CFM v The State of Western Australia
[2017] WASCA 15
•24 JANUARY 2017
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: CFM -v- THE STATE OF WESTERN AUSTRALIA [2017] WASCA 15
CORAM: BUSS P
MAZZA JA
MITCHELL JA
HEARD: 15 AUGUST 2016
DATE OF FINAL
SUBMISSIONS : 13 SEPTEMBER 2016
DELIVERED : 24 JANUARY 2017
FILE NO/S: CACR 93 of 2015
BETWEEN: CFM
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :SWEENEY DCJ
File No :IND 62 of 2014
Catchwords:
Criminal law - Appeal against conviction - Appellant convicted after trial on five counts of sex offending - Three complainants - Whether a miscarriage of justice because the State was permitted in closing to put its case on two counts on a basis materially different from the basis on which its case had previously been run - Whether new evidence adduced on appeal raised such a doubt that the court should be satisfied that the appellant should not have been convicted on one or more of the counts - Incompetence of counsel - Whether some of the convictions were unsafe and unsatisfactory - New trial or judgments of acquittal
Legislation:
Criminal Appeals Act 2004 (WA), s 30(5), s 39, s 40(1)
Criminal Code (WA), s 320(4), s 323, s 325
Evidence Act 1906 (WA), s 31A
Result:
Appellant's application for an extension of time to appeal granted
Appellant's application for leave to adduce additional evidence granted
State's application for leave to adduce additional evidence granted
Appeal allowed
Judgments of conviction on counts 5, 6, 7, 8 and 9 set aside
New trial ordered on counts 5, 6 and 7
Judgments of acquittal entered on counts 8 and 9
Category: B
Representation:
Counsel:
Appellant: Mr P D Yovich SC & Ms T J Weir
Respondent: Mr S Vandongen SC
Solicitors:
Appellant: Putt Legal
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Anderson v The Queen (1991) 53 A Crim R 421
Director of Public Prosecutions (Nauru) v Fowler [1984] HCA 48; (1984) 154 CLR 627
DPJB v The State of Western Australia [2010] WASCA 12
Durani v The State of Western Australia [2012] WASCA 172
Gallagher v The Queen [1986] HCA 26; (1986) 160 CLR 392
Jiminez v The Queen [1992] HCA 14; (1992) 173 CLR 572
King v The Queen [1986] HCA 59; (1986) 161 CLR 423
KLM v The State of Western Australia [2009] WASCA 73; (2009) 194 A Crim R 503
Lawless v The Queen [1979] HCA 49; (1979) 142 CLR 659
McMahon v The State of Western Australia [2010] WASCA 143
Mickelberg v The Queen [1989] HCA 35; (1989) 167 CLR 259
Parker v The Queen [1997] HCA 15; (1997) 186 CLR 494
R v Taufahema [2007] HCA 11; (2007) 228 CLR 232
R v Wilkes [1948] HCA 22; (1948) 77 CLR 511
Ratten v The Queen [1974] HCA 35; (1974) 131 CLR 510
Rinaldi v The State of Western Australia [2007] WASCA 53
TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124
BUSS P: The appellant has applied for an extension of time to appeal against conviction.
He was charged on indictment with nine counts of sexual offending.
On 6 October 2014, after a trial in the District Court before Sweeney DCJ and a jury, the appellant was convicted on five counts (being counts 5, 6, 7, 8 and 9) and acquitted on four (being counts 1, 2, 3 and 4).
One of the judgments of acquittal (count 4) was entered after her Honour found that there was no case to answer on the charged offence.
The appellant was sentenced to individual terms of immediate imprisonment, as follows:
(a)count 5: 2 years 6 months;
(b)count 6: 2 years;
(c)count 7: 3 years;
(d)count 8: 18 months; and
(e)count 9: 18 months.
The trial judge ordered that the sentence for count 7 be served cumulatively upon the sentence for count 5, and that the sentences on the other counts be served concurrently with each other and concurrently with count 5. The total effective sentence was therefore 5 years 6 months' imprisonment. The sentence was backdated to 6 October 2014. A parole eligibility order was made.
On 15 August 2016, the appeal was heard.
On 6 September 2016, the court granted the appellant bail pending the determination of the appeal.
The application for an extension of time
The last date for appealing against conviction was 13 January 2015. The appellant did not file his appeal notice until 25 May 2015. The application for an extension of time to appeal is supported by the appellant's affidavit sworn 15 December 2015. It is convenient to consider the merits of the grounds of appeal before deciding whether an extension should be granted.
The counts in the indictment on which the appellant was convicted
The counts in the indictment on which the appellant was convicted were pleaded as follows.
Count 5 alleged that on an unknown date between 25 May 1996 and 31 January 1998, at Merriwa, the appellant indecently dealt with W, a child under the age of 13 years, by rubbing her vagina with his fingers on the inside of her underpants, contrary to s 320(4) of the Criminal Code (WA) (the Code).
Count 6 alleged that on an unknown date between 25 May 1996 and 31 January 1998, at High Wycombe, the appellant indecently dealt with S, a child under the age of 13 years, by rubbing her vagina with his fingers on the outside of her underpants, contrary to s 320(4) of the Code.
Count 7 alleged that on an unknown date between 25 May 1996 and 31 January 1998, at Brookdale, the appellant sexually penetrated R without her consent, by penetrating her vagina with his finger, contrary to s 325 of the Code.
Count 8 alleged that on an unknown date between 25 May 1996 and 31 January 1998, at Brookdale, the appellant indecently assaulted R by rubbing her vagina with his fingers on the inside of her underpants, contrary to s 323 of the Code.
Count 9 originally alleged that on an unknown date between 25 May 1996 and 31 January 1998, at Merriwa, the appellant sexually penetrated R without her consent, by penetrating her vagina with his finger, contrary to s 325 of the Code. However, at the trial, her Honour granted the prosecutor leave to amend count 9 to allege that on an unknown date between 25 May 1996 and 31 January 1998, at Merriwa, the appellant indecently assaulted R, by touching her vagina with his finger on the inside of her underpants, contrary to s 323 of the Code.
The relationship between the appellant and the complainants
W and R are sisters. R is seven years older than W. Their mother is DYC. The appellant is DYC's brother. So, the appellant is W's and R's uncle on their mother's side.
The appellant is S's uncle on her father's side.
The counts in the indictment on which the appellant was acquitted
Counts 1, 2, 3 and 4 were alleged to have been committed between 25 May 1996 and 31 January 1998. Each of those counts alleged indecent dealing by the appellant with W, a child under the age of 13 years, contrary to s 320(4) of the Code.
Overview of the facts and circumstances of the alleged offending
An overview of the facts and circumstances of the alleged offending is as follows.
W was born in 1987. She was aged between 9 and 11 during the period specified in count 5 (that is, between 25 May 1996 and 31 January 1998).
