Bourne v Elliss - [2001] WASCA 290

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE FULL COURT (WA)

CITATION: BOURNE & ANOR -v- ELLISS [2001] WASCA 290

CORAM: MALCOLM CJ
MILLER J
ROBERTS-SMITH J

HEARD: 23 AUGUST 2001

DELIVERED : 27 SEPTEMBER 2001

FILE NO/S: SJA 1033 of 1999

BETWEEN: JENNIFER COLLEEN BOURNE
First Appellant (Defendant)
RAYMOND ALBERT PAUL BOURNE
Second Appellant (Defendant)
AND
JACQUELINE MARIE ELLISS
Respondent (Complainant)

Catchwords:

Criminal law - Appeal - Fresh evidence - Recantation of evidence - Tests to be applied - Plausibility - Cogency - Whether conviction a miscarriage of justice

Legislation:

Criminal Code (WA), s 313

Evidence Act 1906 (WA), s 106A, s 106E, s 106F, s 106K, s 106N

Justices Act 1902 (WA), s 206A

Result:

Appeals dismissed

Category: A

Representation:

Counsel:

First Appellant (Defendant)        :    Mr T F Percy QC & Mr D C Manera
Second Appellant (Defendant)    :    Mr T F Percy QC & Mr D C Manera
Respondent (Complainant)        :    Ms C J Thatcher

Solicitors:

First Appellant (Defendant)        :    David Charles Manera
Second Appellant (Defendant)    :    David Charles Manera
Respondent (Complainant)        :    State Crown Solicitor

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

Blewitt v The Queen (1988) 62 ALJR 503
Carter v Rosedale Sawmill & Anor [1995] QCA 441
Craig v The King (1933) 49 CLR 429
Davies and Cody v The King (1937) 57 CLR 170
Hall (1985) 18 A Crim R 329
Milton v The Queen [2000] WASCA 25
Pileggi v The Queen [2001] WASCA 260
R v Bond (1992) 62 A Crim R 383
R v Bryer (1994) 75 A Crim R 456
R v Gale [1970] VR 669
Ratten v R (1974) 131 CLR 510
The Queen v Bryer (1994) 75 A Crim R 456
Wheeler v The Queen, unreported; CCA SCt of WA; Library No 940627; 10 November 1994

Case(s) also cited:

Button v R [2001] WASCA 7
Condo v R (1992) 62 A Crim R 11
Mickelberg v R (1989) 167 CLR 259

MALCOLM CJ: This is an appeal against conviction under s 206A of the Justices Act 1902 (WA) pursuant to leave granted by Parker J on 9 January 2001. On 18 February 1999 the appellants were each convicted in the Court of Petty Sessions at Perth of three charges of common assault contrary to s 313 of the Criminal Code (WA). The conviction for such an offence renders the offender liable to imprisonment for 18 months or a fine of $6,000.
The first appellant was convicted of assaulting each of her children, whom I shall refer to as E, C and A, who were aged respectively 9, 8 and 6 years at the relevant time. The second appellant was convicted of assaulting C and another child, N, then aged 2. Two such assaults involved N. All the offences were said to have been committed in early June 1998.
Each of the appellants appealed against their convictions. The appeals were heard by Parker J. On 29 July 2000 his Honour dismissed the appeals, except for one of the convictions of the second appellant, involving the complainant N, in respect of which the conviction was quashed. Nearly six months later, on 9 January 2001, Parker J granted the appellants leave to appeal to this Court following the grant of an extension of time. The basis for the grant of leave was that it was asserted that the convictions were unsafe and unsatisfactory by reason that fresh evidence had become available to the appellants, since the decision of Parker J dismissing the appeals, namely the evidence of E and one Josephine Annette Bray. The ground on which the extension of time and leave to appeal were granted was that fresh evidence had become available since the earlier decision of Parker J, namely, evidence by E and Mrs Bray, E's grandmother and the mother of the first appellant, that the evidence of E at the trial was false in material respects.
I have had the advantage of reading in draft the reasons to be published by Miller J. I agree with his Honour that these appeals should be dismissed for the reasons which he has given. I only wish to add some comments of my own regarding the circumstances in which E gave her evidence before the Full Court sitting in Court No 1 and my assessment of that evidence.
E was aged 9 at the time of the alleged assaults on her. E and the other children gave their evidence at the trial from a remote room by means of closed circuit television pursuant to s 106N of the Evidence Act 1906 (WA).
At the hearing of the appeal, E gave evidence from the witness box. Prior to the hearing, I had directed my Associate to make enquiries of the appellants' instructing solicitors whether any special arrangements should be made for the taking of E's evidence in the context of s 106A and other relevant provisions of the Evidence Act. In my opinion, E was an "affected child" for the purposes of s 106A and entitled to the support and assistance provided for in provisions such as s 106E, s 106F, s 106K and, in particular, s 106N(2), which provides for such a witness to give evidence by videolink from a room within the Court precincts transmitted into the courtroom by means of closed circuit television.
In my opinion, it is regrettable that no special arrangements of the kind contemplated by these provisions was sought by the appellants' counsel or solicitors in this case. My observation was that E found it extremely difficult to give her evidence before a bench of three Judges, even though, because it was a Full Court, not sitting as a Court of Criminal Appeal, the Judges were wearing black robes and no wigs were worn. It was difficult to hear E's evidence, which meant that, on a number of occasions, she had to be asked to repeat what she had said. In my view, it was quite clear from her demeanour and the manner in which she was giving evidence that, in fairness to her, a direction should have been sought and obtained that her evidence be taken by means of closed circuit television from a remote room within the Supreme Court, with the benefit and comfort of an appropriate support person to sit with her while giving her evidence. As it was, E was visibly upset when called to the witness box. It was necessary to adjourn the hearing. Arrangements were subsequently made by consent of the parties for the appellants to leave the Court while E gave her evidence. It was apparent that other members of her family remained in Court, including her grandmother, to whom it was alleged she had first retracted her earlier evidence.
After taking full account of the content of E's evidence, closely observing her in the witness box and making due allowance for her nervousness and distress in the situation in which she found herself, I agree with Miller J that her retraction of her evidence given at the trial and the different version of the events which she gave before this Court were both entirely unconvincing. By comparison, a mere reading of the transcript of her evidence at the trial, admittedly without the benefit of observing her demeanour when she gave her evidence, did not appear to have any of the hallmarks of fabrication or concoction. The evidence was given clearly and with little indication of any hesitation. It was confirmed in a material respect by the entry she had made in a diary and supported by the evidence of Mr Hofstee of the words which could be deciphered

from the page below the page on which she had written, which had been torn from the diary by the first appellant. This evidence also provided a compelling explanation why the first appellant had torn the page out of the diary.

I agree with Miller J that the statement made by E to Detective Constable Ellis on 10 June 1998 was a very detailed account of the alleged assaults. E's evidence in the proceedings in the Court of Petty Sessions was substantially in accordance with that statement and, from the transcript, contrasted sharply with the hesitant and halting account given by E when giving her evidence in this Court. Her evidence at the trial included evidence that, after the incident involving the baseball bat, the next day she told her teacher at school about the incident and the teacher "wrote it down in a book".
In her evidence at the trial, E had no hesitation in identifying the diary. She identified the date on the page which had been torn out as being 7 June 1998, which was a Saturday. From latent impressions on the pages following, it appeared that someone had written on 7 June, "Today Mum got the baseball bat". By contrast, when giving evidence before us, E appeared to have very little recollection of her diary.
MILLER J: On 18 February 1999 the appellants were each convicted in the Court of Petty Sessions at Perth of three charges of assault contrary to s 313 of the Criminal Code. The first appellant was convicted of assaulting the infant children, Erin Richardson, Carmen Richardson and Adam Richardson, who were respectively aged 9, 8 and 6 years at the relevant time. The second appellant was convicted of assaulting Carmen Richardson and of assaulting Natalie Bourne, who was aged 2 years at the relevant time.
The appellants appealed their convictions in the Court of Petty Sessions. Those appeals were heard by Parker J, who on 29 July 1999, dismissed the appeals save for one of the convictions of the second appellant of assaulting Natalie Richardson. The appeal before Parker J was limited to the ground that the learned Magistrate had misdirected herself as to the onus of proof.
On 9 January 2001 Parker J granted the appellants leave to appeal to this Court, extending the time within which to do so. The ground of appeal is that the convictions of the appellants are unsafe and unsatisfactory. This is because there has now become available to the appellants fresh evidence since the decision of Parker ; namely the

evidence of Erin Richardson and Josephine Annette Bray. It was submitted that the evidence given at the trial by the child complainant, Erin Richardson, was false in material respects.

