O'MEARA -v- THE STATE OF WESTERN AUSTRALIA [2013] WASCA 228

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2013] WASCA 228
Court:	THE COURT OF APPEAL (WA)
Case No:	CACR:73/2013	Heard:	14 AUGUST 2013
Coram:	BUSS JA MAZZA JA HALL J	Delivered:	2/10/13
No of pages:	50	Judgment Part:	1 of 1
Result:	Appeal dismissed
Category:	A
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Parties:	MATTHEW DAVID O'MEARA THE STATE OF WESTERN AUSTRALIA
Catchwords:	Criminal law Appeal against conviction Prior inconsistent statements Closure of State case Crossexamination of defence witness about prior inconsistent statements Statements not admissible in the State case State permitted to call evidence in rebuttal Whether impermissible splitting of the State case Discretion of the trial judge Whether trial unfair or a miscarriage of justice
Legislation:	Classification (Publications, Films and Computer Games) Enforcement Act 1996 (WA), s 60(4) Criminal Procedure Act 2004 (WA), s 96(3), s 97 Evidence Act 1906 (WA), s 21, s 22
Case References:	Alexander v The Queen [1981] HCA 17; (1981) 145 CLR 395 Crowley v Page (1837) 7 C & P 789; 173 ER 344 Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292 Driscoll v The Queen [1977] HCA 43; (1977) 137 CLR 517 Job v The State of Western Australia [2006] WASCA 186 Killick v The Queen [1981] HCA 63; (1981) 147 CLR 565 Lawrence v The Queen (1981) 38 ALR 1 Lee v The Queen [1998] HCA 60; (1998) 195 CLR 594 Manyam v The State of Western Australia [2010] WASCA 107; (2010) 201 A Crim R 156 MJH v The State of Western Australia [2006] WASCA 167; (2006) 33 WAR 9 Nicholls v The Queen [2005] HCA 1; (2005) 219 CLR 196 Niven v The Queen [1968] HCA 67; (1968) 118 CLR 513 R v Chin [1985] HCA 35; (1985) 157 CLR 671 R v Dawes [1992] 2 Qd R 435 R v Ghion [1982] Qd R 781 R v Kern [1986] 2 Qd R 209 R v Neville [1985] 2 Qd R 398 R v Soma [2003] HCA 13; (2003) 212 CLR 299 R v Umanski [1961] VR 242 RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620 Shaw v The Queen [1952] HCA 18; (1952) 85 CLR 365 Stephens v The Queen [1985] HCA 30; (1985) 156 CLR 664 The Queen's Case (1820) 2 Brod & B 284; 129 ER 976 The State of Western Australia v Osborne [2007] WASCA 183 Thorne v The State of Western Australia [2006] WASCA 218 Zammit v The State of Western Australia [2007] WASCA 66; (2007) 34 WAR 302

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : O'MEARA -v- THE STATE OF WESTERN AUSTRALIA [2013] WASCA 228 CORAM : BUSS JA

MAZZA JA

HALL J

HEARD : 14 AUGUST 2013 DELIVERED : 2 OCTOBER 2013 FILE NO/S : CACR 73 of 2013 BETWEEN : MATTHEW DAVID O'MEARA

Appellant

AND

THE STATE OF WESTERN AUSTRALIA

Respondent

ON APPEAL FROM:

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Coram : BIRMINGHAM DCJ

File No : IND 1174 of 2011

Catchwords:

Criminal law - Appeal against conviction - Prior inconsistent statements - Closure of State case - Crossexamination of defence witness about prior inconsistent statements - Statements not admissible in the State case - State permitted to call evidence in rebuttal - Whether impermissible splitting of the State case - Discretion of the trial judge - Whether trial unfair or a miscarriage of justice

Legislation:

Classification (Publications, Films and Computer Games) Enforcement Act 1996 (WA), s 60(4)

Criminal Procedure Act 2004 (WA), s 96(3), s 97
Evidence Act 1906 (WA), s 21, s 22

Result:

Appeal dismissed

Category: A

Representation:

Counsel:

Appellant : Mr L M Levy SC

Respondent : Mr B Fiannaca SC & Mr L M Fox

Solicitors:

Appellant : David Manera

Respondent : Director of Public Prosecutions (WA)

Case(s) referred to in judgment(s):

Alexander v The Queen [1981] HCA 17; (1981) 145 CLR 395
Crowley v Page (1837) 7 C & P 789; 173 ER 344
Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292
Driscoll v The Queen [1977] HCA 43; (1977) 137 CLR 517
Job v The State of Western Australia [2006] WASCA 186
Killick v The Queen [1981] HCA 63; (1981) 147 CLR 565
Lawrence v The Queen (1981) 38 ALR 1
Lee v The Queen [1998] HCA 60; (1998) 195 CLR 594
Manyam v The State of Western Australia [2010] WASCA 107; (2010) 201 A Crim R 156
MJH v The State of Western Australia [2006] WASCA 167; (2006) 33 WAR 9
Nicholls v The Queen [2005] HCA 1; (2005) 219 CLR 196
Niven v The Queen [1968] HCA 67; (1968) 118 CLR 513
R v Chin [1985] HCA 35; (1985) 157 CLR 671
R v Dawes [1992] 2 Qd R 435
R v Ghion [1982] Qd R 781
R v Kern [1986] 2 Qd R 209
R v Neville [1985] 2 Qd R 398
R v Soma [2003] HCA 13; (2003) 212 CLR 299
R v Umanski [1961] VR 242
RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620
Shaw v The Queen [1952] HCA 18; (1952) 85 CLR 365
Stephens v The Queen [1985] HCA 30; (1985) 156 CLR 664
The Queen's Case (1820) 2 Brod & B 284; 129 ER 976
The State of Western Australia v Osborne [2007] WASCA 183
Thorne v The State of Western Australia [2006] WASCA 218
Zammit v The State of Western Australia [2007] WASCA 66; (2007) 34 WAR 302

1 BUSS JA: The appellant appeals against his conviction, after a trial in the District Court before Birmingham DCJ and a jury, on four counts of possessing child pornography, contrary to s 60(4) of the Classification (Publications, Films and Computer Games) Enforcement Act 1996 (WA).

2 The trial was a retrial. At the initial trial the jury was unable to agree upon a verdict.

The relevant facts and circumstances

3 The relevant facts and circumstances are set out in the reasons of Hall J, with which Mazza JA has expressed his agreement.

4 I will not repeat the relevant facts and circumstances except to the extent necessary to explain my reasons.

The grounds of appeal

5 There are three grounds of appeal.

6 They read:

1. The appellant's trial miscarried as a result of the inadmissible opinion evidence introduced by the witness Mrs Ruth Sullivan.

Particulars

1.1 The evidence that as a result of reading an article she

yelled out, 'Liar'

. (Trial transcript, pages 2468 - 2469)

2. The learned trial Judge erred in law by ruling that there were special or exceptional circumstances justifying the decision to allow the Prosecution to call rebuttal evidence.

3. The learned trial Judge erred in the exercise of his discretion by allowing the Prosecution to call two witnesses in rebuttal, namely Mrs Ruth Sullivan and Mrs Louise Rattray, in circumstances where such a ruling was unreasonable or plainly unjust and gave rise to a miscarriage of justice.

7 On 3 June 2013, Mazza JA granted leave to appeal on these grounds.

8 It is convenient first to consider grounds 2 and 3 together, and then ground 1.

Grounds 2 and 3: overview of the relevant facts

9 At all material times, the appellant was employed as the chaplain at a private school for girls. The child pornography in question was found on two computer storage devices known as thumb drives. One of the thumb drives was found by a teacher on a desk in her office. The teacher's office was near the appellant's office. This thumb drive contained electoral forms associated with the appellant and his wife, Karina O'Meara, in addition to child pornography. The appellant removed the other thumb drive from his pocket when he was first questioned by police and asked to empty his pockets. The appellant denied that he owned or had used the thumb drives. He denied knowing that they contained child pornography. The appellant also denied having downloaded or scanned any material (including the electoral forms) onto either device. He claimed that he had found one of the thumb drives at the foot of some stairs at the school shortly before he was first questioned by the police. He had put the device in his pocket.

10 The appellant gave sworn evidence in his defence at the initial trial and the retrial. Defence counsel also called other witnesses, including Mrs O'Meara, at both trials.

11 The appellant said in evidence-in-chief at the initial trial and the retrial that he did not use thumb drives. Mrs O'Meara confirmed in evidence-in-chief at the initial trial that the appellant did not use these devices. She did not, however, give this evidence in her evidence-in-chief at the retrial. Mrs O'Meara said at the initial trial and the retrial that she did not scan the electoral forms onto a computer or a computer storage device.

12 During Mrs O'Meara's cross-examination at the retrial, the prosecutor sought to impeach her credit by putting to her prior inconsistent statements she had allegedly made out of court to Ruth Sullivan and Louise Rattray. The alleged prior inconsistent statements were relevant to a fact in issue at the retrial, namely whether at the material time the appellant used thumb drives. Mrs Sullivan and Mrs Rattray were, at the material time, friends of Mrs O'Meara. They approached the police between the initial trial and the retrial with evidence of the out of court statements which Mrs O'Meara allegedly made to them. Mrs O'Meara denied in cross-examination at the retrial that she had made the alleged prior inconsistent statements.

13 At the retrial, Mrs O'Meara's evidence as to whether the appellant used thumb drives arose solely during her cross-examination. The point was not dealt with in her evidence-in-chief.

14 The trial judge permitted the prosecutor, over objection by defence counsel, to call Mrs Sullivan and Mrs Rattray during the defence case, for the purpose of proving the alleged prior inconsistent statements.

15 The prosecutor did not call Mrs Sullivan or Mrs Rattray as witnesses in the State's case. The only relevant evidence they could give concerned the making of the alleged prior inconsistent statements.

16 The State served on the appellant, before the commencement of the retrial, copies of witness statements obtained from Mrs Sullivan and Mrs Rattray. Also, the State gave notice to the appellant, before the commencement of the retrial, that if defence counsel called Mrs O'Meara and she gave evidence inconsistent with the alleged prior inconsistent statements, the State would call Mrs Sullivan and Mrs Rattray to prove those statements.

17 After his Honour ruled that the prosecutor should be permitted to call Mrs Sullivan and Mrs Rattray, he gave defence counsel leave to recall Mrs O'Meara and a police officer, Detective Sergeant Colin Keen. Defence counsel's purpose in recalling Mrs O'Meara and Detective Sergeant Keen was to endeavour to undermine the credibility of Mrs Sullivan and Mrs Rattray. Mrs O'Meara was recalled before Mrs Sullivan and Mrs Rattray gave evidence, and Detective Sergeant Keen was recalled after they gave evidence. Defence counsel closed the defence case after Detective Sergeant Keen completed his further evidence.

