Baker v The King

SUPREME COURT OF VICTORIA
COURT OF APPEAL

S EAPCR 2021 0120

KHALID BAKER	Applicant
v
THE KING	Respondent

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JUDGES:	EMERTON ACJ, PRIEST and NIALL JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	10 May 2022, 13 May 2022, 29 July 2022, 1 August 2022, 10 August 2022 and 23 August 2022
DATE OF JUDGMENT:	14 September 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 196
JUDGMENT APPEALED FROM:	R v Baker (Unreported, 26 May 2008, Supreme Court of Victoria, Whelan J) (Conviction)

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CRIMINAL LAW – Appeal – Conviction – Second or subsequent appeal – Murder – Deceased forced out a window during fight – Fall from height caused fatal injuries – Joint trial – Co-accused acquitted by jury – Admissions in co-accused’s record of interview that he had last physical contact with deceased – Co-accused’s record of interview not admissible at time of trial conducted – Record of interview now admissible – Subsequent admissions by co-accused in media interviews and other sources that he had last physical contact with deceased – Whether fresh evidence – Whether compelling evidence – Whether reliable evidence – Whether substantial evidence – Evidence not compelling – Evidence not reliable, substantial or highly probative of the principal disputed issue at trial – Leave to appeal refused – Criminal Procedure Act 2009, ss 326A, 326C – Evidence Act 2008, s 83(2) – Roberts v The Queen (2020) 60 VR 431; Van Beelen v The Queen (2017) 262 CLR 565.

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Counsel
Applicant:		Ms R Shann KC with Ms B Kelly (to 13 May 2022 ) Ms J Condon KC (from 29 July 2022)
Respondent:		Ms E Ruddle KC with Ms B Goding
Solicitors
Applicant:	Doogue + George Defence Lawyers (13 May 2022 ) Sarah Tricarico Lawyers (from 29 July 2022)
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

EMERTON ACJ
PRIEST JA
NIALL JA:

Introduction

At about 3.00 am on 27 November 2005, Albert Snowball, aged 22 years, was at a party in a converted warehouse in Brunswick (‘the warehouse party’) when he went through a glass window and fell 5.4 metres to the ground, causing him catastrophic injuries. He was pronounced dead two days later, at 11.00 am on 29 November 2005. The next day, 30 November 2005, Dr Malcolm Dodd, forensic pathologist, performed a post-mortem examination of Mr Snowball’s body. Dr Dodd subsequently gave evidence that the cause of Mr Snowball’s death was ‘one of multiple injuries … secondary to fall from a height’.
Then aged 18 years,[1] the applicant was at the same party as Mr Snowball. He attended with four associates, including Binyam Alemu (for convenience, ‘Alemu’) – then a minor[2] – Lado Morgan (‘Morgan’) and Ali Faulkner (‘Faulkner’). Following a police investigation, both the applicant and Alemu were charged with Mr Snowball’s murder. Throughout March, April and May 2008 they were tried in the Supreme Court.
[1]The applicant’s date of birth is 10 July 1987.
[2]Alemu’s date of birth is 5 March 1988.
As we will later explain in a little more detail, a critical issue in the trial was whether it was only the applicant or only Alemu – the prosecution alleged it was both – who was physically engaged with Mr Snowball immediately before he went out the window. The prosecution alleged that the applicant and Alemu both had intended to cause Mr Snowball really serious injury and that one or other or both of them had pushed or punched him, or made him back away, causing him to fall.[3]
[3]See [18] below.
Prior to trial, Alemu had made statements to the police and others which suggested that he had at one point pushed Mr Snowball. On the other hand, the applicant had made no admissions about involvement in the fatal incident. Neither the applicant nor Alemu gave evidence at trial. Counsel for the applicant submitted that the jury should be permitted to take into account evidence of Alemu’s out-of-court statements in considering whether the prosecution had established the applicant’s guilt. Applying Bannon,[4] however, the trial judge ruled that Alemu’s statements were not admissible in the applicant’s trial, since no exception to the hearsay rule permitted them to be adduced.
[4]Bannon v The Queen (1995) 185 CLR 1, 22 (‘Bannon’).
Ultimately, on 23 May 2008, the jury acquitted Alemu of murder (and the alternatives, manslaughter and defensive homicide), but found the applicant guilty of murder on 26 May 2008.[5]
[5]On 2 October 2008, the trial judge sentenced the applicant to 17 years’ imprisonment with a non-parole period of 12 years: R v Baker [2008] VSC 390.
On 18 January 2010, the applicant applied to the Court of Appeal for leave to appeal against his conviction. The application proceeded on the ground that the verdict was unreasonable and could not be supported having regard to the evidence. A ground of appeal that Alemu’s out-of-court statements had been wrongly excluded was not relied upon in oral argument. On 9 September 2010, the Court of Appeal refused the application.[6]
[6]Baker v The Queen [2010] VSCA 226 (Maxwell P, Buchanan and Bongiorno JJA) (‘Baker (CA)’).
The applicant applied to the High Court for special leave to appeal on the ground not pressed in the Court of Appeal: that Alemu’s out-of-court statements had been wrongly excluded. He was granted special leave to appeal on that ground. On 15 August 2012, however, his appeal was dismissed.[7]
[7] Baker v The Queen (2012) 245 CLR 632 (‘Baker (HC)’).
Pursuant to s 326A of the Criminal Procedure Act 2009 (‘CPA’), the applicant now seeks leave to appeal against his conviction on the following ground:
There is fresh and compelling evidence that demonstrates there has been a substantial miscarriage of justice: Mr Alemu has admitted both that he had the final physical contact with the deceased which caused the deceased to go out the window and that the applicant was not involved in or proximate to the final physical contact.
For the reasons that follow, we would refuse leave to appeal.

Statutory regime

It is necessary to say something of the statutory regime governing the present application.
An application such as the present must be determined in accordance with the provisions of Division 1 of Part 6.4 of the CPA (ss 326A to 326E).
By virtue of s 326A, a person convicted by the Supreme Court (or County Court) of an indictable offence, who has exhausted his or her right to appeal against conviction, or who has previously failed in a second or subsequent appeal under Part 6.4, may by leave appeal to this Court against conviction. Leave to appeal may only be granted, however, if certain criteria are satisfied.
Section 326C(1) thus provides that this Court relevantly may grant leave to appeal if satisfied ‘that there is fresh and compelling evidence that should, in the interests of justice, be considered on an appeal’. And s 326C(3) provides that
evidence relating to an offence of which a person is convicted is —
(a) fresh if —
(i) it was not adduced at the trial of the offence; and
(ii) it could not, even with the exercise of reasonable diligence, have been adduced at the trial; and
(b) compelling if —
(i) it is reliable;
(ii) it is substantial; and
(iii) either —
(A)it is highly probative in the context of the issues in dispute at the trial of the offence; or
(B)it would have eliminated or substantially weakened the prosecution case if it had been presented at trial.
Once this Court has considered the evidence said to be fresh and compelling, s 326D(1) requires the Court to allow the appeal against conviction if satisfied that there has been a ‘substantial miscarriage of justice’. If not so satisfied, the Court must dismiss the appeal.
The approach to be adopted in a case such as this was set out in Roberts,[8] in which the Court identified a number of relevant principles, drawn from the language of the statute, and from Van Beelen[9] (where the High Court had considered broadly similar South Australian legislation):[10]
[8]Roberts v The Queen (2020) 60 VR 431 (Osborn and T Forrest JJA, and Taylor AJA) (‘Roberts’).
[9]Van Beelen v The Queen (2017) 262 CLR 565 (‘Van Beelen’).
[10]Roberts, 440–3 [40]–[51] (citations omitted).
First, the section manifests an intention that the finality of the criminal process yield in the face of fresh and compelling evidence which, taken with the evidence at trial, satisfies an appellate court that there has been a substantial miscarriage of justice.
Second, the right to seek leave to appeal is additional to, and is to be contrasted with, the mechanism of executive referral in the case of a petition for mercy. The leave requirement is intended to prevent successive meritless applications.
Third, the statutory preconditions to the grant of leave may be compared and contrasted with the terms of s 274 of the Criminal Procedure Act 2009 governing the grant of leave to appeal in the ordinary case.
Fourth, the notion of fresh evidence as against new evidence reflects an underlying concept commonly applied by intermediate appellate courts in this country.
…
Fifth, the Court must be satisfied that the fresh evidence has the qualities prescribed by s 326C(3). This follows from the plain terms of the section. It will not be sufficient for the purpose of leave under the Victorian statute to establish that it is reasonably arguable that the evidence has these qualities.
Sixth, the onus is upon the applicant to satisfy the Court that the preconditions to the grant of leave are met. The Court must be positively persuaded that the preconditions to the exercise of its power to grant leave have been satisfied.
Seventh, the words ‘reliable’, ‘substantial’, and ‘highly probative’ are to be given their ordinary meanings.
…
Eighth, when compared with the South Australian statute, the Victorian statute raises as a further alternative to the final component of ‘compelling’ evidence, that which would have eliminated or substantially weakened the prosecution case if it had been presented at trial.
Ninth, jurisdiction under s 326C(1) is further conditioned upon the appellate court’s satisfaction that it is in the interests of justice that the fresh evidence be considered on appeal.
…
Tenth, whilst the judgment required as to the interests of justice is an intermediate one, it may be informed by the potentially broad scope of the notion of substantial miscarriage of justice. The issue if leave is granted is not limited to consideration of evidentiary questions going to the ultimate issue of the applicant’s guilt but may embrace questions of irregularity in an applicant’s trial.
Eleventh, the question whether a proposed ground of appeal is reasonably arguable may demonstrate that it is in the interests of justice that leave be granted. Nonetheless, the concept of the interests of justice is not to be conflated with the ultimate issue of a substantial miscarriage of justice.

