De Marte v Director of Public Prosecutions - [2025] WASC 255

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   DE MARTE -v- DIRECTOR OF PUBLIC PROSECUTIONS [2025] WASC 255
CORAM:   LEMONIS J
HEARD:   16 APRIL 2024, 17 APRIL 2024, 18 APRIL 2024, 1 MAY 2024, 17 JULY 2024, 20 AUGUST 2024, 22 AUGUST 2024
DELIVERED          :   30 JUNE 2025
FILE NO/S:   SJA 1060 of 2022
BETWEEN:   NICOLA DE MARTE
Appellant
AND
DIRECTOR OF PUBLIC PROSECUTIONS
Respondent

ON APPEAL FROM:
For File No:   SJA 1060 of 2022
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE B TYERS
File Number            :   HV 420/2020

Catchwords:

Appellant convicted after trial by magistrate of one offence of criminal damage contrary to s 444(1)(b) of the Criminal Code - Appellant appeals conviction - Appellant adduces additional evidence on appeal said to support innocent hypothesis not raised at trial and to raise credibility issues regarding prosecution witnesses - Consideration of principles in respect of additional evidence adduced on appeal - Consideration of whether there is a miscarriage of justice

Legislation:

Criminal Code (WA)
Criminal Appeals Act 2004 (WA)
Criminal Procedure Act 2004 (WA)

Result:

Leave to appeal refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	K Kumar
Respondent	:	TBL Scutt

Solicitors:

Appellant	:	Finola Barr Law Practice
Respondent	:	The Director of Public Prosecutions for The State of Western Australia

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

CGF v The State of Western Australia [2023] WASCA 187
Clarke v The State of Western Australia [2018] WASCA 14
Grewal v Director of Public Prosecutions for Western Australia [2024] WASC 92
Hayward v The State of Western Australia [2025] WASCA 35
Hillstead v The Queen [2005] WASCA 116
Houghton v The State of Western Australia [No. 2] [2022] WASCA 7
Lawless v The Queen (1979) 142 CLR 659
Nudd v The Queen (2006) 80 ALJR 614
Ratten v The Queen [1974] HCA 35; (1974) 131 CLR 510,
Samuels v The State of Western Australia [2005] WASCA 193
Sturniolo v The State of Western Australia [2023] WASCA 147
The Queen v Baden-Clay [2016] HCA 35

TABLE OF CONTENTS

Introduction

The prosecution case at trial

Matters raised by the appellant at trial

The Appeal

Expansion of the appeal in the appellant's closing submissions

Legislative basis for the appeal

Additional evidence adduced on appeal

Conduct of the trial

Grounds of Appeal

Summary of the evidence at trial

Statements read into evidence

The learned magistrate's reasons

The additional evidence

Additional evidence pertaining to the photographs which became Exhibit 2 and Exhibit 12

Summary of Mr Birks' and Mr Ginn's evidence on appeal

Summary of oral submissions

Disposition

Introductory observations

The impact of the additional evidence on the credibility of the evidence of Mr Hawkins, Mr Babich and Mr Bentley

The availability of the appeal hypothesis

Conclusion regarding the appeal hypothesis

Conclusion in respect of Grounds 1 and 2

Is the additional evidence fresh, or new, evidence?

Content of the photographs and the possible scenarios that arose from them

Miscarriage of justice - loss of opportunity contention

Conclusion regarding the loss of opportunity contentions

One final matter

Conclusion

LEMONIS J:

Introduction

The appellant was convicted after trial by the learned magistrate of one offence of wilfully and unlawfully damaging property, contrary to s 444(1)(b) of the Criminal Code (WA) (Code).
The appellant now appeals against his conviction. The appeal was initially predicated on the ground that the verdict of guilty was unreasonable or unsupportable having regard to all of the evidence. That approach was abandoned. Broadly speaking, the appellant now contends that having regard to additional evidence adduced on appeal, there has been a miscarriage of justice.
To a large extent, the additional evidence is comprised of further expert evidence from experts who gave evidence at trial.
The hearing of the appeal was elongated. This was because the parties did not appreciate a potentially significant aspect of the additional evidence until shortly before final submissions were to be made. Thankfully, the respondent's counsel recognised this and brought it to the attention of the appellant's counsel, and the court. This necessitated an adjournment of the appeal to allow the appellant to obtain further expert evidence.
It is helpful at this introductory stage to explain the prosecution case against the appellant at trial, and the matters raised by the appellant in his defence at trial. Doing so assists in setting out a framework for the appellant's contentions on appeal.

The prosecution case at trial

The appellant's conduct said to constitute the charged offence was that he cut, and thereby severed, a boom indicator cable on a crane.
The cable runs horizontally along the outside of the arm of the crane. The cable is not load bearing. It is, however, under tension. Its purpose is to indicate the length to which the crane arm is extended, which is relayed via a computer in the crane cab. That information assists in calculating the crane's lifting capability.
One end of the cable is wound around a drum reel, which sits in a closed housing. The other end is secured to an anchor point at the end of the crane arm. The cable runs out through an aperture in the housing, through three eyelets on the cable arm and is then secured at the anchor point. As the crane arm extends, the cable on the drum reel feeds out through the aperture. As the crane arm retracts, the cable retracts back onto the drum reel by reason of the tension on the reel.
Below is a photograph of the cable in place taken by an expert witness for the appellant, Mr Birks, on 13 December 2021.[1] The photograph demonstrates that the cable extends from the cable housing on the lefthand side, through the three eyelets to the anchor point on the righthand side. Mr Birks inserted the labels on the photograph.

[1] Mr Birks’ appeal report, Appeal Exhibit 3, page 8.

In simple terms, the prosecution case against the appellant at trial was as follows.
The crane in question is owned by a company called HotWeld and was being used to carry out works at the Harvey Beef Abattoir. The crane was used to carry out works on Friday 13 November 2020. That afternoon, it was packed up and placed in a lay down area. At that point in time, the cable was situated along the crane arm and the crane was functioning without error.
At the commencement of work on the morning of Monday 16 November 2020, three employees of HotWeld each observed that the cable was not situated along the crane arm where it should have been. Those employees were Mr Hawkins, Mr Babich and Mr Bentley. They each gave evidence at trial as to what they observed. Mr Hawkins also gave evidence as to how he repaired the cable.
The appellant operates a crane company called Halifax Cranes, which is a competitor of HotWeld. The appellant was at the site on Saturday 14 November 2020 for the purposes of carrying out works using cranes operated by Halifax Cranes. CCTV footage of the Saturday showed the appellant near where the cable was situated on the arm of the HotWeld crane. There was no reason for the appellant to be there. CCTV footage for the balance of the weekend did not show any other person proximate to the cable. The prosecution case was that the only reasonable inference in all of these circumstances was that the appellant had cut, and thereby severed, the cable.
An indispensable link in the prosecution case, which needed to be proved beyond reasonable doubt, was that the cable was in fact severed by the time the employees inspected the crane on the Monday morning. At trial, the appellant's case was conducted on the basis that the cable had been severed by that time. Thus, the indispensable link was not contested at trial.

Matters raised by the appellant at trial

The appellant gave evidence at trial. The appellant accepted he was in close proximity to the cable on the Saturday and also accepted that he lied in his police interview about that topic. He denied that he cut the cable. The appellant provided an innocent explanation for being near the cable, saying he was there to urinate. The learned magistrate rejected the appellant's evidence to that effect and put it to one side. The appellant does not suggest the additional evidence on appeal affects that finding.
At trial, the appellant raised two alternate innocent hypotheses as to how the cable had been severed. These hypotheses relied on evidence given at trial concerning the condition of the cable, and that on the Friday an 'unsafe lift' was carried out using the crane.
The first hypothesis put forward by the appellant at trial was that by reason of the unsafe lift, the poor condition of the cable, or both, the cable had severed during the course of its operation on the Friday. The appellant's trial counsel did not press this hypothesis in his closing address.[2] The appellant does not seek to agitate the availability of the first hypothesis on the appeal.
[2] Hearing 26 April 2022, ts 21.
The second hypothesis was that by reason of the unsafe lift, the poor condition of the cable, or both, the cable had severed at some point after it had been packed up on the Friday afternoon, and before it was inspected on the Monday morning. The learned magistrate was satisfied beyond reasonable doubt that the cable did not sever as a result of those matters. In coming to this finding, the learned magistrate found that any additional stress and potential damage to the cable from the unsafe lift was minimal.[3] The appellant does not suggest that the additional evidence affects this finding. Further, the appellant does not seek to agitate the availability of the second hypothesis on the appeal.[4]
[3] Hearing 10 June 2022, ts 433 - ts 434.
[4] Appeal hearing, ts 402, ts 403 and ts 497.
In light of these findings that I have just described, the learned magistrate was satisfied the only reasonable inference was that the appellant had severed the cable.

The Appeal

On the appeal, the appellant seeks leave to adduce additional evidence to that adduced at trial. I address later in these reasons whether that additional evidence is 'new' or 'fresh' evidence.
The appellant's counsel on appeal was different to the appellant's trial counsel. Also, by the time of the hearing of the appeal, the appellant's solicitors were different to those who represented him at trial.
The appellant contends that the additional evidence, taken together with the evidence at trial, gives rise to a different innocent hypothesis to that suggested at trial. The new innocent hypothesis, which I will call the appeal hypothesis, is directed to whether there is a reasonable possibility that the cable was not in fact severed by the time it was first observed by the employees. It will be recalled the appellant did not contest that issue at trial.
The appeal hypothesis is as follows. On the morning of Monday, 16 November 2021 the three employees noticed that the cable was damaged, but not severed. One of the employees, Mr Hawkins, then cut the cable to undertake a 'controlled repair'. The three employees then collectively made up a story that the cable was severed when each first observed it, and then knowingly gave false evidence at trial to that effect. The appellant contends those employees did so in order to cover up damage that was, or might have been, caused to the cable by the unsafe lift on the Friday. To be clear, the appeal hypothesis was not put to any of the three employees at trial. Instead, their cross‑examination was conducted on the basis that the cable was severed when each first observed it.
The appellant also contends that the additional evidence impugns the credibility of the evidence of the three employees who observed the cable on the Monday morning, each having given evidence to the effect that the cable was not in one piece when they first observed it on the Monday morning.
As a consequence of these matters, the appellant puts forward two propositions. First, the appellant contends that having regard to the additional evidence and the evidence at trial, there is a reasonable doubt as to whether the cable was severed when it was first observed by the employees. Second, the appellant contends that there is a significant possibility that if the additional evidence was adduced at trial, the learned magistrate would not have been satisfied beyond reasonable doubt that the cable was severed when first observed and thus there is a significant possibility the learned magistrate would have acquitted the appellant.
There are two principal bases put forward by the appellant for the positions that he advances on appeal.
The appellant contends that the evidence adduced on appeal demonstrates that if the appellant had cut the cable as alleged, the cable could not have been repaired in the manner described by Mr Hawkins in his evidence, and further, that the CCTV footage does not depict the repair of an already severed cable.
Specifically, the appellant says that if the cable had been severed, it would have retracted onto the drum reel contained in the housing. And, the appellant says that in order to retrieve the cable from the housing, it would have been necessary to remove the housing cover. The appellant says (and the respondent accepts) that the housing cover was not taken off prior to repairs starting on the cable. Thus, the appellant says, it was not reasonably possible for the repair work to have been undertaken in the manner that it was if the cable had been severed. The appellant also says that the appeal hypothesis is supported by the CCTV footage, which the appellant says depicts Mr Hawkins cutting an intact cable. The appellant says it follows that the prosecution cannot prove beyond reasonable doubt the cable was severed by the time the employees first observed it, or there is a significant possibility the learned magistrate would not have been satisfied of that beyond reasonable doubt if the additional evidence was adduced at trial.
The second basis predominantly relies on six photographs of the cable that became Exhibits in the trial. The six photographs were initially tendered as Exhibit 2. Later in the trial clearer versions of the photographs were tendered as Exhibit 12. Mr Hawkins was taken to the photographs in his evidence. Mr Babich was taken to three of the photographs in his evidence. Mr Bentley was taken to one of them.
Ultimately, Mr Hawkins's evidence was that five of those photographs were taken before he started to repair the cable. Mr Babich accepted the proposition put to him in cross-examination that one of the photographs depicted a severed end of the cable. The questions asked of Mr Bentley in respect of the photograph put to him were predominantly for the quite limited purpose of Mr Bentley identifying where on the crane arm the cable was usually positioned.
Evidence has been adduced on appeal as to the times at which each of those photographs were taken. That evidence demonstrates that several of the photographs indicated the state of the cable during the course of the repairs, not when it was first observed.
The appellant contends that the additional evidence regarding the photographs, in the context of other matters pertaining to Mr Hawkins and Mr Babich, so undermines the credibility of their evidence as to result in a miscarriage of justice. The appellant says that as a consequence, the credibility of Mr Bentley's evidence is also undermined. The appellant also contends that his trial counsel would have conducted cross‑examination at trial on a different basis if the information as to the times at which the photographs were taken had been available at trial.
Broadly speaking, the respondent raises the following matters in answer to the appeal. First, that the expert evidence adduced on appeal demonstrates that it was possible to remove the cable from its housing using fingers or pliers to retrieve it via the aperture in the cable housing. Thus, the appellant's proposition that it was not reasonably possible for the repair work to have been undertaken in the manner that it was, falls away.
Secondly, while the evidence of the photographs might affect the credibility of Mr Hawkins' evidence, it does not impugn the evidence of the other two employees, Mr Babich and Mr Bentley, who gave evidence to the effect that the cable was severed when they first observed it.
The respondent also says that the additional evidence is not fresh evidence, but is new evidence and does not, when taken together with all of the evidence at trial, give rise to a reasonable doubt as to the appellant's guilt.

