BXJ v The State of Western Australia
[2010] WASCA 240
•23 DECEMBER 2010
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: BXJ -v- THE STATE OF WESTERN AUSTRALIA [2010] WASCA 240
CORAM: PULLIN JA
BUSS JA
MAZZA J
HEARD: 5 NOVEMBER 2010
DELIVERED : 5 NOVEMBER 2010
PUBLISHED : 23 DECEMBER 2010
FILE NO/S: CACR 67 of 2010
BETWEEN: BXJ
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :DEANE DCJ
File No :IND BUN 124 of 2009
Catchwords:
Criminal law - Appeal against conviction - Fresh evidence - Convictions set aside - Whether retrial should be ordered or judgments of acquittal entered
Legislation:
Criminal Appeals Act 2004 (WA), s 30(5), s 39(1), s 39(3), s 40(1)(e)
Result:
Appeal allowed
Convictions quashed
Judgments of acquittal entered
Category: B
Representation:
Counsel:
Appellant: Mr M J Joubert
Respondent: Ms L Petrusa
Solicitors:
Appellant: Michael John Joubert Barristers and Solicitors
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Anderson v The Queen (1991) 53 A Crim R 421
Beamish v The Queen [2005] WASCA 62
Director of Public Prosecutions (Nauru) v Fowler [1984] HCA 48; (1984) 154 CLR 627
Dyers v The Queen [2002] HCA 45; (2002) 210 CLR 285
Easterday v The Queen [2003] WASCA 69; (2003) 143 A Crim R 154
Gallagher v The Queen [1986] HCA 26; (1986) 160 CLR 392
Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298
Lawless v The Queen [1979] HCA 49; (1979) 142 CLR 659
McHenry v The State of Western Australia [No 2] [2010] WASCA 71
Mickelberg v The Queen [1989] HCA 35; (1989) 167 CLR 259
R v Taufahema [2007] HCA 11; (2007) 228 CLR 232
Ratten v The Queen [1974] HCA 35; (1974) 131 CLR 510
Reid v The Queen [1980] AC 343
Rinaldi v The State of Western Australia [2007] WASCA 53
Table of Contents
Pullin JA's reasons.................................................................................................................... 5
Buss JA's reasons..................................................................................................................... 5
The grounds of appeal
The application to adduce additional evidence in the appeal
The applicable statutory provisions
The common law distinction between new and fresh evidence
The State's case as opened at the trial
The defence case as opened at the trial
H's evidence in the interview of 21 September 2006
H's evidence in the interview of 15 November 2006
H's oral evidence at the trial
H's mother's witness statement
The evidence of H's mother at the trial
The evidence of C at the trial
The trial judge's summing up
The merits of ground 1 of the appeal
The merits of ground 2 of the appeal
Should this court order a re‑trial or enter a judgment of acquittal?
Conclusion
Mazza J's................................................................................................................................. 30
PULLIN JA: I agree with Buss JA.
BUSS JA: On 12 March 2010, the appellant was convicted, after a trial in the District Court before Deane DCJ and a jury, on three counts in an indictment which alleged that:
(1)Between 1 October 2005 and 30 October 2005 at [a town in the south-west of Western Australia] [the appellant] indecently dealt with [the complainant], a child under the age of 13 years, by touching her inner thigh;
(2)Between the same dates and at the same place [the appellant] indecently dealt with [the complainant], a child under the age of 13 years, by touching her vagina;
(3)Between the same dates and at the same place [the appellant] indecently dealt with [the complainant], a child under the age of 13 years, by rubbing his penis on her back,
contrary to s 320(4) of the Criminal Code (WA).
The complainant, H, was born on 17 May 1995. She was aged 10 years when the alleged offending occurred and was 14 at the time of the trial. The appellant was born on 19 April 1977. He was aged 28 years when the alleged offending occurred and was 32 at the time of the trial.
The appellant's case at trial was that the alleged offending conduct never occurred. The appellant did not give evidence at the trial, but his counsel called a woman, C, who had been the appellant's girlfriend at material times, as a witness.
The appellant gave notice to the State before the commencement of the trial of his intention to adduce alibi evidence in relation to the counts in the indictment. See s 62 of the Criminal Procedure Act 2004 (WA).
At the trial C gave evidence that between August 2005 and 11 November 2005 she was travelling on holiday in the north-west of Western Australia with the appellant and, during that period, the appellant spent a week on a fishing vessel known as the 'Ocean Raider'. The appellant's trial counsel tendered in evidence through C various undated photographs, one of which depicted the appellant on the vessel in question. Plainly, the jury, by their verdicts, rejected the alibi evidence.
The trial judge imposed sentences of immediate imprisonment, as follows:
(a)count 1: 8 months;
(b)count 2: 12 months; and
(c)count 3: 10 months.
Her Honour ordered that the sentences be served concurrently. The total effective sentence was therefore 12 months' immediate imprisonment. The sentences were back‑dated to commence on 12 March 2010, being the date on which the appellant was taken into custody for the offences. A parole eligibility order was made.
The appellant appealed against his convictions. On 5 November 2010, this court heard the appeal, granted leave to appeal on ground 1 of the appellant's grounds of appeal, and allowed the appeal. The convictions were set aside. The court reserved its decision on whether a re‑trial should be ordered or judgments of acquittal entered. The appellant was released on bail. We said that reasons for decision (including reasons as to whether there should be a re‑trial or not) would be published later. These are my reasons.
The grounds of appeal
The appellant relies on two grounds of appeal, which read:
1.There was a miscarriage of justice. (Section 30(3)(c) Criminal Appeals Act 2004).
a.The prosecution case was that the alleged offending took place in [the town] during October 2005.
b.The defence gave notice of an alibi defence and the prosecution made the time of the offence a material part of the offence itself.
c.The defence lead [sic] evidence of [the] Appellant's de facto/girlfriend that during the period August 2005 to 11 November 2005 she was travelling on holiday in North West Australia with the Appellant and during that period, Appellant spent a week on a fishing vessel the 'Ocean Raider'. Various undated photographs were tendered in evidence, one which depicts the appellant on the said vessel.
d.New evidence has come to hand that the 'Ocean Raider' was a commercial fishing vessel that filed a 'Fish Trawl Daily Log' with the Department of Fisheries in 2005 in which the Appellant was listed as 'Tuckery ‑ [B]' who sailed with the vessel from 26 October 2005 to 1 November 2005 from Wickham. The skipper P Harrison is willing to testify by affidavit or in Court that the Tuckery '[B]' in his log was in fact the appellant.
e.Such evidence, if admitted, would confirm the appellant's presence in North Western Australia at the relevant time and thereby his innocence or raise serious doubts as to his guilt.
