Mickelberg v The Queen
[2004] WASCA 145
•2 JULY 2004
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : COURT OF CRIMINAL APPEAL
CITATION: MICKELBERG -v- THE QUEEN [2004] WASCA 145
CORAM: MALCOLM CJ
MURRAY J
STEYTLER J
HEARD: 1- 12 DECEMBER 2003
DELIVERED : 2 JULY 2004
FILE NO/S: CCA 136 of 2002
BETWEEN: RAYMOND JOHN MICKELBERG
Petitioner
AND
THE QUEEN
Respondent
FILE NO/S :CCA 137 of 2002
BETWEEN :PETER MICKELBERG
Petitioner
AND
THE QUEEN
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :HEENAN CJDC
File Number : IND 675 of 1982
Catchwords:
Criminal law - Reference by the AttorneyGeneral of petitions for exercise of Royal Prerogative of Mercy - Petitioners convicted in 1983 of one count of conspiring to defraud the Director of the Perth Mint and seven offences committed in furtherance of the conspiracy - Reference of the whole case to be heard and determined as if it were an appeal - Crown case at trial very reliant on police evidence - Significant doubt as to the police evidence - Significant possibility that a jury would have acquitted - Miscarriage of justice - Substantial possibility jury reached its verdict in reliance on false evidence and was consequently misled in the manner in which it reached its conclusion
Evidence - Fresh evidence - Test to be applied - Whether there is a significant possibility that, in the light of all the admissible evidence, a jury, acting reasonably, would have acquitted the accused - Whether there is a substantial possibility that the jury may have been mistaken or misled in the manner in which it reached its conviction
Evidence - Witnesses - Recanting witness - Court to look closely at evidence of recanting witness and evaluate its relevance, cogency and credibility taking into account all relevant factors
Legislation:
Criminal Code (WA), s 689
Sentencing Act 1995 (WA), s 140(1)(a)
Result:
Appeals allowed
Convictions quashed
Category: A
Representation:
CCA 136 of 2002
Counsel:
Petitioner: Mr M J McCusker QC & Dr J J Edelman
Respondent: Mr S E Stone & Mr J Randazzo
Solicitors:
Petitioner: Lawton Gillon
Respondent: State Director of Public Prosecutions
CCA 137 of 2002
Counsel:
Petitioner: Mr M L Bennett
Respondent: Mr S E Stone & Mr J Randazzo
Solicitors:
Petitioner: Bennett & Co
Respondent: State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Bourne v Elliss [2001] WASCA 290
Button v The Queen [2002] WASCA 35; (2002) 25 WAR 382
Conway v The Queen (2002) 209 CLR 203
Craig v The King (1933) 49 CLR 429
Davies and Cody v The King (1937) 57 CLR 170
De Gruchy v The Queen (2002) 211 CLR 85
Dyers v The Queen (2002) 210 CLR 285
Easterday v The Queen [2003] WASCA 69
Gallagher v The Queen (1986) 160 CLR 392
Geesing v The Queen (1985) 38 SASR 226
Glennon v The Queen (1994) 179 CLR 1
Grey v The Queen (2001) 75 ALJR 1708
Jones v The Queen (1997) 191 CLR 439
Lawless v The Queen (1979) 142 CLR 659
M v The Queen (1994) 181 CLR 487
Mallard v The Queen [2003] WASCA 296
MFA v The Queen (2002) 77 ALJR 139
Mickelberg v The Queen (1989) 167 CLR 259
Mickelberg v The Queen (No 2) (1989) 4 WAR 497
Mickelberg v The Queen [1984] WAR 191
Mickelberg v The Queen, unreported, CCA SCt of WA; Library No 5116; 4 November 1983
Mickelberg v The Queen, unreported; CCA SCt of WA; Library No 5311; 2 April 1984
Mickelberg v The Queen, unreported; CCA SCt of WA; Library No 6924; 18 November 1987
Mickelberg v The Queen, unreported; CCA SCt of WA; Library No 990056; 12 February 1999
Nolan v The Queen, unreported; CCA SCt of WA; Library No 970260; 22 May 1997
Pileggi v The Queen [2001] WASCA 260
Poulter v The Queen (1978) 19 SASR 370
R v Bryer (1994) 75 A Crim R 456
R v Flower and Siggins [1966] 1 QB 146
R v Gale [1970] VR 669
R v McIlkenny [1992] 2 All ER 417
Ratten v The Queen (1974) 131 CLR 510
Wilde v The Queen (1988) 164 CLR 365
Case(s) also cited:
Carr v The Queen (1988) 165 CLR 314
Mickelberg v The Queen, unreported; CCA SCt of WA; Library No 970749; 30 October 1997
Quartermaine v The Queen (1980) 143 CLR 595
R v Silcott [1991] The Times LR 562
TABLE OF CONTENTS
MALCOLM CJ
The 1998 Appeals
The 2003 Reference
Lewandowski
Flint and Perry
Holz
Application for Leave to Further Cross-Examine Witnesses
The Grounds of Appeal
The Principles to be Applied
Appeal by Peter Mickelberg
Appeal by Raymond Mickelberg
The Fingerprint Evidence Against Raymond
Conclusions regarding Raymond
Conclusions
MURRAY J
The Petitions
The Consideration of New Evidence on Appeal
The Evidence against Peter: Subtraction and the Remainder
An Evaluation of the Case Remaining Against Peter
The Evidence Against Raymond: Subtraction and the Remainder
An Evaluation of the Case Remaining Against Raymond
STEYTLER J
The Reference
History of the Reference
The Prosecution Case at Trial
The 1998 Appeals
(a) The 1998 Appeals - The First Stage
(i) The contentions as regards the fabrication of the record of interview with Peter on 26 July 1982
(ii) Other police evidence
(iii) Allardyce, Bounsell and Walsh
(iv) Mrs Holz
(v) The 1998 Court's conclusions - first stage of the appeal
(b) The 1998 Appeals - The Second Stage
(i) Evidence other than the fingerprint
(ii) Chronology of the fingerprint evidence
(iii) The issues at trial
(iv) The 1987 appeals and the High Court challenge
(v) The issues before the 1998 Court
(vi) The conspiracy theory
(vii) Difficulties in forging fingerprints
(viii) Nesbitt and his "continuing development" theory
(ix) Collateral "development" issues
(x) The additional fingerprints
(xi) Means of forging
(xii) Opportunity to forge
(xiii) The 1976 prints
(xiv) Continuity: photographic matters and the recording of the fingerprint
(xv) The existence of the mark before 15 July
(xvi) Inconsistencies and improbabilities in Raymond's version and the 1998 Court's summary and conclusions
The Evidence Led in This Court
(a) Anthony Lewandowski
(b) John Robert Flint
(c) Frank Perry
(d) Robert Kenneth Goff
(e) Peter James Broad
(f) Carolyn Jay Edwards
(g) Brigitte Holz
(h) District Inspector John Gillespie
(i) Kenneth John Gordon
The Application For Leave to Cross‑Examine
The Current Grounds of Appeal
(a) Peter's Grounds
(b) Raymond's Grounds
Reference of the "Whole Case"
(a) Fresh/New Evidence
(b) The Test to be Applied
(c) "Recanting" Witnesses
(d) The Approach of the Petitioners in this Case
Peter's Appeal
(a) Significance of the Police Evidence at Trial
(b) Hancock and Lewandowski
(c) The Interview With Round and Gillespie on 26 July 1982
(d) Hooft and Henley
(e) Other Interviews of Peter by the Police
(f) Police Evidence - Conclusions
(g) Holz
(h) Circumstantial Evidence
(i) Conclusions - Peter
Raymond's Appeal
(a) Police Evidence - Admissions Allegedly Made
(i) Round and Hooft
(ii) Hancock and Round
(iii) Round and Gillespie
(iv) Lewandowski and Hancock
(v) Hancock, Round and Lewandowski
(vi) Hancock and Bower
(vii) Conclusions - evidence of admissions
(b) Fingerprint Evidence
(i) The removal of the hands
(ii) The first appearance of the fingerprint and records of its existence
(iii) The failure to take Raymond and Peter's fingerprints when they first became suspects and the failure to compare
(iv) Discrepancies in the negatives
(v) Evidence of the disappearance of the print
(vi) The second and third prints
(vii) The expert evidence
(viii) Fingerprint evidence - conclusions
(c) The Evidence of Mrs Holz
(d) Circumstantial Evidence Against Raymond
(i) The Gulley account
(ii) Raymond's other accounts and the bullion purchases in false names
(iii) Raymond's familiarity with Jandakot Airport
(e) Conclusions – Raymond
Conclusions and the Question of Retrial
MALCOLM CJ: These two references from the Attorney General were heard on 1 - 12 December 2003. The history of the references has been detailed in the reasons to be published by Steytler J. I have had some prior involvement in these matters commencing with Mickelberg v The Queen (No 2) (1989) 4 WAR 497, and various applications connected with the investigation of new evidence, as well as the subsequent references including "the 1998 appeals" referred to by Steytler J, which were dismissed in the joint judgment of myself, Ipp and Wheeler JJ in Mickelberg v The Queen, unreported; CCA SCt of WA; Library No 990056; 12 February 1999.
In my opinion, Steytler J has accurately set out an outline of the prosecution case at the trial, drawing to some extent on the summary by Brinsden J in Mickelberg v The Queen [1984] WAR 191 at 204 ‑ 205. Steytler J has also provided an accurate summary of the relevant parts of the judgment in relation to the 1998 appeals, which were heard by myself, Ipp and Wheeler JJ and which were dismissed by a joint judgment of the Court.
The 1998 Appeals
I agree with Steytler J that the first of the two major issues raised in the 1998 appeals was that all the evidence of the police officers regarding admissions made by Peter Mickelberg was false. As his Honour has made clear, Peter's main challenge was directed to the evidence of Hancock and Lewandowski and the alleged falsification of the notes of interview which were said to have been taken by Lewandowski. It was also contended that, if it was accepted that Hancock had given false evidence, given that he was the officer in charge of the investigation, or if there was a reasonable possibility that a reasonable jury would find that Hancock's evidence was false, all other police evidence would be tainted. In this context, Raymond Mickelberg both supported Peter's grounds of appeal and contended that there was a significant possibility that false evidence had been give by Hancock and Round regarding admissions said to have been made by Peter on 15 July 1982. It was accepted by the Court which heard the 1998 appeals that if Peter were to succeed, serious questions would arise regarding the credibility of the police evidence against Raymond.
The second major issue in the 1998 appeals concerned the evidence relating to the circumstances under which a fingerprint of Raymond's had been found on a cheque drawn on the Western Australian Building Society which had been used to pay for part of the gold in the sum of $249,932.74. Raymond's contention was that the fingerprint had been forged and that he was a victim of a conspiracy by police officers to secure his conviction on the basis of false evidence.
