Parish v The State of Western Australia
[2008] WASCA 90
•23 APRIL 2008
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: PARISH -v- THE STATE OF WESTERN AUSTRALIA [2008] WASCA 90
CORAM: MARTIN CJ
PULLIN JA
MILLER JA
HEARD: 13 MARCH 2008
DELIVERED : 23 APRIL 2008
FILE NO/S: CACR 83 of 2007
BETWEEN: MARK RAYMOND PARISH
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram :SIMMONDS J
File No :BUN 146 of 2006
Catchwords:
Criminal law - Appeal against conviction - Armed robbery and deprivation of liberty by masked intruder - Circumstantial case against appellant - Whether verdicts of guilty unreasonable or could not be supported having regard to the evidence - Fresh evidence - Whether purported confession in a note would be admissible evidence - Whether significant likelihood of acquittal
Legislation:
Criminal Appeals Act 2004 (WA), s 30(3)
Evidence Act 1906 (WA) s 79(c), s 40(1)
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: Ms R M Parks
Respondent: Mr S Vandongen
Solicitors:
Appellant: Edward John Myers
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
AK v The State of Western Australia [2006] WASCA 245
AK v The State of Western Australia [2008] HCA 8
Amiss v The State of Western Australia [2006] WASCA 171; (2006) 165 A Crim R 387
Azarian v The State of Western Australia [2007] WASCA 249
Beamish v The Queen [2005] WASCA 62
de la Espriella‑Velasco v The Queen [2006] WASCA 31; (2006) 31 WAR 291
Goldsmith v Sandilands [2002] HCA 31; (2002) 76 ALJR 1024
Lawless v The Queen (1979) 142 CLR 659
Libke v The Queen [2007] HCA 30; (2007) 81 ALJR 1309
Martinez v The State of Western Australia [2007] WASCA 143; (2007) 172 A Crim R 389
MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606
Mickelberg v The Queen (1989) 167 CLR 259
Palmer v The Queen (1998) 193 CLR 1
R v Hillier [2007] HCA 13; (2007) 228 CLR 618
MARTIN CJ: I have read the reasons of Pullin JA. I am in agreement with those reasons and have nothing further to add.
PULLIN JA: The appellant appeals against his convictions on two charges which read:
(1)On 15 May 2006 at Binningup [the appellant] stole from Robert Lindsay Taylor with violence cash in the amount of 45,735 the property of Taymmer Pty Ltd; And that [the appellant] was armed with a dangerous weapon, namely a shotgun.
(2)On the same date and at the same place as count (1) [the appellant] unlawfully detained Robert Lindsay Taylor.
The convictions were recorded on 29 June 2007 after a trial in the Supreme Court before Justice Simmonds and a jury, the appellant was convicted of both counts.
On 5 November 2007, Miller JA granted leave to appeal on two grounds of appeal which read:
1.There has been a miscarriage of justice in that, if the following fresh evidence that existed or had been discovered at the time of the trial, a jury acting reasonably would not have returned a verdict of guilty.
PARTICULARS
(a)the evidence of Craig Ronald Gunning explains how he found a plastic bag containing a black balaclava, black gloves, a packet of cable ties, empty shotgun shells, a false numberplate, a handwritten note and a videotape under a house in Binningup in August 2007.
(b)the evidence of Larry Brian Jackson and Helen Sylvia Jackson explain their ownership of the house in which the property was found in August 2007 and their relationship with the appellant.
2.The verdicts of guilty on counts 1 and 2 in the indictment were unsafe and unsatisfactory as upon the whole of the evidence was not open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty.
Ground 1 was accompanied by an application to adduce further evidence. Miller JA made an order referring the application to the Court of Appeal to be heard together with the appeal. The appellant was granted leave to call witnesses for examination and for the respondent to
cross‑examine. Ground 2 contained more than 30 paragraphs or subparagraphs containing a partial summary of the evidence led at the trial and along with comments more properly the subject of submissions.
Evidence led at trial concerning the offences
On 15 May 2006, Mr Taylor the complainant was the director and shareholder in Taymmer Pty Ltd which was the owner of the Binningup General Store. At about 6.10 am on that day, as was his custom, he went to the store and unlocked a rear door leading into the kitchen. After speaking to a milkman who was at the premises, he went into the store and into the office. Shortly after this he heard the rear door open and he looked at the screen of a television security monitor which was located in the office. The camera for the monitor was located in the general store pointing at the alcohol section. On the screen the complainant saw a male in a balaclava carrying a gun. The complainant observed the intruder to pause to put the gun between his knees in order to use his hands to tuck long hair into his jacket or balaclava.
Seeing this as a chance to escape the premises, the complainant bolted. To reach the kitchen door in the outside he had to run through the alcohol section and past the intruder who was still busy tucking in his hair. He did this, reached the outside and was running away but the intruder followed, and yelled something to the complainant which he could not understand. The intruder caught up with the complainant and forced him to walk back into the store with the gun in his back.
The intruder instructed the complainant to get money from the safe. The money referred to in the indictment was then put into a black bag. The complainant said that the safe contained notes of different denominations, including $50 notes, $20 notes and $10 notes. The complainant said he had a 'float' and that contained a bundle of $20 notes, $10 notes and a bundle of $5 notes. He said that there were 10 notes in each bundle of $20, $10 and $5 notes. His evidence was that all the notes in the safe were put into the bag. He said he also put $50 worth of $1 coins and $50 worth of $2 coins into the bag.
