Schroder v The King

SUPREME COURT OF VICTORIA
COURT OF APPEAL

S EAPCR 2023 0194

KRIS SCHRODER	Applicant
v
THE KING	Respondent

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JUDGES:	PRIEST, TAYLOR and KAYE JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	21 March 2024
DATE OF JUDGMENT:	21 March 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 42
JUDGMENT APPEALED FROM:	DPP v Schroder (Unreported, County Court of Victoria, 14 July 2022, Judge Quin)

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CRIMINAL LAW – Appeal – Conviction – Applicant convicted of attempting to obtain a financial advantage by deception, perjury and related offences – Alleged Will forgery – Application for extension of time within which to seek leave to appeal against conviction – Whether prosecutor impermissibly relied on absence of motive to lie – Whether prosecution impermissibly relied on incriminating conduct – Whether prosecution impermissibly relied on tendency evidence – Whether judge erred in failing to give direction on admissions – Grounds of appeal not capable of succeeding – Application for extension of time refused – Palmer v The Queen (1998) 193 CLR 1; Burns v The Queen (1975) 132 CLR 258 – Evidence Act 2008 s 97.

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Counsel
Applicant:		Ms G Connelly
Respondent:		Ms K Hamill
Solicitors
Applicant:	Law and Advocacy Centre for Women
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA
TAYLOR JA
KAYE JA:

Introduction

Maree Elizabeth Hart, a registered nurse, collapsed at her Kew home on 3 February 2015. The next day, 4 February 2015, she underwent a right-sided partial temporal lobectomy, and was found to have an aggressive grade 4 glioblastoma brain cancer. A little over a year later, on 20 February 2016, Ms Hart died. At the time of her death, Ms Hart’s estate was estimated to be worth $2,254,604.88.
In 1994, Ms Hart and the applicant, a psychologist, had formed a relationship. At that time, Ms Hart was living in a residential property that she owned in Newport. She and the applicant commenced living together at the Newport residence in 1998. Later, in May 2006, Ms Hart and the applicant purchased another residential property at 125 Willsmere Road, Kew, as tenants in common, Ms Hart’s share being 80 per cent, and the applicant’s share being 20 per cent.
Ms Hart had executed a Will in 1998 (‘the 1998 Will’), naming as beneficiaries the applicant; her niece, Leah McDermott; and her nephew, Darryl Keeley. The applicant claimed that Ms Hart had subsequently executed another Will on 25 April 2014 (‘the 2014 Will’), which the applicant submitted for probate through solicitors in April 2016. The 2014 Will purported to bequeath the entirety of Ms Hart’s estate to the applicant, who was also named as executrix and trustee.
In circumstances we will later discuss in more detail, the 2014 Will was alleged to be a forgery. As a result, police arrested the applicant on 8 August 2018, and charged her with a raft of offences connected to the alleged execution of the 2014 Will.
Following a contested trial in the County Court, on 14 July 2022 a jury found the applicant guilty of a number of offences relating to the 2014 Will, including: attempting to obtain a financial advantage by deception (one charge – charge 1); perjury (four charges – charges 2, 3, 4 and 8); attempting to pervert the course of justice (one charge – charge 5); and subornation of perjury (two charges – charges 6 and 7). The jury also found the applicant not guilty of one charge of attempting to pervert the course of justice, charge 9. Subsequently, the applicant pleaded guilty to two further charges of perjury, relating to evidence that the applicant had given in VCAT[1] concerning Ms Hart’s financial affairs.[2]
[1]Victorian Civil and Administrative Tribunal.
[2]On 28 November 2022, the trial judge sentenced the applicant to a total effective sentence of four years’ imprisonment, with a non-parole period of 20 months. See DPP v Schroder [2022] VCC 2071.
The applicant now seeks an extension of time within which to seek leave to appeal against the convictions returned on the jury’s verdicts.[3] If granted an extension of time, the applicant seeks to challenge the convictions on four grounds as follows:
1.A substantial miscarriage of justice was occasioned by:
(a) the jury being invited to consider that two prosecution witnesses had no motive to lie; and
(b) the jury not receiving a direction [in] accordance with section 44L of the Jury Directions Act in circumstances where there were substantial and compelling reasons for such a direction to be given.
2.There was a substantial miscarriage of justice occasioned by:
(a) the prosecutor inviting the jury to use evidence of incriminating conduct when that evidence had not been admitted as such; and
(b) the jury being given no direction about incriminating conduct as mandated by section 21 of the Jury Directions Act.
3.A substantial miscarriage of justice was occasioned by the prosecution leading evidence that Ms Hart was ‘meticulous’ and ‘organised’ in managing her affairs, and inviting the jury to conclude she was therefore unlikely to have made a homemade will, when that evidence was not admitted or admissible as tendency evidence.
4.A substantial miscarriage of justice occurred due to the jury receiving no direction about how they could use evidence of the applicant’s alleged admission to forging the 2014 will, in accordance with Burns v The Queen, in circumstances where there were substantial and compelling reasons for such a direction to be given.
[3]See s 313 of the Criminal Procedure Act 2009. See also Madafferi v The Queen [2017] VSCA 302, [11].
For the reasons that follow, we would refuse an extension of time.

