Hart v The Queen
[2000] WASCA 103
•19 APRIL 2000
HART -v- THE QUEEN [2000] WASCA 103
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2000] WASCA 103 | |
| COURT OF CRIMINAL APPEAL | 19/04/2000 | ||
| Case No: | CCA:208/1999 | 7 MARCH 2000 | |
| Coram: | KENNEDY J WALLWORK J MURRAY J | 7/03/00 | |
| 15 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed Conviction quashed New trial ordered | ||
| PDF Version |
| Parties: | BEVAN JBEZ HART THE QUEEN |
Catchwords: | Criminal law and procedure Appellant tried for and convicted of offence of doing grievous bodily harm Case depended upon uncorroborated evidence of accomplice Witness admitted prior perjury at preliminary hearing and lies told to investigating police Trial Judge failed to direct jury of danger of conviction, on ground of admitted perjury Conviction quashed |
Legislation: | Nil |
Case References: | Bromley v The Queen (1986) 161 CLR 315 Chidiac v The Queen (1991) 171 CLR Gipp v The Queen (1998) 194 CLR 106 Jones v The Queen (1997) 191 CLR 439 Longman v The Queen (1989) 168 CLR 79 M v The Queen (1994) 181 CLR 487 Melbourne v The Queen (1999) 164 ALR 465 Carr v The Queen (1988) 165 CLR 314 Chamberlain v The Queen (1983) 153 CLR 521 Davies and Cody v The King (1937) 57 CLR 170 Doney v The Queen (1990) 171 CLR 207 Gill v The Queen [1999] WASCA 68 K v The Queen, unreported; CCA SCt of WA; Library No 980276; 22 May 1998 Morris v The Queen (1987) 163 CLR 454 Nguyen v The Queen [1999] WASCA 192 Palmer v The Queen, unreported; CCA SCt of WA; Library No 970263; 21 May 1997 Pollitt v The Queen (1992) 174 CLR 558 R v Dent (1943) 29 Cr App R 120 R v Hart (1914) 10 Cr App R 176 R v Ralph & George (1988) 37 A Crim R 202 Ratten v The Queen (1974) 131 CLR 510 Robinson v The Queen (1995) 13 WAR 451 R v Sutherland [1953] NZLR 676 Whitehorn v The Queen (1983) 152 CLR 657 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : HART -v- THE QUEEN [2000] WASCA 103 CORAM : KENNEDY J
- WALLWORK J
MURRAY J
- Appellant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law and procedure - Appellant tried for and convicted of offence of doing grievous bodily harm - Case depended upon uncorroborated evidence of accomplice - Witness admitted prior perjury at preliminary hearing and lies told to investigating police - Trial Judge failed to direct jury of danger of conviction, on ground of admitted perjury - Conviction quashed
Legislation:
Nil
(Page 2)
Result:
Appeal allowed
Conviction quashed
New trial ordered
Representation:
Counsel:
Appellant : Mr E J Myers
Respondent : Mr D Dempster
Solicitors:
Appellant : Edward John Myers
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Bromley v The Queen (1986) 161 CLR 315
Chidiac v The Queen (1991) 171 CLR
Gipp v The Queen (1998) 194 CLR 106
Jones v The Queen (1997) 191 CLR 439
Longman v The Queen (1989) 168 CLR 79
M v The Queen (1994) 181 CLR 487
Melbourne v The Queen (1999) 164 ALR 465
Case(s) also cited:
Carr v The Queen (1988) 165 CLR 314
Chamberlain v The Queen (1983) 153 CLR 521
Davies and Cody v The King (1937) 57 CLR 170
Doney v The Queen (1990) 171 CLR 207
Gill v The Queen [1999] WASCA 68
K v The Queen, unreported; CCA SCt of WA; Library No 980276; 22 May 1998
Morris v The Queen (1987) 163 CLR 454
Nguyen v The Queen [1999] WASCA 192
(Page 3)
Palmer v The Queen, unreported; CCA SCt of WA; Library No 970263; 21 May 1997
Pollitt v The Queen (1992) 174 CLR 558
R v Dent (1943) 29 Cr App R 120
R v Hart (1914) 10 Cr App R 176
R v Ralph & George (1988) 37 A Crim R 202
Ratten v The Queen (1974) 131 CLR 510
Robinson v The Queen (1995) 13 WAR 451
R v Sutherland [1953] NZLR 676
Whitehorn v The Queen (1983) 152 CLR 657
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1 JUDGMENT OF THE COURT: On 29 and 30 September and 1 October 1999 the appellant, one Kelly and the appellant's brother, Nathan Hart, were jointly tried in the District Court at Bunbury before a Judge and jury for an offence of doing grievous bodily harm to a Mr Graham. The offence was alleged to have been committed at Collie on 12 January 1999.