W gave evidence that she was aged 9 or 10 when the appellant moved from Queensland to Western Australia. He lived in her family's home at Brookdale (ts 59).
W said the offences alleged in counts 1, 2, 3 and 4 occurred during the period specified in those counts (that is, between 25 May 1996 and 31 January 1998).
W also said the offence alleged in count 5 occurred during the period specified in that count (that is, between 25 May 1996 and 31 January 1998), at the appellant's parents' home in Merriwa, during a visit by her family to the Merriwa house (ts 68).
W could not remember her age at the time of the visit to the Merriwa house, but she said it was a few months after the appellant committed the offences alleged in counts 1, 2, 3 and 4. She said that when the offending in relation to count 5 occurred, the appellant had ceased to live at the Brookdale house (ts 68).
S was born in 1987. She was aged between 8 and 10 during the period specified in count 6 (that is, between 25 May 1996 and 31 January 1998).
S gave evidence that she was aged 7 or 8, and in year 3 at school, when the appellant committed the offence. It occurred on an occasion when the appellant was at her home in High Wycombe. He was tutoring her in relation to her school work (ts 211).
The counts relating to W and S (that is, counts 1, 2, 3, 4, 5 and 6) were left to the jury on the basis that the State had to prove that the offences were committed before W and S attained the age of 13. That was uncontroversial (ts 304).
R was born in 1980. The period specified in counts 7, 8 and 9 (that is, between 25 May 1996 and 31 January 1998) began on the day after R's 16th birthday and ended when she was aged 18. However, R gave evidence that the offences against her occurred when she was aged about 14 and in year 9 at school, in relation to counts 7 and 8, and when she was in year 10 at school, in relation to count 9.
R gave evidence that on 1 October 1993 she was struck by a motor vehicle. The collision broke her leg in eight places. She wore a cast on the leg for about 18 months (ts 109). R also gave evidence that the appellant moved from Queensland to Western Australia in 1994, when she was aged 14 and in year 9 at school. She said he lived in her family's home at Brookdale until his parents moved from Queensland to Western Australia and bought a house in Merriwa (ts 109 ‑ 110).
R gave evidence of three occasions when the appellant had touched her sexually in Western Australia.
The first two occasions happened while the appellant was living in her family's home at Brookdale.
On the first occasion, R was doing her homework in her bedroom. The appellant came into her room and offered to help. He put his hand on the top of her leg and started dragging it towards her crotch area. She asked him to stop and he did (ts 121). R still had the cast on her leg when this incident happened (ts 123).
The incident described by R as the first occasion on which the appellant had touched her sexually in Western Australia was not relied on by the State to found a charge. All of the charges relating to R (being counts 7, 8 and 9) involved the appellant allegedly rubbing or touching her vagina on the inside of her underpants (count 8 and count 9 as amended) or penetrating her vagina with his finger (count 7).
On the second occasion, R was again doing homework in her bedroom. The appellant again came into her room. He put his hand down her underpants and onto her vagina. He then put a finger into her vagina (ts 128).
R said the second occasion happened after the first occasion. She could not say how long after (ts 128). However, R said that when the second occasion occurred, the cast had been removed from her leg and she no longer had to wear it (ts 129 ‑ 130).
The third occasion happened at the appellant's parents' home in Merriwa. R said she was sent to live with her grandparents at the Merriwa house for two weeks, during the school holidays, so that the appellant could help her with her school work (ts 132 ‑ 133).
Count 9 originally alleged that the charged offence involved sexual penetration without consent. However, R only gave evidence in relation to the third occasion of the appellant having touched her breast (ts 135 ‑ 136, not the subject of any charge) and the appellant having touched her vagina without penetration (ts 136 ‑ 137).
R said the first and second occasions at the Brookdale house happened when she was aged 14 and in year 9 at school (therefore, in the 1994 calendar year) (ts 110). R also said the third occasion at the Merriwa house happened when she was aged about 15 and in year 10 at school (ts 132 ‑ 133, 137 ‑ 138, 158 ‑ 159).
R gave evidence about sexual acts by the appellant towards her when she was much younger. Those acts were said to have taken place when she lived with her family at her grandparents' property in Queensland. They were not the subject of any charges. The State relied on the alleged sexual acts in Queensland as relationship and propensity evidence.
The State's case relied almost entirely on the evidence of the complainants (W, S and R). Each complainant was the only witness who could give evidence about the happening of the events the subject of the charge or charges relating to her.
The State also relied on the evidence of each complainant in support of the evidence of the other complainants. The trial judge gave the jury a direction about the manner in which it could use the evidence of one complainant to support the evidence of another or the others.
Her Honour gave an orthodox separate consideration direction.
The State also called evidence from R's and W's mother, DYC, who is the appellant's older sister, and from Detective Senior Constable Michael Kelly.
DYC gave evidence that the appellant had lived with her family at Brookdale when he first moved from Queensland to Western Australia. He then went to live at his parents' home in Merriwa after the parents moved from Queensland to Western Australia. She could not remember when the appellant went to live at the Merriwa house (ts 174 ‑ 175). DYC gave evidence in cross‑examination that R stayed at the Merriwa house for some time, but she could not specify the period (ts 187 ‑ 188).
Detective Kelly's evidence involved, in substance, the playing and tendering of the appellant's video recorded interview with police.
The appellant's case at trial
The appellant denied in his video recorded interview with police that any of the alleged offending had occurred. He told the police that he had moved from Queensland to Western Australia in 1997 or perhaps 1998.
The appellant did not give evidence at the trial. His case at trial was that none of the alleged offending had happened.
The prosecutor's opening address
The prosecutor said in his opening address that the following matters were relevant to when and where the offences against W and S had taken place:
(a)In 1996/1997, the appellant was aged in his early 30s. At that time, he was living with his parents in Queensland (ts 46 ‑ 47).
(b)When the appellant moved from Queensland to Western Australia, W was aged about 9 and R was aged about 15 (ts 48).
(c)The appellant lived with DYC and her children for about four months after he arrived in Western Australia (ts 48).
(d)Counts 1, 2, 3 and 4 occurred between 25 May 1996 and 31 January 1998 at the Brookdale house where W and her family, including R and their mother, DYC, lived (ts 48).
(e)Although the date and place of the offences as specified in the indictment were particulars, and did not have to be proved beyond reasonable doubt, the appellant lived at the Brookdale house for four months during the period specified in the indictment (that is, between 25 May 1996 and 31 January 1998) (ts 49).
(f)The prosecutor described counts 1, 2, 3 and 4 as four occasions when, according to W, the appellant had touched her, in different indecent ways, when he was helping her with her homework (ts 49 ‑ 50). The prosecutor did not state whether the four occasions were on different dates or whether any of them occurred on the same date.
(g)Count 5 occurred at the appellant's parents' home in Merriwa on a date during the period specified in the indictment (that is, between 25 May 1996 and 31 January 1998) (ts 50).
