Bol Bol v The State of Western Australia

[2021] WASCA 163

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT  :   THE COURT OF APPEAL (WA)

CITATION:   BOL BOL -v- THE STATE OF WESTERN AUSTRALIA [2021] WASCA 163

CORAM:   BUSS P

MAZZA JA

MITCHELL JA

HEARD:   20 AUGUST 2021

DELIVERED          :   10 SEPTEMBER 2021

FILE NO/S:   CACR 158 of 2020

BETWEEN:   AYIEL BOL BOL

Appellant

AND

THE STATE OF WESTERN AUSTRALIA

Respondent

ON APPEAL FROM:

Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA

Coram:   WALLACE DCJ

File Number            :   IND 1639 of 2019

Catchwords:

Criminal law - Appeal against conviction - Appellant convicted after trial of one count of aggravated grievous bodily harm - Whether the absence of new evidence at trial gave rise to a miscarriage of justice

Legislation:

Criminal Code (WA) s 297

Result:

Appeal dismissed

Category:    B

Representation:

Counsel:

Appellant	:	K Burgoyne
Respondent	:	K C Cook

Solicitors:

Appellant	:	Kevin Burgoyne
Respondent	:	Director of Public Prosecutions (WA)

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

Beamish v The Queen [2005] WASCA 62

Gallagher v The Queen (1986) 160 CLR 392

Smith v The State of Western Australia [2014] WASCA 90

JUDGMENT OF THE COURT:

Summary

1. On 18 August 2020, the appellant was convicted of unlawfully doing grievous bodily harm to the complainant.  He was found to have committed that offence in the circumstance of aggravation that he was in a 'family relationship' with the complainant (on the basis that they had previously had an intimate personal relationship with each other).[1]   On 25 September 2020, the appellant was sentenced to 3 years 6 months' immediate imprisonment.  The sentence was backdated to commence on 22 July 2020, and the appellant was made eligible for parole.

   [1] 'Family relationship' has the meaning given to it in Restraining Orders Act 1997 (WA) s 4(1)(f), see Criminal Code (WA) s 221(2), and includes a relationship between two persons who have, or had, an intimate personal relationship with each other.

2. The appellant now appeals against his conviction on the sole ground that a miscarriage of justice arose from the absence of the evidence of a witness, Amos Tutu, at the appellant's trial.  The appellant accepts that the evidence is properly classified as new evidence rather than fresh evidence.[2]

   [2] Two other grounds, which contended that the verdict of guilty was unreasonable and not supported by the evidence, and that Mr Tutu's evidence gave rise to a miscarriage of justice on the basis that it was fresh evidence, were abandoned at the hearing of the appeal, see appeal ts 32, 41 - 42.

3. The appeal must be dismissed.  While Mr Tutu presented in this court as an honest witness, he only gave evidence of events depicted in CCTV footage that was a trial exhibit.  Therefore, his evidence does not significantly add to the evidence which was before the jury.  Mr Tutu's evidence, considered with the evidence led at trial, does not give rise to a reasonable doubt as to the appellant's guilt or show that he should not have been convicted of the offence.  No miscarriage of justice arose from the absence of Mr Tutu's evidence at trial.

The State's case at trial

1. The State's case was that the complainant went out with friends to a sports bar in Northbridge on 20 September 2018.  She was 19 years old at the time.  The appellant was also present at the sports bar.  The appellant and the complainant had previously been in a relationship, however they were separated at the time of the incident.  On that basis, the State contended that the appellant and complainant were in a family relationship.[3]

   [3] Trial ts 27.

2. The complainant and her friends had been verbally sexually harassed throughout the night by a group of young men.  The appellant was not one of the men who was harassing the complainant and her friends.  The verbal harassment continued outside after the complainant and her friends left the bar at about 2 am on 21 September 2018.[4]

   [4] Trial ts 28.

3. Whilst the complainant and her friend, Loana Kemisa, were outside the bar the appellant came up to the complainant.  The appellant grabbed the complainant by the arm and told her to come home with him.  The complainant said 'no', and that she was not interested.  There was a struggle between the complainant and the appellant.  She tried to hit him a few times with her high-heeled shoes which she was holding in her hand.  The appellant released his hold on the complainant and began to walk away.  The complainant told the appellant to 'Go home to your wife and child' as he did so.[5]

   [5] Trial ts 28 - 29.

