Ilic v The Queen
[2000] WASCA 411
•19 DECEMBER 2000
ILIC -v- THE QUEEN [2000] WASCA 411
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2000] WASCA 411 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:152/2000 | 22 NOVEMBER 2000 | |
| Coram: | IPP J WALLWORK J MURRAY J | 19/12/00 | |
| 25 | Judgment Part: | 1 of 1 | |
| Result: | Application for leave to appeal granted Appeal allowed | ||
| PDF Version |
| Parties: | TODOR ILIC THE QUEEN JAMIE SAMMUT |
Catchwords: | Criminal Law Evidence Evidentiary matters relating to witnesses and accused persons Whether new evidence fresh evidence Exceptional circumstances Miscarriage of justice Failure of police and defence to diligently seek out witnesses Crowd controllers convicted of unlawful grievous bodily harm and wounding Jury verdicts set aside Retrials ordered |
Legislation: | Criminal Code, s 689 |
Case References: | Boyce v Nunn (1997) 138 FLR 475 Bradshaw v The Queen, unreported; CCA of WA; Library No 970228 delivered 13 May 1997 Dobson v The Queen unreported; CCA, SCt of WA; Library No 8213; 11 April 1990 Gallagher v The Queen (1986) 160 CLR 392 Hallett v The Queen (1995) 3 NTJ 1422 Lawless v The Queen (1979) 142 CLR 659 Leuschel v Police (1999) 75 SASR 231 Mickelberg v The Queen (1989) 167 CLR 259 Ratten v The Queen (1974) 131 CLR 510 Whitehorn v The Queen (1983) 152 CLR 657 Wyatt v The Queen (1992) 28 FCR 61 Chamberlain v The Queen (No 2) (1984) 153 CLR 521 Cleland v The Queen (1982) 151 CLR 1 Clemesha v The Queen [1978] WAR 193 Davies v The King (1937) 57 CLR 170 Dinsdale v The Queen [2000] HCA 54 Domican v The Queen (1992) 173 CLR 555 Hubon v The Queen; CCA of WA; Library No 940416; 12 July 1994 Kilner v The Queen [1999] WASCA 189 King v The Queen [1999] WASCA 9 M v The Queen (1994) 181 CLR 487 Milton v The Queen [2000] WASCA 25 Morris v The Queen (1987) 163 CLR 454 R v Bond (1992) 62 A Crim R 383 R v Lobston [1983] Qd R 720 Ronan v The Queen, unreported; CCA of WA; Library No 970073; 28 February 1997 Shepherd v The Queen (1990) 170 CLR 573 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : ILIC -v- THE QUEEN [2000] WASCA 411 CORAM : IPP J
- WALLWORK J
MURRAY J
- CCA 153 of 2000
- Applicant
AND
THE QUEEN
- Respondent
- CCA 219 of 2000
- Applicant
AND
THE QUEEN
- Respondent
(Page 2)
Catchwords:
Criminal Law - Evidence - Evidentiary matters relating to witnesses and accused persons - Whether new evidence fresh evidence - Exceptional circumstances - Miscarriage of justice - Failure of police and defence to diligently seek out witnesses - Crowd controllers convicted of unlawful grievous bodily harm and wounding - Jury verdicts set aside - Retrials ordered
Legislation:
Criminal Code, s 689
Result:
Application for leave to appeal granted
Appeal allowed
Representation:
CCA 152 of 2000
CCA 153 of 2000
Counsel:
Applicant : Mr H C Quail
Respondent : Mr S P Pallaras QC
Solicitors:
Applicant : Hylton Quail
Respondent : State Director of Public Prosecutions
(Page 3)
CCA 155 of 2000
CCA 219 of 2000
Counsel:
Applicant : Mr S D Hall
Respondent : Mr S P Pallaras QC
Solicitors:
Applicant : Laurie Levy
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Boyce v Nunn (1997) 138 FLR 475
Bradshaw v The Queen, unreported; CCA of WA; Library No 970228; 13 May 1997
Dobson v The Queen unreported; CCA, SCt of WA; Library No 8213; 11 April 1990
Gallagher v The Queen (1986) 160 CLR 392
Hallett v The Queen (1995) 3 NTJ 1422
Lawless v The Queen (1979) 142 CLR 659
Leuschel v Police (SA) (1999) 75 SASR 231
Mickelberg v The Queen (1989) 167 CLR 259
Mickelberg v The Queen, unreported; CCA, SCt of WA; Library No 990056; 12 February 1999
R v Williams (1992) 8 WAR 265
Ratten v The Queen (1974) 131 CLR 510
Whitehorn v The Queen (1983) 152 CLR 657
Wyatt v The Queen (1992) 35 FCR 422
Case(s) also cited:
Chamberlain v The Queen (No 2) (1984) 153 CLR 521
Cleland v The Queen (1982) 151 CLR 1
Clemesha v The Queen [1978] WAR 193
(Page 4)
Davies v The King (1937) 57 CLR 170
Dinsdale v The Queen [2000] HCA 54
Domican v The Queen (1992) 173 CLR 555
Hubon v The Queen; CCA of WA; Library No 940416; 12 July 1994
Kilner v The Queen [1999] WASCA 189
King v The Queen [1999] WASCA 9
M v The Queen (1994) 181 CLR 487
Milton v The Queen [2000] WASCA 25
Morris v The Queen (1987) 163 CLR 454
R v Bond (1992) 62 A Crim R 383
R v Lobston [1983] Qd R 720
Ronan v The Queen, unreported; CCA of WA; Library No 970073; 28 February 1997
Shepherd v The Queen (1990) 170 CLR 573
(Page 5)
- IPP J:
The two appeals
1 On 19 November 1997, in the early hours of the morning, Mr Vivian Hunt and a number of friends were attending the Hip-E nightclub in Leederville. A disturbance occurred inside the club, in consequence of which Hunt was removed from the premises by three "crowd controllers", more commonly known as "bouncers".