(h)Count 6 occurred at S's family home in High Wycombe (ts 50). The prosecutor did not mention in opening the date of the alleged offending.
The prosecutor referred to counts 7, 8 and 9 in his opening address, as follows:
(a)Counts 7, 8 and 9 took place at the Brookdale house, when the appellant was helping R with her homework and during the four‑month period when he was living at the house with R's family (ts 51).
(b)The prosecutor said that 'whilst assisting [R] with her homework, [the appellant] would put his hand on her leg, on her thigh, touch her on the vagina [and] on two occasions [what] you see alleged is sexual penetration; counts 7 and 9 ‑ [he] in fact penetrated her vagina with his finger. And that this was all done under the auspices of assisting her with her homework' (ts 51).
The prosecutor did not mention the alleged facts of count 8 or specify the occasion when it was alleged to have occurred, either by reference to counts 7 and 9 or at all.
The prosecutor said that counts 7, 8 and 9 had happened at the Brookdale house, despite the indictment pleading that count 9 had happened at Merriwa.
Defence counsel did not seek clarification of the particulars of any of the counts. Also, defence counsel did not raise any issue about the discrepancy between the prosecutor's opening address, on the one hand, and the indictment, on the other, in relation to the place where count 9 had happened.
Discussions in the absence of the jury between the trial judge, the prosecutor and defence counsel
On the afternoon of 2 October 2014, after the complainants had given their evidence, there was a discussion, in the absence of the jury, between the trial judge, the prosecutor and defence counsel.
Her Honour told the prosecutor that 'in terms of closing addresses it seems to me this is one of those cases where … it is incumbent upon the prosecution with nine charges to [tell the jury]' what the allegation is in respect of each count and what evidence supports the allegation (ts 241). The prosecutor responded, '[c]ertainly' (ts 241).
Later, the prosecutor said he believed there was no evidence to support count 4 (ts 245). He added that there were 'one or two' other counts in relation to which 'we might be looking at an alternative' or in respect of which there were 'some issues with the particulars' (ts 245 ‑ 246). The other counts were 'counts 7 and 8, and maybe 9' or '7 and 9, rather' (ts 246). The prosecutor said he would review the evidence overnight (ts 245 ‑ 246).
The following morning, 3 October 2014, after the State's final witness was excused and before the State's case was formally closed, the prosecutor raised with the trial judge and defence counsel, in the absence of the jury, the matters that had been discussed the previous afternoon.
It was not disputed that there was no evidence capable of supporting count 4 and, in due course, her Honour entered a judgment of acquittal on that count pursuant to s 108 of the Criminal Procedure Act 2004 (WA).
As to counts 7, 8 and 9, the trial judge observed, correctly, that the prosecutor had not '[pinned] himself at all on anything', in his opening address, in relation to counts 7, 8 and 9 (ts 253 ‑ 254).
Her Honour said that 'when [R] spoke about an occasion at Brookdale when she was 14, she's in fact giving evidence of count 8 and then digital penetration' (ts 254).
The trial judge concluded that 'there is a count 7 and a count 8 and they are a single occasion' (ts 254). Her Honour added that the evidence in relation to count 9 could not constitute a sexual penetration (ts 254). The prosecutor agreed with her Honour. He sought leave to amend count 9 in the manner I have previously recounted. Defence counsel did not object. Her Honour granted leave (ts 259 ‑ 260).
The appellant's application for leave to adduce additional evidence in the appeal
On 16 December 2015, the appellant applied for leave to adduce additional evidence in the appeal.
The additional evidence is contained in an affidavit of the appellant sworn 15 December 2015, an affidavit of his mother, DFF, sworn 11 December 2015, and an affidavit of his counsel, Mr Yovich SC, sworn 14 December 2015.
None of the deponents was required for cross‑examination.
The appellant's affidavit annexes a title search made at the Department of Natural Resources and Mines in Queensland. The title search shows that a transfer from the appellant's parents to a third party of the Queensland property where the parents lived before they moved to Western Australia was registered on 23 October 1997.
DFF's affidavit annexes a copy of a contract of sale dated 21 October 1997, pursuant to which DFF and her husband purchased the Merriwa property, and a title search made at Landgate in Western Australia. The title search shows that a transfer from the vendor to the appellant's parents of the Merriwa property was registered on 11 November 1997. DFF deposes that she and her husband did not occupy the Merriwa house before that date.
So, DFF's affidavit establishes that DFF and her husband did not become the registered proprietors of the Merriwa house until 11 November 1997, and did not commence living at the Merriwa house until that date at the earliest.
The appellant's affidavit deals with the failure of his defence counsel (who was not counsel for the appellant in the appeal) to obtain that evidence before trial. According to the appellant, defence counsel did not ask the appellant to give him 'any documents that might have helped pinpoint when [the appellant] moved to Western Australia or when [his] parents moved to Merriwa' [8]. The appellant added that defence counsel never told him that those dates might be significant.
Mr Yovich's affidavit annexes R's first witness statement dated 16 May 2012.
On 20 December 2015, Mazza JA ordered that the appellant's application for leave to adduce additional evidence be referred to the hearing of the appeal.
The State's application for leave to adduce additional evidence in the appeal
On 19 February 2016, the State applied for leave to adduce additional evidence in the appeal.
The additional evidence comprises R's second witness statement dated 5 April 2013. That witness statement was included in the State's brief of evidence for the trial. The second witness statement is annexed to an affidavit of Lindsay Fox sworn 19 February 2016.
Mr Fox was not required for cross‑examination.
On 24 February 2016, Mazza JA referred the State's application to the hearing of the appeal.
The grounds of appeal
The appellant relies on two grounds of appeal.
Ground 1 alleges that there was a material irregularity in the appellant's trial, occasioned by defence counsel's failure to seek proper particulars of the charges, and consequently there was a miscarriage of justice in relation to count 8.
The particulars of ground 1 read:
(a)The Appellant faced 9 charges of sexual offending against three complainants, all of whom were his nieces.
(b)All 9 offences were alleged to have been committed on unknown dates between 25 May 1996 and 31 January 1998. The indictment particularised the offences by place and by the act alleged in each case, but did not specify whether any offence was alleged to have occurred on the same occasion as any other offence.
(c)In his opening address to the jury, the trial prosecutor did not particularise the occasions on which any of the offences constituted by counts 7, 8 or 9 took place, by reference to how many such occasions there were or at all. The prosecutor also erroneously opened on the basis that count 9 had happened at a different place to that specified in the indictment. The witness statement of the complainant in relation to those counts disclosed three separate occasions corresponding to the particulars in the indictment.
(d)The appellant's trial counsel sought no clarification and did not require the prosecutor to particularise his case on those counts properly.
(e)The complainant's evidence did not match her statement, and counsel's failure to seek proper particulars deprived the appellant of a chance of acquittal on count 8.
