Swaine eventually discontinued the association because he found that the deceased after consuming even a moderate amount of alcohol became aggressive and violent. Her conduct was so unstable that he thought in such circumstances it was dangerous to be in her company. On reading a newspaper account of the circumstances of the deceased's death, Swaine, to whom the petitioner was a complete stranger, believed that he could assist the defence as a witness. He offered his services in that capacity to Galbally. No statement was then taken from him. On ceasing to act, Galbally wrote to the Public Solicitor stressing the importance of his being contacted with regard to the evidence that Swaine could give. There was no substantive response to this communication. Nevertheless, according to the affidavit evidence of one O'Brien - a solicitor with the Legal Aid Commission who in 1982 carried out an investigation into the manner in which the petitioner's trial had been conducted - senior counsel told O'Brien in the course of that investigation that during the trial he (counsel) had spoken by telephone a number of times to Swaine.

Swaine subsequently on enquiry by O'Brien (according to O'Brien) contradicted what counsel said and, in an affidavit filed in the present proceedings, Swaine denied having so spoken to counsel. He said the phone call to him, there being only one, was after the trial concluded and counsel explained that he had elected not to call him as the deceased's attacks upon him had not included an attack with a knife. No deponents whose affidavits were filed in the present proceedings were cross-examined. It is not possible, therefore, to resolve this conflict even if its resolution should be thought to be important. One Lentin, a licensed inquiry agent, swore that he was instructed by the Public Solicitor's office prior to the petitioner's trial to conduct an investigation into whether the deceased had exhibited a propensity to violence. Before his enquiries commenced he was instructed to take no further action. The deceased's husband, Frank Saunders, married the deceased in 1962. They were divorced in 1976. After the death of the deceased, Saunders was questioned by the police. He attended the inquest. His identity was not there known to, nor was he spoken to by, the petitioner or any person acting on the petitioner's behalf. Saunders was first approached by such a person in 1983. He had expected to be called as a witness at the trial. His affidavit sworn in support of the petition describes the deceased as having been so argumentative and aggressive during their marriage that he thought her mentally unstable.

In their affidavits both Swaine and Saunders have given details of a number of specific incidents involving displays of violence by the deceased. It will be convenient at a later point to set out with some particularity what it is to which these two deponents have sworn in this connection. Neither of these witnesses was called to give evidence at the petitioner's trial. Swaine's existence was, of course, known to the petitioner's advisers. Saunders' was not. Each would have to be regarded as of such credibility that the jury's acceptance of their evidence could reasonably be anticipated as probable. Swaine had been a member of the South Australian Police Force for 32 years. Between 1966 and 1968 he was the officer in charge of the Homicide Squad in South Australia. Saunders separated from the deceased and later divorced her on the ground of her adultery. In 1975 in his petition for dissolution of the marriage Saunders described the deceased's conduct in general terms. Having regard to the ground relied upon, no condescension to detail was called for, but the description given is one of ill-temper, violence to her husband and their home and the frequent adoption by the deceased of an abusive and argumentative attitude. A Mr Croxford, the petitioner's present solicitor, has deposed to a conversation in 1983 with junior counsel who appeared for the petitioner at the trial. In the course of that conversation counsel said that Swaine had been spoken to by telephone by senior counsel whilst the trial was in progress.

Swaine had been told that his evidence was inadmissible because the petitioner's instructions were that he had no knowledge of propensity to violence before the fatal struggle. Junior counsel appears to have been conveying that Swaine's evidence was inadmissible because on the petitioner's instructions the petitioner did not, at the time of the incident leading to the death of the deceased, know that the deceased had acted violently towards Swaine. In similar but separate conversations shortly afterwards with the law clerk who instructed at the trial and with senior counsel it was confirmed by each of those two persons, according to Croxford, that the decision not to call Swaine was consciously made on the ground of the inadmissibility of his evidence. Senior counsel said that his recollection was that in a telephone conversation during the trial, Swaine said that the deceased had threatened him with violence on occasion but had never attacked him with a knife and for that reason senior counsel did not consider his evidence relevant or admissible. The petitioner had been in custody since his arrest until trial. He wanted his counsel to call Swaine as a witness in his defence. His wishes were disregarded. He wanted also to give sworn evidence himself. He was advised to make an unsworn statement. In this matter he had his way. After reading the transcript of his cross-examination his insistence that he testify can only be described as having been damaging to his case. The manner in which he dealt with questions put to him in cross-examination must inevitably have served to undermine the jury's confidence in his credibility.