2 Nathan Hart was ultimately acquitted by direction of the learned trial Judge and the jury returned verdicts of guilty against Kelly and the appellant. The appellant was sentenced to a term of 4 years imprisonment with eligibility for parole.
3 He appealed against his conviction on the following grounds:
1. The verdict of the jury is unreasonable or cannot be supported having regard to the evidence or that the verdict resulted from a miscarriage of justice on the following grounds:
1.1 the verdict is unsafe and unsatisfactory because the jury acting reasonably should have entertained a reasonable doubt as to the guilt of the appellant because:
1.1.1 the case against the appellant relied solely on the uncorroborated evidence of Clive Parfitt who was an accomplice; and
1.1.2 Clive Parfitt admitted under oath at the trial that he had deliberately lied to the police and on oath at the preliminary hearing by falsely implicating one of the appellant's co-accused, namely Nathan Rollick Hart; and
1.1.3 Clive Parfitt admitted under oath at the trial that he had deliberately lied under oath at the preliminary hearing when he said of Gregory Thorne, then a co-accused with the appellant, that he Clive Parfitt did not see Gregory Thorne hit or kick Daniel Matthew Graham; and
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- 1.1.4 Clive Parfitt admitted to deliberately lying in his statement to the police and to deliberately lying under oath at the preliminary hearing as to the position of the appellant when Daniel Matthew Graham approached the persons who first attacked him and Clive Parfitt admitted telling the lies in order to ensure that the appellant was implicated; and
1.1.5 the evidence of Bradley James Emmett, a witness for the Crown was that the three persons who attacked Daniel Matthew Graham were wearing long trousers when the uncontradicted evidence from Clive Parfitt and Constable Roberta Wells was that the appellant was wearing white silvery shorts and he was the only person wearing shorts; and
1.1.6 the police failed to send the clothing and shoes of Clive Parfitt, Damien Thorne and Alvin Ugle, who were all at the scene of the attack, for forensic examination to test whether there was any blood from the complainant Daniel Matthew Graham on the clothing or shoes of those persons and the Crown thereby failed to exclude those persons as attackers of Daniel Matthew Graham.
- 2. The learned judge erred in law by failing to give a direction to the jury in addition to the accomplice direction in terms that apart from being dangerous to convict the appellant by relying on the uncorroborated evidence of Clive Parfitt because he was an accomplice it was additionally dangerous for the jury to convict the appellant by relying on the evidence of Clive Parfitt because he had admitted to perjury as set out in ground 1 of this appeal.
4 Upon the hearing of the appeal the Court was of the view that the appeal should be allowed, the conviction quashed and a new trial ordered.
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- The Court so ordered, remanding the appellant on bail accordingly. These are our reasons for those orders.
5 It is necessary to review the evidence led at trial, at least briefly. It is convenient to know at the outset that no evidence was led by or for either of the accused persons whose cases went to the jury. For the prosecution the victim of the attack, Mr Graham, gave evidence. He lived in a unit in Collie. On the night in question at about 12.30 am he saw three men in the front garden of his home. He followed them as they commenced to walk away. He saw another five men in the garden area and in the roadway. As he turned and commenced to walk back up his driveway, he was attacked. The attack was pursued by four people. It seems in part that the attack was inflicted by the use of a weapon in the form of a screwdriver. He suffered severe injuries which undoubtedly constituted grievous bodily harm and indeed, that his injuries did amount to grievous bodily harm was formally admitted by all the accused persons. Mr Graham was unable to identify any of his attackers.
