Pileggi v The Queen
[2001] WASCA 260
•29 AUGUST 2001
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : COURT OF CRIMINAL APPEAL
CITATION: PILEGGI -v- THE QUEEN [2001] WASCA 260
CORAM: MALCOLM CJ
WALLWORK J
PARKER J
HEARD: 5 & 6 APRIL 2001
DELIVERED : 29 AUGUST 2001
FILE NO/S: CCA 165 of 2000
BETWEEN: ANTONIO NIKI PILEGGI
Appellant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law - Appeal by reference from Attorney General of petition for mercy - Recantation by accomplice of evidence at trial - Whether justice had miscarried - Whether significant possibility of acquittal in light of recantation
Legislation:
Sentencing Act 1995 (WA) s 140(1)(a)
Result:
Appeal dismissed
Category: A
Representation:
Counsel:
Appellant: Mr M J McCusker QC & Ms K J Bennett
Respondent: Mr K P Bates
Solicitors:
Appellant: Mony De Kerloy
Respondent: State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Craig v The King (1933) 49 CLR 429
Davies & Cody v The King (1937) 57 CLR 170
Gallagher v The Queen (1986) 160 CLR 392
K v The Queen [1984] 1 NZLR 264
M v The Queen (1994) 181 CLR 487
Mickelberg v The Queen (1989) 167 CLR 259
Pileggi v The Queen, unreported; CCA SCt of WA; Library No 980272; 20 May 1998
R v Bryer (1994) 75 A Crim R 456
R v Flower & Siggins [1966] 1 QB 146
R v Gale [1970] VR 669
R v Geesing (1985) 38 SASR 226
Ratten v The Queen (1974) 131 CLR 510
Case(s) also cited:
R v Bond (1992) 62 A Crim R 383
Chamberlain v The Queen [No 2] (1984) 153 CLR 521
Illic v The Queen [2000] WASCA 411
Middleton v The Queen [2000] WASCA 200
R v Poluter (1978) 19 SASR 370
Whitehorn v The Queen (1983) 152 CLR 657
MALCOLM CJ: This appeal comes before the Court by way of a reference to the Court of Criminal Appeal by the former Attorney General, the Hon Peter Foss QC MLC, pursuant to s 140(1)(a) of the Sentencing Act 1995 (WA). The reference is dated 19 July 2000 and is accompanied by proposed grounds of appeal which were incorporated in a notice of appeal dated 20 March 2001 and filed at the Court.
The appellant was convicted in the District Court on 4 November 1997 on two counts, both of which alleged offences under s 409(1) of the Criminal Code, namely that:
"(1)On or about 10 October 1989 at Perth ANTONIO NIKI PILEGGI by falsely pretending to an employee of RAC INSURANCE PTY LTD a Chrysler Valiant sedan motor vehicle registered number XHE 111 had been stolen obtained from RAC INSURANCE PTY LTD the sum of $1,250 in money with intent thereby to defraud.
(2)AND FURTHER THAT on or about 10 May 1990 at Perth ANTONIO NIKI PILEGGI by falsely pretending to an employee of WESTERN UNDERWRITERS INSURANCE LTD that a Holden Gemini sedan motor vehicle registered number 6MZ 581 had been stolen and damaged by fire, induced WESTERN UNDERWRITERS INSURANCE LTD to deliver to KAREN ANNE WESTCOTT and another the sum of $6,200 in money, with intent thereby then to defraud."
The grounds of appeal which accompanied the reference were as follows:
"Count 2
1.Evidence was given for the Prosecution at the trial of this charge by one Linton, who said that in May 1990 the Appellant had asked him to drive away and burn Westcott's car and that he did so, for a consideration of $200. In an earlier statement to the Police he had said he thought it was both Westcott and the Appellant who had asked him to burn the car; but he had never told the Police he couldn't recall which of the two it was. He said that he was given the key to the car for the Appellant, but admitted that in an earlier statement to the Police he had said that Westcott gave him the key.
