and Glenn Weaven v The Queen
[2018] VSCA 127
•21 May 2018
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCR 2017 0195 | |
| GLENN WEAVEN | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | WHELAN, PRIEST and KYROU JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 14 May 2018 |
| DATE OF JUDGMENT: | 21 May 2018 |
| MEDIUM NEUTRAL CITATION: | [2018] VSCA 127 |
| JUDGMENT APPEALED FROM: | R v Weaven [2011] VSC 508 (Weinberg JA) |
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CRIMINAL LAW — Appeal — Conviction — Application for extension of time to appeal — Applicant convicted of murder — Six year delay in filing application — Refusal of extension of time by Registrar — Election to have application determined by Court of Appeal — Fresh or new evidence — Confession obtained through ‘scenario’ technique — Whether psychologist’s opinion and change in Canadian jurisprudence post-trial constitutes ‘fresh’ evidence — Whether other evidence constitutes ‘new’ evidence — No prospect that appeal would succeed — Application refused — Criminal Procedure Act 2009 s 313(2) — R v Hart [2014] 2 SCR 544; R v Wichman [2016] 1 NZLR 753 discussed — Tofilau v The Queen (2007) 231 CLR 396; Madafferi v The Queen [2017] VSCA 302 applied.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr P J Matthews | Stary Norton Halphen |
| For the Respondent | Mr M D Stanton | Mr John Cain, Solicitor for Public Prosecutions |
WHELAN JA:
I have read in draft the judgment of Priest JA with which I agree. For the reasons he gives, the application for extension of time should be dismissed.
PRIEST JA:
An application for extension of time
More than six years ago, on 18 August 2011, a jury in the Supreme Court convicted the applicant of the murder of Mary Lou Cook.
On 12 October 2011, the trial judge sentenced the applicant to be imprisoned for 20 years, and set a non-parole period of 16 years.[1] Thus, the time limit for filing an application for leave to appeal against conviction expired on 9 November 2011.[2]
[1]R v Weaven [2011] VSC 508 (Weinberg JA). 754 days’ pre-sentence detention was declared.
[2]Section 275(1) of the Criminal Procedure Act 2009 requires a notice of application for leave to appeal against conviction to be filed within 28 days after the day on which a person is sentenced, subject to any extension under s 313 of the Act.
Notwithstanding the very long delay, on 15 September 2017 the applicant filed an application for an extension of time within which to file an application for leave to appeal against his conviction, together with an application for leave to appeal against conviction.
The Registrar of Criminal Appeals refused an extension of time on 25 January 2018. In summary, the Registrar did so because he considered that:
(a) Mr Weaven has not provided a satisfactory explanation for the delay, which is substantial;
(b) Mr Weaven has not demonstrated that there are such merits in the proposed appeal that it would probably succeed;
(c) Mr Weaven has not sufficiently demonstrated special and substantial reasons for extending time; …
Pursuant to s 313(2) of the Criminal Procedure Act 2009, the applicant now
seeks from this Court an extension of time within which to file a notice of application for leave to appeal against conviction.
For reasons that follow, the application for an extension of time must be refused.
A confession obtained using the ‘scenario’ technique
Mary Lou Cook, with whom the applicant had a longstanding relationship, was killed at her home in Narre Warren shortly before 1.00 am on 14 December 2008. Her home was then set on fire. According to the evidence of a pathologist, the victim received a single fatal stab wound to the neck. Given how severely her body had been burned, however, it was impossible to conclude that she had not received stab wounds to other areas of her body.
Within days of the killing, police suspected the applicant of having been involved in Ms Cook’s death. On 18 December 2008, the applicant willingly participated in an interview with Sergeant Ronald Iddles of the Homicide Squad. He denied any involvement in the murder, however, and claimed to have been at his parents’ home, some two kilometres from the scene of the crime, at the relevant time. The applicant also made a detailed statement to Detective Senior Constable Edward Keon-Cohen in which he said:
I have no idea what started to [sic] fire. I have no idea how Mary died. I last saw her at 12.30 pm on Saturday [13 December 2008] and I last spoke to her about 9 pm that night but I’m just guessing the times.
Sergeant Iddles considered that, although the applicant was a suspect, there was insufficient evidence to charge him with murder at that stage.
In the course of subsequent investigations, police undertook a covert operation utilising a ‘scenario’ technique. That investigative technique involved police orchestrating a situation between the applicant and undercover police, whereby the applicant was falsely led to believe that he was assisting the activities of an organised crime gang. Thus, between July and September 2009, the applicant met with undercover police on a number of occasions. During that period, the applicant took part in a number of different ‘scenarios’, involving what he was led to believe was criminal activity. The applicant’s belief was that he was participating in the activities of an organised criminal gang, and that he was being groomed for possible membership of that gang. He was paid various amounts of money for his assistance in these ‘criminal’ activities, and was led to believe that there was opportunity to earn a great deal more.
Eventually, on 18 September 2009, the applicant had a meeting with an undercover officer known to him as ‘Gary’, whom he believed to be the ‘Mr Big’ of the crime gang. Gary told the applicant that he knew that he was a suspect in relation to Ms Cook’s murder. He told the applicant that he could ‘fix’ that problem if the applicant told him the truth about his involvement in Ms Cook’s death, making it clear that the applicant’s membership of the gang depended upon his truthfulness about the killing.
Initially, the applicant implied that the victim had been killed by her daughter, Kayla, and claimed that his only involvement in the murder had been as an accessory. In essence, he implied that he had something to do with the disposal of the weapon. The applicant said that, although the police were looking for a screwdriver, he thought the weapon was a steak knife with a broken blade, which Kayla had with her at some time in the couple of days following Ms Cook’s death. Gary expressed himself not to be satisfied with this account, however, and admonished the applicant to be truthful.
The applicant then suggested that a man named ‘Sean’ stabbed Ms Cook, and that the applicant had then panicked and ‘finished it off’, stabbing the victim in the stomach with a screwdriver. According to this account, the applicant later arranged for a friend, ‘Dave’, to kill Sean. The applicant said that Dave had taken Sean deer hunting, and had shot him with a 303 rifle. Dave had then put Sean’s body through a meat mincer and had fed the body parts to his dogs. Once more, Gary was not satisfied with the truthfulness of this account.
