Austic v The State of Western Australia - [2020] WASCA 75

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   AUSTIC -v- THE STATE OF WESTERN AUSTRALIA [2020] WASCA 75
CORAM:   BUSS P
MAZZA JA
SOFRONOFF AJA

HEARD:   22, 23, 24, 25, 26, 29, 30 & 31 JULY 2019
DELIVERED          :   14 MAY 2020
FILE NO/S:   CACR 66 of 2018
BETWEEN:   SCOTT DOUGLAS AUSTIC
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :   SUPREME COURT OF WESTERN AUSTRALIA
Coram:   BLAXELL J
File Number            :   INS 106 of 2008

Catchwords:

Criminal law - Appellant convicted of wilful murder in 2009 after a trial in the Supreme Court before a judge and jury - Appellant's appeal against his conviction dismissed in 2010 by this court - Royal Prerogative of Mercy - Petition in relation to the appellant referred by the Attorney General of Western Australia to this court pursuant to s 140 of the Sentencing Act 1995 (WA) - Additional evidence - The correct approach to the additional evidence in the context of the evidence adduced at the trial - Whether the appellant's conviction was unreasonable or could not be supported having regard to the whole of the evidence before this court - Whether the whole of the evidence before this court established that a miscarriage of justice had occurred at the trial - Whether this court should set aside the judgment of conviction and enter a judgment of acquittal - Whether this court should set aside the judgment of conviction and order a new trial

Legislation:

Criminal Appeals Act 2004 (WA), s 27, s 30, s 39, s 40
Criminal Code (WA), s 278 (repealed), s 282 (repealed)
Sentencing Act 1995 (WA), s 137, s 138, s 140

Result:

Appellant's applications in the appeal for leave to adduce additional evidence granted
State's applications in the appeal for leave to adduce additional evidence granted
Leave to appeal granted, if leave be necessary
Appeal allowed
Judgment of conviction for wilful murder set aside
A new trial be had on the count of wilful murder

Category: A

Representation:

Counsel:

Appellant	:	Mr D Grace QC and Mr C J Hampson
Respondent	:	Ms A L Forrester SC and Ms C A Cullen

Solicitors:

Appellant	:	Legal Pathways
Respondent	:	Director of Public Prosecutions (WA)

Case(s) referred to in decision(s):

AK v The State of Western Australia [2008] HCA 8; (2008) 232 CLR 438
Anderson v The Queen (1991) 53 A Crim R 421
Austic v The State of Western Australia [2010] WASCA 110
Barca v The Queen [1975] HCA 42; (1975) 133 CLR 82
BCM v The Queen [2013] HCA 48; (2013) 88 ALJR 101
Beamish v The Queen [2005] WASCA 62
Burt v Governor‑General [1992] 3 NZLR 672
Clarke v The State of Western of Australia [2018] WASCA 14
Cramphorn v Bailey [2014] WASCA 60
de Freitas v Benny [1976] AC 239
Dhanhoa v The Queen [2003] HCA 40; (2003) 217 CLR 1
Director of Public Prosecutions (Nauru) v Fowler [1984] HCA 48; (1984) 154 CLR 627
DPJB v The State of Western Australia [2010] WASCA 12
Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193
Fennell v The Queen [2019] HCA 37; (2019) 373 ALR 433
Festa v The Queen [2001] HCA 72; (2001) 208 CLR 593
Filippou v The Queen [2015] HCA 29; (2015) 256 CLR 47
Fitzgerald v The Queen [2014] HCA 28; (2014) 88 ALJR 779
Gallagher v The Queen [1986] HCA 26; (1986) 160 CLR 392
Gassy v The Queen [2008] HCA 18; (2008) 236 CLR 293
GAX v The Queen [2017] HCA 25; (2017) 91 ALJR 698
Grey v The Queen [2001] HCA 65; (2001) 75 ALJR 1708
Jiminez v The Queen [1992] HCA 14; (1992) 173 CLR 572
Jones v The Queen [1997] HCA 12; (1997) 191 CLR 439
King v The Queen [1986] HCA 59; (1986) 161 CLR 423
King v The Queen [2012] HCA 24; (2012) 245 CLR 588
Lawless v The Queen [1979] HCA 49; (1979) 142 CLR 659
M v The Queen [1994] HCA 63; (1994) 181 CLR 487
Mallard v The Queen [2005] HCA 68; (2005) 224 CLR 125
Mickelberg v The Queen [1989] HCA 35; (1989) 167 CLR 259
Morris v The Queen [1987] HCA 50; (1987) 163 CLR 454
Parker v The Queen [1997] HCA 15; (1997) 186 CLR 494
Peacock v The King [1911] HCA 66; (1911) 13 CLR 619
Pepper v Attorney‑General (Qld) (No 2) [2008] QCA 207; [2008] 2 Qd R 353
Perara-Cathcart v The Queen [2017] HCA 9; (2017) 260 CLR 595
R v Baden-Clay [2016] HCA 35; (2016) 258 CLR 308
R v Chard [1984] AC 279
R v Hillier [2007] HCA 13; (2007) 228 CLR 618
R v Nguyen [2010] HCA 38; (2010) 242 CLR 491
R v Secretary of State for the Home Department; Ex parte Bentley [1994] QB 349
R v Taufahema [2007] HCA 11; (2007) 228 CLR 232
Ratten v The Queen [1974] HCA 35; (1974) 131 CLR 510
Reckley v Minister of Public Safety and Immigration (No 2) [1996] AC 527
Rinaldi v The State of Western Australia [2007] WASCA 53
Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573
SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400
TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124
Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300
Zaburoni v The Queen [2016] HCA 12; (2016) 256 CLR 482

TABLE OF CONTENTS

The Royal Prerogative of Mercy

Part 19 of the Sentencing Act

The regime in s 140(1)(a) of the Sentencing Act and the judicial function it confers

The relevant legal framework governing appeals against conviction

The relevant legal framework in relation to new evidence and fresh evidence

Some legal principles applicable to a prosecution case based on circumstantial evidence

Overview of the prosecution case at trial

The evidence of the principal prosecution witnesses at the trial and its significance

The evidence of the principal defence witnesses at the trial and its significance

The prosecutor's closing address

Defence counsel's closing address

Corruption and Crime Commission of Western Australia interviews and confidential findings

The grounds of appeal

The appellant's orders wanted

The applications for leave to adduce additional evidence in this appeal

The witnesses called by the appellant at the hearing of this appeal

The documents produced by the parties at the hearing of this appeal

The evidence to be taken into account by the court

The organisation of the balance of these reasons

Particular B: the folding knife: the oral evidence at the hearing of this appeal

Particular B: the folding knife: the trial judge's summing up

Particular B: the folding knife: the appellant's submissions

Particular B: the folding knife: the State's submissions

Particular B: the folding knife: the merits of the particular

Particular A: the Winfield Blue cigarette packet: the oral evidence at the hearing of this appeal

Particular B: the Winfield Blue cigarette packet: the trial judge's summing up

Particular B: the Winfield Blue cigarette packet: the appellant's submissions

Particular B: the Winfield Blue cigarette packet: the State's submissions

Particular A: the Winfield Blue cigarette packet: the merits of the particular

Particular C: the Jim Beam can (exhibit 20 or NB31) located on Hill Street: the oral evidence at the hearing of this appeal

Particular C: the Jim Beam can (exhibit 20 or NB31) located on Hill Street: the trial judge's summing up

Particular C: the Jim Beam can (exhibit 20 or NB31) located on Hill Street: the appellant's submissions

Particular C: the Jim Beam can (exhibit 20 or NB31) located on Hill Street: the State's submissions

Particular C: the Jim Beam can (exhibit 20 or NB31) located on Hill Street: the merits of the particular

Particular D: the Jim Beam cans found at the appellant's home: the oral evidence at the hearing of this appeal

Particular C: the Jim Beam cans found at the appellant's home: the trial judge's summing up

Particular D: the Jim Beam cans found at the appellant's home: the appellant's submissions

Particular D: the Jim Beam cans found at the appellant's home: the State's submissions

Particular D: the Jim Beam cans found at the appellant's home: the merits of the particular

Particular E: the thongs

Particular E: the thongs: the trial judge's summing up

Particular E: the thongs: the appellant's submissions

Particular E: the thongs: the State's submissions

Particular E: the thongs: the merits of the particular

Particular F: the burnt clothing: the oral evidence at the hearing of this appeal

Particular F: the burnt clothing: the trial judge's summing up

Particular F: the burnt clothing: the appellant's submissions

Particular F: the burnt clothing: the State's submissions

Particular F: the burnt clothing: the merits of the particular

Particular G: the footprints and fingerprints inside the deceased's home: the oral evidence at the hearing of this appeal

Particular G: the footprints and fingerprints inside the deceased's home: the trial judge's summing up

Particular G: the footprints and fingerprints inside the deceased's home: the appellant's submissions

Particular G: the footprints and fingerprints inside the deceased's home: the State's submissions

Particular G: the footprints and fingerprints inside the deceased's home: the merits of the particular

Particular H: other matters: the oral evidence at the hearing of this appeal

Particular H: other matters: the merits of the particular

Other matters generally arising from the oral evidence at the hearing of this appeal

The appellant's submissions as to the outcome of this appeal

The State's submissions as to the outcome of this appeal

This court's conclusions as to the outcome of this appeal

Conclusion

JUDGMENT OF THE COURT:

The appellant was charged on an indictment which alleged that on or about 9 December 2007, at Boddington, the appellant wilfully murdered Stacey Robyn Thorne (the deceased), contrary to s 278 (repealed) and s 282 (repealed) of the Criminal Code (WA) (the Code).
On 6 April 2009, the appellant was convicted of wilful murder after a trial in the Supreme Court before Blaxell J and a jury.
The trial judge sentenced the appellant to life imprisonment with a minimum non-parole period of 25 years. The sentence was backdated to 14 December 2007.
The appellant appealed to this court against his conviction and sentence. He appealed against conviction on three grounds. Ground 1 alleged that the trial judge erred in law by failing to direct the jury that the jury could not find the appellant guilty unless the jury was satisfied beyond reasonable double 'of any fact that was an indispensable link in the chain of reasoning towards a finding of guilt'. Ground 2 alleged that his Honour erred in law by failing to identify for the jury those facts that were indispensable links which the State had to prove beyond reasonable doubt. Ground 3 alleged that his Honour erred in law by failing to direct the jury that the weight to be given to expert testimony was exclusively a matter for the jury. On 11 June 2010, the appeals against conviction and sentence were dismissed. See Austic v The State of Western Australia.[1]
[1] Austic v The State of Western Australia [2010] WASCA 110.
On 19 February 2018, a petition for the exercise of the Royal Prerogative of Mercy in relation to the appellant was presented on his behalf to the Attorney General of Western Australia.
On 20 April 2018, the appellant's petition was referred by the Attorney General to this court, pursuant to s 140(1)(a) of the Sentencing Act 1995 (WA), for the whole case to be heard and determined as if it were an appeal by the appellant against his conviction.
In these reasons it is convenient to describe the petition referred to this court as an appeal.
We would allow the appeal, set aside the judgment of conviction for wilful murder and order a new trial.

The Royal Prerogative of Mercy

The Royal Prerogative of Mercy at common law is a matter which lies solely in the discretion of the Crown. As Lord Diplock (delivering the advice of the Privy Council) said in de Freitas v Benny,[2] mercy is not the subject of legal rights and the exercise of the Crown prerogative at common law is purely a discretionary act (247).
[2] de Freitas v Benny [1976] AC 239.
As developed, the Crown prerogative at common law has become an integral element in the criminal justice system. See Burt v Governor‑General;[3] R v Secretary of State for the Home Department; Ex parte Bentley;[4] Pepper v Attorney‑General (Qld) (No 2).[5] See also Reckley v Minister of Public Safety and Immigration (No 2).[6]

Part 19 of the Sentencing Act

[3] Burt v Governor‑General [1992] 3 NZLR 672, 681 (Cooke P, Gault & McKay JJ).

[4] R v Secretary of State for the Home Department; Ex parte Bentley [1994] QB 349, 362 ‑ 363 (Watkins & Neill LJJ & Tuckey J).

[5] Pepper v Attorney‑General (Qld) (No 2) [2008] QCA 207; [2008] 2 Qd R 353 [11] (Muir JA; de Jersey CJ & Fraser JA agreeing).

[6] Reckley v Minister of Public Safety and Immigration (No 2) [1996] AC 527, 540 ‑ 542 (Lord Goff of Chieveley delivering the advice of the Privy Council).

