Kidd v The Queen

[2014] NSWCCA 319

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Kidd v R [2014] NSWCCA 319
Hearing dates:	2 June 2014 and 12 December 2014
Decision date:	19 December 2014
Before:	Ward JA at [1]; Fullerton J at [130]; Hamill J at [131]
Decision:	Application for leave to extend time for filing of notice of appeal refused
Catchwords:	CRIMINAL LAW - appeal and new trial - particular grounds of appeal - fresh evidence - general principles - appeal against conviction - whether the evidence is "fresh" - whether fresh evidence credible - whether the evidence would have been likely to have caused the jury to have entertained a reasonable doubt about the guilt of the accused CRIMINAL LAW - appeal and new trial - procedure - notices of appeal - time for appeal and extension thereof - whether leave to appeal should be granted out of time where the prosecution does not oppose the grant of leave
Legislation Cited:	Crimes Act 1900 (NSW) Criminal Appeal Act 1912 (NSW)
Cases Cited:	Gallagher v The Queen [1986] HCA 26; (1986) 160 CLR 392 GAR v R (No 1) [2010] NSWCCA 163 GAR v R (No 2) [2010] NSWCCA 164 GAR v R (No 3) [2010] NSWCCA 165 Kidd v R [2009] NSWCCA 229 Mickelberg v The Queen [1989] HCA 35; (1989) 167 CLR 259 R v Abou-Chabake [2004] NSWCCA 356; (2004) 149 A Crim R 417 R v Young [1999] NSWCCA 275 Ratten v The Queen [1974] HCA 35; (1974) 131 CLR 510
Category:	Principal judgment
Parties:	Robert Douglas Kidd (Applicant) Crown (Respondent)
Representation:	Counsel: P Lange (Applicant) S Herbert (Respondent) Solicitors: M Bowe (Applicant) Solicitor for Public Prosecutions (Respondent)
File Number(s):	2002/00013968
Publication restriction:	Nil
Decision under appeal	Date of Decision: 2004-07-30 00:00:00 Before: Karpin DCJ File Number(s): 2002/00127000

Judgment

1. WARD JA: Mr Kidd wishes to appeal from his conviction in 2004 on a count of aggravated armed robbery. To do so, he requires an extension of time pursuant to s 10(1)(b) of the Criminal Appeal Act1912 (NSW) for the filing of his notice of appeal.

1. Mr Kidd contends that evidence that was not in his possession at the time of the trial has now become available to him and that this evidence is credible and capable of raising a reasonable doubt as to his guilt; hence there has been a miscarriage of justice.

1. The evidence in question is from a prison inmate ("GAR") as to statements allegedly made to him by Mr Kidd's former de facto wife (Ms Meagher) during the course of a relationship between them for (on any version of events) a short period of time in late 1999/early 2000 to the effect that certain items of jewellery from the robbery for which Mr Kidd was convicted had been given to her not by Mr Kidd (as was her evidence at his trial) but by a Mr Ian Smith. Additionally, Mr Kidd relies upon GAR's evidence that Ms Meagher had suggested to him back in 1999/2000 that she wanted Mr Kidd (who was then awaiting sentence on other crimes) to remain in prison (to take advantage of his son's entitlement under the estate of his deceased mother) as evidence of a motivation on her part to lie about the jewellery.

1. While Counsel for Mr Kidd, Mr Lange, acknowledges that the evidence of motivation in and of itself is not sufficient to warrant a re-trial, he submits that when coupled with the evidence as to receipt of the jewellery from Mr Smith the evidence warrants a new trial.

1. It is said that the evidence was neither actually nor constructively available to Mr Kidd at the trial because there was no reason for him to suppose that GAR would have had any relevant evidence to give.

1. In these reasons a pseudonym is used for GAR and his former wife EHR because of the possibility that identification of GAR would identify the victim in unrelated sexual assault matters.

Extension of time for appeal

1. The time within which an appeal should have been brought expired on 27 August 2004. Mr Kidd's application for an extension of time is supported by an affidavit of his solicitor, Mr Michael Bowe, sworn 30 December 2013. Mr Bowe deposes that Mr Kidd first sought advice as to the prospects of an appeal based on fresh evidence in or around October 2011. Mr Bowe refers to the steps taken in the time taken between Mr Kidd seeking that advice and the filing of the application in the present proceedings. The Crown does not object to the extension of time sought.

1. In exercise of the discretion whether to extend time, the court will have regard to the prospects of success of the appeal (R v Young [1999] NSWCCA 275). For the reasons below, I am of the view that the application for an extension of time should be refused but that even if leave were to be granted this appeal would be dismissed.

Background

1. Mr Kidd was convicted on 4 March 2004, following a trial in the District Court before Karpin DCJ and a jury, on a count of aggravated armed robbery contrary to s 97(2) of the Crimes Act 1900 (NSW).

1. The robbery took place on 11 September 1997 during a home invasion at the Burraneer home of a Mr Madden and his now deceased partner, Ms Falloon. A number of men armed with weapons including shot guns entered the Burraneer home late at night, wearing balaclavas, and stole a quantity of cash and jewellery, including a gold cross and chain and a customised gold Mercedes emblem key chain. Mr Madden was severely beaten during the home invasion.

1. At around the time of the offence, the Burraneer premises had been the subject of surveillance by undercover police officers involved in surveillance duties with the National Crime Authority. During the course of that surveillance, police officers had recorded the presence (on 4 July 1997) near the Burraneer home of a vehicle registered to Ms Meagher. They also recorded the presence on that date of a vehicle registered to a Mr Eric Murray. They had observed a number of men wearing dark clothing and beanies near the home. The timing of this incident coincided with evidence later given by Mr Madden and Mr Smith of an attempted break-in a week prior to the actual home invasion.

1. On 12 December 1997, police searched Ms Meagher's home pursuant to a search warrant and seized a cross and chain which Ms Meagher was wearing (later identified by both victims as proceeds of the Madden robbery) as well as a Mercedes and car keys with a gold Mercedes emblem key chain. Sawn off shot guns, fluorescent police vests, jewellery and other items that were found to be the proceeds of the robbery were found by the police at Mr Murray's address.

1. There was an investigation by the NSW Crime Commission in 1998 as to the robbery, in the course of which (on 12 February 1998), Ms Meagher was required to attend and give evidence at Mr Kidd's trial. Ms Meagher admitted that she had lied on oath to the Commission (T 327- 329). Ms Meagher did not give the police any information about the Madden robbery until an interview on 10 November 2003 (T 348.56). Her attendance at that interview followed a request made by Mr Kidd's trial Counsel that she do so (T.372.1).

1. Mr Kidd and a number of others (Mr Smith, Mr Middleton, Mr Markovich and a Mr Capsis) were charged with offences relating to the home invasion. Mr Smith, who by then had been arrested in Queensland in relation to an unrelated matter, was given an indemnity from prosecution in respect of his involvement in the offence, conditional upon his active cooperation in the criminal proceedings against his co-offenders in the robbery (T 97.40). Mr Smith subsequently received a reduced sentence in an unrelated matter in Queensland for his assistance to the authorities (T 175-6).

1. Mr Kidd denied the charge. At the time of the trial, Mr Kidd had already been convicted, and was awaiting sentence, on two unrelated counts of armed robbery.

