Mannah v The State of Western Australia
[2016] WASCA 19
•22 JANUARY 2016
MANNAH -v- THE STATE OF WESTERN AUSTRALIA [2016] WASCA 19
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WASCA 19 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:33/2015 | 22 OCTOBER 2015 | |
| Coram: | McLURE P MAZZA JA HALL J | 22/01/16 | |
| 30 | Judgment Part: | 1 of 1 | |
| Result: | Applications to adduce fresh evidence granted Applications to extend time refused Appeals dismissed | ||
| B | |||
| PDF Version |
| Parties: | ANDY MANNAH THE STATE OF WESTERN AUSTRALIA CYRILL MANSOUR SERJI MANSOUR |
Catchwords: | Criminal law Appeals against conviction Fresh evidence New witness claiming responsibility for offence Whether evidence fresh Whether evidence cogent, plausible and relevant Whether evidence reasonably capable of affecting outcome |
Legislation: | Nil |
Case References: | Amiss v The State of Western Australia [2006] WASCA 171; (2006) 165 A Crim R 387 Beamish v The State of Western Australia [2005] WASCA 62 Coffman v The Queen [2010] WASCA 54; (2010) 202 A Crim R 375 Craig v The King [1933] HCA 41; (1933) 49 CLR 429 De La Espriella-Vetasco v The Queen [2006] WASCA 31; (2006) 31 WAR 291 Gallagher v The Queen [1986] HCA 26; (1986) 160 CLR 392 Mansour v The State of Western Australia [2015] WASCA 175 Mickelberg v The Queen [1989] HCA 35; (1989) 167 CLR 259, 273 Mickelberg v The Queen [2004] WASCA 145; (2004) 29 WAR 13 PAS v The State of Western Australia [2009] WASCA 210; (2009) 212 A Crim R 546 Ratten v The Queen (1974) 131 CLR 510 The State of Western Australia v Lee [2013] WASCA 246 White v The Queen [2006] WASCA 62 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : MANNAH -v- THE STATE OF WESTERN AUSTRALIA [2016] WASCA 19 CORAM : McLURE P
- MAZZA JA
HALL J
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : WAGER DCJ
File No : IND 1312 of 2012
Catchwords:
Criminal law - Appeals against conviction - Fresh evidence - New witness claiming responsibility for offence - Whether evidence fresh - Whether evidence cogent, plausible and relevant - Whether evidence reasonably capable of affecting outcome
Legislation:
Nil
Result:
Applications to adduce fresh evidence granted
Applications to extend time refused
Appeals dismissed
Category: B
Representation:
CACR 33 of 2015
Counsel:
Appellant : Mr S Watters
Respondent : Mr J C Whalley & Mr L M Fox
Solicitors:
Appellant : Gary Rodgers Barrister & Solicitor
Respondent : Director of Public Prosecutions (WA)
CACR 40 of 2015
Counsel:
Appellant : Mr D J McKenzie
Respondent : Mr J C Whalley & Mr L M Fox
Solicitors:
Appellant : David McKenzie Legal Pty Ltd
Respondent : Director of Public Prosecutions (WA)
CACR 46 of 2015
Counsel:
Appellant : Mr S Vandongen SC
Respondent : Mr J C Whalley & Mr L M Fox
Solicitors:
Appellant : Sklarz Lawyers
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Amiss v The State of Western Australia [2006] WASCA 171; (2006) 165 A Crim R 387
Beamish v The State of Western Australia [2005] WASCA 62
Coffman v The Queen [2010] WASCA 54; (2010) 202 A Crim R 375
Craig v The King [1933] HCA 41; (1933) 49 CLR 429
De La Espriella-Vetasco v The Queen [2006] WASCA 31; (2006) 31 WAR 291
Gallagher v The Queen [1986] HCA 26; (1986) 160 CLR 392
Mansour v The State of Western Australia [2015] WASCA 175
Mickelberg v The Queen [1989] HCA 35; (1989) 167 CLR 259, 273
Mickelberg v The Queen [2004] WASCA 145; (2004) 29 WAR 13
PAS v The State of Western Australia [2009] WASCA 210; (2009) 212 A Crim R 546
Ratten v The Queen (1974) 131 CLR 510
The State of Western Australia v Lee [2013] WASCA 246
White v The Queen [2006] WASCA 62
1 McLURE P: I agree with Hall J.
2 MAZZA JA: I agree with Hall J.
3 HALL J: The appellants, Andy Mannah, Cyrill Mansour and Serji Mansour, were jointly charged with Niraj Singh, with detaining Gary Visanich with intent to gain a benefit contrary to s 332(2)(a) of the Criminal Code (WA) and doing grievous bodily harm to Gary Visanich with intent to maim, disfigure, disable or do some grievous bodily harm contrary to s 294(1) of the Criminal Code. Another person, Stanley William James Nicholls, was separately charged with being an accessory after the fact by assisting the appellants and Singh in order to enable them to escape punishment, knowing that they had committed the offence of doing grievous bodily harm, contrary to s 10 and s 562 of the Criminal Code.
4 The appellants, Singh and Nicholls were convicted on all counts following a trial in the District Court. The appellants now appeal against their convictions on the ground that due to fresh evidence those convictions are a miscarriage of justice. Serji Mansour had a second ground but it was abandoned at the hearing of the appeal. Singh also appealed against his conviction on the same ground but, following the hearing of the appeal, filed a notice of discontinuance. Nicholls has separately appealed against his conviction.
5 Cyrill Mansour was sentenced to a total effective sentence of 12 years' imprisonment. Serji Mansour and Andy Mannah were both sentenced to a total effective sentence of 8 years' imprisonment. Cyrill Mansour appealed against his sentence and that appeal has already been dealt with: Mansour v The State of Western Australia [2015] WASCA 175.
6 Because the ground of appeal against conviction is identical and because the appellants all rely on the same fresh evidence it is convenient to deal with their appeals together. In order for an appeal based on fresh evidence to succeed there are three critical steps. First, the evidence must meet the requirements necessary to be accepted as fresh evidence. Second, the evidence must be sufficiently cogent, plausible and relevant as to be capable of being accepted as true by a jury. Third, when the fresh evidence is viewed in the light of all of the available evidence at trial it must be apparent that there has been a miscarriage of justice in that there is a significant possibility that the appellants would have been acquitted if the fresh evidence had been before the jury at the trial.
7 Each of the appellants requires leave to appeal and an extension of time. It is appropriate to refer to the prosecution and defence cases, the evidence at trial and the fresh evidence before returning to these questions.
The prosecution case
8 The prosecution case was that Gary Visanich, the alleged victim, was a drug dealer operating in Perth. He obtained oil from contacts in Sydney from which he was able to manufacture methylamphetamine for sale in Perth. Some of that product was sold through an associate, Nicole Stokes.
9 Visanich failed to pay for the oil he obtained from Sydney and accumulated a significant debt. He began to receive text messages aimed at recovering the money. These messages were demanding and threatening in content. They were sent by Cyrill Mansour. The messages commenced on 18 November 2011 and included a threat to 'hurt u bad'. On 21 November a further message referred to 'a pak of wild lions chasing there pray'.