Ground 1 was in effect broadened in argument at the hearing of the appeal to allege, in addition, that there was a miscarriage of justice on count 8 because the State was permitted in closing to put its case on counts 7 and 8 on a basis materially different from the basis on which its case had previously been run; alternatively, the appellant's conviction on count 8 was unsafe and unsatisfactory because there was no evidence to support the appellant's conviction on that count.
Ground 2 alleges that there was a material irregularity in the appellant's trial, occasioned by defence counsel's failure to obtain and adduce evidence relevant to whether the appellant could have committed one of the offences charged during the period when R alleged he had done so, and consequently there was a miscarriage of justice in relation to all of the counts on which the appellant was convicted (being counts 5, 6, 7, 8 and 9).
The particulars of ground 2 read:
(a)The events the subject of count 9 were said to have taken place when the complainant was staying for two weeks with the appellant and his parents at their house in Merriwa.
(b)The complainant said this happened during school holidays when she was in year 10 at school, which was in 1995, and for the purpose of enabling the appellant to help her with her school work.
(c)The appellant's trial counsel failed to obtain and adduce objective evidence in the form of a title search for the property at Merriwa which would have shown that there was no school holiday period before the end of the complainant's schooling during which the appellant or his parents occupied the Merriwa house.
(d)Had that evidence been obtained and adduced it would have shown that the appellant could not have committed that offence as alleged.
(e)That evidence would also have cast doubt on the complainant's credibility generally, rendering the other convictions in relation to her unsafe and undermining the support her evidence could give to the allegations of the other complainants.
Ground 2 was in effect broadened in argument at the hearing of the appeal to allege, in addition, that the additional evidence raises such a doubt that the court should be satisfied that the appellant should not have been convicted on counts 7, 8 and 9.
On 20 December 2015, Mazza JA granted leave to appeal on grounds 1 and 2.
The merits of ground 1
Counsel for the State conceded that there was a miscarriage of justice with respect to the appellant's conviction on count 8 in the indictment, but for reasons which were, at least in part, different from those advanced by the appellant in support of ground 1, as broadened in argument at the hearing of the appeal.
In my opinion, counsel for the State's concession, and the basis for his concession, were properly made.
Each of the nine counts in the indictment alleged that an offence occurred between 25 May 1996 and 31 January 1998. Counts 7, 8 and 9 related to R. Count 7 and 8 allegedly happened at the Brookdale house. Count 9 allegedly happened at the Merriwa house. Count 7 alleged an act of digital sexual penetration. Count 8 alleged an indecent assault. Count 9 originally alleged an act of digital sexual penetration. Count 9, as amended at the trial, alleged an indecent assault.
R's first witness statement described two incidents that occurred in her bedroom at the Brookdale house while the appellant was residing at the house. The first incident involved digital penetration of her vagina [43] ‑ [59]. The second incident occurred 'about three weeks later' [62] and involved the rubbing of her vagina (but not an act of digital penetration) [62] ‑ [71]. Plainly, the first incident, as described by R in her first witness statement, related to count 7 and the second incident, as described by R in her first witness statement, related to count 8.
R's first witness statement also described an incident that occurred at the Merriwa house [76] ‑ [91]. That statement referred to the touching of her vagina (but not an act of digital penetration) [86] ‑ [87]. However, R's second witness statement clarified that, on her version of events, digital penetration of her vagina did in fact occur during the incident at the Merriwa house [3] ‑ [10]. Plainly, the incident at the Merriwa house, as described by R in her first witness statement and clarified in her second witness statement, related to count 9 as originally pleaded.
The only reasonable interpretation of the indictment, prior to the amendment of count 9, was that:
(a)count 7 alleged an act of digital sexual penetration at the Brookdale house as described at [43] ‑ [59] of R's first witness statement;
(b)count 8 alleged an indecent assault at the Brookdale house, as described at [62] ‑ [71] of R's first witness statement, which occurred 'about three weeks' after count 7 [62]; and
(c)count 9 alleged an act of digital sexual penetration at the Merriwa house, as described at [76] ‑ [91] of R's first witness statement read with [3] ‑ [10] of R's second witness statement.
The prosecutor's statement in his opening address that counts 7, 8 and 9 had happened at the Brookdale house was an obvious mistake. It was never the State's case that the offence alleged in count 9 had occurred anywhere but at the appellant's parents' home in Merriwa. There was no ambiguity in R's witness statements as to the place where the offending the subject of count 9 had occurred. The only reasonable inference is that defence counsel recognised that the prosecutor had made an obvious mistake in his opening address.
R gave evidence at trial, generally consistent with her first and second witness statements, of:
(a)uncharged sexual acts allegedly committed by the appellant against her while she lived in Queensland many years before the offences pleaded in the indictment (ts 103 ‑ 106);
(b)two offences which allegedly occurred in her bedroom at the Brookdale house (ts 119 ‑ 123, 127 ‑ 132), although she indicated that there may have been other occasions which she was unable to recall (ts 132); and
(c)a subsequent offence which occurred at the appellant's parents' home in Merriwa (ts 132 ‑ 138).
However, the details which R gave in evidence about one of the two alleged offences at the Brookdale house were materially different from the details in her first witness statement.
The first incident described by R in evidence alleged that the appellant had put his hand on her leg and dragged it towards her crotch (ts 121, 128). The second incident described by R in evidence alleged an act of digital penetration of her vagina (ts 128, 130).
In my opinion, R's evidence at trial about the second incident at the Brookdale house is capable of supporting the appellant's conviction on count 7. However, in any event, the complaint in ground 1 (as broadened in argument at the hearing of the appeal) is confined to count 8.
I am satisfied that there is merit in the appellant's complaint in ground 1 (as broadened in argument at the hearing of the appeal) about his conviction on count 8.
R's evidence at trial in relation to the first incident at the Brookdale house, namely that the appellant had put his hand on her leg and dragged it towards her crotch, was either an uncharged act or a lesser form of indecent assault than the allegation pleaded in count 8, namely that the appellant had rubbed her vagina with his fingers on the inside of her underpants.
Prior to the issue being raised with the trial judge (ts 253 ‑ 258), it could not fairly be said that the State's case on count 8 involved an allegation of indecent assault, being the appellant touching R's vagina, which happened immediately before count 7, being the appellant's act of digital sexual penetration. The State intended, and the defence would reasonably have understood, that counts 7 and 8 referred to acts which occurred as part of different incidents on different days, and not to acts which occurred moments apart in the course of a single incident.
When her Honour raised counts 7 and 8 with the prosecutor, she was endeavouring to reconcile R's evidence with those counts as pleaded in the indictment, while noting that the prosecutor, in his opening address, 'didn't pin [himself] at all on anything' (ts 253 ‑ 254). It was understandable, in the circumstances, that her Honour did not appear to have regard to R's witness statements when considering how her evidence at trial related to counts 7 and 8 as pleaded.