A third version — which may be characterised as the ‘scenario confession’ — was then advanced. The third version was in essence a repetition of the second version, without the participation of either Sean or Dave (the applicant by this time admitting that they had no involvement in the killing).
In the third version, the applicant told Gary that on the night of Mary Lou Cook’s murder, he had visited her home in order to smoke with her. He said that he had walked the two kilometres from his parents’ home to her address. After he arrived, a dispute broke out between them. The applicant said that the dispute arose out of Ms Cook having failed to pay for drugs that had been supplied to her by a third party, in circumstances where the applicant had assured that person that Ms Cook’s credit was good. He told Gary that he had grabbed a steak knife from the kitchen and, for no reason at all, stabbed Ms Cook in the neck while she was in the lounge room. The applicant told Gary that, in the course of the stabbing, the knife had broken.
After he had stabbed Ms Cook, the applicant had panicked. He agreed with Gary’s suggestion that he, the applicant, had ‘just wanted to finish it’. The applicant said that he had picked up a screwdriver that had been in the lounge room and stabbed the deceased in the stomach with it. He had then set fire to the mattress on which Ms Cook lay in order to conceal, as best he could, what he had done.
The applicant then repeated that he had disposed of the steak knife — including the broken piece — by burying it in the ground, at a location that he could specifically recall. He said that the knife was buried a foot to a foot and a half deep. The applicant also said that he had tossed the screwdriver into a drain and that it might be difficult to locate.
After the alleged confession, at Gary’s instigation the applicant went with several members of the ‘gang’ — in fact, police covert operatives — to two locations in the Narre Warren area where he said that the knife had been buried, and the screwdriver thrown. The first location, near the intersection of Golf Links Road and Narre Warren Road, Narre Warren, was where he had disposed of the broken knife. He pointed out an area near a drain, but, since it was getting dark, no search of the area could be carried out. The location that the applicant identified was, however, marked by the covert operatives with a piece of timber. He said that he had disposed of the screwdriver at a second location, off Narre Warren-Cranbourne Road, near Rosebank Road, Narre Warren.
The following morning, police searched the locations where the applicant had taken the ‘gang’ members. They found a steak knife embedded in the earth, at the location near the intersection of Golf Links Road and Narre Warren Road, where the applicant said that he had disposed of it. The blade of the knife was found to be intact, but a piece of the handle was missing. It is of some significance that, in the course of the second version, the applicant told Gary that the knife was buried about a foot below the surface; and that, in the scenario confession, the applicant said that it was buried a foot to a foot and a half below the surface. The significance of that evidence is that, when the knife was found, its handle was poking just above the surface.
Police did not find a screwdriver. Indeed, the evidence at trial was that there was no drain in the vicinity of where the screwdriver had allegedly been thrown.
Later in the evening of 18 September 2009, the applicant was arrested in the vicinity of Crown Towers Hotel and formally interviewed. He denied any involvement in the murder, claiming that at the time of Ms Cook’s death he was at his parents’ home. The applicant was then charged with murder.
Application to exclude evidence of a confession to an undercover police officer
The applicant’s alleged confession to Gary was the centrepiece of the prosecution case.
In pre-trial argument, defence counsel sought exclusion of the evidence of the confession. Counsel relied principally on s 90 of the Evidence Act 2008, which permits a court to ‘refuse to admit evidence of an admission, or refuse to admit the evidence to prove a particular fact’ adduced by the prosecution, if, ‘having regard to the circumstances in which the admission was made, it would be unfair to an accused to use the evidence’. In submissions supporting the application, the applicant’s trial counsel drew attention to the potential effect of the psychological pressure exerted by Gary upon the truth and reliability of the applicant’s alleged confession. Counsel also relied upon the Court’s discretion to exclude unfairly prejudicial or misleading evidence under s 135, and upon the mandatory exclusion of evidence under s 137 of the Act if its probative value is outweighed by the danger of unfair prejudice.
Significantly, however, counsel expressly disavowed reliance on s 84 of the Act, which requires the court to exclude evidence of an admission unless satisfied that the making of that admission was not influenced by ‘violent, oppressive, inhuman or degrading conduct’. Counsel also eschewed reliance on s 85, which provides that evidence of an admission is not admissible ‘unless the circumstances in which the admission was made were such as to make it unlikely that the truth of the admission was adversely affected’.
In ruling the evidence of the confession to Gary to be admissible, the trial judge noted:[3]
Although counsel did not seek to place any reliance upon either s 84 (exclusion of admissions influenced by, inter alia, oppressive conduct) or s 85 (exclusion of admissions made as a result of inducement by person reasonably believed to be capable of influencing decision whether prosecution of accused should be brought or continued), I gave consideration to whether the confessional evidence should be excluded on the basis of these provisions.
[3]R v Weaven (Ruling No 1) [2011] VSC 442, [26] (Weinberg JA).
Having set out the terms of s 84, the trial judge continued:[4]
As regards this section, I concluded that the confessional evidence had not been influenced by ‘violent, oppressive, inhuman, or degrading conduct’, or by any threat of conduct of that kind.
In approaching the matter in that way, I had regard to Tofilau v The Queen[5] in which the High Court upheld the admissibility of confessional evidence obtained as a result of the ‘scenario’ investigative technique. That case, though decided under common law and not pursuant to the Act, makes it difficult to contend that the conduct of the covert operatives in the present case, which was essentially the same as that of the covert operatives in Tofilau, could be stigmatised in the way contemplated by s 84.
[4]Ibid, [31]–[32].
[5](2007) 231 CLR 396 (‘Tofilau’).
Importantly, in refusing to exclude the confession pursuant to the ‘unfairness discretion’ in s 90, the judge observed:[6]
Among the matters that I took into account, in determining that it would not be unfair to the [applicant] to admit this evidence, were the following:
• the means used to obtain the scenario confession were not in themselves illegal or improper. The scenarios took essentially the same form as those used in Tofilau, and other ‘scenario’ cases. This is recognised as an acceptable investigative technique, in appropriate circumstances;
• the mental and emotional state of the [applicant] at the time that he made the admissions was not such as to render it unfair to receive that evidence. The covert visual recording of the discussion between the [applicant] and Gary does not suggest that the [applicant’s] will was in anyway overborne. He was told on a number of occasions that he was perfectly free to say nothing, and simply walk away. He chose to answer Gary’s questions, initially by telling only part of the story, and then by gradually revealing his own role in the murder of the deceased. While it is true that he had become enmeshed in what he believed to be serious criminality, and had been given powerful incentives to join the ‘gang’, I saw no signs of mental frailty of a kind that would warrant exclusion of this evidence on the basis that it would be unfair to the [applicant] to receive it; and
• there was nothing in the method of Gary’s questioning, or the lead up to that questioning, that cast doubt upon the reliability of the [applicant’s] admissions, and in that sense made it unfair for them to be received in evidence. It is true that the [applicant] lied to Gary when he proffered the first and second versions of what had occurred on the night in question. However, it is also important to note that, in each of those versions, he implicated himself to some degree in the killing of the deceased. At no stage did he tell Gary that he had been at home, at his parent’s residence, when the deceased was killed. That, of course, was to be the defence proffered to the jury by his counsel throughout the course of the trial.