6 There were two friends present at his home at the time. One of them, a Mr Emmett, was present during the whole of the attack. He endeavoured to help, but was prevented from doing so by the threatening behaviour of one of those present. This person was undoubtedly the man Parfitt, identified in the grounds of appeal, but Mr Emmett was himself unable to identify Parfitt or any of the four men who were involved in the attack upon Graham. He could only describe their clothing generally. He was really only able to say that they were all wearing long trousers.
7 Mr Graham's other friend, Mr Rabaud, who was present at the time, really saw nothing of the incident. At Mr Emmett's instruction he went into the house at an early stage to ring the police and no sooner had he come outside after doing that, than he was sent back in to call for an ambulance.
8 A Mr Kenneth Kelly was called, related to Brendan Kelly, a convicted accused, but his evidence is of little assistance. He could name those who were present at Mr Graham's front garden, but he said that as soon as the fight started and somebody called out that there was a knife being carried, he left and went home.
9 PC Wells and PC Pinch attended in response to Mr Rabaud's telephone call. PC Pinch found a screwdriver at the front of Mr Graham's unit. The two officers then arrested a number of people, including the accused persons. Clothing and sandshoes were taken from a number of
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- them. PC Wells said that the appellant was wearing white or silvery shorts when he was arrested. The rest were wearing long trousers.
10 Detective Sergeant McDonald arranged for blood samples to be taken from those arrested, including the accused persons. Mr Graham's blood was sampled, but none of the clothes, shoes or the screwdriver showed traces of his blood. Not all the clothing and shoes worn by all those arrested were seized. Notably, Parfitt's clothing and shoes were not seized.
11 The only other Crown witness, apart from the doctor who gave evidence of Mr Graham's injuries, was Parfitt. It is right to say, as Ground 1.1.1 asserts, that the Crown case relied solely upon his evidence which was undoubtedly uncorroborated. It was equally clear that he was an accomplice.
12 Although he gave evidence that he was intoxicated to some degree at the time, his evidence was clear. He said there were seven people together. They saw the car which later ended up in Mr Graham's driveway. It seems that this was the vehicle which brought Emmett and Rabaud to Graham's home. Two of the men decided they would steal the car. They followed it to Graham's unit. He stood near a palm tree with Nathan Hart and Kenneth Kelly. He saw the other four, including the appellant and Brendan Kelly, attack Graham. He described the nature of the attack. He admitted that he became involved by preventing another man (Emmett) going to Graham's assistance, but he himself did not become involved in the attack upon Graham; nor did Nathan Hart. It was as a result of his evidence that this accused person was acquitted by the direction of the learned trial Judge.
13 In cross-examination Parfitt made the admissions identified in grounds 1.1.2, 1.1.3 and 1.1.4. He explained that he had lied to police and on oath at the preliminary hearing to falsely implicate Nathan Hart because the two of them had had a disagreement earlier that night and he was angry about that, but it is noteworthy that at the trial his evidence led to this person's acquittal. On the other hand, he lied at the preliminary hearing to exculpate Thorne and as a result, Thorne was discharged after the preliminary hearing.
14 As to the matter raised in ground 1.1.4, Parfitt conceded that he lied to the police and on oath at the preliminary hearing when he gave evidence that the appellant was standing with him when Graham approached them. He explained that he did that, as the ground has it, to
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- ensure that the appellant was implicated because the appellant struck Graham with a piece of wood, obviously to serious effect, and the witness regarded that as "pretty gruesome" and said that it "wasn't called for".
15 Finally, he said that he was wearing long trousers and agreed that all the others were similarly dressed, except for the appellant who was wearing shorts and singlet. Parfitt did not remember what colour the shorts were.
16 The learned trial Judge reminded the jury that "the essential evidence" against the accused persons was that of Parfitt. His Honour identified him as being a witness who was an accomplice implicated in the offence in the way that we have described. His Honour gave a perfectly adequate direction about the danger of acting upon the evidence of an accomplice without corroboration. He explained what he meant by corroboration in that context. He concluded that direction in the following way:
"You should bear in mind, however, that even though there is no corroborative evidence, Parfitt's evidence may still be acted upon if after seeing and hearing him in the witness box you are satisfied that he is telling the truth. In other words, what I have said to you does not mean that Parfitt's evidence must be corroborated in every or any respect before it is accepted, but only that you must be aware of the danger of acting on it unless it is corroborated.