4. The appellant became angry, turned around and said 'What?  Say that again and I'll break your jaw'.  The complainant told the appellant to 'Go home to your baby mama.'  The appellant took a few steps towards the complainant and punched her in the jaw, causing her to fall to the ground.  The appellant and his friends quickly got into a car and drove off.[6]

   [6] Trial ts 29.

5. As a result of being struck in the face by the appellant, the complainant suffered two fractures to her left mandible which required internal fixation.  Without medical treatment, the injury that the appellant caused to the complainant would have resulted in a permanent injury being suffered by her.  On this basis, the State contended that the injury the appellant caused to the complainant constituted grievous bodily harm.[7]

   [7] Trial ts 30 - 31.

Defence case at trial

1. The appellant did not run a positive defence at trial.  The opening statement of his trial counsel, Mr C J Cole, in effect submitted that discrepancies between the oral evidence of the witnesses and CCTV footage of the area could not be reconciled.  He anticipated that this would lead the jury to find the appellant 'not guilty'.[8]

   [8] Trial ts 32 - 33.

Complainant's evidence at trial

Evidence-in-chief

1. The complainant's evidence was that, on 20 September 2018, she went to a sports bar in Northbridge with two of her friends, Loana Kemisa and 'Aisha' (whose surname does not appear in the evidence).  She saw the appellant in the bar.  The complainant and the appellant had previously dated for a period of about 2 - 3 years but their relationship ended at the start of 2018.  The appellant was standing at a distance staring at the complainant all night.[9]  The complainant, who was drinking shots of vodka in the bar, did not interact with the appellant.[10]

   [9] Trial ts 38 - 39.

   [10] Trial ts 42.

2. During the evening a group of males, who the complainant referred to as the appellant's friends, were harassing the complainant and Ms Kemisa.  These men, one of whom was called 'Amos' and another of whom was called 'Mayen', kept asking the complainant and Ms Kemisa to have sex with them in the bathroom.  At one point in the night, Amos and Mayen followed the complainant and Ms Kemisa into the bathroom and tried to lock them in a toilet cubicle.  After getting out of the toilet, the complainant and Ms Kemisa complained to security guards.  The security guards escorted them from the premises at about 2 am, which was around the time the bar was closing.[11]

   [11] Trial ts 39 - 43.

3. The complainant was outside the bar with other friends, talking.  Aisha ordered an Uber and they started walking away from the bar.  The complainant turned around and saw the appellant, with his friends behind him, walking towards her.  The appellant's friends were not that close to him.  Aisha and Ms Kemisa were behind and to the side of the complainant.[12]

   [12] Trial ts 43 - 46.

4. The appellant came up to the complainant and grabbed her by the left wrist.  The complainant described a discussion between them, to the following effect:[13]

   Appellant:Oh, come home with me now.

   Complainant:     No.  Me and you are not together.  I'm not coming home with you.

   Appellant:Yeah.  Come home with me now.

   Complainant:     No, I'm not going home with you.  Why don't you go home to your wife and child.

   [13] Trial ts 43, 44 - 45.

5. The appellant let go of the complainant's arm and walked away.  An exchange to the following effect then took place:[14]

   Appellant:Oh, what?  Say that again and I'll break your jaw.

   Complainant:     Why don't you go home to your baby mama and kid.

   [14] Trial ts 43, 47.

6. The complainant then saw the appellant coming towards her very aggressively with his fists up and clenched and swinging at her.  She then remembered waking up on the ground with Aisha and Ms Kemisa nearby, who helped her up.  The side of her face was numb and she could hear a 'buzzing noise'.  The complainant saw the appellant and his friends get into a silver car that pulled up in front of them and drive off.[15]

   [15] Trial ts 43, 47 - 49.

7. Shortly afterwards, the Uber arrived and drove the complainant, Ms Kemisa and Aisha to a friend's house.  Later that same morning, the complainant attended hospital, where she had surgery on her jaw.  The complainant came out of hospital on 25 September 2018, and subsequently reported the incident to police after receiving advice from her family to do so.[16]

   [16] Trial ts 49 - 51.

8. Through the complainant, the prosecutor tendered photographs of the complainant's injuries taken at the police station,[17] and five still shots of CCTV footage from outside the sports bar and on which the complainant identified certain persons including the appellant.[18]

CCTV footage

[17] Exhibit 1.

[18] Exhibit 2.

1. In her evidence-in-chief, the complainant was shown, for the first time, the CCTV video footage.  The CCTV camera is pointed down the footpath which runs along the front of the sports bar.  To the top of the frame is a darkened area which is not clearly visible.  The footage begins just after 2 am on 21 September 2018 and runs for about 27 minutes.