The prosecution case

So as to understand the issues raised by the proposed grounds, it is necessary to summarise the prosecution case, and the evidence given at trial in support of it, in more detail.
As we have said, the applicant formed a relationship with Ms Hart in 1994, and the two commenced living together in 1998. In 2006, they purchased the Kew residence, the applicant holding a 20 per cent interest and Ms Hart the remainder. Ms Hart died from cancer on 20 February 2016. Some years earlier, in the same year that she and the applicant commenced living together, Ms Hart had executed the 1998 Will, leaving her estate in equal shares of one third each to the applicant, Leah McDermott and Darryl Keeley.
On 1 April 2016, the applicant signed a contract for the sale of the Kew property. The sale price was $1,505,000, and the contract was subject to a grant of probate with respect to Ms Hart’s estate. Further, on 11 April 2016, the applicant was paid the sum of $838,260.98, being the death benefit payable on Ms Hart’s superannuation policy with HESTA.
During April 2016, the applicant also holidayed in Thailand. There she met up with old friends Kenneth Ewington and Warren Rogan, who were in an intimate personal relationship. The prosecution alleged that, in the course of the holiday, the applicant told Ewington and Rogan that Ms Hart had not left a Will. Further, the prosecution alleged that the applicant went on to tell them that she had prepared a Will in Ms Hart’s name — the 2014 Will — and that she had forged both their signatures as attesting witnesses (‘the Thailand conversation’).
Upon returning from Thailand, the applicant retained a conveyancing company to apply for a grant of probate of the 2014 Will, the application being advertised on the Supreme Court website on 29 April 2016.
The 2014 Will purportedly executed by Ms Hart had not been prepared by a solicitor. As we have mentioned, the prosecution case was that the applicant forged the 2014 Will, and, as part of that exercise, forged Ewington’s and Rogan’s signatures as attesting witnesses. Unsurprisingly, given the circumstances, none of Ms Hart’s family members was aware of the existence of the 2014 Will — which purported to bequeath the whole of Ms Hart’s estate to the applicant — until it was advertised on the Supreme Court website.
On 13 May 2016, upon becoming aware of the existence of the 2014 Will, Ms Hart’s sister, Christine Keeley, filed a caveat with respect to it in the Probate Jurisdiction of the Supreme Court. Thereafter, on 6 June 2016, the applicant applied to the Probate Jurisdiction of the Supreme Court for a grant of probate. As part of that application, the applicant exhibited the 2014 Will, this being the first that Darryl Keeley, Leah McDermott or Christine Keeley knew of the existence of that purported Will. The prosecution case was that, by applying for probate of the forged 2014 Will, knowing of the existence of the legitimate 1998 Will, the applicant attempted to deprive Mr Keeley and Ms McDermott of their lawful entitlements under the 1998 Will (charge 1 – attempting to obtain a financial advantage by deception).
On 6 June 2016, the applicant affirmed an affidavit prepared for her by her solicitors, which exhibited a copy of the 2014 Will. The affidavit was witnessed by a solicitor with the firm. In the affidavit, the applicant falsely deposed that Ms Hart ‘left a Will dated 25 April 2014 which is now produced and shown to me and marked “B” and which is unrevoked’. At the time she affirmed her affidavit, the applicant knew that at least part of it was false (charge 2 – perjury).
A little over a week later, on 15 June 2016, the applicant affirmed two other affidavits in support of her application for a grant of probate. In both of those affidavits, the applicant deposed falsely that Ms Hart left a valid Will dated 25 April 2014 (charges 3 and 4 – perjury).
The next day, 16 June 2016, Christine Keeley withdrew the caveat she had filed the previous month, and Mr Keeley lodged his own caveat as a beneficiary under the 1998 Will.
On 17 June 2016, the Supreme Court granted the applicant Letters of Administration Pendente Lite in respect of the 2014 Will, enabling her to complete the sale of the Kew property.