Grounds 2 and 3: the trial judge's ruling

18 The trial judge based his ruling, permitting the prosecutor to call Mrs Sullivan and Mrs Rattray, on 'an exception to the general rule' that the State is not permitted to split its case in a criminal trial (ts 2392). His Honour referred to my reasons in Manyam v The State of Western Australia [2010] WASCA 107; (2010) 201 A Crim R 156 [98] - [99] and noted that, as a general rule, the State is not permitted to split its case 'except in special or exceptional circumstances' (ts 2392). The exception identified by the trial judge was 'to prove a prior inconsistent statement in relation to a matter that is central to the matter in issue and not simply collateral' (ts 2392). His Honour said that, in the circumstances, he was 'prepared to permit the State to lead the evidence of Mrs Sullivan and Mrs Rattray in rebuttal ... as evidence of a prior inconsistent statement' by Mrs O'Meara (ts 2394).

19 The alleged prior inconsistent statements included hearsay evidence by Mrs O'Meara as to relevant conduct and utterances by the appellant in relation to his use of thumb drives. The conduct and utterances in question were inconsistent with the appellant's (as well as Mrs O'Meara's) sworn evidence at trial, and were prejudicial to his case. The trial judge observed in relation to this aspect:

I am mindful that the content of the statement impacts upon or has within it inadmissible hearsay of a statement said to have been made by the accused. That carries with it some considerable prejudice. I am satisfied that it can be properly addressed by a direction to the jury (ts 2394).

Grounds 2 and 3: the rule against the State splitting its case

20 In Western Australia there are no statutory provisions with respect to the State splitting its case at a criminal trial. The common law applies. See, however, s 97 of the Criminal Procedure Act 2004 (WA) which empowers a trial judge to permit the State, relevantly, to adduce rebuttal evidence where the accused has disobeyed the disclosure requirement in s 96(3) of that Act.

21 The notion of the State splitting its case embraces the State calling evidence in rebuttal and the State reopening its case. In Heydon JD, Cross on Evidence, (9th Aust ed, 2013), the author states:

If evidence is legitimately capable of being called in rebuttal, either as of right or because the circumstances are such that the court can and should properly exercise its discretion to do so, the party calling the evidence is not reopening its own case, but answering its opponent's. In these circumstances there is a distinction of principle between a party calling [rebuttal evidence and a party] reopening that party's case in the sense that the party seeking to call the evidence is attempting to avoid the consequences of a mistake in failing to call it earlier, and asks the court in its discretion to permit it to call additional evidence [17620].

22 The author also notes that the principles appear to apply indifferently to evidence rebutting other evidence and to new evidence in the sense of a case being reopened [17620].

23 The legal principles at common law concerning the State splitting its case at a criminal trial have been enunciated and explained by the High Court in numerous decisions. See, for example, Shaw v The Queen [1952] HCA 18; (1952) 85 CLR 365; Lawrence v The Queen (1981) 38 ALR 1; Killick v The Queen [1981] HCA 63; (1981) 147 CLR 565; R v Chin [1985] HCA 35; (1985) 157 CLR 671 and R v Soma [2003] HCA 13; (2003) 212 CLR 299.

24 The general rule is that the State should not be permitted to split its case, except in very special or exceptional circumstances. That is, in general, the State must present the whole of its case before the accused is called upon to present his or her case by giving sworn evidence in his or her own defence or calling other witnesses. The trial judge has a discretion to permit the State to reopen its case or call evidence in rebuttal but, in general, it should not be exercised if the necessity for adducing the evidence in question as part of the State's case could reasonably have been foreseen.

25 In Killick, Gibbs CJ, Murphy and Aickin JJ referred to the general rule and described it as not merely a technical rule, but an important rule of fairness (569). Their Honours continued:

Evidence tendered by the Crown after the defence has closed its case may assume an inflated importance in the eyes of the jury. The very fact that the last piece of evidence which the jury hears is given in contradiction of evidence already given by or on behalf of the accused tends to tilt the scales in favour of the prosecution (569).

26 In Chin, Gibbs CJ and Wilson J referred to Shaw, Killick and Lawrence, and then stated and discussed the general principle and the trial judge's discretion to permit departure from it:

The general principle is that the prosecution must present its case completely before the accused is called upon for his defence. Although the trial judge has a discretion to allow the prosecution to call further evidence after evidence has been given for the defence, he should permit the prosecution to call evidence at that stage only if the circumstances are very special or exceptional and, generally speaking, not if the occasion for calling the further evidence ought reasonably to have been foreseen. The principle applies where the prosecution seeks to call evidence to rebut matters raised for the first time by the defence; if the rebutting evidence was itself relevant to prove the prosecution case (unless, perhaps, it was no more than marginally, minimally or doubtfully relevant:

R v Levy and Tait

((1966) 50 Cr App R 198 at p 202)) and the need to give it could have been foreseen it will, generally speaking, be rejected. The principle would not prevent the prosecution from giving in reply evidence directed to an issue the proof of which did not lie on the prosecution, such as insanity, or from rebutting evidence of the accused's good character, provided that the prosecution had not anticipated the raising of an issue of this kind and led evidence with regard to it, for the prosecution must not split its case on any issue. Also, it has been held that evidence may be given in reply to prove some purely formal matter the proof of which was overlooked in chief (676 - 677).

27 The general rule and the closely circumscribed circumstances in which the trial judge may permit departure from it are based on two fundamental propositions. First, the burden is upon the State to prove the accused's guilt beyond reasonable doubt. Secondly, the accused is entitled to a fair trial including the protection of his or her right to silence and the presumption of innocence.

28 As Dawson J (Mason J agreeing) observed in Chin:

The relevant principle is essentially one of fairness. The accused is entitled to know the case which he has to meet so that he may have adequate opportunity to determine what questions he may wish to ask in cross-examination, what evidence, if any, he may wish to call and what objections, if any, he may wish to raise in the case against him. Ordinarily the depositions upon which he is committed for trial will provide him with this information in advance and if the prosecution intends to call additional evidence it is required to give notice of its intention to do so. The whole procedure would be undermined if the prosecution were permitted, save in exceptional circumstances, to call evidence in support of its case after the close of the case for defence (685 - 686).

See also

Ghion

(783 - 785);

Neville

(404 - 405);

R v Kern

[1986] 2 Qd R 209, 211 - 212 (Derrington J, Kelly SPJ & Ryan J agreeing).

47 In Soma, McHugh J made these observations:

(a) When the prosecution proves a statement as a prior inconsistent statement, the occasion for proof only arises after the prosecution has closed its case [60].

(b) In the case of a defence witness (who is not the accused), the statement is not admissible until that time [60].

(c) In the case of the accused, it may be that the statement could have been proved during the prosecution case as an admission [60].

(d) The rule against the prosecution splitting its case is only relevant if the prior inconsistent statement was admissible in the prosecution's case [63].

(e) If the prior inconsistent statement was not admissible in the prosecution's case, it can only be proved after the prosecution has closed its case and, in that situation, the rule against the prosecution splitting its case has no application [63].

48 In Neville, the appellant, Mr Ryan and Mr Oniga were charged on indictment with a number of offences.

49 At Mr Oniga's trial, a police officer, Detective McKay, gave evidence of alleged oral admissions by Mr Oniga. Mr Oniga did not give evidence. However, his defence was that no confession had been made and the jury could not rely on Detective McKay's evidence. Mr Oniga was found not guilty on all counts.

50 At the appellant's trial, the Crown case was that the appellant had counselled and procured Mr Ryan and Mr Oniga to carry out some of the offences and that the other offences were the probable consequence of carrying out the counselled and procured offences. The Crown relied on admissions allegedly made by the appellant to a police officer, Detective Gray, and on some circumstantial evidence. The appellant denied the alleged admissions and denied having committed any of the offences. Mr Oniga was a defence witness at the appellant's trial. He denied that the appellant had counselled or procured him to commit any offence. Mr Oniga denied, in cross-examination, having admitted to Detective McKay that he was involved in the commission of the offences. The trial judge granted the Crown leave, pursuant to s 18 of the Evidence Act 1977 (Qld), to call Detective McKay, in rebuttal, to give evidence of the alleged oral admissions which had been critical to the Crown case against Mr Oniga at his trial.

51 Section 18 of the Evidence Act 1977 (Qld) is the Queensland counterpart to s 21 of the Western Australian Evidence Act.

52 It must be emphasised, however, that in Queensland (unlike in Western Australia) the Parliament has abrogated the common law rule that a prior inconsistent statement which is proved or admitted does not constitute evidence of the facts asserted where the witness who made the statement is not a party or the accused and the statement cannot therefore be an admission. By s 101(1) of the Evidence Act 1977 (Qld), relevantly, where a prior inconsistent statement made by a person called as a witness in a proceeding is proved by virtue of, relevantly, s 18, 'that statement shall be admissible as evidence of any fact stated therein of which direct oral evidence by him would be admissible'.

53 In Neville, it was held that if the accused, or a witness (not being the accused) called as part of the defence case, denies making a prior inconsistent statement and there has otherwise been compliance with s 18, the Crown may, in rebuttal, prove the prior inconsistent statement (404). However, the Crown does not have a right to call such evidence. Whether the evidence should be admitted or not will depend upon the exercise by the trial judge of his or her discretion in the light of the particular circumstances (405).

54 Evidence adduced by the prosecution, after the State has closed its case, to prove a prior inconsistent statement by a defence witness (who is not the accused) is evidence in rebuttal. See Neville (405 - 406); R v Dawes [1992] 2 Qd R 435, 437 - 438 (McPherson SPJ, Ambrose & Mackenzie JJ agreeing). In Western Australia, the State requires leave to lead rebuttal evidence of this kind. However, the exercise of the discretion to grant leave does not depend upon the State establishing special or exceptional circumstances. The principles governing the exception to the rule against the State splitting its case are not applicable because the evidence in rebuttal (that is, evidence in proof of the prior inconsistent statement) was not admissible in the State's case. Evidence of a prior inconsistent statement is an exception to the collateral evidence rule. See Nicholls [248] (Hayne & Heydon JJ, Gleeson CJ agreeing).

55 The prior inconsistent statement in Neville related to a defence witness (and not the accused) and the evidence in rebuttal could not have been adduced as part of the Crown's case. Williams J said in relation to the exercise of the judicial discretion:

In this case one is not concerned with calling evidence in rebuttal which could have been led in chief, but with whether or not the case was a proper one in which to allow rebuttal evidence to be given of the making by a defence witness of a prior inconsistent statement. That question must be answered in the light of the probative force of such evidence to the real issues for the jury to determine, and its possible prejudicial effect on the fairness of the accused's trial. The question of admissibility could only be determined after considering the nature and relevance of the evidence given by the witness whose credit would be impeached by the admission of the previous statement, the circumstances in which the previous statement was made including factors relevant to its reliability, and the fairness of allowing the jury to have recourse to such a statement at such a late stage of the trial, particularly bearing in mind the effect of s 101 of the

Evidence Act

(406).