10 The text messages continued on 22 November 2011 until approximately 8.00 pm. At that time the appellants and Singh boarded a flight from Sydney to Perth. On arrival they caught a taxi to Ms Stokes' house in Bentley. Prior to arriving Ms Stokes was telephoned by one of the men and asked whether Visanich was there. When she said he was not she was asked to contact him and get him to come to her house. She did that. In the meantime the appellants arrived at the house and were let in by Ms Stokes. They told her not to tell Visanich that they were there when he arrived. She complied because she had two children upstairs and was fearful for their and her own safety.
11 A short time later Visanich arrived in a taxi with a friend of his, Nicholls. They did not have sufficient money to pay the taxi and Ms Stokes went out to meet them and paid the taxi driver. Visanich and Nicholls then came inside.
12 Visanich was immediately confronted by the appellants. He was pushed down onto a couch and Ms Stokes saw him with his hands up trying to protect his head. She did not want to be involved and went upstairs. Over the course of the evening she did not see much but heard Visanich crying for help. She heard sounds consistent with someone being hit. She came downstairs at one point and was asked to go to the kitchen to look at Visanich. She refused but overheard Cyrill Mansour using Visanich's phone. Later three of the four men used her computer to make airline bookings to return to Sydney later the same day. Niraj Singh was left to clean up and the three appellants returned to Sydney.
13 The prosecution case was that during the period that Ms Stokes was upstairs the three appellants and Singh, acting together, seriously assaulted Visanich causing swelling to his head, burns to his arms, chest and neck, and lacerations to the abdomen, right hand, face, forehead and back. The injuries were of such a nature as to be likely to endanger his life. Visanich was so badly injured that he continued to suffer severe cognitive deficits and was unable to give evidence at the trial.
14 Later in the evening, after the other appellants had left, Ms Stokes saw Singh and Nicholls moving the unconscious Visanich to a car outside. The car belonged to Allan Tanner, who had been asked to come to the house to assist with cleaning up. The injured Visanich was taken to a nearby park and dumped near some rubbish bins. Singh and Nicholls then returned and Singh later booked a flight back to Sydney. Visanich was found at the park that morning.
15 The appellants were later arrested in Sydney. When interviewed Cyrill Mansour said that he knew Visanich but had not seen him for quite some time. He said that the last time he had seen Visanich was in Sydney. He admitted to having travelled to Perth on 22 November 2011 but said that his intention was to just look around. He decided he did not like Perth and returned some five hours later. He denied going to Ms Stokes' house in Bentley.
Defence cases
16 The case advanced for each of the appellants was essentially the same. It was that none of them had been involved in assaulting Visanich. In his opening address counsel for Serji Mansour suggested that the real assailants were members of an organised crime gang based in Perth. He said that Ms Stokes was connected with such gangs and had probably acted at their behest in luring Visanich to her house. This was said to provide her with a powerful motive to lie. Similarly counsel for Singh suggested that the real assailants were likely to be members of an outlaw motor cycle gang.
Evidence at trial
17 During the course of the trial the appellants made formal admissions pursuant to s 32 of the Evidence Act 1906 (WA). Those admissions included that Visanich was assaulted by some person on 22 November 2011, that he suffered injuries amounting to grievous bodily harm, and that he was found the next morning at Centenary Park, Manning. They also admitted to flying from Sydney to Perth on the evening of 22 November 2011, on a flight that was scheduled to depart Sydney at 8.00 pm EST and arrive in Perth at 9.55 pm WST. They further admitted flying back from Perth to Sydney on the morning of 23 November 2011, on a flight that was scheduled to depart Perth at 5.50 am (ts 591 - 592, 815 - 816).
18 The following is a summary of the evidence at trial. I have omitted a number of purely formal witnesses and witnesses whose evidence was not in contention.
Text messages - Cyrill Mansour to Gary Visanich
19 From 18 November 2011 a number of text messages were sent from a telephone registered in the name of the wife of Cyrill Mansour, to a telephone used by Visanich. The first three messages sent on 18 November 2011 were in the following terms:
• Time's up this was ur last chance ur a LIER and will be treated that way.
• Told u yesterday after you begged for one more chance not one second more fuk u you need to be taught a very big lesson.
• Last time they were easy on u as a warning this time I'm going to make sure they hurt u cunt hurt u bad I don't want any bits any more I want it all and that's what they'll collect you fuckin DOG MUTT (Exhibit 39 page 4.349).
20 Further text messages were sent to Visanich from a mobile telephone that was later found at Cyrill Mansour's home when a search warrant was executed there. These include, on 19 November 2011, the following:
• What your doing is wrong and deep down you aint going to get away with it and by not answering and hiding just makes it worse you asked for a week its been nearly 3 what happens now has been from your hands no one eles a phone call and the truth would have avoided all of this but when your out to roat someone that’s the last thing on your mind (Exhibit 39, pages 4.345 - 4.346).
21 A response was sent by Visanich in which he promised to pay the money that was owed and asked that 'you stop ringing Nic'. There was a reference to some money being paid the following Monday and the balance the next day. Over the following days there were further exchanges of texts in which Visanich made promises to pay and suggested other ways of clearing his debt. On the afternoon of 21 November 2011 a text was sent by the phone associated with Cyrill Mansour to Visanich, stating:
No dramas like a pak of wild lions chasing there pray Ive had it with you (Exhibit 39, page 4.329).
22 On the evening of 22 November 2011 a further text was sent from the same phone associated with Cyrill Mansour to Visanich in the following terms:
• No dramas. After all your lies and deceit I was willing to work something out that would stop all this crap and you're just not interested one bit. You would rather live in hiding, that's your choice. The boys have already - have been contacted. Sorry, it has to be this way but I want my money (Exhibit 39, page 4.325).
Call charge records and flight booking
23 There was a hiatus of activity of several hours on the Cyrill Mansour telephone, which coincides with the flight from Sydney to Perth. Shortly after arrival a call was made from the telephone associated with Cyrill Mansour to Ms Stokes. Several more such calls were made, the last being after midnight.
24 Other telephone records showed that on 22 November 2011, prior to flying to Perth, there were numerous telephone calls between the offenders. In particular, there were 18 calls between Cyrill Mansour and Mannah, four between Cyrill Mansour and Serji Mansour and ten between Cyrill Mansour and Singh (ts 1707).
25 Police investigations also established that the booking for the appellants and Singh to fly to Perth had been made at the same time and was paid for using the credit card of the wife of Cyrill Mansour. There was other evidence that Cyrill Mansour used that credit card (ts 1680).
Nicole Stokes
26 Ms Stokes said that in November 2011 she was living at a two storey unit in Girton Place, Bentley. She had met Gary Visanich approximately two years earlier in the context of purchasing methamphetamine from him. She was at that time both a user and a dealer in the drug (ts 268, 271).
