Cnd v The State of Western Australia [No 2]
[2022] WASCA 159
•1 DECEMBER 2022
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: CND -v- THE STATE OF WESTERN AUSTRALIA [No 2] [2022] WASCA 159
CORAM: BUSS P
MAZZA JA
HALL JA
HEARD: 18 OCTOBER 2022
DELIVERED : 1 DECEMBER 2022
PUBLISHED : 1 DECEMBER 2022
FILE NO/S: CACR 85 of 2022
BETWEEN: CND
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : CHILDREN'S COURT OF WESTERN AUSTRALIA
Coram: QUAIL DCJ
File Number : KH 225 of 2021
Catchwords:
Criminal Law - Appeal against conviction - Fresh evidence - Where fresh evidence is evidence of prior inconsistent statement by the complainant regarding the issue of consent - Where fresh evidence relevant to the credibility of the complainant - Whether fresh evidence relevant, credible and cogent - Whether evidence capable of being accepted as true by the finder of fact - Whether there is a significant possibility that the finder of fact would have acquitted the appellant if the fresh evidence had been adduced at the trial
Legislation:
Criminal Appeals Act 2004 (WA)
Result:
Leave to appeal granted
Appeal allowed
Conviction set aside
Retrial before a different judge ordered
Representation:
Counsel:
| Appellant | : | Mr M D Howard SC & Ms J C Solliss |
| Respondent | : | Mr R F Owen |
Solicitors:
| Appellant | : | Magenta Legal |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Amiss v The State of Western Australia [2006] WASCA 171; (2006) 165 A Crim R 387
ARK v The State of Western Australia [2014] WASCA 45
Beamish v The Queen [2005] WASCA 62
Coffman v The Queen [2010] WASCA 54; (2010) 202 A Crim R 375
Craig v The King [1933] HCA 41; (1933) 49 CLR 429
Gallagher v The Queen [1986] HCA 26; (1986) 160 CLR 392
Ilic v The Queen [2000] WASCA 411
Mickelberg v The Queen [1989] HCA 35; (1989) 167 CLR 259
Mickelberg v The Queen [No 2] [2004] WASCA 145; (2004) 29 WAR 13
Muller v The State of Western Australia [2014] WASCA 81
O'Meara v The State of Western Australia [2013] WASCA 228
PAS v The State of Western Australia [2009] WASCA 210; (2009) 212 A Crim R 546
Ratten v The Queen [1974] HCA 35; (1974) 131 CLR 510
White v The Queen [2006] WASCA 62
JUDGMENT OF THE COURT:
The appellant was convicted after a trial in the Children's Court of one count of sexual penetration without consent, contrary to s 325 of the Criminal Code (WA). On 5 September 2022, he was sentenced to 12 months' immediate imprisonment. He seeks leave to appeal against his conviction.
The sole ground of appeal is that there has been a miscarriage of justice because fresh evidence has emerged which raises a significant possibility that the appellant would have been acquitted had that evidence been available at the trial.
At trial, the critical issue was consent. The fresh evidence is that of KM, a former friend of the complainant, as to a conversation she had with the complainant approximately a week after the incident which was to the effect that the act of sexual penetration was consensual. The fresh evidence is said to have the capacity to materially affect an assessment of the credibility of the complainant on the issue of consent.
On the hearing of the appeal, the appellant called KM and also tendered, without objection, affidavits from the appellant, his lawyer and his mother. The respondent called the complainant and also tendered, without objection, affidavits from two police officers and an affidavit from a Director of Public Prosecutions (DPP) lawyer.
On 18 October 2022, the court heard the appeal. On 24 October 2022, the court granted the appellant bail pending the determination of the appeal or further order.
There are two issues for determination in this case. First, whether the evidence is fresh in the sense that it was unknown to the appellant and could not, with reasonable diligence, have been discovered. Secondly, whether the fresh evidence, considered in the context of all of the other evidence given at trial, has sufficient cogency to establish that there is a significant possibility that the trial judge would have acquitted the appellant had the fresh evidence been known and adduced at the trial.
In relation to the second question, the fresh evidence is evidence that is relevant only to the credibility of the complainant. Accordingly, any assessment of the potential significance of the evidence needs to take into account:
1. the extent to which the prosecution case depended upon the evidence of the complainant;
2. whether the fresh evidence could materially affect an assessment of the complainant's evidence that the sexual offence occurred; and
3. the extent to which there was other evidence that supported the complainant.
Having considered the evidence of KM, we are satisfied that it is fresh evidence as it was unknown to the appellant at the time of the trial and could not, with reasonable diligence, have been discovered. We are also satisfied that the evidence of KM is sufficiently cogent to establish a significant possibility that the trial judge would have acquitted the appellant had that evidence been known and adduced at the trial. Accordingly, a miscarriage of justice has been established. Leave to appeal should be granted, the appeal allowed, the conviction set aside and a retrial before a different judge ordered.
The prosecution case
Both the appellant and the complainant were 17 years old at the time of the incident and had known each other for approximately two to three years. They both lived in a regional town and were part of the same social group but were not close friends.[1]
[1] Trial ts 12 - 13.
The prosecution case was that on the evening of Sunday 8 August 2021, the complainant was with her then-boyfriend, JG, and another friend, LR, at JG’s house. LR was also a friend of the appellant. The appellant, who had just finished work, messaged LR to the effect that he wanted to come over and that he wanted to sleep with the complainant.[2]
[2] Trial ts 13.
At about 11.30 pm, the appellant arrived in a car and pulled up outside JG's house. The complainant, JG and LR all went out to talk to him. The complainant got in the front passenger seat. The appellant then locked the car doors and raised the windows. LR asked the appellant if he could come but the appellant said no and drove off.[3]
[3] Trial ts 13 - 14.
The appellant and the complainant were alone in the car. They went for a drive for about 10 or 15 minutes, and then stopped at a park. The appellant said that he wanted to go for a walk and they both got out and went for a walk together. The appellant asked the complainant if she would ever cheat on her boyfriend, and she said that she would not. The appellant then said words to the effect of 'nobody would ever find out.'[4]
[4] Trial ts 14.
The prosecution case was that the appellant then forcefully pushed the complainant down onto a bench. She repeatedly said 'no' and started crying. He pulled down her pants and was holding her arms. He then took down his own pants and sexually penetrated her vagina with his penis. After about seven to 10 minutes the appellant ejaculated, pulled his pants up, and said words to the effect of 'I should have done that earlier.'[5]
[5] Trial ts 14.
The complainant asked the appellant to take her back to JG's house. The appellant drove her back and dropped her off at the front of the house. The complainant went to JG's bedroom and started crying and then told him that the appellant had tried to touch her. She then spoke on the telephone to a friend and again said that the appellant had tried to touch her.[6]
[6] Trial ts 14.
The friend insisted on coming over and took the complainant to the town hospital. On the way the friend asked whether the complainant had been raped and she nodded. The matter was then reported to the police.[7]
[7] Trial ts 15.
At the conclusion of the prosecution opening, counsel for the appellant at the trial stated that sexual penetration and identity were admitted pursuant to s 32 of the Evidence Act 1906 (WA). Counsel said that the real issue was consent.[8]
[8] Trial ts 16.