Remarkably, and for reasons which are unknown, the prosecutor agreed with the trial judge when she proposed directing the jury that counts 7 and 8 constituted sequential acts that occurred during the course of a single incident (ts 258). Similarly, it is remarkable and unknown why defence counsel acquiesced, without objection, in her Honour's proposed direction.
The State should not have been permitted in closing to put its case on counts 7 and 8 on a basis materially different from the basis on which its case had previously been run. As I have mentioned, the State had intended, and the defence would reasonably have understood, that counts 7 and 8 referred to different incidents on different days, and not to acts which occurred moments apart in the course of a single incident. It was unfair for the State to depart from its case by accepting that counts 7 and 8 should be left to the jury on the basis that they related to two separate acts which occurred, moments apart, during a single incident. Defence counsel's conduct in failing to object was unreasonable and uninformed, and entrenched the unfairness. There was no reasonable basis (for example, the attempted securing of a forensic or tactical advantage) for defence counsel's failure to object. In the circumstances, the State's unfair departure from its case, combined with defence counsel's conduct in failing to object, has resulted in a miscarriage of justice in relation to count 8.
It is unnecessary, in the circumstances, to consider the merits of the balance of ground 1, as broadened in argument at the hearing of the appeal.
That part of ground 1, as broadened in argument at the hearing of the appeal, which I have dealt with, has been made out.
The merits of ground 2
In my opinion, there was a miscarriage of justice with respect to the appellant's conviction on count 9 in the indictment, but for reasons which are, at least in part, different from those advanced by the appellant in support of ground 2.
R's evidence at trial, as to when she commenced living at the Brookdale house, was to the following effect:
(a)R continued to live in her father's parents' home in Bassendean, after the Brookdale house was built, until the end of the school year in which the house was completed;
(b)the school year in question was year 7, being the last year of primary school;
(c)R commenced living at the Brookdale house at the end of year 7; and
(d)R commenced high school the following year (which would, necessarily, have been year 8), namely 1993 (ts 107 ‑ 108).
On 1 October 1993, during her first year at high school, R was struck by a motor vehicle and the collision broke her leg (ts 108 ‑ 109).
R gave evidence that the appellant moved from Queensland to Western Australia when she was in year 9 (her 14th birthday was on 24 May 1994). According to R, the appellant lived with her and her family at the Brookdale house for 'about three to four months' before the appellant's parents (R's grandparents) also moved from Queensland to Western Australia and purchased the Merriwa house (ts 110 ‑ 111).
R alleged that, during the period when the appellant was living with her and her family at the Brookdale house, offences were committed in the context of the appellant entering her bedroom and offering to assist her with her homework (ts 121, 128).
R said in evidence that she wore a cast on her broken leg for 'about a year and a half' after the collision (the collision having occurred on 1 October 1993) (ts 109). It necessarily followed, from that evidence, that the cast was removed during the first half of the 1995 calendar year.
R said the cast was a 'quarter cast'. It extended from her foot to her knee (ts 109). R was wearing the cast on her leg when the first incident she described in evidence occurred (namely the appellant putting his hand on her leg and dragging it towards her crotch) (ts 123), but had ceased wearing it when the second incident she described in evidence occurred (namely the act of digital penetration of her vagina) (ts 129 ‑ 130).
R gave evidence that she stayed with the appellant's parents (her grandparents) at the Merriwa house for two weeks, during school holidays, when she was in year 10 (which, on her other evidence, would have been in the 1995 calendar year) (ts 132 ‑ 133). She said the school holiday period was in a different 'calendar year' from the year in which the appellant was living at the Brookdale house (ts 133).
R said she was 'sent' to the Merriwa house because she had been 'failing at school … earlier on in the year' (ts 133). She alleged that the appellant offended against her at the Merriwa house in the context of the appellant purportedly helping her with her school work (ts 134 ‑ 135).
R gave evidence that when she stayed at the Merriwa house for two weeks another uncle, PF, took her and her cousins to Underwater World for a day. She returned to the Merriwa house after the outing (ts 138 ‑ 139).
R's mother, DYC, said in evidence that the appellant lived with her and her family at the Brookdale house for a period (which she was unable to specify) after he arrived from Queensland and before he moved to the Merriwa house (ts 174). She could not specify the year in which that period occurred. DYC said in cross‑examination that, at some stage, R went to the Merriwa house during school holidays, but she could not recall whether R stayed at the Merriwa house for two weeks (ts 187 ‑ 188). DYC recalled that R went on an outing to Underwater World during her time at the Merriwa house (ts 188).
As I have mentioned, the appellant said in his video‑recorded interview with the police that he moved from Queensland to Western Australia in 1997 or, perhaps, 1998.
Section 39(1) of the Criminal Appeals Act 2004 (WA) provides that an appeal court must decide an appeal on the evidence and material that were before the lower court. By s 39(3), however, s 39(1) does not affect the power of an appeal court to admit evidence pursuant to s 40 of the Criminal Appeals Act. Section 40(1) provides, relevantly:
For the purposes of dealing with an appeal, an appeal court may do any or all of the following ‑
(a)order the production of any record or thing, whether or not an exhibit, that is or may be relevant to the appeal;
(b)order a witness who would have been compellable at the trial in the lower court, whether or not called at the trial, to attend and be examined before the appeal court;
…
(d)subject to the Evidence Act 1906 section 9, admit the evidence of a witness, including a convicted appellant, who is a competent but not compellable witness;
(e)admit any other evidence.
In Rinaldi v The State of Western Australia [2007] WASCA 53, Steytler P said, in relation to s 40(1)(a), (b), (d) and (e):
While these provisions afford the Court a discretion, which is not expressed to be limited in any way, to do any of the things provided for, it is most improbable that the legislature intended that they 'should be construed in a way that would have the practical effect of obliterating the distinction between original and appellate jurisdiction': CDJ v VAJ (1998) 197 CLR 172 at [111] per McHugh, Gummow and Callinan JJ (dealing with the provisions of s 93A(2) of the Family Law Act 1975 (Cth)) and see also De La Espriella-Velasco [[2006] WASCA 31; (2006) 31 WAR 291] at [150] per Pullin JA. The common law principles have, of course, been developed over many years in order to meet the ends of justice and the considerations giving rise to them will plainly be material to the exercise of the statutory discretion, which must be exercised judicially. While the common law principles touching upon the distinction between new and fresh evidence are not necessarily determinative of the manner of exercise of the statutory discretion, the considerations giving rise to those principles will ordinarily be weighty, so much so that it will be a rare case in which an exercise of the statutory discretion produces a different outcome to that produced by application of the common law principles [84].