2 A ramp led down from the door of the club to the pavement outside. According to the Crown, while Hunt was being carried down the ramp by the crowd controllers, he was punched once above the eye. His skin was thereby punctured and he began to bleed from the cut. Subsequently, Hunt was medically examined and it was found necessary for the cut to be sutured.
3 When Hunt reached the bottom of the ramp, he was deposited on the pavement where he lay in a state of unconsciousness. Eventually, he recovered and walked to a nearby carpark. There, he was again assaulted and punched several times to the head. On being medically examined, he was found to have sustained a bilateral fracture of the left side of the mandible high up near the joint (that is under the left ear) and lower down near the front of the jaw in the centre of the chin area. The fracture near the joint was deemed to be stable but the other required surgical treatment and the insertion of two titanium plates.
4 Todor Ilic, one of the crowd controllers who had removed Hunt, was charged with and convicted of unlawfully wounding him by punching him above the eye in the manner described. He was sentenced to a term of 2 years' imprisonment and an order was made for eligibility for parole.
5 Jamie Sammut, another crowd controller (but not one of the three who had removed Hunt from the club), was charged with doing Hunt grievous bodily harm by punching him and breaking his jaw. Sammut was convicted of this charge and sentenced to 4 years' imprisonment. He too was made eligible for parole.
6 Ilic and Sammut now appeal against their convictions. During the course of the appeal, new evidence by three witnesses was led on their behalf and Ilic himself testified to explain why the three witnesses were not called at the trial. Sammut relied on an affidavit signed by him in this connection.
(Page 6)
7 Mr Pallaras QC, senior counsel for the respondent, disputed that the new evidence was "fresh" and submitted that it should not be admitted. The Court, however, allowed the evidence to be led, subject to the right of the respondent to argue, at a later stage, that no regard should be had thereto on the ground that it was not fresh. This is the procedure that was adopted in Mickelberg v The Queen, unreported; CCA, SCt of WA; Library No 990056; 12 February 1999.
8 It was contended on Ilic's behalf that the new evidence established that another crowd controller, one Peter Ross, was the person who punched Hunt above the eye and caused the cut. Accordingly, it was submitted, this Court should acquit Ilic of the charge of unlawful wounding and discharge him, alternatively, the verdict against Ilic should be set aside and a retrial should be ordered.
9 As regards Sammut, there was compelling evidence at the trial to the effect that he had delivered a number of punches to Hunt's head. Reliance was placed, however, on new evidence to the effect that, in the period between the punch above the eye and the punches by Sammut, another person stood on Hunt's head. It was submitted that this gave rise to a reasonable doubt as to whether Sammut caused the fractures to the jaw.
10 While the notices of appeal raised other grounds, the principal arguments advanced on behalf of Ilic and Sammut were based on the new evidence. The nature of the submissions made on Ilic's behalf requires the new evidence to be weighed against the evidence led at trial. A similar exercise does not have to be undertaken in regard to Sammut - what is required in his case is a determination whether, accepting the evidence led against him at trial as being true, the new evidence raises a reasonable doubt as to whether he caused the injuries to Hunt's jaw.
The prosecution case against Ilic at trial
11 Hunt and two of his friends, Messrs Herbert and O'Halloran, testified that at about 3.00 am on 19 November 1997, whilst they were inside the Hip-E Club, an altercation took place between O'Halloran and another man and this led to the group being removed from the club by various crowd controllers.
12 Hunt was not able to say who had struck him over the eye and when he had so been struck. His memory was affected by the blows he received, which led him to lose consciousness. He was particularly vague
(Page 7)
- as to what occurred after going down the ramp and it was, in effect, common cause that no reliance could be placed on his testimony.
13 Herbert testified in examination-in-chief that, while Hunt was midway down the ramp, being carried by the crowd controllers, he (that is, Herbert) saw Ilic punch Hunt in the head. Herbert said, "I saw someone step in from the side, connect to Viv [Hunt] and then stand back". He identified the person who delivered the punch as Ilic. In cross-examination, Herbert conceded that it was possible that he saw Hunt being punched when he was at the bottom of the ramp. Counsel for Ilic then put to Herbert, "[i]sn't it possible that you have just picked out one of the doormen who was there, one of the crowd controllers who was there, not necessarily the puncher?" Herbert replied, "Could have done". At the time, Herbert was under the influence of alcohol and was being carried down the ramp in a "choker hold". He said he was on the verge of "passing out" and became unconscious a few seconds after he saw Hunt being hit.
14 O'Halloran did not see the face of the person who punched Hunt. According to O'Halloran, he saw Hunt, when the latter was halfway down the ramp, being punched just above his eyebrow. O'Halloran testified that he saw Hunt's eye "split open" and begin to bleed. O'Halloran, however, only saw the person who punched Hunt from behind. Nevertheless, O'Halloran's evidence was consistent with that of Herbert. If Hunt was punched above the eye midway down the ramp (as both testified), it was very likely that the person who punched him was Ilic. It was Ilic's case that Hunt was punched above the eye when he was at the bottom of the ramp.
15 In addition the Crown tendered a videotape that was taken as a matter of routine by the management of the club. The videotape shows the disturbance within the club and Hunt being carried down the ramp and deposited unconscious on the pavement. It does not show who punched Hunt and, indeed, does not seem to me to show Hunt being punched above the eye, or at least, it is very difficult to discern that occurring. According to Mr Pallaras, the videotape shows, at a point midway down the ramp, "the withdrawing of [Ilic's] arm in preparation, we would say, of the punch and then the follow through." I think that is a fair summation, but the videotape does not, on its own, prove that, midway down the ramp, Ilic punched Hunt above the eye (although it is very much consistent with Ilic punching Hunt at that point).