27 Sometime after they first met Visanich broke up with his partner and moved into a house in the same street as Ms Stokes. He would come to her house and purchase methamphetamine from her. Sometime later she starting purchasing ounce quantities from him to sell. She would sell the drugs and then give him the money. The cost for an ounce was $10,000. She received the first ounce of the drugs from Visanich about two to three months prior to the events the subject of the charges. This occurred on about five occasions (ts 273).
28 At some point Visanich asked Ms Stokes if she knew anyone who could 'do a cook with oil'. She understood this to be a reference to manufacturing methamphetamine. She introduced him to a man named Dave who was nicknamed Paradise ('Dave'). She later saw Visanich provide Dave with some oil and crystal methamphetamine was produced which she sampled (ts 274).
29 About a week prior to 22 November 2011 Ms Stokes received a telephone call from a man who had not previously contacted her. The man did not identify himself but said that she needed to keep Gary with her and not let him go anywhere. The man said that he would eventually like to talk to Gary. She received another similar call a short time later. In this call the man said that he wanted to speak to Gary because he owed them money (ts 287). Ms Stokes handed the phone to Visanich and could hear yelling by the person on the other end. She could not hear what was being said. Visanich threw the phone back to her and told her to hang up which she did. The man then called back again and told Ms Stokes that he knew both of her telephone numbers and where she lived. He said that he had received this information from Visanich. She terminated the call and asked Visanich if it was true. Visanich then typed a message on his phone to the effect that she had nothing to do with it and said that he had sent the message to the person who was calling. She received a number of further similar calls over the following days (ts 291, 299).
30 Visanich called Ms Stokes on 22 November 2011 and said he had no money and nowhere to stay that night. She invited him to stay at her house (ts 303). At about 8.00 - 8.30 pm that evening she received a telephone call and spoke to two people. One sounded like the man who had called previously. The second was a man she knew as Dwayne, who she had met in company with Visanich sometime earlier. Dwayne was alleged by the State to be Niraj Singh (ts 305). She asked if anything was going to happen to Visanich at her house and the first man said that he only wanted to talk and was not going to hurt Visanich. Dwayne said that he was coming over to her house and wanted her address. She then rang her friend Dave and asked him to come over. He said he would come over later (ts 308). She then received another call from the unknown man who asked if Visanich was at her house. She said 'no not yet' and the man said 'good, cos we want to be there before he's there' (ts 309). She asked again if anything was going to happen in her house and Dwayne gave his word that nothing would happen. At around this time she received a call from Visanich and told him that if he got a taxi to her house she would pay for it (ts 309).
31 Sometime later the same evening Ms Stokes received another call from the unknown man who said that they were getting out of a taxi at the top of her street and would walk down to her house. She went to her front door and saw four men getting out of a taxi and walking towards her house. She recognised one of these men as Dwayne. Another of them introduced himself as Syd and said that he had been speaking to her on the phone. Syd introduced another of the men as his brother. The State alleged that Syd was Cyrill Mansour, that the man he introduced as his brother was Serji Mansour and that the fourth man was Andy Mannah (ts 312 - 314).
32 Ms Stokes let the men in. She said that they did not seem aggressive at that stage and she believed that Dwayne was a friend of Visanich because she had seen them together before. The men barged passed her and one of them then asked for gloves. She had some gloves for tattooing purposes upstairs and went to get them. She gave the men the gloves and saw Syd putting electrical tape around his fingers. Syd, and also perhaps the others, put the gloves on (ts 315 - 317).
33 Visanich arrived in a taxi with Nicholls. Ms Stokes went outside to pay the taxi. The men told her that she could do so but she was not to tell Visanich that they were there. After Visanich came inside the men started yelling at him and told Ms Stokes to lock the door (ts 318). She then went to the lounge room where she saw Nicholls sitting in a chair and Visanich curled up in a ball on her three seater lounge. He had his arms and hands above his head. The four men were standing around him yelling. She heard the words 'where's my fucking money' (ts 318). More than one of them said this. She said that they promised that they were not going to do anything and that they just wanted to talk. She was told to shut up and then decided to go upstairs where her children were asleep (ts 319). She heard more yelling including reference to 'about one hundred grand' (ts 325). She later heard Visanich yelling out for help. She also heard a banging noise like someone being hit onto the concrete floor (ts 326).
34 After what seemed like a long time it went quiet. Ms Stokes then heard her friend Dave arrive. She came down stairs because she could hear that his ute had pulled up in her driveway (ts 328). One of the men stopped her on the stairs and asked her who it was who had arrived. She said it was her friend Dave and Dwayne told the others that this was the man who had done the cooking with the oil. Ms Stokes saw Syd using Visanich's phone. She let Dave in and Syd asked Dave to get credit for a telephone. Dave then took one of the men to get credit. They came back a short time later but Dave did not stay (ts 330).
35 Ms Stokes went back upstairs and checked on her children. She remained upstairs and the yelling downstairs continued. She then heard steps coming upstairs and came out of her room and met Syd's brother. He said that they had hurt 'him' (ts 336 - 337). He grabbed her by the shoulders and started pushing her. She said that she had children in the house and someone then called from downstairs. He told her that she was lucky and then went downstairs. She then went to the bathroom and had a shot of methamphetamine to calm down (ts 339).
36 Sometime later Ms Stokes was called downstairs. She went down to the lounge room and saw some of her cushions with blood on them. She was asked to get someone to come and take the cushions away. She rang Dave again. When Dave arrived one of the men asked if he would get rid of Visanich. Both he and Ms Stokes said that was not fair and one of the men then asked Dave to get rid of the cushions. The cushions were placed in the back of Dave's ute and he took them away. A mat from the floor of the lounge room was also taken (ts 343 - 344).
37 At this time Ms Stokes could hear Visanich moaning in the kitchen. She could not see him. The men then asked to use her laptop computer. She cannot remember which of the men asked this. The laptop was near the kitchen and it was necessary for her to type in the password. She did this but could not see into the kitchen at the time. The men spoke about returning to Sydney and about what should be done with Visanich (ts 345). One of them said that he should be taken to 'the middle of nowhere'. Another said to 'chop him up' (ts 347). Dwayne then called a man named Al and either Syd or his brother used a phone to call for a taxi. Ms Stokes was asked by one of the men for the name of the street that was one over from hers and the taxi was directed to go to that street (ts 349).
38 Soon after this three of the men left. Dwayne remained having been told by one of the others that he had to stay behind and clean up. One of them told Ms Stokes that if she said anything to anybody they could easily come back and do the same to her. The brother of Syd asked her to check him for blood before he left (ts 340). One of the men told her that they were from the 'Rebels bikies' and that they had people everywhere (ts 531).
39 Soon after this Allan Tanner arrived. He was driving a white station wagon. Ms Stokes then saw Dwayne and Nicholls carrying Visanich by his arms and legs and placing him into the back of the car. Visanich was limp and looked 'all broken' (ts 352).
40 Ms Stokes went to the kitchen and attempted to clean up. There was blood on the floor and on the cupboards. She used towels and a mop and placed the towels into a plastic bag (ts 353). Dwayne and Nicholls came back later in the car and some bags were placed in the back, including the bags containing the towels (ts 354). Before Dwayne left he told her that she better not say anything to anyone and that she had better keep her mouth shut (ts 355).