After conviction, the petitioner prepared a notice of application for leave to appeal against that conviction. The grounds stated included the following: - "1. Jury not presented with full facts in my defence (See s(2)). "2. Important witness not called. (Full details of this to be presented later after discussion with counsel.) I require help from counsel on law terminology". The witness referred to was, of course, Swaine. The remaining grounds were not sufficiently explicitly stated as to comply with the Rules. The petitioner was accordingly ordered by a Judge in Chambers on 28 November 1979 so to formulate his grounds and, in so far as he wished to rely on new evidence, to file particulars of it. This the petitioner was unable to do without legal assistance. He had been denied legal aid. The application came before the Full Court six days later. The petitioner had engaged private solicitors to apply for an adjournment. This was done and the matter was adjourned to the following February. In the meantime the retainer ceased for want of funds and the Chamber order remained uncomplied with. On 4 February 1980, which was four days prior to the day fixed for hearing, counsel for the Crown mentioned the application to the Full Court because of that non-compliance. The petitioner sought a further adjournment. This was granted to Monday 20 February. In the event the Public Solicitor did then agree to act on behalf of the petitioner. Grounds of appeal were then reformulated. They were obviously professionally prepared upon a reading of the transcript of the trial. They include such complaints as an incorrect charge on accident, a wrongful leaving to the jury of the issue of self-defence and a wrongful admission of certain evidence. The petitioner was not consulted about these new grounds. Different junior counsel was briefed late on Friday 17 February to argue on the following Monday the application based on these grounds. Counsel then saw the petitioner at Pentridge. The petitioner asked him to argue as a ground the failure to call Swaine as a witness. Counsel according to the petitioner, refused saying that he had spoken to senior counsel who appeared at the trial and who told him that Swaine's evidence was inadmissible.

The application was heard and dismissed on 20 February 1980. No reference was made at the hearing to the non-calling of evidence in the petitioner's defence. An employee of Mr Croxford has sworn that counsel briefed on the application for leave to appeal told him in June 1983 that he did not know of the existence of Swaine at the time he argued the appeal. Prior to the trial the Public Solicitor sought a report from a Dr Rose, a highly qualified and experienced physician specializing in pathology. The report was asked to be made in the light of what was disclosed in the record of interview, coronial depositions and police photographs, copies of all of which were provided to Dr Rose. His report reached the petitioner's advisers in the early stages of the trial. It is relatively inconclusive. But it must be noted that in his evidence before the Coroner, Dr Manock did not describe how the fatal penetrating wound divided into two tracks and that there must therefore have been a withdrawal and reinsertion of the knife. This evidence was first given at the trial. Dr Rose was not asked to comment on it during the trial. However, in an affidavit sworn in August 1983 in support of the present proceedings he has deposed to his belief that the state of putrefaction in the body at the time of the autopsy would so distort the tissues as to make it dangerous to conclude that there had been a total or partial reinsertion of the knife. Dr. Rose said his opinion was that the severance of both arteries was consistent with there having been one single knife wound.

The grounds In the light of the material now available and not called at the trial and the reasons for its not being called, it is said for the petitioner that this reference should succeed. There have been grounds set out in support of the petition. The relevant grounds are as follows: - "1. Such fundamental errors were made in the legal representation of the petitioner before, during and after his trial for murder that the petitioner did not receive a fair trial, and a miscarriage of justice occurred.

Particulars of errors made in the legal representation of the Petitioner (a) No investigation was conducted into the background of the deceased when, in the circumstances, such investigation was essential. (b) The petitioner's solicitor withdrew instructions to conduct an investigation into the background of the deceased before that investigation had commenced. (c) The petitioner's solicitor failed to obtain any or any adequate instructions from a witness (one Stanley Swaine) who had been drawn to his attention as being a witness of great importance and whose evidence was in fact of critical importance to the petitioner's defence. ... (e) The law clerk in the office of the petitioner's solicitor who was charged with the duty of preparing the petitioner's case and of instructing counsel at the trial failed to read a report from a pathologist (Dr W McI Rose) with proper care and, as a consequence, completely misunderstood the nature of the evidence that Dr Rose could give and, as a further consequence, failed to instruct counsel that Dr Rose should be called to give evidence. ... (g) Counsel for the petitioner failed to inform themselves adequately as to whether the evidence which could have been given by Stanley Swaine was admissible evidence. (h) Counsel for the petitioner wrongly concluded that the evidence which could have been given by Stanley Swaine was inadmissible, which view they would not have formed had they adequately informed themselves as to the law, and as a consequence of that error failed to call a witness, namely Stanley Swaine, whose evidence was of critical importance to the petitioner's defence. ... (k) Counsel for the petitioner failed to read a report from a pathologist (Dr WMcI Rose) with proper care and, as a consequence, completely misunderstood the nature of the evidence Dr Rose could give and as a further consequence: - (i) failed to challenge the evidence of the pathologist called on behalf of the Crown as to the manner in which the fatal wound was caused; and (ii) failed to call a witness (Dr Rose) whose evidence was of critical importance to the petitioner's defence. ... "2. There is evidence available from Stanley Swaine, Frank Alan Saunders and William McIntosh Rose which is 'new material' in that it was not led at the trial. That new material demonstrates that there is such a doubt as to the guilt of the petitioner of the crime of murder that the verdict of guilty should not stand. Accordingly, a miscarriage of justice occurred. "3. The evidence of Stanley Swaine, Frank Alan Saunders and William McIntosh Rose is 'fresh evidence' within the principles that allow for its later reception. The evidence is properly capable of acceptance, and is likely to be accepted by a jury and is so cogent that the Court should accept that, if believed, it is likely to produce a different verdict. Accordingly, a miscarriage of justice has occurred and a new trial should be ordered to remedy it." It will be seen that these grounds do not, as, indeed, legitimately they should not, seek to readjudicate any ground of appeal disposed of. They are properly confined to additional material brought before the Court: see Re Matthews and Ford [1973] VR 199. Categories of miscarriage of justice Before turning to deal with these grounds it is necessary to say something briefly about the relevant principles that govern the resolution of the issues which the petition has presented.