The intruder said to the complainant 'Do you know who this is?' The complainant said 'No, I don't know who it is and I don't want to know'. The intruder said to the complainant that he knew where the complainant lived and not to go to the police and to think of his 'three kids and … wife'. The complainant in his statement to the police said that the intruder's 'accent was like a kiwi accent; not a heavy accept [sic accent] but it was distinctive'.
The intruder instructed the complainant to sit in a chair and then tied him up using plastic cable ties to secure one arm to the chair. The intruder asked the complainant if he had seen him on the monitor when he came in. The complainant said he had, the intruder demanded the videotape and the intruder then took a videotape from a VCR unit on top of the desk under the monitor. That was a dummy VCR. The actual VCR unit and the videotape were concealed within a cupboard. The intruder left the store. The complainant cut the cable ties and rang his wife. The police arrived soon after.
At the time the offences were being committed, a Mrs Mell was walking her dog on the beach which was nearby. Mrs Mell's regular practice was to rise immediately after her alarm went off at 6.10 am, dress, walk along her street which was Pioneer Street and ultimately on to the beach via a boat ramp. She would spend 10 minutes on the beach and would regularly arrive back home half an hour later. The beach was about five minutes from the witness' home.
On the morning of 15 May 2006, in accordance with her normal practice, she rose at quarter past six, dressed and then left her house and went to the beach. On the boat ramp she noticed a 'dirty yellow colour four wheel drive older sort of vehicle'. The witness was a little apprehensive because of the way the vehicle was parked hard‑up against a wall and so she made a mental note of the registration on the vehicle which was H305. When she returned from the beach some time before 6.45 am, the vehicle was no longer about.
A little later in the morning she heard that there were police cars at the Binningup General Store and she telephoned a friend who worked at the store and shortly after this a detective came to interview her and she told them the registration number of the vehicle she had seen. The police investigated and found that a beige Toyota Landcruiser with the registration number H305 was registered in the name of Melinda Johnston who was the de facto wife of the appellant.
The police forensic investigation at the Binningup store discovered a boot print inside the store in the area where the intruder had stopped. The police also recovered the cable ties from the scene and the video from the surveillance machine. The video showing the intruder was tendered in evidence.
Late on the afternoon of 15 May, the police executed a search warrant at 11 Wellesley Road, Wellesley which is not far from Binningup and which was where the appellant lived with his de facto wife. When they attended, a beige coloured Toyota Landcruiser H305 was parked at the house. In the rear of the Toyota the police seized cable ties which were the same brand and size as those used in the robbery. The appellant was observed to have long black hair.
During the search of the appellant's home the police seized all the footwear that they considered might have left the boot print at the Binningup General Store. None of the sole patterns on boots seized during the search on 15 May 2006 matched the boot print recovered from the Binningup General Store.
During the search of the house the appellant was asked questions by the police. The appellant denied any involvement in the offences which had been committed. He denied that the Toyota Landcruiser was parked at the boat ramp at 6.15 am that morning. He said that at that time he was driving the vehicle but that he had gone over to a paddock near his house to search for some machinery with the intention of stealing diesel from it. He said he found none and he then returned to his house. He gave slightly inconsistent accounts of how long he was away from the house. At one stage he said that he had left at 5 o'clock and had been away for about an hour and on another occasion he said that he had returned home at 6.30 am.
Other evidence was led at the hearing that, before the robbery, both the appellant and his de facto had very little money available. Each had less than $2 in their bank account. The appellant had pawned a saddle worth hundreds of dollars shortly before 15 May 2006 as security for a loan of $50 and he had borrowed $15 worth of fuel from a Shell service station a day or two before 15 May 2006. He said he borrowed the $50 in order to 'scrape through until payday'. This loan was still outstanding on the day of the robbery. The couple had pressing outstanding accounts for arrears of rent and they were due to pay registration fees on a vehicle and a fine.
In the hours after the robbery on 15 May 2006 and before the police raid, the appellant and his de facto went to Bunbury and paid $500 on account of rent and paid about $300 to cover the registration fee for the vehicle and the fine. The appellant and his de facto also attended at Coles and K‑Mart and on each occasion had tendered a $50 note to purchase goods to about that value.
On 1 June 2006, 15 days after the robbery, the appellant attended at the Bunbury police station. The police happened to observe that he was wearing some John Bull brand boots which were of interest to them. They were seized by the police and they were found to have a tread pattern 'very very similar' to the boot mark found in the general store. The boots were not in the appellant's home on the night the police executed the search warrant on the day of the robbery. The appellant told the police that he had acquired the boots from a friend on 16 May 2006 because the police had seized all of his other boots and that he had no boots to wear. The appellant declined to identify the person who supplied him with the boots. He said he had soaked them in water to make them fit better. Mr McMaster, a podiatrist, gave evidence that the foot impression left in the boots matched the foot impressions taken from the offender. His evidence was that there were no other wear marks of any other wearer on the inner sole (AB 218). It was Mr McMaster who gave evidence that the size and shape of the boot print were 'very very similar' to one of the soles of the John Bull boot seized from the appellant (AB 213). There was no evidence about the effect that soaking boots would have. Mr McMaster had not read any studies on the subject. A police forensic officer gave evidence that the boot print at the store and that the left boot print from the appellant's John Bull boots shared the same class characteristics as to size, shape, style and pattern, although he accepted that it could not be excluded that the boot print could have been made by another pair of boots of the same size and displaying the same class characteristics.