Expansion of the appeal in the appellant's closing submissions

Very belatedly, the appellant in his counsel's written closing submissions, sought to contend there was a miscarriage of justice irrespective of whether the additional evidence results in there being a reasonable doubt, and irrespective of whether the additional evidence results in a significant possibility the learned magistrate would have experienced a reasonable doubt if the additional evidence was adduced at trial. As I explain below, I am not satisfied that additional contention arises on the grounds of appeal, although I will still address it.

Legislative basis for the appeal

The appeal is brought pursuant to s 7(1) of the Criminal Appeals Act 2004 (WA) (CA Act), the appellant being a person aggrieved by the decision of the learned magistrate to convict him. An appeal may be made on grounds that include that there has been a miscarriage of justice.
Leave of this court is required for each ground of appeal. I must not give leave to appeal on a ground unless I am satisfied the ground has a reasonable prospect of succeeding, which requires that the ground have a rational and logical prospect of succeeding.[5]
[5] Samuels v The State of Western Australia [2005] WASCA 193 [56].
Section 14 of the CA Act sets out the options available to me in deciding the appeal. These include dismissing it or allowing it. Further, pursuant to s 14(2) even if a ground of appeal might be decided in favour of the appellant, I may dismiss the appeal if I consider that no substantial miscarriage of justice has occurred. The respondent does not seek to rely on s 14(2).

Additional evidence adduced on appeal

Pursuant to s 40(1)(e) of the CA Act, an appeal court has the power to admit additional evidence. Section 40 applies to all criminal appeals under the CA Act.
There is a distinction between additional evidence that is classified as fresh evidence, and additional evidence that is classified as new evidence.
In Grewal v Director of Public Prosecutions for Western Australia,[6] I explained that distinction by reference to the decision of Buss P in Clarke v The State of Western Australia as follows:[7]
Fresh evidence is evidence that either did not exist as at the date of the trial or could not, with reasonable diligence, have been obtained or discovered for use at the trial. New evidence is evidence that could, with reasonable diligence, have been obtained or discovered for use at the trial. Further, Buss P explained that ordinarily the relevant common law principles in respect of fresh evidence set a lower threshold for an appellant to establish a miscarriage of justice, compared to the relevant principles in respect of new evidence.
While Clarke concerned an appeal from a conviction after trial by jury, in my view the observations made regarding fresh and new evidence also have application to an appeal from a conviction after a trial by a magistrate. Adopting that approach, in respect of an appeal from a conviction by a magistrate, ordinarily an appellate court will not allow the appeal on the basis of fresh evidence unless there is a significant possibility that on the basis of all of the admissible evidence, that is the fresh evidence and the evidence given at trial, the appellant would have been acquitted.
(footnotes omitted)
[6] Grewal v Director of Public Prosecutions for Western Australia [2024] WASC 92 [23] - [24].
[7] Clarke v The State of Western Australia [2018] WASCA 14 [237], [239] - [241].

In Clarke, Mitchell JA observed in relation to the application of the common law principes touching upon the distinction between new and fresh evidence as follows:[8]
In Rinaldi v The State of Western Australia, the court held that the common law principles touching upon the distinction between new and fresh evidence are not necessarily determinative of the manner of exercise of the statutory discretion. However, the court observed that the considerations giving rise to those principles will ordinarily be weighty, so much so that it will be a rare case in which an exercise of the statutory discretion produces a different outcome to that produced by application of the common law principles.
(footnotes omitted)
[8] Clarke [726].
As to the characteristics of fresh evidence, in Clarke, Buss P observed in respect of an appeal from a jury verdict of guilty:[9]
[The fresh evidence] must also be credible in the sense that a reasonable jury could accept it as true (but it is not necessary that the appellate court should think it likely that a reasonable jury would believe it) or be sufficiently cogent and plausible to lead a reasonable jury to have a reasonable doubt as to the appellant's guilt (although the reasonable jury might not necessarily prefer it to other evidence with which it is inconsistent).
[9] Clarke [240].
I consider his Honour's observations concerning the credibility, cogency and plausibility of fresh evidence apply to any additional evidence adduced on appeal from a magistrate's verdict of guilty, replacing the words 'reasonable jury' in the passage with 'the trial magistrate'.
If the additional evidence is 'new evidence', then ordinarily, there will not be a miscarriage of justice unless the new evidence establishes that the appellant is innocent or the new evidence raises such a doubt that the court is satisfied that the appellant should not have been convicted.[10]
[10] Clarke [239].
In Ratten v The Queen, Barwick CJ, with whom McTiernan, Stephen and Jacobs JJ agreed, summarised the task before the court as follows:[11]
To sum up, if the new material, whether or not it is fresh evidence, convinces the court upon its own view of that material that there has been a miscarriage in the sense that a verdict of guilty could not be allowed to stand, the verdict will be quashed without more. But if the new material does not so convince the court, and the only basis put forward for a new trial is the production of new material, no miscarriage will be found if that new material is not fresh evidence. But if there is fresh evidence which in the court's view is properly capable of acceptance and likely to be accepted by a jury, and which is so cogent in the opinion of the court that, being believed, it is likely to produce a different verdict, a new trial will be ordered as a remedy for the miscarriage which has occurred because of the absence at the trial of the fresh evidence.
[11] See Ratten v The Queen [1974] HCA 35; (1974) 131 CLR 510 520 (Barwick CJ) cited in Clarke [251] (Buss P).
Barwick CJ also observed that a criminal trial:[12]
... will not become an unfair trial because the accused of his own volition has not called evidence which was available to him at the time of his trial, or of which, bearing in mind his circumstances as an accused, he could reasonably have been expected to have become aware and which he could have been able to produce at the trial. Great latitude must of course be extended to an accused in determining what evidence by reasonable diligence in his own interest he could have had available at his trial, and it will probably be only in an exceptional case that evidence which was not actually available to him will be denied the quality of fresh evidence. But he must bear the consequences of his own decision as to the calling and treatment of evidence at the trial.
[12] Ratten (517).
In circumstances where the additional evidence is characterised as 'new', such evidence is unlikely to meet the requirement of establishing an appellant is innocent, or raise such doubt that the appellant should not have been convicted, if it relates only to issues of credibility.[13]

Hillstead v The Queen

[13] Houghton v The State of Western Australia [No 2] [2022] WASCA 7 [197].

The appellant relied on the decision of the Court of Appeal in Hillstead v The Queen[14] in support of the proposition that there may be a miscarriage of justice irrespective of whether the additional evidence gives rise to a reasonable doubt, or to a significant possibility that the appellant would have been acquitted if the additional evidence had been adduced at trial.
[14] Hillstead v The Queen [2005] WASCA 116.
Hillstead needs to be considered in light of its particular facts.
The appellant (Mr Hillstead) was found guilty of murder after trial before a jury. The deceased died as a result of multiple blows to the head with a weapon. The deceased was in his bed at the time that the blows were struck. The blows caused a splattering of blood onto the walls of the bedroom. There was a photograph on the bed. Two fingerprints were detected on the photograph, and a palm print was detected on a shelf above the bed. The prosecution led expert evidence at trial from a police forensic investigation officer that the finger and palm prints were those of Mr Hillstead, and that the hand and fingers imparting the print had blood on them when they touched the photograph and shelf respectively. The forensic investigation officer also said this blood was imparted on those items contemporaneously with the blood being shed by the deceased.
Mr Hillstead gave evidence at trial denying that he struck the blows. He said he went into the bedroom on two occasions. On the second occasion, he touched the body to confirm the deceased was dead, and then stood on top of the bed to search the shelf above the bed for photographs which belonged to Mr Hillstead.[15] Aside from that aspect of the forensic evidence, the evidence from the remaining prosecution witnesses was potentially consistent with Mr Hillstead's account.[16]
[15] Hillstead [20] - [22], [30].
[16] Hillstead [3].
The forensic evidence was not challenged at trial, nor did the appellant's trial counsel obtain expert evidence on that topic. The forensic evidence was powerful evidence rebutting Mr Hillstead's account of what he said happened.
After trial, Mr Hillstead's legal representatives obtained an expert report to the effect that it was not possible to determine when the blood was deposited onto the shelf and photograph.[17] Further, after trial, the forensic investigation officer who gave evidence at trial provided a further statement in which he said that if he had been asked in cross-examination if it was possible that Mr Hillstead had placed his fingers in the victim's blood some hours later and subsequently deposited bloodstained fingerprints on the surfaces of the shelf and photo, he would have conceded that as a possibility.[18] On the appeal, trial counsel conceded that his failure to challenge the forensic evidence regarding the finger and palm prints was 'an appalling oversight'.[19]
[17] Hillstead [42].
[18] Hillstead [44].
[19] Hillstead [9].
Three separate judgments were delivered in Hillstead. Each member of the court found that the further evidence was new, not fresh, evidence.
Wheeler JA found that the new evidence did not show Mr Hillstead to be innocent, nor lead to such a doubt that the verdict should not be allowed to stand.[20] Her Honour said there was a serious oversight by counsel, leading to the new evidence not being available at trial. Her Honour concluded there was a miscarriage of justice by reason of the actual unavailability of the evidence at trial, and the unusually critical and compelling nature of the evidence at trial as to the finger and palm prints.
[20] Hillstead [2].
Roberts-Smith JA held that the failure of counsel to challenge the evidence at trial was an appalling oversight.[21] His Honour said that 'it is simply impossible for this Court to say what view the jury would have taken of [Mr Hillstead's] testimony'.[22] His Honour held that the new evidence was not such as to raise a doubt about Mr Hillstead's guilt in the sense that it either showed Mr Hillstead to be innocent or raised such a doubt about his guilt in the mind of the court that the verdict should not be allowed to stand. His Honour said that the judicial pronouncements on the test to be applied with respect to new evidence are predicated on a conviction which is '… regularly obtained after a fair trial'.[23] In this respect, his Honour referred to the statement of Mason J in Lawless v The Queen:[24]
If the evidence newly adduced falls short of establishing that the accused should not have been convicted, there is no overwhelming reason why the conviction, regularly obtained after a fair trial should not be allowed to stand.
(emphasis added)
[21] Hillstead [9].
[22] Hillstead [15].
[23] Hillstead [16], read together with the reference in [11] of Hillstead to Ratten.
[24] Lawless v The Queen (1979) 142 CLR 659, 676 (Mason J).
Roberts-Smith JA ultimately found that:[25]
The evidence which was crucial to the appellant's credibility at trial is now shown to have been critically flawed; there is necessarily relevant unfairness in the appellant's guilt being determined by the jury on a demonstrably false basis, however occasioned. That being so, the conviction must be quashed.
[25] Hillstead [16].
Pullin JA held that the forensic investigation officer's written report prior to trial did not explain the basis for the opinion that the deposition of blood occurred contemporaneously with the victim's death. Thus, the report contained an unproved assertion. His Honour also said that while the forensic investigation officer gave a reason for that opinion in his oral evidence, that explanation did not provide the jury with sufficient criteria to test the accuracy of the opinion.[26] Having regard to these matters, his Honour found that cross-examination on the topic at trial may not have been wise, and that trial counsel's concession that he overlooked cross-examination was irrelevant.[27] His Honour also held that given the forensic investigation officer's new evidence, the only conclusion that can be drawn is that the forensic investigation officer's opinion evidence given at trial was not an unqualified opinion and that should have been disclosed by the officer prior to trial.[28]
[26] Hillstead [52].
[27] Hillstead [56] - [57].
[28] Hillstead [53].
Ultimately, his Honour found that the new evidence and its effect raised 'such a doubt about his guilt in my mind that the verdict should not be allowed to stand'.[29] This finding reflects the orthodox formulation of when new evidence will result in an appeal being allowed.
[29] Hillstead [61].
The effect of the judgments of Wheeler and Roberts‑Smith JJA is that in circumstances where there is a serious oversight by trial counsel, and where the new evidence alters the unqualified nature of critical evidence given at trial, there can still be a miscarriage of justice even though the new evidence does not show the appellant to be innocent and does not lead to such a doubt as to his guilt that the verdict should not be allowed to stand.