[6]R v Weaven (Ruling No 1) [2011] VSC 442, [40] (emphasis added; citation omitted).
Proposed ground of appeal
In support of the application for leave to appeal against conviction, the applicant seeks to rely upon a single proposed ground of appeal now possessing four aspects.[7] The ground in essence asserts that there is fresh or new evidence which establishes that there has been a substantial miscarriage of justice; although, upon the hearing of the application, counsel for the applicant conceded that only the evidence referred to in ground 1(a) might qualify as fresh evidence. The ground is formulated as follows:
1. Fresh and/or new evidence indicates there has been a substantial miscarriage of justice in this case, being:
(a)the evidence of Associate Professor Warwick [scil, Warrick] Brewer relating to the issue of the reliability of the applicant’s alleged confession on 18 September 2009; and/or
(b)the evidence of Melody Weaven that the applicant was at her home at the time of the murder; and/or(c)the evidence of Jamie Hansen concerning a fire on 7 February 2009 at the location the knife was found by police on 19 September 2009, and concerning the times the Country Fire Authority was summoned to and attended at the fire at Ms Cook’s home on 14 December 2008; and/or
(d)the evidence of Jennifer Weaven concerning damage caused by a fire on 7 February 2009 at the location the knife was found by police on 19 September 2009, and concerning Christine Cook using the applicant’s mobile telephone on [14 December 2008]; and/or
(e)the evidence of Mark Weaven concerning damage caused by a fire on 7 September 2009 at the location the knife was found by police on 19 September 2009, concerning Christine Cook using the applicant’s mobile telephone on [14 December 2008], and concerning what Christine Cook told him on [14 December 2008] as to the whereabouts of her mobile telephone.
[7]Ground 1(b) was abandoned in the Applicant’s Further Submissions, filed by email without leave at 8.47 am on the morning of the hearing in this Court.
Application for extension of time
The application for extension of time is supported by an affidavit of the applicant’s solicitor, Mr Andrew Zingler, affirmed 14 September 2017.
Mr Zingler deposes that ‘[a]t all times the applicant has intended to appeal against the conviction imposed upon him’; and that, whilst the delays ‘in this case are unfortunate, they have been unavoidable’. In particular, with respect to the purported fresh evidence, ‘the delay in the uncovering of that fresh evidence has occurred both as a result of the time it has taken for that material to be discovered and as a result of the enquiries that have not borne fruit’.
In summary, Mr Zingler’s affidavit sets out the following chronology of events:
· after the applicant was found guilty on 18 August 2011, his trial lawyers — who do not presently represent him — advised that ‘there were no grounds for appeal in a timely manner’;
· on 3 February 2012, Mr Zingler’s firm was approached to explore the applicant’s prospects of appeal;
· a subsequent application for funding from Victoria Legal Aid was refused in May 2012, so that the applicant’s family agreed to enter into a costs agreement, which was finalised the following month;
· senior counsel who was initially briefed to advise requested further materials on 14 August 2012; and, in a consultation with the applicant’s family on 15 October 2012, advised that ‘there were no prospects of appeal’ arising out of the conduct of the judge, jury or counsel at trial, the ‘only available avenue to be pursued was if fresh evidence might be identified’;
· further materials, ‘including telephone and Country Fire Association [scil, Authority] records’, were provided, but some difficulties were encountered with respect to accessing the applicant’s mobile telephone records;
· in April 2014, senior counsel again met with the applicant’s family, and although ‘[l]ittle significance was then apparent to [the applicant’s] legal representatives’, senior counsel ‘agreed to review the material provided to him once again in order to establish whether a fresh evidence ground might be properly raised with the Court’;
· in July 2014, senior counsel advised Mr Zingler that he had identified no fresh evidence which would justify an appeal;
· on the applicant’s instructions, Mr Zingler approached other barristers, and, in September 2014, junior counsel ultimately accepted the brief (counsel indicating, however, that he required time ‘to consider the matter properly’);
· on 20 October 2014, in a conference with junior counsel and Mr Zingler, the applicant said that he had a fear of police, having as a teenager witnessed violence perpetrated by them, this providing ‘a potential new avenue of enquiry to be explored’;
· on 4 December 2014, counsel advised that ‘he was still working through the case, and would not be able to further advise until the new year’;
· between February 2015 and May 2015, further materials — including analysis of a mobile telephone allegedly stolen by Chrissie Cook; the report of Jeffrey Cummins (tendered on the plea); and statements from Mark, Jennifer and Melody Weaven about the 2008 fire — were obtained;
· on 27 August 2015, counsel advised that ‘he had formed a preliminary view that, following further exploration, including a new psychological assessment of [the applicant], fresh evidence may be identified and an application for leave to appeal might be lodged’;
· efforts to contact the applicant’s previous psychologist being unsuccessful, Mr Patrick Newton was engaged; but, having reviewed the materials, on 19 April 2016 Mr Newton advised ‘that he was not the appropriate clinician to undertake the work’;
· Associate Professor Warrick Brewer assessed the applicant on 12 July 2016, but advised that he required further funds to complete an aspect of the report (permission to undertake that aspect being granted in October 2016, and the finalised report being provided on 8 November 2016);
· throughout the latter part of 2016, Mr Zingler finalised the affidavit of the applicant’s mother, Melody Weaven, but delayed finalising Jennifer and Mark Weaven’s affidavits until counsel ‘confirmed all relevant enquiries had been made’;
· in October 2016, counsel instructed Mr Zingler to seek affidavits from Monash Health and the Country Fire Authority (‘CFA’), and efforts to obtain these materials, and to obtain through freedom of information photographs held by police, were made between October 2016 and June 2017;
· the affidavits of Mark and Jennifer Weaven were finalised in July 2017, after they had been provided with the photographs; and
· the written case prepared by counsel was not received until 14 September 2017, the delay between July and September resulting from ‘both trial and personal commitments’ of counsel.
