Swan v The King

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2023 0205

TANYA SWAN	Applicant
v
THE KING	Respondent

---

JUDGES:	BEACH, KENNEDY and KAYE JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	15 October 2024
DATE OF JUDGMENT:	18 October 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 244
JUDGMENT APPEALED FROM:	[2018] VCC 2208 (Judge Hogan)

---

CRIMINAL LAW – Extension of time – Application for extension of time to file application for leave to appeal against conviction – Delay of five years – No adequate explanation for delay – Proposed grounds of appeal not sufficiently arguable – Application for extension of time in which to file leave to appeal against conviction refused.

Madafferi v The Queen [2017] VSCA 302, applied.

CRIMINAL LAW – Appeal – Conviction – Applicant convicted on two charges of obtaining financial advantage by deception – Evidence of previous untruth told by the Applicant on oath as to knowledge of misrepresentations – Evidence adduced as incriminating conduct evidence – Submissions by prosecution in final address suggesting use of evidence to prove tendency –Trial judge gave anti-propensity warning to jury – Whether direction sufficient to preclude impermissible use of evidence by jury – Whether substantial miscarriage of justice – Jury deliberation – Judge answered questions from jury on use of evidence in reaching verdicts – Whether judge pressured jury – Whether direction amounted to impermissible perseverance direction – Proposed grounds of appeal not sufficiently arguable to warrant extension of time.

Black v The Queen (1993) 179 CLR 44, considered – R v De Simone [2008] VSCA 216; Aulsebrook v The Queen [2019] VSCA 239; Issakidis v The Queen (2019) 379 ALR 292; Conway v The Queen (2000) 98 FCR 185; R v Flavel [2001] NSWCCA 227, referred to.

---

Counsel
Applicant:		Mr R Nathwani SC with Ms F Fox
Respondent:		Ms D Piekusis KC with Mr G Buchhorn
Solicitors
Applicant:	SLKQ Lawyers
Respondent:	Abbey Hogan, Solicitor for Public Prosecutions

BEACH JA
KENNEDY JA
KAYE JA:

On 21 September 2018, the applicant was convicted, by the jury empanelled on her trial, of two charges of obtaining a financial advantage by deception. Following a plea, the applicant was sentenced, on 13 November 2018, to a total effective sentence of 12 days’ imprisonment, followed by a three year Community Correction Order, with a further sentence of 6 months’ imprisonment, wholly suspended for a period of three years.
On 16 November 2023, the applicant filed a notice of application for leave to appeal against conviction on two grounds. As that application was made almost five years after the expiration of the time prescribed by s 275 of the Criminal Procedure Act 2009, the applicant has also filed an application for extension of time within which to file the notice of application for leave to appeal.
It is convenient, first, to outline the basis for the application for an extension of time. That application is opposed by the respondent, on the basis of the length of delay, and the lack of proper explanation by the applicant for that delay.

Application for extension of time

The application for an extension of time is supported by an affidavit deposed by the applicant’s instructing solicitor, Ms Sandra Gaunt. In summarising its content, it must be noted, first, that the affidavit is significantly lacking in appropriate information as to the reasons proffered for the delay, and, secondly, that the assertions contained in it are not supported by any relevant material.
In the affidavit, Ms Gaunt deposed that, following the applicant’s conviction and sentence, the applicant obtained an advice by trial counsel before the expiration of the 28 day appeal period. The applicant was apparently informed that an appeal was unlikely to be successful.
Ms Gaunt deposed that the applicant, at that time, was ‘still in a state of shock’ as to the outcome of the trial, and that she was unable to process what to do, as a result of her combined mental and physical conditions. The applicant instructed Ms Gaunt that, as a result of her diabetes, she had been in and out of hospital due to stress levels. There had also been ‘ongoing proceedings and communications’ regarding repayment of the debt and repossession of the properties in question by the Westpac Bank. Those matters resulted in the applicant’s ‘focus being shifted’ to ensuring that she retained her properties. The applicant then endeavoured to approach other lawyers for a second opinion, but she was unable to do so because she lacked funds.
Ms Gaunt next deposed that, on 14 June 2023, she herself was approached by counsel and introduced to the applicant. Ms Gaunt then set out in her affidavit the steps that were taken, between 14 June 2023 and 16 November 2023, to obtain advice from counsel, and to commence preparation of this application for an extension of time.
The principles, that apply to the application for an extension of time, have been explained in a number of decisions of this Court. For present purposes, they are sufficiently set out in Madafferi v The Queen[1] in the following terms:
The applicant carries the burden of persuading this Court that an extension of time should be granted. When considering the application, it must be acknowledged that time limits exist for sound reasons. Among those reasons is the desirability of achieving finality in criminal proceedings with reasonable expedition (consistently, of course, with the imperative of correcting substantial miscarriages of justice). The Court has a broad discretion whether to grant an extension of time, scrutiny being invited of the reasons for the delay and the merits of the proposed appeal. Although the exercise of the discretion whether to extend time must always be informed by what the interests of justice require in the particular circumstances of the case, the length of the delay — and the reasons for it — and the prospects of success should the extension be granted, are relevant (but not necessarily decisive). The reasons for the delay and the merits of the proposed appeal will not necessarily be in equipoise. Thus, where the merits of the putative appeal are very good, but the explanation for the delay is poor, the court may incline towards granting an extension. Where the merits of the proposed appeal are very poor, however, even a satisfactory explanation for the delay might not justify an extension. The discretion must, as we have said, be exercised according to the individual facts of each case.[2]
[1][2017] VSCA 302 (‘Madafferi’).
[2]Ibid [11] (Priest, Hansen and Coghlan JJA).
In applying those principles, the starting point is that, in the context of the prescribed 28 day time limit for commencement of appeal against conviction, the delay of five years in this case is, by any measure, exceptionally long. A delay of that length necessarily calls for a detailed explanation, which provides an acceptable excuse.
In the present case, the affidavit of Ms Gaunt, in support of the application for extension of time, contains neither a detailed explanation for the delay, nor does it proffer any acceptable excuse for it. Rather, as we have noted, the affidavit lacks information, and contains generalised assertions that are not supported by any appropriate evidence or other material.
Without traversing the whole of the affidavit, the following examination of it is sufficient to demonstrate its significant insufficiency.
In paragraph 8 of the affidavit, Ms Gaunt deposed that, following her conviction and sentencing, the applicant was ‘still in a state of shock’ as to the outcome of the trial, and she could not properly process it because of her ‘combined mental and physical conditions’. No detail was provided, concerning the nature and extent of those ‘mental and physical conditions’. Nor was any medical or other report provided to describe those conditions. The statement, that the applicant was ‘in and out of hospital’ due to her stress levels, and as a result of her diabetes, does not reveal when the applicant was admitted to hospital, for how long she was an inpatient at the hospital, or the nature of the condition in respect of which she attended hospital.
Paragraph 9 of the affidavit deposes that there had been ongoing proceedings and communications concerning claims for repayment and repossession of properties by Westpac Bank. It is asserted that that had resulted in the applicant’s focus being ‘shifted’ to retaining the properties. It is incomprehensible how the civil litigation, which concerned the loans, which were the subject of the criminal proceeding, could have so overwhelmed her that she could not take the relatively straightforward step of instructing solicitors to commence an appeal in the present matter.
Paragraph 10 of the affidavit states that the applicant (at some stage) endeavoured to approach other lawyers for a second opinion, who were unable to assist her because of ‘lack of funding’, and that the applicant had instructed her lawyers that she was not able to privately fund the appeal at the time ‘due to a number of personal pressures and stressors’ she was then experiencing. The content of that paragraph is conspicuous by the absence of any detailed information relating to the applicant’s financial position, the time at which she endeavoured to approach other lawyers, and the pressures and stressors that, in some way, precluded her from funding the appeal. Nor does it contain any explanation why the applicant did not seek assistance, from Legal Aid, for her proposed appeal.
Even accepting the explanations, to which we have referred, at their highest, they fall far short of providing any appropriate explanation for the delay of five years that has taken place since the applicant’s sentence. In short, the applicant in the present case has failed to proffer any appropriate explanation or excuse for that delay.
In those circumstances, and applying the principles outlined in Madafferi, it would only be appropriate to grant an extension of time in the present case, if we were satisfied that there was real merit in either of the proposed grounds of appeal sought to be relied on. For the reasons that follow, we are not so satisfied. On the contrary, neither ground is sufficiently arguable to warrant the grant of leave to appeal, if the applicant were granted an extension of time in the present case.