The petition which has been referred to the Court is to be dealt with as an ordinary appeal. Re Matthews and Ford [1973] VR 199. The petitioner seeks to have the Court exercise its power under s568(1) of the Crimes Act 1958 to allow an appeal "if it thinks...that on any ground there was a miscarriage of justice." In Ratten v R (1974) 131 CLR 510, at pp. 516-20, Barwick CJ discussed three categories of cases in which there had been found to be a miscarriage of justice. In cases in the first category, if the appeal court is satisfied that on the evidence at the trial, and any new evidence placed before it, a reasonable jury would necessarily entertain a reasonable doubt as to guilt, it will quash the conviction: Chamberlain v R (1984) 51 ALR 225. A new trial will not be ordered. Ground 2 in the petitioner's grounds seeks to bring this case within that category.

A case may fall within the third category mentioned by Barwick CJ where an appellant demonstrates that he has evidence available which was not available to him at the trial and which by reasonable diligence in his own interest he could not have had available at the trial. Such evidence falls within the technical description of "fresh evidence". If the appeal court is satisfied that the fresh evidence, if believed, would be likely to produce an acquittal, it will quash the conviction and order a new trial. Ground 3 of the petitioner's grounds seeks to bring this case within that category.

Cases within the second of the categories mentioned by Barwick CJ are cases where, because of something which occurred or something which did not occur, the trial became unfair. It is this type of miscarriage of justice which is relied on by the petitioner in ground 1, the ground on which his counsel primarily relied. Within this category of cases a miscarriage of justice may be produced by such a variety of circumstances that it is unhelpful to seek to give any exhaustive description of cases within the category. If an appeal is allowed in a case within this category a new trial will be ordered. In deciding whether there has been a miscarriage of justice, considerations of degree involving an assessment of the importance of a particular defect or omission in the actual circumstances of the trial are relevant. On this ground the question for us is whether there was in the circumstances of this trial a defect or omission of such a nature and of such importance as to amount to a miscarriage of justice. In referring to the courses taken when a conviction is quashed in cases within the respective categories, we recognize that, no doubt, unusual circumstances could exist in a particular case and lead the appeal court in its discretion to follow another course.

Ground 1: In dealing with the petitioner's case on ground 1, we will first consider the importance of the defect or omission which is alleged.

The importance of the evidence of Swaine and Saunders

The Crown case was one which appeared strong and probable. The version of the petitioner was one which, if considered alone, would strike a jury as implausible in a number of basic respects. In the setting, the unexpected appearance of the deceased in an unreasoning and belligerent state of mind, armed with a knife and acting aggressively towards the petitioner would seem a most improbable occurrence. Even if that did occur it would seem unlikely that the petitioner placed in such a position would seek to disarm her rather than leave, through fear that otherwise she would use the knife to harm him or herself or the children. It would seem particularly unlikely that he would fear harm to her or the children. While her conduct, if accepted, would of itself show an aggressive attitude towards him, there was nothing in the circumstances and nothing in the other evidence apart from that of the petitioner to indicate that the deceased had the slightest propensity towards suicide or towards harming her children. Although, in the record of interview which he adopted in his evidence, the petitioner said that once she had tried to take an overdose of tablets and once she had threatened to cut the children's throats, both Davidson and the accused gave evidence that she was a good mother to the children. Thus, the account given by the petitioner of the incident which led to the death of the deceased started from a foundation which according to ordinary human experience was improbable. A jury would be likely to commence with great reservations about the reality of what the petitioner said was the first move in the events which led to the fatality. There were also other aspects of the petitioner's version which would tend to lead a jury not to accept it because it did not appear to correspond with what would be expected if the petitioner's account were true. If what he said was true it would not be expected that the smaller and weaker deceased would strongly resist his taking the knife from her, that there would be two deep knife wounds or that a bent and bloodstained knife would be found. The petitioner's act of putting the body in the boot of his car and driving interstate instead of calling the police would be likely to be taken as indicating that he was conscious that he was guilty of murder. The petitioner's evidence that he was not laying a false trail in going to Perth and was not still in the process of flight when arrested, seemed inconsistent with the circumstances shown by the evidence. On the evidence called by the Crown and the defence at the trial the prospects of an acquittal were small.