The respondent opposed an extension of time submitting, first, that Mr Zingler’s affidavit does not adequately explain the very significant delay of six years; secondly, that the prosecution case will have suffered prejudice due to that lengthy delay;[8] and, thirdly, that the merits (or lack of merits) in the proposed application touching conviction were not such as to justify an extension of time.
[8]Counsel relied specifically on the destruction of the video recording of the alleged confession made by the applicant to Gary, upon instructions informing the Court from the Bar table that the video had been destroyed. The applicant’s counsel accepted the accuracy of those instructions.
The principles governing an application for extension of time
The principles governing the determination of an extension of time were recently summarised in Madafferi:[9]
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).[10] 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.[11] 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,[12] the length of the delay — and the reasons for it[13] — and the prospects of success should the extension be granted,[14] are relevant (but not necessarily decisive). The reasons for the delay and the merits of the proposed appeal will not necessarily be in equipoise.[15] 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.[16] The discretion must, as we have said, be exercised according to the individual facts of each case.[17]
[9]Madafferi v The Queen [2017] VSCA 302, [11] (Priest, Hansen and Coghlan JJA) (citations in original). See also Chen v The Queen [2017] VSCA 335, [22]–[23] (Osborn, Whelan and Ashley JJA).
[10]Jopar v The Queen (2013) 44 VR 695, 707 [59] (Priest JA) (‘Jopar’).
[11]Ibid 707 [60].
[12]Kentwell v The Queen (2014) 252 CLR 601, 613 [30] (French CJ, Hayne, Bell and Keane JJ).
[13]Ibid 614 [31].
[14]Ibid 614 [33]. See also Rapovski v The Queen [2017] VSCA 175, [25] (Priest JA).
[15]Jopar (2013) 44 VR 695, 707 [60].
[16]Ibid.
[17]Ibid.
With those principles in mind, it is convenient to turn first to the merits of the ground upon which the putative application for leave to appeal against conviction is based.
Associate Professor Brewer’s evidence: ground 1(a)
In his charge, the trial judge told the jury that the prosecution relied primarily on the alleged confession to the undercover officer, Gary, to prove its case. The judge described ‘the single, critical question’:
Are you satisfied that the confession that was made to Gary, is a complete confession to murder? If you accept it in its entirety, is it truthful, accurate and reliable?
As I have mentioned, the applicant’s counsel had sought exclusion of the applicant’s alleged confession to Gary. And as I have mentioned, the judge refused to exclude evidence of the scenario confession, observing in part that ‘the mental and emotional state’ of the applicant at the time that he made the confession ‘was not such as to render it unfair to receive that evidence’. The covert visual recording did not suggest that the applicant’s will ‘was in anyway overborne’, the applicant showing ‘no signs of mental frailty of a kind that would warrant exclusion of this evidence on the basis that it would be unfair’ to the applicant to admit it.
Notwithstanding the trial judge’s ruling, however, counsel for the applicant in this Court submitted that the contents of a report by Associate Professor Warrick Brewer, dated 7 November 2016, constituted ‘fresh’ evidence bearing upon the admissibility of the confession, particularly in light of the approach to scenario evidence taken by the Canadian Supreme Court’s decision in Hart.[18] In developing his submissions, counsel also relied on Wichman,[19] a decision of the Supreme Court of New Zealand. He submitted that Associate Professor Brewer’s report provides expert opinion that at the time of the alleged confession the applicant was a man suffering from ‘anxiety’, with ‘longstanding passivity and a wish to avoid confrontation that has left him at ongoing risk for bullying and being taken advantage of by others’. The applicant, the report suggested, was socio-emotionally immature and had a ‘dependent personality style’. Associate Professor Brewer suggested that police exploited the ‘vulnerabilities’ in the applicant’s personality, and he noted that the applicant’s sense at the time of the conversations with Gary was that ‘he was under duress [and] that he was in fear of corrupt police’. Citing relevant literature, Associate Professor Brewer offered the opinion that tactics such as those employed by police in this case ‘can substantially increase the risk that ordinary people will confess to crimes they did not commit’.
[18]R v Hart [2014] 2 SCR 544 (McLachlin CJ, LeBel, Abella, Cromwell, Moldaver, Karakatsanis and Wagner JJ) (‘Hart’).
[19]R v Wichman [2016] 1 NZLR 753 (Elias CJ, William Young, Glazebrook, Arnold and O’Regan JJ) (‘Wichman’).
Associate Professor Brewer’s evidence, counsel submitted, constitutes ‘fresh’ evidence, in light of the fact that Hart was not available at the time of the applicant’s trial ‘to guide practitioners concerning the scenario method, and in any event because the applicant’s vulnerabilities identified by Brewer would not have been readily apparent to his lawyers’. It was contended that the opinions expressed in Associate Professor Brewer’s report raise a reasonable possibility that a jury, acting reasonably, may have acquitted the applicant had those opinions been before them (whether the evidence is taken alone or in combination with the other fresh or new evidence advanced).
Counsel’s ultimate submission is summarised in the Applicant’s Further Submissions as follows:
The jurisprudence concerning scenario confessions has advanced significantly since the applicant’s trial through Hart and Wichman — in particular, in the highlighting of reliability issues in light of the significant expert literature on the subject, and the Canadian experience of three potential false confessions. This jurisprudential development means the Brewer report satisfies the test for fresh evidence, in that trial lawyers would now approach preparation of a case such as the applicant’s differently in light of those cases and the materials they have brought to light.