The Trial

1. The trial at which Mr Kidd was convicted commenced on 16 February 2004, after an earlier aborted trial.

1. The Crown case, in summary, was that: Mr Kidd had known Mr Madden since the early 1990s, when the former took his car to be repaired at the latter's car yard; prior to the robbery Mr Kidd had information from a security guard who had provided security for the Burraneer home as to the security systems at the house and as to there being cash on the premises; Mr Smith (who had been a corrections officer at a correctional centre in Queensland) and Mr Middleton (a former inmate at that correctional centre) were friends; Mr Middleton introduced Mr Smith to each of Mr Kidd, Mr Markovich, Mr Murray and Ms Meagher; there were a number of occasions when one or more of the co-offenders carried out a reconnoitre of the Burraneer home and meetings took place with a security guard (Mr Capsis) in which he provided a remote control for the alarm system; on the fourth reconnoitre the alarm was tested; there was an unsuccessful attempted entry to the house when pot plants were removed from a side wall and a sensor light was triggered; Mr Madden said that on that occasion the alarm wires were cut; on the night of the robbery, Mr Kidd, Mr Smith and Mr Middleton carried out the home invasion while Mr Markovich's role was to cut the telephone wires; Mr Markovich was wearing a police vest; the offenders went to and from the property by boat; they then drove to an apartment owned by Mr Kidd in Bronte and divided the proceeds of the robbery.

1. Mr Smith admitted his involvement in the robbery. Mr Smith's evidence at the trial included that: he had overheard a conversation between Mr Middleton and Mr Kidd with regard to going to look at a house that he had been told they were planning to do a home invasion on; they went to look at a house at Burraneer that he was later informed belonged to Mr Madden and Ms Falloon (T 103.30; 107.17); Mr Kidd was present at the first reconnoitre of the property in June 1997 (T 106.5ff) and at the second reconnoitre of the property on or about 4 July 1997 (T 112.21); he had met Mr Kidd outside a unit in Drummoyne when there was discussion about the plan to travel to the property by boat (T 117.10ff); Mr Kidd was present at the fourth reconnoitre of the property (T 123.19ff). He also gave evidence of an occasion when they had gone to the home and removed pot plants from a side wall accessing the area from a neighbouring property which triggered a sensor light (T 107-110). Mr Smith gave evidence as to Mr Kidd's role during the home invasion (see from T 142.42- 161.37); and as to the division of the proceeds of the robbery at the unit in Bronte (T 164.34-166.44).

1. It was Ms Meagher's evidence that: Mr Kidd had spoken of his involvement in the robbery (T 308.34-48); that Mr Kidd told her that there was a nice gold chain amongst the jewellery that he would give her and that he did so at his unit in Bronte (T 306.14-17; T 302.36-305.1); and that Mr Kidd had also given her a custom made key ring. She denied that the jewellery had been given to her by anyone else and denied that, among other persons involved in the robbery, it had been given to her by Mr Smith (T 348.26).

1. Ms Meagher also said she had been told by Mr Kidd of an earlier attempt to break into the Madden home during which wires were cut (T 310). Ms Meagher said she was told by Mr Kidd that a security guard was providing information regarding the home and that the house had two security systems, one of which was back to base.

1. Mr Madden gave evidence that Mr Kidd was not one of his assailants (T 78.41 - T 80.17). He also gave evidence of an attempted break-in some weeks before the home invasion when two large cement pots had been moved and the alarm wires had been cut (T 49.30). Mr Madden gave evidence as to the two security systems at the house and that the security had been provided by Mr Capsis (T 297.50).

1. Mr Kidd denied that he had given Ms Meagher the cross and chain identified as the proceeds of the robbery; denied ever having seen the gold Mercedes emblem key chain; denied being involved in the preparation for the robbery and the robbery itself; and denied making any admissions regarding the robbery to Ms Meagher.

1. At the time of the trial, Ms Meagher had the care of Mr Kidd's son, whose mother had died, and Mr Kidd was on remand pending sentencing on other serious armed robbery charges. Ms Meagher was cross-examined to suggest that she had lied about what she said had occurred with Mr Kidd and that the reason she had lied was because she wanted to retain control of the money from the estate of Mr Kidd's son's mother (T 364.22- 366).

1. In the course of the summing up, the trial judge said that the evidence of Mr Smith was at the nub of the trial because that essentially was the direct evidence that Mr Kidd was involved in the matter; and directed the jury that if the jury did not accept Mr Smith's evidence placing Mr Kidd in the crime as beyond reasonable doubt then the jury would have to acquit Mr Kidd. The jury was directed that it must look at Mr Smith's evidence carefully.

1. The trial judge reminded the jury that both Mr Smith and Ms Meagher were admitted perjurers. In particular, the trial judge reminded the jury that Mr Smith was someone who, on his own admission, had committed serious criminal offences; had lied to the NSW Crimes Commission; had gained a considerable advantage from the information provided to the authorities; and had been given an indemnity from prosecution for the Madden robbery based upon his undertaking to give truthful evidence in the Kidd trial. The jury was cautioned carefully to consider those matters when assessing his evidence.

1. The trial judge told the jury that Ms Meagher also fell into the same category of "potentially unreliable evidence". The trial judge told the jury to bear in mind Ms Meagher's admissions about lying to the NSW Crime Commission and reminded the jury of the suggested motive for her to give false evidence, namely her desire to retain control of Mr Kidd's child who had been in her care since 1998. The trial judge reminded the jury that the accused's counsel had suggested that the motive was for Ms Meagher to retain control of a substantial estate worth in excess of $3 million. The trial judge also noted that the estate was in fact controlled by the Public Trustee who paid money to Ms Meagher for the care of the child and to whom Ms Meagher must account.

1. The trial judge directed the jury that the evidence of Mr Smith and Ms Meagher must be looked at separately and with great care; and that the jury should also look at the suggested ulterior motives either might have had and the explanation given for telling lies to the NSW Crime Commission.

1. The jury retired on 3 March 2004. A guilty verdict was returned on 4 March 2004.

1. Mr Kidd was sentenced to a term of imprisonment of 10 years commencing on 26 August 2009 and expiring on 25 August 2019, with a non-parole period of seven years and six months to expire on 25 August 2015. Mr Kidd appealed unsuccessfully against the sentence imposed on him (Kidd v R [2009] NSWCCA 229).

The fresh evidence

1. As noted above, the principal evidence that Mr Kidd now seeks to rely upon is testimony from GAR to the effect that, while he was in a relationship with Ms Meagher (which he puts in his affidavit as being from December 1999 to March 2000), at a time when Mr Kidd was in prison in Queensland for other offences, Ms Meagher suggested that they could steal Mr Kidd's son's estate if Mr Kidd agreed to her adopting his son; that Mr Kidd would have to be killed if he ever got out of prison "as he would never let us get away with stealing his son's inheritance"; and also said words to the effect that:

This problem may never arise as Bert won't be getting out of prison if I have anything to do with it. The New South Wales Crimes Commission is very interested in some jewellery that I received from Smith.

and:

I will do something with the Crime Commission and get Bert.

