Coleski v The State of Western Australia [No 2]
[2009] WASCA 63
•3 MARCH 2009
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: COLESKI -v- THE STATE OF WESTERN AUSTRALIA [No 2] [2009] WASCA 63
CORAM: WHEELER JA
BUSS JA
MILLER JA
HEARD: 3 MARCH 2009
DELIVERED : 3 MARCH 2009
PUBLISHED : 18 MARCH 2009
FILE NO/S: CACR 138 of 2008
BETWEEN: DRAGAN COLESKI
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :MACKNAY DCJ
File No :IND 638 of 2008
Catchwords:
Criminal law - Unlawful grievous bodily harm - Identification - Fresh evidence - Turns on own facts
Legislation:
Nil
Result:
Appeal allowed
Conviction quashed
Retrial ordered
Category: B
Representation:
Counsel:
Appellant: Ms A S Rogers
Respondent: Mr J Mactaggart
Solicitors:
Appellant: Andrew Maughan & Associates
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Coleski v The State of Western Australia [2008] WASCA 237
Easterday v The Queen [2003] WASCA 69; (2003) 143 A Crim R 154
Mickelberg v The Queen [1989] HCA 35; (1989) 167 CLR 259
Ratten v The Queen [1974] HCA 35; (1974) 131 CLR 510
WHEELER JA: I agree with Buss JA.
BUSS JA: On 15 September 2008, the appellant was convicted, after a trial before Macknay DCJ and a jury, on one count in an indictment which alleged that on or about 3 June 2007, at Balcatta, the appellant, Vlase Coleski and Ilo Milevski unlawfully did grievous bodily harm to Zivko Zac Naumoski, contrary to s 297 of the Criminal Code (WA). There was a joint trial of the appellant and his co‑accused. The jury found the co‑accused not guilty.
The ground of appeal
There is, relevantly, one ground of appeal. It asserts, in substance, that fresh evidence has been discovered which establishes there is a significant possibility that, in the light of all the admissible evidence (that is, the fresh evidence and the evidence given at the trial) a jury, acting reasonably, would have acquitted the appellant. It is then alleged, in substance, that in the circumstances there has been a miscarriage of justice within s 30(3)(c) of the Criminal Appeals Act 2004 (WA). On 20 November 2008, Wheeler JA granted the appellant leave to appeal.
The orders sought by the appellant are that the appeal be allowed and his conviction quashed. Counsel for the appellant accepted (properly, in my opinion) at the hearing of the appeal that if the appeal were to be allowed and the conviction quashed, then a retrial should be ordered.
Counsel for the respondent conceded (properly, in my opinion) that the additional evidence discovered by the appellant after the trial was fresh (as distinct from merely new) evidence.
The disposition of the appeal
At the conclusion of oral argument, the court allowed the appeal, quashed the conviction and ordered a retrial. We said that reasons for the orders would be given later. These are my reasons.
Dramatis personae
The complainant, the appellant, the co‑accused and the principal witnesses (and the relationships between some of them) are as follows:
| Zivko Zac Naumoski | Complainant Husband of Renata Naumoska Friend of Zarko Trimoski |
| Zarko Trimoski | Husband of Velinda Trimoski |
| Biljana Klaposki | Sister of Velinda Trimoski |
| Velinda Trimoski | Sister of Biljana Klaposki |
| Renata Naumoska | Wife of Zivko Naumoski |
| Stojan Miloseki | Father of Velinda Trimoski & Biljana Klaposki |
| Dragan Coleski | Accused - son of Vlase Coleski |
| Vlase Coleski | Accused - father of Dragan Coleski |
| Ilo Milevski | Accused |
| Menka Coleski | Mother of Dragan Coleski |
| Toddy Stojkoski | Father of Ilija Stojkoski |
| Ilija Stojkoski | Son of Toddy Stojkoski |
| Brooke McGowen | Girlfriend of Dragan Coleski |
Overview
On 3 June 2007, the appellant and the complainant, Zivko Naumoski, attended a function at the Sicilian Club in Balcatta. There was an incident involving the complainant's friend, Zarko Trimoski, which ultimately became a melee, in the course of which it was alleged (and the jury must have found) that the appellant kicked the complainant in the face. The complainant suffered severe facial injuries which required surgery and the insertion of a number of plates and screws.
The principal issue at trial
The principal issue at trial was identification; that is, whether the appellant was the person who had kicked the complainant in the face.