Conduct of the trial

The conduct of the trial by the appellant's trial counsel is a further matter that I take into account.
In CGF v The State of Western Australia, Mazza JA observed that:[30]
An accused person is, ordinarily, bound by the forensic choices made at trial. An appeal is not an opportunity to attempt to re-run a trial in a manner which, with the benefit of hindsight, the offender wishes he or she had run at first instance.
[30] CGF v The State of Western Australia [2023] WASCA 187 [114].
Further, in Sturniolo v The State of Western Australia, the Court of Appeal in a joint judgment observed that:[31]
An accused person must bear the consequences of their decisions as to the calling and treatment of evidence at the trial. In this respect, the general precept applies, namely that with confined exceptions, a person is bound by their counsel's conduct of the trial.
(footnotes omitted)

Grounds of Appeal

[31] Sturniolo v The State of Western Australia [2023] WASCA 147 [240]. See also Nudd v The Queen (2006) 80 ALJR 614, 618 - 619 [9] (Gleeson CJ).

The amended grounds of appeal are as follows:
Amended Grounds of Appeal with Particulars
1.In light of additional material obtained since trial, the appellant has suffered a substantial miscarriage of justice and the verdict should be quashed without more.
a.There is significant and reasonable doubt that photographs adduced in the trial are photographs showing criminal damage to the crane's retractor cable.
b.The credibility of prosecution witness, Brett Hawkins, who gave evidence about said photographs can no longer be relied upon.
c.The evidence of prosecution witnesses Brett Hawkins, Ben Bentley and Mark Babich who gave evidence about observing a criminally damaged retractor cable prior to it being repaired can no longer be relied upon as truthful witnesses.
d.It is not possible for the retractor cable to have been repaired in the way it was if it in fact has been criminally damaged as alleged.
2.In light of additional material obtained since trial, the appellant has suffered a substantial miscarriage of justice.
a.There is significant and reasonable doubt that photographs adduced in the trial are photographs showing criminal damage to the crane's retractor cable.
b.The credibility of prosecution witness, Brett Hawkins, who gave evidence about said photographs can no longer be relied upon.
c.The evidence of prosecution witnesses Brett Hawkins, Ben Bentley and Mark Babich who gave evidence about observing a criminally damaged retractor cable prior to it being repaired can no longer be relied upon as truthful witnesses.
d.It is not possible for the retractor cable to have been repaired in the way it was if it in fact has been criminally damaged as alleged.
e.The totality of the above if presented at trial is cogent and credible and thereby likely to have caused a different verdict, namely an acquittal.
The grounds fit within the orthodox formulation as to the circumstances in which evidence characterised as fresh, or new, will result in an appeal succeeding. Ground 1 is to the effect that the additional evidence raises such a doubt about the appellant's conviction that the verdict should not be allowed to stand. Thus, consistently with the approach outlined by Barwick CJ in Ratten (see [47] above), Ground 1 asserts there is a miscarriage of justice irrespective of whether the additional evidence is new or fresh. Ground 2 is to the effect that if the additional evidence was adduced at trial, it would have likely resulted in an acquittal. Thus, it is predicated on the premise that the additional evidence is fresh.
In respect of a possible ground predicated on the decision in Hillstead, the appellant's counsel frankly accepted in her written closing submissions that this 'is an issue the appellant failed to contemplate as a possibility in any of its submissions to date...'.[32] As I will come to explain, an expanded contention was also put in oral submissions that the appellant had suffered a miscarriage of justice by reason of losing the opportunity to rely on the additional evidence at trial.
[32] Addendum to the appellant’s closing submissions applying the law dated 7 August 2024, par 7.
The appellant did not seek to amend his grounds to include a ground based on the decision in Hillstead. Rather, the appellant submits that the existing grounds are sufficient. I disagree. The appellant's expanded argument proceeds on the premise there can be a miscarriage of justice even if the additional evidence neither gives rise to a reasonable doubt, nor to a significant possibility that the appellant would have been acquitted.
That proposition does not sit within the framework of Grounds 1 and 2 as I have explained them at [67] above. Nonetheless, for completeness, I will still address the appellant's expanded argument as substantial submissions were made on that topic.
The appellant does not assert that there has been a miscarriage of justice by reason of how trial counsel conducted the trial. Rather, as I will come to explain, the appellant submits it was rational for the appellant's trial legal representatives not to have considered the appeal hypothesis prior to trial, and therefore not to have advanced the appeal hypothesis at trial.
I accept that the appeal hypothesis was not advanced at trial. However, the evidence before me does not demonstrate that the appellant's trial legal representatives had not considered, and discounted, the appeal hypothesis. In that respect, the appellant has not put on any evidence directed to that question. That absence of evidence is relevant to an assessment of whether the additional evidence is new or fresh, and is also relevant to an assessment of the appellant's loss of opportunity contentions.
It is useful at this point to summarise the evidence given at trial and the learned magistrate's reasons. It is necessary to do so in some detail, given the matters raised by the grounds of appeal, and by the appellant in his counsel's submissions.

Summary of the evidence at trial

To assist in understanding the forensic rationale for the questions asked, the propositions sought to be advanced for the appellant at trial included that:
1.The 'unsafe lift' occurred by reason of the chain sling on the crane arm coming into contact with steel rafters at a point when the arm was at, or close to, full extension.
2.This contact caused vibration in the crane arm. That vibration transmitted to the cable and was capable of damaging the cable.
3.There was insulating tape on the cable, which might suggest that the cable had previously been patched up or reinforced in places, thus suggesting a prior weakness in the cable.

Mr Price

Mr Price is a crane inspector. He described how on 20 October 2020 he inspected the crane the subject of this appeal. He said he found a few faults with the crane. He described these as minor faults.[33] The faults that he identified did not relate to the boom retractor cable.
[33] Hearing 21 February 2022, ts 30.
He described that the function of the boom retractor cable is to send signals back to the computer, tell the computer where the boom is extended to and the angle it is at, and to tell the computer anything else it needs to calculate the load the crane is capable of lifting.[34]
[34] Hearing 21 February 2022, ts 31.
Further, he said the boom retractor cable is not load bearing and it just runs along the side of the boom itself.[35] He also said that the cable has its own reel and as the boom extends out, the cable goes out with it and as the boom retracts, it pulls that cable back in.[36] He said that the reel is kept under tension with a spring-loaded retractable reel.[37]
[35] Hearing 21 February 2022, ts 31.
[36] Hearing 21 February 2022, ts 31.
[37] Hearing 21 February 2022, ts 31.
In cross-examination, Mr Price was shown a number of photographs of the crane, including a photograph that depicted insulation tape wrapped around a part of the cable.[38] The learned magistrate asked whether the cable is normally wrapped in insulation tape. Mr Price answered that on some places where it may rub, it is protected with rubber or insulation tape.[39]
[38] Hearing 21 February 2022, ts 34.
[39] Hearing 21 February 2022, ts 38.
In cross-examination, Mr Price said that he did not recall seeing the insulation tape on the cable when he inspected it on 20 October 2020.[40]
[40] Hearing 21 February 2022, ts 38.
Mr Price agreed that if he had seen insulation tape on the cable, he would have wanted to have known why.[41] He said he would have wanted to have known whether the insulation tape was a temporary fix covering up damage to the cable.[42]
[41] Hearing 21 February 2022, ts 41.
[42] Hearing 21 February 2022, ts 41.

Mr Price described how the boom retractor cable is attached to an anchor point on the side of the boom.[43] Mr Price also described how the boom retractor cable has to go through eyelets beside the boom.[44]
[43] Hearing 21 February 2022, ts 40.
[44] Hearing 21 February 2022, ts 42.
Mr Price said it was not a major repair at all to replace the entire cable.[45]
[45] Hearing 21 February 2022, ts 42 - ts 43.
Mr Price gave evidence that in the years 2017 to 2020, there was no entry or record in the crane inspection reports relating to a fault in the boom retractor cable, or the replacement of the boom retractor cable.[46]
[46] Hearing 21 February 2022, ts 50.
Mr Price said the crane in question was manufactured in 1997.[47]
[47] Hearing 21 February 2022, ts 51.
Mr Price accepted that the manual for the crane stipulated that the cable should be replaced every four years.[48] The manual for the crane set out that some crane components undergo deterioration and set out a table as to the frequency with which they must be replaced.[49] Mr Price said that the reference in the manual to replacing the cable was a reference to a wire rope for boom telescoping, which is inside the boom.[50]
[48] Hearing 21 February 2022, ts 52 - ts 53.
[49] Hearing 21 February 2022, ts 55.
[50] Hearing 21 February 2022, ts 57, ts 59.
Mr Price said that a good portion of the cable is housed in the reel. He agreed that the other end of the cable is situated at the end of the boom.[51]
[51] Hearing 21 February 2022, ts 59.
Mr Price said to his knowledge there was no recommended timeframe on a replacement of the retractor wire rope reel.[52] Mr Price was cross‑examined on the requirement for there to be a 10 year major inspection report done in respect of the crane. He explained that 10 years means the operational life of the crane, not its calendar life.[53] His 2020 report for the crane noted that the 10 year major inspection report was not sighted by him on inspection.[54]
[52] Hearing 21 February 2022, ts 60.
[53] Hearing 21 February 2022, ts 62.
[54] Hearing 21 February 2022, ts 68.
Mr Price was taken to a photograph of the unsafe lift and accepted that it showed the chain sling was in contact with the steel rafter. Mr Price said that could cause vibration in the crane boom.[55] Mr Price also accepted this would cause the cable to vibrate, however he did not accept it would cause high stresses in the cable.[56]
[55] Hearing 21 February 2022, ts 71.
[56] Hearing 21 February 2022, ts 73.
Mr Price accepted that if the cable had been patched up or reinforced in places with insulating tape, it was a possibility that the cable could have snapped or been weakened or further weakened during the unsafe lift.[57]
[57] Hearing 21 February 2022, ts 73.
He said that in testing the integrity of the signal to the computer during his inspection, he did not notice any degraded performance that would indicate there was a potential fault in the boom retractor cable.[58] He said that if there was partial damage to the cable, he would expect that it would show up during his inspection.[59]

Mr Babich

[58] Hearing 21 February 2022, ts 75.

[59] Hearing 21 February 2022, ts 75.

