Muller v The State of Western Australia
[2014] WASCA 81
•16 APRIL 2014
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: MULLER -v- THE STATE OF WESTERN AUSTRALIA [2014] WASCA 81
CORAM: BUSS JA
MAZZA JA
HALL J
HEARD: 4 MARCH 2014
DELIVERED : 16 APRIL 2014
FILE NO/S: CACR 257 of 2012
BETWEEN: CARL MARK MULLER
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :SWEENEY DCJ
File No :IND 33 of 2012
Catchwords:
Criminal law - Appeal against conviction - Fresh evidence - Evidence of inconsistent out of court statement by complainant - Whether fresh evidence relevant only to credibility can establish a miscarriage of justice - Whether reasonable jury could accept fresh evidence as true - Whether evidence could cause a reasonable jury to doubt complainant's evidence - Complainant not called at appeal hearing - Whether, on whole of evidence, there is a significant possibility that appellant could be acquitted
Legislation:
Nil
Result:
Leave to appeal granted
Appeal allowed
Conviction quashed
Retrial ordered
Category: B
Representation:
Counsel:
Appellant: Mr S B Watters
Respondent: Ms C Barbagallo
Solicitors:
Appellant: Marc G Saupin Pty Ltd
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Amiss v The State of Western Australia [2006] WASCA 171; (2006) 165 A Crim R 387
ARK v The State of Western Australia [2014] WASCA 45
Beamish v The Queen [2005] WASCA 62
Caratti v The Queen [1999] WASCA 91
Coffman v The Queen [2010] WASCA 54; (2010) 202 A Crim R 375
Craig v The King [1933] HCA 41; (1933) 49 CLR 429
Gallagher v The Queen [1986] HCA 26; (1986) 160 CLR 392
Mickelberg v The Queen [1989] HCA 35; (1989) 167 CLR 259
Mickelberg v The Queen [2004] WASCA 145; (2004) 29 WAR 13
O'Meara v The State of Western Australia [2013] WASCA 228
PAS v The State of Western Australia [2009] WASCA 210; (2009) 212 A Crim R 546
Ratten v The Queen (1974) 131 CLR 510
Shrivastava v The State of Western Australia [2010] WASCA 96
White v The Queen [2006] WASCA 62
BUSS JA: I agree with the orders proposed by Hall J. I also agree with his Honour's reasons and the additional comments of Mazza JA.
MAZZA JA: I agree with Hall J for the reasons that he gives that this appeal must be allowed, the convictions set aside and a new trial ordered.
I wish to add some comments of my own about Ms Gunkel's testimony.
The relevance of Ms Gunkel's fresh evidence lies in its capacity to undermine the credibility of TH's evidence concerning the sexual acts allegedly committed by the appellant. For reasons which are unknown (and about which I do not speculate), the respondent did not adduce any contradictory evidence from TH. Ms Gunkel's evidence, which was given by video link from South Africa, was relatively brief. Her examination in chief was, in essence, a confirmation of the three affidavits she had sworn. Those affidavits are, in substance, consistent.
In cross‑examination, Ms Gunkel did not shift from what she had said in her affidavits. She appeared to have a good recollection of the conversations and the events surrounding them. Her account was not obviously implausible or far‑fetched. Her demeanour while giving evidence, insofar as that may be a guide to credibility, did not give rise to any concern on my part. The criticisms of Ms Gunkel's evidence made by the respondent have been dealt with by Hall J. Having heard and seen Ms Gunkel's testimony, and bearing in mind its uncontradicted nature in this court, I conclude it would be open to the jury to accept her testimony. In all the circumstances, it gives rise to a significant possibility that the appellant would have been acquitted.
HALL J: On 17 August 2012 the appellant was convicted after a trial in the District Court of five counts of indecent dealing with a child under 13 years of age and two counts of sexual penetration of a child under 13 years. On 24 October 2012 he was sentenced to a total effective term of 5½ years' imprisonment and was ordered to be eligible for parole. He now seeks leave to appeal against his conviction.
All of the offences related to the same child, TH, who was the 12 year old daughter of friends of the appellant. The offences were alleged to have occurred between 31 December 2009 and 30 June 2010. The evidence of TH was pre‑recorded on 20 June 2012 and incorporated two visually recorded interviews between TH and the Child Interview Assessment Team.
The sole ground of appeal is that fresh evidence has emerged that establishes that a miscarriage of justice has occurred. The fresh evidence is said to be that on 19 July 2012 the complainant told a friend that her allegations of sexual offending by the appellant were untrue. An application to adduce evidence from the friend regarding this conversation was filed on 25 February 2013.
It was accepted by the respondent that the evidence was not known to the appellant at the time of trial and could not, with reasonable diligence, have been discovered. In these circumstances the application to call the friend, Ms Chanelle Gunkel, was granted. She gave evidence at the appeal in order for the court to determine the relevance, credibility and cogency of her evidence.