Steytler J has accurately summarised the contentions in the 1998 appeals regarding the alleged fabrication of the notes said to constitute the record of interview with Peter on 26 July 1982. His Honour has also accurately summarised the evidence of Hancock and Lewandowski regarding the allegation that the notes had been fabricated and the conclusions in the joint judgment regarding that evidence. The members of the Court hearing the 1998 appeals concluded that the evidence of Hancock and Lewandowski was generally cogent and credible, although the changes in their versions caused the Court and "would cause a jury to scrutinise their evidence with great care". Significantly, Malcolm CJ, Ipp and Wheeler JJ said at pp 79 ‑ 80:
"But while this conduct on the part of Hancock and Lewandowski does give rise to questions about their credibility, it is by no means conclusive of a significant possibility that a reasonable jury might consider the notes of interview to be a concoction. Such a determination must depend on an examination of this conduct together with all the other relevant evidence.
Finally, on this aspect, the desire of both police officers (and particularly Hancock) to distance themselves from the experts [sic] reports when explaining how each came to realise that he had previously erred, did not ring true. It is not readily apparent how the prior evidence, statements and affidavits caused them to realise the mistake that had been made. Although repeatedly questioned on this they did not provide convincing explanations. Once more, this is not conclusive, but is a factor that has to be weighed in the balance together with the other matters mentioned."
It is noteworthy, as Steytler J has recounted, that the 1998 Court concluded that, taking into account the evidence of Dr Guy in the context of all of the other relevant evidence, there was a significant possibility that a reasonable jury might find that Peter was punched or slapped a few times, but not that he was assaulted to any greater extent. This involved rejecting the denials by Hancock and Lewandowski, while inconsistencies between Peter's evidence at the trial and what he told Dr Guy tended to mark him as a witness who was inclined to substantial exaggeration, if not to giving deliberately false testimony. In reaching these conclusions, the 1998 Court took into account the evidence given by former Detective Sergeant Kucera, including his evidence that Peter made no complaint while sitting with him during a break in the interview, combined with evidence to similar effect by another police officer, Cvijic, who spoke to Peter after the interview.
While there were questions raised, as was made plain later in the judgment of the 1998 Court, the evidence of Mrs Brigitte Holz was critical to the ultimate conclusion then reached, notwithstanding the evidence of the witnesses Allardyce, Bounsell and Walsh of admissions said to have been made by Lewandowski that he had "altered his statement of fact to get a conviction in the Mickelberg case"; that Peter had been locked up at Belmont, stripped naked and they had been "treating him like an animal"; and that "he stitched them up properly".
In the light of all the other evidence before the 1998 Court, this evidence was then given little credence. Allardyce was assessed as not being a credible witness. The Court considered that the evidence of Mrs Bounsell could not be relied upon with any confidence; and the evidence of Mr Walsh was found to carry no weight as it had been previously rejected by the Court of Criminal Appeal in 1987.
The witness who was of the greatest significance so far as the 1998 Court was concerned was Mrs Brigitte Holz, who was called by the prosecution. Her evidence has been set out in some detail by Steytler J in his reasons. According to Mrs Holz, Peter made a number of admissions to her, boasting that "the police would never be able to prove that they had stolen the gold". In particular, he told her how he had purchased the car from a couple while wearing a wig and giving a false name. He mentioned the gold many times. She recounted a conversation between the Mickelberg brothers accompanied by their solicitor, when it was suggested that Peter Holz would provide a false alibi for Brian Mickelberg to say that he was sailing with him on the day the gold was stolen. Other alibis were also discussed by the three brothers and Mr Holz on other occasions. All three members of the Court commented on her evidence at p 121 of the joint judgment that, "Mrs Holz was a most impressive witness. She appeared to be entirely neutral. She gave her evidence in a moderate, careful and sincere manner".
The Court said that she gave every appearance of being truthful, knowledgeable and accurate in her testimony and that the impression she would make on a jury would be very powerful indeed. It also said that her evidence implicated Peter and Raymond in a most direct way and was striking evidence of guilt.
Steytler J has set out in his reasons the summary by the 1998 Court of the conclusions reached on what was the first stage of the previous appeal at pp 128 – 133 of the reasons for judgment of the Court. The Court set out the matters which were in favour of the appellants when determining whether there was a significant possibility that a reasonable jury might have a reasonable doubt regarding the appellants' guilt. These matters had to be weighed against the matters identified as pointing to the appellants' guilt. These included a number of significant matters, not based on police evidence, which could not be attacked as tainted by anything done by Hancock and Lewandowski. In 1998, the Court concluded that, putting to one side the evidence of Mr Kucera and Mrs Holz, although the matter was finely balanced, the remainder of the Crown case was so compelling that there was no reasonable possibility that a jury acting reasonably would bring in verdicts of not guilty in the case of either Peter or Raymond.
As the joint judgment of the 1998 Court expressed it at pp 132 ‑ 133:
"The testimony of Kucera adds another dimension to the case of the Crown. But the testimony of Mrs Holz, in our opinion, would be regarded as final and conclusive proof of guilt. Her evidence is so cogent, powerful and damning, and the impression she would - in our view - make on a jury so strong, that we consider that once her evidence is taken into account, there is no possibility that a reasonable jury, on hearing her evidence, and all the other evidence in the case (even excluding Kucera), would come to a verdict other than guilty.
We would therefore dismiss the appeals of Raymond and Peter based on the grounds relating to the first stage of the appeal."
So far as the second stage of the 1998 appeal is concerned, that was primarily concerned with the evidence that was relied upon by the prosecution that a fingerprint on the back of the WABS cheque, being one of the forged cheques used to pay for the gold, was that of Raymond. In my opinion, Steytler J has accurately set out the issues raised, the evidence with respect to them and the conclusions reached by the 1998 Court in relation to those issues.
The 2003 Reference
It is against this background that the current reference, which is required to be dealt with as an appeal to the Court of Criminal Appeal, falls to be considered. In this respect, Steytler J has set out in his reasons the evidence given by Lewandowski in the present appeal.
Lewandowski
I agree with Steytler J that in many respects, Lewandowski (now deceased) was an unsatisfactory witness whose evidence was inconsistent, confused and bore the hallmarks of reconstruction. I agree with Steytler J, however, that his evidence that Peter was assaulted during the interview at Belmont on 26 July 1982 and that the various admissions and incriminating statements attributed to him were fabricated is capable of acceptance by a jury. That is a view which is reinforced by the various witnesses to whom Lewandowski made these admissions and statements, as Steytler J has found. Lewandowski's previous denials of these statements can be explained on the basis that in almost every case they were said to have been made when he was inebriated.
Flint and Perry
As to the evidence of the journalist Mr Robert Flint of the Sunday Times newspaper and that of Mr Frank Perry regarding their conversations with Mrs Brigitte Holz, neither of them were cross‑examined by counsel for the prosecution. In the absence of any challenge to their evidence, it may be accepted.
Holz
Mrs Holz did not contest the evidence of Messrs Flint and Perry when she was called to give evidence on behalf of the respondent. She had sworn two new affidavits which were put into evidence on behalf of the prosecution, namely, an affidavit sworn on 17 November 2003 and a further affidavit sworn on 24 November 2003.
When cross‑examined, Mrs Holz was shown a third affidavit sworn on 23 January 2003 following her discussions with Perry at his request. In that affidavit, she referred to an affidavit sworn by her on 27 January 1998 which she said she had been asked to make by the police some three and a half months beforehand. She had not wanted to be involved, but she "felt harassed into doing so" and complied with their request "to get rid of them". She said that she did not "write one word of that affidavit, neither did I read it". It was put to her and accepted by her that the affidavit sworn on 23 January 2003 was sworn at the request of Mr Perry.
In par 3 of the affidavit, Mrs Holz said that the affidavit of 23 January 2003 omitted the fact that she met the fourth Mickelberg brother, Graeme, who had come to the boat building premises where she worked on three or four occasions in the period January to July 1982 to inspect a yacht that was being built for the Mickelberg family. An affidavit sworn by Graeme Mickelberg was put to her in which he swore that, in the relevant period, he had been posted in England with the Army and had only visited Western Australia in February and March 1983 when the trial of the Mickelberg brothers had taken place. Mrs Holz then changed her evidence, saying that she was unsure when Graeme Mickelberg had been at the boat building premises. Later in her cross‑examination, she again changed her evidence, saying that the first time she met him was "right to [sic at] the end of the trial".
Steytler J has described in detail the cross‑examination of Mrs Holz in respect of a tape recording made by Perry of conversations he had with Mr Perry in late 2002. This revealed a number of inconsistencies with her evidence in the 1998 appeal. For example, in 1998 she was asked whether in 1996 she had been under any pressure to make a statement about the Mickelberg matter. Asked whether she was sure, she replied:
"Well, no, not really but I was under a lot of pressure because of all what I was going through but not from the police."
This was a reference to the fact that her son had died in 1996.
When the tape recording made by Mr Perry was played to her in cross‑examination, Mrs Holz admitted that the police had badgered her into flicking through the affidavit sworn on 27 January 1998 and agreeing to swear it before a Justice of the Peace. She admitted that her evidence to the 1998 Court was false. She was unable to explain why she had given that evidence, but the transcript of her evidence at the hearing in 1998 and the audio recording shows that she was never asked, nor given the opportunity, to read the affidavit.
Steytler J has recounted in detail the cross‑examination of Mrs Holz in the present proceedings regarding why it was that she had not told the 1998 Court a number of things of which she had now given evidence. In the result, there are many other inconsistencies now between her evidence to this Court and her evidence in 1998.
Having had the benefit of observing the demeanour and manner in which Mrs Holz gave her examination‑in‑chief at the 1998 appeal and her response to questions put to her in cross‑examination in the present appeal, one could have been pardoned for thinking that she was hardly recognisable as the same person. She was not re‑examined at all by counsel for the prosecution. The inference is that there was nothing to be gained by any such re‑examination.
Her evidence in 1998 was given in such a way that all three members of the Court regarded her evidence as clear and convincing because of her demeanour as a witness and her apparently clear and concise evidence, which was unshaken by vigorous cross‑examination. By contrast, on this occasion, she found it difficult to recollect events and conversations. She appeared hesitant and confused. I agree with the conclusion of Steytler J that, on this occasion, there were significant inconsistencies in her evidence and that some of her evidence was contradictory to such a degree that no reasonable jury would be likely to accept it.
While I am considerably disturbed by the changes in her evidence and her demeanour, there was nothing before the Court which could be safely relied upon to explain those changes, although I was left with a strong degree of suspicion that she had succumbed to pressure of some kind in the course of the lengthy interviews which were conducted with her by Mr Perry.
I agree with Steytler J that the evidence of Mrs Edwards that she had been told by Detective (now Detective Inspector) Gillespie on several occasions that the Mickelbergs had been "set up" and that he had used the word "rigged" in the course of discussion of the case was capable of acceptance. I also agree with Steytler J that it is open to conclude that Gillespie's evidence at the trial that, when Raymond was interviewed by Detectives Round and Gillespie in the Whitfords Shopping Centre car park on 26 July 1982, Mrs Sheryl Mickelberg asked them, "Who were the two detectives who went to Penang anyway?" was false. The evidence before this Court including evidence of police records is that there was no suggestion of any detectives going to Malaysia, and Penang in particular, until the possibility was discussed on 4 August 1982. Hancock and Sergeant Billing left for Malaysia on 11 August 1982. The only newspaper report of the trip was published on 26 August 1982. I agree with the conclusions expressed by Steytler J regarding the evidence of Gillespie.