2. At the beginning of the footage, the complainant can be seen exiting the bar and talking to a person she identified as Amos, who is leaning against the wall.  She then interacts with the person she identified as Mayen and another man.  Amos walks away across the road to the right of the frame and out of sight at about 1.11 min.  He returns to the area in front of the bar at about 2.21 min, at a point when the complainant is interacting with a group of men further down the footpath.  Amos walks down to where the group are interacting at about 2.47 min.

3. The complainant and Ms Kemisa return to the lit area at about 4.10 min.  They appear to be verbally remonstrating with a group at the darkened end of the footpath.  Followed by Aisha, the complainant and Ms Kemisa walk out of camera view at the bottom of the frame at about 5.18 min.  They can be seen again from about 5.50 min, talking to a person the complainant identified as 'Dombay', the appellant's cousin, and another man from about 6.38 min.

4. At about 10 min, the three young women can be seen walking from the bottom of the frame up to the darkened area at the top of the frame.  At about 12 min the appellant walks alone from the bottom of the frame to the darkened area at the top of the frame.  From about 15 min, 'Dombay' can be seen doing the same thing.  At about 17 min a group of people, which includes the complainant (with distinctive yellow hair) and Dombay (with a distinctive red Puma top), can be seen fighting in the darkened area at the top of the frame. 

5. Three men, including Dombay, get into a dark sedan from about 17.20 min and drive away.  The complainant's evidence was that the appellant was one of these men.[19]

   [19] Trial ts 60 - 61.

6. The complainant can be seen swinging her arms, while holding shoes, at the men as they get into the car.  At this time, Amos is struggling with Ms Kemisa behind the complainant.  The complainant can be seen becoming involved in the altercation between Amos and Ms Kemisa just after swinging her arms at the men getting into the car.  At one point, at about 17.25 min, the complainant does appear to swing her arm towards Amos' head, as Amos is struggling with Ms Kemisa.  However, it does not appear that Amos strikes at the complainant before walking away into the darkened area at the top of the frame.  Amos can be seen throwing punches from about 17.50 - 18.15 min, but the complainant is standing behind him and does not appear to be struck.

7. Ms Kemisa walks from the top of the frame to the bottom of the frame, holding something to her right forehead, at about 23.30 min.  She then walks back up into the darkened area at about 24.30 min.  The three young women walk from the darkened area at the top of the frame to the bottom of the frame and out of sight from about 26.30 min.

Cross-examination

1. In cross-examination, it was put to the complainant that she hit the appellant with her shoes as he got into the car. She said that the image was unclear,[20] and later said in re-examination that she could not recall hitting the appellant as he was getting into the car, as was shown on the CCTV.[21] 

   [20] Trial ts 64 - 65.

   [21] Trial ts 86.

2. It was put to the complainant that the CCTV footage showed that she was so intoxicated that she was unable to walk in a straight line, which she did not accept.[22]  The complainant said that three people, including herself, had shared part of a bottle of vodka, taking four shots each, before going to the sports bar.  The complainant said that she could not recall having a drink at the bar but thought that they might have had one shot.[23]

   [22] Trial ts 65 - 66.

   [23] Trial ts 65 - 67.

3. The complainant accepted that she told police that she had been in a relationship with the appellant for 5 years, as opposed to the 2 - 3 years indicated in her evidence.[24]

   [24] Trial ts 68 - 69.

4. The complainant accepted that, since the night in question, she had discussed the events with Ms Kemisa and Aisha.[25]

   [25] Trial ts 81 - 82.

5. The complainant was asked whether she recalled Amos throwing punches at her and Ms Kemisa.  She said:[26]

   Amos wasn't there. Amos wasn't throwing punches at us.  It was [the appellant].

   [26] Trial ts 71.

6. The complainant denied that she was shown fighting with Amos after the men got into the dark sedan.  She said that Amos was holding Ms Kemisa back from attacking the appellant because Ms Kemisa was so angry at what he had done.  The complainant denied hitting Amos or that Amos punched anyone.[27]

   [27] Trial ts 74, 78 - 79.

7. The complainant maintained that it was the appellant and not Amos who had hit her.[28]  She affirmed this in re-examination, and denied having any kind of fight with Amos at all.[29]

   [28] Trial ts 82 - 84.

   [29] Trial ts 87.