The evidence at trial

The trial before the learned Magistrate extended over a period of three days. All charges were heard together and the appellants were represented by counsel. The prosecution case consisted primarily of the evidence of the three children Erin Richardson ("Erin"), Carmen Richardson ("Carmen") and Adam Richardson ("Adam"). The evidence of these children was admitted pursuant to s 106C of the Evidence Act 1906, each of them giving evidence without taking any oath or making a solemn affirmation. Their evidence was supported by the testimony of a teacher at Lathlain Primary School, a social worker with the Department of Education and various police officers.
Erin, Carmen and Adam were the children of the first appellant's first marriage to one David Richardson. Natalie Bourne ("Natalie") is a child of the first appellant's second marriage to the second appellant. Between 1 and 10 June 1998, being the period within which the offences were alleged to have occurred, all children lived with the appellants at 123 Enfield Street, Lathlain. The father of Erin, Carmen and Adam apparently had access rights in relation to the children.
The three children who testified before the learned Magistrate appear to have done so pursuant to s 106N of the Evidence Act, their testimony being given on closed circuit television. There is no indication from the transcript of the proceedings before the learned Magistrate as to what, if any, orders were made in this regard, but it is clear that that is how the evidence was given. The essence of Erin's evidence was as follows:
"Okay. Can you tell us a bit about that? Can you tell us what was actually happening? --- One night we were a bit naughty and she smacked us.
When you say 'we', who do you mean by 'we'? --- Me, Adam and Carmen.
And how did she smack you? --- … (indistinct) …
Can you describe to us how she smacked you or where she smacked you? --- Smacked us on the bottom.
What did she smack you with? Did she smack you with her hand? --- A bat.
What was that, sorry? --- A bat.
What do you mean by 'a bat'? --- Baseball.
Okay. Where did that come from? --- I think dad bought it to protect her.
When you say 'dad', who do you mean by 'dad'? --- David.
That's your real daddy? --- Yep.
Okay. So it was at the house at 123 Enfield? --- Yep.
Okay. Can you describe to us what was happening when you got smacked; like what had happened? --- We were being naughty and we wouldn't go to bed.
And then what happened? --- Then she smacked us.
Where were you when this happened? --- I think I was in the top bunk.
Sorry, love, what was that? --- I think I was in the top bunk.
Okay. You were in the top bunk. Was that in some bunk beds, was it? --- Yep.
Which room was this in? --- Mine and Carmen and Natalie's room.
PROSECUTOR: Okay. And was there anyone else in the room? --- There was Adam because he was scared. I'm not sure.
So you were in the top bunk. Can you tell us exactly what mummy did? --- Smack us.
When you say 'us', who do you mean by 'us'? --- Adam and Carmen … (indistinct) …
Can you tell me where on your body you got smacked? --- On our bottom.
And what about Adam and Carmen? --- The same place.
How did that make you feel? --- Bad.
Did mummy say anything? --- No."
There was also evidence from Erin that she told her teacher about the matter the next day.
Erin was asked whether there had been any other incidents and she said:
"Did anything else ever happen? --- Yes.
What --?--Ray ---
What about Ray? --- He threw Natalie in the cot one night.
Now, Natalie, she's your little sister; is that right? --- Yep.
Do you know how old Natalie is? --- I think two. Two.
So where was the cot? --- Near the door.
The door of which room? --- My room.
So you all shared a room together; is that right? --- Yep.
Can you tell me about what happened with Ray? --- Ray put -- threw Natalie in the cot and she hurt her head.
And do you know why that happened? --- Coz she -- Natalie wouldn't be quiet and she wouldn't go to bed.
And what did Natalie do when that happened? --- She … (indistinct) … say that she don't want to go to bed.
Yeah. And what did Ray do? --- Threw her in the cot.
Okay. And what happened to Natalie? --- She hurt her head.
What did Natalie do after she hurt her head? --- She cried."
There was important evidence from Erin about a diary. It was to the following effect:
"Did you use to keep a diary, Erin? --- Yes.
What did you use to write in your diary? --- What happened the night mum hit us.
Did you ever use to write other things in your diary? --- No.
Can you tell me what your diary looked like? --- Black, a diary on the front. I think it had the number of --- on the front, 1997 or something.
Okay. You said that you wrote something in your diary. Can you remember what you wrote? --- What happened the night mum hit us but then mum teared the page out.
When did mum tear the page out? --- That night when she saw it when Carmen told her.
Okay. And what happened when mum tore the page out? How was mum? --- She got mad at me."
Erin identified the page torn out of the diary as being the page for Saturday 6 June. She said that the day following she told her school teacher about what had occurred.
Erin was cross‑examined by senior counsel for the appellants. That cross‑examination centred on the proposition that Erin's father, David Richardson, had told her to lie and tell the court that the first appellant had hit her with a baseball bat. It was also put in general terms that Erin's father had told her to tell lies when she came to court. This was denied by Erin. She also denied that she had told any other persons that her father had told her to lie in court.
Carmen gave evidence that she had been assaulted by the second appellant. She said:
"Okay, we won't worry about that. Do you know why you're here today, Carmen? --- Yes.
Why? --- To tell the truth about what happened at mummy's.
What happened at mummy's? --- One night … (indistinct) … she smacked me.
Okay, so I'll just --- I didn't quite hear you there. You said, 'One night' --- what happened one night? --- Ray -- I -- left … (indistinct) … lights on and he smacked … (indistinct) …
Okay. Where were you when he smacked you? --- In the lounge room.
Was there anyone else there? --- … (indistinct) … watching TV.
What happened after he smacked you? --- I went and showed my mum.
And what did mum say? --- … (indistinct) …
And what did Ray say? --- … (indistinct) …
Why did you have to get a magnet? --- … (indistinct) … the magnet helps the bruise to get better.
PROSECUTOR: So did you have a bruise? --- Yes.
Can you tell us where on your body you had a bruise? --- On my left leg.
And do you know where you got this bruise? --- Where?
Yeah, or what gave you the bruise? --- … (indistinct) … had this big belt … (indistinct) …
Okay. Can you remember what colour the belt was? --- I think it was black."
Carmen also gave evidence in relation to being hit with a baseball bat, but she described the person as somebody who looked like her mother but was not her mother. Her evidence was as follows:
"Okay. And -- okay. So you were talking about a baseball bat. Can you remember what happened with that? --- … (indistinct) …
So does mummy play baseball, does she? --- … (indistinct) …
Okay. So -- well, what did this person look like; the one that hit you with the baseball bat? --- Just like my mum.
Can you describe it? Can you tell me --?--- Black hair like … (indistinct) … yellow t-shirt and black hair.
PROSECUTOR: Did this person say anything to you? --- No.
Do you know why you were getting hit with the baseball bat? --- No. … (indistinct) …
Did anybody else get hit? --- No.
Can you remember seeing anybody else? --- (No audible response)
Do you know what the baseball bat looked like? --- Yes.
Can you tell me what it looked like? --- … (indistinct) … brown and … (indistinct) … black.
Okay. If I could just ask Mrs McPhail to show Carmen exhibit A which I believe is still there. Do you recognise that? --- Yes.
What is that? --- That's my mum's baseball bat.
When you were talking about the person that hit you with the baseball bat, is that the one that you got hit with? --- Yeah. … (indistinct) …"
The matter was pursued in cross‑examination as follows:
"Yes. Okay. Now, can I just ask you this; you told us about one night where mum -- well, someone looking like mum -- sorry. I just dropped my pen. Can you hear me? Okay? Now, listen carefully to my question. You told us about one night, was it a night‑time, that you were in your bedroom, where someone looking like mum hit you? Is that right? --- Yes.
But you're not sure it was mum? --- Um, I'm sure it --- I know it wasn't my mum.
You know it, what? --- I know it wasn't my mum.
All right. You --?--- … (indistinct) … come in with a baseball bat.
All right. So you know it wasn't your mum? --- Yes.
But it was someone who looked like her? --- Yeah.
Okay. That person, how hard did they hit you with the baseball bat? --- Like --
Just a tap? --- Um, kind of.
Yes? --- Hard kind of soft.
A hard kind of soft? --- Yeah.
MR TROWELL: All right. So, what's that? Something in the middle, is it? --- Yeah.
Okay. Did it really hurt? --- A little."
Adam was called to give evidence but did not say anything that went to the matters alleged against the appellants.
Frances Henriette Binning, who was a primary school teacher at Lathlain Primary School at the relevant time, had Erin in her class. She gave evidence that in mid‑May 1998 Erin had come to school with a magnet taped to her arm. She testified that on 5 June Erin had spoken to her and again on 10 June. On 5 June Ms Binning observed a bruise on the crest of Erin's hip and on 10 June a number of social workers attended at the school.
Morris Martin Ramsay Ball is a social worker who attended a meeting at Lathlain Primary School on 27 May 1998 and there spoke with the first appellant. The first appellant told him that she was aware that Erin had stated to a teacher at the school that she had been beaten at home by a trainer's belt and she (the first appellant) wanted to inform Mr Ball that the incident was attributable to Erin's real father, not her step‑father. Mr Ball attended at the school on 5 June 1998 when he observed a bruise on Erin's pelvic bone.