The eyewitness accounts at trial

The evidence at trial revealed that, in the evening of Saturday 26 November 2005, around 100 to 200 people attended the warehouse party. A band was to perform at the party. Alemu intended an improvised performance with the band. It appears that the mood at the party was good until around 3.00 am on Sunday, 27 November 2005, when two individuals – there was evidence that suggested that it was Faulkner and the applicant – commenced perpetrating random and unprovoked assaults on other party-goers. The prosecution alleged that Alemu joined in the violence.
As we have indicated, at about 3.00 am there was a fracas on the landing of the stairwell just outside the area where the warehouse party was being held. In the course of the melee, Mr Snowball went through a window and fell 5.4 metres to the ground, sustaining fatal injuries. The prosecution case was that the applicant and Alemu both attacked Mr Snowball on the landing pursuant to an unspoken agreement – alternatively, they aided and abetted each other – intending to cause Mr Snowball really serious injury. In the course of that attack, so the prosecution contended, Mr Snowball was forced backwards through the window. A critical issue at trial was, as we have said, whether the applicant only, or Alemu only, or both – as was the prosecution case – engaged physically with Mr Snowball immediately before his defenestration.
In his final address to the jury, senior counsel for the prosecution put the case against the applicant and Alemu in the following way. He said the prosecution case was that Mr Snowball[11]
was killed in circumstances whereby each of the accused intended by their actions that they or one or other of them would cause Albert Snowball really serious injury. They are words I will come back to from time to time. In a nutshell what the Crown says is this: that one or other or both of the accused dealt blows and/or had other contact with the deceased that caused him to go through the window and that was either a punch that forced him through the window, a push that forced him through the window or as he was backing away he fell through the window. The Crown does not say that at the time either of the accused intended for him to go through the window. What we say is that was a consequence of what they did that he ended up going through the window.
[11]Emphasis added.
Witnesses gave two different versions of what occurred. Having read the relevant trial transcript, we respectfully adopt the summary of the relevant evidence contained in the joint judgment of French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ:[12]
[12]Baker (HC), 638–41 [18]–[33] (emphasis added).
18The [applicant], [Alemu] and Morgan are all of African origin. [Mr Snowball] was Caucasian. A number of witnesses described the [applicant] by reference to his wide, or big, eyes, muscly body, and headband described as a ‘do-rag’. Several said he was bare chested at the time of the fight on the landing. Morgan is tall. His hair was styled in ‘corn rows’. Faulkner does not appear to be of African origin. He was described as being of Arabic or Lebanese appearance.
…
20The [applicant], Faulkner and, on the Crown case, [Alemu] exhibited a high degree of aggression over several minutes inside the room in which the party was held. Party-goers, including women, were punched and struck with bottles. The [applicant], Faulkner and [Alemu] then left the party through a doorway which opened on to a landing on the stairwell.
21On the first version of events, given by Asher Doig, Peter Arcaro, Earl Stuart and Patricia Brady, it was open to find that the [applicant] was the principal assailant. On the second version, given by Nassir Asfer, Eric Masonga and, to some extent, Morgan, it was open to find that [Alemu] was the sole assailant.
22Doig was on the landing. He saw five or six black men come out on to it from the party. They were behaving ‘very aggressively’. They started pushing [Mr Snowball]. At least two instigated the assault on him. The [applicant] was the main instigator. The other assailant was tall and had corn rows. At one point, [Mr Snowball] was pushed against a railing and the [applicant] ran up and kneed him in the chest or ribs. The group then walked down to the lower landing. As they did, [Mr Snowball] said something like ‘you bastards’. The [applicant] ran back up the stairs and began punching [Mr Snowball] and behaving ‘in a very psychotic manner’. Another black man was also punching [Mr Snowball]. This was not the man whose hair was styled in corn rows. The [applicant] picked up a chair to hit [Mr Snowball], but Doig and another man each took hold of the chair’s legs and pulled it down. The fight was ‘fairly brutal’; like a form of kick boxing. Towards the end, the [applicant] threw [Mr Snowball] against the wall and ‘king-hit’ him. He then went to hit him again, but the blow missed. A further punch connected. After this, either as the result of a punch or a push, Doig saw [Mr Snowball] ‘literally flying through the window’.
23Arcaro was also on the landing. He saw a group of three or four men walking down the stairs, a few of them were dark skinned. The [applicant] looked at [Mr Snowball] and ran back up the stairs to fight with him. It was a one-on-one fight. The [applicant] was punching and pushing [Mr Snowball], who was not really fighting back. A few people, including Doig, tried to restrain the [applicant]. The [applicant] was ‘incredibly aggressive … every movement … was kind of aggressive and wild’. At one stage, the [applicant] picked up a chair but it was taken from him. During the fight, the [applicant] and [Mr Snowball] ‘worked their way’ to the left of the window. The [applicant] either punched or pushed [Mr Snowball] through the window.
24Stuart said that the [applicant] and two other African men had been ushered out on to the landing by a number of people. The [applicant] was ‘very angry, very animated’ and he was ‘passionately … resisting’. The three African men were ushered down the stairs and then they came back up in a ‘fighting manner’. The [applicant] was fighting and one of the others was trying to stop the fight. [Mr Snowball] was struck by more than one person and he was ‘bumped back’ by ‘the velocity of the activity’. The [applicant] was involved in a ‘quite severe fight’ and his actions were ‘scary’. There had been ‘a frenzy of blows … with hands and feet’ but, according to Stuart, [Mr Snowball] was not the target of the attack. [Mr Snowball] went through the window as the result of being pushed back ‘by the force of what was occurring’.
25Stuart’s evidence departed from an earlier statement that he had made to the police and the Crown Prosecutor was given leave to put leading questions to him. Stuart then confirmed that the [applicant] was yelling in an aggressive and threatening manner and that his eyes were fixed on [Mr Snowball] when he came on to the landing. He was kicking him. The [applicant] carried out a sustained attack on [Mr Snowball]. Another African man was also punching [Mr Snowball], but not at the same rate as the [applicant]. The ferocity of the attack caused the deceased to be ‘kicked or pushed’ through the window. Under cross-examination by the [applicant]’s counsel, Stuart said that the white male being attacked by the [applicant] was not the person who went out the window. This was a direct contradiction of the evidence that Stuart had given in response to the Crown Prosecutor’s leading questions.
26Brady was on the landing when the door opened and a group of mostly black persons came out. They were fighting: ‘just a huge ball of fight literally coming out and moving down the stairs.’ One of them came charging back up the stairs. He was looking at someone behind Brady. He ‘whacked’ this person. Brady’s description of the aggressor was consistent with him being the [applicant]. This man picked up a chair as if to throw it, but someone grabbed it off him. He was throwing lots of punches at the white man. She could not recall if the white man fought back. The fight continued for a minute or two and then she heard the window smash, she turned around and the white man was gone.
27Two witnesses, Benjamin Dudding and John Corrin, appear to have seen the incident on the landing through a frosted glass door. Dudding saw a fight between a dark skinned man and a Caucasian. He said there may have been more than two involved in the fight. Corrin saw two black skinned individuals attacking one person. He could see that punches were being thrown.
28An alternative version of events was given by Asfer and Masonga, who were both on the landing with Morgan. Asfer had travelled to the party with the [applicant], [Alemu], Faulkner and Morgan. He did not see any fighting inside the party. He said that the [applicant] and Faulkner had come outside looking upset and walked downstairs. They said that they had been involved in a fight inside. [Mr Snowball] came from the party on to the landing and asked the [applicant] and Faulkner, ‘Why did you hit me?’ The [applicant] and Faulkner ran back up the stairs, at which time [Alemu] came out on to the landing. Morgan grabbed Faulkner and restrained him and Asfer restrained the [applicant]. [Alemu] began fighting with [Mr Snowball]. The [applicant] was not fighting with anyone. He could not have made contact with anyone in the fight because Asfer had hold of him. At some point, the [applicant] picked up a chair and was holding it over his head but was forced to drop it because Asfer was still holding him. [Alemu] continued to fight with [Mr Snowball]. The two were punching each other. [Alemu] was facing the window and the deceased was facing the stairs. Asfer heard the window break. He did not see it break because he was struggling with the [applicant].
29Asfer was in the car with the [applicant], [Alemu], Faulkner and Morgan after the incident. He said that [Alemu] had challenged Faulkner, saying ‘look what you made me do’.
30Masonga saw the [applicant], [Alemu] and Faulkner come out of the party and go down the stairs to the middle landing. After a pause, the [applicant] and [Alemu] came back up the stairs. The [applicant] approached a white male on the landing near the railing and a fight broke out between them. [Alemu] approached [Mr Snowball] and they started fighting. The [applicant] did not fight with [Mr Snowball].
31In evidence in chief, Masonga said that he had not seen anyone go through the window. In cross-examination, he said that [Mr Snowball] had lost his balance in fighting [Alemu], stepped backwards to recover his footing and fallen through the window. Masonga was clear that [Alemu] was the last person to have physical contact with [Mr Snowball] before [Mr Snowball] fell. In his initial account to the police, Masonga said that he had not seen any fighting on the landing. He acknowledged under cross-examination that his first statement contained a number of ‘inventions’. He had signed the false statement because he had not wanted to get involved.
32Morgan was on the landing when the [applicant] and Faulkner came out. He thought they had rushed down the stairs. A person came out of the party and the [applicant] focused on that person. The [applicant] came back up the stairs. Faulkner ran after him. Morgan stopped Faulkner because Faulkner had been behaving aggressively all night. At this point, [Alemu] came on to the landing. There was a fight, but Morgan was focused on Faulkner and did not really know what was going on. He recalled that [Alemu] was hit in the face and that he hit someone back. He did not know who [Alemu] hit or who hit first. He thought that the [applicant] may have been physically involved but he was not sure. He thought he saw the [applicant] pick up a chair and put it down again. The [applicant] was fighting. This went on for less than five minutes. There was yelling and people came out on to the landing and the situation got out of control. He heard the sound of smashing glass and looked up. He heard that someone had fallen out of a window.
33After this, everyone on the landing went down the stairs and Morgan saw the man on the ground. The [applicant], [Alemu], Morgan, Faulkner and Asfer ran off. They all got in a car. The [applicant] was driving. [Alemu] was angry with Faulkner and they exchanged words. Morgan remembered [Alemu] saying ‘see what you’ve done’ and ‘see what you put us through’. In cross-examination, Morgan agreed that in his statement to the police he had said that [Alemu] said, ‘see what you’ve done, look what you’ve made me do’.