Where an accused has been convicted, an appellate court will not allow an appeal, on the basis of new as distinct from fresh evidence, unless the new evidence establishes that the appellant is innocent or the new evidence raises such a doubt that the court is satisfied that the appellant should not have been convicted. See Lawless v The Queen [1979] HCA 49; (1979) 142 CLR 659, 675 ‑ 676 (Mason J); DPJB v The State of Western Australia [2010] WASCA 12 [66] (Owen JA, McLure P relevantly agreeing).
Where an accused has been convicted, an appellate court will not allow an appeal, on the basis of fresh as distinct from new evidence, unless there is a significant possibility that, on the basis of all of the admissible evidence (that is, the fresh evidence and the evidence given at trial) a fact finding tribunal, acting reasonably, would have acquitted the accused. See Gallagher v The Queen [1986] HCA 26; (1986) 160 CLR 392, 399 (Gibbs CJ), 402 (Mason & Deane JJ); Mickelberg v The Queen [1989] HCA 35; (1989) 167 CLR 259, 273 (Mason CJ), 301 ‑ 302 (Toohey & Gaudron JJ).
In the present case, the proposed additional evidence is new (and not fresh) evidence.
An offender who appeals against his or her conviction on the basis of an allegation that defence counsel was incompetent must demonstrate that defence counsel's conduct caused a miscarriage of justice. It is a heavy burden which is not easily discharged. See TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124 [74] (McHugh J).
This issue was examined in McMahon v The State of Western Australia [2010] WASCA 143. McLure P (Buss JA agreeing & Mazza J relevantly agreeing) said:
In this context, miscarriage of justice has two aspects, process and outcome. If the conduct of counsel has deprived the accused of a fair trial according to law, that will give rise to a miscarriage of justice without regard to whether counsel's conduct might have affected the outcome: TKWJ [76] (McHugh J); Nudd v The Queen [2006] HCA 9 [3] ‑ [7] (Gleeson CJ). This corresponds with that limb of the proviso where there is a serious breach of the pre-suppositions of a trial: Weiss v The Queen (2005) 224 CLR 300 [46]; Wilde v The Queen (1988) 164 CLR 365, 373. A complete failure to cross-examine a complainant or a complete failure to address the jury may result in an unfair trial: TKWJ [76]. So too may wrong advice that an accused is not entitled to give evidence: Nudd [17].
In the majority of cases, irregular conduct of counsel will not deprive the appellant of a fair trial. In such circumstances, the ultimate question of whether a miscarriage of justice has occurred raises two issues. First, did counsel's conduct result in a material irregularity in the trial. Secondly, is there a significant possibility that the irregularity affected the outcome: TKWJ [79] (McHugh J); Ali v The Queen (2005) 79 ALJR 662 [18] (Hayne J).
The test of whether there is a material irregularity is objective: TKWJ [17], [27] ‑ [28], [107]. Ordinarily, it is difficult to establish a material irregularity when the alleged error of counsel concerned forensic choices upon which competent counsel could have differing views: TKWJ [81]. However, if the error of counsel plainly affected the result of the trial, there will be a miscarriage even though the error involved a forensic choice or judgment. Where the error involves the failure to adduce evidence, there are parallels with the test for the admission of new or fresh evidence: TKWJ [32] [sic] (Gaudron J) [25] - [27]. (emphasis added)
See also KLM v The State of Western Australia [2009] WASCA 73; (2009) 194 A Crim R 503 [47] ‑ [55] (Martin CJ, Le Miere AJA agreeing).
In TKWJ, Gaudron J observed:
As in the case where there is a defect or irregularity in the trial, the reason why something occurred or did not occur is relevant to the question whether, in the circumstances, there was a miscarriage of justice. But the relevant question that must ultimately be answered, is whether the act or omission resulted in a miscarriage of justice, not whether, if it is referable to the course taken by defence counsel, it was the result of 'flagrant incompetence', 'egregious error' or the like.
An accused will not ordinarily be deprived of a chance of acquittal that is fairly open if that chance is foreclosed by an informed and deliberate decision to pursue or not to pursue a particular course at trial. As was said by Barwick CJ in relation to fresh evidence in Ratten v The Queen:
'[A trial] will not become an unfair trial because the accused of his own volition has not called evidence which was available to him at the time of his trial, or of which, bearing in mind his circumstances as an accused, he could reasonably have been expected to have become aware and which he could have been able to produce at the trial' (Ratten (1974) 131 CLR 510 at 517) [31] ‑ [32].
The passage which Gaudron J quoted from the reasons of Barwick CJ in Ratten v The Queen [1974] HCA 35; (1974) 131 CLR 510, 517 was concerned with new (not fresh) evidence. Her Honour's statement that the passage from Barwick CJ's reasons in Ratten was in relation to 'fresh evidence' was, with respect, incorrect. See Durani v The State of Western Australia [2012] WASCA 172 [113] ‑ [114] (Mazza JA, McLure P & Buss JA agreeing).
In TKWJ, Gaudron J went on to say:
Where it is claimed that a miscarriage of justice was the result of a course taken at the trial, it is for the appellant to establish that the course was not the result of an informed and deliberate decision. This he or she will fail to do if the course taken is explicable on the basis that it could have resulted in a forensic advantage unless, in the circumstances, the advantage is slight in comparison with the disadvantage resulting from the course in question. It should be added, moreover, that where the course in question is the failure to call evidence, an appellant will not establish a miscarriage of justice unless, as with fresh evidence, the evidence is such that 'when viewed in combination with the evidence given at trial … the jury would have been likely to entertain a reasonable doubt about the guilt of the accused' [Mickelberg v The Queen (1989) 167 CLR 259 at 301, per Toohey and Gaudron JJ. See also at 273, per Mason CJ; at 275, per Brennan J] [33].
As McLure P noted in McMahon, there are parallels between a material irregularity at a trial which involves an error by defence counsel in failing to adduce evidence, on the one hand, and the test for the admission of new or fresh evidence on appeal, on the other [27]. However, as I will explain later in these reasons, it is unnecessary, in the present case, to explore the nature of those parallels or how (if at all) the test of whether there was a material irregularity, where the alleged error of defence counsel involved failing to obtain and adduce evidence, is different from the test for the admission of new evidence. I merely note that:
(a)an alleged error by defence counsel in failing to adduce evidence or in failing to obtain and adduce evidence must necessarily relate to new (and not fresh) evidence; and
(b)whether a material irregularity will occur at trial and whether defence counsel will make an error, at least in some circumstances, where defence counsel has failed to obtain and adduce evidence does not need to be decided in the present case.
As to the additional evidence in relation to count 9:
(a)The additional evidence establishes that the appellant's parents did not commence living at the Merriwa house until, at the earliest, 11 November 1997.
(b)It was not suggested at the trial that R had repeated a year of school. She would therefore have completed her schooling, in year 12, at the end of 1997.