41 Ms Stokes subsequently identified Serji Mansour, Singh and Mannah from digiboards and from footage taken at Sydney airport. She also identified Cyrill Mansour, with some hesitation, from a digiboard (ts 383).
42 In cross-examination Ms Stokes admitted that she was a heavy user of methamphetamine at the time and had used some that night. She said that the effect on her was to calm her down and clear her thoughts. She was aware that other people reacted differently to the drug, including by becoming delusional, but that was not something she had ever experienced (ts 576). She also admitted dealing in drugs and possessing mobile telephones in false names for that purpose. She denied ever purchasing drugs from 'organised gangs' (ts 404). She denied seeing Visanich in the company of 'Rebels Gang people', or that he made drugs for any such people. She denied a suggestion that he was beaten because he was dealing with a rival motorcycle gang (ts 407 - 408).
43 It was put to Ms Stokes that Visanich owed her a large amount of money for drugs and that she arranged for him to come to her house where he was then beaten by two men who demanded the money. It was put that Serji and Cyrill Mansour were present at the time but were not involved in the beating and that a deal was agreed with the other two men that allowed the Mansour brothers to leave. Ms Stokes denied that any of this occurred and maintained her evidence (ts 469 - 470).
44 It was put to Ms Stokes that she had been told by police that she could be charged if she did not cooperate. She agreed that this was said and that she had given statements to the police and not been charged (ts 477). However, she maintained that what she had told the police was the truth. She also accepted that she had possessed mobile telephones in false names, had later disposed of them and had cleaned up her house following the attack, but denied the suggestion that this was because she had any involvement in the attack (ts 401, 474).
Kevin Francis McDonough
45 Mr McDonough was the boyfriend of Ms Stokes in 2011. In late November he and Ms Stokes had been having a few arguments and he was staying with a friend (ts 565 - 566).
46 Mr McDonough went to the Girton Place house the day following the incident. He noticed some drops of blood on the kitchen floor, which he cleaned up (ts 570). He noticed that the house appeared to have been cleaned and that cushions were missing from the lounge and a rug from the kitchen (ts 567). He also removed a recording device for CCTV cameras at the house, which he gave to a friend (ts 597).
47 It was put in cross-examination that Mr McDonough was a member of, or in some other way connected with, a motorcycle gang. He denied it. He also denied that he and Ms Stokes were involved in manufacturing drugs for a motorcycle gang (ts 649).
Allan Barry Tanner
48 Mr Tanner is a friend of Visanich. Visanich was staying at Mr Tanner's home prior to the incident. He had been asked to leave because Mr Tanner's wife was annoyed by people knocking on the door looking for him (ts 704).
49 Mr Tanner received a telephone call on 21 November 2011 from a man who said he was a mate of Gary's and was looking for the telephone number of another man. He did not know the man and did not provide the number (ts 707).
50 At around 3.00 am on 23 November 2011 Mr Tanner received a telephone call from Ms Stokes. She asked him to come over, which he did. He assumed it was to share drugs. He was driving his white Commodore station wagon. It took him 30 to 45 minutes to get there. She offered him drugs and when he came inside he saw a man he knew as Dwayne. He had met Dwayne in Visanich's company previously. Dwayne asked Mr Tanner if he could borrow the car to go to McDonalds. Mr Tanner agreed (ts 711 - 713).
51 Mr Tanner tried to use some drugs but could not find a vein and then fell asleep upstairs at Ms Stokes' house. Sometime later he woke up and went downstairs. Dwayne was there and asked Mr Tanner if he could give him a lift to the airport. They first went to Mr Tanner's house where Dwayne used a computer to book a flight to Sydney. It was at about 7.00 to 7.30 am. Mr Tanner then drove Dwayne to the airport (ts 766). Mr Tanner later identified Singh from a digiboard as the man he knew as Dwayne (ts 781).
Nicole Michelle Tanner
52 Mrs Tanner is Allan Tanner's wife. She said that during the period Visanich stayed with them a man she did not know came to the door and said he had come to collect some money. Mrs Tanner asked whether he was looking for Gary and the man said he was (ts 772).
53 Mrs Tanner rang her husband, who was with Visanich, and asked them to come home. When they arrived she pointed out Visanich to the man and they talked for about five minutes before they shook hands and the man left. Gary did not stay at the house that night or any following night (ts 773).
54 The same man returned one evening about two days later. He asked whether Mrs Tanner had seen or heard from Gary. She said she had not. She called Visanich later that night and told him she was unhappy with him 'bringing this stuff' to her house (ts 774).
55 A different man came to the house a day or two later. He was a large man with long black hair. He said he had come looking for Gary. Mrs Tanner swore at him, said that Gary no longer lived there and slammed the door. When Visanich called around some time later he said he would stop these people coming to her house (ts 775).
56 On the morning of 23 November 2011 Mrs Tanner woke to find her husband and a man she knew as Dwayne in the house. Dwayne said he wanted to book a flight back home to Sydney but did not have his credit card. He offered to pay cash if he could use Mrs Tanner's card and she agreed (ts 779). Mrs Tanner later identified Singh from a digiboard as the man she knew as Dwayne (ts 782).
David Andrew Davis
57 Mr Davis is a friend of Ms Stokes. She refers to him by the nickname 'Paradise' Dave. Ms Stokes introduced him to Visanich about two or three weeks prior to the incident. Visanich asked him for information about manufacturing methamphetamine from oil (ts 830).
58 In the period leading up to the incident Mr Davis was contacted by a couple of people asking where Gary was. One of these was a person Mr Davis knew as Dwayne. Mr Davis had met Dwayne at Allan Tanner's house (ts 832).
59 On another occasion Mr Davis had a discussion with Dwayne about property in Perth. Dwayne said he was thinking about selling his house in New South Wales and moving to Perth (ts 833). Mr Davis later identified Singh from a digiboard as the man he knew as Dwayne (ts 847).
60 Mr Davis said that both he and Ms Stokes received text messages claiming that they owed money. He saw such a message on Ms Stokes mobile telephone. He did not owe money to anyone, did not know who the message came from and did not know how the sender got his number (ts 834 - 835).
61 On the evening of 22 November 2011 Mr Davis received a call from Ms Stokes. She said that the people who had sent the demands for money were coming over and he should meet them to let them know he did not owe them any money. He agreed to drive to her house for that reason (ts 838 - 839). He arrived at about 9.30 pm to 10.00 pm. He later accepted that he could have arrived as late as 11.00 pm. He was introduced to a man in the hallway who he described as being of dark hair and solid build. Another man with curly hair was sitting on the lounge. The first man asked Mr Davis if he had any money of his. Mr Davis said he did not. Ms Stokes then asked Mr Davis to drive the man to a service station to get credit for his mobile telephone, which he did. Mr Davis dropped the man back at Ms Stokes house and then returned home. He did not see anyone being assaulted at the house (ts 841 - 844).
