a decision of the New South Wales Court of Criminal Appeal. Two men were convicted of aggravated sexual assault on evidence by the complainant that the men had sexually assaulted her in a number of ways during the course of a lengthy encounter. In the New South Wales Court of Criminal Appeal, the convictions were set aside. (D) Kirby J, with whom Ireland and Bell JJ agreed, adopted as the applicable principle the statement of (M D) Kirby J in Walsh v Tattersall that:

Save for statutory warrant and for the exceptional cases of continuing offences or facts so closely related that they amount to the one activity, separate offences should be the subject of separate charges.[26]

[25](1999) 108 A Crim R 170.

[26]Ibid 182 [76]. (Emphasis added).

His Honour concluded that, on the facts, actions alleged against the applicants could not be characterised as being so close in time and place that they were a composite activity. The acts of sexual intercourse by each applicant were separate and discrete. There were differences between the various acts of penetration. There was a question whether consent had been given in the initial stages of the offence. There was, in all, a rational basis why, had separate charges been laid, a jury might have convicted on some counts but not others.

Before coming to authorities in this Court, it is convenient to mention also Brinkworth and Anor v Dendy.[27] It was, as the Full Court of the Supreme Court of South Australia held, a case of patent duplicity. I mention it first because Doyle CJ was surely correct when he observed, having cited the passage in the judgment of Dawson & Toohey JJ in Walsh v Tattersall that I earlier cited, that –

The difficulty with the principles lies in their application to the facts in a case like this. It is attributable to the difficulty (perhaps impossibility), of producing ‘a technical verbal formula of precise application which constitutes an easy guide … as to whether the common law rule has been infringed’: Stanton v Abernathy(No 2) (1990) 19 NSWLR 656 at 666 Gleeson CJ, cited by Kirby J in Walsh v Tattersall (at 108).[28]

[27](2007) 97 SASR 416.

[28]Ibid 423, [26]. Brinkworth was, as I have said, a case of patent duplicity. In such a case, the application of relevant principles requires attention to the form of the presentment rather than to the evidence. But that is not to say that the principles differ.

I mention it also because Debelle J succinctly stated relevant principles, and commented upon the difficulty of their application in circumstances at the margin.[29]
[29]Ibid 427, [55].

I turn to decisions of this Court. In R v Yankovski,[30] the applicant was convicted on a count of rape. The complainant’s evidence was that he had penetrated her vagina whilst she was asleep; and that he continued to do so after she awoke and told him to stop. The Court held that there had been but one penetration – not an initial penetration and then further penetration after the complainant requested the applicant to stop - and that the jury had found absence of consent in respect of that penetration. It was irrelevant when, in the course of the penetration, the jury concluded that there was lack of consent.
[30](2007) 17 VR 315.

Yankovski, I should say, represented something of a highwater mark in artificiality in argument advanced in support of a contention of latent ambiguity. The case is more useful for the analysis of earlier decisions by Chernov JA, who gave the leading judgment.[31] Those decisions were particularly R v Trotter,[32] R v Cascone,[33] R v John Richard Walsh,[34] R v Senese,[35] and R v Rigoli and Rigoli.[36]
[31]Vincent and Redlich JJA concurred.
[32](1982) 7 A Crim R 8.
[33]Unreported, Court of Appeal, (Phillips CJ, Charles and Buchanan JJA), 4 June 1998.
[34](2002) 131 A Crim R 299.
[35][2004] VSCA 136.
[36](2006) 61 ATR 429.

In Cascone, the applicant was presented on four counts, on the second of which, a count of recklessly causing injury, he was found guilty. The complainant’s evidence was to this effect:

At about 9pm on Monday 20 February, [she] drove to the applicant's home and saw the applicant standing in the kitchen by the telephone. Her evidence was that she went to the front door and the applicant opened it. He then grabbed [her] hair and dragged her into the house. She said that she dropped her handbag in the process. The applicant said, ‘You fucking bitch, you phoned my ex-wife’. He locked the front door and proceeded to drag [her] by the hair into the dining-room via the kitchen. [She] said she was dragged for an estimated 20 to 30 feet. She was then made to sit on a chair by the dining-room table. She said that the applicant did not let go of her hair until she was seated. According to [her evidence], the applicant then said if she did not tell him everything that had happened in the conversation with his ex-wife, he would ‘punch her lights out’, and also said if she tried to escape he would ‘re-arrange her face’. She said he was standing close to her with a clenched fist.
The applicant then walked into the kitchen to make himself a cup of coffee at which [she] stood up. T he applicant told her to sit down again. He started to move towards her very quickly, at which point she tried to move around the dining-room towards the front door. The applicant followed her and told her to sit down, and when [she] said she did not want to do so, the applicant said ‘Okay, you can sit on the floor then’. She said that the applicant then grabbed her by the hair and pulled her down to the floor, and then picked up a chair which he brandished at her as she lay on the floor. She kicked at the chair to keep it off her. She told the applicant to stop, to give her a chance to sit on the chair and he did so.

The applicant gave evidence to quite different effect. On his account, the first instance of hair pulling never occurred, whilst the latter occurred accidentally when he reached out for the complainant’s shoulder for support.