The State's case
On the night of 3 June 2007 and in the early hours of 4 June 2007, at the Sicilian Club, more than 300 people were present at a function which featured a band from Macedonia called 'Kiss Me'.
The people at the function included the complainant and his wife, Renata Naumoska, and also Zarko Trimoski and his wife, Velinda Trimoski. There was an incident involving these people and others before the commencement of the melee. The earlier incident, described by the prosecutor in opening as 'a silly dispute or something that developed into something of a dispute' (ts 17) arose between Toddy Stojkoski and Zarko Trimoski. It began with Toddy Stojkoski saying what a good person Zarko Trimoski was. Zarko Trimoski then kissed Toddy Stojkoski on the forehead. Toddy Stojkoski was not amused. Unpleasant words were exchanged. The State alleged that, some time later, Toddy Stojkoski said to his son, Iliya Stojkoski, 'Go and get the boys' (ts 17).
After Zarko Trimoski had returned to his table following the incident with Toddy Stojkoski, a man whom he had not seen before came running towards him, around other tables, with an arm and clenched fist raised (ts 17 ‑ 18). According to the State, this man was the appellant. A physical altercation occurred between the appellant and Zarko Trimoski. The complainant intervened in an effort to assist Zarko Trimoski. However, the complainant fell twice and, on falling the second time, he was assaulted by the appellant and others (including the co‑accused) (ts 18).
The State alleged, in opening, that the appellant had kicked the complainant 'to the face and he was wearing yellowy‑brown steel‑capped boots' (ts 18).
The appellant's case
The appellant's case at trial was that he had been wrongly identified. He did not kick (or punch) the complainant.
The evidence at trial
Some, but not all, of the prosecution witnesses gave evidence to the effect that they identified the appellant as the person who had kicked the appellant in the face on the basis of the appellant having worn 'yellowy‑brown steel‑capped boots' on the night in question.
The appellant did not give sworn evidence at trial in his own defence. He did, however, participate in a video‑recorded interview with the police. This interview contained inculpatory and exculpatory material. The State played and tendered the video at trial. During the interview there was no detailed questioning of the appellant regarding his having allegedly worn 'yellowy‑brown steel‑capped boots'.
The appellant's girlfriend, Brooke McGowen, and his mother, Menka Coleski, were called as witnesses by the appellant's trial counsel. They gave evidence to the effect that they were at the function and saw the melee. In particular, they said that the appellant was not wearing 'yellowy‑brown steel‑capped boots' and that he had never owned any such boots. They said he was wearing black K‑Swiss shoes. A pair of shoes, allegedly worn by the appellant, were shown to the jury, but not tendered.
In Coleski v The State of Western Australia [2008] WASCA 237, Wheeler JA summarised, in her reasons for decision on the appellant's application for bail pending the determination of the appeal, the evidence of the principal prosecution and defence witnesses. Her Honour said in relation to the prosecution witnesses:
•Zivko Naumoski. This complainant was 'tipsy', but not drunk. He said that the appellant 'hit me with the leg in my face'. The appellant was wearing steel-capped boots which were yellow - like a 'brown yellow'. He did not know the appellant before that day. The lighting in the area was not bright. Cross-examined, he was insistent that the boots were yellow and were 'a big boot, a massive boot'. He described the appellant as wearing all dark clothes, apart from the yellow boots, and wearing 'a shirt with a black and, like, a blue strips'.
•Zarko Trimoski. He had consumed seven to eight beers. He had seen the appellant 'up and down the club' before, but had never spoken to him. In his evidence, he did not describe any kicking of Naumoski; he apparently did not see that part of the melee. However, at an earlier stage, he described holding the appellant for a considerable time after the appellant had tried to punch him.
•Velinda Trimoski. She was married to Zarko Trimoski. She used to know the appellant when he was younger. She had seen him 'around'. She saw him 'take a swing' at her husband. She described the appellant as wearing a blue shirt, blue jeans, and having a little bit of a moustache or goatee. She saw the appellant kicking Naumoski. She thought he kicked Naumoski in the stomach. A few people told her the appellant's name after the fight. She did not recognise him at the time and had to rely on what others told her. Her descriptions of the appellant and his co-accused, Ilo Milevski, were very similar. It appeared from the cross-examination that she had been mistaken about what Ilo was wearing. Later in cross‑examination, she said that she had got the names of Ilo and another person named Ilija mixed up. It was Ilija, not Ilo, who had punched her husband. Later in her cross-examination, she said that she was sure that Ilo had kicked Naumoski in the head while the appellant kicked him in the stomach. Later again, she was firm in her view that Ilo had kicked Naumoski in the stomach and the appellant in the face. When she identified Ilo from photographs shown to her by police, she apparently said, however, that he was the one who had kicked Naumoski in the face.