Part 19 of the Sentencing Act is headed 'Royal Prerogative of Mercy' and comprises s 137 to s 142.
Section 137 provides:
Neither this Act nor the Sentence Administration Act 2003 affects the Royal Prerogative of Mercy or limits any exercise of it.
By s 138(1), a pardon granted in the exercise of the Royal Prerogative of Mercy has the effect of discharging the offender from the effects of the sentence imposed for the offence and of any other order made as a consequence of the offender's conviction. By s 138(2), a pardon does not quash or set aside the conviction for the offence.
Section 140 provides:
(1)A petition for the exercise of the Royal Prerogative of Mercy in relation to an offender convicted on indictment, or to the sentence imposed on such an offender, may be referred by the Attorney General to the Court of Appeal either ‑
(a)for the whole case to be heard and determined as if it were an appeal by the offender against the conviction or against the sentence (as the case may be); or
(b)for an opinion on any specific matter relevant to determining the petition.
(1a)When making a referral under subsection (1)(a) the Attorney General, having regard to the petition, may specify the grounds of appeal to be heard and determined by the Court of Appeal.
(2)The Court of Appeal must give effect to the referral.
It is unnecessary to refer to s 141 or s 142.

The regime in s 140(1)(a) of the Sentencing Act and the judicial function it confers

The regime in s 140(1)(a) of the Sentencing Act is, in effect, both a substitute for, and an alternative to, the invocation and the exercise of the Royal Prerogative of Mercy at common law. See Mallard v The Queen.[7]
[7] Mallard v The Queen [2005] HCA 68; (2005) 224 CLR 125 [6] (Gummow, Hayne, Callinan & Heydon JJ).
The Crown prerogative at common law was 'an exercise in practice necessarily undertaken by officials and members of the Executive, unconfined by any rules or laws of evidence, procedure, and appellate conventions and restrictions': Mallard [6].
In Ratten v The Queen,[8] the appellant was convicted of murder in 1970, after a trial in the Supreme Court of Victoria. Appeals against conviction to the Court of Criminal Appeal of Victoria and the Privy Council were dismissed. In 1973, the appellant presented a petition to the Governor of Victoria for, relevantly, a reference of the whole case to the Full Court of the Supreme Court of Victoria under s 584 of the Crimes Act 1975 (Vic). The appellant asserted that evidence had become available, which had not been available at the trial, which showed that his conviction was a miscarriage of justice. The Attorney General referred the whole case to the Full Court under s 584. The Full Court dismissed the appeal. On appeal to the High Court, the decision of the Full Court was affirmed.
[8] Ratten v The Queen [1974] HCA 35; (1974) 131 CLR 510.
The High Court construed s 584 of the Crimes Act, which empowered the Attorney General, on the consideration of a petition for the exercise of the Royal Prerogative of Mercy, to 'refer the whole case to the Full Court' to 'be heard and determined by that Court as in the case of an appeal by a person convicted'. Barwick CJ (McTiernan, Stephen and Jacobs JJ agreeing) said:
As the Full Court was required to treat the reference to it under s 584 as an appeal, it was bound in dealing with it to act upon legal principles appropriate to an appeal. Thus, although all the material supporting the applicant's petition formed part of the whole case to be considered by the Court, the ordinary principles as to admissibility of evidence must be applied in the consideration of that material, so much of it as would be inadmissible being ineffective to influence the resolution of the matter (514).
In Mickelberg v The Queen,[9] Raymond Mickelberg, Peter Mickelberg and Brian Mickelberg were each charged with eight counts in connection with obtaining a substantial quantity of gold from the Perth Mint in exchange for three valueless cheques. In March 1983, after a trial in the District Court of Western Australia, Raymond Mickelberg and Peter Mickelberg were convicted on all counts, and Brian Mickelberg was convicted on four of the counts. In November 1983, the Court of Criminal Appeal quashed Brian Mickelberg's convictions, but dismissed Peter Mickelberg's appeal against conviction (limited to his convictions on three of the counts). In December 1986, Raymond Mickelberg was granted leave to appeal against all of his convictions. Peter Mickelberg then petitioned for the exercise of mercy. He claimed that fresh evidence demonstrated that his convictions were unsafe and unsatisfactory. Pursuant to s 21 of the Code, as then enacted, the Attorney General referred the whole case against Peter Mickelberg to the Court of Criminal Appeal to 'be heard and determined … as in the case of an appeal by a person convicted'. The Court of Criminal Appeal dismissed the appeals by Raymond Mickelberg and Peter Mickelberg. Raymond Mickelberg's application for special leave to appeal to the High Court was refused. Peter Mickelberg's application for special leave was granted and his appeal was allowed in part. The High Court set aside the order of the Court of Criminal Appeal to the extent necessary to enable that Court to hear and determine whether Peter Mickelberg's conviction for conspiracy was inconsistent with the acquittal of Brian Mickelberg on the charge of conspiracy and whether Peter Mickelberg's convictions, or any of them, were unsafe or unsatisfactory.
[9] Mickelberg v The Queen [1989] HCA 35; (1989) 167 CLR 259.
The High Court construed s 21 of the Code, as then enacted, which provided, relevantly, that the 'Attorney General on the consideration of any petition for the exercise of Her Majesty's mercy having reference to the conviction of a person on indictment … may, if he thinks fit, at any time … refer the whole case to the Court of Criminal Appeal, and the case shall then be heard and determined by the Court of Criminal Appeal as in the case of an appeal by a person convicted'. Toohey and Gaudron JJ (Mason CJ and Brennan J relevantly agreeing) said:
Prima facie, the reference of the whole case required the Court of Criminal Appeal to consider the case in its entirety, subject only to the limitation that it 'be heard and determined … as in the case of an appeal by a person convicted'. That limitation necessitates that the matter be determined by 'legal principles appropriate to an appeal': Ratten ((1974) 131 CLR 514), per Barwick CJ. See also R v Gunn [No. 1] ((1942) 43 SR (NSW) 23, 25), per Jordan CJ and Allen, Allen and Winter ((1910) 5 Crim App 225, 226).
It has been held that, where the whole case is referred, the court may consider matters not relied upon in the petition (R v Gunn [No. 2] ((1942) 43 SR (NSW) 27, 31) and matters not specified in the reference (Reg v Chard ([1984] AC 279). On the other hand, it has been said that, as a matter of practice, the considerations may be confided to those in the petition or the reference: see Re Matthews and Ford ([1973] VR 199, 201); Reg v Chard ([1984] AC 292 ‑ 293). And in R v Gunn [No. 2] ((1942) 43 SR (NSW) 29) Jordon CJ stated:
In a case in which there has already been an appeal which has been disposed of on the merits … the Court, in the case of a reference such as the present, is not called upon to re‑adjudicate upon any ground of appeal which has been already heard and disposed of unless some new matter has come to light which makes a reconsideration of the ground necessary or desirable.
The words of s 21 of the Code, so far as they require 'the whole case … [to] be heard and determined', permit of only one meaning. It is the whole case which must be passed upon by the application of legal principles appropriate to criminal appeals. That being so, the power to exclude matters from consideration is properly to be seen as an aspect of the inherent power of a court to control its own proceedings. That power will authorise the exclusion of issues which are frivolous or vexatious: see Jackson v Sterling Industries Ltd. ((1987) 162 CLR 612); Tringali v Stewardson Stubbs & Collett Ltd ((1966) 66 SR (NSW) 335); Metropolitan Bank v Pooley ((1885) 10 App Cas 210). However, subject to an issue being properly excluded as frivolous or vexatious, it is, in our view, the duty of a court to which there has been a reference of the whole case to pronounce upon the whole case as presented (311 ‑ 312).

In Mallard, the appellant was convicted of murder in 1995, after a trial in the Supreme Court of Western Australia. In 1997 his appeal against conviction to the Court of Criminal Appeal was dismissed and special leave to appeal to the High Court was refused. In 2002 the appellant petitioned for mercy. The Attorney General referred the petition to the Court of Criminal Appeal, pursuant to s 140(1)(a) of the Sentencing Act, 'for the whole case to be heard and determined as if it were an appeal by [the appellant] against the conviction'. The Court of Criminal Appeal dismissed the appeal. The High Court allowed the appellant's appeal and set aside the orders of the Court of Criminal Appeal. The Court of Criminal Appeal's approach to its function was erroneous. The High Court held that material evidence in the possession of the police and, at the least, available to the prosecution, was not disclosed to the defence at or prior to the trial. The evidence that was not disclosed had significant forensic value. The High Court quashed the appellant's conviction and ordered a new trial.
Gummow, Hayne, Callinan and Heydon JJ observed in Mallard that the history of the Royal Prerogative of Mercy at common law favoured an approach by a court, on a reference of a petition by the Attorney General to the court pursuant to s 140(1)(a) of the Sentencing Act, 'of a full review of all admissible relevant evidence available in the case, whether new, fresh or already considered in earlier proceedings, however described, except to the extent if any' that pt 19 of the Sentencing Act may otherwise require [6].
Gummow, Hayne, Callinan and Heydon JJ referred to the manner in which the Court of Criminal Appeal had conceived its function in relation to the Attorney General's referral under s 140(1)(a).
Their Honours said at [8] that the manner in which the Court of Criminal Appeal proceeded was apparent from the following passages in the Court's reasons for judgment:
It was accepted on both sides that on reference the court had a duty to consider the 'whole case'. The court is required to consider the case in its entirety, subject only to the limitation that it is bound to act upon legal principles appropriate to an appeal.
However, there was at times a tendency for counsel for the petitioner to refer to this proposition as if it justified the hearing afresh of evidence at trial and evidence called on the appeal, without regard either to the verdict of the jury or to the previous decision of the Court of Criminal Appeal in this case. That was particularly noticeable in the petitioner's opening submissions, in which very detailed submissions were put as to discrepancies between the evidence of various witnesses as to the timing of certain events. Those matters were before the jury at the petitioner's trial, although of course they were not marshalled and emphasised in precisely the way in which the petitioner now seeks to marshal and emphasise them.
Gummow, Hayne, Callinan and Heydon JJ noted that the Court of Criminal Appeal drew a distinction between 'new evidence' (that is, evidence available but not adduced at the trial) and 'fresh evidence' (that is, evidence which did not exist at the time of the trial or, if it did, could not then have been discovered with reasonable diligence). Their Honours said that the 'whole approach' of the Court of Criminal Appeal 'thereafter proceeded … as if there were serious inhibitions upon that Court's jurisdiction to consider, not just the evidence that was adduced at the trial, but also its relevance to the further evidence that the appellant sought to introduce and rely upon in the reference' [9]. Their Honours held that the Court of Criminal Appeal's approach was erroneous [10].
Gummow, Hayne, Callinan and Heydon JJ then observed:
Subject only to what we will say later about the words 'as if it were an appeal' which appear in s 140(1)(a) of the Act, the explicit reference to 'the whole case' (Sentencing Act 1995 (WA), s 140(1)(a)) conveys no hint of any inhibition upon the jurisdiction of the Court of Criminal Appeal on a reference. Indeed, to the contrary, the words 'the whole case' embrace the whole of the evidence properly admissible, whether 'new', 'fresh' or previously adduced, in the case against, and the case for the appellant. That does not mean that the Court may not, if it think it useful, derive assistance from the way in which a previous appellate court has dealt with some, or all of the matters before it, but under no circumstances can it relieve it of its statutory duty to deal with the whole case. The history, as we have already mentioned, points in the same direction. The inhibitory purpose and effect of the words 'as if it were an appeal' are merely to confine the Court to the making of orders, and the following of procedures apposite to an appeal, and further, and perhaps most relevantly, to require the Court to consider whether the overall strength of the prosecution case requires the Court to apply the proviso contained in s 689(1) of the Criminal Code [10].
In Mallard, Gummow, Hayne, Callinan and Heydon JJ referred, with approval, at [11] ‑ [12] to the comments of:
(a)Toohey and Gaudron JJ (Mason CJ and Brennan J agreeing) in Mickelberg, in an analogous statutory context, that it is 'the whole case which must be passed upon by the application of legal principles appropriate to criminal appeals' and it is 'the duty of a court to which there has been a reference of the whole case to pronounce upon the whole case as presented' (312); and
(b)Lord Diplock (Lord Scarman, Lord Roskill, Lord Brandon of Oakbrook and Lord Templeman agreeing) in R v Chard,[10] in an analogous statutory context, that the 'whole case' that is referred 'must include all questions of fact and law involved in it' (291) (emphasis added).
[10] R v Chard [1984] AC 279, 289 ‑ 291 (Lord Diplock; Lord Scarman, Lord Roskill, Lord Brandon of Oakbrook & Lord Templeman agreeing).
Gummow, Hayne, Callinan and Heydon JJ said it is elementary that, in considering the facts, not only as they emerged at the trial but also as they emerge before the court which is considering the whole case, that 'some matters may assume an entirely different complexion in the light of other matters and facts either ignored or previously unknown' [13].