The question in this case is whether the fresh evidence, considered in the context of all of the other evidence given at trial, has sufficient cogency to establish that there is a significant possibility that the jury would have acquitted the appellant had the fresh evidence been known. That question needs to be understood in the context that the fresh evidence is evidence that is relevant only to the credibility of the complainant. Accordingly any assessment of the potential significance of the evidence needs to take into account:
1.the extent to which the prosecution case depended upon the evidence of the complainant;
2.whether the fresh evidence could materially affect an assessment of the complainant's evidence that the sexual offences occurred; and
3.the extent to which there was other evidence that supported the complainant.
It is necessary to commence with a summary of the evidence called at the trial.
Prosecution evidence
TH (the complainant)
TH said that the appellant was a friend of her parents and that they had known him for five years since first arriving in Australia. She said that the appellant was known to her and her siblings as 'Uncle Mullings'. She said that he would come to the house to visit her parents.
TH said that there were two or three occasions on which the appellant stuck his tongue into her mouth and that the first time it occurred was in January 2010 when she and her little sister were playing in their room. She said that he entered the room and said, 'Hello my darling' and then hugged and kissed her little sister. She said that her little sister then ran out to greet the appellant's wife. The appellant then leaned over and kissed her on the mouth, pushing his tongue in and out once. She did not like it and felt disgusted. She remembered the first tongue kiss particularly because it surprised her. This conduct was the subject of count 1 on the indictment.
In cross‑examination TH agreed that the appellant and his wife would often enter the house through the back door and that greetings would usually take place in the kitchen. These greetings would usually consist of hugs and kisses and that the appellant would kiss her on the lips as would his wife. She said that her mother and father would also kiss her on the lips. However, she said that on this occasion neither she nor her sister had rushed to the door to greet the appellant and his wife because they were in their bedroom. She maintained that the appellant came to her room. She denied a proposition that the appellant had never been to her room and insisted that the tongue kiss did occur.
TH said that she could remember the appellant coming to her room on another occasion. She was in bed and he lifted up a blanket and touched her breast. She said that this was around January or February 2010. She believed it was shortly after 9.30 pm, when she usually went to bed. She said that in summer she slept in shorts and a singlet and was not wearing a bra. She said the appellant walked in, lifted up her singlet and felt her nipple. He put his whole hand on her and then walked out. She said he touched her left breast and his hand was large enough to fit around the whole of it. She demonstrated a squeezing motion. She said that she knew it was the appellant because he was the only one who would have done it and because she believed she opened her eyes a little bit and saw his face. She said that after he walked out she got up and closed the door. She said that she did not feel safe because her room was away from others and near the toilet. She said that on the night in question her younger sister was not sleeping in her room. This conduct was the subject of count 2 on the indictment.
Counts 3, 4 and 5 were all alleged to have taken place on Australia Day 2010. TH said that she and others were at the home of friends of her parents. There was a spa which the children were allowed to use. TH was confused as to which year it was, but it was agreed by other witnesses that the occasion on which the children were allowed in the spa was Australia Day 2010. TH said that she and a number of other children were in the spa when the appellant jumped in. She said that whatever direction she moved in the appellant would follow her. She said that the appellant pulled her hand and forced it under his shorts. She could feel hair and pulled her hand away fast. He then pulled on her foot and placed it on his penis. She said he also tried to put his hand on her privates and that he succeeded in putting a finger into her vagina. She said that she was shocked and that when this happened he was in front of her and under the water. She got out and called for a towel and then went inside to change.
In cross‑examination TH maintained her account of what had occurred. It was suggested to her that the appellant was never in the spa with her but she maintained that he was.
TH said that on a subsequent occasion the appellant had come to her house to watch movies. She thought this was around April 2010 and in any event before her birthday in May. She said it was a weekday and her mother was working and her father was on sick leave. She said that she was lying on the lounge room floor partly covered by a blanket. She said that the appellant had moved his hand under the blanket and fiddled with her bra strap. She then went to her room. Shortly after this the appellant used the toilet in the laundry. He then came to her room and asked why she had gone to her room. She said that she did not like the movie and he asked her to come back and watch it. In cross‑examination she insisted that the incident had occurred notwithstanding that her father was in the lounge room at the time. This conduct constitutes count 7 on the indictment.
TH said that on another occasion (possibly later on the same day as the incident the subject of count 7) she, her sister, her father and the appellant had driven to Nando's for takeaway food. She said that her father got out of the car and the appellant then asked her in a soft voice so that her sister could not hear, 'Do you have a boyfriend'. She said that she shook her head and that he then said he wanted to be the first person she ever goes out with. She said that before they left to go to Nando's the appellant had showed her a text on his phone. It was a message asking her to take a picture of herself naked. She said she ignored him. She said that after the appellant had spoken to her in the car he turned around and moved her knickers out of the way and put his middle finger inside her vagina. She said it did not last long but was painful. She did not say anything to her father when he returned because she felt scared and shy. She wanted to cry but could not and felt embarrassed. In cross‑examination TH agreed that she had not told the interviewers about going to Nando's or anything about digital penetration in the car, rather this was something that she added in her oral evidence. Nonetheless she insisted that it had occurred. This conduct was the subject of count 6 on the indictment.