(c)On the basis of R's evidence that count 9 happened in the calendar year after the appellant lived at the Brookdale house, the earliest that the alleged offending the subject of count 9 could have occurred would have been during the first term school holiday period in 1998. By that time, however, R had completed her schooling.
(d)Although the State was not bound to prove beyond reasonable doubt the particulars in the indictment as to when and where the alleged offence the subject of count 9 occurred, R gave evidence which linked the occurrence of the offending to the appellant purporting to assist her with her school work at the Merriwa house. It was an integral part of her evidence as to the circumstances in which the alleged offending occurred.
(e)The additional evidence gives rise to a serious doubt as to R's credibility and reliability in that the additional evidence establishes that the offending could not have occurred while she was attending school. Further, the offending could not have occurred in the circumstances described in her evidence, namely that she had been 'sent' to the Merriwa house because she was not doing well at school and the appellant was purporting to help her with her school work when he committed the offence.
(f)I am satisfied, on the basis of my assessment of the additional evidence in the context of my examination of the trial record, that the additional evidence raises such a doubt that the appellant should not have been convicted on count 9.
Ground 2, as broadened in argument at the hearing of the appeal, has been made out in respect of count 9 on the basis of the additional evidence.
As to the additional evidence in relation to counts 7 and 8:
(a)As I have mentioned, R said in evidence that she wore the cast on her broken leg for 'about a year and a half' after the collision (the collision having occurred on 1 October 1993) (ts 109). It necessarily followed, from that evidence, that the cast was removed during the first half of the 1995 calendar year.
(b)R said she was wearing the cast on her leg when the first incident she described in evidence occurred (ts 123), but she had ceased wearing it when the second incident she described in evidence occurred (ts 129 ‑ 130).
(c)R, DYC and W gave evidence at the trial to the effect that the appellant lived with R and her family at the Brookdale house after he moved from Queensland to Western Australia and before he commenced living with his parents at the Merriwa house. R said the appellant lived with her family in Brookdale for three to four months before moving to Merriwa (ts 110 ‑ 111). DYC said he lived with her family in Brookdale after he moved from Queensland and before he went to live with his parents in Merriwa, but she was unable to recall how long he stayed in Brookdale (ts 174). W said that, when she was aged 9 or 10, the appellant lived with them in Brookdale after he moved from Queensland to Western Australia (ts 59).
(d)The appellant said in his video‑recorded interview with the police that he only resided at the Brookdale house on a temporary basis. He said this was for about four months before his parents moved from Queensland to Western Australia and he commenced living with them at the Merriwa house. He claimed that before his parents moved from Queensland he stayed mainly at the home of his brother, PF, and sometimes with DYC and her family at the Brookdale house (VROI 10, 19 ‑ 20).
(e)The additional evidence establishes that R's evidence as to the year in which the alleged offences the subject of counts 7 and 8 occurred was incorrect.
(f)However, the additional evidence in relation to counts 7 and 8 does not have the significance or probative force of the additional evidence in relation to count 9. In particular, R's evidence about when she wore, and when she ceased to wear, the cast on her leg related to the timing of the alleged offences the subject of counts 7 and 8. It was not an integral part of her evidence as to the circumstances in which the alleged offending occurred. That is, it was not relevant to the circumstances surrounding the alleged offending or to the particular acts allegedly performed by the appellant.
(g)In my opinion, the additional evidence, in the context of the evidence given at trial, does not establish that the appellant is innocent in relation to counts 7 and 8 and does not raise such a doubt that I am satisfied that the appellant should not have been convicted on those counts.
Ground 2, as broadened in argument at the hearing of the appeal, has not been made out in respect of count 7 or count 8 on the basis of the additional evidence.
I turn to consider the impact (if any) of my conclusion that:
(a)ground 1, as broadened in argument at the hearing of the appeal, has been made out in respect of count 8; and
(b)ground 2, as broadened in argument at the hearing of the appeal, has been made out in respect of count 9 on the basis of the additional evidence,
on the appellant's conviction on counts 5, 6 and 7.
The State relied at trial on the evidence of each complainant (that is, each of W, S and R) as propensity evidence, within s 31A of the Evidence Act 1906 (WA), in respect of the offences alleged against the appellant in relation to the other complainants.
The trial judge gave the jury these directions about the propensity evidence in her summing up:
But what use can you make of the fact that [W, S and R] are saying that [the appellant] has been guilty of sexual misconduct towards them? If you accept the evidence of any one of the three women to be truthful and reliable about what she says happened to her, if you find one or more charges in relation to one of the three women to be proved, then that finding of fact could support the evidence of another complainant in this way.
The evidence of one woman, if you accept it as truthful and reliable, may be regarded by you as tending to prove that [the appellant] has demonstrated a tendency to do something which is out of the ordinary bounds of human behaviour. That is to say, to form an unnatural sexual attraction for a little girl, a member of his family and to act in a sexual way towards a little girl.
While [R] was not a little girl in relation to counts 7 to 9, she was a teenager of some age. So still a child, but not a little girl. She's also given evidence of things she said occurred when she was much younger in Queensland. And if you accept that evidence as being both truthful and reliable, you can take that evidence into account in this way, too.
You would think that normally a person would not form a sexual attraction to a little girl or a girl within his own family, and if he did, he wouldn't act upon it. You would also think that normally an uncle would not form a sexual attraction to a niece and would not act upon it.
The evidence of any one of these three women, if you accept it as truthful and accurate, may tend to prove that [the appellant] did have that tendency. It's entirely a matter for you whether you consider the evidence of any one of the complainants does prove that the accused had that tendency.
If you find, on the strength of accepting the evidence of one of the complainants that he did have such a tendency, then that may render it objectively more probably that he would act in a sexual manner towards another girl. In that way the evidence of one complainant may provide general support for the evidence of another. It's entirely a matter for you as to whether or not it does.
But you must not engage in circular reasoning. Before you could use the evidence of one complainant in this way, you'd need to be satisfied that the evidence of at least one of the complainants is truthful and accurate evidence in its own right. In other words, you can't say the evidence of [W] makes it more likely he did these things to [R] and the evidence of [R] makes it more likely he did these things to [W].
But if you come to be satisfied that one of the complainants is telling the truth and is accurate about a sexual offence committed upon her, one or more sexual offences committed upon her, then you're entitled to consider whether that evidence proves that [the appellant] had a tendency to form a sexual attraction to a young girl within the family and act upon it.
And if you do find he had that tendency then that may render it objectively more probable that he acted on that tendency to relation to another girl. And hence, provide general support for the account of another complainant (ts 315 ‑ 316).
Counts 8 and 9 related to R. Count 5 related to W, count 6 to S and count 7 to R. It is, of course, unknown whether and, if so, to what extent the jury relied on the evidence of R in respect of counts 8 and 9 as propensity evidence in considering the appellant's guilt on counts 5, 6 and 7 and, ultimately, in concluding that he should be convicted on those counts.