The relevant legal framework governing appeals against conviction

Section 30(1) of the Criminal Appeals Act 2004 (WA) provides that s 30 applies in the case of an appeal against a conviction by an offender.
By s 30(2), unless under s 30(3) this court allows the appeal, it must dismiss the appeal.
Section 30(3) provides:
The Court of Appeal must allow the appeal if in its opinion -
(a)the verdict of guilty on which the conviction is based should be set aside because, having regard to the evidence, it is unreasonable or cannot be supported; or
(b)the conviction should be set aside because of a wrong decision on a question of law by the judge; or
(c)there was a miscarriage of justice.
By s 30(4), despite s 30(3), even if a ground of appeal might be decided in favour of the offender, this court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.
The statutory direction in s 30(3) that this court must allow the appeal is conditional upon this court forming the opinion specified in par (a), par (b) or par (c).
In the present case, s 30(3)(a) and s 30(3)(c) must be considered. However, s 30(3)(b) is irrelevant.
As to s 30(3)(a), it is a question of fact whether, having regard to the evidence, a verdict of guilty on which a conviction is based is unreasonable or cannot be supported. See M v The Queen;[11] Zaburoni v The Queen;[12] GAX v The Queen.[13]
[11] M v The Queen [1994] HCA 63; (1994) 181 CLR 487, 492 (Mason CJ, Deane, Dawson & Toohey JJ).
[12] Zaburoni v The Queen [2016] HCA 12; (2016) 256 CLR 482 [56] (Gageler J).
[13] GAX v The Queen [2017] HCA 25; (2017) 91 ALJR 698 [25] (Bell, Gageler, Nettle & Gordon JJ).
An intermediate court of appeal (the appellate court) must decide that question by making its own independent assessment of the sufficiency and quality of the evidence, and determining whether, notwithstanding that there is evidence upon which a tribunal of fact might convict, nevertheless it would be dangerous in the circumstances to permit the verdict to stand. See M (492 ‑ 493); SKA v The Queen.[14]
[14] SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400 [14] (French CJ, Gummow & Kiefel JJ).
The appellate court, in making an independent assessment of the whole of the evidence to determine whether it was open to the tribunal of fact to be satisfied beyond reasonable doubt as to the guilt of the accused, must weigh the whole of the evidence (in particular, the competing evidence). See SKA [22], [24].
The appellate court's task is not to consider, as a question of law, merely whether there was sufficient evidence to sustain a conviction. See Morris v The Queen.[15]
[15] Morris v The Queen [1987] HCA 50; (1987) 163 CLR 454, 473 (Deane, Toohey & Gaudron JJ). See also M (492 ‑ 493); SKA [20].
The appellate court, in assessing whether it was open to the tribunal of fact to be satisfied beyond reasonable doubt as to the guilt of the accused, 'must not disregard or discount either the consideration that the [tribunal of fact] is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the [tribunal of fact] has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations': M (493); R v Nguyen;[16] SKA [13].
[16] R v Nguyen [2010] HCA 38; (2010) 242 CLR 491 [33] (Hayne, Heydon, Crennan, Kiefel & Bell JJ).
The ultimate question for the appellate court must always be whether the appellate court thinks that upon the whole of the evidence it was open to the tribunal of fact to be satisfied beyond reasonable doubt that the accused was guilty: M (494 ‑ 495). See also R vHillier;[17] Fitzgerald v The Queen;[18] R v Baden‑Clay.[19]
[17] R vHillier [2007] HCA 13; (2007) 228 CLR 618 [20] (Gummow, Hayne & Crennan JJ).
[18] Fitzgerald v The Queen [2014] HCA 28; (2014) 88 ALJR 779 [5] (Hayne, Crennan, Kiefel, Bell & Gageler JJ).
[19] R v Baden-Clay [2016] HCA 35; (2016) 258 CLR 308 [66] (French CJ, Kiefel, Bell, Keane & Gordon JJ).
The setting aside of a tribunal of fact's verdict of guilty because, having regard to the evidence, it is unreasonable or cannot be supported is a serious step. Trial by the appellate court is not to be substituted for trial by the tribunal of fact. See Baden‑Clay [65] ‑ [66].
The appellate court's reasons must disclose its assessment of the capacity of the evidence to support the verdict. See SKA [22] ‑ [24]; BCM v The Queen;[20] GAX [25].
[20] BCM v The Queen [2013] HCA 48; (2013) 88 ALJR 101 [31] (Hayne, Crennan, Kiefel, Bell & Keane JJ).
The nature and extent of the appellate court's task, in a particular case, will be informed by:
(a)the elements of the offence;
(b)the accused's defence;
(c)the issues in contest at the trial;
(d)the manner in which the trial was conducted;
(e)the way in which the case was ultimately left to the tribunal of fact;
(f)whether the tribunal of fact was a judge (who must state the principles of law that he or she has applied and the findings of fact on which he or she has relied) or a jury (which does not give reasons); and
(g)the particulars of the ground of appeal.
As to s 30(3)(c), the expression 'miscarriage of justice' within s 30(3)(c), having regard to its historical context, refers to 'any departure from trial according to law, regardless of the nature or importance of that departure': Weiss v The Queen[21] (original emphasis). See also King v The Queen.[22] Section 30(3)(c) covers cases where, as a consequence of irregularity or otherwise, an accused has not received a trial according to law or has not received a fair trial. See Weiss [45]; Filippouv The Queen.[23] In M, McHugh J said that a 'miscarriage of justice' arises whenever the accused has not had a fair trial according to law or whenever the nature of the evidence, the directions to the jury or the procedures that were followed, raise a real doubt as to whether the conviction can be regarded as a safe or just conviction. In Jones v The Queen,[24] Gaudron, McHugh and Gummow JJ said that, having regard to the statements in M, there can be no doubt that a 'miscarriage of justice' also occurs when the findings or verdicts of the jury raise a real doubt as to whether a conviction is safe or just. When the expression 'miscarriage of justice' in s 30(3)(c) is understood in the manner explained in Weiss and King, the word 'substantial', in the context of the expression 'substantial miscarriage of justice' in the proviso in s 30(4), has work to do. See Weiss [18]; King [53].
[21] Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 [18] (Gleeson CJ, Gummow, Kirby, Hayne, Callinan & Heydon JJ).
[22] King v The Queen [2012] HCA 24; (2012) 245 CLR 588 [53] (French CJ, Crennan & Kiefel JJ).
[23] Filippou v The Queen [2015] HCA 29; (2015) 256 CLR 47 [14] (French CJ, Bell, Keane & Nettle JJ).
[24] Jones v The Queen [1997] HCA 12; (1997) 191 CLR 439, 450.
Section 30(3)(b) may overlap in some circumstances with s 30(3)(c). See AK v The State of Western Australia,[25] Gassy v The Queen.[26]
[25] AK v The State of Western Australia [2008] HCA 8; (2008) 232 CLR 438 [47] (Gummow & Hayne JJ), [86] (Heydon J).
[26] Gassy v The Queen [2008] HCA 18; (2008) 236 CLR 293 [19] (Gummow & Hayne JJ).
The proviso in s 30(4) may apply to each of the grounds in s 30(3). See TKWJ v The Queen;[27] Dhanhoa v The Queen.[28]
[27] TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124 [71] ‑ [72] (McHugh J).
[28] Dhanhoa v The Queen [2003] HCA 40; (2003) 217 CLR 1 [49] (McHugh & Gummow JJ).
By s 30(3) read with s 30(4), two questions arise for determination. First, whether the appellate court '[is of the] opinion' specified in par (a), par (b) or par (c) of s 30(3) and, secondly, whether the court 'considers that no substantial miscarriage of justice has occurred' within s 30(4). See Perara-Cathcart v The Queen.[29]
[29] Perara-Cathcart v The Queen [2017] HCA 9; (2017) 260 CLR 595 [38]‑[40], [48] (Kiefel, Bell & Keane JJ).

The relevant legal framework in relation to new evidence and fresh evidence

At common law, there is a well‑established distinction between fresh evidence, on the one hand, and new evidence, on the other. Fresh evidence is evidence that either did not exist as at the date of the trial or could not, with reasonable diligence, have been obtained or discovered for use at the trial. New evidence is evidence that could, with reasonable diligence, have been obtained or discovered for use at the trial. See Beamish v The Queen.[30]
[30] Beamish v The Queen [2005] WASCA 62 [9] (Steytler, Wheeler & McLure JJ).
The courts have traditionally treated appeals (including appeals against criminal convictions) based on fresh evidence differently from appeals (including appeals against criminal convictions) based on new evidence.
Where an accused has been convicted, an appellate court will not allow an appeal, on the basis of new as distinct from fresh evidence, unless the new evidence establishes that the appellant is innocent or the new evidence raises such a doubt that the court is satisfied that the appellant should not have been convicted. See Lawless v The Queen,[31] DPJB v The State of Western Australia.[32]
[31] Lawless v The Queen [1979] HCA 49; (1979) 142 CLR 659, 675 ‑ 676 (Mason J).
[32] DPJB v The State of Western Australia [2010] WASCA 12 [66] (Owen JA; McLure P relevantly agreeing).
Where an accused has been convicted, an appellate court will not allow an appeal, on the basis of fresh as distinct from new evidence, unless there is a 'significant possibility' that, on the basis of all of the admissible evidence (that is, the fresh evidence and the evidence given at trial), a jury, acting reasonably, would have acquitted the appellant. See Gallagher v The Queen;[33] Mickelberg (273) (Mason CJ), (301 ‑ 302) (Toohey and Gaurdron JJ). The fresh evidence must be relevant. It must also be credible in the sense that a reasonable jury could accept it as true (but it is not necessary that the appellate court should think it likely that a reasonable jury would believe it) or be sufficiently cogent and plausible to lead a reasonable jury to have a reasonable doubt as to the appellant's guilt (although the reasonable jury might not necessarily prefer it to other evidence with which it is inconsistent). See Lawless (676 ‑ 677) (Mason J); Gallagher (397) (Gibbs CJ), (401 ‑ 403) (Mason & Deane JJ), (410) (Brennan J); Mickelberg (302) (Toohey & Gaudron JJ).
[33] Gallagher v The Queen [1986] HCA 26; (1986) 160 CLR 392, 399 (Gibbs CJ), 402 (Mason & Deane JJ).
Ordinarily, there will be no miscarriage of justice at a criminal trial unless:
(a)in the case of an appeal against conviction based on new evidence, the traditional test for allowing an appeal against conviction, on the basis of new evidence, has been satisfied; and
(b)in the case of an appeal against conviction based on fresh evidence, the traditional test for allowing an appeal against conviction, on the basis of fresh evidence, has been satisfied.
Section 39(1) of the Criminal Appeals Act provides that an appeal court must decide an appeal on the evidence and material that were before the lower court. By s 39(3), however, s 39(1) does not affect the power of an appeal court to admit evidence pursuant to s 40.
Section 40(1) of the Criminal Appeals Act provides, relevantly:
For the purposes of dealing with an appeal, an appeal court may do any or all of the following -
(a)order the production of any record or thing, whether or not an exhibit, that is or may be relevant to the appeal;
(b)order a witness who would have been compellable at the trial in the lower court, whether or not called at the trial, to attend and be examined before the appeal court;
…
(d)subject to the Evidence Act 1906 section 9, admit the evidence of a witness, including a convicted appellant, who is a competent but not compellable witness;
(e)admit any other evidence.
The proper construction and application of the discretionary power conferred on this court by s 40(1)(e) of the Criminal Appeals Act to admit 'any other evidence', for the purposes of dealing with an appeal against conviction, has been considered by this court in a number of cases. See, for example, Rinaldi v The State of Western Australia;[34] Clarke v The State of Western of Australia.[35] Rinaldi and Clarke did not involve a petition referred to this court under s 140(1)(a) of the Sentencing Act.
[34] Rinaldi v The State of Western Australia [2007] WASCA 53.
[35] Clarke v The State of Western of Australia [2018] WASCA 14.
In Rinaldi, Steytler P (Wheeler and Pullin JJA agreeing) said, in relation to s 40(1)(a), (b), (d) and (e) of the Criminal Appeals Act:
While these provisions afford the Court a discretion, which is not expressed to be limited in any way, to do any of the things provided for, it is most improbable that the legislature intended that they 'should be construed in a way that would have the practical effect of obliterating the distinction between original and appellate jurisdiction': CDJ v VAJ (1998) 197 CLR 172 at [111] per McHugh, Gummow and Callinan JJ (dealing with the provisions of s 93A(2) of the Family Law Act 1975 (Cth)) and see also De La Espriella-Velasco [[2006] WASCA 31; (2006) 31 WAR 291] at [150] per Pullin JA. The common law principles have, of course, been developed over many years in order to meet the ends of justice and the considerations giving rise to them will plainly be material to the exercise of the statutory discretion, which must be exercised judicially. While the common law principles touching upon the distinction between new and fresh evidence are not necessarily determinative of the manner of exercise of the statutory discretion, the considerations giving rise to those principles will ordinarily be weighty, so much so that it will be a rare case in which an exercise of the statutory discretion produces a different outcome to that produced by application of the common law principles [84].