1. Mr Kidd adduced evidence from GAR's former wife ("EHR") to corroborate the evidence given by GAR as to his relationship with Ms Meagher. In her affidavit, EHR deposes that GAR was released from a term in prison in October 1999; that on his release he moved in with her at her Mount Vernon property; that, just before Christmas 1999, Ms Meagher and some others visited the home at Mount Vernon and that GAR left with them the next morning; and (at [12]) that GAR came back "after six to eight weeks" and that they then travelled for three or four months around Australia but that their relationship ended in Mildura in around May/June 2000.

Significance of the fresh evidence

1. Mr Kidd does not submit that the fresh evidence is of such cogency as to warrant that the conviction should be quashed. Rather, what Mr Kidd seeks is a new trial.

1. Mr Kidd submits that the central importance of GAR's evidence must be understood in the light of the evidence of Mr Madden, who had known Mr Kidd for some 15 years before the robbery but who had given evidence that Mr Kidd had not been one of his assailants (T 78.41 - T 80.17). It is submitted that there was little by way of corroborative evidence which would have enabled the jury accurately to assess the veracity of Mr Smith's evidence and hence the finding of the jewellery was a crucial piece of evidence for the prosecution.

1. It is noted that, of the six areas of evidence that the Crown in summing up asked the jury to think about when considering the evidence of Mr Smith and Ms Meagher (T 484.54 - T 485.2), two related to the recovery of the jewellery from Mr Kidd and Ms Meagher's home. Counsel for Mr Kidd submits that at trial no explanation could be proffered for the finding of those items in Ms Meagher's possession and hence it is said that the jury would almost have been compelled to conclude that Mr Smith's evidence should be accepted, since there appeared to be no real link between Ms Meagher and the robbery other than Mr Kidd.

1. Mr Lange submits that the fresh evidence also demonstrates that there was, at the time of the offence, a "link" between Ms Meagher and Mr Smith which was downplayed at the trial by both witnesses. In that regard, reference is made to the following exchange in the examination in chief of Mr Smith (at T 100.41-43):

Q. Do you recall meeting anyone else through Mr Kidd?

A. I met his spouse, de facto at that stage, I don't believe they were married, Joe [sic] or Josephine.

1. It is suggested that use of the words "Jo or Josephine" must have been calculated to give the impression that the acquaintance was no more than fleeting. Without knowing how that answer was given, it is impossible to conclude that this was a deliberate attempt by Mr Smith to downplay any sort of link or relationship between the two. If anything, the comment that he did not think they were married at that stage suggests some familiarity with the couple's personal situation rather than a downplaying of his acquaintance with one or both of them.

1. Mr Kidd also refers in this context to Ms Meagher's evidence (at T 306.19-39 and T 307.49-56) that it is said gave the impression that there was only a limited association with Mr Smith. In the first of those transcript references Ms Meagher gave a general description of Mr Smith (including that he "was a family man" and that he had a wife and one or two children). Again, that suggests that there was at least a sufficient connection between them to have given Ms Meagher some knowledge of his family circumstances. In the second, Ms Meagher responded to a question whether she had ever seen Mr Smith in the company of Mr Kidd by recounting an occasion when Mr Smith came to her apartment unannounced. She was not very happy about that and they left; and then, when asked who she meant when she said "they left", Ms Meagher said: "Robert Kidd, and well I didn't know his name, I know it was Ian, but they used to call him something else". GAR deposes in his affidavit to Ms Meagher having identified Mr Smith by his Christian name as well as his surname. GAR says that he finally came forward as he believed in the interests of justice that his evidence concerning Mr Kidd should be heard.

1. It is submitted that, in the absence of any real connection between Ms Meagher and Mr Smith, there would have been no basis for a rational jury to conclude that Mr Smith had given Ms Meagher the proceeds of the robbery; that necessarily, on the evidence, the only person who could have done so was Mr Kidd; and hence that the possession of the jewellery by Ms Meagher was significantly corroborative of Mr Smith's account.

1. It is submitted that the import of GAR's assertion that Ms Meagher had said that the Crime Commission was very interested in jewellery received from a man called Mr Smith was that it provided a context in which Ms Meagher might lie, Ms Meagher having appeared before the Commission in 1998 and therefore knowing of its interest in the proceeds of the robbery.

Evidence in response

1. The Crown filed a number of affidavits on the present application. The principal evidence was from Mr Smith and Ms Meagher, each of whom was cross-examined by Mr Lange.

1. In his affidavit, Mr Smith deposes (at [2]) that he was first introduced to Ms Meagher when he and Mr Middleton went to visit Mr Kidd. He says that the longest contact he had had with Ms Meagher was approximately 15 minutes at a Drummoyne residence when, at Mr Middleton's request, he went there to arrange a place for the three to meet; Mr Kidd was not there and he had waited for Mr Kidd to return. He deposes that he could only recall one other time he had contact with Ms Meagher, that being when he went to a location at the Haymarket area and made a call to a phone number supplied by another of the co-offenders (Mr Middleton) when Ms Meagher answered the telephone. Mr Smith did not recall any other contact with Ms Meagher and said that at no time had he ever given her any jewellery or anything else.

1. He deposes (at [2]) that:

After the home invasion on Madden's in Burraneer, Robert Kidd, Mark Middleton, George Markovich and myself met at Robert Kidd's penthouse apartment in Bronte. At this time, the cash was divided evenly between us. Robert Kidd asked if anyone would like any of the jewellery. I took an emerald ring, Mark and George said they didn't want to take anything. Robert Kidd said he knew someone that he could sell the jewellery to. That was the last time I saw any of the jewellery other than the emerald ring that I took.

1. In Ms Meagher's affidavit, she deposes that she does not know GAR but that she had met him, in company with an older gentleman, at her then home in Clontarf or Balgowlah Heights. Her recollection was that the initial meeting "could have been something to do with borrowing or paying for a car". She deposes that:

They did several things, painting, removal of rubbish, they helped out around the house. They were always together. They asked me if I could give them some work, I gave them heaps of work. They also kept complaining that they wanted more money off me, and that they were promised money. The only thing I can remember with [GAR] was that I asked questions and he said he needed money, he had no money, needed some work and he had no driver's licence. He said he had a family, a wife. I avoided going home because I didn't want them to be there, and they had nowhere to go. I also got attacked in Newtown around that time, and I didn't want to go home. I have had no contact with them since that time. I had no relationship or sex with [GAR] or the older bloke.

In relation to Ian Smith, I know him as the security guard. He was always very polite, and he had a wife and family, kids. All I can say is that he's a nice man, didn't have much to say. I met him at Balmain and Drummoyne. I met him with Bert [Mr Kidd] at Wrights Road in Drummoyne at my place, and Bert and him went outside. I met him several times at my place at Drummoyne, he came to see Robert. I can't think if I met him at Haymarket. I may have spoken to him over the phone, but not knowing it was him. I think I may have had a conversation with him about the police going to his house and that he was on the run. I haven't had anything to do with him since.

During the time that I had anything to do with Ian Smith, I never received any jewellery from him nor did I receive anything else from him at all.