Prosecution evidence at trial
The complainant
The complainant said that on the afternoon of Sunday 8 August 2021 she was at the home of her now ex-boyfriend, JG. At the time, she had been going out with JG for about four to five months. Also at JG's house that afternoon was LR.[9]
[9] Trial ts 24.
Between 4.30 pm and 11.00 pm, the complainant, JG and LR were drinking alcohol, specifically vodka mixed with creaming soda and orange juice. The complainant said that she had about five drinks and was a little bit tipsy early in the evening.[10]
[10] Trial ts 24.
During the evening, the complainant received a message from the appellant on Snapchat asking if she wanted to go for a drive. She had known the appellant for about five years and said they were just friends who had never caught up one-on-one. The complainant responded by asking if LR could come and the appellant replied that he did not like LR.[11]
[11] Trial ts 25 - 26.
At around 11.00 pm, the appellant sent the complainant another Snapchat message saying that he was at JG's house. She went out of the house and got in the front seat of his car and waited for JG and LR, who she thought would also get in the car. JG and LR came out to the car and LR tried to get in. The appellant repeated that LR could not come because he did not like him. The complainant did not recall any conversation about whether or not JG could come. JG walked up to the car and then walked off, looking angry, and went inside.[12]
[12] Trial ts 26 - 27.
The appellant then drove off. He stopped outside the house of a former friend of the complainant and drove off sounding the horn of the car. He then stopped at a park. He told the complainant to get out and to come for a walk. They went for a walk together and sat down on a park bench. The complainant felt a little bit uncomfortable because it was awkward, quiet and tense. The appellant asked her if she would ever cheat on JG, to which she said no. He then said that no-one would have to know if she did.[13]
[13] Trial ts 27, 29 - 32.
The appellant pushed down on the complainant's upper arms. She leant backwards on a table, and he pushed down on her forearms with his elbows and arms. She told him to stop multiple times and said that she 'didn't want it.' He pulled down her pants and underwear while she cried and told him to stop.[14]
[14] Trial ts 32.
The complainant could not recall the appellant removing his pants. However, she said that he had one hand on one of her arms and used his other hand to insert his penis inside her vagina. She again told him to stop. For about 10 seconds after the initial penetration she tried to push him off, but eventually went quiet and just let it happen. She said that it was terrifying, and she just froze and felt helpless. The penetration continued for five to 10 minutes, stopping after the appellant ejaculated.[15]
[15] Trial ts 33 - 34.
The complainant said that she did not give permission for the appellant to put his penis inside her vagina, did not tell him (and had never told him) that she was interested in having sex with him that night, and had never been physically intimate with him prior to that night.[16]
[16] Trial ts 36.
As they were walking back to the car, the appellant said that he should have done it a lot earlier. The complainant said that she did not respond to this. She asked him to take her to JG's house. She said she did this because it was the middle of the night, and she had no way of getting home.[17]
[17] Trial ts 34, 36.
At JG's house, the complainant spoke briefly to LR and then went to JG's room, laid down in bed with him, and started crying and shaking. JG asked what was wrong, and she told him that the appellant had touched her. She then called her friend CG and told her that she had been sexually assaulted and needed to go to the hospital. CG replied that she was on her way and would be there soon.[18]
[18] Trial ts 37 - 38.
CG arrived about half an hour later with her friend, who was driving. The complainant was upset and crying. They drove to the hospital. At the hospital, the complainant received a text message from the appellant on Snapchat reading 'I had fun xx'.[19]
[19] Trial ts 38 - 39.
The complainant spoke to the nurses at the hospital about the events at the park. Police attended and she also told them what had happened. Forensics officers took photos of the complainant, including of a small bruise on her right upper arm which she assumed was caused by the appellant.[20]
[20] Trial ts 39 - 40.
In cross-examination, the complainant agreed that she was not welcome at her mother's house at the time and was staying with JG. She agreed that she communicated with the appellant via Snapchat around 11.30 pm on the night in question. She agreed that there were some messages between her and the appellant which had not been saved and she did not know who started the Snapchat conversation. She agreed that she told the appellant, via Snapchat, to pick her up, provided an address, and said 'or just me? not the others?' However, she denied wanting to go for a drive alone with the appellant and denied that the act of penetration was consensual.[21]
[21] Trial ts 42 - 50, 56.
The complainant agreed that she told hospital staff that she was on medications for mental health conditions, particularly depression, anxiety and post-traumatic stress disorder. She agreed that these conditions pre-dated the evening of 8 August 2021. She also volunteered that she had borderline personality disorder.[22]
JG
[22] Trial ts 67 - 68.
JG was the boyfriend of the complainant at the time of the offence.[23]
[23] Trial ts 76.
On the evening of the offence, JG was at his house with the complainant and LR. JG and LR had been close friends since year 10 of high school. At the time of the incident, JG had known the appellant for two years.[24]
[24] Trial ts 77.
During the evening, the complainant told JG that she was going for a drive with the appellant. She left the house shortly afterwards when the appellant arrived in his car. He and LR followed after the complainant. The complainant got into the front passenger's seat. He wanted to get into the car as well, but the doors were locked. He then walked to the front of the car and saw the appellant in the driver's seat. The appellant then drove off. JG was upset because the complainant had left, and he did not know where she was going or how long she would be.[25]
[25] Trial ts 77 - 79.
About 40 minutes to an hour later, JG received a text from the complainant saying she was going to be arriving soon. On her return, the complainant came to his bedroom, got into bed and after about 10 minutes started crying. He asked her what was wrong, but she did not tell him.[26]
[26] Trial ts 80 - 81.
The complainant went outside and spoke on the phone. She was emotional and upset. After she had finished on the phone, she asked JG to come outside to talk to her and told him that the appellant had tried to touch her. She was crying as she said this. She said that she had called her friend CG and that CG was coming to pick her up and take her to the hospital.[27]
[27] Trial ts 81.
CG arrived by car and took the complainant and JG to the hospital. During the five-to-10-minute drive to the hospital the complainant was still very upset. At the hospital, JG waited in the waiting room. The police then asked him to provide a statement.[28]
[28] Trial ts 82.
In cross-examination, JG agreed that he had been drinking during the afternoon and into the evening, and that he had felt the effects of the vodka more as the night wore on. He agreed that the complainant appeared to be somewhat affected by the vodka she drank. JG agreed that he sent the appellant a text message on Snapchat after the event, and he was very angry by that stage.[29]
LR
[29] Trial ts 84 - 86.
LR is a friend of the complainant and JG.[30]
[30] Trial ts 95.
On the afternoon of 8 August 2021, LR, the complainant and JG were drinking alcohol together at JG's house. LR recalled drinking cider, but says he was not very drunk, just a bit tipsy. The complainant was also tipsy.[31]
[31] Trial ts 96.
LR had known the appellant since year 7. They had been very good friends, but the friendship had cooled prior to 8 August 2021. He said that in the evening he received a Snapchat message from the appellant. He could not remember the exact wording of the message but thought it contained the word 'moin' - a slang term for sexual intercourse - and a reference to the complainant. He said that the appellant's text was to the effect that he wanted to have sex with the complainant. He showed the text to the complainant, who sent the appellant a video message from LR's phone saying 'No'. They treated the message from the appellant as a joke.[32]
[32] Trial ts 97 - 98.