Although senior counsel for the applicant accepted in oral argument on 10 May 2022 that the summary of evidence set out immediately above was generally accurate, she submitted that it was ‘not entirely’ so. Hence, counsel submitted that there was no ‘uniformity of evidence’ as to whether the person said to be the applicant ‘was wearing any clothing on the top part of his body’. There was, counsel submitted, ‘a vast mix of evidence on that and a number of people who gave evidence about events on the landing said either they didn’t know, they couldn’t say one way or the other, or he … might have had a singlet, et cetera’.
Further, counsel for the applicant submitted that the summary of evidence suggested that Earl Stuart’s evidence supported the first version of events, whereas, counsel submitted, Stuart provided support for each version. Thus, counsel submitted, he gave evidence that the man with the head covering – alleged to be the applicant – did not have physical contact with Mr Snowball.
Notwithstanding the foregoing submission, however, we note that Stuart described an individual who had: ‘material tied on his head’; ‘material tied around his head’; ‘headgear’; or a ‘headdress’; his evidence including the following:[13]
One guy in particular I noticed him, I believe, fairly well, based on the reasons he provided for me to pay attention to him. … He wearing dark baggy pants, had a belt on, had a tank top – it was a dark tank top with, like, light trimmings around the bands and the neck, it was tucked in. He also had like a piece of material tied on his head; I believe it was black or a dark colour.
[13]Emphasis added.
Significantly, after Stuart had commenced to give evidence, the trial judge ruled that the prosecutor could ask Stuart ‘leading questions as to the circumstances in which the deceased went through the window’, describing the witness as ‘an unusual person’ and the circumstances of the case also to be ‘unusual’. Stuart then gave evidence that ‘the man with the headdress on’ came onto the landing, ‘yelling in an aggressive and threatening manner’. The man ‘with the material on his head’ was ‘also kicking a male person who was standing on the stairway landing’. His eyes were ‘wide and wild’, and ‘were fixed on the person he was attacking’. There was then the following passage of evidence:
[PROSECUTOR] Did you notice that the ferocity of the attack on a male person caused him to be kicked or pushed through the window?---Yes.
The person who went through the window, did you notice that person fending off blows and attempting to get away from the window area?---Yes.
Did you notice another heavier-set African person who was with the man who had the material on his head?---Yes.
Did you notice that although he was trying to pull the man with the material on his head away, he then got into punching as well?---Yes.
The same man on the landing, being the person who went out the window?---Yes.

Alemu’s record of interview

On 27 November 2005, Homicide Squad detectives conducted a recorded interview with Alemu, then aged 17 years, in the presence of his father. The interview commenced at 7.52 pm – some 18 hours after Alemu last engaged with Mr Snowball – and was concluded at 8.42 pm.
At trial, counsel for the applicant submitted that the jury should be permitted to take into account Alemu’s out-of-court statements in considering whether the prosecution had established Baker’s guilt. In light of Bannon,[14] however, the trial judge ruled that the statements were not admissible in the applicant’s trial under exceptions to the hearsay rule. Since, in circumstances we will later discuss, Alemu’s admissions in the record of interview would with the applicant’s consent have been admissible in his case had the trial been conducted today,[15] it is necessary to set out essential aspects of the interview. Initially, Alemu said:[16]
There was an incident that happened at this place. I don’t know the name of it. And it was an accident. … There was a dispute with my – one of my friends against some people there which we never met before. And then they sort of went out to the stairs – the stairway and al–, I was just tryin’ to break it up ‘cos that was my night that I performed there. So I didn’t want a bad name for my first career name. So, I was breaking I was breakin’ bas – , basically, breakin’ the fights that they were fightin’. I said, ‘I’m performin’, what are youse doin’, boys?’ In the end, they sort of went outside to the stairs and were pushing my mates down the stairs and this guy came out, just through the door, started yelling at my friend. And my friend just went to hit him. And I – like, I – I – I was pushing – I broke it up and said, ‘Keep walkin’, mate,’ to my friend. And the other guy from the side hit me here. I go, ‘What are you doin’?’ an’ I pushed him away. I turned away and ke–, went down the stairs. And then, when I got downstairs, the guy was outside on the pavement. And was shocked, so [indistinct] disappear.
[14]Bannon, 22 (Dawson, Toohey and Gummow JJ).
[15]See Evidence Act 2008, s 83(2).
[16]Emphasis added to this and passages following.
The interview later continued:
Q 180 Okay. Did your friend that was with you walking down punch the other white guy near the landing?
A       No. Th–, the – they couldn’t ‘cos I was in the middle.
Q 181 You were in the middle between the white guy – – – ?
A       Mm. Yeah.
Q 182 And your friend?
A       Yep.
Q 183 And you’ve pushed him downstairs?
A       My friend.
Q 184 Yep.
A Keep walkin’, pushed him down the stairs. He – and then he – he – he was swearing at him but he kept walkin’. And as I was walkin’ down, the guy hit me from the back.
Q 185 The guy who was following you?
A       Yeah.
Q 186 How – what fist did he use to punch you?
A. I don’t know ‘cos – but, that’s what I mean. Like, I was – I was pushing my friend. That’s what I mean, so by the time I turned around, I copped a punch here. I don’t know if it was a left or a right.
…
Q 190And where were you? Were you at the top of the landing or halfway down the stairs?
A       On the top.
…
A 198And the guy was standing here. And my friend was here. I was in the middle. You know, so I – I – I’m – I’m – I’m tryin’ sort them 2 to stop fighting. Pushing my friend down the stairs, the guy from the side hits me.
…
A 199Then I turn around and I push him. I go, ‘Piss off, mate,’ and kept walkin’. And then when I went downstairs, the guy is on the – on the pavement.
Q 200 Did you see him go out the window?
A       No.
…
A 203 I pushed him and I turned and walked out.
Q 204 Did you hear anything?
ANo. W–, when I went downstairs, when I seen the guy, I’m like, ‘Oh my God.’ I – I took off. I was – I was – I was shocked.
…
Q 209 And none of your other friends were involved?
AThey’re li–, when we went downstairs, like, we were lookin’ at this guy and – and then all my friends came down. You know what I mean? I see ‘em, I go, ‘Let’s get out of here. I don’t know what – let’s get out of here, done somethin’ bad.’ We t–, we left.
Q 210 You said, ‘Let’s get out of here, we’ve done something bad?’
A       Yeah.
Q 211 Why do you say you’ve done something bad?
A ‘Cos, like, this guy fell from the stairs – the window. I–, like I – I thought, like, well, I dunno if it was me still but that was the guy that I pushed, so he was – he was facin’ on the ground and looked like unconscious. That was not – like, I was – I can’t explain it.
Q 212 But you said you’ve done somethin’ bad, but if you’ve only pushed him when he was punching you, do you think that’s bad?
AYeah, I – that’s what I mean, like, either I did it or someone. But I know it was the guy that I pushed, ‘cos I seen his face. Because they were – my friends, they were to still fight. I seen his face. I know what he looked like and - - -.
…
Q 274Why didn’t you [think to hang around and tell police what had happened]?
A       ‘Cos it was somethin’ terrible I did.
Q 275 Okay. We–, once again, I – I’m just a bit confused by this. You tell me you’ve done something terrible but then you say all you did was push a guy away who punched you.
AWell, I’m assuming that I did something terrible because at – at – as – I was the only person to have any contact with him at last, from – from what I’ve seen, so I’m only assuming that this guy is badly injured from me pushing him. And from what you – the information I’ve been told by you.
Alemu also told police that when he pushed him, Mr Snowball was ‘2 metres. Maybe a metre and a half’ from the window. Alemu also said that when he pushed Mr Snowball he had ‘seen the window but [he] didn’t think he would go through it’.
In summary, Alemu told police that Mr Snowball was one and a half to two metres from the window when he pushed him. Alemu said that although he did not see Mr Snowball go out the window, he was the last person ‘to have any contact with him’ from what he saw; and, when Alemu got downstairs, Mr Snowball was unconscious face down on the ground. He said that when he saw that Mr Snowball had fallen from the window, he did not know if he was the cause of the fall, but thought ‘that was the guy that [he] pushed’. Alemu said that he ‘only assum[ed]’ that Mr Snowball had been ‘badly injured’ as a result his ‘pushing him’.

The ‘fresh and compelling’ evidence

Apart from Alemu’s admissions in his roughly contemporaneous record of interview with detectives, the purportedly fresh and compelling evidence that the applicant relied on fell into three categories: first, statements Alemu made to friends, Stanley David Dryden, and his son, Stanley Frankie Dryden, relatively soon after the relevant events; secondly, statements made in the course of media interviews on The Law Report, The Project and 60 Minutes; and, thirdly, an affidavit affirmed by Alemu on 12 July 2021.
It is necessary to summarise these statements.