There was no ground of appeal that the count on which the applicant was found guilty was bad for latent duplicity. There was, however, a complaint that the judge had misdirected with respect to a defence of accident. It was that ground which was made out. In the course of dealing with it, Charles JA said this:

[The] argument made by [counsel for the Crown] in this Court divided this alleged assault into two separate incidents, during both of which the complainant had been seized by the hair and pulled from one position to another. The consequence of this separation was, however, arguably to introduce into counts 1 and 2 a question of latent ambiguity, and hence of possible duplicity. If there were two distinct assaults, the evidence given by the applicant involved a denial that the first assault happened at all, and suggested that the second occurred by accident, or when the applicant was acting to defend himself. Accordingly, the jury may have convicted the applicant on count 2 on the basis of the evidence of either incident, while not having been convinced of his guilt on the other. The jury may have believed the accused's denial of the first incident and rejected his defence of accident, they may have rejected his version of both incidents, or they may have accepted his defence of accident and rejected his denial of the happening of the assault at the front door. If the evidence was to be viewed as having disclosed two incidents, either of which could have justified a conviction on the relevant count, the applicant could not know of which assault he had been found guilty; as to which, see Johnson v Miller (1937) 59 CLR 467, per Dixon J at 486-490; S v The Queen (1989) 168 CLR 266, per Dawson J at 274. The applicant was entitled to be informed of the particular act, matter or thing which was the foundation of the charge against him. If [counsel for the Crown’s] argument that there were two incidents is correct, it is possible that the jury were not persuaded by the complainant's evidence of what happened at the front door (which the applicant contested) but, in light of the applicant's admission that he pulled her hair in the dining-room, found the second assault proved beyond reasonable doubt. If so, a reversal of the onus of proof on the question of accident would have had critical importance. Alternatively the jury may have been led to disregard the applicant's denial of what happened at the front door, because they were persuaded to prefer the evidence of the complainant as to what happened in the dining-room. Either of these possibilities only goes to emphasize the difficulties which a misdirection on the subject of accident may have caused the defence.

Charles JA did not conclude that the circumstances revealed by the complainant’s evidence did constitute latent ambiguity in the charge. Hence, his use of the words ‘arguably’ and ‘if’. But if his Honour had concluded that more than one criminal activity was disclosed by the complainant’s evidence, it would not have been surprising. There was a considerable separation in time and circumstances between the two alleged episodes of hair pulling.

John Richard Walsh was a case in which the applicant was found guilty on a count of conspiracy to defraud and on three counts of perverting the course of public justice. The Crown case was that there was a conspiracy, in which the applicant joined, to induce the trustees of the Nauru Phosphate Royalties Trust, by dishonest means, to invest moneys in a scheme to trade in ‘Prime Bank Instruments’, and thereby to create for the conspirators the opportunity to pocket part of the moneys. The dishonest means were alleged to consist of a number of false reports made over a period of time. Each of the second to fourth counts, the Crown alleged, was constituted by conduct – written and/or oral – over different periods of time. The principal submissions made on the application for leave to appeal against conviction were that each count was bad for duplicity or tainted by latent uncertainty; or, as each count alleged more than one discrete act by the applicant, that the jury had been insufficiently directed on the need for unanimity, and so the trial miscarried.

Philips and Buchanan JJA commenced their analysis of authorities by stating that –

As we apprehend it, a count is bad for duplicity if it charges more than one offence; on the other hand, if the count charges but one offence and evidence is led of more than one instance of such offending, then the verdict, if against the accused, will be uncertain. This last is sometimes called latent uncertainty because it depends, not so much upon the terms of the count, as upon the case sought to be made by the Crown. Suffice it to refer in this connection to Johnson v Miller and Trotter.
In Johnson v Miller, the defendant was charged in the Magistrates Court in that he was the licensee of premises out of which certain persons were seen coming during prohibited hours. In line with the statute creating the offence, the complaint was amended to read ‘a certain person’ instead of ‘certain persons’, but the informant still sought to lead evidence that some 30 men were seen coming in or out of the premises between the times stated on the day in question.’ The magistrate held the complaint defective and dismissed it, a decision upheld in the High Court. Once amended to refer to only one person, the complaint conformed to the statute by charging only one offence (and so the charge was not bad for duplicity), but as the evidence led was of more than one person (and so of more than one offence) the complaint was tainted with uncertainty. ‘Had the complainant been willing to confine the evidence to one of 30, the uncertainty would have been removed; unconfined, the defendant was not properly apprised of the particular act, matter or thing alleged as the foundation of the charge’. (It may be observed in passing that that case gave rise to difficulty in part because the offence depended not upon any specific act or omission of the defendant himself but directly upon what in other circumstances would have been no more than evidence.)
In Trotter, the accused was charged with one count of indecent assault upon a boy but in the course of the trial the boy gave evidence of an assault in the bedroom and of an assault in the bathroom. The Crown made no election between the two and, when the jury found the accused guilty, the verdict was set aside on appeal on the ground that it was tainted with uncertainty. There was no way of knowing of which assault the jury had been persuaded; it might have been the first or the second or both, as each of the incidents relied upon, one in the bathroom and one in the bedroom, constituted, in itself, the offence as charged. Again there was no duplicity in the charge; the ambiguity arose out of the evidence. But in the course of the judgment the court also said that it was:
‘ ... impossible to know whether there was unanimity on the part of the jury in respect of one or other of the two acts of the indecent assault. All members of the jury might have been unanimous on the fact that the applicant had committed an indecent assault on [the boy], but some members of the jury might have arrived at that conclusion on the basis of the bathroom assault and others on the basis of the bedroom assault.’

This difficulty of discerning unanimity in the jury on what is critical to conviction is an aspect upon which [counsel for the applicant] seized in his submissions to us.[37] (Footnotes omitted)

[37]R v John Richard Walsh (2002) 131 A Crim R 299, 309-310 [40]-[42].