As Steytler P explained in Rinaldi, although the common law principles concerning new and fresh evidence are not necessarily determinative of the manner in which the discretion conferred by s 40(1)(e) will be exercised, those principles will, ordinarily, be weighty, and it will be a rare case in which an exercise of the statutory discretion produces an outcome different from that produced by the application of the common law principles. Steytler P's observations in Rinaldi have been referred to with approval in numerous decisions of this court. See, for example, DPJB [64]; Cramphorn v Bailey.[36]
[36] Cramphorn v Bailey [2014] WASCA 60 [61] (Mazza JA; McLure P & Buss JA agreeing).
In Ratten, Barwick CJ (McTiernan, Stephen & Jacobs JJ agreeing) observed that the rule in relation to fresh evidence was developed in the context of civil trials and that the rule cannot be transplanted without qualification into the criminal law (516 ‑ 517). His Honour said that '[g]reat latitude must … be extended to an accused in determining what evidence by reasonable diligence in his own interest he could have had available at his trial' (517).
Barwick CJ explained the manner in which an appellate court must approach additional evidence where the court is considering whether a judgment of conviction should be set aside outright in that innocence is shown or the existence of an appropriate doubt is established:
[T]he court will consider all the material itself, forming and acting upon its own belief in, or disbelief of, the evidence, and upon its own view of the facts of the case including the evidence at the trial, though, as I have said, taking the facts as proved at the trial in the sense which having regard to its verdict the jury must have taken them. Of course, if it is concluded that there was a miscarriage in the sense that the court itself is satisfied of innocence or entertains a reasonable doubt as to guilt, there will be no question of a new trial. The verdict of guilty will be quashed and the appellant discharged.
Further, when the material before the court satisfies the court of a miscarriage of this kind, it will not matter that the new material or some part of it is not fresh evidence, in the sense that it was not or could not have been available at the time of the trial. Thus, until the court decides that there is no miscarriage of this kind, it will not need to consider whether or not any part of the new evidence satisfied the criterion of fresh evidence. The court's acceptance that guilt beyond reasonable doubt is not established, means inevitably that to maintain the verdict of guilty would be a miscarriage of justice. Also, as I have already said, it will not matter in such a case that the trial was fair and without blemish (518 ‑ 519).
However, Barwick CJ said in Ratten that if the appellate court itself is not satisfied of innocence and does not entertain a reasonable doubt as to guilt, or if the appellant's claim is confined to a new trial (and not an outright acquittal), the approach of the appellate court to additional evidence which is fresh, as distinct from new, will be different. In those circumstances, the appellant's case will be that a miscarriage of justice occurred at the trial because the fresh evidence was not before the jury for consideration. His Honour elaborated:
In this situation, the court must as before decide the credibility and the cogency of the fresh evidence in order to determine whether, when the fresh evidence, if believed by the jury, is taken with the evidence given at the trial in that sense [most] favourable to the accused which reasonable men might properly accept, it is likely that a verdict of guilty would not have been returned. In considering the material before it for this purpose, the element of credibility will be satisfied if the court is of opinion that the evidence is capable of belief and likely to be believed by a jury. The court in this instance will not be directly acting upon its own view of the evidence but rather upon that view most favourable to an appellant, which in the court's view a jury of reasonable men may properly take (519).
Barwick CJ summarised the position as follows:
To sum up, if the new material, whether or not it is fresh evidence, convinces the court upon its own view of that material that there has been a miscarriage in the sense that a verdict of guilty could not be allowed to stand, the verdict will be quashed without more. But if the new material does not so convince the court, and the only basis put forward for a new trial is the production of new material, no miscarriage will be found if that new material is not fresh evidence. But if there is fresh evidence which in the court's view is properly capable of acceptance and likely to be accepted by a jury, and which is so cogent in the opinion of the court that, being believed, it is likely to produce a different verdict, a new trial will be ordered as a remedy for the miscarriage which has occurred because of the absence at the trial of the fresh evidence (520).
His Honour noted that the appellant in Ratten had placed little stress upon his claim to an outright quashing of the jury's verdict. Rather, the appellant's emphasis was upon his alternative claim for a new trial. It was submitted on behalf of the appellant that 'the new material need go no further than to satisfy the Court that, placed before the jury, there would be a reasonable possibility that it would raise in their minds a reasonable doubt of the applicant's guilt'. Barwick CJ rejected that view of the law. His Honour said that it was not enough that 'there is a reasonable possibility that a doubt be raised: there must be a likelihood of a different verdict' (520).
Barwick CJ approved the Full Court's approach to the receipt of oral evidence both from the appellant and the Crown and the cross‑examination of those witnesses. His Honour said the Full Court was 'entitled and indeed bound' to satisfy itself whether, upon all the material available to it, 'there was such a doubt as to the guilt of the applicant as would make the maintenance of the jury's verdict a miscarriage of justice' and therefore require the outright quashing of the conviction. His Honour added that, in the alternative situation in which a new trial was sought, 'the Court had to satisfy itself as to the credibility and cogency of the fresh evidence in order to decide whether, if it were believed, it was likely to bring about a different verdict' (520).
His Honour held that it was clear from the reasons of the Full Court that 'the Court did not consider that there was a doubt as to the guilt of the applicant produced by the new material read with the evidence given at the trial'. His Honour was of the view that the Full Court did not err in holding that view. His Honour also expressed his agreement with the Full Court that 'the new material was not likely to have brought about a different verdict' (521).
In Mickelberg:
(a)Mason CJ said that, in the case of fresh evidence, the proper question is whether the appellate court considers that 'there is a significant possibility that the jury, acting reasonably, would have acquitted the appellant had the fresh evidence been before it at the trial' (273);
(b)Brennan J said that the formulation of the test for determining whether fresh evidence is such as to warrant the quashing of a conviction had been settled by the High Court in Ratten (519, 528) and in Lawless (666, 670, 677, 686). The test was 'whether the jury, if the fresh evidence had been laid before it together with the evidence given at the trial, would have been likely to have entertained a reasonable doubt about the guilt of the accused' (275); and
(c)Toohey and Gaudron JJ said that it was necessary that 'the fresh evidence be credible in the sense that a reasonable jury could accept it as true, but it is not necessary that the court should think it likely that a reasonable jury would believe it' (302).
In Mallard, the High Court did not consider the correctness of the approach to fresh evidence and new evidence, in the context of an Attorney General's referral of an offender's petition for the whole case to be heard and determined as if it were an appeal by the offender against his or her conviction, in the High Court's earlier decisions in Ratten and Mickelberg. It was unnecessary for the High Court to consider the point in Mallard because the appeal in that case was allowed as a result of the prosecution's failure to disclose evidence having significant forensic value. It is well established that, where additional evidence is sought to be adduced on appeal, and the prosecution was obliged (but failed) to produce the evidence to the appellant at or prior to the trial, a miscarriage of justice may be established on the basis of the failure to produce. The fresh evidence rule does not apply. See Grey v The Queen;[37] Mallard [17]. Although the High Court in Mallard did not disapprove the approach to fresh evidence and new evidence in Ratten and Mickelberg, it is apparent that the principles enunciated by Gummow, Hayne, Callinan and Heydon JJ broadened the function of a court to whom the Attorney General has referred an offender's petition and qualified the approach to be adopted in that context to fresh evidence and new evidence.
[37] Grey v The Queen [2001] HCA 65; (2001) 75 ALJR 1708 [23] ‑ [24] (Gleeson CJ, Gummow & Callinan JJ).
As we have mentioned, Gummow, Hayne, Callinan and Heydon JJ stated in Mallard that:
(a)the correct approach by a court on a reference of a petition by the Attorney General to the court is for the court to undertake 'a full review of all the admissible relevant evidence available in the case, whether new, fresh or already considered in earlier proceedings, however described, except to the extent if any' that pt 19 of the Sentencing Act may otherwise require [6];
(b)the words 'the whole case' in s 140(1)(a) of the Sentencing Act embrace the whole of the evidence properly admissible, whether 'new', 'fresh' or previously adduced, in the case against, and in the case for, the appellant [10];
(c)in considering the facts, as they emerged at the trial and as they emerge before the court at the hearing of the petition, 'some matters may assume an entirely different complexion in the light of other matters and facts either ignored or previously unknown' [13];
(d)the court is under a statutory duty to 'to deal with the whole case' [10]; and
(e)the words 'as if it were an appeal' in s 140(1)(a) merely confine the court to the making of orders, and the following of procedures, appropriate to an appeal against conviction and, further, to require the court to consider whether the overall strength of the prosecution case requires the court to apply the proviso contained in s 30(4) of the Criminal Appeals Act [10].
The common law approach to fresh evidence and new evidence was developed in the context of appeals against conviction. The rationale for the common law's approach to fresh evidence and new evidence lies in the nature of an appeal from a judgment of conviction.
By contrast, the focus of the Royal Prerogative of Mercy in relation to an offender convicted on indictment and the focus of s 140(1)(a) of the Sentencing Act is upon the evidence adduced at the trial and the evidence adduced at the hearing of the offender's petition. The statements made by Gummow, Hayne, Callinan and Heydon JJ in Mallard, to which we have referred at [68] above, reflect the materially different process involved in an appeal against conviction, on the one hand, compared to the exercise of the Royal Prerogative of Mercy and the hearing of an offender's petition consequent upon an Attorney General's referral under s 140(1)(a), on the other.
In our opinion, the approach of the High Court in Ratten and Mickelberg to fresh evidence and new evidence, in the context of an Attorney General's referral of an offender's petition, applies where:
(a)the new evidence or the fresh evidence, as the case may be, does not materially affect the complexion of the facts as they emerged at the trial; and
(b)the court is considering whether to allow the appeal on the basis that the new evidence or the fresh evidence, as the case may be, establishes, relevantly, that:
(i)the verdict of guilty on which the conviction is based should be set aside because, having regard to the evidence, it is unreasonable or cannot be supported, within s 30(3)(a) of the Criminal Appeals Act; or
(ii)there was a miscarriage of justice, within s 30(3)(c) of the Criminal Appeals Act.
However, where new evidence or fresh evidence, as the case may be, in the context of an Attorney General's referral of an offender's petition, does materially affect the complexion of the facts as they emerged at the trial, the approach of the High Court in Mallard requires that the court consider whether the whole of the evidence properly admissible, whether new, fresh or previously adduced, in the case against, and in the case for, the offender, establishes, relevantly, that:
(a)the verdict of guilty on which the conviction is based should be set aside because, having regard to the evidence, it is unreasonable or cannot be supported, within s 30(3)(a) of the Criminal Appeals Act; or
(b)there was a miscarriage of justice, within s 30(3)(c) of the Criminal Appeals Act.

Some legal principles applicable to a prosecution case based on circumstantial evidence

In the present case, the prosecution's case was circumstantial. Circumstantial evidence, as distinct from direct evidence, is evidence which, if accepted, tends to prove a fact from which the existence of a fact in issue may be inferred. See Festa v The Queen.[38]
[38] Festa v The Queen [2001] HCA 72; (2001) 208 CLR 593 [5] (Gleeson CJ).
In Barca v The Queen,[39] Gibbs, Stephen and Mason JJ explained the principles governing criminal cases that turn upon circumstantial evidence, as follows:
When the case against an accused person rests substantially upon circumstantial evidence the jury cannot return a verdict of guilty unless the circumstances are 'such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused': Peacock v. The King (1911) 13 CLR 619, at p 634. To enable a jury to be satisfied beyond reasonable doubt of the guilt of the accused it is necessary not only that his guilt should be a rational inference but that it should be 'the only rational inference that the circumstances would enable them to draw': Plomp v. The Queen (1963) 110 CLR 234, at p 252; see also Thomas v. The Queen (1960) 102 CLR 584, at pp 605‑606.
[39] Barca v The Queen [1975] HCA 42; (1975) 133 CLR 82, 104.
Direct evidence is not necessarily more reliable than circumstantial evidence. Indeed, in some cases, circumstantial evidence can be more persuasive than direct evidence. As McHugh J noted in Shepherd v The Queen,[40] there will often be cases 'where the probability of the correctness of an inference of guilt drawn from the circumstances of the case is greater than the probability of the truth of any of the individual circumstances'. Circumstantial evidence cumulatively eliminates other possibilities.
[40] Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573, 592.
In the present case, the prosecution sought to prove, upon the basis of the facts and circumstances established by the evidence, that the only reasonable inference was that the appellant was guilty of wilful murder.
It was necessary for the jury to evaluate and weigh all of the facts and circumstances established by the evidence in deciding whether there was an inference consistent with innocence reasonably open on the evidence. The circumstantial case relied upon by the prosecution was not to be considered by examining each piece of evidence or each fact or circumstance established by the evidence in isolation or on a piecemeal basis. The facts and circumstances established by the evidence in a circumstantial case must be evaluated and weighed in their entirety, both at trial and on appeal. See Hillier [46], [48]; Baden‑Clay [47]; Fennell v The Queen.[41]
[41] Fennell v The Queen [2019] HCA 37; (2019) 373 ALR 433 [82] (Kiefel CJ, Keane, Nettle, Gordon & Edelman JJ).
In Baden-Clay [47], French CJ, Kiefel, Bell, Keane and Gordon JJ approved the statement in Peacock v The King[42] that, for an inference to be reasonable, it 'must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon a consideration of all the facts in evidence' (emphasis added).
[42] Peacock v The King [1911] HCA 66; (1911) 13 CLR 619, 661 (O'Connor J).