(Page 8)
16 Mr Pallaras submitted that the videotape, combined with the evidence of Herbert and O'Halloran, established the Crown case against Ilic, beyond reasonable doubt, and, plainly, this is what the jury found. It is also not in dispute that they were entitled to make such a finding on the evidence before them.
The prosecution case against Sammut at trial
17 After Hunt was rendered unconscious and left lying on the ground at the bottom of the ramp, he recovered to a sufficient extent to be able to walk away. He then proceeded to a nearby carpark where another altercation occurred, this time between Hunt and Sammut. Sammut thereupon struck Hunt several blows to the head.
18 The Crown case that Sammut caused the fractures to Hunt's jaw was dependent upon any other cause of the fractures being excluded. Hunt testified that, after the first blow to the eye, he had some pain to the jaw, but that was not nearly as bad to the pain in his jaw that he felt after he was struck by Sammut. Dr Alberghini, an oral surgeon, testified that the fracture to the jaw would have been caused by direct trauma to that area and would not have been caused by a blow above the eye. By their verdict, the jury accepted this evidence.
Ilic's defence at trial
19 Ilic testified that he did not punch Hunt at all. He said that, midway down the ramp, he pushed Hunt in the stomach, but did not punch him. When Hunt was at the bottom of the ramp, Ilic saw Ross approach him from the side and punch him. Hunt then collapsed.
20 In cross-examination, Ilic denied punching Hunt above the right eye and said all he did was push Hunt in the torso with his open hand. He said that he pushed Hunt to assist him down the ramp. When asked about the videotape, which showed his arm being extended behind him when he was close to Hunt, Ilic denied that this was preparatory to a punch and said that he was bracing himself against a railing.
21 Ilic called two witnesses in his support, Messrs McInerney and Fiorini, both crowd controllers. McInerney was one of the three crowd controllers who removed Hunt from the nightclub.
22 McInerney testified that, when Hunt was at the bottom of the ramp, he saw Ross strike him with his right hand on the right side of his face.
(Page 9)
- McInerney said that he saw Hunt's head snap back but he did not see the blow land. Hunt was then placed on the ground and McInerney noticed blood coming from his face. He had not noticed any blood prior to Ross's punch. McInerney said that he did not see Ilic punch Hunt. In cross-examination, he accepted, however, that it was possible that, while he and Ilic and Johnston were carrying Hunt out, "something could have happened with Mr Ilic".
23 Fiorini said that he did not see Ilic strike Hunt. When Ross was at the bottom of the ramp, he saw Ross strike Hunt with a clenched fist above his eyebrow and this resulted in a small split that caused blood to flow. Fiorini said that, after this blow was struck, Hunt fell to the ground.
24 Plainly, the jury rejected the defence evidence, as they were entitled to do.
The new evidence
25 The new evidence consisted of testimony from two other crowd controllers, (Messrs Mirosevich and Johnston), and Ilic's employer (Mr Douglas).
26 Mirosevich testified that, on 19 November 1997, shortly after the assaults were committed, he told two police officers who attended at The Hip-E Club that, without his employer's approval, he could not speak to them about what occurred. He gave the police officers Douglas's card and referred them to him. He was not thereafter approached by any police officer. He was, however, asked by Douglas to write a statement as to what had occurred. Within two days of the incident, he did so and gave that statement to Douglas.
27 In that statement Mirosevich said that he began removing a patron from the nightclub at about 3.14 am on 19 November 1997. Thereafter, he saw Ilic punch a man (who the parties accept was Hunt) in the kidney area when the man was in the middle of the ramp. Mirosevich was standing on the side, about three metres from the ramp, and was watching what was happening.
28 He stated that he then witnessed Ross "strike a fierce punch" to the man's head and the man was "left unconscious." The statement records that when the man stood up he had a large cut to his left temple and Mirosevich assumed that it was the punch by Ross that had caused the cut.
(Page 10)
29 Thereafter, according to Mirosevich, an unknown male person "wearing a purple shirt and cordroy [sic] pants walked over to were [sic] [Hunt] was lying on the ground and stepped on his head." This occurred before Hunt was punched in the carpark.
30 Mirosevich said that later, on the morning of 19 November 1997, he spoke to Ross and asked him why he had hit Hunt. Ross said that he had done so because he had seen Hunt hitting Mirosevich earlier in the nightclub. According to Mirosevich's statement, a surveillance video taken by his employer shows that at approximately 3.23 am he was having a discussion about the incident that was recorded by the video microphone. He testified, "in the discussion you can hear me indicating that I had seen Mr Ross punch [Hunt] in the head".
31 When Mirosevich gave oral evidence before this Court, extracts from the videotape that was played to the jury at the trial were shown. It was apparent from the videotape as elucidated by Mirosevich that shortly before 3.15 am Hunt was carried through the entrance door of the nightclub by two crowd controllers identified as McInerney and Johnston. Ross was holding Hunt's legs. As this was taking place, O'Halloran and Herbert, came out of the club.
32 According to Mirosevich, at about 3.15 am, when Hunt was midway down the ramp, he saw Ilic strike Hunt in the stomach. He was three metres away from him. He saw no blood on Hunt's face at that time. The videotape shows that, at about that time, Ilic's right hand was extended behind his body close to Hunt. This is when the Crown alleges that Ilic struck Hunt above the eye.