Kathleen Margaret McCarthy
62 Dr McCarthy is a rehabilitation physician at the Brain Injury Rehabilitation Unit at Westmead Hospital in New South Wales. She had treated Visanich. He suffered a traumatic brain injury which was consistent with blunt trauma to the head. He had subdural, subarachnoid and inter-ventricular haemorrhages. Such injuries would be caused by significant force or multiple applications of such force. The bases of both eye sockets were fractured. He also had burns to 14% of his body (ts 866 - 867).
63 On first presentation to hospital Visanich had a Glasgow Coma Scale Score of 5/15. His recovery was slow and it took a long time before he was able to be awake, answer questions, move voluntarily or manage basic bodily functions. He had severe memory impairment amounting to a chronic amnesic state. He has pervasive and permanent cognitive deficits that preclude independent living in the community. His deficits interfere with all but the most routine and basic thinking tasks. He is not capable of giving evidence as a witness. The burn injuries required skin grafts (ts 868 - 869).
Abdinasir Hassan
64 Mr Hassan is a taxi driver. He drove Visanich and Nicholls to Ms Stokes' house in Bentley between about 10.00 and 11.00 pm on 22 November 2011. On arrival in Bentley a woman came out of the house and paid the fare (ts 968 - 971).
Kelly Angela Haverson
65 Ms Haverson is a paramedic. She received a call and attended with a colleague at Centenary Park at 6.14 am on 23 November 2011. They gave emergency care to Visanich, who was lying unconscious face down in the dirt. She observed that he was burnt and it appeared that he had been dressed in his shirt after being burnt (ts 977).
Anthony John Walter Ford
66 Mr Ford is an acquaintance of Ms Stokes and Mr McDonough. On 22 or 23 November 2011 he received a telephone call from Mr McDonough who asked him to call by. On arrival Ms Stokes asked him to do her a favour and get rid of her old couches because she was getting new ones. He agreed and he and Mr McDonough loaded the couches onto the back of his Nissan Navarra utility. The couches were left in an alleyway in the next suburb (ts 997 - 998).
David John Fenchel
67 Mr Fenchel lived in the same street as Ms Stokes. At about 5.00 am on the morning of 23 November 2011 he saw a white Commodore station wagon reverse parked on Ms Stokes' driveway. A short time later Mr Fenchel left to drive to work. As he passed Ms Stokes' house he saw a chair near the white Commodore (ts 1004 - 1005).
Parambir Singh Gill
68 Mr Gill is a taxi driver. He was driving his taxi in Bentley on the morning of 23 November 2011. He received a job by dispatch at 4.16 am (ts 1160). He was hailed by a group of men in Dumond Street who asked to be taken to the domestic airport. They asked how long the journey would take and asked him to hurry up. He dropped them off at around 4.40 am (ts 1167).
Police evidence
69 Police inquiries established that a taxi was booked in the name of 'John' for collection from Dumond Street in Bentley at 4.10 am on 23 November 2011. The destination was the Perth domestic airport. Dumond Street is adjacent to Girton Place. A recording of the telephone booking was obtained and the voice of Serji Mansour was identified (ts 1042).
70 A laptop computer was seized from Ms Stokes' house. On analysis it was established that the computer had been used to book a flight to Sydney departing at 5.45 am on 23 November 2011 (ts 1081).
71 Telephone records showed that in the early hours of the morning of 23 November 2011 two text messages were sent from Visanich's mobile telephone to Allan Tanner asking Tanner to ring urgently (ts 1402 - 1403). The prosecution alleged that these texts were sent by Cyrill Mansour because he wanted Tanner to assist in moving the injured Visanich (ts 228).
72 CCTV footage was obtained from a camera at Centenary Park. It showed a white Holden Commodore in the vicinity in the early morning of 23 November 2011 and that had the same appearance as that car belonging to Allan Tanner (ts 1089).
73 After the police commenced their investigation warrants were obtained to intercept the telephone calls of the appellants. Cyrill Mansour and Singh had conversations regarding their concerns about Ms Stokes. On 15 December 2011 Cyrill Mansour asked Singh to call Dave to ask if Nicole is 'alright'. Singh then made several attempts to call Mr Davis. When he ultimately made contact Davis told him the police had picked her up 'a couple of weeks ago' but that she had not been charged (ts 1537). Singh then called Cyrill Mansour and relayed this information. Mansour then said that he had heard that 'she went into protection' and asked 'has she spoke?' (ts 1542). In a later call they discuss 'Allan' also being in witness protection. Still later Singh told Mansour 'She's not going to talk' and refers to the fact that more than two weeks had passed (ts 1549). In a call to Mr Davis, Mansour discussed whether 'she' has 'dobbed everyone in' and expresses concern that nothing has been heard of her for two weeks (ts 1553). Arrangements were made for Mr Davis to fly to Sydney and assurances were sought by Mansour that Mr Davis was not working for the police because 'the worst thing in the world is an informant' (ts 1561).
74 There are other intercepted calls in which Cyrill Mansour refers to himself as Syd and in which he makes arrangements to sell drugs (ts 1563 - 1565).
75 When interviewed by police Cyrill Mansour denied any relationship with Visanich, denied talking to him, denied that Visanich owed him money and denied that he ever used the name Syd. He admitted coming to Perth with 'a few mates' but said that he 'hated the place' and left the next day. He said they 'just drove around and checked it out' (ts 1575). He denied making any telephone calls whilst in Perth or visiting any houses. In particular, he denied going to Ms Stokes' house in Bentley.
Ground of appeal
76 The ground of appeal of the appellant Mannah, as amended at the hearing, is as follows:
Fresh evidence contained in the affidavit of Jonathon Robert Lee dated 23 June 2015 ('Lee affidavit') shows a miscarriage of justice occurred when the appellant was convicted;
Particulars
1.1 The exculpatory Lee affidavit reveals Mr Lee and another male committed the offences for which the appellant was convicted.
- The ground of appeal in respect of each of the other appellants is in similar terms.
The fresh evidence - Jonathan Robert Lee
77 Jonathan Robert Lee was called at the hearing of the appeal. An affidavit sworn on 23 June 2015 was tendered as his evidence-in-chief.
78 In his affidavit Lee states that he is responsible for the offence and has 'wanted to come clean for some time about it'. He states that he had hoped that he would get away with it. He says that this is the last outstanding criminal matter that he has left to deal with and as he is already serving a prison sentence he wanted nothing hanging over his head.
79 He states that on the evening of 22 November 2011 he was in company with another man who he had recently met. He cannot remember this man's name because they had been awake and using methamphetamine together for two days. They ran out of drugs and he asked the man if there were any 'easy targets' around the area. The man told him that he knew 'some girl that sold gear out of Bentley' whose name was Nicky. They then drove to her house which was a two storey house on Girton Place. They arrived just after 4.00 am. He remembers the time because he wanted to get there before people started going to work.
80 On arrival they knocked on the door and Nicky answered. He asked 'can you get us on'. They had no money but he needed to know if she had drugs. She let them in and pointed to an older guy and said 'ask Gary. He's my dealer'.