2.Alternatively the conviction is unreasonable or unsupported by the evidence in terms of section 30(3)(a) Criminal Appeals Act 2004.
a.The defence tendered photographic evidence of the appellant in the North West of Australia which coupled with the documentary evidence tendered by the appellant's de facto/girlfriend shows that the couple were in fact in North West Australia at all material times and that the conviction is accordingly unreasonable or unsupported by the evidence. (original emphasis)
On 9 July 2010, Mazza J granted leave to appeal on ground 2 and referred the application for leave to appeal on ground 1 to the hearing of the appeal.
The application to adduce additional evidence in the appeal
The appellant applied for leave to adduce additional evidence in the appeal. On 9 July 2010, Mazza J granted that leave. The additional evidence comprises an affidavit of Paul Barry Harrison sworn 14 May 2010 (who is, and was during 2005, the skipper of the fishing vessel, 'Ocean Raider') and the vessel's log for the period from 26 October 2005 to 1 November 2005.
Mr Harrison's affidavit reads, relevantly:
2.I am the current skipper of the fishing vessel 'Ocean Raider' and was the skipper of the vessel during 2005.
3.My employer is Westmore Seafoods of Western Australia.
4.During October 2005 I took on an unpaid crewman named [the appellant] on the fishing voyage that commenced on the 26th October 2005 and ended on the 1st November 2005.
5.An unpaid crewman is referred to in the industry as a 'tuckery'.
6.I attach a certified copy of the Fish Trawl Daily Log marked 'PBH1' that I completed at the time and which was lodged with the Department of Fisheries in accordance with the local fishing laws.
7.The daily log was completed by me in my capacity as skipper.
8.I also attach a photocopy of a photograph of [the appellant] marked 'PBH2' and confirm that the person in the photograph is [the appellant] and the same person recorded in my log as being at sea with me during the period 26 October 2005 to 1 November 2005.
The daily log annexed to Mr Harrison's affidavit confirms that between 26 October 2005 and 1 November 2005 the crew of the vessel included 'Tuckery ‑ [B]'.
The State did not oppose the appellant's tender of Mr Harrison's affidavit, did not apply to cross‑examine him, and conceded that the photograph annexed to the affidavit was of the appellant. It was common cause that on 26 October 2005, the 'Ocean Raider' sailed from Point Samson in the north‑west of Western Australia. The court received the affidavit as additional evidence in the appeal.
The applicable statutory provisions
This court must decide an appeal on the evidence and material that were before the lower court: s 39(1) of the Criminal Appeals Act 2004 (WA). However, s 39(1) does not affect this court's power in s 40 to admit evidence: s 39(3). For the purposes of dealing with an appeal, this court may 'admit any other evidence': s 40(1)(e). The power under s 40(1)(e) was not intended, at least in relation to appeals against conviction, to override the common law distinction between new and fresh evidence. That distinction continues to apply. See McHenry v The State of Western Australia [No 2] [2010] WASCA 71 [39] (Owen JA, Jenkins J agreeing) and the cases there cited.
Section 30(5) of the Criminal Appeals Act provides, relevantly, that if this court allows an appeal against conviction by an offender, it must set aside the conviction for the offence in question and must:
(a)order a trial or a new trial; or
(b)enter a judgment of acquittal for the offence.
The common law distinction between new and fresh evidence
At common law, there is, of course, a well-established distinction between new evidence, on the one hand, and fresh evidence, on the other. New evidence is evidence that could, with reasonable diligence, have been obtained or discovered for use at the trial. Fresh evidence is evidence which either did not exist as at the date of the trial or could not, with reasonable diligence, have been obtained or discovered for use at the trial. See Beamish v The Queen [2005] WASCA 62 [9].
In Lawless v The Queen [1979] HCA 49; (1979) 142 CLR 659, Mason J said, in relation to new evidence:
However, it is not permissible for a court of criminal appeal to set aside a conviction if the newly adduced evidence, not being fresh evidence strictly so called, reveals no more than a likelihood that the jury would have returned a verdict of not guilty. Two considerations operate to bring about this result. The first is that in a criminal trial the accused is entitled to decide how his case will be conducted, in particular, what evidence he will call. He makes this decision in the light of the knowledge that he is tried but once, unless error or miscarriage of justice results in a successful appeal. He cannot therefore conduct his defence by keeping certain evidence back in the expectation that, if he is convicted, the existence of the uncalled evidence will provide a ground for a second trial at which a different or refurbished defence may be presented. Accordingly, an accused person, if convicted, generally cannot complain of a miscarriage of justice if he deliberately chooses not to call material evidence, it being actually available to him at the time of the trial, or if he fails to exercise reasonable diligence in seeking out material evidence.
The second consideration is that there must be powerful reasons for disturbing a conviction obtained after a trial which has been regularly conducted … If the evidence newly adduced falls short of establishing that the accused should not have been convicted, there is no overwhelming reason why the conviction, regularly obtained after a fair trial should not be allowed to stand (675 ‑ 676).
In Mickelberg v The Queen [1989] HCA 35; (1989) 167 CLR 259, Mason CJ expressed the test to be applied by an appellate court, in deciding whether to set aside a conviction on the ground of fresh evidence, as follows:
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. This test was endorsed by four of the five Justices in Gallagher v The Queen ((1986) 160 CLR 392). Deane J and I (at 402) considered that the test was best expressed in those terms. Gibbs CJ (at 399) expressed his substantial agreement with the statement, although his Honour emphasised that 'no form of words should be regarded as an incantation that will resolve the difficulties of every case'. Dawson J said (at 421) that the court would need to conclude that 'a jury might entertain a reasonable doubt about the guilt of the appellant'. His Honour went on to say (at 421) that in his view the use of the expression 'significant possibility' did not involve a different standard. I am in agreement with those statements (273).