The prosecution called James Nicholas Hofstee, a member of the document examination section of the Western Australian Police Forensic Division. He testified that he had examined a diary which was clearly that to which Erin referred in her evidence. He found the page for 7 June (on the rear of which was the page for 8 June) torn from the diary. By a process of examination he ascertained that there were latent impressions on the pages following that which had been torn from the diary which revealed that somebody had written "today mum got the baseball bat". He expressed the opinion that these words formed the part of the missing page and had been impressed into the pages below.
The appellants were interviewed by investigating police on video. The video recorded interviews were tendered in evidence. They contained no direct admissions on the part of either appellant. The first appellant admitted using a softball bat to hit the children, although contending that she had not done so in the bedroom as alleged by Erin. She said that as the children had gone past her bedroom on one occasion she had lightly tapped them on the backside with the softball bat and told them not to run in the house. The first appellant specifically denied hitting Erin, Carmen and/or Adam with the bat whilst they were in bed.
Police evidence also revealed that a Detective Senior Constable O'Connor had attended at Lathlain Primary School on 10 June 1998 where he spoke with the first appellant. He then accompanied the first appellant to the house at 123 Enfield Street and there met the second appellant who was wearing a large leather belt around his waist. On top of a refrigerator in the kitchen at the house the officer found a black 1998 diary. He said that this diary was taken off the top of the refrigerator by the first appellant.
Later, when the first appellant was interviewed on video, she denied seeing a black diary at the house and said that she had only seen the black diary tendered in evidence when police showed it to her on the day when they called at her home. She denied removing a page from the diary. When it was put to her that police had found the diary on top of the refrigerator in the kitchen she was unable to explain how it came to be there and denied herself putting it there. When asked, however, whether she knew what date was torn out of the diary, the first appellant responded that it was Monday 8 June. The second appellant was extensively interviewed on video. He denied any of the assaults alleged and said that he had never used a belt to smack any of the children. He had merely pretended to have a belt and threatened to give them a smack. Neither appellant testified at the trial.
The learned Magistrate convicted the appellants on all charges. As I have pointed out, one of the convictions in relation to the second appellant has been overturned by Parker J. The learned Magistrate was impressed by the prosecution case. She said:
"In the absence of any sworn evidence to the contrary the court has before it only the evidence of the prosecution witnesses relating to the behaviour of the defendants towards the children Erin, Carmen and Adam. The evidence of Ms Binning, Mr Ball and the police witnesses is credible and consistent with Erin's evidence, which I accept as factual. I am satisfied beyond reasonable doubt that the defendant Jennifer Bourne assaulted the children Erin, Carmen and Adam Richardson by striking them with the bat, exhibit A, and that this occurred at Lathlain between the 1st and the 10th of June 1998.
I find that Mrs Bourne assaulted Erin raising the bruise over her pelvic bone which was later seen by Ms Binning and by Mr Ball, the social worker. Complaint number 31016 alleges that Mr Bourne assaulted the child Carmen. I have already referred to Carmen's evidence regarding this. These actions were denied by Mr Bourne in his video record of interview, but again, there is no sworn evidence before the court to refute Carmen's evidence.
Carmen's evidence concerning the incident with the softball bat was consistent with Erin's evidence with the exception of the identification of the children's mother. Her evidence about Mr Bourne putting a magnet on her bruise is consistent with what the defendants said in their records of interview, with the teacher's evidence of her observations and the defendant's statement on video that this was a practice commonly used by Mr Bourne on the children's bruises.
I'm satisfied that Carmen's evidence is factual and I find that Raymond Bourne assaulted her with a belt in the manner she described. With respect to complaint number 31017 that Mr Bourne assaulted Natalie Bourne I have already stated that I found Erin's evidence to be factual. …
Having accepted Erin's evidence as factual I find that Mr Bourne assaulted the child Natalie in that he applied force to her by throwing her into her cot in the manner described by Erin."
The learned Magistrate went on to consider the provisions of s 257 of the Criminal Code which provide that it is lawful for a parent to use by way of correction towards a child under his care, such force as is reasonable under the circumstances. Her Worship concluded that the force used by the appellants was not reasonable under the circumstances.
It will be seen from the learned Magistrate's reasons that she placed considerable importance upon the evidence of Erin. She described it as "factual" and she used it to support the convictions relating to the first appellant's use of the baseball bat and the second appellant's assault upon the child Natalie. Erin had said nothing about any assault by the second appellant upon Carmen.
The learned Magistrate also accepted Carmen's evidence as "factual". She found that the second appellant had assaulted Carmen with a belt in the manner she described. That conclusion appears to have rested solely upon the testimony of Carmen. Although earlier reference was made to Carmen's evidence in relation to the assault with a softball bat being consistent with Erin's evidence, that observation related solely to the allegations of assault made against the first appellant. This being so, it seems to me that the second appellant cannot appeal against his conviction for assaulting Carmen with the belt (charge 31016) on the basis of anything that Erin may have said since the hearing of the case in petty sessions. It is to that evidence that I will now turn.

Fresh evidence: Affidavits

Josephine Annette Bray resides at 32 Glouster Road, Kalamunda. Living with her are Erin, Carmen, Adam, her husband and her son. Erin moved in to live with Mrs Bray on 7 April 2000, having previously lived with her father, David Richardson. In an affidavit sworn 24 August 2000 and filed in these proceedings, Mrs Bray has deposed that on 30 June 2000 Erin's father, David Richardson, came to pick up Erin, Carmen and Adam, but Erin told her father she did not wish to go with him and stayed at home. The following day, Saturday 1 July 2000, Erin is said to have told Mrs Bray "I am sick of living my father's lies". She then began to cry and when asked what she meant, said that she had lied in court and that she had been told by her father to tell lies about her mother and step‑father.
Mrs Bray contacted a lawyer who arranged for an affidavit of Erin to be sworn. This affidavit, sworn 11 August 2000, reveals that Erin is now 12 years of age, having been born on 28 July 1989. She has sworn to the fact that when living with her mother she saw her father, David Richardson, on fortnightly visits and whilst visiting him, he told her to say that her mother had hit her with a bat. She claimed that her father had told her that if she lied he would take her to the movies, "fun and games" and swimming. Her affidavit includes the following:
"12.I lied because Dad Richardson asked me to. I was a bit afraid. I was afraid something bad would happen, if I did not lie about my mum. I thought Dad Richardson would belt me and put me in the bedroom. I lied and told people that Mum hit Adam, Carmen and I with a bat.
13.Mum did not hit me with a bat. If Mum had hit me with a bat, I would have been badly hurt. I have a disease which makes me bruise easily, and my bones break easily.
14.I told a police officer called Jacki, that Mum hit Adam, Carmen and I with a bat. I lied when I told Jacki this.
15.Dad Richardson told me to say that Daddy Ray threw Natalie in the cot. This was a lie. Daddy Ray did not throw Natalie in the cot.
16.Dad Richardson told me to get Mum into as much trouble as I could.
17.I went to court to give evidence against Mum and Daddy Ray.
18.I went to court on 21 January 1999 and appeared in the Perth Court of Petty Sessions.
19.I told the court that one night Adam, Carmen and I were a bit naughty and Mum smacked us with a baseball bat. That was a lie, Mum did not hit us.
20.I told the court that I told a teacher at that school what had happened. I did tell a teacher Mum had hit us. I lied when I told the teacher what had happened. I do not think the teacher I told was Miss Abbott, I think it was Miss Banet.
21.I told the court that I wrote what had happened in a diary. I lied when I told the court this. I did not write anything in the diary.
22.I told the court that Daddy Ray threw Natalie in the cot and Natalie hurt her head. I lied when I told the court this. I did not see Daddy Ray throw Natalie in the cot."