33 The videotape also shows that, shortly after 3.15 am, Ross was standing close to Hunt at the bottom of the ramp. It is not possible to see whether Ross then hit Hunt, but it is apparent that, while Ross was standing close to Hunt, Hunt either fell to the ground or was dropped onto the ground, unconscious. Mirosevich testified that it was immediately prior to Hunt falling to the ground that he saw Ross punch Hunt in the head. He said that Hunt was bleeding extensively when he got up off the ground.
34 According to Mirosevich, after Hunt had been dumped, as it were, at the bottom of the ramp, Hunt stood up and walked about 15 to 20 metres to a taxi rank. At the taxi rank there was another fight which resulted in Hunt again ending up on the ground. It was at that point that Mirosevich
(Page 11)
- saw someone stand on Hunt's head. The altercation with Sammut occurred in the carpark thereafter.
35 Johnston produced his statement, which he, too, wrote for Douglas a couple of days after the assaults on Hunt. According to that statement, Johnston, Ross and another crowd controller (McInerney) took Hunt down the ramp. Hunt kicked at Ross and began to struggle free. At a point about halfway down the concrete ramp, Johnston put Hunt in a headlock and Ilic hit him in the stomach. Johnston did not see whether Ilic's hand was open or clenched when he struck Hunt. He said that Ilic definitely did not hit Hunt in the head at that point or at any time while he was carrying Hunt down the ramp. He said that he was holding Hunt and would have seen Ilic hit him on the head.
36 Thereafter, as they were moving him to the bottom of the ramp, Johnston saw Hunt's head rock back sharply. Johnston assumed that this was caused by a blow, but he could not see who hit Hunt. Hunt began to lose consciousness and Johnston put him on the ground.
37 Douglas produced a videotape, which showed images of Ross running back into the club at 16 seconds after 3.15 am. This was after Ross had been involved in carrying Hunt down the ramp. The videotape shows Ross holding his hand and looking back to the door, with what might be thought to be an uneasy expression on his face. These particular images were not part of the videotape that was produced at the trial.
Why the witnesses did not speak to the police before the trial
38 Mirosevich told the police that he could not make a statement due to company policy. He testified that he did not speak to the police about the assaults because he had signed a confidentiality agreement with his employer that prohibited him from disclosing any information about anything that happened at work. After Ilic had been found guilty, however, Douglas told Mirosevich to speak to Ilic's solicitor. Mirosevich then did so.
39 Johnston said that he did not speak to the police because of the confidentiality agreement that he had with his employer, and he gave the same evidence as Mirosevich in this respect.
40 Douglas stated that he did not authorise his employees to speak to the police before Ilic's trial. The police asked Douglas for staff lists, phone numbers and incident reports of the night. Douglas only gave the police
(Page 12)
- the staff lists. He did not tell them that he had a statement from Mirosevich or Johnston and, in fact, he told the investigating police officer that he had no information in regard to the charges brought against Ilic. He was not able satisfactorily to explain this untrue statement. It does appear, however, that he recognised that the statements implicated Ross. He said that he would have hoped that "Mr Ross would have come forward at his own accord out of pure decency and sorted out the situation", but said "I am certainly not in the business of dobbing people in".
41 Prior to the trial, Douglas gave the Crown the original videotape, but the Crown produced an edited version at the trial. That part of the videotape that showed Ross returning to the interior of the club was, unbeknown to the defence, omitted - apparently unwittingly - from the edited version.
Ilic's argument that, on the new evidence, he should be acquitted
42 Mr Quail, counsel for Ilic, submitted, as his first argument, that on the new evidence Ilic should be acquitted. He drew attention to the rule that should the Court be satisfied by new evidence that the verdict of guilty should be quashed and the appellant discharged "it will not matter that the new material or some part of it is not fresh evidence" (per Barwick CJ in Ratten v The Queen (1974) 131 CLR 510 at 518). As the learned Chief Justice said in that case (at 518 - 519):
"Thus, until the court decides that there is no miscarriage of this kind, it will not need to consider whether or not any part of the new evidence satisfied the criterion of fresh evidence. The court's acceptance that guilt beyond reasonable doubt is not established, means inevitably that to maintain the verdict of guilty would be a miscarriage of justice.".
43 In Mickelberg v The Queen, unreported; CCA, SCt of WA; Library No 990056; 12 February 1999, this Court, when considering an argument that new evidence established that the verdict should be set aside outright and the accused discharged, held [at 16]:
"In that event, 'the court will consider all the material itself, forming and acting upon its own belief in, or disbelief, the evidence, and upon its own view of the facts of the case including the evidence at the trial' [per Barwick CJ in Ratten v The Queen (at 518)]. If the court is satisfied of innocence or
(Page 13)
- entertains a reasonable doubt as to guilt the verdict of guilty will be quashed and the appellant discharged. Later cases have made it plain that it is the view which a reasonable jury must have reached and not the view of the court which is to be considered."
44 The task of the court in considering all the material and in determining a view that a "a reasonable jury must have reached" is difficult as it will not have seen and heard the witnesses who testified at the trial. The court must, however, weigh the cogency of the evidence given at the trial and "[t]hat evidence will be taken in that sense in which, having regard to its verdict, the jury must have accepted it" (per Barwick CJ in Ratten v The Queen at 518).
45 Ilic's case, to the extent that it rests on the new evidence, involves the acceptance of evidence that is, to a degree, at odds with his own. That is the evidence of Mirosevich and Johnston that Ilic punched Hunt in the stomach as he was midway down the ramp. Ilic, as I have mentioned, denied that he punched Hunt at all, and said that he only pushed Hunt in the stomach. But, importantly, both Mirosevich and Johnston say that Ilic did not punch Hunt above the eye and it was Ross who, at the bottom of the ramp, delivered the punch that brought about the cut above the eye and the consequential bleeding.