TH also gave evidence of other acts of the appellant that were not the subject of any charge. These were relied upon by the prosecution as relationship evidence. This included other occasions of tongue kissing, occasions when the appellant came to TH's bedroom to tuck her in, occasions when the appellant asked her questions of a sexually explicit nature and the writing of similar questions as text messages on his phone and showing them to her.
TH also said that one telephone call from the appellant was recorded by her brother. The recording was produced in evidence. In the call a man TH identified as the appellant, after establishing that she is at home alone, asks her, 'Are you still jooks'. There was evidence from TH and her brother that this was a slang term with a meaning similar to 'horny'. When interviewed by police the appellant denied that it was his voice on the call.
RK
RK is the older brother of TH. He gave evidence that on a Thursday in September 2010 he came home from school and was present when TH answered the home telephone. He understood that she was being asked inappropriate questions and she told him that she did not know who it was on the phone. He told her to put the call on loudspeaker so that they could all hear. He then recorded the call on his mobile telephone.
The call was not recorded from the beginning. It was later re‑recorded onto another recording device and given to the police. RK said he recognised the voice as that of the appellant. He said that 'jooks' was South African slang meaning 'horny'.
In cross‑examination RK was asked whether he had ever spoken to the appellant on the phone and he said that he had not. However, he maintained that he recognised the voice as that of the appellant.
MJH
MJH is the maternal grandmother of TH. On 5 September 2010 she came from South Africa to live with her daughter's family for a year. She slept with TH in her room. She was present when the telephone call was recorded by RK. She did not recognise the voice.
MDK
MDK is the mother of TH. She said that her husband had emigrated from South Africa in 2005 and that she had followed him with the children in 2006. The appellant and her husband had become friends in Australia. She said that her family and that of the appellant became very close and socialised almost every weekend.
On Australia Day 2010 the family went to the Rockingham foreshore with the appellant, his wife and another couple. At around 5.00 or 6.00 pm they returned to the other couple's house. A number of children were in the spa, including TH. The appellant was also in the spa at the same time. He was the only adult in the spa with the children and they were together for 25 minutes to half an hour.
In April 2010 MDK checked TH's mobile telephone and noticed one number appearing quite often. Her husband identified this as the appellant's telephone number. When confronted TH initially denied knowing whose number it was and then started crying and said that she did not know why the appellant kept trying to contact her. TH later spoke to her older brother's girlfriend and told her what had been occurring. TH's mobile telephone was then taken by her father. The appellant and his wife only came to their house on very seldom occasions after this. The home telephone would sometimes ring and when answered, the caller would hang up.
EEK
EEK is the father of TH. He said that he had known the appellant in South Africa because they lived in the same neighbourhood. They had worked together for the same company in Australia and had become friends. The appellant and his wife would visit EEK's home most weeks and they would often telephone each other.
EEK was off work for 12 months with a leg injury. He returned to work in September 2010. Sometime in early 2010 the appellant returned from a holiday in South Africa and EEK collected him from the airport. A few days later the appellant rang to say that he had a few movies and could he come and watch them at EEK's house. TH and her younger sister were also at home at the time. They watched a movie together. Either on that day or a later day they went to Nando's to buy takeaway food. TH and her sister sat in the back of the car. The appellant stayed in the car with the children when EEK got out to get the food.
EEK confirmed that he noticed that TH was not answering her mobile telephone when it rang. She would not say why. He took the telephone and noticed that it was the appellant's number that was calling. He asked TH why the appellant was calling her and she said that she did not know and started crying. He then took the telephone away.
After this, the friendship with the appellant soured. EEK did not confront the appellant because his wife persuaded him not to. She was concerned that it may affect a pending application by the family for permanent residency.
EEK had become aware of the recorded phone call. He listened to it and said that the male voice was that of the appellant.
Amanda Damon
Mrs Damon said that on Australia Day 2010 a number of people including TH and her family had come to her house. She saw TH in the spa. She also saw the appellant jump into the spa. To her recollection there was no one else in the spa at the time he got in. She did not at any time see the appellant in the spa with the children.
Detective Sergeant Gary Thwaites
Detective Sergeant Gary Thwaites undertook subscriber checks and obtained call charge records for the mobile telephones of TH and the appellant. The records showed that the appellant had either called or sent text messages to TH 58 times over a six month period between 13 January 2010 and 16 July 2010.