Sometime prior to 26 July 2016, the applicant contacted both Ewington and Rogan. She told them that they needed to prepare affidavits to support the validity of the 2014 Will, and told them the information that needed to be included in the affidavits (charge 5 – attempting to pervert the course of justice). On 26 July 2016, Ewington and Rogan attended a firm of solicitors in Kyneton to swear the affidavits the applicant had asked them to prepare. In those affidavits they both falsely deposed that they had witnessed Ms Hart sign the 2014 Will at 25 Willsmere Road, Kew, on 25 April 2014 in the presence of the applicant (charges 6 and 7 – subornation of perjury).
At some point after the affidavits had been sworn and forwarded on, a solicitor telephoned Ewington and inquired why his and Rogan’s signatures on their respective affidavits did not match those on the Will which they claimed to have witnessed. Ewington told the solicitor that was because they had not in fact witnessed the 2014 Will, and had not signed it.
On 15 September 2016, by consent, the applicant’s application for a grant of probate with respect to the 2014 Will, and Mr Keeley’s caveat proceeding, were both dismissed. Two months later, on 15 November 2016, the applicant was granted probate of the 1998 Will.
On 7 February 2017, the applicant deposed in an affidavit filed in separate VCAT proceedings with respect to Ms Hart’s financial affairs that Ms Hart had made both the 1998 Will and the 2014 Will (charge 8 – perjury).
Since it will have relevance to ground 2, we pause to note that charge 9, attempting to pervert the course of justice, upon which the applicant was acquitted, related to a meeting in May 2017 between the applicant and Ewington in which the applicant allegedly asked that he and Rogan ‘stick to the story’ that they had witnessed the 2014 Will.
Ewington and Rogan each pleaded guilty on 20 September 2017 to one charge of perjury relating to the affidavits they affirmed on 26 July 2016. Each was sentenced to a Community Correction Order of 12 months’ duration. Both gave undertakings to give evidence against the applicant at her trial.

The defence case

The applicant gave evidence in her own defence. Her evidence was that Ms Hart made both of their Wills on 25 April 2014, before they left on a trip to Africa, since Ms Hart was ‘highly anxious about the trip’ after hearing of an attack in ‘Aroobi’ [scil, ‘Nairobi’]. The applicant said, however, that she did not see Ms Hart make the Will, since she was at work at the time.
In her evidence, the applicant asserted that, during her trip to Thailand, she stayed in a ‘condo block’ next to Ewington and Rogan, ‘walking distance away’. On one occasion she was with them at a restaurant as part of a ‘whole group’ of friends, but did not speak to them. She ‘never spent one minute alone’ with them. The applicant’s evidence was that she did not tell the two men she had ‘created’ Ms Hart’s 2014 Will, and she did not tell them that she had forged their signatures on the Will. Indeed, her evidence was that she did not create the 2014 Will, and did not forge Ewington’s and Rogan’s signatures.
The applicant also gave evidence that, in late May or early June 2016, she found the 1998 Will in Ms Hart’s office, inside a tub that was used as a ‘recycle bin’ or ‘shredding bin’. She said that she had no concern at all about the validity of the 2014 Will. Moreover, she did not ask Ewington and Rogan to prepare affidavits, that request having come from the solicitor.
Lolita Bobbin also gave evidence in the defence case. Ms Bobbin’s evidence was that she had known Ms Hart for around 28 years. On Anzac Day 2014, Ms Hart telephoned her and asked whether Ms Bobbin’s partner Andrew could sign-off on some legal papers. Ms Bobbin queried if the call was about a Will, but the applicant replied, ‘I can’t tell you’. In the end, however, Ms Bobbin and her partner could not organise a time to meet the applicant.
Tracey Chapman was also called as a witness for the defence. Ms Chapman said that she attended Ms Hart’s wake and overheard Ewington and Rogan speaking to another woman about Ms Hart ‘signing the Will’. Her evidence was that she heard the woman respond, ‘you’re crazy I wouldn’t have done that’.