46 There are a number of factors that support the cogency and persuasiveness of the evidence of Mirosevich and Johnston. They both gave statements within two days of the assaults occurring and those statements are consistent with the evidence they gave to this Court. Immediately after the assaults occurred, Mirosevich said that Ross had punched Hunt's head. Mirosevich and Johnston were in a good position to observe the incidents in question. They gave their oral evidence in a credible manner and it was supported by the new videotape images. They have rational explanations for not having come forward earlier.
47 On the other hand, the jury had before them the very case now brought, and they rejected it. That is to say, Ilic had at trial relied on the argument that it was Ross and not him who struck the blow to Hunt's head, that the blow was delivered at the bottom of the ramp and not midway down it, and he was supported in these matters by Fiorini and McInerney. Obviously, by the verdict, the jury believed the testimony of Herbert and O'Halloran and disbelieved Ilic, Fiorini and McInerney.
(Page 14)
48 There is force in the arguments raised by Mr Quail on Ilic's behalf. On balance, however, taking the evidence at the trial in the sense in which, having regard to its verdict, the jury must have accepted it, I am not persuaded that Ilic is innocent and I do not entertain a reasonable doubt as to his guilt.
The effect of the new evidence on a reasonable jury
49 Mr Quail submitted, in the alternative, that on the new evidence a reasonable jury might acquit Ilic. Mr Hall, counsel for Sammut, submitted that on the new evidence a reasonable jury might hold that the blows struck by Sammut did not cause the fractures to Hunt's jaw and hence might acquit him of the charge of doing grievous bodily harm.
50 In these circumstances, as Barwick CJ said in Ratten v The Queen at 519, the question is whether "without the consideration of the fresh evidence by the jury, a miscarriage will have occurred: the trial will not have been a fair trial". The learned Chief Justice explained (also at 519) that:
"In this situation, the court must as before decide the credibility and the cogency of the fresh evidence in order to determine whether, when the fresh evidence, if believed by the jury, is taken with the evidence given at the trial in that sense most favourable to the accused which reasonable men might properly accept, it is likely that a verdict of guilty would not have been returned. In considering the material before it for this purpose, the element of credibility will be satisfied if the court is of opinion that the evidence is capable of belief and likely to be believed by a jury. The court in this instance will not be directly acting upon its own view of the evidence but rather upon that view most favourable to an appellant, which in the court's view a jury of reasonable men may properly take. … In the situation with which I am presently dealing, namely, of fresh evidence not claimed to establish innocence but to be of such credibility and cogency as to be likely to influence a jury away from a verdict of guilty, it is what a reasonable jury might reasonably make of this evidence which is the dominant consideration."
51 In resisting the submissions made on behalf of Ilic, Mr Pallaras drew attention to the fact that there was evidence before the jury that Hunt was hit by Ilic, that that punch was to the eye and drew blood. He submitted
(Page 15)
- that once the jury found those facts, what happened further down the ramp was irrelevant to the question whether or not Ilic caused a wounding. The point, however, is that the new witnesses add considerable support to the defence evidence tendered at trial and this puts a different complexion on Ilic's case.
52 Applying the approach laid down in Ratten v The Queen, I am of the firm opinion that, had the new evidence been led at the trial, there is a significant possibility that the jury, acting reasonably, would not have returned a verdict of guilty. There is a real prospect that such a jury would have considered that the testimony of Mirosevich and Johnston, coupled with the new video evidence, was sufficiently strong to create a reasonable doubt as to whether Ilic struck the blow to Hunt's head.
53 In dealing with the submissions made on behalf of Sammut, Mr Pallaras submitted that on Fiorini's evidence (given at the trial), no-one stood on Hunt's head as Fiorini was in a position to have seen this and he made no mention of this occurring. I am not satisfied, however, from the transcript of the evidence given by Fiorini that Fiorini observed Hunt from the time he was struck by Ross until the time he was struck by Sammut. In my view, a reasonable jury might find that some unknown person stood on Hunt's head in that period.
54 In the circumstances, I am persuaded that there is a reasonable possibility that, had the new evidence been led at the trial, a reasonable jury might not have convicted Sammut of doing grievous bodily harm. Such a jury might have considered that the evidence that a man stood on Hunt's head created a reasonable doubt as to whether Sammut's punches fractured Hunt's jaw.
Considerations relevant to whether new evidence is "fresh"
55 The conclusions to which I have come depend on whether this Court can have regard to the new evidence when considering whether a retrial should be ordered. It has frequently been said that the court will only take into account new evidence if it is "fresh". Fresh evidence is evidence that was available, or could, with reasonable diligence, have been discovered at the time the trial took place: Mickelberg v The Queen, unreported; CCA, SCt of WA; Library No 990056; 12 February 1999.
56 The general rule is that no miscarriage of justice will result from a failure to lead evidence if the evidence was available or could with reasonable diligence have been available to an accused: see for example
(Page 16)
- Mickelberg v The Queen(1989) 167 CLR 259 per Toohey and Gaudron JJ (at 301). The rationale for this rule was given by Mason J in Lawless v The Queen (1979) 142 CLR 659. His Honour in that case elaborated upon the requirement that only fresh evidence should be taken into account when an appellant seeks that a guilty verdict be set aside and a retrial ordered, and stated (at 675 - 676):
"[I]t is not permissible for a court of criminal appeal to set aside a conviction if the newly adduced evidence, not being fresh evidence strictly so called, reveals no more than a likelihood that the jury would have returned a verdict of not guilty. Two considerations operate to bring about this result. The first is that in a criminal trial the accused is entitled to decide how his case will be conducted, in particular, what evidence he will call. He makes this decision in the light of the knowledge that he is tried but once, unless error or miscarriage of justice results in a successful appeal. He cannot therefore conduct his defence by keeping certain evidence back in the expectation that, if he is convicted, the existence of the uncalled evidence will provide a ground for a second trial at which a different or refurbished defence may be presented. Accordingly, an accused person, if convicted, generally cannot complain of a miscarriage of justice if he deliberately chooses not to call material evidence, it being actually available to him at the time of the trial, or if he fails to exercise reasonable diligence in seeking out material evidence.