1. Also filed was an affidavit from a detective sergeant of police, annexing signed interview notes of an interview (not electronically recorded), with GAR in May 2014. I will refer in due course to some of that record of interview. GAR did not challenge the accuracy of his written statement of interview at the police station. He accepted that he had signed the document and initialled every page. He said that he had read it quickly but he did not think that the police officer was "verballing" him (AT 20.18 - 27).

1. The Crown also filed a number of affidavits providing evidence of matters going to GAR's whereabouts at the time of his claimed relationship with Ms Meagher and to the times when Mr Kidd and GAR were in Goulburn jail in the relevant period.

1. First, an affidavit from a detective inspector of police in the robbery and serious crime squad, annexing an information report that the detective inspector had prepared at the conclusion of an investigation into the alleged involvement of GAR in armed robbery offences. Reliance was placed on this solely to note the reference in the report to various of the particular addresses for GAR (which did not include an address at Clontarf or Balgowlah Heights, those being the suburbs where it was variously suggested Ms Meagher had lived at the time).

1. Second, an affidavit sworn by the acting director and secretary of the New South Wales State Parole Authority who deposed to enquiries that had been caused to be made in relation to the conditions of GAR's parole. That enquiry disclosed that there were a number of case notes that indicated GAR was residing at different addresses, including an address at Clontarf (as per a case note 5/1/2000); a property in Gol Gol (case note of 1/3/2000) and Mildura (case notes 15/3/2000 and 14/4/2000). There was also reference to "A Intake data for date 01/2000)" indicated that GAR was residing at an address at Mount Vernon.

1. Third, an affidavit as to the periods of time when each of Mr Kidd and GAR were incarcerated at Goulburn jail.

Determination of application

1. The test for the admission of fresh evidence is that set out in R v Abou-Chabake [2004] NSWCCA 356; (2004) 149 A Crim R 417 per Kirby J(at [63]). His Honour noted that what the Court is ultimately concerned with is whether there has been a miscarriage of justice:

...The rationale for setting aside a conviction on the basis of new evidence or fresh evidence is that the absence of that evidence from the trial was, in effect, a miscarriage of justice. That evidence must be examined in the context of the evidence given at the trial (Mickelberg v The Queen (1989) 167 CLR 259, per Toohey and Gaudron JJ at 301).

1. His Honour there noted that where a new trial is sought or the evidence is not of such cogency that innocence is shown to the Court's satisfaction or the Court entertains a reasonable doubt as to guilt, the following issues arise:

Is the evidence fresh?

If it is, is it "credible" or at least capable of belief (Gallagher v The Queen (supra) per Gibbs CJ at 395), or "plausible" (Mickelberg v The Queen (supra) per Toohey and Gaudron JJ at 301)?

If it is, would that evidence, in the context of the evidence given at the trial, have been likely to have caused the jury to have entertained a reasonable doubt about the guilt of the accused (Gallagher v The Queen (supra) per Brennan J at 410) or, if there is a practical difference, is there a significant possibility that the jury, acting reasonably, would have acquitted the accused (Gallagher v The Queen (supra) per Mason and Deane JJ at 402)? See Mickelberg v The Queen (supra) per Toohey and Gaudron JJ 301-302.

1. As to what constitutes a miscarriage of justice in such a case, in Gallagher v The Queen [1986] HCA 26; (1986) 160 CLR 392, Mason and Deane JJ said (at 402):

The appellate court will conclude that the unavailability of the new evidence at the time of the trial involved such a miscarriage of if, and only if, it considers that there is a significant possibility that the jury, acting reasonably, would have acquitted the applicant of the charge if the new evidence had been before it in the trial.

See also Gibbs CJ at 396-397 and Ratten v The Queen [1974] HCA 35; (1974) 131 CLR 510 at 520 per Barwick CJ.

1. I turn then to the three issues identified in Abou-Chabake that must be answered in the affirmative for Mr Kidd's conviction appeal to succeed.

Is the evidence fresh evidence?

1. The first issue is whether the evidence is "fresh" evidence. The Crown did not contend that GAR's evidence was available to Mr Kidd at the trial nor that it could have been available to him through the pursuit of reasonably diligent enquiries. That said, it appears from a question and answer given when Ms Meagher was cross-examined on a voir dire at the aborted trial, that Mr Kidd's then trial Counsel must have had some instructions as to the existence of a relationship of some kind between GAR and Ms Meagher, since otherwise the question is inexplicable. However, there is nothing before this Court that would enable a conclusion to be made that GAR's evidence was constructively available to Mr Kidd at trial. Accordingly, the evidence should be treated as "fresh" evidence.

Is the evidence credible or capable of belief?

1. The second issue is whether that evidence is credible or at least "capable of belief" or plausible. In that regard, it is not sufficient that GAR's evidence as to a relationship with Ms Meagher be capable of belief. What must be credible, in the relevant sense, is his evidence as to what Ms Meagher said to him about the jewellery from the robbery and her desire to take steps that would keep Mr Kidd in prison. The present case is similar to Gallagher v The Queen, where Gibbs CJ observed (at 396) that "the critical question is whether the evidence was apparently credible". His Honour went on (at 397) to explain that in many cases the appellate court "will be able to do no more than decide whether or not the evidence is apparently credible, or capable of being believed".

GAR's credibility

1. GAR was cross-examined by audio-visual link. He is presently serving a lengthy custodial sentence in Goulburn correctional centre. He was not a particularly reliable historian, though in part that may be explained by the time that has elapsed since the events in question.

1. He was uncertain about various matters, such as the reasons his parole was revoked (AT 8.31), although he was prepared to agree to these being an inability to adapt a normal lawful community life, failure to report to his supervising officer and failure to reside at an agreed address. He agreed that it was a condition of his parole that he inform the parole authority of where he resided at any given time but did not remember whether he had changed addresses with the parole authority at some stage (AT 9.6). He said that checks were conducted on where he lived at the time only rarely and intermittently and that if there was going to be a check he would have made sure he was there (AT 9.10).

1. GAR denied knowing who Mr Kidd was in 1999 (AT 10.16) but that answer must be understood in light of his later evidence (at AT 12.22) that he was aware who Mr Kidd was before he had contact with him at Goulburn jail because Ms Meagher had told him who he was. In parts of his oral evidence, GAR seemed to equate knowing someone with knowing of them or knowing someone who knew them (eg at AT 14.11; AT T14.18 in relation to Mr Madden).

1. GAR said that his first contact with Mr Kidd was at Goulburn jail between June 2004 and March 2005 (AT 10.45). He agreed that at that time he knew who Mr Kidd was (AT 10.48). He denied that Mr Kidd had contacted him before he first saw Mr Kidd at Goulburn jail in June 2004 (AT 13.4). His first written communications with Mr Kidd were not until after Mr Kidd had left Goulburn jail (which the Court was informed was in November 2011) (AT 13.9). He said that Mr Kidd made contact with him in writing weekly (AT 12.47) but that he was "certainly not" a friend of Mr Kidd (AT 13.25).

1. GAR accepted that it was possible that he had had contact with Mr Kidd during later periods when he was at Goulburn jail (around March 2006; between July 2006 to September 2007; between June 2008 to August 2009; between September and October 2009; and November 2009 and April 2010) but in essence his evidence went no further than that he was sure that if Mr Kidd was there he would have seen him but he did not know if Mr Kidd was there at those times (see AT 11.16-48). GAR conceded that there had been plenty of opportunity for he and Mr Kidd to concoct this fresh evidence but was adamant that that had not happened.

