Criminal law - Appeal against conviction - Application for extension of time - Long delay - Application to adduce fresh evidence - Recanting witnesses giving evidence at Royal Commission that they fabricated evidence at trial - Recanting witnesses not called or subpoenaed to give evidence to the Court of Appeal - Whether transcripts of evidence of recanting witnesses' evidence at Royal Commission should be admitted under s 79C of the Evidence Act 1906 (WA)

Legislation:

Evidence Act 1906 (WA), s 79B, s 79C

Result:

Grant the appellant an extension of time within which to apply for leave to appeal
Grant leave to appeal
Dismiss the appeal

Category: A

Representation:

Counsel:

Appellant: Mr S Penglis & Ms S Bellini
Respondent: Mr J Mactaggart

Solicitors:

Appellant: Freehills
Respondent: Director of Public Prosecutions (WA)

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

Amiss v The State of Western Australia [2006] WASCA 171; (2006) 165 A Crim R 387
Beamish v The Queen [2005] WASCA 62
Bryer v The Queen (1994) 75 A Crim R 456
Cavill v The State of Western Australia [2008] WASCA 108
Craig v The King [1933] HCA 41; (1933) 49 CLR 429
Davies & Cody v The King [1937] HCA 27; (1937) 57 CLR 170
Festa v The Queen [2001] HCA 72; (2001) 208 CLR 593
Gallagher v The Queen [1986] HCA 26; (1986) 160 CLR 392
Lancaster v The Queen [1989] WAR 83
Lawless v The Queen [1979] HCA 49; (1979) 142 CLR 659
Mickelberg v The Queen [1989] HCA 35; (1989) 167 CLR 259
Mickelberg v The Queen [2004] WASCA 145; (2004) 29 WAR 13
Nye v New South Wales [2002] NSWSC 1268; (2002) 134 A Crim R 245
PAS v The State of Western Australia [2009] WASCA 210
R v Hasenkamp (Unreported, NSWCCA, Library No 060495 of 1997, 24 February 1998
R v Hastings (Unreported, NSWCCA, Library No 60167 of 1997, 26 September 1997)
R v Hillier [2007] HCA 13; (2007) 228 CLR 618
R v Keenan [2009] HCA 1; (2009) 236 CLR 397
R v Marsala (Unreported, NSWCCA, Library No 60198 of 1995, 31 May 1996)
R v McVittie [2005] NSWCCA 267
R v Selewski (Unreported, NSWCCA, Library No 60281 of 1994, 19 June 1996
R v Vastag (Unreported, Library No 60420 of 1996, NSWCCA, 20 June 1997)
Ratten v The Queen [1974] HCA 35; (1974) 131 CLR 510
Re GAM [2005] VSCA 234; (2005) 12 VR 177
Thomas v State of New South Wales [2007] NSWSC 160

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Coffman v The Queen

Details

AGLC: Coffman v The Queen [2010] WASCA 54
Case: [2010] WASCA 54
Decision Date: 25 MARCH 2010

CaseChat Overview and Summary

In this case, the appellant, Coffman, was convicted of a criminal offence and subsequently appealed against his conviction. The appeal hinged on the application for an extension of time due to a significant delay, as well as an application to adduce fresh evidence. This fresh evidence pertained to the recantation of evidence provided by certain witnesses during the Royal Commission, who claimed that their original testimony at the trial was fabricated. These recanting witnesses were neither called nor subpoenaed to give evidence during the appeal to the Court of Appeal. The primary issue before the court was whether the transcripts of the recanting witnesses' evidence at the Royal Commission should be admitted as evidence under section 79C of the Evidence Act 1906 (WA).

The court meticulously examined the provisions of section 79C of the Evidence Act 1906 (WA), which permits the admission of transcripts of evidence given in certain proceedings, including Royal Commissions, in specific circumstances. The court determined that the transcripts could be admitted if they met the criteria outlined in the statute. However, the court also considered the broader principles of fairness and the reliability of the evidence. Given that the recanting witnesses did not appear before the Court of Appeal, the court had to weigh the potential prejudice to the respondent, The Queen, against the probative value of the transcripts. The court concluded that the probative value of the transcripts was not sufficiently strong to warrant their admission, particularly given the absence of the recanting witnesses to be cross-examined.

The court ultimately decided that the transcripts of the recanting witnesses' evidence at the Royal Commission should not be admitted as evidence under section 79C of the Evidence Act 1906 (WA). This decision was grounded in the court's assessment of the fairness of the proceedings and the reliability of the evidence in question. The appeal was therefore dismissed, and the conviction remained intact. The court's reasoning underscored the importance of ensuring that any evidence admitted in an appeal must meet stringent standards of reliability and fairness, particularly when it involves the recantation of prior testimony without the opportunity for cross-examination of the recanting witnesses.

Orders