•Renata Naumoska. She was married to Naumoski. She knew the appellant. She had grown up with him and used to be close friends with his auntie, who he had often visited. That night, the appellant was wearing a blue shirt with tight, black jeans and 'big yellow boots'. The appellant 'started fighting' with Naumoski. 'They all started fighting.' She ran outside and looked in through the window. The lighting was good. She saw her husband fall to the floor, and saw the appellant kicking him in the face a few times. She conceded that, in her written statement to police, she had said that the appellant was wearing black boots, but after a while it 'came back to' her that they were yellow. She could now remember that 'perfectly'. Later again, she repeated that he was wearing big, yellow boots. In cross-examination, she agreed that the appellant had kicked Naumoski not two to three times as she had earlier said, but definitely twice. She was cross-examined with a view to demonstrating, by reference to plans produced and to her description, that she could not have seen the incident clearly from where she was standing outside.
•Biljana Klaposki. She saw the appellant run around and grab Trimoski and push him to the floor. She had seen the appellant 'around'. She knew him, however, just through people telling her who he was. When Naumoski went to aid Trimoski, she saw Naumoski being kicked in the face and the stomach by the appellant and Ilo. The appellant kicked him three to four times in the face. The appellant's mother was begging the appellant to stop. She knew the appellant's mother from when she was a small girl. In cross-examination, she accepted that when she pointed to Ilo on the digiboard shown to her by police she said, 'I think his name is Dragan' (which, of course, is the appellant's name).
•Stojan Miloseki. He said little about the appellant. All he had seen was that Naumoski somehow slipped on the floor and then there were kicks 'from every side'. He did not know who had kicked him [5].
Her Honour then said in relation to the defence witnesses:
•Brooke McGovern [sic]. She was the appellant's girlfriend. She saw him being punched by someone and saw him run out of the area. He was wearing blue jeans, dark blue top, and black sneakers. She had never seen him with yellow boots. She saw someone on the floor and 'everyone' kicking that person. However, the appellant did not kick that person. She was cross-examined at some length about the appellant's footwear, and was firm in her view that he had never had yellow, or yellowy, boots.
•Menka Coleski. She was the appellant's mother. She was called to give evidence on behalf of her husband, Vlase Coleski. However, during the course of her evidence, she described an incident in which Naumoski on that evening had hit or stabbed the appellant with a broken bottle [6].
A detailed summary of the evidence at trial in relation to the wearing of 'yellowy‑brown steel‑capped boots' is as follows:
| Speaker | t/s page | |
| Mr I Marshall (State Prosecutor) | 18 | State opening: Dragan Coleski kicked him to the face and he was wearing yellowy‑brown steel‑capped boots. |
| Zivko Naumoski (Complainant) | 49 52 53 70 74 80 88 | XN: Hit you with what in your face?‑‑‑With his leg. With - like, I remember that he had steel‑cap boots. What colour?‑‑‑Yellow, like a brown - yellow. And did you know Dragan before that night?‑‑‑No. No. Now, the - could you - the person that you say had the yellow steel cap boots?‑‑‑Yellow steel cap boots, yes. XXN: You say that he's attacked by who?‑‑‑By Dragan. Right, someone you'd never seen before and didn't know his name?‑‑‑No. Now. The last thing you remember was Dragan Coleski kicking you with steel cap boots to the head. They were yellow, I think you described them as?‑‑‑Yes. Do you agree that there's nothing in your hand written statement which says that as you went to help Zarko you were ‑ ‑ ‑?‑‑‑It says I found myself on the floor receiving another kick by Dragan with his steel capped boots. Can I ask you this: you mentioned that you were kicked to the face by Dragan Coleski. You said, 'With brown steel capped boots.'?‑‑‑With a yellow gunge, like that. |
| Zivko Naumoski (Complainant) | 89 | Why would you pay any attention to what he was wearing on his feet?‑‑‑He was standing in front of me. Now, you're saying at that time that you noticed that Dragan Coleski was wearing these steel cap yellowy boots?‑‑‑Yes. What shoes ‑ ‑ ‑?‑‑‑I didn't watch the people's shoes. I just noticed Dragan because he was one metre in front of me, okay? And I just notice him because he was looking funny and strange, okay? He was all - he has all dark clothes and the big yellow steel‑capped boots. And that's all. |