Their Honours concluded their analysis of authorities with this passage:

To sum-up the foregoing, it seems that the cases give rise to two situations at least (and if there be tension between them, this is not the case to resolve it, for it is only the second with which we are now concerned). The first is that exemplified by the cases concerning murder and manslaughter, where, when alternative legal bases of guilt are proposed by the Crown but depend substantially upon the same facts, there is no need for a direction on ‘unanimity’ about one or other or more of those bases, at least if they do not ‘involve materially different issues or consequences’. (How far in cases of murder or manslaughter this qualification extends -- having regard especially to Clarke and Johnstone which has been long accepted in Victoria and to the similar practice in New South Wales -- is of no present relevance.) The second situation is where one offence is charged, such as obtaining property by deception, but a number of discrete acts is relied upon as proof and any one of them would entitle the jury to convict. If those discrete acts go to the proof of an essential ingredient of the crime charged, then the jury cannot convict unless they are agreed upon that act which, in their opinion, does constitute that essential ingredient. In this type of case, much will depend ‘upon the precise nature of the charge, the nature of the prosecution's case and the defence and what are the live issues at the conclusion of the evidence’. When the charge is obtaining property by deception by means of misrepresentation, the making of the misrepresentation has been regarded as an essential ingredient of the crime charged. It is otherwise, however, where the crime is conspiracy to defraud and the means agreed upon by the conspirators to achieve that end is the making dishonestly of false representations. The agreement to make any particular representation is not regarded as an essential element of the crime, but merely a path to arriving at the objective of the conspirators, namely, obtaining an advantage by fraud.[38]

[38]Ibid 316-317, [57].

As statements of principle, and their application to the circumstances of the case before them, nothing that their Honours said was exceptional. But it casts no particular light on the concept of a single criminal activity.

I turn to R v Senese.[39] The applicant was found guilty of 25 counts of false accounting and two counts of theft.
[39][2004] VSCA 136.

The theft counts alleged that on two specified dates the applicant stole specified amounts of money being the proceeds of certified deposits belonging to shareholders in one of his companies.

Chernov JA, with whose reasons Winneke P and Vincent JA agreed, identified the ‘essential complaint’, as advanced initially by the applicant’s counsel, this way:

[It] was that the verdicts on those counts are unsafe and unsatisfactory because they suffer from latent duplicity, given the alternative ways in which they were left with the jury. These counts, it will be recalled, allege that on or about 22 November 1995 and 28 March 1996 respectively, the applicant stole the proceeds of the Westpac and NatWest certificates of deposits. The applicant’s argument under cover of this ground was that the Crown opened its case in relation to those counts on the basis that the theft took place at the time when the applicant redeemed the certified deposits and deposited the proceeds in ECCCL’s cash management account, namely, on the two dates to which reference has just been made, yet in its closing address the Crown relied on an additional basis for conviction, namely, that, if there was no theft by the applicant at the time the proceeds were deposited into ECCCL’s account, the applicant wrongfully appropriated them when he started to use the money on 24 November 1995. [Counsel] pointed out that, in the written material that was provided to the jury in the black folder, her Honour spoke of the principal issue in respect of counts 25 and 26 being whether the applicant acted dishonestly at the time he paid the proceeds of the deposits into the company’s cash management account, but in her verbal charge the learned judge reminded the jury that the Crown case on counts 25 and 26 was that the money was stolen either when it was paid into the cash management account or when the applicant first started ‘dipping into it’. The judge explained in her charge that, according to the Crown case, even if the applicant’s ‘intention on 22 November 1995 was honest by the time he started dipping into it on 24 November and following it, he starts treating it as his own … and therefore he appropriated it at that stage.’
[Counsel] submitted that, given the different ways in which each of counts 25 and 26 was left to the jury, the resulting convictions on those counts is uncertain, or is bad for latent duplicity, or latent multiplicity. Counsel argued that each withdrawal by the applicant from the cash management account on and after 24 November 1995, was separate in time and circumstance from the alleged theft that was said to have been constituted by the deposit of the proceeds of the certificates of deposit into the cash management account. Thus, it was said by way of example, the theft on 22 November 1995 was a separate offence from the offences constituted by each of the periodic withdrawals from that account which commenced two days later. Counsel claimed that the vice in these convictions is that it is not possible to know, in respect of the conviction on count 25, for example, whether the jury were unanimous that the theft took place on 22 November or 24 November, or whether some jurors considered that the theft occurred on 22 November while other jurors concluded that the dishonest appropriation occurred at a later time.[40]

An allegation of recent invention on the part of an accused may be founded upon any one or more of a number of circumstances, at least including:

(1) Failure of accused’s counsel to cross-examine a Crown witness as to matters later put in evidence by the accused.

(2) Cross-examination of a Crown witness to specific effect which is contradicted by the later evidence of the accused.

(3) The presence of a discrepancy between the opening of counsel for the accused and the evidence of the accused.

(4) Internal contradictions within the evidence of an accused – for example, between things said in examination-in-chief and cross-examination.

The first of the above situations involves a breach by counsel for the accused of the rule of fairness encapsulated in Browne v Dunn.[54]
[54](1893) 6 R 67.