The approach of an appellate court to the consideration of fresh evidence will be different if the appellant submits that a conviction should be set aside outright (and there should not merely be a retrial) in that innocence is shown, or the existence of an appropriate doubt established. See Ratten v The Queen [1974] HCA 35; (1974) 131 CLR 510, 518 ‑ 519 (Barwick CJ), and the examination of the relevant issues by Steytler J in Easterday v The Queen [2003] WASCA 69; (2003) 143 A Crim R 154 [207] ‑ [211].
In Rinaldi v The State of Western Australia [2007] WASCA 53, Steytler P (Wheeler & Pullin JJA agreeing) reviewed the authorities concerning the admissibility at common law of new and fresh evidence on appeal, and said [81] ‑ [82]:
It has been suggested that the distinction between fresh and new evidence is not as significant as it once was: see, for example, Nolan v The Queen, unreported; CCA SCt of WA; Library No 970260; 22 May 1997, per Malcolm CJ with whom Pidgeon and Murray JJ were in agreement. However, as this Court has noted in Easterday v The Queen (2003) 143 A Crim R 154 at [204] and in Beamish at [13], the distinction is one which is soundly based in principle and which continues to be recognised, even though there may be somewhat greater latitude in the case of criminal trials than in the case of civil trials: see Ratten v The Queen (1974) 131 CLR 510 at 517; Mickelberg (High Court) at 301; De La Espriella‑Velasco v The Queen (2006) 31 WAR 291 at [150] ‑ [153].
Where the evidence is fresh, the test appears to be whether there is a significant possibility that, in the light of all of the admissible evidence (including that given at the trial), a jury, acting reasonably, would have acquitted the accused: see Gallagher (399, 402, 421); Mickelberg (273, 275, 302); Beamish [14].
I respectfully agree with his Honour's observations.
The State's case as opened at the trial
The prosecutor opened the State's case at trial, relevantly, as follows.
In July 2005, the complainant, H, was living in a house in a town in the south‑west of Western Australia with her mother, father, younger brother and younger sister.
In about July 2005, the appellant, who was H's mother's first cousin, came to stay with H's family. He stayed with the family for about five or six months from July 2005 to December 2005. He slept in a room at the back of the house. The appellant got on well with the children.
One evening in October 2005, H's mother and father went out to a local hotel. The mother's recollection was that they were celebrating her husband's birthday. The prosecutor told the jury that his birthday was in 'late October' (ts 30). H's recollection was that her parents went out to a local hotel to celebrate a family friend's birthday. In any event, the mother and the father went out for the evening together. The appellant babysat the children. This was the first occasion on which the mother had asked the appellant to babysit 'over a whole evening' (ts 31). Previously, she had left the children with him for brief periods; for example, while she went shopping.
When their parents left the house the children were in bed but not asleep. Soon after their parents left, H and her younger sister, who shared a room, got up. The appellant was in the kitchen smoking a cigarette and drinking beer. H and her younger sister asked him whether they could watch a DVD. He agreed.
H and her younger sister went to the lounge room and placed a mattress on the floor. They commenced watching the film. The appellant then joined them on the mattress with his beer. The three of them lay together under a blanket. The younger sister, who was aged 6 years, lay behind the appellant and H. According to H, the offending then occurred. It involved the appellant touching her inner thigh (count 1), placing his hand inside her underpants and touching her vagina (count 2) and rubbing his penis against her lower back (count 3).
The younger sister was unaware that 'anything was going under the blanket in front of her' (ts 32). She was playing with a telephone and, intermittently, watching the film. The younger brother was asleep in bed.
The parents returned home after midnight. The appellant opened the front door of the house for them. By this time, H and her younger sister were in bed again.
The next day, H came to her mother's room and handed her a folded piece of paper. On the paper H had written that the appellant had touched her on the inside of her leg and on her vagina during the previous evening while her parents were out. The mother attempted to speak to H about the incident, but H 'didn't say much more than that at the time' (ts 33). Some time later, the mother destroyed the note. After speaking to her husband and a friend, the mother 'kept an eye on' the appellant, but she did not confront him and did not report the matter to the authorities. She thought that the touching had been accidental.
A number of weeks later, the appellant left the house.
In about June 2006, H raised the incident with her mother again. Her father had been talking to the children about a news story concerning child abuse. H became upset and, in essence, raised the incident with her mother again, and said that the touching by the appellant on the evening in question had been deliberate. She also gave her mother more details about what had happened. The mother then consulted the Department of Community Services and the matter was reported to police.
H was interviewed by police on 21 September 2006 and, again, on 15 November 2006. Her answers and statements during these interviews were visually recorded and played to the jury at the trial as the majority of her evidence‑in‑chief.
Police were unable to locate the appellant for some time. He was not charged until 17 July 2009.
The State called three witnesses, namely, H, her mother and Detective Mark Tweeddale, who was the police officer with the overall conduct of the investigation.
The defence case as opened at the trial
Counsel for the appellant told the jury in opening that the counts in the indictment allegedly occurred on a Friday night some time in October 2005. Counsel said that during October 2005 the appellant 'was in the north‑west of Australia with his girlfriend and he could not have committed those offences in [the town in the south‑west of Western Australia] in October 2005' (ts 35).
The defence was that not only did the sexual abuse not take place, but that at the time of the alleged offences the appellant was with his girlfriend in the north‑west of Australia (ts 36).
H's evidence in the interview of 21 September 2006
During the interview on 21 September 2006, H told police about the nature of the sexual offending that had allegedly occurred (ts 10 ‑ 11). As to when the offending occurred, H said:
Q. Okay. So you said mum and dad went out for the night and [the appellant] babysat you and your sister, [E], who was six at the time and you were 10?
A. Mm mm.
Q. So you said it was last year in ‑ ‑ in October. You think it was in October?
A. I'm pretty sure it was October (ts 12).
A little later, she was questioned further about the timing of the alleged offences:
Q. I just want to establish when this happened, okay? You said that you think it was October. Is that right?
A. Yeah.
Q. What makes you think that it's October?
A. Well, I remember it happening around October so I'm pretty sure it's in October.
Q. So what makes you remember though that it was October?
A. I don't know.
Q. In what year?
A. 2005.
Q. Okay. Okay. So you're pretty sure it's October but we need to, I guess, establish that ‑ ‑ why you think it's sort of that time period. Can you remember ‑ ‑ you know Christmas is in December?