Grounds 2 and 3: the general unfairness discretion

56 The fundamental task of a judge who presides over a criminal trial is to ensure a fair trial of the accused. See RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620 [41] (Gaudron A-CJ, Gummow, Kirby & Hayne JJ).

57 A trial judge in a criminal case has a discretion to reject any evidence, whether or not a confession, on the ground that to receive the evidence would be unfair to the accused in the sense that the trial would be unfair. See Driscoll v The Queen [1977] HCA 43; (1977) 137 CLR 517, 541 (Gibbs J, Mason, Jacobs & Murphy JJ agreeing); Alexander v The Queen [1981] HCA 17; (1981) 145 CLR 395, 402 - 403 (Gibbs CJ); Stephens v The Queen [1985] HCA 30; (1985) 156 CLR 664, 669 (Gibbs CJ, Mason, Wilson, Deane & Dawson JJ); Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292, 363 - 364 (Gaudron J).

Grounds 2 and 3: their merits

58 Ground 2 of the appeal alleges that the trial judge erred in law by ruling that there were 'special or exceptional circumstances' which justified his decision to permit the State to call rebuttal evidence.

59 The evidence adduced by the State from Mrs Sullivan and Mrs Rattray to prove the alleged prior inconsistent statements by Mrs O'Meara was evidence in rebuttal. Leave to lead this rebuttal evidence was required. However, the exercise of the trial judge's discretion to grant leave did not depend upon the State establishing special or exceptional circumstances. The principles governing the exception to the rule against the State splitting its case were not applicable because Mrs Sullivan's and Mrs Rattray's evidence in rebuttal (that is, their evidence in proof of the prior inconsistent statements by Mrs O'Meara) was not admissible in the State's case.

60 His Honour was in error in applying the test of 'special or exceptional circumstances', but this error was favourable to the appellant. Ground 2 is based on the misconception that special or exceptional circumstances were required. The ground is without merit.

61 Ground 3 of the appeal alleges that the trial judge erred in the exercise of his discretion in permitting the State to call evidence in rebuttal from Mrs Sullivan and Mrs Rattray in that the decision was unreasonable or plainly unjust and gave rise to a miscarriage of justice.

62 In my opinion, his Honour's decision was not unreasonable or plainly unjust and did not occasion an unfair trial or a miscarriage of justice. My reasons are as follows.

63 First, the prosecutor was entitled to endeavour to impugn Mrs O'Meara's credit in cross-examination, on the basis of the alleged prior inconsistent statements, despite her not having given evidence-in-chief at the retrial that the appellant used thumb drives. See Chin (678) (Gibbs CJ & Wilson J).

64 Secondly, the evidence of Mrs Sullivan and Mrs Rattray as to the prior inconsistent statements was not admissible in the State's case.

65 Thirdly, the procedure stipulated in s 21 of the Western Australian Evidence Act was followed before the trial judge permitted the State to call the rebuttal evidence.

66 Fourthly, the State served on the appellant, before the commencement of the retrial, copies of Mrs Sullivan's and Mrs Rattray's witness statements. Also, the State gave notice to the appellant, before the commencement of the retrial, that if defence counsel called Mrs O'Meara and she gave evidence inconsistent with the alleged prior inconsistent statements, the State would call Mrs Sullivan and Mrs Rattray to prove those statements. The appellant was represented at the initial trial and the retrial by senior counsel with very substantial criminal law experience. Defence counsel chose to call Mrs O'Meara at the retrial with knowledge of the State's proposed strategy in the event Mrs O'Meara gave evidence inconsistent with the alleged prior inconsistent statements. The only reasonable objective inference is that defence counsel made a forensic decision to call Mrs O'Meara after assessing the advantages and disadvantages of her evidence for the appellant's case, including the risk of her evidence being discredited on the basis of the alleged prior inconsistent statements.

67 Fifthly, the trial judge gave defence counsel leave to recall Mrs O'Meara and Detective Sergeant Keen for the purpose of endeavouring to undermine the credit of Mrs Sullivan and Mrs Rattray.

68 Sixthly, Mrs O'Meara was a witness of some significance. She gave evidence which supported the appellant's case in a number of respects. The truth and reliability of her evidence were of importance.

69 Seventhly, the rebuttal evidence impeached Mrs O'Meara's credit, but did not constitute evidence of the facts asserted.

70 Eighthly, the trial judge gave the jury directions as to the limited use to which the alleged prior inconsistent statements could be put. See Driscoll (536) (Gibbs J); Job v The State of Western Australia [2006] WASCA 186 [176] (McLure JA, Buss JA agreeing); Thorne v The State of Western Australia [2006] WASCA 218 [13] (McLure JA, Wheeler & Buss JJA agreeing). His Honour gave these directions after the defence case was closed and before the final addresses of the prosecutor and defence counsel (ts 2493 - 2494). His Honour reiterated the directions in his summing up (ts 2660 - 2661).

71 The prejudicial effect of the rebuttal evidence did not exceed its probative value.

72 The trial judge's directions were adequate to ensure that the jury did not misuse the rebuttal evidence. Also, those directions, combined with the leave given to defence counsel to recall Mrs O'Meara and Detective Sergeant Keen, obviated the risk of an unfair trial arising from the rebuttal evidence being called after the close of the State's case and shortly before the end of the defence case.

73 It is well-established that a direction given by a trial judge to a jury against impermissible reasoning is likely to be acted on by the jury. See The State of Western Australia v Osborne [2007] WASCA 183 [39] (Wheeler JA). Also, it can be accepted that a jury will faithfully apply a trial judge's directions unless the contrary is shown. See Zammit v The State of Western Australia [2007] WASCA 66; (2007) 34 WAR 302 [65] (Steytler P).

74 In the present case, there is no reason to suppose that his Honour's directions were not followed by the jury.

75 Ground 3 fails.

Ground 1

76 I agree with Hall J, for the reasons he gives, that ground 1 is without merit.

Conclusion

77 I would dismiss the appeal.

78 MAZZA JA: I have read in draft the reasons of Hall J. I agree that this appeal against conviction must be dismissed for the reasons that he gives. I wish to add some brief comments of my own with respect to s 21 of the Evidence Act 1906 (WA).

79 The evidence of Ms Sullivan and Ms Rattray was only admissible to prove that Ms O'Meara had made statements to each of them inconsistent with the evidence she gave at trial. The evidence could only be adduced if the preconditions set out in s 21 of the Evidence Act referred to in [148] of Hall J's reasons were met. The appellant's senior counsel at the hearing of the appeal conceded that they had been met in this case.

80 Like Hall J, I am of the view that it is unnecessary, in the circumstances of this case, to decide whether the word 'may' in s 21 of the Evidence Act gives a trial judge a discretion to refuse to allow evidence for prior inconsistent statement to be led, even when the preconditions in the section have been met, because, for example, there would be some unfairness to the accused to do so.

81 Assuming there is a discretion to exclude evidence of the prior inconsistent statement, about which I make no comment, it could not conceivably have been exercised in the appellant's favour for the reasons given by Hall J in his reasons.

82 HALL J: This is an appeal against conviction.

83 The appellant was convicted after a trial in the District Court of four counts of possessing child pornography contrary to s 60(4) of the Classification (Publications, Films and Computer Games) Enforcement Act 1996 (WA). The trial was a retrial, an earlier trial having ended in a hung jury.

84 There are three grounds of appeal. Mazza JA granted leave to appeal on those grounds on 3 June 2013. The essential issue raised in the appeal is whether the trial judge erred by ruling that the prosecution could call evidence of prior inconsistent statements made by a defence witness. The appellant further submits that the evidence was so unfairly prejudicial to the appellant that it should have been excluded by the trial judge in the exercise of his discretion.

The prosecution case

85 At all relevant times the appellant was employed as the Chaplain at Perth College, a private girl's school. He and his family lived in a house adjacent to the school. He had teaching and pastoral duties at the school and had an office there.

86 Sometime between 2 and 6 August 2010 Mrs Debra Mitchell, the Speech and Drama teacher at the school, found a Kingston thumb drive in her office. Her office was located near to that of the appellant. Mrs Mitchell assumed that the thumb drive belonged to one of her students and made efforts to locate the owner.

87 On 19 August 2010, no-one having claimed the thumb drive, Mrs Mitchell put it into her computer to examine the contents. She saw a number of images of young girls which made her feel uneasy. She then passed the thumb drive to the Deputy Principal. It was later handed to Mr John Garnett, the Head of the Information and Technology Department at the school. He viewed a number of files on the thumb drive including a video of a young girl masturbating and a file with a directory called 'Scan File'. The Scan File documents were electoral forms relating to the appellant and his wife. The thumb drive was then taken to the school Principal who reported the matter to the police.

88 On 20 August 2010 police officers executed a search warrant on the appellant's office at the school and later at his home. During the course of the search of the appellant's office he was permitted to use the Principal's office for the purpose of telephoning a lawyer for legal advice. He was left alone in the office for approximately ten minutes for this purpose. Shortly afterwards he was escorted back to his own office where police asked him to empty his pockets. The appellant produced an Imation thumb drive from a pocket.

89 The police seized the Kingston and Imation thumb drives. They were later examined and found to contain a number of items of child pornography. The Kingston thumb drive contained 422 photographs and five videos that were classified as child pornography. The photographs were the subject of count 1 of the indictment and the videos were the subject of count 2. The Imation thumb drive contained 26 photographs and three videos that were classified as child pornography. The photographs were the subject of count 3 and the videos were the subject of count 4.

90 During the search of the appellant's office and home the police also seized two computers and two other thumb drives. The computers were a Dell laptop located in the appellant's office and an Apple iMac from the appellant's home. The two other thumb drives were located in locked filing cabinets in the appellant's school office. The two computers and two other thumb drives were examined and found to contain photographs or videos that the prosecution relied upon as propensity evidence pursuant to s 31A of the Evidence Act 1901 (WA). This evidence was relied upon by the prosecution to demonstrate that the appellant had an inappropriate sexual interest in young girls.

91 The prosecution case was that the appellant had both possession of the Imation and Kingston thumb drives and knowledge of their contents. In relation to the Kingston thumb drive the evidence relied upon included that it contained scanned copies of the electoral forms of the appellant and his wife and that the file names for those documents were consistent with them having been scanned on the appellant's home Apple iMac computer.

The defence case

92 The fact that the Kingston and Imation thumb drives contained child pornography was not in dispute. However, the appellant denied knowingly being in possession of any of that child pornography. He denied that either of the thumb drives belonged to him and denied any knowledge of their contents.

93 The appellant also denied downloading the data constituting propensity evidence. The appellant admitted viewing some of the material, but not for the purpose of sexual gratification.