Evidence of Alemu’s statements to the Drydens

Alemu met Stanley Frankie Dryden (‘Stan Dryden Jnr’) in about 1996, and has known his father, Stanley David Dryden (‘Stan Dryden Snr’), for more than 20 years.
On 22 June 2021, both Drydens attended the offices of the applicant’s solicitor. They each made statements, which were acknowledged to be true and correct and signed as such on 7 July 2021.
Stan Dryden Jnr stated that he had met the applicant in ‘about 1996’, when they were ‘about 12 years old’,[17] and they have been friends since. He met Alemu at primary school when he ‘was probably about 9 or 10 years old’. They were ‘very close’. At a party at Alemu’s mother’s house after Alemu was released on bail prior to his trial in 2008, they had a conversation, which he described as follows:[18]
[Alemu] said that he was up on stage performing, Ali Faulkner who was using drugs at the time had been starting trouble with people. He tried to pick up a girl right in front of her boyfriend. The guy blew up at Ali, then all of the sudden there was a big commotion. [Alemu] saw Ali get into a fight and left the stage to break up the fight. That is when Albert Snowball punched [Alemu], [Alemu] said he turned around and pushed Albert and that’s when he went out the window.
I asked how [the applicant] got involved and [Alemu] told me he didn’t know because [the applicant] wasn’t even near them when it happened. [Alemu] said [the applicant] was down on the next level getting held back by other people. I think [Alemu] and [the applicant] might have known the people holding [the applicant] back on the landing below where Albert went through the window. [Alemu] said he didn’t mean to push Albert Snowball through the window, that it was an accident.
[17]Stan Dryden Jnr was born on 26 November 1985, and the applicant was born on 10 July 1987.
[18]Emphasis added.
Stan Dryden Jnr said that he had other conversations with Alemu, and ‘his version of what happened has never changed’.
Stan Dryden Snr stated that he had met the applicant and Alemu ‘when they were aged between 10 and 12 years old’, and was ‘like an older brother or father figure’ to them. His son, the applicant and Alemu ‘were very close’. After Alemu was released on bail, Stan Dryden Snr said, he had a meeting with Alemu and Alemu’s brother at an Ethiopian restaurant in Footscray. In his statement, he described the meeting as follows:[19]
[19]Emphasis added.
I asked [Alemu] what happened on the night of the incident. [Alemu] said he was at a club with [the applicant] and another guy in Brunswick. I can’t remember the other guy’s name but I think it was Ali. I had met him and I think he was a Lebanese boy or similar. This guy used to hang out with [Alemu], [the applicant] and Stan [Dryden Jnr]. I remember this guy. He was a different category to [Alemu] and [the applicant] meaning he was bit of a ‘smarty’. I remember this guy was always a bit of a troubled boy, into drugs and drinking and stuff like that. [Alemu] said the guy had started arguments with others earlier in the night. …
[Alemu] told me that the guy was drunk and he was the one who started the argument or altercation. [Alemu] specifically said, ‘If we didn’t bring that idiot along none of this would have happened’.
[Alemu] told me he was there performing and not there to fight. [Alemu] said because all this stuff happened with this other guy, they were up on this ledge and [Alemu] got pushed by the person I now know to be Albert Snowball. [Alemu] told me he pushed Snowball back and he accidentally went out the window.
[Alemu] said he looked out the window and saw Snowball laying on the ground with blood around him. He said he went down the stairs and [the applicant] and [Alemu] jumped into a car and they left.
I said to [Alemu], ‘Why did you leave then? Why didn’t you stay there and explain it to the police when they got there? It was an accident’.
[Alemu] said ‘Because we just freaked and we left’. I remember [Alemu] said he looked at Snowball and he had some blood coming from his head or somewhere and that’s why it freaked him out and then they just took off.
I recall [Alemu] did mention that [the applicant] wasn’t there near that area so he didn’t really explain to me exactly where [the applicant] was but I’ve heard since through other things, watching 60 Minutes that he was on the level downstairs. [Alemu] did not tell me where or how he and [the applicant] both got to the car and left, just that they left.
[Alemu] told me that [the applicant] had nothing to do with it …

The media interviews

Alemu participated in three media interviews:
(a)first, with presenter Damien Carrick during The Law Report radio program on ABC radio program on 11 December 2018;
(b)secondly, with presenter Waleed Aly during The Project television program on Network 10 on 11 February 2019; and
(c)thirdly, with reporter Allison Langdon during the 60 Minutes television program on Channel 9 on 22 October 2019.
During The Law Report program, Alemu stated:
Ali was in front of me ‘cause I was pushing him out, to go outside to stop this fight from getting any worse. Once we got out onto the landing, two, maybe three steps down, Mr Snowball came out, he started cursing over my shoulders to Ali. Then I turned around and I told the dude, ‘Look, we’re leaving, just relax’. I was standing between them, arms out so there was no further fight happening. As I did that, the guy hit me – the guy that’s passed away, Snowball. [I said], ‘Mate, why did you do that?’. We got into a scuffle. We were possibly, like, maybe a metre or a metre and a half away from the window at the time. And then I pushed him away. I turned around and I walked out down the steps, the two flights of steps. At this whole time while this was happening [the applicant] was not near me or any of the other guys that was [sic] at the party.
Alemu also gave the following answers to interviewer, Damien Carrick’s, questions:
[DC]    So you pushed him away, walked down the stairs. What happened next?
[A]     He was, like, right in front of the door.
[DC]    … And you saw Albert Snowball lying unconscious on the footpath?
[A]     Yep.
[DC]    Your belief is that you were the last person to touch him?
[A]     Correct.
[DC]You pushed him away but you didn’t see him go through the window. Is that what you’re saying?
[A]     That’s what I’m saying, yes.
In the course of The Project program, Alemu said:
I admitted to it, like, I know that it was me. I told that from the beginning.
He told Waleed Aly:
As I turned around to usher Ali to leave, Snowball hit me from the back. And then I pushed him away and then I turned around and went down the stairs. Once we were down the stairs, that’s when I seen [sic] him on the pavement.
Alemu also said that the applicant
was nowhere near that happened.
During the 60 Minutes program, Alemu said he ‘felt responsible’ for Mr Snowball’s death. At one point he described the critical events as follows:
So we got into a scuffle. He threw a punch, I threw a punch, none of them connected. So I ducked in and I grabbed him and I just pushed him away, [and] turned around and just went down the stairs.
At another point, when asked by Allison Langdon, ‘Whose actions caused the death of Albert Snowball?’, Alemu said:
I was the last person that was fighting with him, but how he went out the window or if it was my push that caused him [sic] through the window I’m not sure. I don’t know how he fell out the window.
He later added:
It was an accident.

Alemu’s affidavit

On 31 May 2021, the applicant’s then solicitor, Bill Doogue, received an email from Alemu’s solicitor, Andrew Papadimitropoulos, who had been asked by Alemu to draft an affidavit for a potential appeal. Mr Doogue forwarded several documents to Mr Papadimitropoulos, including Alemu’s record of interview of 27 November 2005, and a signed statement made to another solicitor, Avi Furstenberg, dated 3 October 2012.
The statement made to Mr Furstenberg in October 2012 included the following:[20]
On or about 27 November 2005, I was charged with murder. I was tried in the Supreme Court of Victoria together with my co-accused in or about March 2008. In or about May 2008 I was acquitted of all charges by a jury. My co-accused Khalid Baker was convicted of the charge of murder.
When first arrested, I participated in a Record of Interview and stated certain matters. After being charged, I followed legal advice in relation to my conduct prior to and at trial.
I now wish to make a further statement to clarify what happened on the night of 26 November 2005. I only seek to address matters immediately preceding the death of the deceased.
Following an altercation in the main warehouse area upstairs, I left the main warehouse area together with Ali Faulkner and Khalid Baker. Immediately upon exiting the warehouse, there is a landing at the top of the stairs. Khalid was the first one to exit, followed by Ali and then me. We started walking down towards the stairs, Khalid was in front, Ali in the middle and I was last in what was effectively a line. At that stage I felt someone punch me from behind and I saw that it was the deceased. This occurred around the landing area. Ali and Khalid Baker had been in front of me and had started walking down the stairs. I pushed the deceased on the landing to get him away from me after he punched me and then started moving down the stairs. At no stage did I see Ali or Khalid pass me when I was going down the stairs nor did I see them after they started walking down the stairs before I had been punched. The next time I saw Khalid was when I was downstairs and saw the deceased on the ground.
Given that Khalid was first in line, and I did not see him come back up the stairs as I was going down and the next time I saw him was outside, I could only assume that he did not have any contact with the deceased in the time immediately prior to the deceased falling out of the window.
I have made this statement because I do not believe that there was any direct action of Khalid Baker that caused the deceased to fall out of the window.
[20]Emphasis added.

Alemu affirmed an affidavit before Mr Papadimitropoulos on 12 July 2021, which was forwarded to Mr Doogue a few days later, on 15 July 2021. The affidavit is very brief and somewhat lacking in particulars. It certainly does not contain anything approaching the detail found in the statement that he made in 2012. Omitting formal parts, it is as follows:
1.On the 26 November 2005 I was involved in an incident where as a result I was charged with murder.
2.I can categorically state that at the time of the incident Khalid Baker was not in the immediate vicinity or area.
3.Khalid Baker was not involved in the incident, nor did he participate either directly or indirectly. He was simply not present in the immediate area at the time of the incident between myself and Albert Snowball.
4.I am making this statement as I genuinely believe an injustice occurred in Khalid Baker being found guilty of murder.
Thus, Alemu stated that there was an ‘incident’ between him and Mr Snowball, the nature and substance of which is left undescribed. Alemu stated further that the applicant was neither involved in, nor participated in, the ‘incident’, and was not in the ‘immediate vicinity or area’ at the time of the ‘incident’. He does not elaborate on what is meant by ‘immediate vicinity or area’.