The application for leave to appeal

The application for leave to appeal is based on two grounds, namely,
Ground 1:
A substantial miscarriage of justice occurred because the learned trial judge erred in failing to consider ss.94-101 Evidence Act 2008 in respect of the evidence of Mr Collie
Particulars
1.Her Honour erred in permitting the evidence to be admitted as incriminating conduct and/or rebuttal evidence, without considering whether the evidence was in fact being relied upon as tendency and/or coincidence evidence;
2.Her Honour, in failing to consider the tendency/coincidence use of the evidence, erred in not applying sections 94-101 Evidence Act 2008 to Mr Collie’s assertion that the Applicant had told her she had an income of $250k derived from marketing (and in particular s.95);
3.The probative of the evidence was outweighed by its prejudicial effect, and so should have been excluded by the judge.
Ground 2:
A substantial miscarriage of justice occurred in that the jury were unduly pressured by the learned judge giving a direction akin to a perseverance direction in the manner she did.
Particulars
1.The judge gave a direction akin to a perseverance direction contrary to the principles in Black;
2.The judge gave the perseverance direction without seeking submissions from counsel, and as such the Applicant was denied procedural fairness;
3.The judge did not undertake the appropriate enquiry of the jury before giving the perseverance direction;
4.The judge gave the perseverance direction at the same time as answering a question the jury had raised, contrary to R v De Simone [2008] VSCA 216, and as such, put the jury under pressure to reach a verdict;
5.The form of the perseverance direction was contrary (sic) what was said to be required by the High Court in Black;

Summary of offending

Charge 1 on the indictment alleged that the applicant obtained a financial advantage by deception on 16 March 2012, namely, a $960,000 home loan from Westpac Bank. Charge 2 alleged that the applicant obtained a financial advantage by deception on 8 June 2012, namely, a $1,280,000 home loan from Westpac Bank.
Each charge alleged that the applicant obtained those credit facilities by falsely representing to Westpac that:
a)she was employed full time by Australian Rigging and Lifting Pty Ltd and had been since 1 January 2008;
b)she received a gross annual income of $390,000.00;
c)a group certificate in her name and dated 5 July 2011 was genuine;
d)2 payslips in her name stating that she was earning a gross fortnightly income of $15,000.00 for the periods ending 23 January 2012 and 6 February 2012 were genuine;
e)the Commonwealth Bank of Australia bank statement in her name for the period 1 November 2011 to 31 January 2012 was genuine.
At the time of the offending, the applicant was a single parent of two young children. She had not been employed for the previous eight years and, at the time of the offending, she was in receipt of Centrelink Single Parenting benefits, as well as rental income of $2,390 per month from a property at 46 Valley Parade, Glen Iris (‘the Glen Iris property’). That property had been purchased by the applicant and her late father some years previously. Following his death, her father’s share was ultimately transferred to the applicant.
On 8 February 2012, the applicant signed a contract to purchase another property at 43 Finch Street, East Malvern (‘the Malvern property’) for $1,600,000. She paid the deposit from money that she inherited from her late father’s estate. The applicant planned to demolish the house on the Glen Iris property, and to build two townhouses on the land. She also planned to renovate the Malvern property, so that she and her two children could live in it.
At that time, the applicant’s partner, Lex Carter, introduced the applicant to a friend, Noel Parsons, who was a finance broker. Mr Parsons, in turn, introduced the applicant to Mr Jason Fischman (‘Fischman’), who was also involved in Mr Parsons’ finance brokerage business.
On 14 February 2012, the applicant attended the Balaclava branch of the Westpac Bank. She was accompanied by Mr Carter and Fischman. They attended a meeting with Ms Natalie Shafir (‘Ms Shafir’), who was the finance manager of that branch of the bank. The purpose of the meeting was for the applicant to apply for a loan of $960,000 in order to develop the Glen Iris property, and a second loan of $1,280,000 to help purchase and renovate the Malvern property.
In the course of the meeting, Ms Shafir asked a number of questions concerning the applicant’s income, assets, expenses and financial liabilities. At the trial, Ms Shafir gave evidence that the applicant herself answered those questions and provided the information requested. She said that the applicant told her that she was then working as a sales marketing manager for Australian Rigging and Lifting Pty Ltd (‘Australian Rigging’). The applicant provided Ms Shafir with several documents in support of the application. Those documents included: a PAYG payment summary for the year ending 30 June 2011 in the applicant’s name, stating gross payments of $390,000 to the applicant from Australian Rigging; two payslips from Australian Rigging for the fortnights respectively ending 23 January 2012 and 6 February 2012, describing the applicant as national marketing manager, with an annual salary of $390,000, a gross fortnightly pay of $15,000, and a net fortnightly pay of $8,900; and Commonwealth Bank statements for the period 1 November 2011 to 31 January 2012 in the applicant’s name, recording fortnightly credits by way of deposits of $8,900, which were described as wages by Australian Rigging.
The information provided to Ms Shafir concerning the applicant’s employment and earnings, and each of the documents that were provided to her, were false.
Based on the information provided to her, Ms Shafir compiled two loan applications. The first application was for a loan of $960,000, which was to be the subject of a mortgage over the Glen Iris property. The second application was for $1,280,000, which was to be secured by a mortgage over the Malvern property. In her evidence, Ms Shafir stated that those two loan applications were compiled by her, and signed by the applicant, in the course of the meeting on 14 February 2012.
On 16 March 2012, the loan of $960,000, relating to the Glen Iris property, was advanced to the applicant. On 8 June 2012, the loan of $1,280,000, relating to the Malvern property, was advanced to the applicant.
In August 2012, the applicant again approached Ms Shafir, requesting a construction loan. Ms Shafir asked the applicant if there had been any alterations in her income or employment, and, when the applicant replied in the negative, Ms Shafir advised her that she would not approve another loan.
On 24 July 2013, the applicant was interviewed by police. In the course of the interview, she told police that she was unemployed and on Centrelink payments, and that she needed to borrow funds from family and friends. She said that she had never seen the false PAYG payment summary, and she said that the broker would have prepared the documents in order to get the loan approved. She said that she had conferred with the brokers in St Kilda two or three times before the meeting with Ms Shafir on 14 February 2012. She said that the brokers had told her that they would take care of everything, and they assured her that everything would be all right.
In the record of interview, the applicant further stated that she never told Ms Shafir that she had an income of $390,000, and that, at the meeting with Ms Shafir, the broker answered all of the questions on her behalf. She said that she simply signed what had been placed in front of her. She said that her income was not really raised in her presence, and she could not recall if it was discussed. In the course of the interview, police questioned her about the information provided to Ms Shafir. She said that the broker said to her:
Look this is the loan you need. This is what we’ll take care of. We’ll take care of managing and doing it for you don’t you worry about a thing.
The applicant said that when she asked the brokers if everything would be ‘okay’, they responded, ‘Yeah, everything’s going to be okay, we’ve done this a million times, we’ll look after everything, we’ll manage everything’. She said that she told the brokers that she was a single parent ‘literally living in hand and mouth [sic] trying to make my ends meet’.