Alibi evidence
At the trial the appellant gave evidence and said that at the time the robbery was being committed, he was at the Wokalup roadhouse which was many kilometres away from the general store. He said that he was there meeting with his de facto wife's brother, Wayne Johnston. He said that he collected $900 from his brother‑in‑law and that this was the money used to pay accounts and purchase goods on 15 May 2006. He said that he had arranged with his brother‑in‑law on the Sunday before the robbery that they should meet at the Wokalup Road house the next morning, on Monday at 6.15 am, so that the appellant could collect $1,000. The appellant said that the $1,000 was to be made up of $400 which was repayment of money previously owed to him by his brother‑in‑law, plus $600 which he was to borrow. The appellant said that when he met his brother‑in‑law at the Wokalup roadhouse, he was handed $900 rather than $1,000.
Wayne Johnston also gave evidence. He said that he had met the appellant at the Wokalup roadhouse at about 6.15 and had handed the appellant $900. He said that he then left the Wokalup roadhouse and went to work. His place of work was about 2 km away and he started work at 7 o'clock.
A summary of the circumstantial evidence against the appellant
The appellant was not identified as the intruder and he made no admissions. He denied that he was the person who committed the offences. However, there was circumstantial evidence against him.
When considering a circumstantial case, all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence, reasonably open on the evidence. The circumstantial case is not to be considered by looking at each piece of circumstantial evidence on its own. One circumstance must not be rejected because, considered alone, no inference of guilt can be drawn from it. See R v Hillier [2007] HCA 13; (2007) 228 CLR 618 [46] and [48] (Gummow, Hayne & Crennan JJ).
The relevant circumstantial evidence was that:
(a)the appellant knew the layout of the store from his past experience as a customer, and that the intruder appeared to know the layout;
(b)the appellant had long hair and so did the intruder;
(c)seventeen days after the robbery the appellant was found in possession of boots, the tread print of which closely matched the tread of the boot print in the store;
(d)a Toyota Landcruiser was observed about 200 metres from the store at the time the robbery took place with the registration number H305. The appellant's de facto wife was registered as the owner of a Toyota Landcruiser registered H305;
(e)the vehicle was observed to have disappeared at a time shortly after the intruder had left the store;
(f)the appellant admitted driving the vehicle on the morning of the robbery at the time of the robbery;
(g)cable ties similar to those used to tie up the complainant were found in the Toyota vehicle when the police seized the vehicle;
(h)neither the appellant nor his de facto wife had more than a few dollars between them on the day before the robbery. The appellant and his de facto wife spent approximately $900 a few hours after the robbery.
A significant issue in the case was whether the jury should accept the evidence of the appellant and Wayne Johnston or the evidence of Mrs Mell. The evidence of the appellant and Wayne Johnston was that when the robbery was taking place, the appellant was at the Wokalup roadhouse in the Toyota, meeting with Johnston and obtaining $900 which then explained why he was able to spend money later that day. Mrs Mell's evidence was that the Toyota was parked near to the Binningup General Store (and not at the roadhouse as the appellant and Mr Johnston contended).
If the jury had accepted the evidence of the appellant and Wayne Johnston, then the jury must have rejected Mrs Mell's evidence and consequently must have acquitted the appellant. However, if the jury rejected the evidence of the appellant and Johnston about the appellant being at the Wokalup roadhouse, accepted Mrs Mell's evidence and taken into account the other circumstantial evidence, then there was a powerful circumstantial case against the appellant. It was then clearly open to the jury to be satisfied beyond a reasonable doubt that the appellant had committed the offences. Once the appellant's and Wayne Johnson's evidence was rejected, there was nothing in the circumstances referred to above which gave rise to any inference consistent with innocence.
These reasons and the jury's observance of the way the two men gave evidence, were matters the jury were entitled to take into account in deciding to reject the evidence of the appellant and Johnston about the meeting at the Wokalup roadhouse. Clearly the jury did reject the evidence of these two men.
Matters which may have affected the appellant's credibility
There were a number of features in the evidence which are likely to have impacted adversely on the appellant's credibility. The more important of these were:
(a)the appellant gave different alibis. When he was interviewed by the police on 15 May 2006, instead of disclosing that he was at the Wokalup roadhouse undertaking a lawful activity, he said that at the time the offence was committed he was on premises near his house with the intention of stealing diesel. He told the police that after this activity he returned to his house. At trial he stated again that he went looking for diesel to steal but he said that this was earlier than 6.15 am. He gave evidence, inconsistently with what he told the police, that he did not then return home but instead he drove to the Wokalup roadhouse and that is where he was at 6.15 am.
He gave evidence at the trial that if his de facto had known that he had borrowed money from her brother 'she would have went mental at me' [AB 321]. He said that was 'a little bit to do with' why he did not tell the police about his Wokalup alibi [342]. He also said that another reason he did not tell the police about the Wokalup alibi was that he did not want his brother‑in‑law involved [345].
The members of the jury were entitled to reject these explanations. They would have been entitled to conclude that it was highly unlikely that a person would risk conviction for armed robbery rather than have his de facto wife go 'mental' at him. The claim that he did not want his brother‑in‑law involved was belied by the fact that he then called him as a witness at the trial.