Ground 1: Motive to lie

In support of ground 1, counsel for the applicant submitted that the evidence of Ewington and Rogan was ‘central’ to the prosecution case. Among other things, their evidence went to establish, first, that they had not witnessed Ms Hart sign the 2014 Will; secondly, that the applicant had forged the Will and forged their signatures as attesting witnesses; and, thirdly, that the applicant had suborned them to perjury by having them provide false affidavits.
The defence case was, however, that at all material times the applicant did not know the 2014 Will to be anything other than genuine. In advancing that ‘defence’, the applicant’s counsel put to both Ewington and Rogan that the Thailand conversation did not occur, and that their evidence in that regard was a lie. Defence counsel suggested to each of them that their motive for lying was to lay the blame for their perjury at the applicant’s feet. Indeed, in his final address to the jury counsel argued that Ewington and Rogan had
a real interest in speaking to the police and saying the things that they said in putting Kris Schroder in in order to save their own skins. They had a real interest in helping the police, in helping the prosecution in this case, putting the blame onto somebody else, someone who is available to be prosecuted for this. Nobody could prosecute Maree [Hart] and by putting Kris in they could avoid going to prison.
In his final address, the prosecutor made the following submissions about the evidence of Ewington and Rogan:[4]
Now, when they gave their evidence, they were talking about things that occurred a fair while ago, that is the visit to Thailand in 2016, where was this said, where were you, how long did Schroder stay, did she come to your house or what did she do. The detail you might find was reasonably accurate but there would, you’d expect, be some difficulty in precise recall but as far as the core issue of their evidence is concerned, namely what was said to them implicating them in this, they were as clear as crystal on that. ‘Yes, we were told about it’.
Now, there’s nothing in this for Ewington and Rogan to get involved in this coverup. They were implicated from that moment onwards and that’s what they told you in their evidence that this is what she said.
[4]Emphasis added to this and following passages.
And when summing up the addresses of counsel in her Charge to the jury, the judge said:
In respect of the prosecution it was suggested to you that you should look at the chronology of events and the way things came about. In respect of Ewington and Rowan …, well, what benefit was it to them making this up? Consider the kind of witnesses that they were, make an assessment of them. The account that they provided was believable in the sense that not so phased by the information provided by the accused as being signatories then may be a bit more concerned when the accused contacted them regarding the swearing of the affidavits but that soon thereafter when they were challenged by her solicitors and obvious that it was not their signatures that they fessed up. They immediately said, ‘Yes, it’s not us’, and that they had nothing to benefit at that time.
In this Court, counsel for the applicant submitted that the impugned portion of the prosecutor’s address set out above, in combination with the emphasised portion of the judge’s Charge, invited an impermissible form of reasoning; that is, the jury were invited to consider that Ewington and Rogan had no motive to lie, ‘and the absence of any demonstrable motive was a matter they could take into account in determining the applicant’s guilt’. Counsel acknowledged that no exception to the Charge was taken by trial counsel and that no direction under s 44L of the Jury Directions Act 2015 (‘JDA’) was sought. Nonetheless, in the circumstances of this case, counsel submitted, there were substantial and compelling reasons for a direction to be given, the absence of which invited a significant risk that ‘the jury would misuse the evidence concerning motive to lie’.
We consider that the submissions of the applicant’s counsel cannot be accepted.
In Palmer,[5] a majority of the High Court held that an accused should not be cross-examined about the reasons a complainant might have for lying. Among the vices engendered by such cross-examination is that it might invite irrelevant speculation as to why a complainant may have lied, in circumstances where an accused person will usually be unable to advance an explanation for why he or she may have lied.[6] Further, the absence of a motive to lie does not enhance the credibility of a witness. And significantly, cross-examination about the absence of a complainant’s motive to lie has the potential to undermine the burden of proof. This principle has also been applied to a prosecutor’s final address, so that it has been held to be improper for a prosecutor to ask a rhetorical question about whether the complainant has a motive to lie. In cases in which a question of this kind has been raised in the prosecutor’s closing address, it may be necessary for the trial judge to direct the jury to disregard it.
[5]Palmer v The Queen (1998) 193 CLR 1 (‘Palmer’).
[6]Ibid, 7–9 [8], 10 [11] (Brennan CJ, Gaudron and Gummow JJ).
Unlike Palmer, the present case did not involve the applicant being cross-examined about a complainant’s motive — or the absence of a motive — to lie. Instead, the present was a case in which a motive to lie was put squarely — and quite legitimately[7] — to Ewington and Rogan, that motive ultimately being relied upon by defence counsel in his final address.
[7]Ibid, 9–10 [10].