Mr Babich was a supervisor rigger who had worked for the owner of the crane since 2006.
On Friday 13 November 2020, Mr Babich was working as a crane driver using the crane the subject of the charge against the appellant.[60]
[60] Hearing 21 February 2022, ts 79.
Mr Babich described how the cable is the boom length indicator, it feeds off a spool and 'it will tell you how much boom you have got up in the air'.[61]
[61] Hearing 21 February 2022, ts 83.
He said on Monday 16 November 2020, he became aware of damage to the cable.[62] He described the damage as follows:[63]
The damage was this boom length indicator that tells you how much boom you've got out, which runs up the side, connects to the very top of the crane, was - well, it was cut at the top.
[62] Hearing 21 February 2022, ts 85.
[63] Hearing 21 February 2022, ts 85.
He went on to say that it was cut 'right at the very tip where it attaches to the - to the very top of the crane', that being at the end of the boom.[64]
[64] Hearing 21 February 2022, ts 86.
He described how an unsafe lift had occurred on the Friday. He explained how a steel beam was being lifted up, and the chains holding the steel beam were rubbing and resting against an upper steel beam of the structure that was in place. He said this could affect the treatment of the steel and that you could get some wear on the chains.[65]
[65] Hearing 21 February 2022, ts 91.
He said the steel beam was lowered and placed back on the ground while they worked out a better method of lifting it.[66] Mr Babich said that if the damage to the cable had occurred at any stage prior to the crane being packed away, there is no way you would be able to lower the boom down into position as the computer would have gone into error.[67]
[66] Hearing 21 February 2022, ts 91.
[67] Hearing 21 February 2022, ts 95.
He was taken to the CCTV footage from Monday 16 November 2020, where the crane was being driven back into the work area. He said he was pretty sure the person driving the crane was Mr Ben Bentley. He said a Mr Brett Hawkins, who is a rigger and mechanic was also there. He was asked which people were working there on the Monday and he said himself, Mr Bentley and Mr Hawkins.[68]
[68] Hearing 21 February 2022, ts 101.
He was taken to the CCTV footage which had a time stamp of 08:20:25. He was asked to explain what was happening. He said that Mr Bentley had done a pre-start check on the crane and realised that the wire was not connected anymore at the front of the crane. Mr Babich said he was driving past, he got out of his ute and then Mr Hawkins and Mr Bentley called him over. Mr Babich said he had gone to assess the damage.[69]
[69] Hearing 21 February 2022, ts 103 - ts 104.
He was taken to the photograph which was Exhibit 2.4 in the trial and said it showed the point where the wire had been cut. He said the correct name for it was the boom length indicator wire. He said that Mr Hawkins took that photograph.[70]
[70] Hearing 21 February 2022, ts 105.
He was asked what he observed about the damage to the cable. He said on close inspection he noticed a cut, which he described as a neat, tapered cut, 'which [he] had seen plenty of times with a plier sort of cut'.[71]
[71] Hearing 21 February 2022, ts 106.
Mr Babich was asked to describe what had happened that morning. He said that Mr Bentley did a pre-start check on the crane, where it was parked over the weekend. He said Mr Bentley had noticed 'that the cable had been damaged or was not there anymore. It had retracted'.[72]
[72] Hearing 22 February 2022, ts 114.
Mr Babich was asked what he could see when he looked at the crane. He said '[o]bviously we could see that the wire was no longer there'.[73] He described how his first thought was that something had possibly hit it, and then said:[74]
But there was no visual damage or paint missing that something could have hit it and just where the cut was in relation to that little eyelet guide… was quite close to it and it couldn't actually be crushed or pushed into the crane as such, into the boom so there was no pinch point area for anything to have hit it and caused damage.
[73] Hearing 22 February 2022, ts 116.
[74] Ibid.
He expanded on this evidence as follows:[75]
So first thought was, yes, obviously I thought maybe something had hit it but it was too far, that possibly couldn't - the wire couldn't hit anything. There was nothing close enough in the proximity to - for it to be crushed against. And also I had seen, for example, a lead or a wire that had been crushed or - on site before where the damage is quite torn, sort of, looked and the exposed wires as such, it wasn't - it was a clean - clean cut which then prompted me that something had cut this, like pliers, was straight to my mind just by the clear cut and the chamfer nature of the wire end itself.
[75] Hearing 22 February 2022, ts 118.
Mr Babich, in cross-examination, described the unsafe lift as 'chains rubbing against the beam'.[76] Mr Babich also accepted that an unsafe lift had been called on the Friday and said that the chain was snagged over and rubbing on the horizontal beam.[77] He also accepted that this can cause vibration of the boom.[78]
[76] Hearing 22 February 2022, ts 121.
[77] Hearing 22 February 2022, ts 124.
[78] Hearing 22 February 2022, ts 127.
The proposition was put to him that the vibration would have caused the boom retractor cable alongside that boom to have vibrated at the same time, which he did not dispute.[79]
[79] Hearing 22 February 2022, ts 127.
Mr Babich gave evidence that if the boom indicator wire was cut or severed, it would retract into the drum and spool.[80]
[80] Hearing 22 February 2022, ts 129.
Mr Babich accepted the following proposition put to him by the appellant's trial counsel. Mr Bentley went to collect the crane, brought it back to site, drew to the attention of Mr Babich and Mr Hawkins that he could not see the boom retractor cable, and that Mr Babich then got out (from his ute) and they all stand around and have a look.[81]
[81] Hearing 22 February 2022, ts 135.
Mr Babich was taken to the photos which were Exhibit 2, of which clearer copies became Exhibit 12 at the trial. Mr Babich said that he was 'pretty sure' Mr Hawkins took the photographs.[82]
[82] Hearing 22 February 2022, ts 138.
In relation to Exhibit 2.1, he agreed with the proposition put to him that it depicted one of the severed ends of the cable.[83] The following exchange then took place:[84]
And that's the end - that's the severed end - one of the severed ends of the boom retractor cable, is it?‑‑‑I can't see the - yes, it is. Sorry, I'm looking at it the wrong way. Yes. Correct. Right there is the end. Yes.
Good. We're there. And it's your evidence, is it, that that was a clean cut or a - I think you said something - it's not a term I'm familiar with - a chamfered?‑‑‑Yes. It was just a nice, chamfered cut, where I've - if you've ever cut something with a pair of plyers you end up with a neat sort of chamfered cut, which is ‑ ‑ ‑
So in your opinion it was a chamfered cut, when you looked at it?‑‑‑Yes. You can see that that's still completely round, where it hasn't had an impact or no - no fraying or - so it hasn't been a blunt object, or it hasn't worn.
It hasn't been a blunt object?‑‑‑It hasn't worn. It's just a nice clean ‑ ‑ ‑
How do you exclude the fact that that has snapped?‑‑‑How do you?
Exclude the fact, from looking at it - thinking back to looking at, that it snapped?‑‑‑You would have - if it had snapped, I would guess, as if something had worn it out or something had stretched it, you would end up with - if it had been stretch snapped, you would have - like I've seen leads or wires snapped before, you would end up with bits of wire hanging on.
Well, you haven't seen a boom retractor cable snapped before, have you?‑‑‑I haven't.
[83] Hearing 22 February 2022, ts 138.
[84] Hearing 22 February 2022, ts 138 - ts 139.
Mr Babich was then taken to the photo which was Exhibit 2.6 and the following exchange took place:[85]
[85] Hearing 23 February 2020, ts 140 - ts 141.
And what we can see there, I suggest, is one end of the boom retractor cable; agree?‑‑‑Yes. I'm ‑ ‑ ‑
Agree?‑‑‑I can't see that it has been cut, anymore.
No?‑‑‑So ‑ ‑ ‑
Exactly. It doesn't look like it has been cut, does it?‑‑‑Not ‑ ‑ ‑
It looks like it has frayed?‑‑‑Not in this ‑ ‑ ‑
‑ ‑ ‑ and worn?‑‑‑I don't know what I'm looking at exactly. Which end or what it is there that's ‑ ‑ ‑
All right. Well, let's just be precise here. Sorry, Mr Usher. I don't mean to ‑ ‑ ‑?‑‑‑I'm just ‑ ‑ ‑
All right. What we've got here - and I'm holding it up so that we can all see, exhibit 2.6. We can see the yellow of the boom anchor?‑‑‑Yes.
Okay. And that's towards the tip of the boom. Okay. And one end of the boom retractor cable attaches to that. Yes. The other end is closer to the cab in the reel?‑‑‑Yes.
Okay. And what we've got there, I suggest, highlighted neatly in quite a clear photograph, is one end of the boom retractor cable. Can you see it?‑‑‑Yes.
And it doesn't look like a clean cut, does it?‑‑‑Not on that shot. No.
It doesn't look like a clean cut, does it?‑‑‑No. Not on that shot. No.
No. Well, who were these photographs taken by?‑‑‑Brett Hawkins.
Right. At the time that this was first discovered, on Monday the 13th?‑‑‑Yes.
Monday the 16th, sorry?‑‑‑Yes.
All right. Well, how do you explain that?‑‑‑I'm not sure. I'm just going by what I saw on the day.
All right?‑‑‑So that's just a ‑ ‑ ‑
But you accept this is a photograph taken that day ‑ ‑ ‑?‑‑‑Yes.
‑ ‑ ‑ by a colleague?‑‑‑Yes.
‑ ‑ ‑ in your presence?‑‑‑Yes.
‑ ‑ ‑ with the purpose of illustrating what you had found?‑‑‑Yes.
‑ ‑ ‑ so it could be looked at subsequently?‑‑‑Yes.
And it doesn't look like a clean cut, does it?‑‑‑Well, not in that shot, if that's - that's the end. Is he just taking a photo of that adaptor pole.
It doesn't look like a clean cut, does it?‑‑‑No
The cross‑examination of Mr Babich focused on whether or not the cable could have snapped, as opposed to being cut. It was not put to him that the cable was in place when he first examined the crane. Rather, the cross-examination proceeded on the premise that the cable had separated when Mr Babich first observed it. Mr Bentley was not cross-examined as to the steps taken by Mr Hawkins to retrieve the cable end from the aperture in the drum housing.

Mr Bentley

Mr Bentley described how he had worked as a rigger for three years with Hotweld, the owner of the crane. The role of a rigger involved receiving the steel coming off the crane.[86]
[86] Hearing 22 February 2022, ts 146.
He said that on Friday 13 November 2022, Mr Babich was operating the crane.[87] Mr Bentley explained how a lift was 'flagged' as Harvey Beef, whose building was being constructed, was unhappy with how the load was rigged. The lift was cancelled, and the particular beam put down and it was not lifted again that day. This was because the 'better plan' to lift that particular beam required additional equipment that was not on site that day.[88] He said he did not operate the crane on the Friday.[89]
[87] Ibid.
[88] Hearing 22 February 2022, ts 149.
[89] Hearing 22 February 2022, ts 150.
He described how on the Monday morning he gave the crane a pre-start check.[90] He was asked if anything struck him as unusual and he said:[91]
On the front of the boom on this - as it was - the boom length cable just wasn't there.
[90] Hearing 22 February 2022, ts 156.
[91] Hearing 22 February 2022, ts 158.
He repeated this answer a few questions later.[92]
[92] Hearing 22 February 2022, ts 158.
He was taken to Exhibit 2.3 for the purposes of identifying which part of the crane he was referring to when he said the cable was not there. He said that none of the tools seen in that photograph were there when he first looked at the crane. He explained there was a small opening in the drum that stored the cable and the cable goes in and out of that opening. He also explained that the cable goes through the eyelets shown on the picture and connects at the front.[93]
[93] Hearing 22 February 2022, ts 159.
He said that the boom is bright yellow, and the cable is black. He described it as being 'blatantly black against yellow'. He agreed with the proposition that the cable was easily identifiable.[94]
[94] Hearing 22 February 2022, ts 159 - ts 160.
He was asked whether he could see any part of the cable there at all and he said that it was a 'glance thing' for him. He noticed that it was not there and that was not normal but he did not spend much time looking over it closely.[95]
[95] Hearing 22 February 2022, ts 160.
He said that despite the absence of the cable, he still went through his pre-start. He did not notice any damage to the crane or to the boom.[96]
[96] Hearing 22 February 2022, ts 160 - ts 161.
He said that he walked back to the work area because he noticed the 'cable was missing'.[97] He said he walked out to tell his supervisor, Mark (Babich), that the crane was 'no go'.[98] He said as he walked out to do so, he saw Mr Babich 'sort of waving, like, 'Come on. Hurry up. Let's go. Let's get into the day'.'[99]
[97] Hearing 22 February 2022, ts 161.
[98] Ibid.
[99] Hearing 22 February 2022, ts 161.
Mr Bentley said he then got back into the crane and drove it to the work area. He said nothing unusual happened, also saying that he had not turned on any computers in the crane, so it 'just drives as it was a car'.[100]
[100] Hearing 22 February 2022, ts 162.
He was cross-examined regarding the unsafe lift. He accepted there was friction between the chain and the beam it came into contact with. It was put to him that this would cause the boom to vibrate and he said, 'Very minimally, but yes.'[101]
[101] Hearing 22 February 2022, ts 166.
Mr Bentley said that he drew the missing cable to the attention of Mr Babich.[102]
[102] Hearing 22 February 2022, ts 171.
Mr Bentley accepted that Mr Hawkins took the photographs of the damage to the cable.[103]
[103] Hearing 22 February 2022, ts 177.
Mr Bentley said he did not look at where the cable was severed. He agreed with the following proposition put to him regarding the cable - he noted a missing boom retractor cable, he drove the crane back around and he 'left it to the others to actually look at it up close'.[104]
[104] Ibid.
He said that he thought Mr Babich rang their boss, Mr Casagrande, to tell him about the cable, however he did not overhear the conversation.[105]
[105] Ibid.
He said that Mr Hawkins repaired the cable. Mr Bentley said he was unsure how he fixed it, and did not see how Mr Hawkins fixed it. He said that a 'running repair' was done. He also accepted that the running repair took a little bit of time to effect.[106]
[106] Hearing 22 February 2022, ts 178.
His evidence that he observed the cable was 'not there' while conducting his pre-start check was not challenged in cross-examination. Mr Bentley was cross-examined on the premise that the cable had already separated by the time Mr Bentley was conducting the pre-start check. Mr Bentley was not cross-examined as to the steps taken by Mr Hawkins to retrieve the cable end from the aperture in the drum housing.