1. GAR's evidence as to how it was that he came to disclose the information contained in his affidavit to Mr Kidd's solicitor is both contradictory and implausible.

1. GAR was not certain whether direct communications with Mr Kidd started before he made his affidavit in the proceedings (AT 12.5). He had no recollection when he first communicated directly with him (AT 12.10). He had no idea when it was that Mr Kidd first contacted him and could not hazard a guess when asked for his best estimate at the earliest time that he had communication with Mr Kidd.

1. In his 2014 interview with police, GAR is recorded, when asked if Mr Kidd had asked him to supply an affidavit on his behalf, as saying "he probably did, it's an obligation, doesn't mean I trust him"; that Mr Kidd did not tell him what to put in the affidavit; and that Mr Kidd was "a prolific letter writer, all the time. I'm not here because of him. I'm here cause it's the truth. My relationship with Josephine is true, the other stuff is my personal views" (A. 24).

1. The detective sergeant's notes further record that GAR said that the nature of his contact with Mr Kidd whilst GAR was in custody in Goulburn was: "A few letters. He was here, so I'd see him here in passing, not contact. The contact has been in relation to my association with Josephine. It's pretty basic". (A.11)

1. In cross-examination on this application (AT 15.17), GAR at first said that the first time he was asked to recall the conversation that he had put into his affidavit was "When the solicitor came and saw me." At AT 15.20, he amended that to say that actually there was a telephone call prior to that with the solicitor and he thought it was on the phone call and the solicitor came down after that. At AT 15.25, he said that the solicitor had contacted him. At AT 15.33, he said that probably the first time he told anybody about what he claimed Ms Meagher had said to him was "the solicitor that I told when I spoke to him on the phone".

1. At first blush the implausibility of this is obvious. Unless GAR had told someone about the alleged conversations with Ms Meagher, it would have required sheer clairvoyance on the part of Mr Kidd's solicitor to have suddenly contacted GAR to see if he had any fresh evidence or relevant information to give. In response to a question from the bench as to whether he had been contacted by the solicitor "out of the blue", GAR said:

A. Yeah he did. I got called over to the reception and they said that there was a legal conference and they handed me a telephone and I spoke to him. I spoke to him for probably half an hour.

1. GAR said that, aside from the occasion when he spoke to the solicitor, he had not spoken to anyone else about what was in the affidavit (AT 15.49). Pressed on that, at AT 16.10, GAR said that he could not recall anybody particular that he would have spoken to but that he may have told other people and that he could not particularly recall the conversation but he may well have spoken about it.

1. Later, he resiled from the suggestion that the contact had come out of the blue (AT 26.49):

Q. But out of the blue one day Bert Kidd asks you to do an affidavit to the solicitor about Josephine?

A. Not out of the blue, no, not out of the blue, but I don't remember the circumstances leading to it, I do not, but it's not out of the blue."

1. GAR then maintained that he had a clear recollection that Mr Kidd had asked him to supply an affidavit on his behalf (AT 22.43) and said he could see Mr Kidd yelling at him across the triangle (at the jail) "if I get a solicitor to come and see you will you give an affidavit in relation to you knowing Josephine?" (AT 22.49). He placed that conversation as having happened not long before Mr Kidd left Goulburn jail because he said it was not long after that the solicitor spoke to him on the telephone (AT 23.4 - 14). He then said (AT 23.22) that he did not have the clearest recollection of Mr Kidd asking him to do an affidavit but he thought "that's how it would have went down". He said that he remembered Mr Kidd yelling at him across the yard; he did not remember the actual words he used but he thought he would say he did ask him to do an affidavit. Then (at AT 23.47): "Well I don't remember it per se but I'm thinking that that's what happened, I've got some sort of a memory of it but I don't have a clear recollection of it, no".

1. For Mr Kidd to have yelled across the prison yard at GAR to enquire whether GAR would sign an affidavit would explain how it was that Mr Kidd's solicitor came to contact GAR but does not explain how Mr Kidd would have become aware that GAR would have the relevant information.

1. Mr Kidd's case on this application is, in effect, that Ms Meagher had denied knowing him; that GAR was able to dispute this and thus cast doubt on the reliability of Ms Meagher's testimony; and that it was not until GAR spoke to the solicitor about having had a relationship with Ms Meagher that he volunteered the information that Ms Meagher told him that she had received the jewellery from Mr Smith (that just happens to be what Mr Kidd maintains is the critical evidence to contradict Mr Smith's otherwise unshaken testimony).

1. GAR said in cross-examination he had been asked by Mr Kidd to do an affidavit attesting to Ms Meagher having known him because she had denied having known him. At AT 27.40, he said that he was told that Ms Meagher had denied at the trial having known him. It is not clear by whom he says he was told that information. Relevantly, there was no suggestion that in the trial in which Mr Kidd was convicted that that had ever been an issue or the subject of any evidence. Rather, it was raised in a single question and answer in a voir dire at the aborted trial. The Court was provided on the second day of the hearing of this application with one page of the transcript of the voir dire (T 5/2/04 p 19) in which the relevant exchange was recorded.

1. GAR suggested that he could have had a conversation with his former solicitor (a Mr Green) in about 2003 (or even as late as 2005) about Ms Meagher denying that she knew him (AT 28.14) but nowhere was it made clear how that would have arisen in the context of the criminal matters on which Mr Green was acting for GAR in the relevant period.

1. On GAR's account of events, therefore, he was asked by Mr Kidd to provide an affidavit attesting to the fact that he knew Ms Meagher (and hence to support a conclusion that Ms Meagher was lying when she had denied that at an earlier aborted trial) and that it was not until he spoke with Mr Kidd's solicitor that he volunteered the information as to what he recalled Ms Meagher saying to him about the jewellery. GAR denied (at AT 24.8) having told Mr Kidd what he said Ms Meagher had told him about the jewellery. (See also transcript at AT 24-25.)

1. At AT 25.38, GAR said that he now knew that he could be "of some assistance" and "I can see a bloke that's being loaded up by Josephine" (i.e., Ms Meagher) but then said that he did not know when he had learnt that Mr Kidd had been or was being "loaded up" by Ms Meagher. He explained what help or assistance he thought he could give Mr Kidd by coming forward with the information (at AT 25.48/26.6):

I think me coming forward now will help Mr Kidd by the fact that Josephine said she didn't know me and she clearly did and that I lived with her -

...

And the fact that Josephine with me had conspired to take the boy's money and that Josephine was worried about the fact that if Bert found out that that there would be major repercussions and something would have to be done about Bert and that's it, that's what I thought that would assist him and that's the information that I've got to give.

1. It beggars belief that GAR would not have thought fit to relay to Mr Kidd the conversation in which he says Ms Meagher was suggesting she would "load" him up yet was apparently forthcoming about his relationship with Ms Meagher. Moreover, it is clear that GAR knew about the concept of a conviction appeal based on fresh evidence as he had run such an appeal three times before in his own unrelated matters (GAR v R (No 1) [2010] NSWCCA 163; GAR v R (No 2) [2010] NSWCCA 164; GAR v R (No 3) [2010] NSWCCA 165). Therefore, whether or not he appreciated the significance for Mr Kidd's case of the source of the jewellery found in Ms Meagher's possession, he cannot have failed to appreciate the significance of a witness professing an intention to falsify evidence in order to set someone up for a crime.