If, however, conscious of that danger you accept the evidence of Parfitt as being truthful, credible and reliable - that is, his sworn testimony before you - then you can and should act on it. In this regard and in assessing Parfitt's evidence you must bear in mind that he has admitted to having told falsehoods in the past and particularly to having implicated Nathan Rolick Hart and so sworn on oath on another occasion; that is, on the occasion of the preliminary hearing because as he told you in evidence, he had an altercation with and had a disagreement and was angry with Hart. He told you, however, on oath that Hart was not involved.
There is also the general inconsistencies referred to by counsel between what he said on oath at the preliminary hearing and what he has said to you - matters, you will recall, such as being
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- rushed by the accused and that the boys baulked Emmett and he said that he in fact baulked Emmett.
He agreed that in his police statement he implicated Greg Thorne but at the preliminary hearing he said that Thorne was not involved and that his evidence before you was that Thorne was involved. He said in his police statement, 'Before the assault, Bevan was near me on my side of the driveway' but in his sworn evidence before you said that was not correct and that he was on the other side of the driveway.
You must remember that it is the evidence before you, the sworn evidence before you, that you evaluate. That is the evidence before you, not what has been said on other occasions; but what has been said inconsistently on other occasions are matters that you must take into account in assessing the credibility of a witness."
17 Later in his address, the learned trial Judge reminded the jury that defence counsel had said of Parfitt that he had "a clear self-interest motivation and that in assessing his evidence you must have regard to that." His Honour said that counsel had referred particularly to those issues concerning the evidence of Parfitt about which his Honour had spoken when he gave the jury "the accomplice warning". After the jury retired to their deliberations, counsel for the appellant sought a more comprehensive warning about the danger of acting upon Parfitt's evidence, specifically having regard to the fact that he had told lies out of court to the police, and, at the preliminary hearing, upon his oath, he had committed perjury for the confessed reason that, because of some private interest, he either wished to implicate or exculpate others who had been charged. His Honour declined to give that direction, suggesting that he had covered the ground adequately in what he had said to the jury.
18 However, the jury were recalled for some further directions unrelated to the point of the appeal and his Honour took the opportunity to return to the issue of Parfitt's evidence, mentioning to the jury that he had previously spoken about Parfitt's self-interest. His Honour explained that by that he meant to refer to the fact that Parfitt had not been charged. However, that issue, of course, related more to the question whether Parfitt had a motive to conceal the full extent of his own involvement (although he had admitted his implication in the commission of the offence), rather than his reliability as a witness when he implicated others.
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19 The direction given adequately put to the jury the danger of acting upon the evidence of Parfitt having regard to the fact that he was an accomplice and so may have had a purpose of his own to serve. But it did not specifically warn the jury of the need to question closely Parfitt's reliability as a witness and his truthfulness having regard to the fact that he was a confessed perjurer and a confessed liar out of court to the police, lies motivated frankly by a desire to implicate those who may not have been involved and exculpate others who might have been offenders. In the circumstances of this case where Parfitt was a confessed accomplice who was apparently not hiding the fact that he was implicated, although he had not been charged, the question of Parfitt's reliability as a witness because he was a liar was the larger consideration affecting his credibility and the capacity to prove the appellant's guilt beyond reasonable doubt.
20 Without wishing to dictate to the trial Judge the words his Honour should have used, in our opinion it was necessary that the jury be specifically warned of the danger of acting upon Parfitt's evidence, having regard to his confessed perjury, without careful scrutiny of his evidence and careful evaluation of his motives for lying on the former occasions. The jury clearly felt satisfied to rely upon Parfitt having regard to his role as an accomplice. They may have picked up the other issue and given it proper consideration, but on the other hand they may have thought that the fact that his Honour referred merely to inconsistency between what Parfitt said on other occasions and his evidence, meant that in the eyes of the Judge the issue of Parfitt's lies was not of the same degree of importance as the fact that he was an accomplice whose evidence was uncorroborated.