Application for Leave to Further Cross-Examine Witnesses
I agree with the reasons to be published by Steytler J for refusing leave to counsel for the appellants to recall for further cross‑examination a number of police officers who had given evidence at the trial, namely, Kucera, Cvijic, Round, Henning, Hooft, Henley, Tovey and Allen. There is nothing I wish to add on this aspect of the case.
The Grounds of Appeal
The grounds of appeal of both Peter and Raymond have been set out in full in the reasons of Steytler J. These are required to be considered in the context of s 140(1)(a) of the Sentencing Act 1995 (WA) which requires that the reference is one of "the whole case" to be heard and determined "as if it were an appeal". In this context, as Barwick CJ said in Ratten v The Queen (1974) 131 CLR 510 at 514:
"… the ordinary principles as to admissibility of evidence must be applied in the consideration of that material, so much of it as would be inadmissible being ineffective to influence the resolution of the matter."
The Principles to be Applied
The principles to be applied were set out by Toohey and Gaudron JJ (with whom Mason CJ and Brennan J agreed) in Mickelberg v The Queen (1989) 167 CLR 259 at 311 ‑ 312. The Court is required to consider the whole case on the basis of the legal principles applicable to criminal appeals: Button v The Queen [2002] WASCA 35; (2002) 25 WAR 382 at 387 ‑ 388 per Malcolm CJ (with whom Wallwork and Owen JJ agreed); and Mallard v The Queen [2003] WASCA 296 at [7] per Parker, Wheeler and Roberts‑Smith JJ.
Suffice it to say that I agree with everything which Steytler J has said in his reasons regarding the distinction between "fresh" and "new" evidence and the approach to be applied to each category of evidence in the case of criminal appeals. The authorities were discussed in detail in the joint judgment Mickelberg v The Queen, unreported; CCA SCt of WA; Library No 990056; 12 February 1999 at 19 ‑ 22.
I agree with Steytler J regarding the principles to be applied to the evidence of Lewandowski (since deceased) as a recanting witness. Such evidence is a species of fresh evidence on the basis of the authorities to which his Honour has referred, which were discussed by Parker J (with whom Wallwork J and I agreed) in Pileggi v The Queen [2001] WASCA 260 at pars [56] ‑ [58]; and Miller J (with whom Roberts‑Smith J and I agreed) in Bourne v Elliss [2001] WASCA 290 at pars [49] ‑ [50].
I also agree with Steytler J that this Court is required to consider what the jury might have done if it had before it the evidence of Lewandowski to the effect that, not only had he given perjured evidence at the trial, but also that Hancock, the officer in charge of the investigation and the person most closely associated with it, was a perjurer who had been prepared to manufacture evidence against the Mickelbergs, as well as the other evidence referred to by Steytler J. The evidence needs to be approached and dealt with in accordance with the decisions of the High Court in Davies and Cody v The King (1937) 57 CLR 170 at 183 ‑ 184 per Latham CJ, Rich, Dixon, Evatt and McTiernan JJ; and M v The Queen (1994) 181 CLR 487 at 493 per Mason CJ and Deane, Dawson and Toohey JJ.
In Davies and Cody v The King (supra) at 184, their Honours made it clear that subsequent evidence by a witness that he had given false evidence at a criminal trial cannot be accepted in itself as a ground for setting aside a verdict of guilty. If the contrary view were held, the administration of civil and criminal justice would be undermined. If, however, a verdict of guilty is open to objection upon a ground affected by such evidence, the case is different. Their Honours in the High Court considered at 184 that, "It would not be wise to attempt to frame a universal rule even for such cases", as they considered that each case should be considered on its own facts. In that case, their Honours went on to say at 184:
"… the Crown chose to rely on the man's evidence and press its probative value, and the judge's charge does not advise the jury to reject his testimony. It is now known that it is completely untrustworthy, and ought not to be allowed to enter into the reasons for any verdict of guilty".
In M v The Queen (supra) at 492 ‑ 493, Mason CJ, Deane, Dawson and Toohey JJ made it clear that the ultimate question in such a case was whether there had been a substantial miscarriage of justice. As their Honours also said:
"The question is one of fact which the Court must decide by making its own independent assessment of the evidence [Morris v The Queen (1987) 163 CLR 454] and determining whether notwithstanding that there is evidence upon which a jury might convict, 'nonetheless it would be dangerous in all the circumstances to allow the verdict of guilty to stand' [see Hayes v The Queen (1973) 47 ALJR 603 at p 604] … A verdict which is unsafe or unsatisfactory for any other reason must also constitute a miscarriage of justice requiring the verdict to be set aside."
Their Honours went on to say at 494 – 495 that:
"If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence [Chamberlain v The Queen [No 2] (1984) 153 CLR at 618-619; Chidiac v. The Queen (1991) 171 CLR 432 at 443-444]. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty [Chidiac v The Queen (1991) 171 CLR at 443, 451, 458, 461-462]. Although the propositions stated in the four preceding sentences have been variously expressed in judgments of members of the Court in previous cases, we have put aside those differences in expression in order to provide authoritative guidance to courts of criminal appeal by stating the propositions in the form in which they are set out above."
In R v Bryer (1994) 75 A Crim R 456 at 458, Fitzgerald P said that the ordinary application of the "fresh evidence" test would require the appellate court to consider what the jury might have done if it had the contradictory evidence from the recanting witness demonstrating that the recanting witness was, at best, unreliable, and probably a perjurer.
His Honour went on to note that courts have been unwilling to conclude that a recantation must always raise the possibility of a miscarriage of justice, although the basis for setting aside a conviction is wider than in relation to other fresh evidence. The test was then formulated by Fitzgerald P at 458 as follows:
"A conviction is set aside on the basis of a recantation if (i) the witness's new version of events is sufficiently relevant, cogent and plausible to raise a doubt as to guilt in all the circumstances, including the original evidence and explanations given for the original evidence and the recantation, or (ii) the evidence of the recanting witness is so untrustworthy that it 'ought not to be allowed to enter into the reasons for any verdict of guilty': Davies & Cody (1937) 57 CLR 170. In the latter circumstance, it would be inappropriate for the recanting witness to be called in the event of a retrial."
The approach adopted by Pincus JA at 457 was somewhat different and required that the conviction would not be set aside unless the Court concluded:
"… having regard among other things to the reason for the recantation and for the original, allegedly false evidence, that there is reason to think that the later rather than the earlier version is genuine".
I am not convinced that such an approach is of assistance in the present case. In my opinion, it is necessary to look at all of the relevant evidence to assess its impact.
In this context, I agree with Steytler J that it is unnecessary in this Court to consider the question whether this case is one in which, if the fresh evidence and, in particular, that of Lewandowski, is accepted, the trial should be regarded as having "so far miscarried as hardly to be a trial at all", except to the extent of asking the question posed in Davies and Cody v The King and M v The Queen whether there was some feature of the case raising a substantial possibility that the jury may have been mistaken or misled. In particular, I agree that, in the end, no test can be formulated which would state the fundamental principle in terms other than that the appeal must be allowed if, in terms of s 689 of the Criminal Code, a substantial miscarriage of justice has occurred.
Appeal by Peter Mickelberg
In the result, so far as Peter's appeal against his conviction is concerned, I have read and re‑read with considerable care all that has been written by Steytler J. I agree with his Honour that it is very probable that a jury would accept Lewandowski's recantation of his evidence which was given at the trial and the admitted fabrication of the alleged admissions by Peter. That evidence must now be seen in the light of the expert evidence of Baxendale and Radley, which established that the notes of the interview by Peter by Hancock and Lewandowski had been rewritten, as the 1998 Court found. In the light of the additional evidence available in the present appeal, I agree with Steytler J that Peter's evidence of the assault on him by Hancock and Lewandowski is much more likely to have been accepted by the jury. As Steytler J has concluded, it is even more significant that the evidence of the handwriting experts and the explanations by Lewandowski and Hancock for rewriting the notes of interview must be seen in a very different light. In this respect, I agree with Steytler J that it would be inevitable that any jury that had the benefit of all the evidence now before the Court would conclude that the rewriting of the notes was very probably carried out for the purpose of including incriminating statements made by Peter which he had not in fact made.
I agree with Steytler J that, while the evidence of Kucera lent some support to the evidence of Hancock and Lewandowski, there was still ample opportunity for Peter to have been assaulted without the knowledge of Kucera. There remains a conflict of evidence between Peter and Kucera regarding Peter's allegation that he complained to Kucera that he had been mistreated by Hancock and Lewandowski. There is also a similar conflict between Peter and the police witness Cvijic regarding Peter's evidence that he complained to her that he had been assaulted by Hancock and Kucera. These conflicts now need to be seen in the light of Lewandowski's admission that Peter was assaulted.
Steytler J has referred to these matters and a number of other matters which suggest a greater prospect than was previously the case that Peter's evidence would be accepted or, in my opinion, would contribute to the potential of raising a reasonable doubt in the minds of members of the jury whether the alleged confession was in fact made, as originally alleged by Hancock and Lewandowski. In this respect, I share the "serious apprehension" expressed by Steytler J that the evidence of Lewandowski and Hancock at the trial and subsequently to the Court of Criminal Appeal was false and that there can be little doubt that any reasonable jury would share that apprehension.
I also agree with Steytler J, for the reasons his Honour has stated, that there are questions regarding the credibility of each of Round and Gillespie, which a jury would be required to consider, which would include the credibility of their evidence regarding the interview with Peter on the evening of 26 July 1982, as well as their evidence concerning the question alleged to have been asked by Mrs Mickelberg on the same date about detectives going to Penang, to which I have already referred.
In the light of Lewandowski's evidence regarding the interview on 26 July 1982, the evidence of Detectives Hooft and Henley 10 days earlier on 16 July 1982 needs to be reconsidered. In the light of the new evidence which casts doubt on whether Peter made any admissions on 26 July 1982, it is even more unlikely that Peter would have broken down and volunteered the damaging admissions attributed to him 10 days earlier.
So far as the other interviews by police with Peter are concerned, I agree with the comments made and conclusions reached by Steytler J, including, in particular, his Honour's conclusion that it is reasonably open that a jury would not be prepared to rely upon any evidence of admissions alleged to have been made by Peter to police officers.
I also accept that, in the light of the evidence most recently given by Mrs Holz, the difficulties with her evidence are such that it would be reasonably open to a jury to reject her evidence in its entirety, notwithstanding the misgivings which I have expressed in terms of the questions and reservations I have regarding the apparent changes in her demeanour and the nature and quality of her evidence in this appeal compared with that given at the 1998 appeal.
I agree with Steytler J that, on the basis of the evidence of Mr and Mrs Allen and the expert handwriting evidence at the trial that Peter was the author of the "Talbot note", there was a strong case against Peter that he was the purchaser of the Ford Falcon. The evidence was also such that an inference could undoubtedly be drawn that the Falcon had been used in connection with the Mint swindle on 22 June 2002, although there was no positive evidence identifying Peter as the person who had used the vehicle on that day.
The remaining items of circumstantial evidence against Peter were his knowledge of the man Kleiger, his occupation at the Rupert Street premises, as well as his involvement in prior purchases of gold bullion from the Mint using a false name, which was also a false name used by Raymond. He also admitted that he had sold gold to the Mint on one occasion.