Overview of the prosecution case at trial

The deceased was aged 34 years and was 22 weeks pregnant when she died. The appellant was the father of the unborn child.
The prosecution alleged that the appellant had murdered the deceased to prevent the birth of the baby. Its case was based on circumstantial evidence. In summary, the prosecution case at trial was as follows.
The appellant and the deceased had known each other for many years. They had been involved in a casual sexual relationship for about 12 months before the deceased's death.
The deceased lived in a home unit (being unit 3) at 3 Hill Street, Boddington. The appellant lived at 3 Hotham Avenue, Boddington. The distance between their homes was about 350 m.
The appellant kept his relationship with the deceased secret. He went to her home only for the purposes of sex. The visits were made when he was drunk.
The prosecution alleged that before the deceased's death the appellant had attempted to persuade her to have an abortion. On 29 November 2007, the appellant sent the deceased a text message begging and pleading with her not to have the baby.
On the evening of Sunday, 9 December 2007, the appellant went to the Boddington hotel. He became intoxicated. Staff at the hotel requested him to leave. He did so.
After leaving the Boddington hotel, the appellant arranged to go to the deceased's home. He arrived at about 7.45 pm. He stayed there for some time and had sexual intercourse with her.
The appellant then walked to his home, arriving at some time before 10.00 pm. His housemates, Craig Kemp and Steven Henson, were present.
Mr Kemp went to bed at about 10.30 pm. Soon afterwards, the appellant returned on foot to the deceased's home. He stabbed her about 21 times with a folding knife. The stabbing occurred in her bedroom.
The appellant then walked to his home, leaving the deceased to die. He travelled through a paddock between the deceased's home and his home to avoid detection. On the journey, he threw away the knife.
On returning home, the appellant set about destroying evidence that could implicate him in the deceased's murder. In particular:
(a)he burned his clothes in a wood‑fire heater; and
(b)he had a shower, and washed the thongs he had been wearing, to remove traces of the deceased's blood.
Later, the appellant took other steps to avoid detection. These included telling lies to the police who were investigating the deceased's murder. For example, he lied about the clothes he had been wearing when he went to the Boddington hotel and the deceased's home.

The evidence of the principal prosecution witnesses at the trial and its significance

Lenore Tink, a neighbour of the deceased, gave evidence at the trial that she heard 'noises' on the night of Sunday, 9 December 2007 (ts 172). She first heard these noises about 10 or 15 minutes after she persuaded her husband to go to bed. This persuasion occurred, she said, at 10.35 pm based on their microwave clock (ts 174 ‑ 175). The microwave clock was accurate to within five or six minutes (ts 174). Ms Tink agreed that she first heard the noises between about 10.40 pm and 10.50 pm (ts 175). The noises were 'like singing or crying to [sic] calling out' (ts 172). Ms Tink's dogs started barking. She checked on them but found nothing amiss (ts 172). Soon afterwards, the dogs started barking again. Ms Tink went to the front door and heard the noises again. She then saw a person staggering on the footpath at the front of her property (ts 172). She told her husband what she had seen. Ms Tink then telephoned the '000' emergency number. This call was recorded at 11.12 pm (ts 182). She then saw the person stagger and fall at the front of her property. Ms Tink telephoned '000' again. This call was recorded at 11.19 pm (ts 182).