The evidence of Swaine and Saunders would have placed a very different complexion on the case. It was credible evidence which the jury would probably have accepted. It was evidence which could have removed the strong appearance of unreality from the petitioner's evidence as to the conduct of the deceased and his apprehensions at the opening of the fatal scene. Indeed, it was evidence which could have been regarded as giving a strong indication that that part of his evidence was consistent with an established pattern of conduct by the deceased. We give a summary of the evidence given by the petitioner as to the earlier conduct of the deceased and the evidence which Swaine and Saunders could have given as to that. The petitioner was permitted without objection, by confirming the correctness of answers set out in the record of interview which the Crown had tendered, to give the following evidence of the deceased's earlier violent acts, threats and unfounded accusations: -

The deceased had been a "neurotic type" throughout their relationship; B. She had previously made totally unwarranted accusations against him to the police alleging that he had taken property belonging to her; C. She had previously slashed clothing belonging to him with a sharp instrument prior to posting it to him at his place of residence; D. She had previously exhibited violence towards him clawing at him with her nails, scratching his chest and face; E. She had previously threatened to cut the throats of her children; F. She had previously tried to commit suicide by taking an overdose of tablets and had been prevented from doing so by the petitioner.

Now, if the affidavits of Swaine and Saunders and the exhibits thereto are examined in order to extract the references to the deceased's prior disposition to indulge in like behaviour the material so extracted can be summarized as follows: - Stanley Swaine Specific incidents 1. (Affidavit sworn on 12 August 1983) After dinner and one bottle of wine consumed, deceased became most belligerent and aggressive. "She suddenly and for no apparent reason got up and attacked me, physically hitting me and wrestling with me. She said she was going to get me." 2. In approximately 1975 / 76 the deceased again went out to dinner with Swaine. "As was normal, we ordered wine, and it was very soon after her first drink that she became very truculent, very nasty and aggressive... She changed suddenly and completely." On the way home to her flat in Box Hill, "she was in a state of complete anger and truculence, and said that she was going to kill her children...I had by this time formed the opinion that under the influence of liquor she was quite crazy."

General opinions 1. "As I came to know her better there were a number of occasions where she demonstrated a violent propensity. On these occasions she would become suddenly aggressive and violent towards me. She would become belligerent for no apparent reason and without any provocation from myself or any other person. I discovered that she would become unstable after consuming even a moderate quantity of alcohol." 2. "Eventually, as a result of several such episodes of violent behaviour, I became convinced that it was dangerous for me to continue to associate with her. I therefore terminated our relationship in 1976." 3. "Thereafter I started to notice that whenever she drank wine, she seemed to become morose and truculent..." 4. "My reason for breaking the relationship was that I had noticed that she became unstable when she had been drinking, and was in my opinion dangerous to associate with, as my experience in the police force, particularly in charge of the Homicide Squad, I had noticed that most killings took place in emotional circumstances among people who were closely related, particularly sexually, and that she was the type of person who may very well engender a situation where emotions could get out of control and cause trouble. I decided that her disposition was such that she represented a significant danger, and although normally a reasonable and loving person, she was too great a risk for me to continue a close relationship." 5. "However, I can say that I began to recognize a general pattern that Pat used to become very truculent after a few drinks. She would go from a pleasant person with an attractive disposition and easy going nature to an aggressive and intransigent person. You could not reason with her under these circumstances, and after a while I learnt to simply say as little as possible." 6. "Pat's personality was changed under the influence of alcohol. It did not take a large amount of alcohol for this effect to be evident." 7. "When Pat attacked me as set out in my statement, I cannot recall that there was anything specific which triggered the attack. Indeed, on all of these occasions I cannot recall specifically what provoked Pat and I do not believe that it took anything genuinely to provoke her condition." 8. "After a period of observing Pat, and particularly after the attack she made against me in her flat at Box Hill, I took the view that she was the sort of person who would lead one into a situation where emotions became overcharged. I came to this view at the time, and I do not do so in retrospect. I clearly took the view at the time that Pat was potentially a dangerous person to continue a relationship with and so I decided that we should break it." 9. "Knowles' account of the attack, and the fact that it appeared to be unprovoked certainly strikes me as being something as Pat Saunders could well do." Frank Alan Saunders Specific incidents 1. (Affidavit sworn on 11 August 1983) "During the six months immediately after May 1963 there were occasions when she left home in the middle of the night, dressed only in her night dress and sauntered about on the footpath. During this period on one occasion she lost her temper during an argument one night and using a can opener chopped a hole in the wall." 2. "Sometimes she would kick the baby's pram to make her cry so that I would be kept awake. On occasions she would throw lighted cigarettes into the cot. Once while I was making the bed, she continued to rumple it. I pushed her out of the room, and locked the door, whereupon she produced an axe and chopped the door down." 3. "There were two occasions during our marriage when she attempted to commit suicide by taking an overdose of some form of tablets, probably aspirin. On each occasion the overdose was taken in my presence." 4. By 1967 "Often I would receive telephone calls requesting me to return home because she was ill. Upon my arrival she would express surprise that I had come home, and begin an argument with me. At night I would occasionally be forced to try and get some sleep in the car in the driveway, and she would come out and rock the car and kick it as well." 5. "On one occasion around 1967, after commencing an argument with me about this matter [allegations of infidelity] she came at me with a knife. I recall that she threatened 'to cut my balls off', on this occasion."