There can be no doubt that the evidence of the police officers was of significant importance to the Crown case against Peter. As the Court, of which I was a member, concluded in the judgment in respect of the 1998 appeal, in the context of the evidence at the original trial, any significant doubt about the truth of the police evidence would seriously undermine the Crown case.
In my opinion, a reasonable jury looking now at all of the evidence could not be satisfied beyond a reasonable doubt that the evidence of Hancock and Lewandowski at the trial was truthful. On the contrary, as counsel for the prosecution conceded in this Court, Lewandowski's evidence necessarily reflects adversely on the truth of the evidence given by Hancock concerning the interviews of Peter at Belmont CIB. This in turn casts a shadow of doubt over the evidence of Hancock with respect to other interviews in which he participated.
I agree with Steytler J that there are also questions concerning the credibility of the other police witnesses, namely, Round, Gillespie, Hooft, Henley, Tovey and Allen. Further, in relation to this part of the case, I am driven to conclude that, looking at the whole of the evidence of Mrs Holz in the 1998 appeal, coupled with her evidence in this appeal, any reasonable jury would now be highly likely to reject or disregard the evidence which she gave at the 1998 appeal in its entirety.
It follows that I agree with Steytler J that Peter's appeal must be allowed.
In this respect, despite the strength of the evidence that Peter was involved in the purchase of the vehicle and the evidence of the use to which the vehicle was put in connection with the relevant offences, I agree with Steytler J that his conviction was not inevitable on the balance of the evidence, given that he was not positively identified as the person seen at or near the vehicle on the day of the perpetration of the Mint fraud on 22 June 1982. As the 1998 Appeal Court concluded at pp 131 ‑ 132, the circumstantial evidence did not prove his guilt beyond reasonable doubt.
In the result therefore, I agree with Steytler J that, had all the evidence now available been put before the jury in addition to the evidence at the original trial, there is a significant possibility that the jury, acting reasonably, would have acquitted Peter. That conclusion is sufficient to establish that Peter's conviction should be quashed on the ground that there has been a substantial miscarriage of justice.
Finally, in the context of Peter's appeal, I agree that the jury may have been mistaken or misled so that there was a substantial miscarriage of justice of the kind referred to in the authorities referred to by Steytler J. This results from the fact that alleged admissions were "all important to the Crown case" as put by counsel for the prosecution at the trial. That such evidence was clearly of a critical nature is also apparent from the closing address of counsel for the prosecution at the trial. The jury were clearly invited to conclude that, if Peter and Raymond had told lies about the conduct of the police, as the prosecutor invited the jury to find, little weight could be placed upon their evidence in other respects.
It follows that, if the fresh evidence of Lewandowski and the other evidence to which I have referred was now before the jury, I agree with Steytler J that there is a substantial possibility that the jury had been misled by the police evidence to which I have referred. Further, like Steytler J, while being mindful of the system of trial by jury and that it is not for the Court of Criminal Appeal to take over the function of the jury, I am driven to the conclusion that in the circumstances of this case, taking into account all of the relevant evidence now before the Court, there has been a substantial miscarriage of justice so that Peter's conviction cannot be allowed to stand.
Appeal by Raymond Mickelberg
So far as Raymond's appeal is concerned, his grounds of appeal and the contentions advanced in support of those grounds were that the fresh evidence which cast doubt on the police evidence also casts doubt on the admissions which he was said to have made, as well as the statements alleged to have been made by Peter regarding Raymond's involvement. Raymond also maintained the contention previously made that his alleged fingerprint on the WABS cheque was a forgery.
Suffice it to say that I agree with the summary by Steytler J of the case against Raymond, which was based on the evidence of admissions said to have been made by him when interviewed, taken together with the fingerprint evidence. I also agree with his Honour that, as a result of the most recent evidence of Lewandowski, a reasonable jury would be unlikely to place any reliance on the admissions said to have been made by Raymond to Lewandowski and Hancock on 26 July 1982. That evidence must be coupled with the fact that there is a serious question regarding the credibility of the evidence of Round and Gillespie with respect to the interview with Raymond and Sheryl Mickelberg on 26 July 1982.
In this context, I agree with Steytler J that, taken together with the issues regarding the credibility of the evidence of the admissions said to have been made by Peter, there is a reasonable possibility that a reasonable jury would not be prepared to rely on any of the police evidence of admissions allegedly made by Raymond when he was interviewed, except to the limited extent that they had been confirmed by him.
In this context, it is of particular relevance that Hancock was involved in four of those interviews, being that conducted on 15 July 1982, the two interviews conducted on 26 July 2002 and that conducted on 23 September 1982 in which Round (in one case with Gillespie) was involved in each of the remaining interviews. As the three members of the Court of Criminal Appeal concluded at p 49 in the joint judgment in the 1998 appeals, Raymond's grounds of appeal concerning the police evidence were linked to the grounds relied upon by Peter, so that if Peter was to succeed, serious questions would arise regarding the credibility of the police evidence against Raymond.
The Fingerprint Evidence Against Raymond
It was contended in support of Raymond's appeal that the "crime mark", in the form of a fingerprint on the WABS cheque, was a fingerprint made by Raymond had been planted on the WABS cheque used in the purchase of gold from the Mint on the day in question. The evidence and the contentions advanced in relation to this issue have been reviewed in considerable detail by Steytler J, both in relation to the 1998 appeal and the current appeal. In my opinion, his Honour has carefully detailed the evidence and the contentions advanced on behalf of Raymond on this part of the case.
I have carefully reviewed the evidence and the analysis of it by Steytler J. As Steytler J has pointed out, there are some difficulties with the evidence now before the Court which suggest that, while it might have been reasonable for the 1998 Court to conclude, as it did, that no sinister inference could be drawn from the evidence, that can no longer be said in the light of the additional evidence now available, which is suggestive of fabrication.
This contention had also to be examined in the context of other evidence before the 1998 Court and in relation to the present appeal concerning the so‑called "disappearance" of the fingerprint when the WABS cheque was returned to Perth from Canberra. The relevant evidence has been extensively reviewed by Steytler J, including the evidence given at the trial and in relation to the subsequent appeals. His Honour has set out a number of conclusions that can be drawn from the relevant evidence which revealed that there were some nine anomalies.
All of the relevant evidence and materials were considered in detail by the 1998 Court which concluded at p 238 of the judgment that there was:
"… no possibility whatever of a jury finding that the crime mark was not made by Raymond's natural finger".
As a member of the 1998 Court, I agree with Steytler J that the conclusion so expressed was based upon the whole of the evidence then available. It also took into account the fact that the evidence of Hancock and Lewandowski, in particular, was then assessed as both cogent and credible. Because that is no longer the case, it is necessary to re‑examine the earlier conclusions expressed by the 1998 Court. In this respect, I agree with Steytler J that, while the evidence does not establish that Raymond's fingerprint was forged, a reasonable jury, taking into account the false evidence given by Hancock and Lewandowski, together with the other defects in the police evidence to which his Honour has referred, might well look at the various anomalies in the fingerprint evidence with considerably more suspicion than might otherwise have been the case. It follows that I agree with Steytler J that it would be open to a jury to conclude that it had not been proved beyond reasonable doubt that the print was genuine.
Finally, Steytler J has outlined and assessed the circumstantial evidence against Raymond, namely, the fact that two of the cheques used to perpetrate the Mint fraud were drawn on the account of Peter Gulley, being a bank account operated by Raymond under that name. It was contended on Raymond's behalf that there was a reasonable hypothesis consistent with Raymond's innocence that some other person unknown must have found the Gulley account passbook which Raymond said he had lost and used the account number for the account on the two cheques to implicate Raymond and divert it from himself.
The relevant evidence has been carefully reviewed by Steytler J, including the evidence of the use of false names which Raymond said was done both in opening bank accounts and the purchase of gold from the Mint in order to evade income tax. These explanations were rejected by the 1998 Court as improbable. They must now be considered in the light of all of the available evidence.
While not of much significance in the overall aspects of the case, there was circumstantial evidence that Raymond held a commercial pilot's licence, having done his training at Jandakot Airport, which was well known to him. In addition, Peter was a regular visitor to the airport and held a student pilot's licence at the material time. Brian was a helicopter pilot operating from Jandakot.
Conclusions regarding Raymond
I agree with Steytler J that the case against Raymond remains strong, even if one disregards the police evidence of admissions alleged to have been made by him as well as the evidence of Mrs Holz.
In short, I agree with the conclusions expressed by Steytler J that, given the fresh evidence to which reference has been made, a reasonable jury might well not be prepared to rely on the police evidence of admissions made, except to the limited extent that they were confirmed by Raymond. In the result, this leaves open a substantial possibility that, in the particular circumstances of this case, the members of the jury were misled in the manner in which they reached their conclusion. In my opinion, it necessarily follows that, taking into account that it is no part of the function of this Court to "usurp the function of a jury", as Steytler J has put it, there has been a substantial miscarriage of justice in Raymond's case so that his conviction cannot be allowed to stand.
Conclusions
It follows that I would allow the appeals of Peter and Raymond and quash their convictions. Given that each has already served the sentence of imprisonment imposed in 1983 and the lapse of time since then, I consider that the question of a new trial does not arise.
MURRAY J: I have read in draft the reasons to be published by Steytler J. I am greatly indebted to him to have had the opportunity to do so. His Honour's careful scholarship and detailed analysis of the evidence and the materials upon which the parties variously rely has made the task of expressing my views very much less onerous.
The Petitions
There are two petitions for the exercise of the Royal Prerogative of Mercy before the Court, one by Raymond Mickelberg and one by Peter Mickelberg, to whom it will be convenient to refer by their first names. The petitions come to this Court by references by the Attorney‑General
pursuant to the Sentencing Act1995 (WA), s 140, which is in the following terms:
"140.Petition may be referred to CCA
(1)A petition for the exercise of the Royal Prerogative of Mercy in relation to an offender convicted on indictment, or to the sentence imposed on such an offender, may be referred by the Attorney General to the Court of Criminal Appeal either —
(a)for the whole case to be heard and determined as if it were an appeal by the offender against the conviction or against the sentence (as the case may be); or
(b)for an opinion on any specific matter relevant to determining the petition.
(2)The Court of Criminal Appeal must give effect to the referral."
The effect of this section is, in my opinion, the same as the provision it replaced, the Criminal Code (WA), s 21, which gave a power to the Attorney‑General to:
"(a)refer the whole case to the Court of Criminal Appeal, and the case shall then be heard and determined by the Court of Criminal Appeal as in the case of an appeal by a person convicted; or
(b)if he desires the assistance of the Court of Criminal Appeal on any point arising in the case with a view to the determination of the petition, refer that point to the Court of Criminal Appeal for their opinion thereon, and the Court shall consider the point so referred and furnish the Attorney‑General with their opinion thereon accordingly."
Here the power conferred by s 140(1)(a) has been utilised. The effect of that power is to treat the petition as an appeal. Hence the grounds of appeal formulated by both petitioners upon which they respectively rely. The Court will not, as in the case of a referral under s 140(1)(b), simply give its opinion on a specific point or points, but it will determine the case as it would an appeal. In other words it will either allow or dismiss the appeal in each case and in an appropriate case will quash a conviction and order a retrial. In other words, in these cases, having regard to the grounds of appeal and the way in which they were argued, the Court would have available to it the powers to determine the appeal by orders made under the Code, s 689(1) and (2) as appropriate. The form of the proceedings makes it necessary for the Court to consider whether the grounds of appeal raise matters which establish a miscarriage of justice or whether, on the other hand, despite the matters raised by the grounds in either case, no substantial miscarriage of justice has actually occurred.