Summary of evidence

The two proposed grounds of appeal are directed to specific legal issues in the trial. For the purposes of placing those issues in context, it is necessary only to briefly summarise the principal evidence in the trial.
The applicant originally stood trial in 2017. Witnesses called on behalf of the prosecution on the trial included Ms Shafir, Fischman and Carter. The applicant also gave evidence. The jury, who was empanelled on the applicant’s trial, was unable to reach agreement on its verdict and was discharged without verdict.
The retrial of the charges took place in 2018. The recordings of the evidence, previously given by Ms Shafir, Fischman and Carter in the first trial, were played to the jury. In addition, Tom Collie, another employee of Westpac, gave evidence, which is the subject of ground 1.

In her evidence, Ms Shafir said that the meeting, on 14 February 2012, was attended by the applicant, Fischman, and another person called ‘Les’ (Carter). Ms Shafir said that she asked the applicant about her assets, liabilities and income, and it was the applicant herself who answered those questions and provided the information, together with the relevant documentation. As she did so, Ms Shafir entered the information provided by the applicant on the loan application. When the loan application was complete, she asked the applicant to read it, and to make sure that everything was correct. She told the applicant that, if she was happy with the information contained in the application, she should sign it. Ms Shafir said that the applicant read the application and then signed it. The application recorded (inter alia) that the applicant was then employed full time by Australian Rigging, and that her annual gross income was $390,000.
Ms Shafir also stated that the applicant provided the supporting documents for the proposed loans, which included (inter alia) a PAYG payment summary for the year ending 30 June 2011, disclosing gross payments of $390,000; and two payslips for the fortnights ending 23 January 2012 and 6 February 2012 respectively, each disclosing gross payment for that period of $15,000, and net payment of $8,900.
Ms Shafir said that the same process was undertaken in relation to the second loan application (in respect of the Malvern property).
When the loan for the Glen Iris property was approved, Ms Shafir contacted the applicant, who then attended the Balaclava branch, and signed the loan offer dated 8 March 2012. Ms Shafir said that, on that date, she showed the relevant documents to the applicant and asked her to read them.
Ms Shafir stated that about 12 months later, the applicant contacted her about obtaining a construction loan from the Westpac Bank. Ms Shafir asked the applicant whether her income, and her situation, had changed. The applicant responded that they were still the same. Ms Shafir told the applicant that such a loan would involve a ‘high exposure’, and, accordingly, she did not approve the loan.
Jason Fischman gave evidence about the meetings that he had with the applicant in 2012 relating to arranging finance to enable her to build two townhouses on the Glen Iris property. Fischman confirmed that he attended, with the applicant, the meeting with Ms Shafir at the Balaclava branch of the Westpac Bank. Fischman said that he had not asked the applicant about her financial position before they attended the meeting. He said that that was a matter for the bank to work through independently with the client. He did not recall that the applicant brought any documents to the meeting, and he said that Ms Shafir would have requested those documents, which would have been provided either at that time or subsequently.
The prosecutor was granted leave to cross-examine Fischman as an unfavourable witness, pursuant to s 38 of the Evidence Act. In the course of that cross-examination, the prosecutor put to Fischman parts of a previous statement he had made. Fischman confirmed that, in the statement, he had said that he had provided the applicant with a list of documents to take to the bank, including income verification and asset ownership documents. He said that at the meeting with Ms Shafir, the applicant was asked a series of questions, and that the answers were then directly inserted into the computer. Fischman confirmed that he himself did not supply material or documentation to the bank, that was all done directly by the client. He specifically said that he did not help prepare or produce any documents for the applicant in relation to her income. He confirmed that all questions asked about the loan application were answered by the applicant without any help or influence from him. He said that before being interviewed by police on 30 July 2013, he had not previously seen the PAYG payment summary or the two payslips, which had been provided to Ms Shafir in support of the loan application.
Lex Carter gave evidence that, at the time of the loan, he was then in a de facto relationship with the applicant. He said that the applicant attended a number of meetings with Fischman before the meeting with Ms Shafir at the Balaclava branch of the Westpac Bank. Mr Carter confirmed that he attended that meeting. He said it was Fischman who did ‘most of the talking’ at the meeting. He recalled that the applicant was asked by Ms Shafir about her employment. However, he could not recall, in detail, the questions that were asked of the applicant. He said that he did recall Ms Shafir asking the applicant what she did for a living, and that the applicant was ‘taken aback’ by the question, and it was Fischman who responded, saying that she worked as a marketing manager.
Mr Carter was asked about the PAYG payment summary in the name of the applicant, that disclosed gross payments of $390,000 for the year ended 30 June 2011. Mr Carter said he had not seen that document previously. He said that the applicant might have provided the document to Ms Shafir, but he could not ‘recall it specifically’. He did recall the figure of $390,000. He said, ‘That sticks in my mind’. He could not recall who said the $390,000 figure. He said that the applicant might have provided the payslips to Ms Shafir. Mr Carter said that, after the interview with Ms Shafir, he had a conversation with the applicant. He said to the applicant, ‘Tanya, you know if this gets out you’re in trouble’, to which the applicant responded that he was not to worry, because Fischman was ‘in cahoots’ with the bank and that everyone ‘does it’.
Thomas Collie gave evidence on the second trial. Mr Collie worked as a private banker for Westpac Bank from 2011 until 2015. He said that private banking looks after high net wealth individual customers at the bank. Mr Collie said that, from time to time, he was given lists of clients who were in the suburban branch network, who might fit the criteria for private banking. In May or June 2013, the applicant’s name was on one of those lists. As a consequence, he telephoned the applicant and arranged to meet with her.
On 14 June 2013, Mr Collie had an introductory meeting with the applicant. His purpose was to understand her background, and to assess whether she would fit the criteria to be a private banking client. Mr Collie said that, at the meeting, he did not have access to, or obtain, a copy of the loan applications, that had been previously made by the applicant to the Westpac Bank. He said that at no time after the meeting did he access, or obtain, a copy of any loan application made by the applicant.
Mr Collie said that, at the meeting, he discussed the applicant’s personal circumstances and asked questions about them, and questions about her assets, liabilities and income. The applicant told Mr Collie that she owned a property in Finch Street, that she was developing and renovating, and a property in Glen Iris, that was a future development site. She said that she was in a marketing role with a company that she had been with on and off for quite a period of time, and that her income was approximately $250,000 per year. She also said that she intended and hoped to become a property developer. The applicant told Mr Collie that either she or her broker was under some kind of investigation, or there was some kind of ‘murkiness’ relating to previous loan applications that she had made to the bank.
Relevantly, in cross-examination, Mr Collie confirmed that he obtained the information, relating to the applicant’s previous loans, subsequent to when he spoke to her on 14 June 2013.