Alemu’s evidence in this Court

Alemu also gave evidence under compulsion in this Court on 23 August 2022 in the following circumstances.
As we have indicated, the principal source of fresh evidence initially relied upon by the applicant was Alemu’s record of interview,[21] which, although inadmissible in the applicant’s case when the trial was conducted, would by reason of the enactment of the Evidence Act 2008 – in particular, s 83(2) – have been admissible (with the applicant’s consent) had the trial been conducted today. Apart from Alemu’s admissions in the record of interview, the applicant also sought to rely on statements Alemu made to the Drydens;[22] statements made by Alemu in the course of media interviews;[23] and an affidavit affirmed by Alemu on 12 July 2021.[24]
[21]See [25] et seq.
[22]See [31] et seq.
[23]See [36] et seq.
[24]See [45] et seq.
On the first day the matter was fixed for hearing in this Court, 10 May 2022, senior counsel then appearing for the applicant made oral submissions in support of the application for leave to appeal. In the course of those submissions, the Court drew counsel’s attention to perceived deficiencies in the ‘fresh evidence’; and in particular, whether the evidence could be characterised as ‘compelling’ in the absence of testimony from Alemu. Given that initial inquiries then made by the applicant’s legal advisors revealed that Alemu was overseas, the Court adjourned the hearing to 13 May 2022, so that the applicant’s legal practitioners could make further enquiries concerning Alemu’s availability.
On 13 May 2022, senior counsel for the applicant sought an adjournment to permit Alemu to return from overseas and give oral evidence. As a result, the Court adjourned the part-heard application for leave to appeal until 1 August 2022.
A few days before the hearing of the application was to resume in this Court the applicant dispensed with the services of his former solicitor, and both senior and junior counsel. He then engaged a new solicitor, who briefed fresh senior counsel.
Thereafter, on 29 July 2022, the applicant’s new lawyers made an application to adjourn the hearing fixed for 1 August 2022. That application was refused.
The part-heard application for leave to appeal thus once more returned to the Court on 1 August 2022. Alemu had not voluntarily attended to give evidence. As a result, counsel for the applicant sought an order that Alemu attend and be examined before the Court. Counsel invoked s 318 of the CPA, and, in the alternative, the Court’s inherent powers.
Having heard argument, the Court was satisfied that it possessed inherent power to order Alemu’s attendance for examination before the Court. Hence, on 1 August 2022 the Court made an order that ‘Binyam Alemu attend and be examined before the Court of Appeal … at 10.15 am on Tuesday, 23 August 2022’.[25]
[25]See Baker v The Queen (No 2) [2022] VSCA 171.
Upon the resumption of the hearing in this Court on 23 August 2022, Alemu was represented by counsel, who informed the Court that he had been briefed on 12 August 2022. Counsel sought an adjournment in the ‘interests of procedural fairness’, with a view to possibly making submissions directed to having the Court vacate the order made on 1 August 2022. For reasons it is unnecessary to discuss, the Court refused an adjournment.
When then called to give evidence by the applicant’s counsel, placed in the witness box and affirmed, Alemu objected to giving evidence on the basis that, notwithstanding his acquittals of murder (and alternative offences), his evidence might tend to prove that he had committed an offence under an Australian law, his contention being that prosecuting authorities might invoke the ‘double jeopardy’ provisions of Chapter 7A of the CPA. The Court determined that there were reasonable grounds for Alemu’s objection, but, pursuant to s 128(4) of the Evidence Act 2008, was satisfied that it was in the interests of justice that he be required to give evidence. As a consequence, the Court granted Alemu a certificate under s 128(5), and explained its effect to him.
Alemu was then examined by the applicant’s counsel and was cross-examined by senior counsel for the respondent. Among other things, his evidence included the following.
In November 2005, Alemu said, the applicant was living with him. Alemu heard about the warehouse party in Brunswick when his cousin, Kibram, a musician in a band called ‘Africs’ (or similar), called him and told him about it. He and several others – ‘Lado’ [Morgan], ‘Nassir’ [Asfer], ‘Ali’ [Faulkner] and the applicant – went to the party together. The applicant, who had not been drinking alcohol, drove Alemu’s burgundy Ford. They set off from the ‘Axum’ restaurant in Footscray, where they had been celebrating Lado’s and Nassir’s graduation. Alemu had drunk half a bottle of Sambuca (a liqueur) and half a bottle of cognac – later in his evidence he agreed that he had also consumed three or four stubbies of beer – and ‘might’ve been maybe slightly tipsy’.
When asked what people were wearing, Alemu said he was wearing a black peaked cap. The applicant had nothing on his head. Alemu did not remember seeing him with his shirt off. Nobody, Alemu said, was wearing a ‘do-rag’. He was ‘pretty sure’ that Ali was wearing a white hat. Ali – ‘he’s Lebanese, I think’ – had his hair ‘sort of shaved’ on one side and ‘he had long hair’. Alemu also said he was ‘not sure’, but he thought that either Lado or Nassir had their hair in ‘cornrows’.
After arriving at the warehouse party, Alemu said, Ali was ‘pretty drunk’ and ‘couldn’t control himself’. He was ‘getting into arguments with people’. Alemu said: ‘I’d catch him arguing with people and I was telling him to just stop arguing bro, just chill, we’re here to have a party’.
Alemu gave evidence that he ‘only did like one or two songs’ with the Africs band, and was on stage ‘for five minutes’. The venue was a ‘warehouse’. There was not much light and it ‘felt packed’. He thought there was a ‘bit more’ than ‘100 to 200 people at the party’. When he had finished singing, he went outside for a cigarette with ‘Khalid’ from the band. Upon returning to the dancefloor, he danced with the applicant, Lado and Nassir, and ‘just a bunch of other people’. He next saw Ali ‘when the fight broke off [scil, out?] in the warehouse’, on the dancefloor. Alemu said that
we were dancing and not long after that, like we noticed some sort of like scuffle in the back of the warehouse and we look, we stood there for a second and looked and we realised um like a head that popped up and I realised it was Ali’s head. So we ran over there. Um or made our way over there ‘cause it was packed and ah we trying to break up the fight. That’s what happened on the inside.
Alemu’s evidence was that Ali was fighting two people. When Alemu got there, he said, he ‘was trying to rip Ali off the other people’. He was grabbing Ali and pushing other people away. Alemu got between Ali and the ‘other two guys’. There was shouting, but Alemu could not understand what was being said because the music was too loud. Alemu said he ‘was just pushing [Ali] to get out and it was pretty tight in there’. Once they left the warehouse they ‘ended up on the landing’ at the top of the stairs. There were ‘eight or something like that’ people on the landing.
We pause to note that, as one exits the ‘warehouse’ doors onto the landing, the doors to a karate studio are directly in front. Immediately to the left is the window through which Mr Snowball fell; and immediately to the right are the stairs which lead to the ground floor. To exit the building from that point, it is necessary to turn 90 degrees and go down a half-flight of stairs to a landing, then turn 180 degrees around the banister situated to one’s left to descend the second half-flight of stairs to a foyer. The foyer ultimately leads to the doors which function as the exit to (and entrance from) Hope Street. The doors to (or from) the street are directly beneath the window through which Mr Snowball fell. (Looked at in reverse, if one enters the building from the ground floor, one enters a foyer with the stairs leading up to the first floor directly in front. To go to the first floor, one walks up half a flight of stairs, with a banister on the right, to a landing, then changes direction to walk up the second flight of stairs to the landing from which entry may be gained to the warehouse where the party was held – on one’s left – or the karate studio – on one’s right.)
Returning to Alemu’s evidence, Alemu, who ‘was pretty drunk by that time’, said that when he came out of the warehouse, he did not see the applicant, Lado or Nassir on the landing. He was yelling at Ali to ‘calm down’, and then he ‘kind of grabbed him by the shoulders and tried to push him down the stairs’. Ali went down three or four stairs in front of him and with his back to him. Alemu’s evidence was that Mr Snowball then came up and started ‘exchanging words over my shoulders at Ali’, so that ‘Ali attempted to come back up the stairs to have a go at fighting at this guy again’. Mr Snowball was at the ‘tip’ of the landing.
And what was the next thing that happened?---Um so they … just kept going and … I’m pushing Ali down to go back down the stairs and as … I come out, Snowball, I’m like ‘Dude, don’t worry, we’re going’. And um as I turned around the second time to tell Ali like, you know, ‘Piss off, go down’, that’s when ah Snowball strike – struck – hit me.
All right. So I just want to break down a couple of aspects of that. You indicated to the Court that you got between Mr Snowball and Ali?---Correct, yep.
Was that side on or how were you physically positioned between the two of them?---Side on.
…
Did you have physical contact with both of them?---At some point in that exchange, yes.
Yes, all right. And you said that you got hit?---Yes.
What position were you facing when you got hit?---I was looking at Ali.
All right. Where did you get hit, what part of your body?---On the side of the face.
Are you able to say whether or not it was a slap or a punch or what?---No, I didn’t see it.
Did you respond to being hit?---Yes.
What did you do?---I’ve turned around and I ah told Snowball like ‘What are you doing?’ [Alemu indicated with clenched fists in front of him.]
…
You didn’t grab him?---No.
Did he respond to you?---At like – in his eyes, he was like – it was like it didn’t register kind of thing. Um so then he threw another punch, I ducked and then I just – I – I grabbed him, not pushed him and I turned around and went down the stairs.
…
How many hands did you use, did you both hands, one hand when you grabbed him?---Um it was two hands.
Two hands?---Yep.
And where on his body did you grab him?---Um by the – like here, in the chest area.
…
You’ve indicated that he hit you?---Yep.
And you turned around?---Correct.
Did you say something to him when you turned around?---Yes.
…
What did you say to him?---Oh ‘What the fuck are you doin’, mate?’.
Did he say something to you?---Nah, like I was saying, it’s like it didn’t register what I was saying.
All right. What was the next thing that happened?---He threw another punch.
Yes. Did that hit?---No.
Did that land, I should say?---It didn’t – it didn’t land on my – anywhere on my body.
Right. What did you do?---Um I got out of the way from that punch and then grabbed him and I pushed him.
…
Did you see where Mr Snowball went after you pushed him?---No. ‘Cause he was like – he was regaining his step but I quickly turned so I didn’t see where he was standing.
Yes. Was it a gentle push or a - - - ?---No, it was like – it was like half – half of my strength, three quarters of my strength. I just wanted to get him out of there, [counsel], and just get outta there. I didn’t want any trouble that night. Didn’t want any trouble with nobody, I just wanted to get outta there.
Alemu’s evidence was that, as he started to walk over to where the fight involving Ali initially started in the warehouse, he ‘lost track’ of where the applicant was. And his evidence included the following:[26]
Do you have any idea where [the applicant] was when you pushed Mr Snowball?---No, sir, I didn’t.
When was the next time you saw [the applicant] again?---I saw [the applicant] um downstairs, on the downstairs when we were assessing Mr Snowball’s condition.
Yes. Did you see Mr Snowball go out the window?---No, sir, I did not see Mr Snowball go out the window.
But by the time you got to the bottom of the stairs, he was there on the street, was he?---Yeah. Soon as we opened the door, it was just like – yeah. It was um – it was surreal.
[26]Emphasis added.
Alemu also said that he did not hear the window ‘smash’. He also said he did not see the applicant come back up the stairs. He repeated that he lost track of the applicant as he approached the fight involving Ali inside the warehouse, and did not see him again until he saw him downstairs, outside the building. Alemu said he did not know whether the applicant preceded him down the stairs or ‘came afterwards’. He did not see the applicant – or anyone else – holding a chair at any stage. He did not see anyone knee Mr Snowball in the chest. And he did not see anyone else ‘have any altercation with Mr Snowball’.
On the way home in the car, Alemu said, he yelled at Ali for starting a fight and said, ‘Look what you made me do’. He explained:
Well so when I said look what you made me do, it was just my assumption that this guy that just came out the window, me and him had a push and a shove. So that’s what I mean, look what you made me do.
When taken to the statement made by Stan Dryden Snr on 7 July 2021,[27] Alemu said that he had read it, and it was ‘complete utter lies’. Alemu denied that he had told Mr Dryden that ‘he pushed Snowball back and he accidentally went out the window’. He also denied that he had told Mr Dryden that ‘he looked out the window and saw Snowball lying on the ground with blood around him’. That was a ‘complete lie’. Alemu also said that he had told Stan Dryden Jnr that he had not seen the applicant on the landing.
[27]See [35] above,
Cross-examined by senior counsel for the respondent, Alemu agreed that on the relevant night he had drunk half a bottle of Hennessy [cognac], half a bottle of Sambuca [liqueur] and three to four full-strength beers, and had described himself in the record of interview as being ‘really drunk’. He agreed that he did not ‘really have that much recollection sitting here today beyond what’s in the record of interview’.
In the course of cross-examination, Alemu gave the following evidence:
As you sit here today, you can recall a second punch, can you, or a second attempted punch by Mr Snowball?---Yes.
Now, you said in your evidence in chief that after you turned around to Mr Snowball, you were facing him for you thought less than a minute?---M’hmm.
Is that right?---Yep.
Does that include the time for Mr Ali to be shouting over your shoulder at Mr Snowball?---No.
So from when you turn around to face Mr Snowball – so I’ll go back a step. When you turn around, has Mr Snowball punched you to the face yet?---No.
So that first punch takes place after you turn around?---No, no, so I was facing Ali when he hit me and then I turned around.
All right. Then after that, he took another swing at you?---Yes.
And then you pushed him, you said grabbed his T-shirt and pushed with both hands?---Yep.
From when you turned around to when you pushed him, how long do you think that was?---Oh again, probably not – no longer than a minute.
After you pushed, did that double-handed push, how long did you continue to face that direction? How long was it until you turned around?---Um it was instant.
So when you say instant?---Pushed – I pushed, um I did see him take a couple of steps back and then I just turned.
All right?---I don’t know how long that would’ve taken.
So you’d say seconds?---Yeah.
So after you pushed him, you didn’t see where he went?---No. I did not see him.
You didn’t see him fall to the ground?---No.
You didn’t see him go out the window?---No, I did not.
You didn’t see other people go up to the window and look out and see him on the ground?---I was gone.
At that point, you said when you came out onto the landing, there was about eight or more people was your evidence?---Yep.
But you didn’t see Lado or Nassir amongst them?---No.
Did you see [the applicant] on the landing?---No, I didn’t.
Did you see [the applicant] on the stairs?---No, I don’t remember seeing him, no.
So you have no idea where [the applicant] was at the moment you pushed Mr Snowball?---Yes.
Did you see anybody fighting with Mr Snowball on the landing?---Not after I pushed him.
Did you see anyone punch Mr Snowball on the landing?---Not after I punched him, no.
…
All right, but just at any time, did you see anybody punch Mr Snowball?---No, I did not, no.
Did you see anyone beating up Mr Snowball?---No, I didn’t.
Did you see anyone kick Mr Snowball?---No, I didn’t.
Did you see anyone push Mr Snowball up against a wall?---No.
Did you see anyone push him up against a railing?---No.
Did you see anybody knee him to the chest?---No.
Alemu gave evidence that he did not tell Stan Dryden Jnr that Mr Snowball punched him and he turned around and pushed Mr Snowball, and that is when he went out the window.[28] Mr Dryden, Alemu asserted, was ‘making things up’.
[28]See [33] above.
The cross-examination concluded with the following passage concerning the media interviews:[29]
You felt pretty bad that you were acquitted and [the applicant had] been convicted?---Correct, yeah.
But it’s not correct that you knew he was in front of you on the stairs, is it?---No.
Because again, you didn’t know - - - ?---I didn’t know where he was.
So when you spoke to the media and said that [the applicant] wasn’t anywhere near the incident, that was again because you felt bad?---Well yeah, ‘cause I didn't see him get involved in the incident between me and Snowball. So I was just affirming that when that altercation had been between me and Snowball.
But you don’t know how Mr Snowball went through the window, do you?---No, I have no idea.
You didn’t see him go through the window after you pushed him?---No.
You can’t say what happened after you left the landing, can you?---No, I cannot.
[29]See [36] et seq.