1. At AT 26.15, GAR said "Josephine could see that I was reticent about having discussions about having to deal with Bert and she said that something, it may not ever get to it, there's a piece of jewellery that the Crime Commission were interested in that I got from Smith and I said Jockey Smith and she said "No Ian Smith". So I told the solicitor that, that she thought she could do something with that to get Bert put away". When asked whether he had ever told Mr Kidd about that conversation with Ms Meagher he said:

A. Well I don't recall speaking to Bert about that per se. However, you've got to understand that the situation we're in is not a situation where we can just have general conversation or private conversation. You know, he's in one section of the prison and I'm in another section of the prison, it's not easy for us to communicate. (AT 26.26)

1. GAR was vague as to other aspects of the matter such as when he became aware that Mr Madden was alleged to be the victim of the home invasion offence:

A. I don't know. That's to see - that's what I mean. I shouldn't even be - I don't know who told me or - you know the police - you know I'm not certain, I'm not certain. I don't know where - where that - it could have come from Josephine. I'm not certain so really I'm out of my depth here. I - it's not something I know anything about so I shouldn't be discussing it. It's just rumour and innuendo. (AT 14.31)

At AT 14.32, he said that it could have been fourteen years ago that he became aware or it could have been a few years ago.

1. As to the length of his claimed relationship with Ms Meagher, GAR's evidence varied. In his affidavit, he said he was in a relationship with her for three months. In cross-examination he said (at AT16.18):

A. Well it was some period. It was somewhere around that time yes. Might have been a bit less. Might have been a little bit more. It was around that period. Wasn't long.

...

A. Yeah well, I think it was a bit less than that [December 1999 - March 2000], I think that's - it might have been a month less than that. I think that's incorrect.

1. He later said that it might have been a month less than he had said in his affidavit but he thought it was about three months; and then (AT18.8) he said he would accept it was possibly nine weeks but certainly not two; it was "around three months" but he did not know how long, "if it was a month less it could have been a month less it certainly wasn't two weeks". He said that the shortest timeframe that would accord with his recollection of how long he was living with her was "around three months" (AT 18.18).

1. He said that he thought Ms Meagher knew Mr Smith "quite well" and had "some sort of a relationship with him" but said he did not know exactly what the circumstances were (AT 18.39). He said that that was what Ms Meagher had told him (though there is nothing in his record of interview or his affidavit as to this) and, when pressed on this, said that he had an actual recollection of her telling him that she had a relationship with a man by the name of Ian Smith and that she told him that during the period that he was with her (AT 19.25). He also said that she had named other men during that period. He said that he remembered the name Ian Smith because he had initially thought it was someone called "Jockey" and because he had a friend named Ian (AT 19.15).

EHR's credibility

1. GAR's claim to have had a relationship with Ms Meagher is corroborated to an extent by entries in a diary that his former wife (EHR) kept in 1999 (Exhibit C). In that diary there is a notation on 2 October 1999 "[GAR] home", which EHR said was the day her husband was released from incarceration (AT 32.5). On 26 December 1999 there was an entry "[GAR] left". (Insofar as that suggests that GAR did not leave until after Christmas, it is inconsistent with a statement that EHR made to the police in 2002 to the effect that she and the children were left alone at Christmas.)

1. At a police interview on 23 January 2002, EHR is recorded as saying "I think he had been in the home about two weeks when he ran off with a woman because the children and I spent Christmas alone". The Crown submits (and there is force in this submission) that it is more likely that the version of events given in 2002 would be accurate than a version many years later.

1. Prior to the entry "GAR left" there was a diary entry for 21 December 1999 that reads "lunch, finance, Josephine". EHR said (at AT 32.47) that Ms Meagher had visited her home at Mount Vernon that day. (Ms Meagher denies that she ever visited the Mount Vernon property; denies knowing where Mount Vernon is; and denies knowing anyone who owned a five hectare property.) EHR said that she was told of the visit early that morning by her husband and that the purpose of the visit "was allegedly to discuss finance with my husband for a car that he was purchasing for me".

1. This is consistent with GAR's recollection that Ms Meagher came at one stage to the Mount Vernon property. When asked how he knew Ms Meagher, the note taken by the detective sergeant of his interview with GAR records that he said he "got taken to - someone wanted to borrow my van, Ray Murray, I went over there to move stuff" (A.18); but then that he had known her "Since '99. She came to my property" (A.19), and the explanation is consistent with Ms Meagher's evidence that she had a motor dealer's licence.

1. However, it is not readily able to be reconciled with GAR's statement to the police as to the first day he met Ms Meagher. Asked in the police interview how the relationship with Ms Meagher started, GAR is recorded as having said that: "I walked out into the lounge room. She had all her clothes off & said "I really like you". That was the first day." (A. 20). That seems bizarre if the first meeting was at the Mount Vernon property when there were at least four people having lunch together.

1. Again, somewhat inconsistently even in the course of the police interview, when GAR was then asked if Mr Kidd was aware back then that he was in a relationship with Ms Meagher he said that it "wasn't really a relationship" (A. 21).

1. Whether or not Ms Meagher ever actually visited the Mount Vernon property, EHR's diary notes are consistent with GAR having left that property (and his then wife) for a period from late December 1999 and the parole notes indicate that he had given a Clontarf address as the place he was residing in early January 2000. Ms Meagher's evidence on this aspect of the matter (as on most others) was confusing and unreliable.

1. As to the time period in which GAR was away, EHR's evidence was confused. In the absence of her 2000 diary she was unable to give any clear evidence on this issue (which suggests that her evidence as to when GAR had left is also based largely on a reconstruction from her 1999 diary notes). At AT 33.40, she said:

A. It was - it was several weeks but I'm not in possession of the 2000 diary [which was apparently tendered as evidence to the police] so I'm unable to be specific but it was, I thought, two weeks or more.

1. At AT 35.4, when shown her police statement, EHR said "Yes, and I'm really not sure of how long he was with her but I thought it was several weeks."

1. She said at AT 35.29 that GAR returned to her home one day to tell her that he was intending to have a child with Ms Meagher and that he was going to leave and live with her. She then said that he returned to the home on a different occasion to take up residence with her again and that that was when they decided to try and reconcile the marriage and made plans to travel around Australia (AT 35). The reference to having a child with Ms Meagher could be consistent with a plan to adopt Mr Kidd's child being discussed rather than GAR contemplating having his own child with Ms Meagher (whose evidence at the trial was that she had been undergoing IVF treatment around the time of the Madden robbery). Discussion of a plan to do away with Mr Kidd may also be consistent with GAR's statement that he left Ms Meagher because he thought she was a "dangerous" person to be with, though GAR's previous convictions suggest he was no shrinking violet.

1. Ultimately, while GAR's evidence is capable in my opinion of causing a jury to conclude that he had some kind of relationship with Ms Meagher, there are aspects of that evidence that are inherently implausible - one of which being that in the course of what (on any version) was a relatively brief relationship Ms Meagher, she and GAR would be concocting a plan to fabricate evidence against her then husband.