Ground 1

Ground 1 is directed to the decision, by the judge, to permit Mr Collie’s evidence to be admitted as evidence of incriminating conduct.
In the course of the evidence that she gave in the first trial, the applicant had deposed that she first became aware that the loan applications, that she had made to the Westpac Bank, stated that she earned a salary of $390,000, when she was given that information by Mr Collie at the meeting on 14 June 2013. Mr Collie’s evidence directly contradicted that assertion by the applicant. It was submitted on behalf of the prosecution that the evidence of Mr Collie proved that the applicant had previously told a lie, on her oath, which related to a relevant fact, namely, that at the time that she made the loan applications to the Westpac Bank, she was aware that the representations in the loan documentation were false, in that they misrepresented that she was a marketing manager, earning $390,000 per year.
On behalf of the applicant, it was conceded that Mr Collie’s evidence, that he had no information concerning the content of the loan application, and his evidence relating to the ‘murkiness’ surrounding the previous application, could amount to incriminating conduct. However, objection was taken to the evidence that the applicant had represented to Mr Collie that her income was $250,000, on the ground that that evidence, if admitted, would result in the jury engaging in impermissible tendency or coincidence reasoning, namely, that the applicant had a tendency to lie about her income, and that, in a similar manner to that alleged in the present case, she had attended on Mr Collie and attempted to obtain a loan by then misrepresenting her income to him.
Following submissions, the judge ruled the evidence to be admissible to rebut the applicant’s defence that she believed that she had obtained the two loans from the Westpac Bank on the basis of the equity that she had in her Glen Iris property. Her Honour considered that any impermissible possible tendency or coincidence reasoning could be suitably dealt with by appropriate judicial direction.
In detailed reasons subsequently provided to the parties,[3] the judge noted that the evidence to be given by Mr Collie contradicted the evidence, given by the applicant on the previous trial, that Mr Collie had looked at her application and said that the documentation that he had available to him showed that she was earning an income of $390,000 and that she was working for Australian Rigging. The judge considered that the evidence of Mr Collie was thus capable of demonstrating that the applicant had previously told a lie on her oath when she said that she only knew the falsity of the representations and supporting documentation when she spoke to Mr Collie. Her Honour further considered that that untruth related to a material fact, namely, that, at the time that she made the loan applications in 2012, and signed the acceptances of offer, the applicant was then aware that the representations in the loan applications, and the documents in support of them, were false insofar as they represented her to be a marketing manager, earning $390,000 per year.[4] Thus, the judge concluded that if the jury accepted Mr Collie’s evidence, it would be entitled to infer that the lie by the applicant showed that she had knowledge of the relevant elements of the offence, namely, the elements of dishonesty and deception.[5]
[3]DPP v Swan [2018] VCC 2208 (‘Reasons’).
[4]Ibid [32].
[5]Ibid [33].
The judge further ruled that the evidence of Mr Collie, that the applicant told him on 14 June 2013 that she was working in marketing, earning $250,000 per annum, was relevant, because it rebutted the defence case that the applicant knew nothing of the earlier false representations about her employment and income, because she believed that she had obtained the loans on the basis of her equity in the Glen Iris property.[6] Her Honour also considered that, in any event, that part of the evidence of Mr Collie was inextricably entwined with his evidence that was relied on by the prosecution as post offence incriminating conduct.[7] The judge considered that an appropriate anti-propensity warning to the jury would be sufficient to ensure that the jury did not engage in such impermissible line of reasoning.[8]
[6]Ibid [42].
[7]Ibid [49].
[8]Ibid [51].

Ground 1 — submissions

In support of ground 1, counsel for the applicant accepted — as had been conceded at trial — that if the jury accepted that in June 2013, the applicant had made Mr Collie aware of the ‘murkiness’ of her existing loan application, and that she and/or Mr Fischman were under investigation, that circumstance would rebut the applicant’s previous evidence on oath (at the first trial) that she was not aware of any issues relating to the loans until she was arrested and interviewed by police one month later (in July 2013). Thus, it was accepted that that piece of evidence could amount to incriminating conduct evidence.
In the applicant’s written case, it was submitted that the evidence of Mr Collie, that the applicant had also told him at the meeting that her income was then $250,000 from marketing work, could not constitute incriminating conduct, nor could it be probative as rebuttal evidence. It was submitted that, properly characterised, that part of Mr Collie’s evidence would lead to impermissible coincidence or tendency reasoning.
In oral submissions, counsel for the applicant (who was different to the counsel who compiled the written case) accepted that the evidence of Mr Collie, that the applicant told him that she was earning an income of $250,000 from marketing work, was admissible. However, counsel submitted that, in closing address, the prosecutor, on a number of occasions, impermissibly relied on that evidence in support of submissions that constituted an invitation to the jury to impermissibly engage in coincidence and tendency reasoning based on it. In support of that submission, counsel referred to a number of passages in the prosecutor’s address, which we will outline later in these reasons.
Counsel noted that, following the conclusion of the prosecutor’s address, the jury had departed for the evening without any correction on that issue. On the next day, the judge raised the issue with the parties, and directed the jury against using the evidence of Mr Collie for such an impermissible purpose. However, it was submitted, the risk of prejudice to the applicant was so high that it could not be adequately cured by that direction. Further, it was submitted, the direction ‘came too late in time’.
In response to the applicant’s written case, counsel for the respondent submitted that Mr Collie’s evidence was admissible to rebut the applicant’s defence that she knew nothing about the false representations that were made in 2012, and that she first became aware of them in her meeting with Mr Collie in June 2013.
Further, it was submitted that the impugned evidence of Mr Collie was admissible to give necessary context to Mr Collie’s evidence. In particular, Mr Collie could not have alerted the applicant to the false information that had been previously provided to the bank in 2012. Accordingly, if Mr Collie’s evidence was accepted, the jury could infer that the applicant had lied about a material matter when she gave sworn evidence in 2017.
Counsel for the respondent noted that the applicant does not take issue with the admissibility of the applicant’s evidence at the first trial as evidence of incriminating conduct, and, indeed, that was conceded by defence counsel at trial. It was submitted that, in order to make sense of Mr Collie’s evidence, it was necessary to adduce evidence as to the content of the discussion in June 2013. It was submitted that, in that way, Mr Collie’s evidence, that the applicant had said that her income was $250,000 from marketing, and a reference to the ‘murkiness’ of the loan process, were each relevant.
Counsel for the respondent accepted that, in at least two parts of his final address, the prosecutor made submissions, based on the evidence of Mr Collie, in terms in which the prosecutor could have been understood to have been inviting the jury to engage in impermissible propensity or coincidence reasoning. However, counsel submitted that the judge, in her charge, gave the jury specific directions, which, in clear terms, precluded the jury from engaging in such impermissible reasoning. Counsel submitted that those directions were sufficient to offset any possibility that the jury might have misused the evidence of Mr Collie as a result of the submissions made by the prosecutor.