As I have indicated, counsel for the applicant contended that, in assessing the alleged confession to Gary, it is important to appreciate the significant change in Canadian law, brought about by Hart, with respect to confessions obtained using the scenario technique (Hart having been delivered after the confession to Gary was ruled to be admissible).In Hart, Moldaver J suggested ‘a two-pronged approach’ to guard ‘against the dangers posed by Mr. Big operations, while ensuring the police have the tools they need to investigate serious crime’.[20] He said:[21]
The first prong recognizes a new common law rule of evidence for assessing the admissibility of these confessions. The rule operates as follows: Where the state recruits an accused into a fictitious criminal organization of its own making and seeks to elicit a confession from him, any confession made by the accused to the state during the operation should be treated as presumptively inadmissible. This presumption of inadmissibility is overcome where the Crown can establish, on a balance of probabilities, that the probative value of the confession outweighs its prejudicial effect. In this context, the confession’s probative value turns on an assessment of its reliability. Its prejudicial effect flows from the bad character evidence that must be admitted in order to put the operation and the confession in context. If the Crown is unable to demonstrate that the accused’s confession is admissible, the rest of the evidence surrounding the Mr. Big operation becomes irrelevant and thus inadmissible. This rule, like the confessions rule in the case of conventional police interrogations, operates as a specific qualification to the party admissions exception to the hearsay rule.
[20]Hart, 580 [84].
[21]Ibid, 580 [85] (footnote omitted).
I do not accept the submissions advanced by the applicant’s counsel as to the evidence of Associate Professor Brewer vis-à-vis the decision in Hart.
As interesting and novel as the ‘new common law rule of evidence’ proposed by Moldaver J might be, it does not represent the law in Australia. This Court is bound (as was the trial judge) to apply both the common law as laid down by the High Court in Tofilau,[22] and the provisions of the Evidence Act 2008. Indeed, the applicant did not — and could not — properly have contended that the applicant’s trial was not conducted in accordance with the law as then — and now — understood in this State.
[22]See R v Cowan, Ex parte Attorney-General [2016] 1 Qd R 433, 445–6 (McMurdo P and Fraser JA); R v Jelicic [2016] SASC 57, [127] (Peek J).
In any event, the potential for the evidence of the confession to Gary to have been excluded on the basis of psychological pressure exerted upon the applicant, or exploitation of his vulnerabilities, was capable of being — and was — ventilated at trial. Indeed, consideration of the applicant’s mental and emotional state was pivotal to the judge’s ruling admitting the evidence of the scenario confession, the judge finding that the covert recording did not support the notion that the applicant’s will was overborne. The judge, as I have said, concluded that the applicant showed no signs of mental frailty warranting exclusion of the evidence.
As to this, it is to be noted that, at the request of his then solicitors, the applicant was assessed by consulting clinical and forensic psychologist, Jeffrey Cummins, on 8 December 2009 (the applicant having been arrested on 18 September 2009). In a report dated 26 September 2011, Mr Cummins described the applicant as being of ‘normal and low average intelligence’, and ‘as having quite a self-effacing and unassertive interpersonal style’. Notwithstanding Mr Cummins’ opinion, trial counsel, when asked by the judge, ‘what is especially vulnerable about Mr Weaven as distinct from others who have been involved in scenario cases?’, did not seek to rely on Mr Cummins’ assessment, simply submitting that he could not ‘point to any form of diagnosed mental illness or anything of that nature’. And although I note that Mr Cummins’ written report was not produced until almost two years after his consultation with the applicant, his opinion concerning the applicant’s ‘self-effacing and unassertive interpersonal style’ presumably was known to the applicant’s practitioners soon after Mr Cummins made his assessment.
Moreover, I consider Associate Professor Brewer’s report to be largely based upon untested statements made by the applicant about his state of mind at the time of the alleged confession, almost seven years after he made the confession. Given that at the time of his trial the applicant presumably was capable of instructing his counsel and solicitors — and, for that matter, an appropriately qualified expert — what his state of mind was at the time of the alleged confession, nothing that he told Associate Professor Brewer on that subject is either fresh or new. It is evidence which was available at the trial or which could, with reasonable diligence, have then been discovered.[23]
[23]Mallard v The Queen (2003) 28 WAR 1, 6 [11] (Parker, Wheeler and Roberts-Smith JJ); Bowden (a pseudonym) v The Queen [2017] VSCA 46, [34] (Priest JA).
In so concluding, I reject the submission of the applicant’s counsel that Associate Professor Brewer’s opinions ‘relate to long-term characteristics of the applicant, and so do not suffer for being based on assessment some years after the offence’. Counsel submitted in writing that an assessment of the applicant’s characteristics does not depend solely upon self-reporting, but is ‘based upon multiple sources of information including clinical observation, assessment tools, the Monash Health notes of the applicant’s admission on 8 January 2009 … and confirmation of various matters by the applicant’s parents’. Counsel also submitted that a number of findings of fact by the trial judge in his sentencing reasons, ‘reflecting the history the applicant gave to psychologist Jeffrey Cummins upon assessment’, are ‘also consistent with the history the applicant gave to Associate Professor Brewer’.
Although the Court was not taken to the Monash Health records themselves — a document styled ‘Triage Information Only Report’ (‘the report’) — the report, ‘received’ at 5.25 pm on 9 January 2009, indicates that the applicant was a ‘walk in’ to the Emergency Department on 8 January 2009 at 10.30 pm. The report states that the applicant ‘self presented [sic] to Ed [Emergency Department] with family after seeing psychologist today and expressing suicidal idea’. He ‘identified several recent stressors including being the suspect in a homicide [sic] of a close friend … and not having contact with daughter for 2 weeks due to ex partners [sic] concerns re police investigation’. The applicant ‘denied involvement in death of friend and says police no longer investigating him’. He ‘described a “mild anxiety” since seperation [sic] from his partner 5 and 1/2 year ago, however described constant anxiety and depressive ideas since the death of his friend’. The report indicates that the applicant previously had two sessions with an unidentified psychologist. There is an entry, ‘Close family growing up nil abuse’.[24] The applicant also apparently said that he was ‘shy’ and ‘withdrawn’, had ‘difficulty communicating with others at school’, was ‘bedwetting till age 12’ and ‘did not go to camps due to anxiety’. It appears that the diagnosis is one of ‘moderate to high anxiety and moderate depression in response to close friend and subsequent suspicion he may have killed this friend’. Upon my reading of the report, however, the only entry which might in some way support Associate Professor Brewer’s opinion is an entry: ‘? long term mild anxiety with dependent personality traits’. That is, the person who assessed the applicant questioned whether he had long term mild anxiety with dependent personality traits. Self-evidently, this entry provides scant support for Associate Professor Brewer’s opinion.
[24]In his report dated 26 September 2011, Mr Cummins states:
[The applicant] stated he was raised in a loving and caring family in which he was never the victim of any domestic violence.