Fresh evidence: Oral testimony

At the hearing of the appeal the appellants were given leave to adduce oral evidence from both Erin and Mrs Bray. Mrs Bray simply confirmed the contents of her affidavit. It was put to her in cross‑examination that she had tried to get Erin to change her story about her mother and step‑father hitting her, but she denied that this was the case. Erin was called to the witness stand, but in my view it would have been preferable for her counsel to have applied for her evidence to have been given by closed circuit television under the provisions of s 106N of the Evidence Act. The child obviously had great difficulty in coming to terms with testifying in the Supreme Court before three Judges.
When she was sufficiently settled to give evidence, Erin identified her affidavit and stated that the contents of it were true. She was extensively cross‑examined, but she had difficulty in answering many of the questions which were put to her. In essence, she denied that anybody had influenced her to saying the things she had put in her affidavit. When asked about a diary, Erin stated that she had no recollection of having a diary that looked anything like the one which was shown to her in a photograph. She did say that she had a pink coloured diary, but no more. When I asked Erin some questions she said:
"MILLER J: Erin, you went along to the court a bit over 2 years ago and said that your mum had hit you, didn't you? --- Yes.
When did you first tell someone that what you said in the court was wrong? --- I don't understand.
Well, you went along to court and said things about your mum. Right? --- Yep.
Now you tell us that's not true? --- Yes, that's right.
When did you first tell someone it wasn't true? Not long after you had been to court? --- When I was living with my nanna I told my nanna.
When you were living with her. Now, do you remember how old you were when you went to live with her? You're 12 now. How long ago? --- 10.
10. Was she the first person that you ever told? --- Yes.
Why did you tell her? --- Because I'm sick of living his lies.
Sorry? --- I'm sick of living David's lies."
The last answer was in the same terms as the statement Erin is alleged to have made to Mrs Bray on 1 July 2000. Paragraph 8 of Mrs Bray's affidavit is as follows:
"8.The next day, Saturday 1 July 2000, while I was playing scrabble with Erin, Erin told me 'I am sick of living my father's lies'. Erin then started to cry. I asked Erin what she meant and Erin then told me that she had lied in Court. Erin told me that her Dad had told her to tell lies about her Mum and her stepfather."
Counsel for the respondent was permitted to call Erin's father, David Noel Richardson. He stated that he was aware of the allegations Erin had made in her affidavit and that they were entirely false.

Evidence of Erin's statements to police

At the hearing of the appeal the respondent tendered without objection affidavits of two police officers. They were Detective Constables J M Elliss and J M Van Der Sluys. To each of them were attached statements made by Erin. The statement made by Erin to Detective Constable Ellis was dated 10 June 1998 and was made at the Child Abuse Unit, Perth. In it Erin gave a detailed account of the assaults in question. A portion of that statement reads:
"My mum and dad always hit us kids. By dad, I mean Ray.
When they hit us they hit us with a belt or a baseball bat. Sometimes dad hits us with a rolled up newspaper.
The main time that my mum or dad hit me that I can really remember was on the 8th of June. I know this because I wrote about it in my diary.
I remember it was night time and we were all in our beds. Carmen and Natalie and me sleep in one room and Adam sleeps in the room across the hall from us.
Carmen sleeps on the top bunk and I sleep on the bottom bunk. Natalie is supposed to sleep in her cot but sometimes she sleeps in my bed with me.
Mum came into our room and I was in bed under my quilt. Mum hit me with the baseball bat. She hit me on my bottom. It really hurt.
Mum hit me two times with the bat then she hit Carmen once and then she went into Adam's room and I heard her hit Adam once.
She hit us because she said we were naughty but we weren't. She just hits us, just because.
Then mum left and I stayed awake and Carmen and Adam went to sleep.
I stayed awake so that I could write in my diary. I have this diary that I swapped with my friend Amber at school. She traded me my diary for her diary.
The diary I have is black with writing on the front that says '1998/1999 Diary'. It has dates and years in it.
I went to the 8th of June 1998 to write what happened with the baseball bat because it was actually that day at night that it happened."
There was reference in the statement by Erin to the circumstances in which her mother had ripped part of the page out of the diary. There was also reference to the second appellant picking up Natalie and throwing her into the cot, and reference to the second appellant putting magnets on bruises caused by assaults. The statement ended with the following passage:
"What I have just said is all the truth. I know that it is bad to tell lies and if you do that you will get punished."
Also tendered was also a record of interview between Detective Constable Ellis and Erin dated 13 October 1998 in which the essence of the statement was repeated.
On 27 November 1998 Detective Constable Van Der Sluys arranged for Erin to sign a typed copy of a statement the Detective had taken on 24 November. In this statement, Erin said:
"8.I was writing stuff in an exercise book with nanna. It says that dads been hitting us. My nanna would force me to write that daddies been doing things to us.
9.He hasn't been hitting us, mummy has.
10.Nanna said, 'Better write it. You will get in trouble.'
11.I wrote it because I thought that mum would start belting us again.
12.I didn't feel OK about this. My nanna and mummy call dad, David, we do too when we are with mummy and nanna.
13.I told people that nanna forced me to write all this.
14.None of the stuff I wrote about dad happened. I wrote things for Adam as well.
15.I want to live with my dad. I don't want to live with my mummy.
16.I know the difference about telling lies and telling the truth. What I told you today is the truth."
The appeal before this Court proceeded on the basis that the evidence of Erin in the form of her affidavit sworn 11 August 2000 and her sworn testimony before the Court constituted "fresh evidence". Counsel for the appellant submitted that if the fresh evidence might reasonably be true, it cast significant doubt on the convictions and, had the evidence been available to the learned Magistrate at the hearing, there was a significant likelihood that a different decision may have been reached. Counsel for the respondent conceded that the evidence was fresh in the sense that it was not available to the appellants at the time of trial, but saw the question as being whether the evidence should be accepted.

The test to be applied in relation to fresh evidence

In most of the decided cases the fresh evidence has been evidence of new witnesses which has become available after trial and which, if available at the trial, would have made it likely that the conviction would not have occurred. R v Bond (1992) 62 A Crim R 383 is such a case. There a witness came forward after Bond's trial to say that a witness at the trial had confessed to the fact that he was going to give perjured evidence before the jury at the trial of Bond. This evidence was fresh in the sense that it was not available to the applicant at the time of the trial and could not, by the exercise of reasonable diligence in the preparation of his case, have become available. Nicholson J (at 386 ‑ 387) summed up the appropriate test to be applied to such evidence:
"A court of criminal appeal will conclude that the unavailability of the new evidence at the time of the trial involved a miscarriage if, and only if, it considers that there is a significant possibility that the jury, acting reasonably, would have acquitted the applicant of the charge if the new evidence had been before it in the trial: Gallagher (1986) 160 CLR 392 at 402; 20 A Crim R 244 at 251, per Mason and Deane JJ, and at 399; 249, per Gibbs CJ. As put by Dawson J the appropriate test is whether upon the whole of the evidence consisting of the evidence at the previous trial together with the fresh evidence, a court of criminal appeal reaches the conclusion that a jury might entertain a reasonable doubt about the guilt of the applicant. In his view, 'if there is any real possibility of acquittal by a reasonable jury, it must always be significant when considering miscarriage of justice' (at 421; 265‑266). In Mickelberg (1989) 167 CLR 259 at 273; 43 A Crim R 182 at 190, Mason CJ said it is established that the proper question is whether the court considers that there is a significant possibility that the jury, acting reasonably, would have acquitted the appellant had the fresh evidence been before it at the trial."
His Honour added (at 387 ‑ 388):
"It is clear from Gallagher that it is not the function of a court of criminal appeal to place itself in the position of a jury. What such a court has to do is to decide whether the evidence is apparently credible or at least capable of belief (at 395; 246) and whether a reasonable jury would or might believe the fresh evidence (at 397; 247). Importantly, the question will not necessarily be whether the evidence is likely to be believed by a jury, because evidence may be sufficiently cogent and plausible to lead a jury to have a reasonable doubt, although the jury might not necessarily prefer it to other evidence with which it is inconsistent (at 397; 247, per Gibbs CJ citing Mason J in Lawless (1979) 142 CLR 659 at 676). That authority was also relied upon by Toohey and Gaudron JJ in Mickelberg at 302; 211 in stating that 'it is necessary that the fresh evidence be credible in the sense that a reasonable jury could accept it as true, but it is not necessary that the court should think it likely that a reasonable jury would believe it'. "
Murray J (at 422) in a comprehensive review of the cases, said:
"The question which arises squarely in this case is when the evidence may be said to be of such a character that the conviction must be quashed, however precisely the test is to be formulated, if indeed there is a difference between a significant possibility and a likelihood that the jury would have returned a different verdict."