A. Mm mm.
Q. So would you say it happened before Christmas?
A. Yeah. Yeah (ts 14).
H was asked about where her parents went on the night in question:
Q. [H], you said that your mum and dad went out that night? Where were they going?
A. I think they were at the pub or [M's]? and [L's]?
Q. [M] and [L's]? Were they going out for a special reason?
A. Yeah, I think it was Nugget's birthday. Yeah.
Q. And what's Nugget's real name?
A. Nugget.
Q. Is that how you know him, just as Nugget?
A. Mm mm (ts 16).
H told the police officers that she informed her mother what had happened on the day after the alleged offending occurred. She gave her mother a note which, according to her recollection, read:
Last night me and [E] asked to watch TV with [the appellant] and [the appellant] was touching my fanny (ts 83).
H reiterated that she told her mother 'the next morning after it happened in October' (ts 84).
H's evidence in the interview of 15 November 2006
During the interview on 15 November 2006, H said that the alleged offending 'happened in October' (ts 19, 21).
The police officers questioned her about the timing of the incident, and where her parents went on the night of the offending, as follows:
Q. Just a couple of things, when did it happen?
A. October.
Q. What year?
A. 2005.
Q. Okay. And why do you remember it was in October 2005?
A. I just know it was last year.
Q. It was last year?
A. Mm mm.
Q. Okay. What about your mum and dad? Where were they going? You said they went out, where did they go?
A. I don't know. I think they went to Nugget's birthday ‑ ‑
Q. Okay.
A. ‑ ‑ or the pub or something because I asked mum where they went a couple of weeks ago and she said 'I can't remember, I think we did go to Nugget's birthday or something'.
…
Q. Okay. I do have a question, I'm still a little bit unsure about how you know it was October. Is there anything that you can remember why it was October?
A. No, I just know it was October.
Q. Okay. Do you remember what time ‑ ‑ what day it was?
A. No, I can't remember.
Q. No?
A. I think it was a Tuesday, I don't know.
Q. Why do you think Tuesday?
A. I don't know, I just remember it being a school night or something. I'm pretty sure it was a Saturday night though. Yes, I think it was a Saturday night (ts 22‑ 24).
H's oral evidence at the trial
H gave oral evidence at the trial, in addition to the evidence in the visually recorded interviews.
H's additional evidence‑in‑chief did not deal with when the alleged offending occurred.
There was, however, this cross‑examination:
Why do you say that these events occurred in October 2005?‑‑‑I remember them happening in October 2005.
Where were you living in October 2005?‑‑‑At my dad's house and my mum's (ts 57).
Counsel for the appellant returned to this issue later in his cross‑examination:
What would you say if I were to suggest to you that [the appellant] and his girlfriend [C] spent most of 2005 together, and particularly in September, October and the early part of November 2005, they were up north in north‑western Australia?‑‑‑No, that's not true.
If I suggested that [the appellant] never babysat you at all in 2005, what would you say?‑‑‑I would say that's not true.
You what?‑‑‑That's not true (ts 62 ‑ 63).
H's mother's witness statement
The prosecution brief included a witness statement of H's mother.
In her witness statement, the mother said, relevantly, that:
In October 2005, on a Friday, my husband … and I went to the [local hotel] [6].
This statement did not contain any other evidence as to when, specifically, during October 2005 she and her husband went out to the hotel. Also, she did not make any reference in her statement to the reason why they went out. In particular, she made no mention of her husband's birthday.
The mother also said in her witness statement that on the next day after the Friday night her daughter, H, gave her a handwritten note about what she alleged had happened while the appellant was babysitting.
The evidence of H's mother at the trial
H's mother gave evidence that the appellant came to live with her, her husband and her children in '2004, 2005' (ts 79). The prosecutor then told her that she needed to be 'a bit more specific' (ts 79). H's mother then said that the appellant stayed with them for 'probably six months, on and off' from 'around June 2005' (ts 79).
The mother gave this evidence about whether during this period the appellant stayed at her home on a 'full‑time' basis:
Where did he sleep generally?‑‑‑We had a sleepout, a back room.
For the time that he was there, was he there full‑time?‑‑‑He'd go away occasionally on weekends, and stuff like that, yeah.
Where would he go for the weekend?‑‑‑I'm not exactly sure.
Did he go away for any longer periods that you recall?‑‑‑No, not for any length of time, no.
On holiday perhaps?‑‑‑Not in that period, I don't think.
Was he working during the time that he stayed with your family?‑‑‑No.
So was he contributing to the household?‑‑‑Not financially, no.
Did he have a girlfriend at that time?‑‑‑Yeah, he did have a girlfriend, yes.
What was her name?‑‑‑[C].
Do you know her surname?‑‑‑No (ts 80).
The prosecutor examined the mother about the evening in October 2005 when she and her husband had gone out to a hotel in the town and left their children in the appellant's care:
Did you ever leave the children with him?‑‑‑Not very often. If I had to go down to the shops, you know, I would duck down to the shops, or something, but there was only one real occasion that I got him to look after them at night‑time.
When was that occasion?‑‑‑October 2005.
What makes you say that date?‑‑‑Because I'd taken my husband out for his birthday.
When is your husband's birthday?‑‑‑27 October.
Do you recall what day of the week it was?‑‑‑It was a Friday we went out.
Where did you go?‑‑‑Just to the [town] Hotel.
Were the children up when you left?‑‑‑No, I'd put them to bed before I left. They were awake, but in bed.
Do you remember what time you and your husband left?‑‑‑Probably around 7.00.
What was [the appellant] doing when you left?‑‑‑He was just in the lounge, watching TV.
What was the set‑up in the lounge in relation to furniture?‑‑‑It just had the normal lounge suite, TV unit, and there was a mattress on the lounge floor.
What was that for?‑‑‑The kids used to just pull it out and lay on it while they were watching TV.
Did [the appellant] ever sleep on that mattress?‑‑‑On occasions he probably did, yeah.
What time do you recall you and your husband returning home?‑‑‑It would have between 1 and 2 am.
How did you get into the house?‑‑‑[The appellant] let us in (ts 81).
In 2005, 27 October was a Thursday.
The mother then spoke about the note which H gave her the next day:
[W]hat happened the next day?‑‑‑[H] came in to me and she said, 'Mum, I've got a note for you'. She just came into my bedroom. She seemed really embarrassed and nervous, but she just gave me the note and just ran out.