He was sexually abused by a man in his 30s when aged 17 … .
Before leaving Associate Brewer’s report, I note that the applicant appears to have told Associate Professor Brewer that he knew that he was dealing with corrupt police, stating ‘that he was in fear of corrupt police, and that generally he was suffering anxiety’; and that the applicant asserted in his second record of interview that he knew that he was dealing with corrupt police.[25] Putting to one side the implausibility of that assertion, I note that counsel for the applicant in this Court conceded that it was not the applicant’s case at trial that he knew that he was dealing with corrupt police. Indeed, such a suggestion was disavowed by the applicant’s trial counsel, who in effect told the jury that the applicant only concluded that he was dealing with police in the course of the interview conducted shortly after his arrest. He said:[26]
What about the fact that in his interview he says, in effect, ‘They’re police, I knew they were police’. Well, you might think, ladies and gentlemen, that assertion is not to be seen in stark isolation. It’s to be seen in the context of, firstly, the events of that day, that is he’s dropped off up in town by [‘gang’ members] and then he’s arrested, and preceding that, you know that there have been some discussions between the [applicant] and David Drysdale[[27]] where different things have been spoken about, so you might think that assertion in his interview is simply the penny having finally dropped for this man and things ultimately having crystallised for him, nothing more than that.
[25]I note that the applicant’s brother, Mark Weaven, in an affidavit affirmed 17 July 2017, asserts that the applicant told him in 2009 that he had been in contact with a man named ‘Mick’, whom he believed to be a ‘corrupt police officer’. That part of the affidavit was not, however, relied upon in support of the ground of appeal.
[26]Emphasis added.
[27]David Drysdale was the man who was supposed to have put ‘Sean’ through the mincer. During his evidence at trial, he said the applicant ‘was sort of suspicious’ that he might be dealing with corrupt police.
Acknowledging the subtlety and ingenuity of the crowning submission made by the applicant’s counsel — that the report of Associate Professor Brewer satisfies the test for fresh evidence, in that trial lawyers would now approach preparation of a case such as the applicant’s differently in light of Hart and Wichman ‘and the materials they have brought to light’ — it cannot be accepted. There is nothing radical or unusual about seeking to adduce evidence of a psychological opinion bearing upon an accused person’s capacity to understand police questions,[28] or seeking to explain why a person may have answered police questions in a particular way.[29] As to this, it will be remembered that in Marks — one of four convictions affirmed in Tofilau — albeit on the voir dire, evidence was adduced from the psychologist, Mr Cummins, to the effect that the accused was ‘suffering from a borderline personality disorder as well as a dependent personality disorder and an adjustment disorder’,[30] this evidence being ‘directed to showing what had moved the appellant to say what he did’.[31] Moreover, although his Honour was in the minority, Kirby J in Tofilau extensively considered the arguments of legal principle and policy tending to favour the exclusion of evidence obtained using the ‘scenario’ technique. Of particular interest in the current discourse, his Honour observed:[32]
(2) The ‘scenario technique’, by its psychological impact, has an inherent tendency to overbear the will of the target. It deprives the target of a warning about the fact that statements made may be recorded and later used against him or her, notwithstanding that he or she is in fact being interrogated by police. It also tends to deprive the target of access to a lawyer before providing incriminating confessional evidence that may prove critical at trial.
…
(4) The use of ‘scenario techniques’ also has an inherent tendency to select vulnerable persons, playing on the very ‘hope’ and ‘fear’ that has traditionally been the source of the common law’s insistence upon ‘great chastity’ in the reception into evidence of testimony that has been influenced by threats or promises made by persons in authority. Where the question is whether the will of an individual has been overborne, the vulnerability of the individual concerned, whether on grounds of ‘age, background [or] psychological condition’ has conventionally been treated as significant. …
[28]Murphy v The Queen (1986) 167 CLR 94; R v Lee (1989) 42 A Crim R 393. See also R v Arnott (2009) 26 VR 490.
[29]R v Whitbread (1993) 78 A Crim R 452; cf R v Quesada (2011) 122 A Crim R 218.
[30]R v Marks (2004) 150 A Crim R 212, 223- [67] (Coldrey J).
[31]Tofilau, 427 [88].
[32]Ibid, 443–4 [148] (emphasis added; citations omitted).
It might have been expected that the applicant’s trial counsel would have been aware of the capacity to introduce psychological evidence to explain why his client might have responded to Gary in a particular way; and, in light of Tofilau, would have been alive to the significance of the ‘vulnerability’ of the applicant because of his ‘psychological condition’. Given those matters, I am far from persuaded that, being aware of the statements in Hart and Wichman, and armed with the report of Associate Professor Brewer, any competent trial lawyer would have approached the admissibility of the scenario confession in this case in a significantly different fashion than did trial counsel.
There is no substance in ground 1(a).
The knife’s location and Christine Cook’s mobile telephone: ground 1(c), (d) and (e)
Evidence concerning a fire at the location where the knife was found
Turning to the purported new evidence relied upon under cover of ground 1(c), (d) and (e) — as I have said, counsel argued that only Associate Professor Brewer’s evidence was, in the manner submitted, ‘fresh’ — Jamie Hansen, an officer of the CFA, produced two reports as exhibits to an affidavit sworn 2 June 2017. The first report related to the fire at the victim’s home on 14 December 2008; and the second related to a fire that occurred at a location at the corner of Golf Links Road and Narre Warren Road, Narre Warren, on 7 February 2009. Correspondence accompanying these reports establish that they were both provided to the applicant’s father, Arthur Weaven, on 12 November 2009 and 2 November 2009 respectively, after he had made requests for information concerning the fires.
The second report produced by Mr Hansen establishes that there was a grass fire at the corner of Golf Links Road and Narre Warren Road, Narre Warren on 7 February 2009; that is, between the time that the knife allegedly was placed there by the applicant and its being found by police on 19 September 2009. The applicant’s counsel submitted that this evidence casts doubt upon whether the knife found at that location was the murder weapon. It was submitted that photographs of the knife, in situ and close-up, indicate that the knife handle did not show any signs of being blackened by fire, notwithstanding evidence that the location was extensively burned and blackened by the grass fire.