The second consideration is that there must be powerful reasons for disturbing a conviction obtained after a trial which has been regularly conducted. No such reason for disturbing a conviction presents itself, if all that emerges is that the accused has deliberately chosen not to call evidence or that he has failed to search out evidence with reasonable diligence, unless the evidence not called at the trial demonstrates that the accused should not have been convicted of the offence charged. 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."
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- what the witness might say; Lawless v The Queenper Barwick CJ (at 666) and Mason J (at 677); see also Mickelberg v The Queen, (1989) 167 CLR 259. It is accepted, however, that in a criminal trial "great latitude" is afforded to an accused in determining whether evidence is fresh or only new. This was emphasised in Lawless v The Queen by Stephen J (at 669):
"The concept of fresh evidence, as evolved in the cases and in particularly in Ratten v The Queen, a decision of this Court which was expressed as containing a definitive pronouncement of appropriate principle, requires that the evidence in question, not being before the jury at the trial, was not then available to be called by the defence. If, on the contrary, the defence knowing of that evidence, elected not to tender it, it will not be fresh evidence. Again, if it is evidence of which the accused 'bearing in mind his circumstances as an accused, … could reasonably have been expected to become aware and which he could have been able to produce at the trial' it will not be fresh evidence. However, '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', it being 'probably only in an exceptional case' that evidence not actually available to him is to be denied the quality of fresh evidence. So it is that it is evidence which is 'actually or constructively available' to the accused but is not called by him that is spoken of as lacking the quality of fresh evidence. These passages all appear in the judgment of the Chief Justice in Ratten's case [at 517], with whose judgment three other members of the Court concurred."
59 In a sense, there is an inconsistency between the approach to be adopted in dealing with a submission that an accused should be acquitted on the ground of new evidence, and that required in dealing with a submission that a new trial should be ordered. In both instances, the determinative factor is whether a miscarriage of justice has occurred, but in the former the determination is based on the new evidence irrespective of whether it is fresh. In the latter, the new evidence is ignored unless it is
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- fresh. It is not clear to me what the rationale is for the "sharp distinction" (per Barwick CJ in Lawless v The Queen at 665) between the two instances. The existence of a miscarriage of justice is the relevant ground on which this Court is empowered to set aside the verdict of the jury and is the essential question in regard to the admission of new evidence: Bradshaw v The Queen, unreported; CCA of WA; Library No 970228; 13 May 1997 per Malcolm CJ. Any qualification or compartmentalising of the inquiry into whether there has been a miscarriage of justice is not based on a rule of law: cfLeuschel v Police (SA) (1999) 75 SASR 231 per Doyle CJ (at 232). There are no fixed rules against which a miscarriage of justice is to be judged: cfR v Williams (1992) 8 WAR 265 per Rowland and Owen JJ (at 277).
60 Accordingly, the "great latitude" to be afforded to an accused in determining whether evidence is fresh is simply a facet of the broader inquiry into whether there has been a miscarriage of justice as contemplated by s 689 of the Criminal Code. This latitude has the capacity to result in a blurring of the boundaries between what might ordinarily be regarded as evidence that is fresh and not fresh. That might be a necessary consequence of the search into the question whether there has been a miscarriage of justice.
61 The importance of the broader inquiry into the existence of a miscarriage of justice was emphasised by Gibbs CJ in Gallagher v The Queen (1986) 160 CLR 392. The learned Chief Justice referred to s 6(1) of the Criminal Appeal Act 1912 (NSW) (which was in terms similar to s 689(1) of the Criminal Code) and said (at 395):
"Although many cases have provided a gloss on the words of s 6 and similar provisions, it is important to remember that the fundamental question is whether a miscarriage of justice has occurred, and that the principles that may be extracted from the authorities 'should not … be regarded as absolute or hard and fast rules': Green v The King (1939) 61 CLR 167 at 175. The circumstances may vary widely, and it is undesirable to fetter the power of Courts of Criminal Appeal to remedy a miscarriage of justice."
62 See also Whitehorn v The Queen (1983) 152 CLR 657 at 660 - 661 per Gibbs CJ and Brennan J.
63 The significance of the context of the inquiry into whether there has been a miscarriage of justice is well illustrated by Leuschel v Police. In
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- that case, the appellant was convicted of breaking and entering. After the trial he remembered that he had been on a trip to Adelaide at the time of the offence and this constituted new evidence of an alibi. Other persons gave evidence at the appeal supporting the alibi evidence. The question was whether the new evidence was fresh. Doyle CJ said (at 232) in this regard (the italics are his Honour's):
"There are many cases that consider the approach to be taken to an appeal against conviction that relies for its success upon evidence, tending to disprove guilt, that was not presented at the trial. Usually a court will not set aside a conviction on the basis of such evidence if, with reasonable diligence, the evidence could have been presented at the trial: Gallagher v The Queen (1986) 160 CLR 392. This approach is not required by a rule of law. The ultimate issue for an appellate court is whether there has been a miscarriage of justice. The approach that a court usually takes, in deciding if there has been a miscarriage of justice, reflects an aspect of our system of trial, and a practical approach to the administration of justice. At trial the prosecution and the defence each have the opportunity to present their case. It is at trial that the evidence upon which innocence or guilt is to be decided must be presented. There are powerful reasons of justice and efficiency for holding each party to the course adopted at trial. Failure by the defence to present available evidence will usually mean that a court of appeal will hold that the evidence cannot be relied upon in support of an appeal. But, as I have already said, the ultimate issue involves considering the requirements of justice.