It follows, in my opinion, that in matters such as these, which have received the attention of this Court in various forms of proceeding on a number of occasions, it is appropriate that on these references the Court should take the view that it is not called upon to adjudicate again in respect of any matter which has previously been ventilated and upon which the Court has given its decision, unless there has been some material change which may throw a new light upon a question raised by the grounds of appeal which ought to lead to the conclusion that upon particular grounds it may now be seen that a miscarriage of justice has occurred, despite the fact that a contrary conclusion was formerly reached: Ratten v The Queen (1974) 131 CLR 510, 514; Mickelberg v The Queen (1989) 167 CLR 259, 311 ‑ 312; Button v The Queen (2002) 25 WAR 382, 387 [2] and Mallard v The Queen [2003] WASCA 296 at [7] - [10].
Having regard to the way in which the last mentioned case was argued, the Court laid some emphasis upon the fact that the reference of the whole case to the Court did not imply that it was effectively to be retried before the Court of Criminal Appeal, or that matters previously heard should be permitted to be simply re‑argued in an attempt to persuade the Court to a different conclusion. The nature of the process upon which the Court is embarked in hearing and determining the references is, in my opinion, to be firmly borne in mind in respect of these references.
The matters upon which the petitioners rely have appropriately been reduced to "grounds of appeal". As amended they have been set out by Steytler J. I need not set them out again.
Peter's grounds of appeal are couched in terms of argument rather than as strictly formulated grounds of appeal, but the central matter upon which they focus attention is the new evidence, given upon affidavit and orally before this Court, of Anthony Lewandowski to the effect that the evidence which, when a serving police officer, he and Detective Sergeant Hancock gave at Peter's trial of confessional statements allegedly made by Peter when he was interrogated at the Belmont office of the Criminal Investigation Branch of the Police Service, was knowingly false. Lewandowski says that he and Hancock (now deceased) perjured themselves. In fact, Lewandowski says, although he was assaulted by the two police officers, Peter made none of the incriminating statements attributed to him. Notes of the alleged interview, upon which the officers relied to refresh their memories in giving evidence at the trial, were not made contemporaneously with the conduct of the interview, as the officers swore at the trial, but were concocted by Hancock and Lewandowski in early September 1982.
The contention in ground 5 is that the new evidence of Lewandowski:
" … establishes that all of the police evidence of interviews of Peter, Raymond and Brian Mickelberg was false and a concoction, and creates a high degree of suspicion as to the veracity of the other police evidence".
New evidence given by one Flint is relied upon in an attack upon the credibility of a Brigitte Holz. She gave evidence at the hearing of earlier petitions for executive clemency by Peter and Raymond which were together referred to this Court and heard in two stages in 1998. The Court dismissed these 1998 appeals: Mickelberg v The Queen, unreported; CCA SCt of WA; Library No 990056; 12 February 1999. Her evidence was of incriminating statements made in conversation with her then husband at their business premises. This Court accepted the truth and accuracy of that evidence and observed that if it was available at a trial it would be very powerful evidence against both petitioners. In effect, therefore, Peter's grounds at this point seek to remove this evidence from the equation.
Further, Peter's grounds rely upon new evidence of a Mrs Edwards which is relevant to an assessment of the worth of the prosecution case generally at trial and in particular relates to the evidence of then Detective Constable, now Inspector, Gillespie who, with other police officers, gave evidence of admissions made by both Peter and Raymond in the course of interviews conducted on 26 July 1982 at different times and places from that conducted at the Belmont CIB office by Hancock and Lewandowski.
Finally, the grounds propose a re‑examination of other evidence and all of the petitioners' contentions are drawn together in the proposition that the evidence relied upon:
" … establishes that the prosecution case against Peter Mickelberg was fabricated, casts grave doubt on the entirety of the police evidence, and is sufficient to show that a serious miscarriage of justice has occurred".
The grounds of appeal, again as amended, relied upon in Raymond's reference draw heavily on Peter's grounds, which are adopted by Raymond to support the general assertion in terms identical to those used in Peter's grounds that the new evidence referred to there, in particular that of Lewandowski, establishes the falsity of the police evidence of the interviews of Peter, Raymond and Brian Mickelberg "and creates a high degree of suspicion as to the veracity of the other police evidence".
The grounds go on to assert that this evidence, together with all the other evidence, "raises a significant doubt" as to whether a fingerprint said to be that of Raymond found on a cheque used to pay for part of the gold obtained from the Mint, was truly that of Raymond or a fabrication. Particulars are given and to these I shall return. The new evidence of Mrs Edwards concerning the credibility of Inspector Gillespie and the new evidence of Flint concerning the credibility of Mrs Holz is also relied upon, no doubt for the same purpose as in the case of Peter.
It can be seen therefore that to a significant extent the capacity to make good these grounds depends upon the Court's evaluation of new evidence, particularly that given by Lewandowski, Flint (and more importantly the further evidence given by Mrs Holz) and Mrs Edwards.
The Consideration of New Evidence on Appeal
There is little, I think, that I wish to add to what Steytler J has written on the question of the use to be made of new evidence tendered for the first time on appeal, in considering its impact upon a conviction validly recorded after a regularly conducted trial by jury. This was such a case and none of the matters raised in the grounds upon which the references are based would lead to a different conclusion. I do not accept the submission made by counsel for Peter that the giving of perjured evidence, if such be the case, would constitute such a fundamental irregularity in the trial process as to lead to the conclusion that the conviction should be quashed on the ground that neither Raymond nor Peter could be regarded as having had a trial according to law. None of the grounds of the references raise any matter of challenge in respect of the directions of the trial Judge or in respect of the procedures by which the trial was conducted. The evidence before the Court at trial was undoubtedly admissible and regularly admitted.
In that context then, the first question for an appellate court presented with new evidence is firstly to examine that evidence and ask itself whether the evidence is relevant to the conviction or convictions called into question and whether it is cogent in the sense that it is capable of acceptance as being true and reliable or accurate. If it is, or if the appellate court is prepared to go further and itself accepts as true and correct the new evidence, then I agree that in general terms, whether the new evidence is strictly fresh evidence or not, it will have the effect that the conviction in question must be quashed if that evidence, when considered with the evidence given at trial, is such that if it was accepted by a jury or other tribunal of fact there would be a significant possibility that the jury would have acquitted. The conviction will be quashed if it is likely that the persuasion of guilt beyond reasonable doubt achieved on the evidence given at the trial would not be attained by a jury acting reasonably, upon the whole of the evidence, including the new evidence.
The test expressed in those general terms as to when the introduction of new evidence on appeal, whether strictly fresh evidence or not, will have such an impact as to cause a conviction to be quashed requires no particular incantation or formula. But the appellate court must bear firmly in mind the need, when considering new, admissible, cogent evidence, that its task is to determine what impact there would likely be upon the process of decision‑making, applying the ordinary rules of the criminal law as to onus and standard of proof, by a reasonable jury, in the circumstance that the new evidence added to the evidentiary picture presented to the jury at the trial or otherwise had an impact upon any of the evidence given at the trial.
I do not wish to repeat the discussion of such matters by Steytler J. His Honour cites relevant authorities. I need do no more than observe that what I have written above is my attempt to distil the essence of the law as expressed in the authorities generally. It is sufficient, I think, to note the authorities discussed by Steytler J to which, in this context, I would only add a reference to Button, above, per Malcolm CJ, with whom Wallwork and Owen JJ agreed, at 391 ‑ 393 [14] – [16].
I think it important, for the purposes of these references, that generally speaking the appellate court is concerned, not with what evidence it accepts as truthful and accurate and not with where it thinks the truth lies, but with the impact of new evidence which is capable of acceptance by a jury upon the decision a reasonable jury might make on the whole of the evidence, as to whether or not it should be persuaded or remain persuaded of guilt beyond reasonable doubt.
What I do wish to do, however, is to examine the proper way to approach a case where significant evidence given at trial is recanted subsequently, as in the case of Lewandowski. It is noteworthy that in the great majority of the cases where there has been discussion of the general principles concerning new evidence, the evidence has been of a kind which could be led before a jury to add to the material evidence before them, either because it would provide new, further, or different evidence about important matters of primary fact, or because it would present a challenge to the persuasive power or the cogency of evidence led at the trial. Button was such a case and many examples could be cited.
However, that is not the case when a witness who gave evidence at the trial now comes before the Court and says upon his oath that the evidence he previously gave was untrue, indeed was perjured evidence. What is to be done in that case and in particular when the witness who would now so testify says in addition that another witness who at the trial gave the same evidence also committed perjury, indeed that they conspired together to do so? In this case that other witness is Hancock, now deceased, so that there is therefore no capacity to hear what he might say about the evidence now given by Lewandowski.
The starting point in considering such a case remains, I think, Davies and Cody v The King (1937) 57 CLR 170. The ratio of the High Court's decision lies in its observations about the sufficiency of evidence of identification, which took various forms, but in no case was by an identification parade, and the adequacy of the directions about the danger of relying upon such evidence given by the trial Judge. But it was noted that important other evidence in the case was that of a criminal associate of the two accused persons, a man named Stevens, who at the trial gave evidence that the accused persons made admissions to him that they were implicated in the murder of a security officer in the course of an armed robbery. After the trial Stevens firstly made a statutory declaration in which he asserted that the evidence given at trial was untrue, and then he made a further statutory declaration saying that the evidence given at trial was true and that his first statutory declaration was false.
The High Court was clearly of the view, as appellate courts generally are, that where fresh evidence takes the form of a recantation of sworn testimony by a witness, the matter is to be approached with considerable caution and careful scrutiny is to be made of all the circumstances. At 183 ‑ 184, the Court said:
"A declaration by a witness that he has committed perjury cannot possibly be accepted as a ground in itself for setting aside the result of a trial in which the witness has given evidence. If the contrary were held, the whole administration of both civil and criminal justice would be undermined. The subsequent discovery that some evidence (as in this case) is said by the witness who gave it to be false, or is actually proved to be false, cannot, as a general rule, be allowed as a ground in itself for setting aside a verdict or judgment. But if the verdict is open to objection upon a ground affected by such evidence, the case is different. It would not be wise to attempt to frame a universal rule even for such cases."
The High Court expressed the view that Stevens' credibility had, by the sequence of events to which I have referred, been utterly destroyed and held that his evidence at trial "ought not to be allowed to enter into the reasons for any verdict of guilty". It will be noted that the same submission is made for the appellants in this case in relation to the evidence of Mrs Holz although, of course, she gave no evidence at the trial.
The High Court in Davies and Cody went on to observe that had Stevens' evidence given at the trial been accepted by the jury, it would have been conclusive of his guilt, or at the very least would have assisted to resolve any doubts which remained in relation to the identification evidence. For that reason also, the High Court considered that the convictions must be quashed, but they took the view that on a retrial, "the evidence, without the testimony of Stevens, is enough to support a conviction if there were a proper warning to the jury." (about the dangers of the identification evidence) (185). The Court therefore ordered a new trial of both accused.