At 11.07 pm on the evening in question, another of the deceased's neighbours, Toni Gelissen, heard the deceased call out twice, 'Help me, please, someone' (ts 164).
At about 11.30 pm, the police arrived. They found the deceased about 100 m from her home (ts 181). She was dead. Shortly after the police found the deceased's body, they went to her home. They observed large quantities of blood in the doorway and on the footpath (ts 179).
Senior Constable Brett McCance, a blood pattern specialist, gave evidence at the trial that the stabbing of the deceased was consistent with it having occurred while she was between the bed and the wall in her bedroom.
Constable McCance said there was 'a very considerable amount of blood at the crime scene' (ts 735).
A bloody footprint trail suggested that the deceased had gone from the bedroom to the lounge room and then out the front door onto the porch. The trail indicated that she had then travelled along Hill Street to the front door of 5 Hill Street. Eventually, the blood trail ended in the front yard of 9 Hill Street, where she died.
Most of the forensic evidence accumulated by the police at or in the vicinity of the deceased's home did not implicate the appellant. In particular:
(a)DNA analysis confirmed that all of the blood in the deceased's home was her blood.
(b)All fingerprints found in the deceased's home, except for two, came from the deceased. The other two fingerprints could not be identified, but they did not belong to the appellant.
(c)Shoe impressions found outside the deceased's home belonged to the police who initially attended the crime scene.
(d)Tyre impressions found outside the deceased's home belonged either to a van that was usually parked at the front of the block of units or to another vehicle that was parked there regularly.
(e)Shoe impressions inside the deceased's home were made by thongs, but they did not match the appellant's thongs. The police were unable to estimate the age of the impressions.
(f)Bloody footprints inside the deceased's home belonged to the deceased.
On Monday, 10 December 2007, at 5.45 am (that is, about six to seven hours after the deceased's murder), Detective Senior Sergeant John Hindriksen, Detective Senior Constable Brendan O'Keefe, Detective Craig Mellors and Detective Darren Simmons went to the appellant's home. The detectives had ascertained details of the appellant's relationship with the deceased after speaking to members of her family (ts 138). The detectives discovered that, in addition to the appellant, Mr Kemp and Mr Henson resided at the appellant's home.
Detective O'Keefe gave evidence that when he informed the appellant of the deceased's murder, 'he didn't really appear fazed by the information' (ts 251).
On 10 December 2007, at about 5.45 am, the appellant informed the police that:
(a)he had last seen the deceased at about 9.00 pm the previous evening;
(b)he had gone to the deceased's home after being at the Boddington hotel;
(c)the clothes he had worn at the Boddington hotel were:
(i)a red 'Big Day Out' T-shirt;
(ii)black shorts;
(iii)black thongs; and
(iv)sunglasses.
The police seized these clothes as well as a blue T-shirt which the appellant said he could have been wearing.
The appellant then attended at the police station and participated in a formal record of interview (First Interview).
During the First Interview, the appellant said:
(a)He and the deceased had known each other since school.
(b)They had been involved in a casual sexual relationship for about 12 months, and he would attend her home only when drunk and for the purpose of having sex with her.
(c)The deceased had told him three to four months previously that she was pregnant, and he knew that he was likely to be the father of the child.
(d)He had not really discussed the pregnancy with the deceased, and he was not particularly concerned about it; however, he would have preferred that she not have the child, and he had asked her to have an abortion.
(e)The child would have caused him additional financial hardship. He was already contributing to the maintenance of his two daughters by another woman, his former partner.
(f)He had been at home the previous day. Between midday and about 10.30 pm to 11.00 pm he had consumed 10 to 12 beers and about four or five Jim Beam cans.
(g)He had gone to the Boddington hotel the previous day. He was wearing the clothes that he had identified for the police.
(h)He stayed at the hotel for a couple of hours. He then telephoned the deceased and arranged to go to her home. He 'grabbed a couple of [Jim Beam] takeaways' before leaving the hotel. He then walked from the hotel to the deceased's home. He had sex with the deceased while at her home. He was there for 20 to 30 minutes.
(i)He then walked home. When he arrived he found his housemates watching a DVD entitled 'Lock, Stock and Two Smoking Barrels'. He made himself a sandwich, watched the DVD for a while, and then went to bed. He did not leave the house again that night.
(j)He showered before going to bed.
(k)He said there was no reason why the deceased's blood would be on his thongs. Also, there would be no reason why the police would find any of the deceased's blood at his home. He said the only time the deceased had bled in his presence was about eight months previously when she had her period.
(l)He said that he had sustained two cuts on his left hand the previous night while slicing chicken for the purpose of making the sandwich.
After the First Interview, police attended at the Boddington hotel to check the appellant's account. A video taken by the hotel's security system showed the appellant was at the hotel from about 5.30 pm the previous day. The footage revealed that the appellant was not wearing a red 'Big Day Out' T-shirt at the hotel, as he had claimed. The prosecution relied upon this discrepancy as an Edwards lie (Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193) that was told out of a consciousness of guilt and a fear that the truth would incriminate him in the deceased's murder. The clothing which the video footage showed the appellant was wearing at the hotel was never located by the police.
Staff at the Boddington hotel gave evidence at the trial that when the appellant was at the hotel on the evening of 9 December 2007, he appeared to be intoxicated. Elizabeth Denton, a bar attendant, decided not to serve him any more alcohol (ts 318).
Paula Millsteed, another bar attendant at the hotel, corroborated Ms Denton's evidence. Ms Millsteed said that some time after she finished work (after 7.00 pm) she saw the appellant outside the hotel behaving in an antisocial manner. As a result, she instructed Ms Denton to cease serving alcohol to him (ts 326).
The appellant, who was not argumentative but was becoming loud, then agreed to purchase a can of Jim Beam and a packet of Winfield Blue cigarettes and leave the hotel. Another patron, Colin Moore, agreed to purchase the can on condition that the appellant left the hotel immediately (ts 306, 319). Ms Denton gave evidence that she sold the appellant a packet of Winfield Blue cigarettes and she handed him one black Jim Beam can before he left the hotel (ts 318 ‑ 319). It was not put to Ms Denton in cross‑examination that she gave the appellant other than one can or that the can she gave him was other than black in colour. Ms Denton saw the appellant leave the hotel and turn right in the direction of Dwellingup (ts 319). This was not the direction to the deceased's home.
Mr Moore said in evidence at the trial that the appellant's behaviour immediately before he left the hotel was 'boisterous', but not aggressive. He said in examination‑in‑chief that he purchased a black Jim Beam can for the appellant (ts 308). He saw the appellant turn south in the direction of Dwellingup when he left the hotel, with the can in his hand (ts 307). Mr Moore said in cross‑examination that he saw Ms Denton get a white Jim Beam can for the appellant (ts 309), even though he was confident that the appellant left the hotel with only one Jim Beam can in his hand. Mr Moore was confident because he had paid for the drink (ts 319). According to the prosecution, this evidence was inconsistent with the appellant's assertion during the First Interview that he had purchased two Jim Beam cans.
Lyall Thorne gave evidence at the trial which contradicted the appellant's assertion during the First Interview that he had gone immediately from the Boddington hotel to the deceased's home. According to Mr Lyall Thorne, on the evening of 9 December 2007 he (Mr Thorne) was at the house where he resided with his mother and siblings. Between 7.30 pm and 8.30 pm the appellant was at Mr Lyall Thorne's home. The appellant appeared to be drunk and he asked Mr Lyall Thorne if his mother, Denise Thorne, was there. She was not. Mr Lyall Thorne said in evidence that the appellant had a black Jim Beam can in his hand. He appeared to be angry (ts 334). After a few minutes, the appellant walked away. Mr Lyall Thorne saw him talking to Kristy Jones on the corner (ts 333).
Ms Jones confirmed in her evidence at the trial that at about 7.30 pm on the evening in question she saw the appellant (ts 357). He was wearing a T-shirt, shorts and a black and white cap (ts 357). She first saw him sitting on the kerb on the corner of Banksia Court and Bannister Road. He appeared to be using a mobile telephone (ts 355). She thought there was a stubby holder on the ground next to him.
Telephone records tendered in evidence at the trial revealed that the appellant made two telephone calls to the deceased on the evening of 9 December 2007. The calls were made at 6.24 pm and 7.43 pm (ts 899, 1286).
After the police checked the video footage taken from the Boddington hotel which depicted the appellant in different clothes from those he said he had been wearing, the police interviewed him for a second time (Second Interview). The Second Interview was conducted on 10 December 2007 between 2.55 pm and 4.28 pm. During the Second Interview the appellant maintained in essence the account he had given earlier.
The appellant did, however, make a number of concessions and admissions during the Second Interview. These included:
(a)He accepted that he was wrong about the clothes he said he had been wearing at the Boddington hotel.
(b)He accepted that he had spoken to Kristy Jones on the evening in question, although he maintained that it was at the hotel. He did not recall attending Denise Thorne's home, although he admitted he may have gone there to speak about a wallet that 'went missing' from his home about six weeks previously.
(c)Detective Hindriksen asked questions about what he thought may have been blood on the appellant's thongs. The appellant said it was possible that it was the deceased's blood, although he could not recall there being any blood on the floor of her home the night before.
(d)He admitted his thongs had been found in the bathroom of his home. Although he said it may have been possible that he had washed his thongs because they had mud on them, he accepted that there had been no rain.
The appellant's housemates gave evidence at the trial about the appellant's movements on the evening in question.
Mr Henson said in evidence that he arrived home at about 9.30 pm (ts 368). Before arriving home, he stopped at the Premier hotel in Pinjarra and purchased a six-pack of white Jim Beam cans (ts 369). Video footage from the Premier hotel's security system showed that Mr Henson made his purchase at 8.27 pm. He said it took him about an hour to drive from the Premier hotel to Boddington. During the journey, he consumed one of the cans he had purchased. He thought that he had thrown the empty can in a green rubbish bin at the front of the house when he got home (ts 372).
Mr Henson said in evidence that when he arrived home Mr Kemp was there watching the DVD, 'Lock, Stock and Two Smoking Barrels'. Mr Henson lay on a couch and watched the DVD. It was about halfway through when he arrived home.
Mr Kemp's evidence was that the appellant arrived home at 9.00 pm and that Mr Henson arrived home at a 'rough guess' at 8.30 pm (ts 407). Mr Henson's evidence was that about 15 minutes after he arrived home, the appellant entered through the back door. On Mr Henson's evidence, the appellant returned home at about 9.45 pm.
Mr Henson gave evidence that he and the appellant spoke for about 15 to 20 minutes after the appellant arrived home (ts 373). According to Mr Henson, the appellant and Mr Kemp then went outside to smoke a cigarette.
Mr Henson watched the DVD until it finished and then went to his room at about 10.30 pm (ts 373 ‑ 374). He played with his mobile telephone for a few minutes and then went to sleep. Before he went to sleep, and not long after going to his room, Mr Henson heard the back door open and close (ts 374).
On Monday, 10 December 2007, when they searched the appellant's home, police found only one Jim Beam can (white or otherwise) at the top of the green rubbish bin at the front of the appellant's home. This can was photographed in the location in which it was found and tendered as exhibit 50 (ts 653). It was white in colour and possessed double stamping: '22 OCT 08 A22:46' and '22 OCT 08 A22:47'.
Mr Henson gave evidence that when he arrived at the appellant's home on the evening in question he had placed the remaining five white Jim Beam cans he had purchased from the Premier hotel, in their cardboard wrapper, in the refrigerator at the appellant's home (ts 372).
The police found three white Jim Beam cans in a cardboard wrapper on the bottom shelf of the refrigerator at the appellant's home (ts 646). They were tendered as exhibit 43 (ts 646). The manufacturer's stampings on these three cans varied between '22 OCT 08 A22:06', '22 OCT 08 A22:16' and '22 OCT 08 A22:17'.
The police also found six white Jim Beam cans on the top shelf of the refrigerator at the appellant's home. They were tendered as exhibit 42A-42F. Of these cans, only one had similar stampings to the three cans found by the police in the cardboard wrapper on the bottom shelf of the refrigerator. The can on the top shelf with similar stampings was exhibit 42E.
The police also found an empty white Jim Beam can on the kitchen bench at the appellant's home which was tendered as exhibit 46. This can did not have similar stampings to the cans comprising exhibit 43 and exhibit 42E.
Accordingly, only five white Jim Beam cans with similar stampings were found at the appellant's home (namely, the empty can at the top of the green rubbish bin being exhibit 50; the three cans on the bottom shelf of the refrigerator being exhibit 43; and the can found on the top shelf of the refrigerator being exhibit 42E). A sixth white Jim Beam can with similar stampings was not found at his home.
However, an empty white Jim Beam can was found on Tuesday, 11 December 2007, about 20 m from the boundary of the deceased's home. It was across the road on the verge and was about 50 cm from the bitumen (ts 762). Police labelled the can 'NB 31' and it became exhibit 20 at the trial (ts 487). The can was tested for fingerprints and DNA. The appellant's fingerprints were found on the outside of the can and a DNA profile matching the appellant's reference DNA profile was found on the mouth of the can. The manufacturer's stamping on the can was '22 OCT 08 A22:23'.
At the trial, First Class Constable Nicholas Brent gave evidence about the finding of this empty white Jim Beam can (exhibit 20). He said, in effect, that on Monday, 10 December 2007, police had searched the verges on both sides of Hill Street, the bins in Hill Street and the vacant blocks in the surrounding areas (ts 485). Constable Brent also said, in response to a leading question from the prosecutor, that the white Jim Bean can, being exhibit 20, was located 'on the street side of Hill Street' (ts 485). The can was photographed in situ before it was collected. Photographs of the can lying on the verge were tendered. In one of the photographs the deceased's home could be seen in the background. No evidence was adduced as to who actually found the can or when it was found. Having regard to the fact that Constable Brent gave the evidence about its discovery, the jury might reasonably have inferred that he had found the can.
The empty white Jim Beam can, being exhibit 20, with the appellant's fingerprints and DNA was alleged by the prosecution to be of significance for several reasons. First, the can was, on the prosecution's case, one of the cans purchased by Mr Henson at the Pinjarra hotel on the evening of 9 December 2007. Secondly, on the prosecution's case, the can could only have been deposited about 20 m from the deceased's home after Mr Henson had returned to the appellant's home. Thirdly, on the prosecution's case, the can was deposited in the location in which it was found when the appellant returned to the deceased's home for a second time, and was probably dumped there before the appellant entered her home for a second time that night.
The manufacturer's stampings on some of the white Jim Beam cans were, relevantly, as follows:
(a)Exhibit 20: the white Jim Beam can found near the deceased's home: this can was stamped twice with '22 OCT 08 A22:23'.
(b)Exhibit 42E: one of the six white Jim Beam cans found on the top shelf of the refrigerator at the appellant's home: this can was stamped twice with '22 OCT 08 A 22:23'.
(c)Exhibit 43: the three white Jim Beam cans found, still in the cardboard wrapper, on the bottom shelf of the refrigerator at the appellant's home: stampings varied between '22 OCT 08 A22:06', ' 22 OCT 08 A22:16' and '22 OCT 08 A22:17'.
(d)Exhibit 50: the empty white Jim Beam can found at the top of the green rubbish bin at the front of the appellant's home: stamped with '22 OCT 08 A22:46' and '22 OCT 08 A22:47'.
(e)Exhibits 20 and 42E had identical stampings: exhibits 43 and 50 had similar stampings to exhibits 20 and 42E and to each other.
It was the prosecution's contention that exhibits 20, 42E, 43 and 50 comprised the six‑pack which Mr Henson had purchased at the Pinjarra hotel on the evening in question.
The prosecution called Phillip Gock, a supply chain director for the Asia Pacific of Jim Beam Australia. He gave evidence at the trial that the stamping appearing on the bottom of each can is a batch code number. The batch code number indicates the 'best before' date, which is one year after the date on which the can is produced, the plant where it was manufactured and the time of production. The letter 'A' indicates that the can was produced in Adelaide. The last four digits indicate the time at which the can was filled. About 200 ‑ 300 cans are accumulated at one time and then organised into six‑packs. The cardboard wrapper of a six‑pack also carries a batch code reference. All the cans in a six‑pack and the cardboard wrapper have the same batch code, with some variations in the times at the end of the code (ts 701 ‑ 703).
On Tuesday, 11 December 2007, Dr Karin Margolius, a forensic pathologist, carried out a post-mortem on the deceased (ts 425). She concluded that the deceased had died from 'penetrating wounds to chest' (ts 457). There were about 21 wounds. These were consistent with having been inflicted by a sharp instrument such as a knife. Four of the wounds were, on their own, potentially fatal. The deceased's injuries included:
(a)Multiple wounds to the front and back of her chest. Some wounds penetrated the chest wall and damaged her ribs.
(b)The most serious wound was a 15 cm penetrating wound on the top of the right breast which penetrated the lung. This permitted air to enter the lung and brought about a mediastinal shift. Death followed shortly afterwards.
(c)Multiple 'defence type' wounds to her arms (ts 440 ‑ 442).

In her evidence at the hearing of this appeal, Constable Walters did not elaborate upon her statement dated 20 August 2018 in relation to the bloody footprints located within the deceased's home.

Particular G: the footprints and fingerprints inside the deceased's home: the trial judge's summing up

The trial judge did not give any directions or make any comments to the jury in his summing up about the footprints and fingerprints inside the deceased's home.

Particular G: the footprints and fingerprints inside the deceased's home: the appellant's submissions

Counsel for the appellant submitted that the trail of bloody footprints at the deceased's home was probably made by the deceased and that it was highly unlikely that any of the bloody footprints were made by the appellant. No bloody footprints at the crime scene could be attributed to the appellant's reference inked foot impressions obtained by the police prior to trial (ts 750 ‑ 758). If the appellant had transferred the deceased's blood from his feet to his thongs and, consequently, the thongs required washing, it is possible that the appellant would have left his bloodied footprints at the deceased's home. None were observed. Counsel argued that there was no evidence of any bloodied footprints or outsole (bottom of the shoe) impressions made by the appellant or his thongs. If the appellant was the murderer and had been barefoot inside the deceased's home, there was a very high probability that the deceased's blood would have been transferred directly from the soles of the appellant's feet to the impression region of his thongs. However, those areas returned negative results when screened chemically for blood (ts 1074).

Particular G: the footprints and fingerprints inside the deceased's home: the State's submissions

Counsel for the State submitted that there was no evidence that the person who killed the deceased stepped in her blood. There was no evidence that blood would have necessarily pooled around the deceased so that her killer would have inevitably stepped in the blood before leaving the scene.
Further, it was submitted that the evidence was compelling that there was only one set of footprints at the crime scene and, accordingly, whoever the killer was, they did not step in the deceased's blood.
It was submitted that none of the evidence, including the fingerprint evidence, established that a person other than the appellant had been at the deceased's home on the night in question.

Particular G: the footprints and fingerprints inside the deceased's home: the merits of the particular

In our opinion, having reviewed the whole case, the fact that no bloody footprints and no bloody fingerprints attributable to the appellant were located within the deceased's home or in the vicinity of her home does not, having regard to all of the evidence adduced in the whole case, significantly advance the appellant's defence or significantly diminish the strength of the State's case.

Particular H: other matters: the oral evidence at the hearing of this appeal

The other matters referred to in particular H are as follows:
(a)the appellant denied, in his records of interview with police, having killed the deceased; and
(b)there was no history of violence between the appellant and the deceased.
No oral evidence was given at the hearing of this appeal in relation to the matters referred to in particular H.

Particular H: other matters: the merits of the particular

It may be accepted that the appellant denied, in his records of interview with police, having killed the deceased. It may also be accepted that there was no history of violence between the appellant and the decased.