The applicant’s submissions

In written submissions, counsel for the applicant submitted that the ‘Alemu evidence’ – his admissions: in the record of interview; in statements made to the Drydens; in media interviews: and in the affidavit affirmed on 12 July 2021 – was ‘fresh’ because Alemu did not give evidence; the applicant could not have compelled him to do so; and, his admissions were inadmissible at the time when the applicant’s trial was conducted.

In her oral submissions on 10 May 2022, senior counsel then appearing for the applicant asserted that the applicant’s conviction was a ‘grave miscarriage of justice’. Among other things, she submitted that there is fresh evidence that Mr Alemu told friends of his at the time around charge and trial, ‘I pushed him and he went out the window’, and the applicant ‘had nothing to do with it’. There was then a deal of discussion about the ‘fresh’ evidence and what could be made of it, until, ultimately, senior counsel sought an adjournment with a view to having Alemu give oral evidence.
The next oral submissions going to the merits of the application for leave to appeal were made by the applicant’s new counsel immediately following Alemu’s viva voce evidence in this Court on 23 August 2022. As part of those submissions, counsel for the applicant contended that, as a result of Alemu’s evidence, three questions arose. The first question, counsel submitted, was: to what extent does the version of events that he has now given on affirmation align with the ‘second version’ of events; that is, that Alemu alone was responsible for the act that caused the death of the deceased? The second question was: does the account that Alemu has now given to the Court ‘unambiguously’ exculpate the applicant? And the third question was: has Alemu been ‘largely consistent in his account’?
Counsel submitted that each of the posed questions should be answered positively. Among other things, she submitted that Alemu’s evidence is ‘compelling’ in the sense that it provides ‘a credible and trustworthy basis for fact finding’. Counsel contended that ‘at the very least, on the most favourable account that he’s given today, it gives rise to the arguable proposition that it’s more probable that it was Mr Alemu’s acts that resulted in the deceased falling out the window’. Given that he did not see the applicant come back up the stairs, Alemu’s evidence ‘forecloses on an inference being drawn that the applicant had any physical contact with the deceased after he’d been pushed by Alemu’.
The applicant’s counsel accepted that Alemu’s state of intoxication bore on his credibility and reliability, but observed that in cases of ‘affray’ it is ‘quite rare to have witnesses who are completely sober’. She submitted, however, that Alemu’s record of interview is ‘largely consistent’ with the account he gave in evidence. The fact that Alemu did not see certain things – such as the applicant holding a chair over his head – does not necessarily mean that he is a liar. As to whether Alemu’s evidence was ‘compelling’, the thrust of counsel’s submissions may be gleaned from the following passages of argument:
We say that if a jury were to hear from Mr Alemu about the nature of the incident, the grab and the push incident between him and the deceased, if they were to hear from Mr Alemu that while there were people on the landing at the time of that incident, the applicant was not one of them_[,_] [t]hat’s an important aspect of his evidence. If the jury were to hear that subsequent to the incident between himself and the deceased, he did not see the applicant coming back towards the landing, that the combination of those three factual assertions that Mr Alemu has made … would raise a reasonable doubt as to whether or not they could be satisfied that it was the applicant who was responsible for the mechanism that caused death.
And:
In other words, if it’s accepted that [Alemu] doesn’t see [the applicant] when at the time of the incident between him and the deceased on the landing, … and if it's accepted that he didn’t see [the applicant] coming back up the stairs post the incident between him and the deceased, if those two fundamental facts are accepted which is the state of his evidence, then it is a rational and reasonable inference to draw from that, that [the applicant] was not anywhere near the landing at the time of a final incident between the deceased and Mr Alemu.