Jennifer Weaven, the applicant’s sister-in-law, affirmed an affidavit on 17 July 2017. She deposed that in 2009 she saw ‘fire damage on the corner of Golf Links and Cranbourne-Narre Warren road’, and that she recalled ‘the whole area being black as a result of a fire’. She said that she also recalled ‘big white vans with blue cabling on top of them’ laying cables in the area in 2009 or 2010. Ms Weaven said that she went to the police to offer what information she could, but nobody took a statement from her. She also deposed that she ‘did speak to Glenn’s trial lawyers briefly about some of these things, but was not asked many questions’, nobody going ‘into depth about all this with me, and their focus seemed to be on other things’.
Mark Weaven, the applicant’s brother, also affirmed an affidavit on 17 July 2017. He deposed that, in February 2009, he saw fire damage along Cranbourne-Narre Warren Road, up to the corner of Golf Links Road. He said, ‘I recall telling the trial lawyer that there was a fire at that exact location and recall having that discussion with Glenn’s trial lawyer between the guilty verdict and sentence hearing’. Mr Weaven said that he went to the location where the knife was found, and seized a burnt piece of wood shown in a police photograph with the knife. He still has the piece of wood.
The evidence concerning a fire at the location where the knife was found was neither fresh nor new. According to the correspondence exhibited to the affidavit of Jamie Hansen, it was in the possession of the applicant’s father as early as November 2009. Plainly, it is evidence which was available at the trial. Indeed, Jennifer Weaven made it clear in her affidavit that she had spoken to the applicant’s lawyers about this evidence (although, she said, their focus seemed to be on other things).
In any event, accepting the fact that there was a grass fire on 7 February 2009 at a location proximate to where the knife was located, there is no evidence — expert or otherwise — about whether the fire burned all of the relevant area, or whether the fire would necessarily have damaged the knife.[33] Certainly, the knife was a piece of circumstantial evidence in the case against the applicant, but the prosecutor submitted to the jury that, even if the knife had not been located, it would not make any difference to the applicant’s confession. In his final address he argued as follows:
… if, for whatever reason, you don’t come to the conclusion that the knife was used to kill her, then just put it aside and forget about it. The whole case does not fall down. If the knife hadn’t been found there, it wouldn’t make any difference to the confession, I say to you, that he made, the truthful confession in relation to killing Mary Cook.
[33]There is no evidence to suggest that the piece of wood found by Mark Weaven was in situ when the fire occurred.
Furthermore, the judge warned the jury that they must put the evidence of the knife to one side unless satisfied it was the murder weapon. He directed the jury as follows:[34]
[The defence] relies further upon the discrepancy between the [applicant’s] account to Gary of the place where the knife was damaged. You will remember he said it was the tip of the blade that had been broken. In fact, the blade, as you will see when you see the knife again, is absolutely intact. It is the handle that has been broken, no part of the blade at all.
Moreover, the [applicant] said to Gary that the knife was buried a foot or more in the earth and, as you will see from the photographs, it is in the earth but does not appear to be buried a foot or more in the earth at all, and he told Gary that the other part of the knife that had broken off was buried with the knife, and you heard that nothing was found that had been broken off. The other part of the handle, for example, wasn’t located with the knife. The defence also relies upon the discrepancies in the [applicant’s] account to Gary regarding the area where he threw the screwdriver. You heard the cross-examination about there being no canal or drain in the vicinity of where the screwdriver was supposedly thrown. These are all matters for you to consider but in this case, because the Crown rely, at least in part, upon inference in relation to the knife, you may not draw the inference for which the Crown contends, namely that this is the weapon that was used to stab Mary Cook unless you are satisfied beyond reasonable doubt that that was so. If you are so satisfied, the evidence regarding the knife provides, you might think, powerful support for the Crown case that the confession to Gary was both truthful and accurate. If you are not so satisfied about the knife, then my direction to you is you must put the evidence regarding the knife entirely to one side. Treat it as entirely irrelevant. In that event, the knife would neither support the Crown case nor weaken the Crown case. You would simply focus upon the rest of the evidence led before you and, in particular, the confession which is the central part of this Crown case.
[34]Emphasis added.
In my opinion, given the manner in which the prosecution approached the evidence of the knife, and further given the judge’s directions, it is unlikely that the evidence of the fire — even if it could be considered fresh or new — could have affected the jury’s verdict.
Evidence concerning Christine Cook’s telephone
It is necessary at this point to mention some further evidence from the trial relating to a mobile telephone owned by Christine (‘Chrissie’) Cook, the victim’s daughter.
Christine Cook gave evidence that, on the Thursday preceding her mother’s death, she had accidently left her mobile telephone at the home she shared with her mother when she went to stay in Reservoir. She was still in Reservoir on the night of Saturday, 13 December 2008. Upon learning of the fire in the early hours of Sunday, 14 December 2008, Ms Cook asked the applicant, whom she called ‘Glenn’, to pick her up. She gave evidence that the applicant ‘kept repeating, I’m sorry, I’m sorry, I’m sorry’, and gave her a necklace and her phone. There was the following cross-examination:
I want to suggest that you are mistaken when you say that Glenn gave you back this phone on the Sunday and you have got confused about it?---I think I know if he gave me my phone back.
It was not suggested, however, that Ms Cook had left her phone in Reservoir or that others had seen her using the applicant’s phone.
During his final address to the jury, the prosecutor described Christine Cook’s evidence concerning her telephone as a ‘real problem … an enormous problem’ for the applicant, because it demonstrated that the applicant must have gone to Mary Lou Cook’s home on the night that she was killed.
In his charge to the jury, the judge discussed the relevance of Ms Cook’s evidence:
Chrissie Cook is an important witness in this case because she gives evidence about a telephone, her telephone. That featured quite heavily, you saw, in the prosecutor’s address. The Crown relies upon the evidence surrounding the movements of Chrissie Cook’s telephone as support for the confession, and the truthfulness and accuracy of the confession. Chrissie Cook said to you that as far as the phone was concerned, she had accidentally left it at home after she went to a friend’s place on, I think, the Thursday before the fire. She accidentally left it at home. That is consistent with, and you will see this in the statement that the accused made to [police] where he talks about the fact that he was aware that Chrissie had left the phone behind at her mother’s place, and it is also consistent, I think, with what was said to [an investigating police office] when the accused was interviewed by [the investigating police officer] shortly after the fire. ... So there is a body of evidence to suggest that Chrissie had left the telephone behind and didn’t take it with her when she went to stay over at another person’s place.