Later that night, the appellant sent a text to the complainant asking if she wanted to go for a drive. She read the message out loud. LR asked if he could come and she replied to the effect of 'you can ask [the appellant] but I don't know if he will allow you to.'[33]
[33] Trial ts 100.
The appellant arrived at JG's house about 10 minutes later. LR went outside with the complainant and JG. LR said hello to the appellant, gave him a handshake and asked if he could come because no-one was in the back of the car. The appellant said no, locked the doors, put the windows up, and opened the front passenger side door so the complainant could get in. She then locked her door. LR saw JG approach the window to try to speak to the complainant. The appellant then drove off.[34]
[34] Trial ts 100 - 101.
The complainant returned 20 to 30 minutes later. She spoke to LR for about five minutes, but he did not remember what she said because he was very tired. She then went into JG's room.[35]
[35] Trial ts 102.
LR then received a call from CG asking him to check on the complainant to see if she was okay. He went outside and saw the complainant talking to CG on the phone. She seemed sad. He did not know why she was sad and was not told anything about what had occurred until the next day. CG arrived and took the complainant and JG to the hospital. LR remained at JG's house and stayed the night there.[36]
CG
[36] Trial ts 102 - 103.
CG is a friend of the complainant and had known her for about 11 years at the time of trial.[37]
[37] Trial ts 113.
On 8 August 2021, the complainant messaged CG to say that she had been kicked out of home and was staying with her boyfriend, JG. At about 7.00 pm that evening, CG telephoned the complainant to see how she was going. The complainant did not answer, so CG called JG and asked him if she could come over. The complainant then took the phone from JG and started talking. CG could tell that the complainant was intoxicated as she was slurring her words. However, she was still able to form sentences.[38]
[38] Trial ts 113 - 114.
CG and a friend then drove to JG's house. The complainant came out to greet them. The complainant offered CG something to drink while she was in the car. They then went to the backyard where CG had a single shot of vodka. At 10.00 pm CG and her friend left. At that point, the complainant was still affected by alcohol as she was slurring her words, although she could still walk properly.[39]
[39] Trial ts 114 - 115.
At midnight, CG sent the complainant a selfie via Snapchat. The complainant replied with a message asking where CG was. There was then an exchange of messages in which the complainant said that the appellant had touched her. CG then tried to call the complainant to make sure she was okay. The complainant did not answer but called CG back. The complainant was hysterically crying and said that she was going to walk to the hospital. CG then said that she and her friend would come to take the complainant to the hospital.[40]
[40] Trial ts 116 - 118.
CG and her friend picked up the complainant and JG and drove them to the hospital. On the way there, CG asked the complainant what happened. The complainant said that she got the appellant to pick her up to take her to another girl's house to fight her.[41]
[41] Trial ts 119.
At the hospital, the complainant spoke to the nurses. She told CG to call her mother and tell her what had happened. CG was then asked to go into a side room with the complainant. In the room, CG asked the complainant what had happened, to which she initially did not respond. CG then made a gesture at the complainant's genital area, asked if something happened and the complainant nodded. The complainant said that they went for a drive to the park and that 'stuff happened' at the park. She then made a gesture indicating that there was sexual intercourse between her and the appellant and that she was held down. She then said that afterwards the appellant said he had fun. He initially refused to take her to JG's but then dropped her off at the top of JG's street. CG gave the complainant a hug and sat with her and comforted her until her parents got to the hospital. CG asked the complainant if she had at least punched the appellant in the face and the complainant replied that she just froze.[42]
Jennifer Vance
[42] Trial ts 120 - 122.
Dr Jennifer Vance is a consultant in Emergency Medicine at Royal Perth Hospital and a senior medical officer at the Sexual Assault Resource Centre in Subiaco. She visits the town where the incident occurred once per month to work in the emergency department at the hospital.[43]
[43] Trial ts 133.
Dr Vance saw the complainant early in the morning of 9 August 2021 at the emergency department of the hospital. She performed a general physical examination, an external genital examination and an examination of the perianal area and noted no recent injuries.[44]
[44] Trial ts 133 - 135.
Dr Vance said that it is not unusual to find no general physical injuries in cases of alleged sexual assault. This conclusion was based on her own experience of examining approximately 280 adult and adolescent complainants of sexual assault as well as reviewing medical journals and research on the matter.[45]
[45] Trial ts 135.
In cross-examination, Dr Vance confirmed that the complainant had a contraceptive implant.[46]
Other witnesses
[46] Trial ts 137.
By consent, the prosecutor read in the statement of Probationary Constable Sofia Vujovich and part of the statement of Detective Senior Constable Michael Hitchcock.
Constable Vujovich obtained a statement from the complainant on 9 August 2021 at the hospital. She also took custody of the sport shorts and underwear the complainant was wearing underneath her track pants. She used her police-issued phone to take photographs of the complainant's mobile telephone and uploaded those photographs to the evidence management system. These photographs included some of the Snapchat messages sent by the appellant.[47]
[47] Trial ts 139 - 140.
Detective Hitchcock referred to the arrest of the appellant. He had also sought CCTV footage, but none was found that had any value to the investigation.[48]
[48] Trial ts 141 - 142.
Defence evidence at trial
The appellant
The appellant said that on the evening of 8 August 2021 he was working at KFC on a 3.00 pm to 11.00 pm shift. After closing up following his shift, he posted on his Snapchat story that he had closed up the store. The complainant sent him a private message in response, asking him to pick her up and go for a drive around town. He responded by saying that he was going to pick up some food and go home. The complainant again asked him to pick her up, so he agreed to do so.[49]
[49] Trial ts 143 - 145.
The appellant said that his intention was to go for a drive around as he was bored and did not really want to go home. The complainant sent him JG's address and asked him to pick just her up because she and JG were fighting, and she did not want to LR to come with them because he was intoxicated and being annoying.[50]
[50] Trial ts 146.
The appellant said that he did not recall any communication with LR in the afternoon and definitely did not talk to LR later that night. He said he had no discussion with JG, LR or the complainant involving use of the word 'moin'. He saved some of the Snapchat messages, but there were others that were not saved.[51]
[51] Trial ts 147 - 148, 151.
The appellant drove to JG's house and messaged the complainant to say he was there. She came out of the house and got into the front passenger's seat of the car. LR and JG also came outside. The complainant then told him to quickly lock the doors and go. He did lock the doors and then reversed out of the driveway.[52]
[52] Trial ts 157 - 159.
The complainant told the appellant that she was staying with JG because she had been kicked out of home, because her mum found her bong and she was caught sneaking out. She also said that she had been fighting a lot with JG. She said that JG would be jealous about her going in the car with him.[53]
[53] Trial ts 159.
The complainant then asked the appellant to take her to another girl's house because she wanted to have a fight with that girl. He said that he could show her where the house was, provided that she stayed in the car and did not create a scene. They drove to the house and he pointed it out before driving away.[54]
[54] Trial ts 160 - 161.
The complainant then asked the appellant to take her to a park commonly known as Dog Park. On arrival she got out of the car first and walked to the park benches. He followed behind her. They sat down on a bench and she gave him a long list of people she had slept with there. She then went silent, and he asked her whether she and JG were all right. She said that they were not in the best space and that JG had a problem with sexual intercourse. She said that she would cheat on JG because she had not had any sex in a while and that sex is just sex. He then asked her to confirm that she would cheat on JG and she said, 'Yes, I would. Why? Do you want to do anything?' He then asked her if she wanted to do something. She said, 'Yes, I've wanted to do something with you since year 8'.[55]
[55] Trial ts 162 - 165.