In the present case there is an artificiality in considering whether a reasonable jury would or might believe the fresh evidence. The fresh evidence in this case would be unlikely to be adduced before the learned Magistrate, because it would be counter to the prosecution case. This is not an instance of independent fresh evidence impacting upon the evidence given by Erin (see for example Milton v The Queen [2000] WASCA 25, where a witness came forward to say that a complainant had after trial confessed to lying to police when giving her account of various sexual assaults) but a case of the key witness now retracting her evidence. If the case was sent back for retrial, the prosecution would hardly call Erin to give evidence. If it did so, Erin would be liable to be treated as a hostile witness and cross‑examined in relation to prior inconsistent statements. The effect of her evidence in those circumstances would be to render it a nullity.
In Ratten v R (1974) 131 CLR 510 (at 517 ‑ 518) Barwick CJ pointed out that there will be cases where the Court has to decide whether it believes the evidence:
"… if by reason of new evidence accepted by it though it may not be fresh evidence, the court is either satisfied of innocence or entertains such a doubt that the verdict of guilty cannot stand, the fact that the trial itself has been fair will not prevent the court upon that evidence quashing the conviction.
…
In every situation the court must decide on the relevance of the new evidence, … It must decide its credibility, that is to say whether or not it is capable of belief, both as to veracity and competence in the case of oral evidence, and as to authenticity in the case of documentary evidence. But in some situations, as I shall point out, the court will decide whether it believes the evidence. In other situations it will be enough that, whatever its own view, the evidence is capable of belief, and likely to be believed, by reasonable men."
The principles upon which the Court will deal with a retraction of evidence in criminal proceedings were dealt with in Davies and Cody v The King (1937) 57 CLR 170. At 183 ‑ 184 the Court (Latham CJ, Rich, Dixon, Evatt and McTiernan JJ) said:
"After the appeal to the Supreme Court, Stevens swore a declaration stating that his evidence was false in ever material particular. He then swore another declaration stating that his evidence was all true, and that his earlier declaration was false. A declaration by a witness that he has committed perjury cannot possibly be accepted as a ground in itself for setting aside the result of a trial in which the witness has given evidence. If the contrary were held, the whole administration of both civil and criminal justice would be undermined. The subsequent discovery that some evidence (as in this case) is said by the witness who gave it to be false, or is actually proved to be false, cannot, as a general rule, be allowed as a ground in itself for setting aside a verdict or judgment. But if the verdict is open to objection upon a ground affected by such evidence, the case is different. It would not be wise to attempt to frame a universal rule even for such cases. As the Full Court indicates in its judgment, the subsequent statement that the original evidence is false may be explainable by pressure brought to bear upon a witness or by the operation of any one of an indefinite number of motives. Each case should be treated in relation to its own facts."
In The Queen v Bryer (1994) 75 A Crim R 456 the Court of Appeal of the Supreme Court of Queensland dealt with a case in which an accomplice witness at trial gave evidence on appeal recanting the evidence he had given at trial inculpating the appellant. It was contended on appeal to the Court of Appeal that the recantation by the accomplice witness was fresh evidence which warranted setting aside the conviction. Fitzgerald P set out the principles to be applied (at 458) in these terms:
"Fresh evidence, discovered after trial, can raise the possibility that justice has miscarried and a conviction is unsafe; an appellate court is required to decide whether the jury, acting reasonably, might have acquitted had the fresh evidence been before it at the trial: Gallagher (1986) 160 CLR 392; 20 A Crim R 244; Mickelberg (1989) 167 CLR 259; 43 A Crim R 182. The ordinary application of this 'fresh evidence' test requires the appellate court to decide what the jury might have done if it had before it both the evidence given at the trial and the fresh evidence. This necessitates consideration of the relevance, cogency and plausibility of the fresh evidence in all the circumstances, including the evidence given at trial: Ratten (1974) 131 CLR 510.
A recantation, after trial, by a witness who gave evidence against a person convicted, is a species of fresh evidence. Logically, if the recantation is true, the jury at trial ought not have had the recanting witness's evidence implicating the accused; there should have been either no evidence from the recanting witness, or evidence from the recanting witness exculpatory of the accused, either directly or because inconsistent with the accused's guilt. Consideration of what the jury's verdict might have been on that basis would often lead to a conclusion that a conviction was unsafe, eg, because the available evidence would not sustain a conviction. However, the ordinary application of the 'fresh evidence' test would require the appellate court to consider what the jury might have done if it had had contradictory evidence from the recanting witness, demonstrating that the recanting witness was, at best, unreliable and probably a perjurer.
Whatever the difficulties which a recantation presents, the courts have been unwilling to conclude that a recantation must always raise a possibility of miscarriage. However, the basis for setting aside a conviction on the ground of a recantation is wider than in relation to other fresh evidence. A conviction is set aside on the basis of a recantation if (i) the witness's new version of events is sufficiently relevant, cogent and plausible to raise a doubt as to guilt in all the circumstances, including the original evidence and explanations given for the original evidence and the recantation, or (ii) the evidence of the recanting witness is so untrustworthy that it 'ought not to be allowed to enter into the reasons for any verdict of guilty': Davies and Cody (1937) 57 CLR 170. In the latter circumstance, it would be inappropriate for the recanting witness to be called in the event of a retrial."
Pincus JA (at 460 ‑ 462) referred to a number of Australian cases on the subject:
"… In Gale [1970] VR 669 the Victorian Full Court, in discussing a recantation, said:
'It should, of course, be clearly understood that the mere fact that a witness who has given evidence at a trial recants on the evidence he has given and subsequently alleges that his evidence was false, is not in itself a ground for interfering with a verdict or ground for a new trial: see Davies and Cody … In special circumstances it may warrant interference by the court …
We should add that where there has been a recantation by a witness of evidence given at a trial, before the court would consider interfering, the most cogent explanation would be necessary why the witness had given false evidence at the trial. In the absence of a completely acceptable explanation the Court of Appeal would be most unlikely to accept the subsequent testimony in preference to the evidence given at the trial.'
In Poulter (1978) 19 SASR 370 the South Australian Supreme Court had a difference of opinion about a recantation case. Bray CJ appeared to adopt much the same view as I have suggested may be able to be derived from Davies and Cody. His Honour said of the recanting witness:
'I think she has been shown to be untrustworthy and that her evidence "ought not to be allowed to enter into the reasons for any verdict of guilty" (Davies and Cody). I cannot say that it did not enter into the reasons of the jury which convicted the applicant. I think that any reasonable jury properly directed and not having Mrs Baker's evidence before it, or having both versions of her evidence before it, might well have acquitted the applicant, though, of course, it might equally well have convicted him.'
The other two members of the court disagreed with the Chief Justice. Walters J held in effect that the evidence given by a recanting witness on appeal was not cogent and 'thus the first criterion for the reception of fresh evidence has not been satisfied'. It will be noted that the approach of Walters J differs substantially from that of the High Court in Davies and Cody. King J describing the recanting witness as 'thoroughly unsatisfactory', disbelieved the recantation and held that even if the new version of the evidence were accepted it would weaken the prosecution case only to a minor degree. Both Walters J and King J were of the view that the verdict should stand.
A similar question arose before the same court in Geesing (1985) 38 SASR 226; 16 A Crim R 90. King CJ held that the ordinary test with respect to fresh evidence cannot be applied without qualification to a retraction of evidence given at a trial (at 230; 93). I respectfully agree. After referring to Poulter King CJ remarked that there are cases:
'… in which a witness's untrustworthiness as disclosed by his change of story leaves the court in doubt as to the reliability of his story at the trial. In such circumstances the court may have a serious apprehension that the jury has reached its verdict in reliance upon false evidence and may therefore feel that there has been a miscarriage of justice' (at 230‑231; 94).
The approach taken was to attempt to determine, on evidence given before the Court on the appeal, whether the reasons given for having told a false story at the trial and for having recanted are credible. In the present case, they were not.
…
A somewhat similar approach appears to have been taken by the New Zealand Court of Appeal in K [1984] 1 NZLR 264:
'In so far as any recantation emerges from the conflicting statements by the girl since the trial, we have no doubt that her attitude reflects the very human, family pressures of the situation. To grant either an acquittal on appeal or a new trial here would be to allow the criminal justice system to be manipulated because a key witness has come to regret the consequences of giving truthful evidence' (at 270)."
I respectfully adopt the view of Fitzgerald P that a recantation after trial by a witness who gave evidence against a person convicted is a species of fresh evidence and logically, if the recantation is true, the jury at trial ought not to have had the recanting witness' evidence at all. Consideration of what the jury's verdict might have been on that basis would often lead to a conclusion that a conviction was unsafe. However, the ordinary application of the "fresh evidence" test requires the appellate court to consider what the jury might have done if it had had contradictory evidence from the recanting witness demonstrating that he was, at best, unreliable and probably a perjurer.
I also respectfully agree with Fitzgerald P that before any conviction can be set aside on the ground of a recantation there is a wider test than in relation to normal cases of fresh evidence. The two tests formulated by Fitzgerald P require the court firstly to determine whether the witness' new version of events is sufficiently relevant, cogent and plausible to raise a doubt as to guilt, and secondly, to consider whether the evidence of the recanting witness is so untrustworthy that it ought not to be allowed to enter into the reasons for any verdict of guilty. As Fitzgerald P pointed out, in the latter circumstance it would be inappropriate for the recanting witness to be called in the event of a retrial.
In Carter v Rosedale Sawmill & Anor [1995] QCA 441, the Court of Appeal of the Supreme Court of Queensland dealt with a case of recantation of evidence in civil proceedings. The court concluded that for those purposes the authorities led to the result that the appellate court must consider and decide upon the credibility and cogency of the recantation and evaluate it in the light of all the evidence given at the trial. The court considered that a consideration of authorities on the civil side suggested that a party seeking to obtain a retrial because of alleged perjury at the earlier trial faced an even greater hurdle than an appellant in similar circumstances in the criminal jurisdiction. It is unnecessary to deal with the principles applicable to recantation in civil trials, but it is relevant to note that the court followed generally the approach set out in The Queen v Bryer.
The first question for the Court in this case is whether Erin's new version of events is sufficiently "relevant, cogent and plausible" to raise a doubt as to the guilt in all the circumstances and the second is whether her evidence is so untrustworthy generally that it ought not to be allowed to enter into the reasons for any verdict of guilty. It would clearly be unlikely that the prosecution would call Erin in the event of any retrial.