Mr Smith/Ms Meagher

1. Mr Smith gave evidence that in 1997 he was living in Queensland with his wife and children (AT 43.24); that in between visits that he made to Sydney in relation to particular jobs he returned to Queensland (AT 43.28); that he had met Mark Middleton during work at Queensland (AT 43.32); and that by association with him he came to meet Mr Kidd. He firmly denied ever having given anything to Ms Meagher (AT 43.41; 45; AT 46.25).

1. Mr Smith confirmed his affidavit evidence that there were two meetings that he had at a Drummoyne address where he met Ms Meagher (AT 44.22). He agreed that he had attended there a number of times but said that most of the times they talked with Mr Kidd on the grounds behind the building and did not go into the apartment. That is consistent with Ms Meagher's evidence that she did not like them in her apartment and that Mr Kidd used to go outside to talk with the men.

1. There was a direct inconsistency between Mr Smith's evidence (see AT 44.36) that he had not attended the Balmain premises (he said he had no recollection of a residence in Balmain and did not know where Balmain was) and Ms Meagher's evidence that he had visited there several times. Ms Meagher said the Balmain premises were both business and residential premises but that he had attended the Balmain premises with Mr Kidd.

1. There was also an inconsistency as to whether he had, as Ms Meagher suggested, had a telephone conversation with her in which he had indicated he was "on the run". Mr Smith denied that he had had any other phone contact with Ms Meagher other than when he called the Haymarket premises and said he would have had no reason to talk to her about the police going to his home or being on the run (AT 45).

1. At AT 46.34, Mr Smith denied that he had had any contact with Ms Kidd other than that he had stated. It was not put to Mr Smith in cross-examination that he had had a relationship of any particular kind with Ms Meagher.

1. Mr Smith was clear and concise in his evidence and was not shaken in cross-examination. By contrast, Ms Meagher was confused in many aspects of her evidence, which she gave in a vague and vacant manner.

1. An example of this occurred at the commencement of her evidence in chief:

Q. At any stage did you receive a gold cross and chain from Ian Smith?

A. Yes, I did.

Q. From Ian?

A. From Ian, I did.

Q. You're saying Ian Smith?

A. Ian, the security guard - sorry, Robert Kidd gave me the gold chain, yeah.

1. The general impression Ms Meagher gave when giving her evidence was that she was confused. Her response to the question put to her at AT 47.30 was given in a mechanical fashion and is not relied upon by Mr Kidd other than as a matter that might bear upon her credibility. Ms Meagher did not appear to be focussing on the questions asked of her and I would place no weight on that answer. She gave no appearance of giving any real thought or consideration to what she was being asked. Insofar as the answer at AT 47.33 commenced "From Ian", my impression was that Ms Meagher was mechanically repeating the question not proffering that as part of her answer.

1. Ms Meagher nevertheless firmly denied (AT 48) having received anything at any time from Mr Smith; denied telling GAR that she had received any jewellery from Mr Smith or was going to do something with the Crime Commission to set up Mr Kidd; and, in her affidavit, denied any sexual or other relationship with Mr Smith.

1. Her answers in cross-examination were inconsistent in other aspects. She first said she was not clear what Mr Smith's occupation was (AT 48.27); but then referred to the "security guard" and agreed that she did know him to be a security guard (AT 48.38/41). Later, at AT 60, she seemed to have no difficulty remembering that Mr Smith was or had been a security guard, saying that "The security guard has never given me anything".

1. Ms Meagher said that she had met Mr Smith just a couple of times at Drummoyne; on the first occasion when he went outside with Mr Kidd and then at Drummoyne "maybe another once or twice after that" (AT 49). As noted earlier, she said that she had met Mr Smith at Balmain "maybe a couple of times there too" (AT 49.48). She said (AT 50) that the meetings at Balmain were meetings where Mr Smith came to meet with her husband. She thought she might have met Mr Smith at Haymarket but a lot of people were there and she did not know. She recalled some conversation about something with the police that might have involved Mr Smith (AT 51) and thought there was something to imply he had a lot of trouble and that it was he who had told her about those problems "vaguely, yes".

1. At AT 51.36, she said:

Q. So based on what you told us earlier, more than twice the number of fingers on your hands [the times he met him at Drummoyne], isn't that right?

A. He was at my place on a couple of occasions, I can't recall how many. I had no interest in him whatsoever.

1. At AT 51.43 she said she had seen Mr Smith at her place a few times. She could not recall if it was two or three but said "he was here but they left and they used to leave".

1. In cross examination (at AT 52) it was put to her that the evidence given by her at the trial (referred to earlier) at T 307.49-56:

Q. Did you ever see Ian Smith in the company of Mr Kidd?

A. Did I ever see Ian Smith? Well, one day he came to my apartment, that was unannounced. I wasn't very happy about that and they left, and I saw them out on the foot.

was to the effect that she had said there that she had only seen Mr Kidd once. That is not how her answer reads on paper - rather it is consistent with her relating one occasion but without indicating one way or the other whether it was the only one.

1. Many of her answers were non-responsive (such as at AT 53.11) when she said "nobody is welcome in my home or business at all unless I approve of it, and I don't approve of it".

1. At AT 54.37, Ms Meagher denied that she was "friendly" with Mr Smith; at AT 54.41 she denied that she met him outside the presence of her husband, Mr Kidd.

1. As to GAR, Ms Meagher said that she met him when he came over unannounced with an older gentleman. Just as GAR's statement in his police interview recounted a bizarre event (namely that on the first day he met her she simply walked into the lounge room without any clothes on), Ms Meagher's evidence was unusual in that apparently she saw nothing strange in people that she did not know appearing unannounced in her lounge room (AT 55.12):

Q. So he just knocked on your door or how did he introduce himself?

A. No, the front door was open, they were in my lounge room.

1. Ms Meagher said that GAR and another man had come over for some work; that she had never seen GAR before that but she thought she had seen the older gentleman, someone by the name of Ray. She said that the door was opened and they just walked in. She said "basically people just want work off me all the time and they had been sent over from the husband". Ms Meagher said that the older gentleman was a friend of Mr Kidd and he came over to help her with odd jobs, painting moving rubbish and then said "they wanted to get a car off me" (AT 56.2).

1. At AT 57.1, Ms Meagher explained that she had a motor dealer's licence and went on to add non-responsively, "and I'm not a benevolent society, nor do I lay-by vehicles, and they were looking for a cheap vehicle. I was quite happy to help somebody, but I'm not there for breakdowns et cetera et cetera et cetera".

1. At AT 57.41, she said she would have seen GAR quite a few times:

I guess - like not a lot, but quite a - I think with the two of them, the older one was sort of in love with me a little bit and he was a little bit upset because the other one was there, and that sort of little feeling I felt was a bit of an issue with these two. So the old one keeps wanting to come over all the time.

1. AT AT 58, Ms Meagher quite emphatically said that no one was allowed to stay at her place and certainly not a person, again volunteering that "I've got no interest".

1. She denied that she had had a relationship with GAR at the end of 1999 and denied that she had gone to his house at Mount Vernon on 21 December (AT 58).