94 In regard to the Kingston thumb drive, the appellant denied that it was his or that he had downloaded any material to or from that device. This included a denial of downloading the scanned electoral forms to the thumb drive. The appellant admitted that the scanned copies were in fact copies of electoral forms belonging to he and his wife. He had obtained forms from the post office and completed them with the intention of lodging them. He gave evidence that he had taken the completed forms to his school office and left them in a tray on his desk. He denied ever scanning the forms.

95 In regard to the Imation thumb drive, the appellant said that he had found it at the bottom of the stairs leading up to his office on the morning of 20 August 2010, the day the police attended the school. He put the thumb drive into his pocket but said he had no idea what was on it. It was still in his pocket when the police arrived at the school. He made no attempt to dispose of it when left alone in the Principal's office.

96 The defence case raised the possibility of others having obtained the pornographic images and downloaded them onto the various devices. In response to evidence that indicated that images had been downloaded using computers that the appellant had used, evidence was led that a number of other people had access to the appellant's school office, the Dell laptop computer located in that office, the appellant's home, the Apple iMac computer and the school computer drives from which some of the material constituting the propensity evidence had been downloaded.

The issue of prior inconsistent statements

97 At the first trial both the appellant and his wife gave evidence to the effect that neither of them had scanned the electoral forms on their home computer and that the appellant did not use thumb drives. Following that trial two witnesses came forward to say that this was inconsistent with statements that Mrs O'Meara had made to each of them. Those witnesses, Louise Rattray and Ruth Sullivan, provided statements to the police. Those statements were disclosed to the defence prior to the commencement of the second trial.

98 The second trial commenced on 25 February 2013. On 22 February 2013 a directions hearing was conducted to deal with some pretrial issues. The prosecutor referred to the statements of Mrs Rattray and Mrs Sullivan, who she described as rebuttal witnesses. The prosecutor said:

We certainly don't require a ruling at this point because it will depend on how the evidence progresses and it will depend largely on the defence case in particular, the evidence of Kareena (sic) O'Meara, the accused man's wife and the State would propose to call these witnesses to prove a prior inconsistent statement if Mrs O'Meara gives evidence in the way that the State anticipates and they're not admissible on the prosecution case.

...

the prior inconsistent statement will relate to Mr O'Meara's use of and possession of USB thumb drives, in particular, a USB thumb drive that contained electoral forms. The State's case being that a USB thumb drive containing Mr and Mrs O'Meara's electoral forms was located at Perth College and was found to also contain child pornography. ...

...

the evidence of both Mr O'Meara and Mrs O'Meara was that Mr O'Meara didn't use thumb drives.

...

That he wasn't in the habit of using thumb drives, and so that distanced him from the thumb drive on which the electoral forms were found, and also the child pornography was found. We have two witnesses who had conversations with Mrs O'Meara as to Mr O'Meara not only using thumb drives, but using a thumb drive to put the electoral forms on it, and so that is why the State proposes to call them in rebuttal (ts 982 - 983).

Evidence of the appellant

99 The appellant gave evidence in his defence. That evidence was consistent with the defence case summarised earlier.

100 In regard to the issue concerning the scanning of the electoral forms and the possession of the Kingston thumb drive, the appellant accepted that the documents on the thumb drive appeared to be scanned copies of electoral forms that he had completed. His evidence in this regard was as follows:

I want to ask you about the electoral forms that were found on the Kingston thumb drive---Yes.

Firstly, did you fill in any electoral forms to change your electoral enrolment data---Yes, I did.

When did that take place---That - that again took place late-June, early-July.

And physically how did you do it---Physically I went to the post office and I got - - -

Well - okay. Sorry---Sorry.

Yes---And I - and I filled in a form with a - with a pen.

All right. Was that the first attempt---It was not the first attempt, no, no. No, I'm - was it the - there were two attempts that I made and yes, it - I beg your pardon, it was the first attempt. The first attempt was to do it on paper.

All right---I later learned it would be easier to do it via the Internet.

All right. And did you do it, can I ask you, the forms that were found on the Kingston thumb drive - - ----Yes.

- - - were they your forms---Yes, they were.

All right. They had your details on it---They did.

And in fact they were witnessed by a particular person, weren't they---Yes, they were.

Who was that---My father.

Right. And do you remember where he witnessed the documents---Yes, they visiting us at the same period of time for - for a couple of weeks, late June, early July.

Okay. So now those forms that we see on that Kingston thumb drive that were witnessed by your father------Yes.

LEVY, MR: - - - were those the forms that you obtained from the post office or did you obtain them in some other way---No, they're the forms that I obtained from the post office.

Right. Did - in terms of you - you say that was the first attempt---Yes.

Did you actually change your data on the electoral roll in some other way, other than physically filling them in and handing them over to the Australia Post---Yes, eventually I was - I was made aware that there was another way that you could do it via the Internet.

Right---And that's how I did it.

Okay. So I think you told the jury you got the forms from Australia Post---Yes.

Did you return the completed forms to Australia Post or in any electoral office of something like that---No, I did not.

All right---No.

Did you complete the process online---I did, yes.

Okay. Now, after you had completed the forms and had your father witness them, what did you do with the forms---Well, this was initially before I'd actually learnt that you could do it electronically, so I - I have a small postage allowance that I'm allowed to use through the school for personal reasons and for work reasons, so I took the forms over to my office with the intention of posting them from there.

Right. Did you actually physically end up posting them---No, no, I simply put them in my in-tray and I think very shortly afterwards I spoke to somebody who said you know, you can do that on the - online (ts 2103 - 2104).

101 The appellant then gave evidence that it was not his practice to use thumb drives. He said that he did not often take work home but if he did need to make work available at home he found that the easiest way to do this was to email himself. He denied owning the Kingston thumb drive or that he had downloaded child pornography onto it. He also denied downloading the electoral forms onto that thumb drive. He said that he had no idea how the electoral forms got onto the Kingston thumb drive.

102 The issue of whether the appellant had used thumb drives was also raised in cross-examination:

KEANE, MS:

You say that you don't use thumb drives---I say it's not my practice to use thumb drives, yeah.

Well, what does that mean, Mr O'Meara? Do you or do you not use thumb drives---Well, no. When we looked at the - the - Mr Garnett's evidence of - of how many thumb drives had been used on the Dell computer---

You've answered the question, Mr O'Meara---I'm giving you an answer.

...

KEANE, MS: Back in 2010, whether for work purposes or private purposes, you did not use USB thumb drives---In 2010, no (ts 2153).

103 There had been evidence from a computer expert called by the prosecution that the file names of the enrolment forms on the Kingston thumb drive were SCAN0000 and SCAN0001. This was consistent with the naming protocol of the scan programme used by the appellant's home iMac computer and inconsistent with the scanning programme used on the school's computers. This was put to the appellant in cross-examination:

In terms of the forms being on that thumb drive, you put them on there, didn't you---No.

Or your wife---No.

There were other files with that same type of file name that were found on your iMac computer. Do you remember hearing evidence of that---Yes. Yes.

KEANE, MS: And in terms of that Kingston thumb drive, the thumb drive that was found in Mrs Mitchell's office---Yes.

The two enrolment forms were called scan0000 and SCAN0001---yes.

And they were found in a folder called scanfile---Yes.

And you heard evidence that on your home computer, the Apple iMac, there was a folder called scanfile---A folder or just the scans themselves? I can't - or just triple - double 0 numbers. I'm not sure.

There was a folder- - ----I can't recall.

- - - there was a folder on your desktop, wasn't there, Mr O'Meara, that was called scanfile---I can't recall that.

And inside that scanfile folder were documents called SCAN0000 and SCAN0001---There may have been - there may have been.

And there were other scanned documents with similar file names elsewhere on your computer---There may have been.

Because those are documents that you or your wife have scanned and placed on that computer---Yes.

Using your home scanner---I - they would not have been files that I scanned, because I'm a hopeless scanner. I can't actually - even to -to this day, I still can't seem to manage to do scanning properly. So those files I imagine my wife scanned.

On your home scanner---Yes (ts 2157 - 2158).

104 A short time later the following questions were put in cross-examination:

Did you ever use the scanners at Perth College---No.

You heard Mr Garnett's evidence about what files are called once they're scanned at Perth College---Yes. I did.

And that - that they're not called scan0000 et cetera---I - I believe he said they had a specific numbering system.

Based on the date---Yeah.

Mr O'Meara, I'm saying that you or possibly your wife scanned the enrolment documents once you'd filled them in---No. They were not scanned by us.

And then you or your wife put them on the Kingston thumb drive---No.

You knew those forms were on the Kingston thumb drive, didn't you---No.

Because then you lost that Kingston thumb drive, didn't you---No, I did not.

And you told your wife, 'I've lost a thumb drive. It's a thumb drive with our electoral forms on it'---No, I did---

KEANE, MS: Didn't you---No, I did not.

That's what you said to your wife---No, it's not.

And you said that to your wife in the weeks leading up to your arrest---No. That's not correct (ts 2159 - 2160).

Evidence of Karina O'Meara

105 Mrs Karina O'Meara gave evidence that there were two computers in the family home, an Apple iMac and an Apple laptop. Both were taken by the police. She confirmed that prior to coming to Perth she and the appellant had been enrolled to vote in Victoria and that they had completed forms to change their enrolment details. In regard to whether those forms had been scanned she gave the following evidence:

Did you ever scan that form onto the Mac---No.

Did you ever copy the - the document onto a thumb drive---No.

Did you ever scan - leaving aside the Mac, and I'm going to ask you more questions about the Mac. But did you ever scan documents---No.

In relation to------At home? Sorry, can I just clarify?

LEVY MR: I - I'm - yes, I'll - I'll - I'll probably - I'm not making myself clear---Yeah.

I am going to ask you about the Mac specifically. But did you ever scan documents ever---Ever?

Yes---I have scanned documents in a work environment that might have been personal.

Right. Okay---And then sent them to myself, yes.

When you're saying, 'Scanned documents that might have been personal' and then sent them to yourself------Yeah.

What documents are you talking about---Well, I remember before we moved to Singapore, when I was getting organised for all of the immigration forms, scanning my passport and---

Was that done at home---No, no---

Or somewhere else---At - at work.

At work. And was that the only document that you can remember scanning---It's the only one I can remember doing, yeah. And that would have been, what, in 2005.

So did you ever - was there a scanner at home---There was. We have - had a---

I'll just make it clear. When I say, 'A scanner at home', a scanner at Mount - in Mount Lawley, 699------Yes.

- - - Beaufort Street, yes---Yes.

Yes---That's right. Scanner/printer/copier.

Did you ever use it---Yes. Not as a scanner, because it - it never seemed to work for me.

All right. So you used it for what purpose---Printing, photocopying.

Did you ever see Matthew scan any document---No. Well, we had discussions about how ineffective it was, because I asked him if he could help me on occasion (ts 2278 - 2279).

106 Mrs O'Meara gave evidence regarding other people having access to the house and to the home computer. She also gave evidence regarding a threatening telephone call that her husband had received on 5 January 2013.