The appellant was interviewed on 13 June 2011. He denied all of the allegations other than that the subject of count 6 (which was not put as it had not yet been made). In particular, he denied ever putting his tongue in TH's mouth, though he did accept that he had kissed the children, sometimes on the cheek, sometimes on the lips. He denied ever being in TH's bedroom or touching her whilst she was in bed. He agreed that there had been an occasion when he had watched movies with TH and her father. TH had been laying on a mattress on the floor and had covered herself with a blanket because the air‑conditioning was on. He got cold and got on another mattress and covered himself with a blanket. However, he denied touching TH and said that he was far away from her and her father was present at the time. He said he had only telephoned TH on her mobile a couple of times if he could not get hold of her father. He denied sending sexually suggestive text messages or making calls of the same nature. He also denied making the recorded telephone call.
Defence evidence
The appellant did not give evidence, however he called a number of witnesses.
Rozalia Oliveria
Ms Oliveria was the girlfriend of TH's older brother. She said that about two or three years previously she had heard an argument between TH and her parents. She went to comfort TH and TH told her that her parents were shouting at her because she had just got off the phone with Uncle Mullings. TH said that the appellant would ask her questions about her boyfriend and had tried touching and kissing her. Ms Oliveria said that TH should tell her parents.
Ms Oliveria denied that she had prepared a written record of what TH had told her at the request of EEK and MDK. This was contrary to their evidence.
Dion Damon
Mr Damon is Amanda Damon's husband. He confirmed that the appellant and others were at his house on Australia Day 2010. He said that the children were in the spa before it got dark. The appellant got in the spa later and there was no one in it when he got in.
Sara Van Schalkwyk
Ms Van Schalkwyk was also present at the gathering on Australia Day 2010. She was seated in an area that faced the spa. She saw the appellant in the spa by himself. She said that she had seen children in and out of the spa during the afternoon. She did not see the appellant get into the spa. It was dark when he was in the spa and she asked him to get out so that she could get in.
Veronica Muller
Mrs Muller is the wife of the appellant. Whilst she had known MDK in South Africa, they only became close friends once they arrived in Australia. She said that she was also very close to the children, including TH. She said that she and the appellant treated the children as if they were their own grandchildren.
Mrs Muller said that she and her husband would often call TH to speak to her and her younger sister. They would use the appellant's mobile telephone for this purpose. She said that they would often go to TH's house and the children would hug and kiss them. The relationship had broken down because Mrs Muller was upset that MDK did not contact her when Mrs Muller's father died.
Fresh evidence application
On 25 February 2013 the appellant filed an application to adduce oral evidence at the hearing of the appeal from Ms Chanelle Gunkel. In an affidavit in support of that application the appellant's solicitor stated that an affidavit dated 19 November 2012 was received from Ms Gunkel following the appellant's conviction. A further more detailed affidavit dated 14 February 2013 was later received. The solicitor also wrote to the DPP requesting that enquiries be made of TH to determine whether she accepted the accuracy of Ms Gunkel's affidavits.
The appeal was listed for directions on 16 September 2013. The appeal was listed for hearing on the following day and the proposal was that Ms Gunkel give her evidence by video link from South Africa. At the directions hearing the court raised as an issue whether the proposed procedure was permissible under South African law. Counsel for the appellant had not considered this issue and was unable to satisfy the court that the administration of an oath by this court was permitted under South African law. The matter was adjourned so that the appellant could make further enquiries in that regard. Subsequently the appellant's counsel obtained written advice from counsel expert in South African law that the procedure to be followed was permissible under the law of that country.
The fresh evidence - Chanelle Gunkel
On 4 March 2014 the appeal was re‑listed for hearing and Ms Gunkel was called to give evidence by video link. She said that she was 21 years of age and lives with her family in Newlands East, South Africa. She said that the appellant's wife (Veronica Muller) is her father's sister. Three affidavits of Ms Gunkel were confirmed by her as true and tendered in evidence.
The first affidavit is dated 19 November 2012. It is brief. The material parts are as follows:
While [TH] was on holiday in South Africa I had a conversation with her about the way her mother/father treat her back home in overseas. The conversation took place at my home here in Durban when she told me a story how she got raped by my uncel [sic] in over seas. She asked me not to tell anyone what she was about to tell me so I agreed not to tell anyone. She stared [sic] by crying and telling me her mother and granny made her tell lies about the hole [sic] rape story. She said she only telling me this because she can trust me. She said nothing of that sort has happened to her but because her mother and granny said she must lie so she had too [sic] or alse [sic] if she don't tell the story like how her mother and granny told her too [sic] she wont [sic] get nothing and she will get hit by her father (AB 9).
The second affidavit is dated 14 February 2013. The relevant part of that affidavit is as follows:
[W]hile [TH] was on holiday in South Africa I had a conversation with [TH] about the way her mother/father treat her back home in Over seas. The conversation took place at my home in Durban on the 19 July 2012 when [TH] and her family where [sic] on holiday. When she told me a story how she got raped by my uncel [sic] in over seas. She asked me not to tell anyone. She stared [sic] by crying and telling me her mother and granny made her tell lies about the hole [sic] rape story [sic]. She said shes [sic] only telling me this because she can trust me. She said nothing of that sort has happened to her but because her mother and granny said she must lie so she had too [sic] or told her she will get nothing by her mother and granny and will get hit by her father. … I told my mom immediately but we did not contact Veronica because we did not believe TH until after the searncing [sic] when we saw on facebook. We contacted Avril who referred us to her mom Veronica (AB 11).