Other matters generally arising from the oral evidence at the hearing of this appeal

Counsel for the appellant submitted that detectives had an opportunity to remove the deceased's blood from her home. Detective Hindriksen viewed the deceased's body and then entered her home at about 3.00 am on 10 December 2007. The police were wearing protective clothing. Detective Hindriksen admitted that they stepped on the floor. The floor was heavily blood stained. There was an opportunity to remove blood from the floor onto the detectives' protective footwear and, also, by other methods. On 13 December 2007, Detective Dowding conducted an investigative search of the deceased's home after the forensic examination had been completed. Detective Bragg said it would have been possible to obtain blood from the deceased's home. Constable Freegard said there was no wet blood source at the deceased's home, but agreed that if a person wanted to take a blood sample that could be done by using a wet rag to smear some blood onto the rag. On 13 December 2007, there was still blood in the deceased's home when the scene was handed over to detectives.
Counsel for the appellant also submitted that detectives had an opportunity to remove a Jim Beam can from the appellant's home. There was evidence that at various times on and after 10 December 2007 there were no scene guards present at the rear of the appellant's home. When Constable Whitmore entered the appellant's home on 13 December 2007 there was a key in the back door. Also, Constable Whitmore said there was no seal at that time on the back door (merely blue tape). Sergeant Hofstee confirmed that there were no seals on the front door or the back door. He admitted that he never saw a scene guard at the rear of the appellant's home. He said that the rear security door was locked, but Detective Hindriksen was aware that there was a key on the rear verandah.
Counsel for the State submitted that although the appellant has speculated that blood could have been on the protective footwear worn by the detectives who entered the deceased's home, the unchallenged evidence at the trial was that there were no outsole bloody footprints in the deceased's home. That indicates either that the blood stains were dry when the detectives walked on any blood or that none of the detectives stepped on it. Detective Hindriksen said in evidence at the hearing of this appeal that the detectives carefully stepped around the blood as they moved through the house (appeal ts 1,001). That evidence was not challenged. It was not suggested to any police officer who gave evidence in this appeal that blood was collected from the detectives' protective footwear.
Counsel for the State reiterated the State's submissions in relation to the appellant's attack upon individual items of evidence; in particular, AC74 (the cigarette packet), NB91 (the knife) and NB31 or exhibit 20 (the Jim Beam can).

The appellant's submissions as to the outcome of this appeal

Counsel for the appellant submitted that, upon consideration of the whole case as now presented, this court should conclude that the State case, as presented at the trial, has been significantly undermined. A consideration of the 'strands in the cable' primarily relied upon by the State at the trial reveals the existence of significant doubts about the strength of the evidence which allegedly forms the basis of each of those strands.
It was submitted that the provenance of the cigarette packet, the knife and the white Jim Beam can found on the road verge in Hill Street are highly questionable. The jury was not given the benefit of the evidence that casts doubt upon that provenance. Further, the State's reliance at the trial upon evidence which suggested that the deceased's blood was found on the Jim Beam cans in the refrigerator at the appellant's home and on the appellant's thongs was misplaced and in error. As to can AC29 (exhibit 46), the evidence that the stain on the base of the can was the deceased's blood cannot be substantiated. Although the deceased's DNA was on can AC29, including in the area that contained the blood stain, that does not permit a conclusion that it was the deceased's blood, in view of other evidence as to the appellant having cut his fingers and on the State case itself (which relied upon the proposition that the appellant had placed the stain on the base of the can). There is no evidentiary foundation for concluding that the burnt remnants found in the fireplace were the clothes which the appellant had worn on the night of the murder. Further, the alleged lies told by the appellant in his records of interview are explicable by the state of his inebriation. The alleged motive to kill is based on 'flimsy' evidence.
According to counsel for the appellant, this court should conclude, on the whole of the evidence now before this court, that the verdict of the jury is unreasonable and cannot be supported having regard to the evidence. Alternatively, it was submitted that this court should conclude that there is a substantial possibility that the jury may have been mistaken or misled in arriving at its verdict. Counsel submitted that a miscarriage of justice has occurred and that 'at the very least' a new trial should be ordered. The whole of the evidence that is now before this court shows a substantial undermining of crucial aspects of the State case at trial. It is necessary for a fresh jury to reconsider the evidence as it now exits. In the circumstances, there is no occasion for the proviso to be applied.

The State's submissions as to the outcome of this appeal

Counsel for the State noted that the State case was circumstantial. It comprised a large number of different pieces of evidence. The evidence came from different sources and was located by different police officers.
It was submitted that the fact that additional or more detailed evidence can be adduced on an appeal does not necessarily result in a finding that there has been a miscarriage of justice. When scrutinised, the additional or more detailed evidence adduced in this appeal makes very little difference to the whole of the case. The real difference in the case, as argued on appeal, is the position taken by the appellant in relation to the whole of the case. The appellant seeks, in effect, to recast his defence to allege that the police planted certain pieces of evidence. The appellant does not seek to identify an alternative potential suspect.
Counsel argued that the actual evidentiary foundation relied upon by the appellant for his submissions that a miscarriage of justice has occurred is extremely limited. There is no evidence that the fact that the cigarette packet was not shown in the photographs taken on 13 December 2007 was unknown to defence counsel at the time of the trial. According to counsel, the evidence credibly establishes that no person introduced the cigarette packet into the scene.
Similarly, the evidence credibly establishes that no person introduced can NB31 (exhibit 20) into the scene at Hill Street.
Counsel said that although the evidence of Dr Shepherd and Dr White on appeal adds detail to Dr Margolius' evidence regarding the depth of some of the deceased's wounds, the new evidence does not change substantially the evidence given by Dr Margolius on the crucial issue, namely whether the knife found by Detective Hindriksen could have caused the injuries. In circumstances in which neither Dr Shepherd nor Dr White said that the knife was incapable of causing the injuries, their evidence is insufficient to establish that a miscarriage of justice occurred at the trial.
According to counsel, the additional evidence adduced by the appellant, when considered in the light of the whole of the case, does not establish that there was a miscarriage of justice. Further, and in any event, counsel submitted that, on an assessment of the whole of the evidence, there is no cogent and credible evidence which would permit this court to find that there was a 'significant possibility that a jury, acting reasonably, would have acquitted' the appellant. Accordingly, the appeal should be dismissed.
Alternatively, counsel argued that if the court were to find against the State on this point, ground 1 of the appeal must still fail. The State case remains 'extremely strong'. Even a 'significant possibility' that a jury would have acquitted the appellant does not enable a finding to be made that the verdict was unreasonable and cannot be supported having regard to the evidence. If a miscarriage of justice has occurred the appropriate course would be to order a new trial.

This court's conclusions as to the outcome of this appeal

We are satisfied that ground 2 has been made out. A miscarriage of justice (within s 30(3)(c) of the Criminal Appeals Act) has occurred. This court should allow the appeal and set aside the judgment of conviction.
Our reasons for arriving at those conclusions are as follows.
First, as we have mentioned, we are satisfied, having reviewed the whole case, that there is credible, cogent and plausible evidence that:
(a)the knife found by Detective Hindriksen was not used by the murderer to inflict any of the deceased's wounds; and
(b)someone planted the knife (at the location in the paddock where the knife was seized by the forensic team on Wednesday, 12 December 2007) after the State Emergency Service carried out the search on Tuesday, 11 December 2007 and before Detective Hindriksen, Detective O'Keefe and Detective Bragg alerted the forensic team on 12 December 2007 that the knife had been discovered.
At the trial the prosecution submitted that the jury should draw the inference that the knife found by Detective Hindriksen was the murder weapon.
The trial judge told the jury that, although it was entirely a matter for them, if the jury accepted the evidence of the blood tests and the DNA analysis in relation to the knife, then the only reasonable inference was that the knife was indeed the murder weapon.
As we have mentioned, Dr Shepherd's evidence was credible and sufficiently cogent and plausible to lead a reasonable jury to prefer his evidence to the evidence of Dr Margolius and Dr White on issues where Dr Shepherd's evidence was materially different from or inconsistent with Dr Margolius' or Dr White's evidence. In particular, Dr Shepherd's evidence was credible and sufficiently cogent and plausible to lead a reasonable jury to find that the descriptions and interpretations given by Dr Margolius for wounds 6 ‑ 10 and 12 ‑ 14 were wrong; it is 'unlikely or very unlikely' that wounds 3, 4, 5 and 17 were caused by the knife found by Detective Hindriksen; and Dr Margolius' explanation that a knife may penetrate more deeply into a body than the apparent 'simple' length of the blade did not apply, in the present case, because the stab wounds inflicted on the deceased that were deeper than the length of the blade of the knife found by Detective Hindriksen did not pass through the majority of the deceased's breast tissue.
At the trial the knife was an important item of evidence. A mixed DNA profile was obtained from a sample taken from the handle of the knife and the deceased was identified as a contributor. A single source DNA profile was obtained from samples taken from the blade and the hilt of the knife and that profile matched the deceased's reference DNA profile. The knife was located in the paddock between the deceased's home and the appellant's home. The place where the knife was located, taken with other evidence, implicated the appellant in the deceased's murder.
The evidence that was adduced at the hearing of this appeal in relation to the knife has had the effect that, in considering the whole case, the evidence at the trial which indicated that the knife found by Detective Hindriksen was the murder weapon has assumed an entirely different complexion. As we have mentioned, having reviewed the whole case, there is credible, cogent and plausible evidence that the knife found by Detective Hindriksen was not used by the murderer to inflict any of the deceased's wounds and that someone planted the knife.
Secondly, as we have mentioned, we are satisfied, having reviewed the whole case, that there is credible, cogent and plausible evidence that:
(a)the Winfield Blue cigarette packet found by Detective Bragg was not on the table on the verandah at the back of the appellant's home or on the floor of the verandah in the vicinity of the table before Sergeant Hofstee and Constable Whitmore arrived at the appellant's home on Thursday, 13 December 2007; and
(b)someone planted the cigarette packet on the table on the verandah or on the floor of the verandah in the vicinity of the table after Sergeant Hofstee and Constable Whitmore arrived at the appellant's home on 13 December 2007 and before Sergeant Hofstee saw the cigarette packet and conducted a Hemastix test on it after about 6.25 pm on Friday, 14 December 2007.
The apparent absence of the Winfield Blue cigarette packet from the table on the verandah at the back of the appellant's home when Constable Whitmore made the video of the verandah (including the table) and took photographs of the verandah (including the table) on 13 December 2007 was not raised or referred to at the trial.
The trial judge told the jury that:
(a)the jury 'may well think' that the Winfield Blue cigarette packet found on the table on the verandah at the back of the appellant's home was the cigarette packet that the appellant purchased at the Boddington hotel on the evening of Sunday, 9 December 2007;
(b)an obvious inference from Dr Hallam's evidence was that stain C on the cigarette packet was the deceased's blood; and
(c)the effect of Dr Hallam's evidence was that the scenario postulated by defence counsel to explain away the incriminating DNA evidence (namely, the stains on the cigarette packet were a combination of blood from the appellant's cut finger and the deceased's vaginal secretions on his finger or fingers) was possible but very unlikely.
The evidence that was adduced at the hearing of this appeal in relation to the Winfield Blue cigarette packet has had the effect that, in considering the whole case, the evidence at the trial which supported the State's argument has assumed a significantly different complexion. The State's argument at the trial was that, consistently with the appellant having returned to the deceased's home and killed her, the appellant had left blood stains on the cigarette packet that he had bought earlier in the evening at the Boddington hotel. As we have mentioned, having reviewed the whole case, there is credible, cogent and plausible evidence that someone planted the cigarette packet found by Detective Bragg.
Thirdly, having regard to our findings at [601] and [605] above, the approach of the High Court in Mallard must be applied, notwithstanding that most of the evidence given by the witnesses in this appeal was new, as distinct from fresh, evidence. In particular, the critical evidence given in relation to the depth of the wounds suffered by the deceased, the knife found by Detective Hindriksen and the Winfield Blue cigarette packet found by Detective Bragg is properly characterised as new and not fresh.
Fourthly:
(a)the evidence and the conclusions we have arrived at in relation to the knife found by Detective Hindriksen must be evaluated and weighed in conjunction with the whole case, including the evidence and the conclusions we have arrived at in relation to the Winfield Blue cigarette packet found by Detective Bragg; and
(b)the evidence and the conclusions we have arrived at in relation to the Winfield Blue cigarette packet must be evaluated and weighed in conjunction with the whole case, including the evidence and the conclusions we have arrived at in relation to the knife.
Fifthly, the evidence and conclusions we have arrived at in relation to the knife found by Detective Hendriksen and the Winfield Blue cigarette packet found by Detective Bragg raise significant concerns as to the provenance of those important items of evidence and, in turn, give rise to a basis for hesitating in deciding whether to draw inferences adverse to the appellant in relation to:
(a)the Jim Beam can (NB31 or exhibit 20) located on Hill Street; and
(b)the six white Jim Beam cans found on the top shelf of the refrigerator (exhibit 42) and the stains on the white Jim Beam can (can AC29 or exhibit 46) found on the kitchen bench at the appellant's home,
on the basis that they are the only reasonable inferences open.