81 Lee states that he walked straight up to Gary, punched him in the mouth and told him he had better come up with the drugs. Gary said 'you're not getting anything from me'. The other man then started kicking Gary and he ran to the kitchen. Lee then saw an axe on the fridge which he grabbed and hit Gary a few times. He thinks he did this three times. He told Gary that he was not going to stop until he handed over his drugs. The other man picked up a kettle with boiling water and poured it over Gary. Gary was screaming and begging for them to stop. He said that he would take them to his 'stash'.
82 Lee states that he and the other man dragged Gary to the car. He states that the car was a white Commodore wagon, though he does not remember the model or anything else about it. They drove to a park in Wilson which he thinks was called Centenary Park. Gary told them to dig near the bins. They started to dig and Gary tried to run away. Lee ran after him and kicked into him some more. They did not find the drugs so they left Gary by the bins for the council workers to find. By this time it was just after 5.00 am.
83 Lee and the other man then drove back to Nicky's house. They pushed their way in and took her drugs. He estimated that this was two balls or about seven grams of methamphetamine. He was worried about her calling the police so he told her to keep her mouth shut or she would get worse than her mate.
84 Lee states that he had planned to take this secret 'to the grave'. However he believed it was only a matter of time until it caught up with him and that he feels 'sick to my stomach about it'. He says that whilst he cannot change what he has done he figures that telling the truth and coming clean is a good start.
85 In cross-examination Lee said that he first made the decision to confess late last year. At this time he was in Hakea Prison. The appellants Cyrill Mansour, Mannah and Singh were also in Hakea Prison at the same time. He was aware that they were in the prison and that Singh worked in the canteen. He denied speaking to Mansour and Mannah prior to making a statement which he gave to his lawyer, though he did admit talking to Singh casually prior to that time. He said that he was unaware what they were in prison for at that time.
86 At some stage Lee became aware of the outcome of the trial because he saw it on a news bulletin. He heard that the name of one of the defence lawyers was Gary Rodgers and used the telephone account of another inmate to call Mr Rodgers. He then made a statement to another lawyer on 20 November 2014. At this time Lee was facing another charge for a stabbing that had occurred in the prison. He pleaded guilty to that charge on 18 November 2014. In respect of that matter he was represented by a Legal Aid lawyer. He was asked why he had telephoned Gary Rodgers to ask how he should go about confessing to a crime when he had his own lawyer. He claimed that he did speak to his Legal Aid lawyer about it and then said to counsel for the respondent 'this is none of your business really. It has got nothing to do with you. It's - yes, smirk all you want' (ts 22). Lee became angry in his evidence at this point and apologised for doing so.
87 In cross-examination Lee was asked about the man who he said was with him when he committed the crime. He said he could not remember how this man had come to be taking drugs with him. He could not remember when the man had first joined him. He could not remember whether the man had been with him for two days prior to the offence. He said his affidavit 'could be seen as inaccurate' in that regard. He said that he had met the man somewhere but could not remember where. He said the man's name could have been 'Jimmy, James or Jamie, something like that' (ts 24).
88 He said he could recall the name of the street, though he had never been there before. He said he could recall the hour because the sun was going to come up soon and he did not like doing illegal activities in the daylight. He could not recall what he was wearing. He could not recall wearing gloves but believes he would have brought some. He could recall the house was a two storey house and that there was a couch and a kitchen. He could not recall that there was a motorbike in the hallway (something which is apparent from photographs of the scene). He said he could remember that Gary changed his shirt just as they were leaving (ts 27).
89 He said that the intention in going to the house was to rob the occupants. He conceded that he did not have any idea who was in the house or what weapons the occupants may have. He believed it to be a drug dealers house. He had no idea whether the occupants had guns or knives or weapons of any type. Notwithstanding this he and the other man went unarmed. He said that this was because he was told it was 'a girl's house'. When Gary ran to the kitchen he did not pick up the axe, rather Lee saw it on top of the fridge. However he could not recall where the fridge was in relation to the kitchen door. He said that he swung the axe a couple of times into Gary's body but he could not recall where it made contact. He believed it was his chest, but said that that was a guess. He said that the other man flicked the kettle on and when it boiled poured the boiling water onto Gary. At that point Gary had his shirt on. He said that he later told Gary to change his shirt. When asked why, Lee said he was not sure and did not know where Gary obtained a fresh shirt from (ts 29 - 30).
90 Lee said that they were directed to the park by Gary and that he remembered the park by how it looked. He said that he now knows that it is called Centenary Park but he does not recall how he found that out. He said that they dug with their hands. When Gary ran away they chased and caught him and then stomped, kicked, elbowed and punched him with their hands and feet. They then decided to 'give it one last crack to see if the girl had any drugs'. By the time they returned to the house about an hour had passed. He accepted that there was every possibility that she would have rung the police in the meantime. But notwithstanding this they returned to the house and went to the front door. He said that they banged on the door and she let them in (ts 32 - 34).
Fresh evidence - the principles
91 An appeal alleging that there is fresh evidence warranting the quashing of a conviction is an appeal based on s 30(3)(c) of the Criminal Appeals Act 2004 (WA). That section provides that the court must allow an appeal if in its opinion there was a miscarriage of justice (subject to the proviso in s 30(4) of the Act).
92 The first issue to be determined is whether the evidence is fresh. Evidence is fresh if it did not exist at the time of trial or could not with reasonable diligence have been discovered: Beamish v The State of Western Australia [2005] WASCA 62 [9]. This court has a discretion to admit evidence which was not before the primary court: s 39(1), s 39(3) and s 40(1)(c) Criminal Appeals Act. Whilst that discretion is wide it is not intended to abolish the distinction between original and appellate jurisdiction: De La Espriella-Vetasco v The Queen [2006] WASCA 31; (2006) 31 WAR 291 [150].
93 Where an appeal is brought on the basis of fresh evidence, a miscarriage of justice will be established if the appeal court considers that there is a significant possibility that the jury, acting reasonably, would have acquitted the appellant if the fresh evidence had been before it at the trial: Gallagher v The Queen [1986] HCA 26; (1986) 160 CLR 392; Mickelberg v The Queen [1989] HCA 35; (1989) 167 CLR 259, 273 (Mason CJ); Beamish [14] and Coffman v The Queen [2010] WASCA 54; (2010) 202 A Crim R 375 [58] (Martin CJ) [182] (Pullin JA).
94 There have been different formulations of the test, some of which have referred to whether a jury would have been 'likely' to have entertained a reasonable doubt (Ratten v The Queen (1974) 131 CLR 510, 520 (Barwick CJ) and others that have referred to whether a jury 'might' have entertained such a doubt (Gallagher v The Queen (421) (Dawson J) or that this is a significant possibility (Mickelberg (273) (Mason CJ). In Gallagher Gibbs CJ said that:
No form of words should be regarded as an incantation that will resolve the difficulties of every case (399).