107 In cross-examination Mrs O'Meara said that whilst there was a scanning device in the home she had never been able to make it work. There were other scanned documents on the home computer, including copies of Mrs O'Meara's passport and driver's licence. She said that she had not been aware that those documents were on the computer and said that she may have given them to the appellant to scan but she could not specifically recall doing so. She was then asked:

Is it your evidence that you don't think it was possible for your husband to have scanned those enrolment documents at your house---That's right.

KEANE, MS: The reality is that you or your husband did scan those documents at some stage, isn't that right, Mrs O'Meara---Well, I - I have no reason to believe that, so my answer would be, no.

You scanned them - you or your husband scanned them, as you had with other documents, such as the ones that I just showed you---The answer would be no.

The enrolment documents were scanned and then you or your husband put them on to a thumb drive, isn't that right, Mrs O'Meara---No.

Because your husband did use thumb drives, didn't he, Mrs O'Meara---No.

He - - ----To my knowledge, it was not his practice to use thumb drives.

You were aware that he had a thumb drive that included those enrolment documents on it, weren't you, Mrs O'Meara---That is not true.

You were also aware that your husband had lost that thumb drive that contained the enrolment documents, isn't that right---No, that's not true.

And in fact, he had told you that he lost that thumb drive, in the weeks leading up to his arrest, isn't that correct---No, That's not true.

And then he told you as well, that he had to buy another thumb drive---No, that's not true.

And in fact, he had to buy another thumb drive in time for the conference in Brisbane, isn't that right---No.

That's what he told you---That is not what he told me (ts 2290 - 2291).

108 Mrs O'Meara was then asked whether she had made a statement to Mrs Sullivan that was inconsistent with her testimony. In particular:

After you returned from the police station, you and Mrs Sullivan talked about what had happened, didn't you, Mrs O'Meara---Yes, it was a fairly shocking event so, yes.

You told her that Matthew's thumb drive had been found with child pornography on it, didn't you, Mrs O'Meara---No, I did not say that.

She asked you if you knew about the thumb drive and you said yes, didn't you, Mrs O'Meara---No, I did not say that.

And then you said that Matthew had been looking for it and it had been missing for some time, didn't you---Is that a question?

Didn't you---I did not.

You also said that Matthew had asked you if you had seen it as your personal records on it for the Electoral Commission - it - on it - sorry, I'll start again. You said to her that Matthew had asked you if you had seen it as it had your personal records on it for the Electoral Commission after your move from Melbourne?---No, I did not say that.

You told her that Matthew had to go and buy another thumb drive from the Post Office as he was going to a forum in Queensland and needed one; is that what you said to her---No.

Did you ever have a conversation with Mrs Sullivan along those lines---No (ts 2293 - 2294).

109 Mrs O'Meara was then asked about a conversation that she had had with Mrs Rattray:

And you spoke to her about your husband's arrest as well, didn't you---I spoke to her about the situation in broad outline, yes.

You told her that Matthew had lost a thumb drive some months before and he had mentioned it to you---I did not say that.

You told her that it had scans of your electoral role information on it, didn't you---No, I did not say that.

You told her that it was the USB that the police had found, didn't you, Mrs O'Meara---No, I did not say that.

KEANE, MS: You also mentioned that Matthew had pictures of his previous students, didn't you, Mrs O'Meara---No, I did not say that.

And you said that he was an idiot for having them but it was purely because he cared about them---No, I did not say that (ts 2294 - 2995).

110 In re-examination Mrs O'Meara said that what she had said to Mrs Sullivan was that a thumb drive had been found with child pornography on it and it was said to be connected to her husband because of the presence of the electoral enrolment forms. She said that she had no reason to believe that the thumb drive was in fact connected to her husband and the only reason she referred to a connection was because she had been told about the forms being on the thumb drive after the appellant was arrested. She said that prior to 20 August 2010 she had never heard about the existence of a thumb drive containing scanned electoral forms. She said that what she told Mrs Rattray was that she believed that her husband was innocent, that she had reconsidered every moment of their 20 years together and had no reason to think that there was anything inappropriate and that she intended to support him.

The prosecution application

111 Following Mrs O'Meara's evidence the prosecution made an application to call Mrs Sullivan and Mrs Rattray. I will refer to these witnesses as the additional witnesses. The evidence was described as being rebuttal evidence. That characterisation influenced the course of the argument before the trial judge.

112 The prosecutor submitted that Mrs O'Meara's evidence was significant, in particular because she had denied that the appellant was in the practice of using thumb drives. This supported the appellant's own evidence that the two thumb drives on which child pornography had been found were not his. Mrs O'Meara had also given evidence relevant to the question of whether either she or her husband had scanned the electoral forms and downloaded them onto the Kingston thumb drive. Her denial that the forms had been scanned on the home computer also supported the appellant's evidence that the Kingston thumb drive was not his. 113 In addition to describing the evidence of the additional witnesses as rebuttal evidence there was some confusion in the argument as to whether that evidence was relevant to the facts in issue in the case or only to the credibility of Mrs O'Meara. The argument was further confused because the proposed evidence of the additional witnesses contained two levels of hearsay. It was proposed that the witnesses would be called to give evidence of statements made by Mrs O'Meara regarding what the appellant had told her.

114 After some discussion it was accepted by the prosecution that the evidence could only be admissible to show that Mrs O'Meara had made a prior inconsistent statement and for that reason, the prosecution would submit, should not be believed in her testimony to the court. The prosecution accepted that use of the evidence was limited in that way and asked that the trial judge give a direction to the jury in that regard.

115 The trial judge then said:

Well, the position in relation to re-opening to call rebuttal evidence, really is that it's got to be exceptional. I accept that it's not evidence that could have been led in part of the case for the State, although it was disclosed prior, ... It's only if the circumstances are special or exceptional, because of the impact that the State's evidence coming last has with the jury.

...

And it is a matter of discretion. And would you accept that as a matter of discretion, I'd need to bear in mind - notwithstanding the probative value, but also the prejudicial effect? (ts 2375).

116 Defence counsel objected to the calling of the witnesses. Notwithstanding the statement by the prosecutor to the contrary, defence counsel maintained that the prosecution was seeking to call the evidence in order to prove the truth of what was said, that is that the appellant had spoken to his wife about a thumb drive in terms that suggested that the Kingston thumb drive belonged to him. Defence counsel submitted that the evidence of the additional witnesses was essentially hearsay and not admissible.

117 In the course of argument defence counsel noted that Mrs O'Meara's evidence to the effect that the appellant did not use thumb drives had been elicited in cross-examination. There was a suggestion that the State Prosecutor had deliberately elicited this evidence to provide a foundation for introducing the evidence of Mrs Sullivan and Mrs Rattray. The implication was that the prosecution should not be permitted to call evidence of prior inconsistent statements in these circumstances. On the hearing of the appeal the appellant's counsel did not maintain any argument in this regard and accepted that the cross-examination of Mrs O'Meara had been entirely proper.

118 The trial judge expressed some concern as to whether it would be possible to give the jury a direction that would avoid prejudicial use of the evidence. The concern was that the jury might treat the evidence as establishing that the appellant had in fact told his wife that he had lost a thumb drive and that it contained their electoral enrolment forms. Evidence of an out of court admission against interest by the appellant may be admissible as an exception to the hearsay rule if evidence of it is given by a person who heard the admission. That was not the case here. Mrs O'Meara had denied in her evidence that the appellant had made statements as alleged. The evidence of the additional witnesses was not of any admission made by the appellant but of statements allegedly made by Mrs O'Meara.

119 The prosecution acknowledged the risk of prejudice but said that Mrs O'Meara had given significant evidence in support of the appellant and the proof of prior inconsistent statements made by her would be an important factor in assessing her credibility as a witness. It was submitted that a direction as to the use that could be made of evidence of a prior inconsistent statement would obviate the risk of any prejudice. It was also said that an additional warning should be given reminding the jury that the prior inconsistent statement in this case could not be used by the jury to infer that the appellant in fact said the things attributed to him.

Ruling

120 The trial judge ruled that the evidence of the additional witnesses was admissible. He also concluded that it was not appropriate to exercise any residual discretion to exclude otherwise admissible evidence on the grounds that the trial would be unfair.

121 His Honour said that as a general rule the prosecution was not permitted to split its case except in special or exceptional circumstances. His Honour said that the reason for this general rule was that evidence tendered by the prosecution after the defence case has closed would assume an inflated importance in the eyes of the jury. He referred to Manyam v The State of Western Australia [2010] WASCA 107; (2010) 201 A Crim R 156 [98] - [99] (Buss JA). He said that the general rule was based on two fundamental propositions. First, that the burden is on the prosecution to prove the accused's guilt beyond reasonable doubt. Secondly, that an accused person is entitled to a fair trial including the protection of his or her right to silence and the presumption of innocence. His Honour said that it was an exception to the general rule to prove a prior inconsistent statement in relation to a matter that is central to a matter in issue.

122 His Honour said that in order to establish its case the prosecution needed to prove that the appellant had knowing possession of the contents of the Kingston thumb drive. The evidence of Mrs O'Meara that the appellant did not use thumb drives and that the electoral documents had not been scanned on the home computer was relevant in this regard. His Honour then said:

[T]he fact that she made an inconsistent statement would assume some importance in circumstances where, if left unchallenged by the evidence sought to be led by the State, the jury would be left with the position that the accused does not use USB thumb drives and did not scan the documents, and that the - buttressed by the evidence of Mrs O'Meara that, to her knowledge, the accused did not use thumb drives and that the forms were not scanned.

In those circumstances, I am permitted - I am prepared to permit the State to lead the evidence of Mrs Sullivan and Mrs Rattray in rebuttal, to address the evidence of Mrs O'Meara and - as evidence of a prior inconsistent statement. I am mindful that the content of the statement impacts upon or has within it inadmissible hearsay of a statement said to have been made by the accused. That carries with it some considerable prejudice. I am satisfied that it can be properly addressed by a direction to the jury that I'll give at the completion of that evidence, and will also give at the completion, when charging the jury before they retire for their verdict. The direction that I would give would be that they cannot use that evidence whatsoever to find that the USB thumb drive, and that the documents that were scanned on the USB thumb drive, by Mr O'Meara. They would need to find that evidence elsewhere. It will only be permitted to be used by them to the extent to which they might rely upon Mrs O'Meara's evidence as evidence supportive of the accused on the issue as to whether or not the documents were scanned or, to her knowledge, that he used thumb drives. It would only be permitted to that limited extent and goes solely to the issue as to her credibility, and the jury will be directed in that regard (ts 2393 - 2394).