If the prosecutor intends to submit in closing address that the failure, discrepancy or contradiction tells against the credibility of the accused, particularly as evidencing recent invention, the prosecutor should put the same to the accused for his or her explanation. That is a second aspect of the rule in Browne v Dunn.[55]
[55]R v Costi (1987) 48 SASR 269, 270 (King CJ); R v Manunta (1990) 54 SASR 17, 27 (Legoe J); R v Scott [2004] NSWCCA 254 [62] (Hulme J); MWJ v The Queen (2005) 80 ALJR 329, 339 [38] (Gummow, Kirby and Callinan JJ); R v Thompson [2008] VSCA 144, [115] (Redlich JA).

Because it is beguilingly simple to reason from recent invention to want of credibility to rejection of evidence, it has been made clear by this Court, and by courts of equivalent jurisdiction, that the steps in such a chain of reasoning are ‘fraught with peril and should therefore be used only with much caution and circumspection.’[56] Such a problem has been said to apply in cases of failure to cross-examine a Crown witness,[57] and in cases of discrepancy between the opening of an accused’s case and the evidence of the accused.[58]
[56]R v Manunta (1990) 54 SASR 17, 23 (King CJ).
[57]R v Manunta, R v Birks (1990) 19 NSWLR 677, 691 (Gleeson CJ), R v Thompson [2008] VSCA 144.
[58]R v Abdallah (2001) 127 A Crim R 46, 52 [24] (Sheller JA).

Because such a chain of reasoning is fraught with peril, and should be used with much caution and circumspection, it has been said that, in considering whether a miscarriage of justice has occurred, a court should consider (1) the admissibility and content of any cross-examination of an accused; (2) the use made of the cross-examination in the prosecutor’s closing address; and (3) whether a direction was required.[59] The last-mentioned enquiry should consider, in the event that a direction was given, whether it was adequate to warn of the perils of the path of reasoning which I have been discussing.
[59]Oldfield v The Queen (2006) 163 A Crim R 242, 254 [42] (Giles JA), accepted by Redlich JA in R v Thompson [2008] VSCA 144 [113].

None of this is to deny that it is legitimate to cross-examine a witness about a failure, discrepancy or contradiction of the kind to which I have referred.

There is a question, if a prosecutor does not comply with the second aspect of the rule in Browne v Dunn,[60] whether there is an absolute prohibition against the jury reasoning along the otherwise perilous but permissible path. In R v Thompson,[61] Redlich JA concluded that because the prosecutor had failed to comply with the rule the trial judge should have precluded the prosecutor submitting in closing address that the applicant’s evidence had been made up as he went along.[62] Whether that proposition is of universal application, and how it applies if the prosecutor touches upon, but does not squarely confront, the accused with an alleged failure, discrepancy or contradiction need not be decided in this case.
[60]See [103].
[61][2008] VSCA 144.
[62]Ibid [117].

Where recent invention is alleged, it amounts to an allegation that the witness had lied in his or her evidence. Absent any suggestion that the asserted lies indicate consciousness of guilt, their significance is limited to the witness’s alleged want of credibility. In Abdallah[63] it was submitted for the applicant that the trial judge should have given a Zoneff[64] direction. Giles JA observed that –

The majority in Zoneff did not suggest that in every case where there is a suggestion that the accused has lied, such a direction may well be adaptable to a situation where there is a risk of misunderstanding about the significance of possible lies.[65]

It was, however, unnecessary for the Court to decide whether a Zoneff direction should have been given in that case.

[63](2001) 127 A Crim R 46.

[64](2000) 200 CLR 234, 245 (Gleeson CJ, Gaudron, Gummow and Callinan JJ).

[65]Ibid 255 [34].

In R v Thompson,[66] the problem was different. The judge did not give a direction upon what he called the Browne v Dunn point. But his Honour did give a Zoneff direction. Neave JA considered that there had been no miscarriage because, inter alia, the Zoneff direction had sufficiently warned the jury about the use of lies as a basis for drawing inferences.[67] Redlich JA considered, to the contrary, that the particular direction[68] would have made the matter worse from the applicant’s standpoint.
[66](2008) VSCA 144.
[67]Ibid [72].
[68]Ibid [128].

In the present case, as will be seen, the learned trial judge gave a very full direction concerning matters which the prosecutor agitated. The situation is thus unlike Abdallah, in which the trial judge directed the jury, in effect, that the only explanation which had been suggested for the discrepancy between counsel’s opening and the evidence of the applicant was that the applicant ‘can’t get his story straight’; and unlike Thompson, in which there was no directly pertinent direction. Later, I will say something about the asserted need for a Zoneff direction in the particular circumstances of this case

It is necessary to consider the applicable principles by reference to the circumstances of the case. I begin with the cross-examination of the applicant.
Cross-examination
(1) The applicant gave evidence that he and Ms Muntz had agreed, three days before the night of the stabbings, that he would move out. Asked in cross-examination if any such agreement had been put to Ms Muntz, the applicant said that he had ‘no idea’, that he had told his barrister about the agreement, and that he had not just made it up.

(2) Further to the issue raised by (1), the prosecutor put it to the applicant in cross-examination that his counsel had suggested to Ms McGuire in cross-examination that he had said to Ms Muntz, on the night of the stabbing, words to the effect ‘I suppose you want me to fuckin leave, do you?’ The applicant denied saying such a thing. His evidence was that he had said ‘I’ll leave tonight’. Why no such statement had been put in cross-examination of Ms Muntz or the other woman present on the night was, said the applicant, ‘something you have to take up with my barrister’. It was not ‘just changing [his] story in motion’.