Can you describe the note? Was it in an envelope, or a loose bit of paper?‑‑‑No, just a little bit of paper folded up.
And who had written on it?‑‑‑[H].
Do you recall what was written in the note?‑‑‑She told me that while they were watching TV they were laying on the mattress and [the appellant] had touched her leg, near her vagina.
DEANE DCJ: I'm sorry, could you repeat that? I'm trying to write down what you're saying?‑‑‑Sorry.
While they were watching TV. This is to the best of your recollection now?‑‑‑Yes.
I have got that, and what did you say after that?‑‑‑She was just laying on the mattress with [the appellant], watching TV, and he had touched, like, the inside of her leg and across the vagina (ts 82).
Counsel for the appellant cross‑examined the mother about the appellant's alibi:
How long do you say he stayed at your house from July 2005?‑‑‑It would've been about six months.
Six months?‑‑‑Yeah.
So that would take it through to December 2005?‑‑‑Yes.
Was he there continuously?‑‑‑I think he went away for the occasional weekend.
Do you recall [the appellant] and his girlfriend going up North for an extended holiday?‑‑‑Yes.
You remember that?‑‑‑Yes.
Do you remember when they went there?‑‑‑As far as I can remember, it was about the second week of December 2005.
The second week in December in?‑‑‑2005.
I suggest to you that they actually went up there a lot before then. In fact, they left in September?‑‑‑Okay. I don't remember that.
Do you remember that [the appellant] had a grandfather that lived in Pinjarra that died in 2005?‑‑‑Yes.
You remember that?‑‑‑Yes.
He died on 4 September 2005, didn't he?‑‑‑That's right.
And you went to the funeral with your husband and your children?‑‑‑Yes.
So that was the second week in September?‑‑‑Yes.
Can you remember whether [the appellant] was living with you at that time?‑‑‑Yes.
DEANE DCJ: Does that mean yes, you remember, or yes, he was living with you?‑‑‑Yes, I remember him living there.
JOUBERT, MR: So did he drive up with you to the funeral?‑‑‑No, he was with [C].
Yes?‑‑‑And I remember him being there, being with us, because it was me that actually helped to organise for him to come, because at first he wasn't actually welcome to go to the funeral, so I supported him, and he did come.
I suggest to you that he actually drove down from Perth to that funeral?‑‑‑Well, he may very well have.
And he delayed his holiday up North to go to the funeral?‑‑‑I don't remember that.
You can't remember that. Would you agree that both [C] and [the appellant] returned from their trip up North and spent three days with you in December 05?‑‑‑I don't remember that.
That was in your Arnott Street house, with your husband and yourself?‑‑‑I don't remember him coming back from up North and visiting. I remember them leaving around the start of December (ts 87 ‑ 88).
The evidence of C at the trial
C gave evidence that in early February 2005 she drove the appellant to Lancelin where he was going to stay with a friend and obtain work. According to C, the appellant remained working in Lancelin until August 2005, when she collected him and drove him back to Perth. C said that while the appellant was in Lancelin, she visited him regularly.
According to C, in about August 2005 she sold her house in Perth, and upon the appellant's return from Lancelin she stayed at a hotel in Scarborough with him. Also, at about this time, she bought a Nissan Patrol vehicle, which she intended fitting out for the purpose of travelling to the north of the State on holiday with the appellant. However, their departure on holiday was delayed as a result of the death of the appellant's grandfather, who died on 4 September 2005.
The funeral was in Mandurah. C drove from Perth to the funeral with the appellant. After the funeral she returned to Perth with the appellant. Upon returning to Perth, she and the appellant 'went up north' (ts 99). They went to Shark Bay and 'done the journey, my holiday' (ts 99). Initially, they intended to travel to Darwin, but in the event they did not travel further north than Point Samson (ts 100).
Counsel for the appellant tendered through C numerous documents which showed that on various dates during September and November 2005 C was in the north‑west of Western Australia.
C said in evidence that a set of photographs of the Shark Bay area, which were received in evidence, depicted the appellant, and were taken by her 'close to October, beginning of October maybe' 2005 (ts 105). C's attention was drawn to a date on the photographs, being 12 October 2005. She said that this was the date on which she had the photographs developed, and not the date on which she took them (ts 106).
C then gave evidence about another set of photographs:
JOUBERT, MR: The next photographs have Point Samson written on the bottom. Are those your photographs?‑‑‑They are.
Who took them?‑‑‑I did.
In the photographs there's a picture of a trawler, and some fishing. Can you tell us about that?‑‑‑[The appellant] went out on a trawler for five to six days, up in Point Samson, and then they gave him heaps of fish for doing so.
Did you not go with him on the trawler?‑‑‑I could have went, but I seriously wasn't up to it.
You're not a good sailor?‑‑‑Yeah, it wasn't my type of holiday.
In the other photographs, there's a vehicle there. Is that your four by four vehicle?‑‑‑That's it, yep.
Just remind us, when did you purchase that vehicle?‑‑‑I paid for it on 1 September.
In the vehicle, there's a photograph of somebody sitting in the vehicle there. Who is that?‑‑‑That's [the appellant]. He was the driver.
Did he drive you all the time?‑‑‑He drove me everywhere. The only time I drove was when he was on that trawler (ts 106).
C maintained that while she was on holiday in the north‑west of Western Australia between September 2005 and December 2005 the appellant was with her, except for the period of five to six days when he was on the trawler.
The prosecutor sought to attack C's credit by asserting that she had a strong vested interest in the outcome of the trial and was in fact biased (ts 117). C admitted that she had been in a relationship with the appellant and that they had a child aged 2 years 6 months (ts 112). Their relationship ended in August 2008 but they were proposing to renew it (ts 112). She described the relationship as being 'on hold pending what happens to [the appellant] as a result of [the trial]' (ts 112). C admitted that the documentary evidence she had provided did not establish that the appellant was with her in the north‑west of the State in October 2005. For example, there was no digital date on the photographs (ts 115). C admitted having financially supported the appellant and having 'looked after' him in the past (ts 116). She admitted that she had a strong vested interest in the outcome of the trial 'for her child's future', but she denied that she was biased (ts 117).