Direction prior to the witnesses being called

123 Prior to the additional witnesses being called, his Honour gave the following direction to the jury:

Members of the jury, can I just indicate that this evidence is being called by the State. And it's being called for a special purpose and - and only that purpose. And that the evidence can only be used by you in the way in which I direct. And I'll give you that direction when the evidence has been finished. And - and you must bear in mind that that's the only reason it's being called. Thank you. And it cannot be used for any other purpose (ts 2449)

Evidence of Ruth Sullivan

124 Mrs Sullivan gave evidence that she met Karina O'Meara in early February 2010. They both had sons who were attending the same private boys school. A friendship developed.

125 On 20 August 2010 Mrs O'Meara rang Mrs Sullivan to say that something had happened that could potentially destroy her family. Mrs Sullivan drove to Mrs O'Meara's home. Mrs O'Meara broke down and told Mrs Sullivan that the appellant had been arrested and charged with offences relating to child pornography. Mrs Sullivan then offered to take Mrs O'Meara's children with her to a hotel in Hillarys where the Sullivan family were staying whilst their house was painted.

126 Later that evening Mrs O'Meara called to say that her husband had been bailed and Mrs Sullivan offered to drive the children back to her. On her arrival Mrs Sullivan and Mrs O'Meara had a discussion. Mrs Sullivan recounted the discussion in some detail including the following:

She said Matthew's thumb drive had been found with child pornography on it. I then turned to her and asked her, 'Do you know about the thumb drive' and she said, 'Yes'.

KEANE, MS: And did she say how she knew about the thumb drive---She said Matthew had lost his thumb drive. It had been missing for some time. She said he was looking for that thumb drive, it had his Electoral Roll Commission details on it because they had moved from Melbourne through to Perth. She then said that he had asked her had she seen the thumb drive. She said no. He then had to go and buy another thumb drive because he was going to some conference and he needed another one (ts 2452 - 2453).

127 In cross-examination Mrs Sullivan said that she had been prompted to contact the police after seeing a news item that reported that evidence had been given at the first trial that the appellant did not use thumb drives. This issue was also referred to in re-examination:

[H]ow did it come about that you gave this statement, Mrs Sullivan? Tell - tell us what happened---After reading the article on the Wednesday the 17th, that was dated 16 October, by Kate Campbell, I read through the article and it said that he did not own thumb drives. And my immediate response---

LEVY, MR: I object.

BIRMINGHAM DCJ: Okay. Yes?

LEVY, MR: This is going into her opinion about what---

BIRMINGHAM DCJ: Yes.

KEANE, MS: Your Honour, this goes to---

BIRMINGHAM DCJ: As a result of reading the article, what did you do?

KEANE, MS: Well, your Honour---

BIRMINGHAM DCJ: You read something in the article, is that right---Yes, I did.

And as a result of reading that article, what did you then do---I yelled out, 'Liar'.

KEANE, MS: And then what did you do, Mrs Sullivan?

BIRMINGHAM DCJ: Yes. Sorry.

I - that was my immediate response. I further read other information on it and I had a deep, horrible feeling (ts 2468 - 2469).

Evidence of Louise Rattray

128 Mrs Rattray gave evidence that she also came to know Karina O'Meara through having sons attending the same school. They became friends and would sometimes meet at a coffee shop after dropping their children off at school.

129 Mrs Rattray became aware sometime in August 2010 that the appellant had been charged. Sometime after that Mrs O'Meara telephoned her. They then met at a coffee shop on 25 August 2010. Mrs Rattray recounted the following conversation:

And what was said?---The main bits was that he - their USB stick had been found and it - and he had been arrested for images on that USB stick. She said that the - they had previously - he had lost a USB stick some months previously and they knew it was theirs because there was a scan of an electoral roll on the USB stick and that was the one that had been found with images on.

KEANE, MS: Did she talk to you about any other material that had been found---She mentioned some pictures of girls and said that he - but I can't remember what context it was in at the time. I thought that he'd printed them out but I - I think I - that's not clear to me. But she said that he---

Well, you say 'girls', did she indicate what girls---The - from previous students. And the reason he had - had these pictures was because he was concerned for their wellbeing and - and wanted to follow their progress (ts 2472 - 2473).

Further defence evidence

130 After the trial judge's ruling that Mrs Rattray and Mrs Sullivan could be called by the prosecution the defence sought to recall Mrs O'Meara. The purpose of this was to establish the dates upon which she became aware of the contents of the thumb drives. The reason this was said to be relevant was that if at the times of the conversations with the additional witnesses she was not aware of information that those witnesses said was included in the conversations it would cast doubt in their credibility. The prosecution objected to Mrs O'Meara being recalled on the basis that these questions could have been put in re-examination. However, his Honour granted the application.

131 In her further evidence, Mrs O'Meara said that she had not become aware of the two thumb drives located in the locked filing cabinets in the Chaplain's Office until a bail hearing on 2 September 2010. She was told by the appellant after he had met with his lawyers on that day that the two thumb drives in question contained photographs of students. She denied having any knowledge of this prior to 2 September 2010 and, in particular, when she met with Mrs Rattray on 25 August 2010.

132 In cross-examination it was put to Mrs O'Meara that she knew about the photographs of students prior to 2 September 2010 because she had been told about them by her husband. She denied this. She accepted, however, that by the evening of 20 August 2010 she was aware that pornography had been found on the Kingston thumb drive and that copies of her and the appellant's enrolment forms were also located on that thumb drive.

133 The defence also sought the recall of a police witness to establish when the two thumb drives found in the locked filing cabinet had been examined. The evidence in this regard was that those thumb drives were received for analysis on 23 August 2010 and the analysis commenced on 25 August 2010 and was completed on that day around 5.00 pm. The analysis of downloaded Facebook pages on the iMac computer was not undertaken until 8 December 2010.

Directions of the trial judge

134 After the completion of the evidence and before counsel addressed the jury the trial judge directed them that the evidence of Mrs Sullivan and Mrs Rattray had only been admitted for a special reason and could only be used for a specific purpose. His Honour then said:

The evidence that you heard this morning is only admissible in relation to the evidence of Mrs O'Meara. The evidence that you heard in this case and for which you are to decide the issues in this case and that is whether at the relevant time, the accused, Mr O'Meara had in his possession the material on the Kingston thumb drive and the Lexar thumb drive. Those are the issues that you have to decide. The fact that Mrs O'Meara said anything about that or reported what she said from her husband was only evidence in relation to what she is supposed to have said on another occasion. Whether you accept that she has done so is a matter for you. And that's a matter that you'll have regard to as to whether or not what she has said when she gave evidence before you in court, is a matter that you can rely on. But you must bear in mind this. That it is only the evidence of what a witness says that in this courtroom that is evidence for the purpose of the matter for your decision. Whether you accept that evidence is a matter for you. But when considering that evidence, you're entitled to have regard to whether or not the witness has said something different on another occasion. And it is for that reason and that reason alone, that the evidence was admitted this morning.

There is nothing in the evidence that was admitted this morning that is admissible by way of any statement or admission made by the accused or whether he said anything to his wife at all. He wasn't present at these conversations and the mere fact that if I was to say to anyone of you that X did something yesterday, doesn't make it true. It just means that I said to you that X happened yesterday. And that's the fact that you've got, is the fact that I said it. And that's the way you must approach the evidence in relation to the evidence of Mrs Sullivan and Mrs Rattray in relation to this case. What they say Mrs O'Meara said on an earlier occasion is only relevant in relation to your assessment of Mrs O'Meara's evidence and not otherwise. It cannot be used for any other purpose. And I give you that as a direction of law that you are obliged to follow and you must follow that (ts 2493 - 2494).

135 His Honour returned to the issue in his summing up. In particular, he said:

There's two things I wish to say about this evidence and it's important that you bear them in mind because it's fundamental to this case. The first is that the contents of what the person, in this case Mrs O'Meara, said outside the court is not in any way part of the evidence at this trial in relation to any conduct on the part of the accused that's for your determination. It's the witness's evidence that you saw and heard her give in court which is the evidence that you are to consider. That evidence from Mrs O'Meara was that, to her knowledge, she did not - to her knowledge, the accused did not use thumb drives and that the electoral forms had not been scanned and, to her knowledge, they hadn't been scanned to any thumb drive and she didn't know what had happened to her electoral form but she was not aware of it being scanned. The second point that I wish you to bear in mind in relation to this evidence is that if you were to find that a witness has previously made a statement that is inconsistent with the evidence that the witness has given before you, then the fact that the witness has made a statement on a prior occasion that is inconsistent is a matter which you can take into account in considering that witness's credibility and the - as a witness in this trial and whether you should accept his or her evidence. In this case, it's a matter that you would take into account as to whether, on the evidence of Mrs Sullivan and Mrs Rattray, if you were to accept their evidence and find that Mrs O'Meara had said something different previously, whether that impacts upon her credibility in relation to those items and those matters about which she gave evidence that was inconsistent with what she'd told others earlier. Whether it does affect the credibility of the witness is entirely a matter for you as the judges of the facts. It's important that I reiterate the warning that I gave before when that evidence was given. If Mrs O'Meara said the words that are attributed to her by Mrs Sullivan and later Mrs Rattray, you'll understand that the accused was not present on that occasion. He has not adopted those words and, indeed, it is - they are inconsistent with what he says the true position is. As I've said, the evidence is only admissible in relation to the evidence of Mrs O'Meara. The issue in this case is whether the accused had in his possession the material on the Kingston thumb drive and the Lexar thumb drive.

Those are the matters for you to decide. The fact that Mrs O'Meara has said something about that or attributed some aspect of knowledge to the accused is only admissible as evidence of what she said on a prior occasion and no more. It cannot be evidence that's used against the accused in relation to his knowledge of the matter. Further, if you did not accept the evidence of Mrs O'Meara in relation to those issues upon which she gave evidence that were said to be inconsistent, that doesn't prove anything one way or the other. All that you do is that you put Mrs O'Meara's evidence on what her knowledge about the matters was and, to the extent that she bolsters the accused evidence, to one side. It proves nothing. The fact that you don't accept it just means it's evidence you don't accept. It doesn't prove anything positive; it's just a non event. It proves nothing one way or the other and it's simply not available to support the accused's account, but it cannot be used as proof of something to the positive. You just simply put it to one side as evidence that you've heard but not accepted. The assessment of the credibility and reliability of all the witnesses in this case is entirely a matter for you (ts 2660 - 2661).

136 Defence counsel sought a redirection in respect of the evidence of Mrs Sullivan and Mrs Rattray. In particular, he asked that the trial judge direct the jury that one of the matters that they could take into account in assessing the evidence of those witnesses was that they only raised the issues referred to in their evidence two and a half years after the conversations were said to have occurred. His Honour redirected the jury on this issue in the following terms:

In speaking about the use to which you might put the evidence of prior inconsistent statements concerning the evidence of Mrs O'Meara, and in particular the evidence of Mrs Rattray and Mrs Sullivan, it is important that you bear in mind that their accounts were being given after the trial in October last year, some two years after the event. Mrs Sullivan said that she learned of there being an issue about the use of USBs by the accused following a report of his evidence at that time, and then recalled the conversation. But it comes at the process of two years later.