Ms Kemisa's evidence at trial

1. On the night in question, Ms Kemisa went to the sports bar in Northbridge with the complainant, where they met up with Aisha.  The appellant, who Ms Kemisa had known since primary school and who had dated the complainant for about 2 years, was at the bar with his friends.[30]  Ms Kemisa had drunk alcohol (she thought it may have been white wine) before going to the bar, and had drunk more liquor at the bar.  She felt that she was not really intoxicated.[31]

   [30] Trial ts 89 - 90.

   [31] Trial ts 90 - 91.

2. At the end of the night as the bar was closing and they were leaving, one of the appellant's friends, Emmanuel, was aggressively asking if she wanted to have sex.  She said 'No, leave me alone.  You have a girlfriend'.  She went behind a security guard.[32]  She identified Emmanuel as the person in the CCTV footage who the complainant had referred to as 'Mayen'.

   [32] Trial ts 91 - 92.

3. Outside the bar, Ms Kemisa was standing with the complainant and Aisha, chatting.  Ms Kemisa was talking to Amos.  She saw the appellant and complainant standing about a metre away, talking and arguing.  She heard the complainant say 'No, leave me alone', and 'Go home to your baby mama'.[33]

   [33] Trial ts 93 - 94.

4. Ms Kemisa heard the appellant say, 'Do you want me to hit you', and the complainant respond, 'Do it, I dare you to do it'.  The appellant walked about 5 metres away from the complainant, and then came back and punched the complainant to the face.  The complainant fell to the ground.  Ms Kemisa was standing behind the complainant looking to the back of her head as this occurred.  There was no-one apart from the appellant standing in front of the complainant.[34]

   [34] Trial ts 95 - 98.

5. When Ms Kemisa saw the punch, she began shouting aggressively at the appellant, asking him why he would do that.  Amos was trying to hold Ms Kemisa back and calm her down, but she could not calm down.  The appellant walked away, turned a corner and got into a car, which was either red, black or white, and it drove off.[35]

   [35] Trial ts 97 - 98.

6. The complainant and Ms Kemisa went back to a friend's house in Victoria Park, where the complainant's pain worsened.  They were dropped off at the Perth Underground train station and went to Fiona Stanley Hospital in Murdoch later that morning.[36]

   [36] Trial ts 99.

7. Ms Kemisa was shown the CCTV footage for the first time in the witness box.  She said that she did not have a good recollection of the fight shown between Ms Kemisa, the complainant and the group of men.  She said that this happened after the appellant punched the complainant, and was a reaction to that having occurred.[37]

   [37] Trial ts 103 - 105.

8. Ms Kemisa maintained the above account under cross-examination.  She accepted that her police statement referred to going to the train station after the incident and did not mention them going to a friend's house in Victoria Park.  The police statement also did not refer to them going to the same friend's house before the bar.  She said that she was intoxicated and could not remember everything.  At one point she said that she pushed Emmanuel when she thought he was trying to follow her into the female toilets, but then realised he was going to the male toilets.  She did not remember getting into a fight with Amos.[38]

   [38] Trial ts 107 - 117.

Medical evidence

1. Dr Michael Hurrell was a maxillofacial specialist who had compiled a report based on notes of the specialist who the complainant saw when she presented to Fiona Stanley Hospital on 21 September 2018.  She had sustained two fractures of the lower jaw or mandible: one at the left angle which was displaced and one towards the midline which was clinically undisplaced.  The injuries were consistent with a punch to the face.  It is not uncommon for one blow to cause two fractures to the jaw.  The injuries would have resulted in a permanent misalignment of the complainant's jaw if not surgically treated.[39]

   [39] Trial ts 120 - 123.

2. A report of Dr Tae Woo Im dated 31 January 2019 was read to the jury.  He treated the complainant at the Fiona Stanley Hospital emergency department on 21 September 2018.  He noted that she was tender to palpitation of the left face and unable to open her mouth.  Her alcohol breathalyser reading was 0.17.[40]

   [40] Trial ts 132.

Evidence of Detective Senior Constable Shaun Francis at trial

1. The investigating police officer, DSC Shaun Francis, gave evidence that the complainant attended a police station on 25 September 2018 and provided a statement.  While attempts had been made to take a statement from the person known as Aisha, police were unable to obtain a statement from her.  Police had not been able to identify any of the males shown on the CCTV footage.[41]

   [41] Trial ts 133 - 134.