The appellant's reasons for not presenting evidence in support of his alibi at trial was an unusual one. At first sight, I found it difficult to believe. His evidence was that prior to the trial he had no recollection of his movements on the night in question. Having no recollection of his movements, and no particular explanation to offer for the presence of the fingerprint, he gave no evidence. … Until reminded of all this by his mother [when she visited him in gaol after he had been convicted], the appellant had no memory at all of the incident.
Ordinarily, a claim to have completely forgotten such an incident would not be credible. Nor would a claim of forgetfulness be a sufficient basis, in any event, to permit reliance on appeal upon proof of an alibi. However, after
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- hearing the appellant, his parents and the appellant's friend, I was satisfied that the appellant was telling the truth when he said that he had forgotten the trip to Adelaide. I was also satisfied that this was an exceptional case in which the interests of justice required that I consider whether there was a significant possibility that the appellant would have been acquitted if this evidence had been presented at trial."
64 I shall approach the question whether the new evidence tendered by Ilic and Sammut is to be regarded as fresh in accordance with the broad approach as to whether there has been a miscarriage of justice, affording them the latitude in this respect that the authorities require.
Is the new evidence to be regarded as fresh?
65 Mirosevich and Johnston were known to Ilic and Sammut. They appeared on the videotapes and on the staff roster provided to the Crown and the defence. Both were known to have been very near the scene of the assaults. They were not contacted by Ilic or Sammut and did not give evidence at the trial.
66 The failure by Sammut to make inquiries of Mirosevich and Johnston is of less moment than that of Ilic. The principal new evidence relied on by Sammut, namely, that a man was observed standing on Hunt's head, was not generally known before or at the trial. This incident did not concern the events on the ramp (which were part of the video) and it is not said that Sammut was there when the man stood on Hunt's head. Although Sammut knew that Mirosevich had been inside the club and had taken Hunt down the ramp, there was nothing to suggest that Mirosevich might have seen anything thereafter that bore upon the cause of the fractures to Hunt's jaw. Moreover, Sammut did not know that Douglas had a statement from Mirosevich in his possession and did not know about this particular evidence. In my opinion, the new evidence relied on by Sammut is to be regarded as fresh.
67 Ilic falls into a different category. It should have been obvious to Ilic that Mirosevich and Johnston would have seen what occurred and would be able to give relevant evidence. Ilic said, however, that he did not approach Mirosevich because he did not have a friendly relationship with him. Ilic said that he had problems with Mirosevich in the running of the club and Mirosevich had apparently been responsible for Ilic receiving pay cuts. There were apparently bad feelings between them. Moreover,
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- Ilic is Serbian and Mirosevich is Croatian, and this, too, played a part in Ilic's decision not to speak to Mirosevich.
68 Ilic said that on one occasion he asked Johnston if he would be able to testify for him, but Johnston did not say anything and just walked away. Ilic said that he did not try again to obtain Johnston's help as Mirosevich and Johnston were best friends and for that reason he thought that Johnston would refuse to help him. Ilic said "there was no use" in him speaking to Johnston about the charge against him. That, he said, would be a waste of time. Ilic believed that because of his relationship with Mirosevich and Johnston, they would not help him. This remained his attitude even though his solicitors told him that it would be in his interests to call them as witnesses and advised him to try to get information from them. Ilic did request another crowd controller and presumably McInerney or Fiorini for information, but not Mirosevich and he did not press Johnston to assist him.
69 Ilic asked Douglas to help him and Douglas said he would think about it but did not respond further. Ilic did not ask him again. Ilic said that he did not know that Mirosevich and Johnston had given statements to Douglas. He left Douglas's employ about six months before the trial and did not approach him when his trial was imminent.
70 Ilic, therefore, made a deliberate decision not to speak to Mirosevich and Johnston, knowing that their evidence might assist him. Normally, a decision of that nature would preclude the evidence in question being categorised as fresh. Nevertheless, for the following reasons, I have come to the conclusion that the evidence should be taken into account.
71 Firstly, although Ilic did not pursue Mirosevich, Johnston and Douglas with due diligence, it is apparent that, had he done so, it is highly unlikely that they would have agreed to tell him what they knew. Both Mirosevich and Johnston indicated that they would not speak without the authority of their employer. They were not given authority to speak to the police or to anyone else. It is for that reason that they did not come forward prior to the trial and inform the prosecution of what they knew. Douglas was asked by the police for information, but omitted to give them the statements by Mirosevich and Johnston that had been given to him. In effect, he lied to the police by telling them that he had no information about the charges brought against Ilic. Douglas knew that Ilic was being charged and that the statements would assist Ilic, but he did not give the statements to the authorities. He deliberately provided as little information to the police as possible. In summary, prior to the trial, the
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- attitude of these three witnesses was one of obstructiveness and complete unco-operation. In the circumstances, I do not think that their evidence was "available" to Ilic.
72 Secondly, although Ilic did not pursue inquiries with due diligence, and deliberately decided not to press Mirosevich and Johnston for information, I am satisfied that he did so because of his view of their personal attitude to him and his belief that they would not assist him. Relevantly, he did not refrain from making inquiries because he suspected that they would produce evidence against him, or because he was making a tactical decision in regard to the conduct of the trial. He was motivated solely by a subjective view that their feelings would be antagonistic to him and a belief that they would not help. In regard to the latter I consider, for the reasons I have expressed, that he was correct in his assessment.