The respondent’s submissions

Whilst conceding that the evidence relied upon by the applicant was fresh, the respondent’s counsel submitted that the evidence did not meet the threshold of compelling. Indeed, senior counsel for the respondent opened her oral submissions – which were made not long after Alemu’s viva voce evidence – with the following contentions:
The fundamental concept of the applicant’s written case is the concept that the evidence that they relied upon disclosed that Mr Alemu was the last person to have contact with the deceased. Now, in my respectful submission, that’s not been borne out on the evidence of Mr Alemu today. So even if one accepts unreservedly everything Mr Alemu said to the Court today, in my respectful submission, it does not leap the barrier of being substantial and compelling. There is the evidence of Mr Alemu today really is just that of an additional eyewitness to the incident. He doesn’t see [the applicant and] he has no idea where [the applicant] is.
Counsel submitted that Alemu’s affidavit does not contain any admission that his contact with Mr Snowball was the ‘final’ contact, or that it was his contact with Mr Snowball that caused him to fall through the window. The evidence of such an assertion, counsel submitted, comes from the statement of Stanley Dryden Snr, and possibly from the 60 Minutes interview, although the statement was clearly qualified immediately afterwards, with Alemu telling the interviewer: ‘How he went through the window or if it was my push that caused him through the window [sic.], I’m not sure. I don’t know how he fell out the window’.
Counsel for the respondent acknowledged that the evidence of Alemu’s admissions in his record of interview was inadmissible in support of the applicant’s case when the trial was conducted, as would have been any other out of court admissions made by Alemu prior to the trial. Further, some of the evidence now relied upon by the applicant only came into existence after the trial. The evidence relied upon by the applicant was therefore fresh (albeit that the substance of the evidence to be gleaned from Alemu’s admissions was before the jury through the evidence of Eric Masonga and Nassir Asfer).
The respondent’s counsel submitted, however, that whilst it might be considered to be fresh, the evidence relied upon by the applicant was not compelling because it was not reliable. Further, counsel submitted that the evidence should not, ‘in the interests of justice be considered on appeal’.
Although, as we have said, the respondent’s counsel challenged the reliability of the fresh evidence, in written submissions prepared prior to Alemu giving evidence, they nonetheless accepted that the fresh evidence was substantial, conceding that the evidence of Alemu and the Drydens, tendered to prove that the applicant was not involved in the death of Mr Snowball, satisfied that threshold.
Moreover, the respondent’s counsel conceded in writing that any reliable evidence that the applicant was not the person to have final contact with Mr Snowball before he fell through the window, or was not in the vicinity of the attack on him, would be highly probative in the context of the issues in dispute at the trial of the offence. Counsel argued, however, that the fresh evidence sought to be relied upon does not establish that the jury, acting reasonably, would have acquitted the applicant had the evidence been before them at trial.
In written submissions, the respondent’s counsel submitted that, given the history of Alemu’s assertions, and in particular, the equivocal nature of his post-trial representations that it was his contact with Mr Snowball that caused him to fall through the window, the jury would not be required to accept the fresh evidence. Indeed, counsel submitted, there was a sound basis upon which the jury could accept the versions of Asher Doig and Peter Arcaro over the accounts of Nassir Asfer and Eric Masonga. In those circumstances, it would not be in the interests of justice to grant leave to appeal so as to permit the fresh evidence to be considered on appeal.
Senior counsel concluded her oral argument with the following submission. She said the prosecution case was that there was a ‘fight’:
As I said, the Crown went to the jury this was a fight and there was questions about each party’s involvement in that fight but it was never put by any party that essentially this was an accident. In fact, Mr Alemu’s own counsel said to the jury that they should disregard the record of interview as being assumptions and when one listens to the evidence of Mr Alemu, there was a significant amount of assumption in any suggestion that he had a role in that so-called push or shove in Mr Snowball going through the window.

Discussion

As we have indicated, the respondent conceded that the contents of Alemu’s record of interview constituted ‘fresh’ evidence within the meaning of s 326C(3)(ii) of the CPA, in that, given the state of the law at the time of the trial, the evidence ‘could not, even with the exercise of reasonable diligence, have been adduced at the trial’. The respondent also accepted that the evidence of Alemu’s admissions made to the Drydens and in the media interviews, and the contents of Alemu’s statement of 3 October 2012 and affidavit of 12 July 2021, also constituted fresh evidence. Counsel for the respondent submitted, however, that the evidence was not ‘compelling’.
In assessing whether the evidence is compelling, it is necessary to determine what the various aspects of the fresh evidence amount to.
First, in his record of interview, Alemu said that he pushed Mr Snowball and ‘turned and walked out’. He did not see Mr Snowball ‘go out the window’. The next time Alemu saw him was when he ‘went downstairs’ and the guy he pushed was ‘on the pavement’. Alemu said ‘this guy fell from … the window’. He did not know ‘if it was [him] … but that was the guy [he] pushed’. Alemu said ‘either [he] did it or someone [else]’. He assumed that he ‘did something terrible’ because, from what he saw, he ‘was the only person to have any contact with him at last’. But Alemu was ‘only assuming that this guy [was] badly injured from [him] pushing him’.[30]
[30]See [26] above.
Secondly, Alemu told Damien Carrick during The Law Report radio program that he pushed Mr Snowball away but did not see him ‘go through the window’. Alemu’s ‘belief’ is that he was ‘the last person to touch him’. The applicant ‘was not near [him] or any of the other guys that [were] at the party’.
Thirdly, Alemu told Waleed Aly during The Project television program that he pushed Mr Snowball away and went down the stairs. When he got downstairs he saw Mr Snowball on the pavement. The applicant was ‘nowhere near’ when that happened.
Fourthly, Alemu told Allison Langdon during the 60 Minutes television program that he grabbed Mr Snowball and pushed him away. He was the ‘last person’ fighting with him. How Mr Snowball went out the window, however, and whether it was his push that caused him do so, Alemu could not say: ‘I don’t know how he fell out the window’. Alemu claimed nonetheless that, ‘It was an accident’.
Fifthly, in his statement of 3 October 2012, Alemu said that, as he, Ali and the applicant went down the stairs, the applicant was in front, he was at the back, and Ali was in the middle. After Mr Snowball punched him, Alemu pushed him on the landing ‘to get him away from [him]’. The applicant did not pass him going back up the stairs after they had started going down, and he next saw the applicant outside downstairs when Mr Snowball was on the ground. Alemu stated that: ‘Given that [the applicant] was first in line, and [he] did not see him come back up the stairs as [he] was going down and the next time [he] saw him was outside, [he] could only assume that [the applicant] did not have any contact with the deceased in the time immediately prior to the deceased falling out of the window’.
Sixthly, in his affidavit affirmed on 12 July 2021, Alemu said he was involved in an ‘incident’ with Mr Snowball. The applicant was not involved in the incident, and did not participate either directly or indirectly: ‘He was simply not present in the immediate area at the time of the incident’.
Seventhly, according to Stan Dryden Jnr, Alemu told him that he pushed Mr Snowball and that was when he went out the window. At that stage, the applicant was down on the next level being held back by other people.[31]
[31]See [33] above.
Eighthly, Stan Dryden Snr said that Alemu had told him that he pushed Mr Snowball back and he accidentally went out the window. According to Mr Dryden, Alemu said he looked out the window and saw Mr Snowball on the ground with blood around him.
We pause to note that Alemu told police, Damien Carrick and Allison Langdon that he did not see Mr Snowball go out the window. He told police that he assumed he was responsible for Mr Snowball falling out the window. He told Allison Langdon that he did not know how the deceased went out the window, or whether his push caused it (at the same time claiming it was ‘an accident’). And he told Damien Carrick and Waleed Aly, and indicated in his statement and affidavit, that the applicant was not in the vicinity of Mr Snowball when he fell from the window. Only the Drydens allege that Alemu told them that he saw Mr Snowball go out the window.
With respect to his evidence in this Court, Alemu said that he pushed Mr Snowball and then went down the stairs. He had ‘no idea’ where the applicant was when he pushed the deceased. Moreover, Alemu was emphatic when he said that he ‘did not see Mr Snowball go out the window’ or ‘fall to the ground’. Alemu did not hear the window smash; did not see anyone else fighting Mr Snowball; and did not see anyone else beat, kick, knee or push him. According to Alemu’s evidence, he lost track of the applicant as he approached the fight involving Ali inside the warehouse, and did not see him again until he saw him downstairs, outside the building. Alemu said he did not know whether the applicant preceded him down the stairs or ‘came afterwards’.[32] He denied that he had told Stan Dryden Snr that he pushed Mr Snowball back and he accidentally went out the window. And it was a ‘complete lie’, Alemu said, that he had told Stan Dryden Snr that he had said that he looked out the window and saw Snowball lying on the ground with blood around him. Alemu agreed that he could not say what happened after he left the landing. And he agreed that he had told police that he was ‘really drunk’, having consumed half a bottle of cognac, half a bottle of liqueur and three to four full-strength beers.
[32]In his record of interview, Alemu said that after he pushed Snowball, he and his ‘friend’ (Ali) went downstairs and ‘were lookin’ at this guy and – and then all my friends came down’.
Approaching the matter on the basis that Alemu’s statements relating to his interaction with Mr Snowball – his evidence in this Court included – is fresh evidence ‘relating to an offence’, this Court cannot grant leave to appeal unless satisfied that the evidence is ‘compelling’. Thus, the evidence must be both ‘reliable’ and ‘substantial’, and must be either ‘highly probative’ in the context of the disputed issues in the trial, or would have eliminated or substantially weakened the prosecution case.
In Van Beelen, the High Court considered the second or subsequent appeal provisions in the Criminal Law Consolidation Act 1935 (SA) (‘CLCA’). With respect to s 353A(6)[33] – which, in significant respects, is similar to s 326C(3) of the CPA[34] – the Court observed:[35]
Nothing in the scheme of the CLCA or the extrinsic material provides support for a construction of the words ‘reliable’, ‘substantial’ and ‘highly probative’ in other than their ordinary meaning. Understood in this way, each of the three limbs of sub-s (6)(b) has work to do, although commonly there will be overlap in the satisfaction of each. The criterion of reliability requires the evidence to be credible and provide a trustworthy basis for fact finding. The criterion of substantiality requires that the evidence is of real significance or importance with respect to the matter it is tendered to prove. Plainly enough, evidence may be reliable but it may not be relevantly ‘substantial’. Evidence that meets the criteria of reliability and substantiality will often meet the third criterion of being highly probative in the context of the issues in dispute at the trial, but this will not always be so. The focus of the third criterion is on the conduct of the trial. What is encompassed by the expression ‘the issues in dispute at the trial’ will depend upon the circumstances of the case. Fresh evidence relating to identity is unlikely to meet the third criterion in a case in which the sole issue at the trial was whether the prosecution had excluded that the accused’s act was done in self-defence. On the other hand, fresh evidence disclosing a line of defence that was not apparent at the time of trial may meet the third criterion because it bears on the ultimate issue in dispute, which is proof of guilt.
[33]Section 353A(6) provides:
(6) For the purposes of subsection (1), evidence relating to an offence is —
(a) fresh if —
(i) it was not adduced at the trial of the offence; and
(ii) it could not, even with the exercise of reasonable diligence, have been adduced at the trial; and
(b) compelling if —
(i) it is reliable; and
(ii) it is substantial; and
(iii) it is highly probative in the context of the issues in dispute at the trial of the offence.
[34]The sub-section does not replicate s 326C(3)(b)(iii)(B); that is, the evidence ‘would have eliminated or substantially weakened the prosecution case if it had been presented at trial’.
[35]Van Beelen, 577 [28] (Bell, Gageler, Keane, Nettle and Edelman JJ) (emphasis added; citations omitted).
One of the principal issues in the applicant’s trial – if not the principal issue – was whether an act (or acts) of his caused the death of Mr Snowball; in particular, whether some act of his caused Mr Snowball’s defenestration and associated fall. As we have said,[36] the prosecution case at trial – as put by the prosecutor in his final address to the jury – was ‘that one or other or both of the [applicant and Alemu] dealt blows and/or had other contact with the deceased that caused him to go through the window and that was either a punch that forced him through the window, a push that forced him through the window or as he was backing away he fell through the window’.
[36]See [18] above.
In support of the present application, the applicant contends that the Alemu evidence – his hearsay statements and direct evidence in this Court – is capable of founding an inference that it was Alemu’s push that was the direct cause of Mr Snowball falling from the window – the injuries sustained in the fall from height being the cause of his death – not some act of the applicant’s. Had the Alemu evidence been admitted at the applicant’s trial in admissible form, the applicant argued, the jury would have been confronted with evidence supporting a reasonable hypothesis consistent with his innocence; that is – putting aside issues of complicity – that the act causing death was Alemu’s push, not an act performed by the applicant.
Given that a principal issue in the applicant’s trial was the mechanism by which Mr Snowball went out the window, we consider that a number of facets of the Alemu evidence is ‘probative’ – that is, capable of going in proof (or disproof) – of that issue. Whether the evidence is ‘highly’ probative, however, is an issue that requires closer examination, as do the related issues of whether the evidence is ‘reliable’ and ‘substantial’. Hence, is the Alemu evidence credible and does it provide a trustworthy basis for fact finding? And is it of real significance or importance with respect to the matter it is tendered to prove (that Alemu’s push caused Mr Snowball to go out the window and fall to his death)?