Admissions by appellant

1. At the close of the prosecution case, the appellant made formal admissions under s 32 of the Evidence Act 1906 (WA) that:[42]

   (1)The complainant presented to the Fiona Stanley Hospital on 21 September 2018 with injuries that were of such a nature as to cause or be likely to cause permanent injury to health.

   (2)The appellant and complainant were previously in a family relationship.

   [42] Trial ts 135 - 136.

2. The appellant did not give evidence at the trial.

Additional evidence in appeal

1. The appellant applies to adduce the affidavits of Christopher James Cole, the appellant's trial counsel, affirmed on 2 December 2020, and of Mr Amos Tutu, sworn on 2 December 2020, as additional evidence in the appeal. 

1. Mr Cole's evidence was directed to the appellant's now abandoned contention that Mr Tutu's evidence was fresh evidence.  Mr Cole gave evidence as to the steps which he took, including seeking instructions from the appellant, to try to obtain the details of a person described to him only as 'Amos'.[43]  However, the appellant did not himself give evidence that he was unable to contact 'Amos' at the time of trial.  Mr Tutu's oral evidence was to the effect that he was readily contactable at the time of the trial by the appellant through means such as Facebook and Snapchat.  Mr Tutu also said that he had spoken to the appellant in 2018 and indicated his willingness to give evidence at the appellant's trial.  In light of that evidence, the appellant's counsel properly accepted that Mr Tutu's evidence could not be characterised as fresh, as opposed to merely new, evidence.[44]

   [43] Appeal ts 5 - 6.

   [44] Appeal ts 12, 22, 33.

2. Mr Tutu deposes that he was at the sports bar in Northbridge on Friday 21 September 2018.  He had 3 - 4 single shot spirit and Coke drinks that evening.[45]  After closing time, he was outside the hotel as were a number of other people.  He heard loud voices and arguments between a number of people.

   [45] The discrepancy in the date as to whether he actually attended the bar the night before on 20 September 2018 at around 9.30 pm, as suggested in his oral evidence (see appeal ts 18), is not significant for the purposes of the appeal.

3. A short time later, still outside the bar, he was talking to a group of 'guys' including the appellant.  In oral evidence, Mr Tutu indicated that this discussion was about 5 minutes prior to the altercation involving the complainant.  He indicated that the conversation is shown on the CCTV footage.[46]

   [46] Appeal ts 21 - 22.

4. Mr Tutu deposes that the complainant and Ms Kemisa walked up to them, and the complainant started arguing with the appellant.  Mr Tutu cannot recall what they were arguing about.

5. During the argument, the complainant and Ms Kemisa tried to hit the appellant and Mr Tutu tried to stop them.  He grabbed Ms Kemisa by the arm.  After he did so, the complainant hit him in the head with the heel of a woman's high‑heel shoe and his head started to bleed.  He deposes:

   Because of being hit, I later swung a few punched [sic] with closed fists.  I cannot recall hitting anybody, but I would say it is possible.

   The incident was hectic.  At the time I was swinging punches, I recall a number of people being close to me including both [the complainant] and Loana Kemisa.

6. Mr Tutu deposes that he had been shown the CCTV footage by the appellant's current solicitor.  He states that the CCTV footage 'identifies the scene where I was hit in the head and then swung a few punches'. 

7. In oral evidence, Mr Tutu confirmed that he could not remember punching the complainant and could not see himself doing so on the CCTV footage.  However, he was not sure whether he might have struck her.  The next day, he did not observe any swelling, sores or bruising on his hands.  He did not recall seeing the appellant punch the complainant.[47]

   [47] Appeal ts 17 - 18.

General principles

1. The unavailability of fresh evidence at trial gives rise to a miscarriage of justice if the appellate court considers that there is a significant possibility that the jury, acting reasonably, would have acquitted the appellant if the evidence had been before it at trial.[48]  For this purpose, 'fresh' evidence is evidence which either did not exist at the time of the trial or which could not then, with reasonable diligence, have been discovered.  'New' evidence is evidence which was available at the trial or which could, with reasonable diligence, then have been discovered.[49]  There is generally no miscarriage of justice in the failure to call evidence at trial if that evidence was then available, or, with reasonable diligence, could have been available, unless the new evidence establishes that the accused should not have been convicted.[50] 

   [48] Smith v The State of Western Australia [2014] WASCA 90 [159].

   [49] Smith [158].

   [50] Beamish v The Queen [2005] WASCA 62 [9] - [13]; Smith [160].