(b)the members of the jury were entitled to conclude that the boots he was wearing 17 days after the robbery, had been concealed by him somewhere away from his house on 15 May 2007;
(c)the jury would have been entitled to conclude on all the evidence that the appellant was the only person to have worn the boots and that he lied when he said he had borrowed them from an undisclosed person;
(d)the jury would have been entitled to take into account some discrepancies between the appellant's evidence and Wayne Johnston's evidence about when it was that the appellant had borrowed $400 from Johnston. The appellant said that he had borrowed the money on Father's Day 'a couple of years ago'. He said that they went to visit the maritime museum and after that there was a hot rod show at a church not far away. He said there was a swap meet for parts and that Wayne Johnston needed money so he loaned $400 to him [307 ‑ 308].
Wayne Johnston on the other hand gave evidence [358 ‑ 359] that they had gone to the maritime museum on a Father's Day and that on that weekend they were staying at a motel. He said that he was a bit short that weekend and that the appellant lent him the money. He said 'Actually, I think he paid for the motel and I reimbursed him for that and things like that'. As to the $500 that the appellant said he had borrowed on the morning of 15 May, the appellant said that he had not repaid it to Wayne Johnston [348]. Wayne Johnston however, said that he was at the time of the trial owed 'I think about $250 bucks now, I think'.
These might not be substantial differences, but if the jury had a suspicion that the appellant and Mr Johnston had contrived to create a false alibi, they would be entitled to consider that details outside the actual meeting may not have been the subject of agreement and may have indicated that they were not telling the truth about the meeting on 15 May.
Verdicts which are unreasonable or can not be supported having regard to evidence
Section 30(3) of the Criminal Appeals Act 2004 (WA) provides that the Court of Appeal must allow an appeal if, in its opinion, the verdict of guilty on which the conviction is based, should be set aside because, having regard to the evidence, it is unreasonable or cannot be supported. When considering this ground, it is for this court to decide for itself whether it has a reasonable doubt. The task of this court is not to decide what a reasonable jury or the jury in the particular case would, or should have decided. If this court experiences a reasonable doubt, then the jury should in most cases also have experienced such doubt. However, if the court is of the opinion that it was reasonably open to be satisfied beyond reasonable doubt as to the guilt of the appellant, then the appeal must be dismissed: MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606 [61] (McHugh, Gummow & Kirby JJ). It is not sufficient for an appellant to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilty beyond reasonable doubt. It is necessary to show that there must be a reasonable doubt: Libke v The Queen [2007] HCA 30; (2007) 81 ALJR 1309.
When considering an appeal under this section, the appeal court is obliged to review the whole of the record of the trial and to make its own independent assessment of the evidence. However in doing so it must make due allowance for the natural limitations that exist in the case of an appellate court proceeding on the record. These natural limitations include the fact that the appellant court does not typically get taken to or read all of the evidence received at the trial and that the jury has had the benefit of having seen and heard the witnesses. A summary of relevant authorities are set out in AK v The State of Western Australia [2006] WASCA 245 and in Azarian v The State of Western Australia [2007] WASCA 249 [52]. See also AK v The State of Western Australia [2008] HCA 8 [24] ‑ [26], [42], [82], [93] ‑ [94], [106].
Ground of appeal 2 - whether the verdicts were unreasonable or could not be supported having regard to the evidence
In relation to this ground, the appellant points out as already noted, that there was no direct evidence that the appellant was the offender. The appellant then referred to some aspects of the circumstantial evidence. The tendency in the appellant's oral and written submissions was to submit that each item of circumstantial evidence did not support a verdict of guilty. That is the wrong approach. If the evidence in question is circumstantial evidence, then it is the combined effect of all of the evidence which must be considered: R v Hillier [2007] HCA 13; (2007) 228 CLR 618.
First, in relation to the boots, the appellant submits that the police forensic expert 'could not say' whether the boots worn by the appellant, had left the boot prints at the Binningup General Store on 15 May 2006 and that the podiatrist similarly could not give this evidence. It is true that the police forensic witness could not say that the boot was definitely the boot which left the print but he could say that the boot print and the appellant's boot had the same class characteristics and were the same size. Mr McMaster, the podiatrist gave evidence that the wear marks in the boots corresponded with plaster casts taken of the appellant's feet and that there were no other wear marks on the inner sole suggesting any other person had worn the boots [AB 218]. The evidence about the similarity of the boot prints was therefore important circumstantial evidence to be taken into account by the jury.
The appellant next says that the fact the intruder appeared to know the layout of the general store and the fact that the appellant had been a regular customer of the Binningup General Store was of little value because the layout of the store was clearly known to many other people as well. There is no doubt that if that had been the only circumstantial evidence, then it would not have sustained an inference of guilt. Once again, this circumstantial evidence must be considered in conjunction with all of the other circumstantial evidence.
The appellant next points to the characteristics of the appellant. The appellant concedes that the intruder appeared to have long hair and that the appellant himself had long hair on the day when the offences were committed. This was relevant circumstantial evidence.
However, the appellant points to the fact that the complainant testified that the offender was about 5 feet 10 inches, which is 177 cm. The appellant points to a photo board taken by the police on 15 May 2006 showing the height of the appellant as being 170 cm, this being just over 5 feet 6 inches in height. The jury were entitled to consider that the measurement of the appellant in the police station was likely to have been an exercise carried out with precision using a measuring tape or rule, whereas the complainant was testifying about an impression he gained in a moment of stress.