The appellant said that he and the complainant then started to kiss. While they were kissing, she put her hands down his pants to feel his erection and he put his hands up her shirt to touch her breasts. He was standing and she was sitting facing him. She did not have a bra on. They helped each other take their pants off. He was still wearing steel‑capped work boots, so he dropped his pants to his ankles. She was lying down on the table at that point. He tried to take her pants off but could not get them past her ankles and she helped him pull them the rest of the way off. He then touched her vagina and asked her, 'Do you want to fuck?' and she said, 'Yes, yes I want to fuck.'[56]
[56] Trial ts 165 - 167.
The appellant said that he stopped at that point and said, 'I don't have a condom. Do you have any - are you on the pill or anything?' She said she had a rod in her arm and led his hand to the inside of her bicep. He felt the contraceptive device there. She then directed his penis inside her vagina, and they started having sexual intercourse. At that point, she was laying down on her back and he had his hands on her hips. Her legs were on the side of his hips with her pelvis hanging off the table. He said it would have been impossible to have penetrated her if he was holding her down by the arms or the elbows.[57]
[57] Trial ts 167 - 168.
The appellant said that the complainant did not protest or say 'stop' at any point. He believed that it was '100 percent consensual and they both wanted to do it.' After what felt like 10 minutes, he apologised to her for taking so long and told her that he had very limited sexual experience. She said she did not mind and then suggested that she put her legs on his shoulders to make it feel tighter because it might help him to ejaculate quicker. He put her legs on his shoulders and then took them off because her socks 'stunk pretty bad.' Soon after, he ejaculated. She then said, 'It felt amazing, and no offence, I didn't think you would be that good. We should have done this a long time ago.' They both pulled their pants up, kissed each other again and then got up and made their way to the car.[58]
[58] Trial ts 169 - 170.
On the way back to the car, the appellant said that he had his hand in his pocket trying to readjust his genitals because they felt uncomfortable. The complainant pulled his hand out of his pocket to hold and said that it was good she had moved back to the town because she could message him and this could happen a lot more often. She said that she was 'walking gappy' and hoped that JG didn't notice.[59]
[59] Trial ts 170.
The appellant said that he drove the complainant back to JG's house. She asked him to slow his car as they approached the house because she did not want JG to hear her arriving. When they arrived, she said, 'Aren't you going to give me another kiss?' She then got out of the car and waved to him. He waved back and drove off.[60]
[60] Trial ts 171.
After he got home, the appellant ate some food, had a shower and put his clothes in the wash. At about 12.55 am on 9 August 2021, he messaged the complainant on Snapchat saying, “I had fun xx”.[61]
[61] Trial ts 172.
On the morning of 9 August 2021, the appellant went to school as normal. Police attended the school later the same day to arrest the appellant. The first thing that came to his mind was that he was caught having sex at the park and that he was in trouble for public indecency. When Detective Hitchcock told him what he was being arrested for, he said he was shocked.[62]
[62] Trial ts 173.
In cross‑examination, the appellant agreed that he and the complainant had been engaged in sexually flirtatious messages for the past few years. However, he said he was not attracted to her and could not remember being attracted to her.[63]
[63] Trial ts 178 - 180.
Trial judge's reasons
As the matter was dealt with in the Children's Court, the trial was by judge alone. At the conclusion of the trial, the trial judge gave oral reasons for concluding that the appellant was guilty of the offence. It is only necessary for present purposes to refer to those parts of the reasons that refer to the assessment of the credibility of the complainant.
The trial judge noted that the only witnesses as to what occurred were the appellant and the complainant. The complainant was the only prosecution witness who gave direct evidence as to what happened and, although there was evidence of surrounding circumstances, there was no evidence that corroborated her evidence as to the critical issue in dispute. In these circumstances, his Honour acknowledged that it was necessary for him to be satisfied beyond reasonable doubt as to the truthfulness, accuracy and reliability of the complainant's evidence before he could find the appellant guilty of the charge.[64]
[64] Trial ts 242 - 243.
The trial judge made the following findings regarding the evidence of the complainant. She was clear and came across as mature. She answered all questions immediately and was not evasive or protective of her position. Her demeanour was matter-of-fact, though at times she came across as having a flat affect, which was consistent with a sufferer of depression. At one point in cross-examination she became upset, but this was an appropriate response to the questions. She responded to defence contentions as to what had happened with surprise, disbelief and sadness, and these reactions impressed as being truthful. Whilst she was not sure about timing and the exact words of some messages, it was entirely plausible that she would be unsure about such matters.[65]
[65] Trial ts 252 - 253.
The trial judge found that the complainant's assessment of her level of intoxication at the time of the incident was unreliable, but not markedly so. His Honour also found that her mild state of intoxication was not such as to have had a material effect upon her memory of the matters in dispute.[66]
[66] Trial ts 253.
The trial judge referred to a number of suggested inconsistencies in the evidence of the complainant. His Honour considered that they were of no moment because they related to minor issues of detail that were corrected in a later police statement.[67]
[67] Trial ts 253.
The trial judge noted that the primary thrust of the defence submissions in regard to the complainant was that she had poor mental health and was attention-seeking. For these reasons it was suggested that it was not possible to be satisfied beyond reasonable doubt about her account of events. His Honour said that the complainant was entirely honest about her mental health and living circumstances. None of those matters caused him to disbelieve her account and they did not affect his assessment of the evidence she gave in court. His Honour said that she was consistent on the important issues and that her evidence was plausible and credible.[68]
[68] Trial ts 253.
The trial judge referred to the evidence regarding the distress displayed by the complainant on the night of the incident. His Honour said that the distress was confirmed by other witnesses and was primarily due to what had happened to her at the park. His Honour did not consider there was any significance in the fact that the complainant initially said that the appellant had tried to touch her but later said she was raped. His Honour said it was plausible that the story would come out in a progressive way in circumstances where the complainant was distressed, and possibly in shock. His Honour found that the distress of the complainant supported his assessment of her credibility and reliability.[69]
[69] Trial ts 254.
The trial judge rejected a defence submission that the complainant had initially told a false story which then snowballed out of control. To the contrary, his Honour found that she had behaved consistently from the start. On the critical issue, whether there was an absence of consent, the trial judge accepted the evidence of the complainant and found that element of the charge proven beyond reasonable doubt.[70]
[70] Trial ts 255 - 257.
Ground of appeal
There is a single ground of appeal. It is as follows:[71]
The verdict of guilty on which the Appellant's conviction is based should be set aside because, having regard to fresh evidence, comprised in the statement of [KM] made to police on 1 September 2022, there was a significant possibility that the appellant would have been acquitted.
[71] WABGAB 8.
Additional evidence on the appeal
On 5 September 2022, the appellant filed an application to adduce evidence from KM on the appeal. At the appeal hearing, KM gave oral evidence and was cross-examined. The respondent applied to adduce evidence from the complainant on the appeal. At the hearing the complainant gave oral evidence and was cross-examined. In addition, a number of affidavits were tendered by both parties.