Importantly, in his first statement to police the applicant said that he knew that Christine Cook had left her phone at home, and he confirmed that assertion in his first record of interview conducted the same day.
Supposed new evidence concerning Christine Cook’s telephone
Returning to the first report produced by Jamie Hansen, it indicates that the CFA received a call to attend the fire at the victim’s residence at 1.08.39 am, and that the first CFA vehicle was on the scene at 1.17.21 am. The applicant’s counsel submitted that these times are important, because call charge records for the applicant’s mobile telephone show that he sent a text message to Christine Cook’s mobile telephone at 1.29 am that morning. Counsel submitted that, if the prosecution theory that the applicant took Christine Cook’s telephone from the victim’s house that night when he murdered her is correct, then he must have had it before 1.17.21 am when the CFA arrived. If so, counsel argued, it makes no sense that he would text that telephone.
Jennifer Weaven, in her affidavit affirmed on 17 July 2017, said that she went to the applicant’s and his parents’ address at around 9.00 am on 14 December 2008. When she arrived, her husband Mark was already there, as was the applicant and his mother, together with Chrissie Cook and ‘Tony’. She said that she saw ‘Chrissie’ holding the applicant’s phone while she was there. Ms Weaven said that she knew it was the applicant’s phone because the applicant said that it was. She was told by ‘either Mark, Glenn or Chrissie’ that Chrissie ‘had left her phone in Reservoir that morning or the night before’.
In his affidavit of 17 July 2017, Mark Weaven deposed that he had attempted to make a statement to police ‘several times both before and after the trial’, and has ‘written to the Chief Commissioner twice’. Mr Weaven said that he arrived at his parents’ address at 7.30 or 8.00 am on Sunday, 14 December 2008. Chrissie Cook arrived with the applicant, and they ‘spoke about what had happened’. Jennifer dropped in several times and spoke with Chrissie. During a conversation with him and Jennifer, Chrissie said that ‘she knew that Akon’, whom Mr Weaven knew to be Luke Charles, ‘had her usual phone’. Later, Chrissie said that she wanted to ring Glenn, but her phone was with Akon. Mr Weaven told her that she could use the ‘house phone’. Soon after, when Glenn arrived, Chrissie used his phone. He said that he spoke to Glenn and Chrissie at his parents’ place on 16 December 2008. When he saw Chrissie using her phone, he said, ‘You have got your phone back’. She replied, ‘Yeah, I got it yesterday’.
Counsel for the applicant submitted that both Jennifer and Mark Weaven say that they saw Christine Cook with the applicant’s telephone on the morning of 14 December 2008, contradicting Christine Cook’s evidence at trial that she was not using the applicant’s telephone that morning. Further, Mark Weaven says Christine Cook told him that morning that her telephone was with Akon, contradicting her evidence that the applicant had returned her telephone when he picked her up earlier that morning. It was submitted that the evidence of these two witnesses therefore ‘represents a significant blow to the credibility of the evidence Christine Cook gave during the trial, and once admitted for this purpose, would be admissible also to demonstrate the applicant did not have Christine Cook’s telephone at any point after the murder’. Counsel argued that it is ‘inherently unlikely that the applicant would collect Christine Cook’s phone from the house at the time of the murder and then return it to her, thereby placing himself at the house at that time’. It was also ‘unlikely that he would do this, and yet nevertheless have the wherewithal to contact the phones of both Christine and Mary Cook shortly after the murder to cover his tracks’.
As I have said, the applicant sent a text message to Christine Cook at 1.29 am on Sunday, 14 December 2008. By that time, the victim’s body and home were on fire. The prosecution argued at trial that the applicant had sent the text message to ‘cover his tracks’. This was an argument that the jury were well-equipped to evaluate based on the video and audio evidence, and the transcript, of the scenario confession.
Moreover, the defence was alive to the desirability of establishing a doubt about the applicant having returned Christine Cook’s phone to her on the morning of the fire, given that, if he did so, the applicant must have retrieved the phone from her residence before it was burned (that, of course, being inconsistent with the applicant’s alibi). Thus, counsel put to Christine Cook that she was ‘mistaken’ and ‘confused’ about the applicant having returned her phone on the Sunday morning.
In my opinion, the evidence of Jennifer and Mark Weaven concerning Christine Cook’s telephone was not new. It would have been available at the trial with the exercise of reasonable diligence. There is some material in the affidavits of Jennifer and Mark Weaven from which it might be inferred that they provided relevant information about the telephone to the applicant’s lawyers, but there is no evidence from the applicant’s solicitors or counsel as to what they were told, or whether any forensic judgment was exercised not to highlight the point by calling evidence on the subject. In that regard, I note that defence counsel addressed no argument on the topic in his final address.
Those parts of grounds 1(d) and (e) which assert that there is new evidence concerning Christine Cook using the applicant’s mobile telephone on 14 December 2008 are without substance. As I have indicated, the evidence relied upon is not new.
Conclusion
There was an air of desperation that permeated this application. The distinct impression that I gleaned from Mr Zingler’s affidavit was that, after senior counsel advised on 15 October 2012 that the only possible avenue to traverse the applicant’s conviction would be fresh evidence, the applicant and his supporters set about trying to find some evidence that might fit that description. As may readily be observed, the process was slow. And unhappily for the applicant, despite valiant efforts over five or six years to gather evidence which could be said to be fresh or new, none of what was collected could properly be so described.
Since there is no prospect whatsoever of the proposed application for leave to appeal against conviction succeeding, it would be pointless to grant an extension of time. Even if they could be considered fresh or new, the various pieces of evidence gathered by the applicant’s solicitors that are relied upon to support the application to extend time — no matter whether they are considered individually or cumulatively — could not lead to the conclusion that, had the jury had the evidence before them, they would have entertained a doubt about the applicant’s guilt.[35]
[35]Bowden (a pseudonym) v The Queen [2017] VSCA 46.
Before finally departing this application, I should note that I have paid no regard to the ‘shortcomings in the prosecution case at trial’ set out in the Applicant’s Further Submissions under the heading, ‘Other aspects of the evidence at trial relevant to the applicant’s submissions’. They were not the subject of any ground of appeal, and were of no assistance in determining whether the ‘fresh’ or ‘new’ evidence embraced by the proposed ground properly could be so characterised.
For these reasons, the application for an extension of time must be refused.
KYROU JA:
I agree with Priest JA.
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