2.Westcott also gave evidence for the Prosecution, to the effect that the Appellant had told her that he would arrange to have her car burnt for $200, after she had told him she was having trouble with it; that the Appellant told her later that Linton had taken and burnt her car and that she had not discussed it with Linton or known that he was going to do it. She had later made a claim on her insurer, which had paid on the claim, and she had given the Appellant $200 for arranging to burn the car. She had only one set of keys, had not given them to Linton, and could not recall giving anyone a key.
3.The Appellant gave evidence. He denied discussing the burning of Westcott's car with her or Linton, and denied that he had anything to do with it.
4.New evidence is now available from Westcott, admitting that the evidence, which she gave at the Appellant's trial was false; that she alone procured Linton to burn her car, for which she paid $200; that she had never discussed the burning of her car with the Appellant; that the Appellant had never said he would arrange to have her car burnt; and that she gave false evidence against the Appellant as a result of threats and promises made by police officers, which made her fearful that if she did not give the false evidence against the Appellant she would go to jail and lose her infant daughter, and be required to repay the insurer money she had received after her car was burnt.
Count 1
5.The Appellant was tried on Counts 1 and 2 together. Linton gave evidence for the Prosecution on Count 1, that in October 1989 the Appellant had procured him to burn the Appellant's car, for $200. The Appellant later claimed and was paid on his insurance. The Appellant denied Linton's evidence. He said his car had been stolen and burnt, that he had nothing to do with it, and that he had not known who did it. He said that he had had several 'run‑ins' with Linton at that time and that might be the reason for Linton burning his car, and giving false evidence against him.
6.As the trial Judge directed the jury, credibility was in issue on both charges. The new evidence of Westcott, although it directly relates only to Count 2, raises serious doubts as to the credibility of Linton's evidence, as it directly contradicts his evidence, on Count 2, that the Appellant had procured him to burn Westcott's car, as the new evidence of Westcott is that she alone procured Linton to burn her car, and that the Appellant was not involved at all.
7.Further, it was put to the jury by the Prosecution (as the trial Judge reminded the jury) that although both Linton and Westcott were, by their own admission, accomplices of the Appellant (in respect of Count 2) and Linton was (on his admission) the Appellant's accomplice in respect of Count 1, the jury could act on their evidence with 'some confidence', because of the fact that there were two similar offences within a few months of each other, and the unlikelihood that both Linton and Westcott would be giving false evidence. The new evidence of Westcott, admitting that she did give false evidence, means that the jury could no longer consider the 'accomplice evidence' of Linton as evidence that they could accept 'with confidence' because of the unlikelihood that both he and Westcott would be giving false evidence (if that was ever a valid proposition). To the contrary, the new evidence of Westcott now means that, in respect of Count 1, the Prosecution's case depends on the evidence of an accomplice, Linton, whose evidence is uncorroborated and whose credibility is put in grave doubt, it being in conflict with the new evidence of Westcott.
Summary
8.The new evidence of Westcott is both cogent and credible. Had it been before the jury, it must have acquitted the Appellant on both counts. Alternatively, there is a significant possibility that a jury, acting reasonably, would acquit.
9.Further, and in any event, the new evidence of Westcott establishes that the Appellant did not have a fair trial.
10.In the circumstances, both convictions should be quashed, and no new trial ordered."
The appellant had previously appealed against his conviction in respect of the two offences on the ground that the learned trial Judge had erred in declining to order separate trials. That appeal was dismissed by a unanimous decision of this Court (Malcolm CJ, Franklyn and Ipp JJ) in Pileggi v The Queen, unreported; CCA SCt of WA; Library No 980272; 20 May 1998.
The main Crown witness at the trial was one Richard Linton, a regular patron of the Stockman Hotel in Midland. The appellant was then one of the owners of the hotel. Mr Linton gave evidence that he had been involved in the commission of the two offences alleged against the appellant. Mr Linton had himself pleaded guilty to two counts of false pretences in respect of his participation and had been fined $750 in respect of each of them. His evidence was that he had been allowed to buy drinks and obtain accommodation at the Stockman Hotel on credit. The amount which he owed was recorded in a document described variously in the evidence as a "bar bill" or "book" or "tab". From time to time he had been given credit of amounts up to $2,000. At the relevant time Mr Linton was in debt to the hotel.