General opinions 1. (Affidavit, Saunders' Divorce Petition) "Immediately following the marriage the respondent adopted a possessive and jealous attitude towards the petitioner [i.e. Saunders] and argued with him at the slightest instance. She was easily given to rages and fits of temper during which she struck the petitioner, abused him and otherwise did damage to the home. Her conduct caused grave disharmony in the matrimonial home whereby the petitioner suffered tension. Her argumentative and abusive attitude towards the petitioner lasted for hours on end at any one time and on many occasions she so acted as to prevent the petitioner from sleeping of an evening. She falsely accused him of associating with other women, threatened him and conducted herself as to evidence an intention to end the marriage." 2. "By 1967 I had come to the conclusion that my wife was mentally unstable." 3. "Patricia Saunders was a person who was prone to sudden changes in temperament. One moment she would be placid and pleasant, and the next moment fly into a rage. In the later part of our marriage she would flare up suddenly and for no apparent reason. I believe that she had a dual personality during our marriage. I described her as schizoid. This was so even when she was not drinking alcohol. If she was drinking alcohol her mental instability would be increased." A comparison of the summary of the additional evidence with the petitioner's evidence as to his knowledge of past violence and threats and what he says were the fears he entertained and which motivated his actions at the crucial moments discloses quite startling support for the petitioner's case.

The evidence of Swaine and Saunders was evidence which went to the following matters - whether the deceased had initiated the fatal scene by appearing with a knife, whether she was acting in a threatening or belligerent manner, whether she was a person prone to sudden and unreasoning violence when affected by drink, whether in any struggle to take the knife away from her she would be likely to have resisted strongly and thus increased the risk of a fatal mishap and whether there was a risk that she would do injury to herself or to her children if the applicant simply left the premises. All of these matters went to the facts in issue, namely whether the killing was an accident or whether it fell within the bounds of self-defence. The evidence of Swaine and Saunders was evidence of great significance and importance on these matters, which went to the critical issues in the case.

On one view the evidence of Swaine and Saunders can be described as being crucial on the question of the applicant's credibility. But it needs to be added that it was not simply some matter of credibility but his credibility on the central issues in the case. It was not a case where it was simply directed to his credibility generally or to his credibility on any ancillary issue. Evidence as to credit, no matter how significant or decisive on the point of credit to which it is directed, would seldom be of sufficient importance to found a finding of miscarriage of justice, unless it went to a crucial issue. Thus, for example, we would not regard evidence that went to confirm the truth of the petitioner's version on an ancillary issue such as some aspect of his actions after he left the flat with the body, as evidence of sufficient importance in this respect.

In argument, the Crown conceded the relevance and admissibility of the evidence of previous disposition. But, on its behalf it was said that in this case the evidence could not have had any, or any significant, importance. It was contended that the trial can be seen from the transcript of its proceedings to have been conducted on the basis that the Crown did not dispute that the deceased was in a belligerent mood, had armed herself with a knife and threatened violence to the petitioner with it unless he left her flat. If there was no dispute about these matters, it was submitted, then the jury must be assumed to have found those facts in the petitioner's favour and the evidence of Swaine and Saunders, if admitted, would not have taken the matter any further. Therefore, it was put, the evidence in the circumstance of this particular case would not have been evidence of great cogency, weight or importance to the defence case.

There are two answers, as it appears to us, to this submission. In the first place it is clear that there never was any formal admission by the Crown as to these various matters concerning the deceased's conduct. And, indeed, our reading of the Judge's summary in the charge, of the way that the Crown put its case, does not give us the impression that any significant part of the petitioner's account of the events in the flat which led to the death was accepted by the Crown, although not expressly and specifically challenged. For example, the Judge told the jury that the Crown said it should discard his evidence as unreliable and it might be disinclined to rely at all on anything he said. With reference to the question of self-defence the Judge said "the Crown says that even if the deceased did walk into the room with a knife, the accused could either have left, gone home, or if he was really afraid of being stabbed, he could have quite easily, with his superior strength, taken the knife away from the deceased without stabbing her". In cross-examination the Crown prosecutor put it to the petitioner that in his interview with the police he was "trying to throw a certain complexion on Patricia Saunders' character". He was also asked whether he was certain that they did not both have a knife. In any event the jury was, properly, told all the facts were for it to decide and, consequently, in the absence of a formal admission (which the Crown could scarcely have been expected to give) the whole question relating to the deceased's immediate pre-death conduct was for the jury. It thus remained an open evidentiary question which was, in relation to how the jury resolved it, of great significance to the success or failure of the petitioner's defence. In the second place the submission ignores the importance of the new evidence in providing a critical bolster to the petitioner's credibility. The more that evidence demonstrated that the deceased, in doing what the petitioner said she did before her death, was conforming to similar past conduct, the more probable it was that the petitioner was giving a truthful account of what occurred - and thus the more likely it would be that in relation to other matters that the Crown hotly disputed, the evidence the petitioner gave would be treated as truthful. In particular his reason for remaining in order to take the knife from the deceased - namely to avoid danger to either of them or to the deceased's children - might have seemed far-fetched to the jury. But, if it had heard from Swaine and Saunders evidence of prior attacks such as gave rise in them to the very apprehension that the petitioner claimed to entertain, then the jury might very well have taken a more benevolent view of the truthfulness of the petitioner's account. So, too, might it have possibly regarded the petitioner's post-death actions with less cynicism than presumably it, in fact, did. We consider that in this case the evidence of Swaine and evidence which investigation would have shown that Saunders could give was evidence of fundamental importance to the effective presentation of the petitioner's defence.