The third affidavit is dated 29 September 2013. The relevant parts of that affidavit are as follows:
I knew [TH] before she moved to Australia as her grandmother and her family lived one house away from my family home at 120 Sawfish Road, where I grew up. Initially I met [TH] though [sic] her brother, who is around the same age as me. [TH] is approximately my younger sister's age.
Before [TH] and her family moved to Australia we would all play together and she would often walk in and out our house. [TH]'s mother and brother are my friends on facebook. [TH]'s grandmother still lives one house away from my house in Sawfish Road and when [TH] was back in South Africa in July 2012 I met with [TH] 19 July 2012 in the day time at her grandmother's house. On 19 July 2012 I was initially with [TH] at her grandmother's house and we were talking together with some friends of ours. When those friends left I went to walk back to my house and [TH] said to me 'I will come with you'.
When [TH] and I got over to my place we sat near the driveway in the front yard of my parent's house as that is where we would usually sit down and talk. We then had the conversation and she told me what is set out in my two affidavits. As I have stated, when [TH] told me how she had lied about what Mark did she was crying. I did not comfort [TH] during the conversation. After the conversation [TH] left our house and went across the road and I went inside my house.
In cross‑examination Ms Gunkel said that she did not know whether her father and his sister (Veronica Muller) were in frequent contact but they did telephone each other sometimes. She also said that if her father was misbehaving then her mother would phone Mrs Muller.
Ms Gunkel said that initially TH had made an allegation of rape in the presence of two other friends. She said:
Well, I was sitting with a group of friends of mine when [TH] approached us. She came and she sat there. So then she was telling us that she has been raped, so we all like wondering, 'Who you been raped by then?' She says your uncle Williams. So at that time I didn't know that they call him Williams because I know him as Mark. Then she told us that she has been raped by him and stuff like that. She was telling everybody, so then I went home. So then she like followed me home. She said, 'Hey, wait for me. I'm coming', because [TH] like grew up in our house. She came next to with me to my house, and then she started telling me the story what happened, how her mother and granny made a lie and stuff.
…
And so what was it that you say [TH] said in the company of you and those other two?---She has been raped by my uncle, so at that time, when they landed - I think they landed at that day because that's the day they came to play tennis. I'm not sure whether they landed there or they just came there that day, but we were all sitting - it's because it's my house, Sade's house, then [TH]'s house, [TH]'s grandmother's house. So we were sitting in the middle house, which is Sade's house, and then my house was next to Sade's house. So we didn't have a bath, we hadn't had a bath that time. So I was going home to have a bath and that's when she said to me - [TH] has approached me and said that she is going to come with me to my house to then wait for me to finish have a bath. Well, [TH] walks in and out of our house for years now, because we like all grew up together. And then she confronts me, so I got up, and she told me that it's my uncle, because I weren't feeling comfortable her approaching me in company about something like this. So then when I went home and I told her, I said, 'It weren't nice what you done. You can speak to me alone'. And then we both sat on our driveway in my yard, and then she confronted me with the story about what happened.
All right. Okay. So just - I just want to take it step by step. So in the company of everybody else she was saying that your uncle had raped her?‑‑‑Yes, correct.
All right. And you say she used the word 'rape'?---Yes.
Did she give any other details?---Not in the company, because at that time I was ready to go and have a bath, and my mother called me, so I had to get up and go bath. And that's the time she came with me to my house, and that's when we spoke, we sat on the drive and we spoke. And after her telling me everything I immediately went to and confront my mother about it, and then my mother didn't get back to Aunty Veronica, reason being because we didn't think that it was a truth at that time, until I saw it on Facebook, where I have [TH]'s brother and [TH]'s mother as my friends on Facebook. So when these - her mother uploaded something that's when I confront my mother, and I showed my mother, and that's when we got in contact with Avril, and she referred us onto Veronica.
Yes, thank you, Ms Gunkel, but I want to take things one step at a time. So then when you and [TH] - you say [TH] came back to your house after the conversation, after that, you say she said this in - that your uncle had raped her in - to you and two other - - -?---Company.
- - - friends?---Yes.
She then followed you back to your house; is that right?---Correct.
All right. And then you say another conversation occurred back at your house; is that right?---Yes.
And you say that conversation was just between you and her; is that right?‑‑‑Yes, it is.
And what did she tell you - - -?---Correct.
- - - at that point? What did she tell you at that point?---What she told me at that point when me and her was speaking is how her mother and her grandmother had to make her lie about what happened, that my uncle raped her, which he didn't do it, but she had to say that it's the truth because she wouldn't get anything from either one of them. So she had to lie and make up the story. Her mother then told her story what to say, so she said the story in her statements, or whenever she thing. But she told me that her mother made a lie.