Mr Linton's evidence in relation to the first count on the indictment was that the appellant had asked him to burn a Chrysler vehicle that the appellant owned. He said that the appellant had promised him that, if he did what he had been asked, his debt to the hotel would be reduced by $200. Linton agreed to this proposal. Later, the appellant gave him the keys to the vehicle. He took it from where it was parked at the back of the Stockman Hotel and drove it 2 or 3 kms away. He inserted a screwdriver into the ignition of the vehicle and damaged it, so as to make it look as if the vehicle had been stolen. He then threw petrol on the vehicle and put a match to it. By this means, the vehicle was burnt. When Mr Linton was cross‑examined by counsel for the appellant at the trial, it was put to him that he had burnt the vehicle because he was angry with the appellant. This was denied by Mr Linton. The appellant made an insurance claim against RAC Insurance Pty Ltd ("RAC"). RAC accepted the claim and paid the appellant the sum of $1,250 on the basis that it was properly due and owing under the policy. Subsequently, Mr Linton's bar bill was reduced by $200.
The appellant gave evidence in his defence denying that he had agreed with Mr Linton that he should burn the vehicle. He denied that he gave the keys of the vehicle to Mr Linton, claiming that he had only one set of keys and these were still in his possession.
The Holden vehicle the subject of the second count on the indictment was owned by Ms Westcott, who was employed as a barmaid at the Stockman Hotel. Her evidence at the trial was that the vehicle was giving her a lot of trouble and causing her considerable expense. She told the appellant about this. According to Ms Westcott, the appellant told her that "we" could get rid of the vehicle by having it burnt. This would cost her $200. Ms Westcott agreed to the vehicle being so disposed of and paid the appellant the $200. Soon afterwards, on an evening when she was working at the hotel, the appellant told her that the vehicle would be burnt later that night. She had earlier parked the vehicle at the back of the hotel. Later that night police called at the hotel and told her that they had found the vehicle some distance away and it had been destroyed by fire.
Subsequently, Ms Westcott made a claim against the insurer, Western Underwriters, on the basis that the Holden had been stolen and had become a total loss. This claim was accepted and Ms Westcott was paid $6,200 by the insurer.
Ms Westcott gave evidence at the trial that she knew nothing about any agreement between the appellant and Mr Linton. As far as she knew, the appellant was not to receive any financial reward for arranging for her vehicle to be burnt. She only discovered that Mr Linton had been involved after the vehicle had been burnt. Counsel for the appellant at the trial cross‑examined Ms Westcott on the basis that she and not the appellant had taken $200 off Mr Linton's bar bill, but she denied this suggestion.
Mr Linton gave evidence at the trial that the appellant had asked him to burn Ms Westcott's Holden in return for his bar bill being reduced by another $200. Mr Linton agreed. He said that he was given a key to the car, but he could not remember by whom. He said he drove the car from where it had been parked by Ms Westcott to a place some distance out of Midland, threw petrol on it and set it alight.
The appellant said that he had not agreed with Ms Westcott that he would arrange for her vehicle to be burnt. He denied having asked Mr Linton to carry out the burning. In addition, it was suggested on behalf of the appellant that Mr Linton burnt Ms Westcott's vehicle because he liked her and wanted to help her. Mr Linton agreed with the proposition that he liked Ms Westcott and that he would have liked to have "seen her out of her predicament" with the vehicle. He was aware that she had complained of constantly incurring maintenance costs. The appellant said that he knew nothing of the alleged $200 reduction of Mr Linton's bar bill debt to the hotel following the burning of Ms Westcott's car.