The trial judge's summing up
The trial judge directed the jury in her summing up that they could not convict the appellant on any count unless the State proved beyond reasonable doubt that he was present in the town in the south‑west of Western Australia during the month of October 2005. Her Honour said, relevantly:
As I have said, you will have a copy of the indictment in the jury room and you will see that the indictment alleges that these three offences occurred on a date unknown but between 1 October 2005 and 30 October 2005 at [the town in the south‑west of Western Australia]. Strictly speaking, the time and place of an alleged offence is not an element. You remember I have been talking about the state having to prove the elements of the offence or charge laid? Well, strictly speaking time and place aren't elements. They're what we call particulars.
When the state lays a charge against someone like [the appellant], on the indictment they have to say with some particularity or some detail where and when they allege the offence was committed and they obviously have to do that to enable the accused person to come along to court and meet the allegations laid against him.
It's a matter for you whether the state has in fact identified the occasion on which these alleged offences are said to have occurred in the sense that while there is no real dispute regarding the place, being [the town in the south‑west of Western Australia] ‑ nobody has said, 'Well, if anything happened,' which of course the defence say is not the case, they deny that anything happened, but, 'If anything happened, it happened somewhere other than [the town in the south‑west of Western Australia].'
There's no real dispute about place, but there is an issue as to time or the time frame. The accused, as I have said, denies that he did anything of the nature alleged at all but, further, the defence on behalf of the accused denies that [the appellant] was physically present in [the town in the south‑west of Western Australia] and living in the complainant's home in the month of October 2005. It is said that at that time he was in the north‑west with [C].
In the context of this particular trial, the way it has been run and the way the evidence has unfolded, the state would have to satisfy you beyond a reasonable doubt that the accused man … was present in [the town in the south‑west of Western Australia] during the month of October 2005 when it is alleged that the incidents on the indictment occurred. They would have to disprove or negative that he was elsewhere during that period as [C] asserted he was in her evidence (ts 145). (emphasis added)
The merits of ground 1 of the appeal
Where an offender is given leave to rely on additional evidence in an appeal against conviction, the evidence will be fresh (as distinct from new) if, relevantly, the evidence could not, with reasonable diligence, have been obtained or discovered for use at the trial. Great latitude must be extended to an offender in determining what evidence, in his or her own interest, he or she could have had available at the trial. See Ratten (517) (Barwick CJ).
In the present case, the additional evidence in the appeal, comprising Mr Harrison's affidavit and the vessel's log for the period from 26 October 2005 to 1 November 2005, was evidence which could not, with reasonable diligence, have been obtained or discovered by the appellant for use at the trial. The additional evidence is therefore fresh rather than new. My reasons for this opinion are as follows.
First, H's evidence was that the alleged offending conduct occurred on a night in October 2005. She did not identify the night in question with any greater precision. H thought her parents went out to celebrate the birthday of a family friend, Nugget.
Secondly, H's mother, in her witness statement, merely said that she and her husband went to the local hotel on a Friday night in October 2005. Her witness statement did not condescend to any greater particularity about the date. Also, her statement did not mention any reason why she and her husband went out on the night in question. No reference was made to her husband's birthday.
Thirdly, it was only in the course of the mother's evidence at the trial that she said they went to the hotel in October 2005 to celebrate her husband's birthday and that his birthday was on 27 October (a Thursday in 2005). She reiterated the evidence in her witness statement that the night in question was a Friday. She did not say whether, for example, it was the Friday before or after his birthday.
Fourthly, the mother's evidence in the course of the trial, to which I have just referred, focussed attention on whether the appellant was living in the town in the south‑west of Western Australia in or about late October 2005. The fact that there was evidence, independent of the appellant and C, which established that he was on the fishing vessel, 'Ocean Raider', between 26 October 2005 and 1 November 2005 assumed greater probative significance during the trial than it had before the trial. It established that on the date of H's father's birthday, and on the Friday immediately following his birthday, the appellant was in the north‑west of Western Australia. Further, it tended to corroborate, to some extent, C's evidence that at all material times the appellant was with her on holiday in the north‑west.
If this evidence of the mother in the course of the trial had been included in her witness statement then it is likely that the investigations by the appellant and his counsel before the trial would have concentrated on his precise location within Western Australia in about late October 2005.
Fifthly, the alleged offending conduct occurred, on the State's case, in October 2005. The appellant was not, however, apprehended and questioned by police until in or about early July 2009. He was charged on 17 July 2009.
Counsel for the appellant swore an affidavit on 20 May 2010 in support of the application to adduce the additional evidence in the appeal. In the affidavit, counsel deposed, without objection, relevantly:
5.The essence of the appellant's defence was that he and his then girlfriend, [C] went on an extended driving, camping and fishing holiday to North Western Australia during the period late August 2005 to about 11 November 2005.
6.Every effort was made to try and substantiate the evidence of [C] with documentation relevant to her holiday up North.
7.The night before the trial [C] was able to find various documents and holiday photographs of her and the appellant on holiday and these were tendered in evidence and became exhibits in the case.
8.During the course of her evidence whilst tendering the holiday photographs [C] volunteered that the appellant had gone on a week's voyage with the vessel 'Ocean Raider' during the holiday and that she had remained on shore.
9.The photographs related to events that had taken place almost five years before and it appeared to me that the one photograph of the appellant with the 'Ocean Raider' triggered her memory of the fishing trip undertaken by the appellant at the time.
Counsel was not required for cross‑examination.
In an affidavit sworn 29 October 2010, the appellant deposed, without objection, relevantly:
3.Prior to the trial I had several consultations with my counsel, Michael Joubert and was asked by him to provide evidence of my trip to North Western Australia during the period late August 2005 to November 2005.
4.At that time I was extremely upset by the charges and was in a highly agitated state of emotion.
5.I recall mentioning that I had been on a fishing trip whilst up North but when asked who I went with and whether I could contact the people involved, I was unable to provide the information as by that time I had forgotten the details.
6.My girlfriend at the time [C] had paid for the trip and I agreed to do the driving and assist with the camping. This is why all of the documentary exhibits at the trial were in [C's] name and not mine.
7.My counsel urged both [C] and me to try and find the photographs of our holiday together and [C] was able to locate some photographs in Perth the night before she gave her evidence.
8.In one of the photographs there is a picture of me standing on the stern of a vessel with the name 'Ocean Raider'. It was this photograph that enabled my sister to eventually make contact with Paul Harrison, the skipper of the vessel.
The appellant was not required for cross‑examination.