The point I notice is that the High Court considered the impact of the new evidence, not as if the evidence originally given was led and then the perjury was confessed at the trial, but upon the basis that Stevens' evidence was not given at all. The evidence which may have been a deliberate fabrication was treated as not being given at a trial. The impact of the confession of perjury upon the question whether there should be a retrial was considered having regard to the nature of the evidence, but upon the basis that the reliability of the allegedly perjured evidence had been destroyed.
Next it is convenient to refer to a decision of the Court of Appeal of Queensland, R v Bryer (1994) 75 A Crim R 456. In that case, the Crown relied very substantially upon the evidence of an accomplice. Among other difficulties with that witness was the fact that after the trial and on appeal the accomplice gave evidence recanting his evidence inculpating the appellant, given at the trial. The appeal was dismissed. In relation to the recantation the Court of Appeal concluded that the evidence of recantation was itself not cogent and ought not to be accepted. That conclusion left unaffected the evidence given by the accomplice at the trial.
The observations made by the members of the Court in relation to the approach to be taken by an appellate court in a recantation case might therefore be regarded as obiter, but the case is valuable because of the discussion of other authorities from Davies and Cody onwards. Notably, the Court discussed the Victorian case of R v Gale [1970] VR 669 and the South Australian decisions of Poulter v The Queen (1978) 19 SASR 370 and Geesing v The Queen (1985) 38 SASR 226.
The conclusion of Fitzgerald P at 458, about the approach an appellate court ought to take in a case of recantation, is:
"A recantation, after trial, by a witness who gave evidence against a person convicted, is a species of fresh evidence. Logically, if the recantation is true, the jury at trial ought not have had the recanting witness's evidence implicating the accused; there should have been either no evidence from the recanting witness, or evidence from the recanting witness exculpatory of the accused, either directly or because inconsistent with the accused's guilt. However, the ordinary application of the 'fresh evidence' test would require the appellate court to consider what the jury might have done if it had the contradictory evidence from the recanting witness, demonstrating that the recanting witness was, at best, unreliable and probably a perjurer.
Whatever the difficulties which a recantation presents, the Courts have been unwilling to conclude that a recantation must always raise the possibility of miscarriage. However, the basis for setting aside a conviction on the ground of recantation is wider than in relation to other fresh evidence. A conviction is set aside on the basis of a recantation if (i) the witness's new version of events is sufficiently relevant, cogent and plausible to raise a doubt as to guilt in all the circumstances, including the original evidence and explanations given for the original evidence and the recantation, or (ii) the evidence of the recanting witness is so untrustworthy that it 'ought not to be allowed to enter into the reasons for any verdict of guilty': Davies & Cody (1937) 57 CLR 170. In the latter circumstance, it would be inappropriate for the recanting witness to be called in the event of a retrial."
Pincus JA discussed the authorities and said that he accepted that "the ordinary test with respect to fresh evidence cannot be applied without qualification to a retraction of evidence given at a trial." (461). His Honour expressed a rather different approach from that of Fitzgerald P when, at 462, he said that in his view, where a witness recants, the verdict would not be set aside unless the appellate court considers, "having regard among other things to the reasons given for the recantation and for the original, allegedly false evidence, that there is reason to think that the latter rather than the earlier version is genuine."
The principal judgment was that of Williams J. His Honour discussed the earlier cases, but in the end contented himself with the view that, although he would generally apply the approach taken by the High Court in Davies v Cody, his Honour was not brought to that point in this case because he also found the evidence of recantation to be entirely lacking in cogency. He therefore dealt with the appeal upon the basis that the so‑called fresh evidence had not been given.
There are two relatively recent decisions of this Court to which reference should be made. The first in time is Pileggi v The Queen [2001] WASCA 260. That case also was a reference by the Attorney‑General to the Court of Criminal Appeal of the case of a petitioner for mercy. The petitioner had been convicted of fraud offences, false pretences made to insurance companies that motor vehicles had been stolen. They were related offences. The owner of the motor vehicles, which had allegedly been stolen and in one case burned, retracted her evidence that she had arranged for the appellant to take and dispose of the vehicles so that she could make insurance claims. She said that she gave false evidence against the appellant as a result of threats and promises made by police officers. At the trial evidence was also given by another co‑offender who had pleaded guilty. Again, having regard to the circumstances of the case, the Court considered that the evidence of recantation did not have the necessary cogency and plausibility to cause the convictions to be set aside and the appeal was dismissed.
The principal judgment was that of Parker J. His Honour discussed the decided cases to which I have referred, but again the matter turned on the need for the appellate court to take great care in assessing the credibility and the cogency of the fresh evidence. At [50] his Honour observed that this was obviously necessary in a case of recantation where:
" … the very foundation of the fresh evidence is an assertion by the witness that he or she gave false evidence on oath at the trial. When evidence is offered on that footing there is every reason for considerable circumspection about what is now offered as the sworn evidence of the witness. Very careful scrutiny is required, especially as to the reasons now offered for giving the allegedly false evidence at trial and for the decision to give different evidence now. This is so, not only as a matter of fact, but also because of the need to guard against the possibility of manipulation to which the administration of justice is so vulnerable in this respect."
The other case to which I wish to refer is the decision of the Full Court in Bourne v Elliss [2001] WASCA 290. In that case the appellants had been convicted of offences of common assault in the Court of Petty Sessions. The offences were committed upon young children, one of whom gave evidence before the Full Court recanting the evidence given at trial. Again, the case turned upon the question of the cogency of the recantation and the appeal was dismissed.
The principal judgment was that of Miller J, with whom Malcolm CJ agreed. Miller J reviewed the authorities in relation to the approach to be taken by an appellate court where an important witness retracts evidence given on oath at trial. His Honour accepted that the appropriate approach was that taken by Fitzgerald P in Bryer. In separate reasons Roberts‑Smith J agreed.
With respect, I also agree. It seems to me that, essentially for the reasons given by Parker J, in a recantation case it is important to scrutinise closely the evidence of the recanting witness; but if, at the conclusion of that process, the view taken by the appellate court is that the witness's evidence now given is capable of belief and acceptance as being accurate and reliable then, if it is the case that the new evidence itself is such as to raise a doubt as to the appellant's guilt, the conviction must be quashed and the question of a new trial considered.
I interpose the observation that none of the evidence to which I have referred and upon which reliance is placed in this case is of that character. The most powerful evidence, of course, is that given by Lewandowski, but the effect of that evidence is not itself to raise a doubt as to guilt, but simply to remove from the total evidence capable of establishing guilt, evidence of particular admissions.
The question then, it seems to me, is whether the evidence of the recanting witness, Lewandowski, is, although capable of belief, established to be so untrustworthy and unreliable that, as it was put by the High Court in Davies v Cody, it "ought not to be allowed to enter into the reasons for any verdict of guilty". In that event, the approach to be taken by the Court in considering whether the conviction or convictions should be quashed will be to disregard the evidence of the witness entirely, particularly the inculpatory evidence given at trial. It should not, in my respectful opinion, imagine what the effect on a reasonable jury would be likely to be if the recanting witness, having given incriminating evidence at the trial, had then confessed to perjury before the jury, a sequence of events which did not and would not happen.
Consideration of the matters raised in the grounds of the references by way of challenges to the reliability of the evidence given at the trial will in this case result in this Court forming a view as to that body of evidence which would remain worthy of consideration by a jury and the formation of a view as to its persuasive power. Then, as it seems to me, the task of this Court is to ask itself the standard question for an appellate court, whether the convictions sustained by each of the petitioners, or any of them, reflect a verdict of the jury which, in terms of the Code, s 689(1), should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence, thereby demonstrating that a miscarriage of justice has occurred.
It is well accepted that the alternative formulation of that task is that of the High Court in M v The Queen (1994) 181 CLR 487, at 493, where the Court observed that the question is not whether the appellate court is persuaded that the appellant is innocent but:
" … it will set aside a conviction whenever it appears unjust or unsafe to allow the verdict to stand because some failure has occurred in observing the conditions which, in the Court's view, are essential to a satisfactory trial, or because there is some feature of the case raising a substantial possibility that, either in the conclusion itself, or in the manner in which it has been reached, the jury may have been mistaken or misled."
See also Jones v The Queen (1997) 191 CLR 439, 450 ‑ 452; Dyers v The Queen (2002) 210 CLR 285, 308 [62] ‑ [63]; and Pileggi per Parker J at [44].
While not overlooking the fact that it is not the tribunal of fact, the appellate court must review the available evidence, absent the evidence of the recanting witness, for itself to determine whether the jury ought to have had a reasonable doubt. If so the appellant has lost a chance of acquittal and the conviction must be quashed. The question is whether it would be open to a jury to be persuaded of guilt beyond reasonable doubt: MFA v The Queen (2002) 77 ALJR 139, 144 [25] ‑ [26], 148 ‑ 149 [52] ‑ [58]; and De Gruchy v The Queen (2002) 211 CLR 85.
In that context it may, of course, also be necessary to consider whether the appeal should be dismissed on the ground that no substantial miscarriage of justice has actually occurred, a course urged upon us in this case by the respondent.
It is noteworthy in this last respect that expert evidence was given, in the 1987 appeals, by a Mr Harold Tuthill, who was then employed in Canada at the Ontario Police College as "co‑ordinator of criminalistic subjects in the identification training section and assistant co‑ordinator of identification training" (1987 transcript page 794). He had also recently completed an 80‑page publication on the analysis, comparison and evaluation of "crime marks". He said, in the course of his evidence (1987 transcript page 857), that the only thing that he found to be "a bit peculiar" in examining the fingerprint was the position of the finger on the document. He said (1987 transcript pages 858 - 859), that, given that it was a print of a right index finger, he found it "in an unnatural position", being the position in which one would normally expect to find a left index finger if the document was being removed from a typewriter. He also found it "a bit unusual" (1987 transcript page 859) that there was no ridge detail on the opposite side which would conform to a thumb. He said, in that respect, that, while not every latent print develops in ninhydrin, "if one digit does usually they all do" (ibid). Tuthill also said (ibid) that he had "seen a lot of fraudulent cheques and ... a lot of latent fingerprints on fraudulent cheques" and that he found this impression "to be just in a slightly unusual position" and that normally fingerprints are found on fraudulent cheques either where the person has held the cheque while signing it or where he has held it while endorsing it. He said (ibid) that this was so "because normally the type of fingerprint impression that will develop up with ninhydrin is not left by casual handling. It is usually left as a result of some contact with the finger which persists for a few moments ...".
When Tuthill gave this evidence he was not aware of the fact that there were two more fingerprints, of the same finger, all with the same orientation and on the same section of the back of the cheque.
Of course, the 1998 Court took into account Tuthill's evidence in finding nothing significant in the fact of the discovery and orientation of the two additional fingerprints. However, we were, once again, invited to revisit this issue in the light of the fresh evidence of other police fabrication.