The appellant points to the complainant's evidence about the way the appellant spoke. The appellant says that the evidence was that the intruder spoke a foreign language and that he could not. In fact, the complainant in effect said that he could not understand what was yelled at him when he was running away. This led him to 'assume it was foreign'. The reference to a 'Kiwi accent' was an attempt made by the complainant to describe how the offender spoke. He said that it was an accent, 'not a heavy accent' and that he described it as a Kiwi accent because it was 'some sort of accent different to how I speak'. The jury heard this evidence and heard the appellant give evidence and were entitled to weigh up the significance of what the complainant said.
The appellant also submits that the security video showed the offender wearing a bulky long‑sleeved parka‑type jacket and that no jacket seized by the police at the appellant's property was presented in evidence. The appellant submits that it was significant that no balaclava, gun or black bag were found by the police when they searched the appellant's property. That is not significant. It would not be unusual for an offender to try and conceal evidence relating to a robbery. In fact the jury would have been entitled to conclude that evidence was concealed. The evidence about the boots would support such a conclusion. The fact that the items were not found in the police search on 15 May 2006 does not lead to a conclusion that the jury must have experienced reasonable doubt about the appellant's guilt.
The appellant next points to the fact that Mrs Mell, who observed the vehicle on the boat ramp at the beach, did not say that it had a bull bar or damage to the left rear panel, left rear tail‑light and left rear passenger panel of the vehicle. The evidence about the damage to the vehicle and the fact this was not noticed by Mrs Mell was not evidence which compelled the jury to experience a reasonable doubt about the guilt of the appellant.
The appellant testified that the vehicle had a chronic oil leak and that there was no evidence of any oil stain being observed at the Binningup boat ramp on 15 May 2006 but the appellant did not submit that there was any evidence that someone looked for an oil stain.
The appellant submits that the cable ties are similar to cable ties which may be purchased at stores. In closing submissions to the jury, the State prosecutor conceded that the serial numbers on the cable ties appeared to have less significance than had been thought by the prosecution at the beginning of the trial. The fact is however, that location of cable ties in the appellant's vehicle which were similar to those used in the robbery was circumstantial evidence that the jury was entitled to take into account.
Finally, the appellant refers to the money which was spent by the appellant on the day of the robbery. The appellant submits that there was no evidence by the complainant of $50 notes making up the money that was stolen and yet $50 notes were used to make purchases at Coles and K‑Mart on the day of the robbery. In fact that is not entirely correct. The complainant did say that he gave all the float money to the intruder and that that consisted of notes other than $50 notes. However, he gave evidence that there were some $50 notes in the safe and the evidence suggests that all notes in the safe were given to the intruder.
Conclusion on ground 2
Having considered all of the evidence, it is clear that it was open to the jury to convict the appellant. The combined circumstantial evidence created a powerful case against the appellant on both charges. It was reasonably open to the jury to reject the alibi evidence and to be satisfied beyond reasonable doubt as to the guilt of the appellant. There is nothing in the points raised by the appellant which should lead this court to experience any reasonable doubt about the guilt of the offender on the evidence which was led at trial. As a result, ground 2 must be dismissed.
Ground 1 - additional evidence
Section 40(1)(a) to (e) of the Criminal Appeals Act 2004 authorises the appeal court to admit other evidence for the purposes of dealing with an appeal. The principles governing the receipt of other evidence on appeal has been discussed in other cases. See de la Espriella‑Velasco v The Queen [2006] WASCA 31; (2006) 31 WAR 291 [150] ‑ [154]; Martinez v The State of Western Australia [2007] WASCA 143; (2007) 172 A Crim R 389 [221]. This court may set aside a conviction if the other evidence admitted is either 'fresh' evidence or 'new' evidence, if the absence of that 'fresh' or 'new' evidence reveals a miscarriage of justice: Beamish v The Queen [2005] WASCA 62 [10].
There is a distinction between 'fresh' and 'new' evidence. 'New' evidence is evidence which was available at the trial or which could, with reasonable diligence, have been discovered (Beamish [9]). 'Fresh' evidence is evidence which either did not exist at the time of trial or which could not then with reasonable diligence have been discovered (Beamish [9]). The distinction is one which is soundly based in principle and continues to be recognised. In the case of 'fresh' evidence, the test to be applied in determining whether there has been a miscarriage of justice is whether the appellant has established that there is a 'significant possibility' that in the light of all of the admissible evidence, including that given at the trial, a jury acting reasonably, would have acquitted the appellant. See Beamish [11] and [14].
In determining whether there is such a 'significant possibility', the court must be satisfied that the fresh evidence has cogency and plausibility or credibility: Lawless v The Queen (1979) 142 CLR 659. The fresh evidence has to be cogent and credible in the sense that a reasonable jury could accept it as true, but it is not necessary that the court thinks it likely that a reasonable jury would believe it: Mickelberg v The Queen (1989) 167 CLR 259, 302 (Toohey & Gaudron JJ); Amiss v The State of Western Australia [2006] WASCA 171; (2006) 165 A Crim R 387 [13] and Beamish [390].
Not only must the evidence be cogent and plausible, but the ordinary principles of evidence as to relevance and admissibility of evidence must be applied in the consideration of the fresh material: Beamish [147].
The parties were agreed that the other evidence admitted under s 40 and referred to below was 'fresh' evidence. Questions about admissibility, relevance, cogency and credibility and whether the evidence establishes that there is a significant possibility of acquittal are dealt with below.