In circumstances in which defence counsel had, by his cross-examination of Ewington and Rogan, advanced a motive for them to give untruthful evidence, we fail to see that the prosecutor’s address infringed any principle to be derived from Palmer (or, for that matter, any other relevant principle). Addressing the jury as he did, the prosecutor did no more than identify that the credibility of Ewington and Rogan was a critical factor that had been put in issue by the defence, before then advancing arguments to meet what he reasonably anticipated would be put by defence counsel concerning their evidence. For the prosecutor to do so was, in our view, entirely proper.
Furthermore, as to the submissions concerned with the absence of a direction with respect to the witnesses’ motive to lie, s 44L of the JDA permits defence counsel to request a direction under s 12 if the issue of whether a witness for the prosecution has a motive to lie is raised during a trial. Such a direction must inform the jury that it is the prosecution’s obligation to prove that the accused is guilty, and that the accused does not have to prove that the witness had a motive to lie. Defence counsel did not seek such a direction, and, so far as we can discern, there is nothing that would suggest that the failure to do so (or take exception to the judge’s Charge on the topic) was other than a rational forensic decision, particularly given that counsel asked for — and the applicant received the benefit of — an ‘unreliable witness’ direction under s 32 of the Act. Hence, the judge directed the jury as follows:
The reliability of the evidence of Kenneth Ewington and Warren Rogan may be affected by the fact that in return for assisting the prosecution in these proceedings they received a less severe sentence than they would otherwise have. You will recall the evidence that each of them gave that they pleaded guilty to a charge of perjury at the Castlemaine Magistrates’ Court and that they gave an undertaking to the magistrate to give evidence in these proceedings. A reason for doing that was to avoid going to gaol.
I must inform you that whilst it is common and proper for judges to give sentencing benefits to cooperating witnesses, the receipt of a benefit is a circumstance that you must take into account in assessing the reliability of a benefiting witness. This is because the desire to receive a sentencing benefit may motivate a witness to give false evidence in order to qualify for a reduction in his own sentence.
In addition, once a sentencing benefit has been received it may provide a strong incentive for a witness to stand by a false, mistaken or misleading account. This is because the Director of Public Prosecutions can go to the Court of Appeal and seek to take back that benefit if she considers the witness has failed wholly or partly to fulfil his or her undertaking to assist the prosecution.
The law says every jury must take the potential unreliability of the evidence as a witness who is criminally concerned in the events before the court and who has received a sentencing benefit into account when considering their evidence. You must take this potential unreliability into account in determining whether you accept either of their evidence at all and, if you do accept it in whole or in part, in deciding what weight to give the evidence.
In light of the direction set out immediately above, we consider that there was no substantial and compelling reason for the judge to give any direction under s 44L.[8] The jury would have well understood that Ewington and Rogan had a motive to maintain what the defence claimed to be a lie, and would have well understood that the asserted motive might well impinge on the reliability of their evidence. Indeed, the jury was directed in unmistakable terms that they must take this potential unreliability into account in determining whether to accept the whole or any part of Ewington’s and Rogan’s evidence, and, if they did so, in deciding what weight to give the evidence.
[8]See s 16(1) of the JDA.
Ground 1 cannot be upheld.