The appellant was tried on both counts at the one trial. His 1998 appeal was based upon the rejection by the learned trial Judge of an application for severance of the two counts and, in effect, for separate trials of them pursuant to s 585 of the Code. The appeal was dismissed on the basis that the two counts formed a series of offences of the same character within the meaning of the second paragraph of s 585 of the Code. Each of the offences had several common features which were described by Ipp J (with whom Malcolm CJ and Franklyn J agreed) at 6 as follows:
"According to the Crown case, the two offences had several common features. Each involved the stealing of a vehicle from the vicinity of the Stockman Hotel. Both vehicles were owned by persons having a connection with the Stockman Hotel. As a result of the burning of each vehicle, a fraudulent claim was made to an insurance company, leading to a payment of moneys pursuant to an insurance policy. Each offence involved an arrangement between the appellant and Linton. Linton used keys provided to him to steal both vehicles. Linton burnt each of the vehicles. On each occasion, as consideration for his actions, Linton had his indebtedness to the Stockman Hotel reduced by $200. Both offences were similar in law, namely, the obtaining of moneys by deception with intent to defraud, contrary to s 409 of the Criminal Code. In summary, it could be said that both offences were committed pursuant to agreements between the appellant and Linton which were in almost identical terms and each offence was committed in virtually the same way."
Later at 7 Ipp J also said:
"Counsel for the appellant conceded that the evidence in support of each count was relevant to the other. In my opinion, that concession was correctly made. The matter can be simply put. The modus operandi, or method, or system by which each crime was committed was virtually identical. The 'striking similarities', 'underlying unity', 'system' or 'pattern' of the kind referred to in the authorities were manifest. These matters, in the words of Mason CJ, Wilson and Gaudron JJ in Hoch v The Queen (1988) 165 CLR 292 at 295, raised 'as a matter of commonsense and experience, the objective improbability of some event having occurred other than as alleged by the prosecution'. Putting the matter in a different way, the circumstances of each offence were so similar that it was likely that each was committed by the appellant as alleged by the prosecution."
It was concluded that the various similarities between the two offences gave rise to a very strong inference that the appellant was involved in both. Against this was the possible prejudice to the appellant that, with regard to either count, a jury might disbelieve him simply because of his propensity for committing crimes of that kind, this having been established by the evidence in respect of the other count. As Ipp J observed at 10:
"On the appellant's testimony, his defence in regard to that count was stronger than in regard to the first count. On the first count, his motive for committing the crime could not have been gainsaid (that motive being the proceeds of the claim he was to collect from the RAC). On the second count, the motive was very much in dispute. While the appellant denied that he had any motive whatever, the Crown contended that his motive was to reduce Linton's indebtedness to the Stockman Hotel by the $200 he was to receive from Ms Westcott (pursuant to the agreement he had with her). Proof of the motive depended on the jury's view of the credibility of Ms Westcott and the appellant."
In the end, it was concluded that the probative value of the similar fact evidence was so strong as to justify the conclusion of the learned trial Judge that "the prejudicial effect is not so great that it outweighs the other relevant considerations". It was for these reasons that the first appeal was dismissed. In these circumstances, it is apparent that Ms Westcott's evidence was of very considerable significance in relation to the second count and may well have, and probably did, provide indirect support bolstering the credibility of Mr Linton's evidence, not only on count 2, but also less directly on count 1.
It is against this background that the present appeal by way of reference falls to be considered. I have had the advantage of reading in draft the reasons to be published by Parker J. His Honour has set out the relevant principles to be applied in such a case as this and, in particular, where a witness recants from the evidence given at the trial. In particular, I agree that a critical consideration in such a case as this is the evaluation of the relevance, credibility and cogency of the retraction of the evidence given at the trial; the explanation why false evidence was given at the trial; the credibility of the reason why the witness has changed his or her testimony and the reasons why the present or current version of the evidence should be preferred to that given at the trial.
In this case, having had the benefit of reading the transcript of the evidence at the trial, and in particular, the evidence of Mr Linton and Ms Westcott, it is apparent that the jury must have been persuaded of the truth of that evidence beyond a reasonable doubt. Having listened to the evidence of Mr Linton and observed him while giving evidence, notwithstanding that he was clearly a heavy drinker and a person who was prepared to participate in the commission of the offences involving the burning of two motor cars to facilitate fraudulent insurance claims, I was impressed by the apparent veracity of his evidence and his level of recall.