(vii) The expert evidence
I have earlier said that the 1998 Court was of the opinion that the experts called by the prosecution in 1998 in respect of the genuineness of the fingerprint were more impressive than Nesbitt and that the Court referred to the "severe" difficulties that a forger would experience. Moreover, in their summary of the judgment dated 12 February 1999, the Court expressed the opinion (page 9) that there was "cogent and compelling evidence that the fingerprint was made by Raymond's natural finger" and that "there is no possibility whatever of a jury finding that the fingerprint was not made by Raymond's natural finger". It had said, at page 171 of its judgment, that all of the prosecution experts were of the opinion, from an examination of the fingerprint, that it was genuine. Also (although this was not referred to by the 1998 Court), two of the prosecution's expert witnesses, Warboys and a Mr Brian Norton, thought the "crime mark" was not in an unnatural position, especially if it was placed on the cheque in the course of removing it from a typewriter (1987 transcript page 1556, and pages 1702 and 1735, respectively).
However, it was also the case that there was little doubt, on the expert evidence, that it is possible to produce a forged fingerprint in such a way that it cannot be said with certainty whether or not it is genuine.
Henning, in his evidence given in 1987 (1987 transcript page 638), remembered attending a Canadian Police College course in 1981 which dealt with the detection of fingerprint forgeries. He said (1987 transcript page 639) that one method described was that of making an impression with a rubber mould of a finger and that (1987 transcript pages 625, 641) there was no way of telling whether the fingerprint had been placed on the cheque using a rubber digit or using Raymond's finger itself. He added, in his evidence in 1998, that it would probably be common knowledge that fingerprints could be fabricated with the use of rubber fingers and (1987 transcript page 672) that it was "pretty widely known, not only to fingerprint officers", that it was possible to forge fingerprints.
Mr Reginald King, a retired English police officer who had many years of fingerprint experience and who gave evidence in the 1987 appeals, said (1987 transcript page 888) that he held the "strong" opinion that it was not possible to determine whether the fingerprint in question was made by a rubber finger or a flesh finger (although, as has been said above, the Court of Criminal Appeal, in the 1987 appeals, was critical of his credibility).
Mr Malcolm Thomson, a retired police officer who had formerly served with the Edinburgh City Police in Scotland, also with considerable fingerprint experience, said (1987 transcript page 1008):
"It is my opinion ... , after producing literally hundreds of impressions from … [a] silicone finger [which had been supplied to him] that it is not possible to tell whether the finger impression on the cheque was made by a natural finger or by a silicone finger."
He also said (1987 transcript page 1073) that the fingerprint on the cheque could have been made either by a natural finger or by a silicone fingerprint of Raymond Mickelberg's right forefinger.
Mr George Bonebrake, another fingerprint expert called by the petitioners in the 1987 appeals, said that it was not possible to determine whether or not the fingerprint on the cheque had been made from a human finger or from a replica finger (1987 transcript pages 1089, 1115).
Mr Robert Olsen, who was, as I have said, yet another expert called on behalf of the appellants in 1987 (he was an employee of the Kansas Bureau of Investigation), accepted (1987 transcript pages 1174 ‑ 1175) that the fingerprint in question in this case could have been forged.
Tuthill, in his evidence given in 1987, said (1987 transcript page 817) that a person working skilfully and cleverly could make an impression with a silicone rubber finger which, if a poor quality impression of the type found on the cheque, could not be distinguished from a real fingerprint. He also said that experimentation conducted at the Ontario Police College revealed that the only successful technique used to forge a fingerprint which might fool expert examination was through the use of a silicone or latex rubber cast. He said (1987 transcript page 843) that the fingerprint found on the cheque was consistent with having been made either by a silicone rubber cast or by a "genuine" finger.
Warboys, in the course of his evidence given to the 1998 Court, said (1998 transcript page 852) that it was possible to forge a print using a rubber finger and that he would not claim always to be able to differentiate between a print made by a genuine finger and one made by a rubber finger.
Mr Peter Swann, a fingerprint expert called by the prosecution, was asked (1998 transcript page 899) whether he was confident, if shown a set of photographs of genuine fingerprints and some of fabricated fingerprints made by the use of a rubber silicone finger, he could "spot the difference". He responded by saying that there "may be a possibility of detecting" the difference if he had the rubber silicone finger which had been used and also a fingerprint form of the real person.
Mr Kenneth Luff, another fingerprint expert called by the prosecution in 1998, said (1998 transcript page 652) that it seems to have been possible, for the last 30 years, for a print to be produced which cannot be detected or differentiated from a genuine print (see also 1998 transcript page 710).
Some evidence was also given, in the 1998 appeals, as regards the "lifting" of a print. A good deal of this has been referred to above. However, it is important to mention that Mr Thomas Thompson, an expert called by the prosecution who had, for many years, been a supervisory fingerprint specialist with the Federal Bureau of Investigation in the United States, told the 1998 Court (1998 transcript page 953) that, where a print had been "lifted" from a smooth surface with no design or scratch marks and then placed on an object, it would probably not be possible to tell that it had been "lifted".
Consequently, while there was no evidence that the so‑called "crime mark" was in fact a forgery, and while there was a good deal of expert evidence to suggest that it was not a forgery (although at least one of the experts who gave evidence to that effect, Norton, appeared to base his conclusion upon the ground that he could not show that the fingerprint was a forgery), there was also a good deal of evidence to suggest that a forgery of the kind alleged is possible (albeit, as the 1998 Court said, difficult, for the reasons which it gave) using a good quality silicone rubber cast or, perhaps (although there was less evidence to support this possibility, which involved even greater difficulty), by some "lifting" technique.
(viii) Fingerprint evidence - conclusions
A number of conclusions can be drawn from all of this evidence.
The first is that it would be open to a jury to find that silicone rubber hands were removed from Raymond's home by the police on 15 July 1982. That was the evidence of Peter, Raymond and Sheryl Mickelberg, albeit they differed as to the time of removal. It might also have been the evidence of Tovey at the trial, albeit he later denied that he had intended to convey this. While there was no evidence that any such hand was capable of providing a reasonable quality fingerprint (and it should be remembered that the "crime mark" was not a fingerprint of good quality), and while it seems that Raymond struggled, thereafter, to produce a mould which could create a reasonable quality fingerprint, it is not now possible to know, with any certainty, what was the quality of the moulds removed from Raymond's home if, of course, a jury should accept that any such moulds were, or might have been, removed. It is important to bear in mind, in this respect, what was said by Toohey and Gaudron JJ in the extract from their judgment in Mickelberg v The Queen, at 303, quoted earlier in these reasons, to the effect that the possibility of forgery cannot be answered by pointing to the failure of Raymond and Peter to adduce evidence establishing positively that, as at 15 July 1982, there existed a mould capable of making a fingerprint.
The second conclusion is that, while it would undoubtedly be difficult, on the expert evidence, to produce a forged fingerprint of acceptable quality from a silicone rubber finger (and even more so by means of a "lifting" technique), there was a good deal of evidence to support the proposition that it was possible to do so and that the fact that the fingerprint looked genuine did not necessarily mean that it was genuine. This evidence included that of Henning, who, as I have said, had heard of the technique of using a rubber mould and said that this possibility was common knowledge. While the experts called by the prosecution refuted the suggestion that the "crime mark" was a forgery, those called by the petitioners left that possibility open.
The third conclusion is that there were significant anomalies in the fingerprint evidence, even putting to one side (as the 1998 Court emphatically did) the suggestion that the evidence as regards the "continuing development" of the "crime mark" was consistent only with the proposition that it had been treated with ninhydrin for the first time on 15 July 1982 and the suggestion that there was anything untoward in the evidence first given by Henning to the effect that the fingerprint had disappeared after its treatment in Canberra.
The first of these anomalies is the failure, contrary to accepted practice, to photograph the "crime mark" (notwithstanding its propensity to fade or even disappear) or otherwise to record its existence when first it was said to have been discovered.
The second is that neither Round nor Lewandowski knew of the unidentified fingerprint, seemingly until 16 July 1982. While there was the evidence of McCaffery and Neville to the effect that it did exist prior to that date, there are difficulties with the evidence of McCaffery and Neville was not confident in his recollection.
The third is that Hancock made no record of the existence of the fingerprint in his journal until 23 July 1982, notwithstanding his practice of keeping a record of such matters.
The fourth is that, notwithstanding that the police knew of Raymond's 1976 conviction on 9 July 1986 (by which date he was already a suspect) and had examined the Federal Police file in respect of it on 12 July 1982, no steps were then taken to arrange for any comparison of his fingerprints with the "crime mark" and, indeed, the running sheets for 12 July 1982 made no mention of the need to do so, all of this notwithstanding that, on Hancock's own evidence, there was, even on 15 July 1982, very little to "implicate" Raymond.
The fifth is that no attempt was made to obtain the fingerprints of any of the Mickelberg brothers when they first became suspects, or at any time until 15 July 1982, when only Raymond's fingerprints were taken.
The sixth is that there is no satisfactory explanation for the fact that Gaspar himself neither performed, nor was asked to perform, any comparison when he took Raymond's fingerprints on 15 July 1982 during the period in which Raymond was being interviewed by Hancock and Round, notwithstanding that this would have taken only five minutes and that Hancock then wanted to place Raymond under pressure. I have said that one of the possible explanations offered by the 1998 Court for Hancock's failure to request a comparison is now no longer tenable in the light of Lewandowski's evidence.
The seventh is the fact of Henning's change of evidence.
The eighth is the failure to explain both the origin of the negatives numbered 26 and 27 on the roll of "Kodak Safety Film" forming part of exhibit 73 and the whereabouts of the roll of film described by Kobus under the heading "TP/15/82".
The ninth is the discovery, by Nesbitt, of the second and third fingerprints and the fact that these, like the first, might, on one view at least (that of Tuthill, albeit others, such as Warboys and Norton, were of a different opinion), be thought to be in an unusual position and, perhaps less significantly, given what the experts said in that respect, to lack any identifiable opposing thumbprint. While the 1998 Court said, for reasons which I have set out, that the finding of the second and third fingerprints was inconsistent with the alleged conspiracy (notwithstanding what had been said, to the opposite effect, by Warboys), that was at least in part because the Court considered that, if forged, the conspirators would have very likely drawn attention to them. In my respectful opinion, that does not necessarily follow. It may be that a conspirator or conspirators (if there was or were such) would make more than one attempt at a forgery (as Warboys had suggested would be the case) and would not want any attention to be given to his or their less successful attempts. The 1998 Court also said that it was unlikely that a forger would have stayed his hand when the forged fingerprint was still inadequate for use in court. However, it is possible that such a person, if there was one, might have known that the best effort, if enhanced, might suffice.
These anomalies, and the other conclusions to which I have referred, have not newly been discovered or arrived at. All of the relevant material was considered by the 1998 Court which, as I have said, concluded that there was "no possibility whatever of a jury finding that the crime mark was not made by Raymond's natural finger" (page 238 of its judgment). However, that conclusion was based upon the whole of the evidence then available and consequently took into account the fact that the evidence of Hancock and Lewandowski, in particular, then appeared to be both cogent and credible. That is no longer the case. While the evidence still falls well short of establishing that Raymond's fingerprint was forged, it seems to me that a reasonable jury, taking into account the evidence of gross dishonesty on the part of Hancock and Lewandowski, and the other defects in the police evidence to which I have referred, might well look at the various anomalies in the fingerprint evidence with considerably more suspicion than might otherwise have been the case. That being so, it seems to me, it would be open to a jury to conclude that there is a reasonable doubt as to the genuineness of the fingerprint.