The 'fresh' evidence
The 'fresh' evidence was identified in an affidavit admitted by consent. It was sworn by Nicholas Robert Cogin, who was the respondent's file manager for the appellant's appeal. His affidavit reveals that on 26 November 2007 he received witness statements signed by:
(a)Craig Ronald Gunning dated 10 August 2007;
(b)Helen Sylvia Jackson dated 14 August 2007;
(c)Larry Brian Jackson dated 14 August 2007; and
(d)Robert Lindsay Taylor (the complainant) dated 17 August 2007.
Mr Cogin also deposed that on 26 November 2007 he received from police an email copy of a preliminary forensic report from Scott Egan, dated 10 September 2007. The affidavit also exhibited photographs of the objects referred to below.
The Gunning statement
Mr Gunning, in his statement, said that he was 54 years old and lived by himself at 20 Pioneer Street, Binningup. (In Mr Taylor's statement he said that this house was at the end of laneway behind the Binningup General Store about 40 metres from the store). Mr Gunning said that he moved into this house on Good Friday 2007, which was 9 April 2007.
On Thursday 9 August 2007, he was doing some work on the house and looked under the house and saw a green bag. He said it was clearly visible and not hidden in any way. He pulled the bag out from under the house. He did not have to crawl under. He simply had to reach his arm in to retrieve it. The green bag was taken into the house where he examined the contents. Inside was found a black balaclava, black gloves, a pair of cable ties, some empty shotgun shells, a handwritten note, a videotape and a cardboard and tape folded board painted yellow and with the appearance of a numberplate with the letter and numbers H305. He put these items back in the bag and took it to Helen Jackson's house. Helen Jackson was the owner of the property at 20 Pioneer Street, Binningup.
Mr Gunning also said that in May 2007, he did work under and around the house and the bag was not there in May 2007. He knew this because he had carried out work right next to the place where in August he found the bag.
The statement of Helen Jackson
Helen Jackson said that she was 52 years old and lived in Binningup with her husband Larry Jackson. She said that she and her husband had lived at 20 Pioneer Street until they moved out in October 2006, when they shifted to their address in Yeoman Place, Binningup. She and her husband kept ownership of the house at Pioneer Street and it was vacant until Mr Gunning moved in at Easter 2007. She said that Craig Gunning was a friend and she agreed that he could live in the house rent free on condition that he did the place up.
Ms Jackson's statement said that on 9 August 2007, Craig Gunning came to her house with the green bag and she showed him the contents. She read the note in the bag but she said she did not know the person named 'Mato' who had supposedly written it. She did not recognise the handwriting. She did not know who 'Kilie' and 'John' were (they being names mentioned in the letter). Ms Jackson said that she had known Mark Parish since 1997. Ms Jackson and her husband then went to Mr Taylor's house that evening and left the bag with the complainant.
Mr Jackson's statement
Mr Jackson's statement merely confirms seeing the bag and contents and accompanying his wife to Mr Taylor's house when the bag and contents were given to Mr Taylor.
Mr Taylor's statement
Mr Taylor, the complainant, said in his statement that he received the green bag and contents from Ms Jackson on 9 August 2007. As to the videotape which was inside the bag, Mr Taylor noticed that the tape had been pulled out from the cassette. His statement then reads:
20.I am confident that this tape was not the dummy tape that I handed the person who held up the store last year.
21.There were no markings on the back of the cassette tape. I only kept about 3 tapes which I used in the security system. All my tapes have some manufacturing markings on the actual cassette.
22.On the back they are all marked in the top left corner with details showing the length of the tape. We only use 240 minute tapes.
23.The tape inside the green bag had no such markings.
24.The dummy tape that I gave the offender had been one that had been previously used in the machine and would have had similar markings on the tape.
Relevance and admissibility of the 'fresh' evidence
It is very tempting to conclude that the bag and its contents are relevant simply because in the robbery the intruder wore a balaclava and gloves, that he carried a shotgun, that he used cable ties, that a video cassette was taken and that the intruder arrived in a four wheel drive with a numberplate H305. A description of the items in the bag might suggest that the items have in some undefined way, something to do with the offence. However, it is important to bear in mind that nothing has been given by way of 'fresh' evidence, suggesting that the balaclava and the gloves were those used in the robbery or even bore some similarity to those used in the robbery. There is no evidence that the shotgun cartridges were cartridges which might have fitted in the shotgun used by the intruder, and of course there is no evidence that the shotgun was discharged at all. The cable ties have not been said in the 'fresh' evidence to be similar to the cable ties used in the robbery, but even if, by measurement or appearance, they were, they were items which could readily be purchased at retail outlets. The evidence is that the video cassette was not the video cassette not taken from the premises.
What then, could be the relevance of these items? The word 'relevance' means that any two facts to which the word is applied, are so related to each other that according to the common course of events, one either taken by itself or in conjunction with other facts, proves or renders probable the past, present or future existence or non-existence of the other: Goldsmith v Sandilands [2002] HCA 31; (2002) 76 ALJR 1024; Palmer v The Queen (1998) 193 CLR 1, 55.
The question therefore is, whether the fact of the existence of the bag and the fact that the bag was found well over a year after the commission of the offence, are relevant to some other fact or facts and, if so, what fact or facts. This was never explored by counsel. It is therefore necessary to consider each item separately and then to consider the significance of all of the items together.