It is likely that the significant delay between the occurrence of the alleged offending conduct on the one hand, and the appellant's apprehension and questioning by police on the other, materially diminished his recollection of his precise whereabouts on particular dates in October 2005.
At the hearing of the appeal, counsel for the State conceded that if the additional evidence, being Mr Harrison's affidavit and the vessel's log, was properly to be characterised as fresh, as distinct from new, evidence then the appellant's convictions should be quashed (appeal ts 26). This concession was, in my opinion, properly made.
There is at least a significant possibility that the jury, acting reasonably, would have acquitted the appellant on all counts if the fresh evidence had been before it at the trial. See Gallagher v The Queen [1986] HCA 26; (1986) 160 CLR 392, 402 (Mason & Deane JJ).
Mr Harrison's evidence was not contested by the State. It should be accepted, for the purposes of this appeal, as truthful and accurate. His evidence may have been critical, in combination with C's evidence, in giving rise to a reasonable doubt about the appellant's guilt; in particular, as to whether, at the time of the alleged offences, the appellant was with C in the north‑west of the State.
Even more significantly, the trial judge directed the jury, on the basis of the manner in which the State's case was presented at trial, that it was necessary for the State to satisfy the jury beyond reasonable doubt that the appellant was present in the town in the south‑west of Western Australia 'during the month of October 2005 when it is alleged that the incidents on the indictment occurred' (ts 145). Her Honour added that the State would have to disprove or negative that he was elsewhere during that period, as [C] asserted he was in her evidence (ts 145). The State did not complain about these directions, either before her Honour or on appeal. Mr Harrison's evidence would have precluded the State from being able to make out its case, as run at the trial, to the requisite standard.
Ground 1 of the appeal has been made out. The appellant's conviction on each of the counts must be set aside.
The merits of ground 2 of the appeal
It is unnecessary, in the circumstances, to deal with ground 2 of the appeal.
Should this court order a re‑trial or enter a judgment of acquittal?
In Dyers v The Queen [2002] HCA 45; (2002) 210 CLR 285, the High Court, by a majority (Gaudron, Kirby, Hayne & Callinan JJ; McHugh J dissenting), allowed the appellant's appeal against his conviction on a charge of indecently assaulting a 13‑year‑old girl. The majority was satisfied that the trial judge had misdirected the jury by giving a Jones v Dunkel direction (Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298). The appellant's conviction was quashed. The High Court dealt with the appellant's contention that the evidence led at his trial should have left the jury with a reasonable doubt as to his guilt. This contention was rejected. Of the majority, Gaudron, Hayne and Callinan JJ; Kirby J dissenting, ordered a re‑trial.
Gaudron and Hayne JJ said:
It is, however, necessary to deal with the further contention of the appellant that the evidence led at his trial should have left the jury with a reasonable doubt as to his guilt. Substantially for the reasons given by Callinan J, that contention should be rejected.
In these circumstances, it would ordinarily follow that a new trial should be ordered, leaving it to the prosecuting authorities to decide whether to proceed with a new trial. In this case, however, the sentence imposed on the appellant has expired. The decision whether to continue a prosecution is ordinarily a decision for the executive, not the courts. There have, however, been cases where this Court has quashed a conviction, without either ordering a new trial or directing entry of a verdict of acquittal (see, eg, Callaghan v The Queen (1952) 87 CLR 115). To make an order that would preclude a new trial would constitute a judicial determination of the proceedings against the appellant otherwise than on trial by jury and in circumstances where it is not held that the evidence adduced at trial required the jury to acquit the appellant. That being so, there should be an order for a new trial despite it being probable that the prosecution will not proceed further [22] ‑ [23].
Callinan J dealt with the issue as follows:
Nonetheless I will give separate consideration to the ground as it was argued in this Court. The appellant submits that the Crown case was a weak one because of the very limited corroboration provided by the complainant's mother only, and the delay in making the complaint. It was also suggested that the complainant was induced to make the complaint as a result of political controversy about the sexual activities of the sect which received a deal of attention in the media. The complainant's evidence contained some major inconsistencies. It departed from the way in which the prosecutor opened it, both by omission and addition. The appellant contends that the complainant's account was implausible, particularly her claim to have maintained such an uncomfortable posture during the session, and to be practically unclothed for so long on a cold day. Instances of inconsistency in the mother's evidence were also demonstrated. The mother had, it was also put, an animus against the appellant. These are, it may be accepted, arguable points and ones which a jury might well find persuasive. They do not however entitle this Court to enter a verdict of acquittal.
I would allow the appeal, quash the verdict and order that there be a new trial. It will be for the Director to decide whether in all of the circumstances there should be a retrial or not [134] ‑ [135].
Kirby J, in the course of his dissenting opinion, provided instances where the High Court, in allowing an appeal by an appellant/offender, has not ordered a re‑trial. His Honour said:
There are certain instances where this Court, in the exercise of its judicial power, has refrained from ordering a retrial. The cases include:
•where the evidence adduced at the first trial did not, and could not, as a matter of law, prove the offence charged against the appellant (Crampton v The Queen (2000) 206 CLR 161);
•where the only basis upon which the prosecution could succeed at a new trial would be by propounding a different case from that presented at the first trial, permitting which would constitute a serious injustice to the accused. This Court has said 'it would be wrong by making an order for a new trial to give the prosecution an opportunity to supplement a defective case' (Director of Public Prosecutions (Nauru) v Fowler (1984) 154 CLR 627 at 630);
•where the length of time that has elapsed since the events giving rise to the charges is great. That consideration, together with others, may be determinative against an order for a new trial (Parker v The Queen (1997) 186 CLR 494 at 520, 538);
•where it is shown that the appellant, who succeeds in the appeal, has served the custodial part of his sentence (Parker v The Queen (1997) 186 CLR 494 at 520) and a fortiori where an appeal has been brought by the prosecution against that sentence but has been rejected (Parker v The Queen (1997) 186 CLR 494 at 538 ‑ 539). Even more powerful will be the case where the successful appellant can show that he or she has served the entire sentence so that, if a second trial were had, it could not result in the practical imposition of any additional, or other, punishment upon the appellant. Sometimes this latter consideration will be subject to a possible countervailing need to order a new trial to vindicate reasons in addition to the punishment of the appellant. Thus, where the successful appellant is a legal practitioner, or some other person for whom a conviction is critical for legal reasons, an order for a retrial may be made, so as to allow the prosecuting authority to decide whether larger considerations of the public interest require a fresh determination of the guilt of the appellant of the charge that miscarried for legal error at the first trial (MacKenzie v The Queen (1996) 190 CLR 348 at 376 ‑ 377; Stanoevski v The Queen (2001) 202 CLR 115 at 128 [51], 130 [61]).