In my opinion, while each of them was an accomplice in relation to the offence the subject of count 2, I am very much inclined to think that it was likely that the jury were persuaded by his evidence and regarded it as bolstered by the evidence given by Ms Westcott. Also, I was very much impressed by the video‑recorded interview in which Ms Westcott participated when questioned by police about her role in relation to count 2 on the indictment. There was nothing which I could detect which indicated that she had been put under any pressure or had been offered any inducement prior to participating in the interview. While there was some discussion about the possibility that she might not be charged if she participated in the interview, this point was clarified by the interviewing officers with their superiors prior to the commencement of the interview. Ms Westcott could have been under no illusion that if she co‑operated with the police, there was any prospect that, if she made admissions, she would not be charged. I found her explanation for giving the allegedly false evidence at the trial and for her decision to give different evidence now to be quite unsatisfactory.
Parker J has set out in his reasons the evidence of Ms Westcott at the trial and assessed the credibility and cogency of her retraction. In this respect, I need say no more than that I am entirely in agreement with the assessment of her evidence before this Court.
In the result, Parker J has demonstrated in his reasons that, so far as count 1 was concerned, the conviction was dependent upon the jury being satisfied beyond a reasonable doubt of the truth of the evidence given by Mr Linton as against the denials made by the appellant. A clear direction was given to the jury that the only evidence against the appellant in support of count 1 was the evidence of Mr Linton. The jury were clearly directed that they could not convict the appellant in respect of count 1 unless they were satisfied beyond reasonable doubt of the evidence of Mr Linton, notwithstanding that, on his own evidence, he was an accomplice of the appellant in the commission of the offence. In this respect, the jury had the benefit of explicit directions by the learned trial Judge about the evidence of an accomplice and the need for the most careful scrutiny of Mr Linton's evidence in the light of the specific warnings given by his Honour, including an appropriate direction about the danger of convicting the appellant on the uncorroborated evidence of an accomplice. The jury were specifically directed that there was no evidence either in respect of count 1 or count 2 which was capable of constituting corroboration. As to count 2 the jury were specifically directed that Ms Westcott and Mr Linton could not corroborate the evidence of each other because each of them was an accomplice.
In Ratten v The Queen (1974) 131 CLR 510 at 520 Barwick CJ said:
"… if there is fresh evidence which in the court's view is properly capable of acceptance and likely to be accepted by a jury, and which is so cogent in the opinion of the court, that, being believed, it is likely to produce a different verdict, a new trial will be ordered. …
It is not enough that there is a reasonable possibility that a doubt will be raised: there must be a likelihood of a different verdict."
As Parker J has pointed out in his reasons, the test of "reasonable possibility" is now one of "significant possibility" of a different verdict, rather than "a reasonable possibility" or a "likelihood" of a different verdict. In other words, the relevant evidence must persuade the court that there is a significant possibility that the jury acting reasonably would have acquitted the appellant had the fresh evidence been before it at the trial: Mickelberg v The Queen (1989) 167 CLR 259 at 273 per Mason CJ and Gallagher v The Queen (1986) 160 CLR 392.
It is apparent from the verdicts of the jury that they were satisfied beyond reasonable doubt of the truth of the evidence of both Mr Linton
and Ms Westcott at the trial and rejected the evidence of the appellant and, in particular, denied his involvement in the offence the subject of count 2.
Having observed Ms Westcott giving her evidence and scrutinising it with care, I found her explanation for recanting the evidence which she gave at the trial quite unconvincing. In my opinion, it would be so unlikely that a jury would attach sufficient credibility to it so as to be left with a reasonable doubt concerning the guilt of the appellant, having heard all the evidence. In other words, I am not satisfied that there is a significant possibility that the evidence she now gives, whether it is regarded as new or fresh, justifies a finding that there is a significant possibility that the jury would be left in a reasonable doubt.
It is apparent from the verdict of the jury in the light of the directions they were given that the jury were prepared to convict the appellant on Mr Linton's evidence alone. For present purposes, it must be assumed that the jury also accepted Mr Linton's evidence in relation to count 2. While his evidence could not provide corroboration for the evidence of Ms Westcott in relation to count 2, the jury were entitled to take the view that, while the evidence of one accomplice could not corroborate the other, the evidence which they gave of the involvement of the appellant in the offence the subject of count 2 was consistent with the involvement of the appellant. For these reasons and for the reasons to be published by Parker J, I am of the opinion that this appeal should be dismissed.