Assessment of Erin's evidence

In my view the evidence of Erin given before this Court lacked cogency and credibility. Quite frankly, I was unable to believe her. Her demeanour was unconvincing and she demonstrated an inability to say anything other than that the evidence she had put before the Court at trial constituted lies she was told to tell by her natural father. She denied knowledge of the diary which she had clearly identified at trial as her own and from which her mother had torn portion of a page. The evidence in relation to the diary was telling evidence at trial. Hofstee's evidence in relation to the words which could be deciphered from the following pages spoke eloquently of the reason why the first appellant might have been responsible for tearing the entry from the book.
Further, the statement made by Erin to Detective Constable Ellis on 10 June 1998 was a detailed account of the alleged assaults. It is difficult to imagine that this degree of detail (including the detail in relation to the diary) could have been the subject of a fabrication instilled into Erin by her natural father. During the course of her evidence Erin contended that she had no recollection of speaking to a woman police officer and a statement being taken from her. I was not satisfied that Erin's evidence in this regard was truthful.
I was concerned at the fact that when I asked Erin why she had told her grandmother that the evidence given at trial was untrue she gave the answer that she was "sick of living (David's) lies". As I have already pointed out, this answer coincided almost to the word with a paragraph in Mrs Bray's affidavit in which she said Erin had told her on 1 July 2000 "I am sick of living my father's lies". It seemed to me to be a remarkable coincidence that Erin gave this answer in her oral testimony before the Court. There were very few other answers that she gave that contained any direct statements at all. Most of her responses to cross‑examination were that she was unable to remember events that were being put to her.
It must also be remembered that Erin was extensively cross‑examined at trial about her natural father persuading her to lie in relation to the alleged assaults. This gave Erin the clear opportunity to reveal that fact if it were true. Instead, she rejected the proposition.
There is also the statement of Erin made to Detective Constable Van Der Sluys on 27 November 1998 wherein she stated that her grandmother had been persuading her to write "stuff in an exercise book" to the effect that her natural father had been hitting her whereas in fact it was not he who had been hitting the children, but their mother. I accept the submission of counsel for the respondent that this strongly suggests that Erin's affidavit and her testimony before this Court are the result of her being influenced to retract her evidence given at trial.

In all the circumstances I am unable to believe the evidence of Erin. I do not accept it as credible. Even if I were to consider the alternative test, namely, whether the evidence is apparently credible or at least capable of belief and whether a reasonable jury would or might believe it, I am of the same view. That is, I do not consider it apparently credible or capable of belief, nor do I consider that a reasonable jury would or might believe it. I form that view for the same reasons that I have set out in relation to the question of actual belief of Erin's new evidence.
In these circumstances I do not believe that the Court could be satisfied that Erin's evidence raises a doubt as to the guilt of the appellants. Nor do I consider that her evidence at trial has been shown to be so untrustworthy generally that it ought not to be allowed to enter into the reasons for any verdict of guilty. I would dismiss the appeals.
ROBERTS-SMITH J: I have had the benefit of reading the draft reasons for decision of the Chief Justice and of Miller J on this appeal. I respectfully agree with the facts as set out by Miller J and with the reasons expressed and conclusions reached by his Honour and with the additional observations of the Chief Justice, subject only to the following additional comments of my own.
E was obviously distressed and upset giving evidence on the appeal. Even when she was first called she was distressed and the Court had to adjourn until she could be brought in. Thereafter, her answers to questions even from counsel who called her were initially for the most part inaudible. When they were barely audible, they tended to be monosyllabic. She was obviously intimidated and upset by the experience of testifying from the witness box in the formal setting of the Full Court. Her evidence was no better given in cross‑examination. In the circumstances I would have great difficulty in characterising her demeanour on the appeal as necessarily demonstrating evasiveness or lack of credibility.
As has been observed, when she testified before the learned Magistrate, she did so by way of the closed circuit television arrangements mandated by s 106N of the Evidence Act 1906 (WA). There was a support person and court officer present with her in her location. Although an examination of the transcript shows a series of questions and answers, there were still numerous occasions on which E's answers or portions of them were shown simply as "indistinct" and the police prosecutor frequently had to ask her to speak up because he could not hear her. Indeed, after two pages of questions and answers, E got to a point at

which she obviously was not responding at all and the learned Magistrate had to adjourn the hearing until E was able to continue (AB 124). Thereafter, she did seem able to respond appropriately to questions (although there were still many references to "indistinct" in the transcript) and generally gave an account which reflected the content of her statement to the police.