The decision to omit the evidence We now look at the nature of the defect or omission which the petitioner alleges. It is put for the petitioner that fundamental error leading his counsel at the trial to refrain from calling the evidence of Swaine and Saunders amounted to a defect or omission which caused the trial to become unfair. In considering a submission that miscarriage of justice arose through an error by counsel, it is important to bear firmly in mind the nature of a common law trial and the function of counsel in it. In Re Ratten [1974] VR 201, at p. 214, the Full Court said: "Under our law a criminal trial is not, and does not purport to be, an examination and assessment of all the information and evidence that exists, bearing upon the question of guilt or innocence. Even the Crown has some degree of choice as to what witnesses it will call. And the accused is completely free to decide how he will conduct his defence. He has the right to choose what issues he will consent, what facts he will dispute, whether he will give evidence or not, whether he will call witnesses or not, and, if he elects to call witnesses, which ones he will call. All these rights are fundamental to the conception of fair trial under our system of criminal justice." In R v Sarek [1982] VR 971, at pp. 982-3, McInerney J, in a judgment in which Kaye J agreed, said: "It is obviously dangerous to embark on a course of determining whether a new trial should be mounted on a basis of inexperience or remissness or defect of judgment or neglect of duty on the part of the legal practitioner appearing at the trial. "Such factors will not in themselves induce a Court of Criminal Appeal to quash a conviction and order a new trial unless the Court is satisfied that in the result a miscarriage of justice has occurred; see R v James McCall (1920) 20 SR (NSW) 467, at p. 472, per Cullen, CJ.

"Where an accused person has at his trial been defended by a legal practitioner, a Court of Criminal Appeal will attach great significance to the deliberate decision of that practitioner as to the conduct of the trial and the defences taken at the trial and it will be very reluctant to substitute its judgment for that of the practitioner who appeared for the accused at the trial: see, for example R v James McCall, supra; R v McIntyre [1965] VR 593. R v Jeffrey [1967] VR 467. See also R v Hadland [1969] VR 725; R v Masin [1970] VR 379. R v Nardella [1971] VR 217. In most cases the appellate tribunal will not seek to go behind a deliberate decision taken at the trial by a solicitor or counsel for the accused or even by the accused himself. Nevertheless the fundamental question must always be whether the conviction involves or has brought about a miscarriage of justice: see Maric v R (1978) 20 ALR 513."

The position is that, provided the case is seen to be an appropriate one, this Court may "interfere to protect an accused man from his own counsel (R v Young and Robinson [1978] Crim LR 163) and from the result of bad management or misconduct of his case at the trial (R v Perry and Harvey [1909] 2 Cr App R 89; cf. R v Sayers [1922] St R Qd 64; and R v Lane [1965] QWN 33)": R v Sarek, supra. To the cases cited by his Honour there may be added R. v Knox (1927) 20 Cr App R 96 and R v Connolly (unreported, NSW Court of Appeal, 15th March 1979).

The evidence before us to explain why the evidence of Swaine was not called and investigation into the existence of evidence such as that of Saunders was not proceeded with, consists largely of "out of court" statements which are not admissible under the rules of evidence. If the Crown had objected the Court could not rely on it. However, for good reason the Crown has not objected to it. The Court may act on the evidence despite the mode of its proof unless precluded by some rule of law based on public policy from receiving evidence of the facts the subject of the evidence even if the rules of evidence as to the manner of proof had been satisfied. Re Matthews and Ford [1973] VR 199, at pp. 208-9. No rule of law precludes the Court from receiving this evidence.

We are conscious of the fact that we do not have before us any direct or detailed account from counsel of their reasons for taking the course which they did. All that is before us is the evidence of events and evidence of statements made by counsel or their instructor during or about the time of the trial or more recently. We are most conscious of the considerable risk that in these circumstances an injustice may be done to counsel. However, we must decide the case on the material before us. The evidence before us makes it tolerably clear that counsel at the trial were firmly of the view that the evidence of Swaine and evidence such as Saunders could give, was irrelevant and therefore inadmissible. The basis for such a belief was undoubtedly the line of single Judge authority in this State commencing with a ruling by Lowe J. In R v Flanagan [1946] VLR 159. That ruling was that in cases in which the defence of self-defence or accident is an issue, evidence of facts of which the accused had no knowledge is not admissible. The reported cases indicate that for some years the ruling was generally followed. However, in R v Hector [1953] VLR 543, Sholl J permitted evidence to be given not only of the accused's knowledge of incidents of which the accused had personal knowledge, or of which he had been informed, but also evidence of the occurrence of incidents, deposed to by third parties, which incidents are consistent with other evidence given by the accused of his own state of mind and what induced it: see p. 547. This latter view of the law, if we may respectfully say so, is plainly right. As Professor Wigmore has said, where "a controversy arises whether the deceased was the aggressor, one's persuasion will be more or less affected by the character of the deceased; it may throw much light on the probabilities of the deceased's action... [the] additional element of communication is unnecessary; for the question is what the deceased probably did, not what the defendant probably thought the deceased was going to do. The enquiry is one of objective occurrence, not of subjective belief": Wigmore, Evidence, 3rd ed., pp. 470-1. It is to be remembered that the Crown is precluded from calling evidence of the disposition or propensity of an accused person to act in the way alleged at his trial by a rule of public policy despite the fact that it would otherwise be relevant probative evidence. No such principle excludes evidence of the disposition or propensity of a person other than the accused: see R v Lowery and King (No. 3) [1972] VR 939; Lowery v R (1973) 47 ALJR 309. The conflict in this State was resolved by this Court in R v Gibb and McKenzie [1983] 2 VR 155 in favour of the adoption of the ruling given by Sholl J. The Full Court's decision was published in 1982 - at a time, of course, after the petitioner's trial.