95 The focus must, therefore, be on whether in the case at hand the fresh evidence is such as to satisfy the appeal court that there has been a miscarriage of justice.
96 The appeal court has the responsibility of examining the fresh evidence in order to satisfy itself whether the evidence is relevant, credible and cogent: Mickelberg v The Queen [2004] WASCA 145; (2004) 29 WAR 13 [432] (Steytler J); White v The Queen [2006] WASCA 62 and PAS v The State of Western Australia [2009] WASCA 210; (2009) 212 A Crim R 546 [54] - [56].
97 If the evidence is not credible and cogent it may be rejected. The role of the Court of Appeal on a fresh evidence application is to determine whether the evidence is capable of being accepted as true by a reasonable jury: Amiss v The State of Western Australia [2006] WASCA 171; (2006) 165 A Crim R 387 [14] (McLure JA).
98 Cogency is necessary but not in itself sufficient. The evidence must also be material in the sense that it is reasonably capable of affecting the outcome: Gallagher (295 - 396) (Gibbs CJ). This requires an assessment of the fresh evidence in the context of the whole of the evidence given at the trial. The combined effect of the two considerations was stated by Rich and Dixon JJ in Craig v The King [1933] HCA 41; (1933) 49 CLR 429:
It is evident that the exercise of a power to direct a new trial because fresh evidence is forthcoming must be attended both with danger and with difficulty. It is the function of the jury to determine questions of fact in a criminal trial. When they have found a verdict they have performed that duty. If after a verdict of guilty the mere fact that a prisoner produced further relevant evidence required the court to vacate the conviction and submit the question of the prisoner's guilt to another jury, then in a jurisdiction where perjury is rife great abuses would ensue. A Court of Criminal Appeal has thrown upon it some responsibility of examining the probative value of the fresh evidence. It cannot be said that a miscarriage of justice has occurred unless the fresh evidence has cogency and a plausibility as well as relevancy. The fresh evidence must, we think, be of such a character that, if considered in combination with the evidence already given upon the trial the results ought in the minds of reasonable men to be affected. Such evidence should be calculated at least to remove the certainty of the prisoner's guilt which the former evidence produced. But in judging the weight of the fresh testimony the probative force and the nature of the evidence already adduced at the trial must be a matter of great importance (439).
Is the evidence of Jonathan Robert Lee fresh evidence?
99 Lee stated that he first made a decision to confess in late 2014. He said he was in the process of writing a statement when he saw a television news item about the appellants' trial. There was a mention of a lawyer for one of the appellants, Mr Gary Rodgers, and Lee decided to make contact with him.
100 Lee said that he found another prisoner who had Mr Rodgers on his list of allowed telephone contacts and used that prisoner's account to contact Mr Rodgers. Mr Rodgers said he could not advise Lee and referred him to another lawyer. He later signed a statement dated 20 November 2014, which was forwarded to the Director of Public Prosecutions (DPP). He subsequently swore an affidavit on 23 June 2015.
101 The appellants were convicted on 3 October 2014 and were sentenced on 18 December 2014. On 25 November 2014 the DPP provided a copy of Lee's statement to the solicitors for each of the appellants. Affidavits confirming receipt of those copy statements were tendered at the appeal hearing. Each of the appellants also either tendered an affidavit or gave sworn evidence at the appeal (or in the case of Serji Mansour, both). They denied that they had any knowledge of the evidence that Lee could give prior to their convictions.
102 The respondent accepts that for the purposes of this appeal the evidence of Lee comprising his affidavit and oral testimony is fresh evidence. That concession is properly made. The available information is that evidence either did not exist or could not have been discovered prior to Lee signing his statement on 20 November 2014, approximately six weeks after the trial ended. The application by each of the appellants to adduce additional evidence should be granted, for the purpose of determining whether the ground of appeal has merit.
Is the evidence of Jonathan Robert Lee relevant, credible and cogent?
103 There is no doubt that Lee's evidence is relevant. It relates to the critical issue of the identity of the assailants. There is, however, a question as to whether his evidence is credible and cogent.
104 In assessing the credibility of Lee it is relevant to take into account his character. He is not, on any view, a person of good character. On 12 May 2012 he committed an offence of murder. Following a successful State appeal, he was sentenced to life imprisonment with a non-parole period of 21 years: The State of Western Australia v Lee [2013] WASCA 246. On 19 June 2014 he committed an offence of unlawfully wounding with intent to do grievous bodily harm. For that offence he was sentenced on 24 March 2015 to 3 years 6 months' imprisonment, concurrent with the life sentence he was already serving. He has admitted to using drugs, including cannabis, ecstasy, heroin and methamphetamines, since the age of 13.
105 Lee said in his affidavit that his motivation was to 'come clean'. However he did not present as a person driven by remorse. He was frequently sarcastic in his responses in cross-examination and was openly derisive of counsel for the respondent. He treated cross-examination as a game, saying at one stage that he could not recall the question because he had been 'too busy making snide remarks' (ts 37). He was highly defensive and quick to anger when placed in a difficult position or where his account was doubted. Towards the end of his evidence he was obstructive and evasive, claiming not to understand a clear question and asking for it to be unnecessarily repeated (ts 39).
106 Lee's suggested motivation is inconsistent with statements in his affidavit. He says that he had wanted to come clean for some time, however had hoped that he would 'get away with it'. The fact that others had been convicted would make it more likely that he would get away with it rather than to the contrary. He also stated that this was his last outstanding criminal matter and that he wanted nothing hanging over his head. However prior to making his statement and affidavit he had nothing hanging over his head. There is no suggestion that anyone suspected him of this crime.
107 In superficial aspects Lee's evidence fits with some of the known objective facts. The place and time of the offence and the nature of the injuries inflicted on Visanich are consistent with Lee's evidence. However a number of the details that he gave appear to have no obvious significance to him. There is no apparent reason why he would remember the names Nicky, Girton Place or Centenary Park. That he gives these details raises a suspicion that they were provided only to ensure that the incident he refers to could be identified with that of which the appellants have been convicted. The fact that he says that the car he and the other man drove in was a white Commodore station wagon is another curiously specific detail. The presence of such a vehicle at Ms Stokes' house is confirmed by the independent evidence of Mr Fenchel and the presence of such a vehicle at Centenary Park is confirmed by CCTV footage. However, that is accounted for by the evidence of Allan Tanner, who was proven to own such a vehicle and gave evidence that he was there at the relevant time. It is an unlikely coincidence that two cars of the same colour, make and model would attend at the house on the same morning. This strongly suggests that Lee's evidence has been tailored in an attempt to accommodate some of the known objective facts.
108 In respect of many other details Lee's response was that he did not remember. His inability to remember anything that could serve to identify the other man he said he was with was particularly noteworthy. He claimed not to be able to remember some details even where they are connected with things he could remember, such as picking up an axe from the top of the fridge but being unable to say where the fridge was in the kitchen. He also claimed that he had told Visanich to change his shirt but could not explain why he had done so, where the new shirt had come from or what it looked like.