And what was the story? What did she tell you? Did she tell you what she had to lie about?---She didn't really - she had to lie about her being raped.
All right. Just so I'm clear about it. Did she use the word 'rape'?---Yes, she did (ts 4/3/14, page 56 - 59).
The references to 'Mark' and 'Uncle Williams' were not explained, though it appears to have been accepted that they were references to the appellant. Ms Gunkel was then asked what she had done afterwards:
And what did you tell your mother?---The same things that [TH] has told me, that my uncle has made - sorry, sorry, that her grandmother and her mother made a lie about Uncle Mark raping her.
All right. And were you aware that there was - there were criminal proceedings going on in Australia because of her - because of [TH] saying that your uncle had raped her?---Was I aware?
Yes, were you aware that your uncle had been charged?---At that moment, I didn't. No, I didn't know. Only when I saw on Facebook, when her mother uploading something on Facebook, that's the only time I was aware.
And between - and so you say this is in July of 2012? So this happened in July 2012; is that right? This conversation - - -?---The 19th, yes.
Yes?---Yes.
And when do you say you saw something on Facebook?---I beg your pardon?
And when do you say you saw something on Facebook about this?---I think that's when they got back to Australia, then everything took place in Australia with [TH] and her family with Uncle (indistinct), I think that's - when he got sentenced, that's the time I saw because she uploaded something, like, saying that 'The dog is being behind bars. He must suffer for what he's done' and stuff. [TH]'s mother uploaded that. And there was once when I was just having a conversation with [TH] and her mother saw and took upon - away, that's how I lost contact with [TH] (ts 4/3/14, page 60).
The response of the State
The State did not seek to adduce any evidence on the appeal from TH about the alleged conversation with Ms Gunkel. Counsel for the respondent confirmed that TH had been contacted and asked about the alleged conversation. Counsel also confirmed that she had received instructions in this regard and that those instructions had been disclosed to counsel for the appellant. What the instructions were was not specified to the court and no details of the complainant's response were stated.
The court was left in the position of assuming that the cross‑examination of Ms Gunkel was based on instructions received from TH. That questioning included a contention that Ms Gunkel was making up her evidence regarding the conversation in order to help her uncle out.
When asked why a decision had been made not to call TH on the appeal counsel for the respondent said:
Even if the witness was called, what you would end up with - what you might end up with is, at best, the complainant being called - this conversation being put to her and saying it never happened. So then you are in the same position, in my submission, now as you would be without her being called.
MAZZA, JA: Well, maybe not because it would depend upon our assessment of her credibility.
The position adopted by the State has a number of significant consequences. First, there is no evidence to contradict that of Ms Gunkel. It is not known, for example, whether the complainant denies being in South Africa at the time, denies speaking to Ms Gunkel or says that the conversation has been misrepresented. The absence of any evidence in this regard makes it more difficult to critically assess Ms Gunkel's evidence. Secondly, without knowing in detail what the response of the complainant is, it is more difficult to exclude the possibility that the evidence could have an impact on her credibility. Thirdly, without seeing the complainant this court is in no position to make its own assessment of her credibility.
Fresh evidence - The principles
An appeal alleging that there is fresh evidence warranting the quashing of a conviction is an appeal based on s 30(3)(c) of the Criminal Appeals Act 2004 (WA). That section provides that the court must allow an appeal if in its opinion there was a miscarriage of justice (subject to the proviso in s 30(4) of the Act).
Where an appeal is brought on the basis of fresh evidence, a miscarriage of justice will be established if the appeal court considers that there is a significant possibility that the jury, acting reasonably, would have acquitted the appellant if the fresh evidence had been before it at the trial: Gallagher v The Queen [1986] HCA 26; (1986) 160 CLR 392; Mickelberg v The Queen [1989] HCA 35; (1989) 167 CLR 259, 273 (Mason CJ); Beamish v The Queen [2005] WASCA 62 [14] and Coffman v The Queen [2010] WASCA 54; (2010) 202 A Crim R 375 [58] (Martin CJ) and [182] (Pullin JA).
There have been different formulations of the test, some of which have referred to whether a jury would have been 'likely' to have entertained a reasonable doubt (Ratten v The Queen (1974) 131 CLR 510 (520) (Barwick CJ)) and others that have referred to whether a jury 'might' have entertained such a doubt (Gallagher v The Queen (421) (Dawson J)) or that this is a significant possibility (Mickelberg (273) (Mason CJ)). In Gallagher Gibbs CJ said that 'no form of words should be regarded as an incantation that will resolve the difficulties of every case' (399). The focus must, therefore, be on whether in the case at hand the fresh evidence is such as to satisfy the appeal court that there has been a miscarriage of justice.