Ground 2: Incriminating conduct

In essence, ground 2 contends that the prosecution relied on things done by the applicant as incriminating conduct, yet the judge gave the jury no direction on the topic as required by s 21 of the JDA.
Section 18 defines conduct to be ‘the telling of a lie by the accused, or any other act or omission of the accused, which occurs after the event or events alleged to constitute an offence charged’; and incriminating conduct to be ‘conduct that amounts to an implied admission by the accused … of having committed an offence charged or an element of an offence charged’ (or which negates a defence to an offence charged). By virtue of s 19, the prosecution must give notice of its intention to rely on incriminating conduct, although the notice requirement may be dispensed with in specified circumstances. Section 20 in turn generally provides that, if the prosecution has not given the notice required by s 19, it ‘must not rely on evidence of conduct as evidence of incriminating conduct’. And s 21 prescribes mandatory directions that a judge must give to the jury if the prosecution ‘relies on evidence of conduct as evidence of incriminating conduct’.
Counsel submitted that the prosecution for the first time sought to rely on certain conduct by the applicant as incriminating conduct in the course of the prosecutor’s final address. The relevant passage occurs in the second paragraph of the following passage of the prosecutor’s final address, in the course of which he was dealing with the roles of Ewington and Rogan:
So we’ll move on now to their role in all of this. In 2017, the police approached them. Up until then, it’s a non-event, as I say, in their lives. They’ve been told that they’re signatories, they’re not happy about that, they’ve been asked to make an affidavit and they’ve done that and not happy about that. They’re then challenged, they own up to the perjury and that’s the end of the matter. It lies dormant until 2017, May 2017 in fact when the police contact them and want to have a chat to them about this matter, about their signatures.
And actually enough you would imagine that they are concerned about it and there’s this conversation between Ms Schroder and then about it, she comes up to see them, she in fact gets in touch with the police wanting to know what it’s all about and you might find that interesting. Why would she – if this is all above aboard, why would she want to be following it up? It’s got no issue for her. But it was an issue for her because by 2017, she knew publicly that is that the 2014 will was dodgy. She knew that by then.
Counsel for the applicant submitted that the prosecutor’s submissions invited the jury to view the applicant’s contact with police and apparent interest in the investigation as an implied admission that she was aware the 2014 Will was not genuine. In other words, he invited them to use it as evidence of incriminating conduct.
We do not accept the submissions advanced by the applicant’s counsel.
It will be remembered that charge 9, attempting to pervert the course of justice, upon which the applicant was acquitted, related to the meeting in May 2017 during which the applicant urged Ewington and Rogan to ‘stick to the story’ that they had witnessed the 2014 Will.[9] Charge 9 was formulated as follows:
The Director of Public Prosecutions charges that KRIS SCHRODER at Kyneton in Victoria on or about the 28th day of May 2017 with intent to pervert the course of justice, did an act which had the tendency to pervert the course of justice, in that she told KENNETH EWINGTON and WARREN ROGAN to attest to the truth of their Affidavits in relation to the Affidavits they each affirmed on 26 July 2016, upon becoming aware that Victoria Police Investigators wished to interview KENNETH EWINGTON and WARREN ROGAN in relation to the said Affidavits.
[9]See [23] above.
It is clear that, rather than relying upon it as being a separate or distinct incident of incriminating conduct, the prosecutor in the impugned passage set out above simply was referring to those circumstances that were pivotal to charge 9. That is, knowing that the 2014 Will was not genuine, and that Ewington and Rogan had, at her insistence, falsely deposed that it was, once she became aware of the police interest in the matter, the applicant sought to have Ewington and Rogan adhere to their false account. It was that conduct which was an element of the charged offence; that is, ‘upon becoming aware that Victoria Police Investigators wished to interview [Ewington and Rogan] in relation to [their] Affidavits’, the applicant ‘did an act which had the tendency to pervert the course of justice, in that she told [Ewington and Rogan] to attest to the truth of their Affidavits’.
In our view, when his remarks are properly characterised and understood, the prosecutor did not invite the jury to consider the applicant’s contact with police as a post-offence admission or other incriminating conduct. Instead, the prosecutor was simply addressing matters relevant to establishing the elements of the charged offence. Hence, the provisions of ss 18 to 21 of the JDA were not engaged.
Ground 2 must fail.