(3) The applicant stated in cross-examination that, contrary to his counsel’s cross-examination of Ms Muntz, he had not left his work bag near the front door. His barrister, he said, had been mistaken when he cross-examined to that effect. He had informed the barrister of the mistake.

(4) The applicant was cross-examined to suggest that his counsel had put it to Ms Muntz that she had thrust a knife which she was holding in a downward motion at him. The witness stated that in fact Ms Muntz had the knife towards his face, and that he had pushed it down. He did not address the question of the accuracy or otherwise of the cross-examination of Ms Muntz.

(5) The applicant was cross-examined about his account that, in responding to a knife attack by Ms Muntz, he had bumped her and that she had struck the door frame of the toilet whilst, he supposed, she went ‘flying backwards’. It was put to him that Ms Muntz had not been cross-examined to suggest that she had struck the door frame as she fell back after the alleged bump.

The prosecutor’s final address

In the course of her final address, the prosecutor submitted, inter alia, that –

(1) The applicant’s evidence that he had agreed to leave three days before the murder was the first time the jury had heard such a thing.

(2) Ms McGuire had agreed that the applicant had said that he supposed Ms Muntz wanted him to leave.

(3) The applicant had downplayed how angry he had been on the night of the stabbings. He had given evidence that he wasn’t angry and that he didn’t recall banging on the table.

(4) The applicant had given evidence that he wasn’t going to Ms Muntz’s 50^th birthday party anyway, that wild horses would not have dragged him there – the prosecutor’s implication being that it was a false account designed to distract the jury from concluding that he was angered by being unwanted at the forthcoming birthday party, and that he had made the remarks attributed to him by Ms Muntz – that is, that if he was not going to the party, no one would go – shortly before twice stabbing her.

(5) There was the ‘mystery of the work bag’. Where it had been, according to the cross-examination of Mrs Muntz, gave the lie to the proposition that the applicant was in the process of leaving the house when he was confronted by Ms Muntz.

(6) The applicant’s account of events was ‘palpably ridiculous’. Despite there being two stab wounds the applicant was wanting to say that it was a ‘mishap in the course of [Ms Muntz] wielding a knife at [him]’. In the case of the first stab wound, his account had been ‘absolutely ludicrous’.

(7) The applicant’s account about Ms Muntz and he ‘going up against the door frame’ after he bumped her was an ‘incredible scenario’.

The Charge

The learned trial judge relevantly gave the jury the following directions:

You will have noticed that in the summary of the evidence that I have given to you, the summary of the evidence of the accused about the events in question and the events preceding the events in question, that there were occasions where the accused in cross‑examination was questioned on the basis that he was giving evidence that had not been put to Crown witnesses, notably Ms Muntz, by his barrister or he had given evidence inconsistent with facts that had been put by his counsel to Crown witnesses. In the outlines of argument I referred to the discrepancies that the Crown identified of that kind. The Crown has argued that when you look at those, effectively the accused's evidence was a dishonest work in progress. That argument involves the drawing of conclusions, dare I say it, inferences from the conduct of the accused's case by the accused's counsel on instructions from the accused.
To understand the argument I need to say something to you about a very ancient rule, it is known as the rule in Browne v. Dunn. It requires that the version of facts relied upon by a defendant in a case should be put by his counsel accurately to any prosecution witnesses who may be in a position to give evidence about the subject. The obligation is to do it accurately and in a sufficiently explicit form to enable the witness to provide a response while the witness is still in the witness box. Now there are obvious practical reasons for that, if you are going to be running trials you don't want to be having witnesses coming back and forth. The witness is there, you want to process the evidence in one go. The other aspect of it is that it is described as actually being fair to the witnesses concerned.
Sometimes counsel can go overboard and put matters in excruciating detail to witnesses and judgments can differ as to how much detail should be put. But in essence defence counsel is under an obligation to put the substance of the instructions received from the client, in this case the accused, as counsel understands them to those witnesses who may be in a position to give evidence relevant to those matters.
The argument for the Crown is that you are invited to infer that those matters of which the accused gave evidence and which were not put to relevant Crown witnesses were matters on which the accused did not in fact give instructions to Mr Lincoln, and had in fact been recently invented for the purpose of his evidence. In relation to the evidence he gave, which it is said contradicted the matters put to Crown witnesses, counsel for the prosecution has invited you to infer that he changed his evidence from the instructions he gave to his counsel, and again it was evidence invented by him for the purpose of this trial. Obviously these are significant attacks on the credibility of the accused.
Let me just remind you of the particular points that were referred to by counsel for the prosecution in her final address to you.
These are matters the Crown argues were not put and invite you to infer he had not given instructions: his evidence that he and Ms Muntz had agreed three nights before that he would move out, this was not put to Ms Muntz. The accused said that he told his counsel and it was not something he had made up. His evidence that he said in the presence of Muntz and McGuire, "I'll leave tonight", was not put by his counsel. He said counsel for the Crown would have to take that up with his counsel. He denied changing his story.
The matters put to him said to be inconsistent with what was put to Crown witnesses referred to in final submissions by counsel for the Crown were, firstly, that he did not say to Ms Muntz in the presence of Birute McGuire at the home, ‘I suppose you want me to fucking leave, do you?’, something his counsel had put to Birute McGuire or Ms Muntz, I forget which.
The other matter was his evidence that he put his work bag near the door into the laundry, whereas his counsel put to Ms Muntz that he placed the bag near the door. As to that in fact the accused said counsel got that wrong.
I think in relation to the other matter I just mentioned what the accused said in evidence was, ‘I'll leave tonight.’
The argument is obviously open to the prosecution, and it is open to the prosecution to ask you to consider it, but you need to approach it with very great care and I will attempt to explain why.
You would need to be satisfied in each case that there had been a failure by counsel to put matters, or that there was inconsistency between the instructions given by the accused to his counsel and his later evidence before you could draw the inference that's suggested. The major difficulty in drawing any inference is that we weren't there when the instructions were given, and in most instances we don't have any direct evidence as to what the instructions were to the accused's counsel. Of course, we can't put [counsel] in the witness box. In addition, there can be a variety of explanations for these situations arising: there might be an error of judgment on the part of counsel on what needed to be put and what did not, about how much detail to put, it may be the original instruction lacked clarity which later emerged in the evidence of the accused, it may be that forensic pressures on counsel led to inexactitude in the framing of questions. It may have simply been overlooked, bearing in mind that counsel have to remember a lot of things in these cases.
An apparent inconsistency between the evidence given and matters apparently put on instructions may in some cases arise from the matters I have mentioned or may simply reflect a misunderstanding between counsel and the client. For these reasons you understand you need to be very cautious before placing reliance on these matters.
I think at the end of the day what needs to be said to you about handling this evidence is this: taking the situation where counsel for the prosecution has argued that you should draw the inference that counsel failed to put matters to Crown witnesses, because the accused did not give counsel instructions about them, such an inference adverse to the accused should not be drawn unless you are satisfied that there was a failure of counsel to put matters to Crown witnesses and that this arose because counsel did not have instructions from the accused about them, about those matters about which he later gave evidence.
Looking at the other situation where what you have is an argument that the accused changed his evidence, because he gave evidence different from that which was put by his counsel to Crown witnesses, you shouldn't draw any adverse inferences from those inconsistencies unless you were satisfied that he had given such instructions to his counsel in those terms, in which counsel put the matters to the Crown witnesses.
Finally on this, could I say if in your deliberations you find yourself in the position that any inferences attacking the credibility of the accused arising from these arguments of the prosecution are an essential part of any reasoning process that will justify a conviction, you cannot take such inferences into account unless satisfied beyond reasonable doubt that there was such a failure or an inconsistency. That follows, obviously, from the fact that you can't be satisfied beyond reasonable doubt of the guilt of anyone in that situation unless you are satisfied beyond reasonable doubt that there was such a failure in consistency in that link in the chain of your reasoning process. I hope that's reasonably clear.
I think the great fundamental rule to apply is, of course, you cannot be satisfied of guilt unless you are satisfied beyond reasonable doubt and everything flows from that, and if you just bear that in mind when you are considering all the evidence you can't go wrong.
Could I also say that what I've just said applies both to the alleged omissions by counsel and the alleged inconsistencies between evidence of the accused and counsel's puttage, as we call it, referred to by counsel for the prosecution in her final address, and if you are considering any other omissions and inconsistencies which you may consider arise between the cross‑examination of Crown witnesses and the evidence of Mr Heaney.