| Renata Naumoska | 200 210 213 | XN: And do you recall what he was wearing on that night?‑‑‑Yes. He was wearing a blue shirt, with, like, black prints on it. He had tight black jeans and yellow, big yellow boots. XXN: - ‑ ‑ About what you've said to the jury. Can I ask you this: you describe him, that's Dragan Coleski, on the night as wearing blue shirt, tight black jeans, big yellow boots?‑‑‑Yes. No doubt about that?‑‑‑No doubt about that. All right, well, your memory now is that you say that Dragan Coleski was wearing big yellow boots?‑‑‑Yes. |
| Detective E Damianopoulos | 315 | XXN: Did you execute a search warrant at his house?‑‑‑No, I didn't. Did you search for these ‑ ‑ ‑?‑‑‑No, I didn't. Did you go searching for these yellow boots?‑‑‑I didn't. Didn't search - didn't search his house. Didn't do any searches of it?‑‑‑No. |
| Brooke McGowen | 344 | What did - sorry, yes?‑‑‑And his black K‑Swiss shoes. His black?‑‑‑K‑Swiss. Sneakers. Is that K Smith? I - ‑ ‑ ?‑‑‑K‑Swiss. K‑Swiss. Is that a brand, is it?‑‑‑Yeah. Is that a trendy brand, is it?‑‑‑Yeah. Okay, all right. Are they a hard‑based boot, sort of consistency, or what are they?‑‑‑They're just like a ‑ ‑ ‑ It's a sneaker, is it?‑‑‑ - - - black leather. Ever? And how long have you been going out with him?‑‑‑Four years, I've known him for six years. |
| Brooke McGowen | 380 | And you've told this court that he was not wearing yellow boots that night?‑‑‑Not at all. Are you sure about that?‑‑‑I'm very sure. He doesn't own a pair of boots. All he has is sneakers. I put it to you that he wore yellow boots that night with steel caps---No, he wasn't. He has never owned or wore a pair of those boots. And you are seeking to protect him, aren't you?‑‑‑I'm seeking to protect him, of course, because he's getting blamed for something he didn't do, and he wasn't wearing steel capped boots. He was not wearing those boots. |
| Menka Coleski | 405 | XXN: And when he goes to work he wears work boots, doesn't he? He wears work boots when he goes to work?‑‑‑No, he wears just normal shoes. Not safety, like steel capped, something like that. No, just normal shoes, like sports shoes. Like if it's a bit older what he was wearing before and he was that. You say he doesn’t wear work boots?‑‑‑No. |
The appellant informed the police, in his video‑recorded interview, that he had worn 'black K‑Swiss shoes' (video record of interview ts 6) on the night in question. As I have mentioned, the appellant did not give sworn evidence at the trial.
It is of some significance that neither Velinda Trimoski nor Biljana Klaposki, who gave some recognition evidence at the trial, mentioned the appellant's footwear. There were, however, some unsatisfactory features of their evidence. Most of these features were referred to by Wheeler JA. See [18] above. The learned trial judge said, in his summing up, in relation to the evidence of Velinda Trimoski and Biljana Klaposki, and also the recognition evidence of Renata Naumoska:
Now, in relation to the three female witnesses called by the State, members of the jury, which the prosecutor - the evidence of whom the prosecutor relied on [in] his closing, that is reading down the list of the dramatis personae that you have, Biljana Klaposki, Velinda Trismoski and Renata Naumoski [sic], I will speak to you about some of the evidence that each of them gave as to their prior knowledge and also some of the factors that you will need to consider arising from their evidence when you consider whether those things have the potential to possibly affect the reliability of the evidence of each witness.
In relation to Velinda, members of the jury, you will recall that she said regarding Dragan, that her first cousin was married to one of his cousins, she said I know of him, she didn't know his name, she said she had first seen him in 1997 on two or three occasions, that she had seen him at dances from about '05 or '06 that is within a year, on three or four occasions. As I have already said to you, members of the jury, in relation to her evidence you will need to consider her evidence that she did not recognise him on the night she said, but heard a person, she said she knew was his mother, call his name.