Ground 3: Evidence of tendency

Ground 3 turns on certain evidence elicited from Leah McDermott and Darryl Keeley in the course of the prosecution case that Ms Hart was ‘meticulous’ and ‘organised’ in managing her affairs, in order to found an inference that she was therefore unlikely to have produced the ‘homemade’ 2014 Will. The applicant’s counsel contended that the evidence was tendency evidence, caught by the provisions of s 97 of the Evidence Act 2008, yet no tendency notice was filed by the prosecution, and the trial judge was not called upon to determine whether the evidence had significant probative value.
The evidence led from Ms McDermott was as follows:
PROSECUTOR: Now, Ms McDermott, you’ve seen the two wills in question, haven’t you?---Yes, I have.
And the first one you may have observed was prepared by a solicitor?--Yes.
What’s the second one?---Appears to be a homemade will.
Yes. In terms of managing of her affairs, what was [Ms Hart] like, your aunt like?---She was quite meticulous in matters that were of importance or legal matters that I’m aware of. She would make sure that everything was in order. She was quite detailed in that sort of fact.
Yes?--- So, it did – it surprised me when I saw a handmade will because that just to me wasn’t her.
And the evidence given by Mr Keeley was:
PROSECUTOR: I want to ask you something about your aunt’s management of her affairs. What can you say about her ability to manage her affairs, not during that latter part but in general, during her life?---She was extremely capable. She’s – her – my sister would know more about her financial acumen than I do but I certainly know she’s very organised, and she was very – very good at creating a – if she was here buying anything or selling anything, she’s very good at getting a good deal. She was very well in order. She would do things, I think, you would say, with a good degree of diligence.
Section 97(1) of the Evidence Act 2008 provides:
(1) Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person’s character or otherwise) to act in a particular way, or to have a particular state of mind unless —
(a) the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party’s intention to adduce the evidence; and
(b) the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.
It is clear enough that the purpose for introducing the impugned evidence was to establish that Ms Hart was meticulous in the handling of her affairs, and had a tendency towards organisation and order, thus rendering it unlikely that she would have created a last minute, homemade Will. On the assumption that the evidence therefore theoretically was properly characterised as being tendency evidence falling within the purview of s 97, it is impossible to say that any substantial miscarriage of justice was occasioned by its introduction.
It is noteworthy that, although the prosecution gave no notice under s 97(1)(a) of its intention to introduce the evidence, its introduction provoked no objection from defence counsel. That is understandable, since the evidence plainly had significant probative value.
We have no doubt that, had defence counsel objected to the impugned evidence on the basis that the notice requirements in s 97(1)(a) had not been adhered to, the trial judge would have exercised power under s 100(1) to dispense with the notice requirements. Indeed, we have no doubt that, had defence counsel objected to the introduction of the evidence under s 97(1)(b), the trial judge would have ruled that the evidence had significant probative value, and carried with it little or no prejudice.
By virtue of s 55(1) of the Evidence Act 2008, relevant evidence ‘is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue’. Section 56(1) in turn provides that, except as otherwise provided by the Act, relevant evidence is admissible. In the Dictionary to the Act, the ‘probative value’ of evidence is defined to be ‘the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue’. By reason of s 97(1), in order to be admissible, tendency evidence must — either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence — have ‘significant probative value’. Evidence will have significant probative value ‘if it could rationally affect the assessment of the probability of the existence of a fact in issue to a significant extent’.[10]
[10]IMM v The Queen (2016) 257 CLR 300, 314 [46] (French CJ, Kiefel, Bell and Keane JJ).
One of the principal facts in issue in the present case was whether the 2014 Will had been forged by the applicant. The applicant contended that the 2014 Will — allegedly created without professional help at the last minute before a trip to Africa — was produced by Ms Hart.[11] In those circumstances, it is plain that the evidence that Ms Hart was meticulous in the handling of her affairs, and had a tendency towards organisation and order, bore significantly on the likelihood — or the unlikelihood — that Ms Hart would have been involved in the creation of a hasty, amateurish, homemade document, notwithstanding its importance to her personal and financial affairs.
[11]We note that, under cross-examination by the prosecutor, the applicant conceded that the 2014 Will was a ‘fraud’ or a ‘fake’, but asserted that it was one for which Ms Hart was ‘totally responsible’.
Ground 3 is without substance.