Mr Satie

Mr Satie is the safety and training manager at Harvey Beef in Harvey, Western Australia.
His evidence was directed to the nature of the unsafe lift that occurred on the Friday. He gave evidence that he observed that one of the chains being used to lift the new steel beam was dragging across a steel beam that had already been bolted into place. He took photographs of this, which became Exhibit 3 in the trial.[107]
[107] Hearing 22 February 2022, ts 189 - ts 190.
It was put to him in cross-examination that what happened in effect was a chain rubbing on a horizontal steel beam, causing vibration. Mr Satie said that he did not see any indication of vibration.[108]
[108] Hearing 22 February 2022, ts 204.
Mr Satie said that the chain rubbing on the steel girder would cause some vibration and that will travel along the length of the chain. He did not accept this would travel onto the boom, saying 'I don't imagine that there would be much effect onto the boom'.[109] Mr Satie appeared to accept that there would be some vibration through to the boom, however also said that he did not witness anything like a vibration that gave him 'rise for concern'.[110]
[109] Hearing 22 February 2022, ts 205.
[110] Hearing 22 February 2022, ts 206.
It was put to him that he was saying that the boom wasn't vibrating such that it caused him concern, and he said that was correct.[111]

Mr Hawkins

[111] Ibid.

Mr Brett Hawkins is a mechanic employed by HotWeld.
He had been a mechanic for 24 years and had been employed by HotWeld (the owner of the crane) for a little over six and a half years by the time he gave evidence. He had been operating HotWeld's cranes for about five and a half years.[112]
[112] Hearing 23 February 2022, ts 218.

He explained that on Monday 16 November 2020 he was at Harvey Beef. He said his job was to go down to the site and prepare the area for the crane to come down and be set up. He said that once the crane was brought down from the lay down area, he pointed out some damage to the crane.[113]
[113] Hearing 23 February 2022, ts 219.
Mr Hawkins said the people with him from HotWeld were Mr Bentley and Mr Babich. He said that they looked over the crane for any more damage and there was not any more damage. He was asked to identify the component of the crane that was damaged and said that the boom length indication cable, which runs from the head of the boom down to the reel, had been 'cut, severed'.[114]
[114] Ibid.
He was asked to identify the damage to the crane. He said the boom length indication cable which runs from the head of the boom down to the reel had been 'cut, severed'.[115]
[115] Hearing 23 February 2022, ts 219.
Mr Hawkins was shown the six photographs in Exhibit 2. He said he took those photographs. The following exchange then occurred with him:[116]
Okay. And that was at the time when you inspected the crane on Monday, 16 November? - It was, yes.
Okay. And this was prior to any repairs that you conducted? - It was, yes.
[116] Hearing 23 February 2022, ts 221.
The learned magistrate then clarified that all photographs were taken prior to any attempt to repair, and Mr Hawkins said yes. The learned magistrate sought confirmation that Mr Hawkins took the photographs and Mr Hawkins said he took the photographs.[117]
[117] Ibid.
He was taken to the photograph which was Exhibit 12.4 and was asked what he noticed about the damage depicted in that photograph. He described the damage as being a very clean cut and also that it was close to other mechanical parts of the crane which showed no damage at all.[118] He was then taken to the photograph which became Exhibit 12.1. He described the photograph as depicting the end of the cable that runs from the cut end depicted in Exhibit 12.4.[119]
[118] Hearing 23 February 2022, ts 222.
[119] Hearing 23 February 2022, ts 223.
Mr Hawkins described that in relation to that end of the cable:[120]
[I]t was a very clean - clean cut, break. It showed no signs of impact, even as far as stretching or like a pulling motion. There was definitely no frayed wire[s]. It had been cut with something sharp.
[120] Ibid.
Mr Hawkins was then taken to the photograph at Exhibit 12.2. The following exchange then took place in relation to that photograph:[121]
Now, I believe on that picture there, if you can just describe to his Honour what you're seeing at that point?‑‑‑Okay. So the cable is secured here. The first eyelet is just here and then the cable has been - been severed just - just past the eyelet on that left-hand side there.
Okay?‑‑‑I've got the cable here which I - it appears to me has - I've already run it through - I needed to tie it off to - to get some length and - and so it didn't retract back into the reel.
So just in relation to - I guess to explain for the purpose of the transcript there, we're looking at the - the head of the crane or where the ‑ the ‑ ‑ ‑?‑‑‑Yes, that's the crane boom.
Yes?‑‑‑And the end of the - end of the boom is just - just out of picture on the right-hand side.
Okay then. So that shows where the damage has occurred, the - where the eyelet is?‑‑‑Yes.
And you said that you've tied the cable off during your inspection; is that right?‑‑‑Yes. I pulled the cable through because it wanted to retract back into the reel.
Okay then. And that was when - and then, by doing that, it allowed you just to stand back and take that photograph?‑‑‑It did, yes.
HIS HONOUR: So you pulled the cable through and you tied it off, did you?‑‑‑Yes. It's - yes. So I've pulled the cable through, through the eyelets and I've had to tie it off to stop it retracting back into the reel.
[121] Hearing 23 February 2022, ts 224.
He was then taken to the photograph at Exhibit 12.3. He said, 'you can just make out the cable laying down onto the front of the crane'. The following exchange then took place:[122]
So when you say that it had retracted, is that the distance that it had retracted back into it. Couldn't go any further from that point?‑‑‑Yes. The - so the spring - the retraction spring obviously had lost its tension by that point and wouldn't retract any further.
[122] Hearing 23 February 2022, ts 225.
Mr Hawkins was then taken to the photograph at Exhibit 12.6. He said it depicted the anchor point at the end of the boom for the cable. He said he had pulled it out of the eyelet so he could fold the cable back to get a better photograph of it.[123]
[123] Hearing 23 February 2022, ts 225.
In respect of the insulation tape that is visible in Exhibit 12.4, Mr Hawkins said:[124]
That there would be there for insulating the cable from any sort of possible damage as far as running through the eyelet, especially when traveling on the road. The cable tends to bounce around and that's to protect it as well as the little bit of grease that's around the eyelet as well.
[124] Hearing 23 February 2022, ts 226.
Mr Hawkins said he had been doing repairs on the crane since he started at HotWeld, about six and a half years ago. He was asked whether he ever had to repair the boom retractor cable at all and he said no. He also said he was not aware of any damage at the location where the insulation tape was placed on the cable.[125]
[125] Ibid.
He said that the crane was purchased 'probably a year after [he] started' with HotWeld. He said the insulation tape was on the cable when the crane was purchased.[126]
[126] Hearing 23 February 2022, ts 226 - ts 227.
Mr Hawkins said that after he identified the cable had been broken, he rang Graham Mogg who does some of the crane maintenance. Mr Mogg suggested doing a temporary repair so they were able to operate the crane for the day.[127]
[127] Hearing 23 February 2022, ts 227 ‑ ts 228.
He described that process as follows:[128]
[128] Hearing 23 February 2022, ts 228.
Okay then. And then did you do - what did you do after that?‑‑‑So with the repair?
Yes, if you can just describe what you - how you effected that repair?‑‑‑So I've taken the - the short piece off that was anchored.
Yes. We will just - and now if you're just holding up?‑‑‑That photo ‑ ‑ ‑
‑ ‑ ‑ photograph number 4?‑‑‑Photograph 4. I've removed the short piece off the anchor point. I've then pulled the cable from the reel as in photo 1.
Okay. Now, we're - yes. And we're just looking at photograph ‑ ‑ ‑?‑‑‑Number 1.
‑ ‑ ‑ number 1, yes?‑‑‑Fed it through the eyelets, through - through the boom - ‑ ‑
Yes?‑‑‑ ‑ ‑ ‑ and I've then secured the cable off on one of the eyelets to allow me to make the repair.
Yes?‑‑‑And then tied it off, rejoined the cable up at the boom and then released what I've tied off to - to put tension back onto the cable.
Sure. And then did you have to do anything else in terms to make sure the crane was operational?‑‑‑Yes. So then we - we put the - put it into crane mode. There is a drive and a crane mode in the vehicle. Put it into crane mode. And what we had found was, when the cable retracted, it upset some of the gearing in the - in the indicator on the boom. And so we had to take the cover off, which you can see on photo 1, it's the outside cover which holds the electronic component, I suppose you would call it, and a series of gears. We had to reset those to read correctly for the - for the boom position.
Mr Hawkins said that when they first found the damage they put the crane into crane mode. He said there were numerous alarms and flashing lights and incorrect data on the computer screen in the crane.[129]
[129] Hearing 23 February 2022, ts 228 - ts 229.
In cross-examination, Mr Hawkins said he was on site on Friday, 13 November 2020 to conduct a pre‑start check and deliver some goods. He said he believed he was not there after that.[130]
[130] Hearing 23 February 2022, ts 231.
He said that on Monday 16 November 2020, he was on site where the crane was due to be set up. Mr Bentley brought the crane around and drew to his attention that the cable had been severed.[131]
[131] Hearing 23 February 2022, ts 232.
He said as part of the preliminary checks, 'you visually check the cable'.[132]
[132] Ibid.
He accepted that the cable had not been replaced while he had been employed at HotWeld.[133]
[133] Hearing 23 February 2022, ts 233.
In relation to the insulation on the cable, he said that it 'has been there for as long as I can remember', also saying he believed that the insulation tape 'has been there the whole time'.[134] He said he had not undone that insulation to see if it was covering anything.[135] He accepted it was possible it could have been covering some fracture or damage in the PVC skin of the cable.[136]
[134] Hearing 23 February 2022, ts 234.
[135] Hearing 23 February 2022, ts 235.
[136] Hearing 23 February 2022, ts 236.
He was taken to the photographs in Exhibit 12 which were clearer copies of the photographs in Exhibit 2. He said he took the photographs on his mobile phone.[137]
[137] Hearing 23 February 2022, ts 237.
He said he gave his phone to the officers at the time, and they took the phone back to the station.[138] In relation to the photograph, which was Exhibit 12.1, he said that was the end of the cable coming out from the reel.[139]
[138] Hearing 23 February 2022, ts 237.
[139] Hearing 23 February 2022, ts 238.
In relation to the photograph that was Exhibit 12.2, he said it showed the severed end of the cable at the anchor end.[140]
[140] Ibid.
In relation to the roll of black insulation tape shown in the photograph in Exhibit 12.3, he said that was preparing to make the repair. He said he had to splice the wires together and obviously tape them up.[141] It was put to him that he effectively spliced two ends of the boom retractor cable together and secured them with tape, which he accepted. He also accepted that this was a running repair.[142] He explained that the repair needs to be made on the non-tension side of the anchor point, so there is no string tension from the anchor point pulling on the repair.[143]
[141] Ibid. The transcript says that Mr Hawkins used the word 'take' instead of 'tape', however the use of the word 'take' must be an error.
[142] Hearing 23 February 2022, ts 239.
[143] Ibid.
He was cross‑examined about the photograph which is Exhibit 12.6, it being put to him that it did not show a clean cut.[144] The following exchange took place:[145]
Well, if your purpose then was to show a clean cut, and that's the only reason you took the photo, and inadvertently, I think, as you're suggesting you got grease on the end of it, why didn't you wipe the grease off so that you could take a photograph for the purpose - the only purpose for which you were taking the photograph?‑‑‑Because I didn't want to have been questioned as to why I've cleaned the cable to take a photograph.
No but, you see, if what you say was the case, that there were clean cuts both ends, yes?‑‑‑Yes.
And all you were doing - you didn't have any idea at this stage why that was the case, did you?‑‑‑No.
I'm not suggesting you did. But your only purpose was to demonstrate that for a later analysis, etcetera, yes?‑‑‑I was you just recording ‑ ‑ ‑
Collecting evidence, yes?‑‑‑I was just recording photos for ‑ ‑ ‑
Yes, yes. So no - it can't have been in your mind that anyone was going to later accuse you of cleaning stuff and doing anything wrong?‑‑‑Well, it did.
(emphasis added)
[144] Hearing 23 February 2022, ts 241.
[145] Hearing 23 February 2022, ts 242.
The obvious effect of the italicised part of the above exchange was that the appellant's trial counsel accepted that Mr Hawkins had not been involved in cutting or severing the cable.
Ultimately in relation to Exhibit 12.6 it was put to Mr Hawkins that it showed a frayed end, not a clean cut end. His response was that 'If it was frayed, you would see exposed wires stretched'.[146]
[146] Hearing 23 February 2022, ts 243.
In relation to the photograph which was Exhibit 12.2, Mr Hawkins accepted there were exposed wires at the end.[147] He said the photograph was taken during the repair. Mr Hawkins accepted that Exhibit 12.2 was not a photograph of how he found the cable.[148]
[147] Hearing 23 February 2022, ts 244.
[148] Ibid.
He was cross‑examined further on the photographs and said some of the photographs were of the damage as he found it.
Mr Hawkins was asked to put the photographs in the order that he took them and he said he was not sure of the order in which he took them.[149]
[149] Hearing 23 February 2022, ts 245.
In relation to Exhibit 12.2, he said he believes that would have been once he started the repair, also saying that the photo shows he has pulled the cable to take a bit of tension on it.[150] He also accepted that it was possible that he had taken the end off the cable to facilitate splicing it.[151] He accepted his evidence was inconsistent with his prior statement in which he had said that he had taken photographs of the damaged cable, and accepted that his statement did not say that the photos also were taken after he had started working on it and repairing it.[152] He was asked whether Exhibit 12.2 was the only one taken once repairs were underway and he said he believed so and also he did not recall taking any more photos once he had started the repair. He repeated later that he believed that was the only photo taken during the repair.[153]
[150] Hearing 23 February 2022, ts 245.
[151] Hearing 23 February 2022, ts 246.
[152] Ibid.
[153] Hearing 23 February 2022, ts 248.
At the end of the cross‑examination, the learned magistrate asked a few questions regarding the location of the insulation tape compared to where he found the cable had been severed. Mr Hawkins said it was severed only about 50 mm from the insulation tape.[154] He confirmed that the only tape on the cable was that shown in the photographs.[155]
[154] Hearing 23 February 2022, ts 249.
[155] Hearing 23 February 2022, ts 250.
The learned magistrate then allowed trial counsel to ask some further questions in cross‑examination. Mr Hawkins said he did not see any tape on the location of the severed ends. He said when the boom of the crane is retracted, it is just under 6 m in length and from reel to anchor it would be about 4 m.[156]