There was no exception to this direction, just as there had been no complaint of unfairness by counsel in connection with the prosecutor’s final address.
Resolution of Ground 2
In my opinion, for the reasons which follow, ground 2 fails.

First, the cross-examination of the applicant was for the most part unexceptional. The first, second and third matters all addressed a central focus of the applicant’s evidence – denial of the Crown case that he had become very angry by the turn of the birthday party discussion, and by his being encouraged to leave, and that in his angry state had made the remarks attributed to him by Ms Muntz before he twice stabbed her. His denial involved the affirmative propositions that he had decided to leave days earlier, that he was not angered by the birthday party discussion, that during conversation that night he volunteered that he would leave, and that he had placed his work bag near the door in preparation for leaving.

It can be said, with respect to the second matter, that it was put to Ms McGuire, and she agreed, that the applicant had said to Ms Muntz ‘Do you want me to move out?’, rather than ‘I suppose you want me to fuckin’ leave, do you?; and that Ms Muntz had said ‘yes’. But the difference is marginal.

It may also be observed that, after Ms Muntz had given evidence of the applicant asking ‘I guess you don’t want me in your fucking [house] either, do you?’, to which she had assented, it was put to her in cross-examination ‘I think that you said that he said he was going to move out, is that right?,’ to which she had assented. The cross-examination was not a restatement of the witness’s evidence. It was not put to her that her actual evidence was erroneous. At its highest, the cross-examination had some connection with the applicant’s denial, in cross- examination, that he had said to Ms Muntz that he supposed she wanted him to leave, and that she assented; and with his assertion that he had said he would leave that night.[69]
[69]Later in cross-examination, it was put to Ms Muntz that the applicant told her he was going to leave. She denied it. The puttage was not precise, but was closer to the evidence given by the applicant which, as the prosecutor alleged, had not been put to either Ms Muntz or Ms McGuire.

In all, the cross-examination directed to what I have called the second matter was both very pertinent and not unfair.

Cross-examination directed to the third matter was on its face quite justified. Late in the trial, after final addresses, counsel for the applicant stated that the error was his. That requires consideration of the charge.

Concerning the fourth matter, Ms Muntz was cross-examined to the suggested effect.

With respect to the fifth matter, the prosecutor was correct in her assertion that Ms Muntz had not been cross-examined about this aspect of the applicant’s account.