KM
KM said that she is 17 years old and normally resides in the town where the events occurred, but was in Perth for the purposes of giving evidence. She met the complainant just over two years ago at school. She said that she had known the appellant for approximately the same time.[72]
[72] Appeal ts 25 - 26.
KM said that in August of 2021, she and the complainant were very close. They would FaceTime every night and were always talking to each other. They would also communicate over Snapchat. They would speak about their pet dogs and school. They would check in with each other to see how the other was.[73]
[73] Appeal ts 26 - 27.
KM said that the first time she and the complainant spoke about the appellant was the night the complainant called her from the appellant's car. She received the call at about 10.30 pm or 11.00 pm. The complainant was crying and KM asked her what was wrong. The complainant said she was in the car with the appellant and he had forced himself upon her. When KM asked the complainant what she was doing, the complainant said she got away and she was running. KM understood that the complainant was running back to a party that they were at.[74]
[74] Appeal ts 27.
KM asked the complainant what she was going to do, and she said she did not know. KM then suggested that the complainant go to the hospital or call the police. The complainant said that she did not want to do that, and she asked KM to stay on the telephone with her. KM stayed on the telephone for some time, but nothing further was said. About 5 to 10 minutes later, the complainant said that she was going to go, and then hung up. The complainant was out of breath, as if she had been running. We will refer to this as the first telephone conversation.[75]
[75] Appeal ts 27.
KM said that sometime later the complainant sent a Snapchat message to her in which she said that she was going to the hospital with a friend. The hospital had called the police and the complainant was going to speak to them at the hospital. KM responded by saying, 'Okay, good idea'.[76]
[76] Appeal ts 28.
A couple of weeks later, KM received another telephone call from the complainant. It was at about 11.30 pm and she understood that the complainant was at an oval in a nearby town with some friends. KM then said:[77]
So I asked her what she was doing and she said she was drinking. And then she said she had a lot on her mind, so I asked her if she wanted to share, because she doesn't usually like to share. So, I asked her first. She said that it was all getting too much and she - she said that she didn't want people to think that she had cheated on her then-boyfriend, (JG). So, she just decided to tell people that it was rape, that she made it up. (emphasis added)
[77] Appeal ts 29.
KM said that the call lasted for about 10 minutes and was a FaceTime call. For much of the time there was no interaction and the telephone was simply put down so that she could see what was happening at the oval. We will refer to this as the second telephone conversation.[78]
[78] Appeal ts 28 - 29.
The next day, KM received a Snapchat message from the complainant. KM gave the following evidence:[79]
She said that she - because I asked her if she remembered much of the night before and she said she remembered calling me, but not a whole deal of what we said.
And what do you remember saying to her on Snapchat text?---I said - I asked her if she remembers - I asked her again if she remembers our conversation and she said no, but if she did I'm supposed to forget it.
We will refer to this as the third telephone conversation (though it appears to have been confined to an exchange of messages).
[79] Appeal ts 30.
KM said that the only person that she told about the critical second telephone conversation was her best friend. She told her best friend in or about June or July 2022.[80]
[80] Appeal ts 30.
KM's relationship with the complainant changed in August 2022. The relationship had lots of ups and downs, and there were periods where they were not talking to each other. In August 2022 the complainant brought one of her friends to KM's house, being a person that KM did not get along with. After this, KM and the complainant stopped talking, although KM said that they did not end the relationship on bad terms and they did not hate each other.[81]
[81] Appeal ts 30 - 31.
In cross‑examination, KM was asked why, following the first telephone conversation, she had not told her parents or called the police, given that she was concerned for the complainant's welfare. She said that she did not call the police because she did not know where the complainant was. Further, she said that soon after the telephone call ended she received a text message from the complainant saying that she was fine. She then received the text message to say that complainant had gone to the hospital. She accepted that she had not previously referred to the intervening text message about being fine. It was put to KM that her evidence regarding the first telephone conversation was untrue because if she had received such a call she would have done something about it. KM said she did not know what she could do but accepted that she did not do anything about it. However, she maintained that the first telephone conversation did occur.[82]
[82] Appeal ts 32 - 35.
KM said that she did not become aware that the appellant had been charged until July 2022. She accepted that she did not immediately tell police about the second telephone conversation. She accepted that she did not offer that information to anyone until approached by Detective Senior Constable Harmer. It was put to her that the reason she did not tell anyone about that conversation was because it did not happen, but she maintained that the conversation did occur. When pressed as to why she did not do something immediately after finding out that the appellant had been charged, KM said she was not doing well mentally at the time and needed to be well before she said anything that could put her under more stress.[83]
[83] Appeal ts 35 - 37.
KM accepted that the part of the third telephone conversation where the complainant told her that she was supposed to forget what she said the night before was not included in her statement. However, she denied that she was making that part up and maintained that the complainant did say it.[84]
[84] Appeal ts 40.
In re‑examination, KM said that when she referred to needing to be mentally well before she spoke to the police, she was referring to the fact that, at that time, she was struggling with her mental health and needed to be okay within herself before she said something because she could sometimes disassociate and forget things that are important. She said that she had been in the Perth Clinic on two occasions in the past two months.[85]
The complainant
[85] Appeal ts 41.
The complainant confirmed that an affidavit filed for the purposes of the appeal was true and correct. In that affidavit she said that in August 2021, she and KM were close and would speak daily.[86]
[86] Appeal ts 44 - 45; YAB 44.
The complainant said that she did tell KM about the appellant assaulting her but is not sure of the date or what exactly she told her. She does not remember contacting KM on the day of the assault to discuss what the appellant did. At some point after the incident, she told KM that the appellant had sexually assaulted her and she may have told her where it happened. She states that she would not have gone into any detail with KM, other than to tell her that she had been assaulted.[87]
[87] YAB 44 - 45.
In cross‑examination, the complainant agreed that she told KM some things that she did not tell other people. When it was put to her that she spoke to KM on the night of the incident, she said that she could not remember but accepted that she could have. She did not accept that, after she was dropped back at JG's by the appellant, she had a feeling that she had got away from him. She did not think that she said that she ran away from the appellant but accepted that she could have said something to the effect that she got away from him.[88]
[88] Appeal ts 45 - 46.
The complainant accepted that in the days following the incident and the charging of the appellant there was a lot going on in her head and it was very overwhelming and emotional. However, she did not accept that she had confused feelings about the appellant being charged. She did agree that she felt that things were out of her control. She also accepted that she could have been drinking in the weeks that followed the incident.[89]
[89] Appeal ts 48 - 49.
The complainant did not recall an occasion about a week after the incident in which she had FaceTimed KM and had spoken to her about the appellant. She did accept that she could have spoken to KM and may have said something to the effect that there was a lot going on in her head. She did not accept that she had said that she did not like where everything was going with the appellant being charged. She agreed that she had spoken to KM and to other friends to say how uncomfortable she was with everything that was going on with the trial, not specifically in relation to the appellant but more about what was happening to her and how it was affecting her life and her family.[90]
[90] Appeal ts 49 - 50.
The complainant agreed that one of the things that worried her was that people might think that she had cheated on her boyfriend; that was something that she may have spoken about to KM. She was then asked:[91]
And could you have told [KM] that you had wanted to have sex with [the appellant], but then you regretted it?---No.
Something that you don't think you said?---Yes, I - I wouldn't have said it.