The general effect of the evidence that Swaine was prepared to give was known to the petitioner's counsel and instructor in plenty of time for arrangements to be made for him to attend as a witness. Because counsel regarded his evidence as inadmissible Swaine was not called. The Public Solicitor sent to Mr Lentin the investigator a letter of 18 October 1979 informing him the petitioner's trial was to commence on 1 November 1979, stating that it appeared that the deceased had a propensity to violence which may have been induced by some sort of mental disorder and requesting him to conduct investigations to obtain evidence to substantiate that propensity. Mr Lentin said he received a message not to proceed because the case may be adjourned. The evidence before us indicates that a decision not to proceed with such investigations was made after counsel were retained and in the circumstances the inference is that it was decided not to call any evidence which may exist as to the deceased's propensity, because counsel regarded it as inadmissible. We must consider whether counsel ought to have sought to lead Swaine's evidence and ought to have requested that inquiries continue as to her propensity and to have called such evidence as those inquiries revealed. If Swaine's evidence and evidence such as that of Saunders had been tendered the probability is that it would have been admitted. It would have been likely to have been admitted either because the trial Judge regarded it as legally admissible or through the operation of the practice usually followed by trial judges that the benefit of the doubt, even on a ruling of admissibility of evidence, is to be given to the accused: see R v Patel [1951] 2 All ER 29. If the trial Judge had excluded the evidence and conviction had resulted the petitioner would have been able to appeal against the conviction on that ground. In our view there is no question but that counsel should have sought to lead the evidence. As mentioned above, it would have given the case on the whole of the evidence a complexion far more favourable to the defence. It would also have provided substantial support for the petitioner's credibility as a witness and this was of the utmost importance to his defence.

We can see no forensic reason other than error of law as to its admissibility which would have led defence counsel to decide not to call the evidence. If it had been called, the Crown still had a strong case and could have secured a conviction. This evidence, however, would have changed the defence position from one where as a matter of forensic reality the prospects of an acquittal were minimal to one where there was a real prospect of obtaining an acquittal. On the evidence available to them and no doubt on the petitioner's instructions, the obvious way for counsel to have conducted the defence was on the basis that the deceased was a person with a disposition towards periods of emotional instability when she was prone to threaten or actually offer violence towards herself or others. This appeared in the record of the petitioner's interview which the Crown, as would be expected, tendered as part of its case. At the trial defence counsel did seek in cross-examination to reinforce this view of the deceased. Davidson was asked whether he considered the deceased a somewhat emotional type of woman but he answered that she "never showed it" to him. When cross-examining the petitioner's landlady, senior counsel for the petitioner asked whether she had received from a person she believed to be the deceased, telephone calls in which, without her identifying herself, the deceased commenced to be abusive. Objection was taken and the questions were not pursued.

The decision not to call the evidence of the past conduct of the deceased was not a decision upon the best tactics to follow nor a decision as to the best of two or more courses to follow where each course appeared to have its advantages and disadvantages. Decisions of those types depend essentially on the judgment of counsel and counsel for the defence, familiar with all aspects and features of the trial, is in by far the best position to make such decisions. Decisions such as those, even if an appeal court thought that counsel had made an unwise or imprudent decision, would almost never found a successful appeal based on miscarriage of justice. The Crown argued that the decision now being considered was of the same type as those decisions but we do not agree. The course to be taken in the conduct of the defence of an accused person is left to the judgment of the defence lawyers. A trial will not normally be regarded as having miscarried if the accused has been afforded a proper opportunity for choice and a choice has been made by his legal representatives on his behalf. This is illustrated by the statement by Barwick CJ in Ratten v R (1974) 131 CLR 510that: "It will not become an unfair trial because the accused of his own volition has not called evidence which was available to him at the time of his trial, or of which, bearing in mind his circumstances as an accused, he could reasonably have been expected to have become aware and which he could have been able to produce at the trial." Amongst the various defects or omissions which may lead a trial to become unfair and to amount to a miscarriage of justice are circumstances which may be treated as vitiating the volition or choice by an accused or his lawyers to follow or refrain from following some course at the trial. Some factors capable of amounting to vitiating factors, which are mentioned in the cases, are fraud, mistake, surprise, malpractice and misfortune, and, with particular reference to defence lawyers, inexperience, remissness, defect of judgment or neglect of duty: R v Hadland [1969] VR 725; Re Ratten [1974] VR 201 and R v Sarek [1982] VR 971. In this case counsel, believing the evidence to be inadmissible and without prospect of being admitted, would never have applied their minds to whether they should call Swaine's evidence and other evidence to a similar effect. Due to this fundamental error no choice was made by counsel as to whether or not it was in the interests of the petitioner to call this evidence. This resulted in the failure to tender the evidence. The error and omission were carried through to the appeal from the conviction. The affidavits indicate that counsel who argued the appeal on behalf of the petitioner was either guided by what senior counsel at the trial told him, that the evidence was inadmissible, or was unaware that such evidence was available. In this case, the error of counsel as to the admissibility of the evidence amounted to a vitiating factor.