Ground 1 — analysis and conclusions

As we have noted, on the hearing of the present application, counsel for the applicant did not persist with the submission that the judge erred in admitting the aspect of the evidence of Mr Collie, that the applicant had told him that she was earning $250,000 as a marketing manager. Nevertheless, it is convenient to commence by considering the submission that was made to that effect in the applicant’s written case, particularly because it places in some context the passages from the prosecutor’s address upon which counsel has relied in support of ground 1.
In essence, the evidence of Mr Collie was admitted in the trial for two related reasons.
First, it was not in issue that Mr Collie’s evidence, that the applicant had referred to the murkiness of the loan process, was relevant to rebut the applicant’s previous evidence, that she was not aware that there were any issues relating to her loans until she was arrested and interviewed by police one month after her meeting with Mr Collie.
Secondly, and related to that, it is, we consider, unarguable that the evidence of Mr Collie was also relevant to prove that, when he interviewed the applicant on 14 June 2013, he did not then have in his possession the loan application documents that had been provided to Westpac in respect of the 2012 loan. That matter was relevant and admissible to prove that the applicant had told an untruth on her oath in the first trial, when she had deposed that the first occasion on which she was aware, that the 2012 loan applications specified that she was earning a salary of $390,000 per annum, was in the course of the meeting, which she had with Mr Collie, on 14 June 2013.
That untruth, told by the applicant, was relevant, because, as the judge correctly concluded, the jury would be entitled to infer that the applicant had told such a lie on her oath in the first trial, because she knew that if she told the truth, it would reveal that, at the time at which she made the loan applications in 2012, she was then aware that the documentation, provided by her to the bank, stated that she was then earning a salary of $390,000 per annum.
In that way, the evidence of Mr Collie, that at the meeting on 14 June 2013, he did not have in his possession the 2012 loan documents, was relevant and admissible to establish incriminating conduct on behalf of the applicant. That aspect of the prosecution case involved two steps. First, the prosecution was required to prove that the applicant had told a lie on her oath in the first trial, when she deposed that she was not aware that her loan applications to the bank in 2012 showed a salary of $390,000 until she attended the meeting with Mr Collie on 14 June 2013. The second step, in the process of reasoning relied on by the prosecution, was that the only reasonable inference for the telling of that lie by the applicant was that she was aware that if she told the truth, it would implicate her in the offences with which she was charged.
In that context, the evidence of Mr Collie, that in the meeting on 14 June 2013, the applicant told him her salary, was clearly relevant to establishing the first step in the reasoning, relied on by the prosecution before the jury. In his evidence, Mr Collie said that the purpose of the meeting was to determine whether the applicant fulfilled the criteria, which would enable her to be accepted as a private banking client. It was for that reason that Mr Collie asked the applicant as to her personal situation (whether she had a partner and children), as to her assets and liabilities, and also if she was working, and, if so, what income she was generating. Those questions were clearly relevant to the purpose for which Mr Collie convened the meeting.

The fact that the applicant told Mr Collie the amount of her salary would necessarily add to the probabilities of the evidence, given by Mr Collie, that he did not have available to him, or know of, the 2012 loan application documents, and that it was the applicant, in the meeting, who was the source of the relevant information that he obtained to determine whether she fulfilled the criteria to be a private banking client of the bank. In that context, it was relevant, and admissible, for Mr Collie to give evidence that the applicant told her of the nature of her then employment (a marketing role) and of the amount of income ($250,000 per year) that she then said that she was earning. That evidence necessarily supported Mr Collie’s testimony that he did not have available the 2012 loan documentation when he met with the applicant on 14 June 2013. As such, the evidence was relevant to the proof of the first step in the process of reasoning, relied on by the prosecution, namely, by establishing that the applicant did tell an untruth on her oath when she deposed (in the first trial) that she first became aware that her 2012 loan applications to the Westpac Bank show that she had a salary of $390,000 was when she met with Mr Collie on 14 June 2013.
It may be accepted that, in the absence of appropriate judicial direction, the impugned evidence, given by Mr Collie, as to the amount of income that the applicant told him she was earning, might invite a jury to engage in tendency or propensity reasoning. It is not uncommon that evidence, which is admitted for another, non-tendency purpose, may have the potential to be misused by a jury, by using it to engage in propensity reasoning. However, that circumstance does not necessarily preclude the admissibility of such evidence for a legitimate, non-tendency purpose.[9] It is usually accepted that, in appropriate cases, a direction, given by the judge to the jury, not to engage in such impermissible reasoning, would be sufficient to ensure that the jury only use the evidence for the purpose for which it is admitted.
[9]See, for example, Conway v The Queen (2000) 98 FCR 185; [2000] FCA 461; R v Flavel [2001] NSWCCA 227.
In the present case, the judge gave such a direction to the jury, and it is not contended that that direction was, in any way, deficient. Rather, as we have noted, counsel for the applicant submitted that, in view of the nature of the evidence given by Mr Collie, and in view of submissions, made by the prosecutor in closing address, the direction so given by the judge was not sufficient to preclude the potential that the jury might have used the evidence, given by Mr Collie, for a non-permissible purpose.
As counsel for the respondent quite properly accepted on this application, there were passages in the final address, by the prosecutor at trial, which do raise a concern that the jury might have been lured to engage in impermissible propensity reasoning, based on the evidence of Mr Collie.
At an early stage in his address, the prosecutor referred to Mr Collie’s evidence, and correctly submitted to the jury that the applicant had told a lie in her earlier sworn evidence, when she deposed that she first became aware of the false information provided to the bank when she met with Mr Collie on 14 June 2013. That aspect of the prosecutor’s address was unimpeachable. The prosecutor then proceeded to make further submissions, based on Mr Collie’s evidence, that the applicant had told him that she was working in a marketing capacity and earning $250,000 per year. The submission, made by the prosecutor on that basis, was directed to the proposition, that the applicant had made that statement to Mr Collie, because she already knew what was contained in her loan applications to the bank one year earlier. Again, that aspect of the argument made by the prosecutor was also appropriate.
However, the prosecutor then made the following submission to the jury:
Here she is saying essentially the same thing, that was falsely represented to Natalie Shafir at the Balaclava bank in early 2012. That shows that she was the source of the false representations about employment and income.
Later in his address, the prosecutor advanced the same argument again to the jury, namely, that Mr Collie’s evidence, about what the applicant told him concerning her income, was ‘very similar’ to the answer on her loan application in 2012. While the intent of that proposition might have been otherwise, nevertheless, it must be accepted that there was a potential for that kind of argument to entice the jury into engaging in propensity or coincidence reasoning.
When the judge had the opportunity to review the transcript of the prosecutor’s address overnight, her Honour considered that the submission, so made by the prosecutor, did involve tendency or coincidence reasoning. On the following morning, in the absence of the jury, the judge raised that point with counsel and told counsel that she would give the jury a direction against engaging in propensity reasoning. The judge then asked counsel for the applicant whether he wished to say anything about the matter, to which counsel responded, ‘Nothing to add, Your Honour’.
In accordance with those discussions, when the judge resumed her charge to the jury, her Honour referred to the evidence of Mr Collie. Her Honour instructed the jury that the evidence was not led for the purpose of demonstrating that the applicant was the ‘type of person who would give false information in support of a loan application’. The judge then gave the jury the following direction:
I warn you with the full weight of my judicial authority that you must not use Mr Collie’s evidence to reason backwards, that if she told Mr Collie false information about her job and income, therefore she must have made those alleged false representations to Ms Shafir back on 14 February 2012. That sort of reasoning that she had a propensity to make such false representations is absolutely impermissible reasoning. It is very important, members of the jury, that you heed my warning. It is a direction of law and you are bound by what I say about the law.
The judge then continued, in the passage of her charge that followed that direction, to instruct the jury that it was not permissible to reason backwards from what the applicant said to Mr Collie in June 2013, in order to determine what was in her mind when she spoke to Ms Shafir about the loans in February 2012, and whether that demonstrates that she had knowledge of the falsity of the information provided to Ms Shafir in 2012.
The critical question, under ground 1, is whether those directions were sufficient to offset the potential that the jury might have been lured, by the prosecutor’s submissions, to engage in impermissible tendency or propensity reasoning, based on the evidence of Mr Collie.
In the conduct of criminal trials in this State, it is accepted that, ordinarily, juries do adhere to, and base their verdicts on, the directions of law given to them by the trial judge. Our system of trial by jury is based on such a proposition. It may be fairly observed that juries, by their verdicts, and by their conduct in court, are ordinarily assiduous in following and applying the instructions on legal issues, given to them by the trial judge. Of course, as senior counsel for the applicant pointed out, nevertheless, there are cases in which that assumption may not be applicable, and in which there is a reasonable potential for the jury to misapply the evidence, notwithstanding strict instructions given to it by the judge.[10]
[10]Moore (a pseudonym) v The King [2024] HCA 30, 42 (Gageler CJ, Edelman, Steward, Gleeson and Beech-Jones JJ).
However, in the present case, the evidence, given by Mr Collie, and the issues relating to it, was not at all complex. The judge explained to the jury, in clear terms, the basis upon which it was entitled to use and rely on that evidence, namely, as evidence establishing the untruth, which the applicant had previously told, in sworn evidence, about her meeting with Mr Collie. That evidence itself was of material importance in the trial for the reasons we have discussed, namely, as establishing the first premise, in the prosecution argument, that the applicant had told a lie under oath at the first trial, because she knew that if she had told the truth, it would reveal that, at the time at which she made the loan applications in 2012, she was then aware that the information, provided by her to the bank, included a statement that she was then earning a salary in the sum of $390,000 per annum.
The instructions, given by the judge to the jury, and to which we have referred, precluding the jury from misusing that evidence as propensity evidence, were clear and concise. The evidence in the case, and the issues to which Mr Collie’s evidence was directed, were not complex. There was no basis to apprehend that, notwithstanding the directions given by the judge, the jury might have misused the evidence of Mr Collie, based on the arguments advanced by the prosecutor in final address.
For those reasons, we reject the submission, made in oral argument, that the arguments advanced by the prosecutor in final address resulted in a substantial miscarriage of justice. On the contrary, as we have noted, in our view, the directions, given by the judge to the jury, were ample and sufficient to offset any realistic possibility that the jury might have misapplied the evidence, given by Mr Collie, as a consequence of the prosecutor’s address.
Accordingly, we do not consider that ground 1 of the proposed application for leave to appeal would be sufficiently arguable to justify the grant of leave to appeal, if we were to grant an extension of time to the applicant in the present case.