In my view arrangements should have been made for E's evidence on the appeal to have been given by closed circuit television pursuant to s 106N of the Evidence Act. Senior counsel for the appellants indicated to us that those arrangements had not been made because his preference was to have child witnesses testify formally in open court wherever possible. To my mind however, that is not an approach consonant with the purpose and intent of the relevant legislative provisions.
As Miller J points out, one feature of this case is that it is not some independent witness but the complainant herself who now says the evidence she gave at trial was false. Milton v The Queen [2000] WASCA 25 was a case of the former kind in which an appeal was allowed because of evidence from a witness who did not come forward until after the applicant had been convicted, that the complainant had told her before the trial that she intended to lie and told her after the trial that she had done so, in order to secure the conviction of the applicant. That was held to satisfy the relevant test of fresh evidence, was not so inherently credible that it could be rejected out of hand and to be such that a reasonable jury might, if they accepted or did not reject it, consider that it so damaged the complainant's credibility that they were not prepared to rely upon her evidence to establish the appellant's guilt beyond reasonable doubt.

Wheeler v The Queen, unreported; CCA SCt of WA; Library No 940627; 10 November 1994 was a case of the latter kind, similar to the present in that it concerned retractions of her allegations by a complainant both before and after trial, but differing from the present in that when testifying before the Court of Criminal Appeal she maintained the evidence given by her at trial was the truth. In that case the complainant's initial allegation of incest and other sexual offences were contained in her statement to the police. She subsequently made two statements indicating those allegations were false. At trial she gave evidence essentially in accord with her statement to police. She was extensively cross‑examined about her two statements of retraction. Her's was the only direct evidence of the offences, although there was some independent evidence supporting some aspects of it. Despite this, the applicant was convicted by majority verdict of the jury. Following the convictions but before sentence, the complainant wrote yet another letter of retraction, this time in the form of a letter to the trial Judge. Before that, however, she had provided a victim impact statement confirming her evidence. Subsequent to the forwarding of her letter to the trial Judge, the complainant prepared another statement at her solicitor's office in which she stated that she had seen her father in prison and felt very sorry for him and wrote the letter because of the guilt she felt about him going to prison. She stated that what she had said in the letter was untrue and what she had said at trial was true. She gave evidence before the Court of Criminal Appeal in which she said that her evidence at the trial was true.
Following the hearing of the appeal the complainant wrote to the Court again retracting her evidence at trial and maintaining the offences had been committed by two other men whom she did not want to name. She did so again in a letter to another person some days later.
The submission made on behalf of the applicant was essentially that the various recantations taken together would raise a significant possibility that the jury, acting reasonably, would have acquitted the applicant had the fresh evidence been before it at trial.
In his judgment, Malcolm CJ (with whom Seaman and Anderson JJ agreed), saw it as significant that whenever the complainant had given evidence on oath in court, she had maintained the truth of the allegations. His Honour accepted that the complainant had stated at all times that she loved her father in spite of what he had done to her and that all the statements made by her following trial had been motivated by her desire to procure his release. His Honour concluded there was no significant possibility that the jury, acting reasonably, would have acquitted the applicant had all the evidence before the Court of Criminal Appeal been before the jury at the trial.
The present appeal was heard on 23 August 2001. The decision of the Court of Criminal Appeal in Pileggi v The Queen [2001] WASCA 260 was handed down on 29 August. There the appellant had been convicted of two offences of obtaining by false pretences. The offences arose out of two false claims for insurance following the burning of two motor vehicles. Evidence had been given by two of the appellant's accomplices. The appellant appealed but his appeal was dismissed. Sometime later, one of the accomplices acknowledged to the appellant that she had lied at his trial and agreed to see his solicitor. She did so, but it was not until more than one year later that she made a statutory declaration saying her evidence had been false. A subsequent appeal was heard on reference from the Attorney General. For practical purposes the facts of that case do not matter. All members of the Court found the witness's explanation for giving the allegedly false evidence at trial and for her decision to give different evidence on the appeal to be quite unsatisfactory. Malcolm CJ agreed with the statement of relevant principles as set out by Parker J and in particular:
"… that a critical consideration in such a case as this is the evaluation of the relevance, credibility and cogency of the retraction of the evidence given at the trial; the explanation why false evidence was given at the trial; the credibility of the reason why the witness has changed his or her testimony and the reasons why the present or current version of the evidence should be preferred to that given at the trial."
In his judgment, Parker J referred (at [45] to the following passage from Craig v The King (1933) 49 CLR 429 at 439 per Rich and Dixon JJ:
"If after a verdict of guilty the mere fact that a prisoner produced further relevant evidence required the Court to vacate the conviction and submit the question of the prisoner's guilt to another jury, then in a jurisdiction where perjury is rife great abuses would ensue. A Court of Criminal Appeal has thrown upon it some responsibility of examining the probative value of the fresh evidence. It cannot be said that a miscarriage has occurred unless the fresh evidence has cogency and plausibility as well as relevancy. The fresh evidence must, we think, be of such a character that, if considered in combination with the evidence already given upon the trial the result ought in the minds of reasonable men to be affected. Such evidence should be calculated at least to remove the certainty of the prisoner's guilt which the former evidence produced. But in judging of the weight of the fresh testimony the probative force and the nature of the evidence already adduced at the trial must be a matter of great importance."
On the same point his Honour further said (at [50] ‑ [51]):
"50 In a case such as the present, where the fresh evidence involves the retraction or recantation of sworn evidence given by the witness at the trial, there is every reason for great care to be taken in assessing the credibility and the cogency of the fresh evidence. As a matter of fact this is obviously so because the very foundation of the fresh evidence is an assertion by the witness that he or she gave false evidence on oath at the trial. When evidence is offered on that footing there is every reason for considerable circumspection about what is now offered as the sworn evidence of the witness. Very careful scrutiny is required especially as to the reasons now offered for giving the allegedly false evidence at trial and for the decision to give different evidence now. This is so not only as a matter of fact, but also because of the need to guard against the possibility of manipulation to which the administration of justice is so vulnerable in this respect.
51So it is that in the special circumstances of a retraction or recantation of trial evidence, the High Court observed in Davies & Cody v The King (supra) at 183 - 184:
'A declaration by a witness that he has committed perjury cannot possibly be accepted as a ground in itself for setting aside the result of a trial in which the witness has given evidence. If the contrary were held, the whole administration of both civil and criminal justice would be undermined. The subsequent discovery that some evidence (as in this case) is said by the witness who gave it to be false, or is actually proved to be false, cannot, as a general rule, be allowed as a ground in itself for setting aside a verdict or judgment. But if the verdict is open to objection upon a ground affected by such evidence, the case is different. It would not be wise to attempt to frame a universal rule even for such cases. As the Full Court indicates in its judgment, the subsequent statement that the original evidence is false may be explainable by pressure brought to bear upon a witness or by the operation of any one of an indefinite number of motives. Each case should be treated in relation to its own facts'."
and noted the judgment of the Full Court of Victoria in R v Gale [1970] VR 669 at 672 ‑ 673 in which that Court pointed out that where there has been a recantation by a witness of evidence given at trial, the most cogent explanation of why that had been so would be necessary before an appeal court would consider interfering and that in the absence of a completely acceptable explanation, the Court of Appeal would be most unlikely to accept the subsequent testimony in preference to that given at trial.
Parker J also referred to R v Bryer (1994) 75 A Crim R 456 in the course of making observations to the effect that it is not the case that the circumstance that a witness has retracted material or critical evidence given at trial must or should normally be accepted as warranting a re‑trial; nor may it be reasoned that in light of the retraction a re‑trial should be ordered because the retraction alone gives rise to a significant possibility that the verdict of the jury on a re‑trial might be different in light of the current evidence. His Honour said:
"A critical consideration in any such case is an evaluation of the relevance, credibility and cogency of the retraction; why was false evidence given at the trial, why has the witness changed his or her testimony, and why is the present version of the witness' account to be preferred to that given at the trial? There will be found to be "more than the mere fact of retraction" in the relevant sense where, from an examination of what the Court considers to be relevant, credible and cogent fresh evidence, retracting evidence given at the trial, in light of all the circumstances especially the evidence at the trial, it appears to the Court there is a significant possibility that the jury, acting reasonably, would have acquitted the appellant had the fresh evidence been before it at the trial. In such a case a fresh trial would normally be appropriate."