21 It is trite to observe that it is necessary, if the trial is to be fair and a miscarriage of justice is to be avoided, that the trial judge give warnings to a jury of dangers in respect of the reliability of particular witnesses or in respect of various categories of evidence. In Melbourne v The Queen (1999) 164 ALR 465 the High Court considered the directions which may need to be given in respect of evidence of the good character of the accused person. The question in that case was, when such evidence is admitted, whether the trial judge should direct the jury as to the use to which it may be put in every case or only in those cases where the dictates of a fair trial appear to require it. At 503 - 504, Hayne J, a member of the majority of the Court, said:
"The task of directing a jury in a criminal case is never easy. It would be made no easier (and would serve no purpose) if trial judges were bound to give more, and more complicated, directions than the particular case requires. But the obligation
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- of a trial judge, onerous as it is, does not extend so far. … The directions that a trial judge gives the jury in a criminal trial must instruct the jury on only so much of the law as they need to know for the purposes of deciding the particular case that has been tried before them. It is neither necessary nor desirable that a judge's charge go further.
It is trite to observe that the jury, not the judge, are the sole judges of questions of fact. But that does not mean that a trial judge can leave all questions of fact to the jury without giving them any directions. The trial judge in a criminal trial must instruct the jury about some matters that affect how they set about finding the facts. Thus in some cases the judge must warn the jury of dangers of which they must beware when they are considering the facts. Directions about the dangers of identification evidence or about accepting uncorroborated evidence in some circumstances provide ready examples."
22 The passage quoted provides a timely reminder that where a warning is required, it is to aid the jury in their evaluation of the evidence and in the fact finding process upon which they are embarked. The warning is required in a case such as this because the evidence is potentially unreliable and its unreliability may not be appreciated. As Gibbs CJ said in Bromley v The Queen (1986) 161 CLR 315 at 319:
"What is required, in a case where the evidence of a witness may be potentially unreliable, … is that the jury must be made aware, in words which meet the justice of the particular case, of the dangers of convicting on such evidence. Where a warning is required as to the way in which the jury should treat the unsupported evidence of a witness whose evidence is potentially unreliable, the question is 'Was that warning sufficient? Did it in clear terms bring home to the jury the danger of basing a conviction on the unconfirmed evidence of the complainant?'. There is nothing formal or technical about this rule."
- Bromley was a case concerned with the warning required when an important Crown witness had a mental disability which might affect his capacity to give reliable evidence. The point is the necessity to clearly convey to the jury in words tailored to meet the circumstances of the case why they should hesitate and carefully scrutinise and evaluate the evidence before relying upon it to convict the accused person.
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23 In our view the direction given in this case did not meet that test. It did not focus upon the fact that Parfitt was a confessed liar, even upon his oath, and for the purpose of manipulating the evidence so as to inculpate a person against whom he had a grievance and exculpate others when he was of a contrary mind. The direction given by his Honour in our respectful opinion in fact tended to divert the jury from careful consideration of this aspect of Parfitt's potential unreliability as a witness and was calculated to cause them to concentrate upon the fact that he was an accomplice. In our opinion ground 1.1.1 - 1.1.4 and ground 2 are made out.
24 It is put in ground 1 that having regard to those matters together with the matters identified in par 1.1.5 and par 1.1.6, this Court should conclude that the verdict of the jury should be set aside in that a miscarriage of justice has occurred, a notion elaborated upon in the ground by the assertion that the verdict is unsafe and unsatisfactory because the jury, acting reasonably, should have entertained a reasonable doubt as to the guilt of the appellant. There is potential for confusion in this combination of those concepts.
25 In Gipp v The Queen (1998) 194 CLR 106, a case concerned with the admissibility of general "propensity evidence" of a history of sexual abuse and the direction required of the trial Judge in relation to such evidence, Gaudron J at 114 said:
"The expression 'unsafe and unsatisfactory' has no very precise meaning. It is commonly used to indicate that, although there was evidence to sustain a verdict of guilty, the jury ought, nonetheless, have entertained a reasonable doubt as to guilt. That is the sense in which it was understood by the Court of Appeal in this case. However it, or an equivalent expression such as 'unjust or unsafe', may be used to indicate that there is some defect in the summing up or 'some feature of the case raising a substantial possibility that, either in the conclusion itself, or in the manner in which it has been reached, the jury may have been mistaken or misled': Davies & Cody v The King (1937) 57 CLR 170, 180."