The false numberplate
The folded cardboard and tape numberplate did not have the appearance of metal and being folded does not in its present shape look convincingly like a metal or plastic car numberplate, but whether it might appear convincing in an unfolded state and in poor light is perhaps a matter on which opinions may differ, but only if further evidence were given by Mrs Mell.
There is no doubt that if a false numberplate had been found soon after the robbery, and in the vicinity of where the vehicle had been seen by Mrs Mell parked at the beach it could, depending on the precise evidence, give rise to an inference that it had been placed on the vehicle covering up a genuine numberplate consisting of other letters and numbers. It may then have been relevant evidence because such circumstances might have been capable of rendering probable the fact that the numberplate observed by Mrs Mell was a false numberplate or it might have caused Mrs Mell to be doubtful about what she observed.
There can be no doubting the importance of Mrs Mell's evidence. Mrs Mell's evidence that she saw a Landcruiser with the numberplate H305 close by the scene of the crime, and assuming it was a genuine numberplate, was powerful circumstantial evidence which in conjunction with other evidence, could have, and undoubtedly did, lead the jury to reach a conclusion beyond reasonable doubt that the appellant was the offender. If Mrs Mell became doubtful as a result of being shown a false numberplate, then there still remained a circumstantial case but it was a very much weaker case and the fresh evidence would have given rise to a significant possibility that a jury acting reasonably would have acquitted the appellant.
However, the false numberplate was not found soon after the robbery in the vicinity of where the vehicle was parked. The time, the location of the false numberplate and the circumstances in which it was found were of critical importance to the question of relevance. This can be illustrated by an example. Assume that the cardboard numberplate H305 had been found under a house in London five years after the offence with no evidence that anyone from Western Australia had ever lived or been to the London address. The finding of the false numberplate would not be so related to the circumstances of this case as to render it relevant. Such evidence without more would not be relevant.
In this case the green bag and its contents were not seen until more than 14 months after the offences had been committed. It must be acknowledged that the mere length of time between the commission of the offence and the finding of the numberplate would not necessarily mean that the numberplate was not relevant. If, for example, the green bag containing the cardboard numberplate had been found with cobwebs over it and if Mr Gunning was not able to say that it had not been under the house in May 2007, it may have been possible to infer that the bag had been there for a long time, and possibly there since soon after the commission of the offence. Even then questions of relevance would remain. However, in this case the bag was not discovered in circumstances which could lead to any inference that it was placed there soon after the offence was committed. On the contrary, the uncontroverted evidence is that it was not under the house where it was found at 20 Pioneer Street, a year or more after the offence was committed. What can be inferred is that the bag was placed there by a person unknown, sometime between May 2007 and August 2007.
There is nothing on the evidence to allow a conclusion to be drawn that the false numberplate was in existence on 15 May 2006. If such a conclusion was reached, then this could only be by speculating that it may have been in existence on 15 May 2007. To then give it any relevance it would be necessary to speculate that it was used on the vehicle seen by Mrs Mell. Such speculation would be impermissible.
The result is that the finding of the numberplate in May 2007 is not relevant. The relevance of the false numberplate in conjunction with the other material will be considered after considering each of the objects individually.
The balaclava
There is no evidence that the balaclava which was found in the green bag by Mr Gunning bore any resemblance to the balaclava used by the intruder on 15 May 2006.
The gloves
The complainant did not give evidence that the intruder wore gloves, but the surveillance videotape appears to show that the intruder was wearing gloves. There is no evidence about the similarity between the gloves in the green bag and the gloves worn by the intruder.
The shotgun cartridges
The evidence is that a shotgun was carried by the intruder. The shotgun was not discharged and of course there is no evidence that the empty cartridges in the bag were related in any way to the shotgun carried by the intruder on 15 May 2006.
The cable ties
The cable ties may have borne a resemblance to the cable ties used to tie up the complainant but there is no fresh evidence that this was so. However, assuming that the cable ties were the same size and type, the evidence was that they were items which could readily be purchased at retail outlets.
The video cassette
The videotape is particularly important. Mr Taylor's evidence is to the effect that this was not the video cassette that was taken from his premises.
The handwritten note signed by 'Mato' -relevance and admissibility
If the writing in the note could be led as evidence of an admission by a person called Mato that he committed the robbery, then it would be highly relevant. It would go to disprove that the appellant was the offender. However the question of admissibility must be addressed.
The note read:
Helen
Cant wate for you any moor we have got thinks to take an do if you come to town latter will be at Kilie and Johns they can get sheets of oxys so T and MC are getting fucked up if you wont sum let me no ASAP cos I will cover it till you come in/the dollars we owned you is all their as promessed I put it wear you told me/fuck I'm stil fully pumped over doin it/everythink went good but only just cos that cunt run on me looked like he was comin over hear for help an sum chick nearly saw me at the car/fill you in on everthink when I see you
Mato xx
PSS Can you do me a favour and stash that/bag in the laundry till later cos I/dont want that shit in my car/driving out of town
The note contained inadmissible hearsay evidence just as in Beamish, signed confessions by Eric Edgar Cooke of other motiveless assaults on victims contained inadmissible hearsay. However, the contents of the note would be admissible under s 79C of the Evidence Act if it were possible to conclude that the note was written by a person called 'Mato' to someone called 'Helen' soon after the offence had been committed, that the note should be read as an admission by 'Mato' that he committed the offences and if 'Mato' gave evidence or his presence was not required as a result of proof of one of the conditions in s 79C(2).