The appeal court has the responsibility of examining the fresh evidence in order to satisfy itself that the evidence is relevant, credible and cogent: Mickelberg v The Queen [2004] WASCA 145; (2004) 29 WAR 13 [432] (Steytler J); White v The Queen [2006] WASCA 62 and PAS v The State of Western Australia [2009] WASCA 210; (2009) 212 A Crim R 546 [54] ‑ [56]. If the evidence is not credible and cogent it may be rejected. The role of the Court of Appeal on a fresh evidence application is to determine whether the evidence is capable of being accepted as true by a reasonable jury: Amiss v The State of Western Australia [2006] WASCA 171; (2006) 165 A Crim R 387 [14] (McLure JA).
Cogency is necessary but not in itself sufficient. The evidence must also be material in the sense that it is reasonably capable of affecting the outcome: Gallagher (395 ‑ 396) (Gibbs CJ). This requires an assessment of the fresh evidence in the context of the whole of the evidence given at the trial. The combined effect of the two considerations was stated by Rich and Dixon JJ in Craig v The King [1933] HCA 41; (1933) 49 CLR 429:
It is evident that the exercise of a power to direct a new trial because fresh evidence is forthcoming must be attended both with danger and with difficulty. It is the function of the jury to determine questions of fact in a criminal trial. When they have found a verdict they have performed that duty. If after a verdict of guilty the mere fact that a prisoner produced further relevant evidence required the Court to vacate the conviction and submit the question of the prisoner's guilt to another jury, then in a jurisdiction where perjury is rife great abuses would ensue. A Court of Criminal Appeal has thrown upon it some responsibility of examining the probative value of the fresh evidence. It cannot be said that a miscarriage has occurred unless the fresh evidence has cogency and plausibility as well as relevancy. The fresh evidence must, we think, be of such a character that, if considered in combination with the evidence already given upon the trial the result ought in the minds of reasonable men to be affected. Such evidence should be calculated at least to remove the certainty of the prisoner's guilt which the former evidence produced. But in judging of the weight of the fresh testimony the probative force and the nature of the evidence already adduced at the trial must be a matter of great importance (439).
In some cases the fresh evidence is a recantation by the complainant. The principles applicable to a consideration of a recanting witness have recently been summarised by Buss JA in ARK v The State of Western Australia [2014] WASCA 45 [145] ‑ [153]. It is unnecessary for me to repeat them. Although the appellant's counsel referred in written submissions to this being a case involving a recanting witness, that is not, in fact, an appropriate characterisation.
As has been noted, TH was not called to give evidence on the appeal and there is no reason to suppose that she has recanted the evidence that she gave at the trial. The evidence of Ms Gunkel is evidence of an out of court statement which is inconsistent with TH's evidence at trial. Such evidence would only be admissible if the requirements of s 21 of the Evidence Act 1906 (WA) were met and in that event only as to credibility. See O'Meara v The State of Western Australia [2013] WASCA 228.
The limited use that could be made of the evidence is relevant in determining whether there has been a miscarriage of justice. Generally speaking, fresh evidence that is only relevant to the credibility of a prosecution witness is far less likely to meet that test than fresh evidence that is directly relevant to one of the elements of the offence. However, the particular circumstances of the individual case must always be considered. Fresh evidence relevant only to credibility can support a conclusion that a miscarriage of justice has occurred if it has the capacity to cause the jury to have a reasonable doubt about whether the evidence of a witness on a critical issue should be accepted.
Application
The issues to be determined here are:
1.Is the evidence 'fresh' in the sense that it was unknown to the appellant and could not have been discovered with reasonable diligence?
2.Would it be open to a jury, acting reasonably, to accept the evidence of Ms Gunkel?
3.If accepted, is the evidence capable of materially affecting an assessment of the credibility of TH?
4.In the context of the whole of the evidence does that leave open a significant possibility that the appellant could have been acquitted if the fresh evidence had been known?
In the present case, as earlier noted, TH was not called to give her response to Ms Gunkel's allegations. Whilst it is most unsatisfactory to have to do so, this necessitates the making of some assumptions based on the way in which Ms Gunkel was cross‑examined. Firstly, it can be assumed that TH does not admit that she lied about the appellant at the insistence of her mother and grandmother. Secondly, it can be assumed that TH denies telling Ms Gunkel that she had lied about those allegations. In those circumstances Ms Gunkel's evidence would be admissible as a prior inconsistent statement pursuant to s 21 of the Evidence Act. It would not, however, be admissible to prove the truth of that statement, but only in assessing the credibility of TH. That is to say that if a jury was satisfied that an inconsistent statement had been made they could take it into account in assessing whether they accepted that TH was generally a truthful witness and that her evidence regarding the alleged sexual offences should be believed.
There is no issue that the evidence of Ms Gunkel is properly characterised as fresh. The alleged conversation between Ms Gunkel and TH is said to have occurred in July 2012. That is after TH's evidence was pre‑recorded but before the trial. Ms Gunkel's evidence is that whilst she told her mother of the conversation she did not appreciate the significance of the information until she became aware that the appellant had been sentenced following his trial. The affidavits of Ms Gunkel all post‑date the sentencing and are consistent with the information only being provided to the appellant's solicitors after the trial was complete.