…
She said in cross‑examination that Dragan had kicked the complainant to the body and Ilo to the head. She then reversed that in cross‑examination to say that it had been Dragan who had kicked to the head and Ilo to the body. She agreed that whilst those assaults on the complainant were being carried on, … she was, she said, lying on him, that she was being assaulted and was injured and hysterical and breathless.
…
In relation to Renata Naumoska, she said in regard to Dragan that he was with two others who came to the table and started fighting Zarko. She said that she had known him when he was aged about 6 years. 'I grew up with him', she said. She knew his aunt, Renata said, and each time she went to the aunt's place Dragan was there. And prior to the night she had probably seen him a few weeks before.
In evidence Renata said that Dragan had been wearing bright yellow boots, but she agreed that in her statement given to the police she had said that he was wearing black boots. Renata said that she looked into the foyer from outside, that she was 4 to 5 metres from the main doors and slightly to the right, and she could see the complainant on the ground. 'There was nothing in my way', she said. She said she saw Dragan kick the complainant to the face and stomach, and that Velinda came up and Dragan and Vlase then punched Velinda. Renata prepared a diagram, which is an exhibit, which placed her over to the far left side from the entrances one looked in. She expressed difficulty in the task of doing that and said it was inaccurate.
…
In relation to Biljana Klaposki, her evidence in relation to Dragan, members of the jury, [what] you'll recall was that she said she saw him run around and push Zarko to the floor. Biljana said she had seen Dragan before at the Ilinden Club. She said she first saw him about a year before. She didn't say initially how many times she had seen him. In cross‑examination she said, 'Five or six times, walking past, seeing them there'.
Biljana … said she would go to the club once or twice a month and see him there. She knew him by his first name, she said. She knew his parents, Renata [sic] said, and had seen him there with them. Biljana said she saw the complainant kicked in the face and stomach by Dragan and Ilo, that she was next to the complainant and helped him up with Velinda. She said Dragan's mother pulled Dragan away and she heard her say, 'Stop', and, 'Leave it alone', although she agreed that she [had] not included that in her statement.
In relation to Vlase, Biljana said she had known Vlase and his wife as a little girl, that they had been friends of her parents and she had seen him earlier in the night, but had not seen him use any violence to anyone. Perhaps I'll just wait for a moment, members of the jury. In relation to Ilo, Biljana, you'll recall, members of the jury, said that she had known Ilo as a child, that as an adult she had seen him from about one year before at the club, that she knew him as Jimmy's son and knew Jimmy through her father years before, that she knew him only as Ilo, she didn't know his surname.
She agreed that she had corrected Ilo to Ilija but said that was only the name. You will recall that on being asked after she had identified photograph number 7 on the digiboard, that being, according to exhibit 15, a photograph of Ilo Milevski, she said to the police officer, Detective Sergeant Matson, 'I think his name is Dragan. They are two brothers. I get them mixed up,' and you'll recall that in evidence she agreed that Ilo, rather, had sisters and Dragan brothers. She also said, 'He is the only one I recognise punching,' but she agreed that she had not in fact seen Ilo punch anyone. Biljana said that she had consumed alcohol but that was a single Vodka Cruiser; that she agreed that they had talked about it the next day and she had said and the others have said what they had seen.
Now, when you come to consider the evidence of those witnesses, members of the jury, where they are not in all respects the same in regard to a particular incident purportedly described, it's also necessary for you to consider any difference where you consider that's material as something which plainly would have the potential to affect the evidence of each.
It is the case, members of the jury, given what I've said to you in relation to the evidence of Biljana's purported identification of a photograph of Ilo as a person whose name was, she thought, Dragan and her evidence of prior knowledge in relation to each that it would be dangerous to rely on Biljana's purported recognition on the night of either because of that misidentication and given the possibility of at least a mix‑up. What you make of the other evidence of Biljana is entirely a matter for you. I don't comment on her evidence generally. I just point out that given what I've said to you about the dangers inherent in identification evidence, the existence of that misidentification would make reliance on her evidence dangerous (ts 474 ‑ 478).