WALLWORK J: The facts concerning the two offences for which the appellant was convicted are set out in the reasons for judgment of Malcolm CJ and Parker J. Parker J has also comprehensively discussed the legal principles involved in an appeal such as this.
It was said in Craig v The King (1933) 49 CLR 429, at 439, by Rich and Dixon JJ, that:
"It cannot be said that a miscarriage has occurred unless the fresh evidence has cogency and plausibility as well as relevancy. Fresh evidence must, we think, be of such a character that, if considered in combination with the evidence already given upon the trial the result ought in the minds of reasonable men to be effected. Such evidence should be calculated at least to remove the certainty of the prisoner's guilt which the former evidence produced. But in judging of the
weight of the fresh testimony the probative force and the nature of the evidence already adduced at the trial must be a matter of great importance."
As Parker J has said, in a case such as the present where the fresh evidence involved a retraction of sworn evidence given by the witness at the trial, there is every reason for great care to be taken in assessing the credibility and cogency of the fresh evidence. Parker J has set out in his reasons for judgment how it was that Miss Westcott came to give the evidence on this appeal.
Having heard Miss Westcott's evidence, and having considered all the circumstances involved in this reference, I am not satisfied that Miss Westcott's fresh evidence has the necessary cogency and plausibility to cause the convictions to be set aside.
I would dismiss the appeal.
PARKER J: Acting pursuant to s 140(a) of the Sentencing Act 1995 the Honourable the Attorney General has referred to this Court the convictions of Antonio Niki Pileggi ("the appellant") on two counts of false pretences. These convictions followed the trial of Pileggi on indictment before a judge and jury in the District Court in November 1997. The appellant was fined a total of $5,000 in respect of the two convictions. He appealed against those convictions. That appeal was dismissed by this Court on 20 May 1998; Pileggi v The Queen, unreported; CCA SCt of WA; Library No 980272; 20 May 1998.
By virtue of s 140(a) of the Sentencing Act, these convictions having been referred to this Court, the whole case is to be heard and determined as in an appeal. The reason for the reference by the Hon Attorney General, and the basis of the appeal as it has now been argued before this Court, is the recantation by one witness Karen Anne Westcott of evidence given at the original trial of the appellant. Given the nature of the issue, in addition to affidavit evidence, oral evidence has been led before this Court from Ms Westcott, from another critical witness at the trial Mr Linton, a private investigator Mr Panoho, Inspector Moore, Detective Sergeant Tristram and the appellant.
There were two counts in the indictment which were tried jointly. They were as follows:
| "Code Sec 409(1) | (1) On or about 10 October 1989 at Perth ANTONIO NIKI PILEGGI by falsely pretending to an employee of RAC INSURANCE PTY LTD that Chrysler Valiant sedan motor vehicle registered number XHE 111 had been stolen obtained from RAC INSURANCE PTY LTD the sum of $1250.00 in money with intent thereby then to defraud. |
| Code Sec 409(1) | (2) AND FURTHER THAT on or about 10 May 1990 at Perth ANTONIO NIKI PILEGGI by falsely pretending to an employee of WESTERN UNDERWRITERS INSURANCE LTD that Holden Gemini sedan motor vehicle registered number 6MZ 581 had been stolen and damaged by fire, induced WESTERN UNDERWRITERS INSURANCE LTD to deliver to KAREN ANNE WESTCOTT and another the sum of $6200.00 in money, with intent thereby then to defraud." |
The appellant and a partner were the licensees of the Stockman Hotel at Midland. In October 1989 a Chrysler Valiant sedan owned by the appellant was burnt. It was found at an isolated location near Midland. The appellant claimed on his insurer, and reported the matter to the police, on the basis that the vehicle had been parked at the hotel and had been stolen and later abandoned and burnt. He received $1,250 from his insurer. At trial it was the Crown case, denied by the appellant, that he had arranged for Mr Linton to take the vehicle and burn it so that the appellant could claim on his insurance. Mr Linton was a regular customer at the hotel and sometimes did casual work there. It seems he was allowed credit and had built up and regularly maintained a fairly large bar bill. It was his evidence at the trial that $200 was taken off his bar bill for burning the appellant's car on 10 October 1989. The appellant was convicted despite his denials.