Mr Mogg

[156] Hearing 23 February 2022, ts 250 - ts 251.

Mr Mogg is a mechanic who then owned a business called Mobile Mechanical Air and had been dealing with cranes for over 27 years.[157]
[157] Hearing 23 February 2022, ts 252.
Mr Mogg replaced the cable on the crane. He said he did so a few months later after the incident involving the cable.
He was asked to explain what he had to do and he said, 'remove the recoil unit from the side of the boom, remove the cable, replace the cable, reinstalled it, tested it'.[158] He expanded on this saying that he took the cover off and that inside there is a drum spring. He said the spring is contained. He removed the cable off the spring, resoldered a new cable and rolled the cable back on and then put it back together.[159] He was asked whether when he took the drum apart, there were any issues with it and he said no. He said it was in good condition.[160]
[158] Hearing 23 February 2022, ts 253.
[159] Hearing 23 February 2022, ts 254.
[160] Ibid.
He was cross‑examined about his conversation with Mr Hawkins on the Monday. He said he had suggested to Mr Hawkins that he may be able to recover the cable from the drum and reconnect it.[161] Mr Mogg was cross-examined at length as to how the cable could have been repaired. He explained that there were two plastic sections within the cable. The first (outer) section contained braided wires, and the second (inner) section contained a number of thinner wires.[162] Mr Mogg said he had not previously mended the boom retractor cable.[163]
[161] Hearing 23 February 2022, ts 257.
[162] Hearing 23 February 2022, ts 259 - ts 260.
[163] Hearing 23 February 2022, ts 260.
Mr Mogg said that the presence of black insulating tape on the cable could be the site of a running repair or it could be there for protection.[164]
[164] Hearing 23 February 2022, ts 261.
In response to a question asked by the learned magistrate, Mr Mogg also said that the reel itself was in good condition.[165]

Mr Casagrande

[165] Hearing 23 February 2022, ts 264 - ts 265.

Mr Casagrande is a boilermaker and welder and is the owner of the business HotWeld Fabrication & Engineering. He has had that business for 20 years.[166]
[166] Hearing 23 February 2022, ts 266.
Mr Casagrande was asked to explain what happened on 16 November 2020. He said he received a phone call from Mr Babich who informed him that something had happened on site. He clarified that what happened was that the crane that was onsite had a cable cut.[167]
[167] Hearing 23 February 2022, ts 267.
He said that three to four weeks before, the crane had been subject to a CraneSafe independent inspection. He said there were four minor faults identified: the speedometer was not working correctly, there was a twist in the main cable, the battery isolator was faulty and there was a little bit of corrosion on the battery. He said he fixed these problems and the CraneSafe report was issued.[168] He explained he bought the crane about five years before and when he bought the crane, it was in 'very, very good condition'.[169]
[168] Hearing 23 February 2022, ts 267 - ts 268.
[169] Hearing 23 February 2022, ts 268.
Mr Casagrande explained that on 13 December 2021 Mr Ian Gregory attended to do an independent inspection on the crane.[170] He had with him Mr Nick Birks and Mr Trent Miller. During the inspection, they asked Mr Casagrande to give them all the documents he had for the crane and he provided them with all the documents he had for the crane, including the inspection reports.[171] He said they also asked for an override key for the crane. He said he did not have one. Further, to his knowledge an override key has never been used with the crane.[172]
[170] Mr Gregory was then the appellant's solicitor.
[171] Hearing 23 February 2022, ts 269.
[172] Ibid.
Mr Casagrande was cross‑examined regarding the presence of black insulating tape on the cable. He said that was not brought to his attention and he had no idea how or why the tape came to be on the cable.[173]
[173] Hearing 23 February 2022, ts 272.
Mr Casagrande could not say when the cable repaired on 16 November 2020 was replaced.[174]

Mr Ginn

[174] Hearing 23 February 2022, ts 273.

Mr Ginn was called as an expert witness for the prosecution. Mr Ginn's report became Exhibit 15 in the trial.
Mr Ginn was a product support engineer for Tadano Oceania. At the time he gave evidence, his role was as an 'exfield service mechanic for the company'.[175]
[175] Hearing 23 February 2022, ts 275.
Mr Ginn had extensive experience repairing the particular model of crane the subject of the charged offence.[176] In relation to the boom length reel, he explained that it:[177]
… is designed for measuring the overall boom length, which is then used and required for part of the calculation for the safe working limit and load of the crane … and then also for sending a communication signal from the boom head - from the boom anti‑two block system and boom retraction switch on the boom head.
[176] Hearing 23 February 2022, ts 276.
[177] Hearing 23 February 2022, ts 277.
He explained that the cable is stowed in the 'recoil drum' and the cable runs the length of the boom and is then anchored to the boom head.[178] A diagram at figure 1.1 of Mr Ginn's report showed a breakdown of the cable itself. He explained the cable is made up of the following items: the internal copper multicentre strand cable, the first stage of nylon insulation, a multistrand shield, and finally the overall nylon insulation.[179]
[178] Hearing 23 February 2022, ts 278.
[179] Hearing 23 February 2022, ts 279.

Therefore, Grounds 1 and 2 of the appeal do not succeed. I do not grant leave in respect of either ground, as I do not consider there was a reasonable prospect of either ground succeeding.
I will now state my findings as to whether the additional material is fresh or new, as I consider that remains relevant in considering the appellant's further proposition as to a loss of opportunity giving rise to a miscarriage of justice.

Is the additional evidence fresh, or new, evidence?

In respect of whether the appellant, with reasonable diligence, could have obtained or discovered the additional evidence for use at the trial, the appellant relies on Mr Gregory's first and second affidavits.

The appellant has not sworn an affidavit in respect of the issue of reasonable diligence, nor has the appellant filed an affidavit made by his trial counsel.
The assessment of reasonable diligence is an objective test. However, it does not take place in a vacuum. Rather, it takes place in the context of the avenues available to the appellant to obtain the additional evidence, which is assessed by reference to the information that was known to the appellant prior to trial.

Additional evidence pertaining to the photographs comprising Exhibits 2 and 12

In Mr Gregory's first affidavit, he summarised the evidence given by Mr Hawkins at trial concerning those photographs.[536] In particular, he referred to Mr Hawkins' evidence in cross‑examination at trial that Exhibit 12.2 was taken after the repair process had commenced,[537] and that he gave police officers his phone with the photos on it and they took the phone back to the police station.[538]
[536] Mr Gregory's first affidavit, par 35.
[537] Hearing 23 February 2022, ts 245.
[538] Hearing 23 February 2022, ts 237.

In contrast, Mr Gregory pointed to Constable Rapley's evidence that Mr Hawkins had emailed through the photographs because he no longer had his old phone and only had his new phone.[539] Mr Gregory then states:[540]
Also given this was the first time ever that it had emerged from the photographer Mr Hawkins, that one of the photos which had always been purported to be evidence of damage, was in fact taken after repair had commenced, I was then prompted to obtain further expert opinion dealing with the discrete issue of what could actually be seen to be done to the purported damaged cable in situ from the moment it was discovered to the moment it was to be repaired …
[539] Hearing 24 February 2022, ts 334.
[540] Mr Gregory's first affidavit, par 38.
The appellant characterises Mr Hawkins' evidence given in cross‑examination regarding what the photographs depicted, and also Constable Rapley's evidence, as 'fresh evidence'. However, as I have explained earlier, that submission is misconceived. The assessment of whether evidence is fresh or new is directed to the additional material sought to be adduced on an appeal.

The appellant's primary submission regarding the photographs is that the appellant could not have, with reasonable diligence, obtained the metadata for the photographs prior to trial. Further, the appellant suggests that it could not have been discerned with reasonable diligence that at least one of the photographs was taken after the repairs had commenced.