73 Thirdly, I consider the evidence of Mirosevich, Johnston and Douglas to be cogent and potentially significant.
74 Additionally, in the context of the inquiry into whether a miscarriage of justice occurred, it is to be noted that the police themselves did not press their inquiries of Mirosevich, Johnston and Douglas. Their omission in this respect has to be seen in the light of the fact that they were told by Ilic that Ross was the man who struck Hunt and there were eyewitnesses nearby when this occurred, namely, Mirosevich and Johnston. The police attempted to interview Ross, but Ross refused to speak to them. The Crown did not subpoena Ross to attend at the trial. The failure of police to seek out and interview a potential witness may give rise to a miscarriage of justice: Wyatt v The Queen (1992) 35 FCR 422; Hallett v The Queen (1995) 3 NTJ 1422 (at 1422 – 1443 per Gallop J); Boyce v Nunn (1997) 138 FLR 475. As Martin CJ pointed out in Boyce v Nunn (at 480), however:
"In some circumstances it may be, as suggested in Wyatt [v The Queen (1992) 28 FCR 61], that no injustice arises because the accused can be shown to have had an opportunity to secure the evidence for other reasons."
75 It seems that in this case Mirosevich, Johnston and Douglas were unavailable, equally, to both the police and the defence. Neither made diligent efforts to get these witnesses to testify. That being so, it would be unfair, in my view, to ignore their evidence because the defence did not, with greater diligence, seek to make inquiries of them.
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76 In the circumstances, I consider that, like Leuschel v Police, this is an exceptional case in which the interests of justice require the new evidence to be taken into account.
Conclusion
77 Having determined that the new evidence should be regarded as fresh, I consider, for the reasons I have previously expressed, that the verdicts of the jury should be set aside and retrials ordered in respect of both Ilic and Sammut. In this regard I should mention that Mr Quail (counsel for Ilic) submitted that a new trial should not be ordered on discretionary grounds and referred to cases such as Dobson v The Queen unreported; CCA, SCt of WA; Library No 8213; 11 April 1990. I have pointed out, however, that there was evidence on which a jury could have convicted Ilic and Sammut and I am not persuaded by Mr Quail's arguments in this respect.
78 WALLWORK J: I agree with the reasons for judgment and the conclusions which have been reached by Ipp J. There is nothing I wish to add.
79 MURRAY J: In my opinion each of these cases ought to have been brought as an application for leave to appeal and I propose to deal with each upon that basis.
80 I am most grateful to have been able to read in draft the reasons for decision published by Ipp J, with which I note Wallwork J agrees. I have the misfortune to find myself in the minority, because in my opinion, leave to appeal should have been refused in each case.
81 Like Ipp J, I consider that each application turns upon the question of the fresh evidence. In neither case, in my view, was the new evidence adduced of such cogency as to compel the conclusion on the part of this Court that the guilt of the applicant is not established having regard thereto, although I accept that the evidence of the new witnesses was of sufficient cogency that it might not be discarded out of hand: cf Ratten v The Queen (1974) 131 CLR 510, 518. I have nothing to add to the reasons of Ipp J in that regard.
82 The outcome of these applications therefore depends upon whether the new evidence was fresh evidence in the sense that, it being evidence
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which was available at the time of trial, and given, as I consider to be the case, that it is of sufficient cogency to require its consideration, it could not with reasonable diligence have been available to an accused person: Ratten and Mickelberg v The Queen (1989) 167 CLR 259.
83 I accept that, as it was put in Lawless v The Queen (1979) 142 CLR 659, considerable latitude should be afforded in deciding whether or not the accused could, with reasonable diligence, have been expected to have obtained the new evidence and to have had it available at the trial. But in my opinion, it is important to maintain that approach in its full effect.
84 A criminal trial is an adversarial procedure. When, in accordance with the evidence led at the trial, a conviction results which, as in each of these cases, is unaffected by error in the trial process, by any error of law, or by any question that the verdict may be unsafe or unsatisfactory for any reason, that verdict should not be lightly set aside.
85 Where on appeal or upon an application for a new trial new evidence is seen to be available which is of a kind which might have affected the verdict returned by the jury, it seems to me that the law is that unless the evidence is of such cogency as to persuade the appellate court of the incapacity to establish the guilt of the accused person, no miscarriage of justice will be seen to have occurred unless it is the case that the evidence was truly not available and that it could not have been available by the exercise of reasonable diligence by the accused person in the course of preparation for the trial.
86 Where the new evidence is not of itself persuasive of innocence, its absence from the trial does not establish a miscarriage of justice unless it was reasonably to be regarded as unavailable to the accused person. In my respectful opinion, nothing which was said in Leuschel v Police (1999) 75 SASR 231 reflects any departure from or relaxation of that principle.
87 With great respect to the contrary view, I am unable to regard the evidence of Mirosevich and Johnston in the case of Ilic, and Mirosevich in the case of Sammut, as being "fresh" in the sense in which that term is understood by the law. Indeed, in my opinion, the evidence of Ilic established in his case that that was not so. He knew these witnesses were available and that they might give relevant and important evidence. He declined to pursue what they knew because Mirosevich was Croatian and therefore unlikely to be well disposed to Ilic, who is Serbian, and because Johnston was said to be a friend of Mirosevich. Further, Ilic declined to
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- have these persons called, although he was well aware that they would have relevant evidence to give, and although he had been advised by his solicitors that they should be called. No reason was advanced why Sammut should not have inquired of Mirosevich, among others who were present, what he knew which might be of assistance to Sammut in his defence.
88 It matters not, in my view, that the police investigators did not discover this evidence, and I would refuse leave to appeal in each case.
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