I am satisfied, by reason of the State's reliance at trial on the evidence of each complainant as propensity evidence, that my conclusion that:
(a)ground 1, as broadened in argument at the hearing of the appeal, has been made out in respect of count 8; and
(b)ground 2, as broadened in argument at the hearing of the appeal, has been made out in respect of count 9 on the basis of the additional evidence,
renders the appellant's conviction on counts 5, 6 and 7 unsafe and unsatisfactory.
It is unnecessary, in the circumstances, to consider the allegation in ground 2, as developed in argument at the hearing of the appeal, that there was a material irregularity at the trial because of the failure of defence counsel (who was also the appellant's solicitor) to obtain and adduce evidence as to when the appellant's parents commenced living at the Merriwa house; in particular, the failure of defence counsel to carry out a search at Landgate to ascertain when the appellant's parents became the registered proprietors of the Merriwa property.
The appropriate orders to be made in the appeal
I would grant the appellant an extension of time to appeal against conviction.
I would also grant the appellant and the State leave to adduce additional evidence in the appeal in accordance with their respective applications.
Section 30(5) of the Criminal Appeals Act applies in the case of an appeal against a conviction by an offender. It reads, relevantly:
If the Court of Appeal allows the appeal, it must set aside the conviction of the offence (offence A) and must ‑
(a)order a trial or a new trial; or
(b)enter a judgment of acquittal of offence A; or
(c)if ‑
(i)the offender could have been found guilty of some other offence (offence B) instead of offence A; and
(ii)the court is satisfied that the jury must have been satisfied or, in a trial by a judge alone, that the judge must have been satisfied of facts that prove the offender was guilty of offence B,
enter a judgment of conviction for offence B and impose a sentence for offence B that is no more severe than the sentence that was imposed for offence A.
In Director of Public Prosecutions (Nauru) v Fowler [1984] HCA 48; (1984) 154 CLR 627, Gibbs CJ, Murphy, Wilson, Deane and Dawson JJ noted that the power of an appellate court to grant a new trial is discretionary in character (630). Where an appellate court quashes a judgment of conviction it must decide whether it is in the interests of justice to order a new trial. Two broad issues arise for consideration in making that decision. First, the court must assess whether the admissible evidence adduced at the original trial was sufficiently cogent to support a conviction. If it was not, a new trial should not be ordered because it would give the prosecution an opportunity to supplement a defective case (630). Secondly, if the court determines that the admissible evidence adduced at the original trial was sufficiently cogent to support a conviction, the court must take into account 'any circumstances that might render it unjust to the accused to make him stand trial again, remembering however that the public interest in the proper administration of justice must be considered as well as the interests of the individual accused' (630).
In King v The Queen [1986] HCA 59; (1986) 161 CLR 423, Dawson J reiterated that the discretion to order a new trial should not be exercised 'when the evidence in the court below was not sufficiently cogent to justify a conviction or to allow the Crown to supplement a case which has proved to be defective' (433). His Honour noted, in particular, that 'the Crown should not be given an opportunity to make a new case which was not made at the first trial: R v Wilkes [(1948) 77 CLR 511, at p 518)] (433)'. See, to similar effect, the observations of McHugh J in Jiminez v The Queen [1992] HCA 14; (1992) 173 CLR 572, where his Honour held that a new trial should not be ordered because 'a second trial would allow the Crown to make a case different from that which it put to the jury at the first trial' (590). See also Parker v The Queen [1997] HCA 15; (1997) 186 CLR 494, 520 (Dawson, Toohey & McHugh JJ).
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 (Finlay J & Slattery AJ agreeing) in Anderson v The Queen (1991) 53 A Crim R 421, 453 that:
(a)there is a public interest in the due prosecution and conviction of offenders; and
(b)it is desirable, if possible, for the guilt or innocence of an accused to be finally determined by a jury.
In Taufahema, Gleeson CJ and Callinan J (who with Kirby J dissented in the result) said that the references by Dixon J in R v Wilkes [1948] HCA 22; (1948) 77 CLR 511, 518, and by Dawson J in King (433), to 'a new case' must be 'to the particulars of the charge, and to the nature of the evidence that will be adduced in support of it, not to the elements of the offence' [35] ‑ [36].
Gleeson CJ and Callinan J also said in Taufahema that the general rule that 'litigants are bound by the conduct of their counsel, a rule essential to the adversarial system, applies with at least as much force to the prosecution as to the defence' [37]. Their Honours explained:
The considerations identified in Crampton v The Queen [(2000) 206 CLR 161 at 172 ‑ 173 [15] ‑ [20]] as reasons for the rule confining the circumstances in which a new point may be taken in this Court on a criminal appeal by an accused person are relevant in this context also. In particular, the adversarial procedure of criminal justice, which is bound up with notions of judicial independence and impartiality, and according to which the issues at trial are chosen and defined by the parties and their counsel, is at the heart of the matter. It is the executive branch of government that decides whether to prosecute, and what charges to lay. A trial is fought as a contest between the executive government and a citizen. The judge presides neutrally over that contest. Counsel for the respective parties define the issues, decide what witnesses will be called and what
questions will be asked, and decide what arguments will be pursued and what will be abandoned [37].
Gummow, Hayne, Heydon and Crennan JJ, who constituted the majority in Taufahema, reviewed the decisions in Wilkes, King, Jiminez and Parker, and said that these authorities suggest that 'the difference between the case relied on in a first trial and the case to be relied on in a second trial must be substantial if the difference is to stand as a bar to an order for a second trial' [67].
In my opinion, the interests of justice favour an order setting aside the judgments of conviction on counts 8 and 9 and an order entering judgments of acquittal on those counts.
However, although I am of the opinion that the judgments of conviction on counts 5, 6 and 7 must be set aside, I am satisfied that the interests of justice favour an order for a new trial on those counts. After examining the trial record, in the context of the additional evidence, I am unable to conclude that the State has no reasonable prospect of success on counts 5, 6 and 7 at a new trial. Indeed, on my evaluation, the State has at least reasonable prospects of persuading a properly instructed jury that, on the evidence adduced at trial and the additional evidence, the jury should be satisfied beyond reasonable doubt as to the appellant's guilt on each of counts 5, 6 and 7. I have taken into account, in deciding where the interests of justice lie, the impact of the additional evidence on R's credibility and reliability as a witness. I have also taken into account that the appellant has served a significant part of the total effective sentence imposed by the trial judge and that if the appellant is convicted on counts 5, 6 and 7 after the new trial he is likely (by virtue of his acquittal on counts 8 and 9) to receive a total effective sentence which is materially lower than the total effective sentence imposed by her Honour. The facts and circumstances of the case do not render it unjust to make the appellant stand trial again on counts 5, 6 and 7.
MAZZA JA: I agree with Buss P.
MITCHELL JA: I agree with Buss P.
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