I respectfully agree with the analysis by Miller J leading to the conclusion that were this appeal to be allowed and a retrial ordered, the prosecution could hardly call E on the retrial. In my view it would be improper for the Crown to call her for the purpose of having her declared hostile and so getting her earlier evidence and statement before the court (Blewitt v The Queen (1988) 62 ALJR 503; Hall (1985) 18 A Crim R 329). The practical consequence, it seems to me, is that if this appeal were to be allowed on the basis that E is now maintaining that her evidence at trial was false and the offences of which she testified did not occur, then there should be no order for a retrial. It is in this context that I consider the view adopted by Fitzgerald P in Bryer, as explained by Miller J, to be the appropriate one.
In undertaking the examination of the evidence now given by E and her reasons for it, it is useful to begin with a review of some of the more salient features of the chronological sequence of events.
The events out of which the charges arose occurred during late May and early June 1998. The first account given by E was that the appellants had hit her and the other children. That account was given on 10 June 1998. It included reference to her having written about one of the incidents in her diary and the first appellant having torn out the relevant part of that page when she learned that E had done so. The appellants were charged on 24 June 1998 following which E and her brother and sister went to live with their father. Later, in October, the children were not returned to their father after an access visit to Josephine Bray, their maternal grandmother. Although there were custody orders in place at the time giving him custody of the children, Mrs Bray took them away in a caravan and kept them hidden for about four weeks. During this time they were kept from both their father and the police. In cross‑examination before us, Mrs Bray denied that she caused E to write anything down about these matters, but did say that E had done so herself. A copy of that document was produced as Exhibit 1 on the appeal. The document is in E's handwriting and is difficult to read. The typed "translation" of the document reads as follows:
"25th October 1998  (E)
It first started when David said to me 'tell to your teacher that Mum and Dad are belting you and [A] and [C] with the baseball bat and training belt and talk that Dad and belting [N] with the training belt.' I said nothing but I still told my teacher what David said. She write it down on a book, the book had lots of names of the whole class. She called on the telephone to Karen [Karen Bradbrook of Family & Children's Services, CANNINGTON) the next day Karen and her friend asks me, [C] and [A] about what's happening.
26th October 1998
At Mum's home I said Mum is belting us. She said I 'am going to ask, [C], [A] about what's happening at Mum's. She took me back to me classroom I did my work, the lady Karen and her friend went to [A's] classroom. Then they took [A] into the sick room and talked to [A] about the baseball bat and the ladies write it down. Then they went to get [C].
And talk about Mum & Dad belting us with the training belt belting and baseball bat. But what we said id (sic) what David said to say.   Then we said it about David threatened us by saying him and his Dad would belting, belting a lot of time if we tell anybody him and his Dad will put us to bed early and no food. His Dad took me when I was getting a chick I went across the lounge.
David's Dad called me over to him, no body was in the loungeroom only me and Grandad. Grandad touched me down my under pants. All of what him did was put his hands down mine. David hit me, [C] and [A] David his (sic: hit) us over the head on the bottom and sometimes him hit us on the head with his hand very hard. And we do not want to go to David's again because him and his Dad has been belting us and abusing us. Hitting and pushing and slapping and scaring us.
27th October 1998  (A)
Daddy has been doing the belings (sic) all of the time. Mum has not been doing the belting, bottom. Dad says all his lies.
27th October 1998  (A)
Daddy has been doing the belings (sic) all of the time. Mum has not been doing the belting, bottom. Dad says all his lies."
In the handwritten manuscript the words "baseball bat" have been written over numerous times so that they are dramatically highlighted in the text. The same applies to the words "and we do not want go (sic) to Davide agen". The children were later surrendered to police, apparently by some other person.
After that, on 24 November 1998, E made a further statement to police to the effect that she had been writing stuff in an exercise book with her nanna. She said in her statement that what she had written was that her father had been hitting her and the other children but he had not, their mother had. This statement was signed by E on 27 November 1998. In the statement she said:
"4.Mummy and nanna's been hiding us, mum came over and saw me when she wasn't supposed to.
5.We went bush, we stayed in an old man's house made out of old drums. We didn't have any power, we couldn't watch TV.
6.We travelled around in a van and had to be quiet, but we kept on making noise, if any body went past we had to bob down. Sometimes I had to sleep on the floor on rugs.
7.I now live in a house with Pam, my brothers and sisters live at someone else's place.
8.I was writing stuff in an exercise book with nanna. It says that dads been hitting us. My nanna would force me to write that daddies been doing things to us.
9.He hasn't been hitting us, mummy has.
10.Nanna said, 'Better write it. You will get in trouble.'
11.I wrote it because I thought that mum would start belting us again.
12.I didn't feel OK about this. My nanna and mummy call dad, David, we do too when we are with mummy and nanna.
13.I told people that nanna forced me to write all this.
14.None of the stuff I wrote about dad happened. I wrote things for [A] as well.
15.I want to live with my dad. I don't want to live with my mummy."
Claims that his father had persuaded the children to lie about being hit by the appellants had been made by the second appellant in his record of interview with the police. He and C were cross‑examined about that claim during the trial. E denied telling her cousins that her father had told her to lie in court (AB 14 ); one of the cousins was called for the defence and gave the following evidence (AB 223):
"Okay. All right. Well, do you remember talking to some police officers about what was said in that room that day?---Yes.
All right. Could you tell us what you - - did you - - well, let me - - no, let me ask you - - that's a terrible question. Did you talk to [E] that day in the room?---No.
All right. Did she say something about her dad?---Yes.
Yes, what did she say?---She said, 'I heard Daddy was telling her to lie'.
Yes, telling her to lie about what?---Telling her to lie in court or something.
Right. So dad was - -
HER WORSHIP: Sounds like we're getting into hearsay here, Mr Trowell.
MR TROWELL: What, that the complainant has told her that she'd lied about other matters?
HER WORSHIP: Statement made by … (indistinct) …
MR TROWELL: Well, let's not intimidate the witness unnecessarily.
(TO WITNESS): … can you still hear me?---Yes."
Yes, don't bother about the interruptions; just answer my questions, okay. So she told you that her daddy had told you to tell her to lie about when she went to court?---Yes.
Did she say what she was told to lie about?---No."
E's initial statement to the police was detailed - although again, that would not inevitably be a determining consideration because such statements are necessarily prepared by way of questions and answers and that process is not at all transparent in the outcome. For example, a leading question which produces either a simple yes or no will often be recorded as a narrative response which actually embodies the question.
Nor would I regard the finding of items such as the rolled up newspaper and the training belt as corroborative of the truth of the initial complaint. A complainant (including - and perhaps even particularly - a child complainant) fabricating allegations is quite likely to construct them by reference to other circumstances which are true in the sense that they are part of the complainant's ordinary experience.
In the end, the considerations which weigh particularly with me in the assessment of E's retraction of her evidence at trial are these.
First is the fact that in a context in which she had previously retracted her allegations in writing and it was alleged she had also told her cousins that her father had asked her to lie when the case came to court, when it was put to her at trial that her father had put her up to making false allegations about her mother she denied that.
Secondly, the detailed account given in her initial statement to police had the flavour of verisimilitude; the detail was not fanciful, clever nor surprising. It dealt with ordinary aspects of the incidents described which were unlikely to be invented.
Third (the most significant to me), was the independent and objective evidence of Sergeant Hofstee confirming that the writing on that portion of the page which had been torn from the diary had in fact referred to E's mother taking the baseball bat. There was simply no explanation for this objective evidence consistent with anything other than the truth of her initial account to the police.
Finally the diary was found on top of the refrigerator in the kitchen, which is not a place where a child would have left it.
Under the circumstances, I am driven to the conclusion that E's new version of events, and her explanation for raising it with her maternal grandmother on 1 July 2000 and the circumstances in which that was said to have occurred, lacks cogency and credibility. I think there are the same difficulties about accepting the evidence of Mrs Bray in this regard. I do not consider a jury could regard the evidence now being given by E as plausible. The explanation of why and how she came to recant in the presence of her grandmother raises serious concerns about the credibility of that recantation, as does the less than clear account of exactly what her father is alleged to have told her to say, when and in what circumstances, which she has subsequently given and repeated in this Court.

Having regard to the whole course of events, the evidence given at trial and the other matters to which I have referred, I do not consider the evidence of E's new version of events to be sufficiently relevant, cogent and plausible to raise a doubt as to the guilt of the appellants. I would accordingly dismiss the appeal.