And did you or could you have said something similar to that to [KM]?‑‑‑When I used to speak about what had happened on the night of the assault, I used to say that I regretted getting into his car. That's the only thing I can think that might be, like, close to context for the - but that's it.
[91] Appeal ts 50 - 51.
The complainant could not recall a subsequent conversation, on Snapchat or otherwise, in which KM had asked her whether she remembered what they had spoken about the night before. When asked if she recalled saying something to the effect of 'if I said anything bad, just forget it', the complainant said that she did not recall but could have said that.[92]
[92] Appeal ts 51.
In re‑examination, the complainant was asked the following questions:[93]
[93] Appeal ts 52.
And the whole time that you were at the park with [the appellant], on that evening on 8 August 2021, do you recall whether you communicated with [KM] when you were at the park with [the appellant]?---I don't recall communicated (sic) with her. No.
[Complainant], in respect of the conversations that you had with [KM] after 8 August 2021, do you recall ever saying to [KM] that you lied about what [the appellant] did to you on 8 August 2021?---No.
Did you ever say that to [KM]?---No.
Did you ever have a conversation with [KM] that the events on 8 August 2021 that you lied about what happened?---No.
In respect of conversations with [KM], on 8 August 2021, on that evening, [complainant], do you recall being on the phone with [KM] and crying with her or you were crying whilst on the phone with her?---I don't recall it but it definitely could have happened.
And, in respect of 8 August 2021, was there ever a time that you were running away from [the appellant] and you were on the phone with [KM] whilst you were running away from [the appellant]?---No.
Was there ever a time on that evening that you were in fact running away from [the appellant]?---No. (emphasis added)
Other evidence
In an affidavit sworn on 5 September 2022, the appellant's solicitor, Melita Jennifer Medcalf, stated that, on 2 September 2022, she received an email from the appellant's former solicitors attaching a statement from KM. The statement was made on 1 September 2022 and was witnessed by a police officer.[94]
[94] YAB 6.
The circumstances in which the statement came into existence are explained in an affidavit of the appellant's mother sworn on 10 October 2022 and an affidavit of Detective Senior Constable Zoe Harmer sworn on 26 September 2022. The appellant's mother states that prior to the trial, she had been told by a friend that KM had 'legal issues' with the complainant and that KM's family had sought a restraining order against the complainant. As a result of receiving this information the appellant's mother contacted KM's mother on 22 September 2021 by text message. The relevant part of the text is as follows:[95]
I have heard that you and your child have had legal issues with the same girl and that you managed to get a restraining order to protect your child.
We have legal representation and are also trying to protect our child. Our lawyer asked us to reach out to you to see if you'd be willing to have a conversation with me about your experience as it may help us.
[95] YAB 50.
KM's mother responded by text on 24 September 2021 to say that KM had gone away for the weekend and that she would 'have a chat with her' when she returned.[96]
[96] YAB 52.
In her affidavit, the appellant's mother states that she also spoke by telephone with KM's mother, and that KM's mother had told her words to the following effect:[97]
(a)Her family and KM had a 'horrible experience' with the complainant, and that the complainant had an effect on KM's deteriorating mental health.
(b)The family decided not to apply for a restraining order against the complainant for fear it would impact on KM's mental health.
(c)That she would have a look at KM's telephone to see if she could find any examples of conversations between KM and the complainant that indicated a negative relationship.
(d)She would look on the telephone to see if there were any conversations that said anything about the appellant.
[97] YAB 62.
On 28 September 2021, KM's mother sent a text to the appellant's mother in which she said that she had been through KM's telephone and that none of the messages she saw contained anything that would help to prove that she (that is, the complainant) was unstable. The appellant's mother responded by thanking KM's mother for the effort she had gone to.[98]
[98] YAB 53, 62.
The appellant's mother said that after receiving the negative response from KM's mother, she advised the appellant's trial counsel that KM's mother had responded to her and that they could not help.[99]
[99] YAB 63.
The appellant's mother states that, at all times prior to and during the appellant's trial, she was unaware of the content of KM's statement dated 1 September 2022. She thought she had done everything she could to determine if KM was a helpful witness for the defence.[100]
[100] YAB 63.
On 5 August 2022 (that is, after the trial but before sentencing), the appellant's mother received information from a friend about a Snapchat group which included KM and the complainant. The implication was that this group Snapchat could contain something relevant to the events. She took this information to police on 12 August 2022.[101]
[101] YAB 63.
Detective Senior Constable Harmer states that the appellant's mother presented at the front counter of a police station at about 1.30 pm on Friday, 12 August 2022. The appellant's mother advised that she had been given information about a Snapchat group that included the complainant and KM. She said that she had received information that a message in this group related to the appellant.[102]
[102] YAB 47.
After making some other enquiries, Detective Senior Constable Harmer spoke to KM's mother on 27 August 2022. Later the same day, KM's mother contacted police and said that she had spoken to KM, who wanted to speak with the police. KM advised police she was not aware of a Snapchat group and was initially reluctant to provide a statement. However, on 31 August 2022, KM changed her position, and a statement was taken from her and signed in Perth, where KM was then residing. That statement contained the substance of the evidence KM gave at the appeal hearing.[103]
[103] YAB 48 - 49.
Ms Medcalf, the appellant's solicitor, in a second affidavit sworn on 12 September 2022, states that she made an attempt to contact the appellant's trial counsel on 8 September 2022. She was unable to speak to him as she was advised that he was unwell and due to have surgery. However, another solicitor at the firm advised that KM was not identified as a witness in the prosecution brief.[104]
[104] Affidavit of Melita Jennifer Medcalf sworn 12 September 2022, pars 10 - 11.
On 11 September 2022, Ms Medcalf received an email from trial counsel stating that KM was not identified as a witness for the prosecution at any time prior to or during the trial. Ms Medcalf has also reviewed the brief and committal papers and could find no reference to KM.[105]
[105] Affidavit of Melita Jennifer Medcalf sworn 12 September 2022, par 12.
In an affidavit sworn on 15 October 2022, the appellant states that he was unaware of the evidence contained in KM's statement at the time of his trial. He was aware that before the trial his mother had tried to contact KM's mother regarding a restraining order. At the time of the trial his mother told him that she had spoken to KM's mother and that KM did not know anything about the complainant that would be useful at the trial.[106]
[106] Affidavit of [BMC] sworn 15 October 2022, pars 5 - 8.
The respondent tendered an affidavit from Sergeant Michael Peter Hitchcock sworn on 30 September 2022. Sergeant Hitchcock states that he sought call charge records in relation to the complainant's telephone. Those records show that the only telephone contact between the complainant and KM on 8 August 2021 was prior to 11.02 pm.[107]
[107] YAB 56 - 57.
This information is clarified in an affidavit from Robert Francis Owen, the then-acting Director of Public Prosecutions, also sworn on 30 September 2022. Mr Owen states that he had been told by Sergeant Hitchcock that the call charge records may not record all voice calls and messages between telephones. One reason for this is that a voice call made while a telephone is connected to Wi-Fi may not be logged as a data session in call charge records.[108]
[108] YAB 41.