1. Nevertheless, there was an exchange at AT 59 that suggests that GAR thought there was some basis for asking to use her address for parole purposes:

Q. You allowed him to use your address as his residential address for the purposes of parole?

A. No he asked me and I said no.

Q. He asked you. What did he ask you?

A. They keep asking you for stuff all the time and the answer is no I'm not going to give anybody any money or anything.

Q. What did he ask you about?

A. Money, a car.

Q. What else?

A. Borrow this, take that.

Q. But did you ask you whether he could use your address?

A. No one is allowed to do anything. What you do is your own thing but no you're not allowed to be using my address.

Determination on second issue

1. The Crown points to various matters that cast doubt on the plausibility of GAR's version of events.

1. First, the apparent delay in Ms Meagher's implementation of a plan that, according to GAR, had been in Ms Meagher's mind in late 1999 or early 2000. The first occasion on which Ms Meagher told police that Mr Kidd had given her the jewellery stolen from the Madden home was November 2003 (and then only when she acceded to a request from Mr Kidd's solicitor that she speak to the police).

1. Second, the temporal difficulty involved in the proposition that as at the time of the trial in 2004 Ms Meagher would have had the motivation to lie about the jewellery that it is suggested she had in order to prolong Mr Kidd's time in custody (i.e., to facilitate her adoption of Mr Kidd's child or to enable her to have access to his inheritance).

1. By the time Ms Meagher was interviewed by the police on 10 November 2003, Mr Kidd had been convicted of offences in Queensland and sentenced to a term of imprisonment with a non-parole period scheduled to expire in September 2006. On 27 August 2001, Mr Kidd had been charged with a series of offences in New South Wales, not just the aggravated armed robbery at the Madden residence. He was convicted of an aggravated armed robbery at Manly on 26 August 2003 and of an attempted armed robbery at the National Australia Bank on 3 September 2003. Both those matters had been adjourned for sentence until after the trial for the Madden robbery. The Crown submits that the proposition that Ms Meagher might need to fabricate evidence in order to prolong the period of time Mr Kidd spent in custody is therefore unlikely.

1. Moreover, by the time Ms Meagher gave evidence in Mr Kidd's trial, there had already been proceedings regarding the estate of the child's deceased mother and the Public Trustee had replaced Ms Meagher as the trustee of the estate. Ms Meagher was cross-examined at the trial to suggest that her motivation to lie was in order to retain the care of the child and hence the access to funds from the Public Trustee for his care.

1. Ultimately, little reliance can be placed on Ms Meagher's denial of a relationship with GAR but that does make his evidence of the conversation with her (as to the receipt of the jewellery and suggestion that she would falsify her evidence) plausible. Given the temporal issues there is no sensible basis for concluding that she had a motivation in late 2003 (or at the trial in 2004) to lie about the provenance of the jewellery. Mr Kidd was clearly facing a lengthy custodial sentence for other offences; Ms Meagher had already been replaced by the Public Trustee in relation to her stepson's interest in his deceased mother's estate; and the adoption proceedings to which reference was made at her trial had either been abandoned or had otherwise come to an end.

1. The second issue posed in Abou-Chabake cannot be answered in the affirmative in my opinion.

Would fresh evidence have caused jury to entertain a reasonable doubt/is there a significant possibility that the jury, acting reasonably, would have acquitted?

1. The above conclusion means that it is not strictly necessary to consider the third issue posed in Abou-Chabake, namely whether in the context of the evidence given at the trial the fresh evidence would have been likely to have caused the jury to entertain a reasonable doubt as to the guilt of Mr Kidd or whether there is a significant possibility that had the evidence been available the jury, acting reasonably, would have acquitted Mr Kidd. I consider that issue briefly as follows.

1. The Crown submits that, given the strength and cogency of the evidence given in the trial and the nature of the directions given in relation to the evidence of Mr Smith (i.e., that the jury must consider it independently of the evidence of Ms Meagher and must be satisfied of it beyond reasonable doubt), it is not likely that the jury would have entertained a reasonable doubt (and there would not be a significant possibility that the jury acting reasonably would have acquitted Mr Kidd) if the jury had heard the evidence of GAR.

1. The Crown points to the considerable challenge made to the veracity of Ms Meagher at the trial: she admitted to lying on oath when she gave evidence to the New South Wales Crime Commission in February 1998 (T 322-329, T 344-345) when she said that she had never heard of Mr Madden and had never been to Burraneer; that she had given inconsistent evidence on an earlier voir dire about which she was cross-examined at the trial (T 334-336), she having said that Mr Kidd had never discussed with her what happened on the night of the robbery; and that she had given a further version of events to police in an interview about which she was also cross-examined at the trial (T 349-352). The Crown notes that her evidence at trial was contrasted with evidence she had given at an earlier aborted trial in relation to the offence (T 358.6). It was suggested to her that she was making her evidence up as she went along (T 360.5).

1. In effect, the Crown submission in this regard appears to be that further evidence as to Ms Meagher's unreliability as a witness would still not have caused the jury to entertain sufficient doubt as to Mr Kidd's guilt.

1. Insofar as Mr Kidd submits that, other than the finding of the cross and chain and the Mercedes key chain, no other evidence was capable of giving credence to Mr Smith's evidence, the Crown points to the evidence from both that Mr Smith and Ms Meagher that there were two occasions when she drove Mr Kidd to the scene for the purposes of undertaking recognisance and that the police surveillance on 4 July 1997 had identified the cars of Ms Meagher and one of the co-offenders present in the street where the Maddens lived and that a police officer had seen a number of men standing around the entrance to the victim's home dressed in dark clothing, some wearing beanies and others rolling up balaclavas (T 398). It is submitted that this evidence gives substantial credence to the evidence of both Mr Smith and Ms Meagher.

1. Had the evidence from GAR as to the conversation with Ms Meagher in which he claims she said she had received the jewellery from Mr Smith been credible, then there cannot be excluded a possibility that this would have been sufficient to cause the jury to entertain doubt as to Mr Smith's evidence (which the jury must have accepted in order to convict Mr Kidd), even though that possibility seems only a slender one. Mr Smith's evidence on that issue in the present application remained unshaken; both GAR and Ms Meagher were singularly unimpressive witnesses; and there was nothing credible to support the notion of any kind of relationship between Ms Meagher and Mr Smith that would make explicable the giving by him to her of the jewellery. In any event, it is not necessary to decide this third issue, given the conclusion that the fresh evidence is not apparently credible or capable of being believed (in the words of Gibbs CJ in Gallagher to which reference has already been made).

Conclusion

1. The circumstances in which GAR came to give the so-called fresh evidence are such as to give rise to a strong suspicion of concoction of evidence but it is not necessary to make any finding to that effect. GAR's evidence as to the conversation with Ms Meagher as to the provenance of the jewellery is not credible. Nor are the circumstances in which GAR came to disclose that conversation.

1. In circumstances where the appeal lacks merit, leave to extend time for appeal should be refused. Were leave to have been granted the appeal would for the above reasons have been dismissed.

1. FULLERTON J: I agree with Ward JA.

1. HAMILL J: I agree with Ward JA.

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Decision last updated: 19 December 2014