Circumstances regarding the provision of the photographs prior to trial

The circumstances regarding the provision of the photographs to the appellant's legal representatives prior to trial are as follows.
On 14 January 2021, the police prosecuting office disclosed to the appellant's legal representatives the photographs with the red circles on them.
On 21 January 2021, Mr Gregory sent an email to the South West Prosecuting branch of the WA Police in which he described the photographs as extremely confusing and stated that the photographs 'indicate repairs affected'. Mr Gregory requested electronic copies of the photos with original electronic metadata.[541]
[541] Mr Gregory's second affidavit, page 58.
Prior to trial, police disclosed six photographs in electronic format without the red rings. These photographs did not include their metadata.
The appellant's expert, Mr Birks, addressed the photographs in his report dated 4 January 2022. Specifically, Mr Birks said that the photographs at Exhibits 12.1 and 12.2 depicted the cable in two different states.[542] Mr Birks also said that:[543]
Due to this discrepancy, I don't consider the photos to be strong evidence that the cable was cut prior to Monday 16^th November 2020. It may have been cut by others on Monday morning, before the photos were taken.
[542] Mr Birks' report dated 4 January 2022, page 8.
[543] Mr Birks' report dated 4 January 2022, page 8.
Thus, Mr Birks in his report expressly raised the possibility that the photographs did not depict the cable when first observed on the Monday morning.
Dr Hutchison in his report prior to trial expressed the opinion that the photographs were taken at different stages of repair. That opinion was expressed by reference to what was depicted in the photographs.[544] The appellant did not tender these aspects of Dr Hutchison's report at trial.[545]
[544] See in particular, pars 1.10 and 8.9 of Dr Hutchison's report tendered at trial, which is Trial Exhibit 24.
[545] See the struck out parts of Dr Hutchison’s report.
Subsequent to the receipt of these reports, the appellant's legal representatives did not renew their request for the metadata in respect of the photographs.

Content of the photographs and the possible scenarios that arose from them

Four of the photographs suggest from their content that they were taken after the repair process commenced.
The photograph at Exhibit 12.1 contains a large red driver. The CCTV footage shows Mr Hawkins retrieving tools from the vehicle at the rear commencing at around 08:31:57 and returning with those tools, which include a large red driver. He can be seen placing that driver down at approximately 08:33:14.[546] The suggestion is plainly open from the footage that the photograph at Exhibit 12.1 was taken after that point in time, that is, after 08:33:14.
[546] WAB 65.
The photograph at Exhibit 12.2 depicts the cable with a stripped end. This suggests that it was taken after repairs had commenced, which Mr Hawkins accepted in cross‑examination. The photograph at Exhibit 12.3 depicts a number of tools and a roll of black tape, which suggests it was taken during the repair process. The photograph at Exhibit 12.5 contains the hand grips of a tool next to the cable, which also suggests it was taken during the repair process.
Also, from the CCTV footage, as I have explained above, Mr Hawkins can be seen working on the cable at approximately at around 08:23:12 and is first seen getting his phone out to take photographs at 08:23:38.
Thus, on the photographs and CCTV footage, it was likely that at least four of the photographs were taken during the repair process, as opposed to before the repairs had been started.
Additionally, Mr Hawkins was taken in cross-examination to certain screenshots of the CCTV footage, which included screenshots that covered the period between 8:23 and 8:24 am and a screenshot at 8:40 am. It was put to Mr Hawkins, and he agreed, that he appeared to be taking photographs in those screenshots.[547] It can be inferred from this questioning that the appellant's trial counsel appreciated there was a possibility that the photographs, or at least some of them, were not taken prior to the repairs commencing. Such an inference accords with the pre‑trial reports of Mr Birks and Dr Hutchison, which expressly raised that prospect.

What did reasonable diligence require in these circumstances?

[547] Hearing 23 February 2022, ts 247 - ts 249.

In circumstances where the photographs and pre-trial reports raised the likelihood that at least four of the photographs were taken after the repairs had commenced, the question is whether the appellant could have, with reasonable diligence, obtained access to the metadata for the photographs.
The material provided to the appellant prior to trial by way of Mr Hawkins' statement was to the effect that the photographs had been downloaded from his phone. Thus, the appellant's legal representatives were entitled to presume that the photographs they were provided with represented the best digital image that was available.
Constable Rapley's evidence at trial was to the effect that the photographs had been obtained by way of Mr Hawkins emailing them to him. On this evidence and given that it was Mr Hawkins who took the photographs, the appellant's legal representatives were entitled to presume that the photographs disclosed were the best digital images that were available. Further, the prosecution had a duty of disclosure to the appellant, which required the provision to the appellant's legal representatives of copies of the photographs that were in their possession. Since the appellant's legal representatives had specifically requested the metadata, they were entitled to presume that the photographs which police prosecutors held did not include the metadata.
Viewed as a whole, the overall message conveyed to the appellant's legal representatives by the pre‑trial disclosure, and then Constable Rapley's evidence at trial, was that the best available images had been provided, which did not contain the metadata.
The respondent suggests that the appellant should have raised with the prosecutor that the photographs were not originals and asked the prosecutor to make enquiries regarding the availability of the originals. However, I do not think it was reasonably necessary to do so in circumstances where the interactions with the prosecution conveyed the message to the appellant's legal representatives that the best available images did not contain the metadata. Understood in that way, I am satisfied that the appellant could not, with reasonable diligence, have obtained access to the photographs on Mr Casagrande's phone containing the metadata prior to trial. It is therefore fresh evidence.
Accordingly, in my view the metadata and the subsequent evidence of Dr Hutchison as to the precise time when each photograph was taken is fresh evidence.

The additional evidence pertaining to the placement of the red circles - new or fresh evidence?

In respect of the additional evidence pertaining to the placement of the red circles, photographs containing the red circles were disclosed prior to trial. In my view, the exercise of reasonable diligence would have been to enquire as to what the red circles meant, and who had placed those circles where they were. An enquiry regarding the placement of these circles would very likely have resulted in enquires being made of Mr Casagrande and Ms Read prior to trial concerning the placement of those circles. Accordingly, I am satisfied that the appellant, with reasonable diligence, could have obtained Ms Read's statement prior to trial.
It is therefore new evidence. However, even if it were fresh evidence, that would not affect the disposition of the appeal, having regard to the other findings that I have made pertaining to the evidence of Mr Hawkins, Mr Babich and Mr Bentley, and my view that the appeal hypothesis is mere conjecture.

Mr Birks' further report and other evidence pertaining to the appeal hypothesis

As I have said, the assessment of reasonable diligence does not take place in a vacuum and has regard to the avenues available to the appellant to obtain the additional information, in the circumstances known to the appellant.
One of the key premises underpinning the appellant's argument that the additional evidence pertaining to the appeal hypothesis is 'fresh evidence' is that it was rational for the appellant to not have considered the appeal hypothesis prior trial. Thus, the appellant contends that it could not have obtained evidence pertaining to that hypothesis prior to trial with reasonable diligence.
In relation to Dr Hutchison's evidence adduced on the appeal, the appellant submitted that:[548]
d.Prior to trial, prima facie evidence had been disclosed that the cable had been severed, or at the very least broken. This prima facie evidence is summarised at paragraph 15 of the Appellant's Written Outline of Submissions dated 19.6.23.
e.Having been presented with the above prima facie evidence that the cable was at the very least broken by Monday 16 November, the only reasonable alternative hypothesis left open for exploration at trial was that a severance or break had occurred due to an unsafe lift on Friday 13 November.
[548] Appellant's supplementary submissions dated 25 March 2024, par 12(d) and (e).
A similar approach is adopted in respect of Mr Birks' evidence, the appellant submitting that:[549]
The appellant could not have reasonably been expected to instruct Mr Birks to analyse the raw footage (bearing in mind its limitations of formatting and missing files) of Monday 16 November in circumstances where:
i.The prima facie evidence indicated a repair was undertaken; and
ii.Even if the raw footage was looked at as individual files, revealed something of a repair being undertaken.
[549] Appellant's supplementary submissions dated 25 March 2024, par 18(b).
The thesis underpinning these submissions is that because prima facie evidence had been disclosed by the prosecution to the effect that the cable had been severed, or was broken, by the time it was first observed by the employees, the exercise of reasonable diligence did not require the appellant and his legal representatives to investigate whether that was in fact the case.
The appellant also pointed to Mr Birks not being provided with the Tadano manual prior to trial and the fact that the appellant was not aware prior to trial of Mr Hawkins' evidence regarding the repair process.[550]
[550] Appeal hearing, ts 443 - ts 444.
I will deal first with the proposition that it was rational for the appellant's legal representatives not to investigate the appeal hypothesis prior to trial.

Consideration of the appeal hypothesis prior to trial

A critical element of the prosecution case at trial was that the cable was severed by the time the employees first observed it on the Monday morning. That being so, it ought to have been obvious to the appellant's legal representatives that they needed to assess whether the 'prima facie' evidence directed to that element was credible.
Obvious questions that arose in that respect were what would happen to the cable if severed, and if it did retract into the cable housing, how could the cable be removed from the housing.
Moreover, Mr Birks in his report prepared prior to trial expressly raised the possibility that the cable may have been cut by others on the Monday morning. In his examination-in-chief at trial, Mr Birks said that 'I believe they probably cut the cable and then stripped it'.[551] Mr Birks is speaking of cutting the cable, and stripping it, as two separate actions, as opposed to making a cut to the outer material to enable it to be stripped. On that basis, Mr Birks never resiled from the position expressed in his report that the cable may have been cut by others on the Monday morning.
[551] Hearing 25 February 2022, ts 8.
Thus, the appellant and his legal representatives were expressly on notice prior to trial as to a possible theory that others had cut the cable. In addition, a significant aspect of the appellant's submissions on appeal concerning the appeal hypothesis was directed to the CCTV footage available at trial.
Further, the appellant is a very experienced crane operator and the organisation that he operates with his wife has a crane of a similar make and model to the crane the subject of the charge.
The appellant chose to conduct the trial on the basis that he conceded the cable was severed when first observed by the employees. There is no evidence before me as to why trial counsel did not run the appeal hypothesis at trial, or as to why the trial was conducted on the basis that the appellant accepted that the cable had been severed. There is also no evidence the appellant's legal representatives did not consider and discount the appeal hypothesis prior to trial. In this respect, as the respondent submits, it was an objectively rational decision to not pursue the appeal hypothesis at trial where there were more amenable lines of defence to run. As I have already found, the appeal hypothesis, even with the benefit of the additional evidence, is not available and constitutes mere conjecture.
In my view, it was rational for the appellant's legal representatives to investigate prior to trial what would happen to the cable if it had been cut, and whether what was depicted on the CCTV footage was consistent with a cable having been cut. I make clear that I am not suggesting that the appellant's legal representatives at trial did not consider these issues. On the evidence before me, I do not know either way. However, I need to express a view as to whether it ought to have been considered, as the appellant contends it was rational for his legal representatives to not investigate that issue prior to trial. I do not accept that submission.

Availability of the repair manual

The appellant also raises that prior to trial he had not been provided with the repair manual referred to in Mr Ginn's report tendered at trial. The appellant says that without that manual, he was not aware of the extent of the tension on the reel and therefore would not have been able to assess what would happen to the cable if it had been severed. There are a number of answers to this proposition.
First, it can be inferred that the appellant had some familiarity with the operation of the crane, given his experience, and that his family company owned and operated a similar crane.
Second, Mr Birks is an expert in cranes and conducted a tension test on the crane on 13 December 2021,[552] and must have appreciated that the reel is under tension in order to retract the cable.
[552] Appeal hearing, ts 214. Appeal Exhibits 7 and 19.
Third, even putting to one side Mr Birks' expertise, Mr Ginn in his report tendered at trial said that the cable is under tension 'due to the cable being required for the usage of measuring the boom length'.[553]
[553] Trial Exhibit 15, par 8.
Fourth, the appellant has not adduced any evidence that it was impractical, or too costly, to issue a subpoena to Tadano for the repair manual.[554] The evidence is to the contrary. The appellant issued a number of subpoenas to a number of different parties prior to trial, including a subpoena to Tadano in relation to its quote to repair the cable.[555] The expansion of the subpoena to include the manual, or the issue of a new subpoena, would have been a relatively straightforward and inexpensive exercise.
[554] Appeal hearing, ts 449.
[555] Mr Gregory's first affidavit, par 21d.
Fifth, Mr Birks obtained a copy of the repair manual for the purposes of his report tendered on the appeal. He said in his oral evidence that he obtained the report from the appellant. There is no evidence from the appellant as to how difficult a process that was or how long it took, nor is there any evidence suggesting that it was not possible for the appellant to have obtained the repair manual prior to trial.