109 There are many aspects of Lee's evidence that are inherently implausible. He was unable to identify the other man, despite on his own account spending two days with him using drugs and then attending with him to commit a crime. He said that he and the other man went to the house believing it to be a drug dealer's house and intending to rob the occupants but without arming themselves. They did, however, according to Lee, have the foresight to take gloves. Having entered the house and seriously assaulted Visanich, he claims that he and the other man returned an hour later after disposing of the injured man, without any concern that the police may have been called.
110 As I have earlier noted Lee is presently serving a life sentence for murder with a 21 year non-parole period. Since being incarcerated he has committed another offence for which he received a concurrent term. He is obviously very much aware that accepting responsibility for this offence would not result in him serving an additional head sentence even if he was convicted of it.
111 In my view Lee was not a credible witness. His evidence was neither cogent nor plausible. It is unlikely that any reasonable jury would accept that evidence. However, even if that was a reasonable possibility the appellants could not succeed unless the fresh evidence, when considered in the context of all of the available evidence, leads to a conclusion that a miscarriage of justice has occurred.
Is the fresh evidence reasonably capable of affecting the outcome?
112 A miscarriage of justice will not be established unless the fresh evidence is capable of removing the certainty of the appellant's guilt that was produced by the evidence at trial. The weight of Lee's evidence has to be judged in the context of the probative force and nature of the evidence adduced in the trial.
113 The prosecution case at trial was that the appellants and Singh were engaged in a joint criminal enterprise to obtain money from Visanich by means of force. There was undisputed evidence that the appellants and Singh had travelled together from Sydney to Perth on the day of the incident. Evidence of taxi drivers and booking records established that the appellants had left from a street near to Ms Stokes' house at about 4.20 am and returned to the domestic airport. Other evidence established that Visanich arrived at Ms Stokes' house between 10.00 and 11.00 pm on 22 November 2012 and was found injured in Centenary Park just after 6.00 am on 23 November 2011. This evidence places the appellants at the location of the assault on Visanich at the relevant time.
114 The text messages sent by Cyrill Mansour to Visanich in the days immediately preceding the attack place it into context. It is clear from those texts that Visanich owed a large sum of money to Cyrill Mansour and that his prevarication caused frustration and anger. Cyrill Mansour made explicit threats to do harm to Visanich and made reference to 'the boys'. Though the content of the texts was evidence against Cyrill Mansour only, the fact and timing of them supports an inference that the purpose of the appellants' travel to Perth was to follow through on the threats made. This is also supported by the brevity of the trip, the fact that the appellants travelled together and that the flight to Perth was booked and paid for by Cyrill Mansour. Cyrill Mansour's effort to explain the brevity of his time in Perth in his police interview lacked any credibility.
115 The evidence of Ms Stokes directly implicated the appellants. On her account the appellants and Singh arrived at her home, directed her to lure Visanich inside and were left with him when she retreated upstairs. She discounted the possibility that anyone other than the appellants could have been responsible for the assault on Visanich. Her evidence is corroborated in a number of important respects:
(a) the evidence of the taxi drivers and booking records as to the arrival of Visanich and Nicholls and the departure of the appellants and Singh;
(b) the telephone records as to calls made to her from Cyrill Mansour's telephone immediately preceding the appellants' arrival;
(c) the evidence of David Davis as to his attendance at the house and discussion with a man seeking money he was owed;
(d) the evidence of Allan Tanner as to his attendance at the house in his white Commodore station wagon (which Ms Stokes says was used to take the injured Visanich from the house); and
(e) the evidence that the appellants' flight booking back to Sydney was made from Ms Stokes' laptop computer in the early hours of the morning of 23 November 2011.
116 There is also evidence, admissible only against Cyrill Mansour, of subsequent intercepted conversations in which he discusses the assault on Visanich, the progress of the police investigation and concern as to what Ms Stokes will say to the police. This is evidence that strongly supports an inference that Cyrill Mansour was involved in the assault.
117 Lee's evidence, in contrast to that of Ms Stokes, is not corroborated by any other witness. Further, it does not explain, contradict or nullify the evidence of the appellants' movements and telephone communications.
118 In submissions on the appeal the appellants sought to accommodate the evidence of Lee with the objective evidence of the appellants' movements. The scenario advanced was that whilst the appellants had gone to Ms Stokes' house and met Visanich, nothing untoward had happened, they had departed leaving him unharmed and that Lee and his accomplice had then attended and committed the offence. This could only be possible if Lee attended Ms Stokes' house, assaulted Visanich and took him to the park after 4.00 am and before 6.00 am.
119 The appellants submitted that the evidence of Lee was consistent with that of Mr Tanner and not inconsistent with that of Mr Davis. Mr Tanner said that he received a call from Ms Stokes at about 3.00 am and arrived somewhere between 3.30 and 4.00 am. He did not see Visanich or any evidence of an assault. However, on any view Visanich must have been present at the time and Mr Tanner does not suggest that he entered every room. His evidence is not inconsistent with Ms Stokes' evidence that the assault had already occurred. Indeed, his evidence that Singh was present and asked to use his car is consistent with Ms Stokes' evidence that that car was used by Singh and Nicholls to transport Visanich from the house.
120 The evidence of Mr Davis does not provide any independent support for the evidence of Lee. Mr Davis arrived at Ms Stokes' house sometime between 9.30 to 11.00 pm. Assuming that the two men he saw were two of the group who had travelled from Sydney (which is a reasonable assumption given that the discussion was about money owed), that places the appellants at the house at that time. That is consistent with their travel movements and Ms Stokes' evidence. The fact that Mr Davis noticed nothing unusual does not assist in determining exactly when the assault occurred.
121 It is inherently implausible that the appellants travelled to Perth with the purpose of confronting Visanich about his debt, that Cyrill Mansour had threatened Visanich with imminent harm immediately prior to that travel, that they attended Ms Stokes house soon after arrival, that they met Visanich there but left without harming him and that he was then, coincidently, assaulted by Lee and another man (neither of whom had met him before) who was driving a car of the same make, model and colour as that owned by Mr Tanner. The window of opportunity for this to occur is very small and it requires the rejection of Ms Stokes' evidence and much of the evidence that supports her.
122 The evidence at trial against each of the appellants was strong. The evidence of Lee does not diminish its strength. When viewed in the context of the evidence as a whole there is no reasonable possibility that the evidence of Lee could have affected the result. That is so even taking into account that some of the evidence was admissible only against Cyrill Mansour.
Conclusion
123 The appeal notices were filed between five and seven weeks out of time. The reason given for the delay in each case is the same; - that there was a failure on the part of the appellants' interstate lawyers to file a notice containing all necessary information within the required time. It is said that attempts were made to file notices within time but they were rejected. This does not adequately explain the delay. An extension could be granted notwithstanding the absence of an adequate explanation for the delay if to refuse an extension would cause a miscarriage of justice. That cannot be the case where, as here, the ground of appeal is without merit.
124 In these circumstances I would make the following orders in respect of each appeal:
(1) grant the application to adduce additional evidence;
(2) refuse the application for an extension of time; and
(3) dismiss the appeal.
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