Appellant's submissions
The appellant submits that the evidence of KM is fresh because it was unknown to the appellant at the time of the trial and could not with reasonable diligence have been discovered. Though the appellant's mother was told that KM may have some relevant information, it was not suggested that it related to a conversation of the nature now revealed. In any event, enquiries were made at the time and the response was, in effect, that KM could not assist. In these circumstances the appellant had no reason to believe at the time of the trial that KM could give the evidence that she has now given on the appeal.[109]
[109] WAB 32; appeal ts 53 - 54.
The appellant submits that this court does not need to determine whether the evidence of KM or the complainant is to be preferred on the issue of whether the second telephone conversation occurred. It is sufficient if it is open for the trier of fact, acting reasonably, to accept the evidence of KM. The evidence of KM is capable of acceptance by the trier of fact as being cogent, credible and reliable.[110]
[110] Appeal ts 56 - 57.
The appellant submits that the case depended critically on the credibility of the complainant. The evidence of KM is relevant because it has the potential to materially affect an assessment of the credibility of the complainant. If that evidence had been available at trial and was accepted by the trial judge it is possible that the evidence of the complainant as to lack of consent would not have been accepted and the appellant would have been acquitted.[111]
[111] WAB 22 - 23.
Respondent's submissions
The respondent disputes that the evidence of KM is fresh, essentially because the evidence existed at the time of trial and the possibility that KM may have relevant information was known to the appellant's mother prior to the trial. In these circumstances, the respondent submits, whilst the nature of the evidence may have been unknown, it could, with reasonable diligence, have been discovered. The absence of evidence from defence counsel at trial as to his state of knowledge and what inquiries he made makes it difficult to make out that the evidence is fresh.[112]
[112] Appeal ts 62 - 64.
The respondent relies on a passage in Ilic v The Queen[113] in which Ipp J said (at [57]) 'ordinarily, where evidence was available, and the accused knew that the witness in question existed, and ought to have realised that the witness might be able to give relevant testimony, the evidence will not be regarded as fresh, even though the accused had no actual knowledge of what the witness might say.'[114]
[113] Ilic v The Queen [2000] WASCA 411.
[114] WAB 34.
The respondent also submits that the evidence of KM is so lacking in cogency that it would inevitably have been rejected by the trial judge. This is essentially for three reasons. First, because there is disparity between KM saying that the complainant told her in the first telephone conversation that she was running away from the appellant and the evidence given at the trial by both the complainant and the appellant. Secondly, because the call charge records do not confirm that a telephone call of the length described by KM occurred at the time stated by KM. Thirdly, because the evidence of KM that she did not do anything after receiving the first call on the night of 8 August 2022, despite the nature of that call, is inherently lacking in credibility.[115]
[115] Appeal ts 69 - 70; WAB 38 - 39.
If, contrary to the respondent's submissions, the evidence is found to be cogent and capable of being accepted, then the respondent concedes that the evidence does leave open a significant possibility that the appellant would have been acquitted if the fresh evidence had been known, adduced and accepted at trial.[116]
[116] WAB 40.
Fresh evidence - the principles
An appeal alleging that there is fresh evidence warranting the quashing of a conviction is an appeal based on s 30(3)(c) of the Criminal Appeals Act 2004 (WA). That section provides that the court must allow an appeal if in its opinion there was a miscarriage of justice (subject to the proviso in s 30(4) of the Act).
Where an appeal is brought on the basis of fresh evidence, a miscarriage of justice will be established if the appeal court considers that there is a significant possibility that the jury, acting reasonably, would have acquitted the appellant if the fresh evidence had been before it at the trial: Gallagher v The Queen;[117] Mickelberg v The Queen;[118] Beamish v The Queen[119] and Coffman v The Queen.[120]
[117] Gallagher v The Queen [1986] HCA 26; (1986) 160 CLR 392.
[118] Mickelberg v The Queen [1989] HCA 35; (1989) 167 CLR 259, 273 (Mason CJ).
[119] Beamish v The Queen [2005] WASCA 62 [14].
[120] Coffman v The Queen [2010] WASCA 54; (2010) 202 A Crim R 375 [58] (Martin CJ), [182] (Pullin JA).
Those principles apply equally to a trial by judge alone. In such a trial, the trial judge is obliged to approach the task of finding facts in the same way as would a jury at a jury trial. Accordingly, in such a trial the question is whether there is a significant possibility that the trial judge, acting reasonably, would have acquitted the appellant if the fresh evidence had been before the trial judge at the trial.
There have been different formulations of the test, some of which have referred to whether a jury would have been likely to have entertained a reasonable doubt: see Ratten v The Queen.[121] Others have referred to whether a jury might have entertained such a doubt,[122] or that this is a significant possibility.[123] In Gallagher, Gibbs CJ said that no form of words should be regarded as an incantation that will resolve the difficulties of every case.[124] The focus must therefore be on whether, in the case at hand, the fresh evidence is such as to satisfy the appeal court that there has been a miscarriage of justice.
[121] Ratten v The Queen [1974] HCA 35; (1974) 131 CLR 510, 520 (Barwick CJ).
[122] Gallagher (421) (Dawson J).
[123] Mickelberg (273) (Mason CJ).
[124] Gallagher (399).
The appeal court has the responsibility of examining the fresh evidence in order to satisfy itself that the evidence is relevant, credible and cogent.[125] If the evidence is not credible and cogent, it may be rejected. The role of this court on a fresh evidence application is to determine whether the evidence is capable of being accepted as true by a reasonable factfinder, be it a jury or a judge sitting alone: Amiss v The State of Western Australia.[126]
[125] Mickelberg v The Queen [No 2] [2004] WASCA 145; (2004) 29 WAR 13 [432] (Steytler J); White v The Queen [2006] WASCA 62; PAS v The State of Western Australia [2009] WASCA 210; (2009) 212 A Crim R 546 [54] ‑ [56] (Buss JA, Owen and Wheeler JJA agreeing).
[126] Amiss v The State of Western Australia [2006] WASCA 171; (2006) 165 A Crim R 387 [14] (McLure JA).
Cogency is necessary but not in itself sufficient. The evidence must also be material in the sense that it is reasonably capable of affecting the outcome.[127] This requires an assessment of the fresh evidence in the context of the whole of the evidence given at the trial. The combined effect of the two considerations was stated by Rich and Dixon JJ in Craig v The King:[128]
It is evident that the exercise of a power to direct a new trial because fresh evidence is forthcoming must be attended both with danger and with difficulty. It is the function of the jury to determine questions of fact in a criminal trial. When they have found a verdict they have performed that duty. If after a verdict of guilty the mere fact that a prisoner produced further relevant evidence required the Court to vacate the conviction and submit the question of the prisoner's guilt to another jury, then in a jurisdiction where perjury is rife great abuses would ensue. A Court of Criminal Appeal has thrown upon it some responsibility of examining the probative value of the fresh evidence. It cannot be said that a miscarriage has occurred unless the fresh evidence has cogency and plausibility as well as relevancy. The fresh evidence must, we think, be of such a character that, if considered in combination with the evidence already given upon the trial the result ought in the minds of reasonable men to be affected. Such evidence should be calculated at least to remove the certainty of the prisoner's guilt which the former evidence produced. But in judging of the weight of the fresh testimony the probative force and the nature of the evidence already adduced at the trial must be a matter of great importance.
[127] Gallagher (395 - 396) (Gibbs CJ).
[128] Craig v The King [1933] HCA 41; (1933) 49 CLR 429, 439.