At trial, there was some evidence that might have supported the hypothesis that Alemu was the last person physically engaged with the deceased shortly before he fell from the window. Asfer gave evidence that he was restraining the applicant when Alemu came out onto the landing and started fighting with Mr Snowball. They were punching each other, Alemu facing the window and Mr Snowball the stairs (so that his back must have been to the window). Asfer said he heard the window break, but did not see it break because he was still struggling with the applicant. Masonga’s evidence was even more direct. Despite having said in his evidence-in-chief that he had not seen anyone fall out the window, Masonga gave evidence under cross-examination that Mr Snowball lost his balance fighting Alemu, and fell through the window while trying to recover his footing. According to Masonga, Alemu was the last person to have physical contact with Mr Snowball before he fell.
In our view, it is plain that the jury must have rejected the hypothesis that an act (or acts) of Alemu’s caused Mr Snowball to go through the window. On the evidence at trial, we cannot conceive a situation whereby the jury might have found the applicant guilty of murder on the basis of complicity with Alemu, yet not have been satisfied that Alemu possessed murderous intent when he performed the act which caused Mr Snowball’s death.[37] And it will be remembered that, notwithstanding the record of interview admissible in the case against him – in which Alemu said that he was the last person to have a physical contact with the deceased – the jury acquitted him.
[37]Cf Crimes Act 1958, s 324A. See also Baker (HC), 646–7 [50].
Even if, for the sake of argument, it be assumed that the various facets of the Alemu evidence are reliable and substantial, we consider that, when it is adequately scrutinised, the evidence cannot properly be said to be ‘highly’ – that is, very, greatly or extremely – probative of the principal issue of whether an act or acts of the applicant caused the death of Mr Snowball, and is a long way from being of real significance or importance to that issue. Thus, in his record of interview, Alemu said he did not see the deceased go out the window, and said he only assumed he was responsible for Mr Snowball falling from it. He repeated to Damien Carrick and Allison Langdon that he did not see the deceased go out the window, and, indeed, told Ms Langdon he did not know how the deceased fell out of the window. In his evidence in this Court, Alemu was at pains to make clear that he ‘did not see Mr Snowball go out the window’.
The only facet of the Alemu evidence that suggests that Alemu might have seen Mr Snowball go out the window after he pushed him is contained in the Drydens’ statements. Although we have no doubt that they were well-intentioned – we reject Alemu’s allegation that they told lies – it is plain that the evidence constituted by the Dryden statements is lacking in weight. The Drydens made their statements in July 2021 purporting to recount conversations with Alemu prior to his trial in early 2008, some 13 years earlier. To be able to act on the evidence of the statements – accepting the hearsay representations in them otherwise to be admissible[38] – one would have to accept that they understood correctly what they had been told, and had an accurate recall of it despite the passage of years. Self-evidently, the potential for error is so great, the evidence is worthy of little weight.
[38]See Evidence Act 2008, s 66.
To be clear, we do not regard any facet of the Alemu evidence to be reliable when it comes to the principal issue. In our view, it does not provide a trustworthy basis for fact finding concerning whether the applicant’s act or acts caused the death of Mr Snowball.
In various statements made in a variety of situations, Alemu claimed that he was the last person to have physical contact with Mr Snowball. He pushed him and went down the stairs, and then saw him on the pavement outside. As a result, Alemu claimed, he assumed that he was responsible for the deceased’s fall. Putting to one side the Dryden statements, however, there are only two occasions when Alemu has asserted that the applicant was not in the near vicinity when Mr Snowball went through the window.
First, in his threadbare affidavit of 12 July 2021, Alemu said the applicant was nowhere near the incident involving him and Snowball. This affidavit is, however, so clearly lacking in detail and substance that it need not be given further attention. Secondly, in the statement made on 3 October 2012, Alemu said that as they went down the stairs, the applicant was in front, he was at the back, and Ali was in the middle. After Mr Snowball punched him, Alemu pushed him. The applicant did not pass Alemu going back up the stairs, and he next saw the applicant outside downstairs when Mr Snowball was on the ground. Alemu asserted that, given that he did not see the applicant come back up the stairs as he was going down (and next saw him outside), he assumed that the applicant ‘did not have any contact with the deceased in the time immediately prior to the deceased falling out of the window’.
Critical aspects of the October 2012 statement, however, cannot be reconciled with Alemu’s affirmed evidence in this Court. In particular, Alemu claimed in his evidence that he had lost track of the applicant as he approached the fight involving Ali inside the warehouse – that is, before the brawl on the landing in which Mr Snowball became embroiled – and did not see him again until he saw him downstairs outside the building – that is, after the brawl had ended and Mr Snowball had fatally fallen. Indeed, Alemu gave evidence in this Court that he did not know whether the applicant preceded him down the stairs or ‘came afterwards’, and he agreed that he could not say what happened after he left the landing.
Moreover, it is difficult to accept Alemu’s claim in his evidence in this Court that he had no idea where the applicant was when he pushed Mr Snowball, and that he did not observe the applicant fighting with anyone or holding a chair at any stage. As to that latter aspect, it will be remembered that Asfer gave evidence in the applicant’s trial that Alemu began fighting with Mr Snowball while he, Asfer, had hold of the applicant. Asfer said that, as Alemu fought with the deceased, the applicant then held a chair over his head but was forced to drop it. Morgan, too, said that, at about the time Alemu was involved in a fight, the applicant picked up a chair and put it down again. (Morgan also said that the applicant was fighting, something that Asfer apparently did not see.) Each of the witnesses Doig, Arcaro and Brady also saw a person they believed to be the applicant pick up a chair in the context of a fight.
Finally, we consider that the reliability of various facets of the Alemu evidence must be assessed in light of the circumstances in which he made critical observations, including his state of intoxication. On any view, once the disturbance inside the warehouse spilled out onto the landing, there was a confused (and confusing) brawl involving a number of participants, one of whom was Alemu. His capacity to make calm and rational observations must have been considerably compromised as a result of his participation in the commotion. Furthermore, his capacity for accurate observation – and trustworthy recollection – must also have been markedly compromised by his state of insobriety. Assuming that his evidence that he had drunk half a bottle of cognac, half a bottle of liqueur and three to four full-strength beers is to be capable of belief, it is unsurprising that he would describe himself in the record of interview as being ‘really drunk’. And we note that in his evidence to this Court he agreed that he did not have much recollection beyond what was in the record of interview.
For these reasons, we do not consider any facet of the fresh evidence to be compelling. It is not reliable, substantial or highly probative of the principal disputed issue at trial. Our conclusions, independently reached, concerning the lack of reliability and probative value of Alemu’s record of interview accord with those of the High Court[39] (albeit our task was different). The other Alemu evidence added little.
[39]Baker (HC), 647–8 [52] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ); 654–5 [77]–[82] (Heydon J).
We should add that, given its frailties, we are also unable to see that the evidence could eliminate or substantially weaken the prosecution case.
There is thus no occasion, in the interests of justice, for the fresh evidence to be considered on appeal.

Conclusion

Leave to appeal should be refused.

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[2022] VSCA 196

14 September 2022