Ground 2

Ground 2 concerns an aspect of some directions given by the judge to the jury after the jury had retired to consider its verdicts in the case.
In the course of its deliberations, the jury conveyed a note to the judge, asking for assistance with some matters of fact and law. The judge convened the court to discuss with counsel the appropriate answer to be given to those questions. The jury then entered the court, and the judge answered the questions. Her Honour concluded, stating as follows:
Members of the jury, use your common sense and your life experience. Listen to your fellow jurors. You will get there. You will get there. Juries for hundreds and hundreds of years have got there. You too can get there. Remember, at all times, the onus of proof is on the prosecution. Onus of proof at all times on the prosecution and must be satisfied beyond reasonable doubt, and I hope you’re clear about the things that I’ve said. If you’re not, I can try and get them to you in writing. Thank you.
The jury then retired to continue its deliberations. Approximately 40 minutes later, the court reconvened, after the jury had indicated that it had reached its verdicts. Before taking the verdicts, counsel for the applicant applied to discharge the jury, on the basis that the judge’s concluding comments to the jury constituted an unprompted perseverance direction that failed to comply with the principles stated by the High Court in Black v The Queen.[11] The judge refused that application.
[11](1993) 179 CLR 44; [1994] HCA 71 (‘Black’).

Ground 2 – submissions

In support of ground 2, it was submitted that the judge erred in giving what counsel for the applicant described as a ‘perseverance direction’.
Counsel submitted, in that respect, that it was necessary to consider the impugned passage, in which the judge concluded the answer to the questions asked of her by the jury, in the context of earlier answers to questions posed by the jury. In particular, counsel submitted that, in answering those questions, the judge evinced overt frustration at the questions being asked of her by the jury. Counsel submitted that it was in that context that the judge, in the impugned passage, committed a number of errors in delivering the instructions that are contained in the impugned passage.
First, it was submitted, at no time did the judge indicate to counsel that she intended to give such a perseverance direction. By failing to do so, it was contended, the applicant had been denied procedural fairness.
Further, it was submitted that the judge then compounded the issue by giving the direction after responding to the jury’s questions relating to matters of evidence. It was submitted the appropriate course would have been to permit the jury to consider the answers that she had given to those questions, and then recall them, and, subsequently give a perseverance direction, but only after receiving submissions from counsel. It was submitted that, in the impugned passage, the judge expressed frustration, and gave a perseverance direction in a manner in which the jury may have felt pressured into arriving at its verdicts.
It was submitted that the directions, so given by the judge, failed to comply with the content of the direction sanctioned by the High Court in Black. In particular, the direction did not clearly state that each juror had a duty to give a verdict according to the evidence, and the direction did not state that an individual juror may change his or her mind if honestly persuaded that his or her initial view was not well founded.
Accordingly, it was submitted that the judge should have acceded to the application to discharge the jury, and that the direction that her Honour gave to the jury resulted in a miscarriage of justice.
In response, counsel for the respondent submitted that the judge did not give a perseverance direction or something akin to such a direction. Rather, it was submitted, having answered the jury’s questions, the judge gave the jury some reassurance in continuing its deliberations, which evidently was a task that was proving to be somewhat complex for the jury. It was submitted that the direction, given by the judge, did not pressure the jury, and, indeed, the judge told the jury that it could ask any further questions if it desired to do so.
Counsel noted that the central question, for determination by the jury, was whether the applicant was responsible for knowingly making false representations to Westpac in support of her application for the two loans. Counsel noted that there were several alternative pathways (specified in the particulars to each of the two charges) by which that element could be established. The jury was instructed that it could find the applicant guilty on any one or more of those pathways, but that it needed to be unanimously satisfied beyond reasonable doubt of the same pathway. Counsel noted that the four questions, asked by the jury, and to which the judge responded, revealed that it was grappling with the question, whether the evidence could establish one or more of the pathways. In that context, it was submitted, the impugned remarks, made by the judge, were no more than encouragement to the jury to continue with its evaluation and consideration of the evidence. In a case in which several alternative pathways were available to find the deception element made out, the jury’s task was not straightforward. It was in that context that, by encouraging the jury to use its common sense and life experience, the judge was extolling the virtues of their collective deliberation process. It was submitted that that comment by the judge did not have the effect of pressuring the jury to return a verdict hastily.
It was further submitted that the fact that the jury returned its verdicts 40 minutes later can be reasonably explained by circumstances other than the jury feeling pressured by the judge to do so. By that stage, the jury had been deliberating for approximately six hours. It was entirely plausible that the discrete evidential matters, that were the subject of the four questions, were representative of the remaining obstacles in the minds of one or more jurors to be able to be satisfied that the deception element had been established.
In those circumstances, it was submitted that the remarks, made by the judge to the jury, did not transgress the principles explained by the High Court in Black.