(c) The Evidence of Mrs Holz
That brings me to the evidence of Mrs Holz. I have already dealt with it fully. As I have said in dealing with Peter's appeal, it is enough to reiterate that I formed the very strong impression that the many inconsistencies in, and difficulties with, her evidence are such that a reasonable jury is unlikely to place any reliance upon it.
(d) Circumstantial Evidence Against Raymond
Finally, there is a substantial amount of circumstantial evidence against Raymond.
(i) The Gulley account
Most significantly, there is the fact that two of the cheques used to effect the Mint fraud were drawn on the Peter Gulley account being, as I have said, an account operated by Raymond in that name.
As will be apparent, Raymond's counsel contends that there is a reasonable hypothesis consistent with Raymond's innocence in that some other person who committed the fraud (on this hypothesis), having found Raymond's lost passbook, used the passbook's account number on the two cheques to throw suspicion on Raymond and hence to divert it from himself. Raymond's evidence in that respect was that his file containing various papers, including the Gulley passbook and a cheque payable to Wilson, drawn on the Gulley account, had been lost or stolen weeks before the fraud. This hypothesis is said to be supported by the fact that there is a note in Raymond's diary (taken by the police in the course of one of their visits to Raymond's home) which, he says, was contemporaneously written and which reflects this. That note, which is said to have been written on 28 May 1982, reads as follows:
"Check lost and found for folder."
There is also a second entry on that day which reads:
"Ring Peter check for my folder and book."
The two entries are respectively the first and last of a total of six entries made on that day, the first entry being on the very top line of the segment for Friday, 28 May, next to the heading "Week 22 148‑217". An examination of the diary reveals that, while entries are sometimes made on the top line containing the week and day identifier, Raymond's more usual practice was not to make any entries on that line.
Raymond's evidence in this respect was also said to be corroborated, to some extent, by two witnesses who gave evidence at the trial.
The first of these was an electrical salesman, Mr Douglas Walsh, who said that Raymond used to buy all of his electrical goods from the shop in which he (Walsh) worked. He said that Raymond came into his shop on Thursday 27 May and bought a "National iron". He said that Raymond paid for the iron with money out of a black foolscap folder. On the following day, he said, Raymond rang him and said that he had lost the folder and that there was a bank book inside it which belonged to a friend. Walsh said he looked for the folder but could not find it. He said that he was able to remember the date because it was the first Thursday that he had not had to work during the evening. He also gave evidence to the effect that he had known Raymond for eight years but that, during that time, he had only met him on about eight occasions.
The second witness was Mrs Rosemary Knight, the owner of a bakery at the Warwick Grove Shopping Centre. She said that, one morning during May 1982, a man came into her shop and made a purchase. Some 20 minutes to a half hour later, he returned and asked her if she had found a folder that he may have left on the counter. She said that she told him that he had not left the folder there. She believed that he had had it in his hand when he left the shop. She also said that on the following day the man returned and asked her if she had found the folder. When she said that she had not, the man said that he was very upset about it because it contained valuable information, albeit only valuable to himself. She went on to say (appeal book pages 1211 - 1212) that:
"He also said that should anybody else come in and ask me if he had been the gentleman who left the folder on my counter and had been to the shop, would I explain to the person who came in, or people, that he had been back to my shop for the folder."
When cross‑examined about this last, rather odd, piece of information, she said that a man did come in, a couple of days later, and ask her if there had been anyone in her premises looking for a folder. She said that that man had been dressed in a suit.
Knight said that her recollection that these events occurred during the month of May was based upon the fact that they happened at the time of the month when the business did not get a lot of large orders for bread rolls and the like, but that, shortly before the first man came in, she had taken a large order for the end of May 1982.
(ii) Raymond's other accounts and the bullion purchases in false names
Next, there are the facts, established by the evidence at the trial, that Raymond operated other accounts in false names and purchased gold from the Mint in false names.
I have earlier said that Raymond operated an account or accounts in the name of Colin Wilson. He also operated an account (with PBS) in the name of Otto Kleiger.
As to the purchase of gold from the Mint in false names, Raymond's evidence at trial (appeal book pages 993 - 994) was as follows:
"I think, it is not in dispute, that from time to time you have purchased gold bullion from the Mint?---That's true.
How would you go about purchasing the gold bullion from the Mint?---Ring up, ask the price of gold, ask if it was available, ask how much, how much it would cost for 'x' ounces, get a bank cheque and go and pick it up.
Did you pick up gold paying with bank cheques?---I have.
Did you ever use a false account to get a bank cheque to pick up gold?---Not to pick up gold.
What accounts would you use to pay for the bank cheque?---I would generally draw the money from my own accounts.
When you say your own accounts would they be - - ?
---R.J. Mickelberg or R.J. and S., depending on which account but always from the account Mickelberg or, correction, possibly Kalbarri Seafoods which was the company which we owned in Kalbarri.
Then you would buy a bank cheque with this money?---Correct.
And present it at the Mint?---That's correct.
Collect the correct amount of bullion?---Correct.
Did you use any false names when you collected the bullion at the Mint?---Always.
Can you tell Mr Foreman and ladies and gentlemen of the jury why you collected it in a false name from the Mint?---As I said, the profits from gold, either in nugget form or bar form, could put you in a position where you would have to pay tax. If one wants to avoid that and knowing that the Taxation Department cross‑reference with the Mint and everyone else, if you give your right name to the Mint you can be assured that when you sell it, if you make a profit and do not declare it on your taxation, that you will get a visit from the Taxation Department.
Can you tell us some of the false names that you gave to the Mint at the time of collection of the bullion?---Only about three; Pacific Trading, Bailey, maybe Rogers."
Raymond's evidence was accordingly to the effect that he used these false names, both in opening bank accounts and in purchasing gold from the Mint, in order to evade tax. However, the evidence of the use of these false names and of the use of the Gulley account number on the two PBS cheques used in the fraud was regarded as very significant by the 1998 Court, which regarded Raymond's explanations as improbable. I have earlier referred to its comments, at pages 142 and 143 of the judgment, as follows:
"Generally, on a reading of the transcript of the evidence at the trial, Raymond's explanations as to why he withdrew the $20.00 building society cheque from the PBS Gulley account in favour of Wilson, and how he came to lose the cheque and the passbook, leave a strong impression of dissembling. The jury would have been entitled to form the view, from Raymond's responses when cross‑examined, that he was not an honest person or a credible witness. It was open to the jury to disbelieve Raymond's version that he lost the Gulley passbook and to find that he was the source of the PBS cheques used in the Mint fraud. They would then have had little difficulty in finding that he used the WABS cheque, as there was evidence that the PBS cheques and the WABS cheque were completed on the same typewriter.
It was also open to the jury to find that Raymond's conduct in operating a series of accounts with different banks and building societies in false names, in utilising those false names to purchase bullion from the Mint, in applying for and obtaining several bank and building society cheques in very small amounts for no apparent purpose, and in utilising bank and building society cheques to purchase bullion from the Mint, together constituted part of a plan to commit the Mint fraud. It was also open to them to infer that the withdrawals from the Wilson account were used to pay the rentals for Suite 3, Barker House, 49 Hay Street Subiaco. Further, it was open to the jury to find that within a matter of days of Peter being told about the enquiry concerning Gulley, bank documents were burnt at Raymond's home …".
(iii) Raymond's familiarity with Jandakot Airport
A much more peripheral item of circumstantial evidence, relied upon by the prosecution, was that Raymond held a commercial pilot's licence and had trained for it at Jandakot Airport, which was well known to him. Peter, too, had regularly attended Jandakot Airport and held a student pilot's licence. Brian was, as I have said, a helicopter pilot operating from Jandakot Airport.
(e) Conclusions – Raymond
There undoubtedly remains a strong case against Raymond, even putting to one side the police evidence of admissions allegedly made by him and putting to one side, also, the evidence of Holz.
It would quite plainly be open to a jury to reach the conclusion, if it should prefer the expert evidence offered by the prosecution to that offered by the defence, that, notwithstanding the various anomalies to which I have referred, the "crime mark" on the WABS cheque was Raymond's fingerprint and not a forgery. Also, the circumstantial evidence against him is powerful and, as the 1998 Court found, his evidence of the loss of the passbook leaves an impression of dissembling. This is so even if regard is had to the evidence of Walsh and to the rather curious evidence of Knight. While Raymond's counsel sought to bolster his answers to the circumstantial evidence by saying that it was unlikely, if Raymond had committed the fraud, that he would have placed an account number on two of the cheques which could be traced to him, more particularly when a bogus account number had been placed on the third cheque, this argument is not especially compelling. The fact remains that the account was kept in a false name, with an address that had only a tenuous connection to him, and he may have believed that it would not be traced to him.
The question of Raymond's guilt or innocence is, of course, one for a jury, trial by jury being the foundation of our criminal justice system (R v McIlkenny [1992] 2 All ER 417 at 425, per Lloyd, Mustill and Farquharson LJJ), and it is important that this Court should not usurp the jury's role. Given that a reasonable jury might well not be prepared to rely upon the police evidence of admissions made by or concerning Raymond (and, indeed, would inevitably share the feelings of abhorrence which any decent‑minded citizen would feel for conduct of the kind described by Lewandowski, being conduct which undermines the integrity of, and public confidence in, the justice system), given, also, that it is now open to a jury to conclude that there is a reasonable doubt as to the genuineness of the fingerprint and given that Raymond does, at least, offer an explanation for the circumstantial evidence which is not incapable of acceptance, I am unable to conclude that the case against Raymond remains so strong that it must inevitably result in his conviction by a reasonable jury. Rather, it seems to me that there is a significant possibility that, in the light of all of the admissible evidence, including that given at the trial, a reasonable jury would acquit Raymond. It follows that, in my opinion, there has been a substantial miscarriage of justice.
Moreover, as with the case against Peter, the admissions allegedly made by Raymond were placed at the forefront of the Crown's case against him and were given considerable emphasis by the trial Judge who, as I have twice mentioned, told the jury that, if they found that the allegations against the police were unfounded, then they might well take the approach that, if the accused had "told lies about the police in relation to such an important matter, what weight can you give to the evidence of the accused in relation to other matters?" It consequently follows that if the jury did place the evidence of admissions at the forefront of their consideration, as they may well have done, and if, as they may also well have done, they found that Raymond's allegations against the police in that regard were unfounded, they may, very likely, have concluded that they could give no weight to his evidence in other respects. Indeed, as in the case of Peter, they may well have regarded the evidence of admissions made to the police as being conclusive of guilt.
In these circumstances, and given my conclusion that the fresh evidence now available plainly casts doubt upon the police evidence of admissions made, except to the limited extent to which they were confirmed by Raymond, it seems to me, once again, that there is a substantial possibility that the jury reached its verdict in reliance upon false evidence and was consequently misled in the manner in which it reached its conclusion. Once that conclusion has been reached, and having regard, again, to the fact that it is not for this Court to usurp the function of a jury, it seems to me that there has, on this basis also, been a substantial miscarriage of justice such that Raymond's conviction cannot stand.
Conclusions and the Question of Retrial
I would consequently allow both appeals and quash the convictions of Raymond and Peter. Given that each has already served the sentence of imprisonment imposed upon him, and given, also, the lapse of time since the trial, there is no question of a retrial being ordered.
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