2. The ultimate question always remains whether a miscarriage of justice has occurred.  As Gibbs CJ observed in Gallagher v The Queen:[51]

   However, I would emphasize that no form of words should be regarded as an incantation that will resolve the difficulties of every case. No test can detract from the force of the fundamental principle that the appeal must be allowed if a miscarriage of justice is shown to have occurred.

   [51] Gallagher v The Queen (1986) 160 CLR 392, 399.

Disposition

1. Mr Tutu presented as an honest witness.  His evidence as to what he did is consistent with what is depicted on the CCTV footage.  However, he does not give evidence of having struck the complainant.  His evidence otherwise does not substantially add to what is apparent from the CCTV footage itself.  The appellant now accepts that it was open to the jury to be satisfied, beyond reasonable doubt, as to the appellant's guilt on the evidence before it.  Mr Tutu's evidence, reflecting what the jury could see from the CCTV footage, does not affect that position.

2. The appellant submits that the complainant and Ms Kemisa were intoxicated and the events 'were at best blurry'.  It is true that the complainant in particular appears to be more intoxicated than is suggested by her oral evidence as to the amount of alcohol she consumed.  However, while the complainant is staggering to some extent, she can walk by herself and can be seen interacting with others.  She was not apparently so intoxicated as to be incapable of having any reliable memory of the events. 

3. Both the complainant and Ms Kemisa gave clear evidence of the appellant, who they both knew well, punching the complainant to the face and her falling to the ground.  While the complainant could not recall the punch connecting, she gave evidence of the appellant approaching her aggressively and swinging a clenched fist towards her just before she woke up on the ground with the side of her face numb.  Ms Kemisa may have seen the punch standing behind the complainant, but she indicated that only the appellant was standing in front of the complainant when the complainant fell to the ground.

4. The jury could properly accept that the evidence of the complainant and Ms Kemisa as to the appellant punching the complainant was credible and reliable.  They must have done so in delivering their guilty verdict.  There were aspects of the CCTV footage which showed events differently from those witnesses' recollection about peripheral matters, including the fighting which followed the appellant punching the complainant.  That is hardly surprising, however, particularly given the lapse of time and the nature of the events being recalled.  Inaccurate recall of those peripheral matters does not mean that the complainant and Ms Kemisa could not clearly recall what for them was the most significant event of the night, being the appellant punching the complainant in the face and breaking her jaw.  It may also be noted that the witnesses had not seen the CCTV footage before they gave evidence which described the events.  There was no opportunity for them to tailor their evidence around what was depicted in the CCTV footage, which tends to enhance the credibility of their account.

5. The CCTV footage is not inconsistent with the evidence that the appellant punched the complainant to the face, an event which the complainant and Ms Kemisa say occurred outside the range of view of the CCTV camera.  The CCTV footage does not show any other person punching the complainant's face.  The CCTV footage did not require the jury to have a reasonable doubt about whether the appellant caused the complainant's injury.  The CCTV footage is consistent with the appellant having struck the complainant in the darkened area out of range of the CCTV camera view, which then prompted the altercation shown in the lit area which erupted as, and after, the appellant and others got into the car.

6. Mr Tutu's testimony does not significantly add to this state of the evidence.  Although his affidavit might have been taken to suggest that he was in discussion with the appellant continuously, in oral evidence he said that the discussion was about 5 minutes prior to the altercation between him, Ms Kemisa and the complainant.  He said that the discussion was shown on the CCTV footage.  The CCTV footage shows that the group parted after the conversation of which Mr Tutu was part.  After the group parted, the CCTV footage shows the complainant and her friends, and then the appellant alone, walking towards the darkened area at the top of the frame. 

7. As the appellant was able to contact Mr Tutu prior to and at the time of the trial, Mr Tutu's evidence is not fresh evidence.  It is properly regarded as new evidence.  The new evidence does not show (either alone or in combination with the trial record) that the appellant should not have been convicted of the offence of unlawfully doing grievous bodily harm to the complainant.  While we would grant the application to adduce additional evidence in the appeal, the absence of Mr Tutu's evidence at trial did not give rise to any miscarriage of justice.

Orders

1. For the above reasons, we would make the following orders in the appeal:

   (1)The appellant's application in an appeal filed on 14 December 2020, for leave to adduce additional evidence in the appeal, is granted.

   (2)The appeal is dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

JB

Associate to the Honourable Justice Mitchell

10 SEPTEMBER 2021