Ground 2 — analysis and conclusion

The principles, that apply to the issues raised by ground 2, are well-established.
It is fundamental, to our criminal justice system, that it is the members of the jury who, alone, are the sole judges of the facts, and who, applying the legal principles on which they are instructed by the trial judge, decide the verdict. In a case in which the verdict of the jury must be unanimous, each juror, himself or herself, must be satisfied that the verdict delivered by the jury is the correct verdict. While it is common for jurors to be appropriately encouraged that, in the course of their deliberations, they should discuss the case together, and listen to each other’s point of view, each juror must, ultimately, agree in the verdict delivered in the case. As an integral part of that process, it is fundamental that the jury must be free to deliberate on its verdict without any pressure being imposed on its members.[12]
[12]Black (1993) 179 CLR 44, 50 (Mason CJ, Brennan, Dawson and McHugh JJ); see also R v De Simone [2008] VSCA 216, [84] (Neave JA), [100] (Weinberg JA); Aulsebrook v The Queen [2019] VSCA 239, [39] (Beach, Niall and Weinberg JJA); Issakidis v The Queen (2019) 379 ALR 292, 306 [97] (Bathurst CJ, Hoeben CJ at CL, Gleeson JA).
As a consequence, any direction given by the trial judge, as to the manner in which the jury should decide a case, or any direction given by a judge to a jury to persevere in its deliberations, must not have the effect of compromising the capacity of each member of the jury to determine his or her verdict, free from external influence.
The decision of the High Court in Black is illustrative of the kinds of remarks, made by a judge to a jury, that may constitute undue pressure on the jury. In that case, the Court was concerned with directions given by a trial judge after the jury had been deliberating for three hours. The Court considered that the directions breached the principle, that the jury be free to deliberate without undue pressure, in three principal respects, namely: by referring to the ‘considerable public inconvenience and expense’ if the jury could not agree; by suggesting that the jury had a duty to act ‘not only as individuals but also collectively’; and by suggesting that, in the course of their discussions, there should be a ‘certain amount of give and take and adjustment’ within the scope of the juror’s oaths of office.
In formulating the model direction, which should be given to a jury when it has been indicated to the trial judge that the jury has reached an impasse in its deliberations, the Court in Black made it clear that such a direction should state clearly that each juror has a duty to give a verdict according to the evidence, that the jurors should listen to each other’s views, and that an individual juror should only change his or her mind ‘… if honestly persuaded that his or her preliminary view is not well founded’.[13]
[13]Black (1993) 179 CLR 44, 51 (Mason CJ, Brennan, Dawson and McHugh JJ).
In R v K,[14] Doyle CJ expressed the view that, as a prerequisite to giving a ‘Black direction’, the judge should, first, inquire of the jury whether it is experiencing any difficulty in reaching a unanimous verdict, and, if so, the judge should also invite submissions from counsel (in the absence of the jury) as to the appropriate process in such circumstances.
[14](1997) 68 SASR 405, 413.
In the present case, the question is whether the impugned passage, in the directions given by the judge to the jury, breached the foregoing principles, by constituting undue pressure, imposed by the judge on the jury, as specified in the particulars under ground 2.
In determining that question, it is necessary to consider the impugned passage, in the directions given by the judge to the jury, in its relevant context.