I should say that the fourth and fifth matters were not of significance. Taken alone, they would have provided a flimsy basis, at best, for a submission that the applicant’s evidence was in whole or part recent invention. It would have been better had the prosecutor focused, for the purposes of a submission to that effect, upon what I have called a central focus of the applicant’s evidence. But I do not consider that the cross-examination was thereby objectionable.

I turn to the prosecutor’s final address. Counsel for the applicant identified matters upon which the prosecutor relied. They went beyond the matters mentioned by the judge in his charge. Of this, more later.

Broadly speaking, the first, second and fifth of those matters had been raised in cross-examination.

I go the third matter. It accurately stated the applicant’s evidence in cross-examination, which did not sit at all comfortably with cross-examination of Crown witnesses suggesting that the applicant was very angry in the period leading up to Ms McGuire leaving the house. Further, it did not sit comfortably with his evidence-in-chief, in which he admitted that he and Ms Muntz had been ‘guilty of yelling at each other at various times’.

Counsel submitted that discrepancies between cross-examination of the Crown witnesses as to the applicant being angry and banging on the table and some of his evidence to contrary effect had not been put to him for his comment. So, it was said, the prosecutor breached the second aspect of the rule in Browne v Dunn. But in this case, the applicant’s own evidence was internally contradictory. Which version of the applicant’s evidence was to be relied upon to decide whether the prosecutor breached the rule? I doubt that the rule could sensibly apply in such a case. I should add, from the perspective of fairness, that it is very improbable that highlighting still more discrepancies between parts of the applicant’s evidence and his counsel’s cross-examination of Crown witnesses would have assisted the applicant. Any such cross-examination was likely to have emphasised apparent shifts in the applicant’s evidence.

I turn to the fourth of the matters mentioned by the prosecutor – pertaining to the forthcoming birthday party. The applicant did give an account as described. It was put to Ms Muntz in cross-examination that the applicant had not said the things which she attributed to him; and it was put to the applicant in cross-examination that he had said what she attributed to him. Issue was well and truly joined. Further, the applicant’s evidence was about his state of mind. What more could the prosecutor have done than put to him that he had allegedly said?

Concerning the sixth matter mentioned by the prosecutor, applicant’s counsel submitted that it had been unfair for the prosecutor to describe the applicant’s account as ‘absolutely ludicrous’. In my opinion, the submission was insubstantial. The gist of the prosecutor’s submission was simply that the applicant’s account, sensibly considered, was an obvious and wholly improbable concoction.

The seventh matter mentioned by the prosecutor was a matter of detail. It tied in with the sixth item of cross-examination which I earlier mentioned. It was at the periphery, and unlikely to have excited a conclusion of recent invention. But in my view it did not make the prosecutor’s address unfair.

I go to the directions given by the learned judge. If there had been fault in the cross-examination of the applicant, or in the prosecutor’s final address, I should have concluded that the directions were a quite sufficient antidote.

His Honour identified the gist of what may be called the ‘inconsistency’ attack on the applicant’s credit – his late account, as it was claimed, of an earlier decision to leave, of volunteering to leave on the night and of preparing to leave. His Honour, on the other hand, did not advert to a number of other matters which arguably were adverse to the applicant’s credit, and which interrelated with the identified matters. So, for example, his Honour did not draw attention to the internal contradictions in the applicant’s evidence upon the question whether he became angry because of what was discussed. In that respect the directions were very favourable to the applicant.

Next, the learned judge warned the jury in strong terms against acting upon inconsistencies in drawing an inference adverse to the applicant in respect of his credibility. He paraphrased what had been said by King CJ in Manunta. Indeed, he went somewhat further, for he directed the jury that in some circumstances it should not draw an inference adverse to the applicant concerning his credibility unless satisfied to the criminal standard that there was a failure or inconsistency as alleged.

Counsel for the applicant criticised the direction last-mentioned. He submitted that when the learned judge directed the jury that ‘if … you find yourself in the position that any inferences attacking the credibility of the accused arising from these arguments … are an essential part of any reasoning process that will justify a conviction, you cannot take such inferences into account unless satisfied beyond reasonable doubt that there was such a failure or inconsistency’, his Honour had given the impression that what was an attack on credibility could be an avenue to conviction. I do not agree. His Honour always treated the issue as one of credibility. What he did was to recognise the reality that, if the jury regarded the applicant’s credit as destroyed, his account of the critical events would fall away, and the jury was the more likely to accept Ms Muntz’s evidence. The direction which his Honour gave was not misleading. It was favourable to the applicant.

Going to another matter, it is the fact that his Honour did not squarely tell the jury that counsel for the applicant had conceded, in respect of the ‘mystery of the work bag’, that the fault in cross-examination had been his. By the time that the learned judge gave his pertinent direction, counsel had informed him of that fact, and his Honour had accepted what he was told. It would definitely have been better had his Honour told the jury about counsel’s statement. But I could not accept that his Honour’s failure to mention the matter occasioned a miscarriage. In cross-examination, the applicant said, when challenged, that he had told counsel about the mistake. His Honour specifically reminded the jury of that answer. Further, his Honour stressed that for any number of innocent reasons counsel might put a question which turned out to be at odds with his client’s later evidence. Again, the positioning of the work bag was incidental rather than central to the principal matters of inconsistency and failure upon which the Crown relied.