Other considerations that may be relevant include:
•whether there has already been more than one earlier trial;
•whether, having regard to the venue, publicity and errors in the first trial it would be impossible to secure a fair retrial of the accused in any venue actually available (Tuckiar v The King (1934) 52 CLR 335 at 347, 355);
•whether the intervening death of witnesses could make an order for a retrial manifestly unjust or oppressive to the appellant;
•whether a retrial would, in the circumstances, impose unacceptable trauma and distress on witnesses, unwarranted by the alleged offence and the prospects of conviction (cf Longman (1989) 168 CLR 79 at 109; Crofts v The Queen (1996) 186 CLR 427 at 452‑453; KBT v The Queen (1997) 191 CLR 417 at 438);
•whether a supervening change of the criminal law, abolishing the offence with which the appellant was charged, might make a retrial seriously unjust or oppressive (cf R v Stringer (2000) 116 A Crim R 198 at 221 ‑ 222 [89]-[91], 226 [108], 228 ‑ 229 [116]-[118] (a case of an application for a permanent stay on the basis of a supervening change of the law));
•whether the age, mental or physical condition of the appellant are such that they would make a retrial clearly unjust in the circumstances; and
•whether the prosecution indicates that it does not seek an order for a retrial (Griffiths v The Queen (1994) 69 ALJR 77; 125 ALR 545). [82] ‑ [83].
In Anderson v The Queen (1991) 53 A Crim R 421, Gleeson CJ (Finlay J & Slattery AJ agreeing) said that the discretionary decision as to whether an appellate court should order a re‑trial is to be made in the light of the principles enunciated in such cases as Reid v The Queen [1980] AC 343, 351 and Director of Public Prosecutions (Nauru) v Fowler [1984] HCA 48; (1984) 154 CLR 627. His Honour continued:
If, contrary to what appears above, I had been of the view that this was a case in which it was not reasonably open, on the evidence, for the jury to convict then, in accordance with the established principles, that would be an end of the matter. There would be no new trial. However, this is not such a case, and it becomes necessary to consider the various considerations for and against ordering a new trial.
The principal considerations in favour of ordering a new trial on each of the three counts in question are the public interest in the due prosecution and conviction of offenders, the serious nature of the alleged crimes, and the desirability, if possible, of having the guilt or innocence of the appellant finally determined by a jury which, according to the constitutional arrangements applicable in this State, is the appropriate body to make such a decision.
On the other hand there are considerations that militate against a new trial. The Crown case is not strong, and depends in large part upon the evidence of an accomplice whose account of the relevant facts has been demonstrated to be unreliable in significant respects. The suggested corroboration is, on analysis, flimsy. It is now more than thirteen years since the relevant events took place, and this compounds the difficulty of establishing the truth. Moreover, it is far from clear exactly how the Crown would run a fresh trial … Finally, there is a consideration which, in the circumstances of this particular case, I regard as compelling. The trial of the appellant miscarried principally because of an error which resulted in large part from the failure of the prosecuting authorities adequately to check aspects of the Jayawardene theory. This was compounded by what I regard as an inappropriate and unfair attempt by the Crown to persuade the jury to draw inferences of fact, and accept argumentative suggestions, that were not properly open on the evidence and that were in some respects contrary to the evidence. I do not consider that in those circumstances the Crown should be given a further opportunity to patch up its case against the appellant. It has already made one attempt too many to do that, and I believe that, if that attempt had never been made, there is a strong likelihood that the appellant would have been acquitted (453).
The court therefore ordered a verdict of acquittal to be entered.
In R v Taufahema [2007] HCA 11; (2007) 228 CLR 232 [49], [51], Gummow, Hayne, Heydon and Crennan JJ cited, with apparent approval, the observations of Gleeson CJ in Anderson that an order for acquittal entered by an appellate court conflicts with:
(a)the public interest in the due prosecution and conviction of offenders; and
(b)the desirability, if possible, of having the guilt or innocence of the accused finally determined by a jury.
In my opinion, this court should, in the exercise of its discretion under s 30(5) of the Criminal Appeals Act, enter a judgment of acquittal for each count.
Although the public interest in the due prosecution and conviction of offenders and the serious nature of the offences alleged against the appellant would ordinarily result in this court ordering a re‑trial, those public interest considerations are outweighed, in the particulars circumstances of this case, by other relevant factors.
The other relevant factors are these. First, the State could not succeed at a re‑trial unless it fought the re‑trial on a materially different basis from that presented at the trial. As I have mentioned, the State's case at the trial was run on the foundation that it was necessary for the State to prove beyond reasonable doubt that the appellant was present in the town in the south‑west of Western Australia during the month of October 2005. The trial judge directed the jury, without complaint from the State either at the trial or on appeal, that it was essential for the State to disprove or negative that the appellant was elsewhere during October 2005. Mr Harrison's evidence, which is not contested by the State, would preclude the State from making out this case at a re‑trial. Secondly, the appellant, who received a total effective sentence of 12 months' immediate imprisonment, served nearly 8 months of that term before being released on bail by this court. He became eligible for release on parole after having served 6 months. Thirdly, the appeal succeeded as a result of the fresh evidence admitted by this court and not as a result of an error made by the trial judge. If the fresh evidence had been adduced at the trial Mr Harrison's evidence would have corroborated, to some extent, the alibi evidence of C. Mr Harrison's evidence in combination with C's evidence would have been likely to have raised a reasonable doubt as to the appellant's guilt.
Conclusion
For these reasons:
(a)I joined in the orders of the court granting leave to appeal on ground 1, allowing the appeal and setting aside the convictions; and
(b)I would enter a judgment of acquittal for each of the counts in the indictment.
MAZZA J: I have read in draft the reasons of Buss JA. I agree with his reasons for allowing the appeal. I further agree, also for the reasons that he gives, that no retrial should be ordered, and that judgments of acquittal in respect of each of the three counts on the indictment should be entered.
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