26 Brennan CJ made the same point in Jones v The Queen (1997) 191 CLR 439, a case of the first type mentioned by Gaudron J, when at 443 his Honour said that in contrast to that type of case:
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- "There are other categories of cases where a verdict of guilty is unsafe and unsatisfactory. These are cases where there has been some failure to apply the rules of law or procedure that are required to ensure a fair trial - for example, a failure to give the jury a warning when a warning ought to have been given, even if the giving of the warning was not generally mandatory. These are cases where there is a substantial risk that the jury may have been misled or misled themselves in some material respect."
27 In Longman v The Queen (1989) 168 CLR 79, where it was held that there was a requirement to warn the jury of the danger of convicting on the uncorroborated evidence of a complainant in a sexual assault case where in the circumstances of the case there was a significant danger arising out of the potential unreliability of the witness's evidence, Brennan, Dawson and Toohey JJ discussed the nature of the warning which was required. At 91 their Honours concluded:
"To leave a jury without such a full appreciation of the danger was to risk a miscarriage of justice. The jury were told simply to consider the relative credibility of the complainant and the appellant without either a warning or a mention of the factors relevant to the evaluation of the evidence. That was not sufficient. … The absence of a warning leaves the conviction unsafe and unsatisfactory."
28 The same approach was taken in Chidiac v The Queen (1991) 171 CLR where, as in this case, the High Court was concerned with the adequacy of directions given by the trial Judge in respect of the evaluation of the evidence of accomplices who were also self-confessed perjurers. There the Court upheld the direction of the trial Judge which included the following remarks, no doubt well adapted to make the point in the context of that case:
"What I am bound to tell you is that being accomplices as they are it is dangerous to convict on their evidence unless it is corroborated. Not only are they accomplices, not only are they down and out villains, not only are they drug smugglers themselves, but they are self-confessed perjurers and liars. I have been sitting in these courts for something like eight years and I have never heard two witnesses so readily admit that they have lied on oath. Now, that does not mean to say that they may not be telling the truth, but what I am saying to you is you
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- will look very carefully at what they said before you would hang a dog on their evidence."
29 It is enough, we think, that we should be satisfied, as we have said we are, that in terms of the Code, s 689(1), there has been a miscarriage of justice in this case in that there is a perceptible danger, having regard to the directions given and the demonstrated need for a further direction specifically focusing upon the lies told by Parfitt out of court and his perjury at the preliminary hearing, that the jury may have relied upon the essential evidence of this witness without a proper appreciation of the need to carefully consider the impact upon his credibility of his previous lies. For those reasons we felt obliged to make the orders to which we have referred above.
30 We should say in parting from this case that we would not have been persuaded that the verdict was unsafe and unsatisfactory merely because of the conflict between the evidence of Emmett on the one hand, and Parfitt and PC Wells on the other about whether or not the appellant was wearing shorts or long trousers. That after all was an area of the facts, albeit peripheral, where Parfitt's evidence was corroborated by that of the police officer.
31 Nor would we have been persuaded that the verdict was unsafe and unsatisfactory having regard to the fact that the clothing of some of those present, including Parfitt, was not seized and sent for forensic analysis. That process may, of course, have provided evidence which would tend to implicate the persons identified in the ground in the offence which was committed. It might have shown that Parfitt was more closely involved with Graham than he suggested, but that is an entirely speculative consideration which would not have borne upon the guilt of the appellant, except as another basis upon which the jury might have concluded that Parfitt was protecting his own position at the expense of implicating others. It is to be noted that upon none of the clothing and shoes which were submitted was there any blood consistent with being that of Mr Graham.
32 As is evident from the final orders made on the hearing of the appeal, it was not our view that the evidence of Parfitt was necessarily so inherently unreliable that not only must the conviction be quashed, but there should be no order for a new trial, having regard to the test formulated in M v The Queen (1994) 181 CLR 487, 493 - 494. It was open to the jury, properly directed, to accept Parfitt as a witness of truth, accurately recounting what he saw, despite the ways in which his
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- evidence was tainted. If Parfitt's evidence was accepted it provided a clear basis for the jury to be satisfied of the appellant's guilt beyond reasonable doubt. For those reasons we made the order that there should be a new trial.
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