Sixthly, there is a real risk that the matters to which we have referred at [596] ‑ [608] above compromised, in some important respects, the integrity of the police investigation and, in turn, adversely affected the fairness of the appellant's trial. Further, the real risk that the integrity of the police investigation was compromised in relation to the knife found by Detective Hindriksen and the Winfield Blue cigarette packet found by Detective Bragg has the capacity to cast a shadow over the integrity of the police investigation in relation to the Jim Beam can (NB31 or exhibit 20) located on Hill Street, the six white Jim Beam cans found on the top shelf of the refrigerator (exhibit 42) and the stains on the white Jim Beam can (can AC29 or exhibit 46) found on the kitchen bench at the appellant's home.
Seventhly, having regard to the evidence given by the witnesses in this appeal, and the materially different complexion which the evidence at the trial assumes as a consequence of the evidence given by the witnesses in this appeal in relation to the depth of the deceased's wounds, the knife found by Detective Hindriksen and the Winfield Blue cigarette packet found by Detective Bragg, it is highly likely that the conduct of the defence case at the trial would have been materially different and the jury would have been presented with a State case that was materially weaker and a defence case that was materially stronger.
Eighthly, in all the circumstances, there is a real risk that the appellant's trial was unfair and a real doubt as to whether the appellant's conviction for wilful murder is safe or just.
The additional evidence that was adduced at the hearing of this appeal raises significant questions about the probative value which the jury might have attributed to some of the evidence adduced at the trial if the jury had known the content of the additional evidence. It is sufficient, by way of example, to refer to the evidence about the knife and the comments of the trial judge which are set out at [353] above. His Honour pointed out that if the jury were to accept the evidence about the blood tests and the DNA evidence, then 'the only reasonable inference is that the knife was indeed the murder weapon' (ts 1277). But if his Honour and the jury had known about Dr Shepherd's evidence and the other additional evidence concerning how the knife had been found, then his Honour's comment would not have been valid and his Honour would not have made it. In the light of the additional evidence adduced in this appeal, of which neither the trial judge nor the jury were aware, his Honour's comment, together with our findings and conclusions in relation to the whole case, including in particular those at [601] and [605] above, deprived the appellant of a fair chance of acquittal.
Counsel for the State submitted that there are various plausible or credible answers to the appellant's contentions about the additional evidence adduced in this appeal. See, for example, [363], [371] ‑ [373], [431] ‑ [433], [495], [498] and [551] above. However, it is not the business of this court to consider the ways in which a jury might, despite the additional evidence adduced in this appeal, reason towards a conviction. See Mallard [23]. The business of this court is to determine whether there has been a miscarriage of justice of a kind that would justify and require the jury's verdict of guilty to be set aside.
In the present case, for the reasons we have given at [596] ‑ [612] above, the appellant's inability to put the additional evidence adduced in this appeal before the jury, and his consequential inability to conduct his case accordingly, occasioned a miscarriage of justice of a kind that justifies and requires the jury's verdict to be set aside.
We are not satisfied that ground 1 has been made out. We consider that, despite the miscarriage of justice which has occurred, the State had at the trial and continues to have a strongly arguable circumstantial case against the appellant, even if the knife found by Detective Hindriksen and the Winfield Blue cigarette packet found by Detective Bragg were planted.
In our opinion, having made our own independent assessment of the sufficiency and quality of the evidence given at the trial and in this appeal, it would be open to a reasonable and properly directed tribunal of fact to be satisfied beyond reasonable doubt, upon the whole of the evidence, that the appellant was guilty of wilful murder. We have formed that opinion after disregarding the knife found by Detective Hindriksen and the Winfield Blue cigarette packet found by Detective Bragg on the assumption, favourable to the appellant, that those items were planted, and after taking into account the effect upon the credibility of some of the State's witnesses that would probably follow upon any findings by the tribunal of fact that the knife and the cigarette packet had been planted.
For example, subject to the tribunal of fact's assessment of and findings in relation to the evidence as a whole, it would be open to a reasonable and properly directed tribunal of fact to conclude, beyond reasonable doubt, that the appellant was guilty of wilful murder, by the following process of reasoning:
(a)The deceased was stabbed to death in the bedroom of her home.
(b)On the basis of Ms Tink's evidence, the deceased was killed between about 10.35 pm and about 11.12 pm on 9 December 2007.
(c)At all material times, the appellant had a casual sexual relationship with the deceased that he wished to keep secret.
(d)When she died and to the appellant's knowledge, the deceased was pregnant with his child. The appellant pleaded with the deceased to terminate the pregnancy. She refused. The appellant therefore had a motive to kill the deceased.
(e)Mr Henson gave credible evidence that, sometime after 10.30 pm on 9 December 2007, he heard someone leaving the appellant's home. At the time the only people present in the appellant's home were Mr Henson, Mr Kemp and the appellant. In all the circumstances, the proper inference is that Mr Henson heard the appellant depart.
(f)The distance between the appellant's home and the deceased's home was about 350 m.
(g)Having regard to the matters set out at [617(e) and (f)] above, the appellant had the opportunity to kill the deceased.
(h)On the basis of the evidence that the empty white Jim Beam can found on the road verge near the deceased's home (exhibit 20) had the appellant's DNA on it; the can was likely to have been purchased by Mr Henson on the evening in question; two of the white Jim Beam cans found by the police at the appellant's home (being exhibit 42E and exhibit 46) had the deceased's DNA on them; and the thongs found by the police in the appellant's home had the deceased's DNA on them, the proper inference is that the appellant was at the deceased's home between about 10.35 pm and about 11.12 pm on 9 December 2007.
(i)On the basis of Dr Hallam's evidence, the possibility that the deceased's DNA on two of the white Jim Beam cans found by the police at the appellant's home (being exhibit 42E and exhibit 46) was attributable to the deceased's vaginal secretions should be rejected.
(j)On the basis of the confirmatory test for blood and Dr Hallam's evidence, the stains designated B, C, F and H on the white Jim Beam can found on the kitchen bench at the appellant's home (can AC29 or exhibit 46) were attributable to the deceased's blood and were transferred from the appellant to the can upon his returning from his second visit to the deceased's home on the night in question.
(k)The appellant lied to the police in his video records of interview in relation to the clothes he was wearing on the night of the deceased's murder. The lies were told out of a consciousness of guilt and a fear of the truth, namely that he had wilfully murdered the deceased.
(l)The contents of the wood‑fire heater in the appellant's home found by the police included burnt fabric that was the remnants of clothing the appellant had worn on the night in question. The proper inference is that the appellant burnt the clothes he had been wearing upon his returning from his second visit to the deceased's home on the night in question. This post‑offence conduct showed a consciousness of guilt and a fear of the truth in relation to his having wilfully murdered the deceased.
We turn to consider whether this court should enter a judgment of acquittal or order a new trial.
Section 30(5) of the Criminal Appeals Act applies in the case of an appeal against a conviction by an offender. It reads, relevantly:
If the Court of Appeal allows the appeal, it must set aside the conviction of the offence (offence A) and must -
(a)order a trial or a new trial; or
(b)enter a judgment of acquittal of offence A; or
(c)if -
(i)the offender could have been found guilty of some other offence (offence B) instead of offence A; and
(ii)the court is satisfied that the jury must have been satisfied or, in a trial by a judge alone, that the judge must have been satisfied of facts that prove the offender was guilty of offence B,
enter a judgment of conviction for offence B and impose a sentence for offence B that is no more severe than the sentence that was imposed for offence A.
In Director of Public Prosecutions (Nauru) v Fowler,[43] Gibbs CJ, Murphy, Wilson, Deane and Dawson JJ noted that the power of an appellate court to grant a new trial is discretionary in character. Where an appellate court quashes a judgment of conviction it must decide whether it is in the interests of justice to order a new trial. Two broad issues arise for consideration in making that decision. First, the court must assess whether the admissible evidence adduced at the original trial was sufficiently cogent to support a conviction. If it was not, a new trial should not be ordered because it would give the prosecution an opportunity to supplement a defective case. Secondly, if the court determines that the admissible evidence adduced at the original trial was sufficiently cogent to support a conviction, the court must take into account 'any circumstances that might render it unjust to the accused to make him stand trial again, remembering however that the public interest in the proper administration of justice must be considered as well as the interests of the individual accused'.
[43] Director of Public Prosecutions (Nauru) v Fowler [1984] HCA 48; (1984) 154 CLR 627, 630.
In King v The Queen,[44] Dawson J reiterated that the discretion to order a new trial should not be exercised 'when the evidence in the court below was not sufficiently cogent to justify a conviction or to allow the Crown to supplement a case which has proved to be defective'. His Honour noted, in particular, that 'the Crown should not be given an opportunity to make a new case which was not made at the first trial: R v Wilkes ((1948) 77 CLR 511, at p 518)'. See, to similar effect, the observations of McHugh J in Jiminez v The Queen,[45] where his Honour held that a new trial should not be ordered because 'a second trial would allow the Crown to make a case different from that which it put to the jury at the first trial'. See also Parker v The Queen.[46]
[44] King v The Queen [1986] HCA 59; (1986) 161 CLR 423, 433.
[45] Jiminez v The Queen [1992] HCA 14; (1992) 173 CLR 572, 590.
[46] Parker v The Queen [1997] HCA 15; (1997) 186 CLR 494, 520 (Dawson, Toohey & McHugh JJ).
In R v Taufahema,[47] Gummow, Hayne, Heydon and Crennan JJ cited, with apparent approval, the observations of Gleeson CJ (Finlay J & Slattery AJ agreeing) in Anderson v The Queen[48] that:
(a)there is a public interest in the due prosecution and conviction of offenders; and
(b)it is desirable, if possible, for the guilt or innocence of an accused to be finally determined by a jury.
[47] R v Taufahema [2007] HCA 11; (2007) 228 CLR 232 [49], [51].
[48] Anderson v The Queen (1991) 53 A Crim R 421, 453.
In Taufahema, Gleeson CJ and Callinan J (who with Kirby J dissented in the result) said that the references by Dixon J in R vWilkes,[49] and by Dawson J in King (433), to 'a new case' must be 'to the particulars of the charge, and to the nature of the evidence that will be adduced in support of it, not to the elements of the offence' [35].
[49] R v Wilkes [1948] HCA 22; (1948) 77 CLR 511, 518.
Gleeson CJ and Callinan J also said in Taufahema that the general rule that 'litigants are bound by the conduct of their counsel, a rule essential to the adversarial system, applies with at least as much force to the prosecution as to the defence' [37]. Their Honours explained [37]:
The considerations identified in Crampton v The Queen ((2000) 206 CLR 161 at 172 - 173 [15] - [20]) as reasons for the rule confining the circumstances in which a new point may be taken in this Court on a criminal appeal by an accused person are relevant in this context also. In particular, the adversarial procedure of criminal justice, which is bound up with notions of judicial independence and impartiality, and according to which the issues at trial are chosen and defined by the parties and their counsel, is at the heart of the matter. It is the executive branch of government that decides whether to prosecute, and what charges to lay. A trial is fought as a contest between the executive government and a citizen. The judge presides neutrally over that contest. Counsel for the respective parties define the issues, decide what witnesses will be called and what questions will be asked, and decide what arguments will be pursued and what will be abandoned.
Gummow, Hayne, Heydon and Crennan JJ, who constituted the majority in Taufahema, reviewed the decisions in Wilkes, King, Jiminez and Parker, and said that these authorities suggest that 'the difference between the case relied on in a first trial and the case to be relied on in a second trial must be substantial if the difference is to stand as a bar to an order for a second trial' [67].
We are satisfied, for the following reasons, that in the present case a judgment of acquittal should not be entered and that a new trial should be ordered.
First, there is a public interest in the due prosecution and conviction of offenders and it is desirable, if possible, for the guilt or innocence of an accused to be finally determined by a jury.
Secondly, despite the miscarriage of justice which has occurred, the State had at the trial and continues to have a strongly arguable circumstantial case against the appellant, even if a jury concludes that the knife found by Detective Hindriksen and the Winfield Blue cigarette packet found by Detective Bragg were planted. That case is capable of satisfying a jury beyond reasonable doubt that the appellant is guilty of wilful murder; and a fortiori if the jury rejects the appellant's assertion that the knife and the Winfield Blue cigarette packet were planted.
Finally, there are no circumstances that would render it unjust to the appellant to make him stand trial again. As we have said, there is a real case against him and the substantial differences between the State's case as presented at the trial and the case that the State would present at a new trial are to be found in evidence that is favourable to the appellant, not the State.

Conclusion

It is unnecessary to consider whether leave to appeal is necessary in relation to the grounds of appeal. In other words, it is unnecessary to consider whether s 27 of the Criminal Appeals Act applies to grounds of appeal in the context of a referral to this court pursuant to s 140 of the Sentencing Act. If leave to appeal is necessary, leave should be granted.
The appellant's applications dated 28 June 2018, 23 May 2019 and 19 July 2019 and the State's applications dated 14 September 2018, 1 May 2019, 5 July 2019, 10 July 2019 and 17 July 2019 for leave to adduce additional evidence in the appeal should be granted.
We would allow the appeal, set aside the judgment of conviction for wilful murder and order a new trial.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
KS
Associate to the Honourable Justice Buss
14 MAY 2020