Evidence of Mr Hawkins, Mr Babich and Mr Bentley at trial

The appellant says that Mr Hawkins, Mr Babich and Mr Bentley gave evidence at trial that differed from their anticipated evidence as revealed by the pre‑trial disclosure. I accept that the evidence at trial regarding the repairs to the crane went beyond that which was revealed by the pre-trial disclosure. In particular, Mr Hawkins' statement disclosed prior to trial did not explain what he had done to repair the cable.
That being said, the CCTV footage disclosed prior to trial depicted a repair being undertaken to the cable. It was open to the appellant's legal representatives prior to trial to review that footage to assess, in consultation with Mr Birks, whether the allegation of a cut cable was consistent with what is depicted in the footage. In that respect, Mr Birks' report for the appeal was directed in part to whether the footage was consistent with a 'controlled repair' by the employees.

Conclusion regarding whether the additional evidence pertaining to the appeal hypothesis is fresh or new evidence

Having regard to the matters I have addressed at [595] - [645], in my view:
1.The issue as to whether or not the cable had severed by the point in time it was first observed by the employees was an obvious issue to be considered prior to trial. Moreover, that possibility was expressly raised by Mr Birks' report tendered by the appellant at trial.

2.I therefore do not accept the appellant's submission that it was rational to not have considered that issue prior to trial. Further, the evidence does not demonstrate that issue was not in fact considered and discounted prior to trial. Furthermore, it was forensically objectively rational for the appellant's legal representatives to decide not to pursue that issue at trial.
3.It was open to the appellant to subpoena the repair manual referred to in Mr Ginn's report, and there is nothing on the evidence that made the issue of such a subpoena impractical or cost prohibitive. Also, the appellant was able to obtain a copy of the manual subsequent to the trial. The evidence does not address whether he would have been able to do so prior to trial.
4.Prior to trial, the appellant could have instructed Mr Birks to provide a further report directed to what would have happened to the cable if it had been severed and also asked him to expand on his opinion that the cable may have been cut by others on the Monday morning. Given Mr Birks' expertise and access to the crane in question and other cranes, Mr Birks would have been able to express an opinion concerning such matters.

For these reasons, I am satisfied the evidence pertaining to the appeal hypothesis could have been obtained prior to trial by the exercise of reasonable diligence. Accordingly, in my view the additional evidence pertaining to the appeal hypothesis is new evidence.

The zoomed‑in footage of the repair process

Dr Hutchison created a zoomed-in version of the footage of the repair process from the raw footage that was available prior to trial.
The appellant says that while it would have been diligent to obtain a zoomed‑in version of the footage depicting the repair process, it was not 'reasonably diligent' to do so.
However, as I have explained in respect of the additional evidence pertaining to the appeal hypothesis, obvious questions that arose for trial were what would have happened to the cable if severed, and if it did retract into the cable housing, how could it be removed. The enhanced version of the footage may have assisted in considering whether the repair process undertaken was consistent with how the cable would be expected to behave, if severed. Additionally, it may have assisted in considering whether the employees' evidence pertaining to what they observed was consistent with the footage.
Also, the appearance of the cable itself was plainly a matter relevant to the case theory run at trial. Dr Hutchison was already engaged as an expert on the trial and there is no suggestion on the evidence that the cost of obtaining zoomed-in footage prior to trial was prohibitive. And it is evident from the availability of the zoomed in footage for the appeal, that it could have been obtained from Dr Hutchison prior to trial if it had been requested.
Accordingly, I am satisfied that the appellant, with reasonable diligence, could have obtained the zoomed-in footage prior to trial. It is therefore new evidence.

Miscarriage of justice - loss of opportunity contention

As I have set out earlier, the appellant's counsel during her oral submissions spoke of the appellant's loss of opportunity to cross‑examine Mr Hawkins and Mr Babich on the precise times that the photographs were taken. I understand the appellant also contends that he lost the opportunity to raise the appeal hypothesis at trial. The appellant contends that there is a miscarriage of justice as a consequence.
As I have explained, prior to trial, the appellant and his legal representatives were put on express notice by Mr Birks' and Dr Hutchison's reports of the prospect that the photographs did not depict the cable as first found. Further, the appellant's solicitor was very much alive to this issue. His email sent on 21 January 2021 to the South West Prosecuting branch of the WA Police described the photographs as being extremely confusing and stated that they 'indicate repairs affected'. Additionally, by Mr Birks' report, the appellant and his legal representatives were on express notice prior to trial of a possible case theory that the cable 'may have been cut by others on Monday morning, before the photos were taken'.

As I have also explained, from the contents of the photographs tendered at trial, the CCTV footage, and the reports of Mr Birks and Dr Hutchison, it was likely that at least four of the photographs were taken during the repair process. This enabled a significant cross‑examination to be conducted at trial as to when the photographs were taken. Such a cross-examination would not have been 'in the dark'.[556] Rather, the cross-examination could have been conducted by specific reference to what was depicted in the photographs, and to the CCTV footage regarding the repair process. Accordingly, in my view, the appellant had a significant opportunity at trial to cross‑examine Mr Hawkins and Mr Babich on the photographs.
[556] See Hillstead [48] - [49].

The precise times at which the photographs were taken would have enabled a more focused cross-examination as to when they were taken. However, the appellant still had a substantial opportunity at trial to cross-examine on that topic. Therefore, the loss of opportunity was not a significant one. It also needs to be kept in mind that Exhibits 12.4 and 12.6 do not necessarily show a clean cut, as Mr Babich accepted in his evidence. Thus, it suited the appellant's case as run at trial to not challenge Mr Hawkins' evidence that those photographs were taken before he started repairs.
Furthermore, the additional evidence does not impugn the evidence of Mr Babich and Mr Bentley. While it may impugn the evidence of Mr Hawkins, I cannot discern on appeal the extent to which it might do so. Depending on his answers to when challenged on the additional evidence, it may have little impact on the credibility of his evidence.
For these reasons, and for the reasons I have already given as to the impact of the additional evidence on the credibility of Mr Hawkins, Mr Babich and Mr Bentley's evidence, I am not satisfied that the loss of opportunity to cross‑examine as to the precise times at which the photographs were taken gives rise to a miscarriage of justice.
Further, I do not accept that the appellant did not have a fair opportunity to put the appeal hypothesis at trial. At risk of repetition, the question of whether the cable was severed when first observed was an obvious question to consider in advance of trial and Mr Birks put the appellant and his legal representatives on express notice of that possibility. There is also no evidence before me that the appellant's legal representatives did not consider, and discount, running that hypothesis at trial.

Additional matters raised by the appellant in support of the loss of opportunity contentions

The appellant also raised a number of additional matters in support of the loss of opportunity contention.
The appellant referred to Mr Hawkins' evidence at trial that he would not have wiped the ends of the cable before taking the photographs. The appellant says he could have cross-examined Mr Hawkins at trial on this evidence by reference to when the first photograph was taken. The appellant says that it is now known that the first photograph was taken at 08:24:14 (Exhibit 12.4), and Mr Hawkins is seen in the CCTV footage at 08:23:30 wiping something with his shirt, while he is near the anchor point. However, Mr Hawkins can first be seen on the footage taking photographs at around 08:23:38, after he is seen wiping his shirt. It was therefore open to the appellant's trial counsel to cross‑examine Mr Hawkins on this topic by reference to the CCTV footage.
The appellant also sought to advance the loss of opportunity contention by reference to Mr Ginn's evidence at trial that 'if the boom is fully retracted [when the cable is severed], it will retract and still have a certain amount exposed, still hanging out from it'.[557] The appellant says that when this evidence was given, Mr Ginn was aware of the preset tension for reel.[558] The appellant says that the appellant's trial counsel, when faced with this evidence, had the invidious options described by Pullin JA in Hillstead,[559] of either cross‑examining 'in the dark', or not cross-examining and running the risk of the court attaching weight to the opinion.
[557] Hearing 23 February 2022, ts 284.
[558] Addendum to the appellant's closing submissions applying the law dated 7 August 2024, par 10.
[559] Hillstead [48] - [49].
The evidence of Mr Ginn regarding the retraction of the cable related to a peripheral matter at trial. By the time Mr Ginn gave evidence, each of Mr Hawkins, Mr Babich and Mr Bentley had completed their evidence. Their cross-examination was conducted on the premise that the cable was severed at the time they first observed it. On that premise, whether the cable retracted fully or partially was very much peripheral to the issues raised at trial. Mr Babich had said in cross-examination that if the cable was cut or severed, it would retract into the drum and spool (see [107] above). That evidence was not explored in cross-examination. Further, it was open to the appellant's legal representatives to speak to Mr Birks about Mr Babich's and Mr Ginn's evidence, and if they thought it necessary, lead evidence from Mr Birks on the topic.
The appellant also refers to the following further matters. The learned magistrate accepted Mr Ginn's evidence that when the crane is packed up, the cable has the least amount of tension on it.[560] In rejecting the inference that the cable severed by attrition, the learned magistrate took account of the fact that the cable had been repaired with 'a running repair patch job' and still managed to operate for months without fault.[561] The learned magistrate proceeded on the incorrect premise that the 'repair job' was a splicing of the cable, as opposed to there being an initial unsuccessful attempt to splice the cable, after which, the cable was reconnected by soldering it to the anchor point.[562]
[560] Hearing 10 June 2022, ts 431 and ts 434.
[561] Hearing 10 June 2022, ts 434.
[562] Addendum to the appellant's closing submissions applying the law dated 7 August 2024, par 12.
The learned magistrate's findings to which I have referred in the preceding paragraph were in respect of his Honour's rejection of the inference that the cable severed by attrition. The appellant does not suggest on appeal that is an available inference. Moreover, questions as to the tension on the cable when the crane was parked up, and how the repair was carried out, were obvious matters to consider prior to, and at, trial. The appellant could have led evidence from Mr Birks at trial directed to the question of whether the cable would have less tension on it when the crane was parked up. The appellant also could have cross-examined as to how the repair was conducted, and concluded, by reference to the CCTV footage available at trial.

Conclusion regarding the loss of opportunity contentions

For these reasons, and the reasons I have given in respect of Grounds 1 and 2, I do not accept that the further contentions raised by the appellant give rise to a miscarriage of justice.
Accordingly, even if the appellant had sought, and been granted, leave to run a loss of opportunity ground, it would not succeed.

One final matter

Finally, the appellant's chronology asserted that Ms Read's statement, the email from Mr Casagrande attaching the photographs with red circles, the screenshots of metadata of those images, and the email dated 11 January 2023 from Constable Rapley were not disclosed under the Criminal Procedure Act2004 (WA) until after trial.[563] Further, the appellant asserts in his chronology that the Tadano repairs and service manual were not disclosed under the Criminal Procedure Act at all.[564]
[563] Items 16, 17, 18 and 29 of Annexure A to the appellant's submissions dated 6 August 2024.
[564] Item 36 of Annexure A to the appellant's submissions dated 6 August 2024.
The respondent's counsel in his oral submissions expressed a concern that all or some of these parts of the chronology might be alleging a breach of the prosecutor's disclosure obligations under the Criminal Procedure Act. I do not consider that contention is made by the appellant. Such a contention is not encapsulated within the grounds of appeal, nor was it developed in oral argument. Also, if such a contention was to be made, it would not be made by way of a chronology.
In any event, the critical pieces of evidence that the appellant relies upon in respect of this appeal are the photographs containing the metadata, the further report of Mr Birks, and Ms Read's statement. The photographs containing the metadata and Ms Read's statement were obtained by the prosecution after trial. Mr Birks' further report was obtained by the appellant after trial.

Conclusion

As will be apparent from these reasons, the appellant's approach on this appeal has been wide ranging.
The additional evidence, taken together with the evidence adduced at trial, does not cause me to have any doubt about the appellant's guilt. Nor am I satisfied that it gives rise to a significant possibility that the learned magistrate would have acquitted the appellant if the additional evidence had been adduced at trial. I am also not satisfied that the additional evidence gives rise to a miscarriage of justice in the more general sense advanced by the appellant.
Leave to appeal is refused and the appeal is dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
OM
Associate to the Hon Justice Lemonis
30 JUNE 2025