You'll recall Mrs Rattray gave evidence as to a conversation that took place on the Wednesday, and that was after Mrs O'Meara had seen lawyers and been instructed not to speak to anyone. And you'll bear in mind, in relation to Mrs Rattray, that she spoke of things that she was told then. And what I omitted to do was to remind you of the evidence, and the important evidence, of Detective Keen that was given subsequently as to when the thumb drive was examined, and when the information was then known as to its contents, and when that was communicated back to the arresting officer and then later to the defence, particularly in relation to what Mrs Rattray says as to what was said on the Wednesday, as to whether some of the matters that she thought had been discussed were, in fact, then known. And in particular, I think, it was in relation to the Facebook pages, as to whether those were known. You'll recall she was asked and she said, 'There was something about Facebook pages,' when, as a fact, it was not known until sometime later. So it's a matter for you as to the extent to which you might rely on that, as to whether that's the information that is a recollection of her conversation on the day or whether it perhaps carries forward some information that's come from other sources, including newspaper accounts, as often is the case when people are asked to remember things sometime down the track. And you would need to be satisfied that it was reliable.

If you were satisfied that it was reliable and the evidence of Mrs Sullivan's reliable, you would then use that for determining the reliability of Mrs O'Meara's evidence. But how you do that and whether you're satisfied of that's entirely a matter for you. But you make that assessment. That's your task (ts 2713 - 2714).

Grounds of appeal

137 The grounds of appeal are as follows:

1. The appellant's trial miscarried as a result of the inadmissible opinion evidence introduced by the witness Mrs Ruth Sullivan

Particulars

1.1 The evidence that as a result of reading an article she

yelled out, 'Liar'

. (Trial transcript, pages 2468 - 2469)

2. The learned trial Judge erred in law by ruling that there were special or exceptional circumstances justifying the decision to allow the Prosecution to call rebuttal evidence.

3. The learned trial Judge erred in the exercise of His discretion by allowing the Prosecution to call two witnesses in rebuttal, namely Mrs Ruth Sullivan and Mrs Louise Rattray, in circumstances where such a ruling was unreasonable or plainly unjust and gave rise to a miscarriage of justice.

138 Grounds 2 and 3 relate to the same issue and it is convenient to deal with them first. Those grounds contain an assumption that the evidence of the additional witnesses was subject to the rules regarding the calling of rebuttal evidence. There is a preliminary issue as to whether that assumption is correct. That issue is best explained by first considering the nature of rebuttal evidence and the purpose of the rules relating to it.

Rebuttal evidence - relevant principles

139 The legal principles applicable to the calling of rebuttal evidence have been summarised in Manyam v The State of Western Australia [18] - [23] (Pullin JA); [96] - [106] (Buss JA). Those principles are derived from a line of High Court decisions: Shaw v The Queen [1952] HCA 18; (1952) 85 CLR 365; Niven v The Queen (1968) 118 CLR 513; Lawrence v The Queen (1981) 38 ALR 1; Killick v The Queen [1981] HCA 63; (1981) 147 CLR 565; R v Chin [1985] HCA 35; (1985) 157 CLR 671 and R v Soma [2003] HCA 13; (2003) 212 CLR 299.

140 The general rule is that the prosecution must present the whole of its case before the accused is called upon to present a defence. The prosecution is not permitted to split its case or adduce rebuttal evidence other than in special or exceptional circumstances. The trial judge has a discretion to permit the prosecution to reopen its case and adduce rebuttal evidence. However, in general this discretion should not be exercised to permit the prosecution to adduce evidence that could have been led in its case. Nor should it be exercised to permit the prosecution to call further evidence in proof of guilt where that evidence ought reasonably have been foreseen as necessary to support the prosecution case.

141 The requirement for special or exceptional circumstances was referred to by Dixon, McTiernnan, Webb & Kitto JJ in Shaw:

Clearly the principle is that the prosecution must present its case completely before the prisoner's answer is made. There are issues the proof of which do not lie upon the prosecution and in such cases it may have a rebutting case, as when the defence is insanity. When the prisoner seeks to prove good character, evidence may be allowed in reply. But the prosecution may not split its case on any issue. The court possesses a power to allow further evidence to be called, but it must be exercised according to rule and the rule is against reopening the Crown case unless the circumstances are most exceptional ... It seems to us unsafe to adopt a rigid formula in view of the almost infinite variety of difficulties that may arise at a criminal trial. It is probably enough to say that the occasion must be very special or exceptional to warrant a departure from the principle that the prosecution must offer all its proofs during the progress of the Crown case and before the prisoner is called upon for his defence ... [G]enerally speaking an occasion will not suffice for allowing an exceptional course if it ought reasonably to have been foreseen. Again, it may be pointed out that even an unexpected occasion may be of such a nature that it would have been covered, had the Crown case been fully and strictly proved (379 - 380).

142 It is important to understand that the rule against the prosecution splitting its case is based upon fairness in an adversarial context. It is generally unfair for an accused person to be called upon to give a defence before the prosecution has called all of the evidence upon which it wishes to rely in proof of the charges. An accused person is entitled to know the case against him or her. Decisions about what, if any, defence evidence will be called are influenced by an understanding of the prosecution case. An accused person would be placed at a material disadvantage if it was open to the prosecution to withhold material evidence for use during cross-examination of defence witnesses or in rebuttal. Furthermore, evidence tendered by the prosecution after the defence has closed its case may assume inflated importance in the eyes of the jury: Killick (69).

143 When properly understood the rule relates to evidence that is relevant to proof of a fact in issue in the case. That is to say, evidence that can be used to determine whether the elements of the offence charged have been proved. The prosecution is under an obligation to adduce all such evidence in its possession and upon which it wishes to rely in its own case. To call such evidence after the defence case would be to split the prosecution case.

144 However, not all evidence admissible in a criminal trial is directly relevant to proof of the facts in issue. There is some evidence which is relevant and admissible only to the credibility of a witness. Such evidence can only become admissible when the witness is called and, often, only when other pre-conditions are met.

145 If evidence is led not in proof of the prosecution case but as being relevant only to the credibility of a defence witness then it must be doubtful that it can be properly characterised as rebuttal evidence. True it is that the purpose of such evidence is to cast doubt on whether a defence witness should be believed but it is not evidence that the prosecution can rely on to prove guilt or that could be led as part of its own case. Evidence of a prior inconsistent statement of a defence witness other than the accused falls into this category. Such evidence is only admissible in this State as evidence of the fact that such a statement was made, not of the truth of the statement: Driscoll v The Queen (1977) 137 CLR 517, 536 (Gibbs CJ) and Job v The State of Western Australia [2006] WASCA 186. Its use is confined to the assessment of the credibility of the witness concerned.

Prior inconsistent statements - Relevant principles

146 The admissibility of a prior inconsistent statement does not derive from it being rebuttal evidence, rather it derives from s 21 of the Evidence Act 1906 (WA) which relevantly provides as follows:

Every witness under cross-examination in any proceeding, civil or criminal, may be asked whether he has made any former statement relative to the subject-matter of the proceeding, and inconsistent with his present testimony, the circumstances of the supposed statement being referred to sufficiently to designate the particular occasion, and if he does not distinctly admit that he made such statement, proof may be given that he did in fact make it.

147 But for s 21 evidence of a prior inconsistent statement would be liable to be excluded on the basis of the collateral evidence rule: MJH v The State of Western Australia [2006] WASCA 167; (2006) 33 WAR 9. Section 21 provides an express statutory exception to that rule. It is a provision commonly relied upon in respect of prosecution witnesses, but applies to all witnesses.

148 The admissibility of evidence of a prior inconsistent statement pursuant to s 21 depends on a number of preconditions. First, the witness must have been called to give evidence at the trial. Secondly, the witness must have given testimony that is inconsistent with a statement made on a former occasion. Thirdly, the statement made on the former occasion must be one that is 'relative to the subject matter of the proceeding'. Fourthly, the former statement must be put to the witness in terms that are sufficient to identify the occasion on which it was made. Fifthly, the witness must deny that such a statement was made or, at least, 'not distinctly admit' that it was made.

149 The prosecution can never assume that a particular defence witness will be called and that the preconditions for the admissibility of a prior inconsistent statement will be met. It is only after those preconditions have been satisfied that the prior inconsistent statement is admissible. Thus such a statement could never be led as part of the prosecution case (other than in the case of admissions of an accused, which are admissible on a different basis and to which I will return later). Thus there can be no suggestion that the prosecution has split its case where it adduces a prior inconsistent statement of a defence witness, other than the accused, pursuant to s 21.

150 There have been some cases in which the prosecution has sought to rely upon statutory provisions like s 21 to justify tendering a prior inconsistent statement of an accused person. There is an important distinction between an accused person as a witness and any other witness called by the defence. In the case of an accused person, a prior inconsistent statement that can be construed as an admission against interest is admissible as an exception to the hearsay rule. Because such a statement can be relied upon as evidence of the truth of what was said it should be tendered as part of the prosecution case if the prosecution intends to rely on it. Indeed, it would generally be unfair for it not to be so tendered in such circumstances. These were the circumstances that arose in the R v Soma.

151 In R v Soma McHugh J gave consideration to how the principles regarding splitting of the prosecution case interacted with those relating to the proof of a prior inconsistent statement in the context of similar legislation in Queensland. His Honour said:

But I do not think the principle laid down in

Shaw

and similar cases is itself decisive in a case where the prosecution seeks to tender an inconsistent statement in rebuttal of the accused's case. The rationale of the

Shaw

principle is that the prosecution may not split its case. Speaking generally, after the accused has commenced his or her case, the prosecution cannot lead evidence that was admissible in the prosecution case-in-chief. When the prosecution tenders a statement

as an inconsistent statement

, the occasion for the tender only arises after the prosecution has closed its case. In the case of a defence witness, the statement cannot possibly be admissible until that time. In the case of the accused, it may be that the statement could have been tendered during the prosecution case - not as an inconsistent statement, but as an admission. If the prosecution then seeks to tender a statement on the ground of inconsistency when it was admissible as an admission, s 130 empowers the trial judge to reject the tender on the ground of 'unfairness' [60].

152 His Honour went on to say:

Nothing in the history of s 18, or the common law principle on which it is based, affords any ground for holding that the

Shaw

principle applies, or is relevant, to the tender of an inconsistent statement that was not admissible as part of the Crown case. Indeed, history points the other way. After all, it is only in comparatively recent times, as the result of legislative intervention, that an inconsistent statement has been admissible to prove the truth of its contents as well as the inconsistency of the witness's evidence [65].

153 The last statement refers to changes brought about by the Uniform Evidence Act applicable in some jurisdictions and does not reflect the law in Western Australia. In this State a prior inconsistent statement of a witness, other than the accused, can only ever be used in assessing credibility. This reinforces the distinction drawn by McHugh J between evidence admissible in the prosecution case and evidence only admissible as a prior inconsistent statement.