I should finally mention counsel’s submission that the learned judge should have given a Zoneff direction. I do not agree. Whilst an inference of recent invention does imply the telling of lies, no such inference could be drawn before there was an investigation of the inconsistencies and failures which were alleged. Did they exist? What explanations might exist for them? His Honour’s directions, in my respectful opinion, very fully explained why any inconsistencies or failures which the jury identified might have any one of a multiplicity of explanations unrelated to the applicant telling (recently invented) lies in his evidence. That was a quite sufficient warning in the circumstances. If the jury concluded that there were inconsistencies and failures, and excluded possible explanations other than the applicant had given evidence which was a recent invention, it is scarcely possible that the applicant’s case would have been advanced by a direction that people lie for different reasons.

In the event, I would refuse the application for leave to appeal against conviction.

The sentence application

The applicant pursued a single ground of appeal: that the sentence was manifestly excessive.

Counsel for the applicant conceded, rightly, that this was a very serious offence by a man with a bad criminal history. He submitted, however, that –

1. Statistically, the sentence was towards the top of the range.
2. There had been an absence of planning and premeditation.
3.Ms Muntz had suffered serious injury, but had made a full recovery.
4.Whilst the applicant did have a bad criminal history, this offence was of a different kind to past offending, in that it had involved direct violence.

5.        The applicant had himself sustained injury.
6.        The applicant was in ill-health.
7.        The applicant still had prospects of rehabilitation.

Counsel for the Crown submitted that the learned sentencing judge had taken all relevant matters into account. His Honour had found that this was a serious example of a serious offence. The applicant’s intoxication, counsel submitted, had not reduced his culpability, which was of a high order. Further, the case was one in which there had been time enough for the applicant to consider the situation before he acted. Further still, the applicant had shown no remorse.

In my opinion, the sentence imposed was within the proper exercise of judicial discretion.

I respectfully agree with the opinion of the learned sentencing judge that this was a very serious example of a very serious offence, by a man who evidenced no remorse. It involved the use of a weapon, not once but twice. The jury must have concluded that the applicant’s account was untruthful, and that he had attacked an unarmed and defenceless woman in her own home.

The learned judge found that the events occurred essentially as Ms Muntz described them – including the remarks which she attributed to the applicant. His Honour concluded that the likely explanation for the applicant’s acquittal on count 1 was that the applicant was significantly intoxicated, so that the jury was not prepared to attach the required significance to his statements. One may accept that analysis. It suggests that the verdict was merciful, at least because the wounds were multiple and deep – particularly the abdominal wound. The applicant was to be sentenced for the crime of which he was convicted, and none other. But his Honour’s analysis confirms the accuracy of his characterisation of the offence.

The learned judge rightly held that general and specific deterrence were important sentencing considerations in this case. As to the latter, the applicant had often been imprisoned; and yet he had offended again. Again, his Honour rightly viewed denunciation and protection of the community as important concerns.

I turn to matters going in mitigation.

The learned judge found that the applicant suffered a serious - probably deliberately self-inflicted - wound to his chest in the incident; and that he had been left with permanent scarring to his back and side. His Honour held that the sequelae should be taken into account as a form of punishment.

Again, his Honour accepted that a longstanding injury to the applicant’s knee would be likely to make his time in prison more difficult.

As for rehabilitation, the learned judge noted the applicant’s extensive criminal history, which included long periods of incarceration for armed robberies. He noted that the applicant had longstanding problems with drug and alcohol abuse. He recognised that the applicant had taken steps to rehabilitate himself after release from prison in 2002 – getting continuous work, getting away from drugs. He concluded that the applicant had shown ‘some encouraging signs of rehabilitation’. Nonetheless, ‘his prospects should be viewed with caution because of his history, his lack of remorse and the difficulties he will face in the future’.[70]
[70]His Honour was referring to the applicant’s problem with alcohol abuse, to his difficulty in dealing with stress, and to the impact of his knee injury upon his ability to work in the building industry.

No complaint is or could be made that his Honour did not address a relevant sentencing consideration. I cannot perceive in the sentence imposed an apparent underweighing of any factor going in mitigation. It can be said that the sentence was, statistically, towards the higher end of sentences imposed for the offence of causing serious injury intentionally over the period 2002-2003 to 2006-2007. But, as Nettle JA pointed out in DPP v Zullo,[71] sentences for this offence had not reflected a significant increase in the maximum penalty; so that, as his Honour said, ‘now, “the very top of the range” is 15 years’. It need not always be the case, his Honour observed, that a sentence for this offence may not ever exceed the sorts of sentences that are imposed for less serious forms of manslaughter.[72] Further, statistics can never be more than a guide – with a tendency to be a self-fulfilling guide at that - to the appropriate sentence in a particular case. Recourse, whether it be to sentences at ‘the upper end,’ or to ‘average’ or ‘mean’ sentences, in my view is of limited utility.

The present case involved the commission of an offence of a high order of seriousness and culpability,[73] with modest matters going in mitigation – this being in the context of an offence with a maximum penalty of 20 years’ imprisonment.

[71][2004] VSCA 153 [10].

[72]Ibid [11].

[73]The applicant’s intoxication did not reveal the contrary. Indeed, as his Honour pointed out, the applicant ‘was well aware of the effect of alcohol upon him.’

In the event, I would refuse the application for leave to appeal against sentence.

REDLICH JA:

I have had the benefit of reading in draft the reasons of Ashley JA. I agree that the applications for leave to appeal against conviction and sentence should both be refused for the reasons he has given.

KELLAM JA:

I have had the benefit of reading in draft the judgment of Ashley JA. For the reasons stated by him I agree that the applications for leave to appeal against both conviction and sentence should be refused.

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[2009] VSCA 74

17 April 2009