As to the relevance of Ms Gunkel's evidence, that depends upon the assumptions which I have referred to earlier being made. Those assumptions appear to be consistent with the responses of counsel for the respondent on the appeal. Thus, if TH was asked whether she had made the alleged statements and denied them, proof could be given that she did, pursuant to s 21 Evidence Act. Of course not every prior inconsistent statement is admissible. It would have to be one that was 'relative to the subject‑matter', but on any view this evidence would meet that requirement.
As to the cogency of the evidence the respondent submitted that no jury acting reasonably would give the evidence any weight. It was submitted that the family relationship between Ms Gunkel and the appellant is indicative of bias. It is also said that the evidence was poor on detail, that the language said to have been used by TH was not consistent with her allegations (insofar as she is said to have used the word 'rape') and that it is unlikely that information of this type would not be immediately relayed to the appellant.
Insofar as this court is required to make an assessment of Ms Gunkel's credibility, her evidence was brief but unshaken in cross‑examination. The family connection was admitted, but on the available evidence there could not be said to be a particularly close relationship between Ms Gunkel and the appellant. As to detail, Ms Gunkel provided as much detail as she was asked to provide. More detail was given in cross‑examination. It could not be said that this was a case where vagueness was a hallmark of fabrication. As to the use of the word 'rape', the fact that TH did not use that word in her interviews or evidence does not necessarily mean that she would not have used it subsequently. The fact that the information was not immediately passed on to the appellant might well be a factor that counts against acceptance of Ms Gunkel's evidence. However, she says that she did immediately tell her mother and that the significance of the information was not appreciated until later.
It is not possible to conclude that a jury would reject Ms Gunkel's evidence or give it little weight. It would be open for a jury to accept it as cogent and credible. That is particularly so where we have no contrary evidence from TH. It may be that a jury would be more likely to reject the evidence if it was contradicted, but it is pointless to speculate.
The significance of the evidence lies in what impact it could have upon the jury's assessment of the credibility of TH. This was a case where the evidence of TH was critical. The trial judge quite properly directed the jury that the State's case relied upon an acceptance of TH's evidence and that they should scrutinise her evidence with special care. Unless the jury were able to accept her evidence in regard to the alleged sexual acts they could not be satisfied beyond reasonable doubt that the appellant was guilty.
There was other evidence that supported TH's evidence in a general way. That included evidence of her mother regarding the appellant being in the spa with TH. However, that was contradicted by other witnesses. There was evidence from TH's father that he and the appellant had watched movies with TH and then driven to Nando's. There was the call charge records that showed numerous calls, though the appellant's wife said they had both used his telephone to call TH. Perhaps most significantly, there was the recorded telephone call, though the appellant denied that he was the person recorded. All of this was relevant, but none of it directly confirmed that the alleged sexual acts occurred.
Clearly at the trial the jury must have concluded that TH was a truthful and reliable witness. Is there a significant possibility that a different conclusion would be reached if the evidence of Ms Gunkel was taken into account? In my view, given the constraints of the presently available information, the answer to that question must be yes.
Conclusion
It would be open for a jury, acting reasonably, to accept the evidence of Ms Gunkel and for that to cause them to have a reasonable doubt as to whether the alleged acts occurred. Of course the jury may not accept that evidence and it may, having regard to the whole of the evidence, conclude that TH is telling the truth. Ultimately it is difficult for this court to gauge the impact that Ms Gunkel's evidence may have on an assessment of the credibility of TH. This is particularly so in circumstances where the respondent has chosen not to call TH on the appeal. All that can be said is that, on the evidence available on the appeal, there is at least a significant possibility that the result could be different.
It may seem counter‑intuitive that the recantation by a complainant on oath would be more carefully scrutinised on an appeal than an alleged prior inconsistent out of court statement which is only relevant to credibility. It might be thought that fresh evidence that is relevant only to credit would be less likely to produce a miscarriage of justice than a recantation on oath by a complainant. That expectation may well be borne out in circumstances where the appeal court is in a position to assess the effect of such fresh evidence on the complainant.
There is a significant possibility that, in light of the fresh evidence, the appellant would have been acquitted. In those circumstances a miscarriage of justice has been established. I would grant leave to appeal, allow the appeal, set aside the conviction and order a retrial.
At the hearing of the appeal the appellant applied for bail. That application was refused with reasons to follow. Bail pending the determination of an appeal can only be granted if exceptional reasons exist and it would otherwise be appropriate to grant bail: cl 4A pt C Bail Act 1982 (WA). The only exceptional reason advanced on behalf of the appellant was that his ground of appeal had a good chance of success. To justify a grant of bail on this basis the appeal must be shown to have strong prospects of success: Caratti v The Queen [1999] WASCA 91 [11]; Shrivastava v The State of Western Australia [2010] WASCA 96 [32]. The merits of the appeal required close consideration of the whole of the evidence at the trial. It was not evident at the hearing that there were strong prospects of success.
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