Grounds 2 - The merits

154 Both of grounds 2 and 3 proceed upon an assumption that the evidence of the additional witnesses was rebuttal evidence to which the Shaw principle applied. It is on this basis that it is suggested that special or exceptional circumstances were required to justify a decision to allow the prosecution to call that evidence.

155 It is true that in the course of the proceedings in the District Court both counsel referred to the evidence as being rebuttal evidence. The trial judge also adopted this terminology and assumed that the test of special or exceptional circumstances had to be applied. The distinction between evidence called by the prosecution to prove the truth of a fact in issue and evidence of a prior inconsistent statement that is relevant only to the credibility of a witness was raised, but its significance in regard to whether the Shaw principle applied was not appreciated.

156 At the hearing of the appeal counsel for the appellant accepted that the evidence of the additional witnesses was evidence of prior inconsistent statements of Mrs O'Meara and only admissible in regard to her credibility. It was also accepted that this evidence could not have been called as part of the prosecution's primary case. These concessions were properly made.

157 Whilst the prosecution anticipated the possibility that Mrs O'Meara would be called as a defence witness and that she would give evidence in similar terms to that given at the first trial, evidence relevant only to her credibility could not be called until she had in fact given evidence. It was only after Mrs O'Meara had given evidence that was inconsistent with her prior statements and had denied the making of those statements that a basis for adducing the evidence of the additional witnesses was established.

158 The fact that the additional witnesses could not have been called as part of the prosecution case answers any suggestion that the prosecution case was split. The rule requiring special or exceptional circumstances applies to cases where the prosecution evidence has been split. That is, where the prosecution seeks to call further evidence relevant to the proof of facts necessary to establish the guilt of the accused. This was not such a case.

159 The basis for calling the additional witnesses in this case was not that it was rebuttal evidence in the Shaw sense but rather that it was evidence of prior inconsistent statements admissible pursuant to s 21 of the Evidence Act. The rule requiring special or exceptional circumstances did not apply to such a case.

160 There are several additional reasons why the test of special or exceptional circumstances does not apply to a case like the present. If such circumstances were required before the prosecution could rely upon s 21 in respect of a defence witness, the ability to effectively test the credibility of defence witnesses could be significantly impaired. The interests of justice would not be served by making it more difficult to test the credibility of a defence witness than that of a prosecution witness. Furthermore, there is nothing in the words of s 21 that suggests that any such distinction should be made. Where the preconditions for the admission of a prior inconsistent statement have been established under s 21, that evidence is admissible. There is no basis for incorporating into s 21 an additional requirement for special or exceptional circumstances where the witness in question is a defence witness.

161 In this case, the conditions set out in s 21 were met in the cross-examination of Mrs O'Meara. The evidence was admissible on that basis and special or exceptional circumstances were not required. Although the trial judge mistakenly proceeded on the basis that such a requirement did exist, no possible injustice to the appellant flows from this as the error was favourable to the appellant.

162 The essence of ground 2 is that the trial judge was in error in concluding that there were special or exceptional circumstances justifying the calling of the additional witnesses. For the reasons that I have stated no finding as to the existence of such circumstances was required in this case and accordingly ground 2 cannot succeed.

Ground 3 - The merits

163 On its face ground 3 appears to refer to a residual discretion to exclude rebuttal evidence even where special or exceptional circumstances are found to exist. For the reasons I have referred to in respect of ground 2, that contention proceeds upon the mistaken premise that the rule requiring special or exceptional circumstances applied in this case.

164 At the hearing of the appeal counsel for the appellant referred to the overriding discretion to exclude otherwise admissible evidence to ensure that the trial was a fair one. The suggestion appeared to be that even if special and exceptional circumstances were not required and the evidence was admissible pursuant to s 21 it should still have been excluded. It was submitted that the probative value of the evidence of the additional witnesses was exceeded by its prejudicial effect and that the possibility of prejudicial use by the jury could not be obviated by any direction.

165 Whether a discretion to exclude otherwise admissible evidence exists in a particular case may depend upon the terms of any relevant statutory provision dealing with admissibility. In this case, s 21 uses the word 'may' in saying that where the preconditions are met evidence of a prior inconsistent statement may be given. The use of the word 'may' will often indicate the existence of a discretion. However, in this case it is likely to have been used in an empowering rather than a permissive sense.

166 It is unnecessary to decide whether a residual discretion to exclude existed in this case. That is because even if such a discretion did exist the circumstances here do not suggest that any error in the exercise of it occurred. The trial judge considered whether the evidence should be excluded in the exercise of his discretion and concluded that it should not. In my view, for the following reasons, that was a conclusion that was plainly open in all of the circumstances.

167 The possible prejudice was said to be that the jury might take the evidence of the additional witnesses as being evidence capable of proving that the appellant had owned a thumb drive on which the scanned electoral forms were contained, had lost this thumb drive and that, by inference, that thumb drive was the Kingston thumb drive subsequently found at the school and which contained child pornography. Of course the evidence could not be used in this way and directions in this regard were given. However, counsel for the appellant submitted that the directions were unlikely to have been effective.

168 In considering whether the admission of this evidence made the trial unfair, it is necessary to take into account the following:

(1) that the statements of the additional witnesses were disclosed to the defence prior to the commencement of the trial;

(2) that the decision to call Mrs O'Meara as a witness was made in full knowledge of the inconsistent statements and the availability of witnesses to prove them;

(3) that the evidence of Mrs O'Meara was significant in its support of the appellant's claim that the Kingston thumb drive did not belong to him;

(4) that the credibility of Mrs O'Meara was clearly a matter of importance;

(5) that it could reasonably have been anticipated by the defence that if Mrs O'Meara was called she would be cross-examined in regard to the prior inconsistent statements;

(6) that it could also have been anticipated that if Mrs O'Meara denied making those statements the prosecution would seek to call the additional witnesses;

(7) that the evidence of the additional witnesses was relevant only to the credibility of Mrs O'Meara;

(8) that clear and comprehensive directions regarding the limited use of the additional evidence were given by the trial judge both at the conclusion of the evidence and during the summing up; and

(9) that the defence were permitted to call further evidence with a view to casting doubt upon the credibility and reliability of the additional witnesses (even though this further evidence might have been strictly inadmissible as being collateral).

169 In light of those factors it is difficult to see how any occasion for the exercise of a residual discretion to exclude to ensure that the trial was a fair one could arise. Whilst the evidence of the additional witnesses was relevant only to the credibility of Mrs O'Meara, she was a significant witness. If the jury accepted her evidence in regard to the Kingston thumb drive or could not reasonably exclude that it was possibly true, then it could form the basis for entertaining a reasonable doubt as to whether the appellant was in possession of the child pornography that was the subject of counts 1 and 2 of the indictment.

170 An assessment of Mrs O'Meara's credibility in regard to her evidence about her husband's use of thumb drives and scanning of documents could be significantly influenced by taking into account the possibility that she had previously made statements that were inconsistent with her testimony. If the jury accepted the evidence of the additional witnesses they could conclude that the evidence of Ms O'Meara should be rejected. That points strongly in favour of not excluding the evidence in the exercise of any residual discretion.

171 It must be assumed that in calling Mrs O'Meara a tactical decision was made by defence counsel that the value of her evidence to the defence outweighed any disadvantage that might flow from the prosecution putting her credibility in issue. There was no reason to think that such a consequence could be avoided. The prior inconsistent statements were about a central issue in the case. They went to the witness' credibility on that issue. That is, to use the words of s 21, they were 'relative to the subject matter of the proceedings', not merely relevant to her truthfulness generally or on some unrelated issue: See MJH v The State of Western Australia [71] (Roberts-Smith JA), [127] (McLure JA) and [159] (Buss JA).

172 Even if it is arguable that a discretion to exclude existed and that the circumstances here justified considering whether to exercise it, there is no reason to conclude that it was not properly exercised. His Honour was clearly alive to the possibility of prejudicial use of the material and took that possibility into account. He concluded that the risk was capable of being obviated by appropriate directions. He gave such directions both at the end of the evidence and during his summing up. It has not been suggested that there is any deficiency in those directions. There is no reason to think that they were not complied with, or could not be complied with. In my view, ground 3 cannot succeed.

Ground 1 - The merits

173 This ground asserts that the trial miscarried as a result of Mrs Sullivan's evidence about her reaction on hearing about the evidence given at the first trial. In particular, the inadmissible opinion evidence that she yelled out, 'Liar' when she heard about this evidence.

174 Mrs Sullivan's evidence in this regard arose in re-examination. In cross-examination she had been asked about the circumstances which had led her to giving a statement to the police. The issue was then further explored in re-examination. It is apparent from the transcript that both defence and prosecuting counsel were aware of what Mrs Sullivan's spontaneous reaction had been at the time. They appear to have been careful to avoid her giving evidence of that reaction. Regrettably the trial judge does not seem to have been aware of the risk and it was in response to a question from him that this evidence came out.

175 There is no doubt that Mrs Sullivan's view that the appellant (or perhaps Mrs O'Meara) was a liar was mere opinion and inadmissible. It was clear from the context that the only reason that this evidence was given was to explain Mrs Sullivan's motivation in going to the police. That this was her view would hardly have surprised anyone. However, whether it caused any real prejudice must be very doubtful. The jury could not have doubted that whether or not the appellant was telling the truth was entirely a matter for them.

176 No application was made by defence counsel to discharge the jury having regard to this evidence. Nor were any specific directions sought in respect of it. In the context of the trial as a whole, it is difficult to see that this evidence had any significance. It would have been seen for what it was, a belief that formed the motivation for Mrs Sullivan to go to the police.

177 On the hearing of the appeal counsel for the appellant accepted that this ground of appeal could not succeed standing alone. It was only in the event that grounds 2 or 3 were successful that ground 1 was said to be relevant as providing an additional, but not in itself sufficient, basis for concluding that there had been a miscarriage of justice. Given that, in my view, grounds 2 and 3 cannot succeed, ground 1 must fall away. However, in any event, I am not satisfied that any miscarriage of justice flowed from this evidence having regard to the context in which it occurred.

Conclusion

178 In my view, for the reasons I have given, none of the grounds of appeal can succeed. In their written and oral submissions, the prosecution addressed the available evidence in the event that it was necessary to consider the proviso. It is unnecessary to consider the proviso and, therefore, to summarise the whole of the evidence at trial. It is sufficient to note that the evidence in regards to the scanning of the electoral forms formed only a relatively small part of the prosecution case.

179 I would make the following order:

1. Appeal against conviction dismissed.

O'Meara v The State of Western Australia

[2013] WASCA 228

2 OCTOBER 2013

O'MEARA -v- THE STATE OF WESTERN AUSTRALIA [2013] WASCA 228