It was clear in Beamish that the Cooke confessions were made by a person known to exist. In the appeal at hand, however, 'Mato' has not been shown to exist.
Moreover, in Beamish, Cooke was a 'qualified person' within the meaning of s 79C(1) because he was a person who had at the time of making the confession, or may reasonably have been supposed to have at that time, personal knowledge of the matters dealt with in the confessions. See Beamish [176]. In contrast, in the current appeal, it has not been shown that 'Mato' - even assuming he exists - is such a person with personal knowledge of the matters to which the note suggests he was confessing. The note refers to an event in which a male person 'run on me' and 'sum chick nearly saw me at the car'. However, beyond these vague similarities to the facts of the offence of which the appellant was convicted, there is nothing to indicate that the author of the note had personal knowledge of the matters to which the note suggest he is confessing to.
Beamish bore the onus of showing on the balance of probabilities that Cooke had personal knowledge of the matters to which he confessed: Beamish [177]. The appellant has made no effort to discharge that onus. Section 79C could not therefore be relied on and the statements made in the note are not admissible as evidence of the facts asserted. As a result, the apparent confession by 'Mato' is not admissible evidence and it can not therefore be relied on as evidence giving rise to a significant possibility that a jury might acquit.
The piece of paper as an object would have been relevant if relevant DNA was found on it, but that was not so. The note as an object therefore has no relevant probative value.
The preliminary report of Mr Egan
The preliminary report from Scott Egan, a forensic scientist, stated that the DNA profile recovered from the inside and outside surfaces of the balaclava matched Mr Gunning's DNA profile. The glove had a partial mix DNA profile, but due to the low levels of DNA recovered, comparisons of contributors was not possible. A complex mix DNA profile from at least three people was recovered from the outside surface of the glove. Due to the complexity of this DNA profile, reliable conclusions could not be made as to any possible contributor. On the other glove, DNA was not recovered from the outside surface of the glove and DNA results were not available from the inside surface of the glove. As to the bag, a partial mix DNA profile was recovered from the outside surface of the bag. Due to the low levels of DNA recovered, comparisons to any possible contributors was not possible. DNA was not recovered from the inside surface of the bag. Mr Gunning's DNA is consistent with the evidence that he handled the objects when he discovered them. The DNA evidence is therefore neutral.
Other evidence
Other evidence was provided in the form of a statement from the bar table by agreement of counsel. This was that the appellant was at liberty on bail until he was convicted after trial on 9 June 2007. Upon conviction, he was taken into and remained in custody.
Thus, the relevant chronology in relation to these events was that the offences were committed in May 2006, Mr Gunning moved into 20 Pioneer Street in April 2007, Mr Gunning carried out work on the house at the location where the bag was later found and was able to say that the bag was not there in May 2007. The appellant was at liberty on bail until 9 June 2007. In August 2007 the green bag was found.
The clear inference from all the evidence is that sometime between May 2007 and August 2007 the green bag was placed under the house at 20 Pioneer Street by a person with an interest in suggesting that someone other than the appellant was guilty of the offences.
Relevance - the existence of all the items
The question remains as to whether the items considered together are relevant. Just because the intruder was armed with a shotgun, wore a balaclava and gloves, took a video cassette and was in a vehicle with a registration number H305 and just because items which fit that general description (or in the case of the cartridges were items related to an item of that general description) were found, does not mean that the items in the bag were relevant.
Something more would have been required to make them relevant. To start with, there would have had to be evidence from Mr Taylor that the items were similar to those used in the robbery. He did not give that evidence and in fact he said that the video cassette was not the one taken from the store. Even if he had said that some of them were similar, the fact that similar items were found does not make them relevant. No attempt was made by the appellant to lead evidence from Mrs Mell to show that having seen the cardboard numberplate, she was as a result uncertain that she saw a metal numberplate or a cardboard replica in May 2006. The fact that items of a generic similarity to items used in the robbery were found more than 14 months after the offence does not render it more or less probable that the appellant was not the offender and that some other person was. The result is that the items are not relevant and the content of the note is inadmissible.
Significant possibility of acquittal
The final question is whether the 'fresh' evidence could give rise to a significant possibility that the jury would acquit. In view of the
conclusions reached above, it is not strictly necessary to deal with this question but it will be dealt with provisionally.
The powerful circumstantial case against the appellant remains. It is not necessary to repeat all that has been said above on that subject. The 'fresh' evidence about the false numberplate could only give rise to a significant possibility of acquittal if Mrs Mell had expressed uncertainty about her evidence that she saw a numberplate (implicitly a genuine numberplate) on the vehicle at the beach. The appellant did not call Mrs Mell to adduce further evidence that having seen the cardboard numberplate, she now had some doubt that she saw a genuine numberplate on 15 May 2006. This may have been a forensic decision made by the appellant out of a concern that if Mrs Mell was shown the cardboard numberplate that she would say she was certain that the numberplate she saw at a distance of about one metre on 15 May 2006 was not the cardboard replica. However, all that it is necessary to say is that Mrs Mell's evidence has not been diminished in any way by the fresh evidence concerning the finding of the false numberplate more than a year after the offence. Once the content of the note is excluded, all of the other material is entirely neutral. It does not tend to prove or disprove that the appellant committed the offence (which is really a restatement of the conclusion about relevance) and it does not give rise to a significant possibility of acquittal.
As a result, ground 1 too must be dismissed, and the appeal dismissed.
MILLER JA: I agree with Pullin JA.
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