The fresh evidence
In Coleski, Wheeler JA described the manner in which the application to adduce the fresh evidence arose. The application was supported by an affidavit of the appellant's mother, Menka Coleski, sworn 13 October 2008. Wheeler JA said:
Mrs Coleski had been under the impression, prior to trial, that someone may have been taking a video of the concert at the Sicilian Club which may have shown both the appellant and Vlase Coleski, and may have assisted with their defence. However, she was initially unable to recall who may have been doing so. About a week prior to the trial, she thought she recalled that a Mr Abduramanoski had been recording footage of the concert. She visited his home. He was not present, but his wife said that no footage had been taken by her husband of the event. After the second day of the trial, she again attended Mr Abduramanoski's house. He, his wife and daughter-in-law were present. He told her that he had not taken a video recording of the concert, but that he would make inquiries to determine whether any other person had done so. On 15 September 2008, shortly after the appellant's conviction, she again visited Mr Abduramanoski, who again denied having any footage of the evening in question. On the afternoon after the appellant was sentenced, she returned to Mr Abduramanoski's home, with her husband. Mr Abduramanoski, his wife and daughter-in-law were all present. When he again said that he had not taken a video recording of the concert, she broke down in tears. At that point, his daughter-in-law admitted that there was footage of the concert in the Abduramanoskis' possession. They gave her a DVD of footage of the concert [8].
On 20 November 2008, Wheeler JA granted the appellant leave to adduce the fresh evidence in the appeal.
Setting aside a conviction on the ground of fresh evidence: applicable legal principles
In Mickelberg v The Queen [1989] HCA 35; (1989) 167 CLR 259, Mason CJ expressed the test to be applied by an appellate court, in deciding whether to set aside a conviction on the ground of fresh evidence, as follows:
It is established that the proper question is whether the court considers that there is a significant possibility that the jury, acting reasonably, would have acquitted the appellant had the fresh evidence been before it at the trial. This test was endorsed by four of the five Justices in Gallagher v The Queen ((1986) 160 CLR 392). Deane J and I (at 402) considered that the test was best expressed in those terms. Gibbs CJ (at 399) expressed his substantial agreement with the statement, although his Honour emphasized that 'no form of words should be regarded as an incantation that will resolve the difficulties of every case'. Dawson J said (at 421) that the court would need to conclude that 'a jury might entertain a reasonable doubt about the guilt of the appellant'. His Honour went on to say (at 421) that in his view the use of the expression 'significant possibility' did not involve a different standard. I am in agreement with those statements (273).
The approach of an appellate court to the consideration of fresh evidence will be different if the appellant submits that a conviction should be set aside outright (and there should not merely be a retrial) in that innocence is shown, or the existence of an appropriate doubt established. See Ratten v The Queen [1974] HCA 35; (1974) 131 CLR 510, 518 - 519 (Barwick CJ), and the examination of the relevant issues by Steytler J in Easterday v The Queen [2003] WASCA 69; (2003) 143 A Crim R 154 [207] - [211].
The merits of the appeal
I have viewed, on several occasions, the relevant parts of the DVD of the function at the Sicilian Club. Those parts were played at the hearing of the appeal, and the appellant was identified by counsel for the parties. The nature and colour of the appellant's footwear is not easily discernible from the DVD. It is reasonably apparent, however, that his footwear was predominantly of a dark colour. At the hearing of the appeal, counsel for the appellant, with the consent of counsel for the State, handed up the black K‑Swiss shoes that were shown to the jury, but not tendered. The shoes are mainly dark grey in colour, but there is a narrow gold‑coloured band extending around the rear portion of each shoe, immediately above the sole and heel.
At the trial, the honesty and reliability of the prosecution witnesses (in particular, the complainant, Velinda Trimoski, Biljana Klaposki and Renata Naumoska) was in issue. As I have mentioned, and as is apparent from the learned trial judge's summing up and the passages from the evidence I have set out at [18], [19] and [21] above, there were some unsatisfactory features in the evidence of each of them. The complainant gave evidence that the appellant was wearing 'big yellow steel‑capped boots' (ts 89) and Renata Naumoska said he was wearing 'big yellow boots' (ts 210 ‑ 213). Some witnesses (for example, Velinda Trimoski and Biljana Klaposki) who might have been expected to notice the appellant's footwear if he had been wearing 'big, yellow boots', made no mention of his footwear. And other witnesses (for example, Brooke McGowen and Menka Coleski) supported the appellant's case that he was wearing black K‑Swiss shoes.
The fresh evidence relied on by the appellant must, of course, be evaluated in the context of the evidence adduced at the trial. I am satisfied, in that context, that if the fresh evidence had been before the jury at the trial, there is a significant possibility that they, acting reasonably, would have found the appellant not guilty.
For these reasons, I joined in the orders made by the court on 3 March 2009.
MILLER JA: I agree with Buss JA.
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