In some cases, the fresh evidence is a recantation by the complainant. The principles applicable to a consideration of a recanting witness have been summarised in ARK v The State of Western Australia.[129]
[129] ARK v The State of Western Australia [2014] WASCA 45 [145] - [153] (Buss JA, Mazza JA agreeing).
In this case, the complainant was called to give evidence on the appeal as to her response to the fresh evidence from KM. Whilst she could not recall any specific conversations with KM, it is fair to conclude that she rejected the suggestion that she had made any admission to lying about the allegations. Accordingly, the evidence of KM would be admissible at trial as a prior inconsistent statement: see s 21 of the Evidence Act.[130] Such evidence would be relevant to the credibility of the complainant.
[130] See O'Meara v The State of Western Australia [2013] WASCA 228; 235 A Crim R 209.
As was said in Muller v The State of Western Australia:[131]
The limited use that could be made of the evidence is relevant in determining whether there has been a miscarriage of justice. Generally speaking, fresh evidence that is only relevant to the credibility of a prosecution witness is far less likely to meet that test than fresh evidence that is directly relevant to one of the elements of the offence. However, the particular circumstances of the individual case must always be considered. Fresh evidence relevant only to credibility can support a conclusion that a miscarriage of justice has occurred if it has the capacity to cause the jury to have a reasonable doubt about whether the evidence of a witness on a critical issue should be accepted.
[131] Muller v The State of Western Australia [2014] WASCA 81 [63] (Hall J, Buss JA and Mazza JA agreeing).
Merits of the appeal
The questions in this case are, first, whether the evidence of KM is fresh evidence. That is, is it evidence that was unknown to the appellant at the time of the trial and could not, with reasonable diligence, have been discovered? If the evidence is fresh, then the second question is whether, when considered in the context of all the other evidence given at trial, it has sufficient cogency to establish that there is a significant possibility that the trial judge would have acquitted the appellant had the fresh evidence been known and adduced at the trial.
The uncontested evidence of the appellant's mother is that she had information that KM and her family may have had 'legal issues' with the complainant and may have sought a restraining order. This information only suggested that something unrelated to the charge, but possibly discreditable to the complainant, may have been known to KM. It did not suggest that KM could give evidence of a prior inconsistent statement regarding whether the act of penetration that was the subject of the charge was consensual. There was nothing in the information available to the appellant's mother that could reasonably have raised a question as to whether KM could give the evidence that she has now given.
Furthermore, the appellant's mother made enquiries to determine whether KM had any relevant information. The response she received from KM's mother was negative and addressed the nature of the enquiry. There was no reason in these circumstances to suspect that there was something else that KM could give evidence about. It was reasonable to conclude that the line of enquiry was exhausted. It should also be noted that KM had not told anyone of the second telephone conversation at that time.
The fact that the appellant's trial counsel has not provided evidence on the appeal is not material. There was nothing to put counsel on enquiry as to whether KM was a relevant witness. She was not present on the night of 8 August 2021 and not mentioned in the prosecution brief. The appellant's mother states that she informed counsel of the enquiries she made about KM. The outcome of those enquiries did not suggest that anything further was required or that KM might be a material witness.
The respondent's reliance on Ilic is misplaced. In that case, the evidence was from two work colleagues who were eyewitnesses. The appellant knew of the witnesses and knew they had relevant evidence to give. He made a deliberate decision not to speak to them, even knowing that their evidence might assist him. As was recognised in that case, normally a decision of that nature would preclude the evidence from being categorized as fresh. However, it was so categorised in that case, principally because the attitude of the witnesses prior to the trial had been obstructive and uncooperative.
Reasonable diligence must be assessed in the context of the issues at the trial. In this case the sole issue was consent. KM was not present on the night of 8 August 2021 and there was no reason for the appellant to think that that she had any relevant evidence to give on the issue of consent. The mere fact that she was a friend of the complainant does not reasonably suggest the possibility that an inconsistent statement as to consent may have been made to her.
The evidence of KM is fresh evidence because it was unknown to the appellant at the time of the trial and could not with reasonable diligence have been discovered.
The second question needs to be understood in the context that the fresh evidence is evidence that is relevant only to the credibility of the complainant. Accordingly, any assessment of the potential significance of the evidence must take into account (1) the extent to which the prosecution case depended on the evidence of the complainant, (2) whether the fresh evidence could materially affect an assessment of the complainant's evidence that the sexual offence occurred, and (3) the extent to which there was other evidence that supported the complainant.
At trial, the sole issue was whether there was a lack of consent by the complainant. In this regard the credibility of the complainant was critical. Unless her evidence that she did not consent was accepted beyond reasonable doubt, this element of the offence could not be established. That position was, quite properly, accepted by the trial judge. His Honour appreciated the centrality of the complainant's evidence and considered the issue of her credibility in detail.
The evidence of KM is relevant to the credibility of the complainant because it is evidence of a prior inconsistent statement on the issue of consent. The complainant has, in effect, denied making the alleged statement. In these circumstances the evidence would be admissible to rebut that denial. The evidence would be admissible in assessing the credibility of the complainant on this issue. If accepted, it has the potential to materially affect that assessment. It is evidence which, if accepted, could cause the finder-of-fact to have a doubt as to whether the complainant’s evidence on the issue of absence of consent should be accepted.
Insofar as this court is required to assess KM's credibility, she presented as a clear and cogent witness. She was not hesitant or evasive in cross‑examination. She did not seek to avoid the fact that her friendship with the complainant had ended, though she denied any lingering ill-will. She was frank about her own mental health issues.
As to the matters that the respondent points to, the call charge records do not exclude the possibility that KM and the complainant spoke by telephone on the night of 8 August 2021. Though there is no evidence that the complainant ran away from the appellant, she did accept in cross-examination that she may have told KM that she got away. The possibility of honest error, misunderstanding or difference of perception may account for this apparent inconsistency.
It is also worthy of note that the evidence of KM regarding the first telephone conversation is adverse to the appellant in that it is broadly consistent with what the complainant says occurred. This demonstrates an absence of guile on the part of KM. If she had been intending to come to court and give a fabricated account, it is unlikely that she would have made up a story that included this component.
As to the failure by KM to call the police or tell her parents about the first call, this needs to be understood in the context in which it occurred. KM says that the call occurred late at night and she did not know where the complainant was. She also says that soon after the call ended she received a text message from the complainant to say that she was alright and, later, a further message to say that she was at the hospital.
The matters raised by the respondent are not of such significance as to prevent her evidence being accepted. They are matters that can properly be raised at trial in testing the evidence of KM. Ultimately, it is a matter for the trial judge whether KM's evidence is accepted. It is only necessary on the appeal to be satisfied that the evidence is sufficiently relevant, cogent and plausible as to be capable of being accepted.
The only other evidence at trial which supported the credibility of the complainant was the evidence as to her distress and the evidence of the complaint she made. Taking into account those matters, the evidence of KM is capable of having a material effect on the assessment of the credibility of the complainant. In the context of the whole of the evidence, that leaves open a significant possibility that the appellant would have been acquitted had the evidence been before the trial judge.
Conclusion
A miscarriage of justice has been established. Leave to appeal should be granted, the appeal allowed, the conviction set aside and a retrial before a different judge ordered.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JS
Associate to the Honourable Justice Hall
1 DECEMBER 2022
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