Ground 4: Absence of a direction on admissions

Under cover of ground 4, counsel for the applicant contended that the applicant made an alleged admission to Ewington and Rogan of having forged the 2014 Will, which should have prompted the judge to have given the jury a Burns direction,[12] despite trial counsel not having requested such a direction under s 12 of the JDA.
[12]Burns v The Queen (1975) 132 CLR 258, 262.
The applicant’s counsel submitted that the Thailand conversation — during which the applicant was said to have ‘confessed’ to Ewington and Rogan that she had forged the 2014 Will and their signatures on it[13] — was a key piece of evidence in the prosecution case. The confession provided direct evidence that the applicant knew the 2014 Will was not genuine. Both Ewington and Rogan were, however, challenged in cross-examination about it. Given its importance, counsel submitted, the jury ought to have been directed that, before they could use the evidence of the admission, they had to be satisfied both that the applicant had made it and that it was true. Although such directions were not sought by the applicant’s counsel under s 12 of the JDA, there were substantial and compelling reasons for the directions to be given,[14] and the failure to do so led to a substantial miscarriage of justice.
[13]See [11] above.
[14]See s 16(1) of the JDA.
Counsel for the respondent submitted that it was not surprising that a Burns direction was not given, since neither counsel nor the judge treated the relevant evidence as evidence of an admission. The ‘better view’ of the evidence, counsel submitted, is that it constituted an aspect of the furtherance of the applicant’s criminal scheme. It was a step which was preparatory to the offending. In essence, it was evidence of the recruitment of Ewington and Rogan, who would later go on to make affidavits at her behest to perfect her fraud. As such, counsel submitted, it is more accurately characterised as being an aspect of the offending, rather than distinct evidence of an admission.
It is noteworthy that the judge directed the jury on the ‘clear conflict’ between Ewington’s and Rogan’s evidence on the one hand, and the applicant’s on the other, and instructed the jury that there were ‘four broad conclusions’ they might reach about the applicant’s evidence:
If you think it is true then you will find her not guilty. If you are not sure whether [the applicant’s] evidence is true but think it might be then you will have a reasonable doubt about the prosecution’s case and again you will find the accused not guilty. Similarly if you merely prefer the evidence of Ewington and Rogan to [the applicant’s] evidence, then you must find [her] not guilty.
The judge then went on to give the jury the unreliable witness warning earlier referred to.[15]
[15]At [39] above.
In those circumstances, the jury would have understood that, given her denials about the Thailand conversation, they could not use evidence of the applicant’s statements in proof of her guilt unless satisfied beyond reasonable doubt that she had made them, and that they were true. That being so, it is understandable that defence counsel would have seen no need for a separate and distinct Burns direction.
Ground 4 cannot succeed.

Conclusion

Since none of the proposed grounds could be upheld, it would be futile to grant an extension of time.
The application for an extension of time within which to file a notice of application for leave to appeal against conviction will be refused.
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[2024] VSCA 42

21 March 2024