In the course of her charge, the judge provided to the jury a document, which defined the elements of the offences with which the applicant was charged. The judge instructed the jury that, in order to convict the applicant, it must be unanimously satisfied of at least one of the five particulars to the charge under consideration. The judge reminded the jury that the prosecution relied on the evidence of Ms Shafir to establish that the applicant made the two oral representations specified in particulars (a) and (b), and that the prosecution relied on Ms Shafir’s evidence to establish that the applicant provided to her the documents that were specified in particulars (c), (d) and (e) of the charge.
The jury retired to consider its verdict at 11:38 am on 20 September 2018. Subsequently, on the same day, the jury asked the following question:
If we accept that the accused did not know that any false information was contained in the loan application/offer, yet signed the documents anyway, what does that mean for our deliberations about the two charges?
The judge answered that question by reminding the jury that the prosecution case was based on the evidence of Ms Shafir. The judge reminded the jury that Ms Shafir’s evidence was that the applicant provided oral answers to the questions in the interview on 14 February 2022, on the basis of which Ms Shafir compiled the loan application. The judge instructed the jury that if it was unanimously satisfied, beyond reasonable doubt, that the applicant provided oral answers concerning her employment and/or income, knowing the answers were false, or probably false, and that she intended Westpac Bank to act on those answers, its verdict, on each charge, should be guilty. The judge further directed the jury that it would only need to be satisfied, beyond reasonable doubt, that one or other of those representations were made. The judge concluded by reminding the jury that, if it was not satisfied, beyond reasonable doubt, that the applicant knew that the loan applications contained the information about her employment or income, and that the information was false or probably false, then the jury’s verdict would be not guilty on each charge.
Following those further directions, the jury then retired to consider its verdict at 2:52 pm.
One hour later, at 3:46 pm, the jury asked a further question:
What if [the applicant] did not give the information orally but was aware of incorrect information was being used to get her a loan and therefore get a financial advantage?
In answer to that question, the judge instructed the jury that, in those circumstances, the verdict on the charge would be guilty. The judge reminded the jury that, if it was not satisfied, beyond reasonable doubt, as to the representations contained in particulars (a) and (b), it would still need to consider whether it was satisfied, beyond reasonable doubt, that the applicant was guilty on the basis of the remaining three particulars, (c), (d) and (e), relating to the provision of false documentation. The judge instructed the jury that, in such a case, if it was satisfied that the applicant made the representations in question to the bank by providing any one or more of the documents set out in particulars (c), (d) or (e), as a genuine document, knowing it or them to be false or probably false, then the verdict must be guilty. The judge encouraged the jury to keep in mind the directions concerning the charges that were contained in the document given to it.
The judge then concluded with the following remarks:
If you go back inside and you feel you want that repeated again I’m happy to do it, or I can repeat it again now. Do not hesitate if you would like it.
At 3:54 pm, the jury retired again to consider its verdict.
On the following day, 21 September 2019, the jury conveyed to the judge two questions. The first question, in effect, was whether the alleged false representation by the applicant would include acts or omissions by others who were assisting her with the loan application. The second question referred to the evidence of Ms Shafir that the applicant signed the loan offer. The question asked whether the loan offer referred to the entirety of the document, that was contained in the jury book.
Having conferred with counsel, the judge, at 1:38 pm, commenced to provide answers to the jury to those questions. In doing so, her Honour instructed the jury that, in order to be satisfied beyond reasonable doubt of the guilt of the applicant, it must be satisfied, beyond reasonable doubt, of one or more of the following four scenarios.
The first scenario was that the applicant made oral representations to Ms Shafir about her employment or income, as specified in paragraphs (a) and (b) of the particulars. The judge reminded the jury that it would only need to be satisfied of one or other of those representations, provided it was unanimously satisfied about it.
The second scenario was that the applicant signed the loan application and knew that it contained information about her employment and/or income that was false or probably false. The judge reminded the jury that that information was particularised in paragraphs (a) and (b) of each charge.
The third scenario, which the judge identified to the jury, was that the applicant signed the loan offer on 8 March 2012, knowing it was based on information as particularised in the charges that was false or probably false. The judge directed the jury to the tabs in the jury book, behind which each of the two loan offer documents were placed. The judge reminded the jury that Ms Shafir had given oral evidence that each loan offer had the loan application attached to it, and the judge read to the jury the relevant evidence of Ms Shafir to that effect.
The fourth possible scenario, outlined by the judge to the jury, was that the applicant provided any one of the documents specified in particulars (c), (d) and (e) of the charges, to Ms Shafir on 14 February 2012, knowing that it or they contained information which was false or probably false.
The judge reminded the jury that, if it was satisfied of one of the four bases referred to, then its verdict must be guilty, provided the jury was unanimous about the particular basis or bases, beyond reasonable doubt.
It was immediately following those directions that the judge made the remarks, which we have quoted at paragraph 86 above, and which are the subject of ground 2.
Before considering the impugned remarks made by the judge, it is necessary, first, to consider some of the issues, raised by counsel for the applicant, in respect of answers given by the judge to the questions which preceded it.
In that respect, counsel submitted that, when the judge, at 3:46 pm on 20 September, answered the question then put to her by the jury, her Honour expressed a degree of frustration. That submission was based on one sentence in the directions given by the judge in which, having concluded her answers to the question, her Honour said to the jury:
Is that clear? So members of the jury, I urge you to go back to the sheets that I have given you in relation to the essential directions about direct deception and ask yourself in relation to oral representations about either employment or income, are you satisfied beyond reasonable doubt of those elements?
The submissions made by counsel fastened on the use of the verb ‘urge’ by her Honour.
However, in context, it is quite apparent that that choice of language, by the judge, would not properly have been understood by the jury as some form of pressure or expression of frustration. Rather, having provided to the jury detailed answers to the question asked of her, the judge then encouraged the jury to use the written document she had provided to it that contained the essential elements of the offence in question. The judge then continued by saying to the jury that, after they returned to the jury room, if they felt that they wanted the answers she had given to them repeated, she would be ‘happy to do it’, or she could repeat them ‘again now’. As noted earlier in these reasons, the judge then told the jury it should not hesitate if they would like either such option.
Those comments by the judge plainly contraindicate any form of frustration expressed by the judge, or any pressure imposed by her, by her choice of the verb ‘urge’.
The judge then, having informed the jury that she was happy to repeat the answers to the questions that she had responded to, told the jury that if they were to ask any question of her, and if they were not in agreement, they should not reveal anything about the state of its deliberations, and they should not ‘tell me any figures’. On this application, counsel contended that those comments further revealed a sense of frustration which the judge conveyed to the jury.
The direction, thus given by the judge, is a direction that is ordinarily given in the course of the charge, and is an important direction to the jury. Commonly, juries are directed, in the course of the judge’s charge, that it may ask any questions of the judge during deliberations, with the one caveat that, in doing so, it should not disclose, by the question, the numbers or proportion of the jury that is either for or against a particular verdict. It appears, from the passage in question, that the judge had in fact overlooked giving such a direction to the jury in the course of her charge, and that she used the occasion as an opportunity to give that direction to the jury at that point. Contrary to the submissions advanced on behalf of the applicant, we do not perceive that that direction was, in some form, an encouragement to the jury to reach unanimity about its verdict.
It is also significant that, at that point, the judge noted the time (3:55 pm). The judge told the jury that she was aware that they had been diligently applying themselves to their task, which was demonstrated to her by the questions asked of her, and she asked the jury if they would like to keep deliberating, or, if they felt too tired to do so, in which case, she would adjourn the matter. That statement by the judge, again, is inconsistent with the judge expressing frustration to the jury, or seeking to impose any form of pressure on it.
It is in that context, then, that it is necessary to consider the impugned passage in the answers which the judge gave to the jury in response to the four questions asked of her on the following day, 21 September 2018.
In considering that question, it must, first, be noted that there were a number of points, expressed by the judge, in that passage, which were quite appropriate.
First, the judge instructed the jury to use its common sense and its life experience. Secondly, she encouraged the jury to listen to their fellow jurors. Those two points are regularly properly made by a judge to a jury. The judge also reminded the jury of the onus of proof, which is on the prosecution, and she concluded by telling the jury that if they were not clear about the matters on which she had instructed them, she could try and convey them to the jury in writing.
Each of those matters, stated by the judge to the jury in the impugned passage, are unimpeachable. The thrust of ground 2 is directed to the part of that passage, in which the judge told the jury (three times), ‘You will get there’, and interspersed it with the comment that, ‘Juries for hundreds and hundreds of years have got there’.
Considered in isolation, and not in context, that aspect of the impugned passage might be described as a form of impermissible perseverance direction. However, it must be borne in mind that those words, spoken by the judge to the jury, were in the context of: detailed answers, given by her Honour to the jury; the judge ensuring that the jury understood those directions (by asking if they understood them); and the judge reminding the jury that its verdicts must be unanimous, and that it must be satisfied, beyond reasonable doubt, of the guilt of the accused before it returned a verdict of guilty. The part of the impugned passage was immediately followed by the judge offering to assist the jury, by providing, in writing, the answers to its questions, which she had just provided to them.
Considered in that context, we are not persuaded that the aspect of the impugned passage, relied on by the applicant, did constitute either an impermissible perseverance direction, or some form of pressure on the jury to reach its verdicts. In circumstances in which the jury was clearly applying itself conscientiously to its task, and asking detailed and relevant questions, the part of the judge’s direction to the jury, to which exception is now taken, was no more than an encouragement by the judge to the jury members to persist with their task, keeping in mind the burden of proof and the requirement that its verdicts be unanimous.
For those reasons, if the applicant were granted an extension of time, we would not grant leave to appeal on ground 2.

Summary of conclusions

For the foregoing reasons, we have concluded that neither of the two grounds, which are contained in the proposed application for leave to appeal, are sufficiently arguable, that the Court would grant leave to appeal to the applicant in respect of either of them.
As we earlier noted, in view of the considerable delay in this case, and the lack of an appropriate explanation and excuse for it, we would only grant an extension of time, if we were satisfied that there was real substance in either of the proposed grounds of appeal. For the reasons that we have given, we are not so satisfied.
It follows that the application for an extension of time within which to file the notice of application for leave to appeal must be refused.

[2024] VSCA 244

18 October 2024