Where there is a vitiating factor there may be circumstances where a failure to call important evidence which was available or could by reasonable diligence have been available to the defence, will lead to a miscarriage. The fundamental error by counsel as to the admissibility of the evidence of Swaine and evidence such as that of Saunders, which led them to think they had no choice and therefore to fail to make a choice whether or not to call it, could bring about a miscarriage of justice in the circumstances of this case, regardless of whether the evidence amounts to fresh evidence as required by cases within the third category mentioned by Barwick CJ. We mention that the petitioner's particulars under ground 1 do not allege that Saunders' evidence was not called as a consequence of the error of counsel as to the admissibility of such evidence. However, the case was, without objection, argued on that basis, the material supports it and a reference such as this is not one for a technical approach: see Re Ratten [1974] VR 201.

The evidence of Dr. Rose It seems that Dr. Rose's report came to hand after the trial commenced. But certainly it was available to the petitioner's counsel before the close of the Crown's case. The information would have been available to the defence lawyers on inquiry that, despite Dr Manock's evidence given at the trial (but not at the inquest) that he thought the knife had been reinserted in the fatal wound and that the arteries were severed by separate stabbings, Dr Rose was prepared to swear that his opinion remained that a single knife wound could have caused both arterial lesions. It would have been necessary that Dr Rose be telephoned whilst the trial was in progress and be asked his opinion concerning Dr Manock's additional evidence if it was thought by counsel that such an opinion was valuable. Almost certainly by such time, counsel had considered that it was unnecessary for the defence to have evidence contradictory of Dr Manock even if that evidence might be forthcoming from Dr Rose because of the concession that by then had been made by Dr Manock when cross-examined. Qualified as it was, it was probably thought that the admitted possibility of the two knife tracks being consistent with a continuing struggle for possession of the knife would prevent the jury from reaching a conclusion beyond reasonable doubt on this matter adverse to the petitioner. If such a decision were reached it was one eminently for counsel to make. Nor, could it be said, in the circumstances, that it was one which at the time was incorrect. We do not consider that the fact that Dr Rose was not called assists the petitioner to establish that there was a miscarriage of justice. Whether a miscarriage We turn to the ultimate question, which is always whether there has or has not been a miscarriage of justice: Re Ratten [1974] VR 201.

We consider that, by reason of the fundamental error by counsel to the effect that the evidence of the earlier conduct of the deceased was inadmissible and was without prospect of being admitted, evidence of fundamental importance to the petitioner's defence was not called and that this in the circumstances of this case brought about a miscarriage of justice. Accordingly, we find that ground 1 is sustained.

Ground 2 Although ground 2 was not pressed by counsel for the petitioner, we have considered it because, if successful, it would ordinarily follow that the conviction be quashed and there be no new trial. The second ground does not assert that the evidence now available from the witnesses Swaine, Saunders and Rose is fresh evidence. The effect of the ground is to assert that this evidence should be regarded as evidence of such relevance, credibility and cogency that the Court should be satisfied that on its presentation together with the evidence given at the trial a reasonable jury would necessarily entertain a reasonable doubt as to guilt. We consider that counsel for the petitioner was correct in not pressing this ground and in seeking no more than a new trial. Even if this new evidence is accepted as credible, we are not led to the positive conclusion that on it and the evidence given at the trial, a reasonable jury would necessarily entertain a reasonable doubt as to guilt. It might or might not. Accordingly the second ground is not sustained.

Ground 3 As we have upheld ground 1 we are not required to consider whether the evidence of Swaine, Saunders and Rose amounts to "fresh evidence" capable of sustaining ground 3 and accordingly will refrain from doing so. Decision The Court will order that the appeal be allowed. There is nothing in the material before us to suggest that, despite the lapse of five years, a new trial would now not be practicable. Indeed, we understood the learned Solicitor-General to have indicated that there would not be any impediment to a further trial if that were the course which the Court thought should be adopted. Accordingly, the conviction and sentence will be set aside and it is ordered that there be a new trial.
Order: Appeal allowed. Conviction and sentence set aside. New trial ordered.

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