Karen Anne Westcott worked as a barmaid at the hotel from 1989 until 23 March 1996. In 1991 she gave birth to a daughter. For the purposes of this appeal it was accepted that the appellant is the father of the child, although that had not been formally admitted by the appellant before then. Nevertheless, it appears that from time to time the appellant had made payments to Ms Westcott in respect of the child's maintenance. That was the position at the time of the hearing of this appeal.
In May 1990 a Holden Gemini sedan owned by Ms Westcott was burnt at an isolated location near Midland. She made a claim on her insurer, and reported the matter to the police, on the basis that the vehicle had been parked at the hotel, was stolen and burnt when it was abandoned. Ms Westcott received $6,200 as the proceeds of the insurance on her vehicle although most of this was paid to a finance company to clear the debt she owed on the vehicle. It was the Crown case at trial that this vehicle had also been burnt by Mr Linton and that this had been arranged by the appellant for Ms Westcott as the vehicle was unsatisfactory and she was seriously embarrassed by the financial liability of maintaining it. Once again, it was the evidence of Mr Linton that $200 was taken off his bar bill for this. Both Mr Linton and Ms Westcott gave evidence in respect of this count at the trial of the appellant, who denied any knowledge of, or involvement in, the theft and burning of the vehicle. It was also the evidence of Mr Linton that the appellant had in fact driven to the isolated spot in his own vehicle when Mr Linton drove there in Ms Westcott's car, and that after Mr Linton had set fire to the vehicle the appellant drove Mr Linton back to the hotel.
On 24 March 1996 the Stockman Hotel was burnt. On the evening before the fire Ms Westcott had locked the hotel. She and the appellant, were the last persons to leave the hotel that night. The hotel was insured. A claim was made by the appellant and his partner. The fire was investigated by the police arson squad and also by insurance investigators. Mr Panoho was one of these. In the course of the police investigations, on 12 June 1996 Ms Westcott was interviewed by the then Detective Tristram and Detective Sergeant Moore. While the interview was in connection with the burning of the hotel, the subject of the burning of the two motor vehicles some years earlier arose, in particular the burning of the vehicle owned by Ms Westcott in 1990. Ms Westcott said she knew nothing of the burning of the appellant's vehicle in 1989. Ms Westcott implicated the appellant and Mr Linton and admitted her own involvement in respect of her own vehicle. In essence she said that the appellant had suggested to her that he could arrange for her car to be burnt for $200 when they were discussing the problems she had with the vehicle, and that subsequently he did this. Later she had learnt that it was Mr Linton who had taken the car from where it was parked at the hotel and burnt it. It was the essence of her account that this had been done to enable her to claim under the insurance policy which she had on the vehicle.
Some days later on 17 June 1996 the police officers spoke to Mr Linton. He admitted his involvement in the burning of both vehicles. When interviewed by the police the appellant denied any involvement in the burning of either of the vehicles, although he accepted, of course, he had made what he said was a genuine claim on the insurance policy covering his own vehicle.
Charges were then laid against the appellant and Mr Linton in respect of both vehicles and Ms Westcott in respect of her own. Both Mr Linton and Ms Westcott admitted these offences and were convicted and dealt with. On 23 August 1996 Ms Westcott was sentenced to 18 months probation in respect of her part in making a false claim on her insurance company in respect of the burning of her vehicle. She was ordered to make full restitution.
The appellant did not admit the offences and he was tried in the District Court on 3 November 1997. An application for separate trials of the two counts was refused. Both Mr Linton and Ms Westcott gave evidence at the trial. As has been indicated the appellant was convicted and was fined $3,000 in respect of his own vehicle and $2,000 in respect of the charge concerning Ms Westcott's vehicle.
The appellant's evidence before this Court was that at sometime early in 1998 he spoke to Ms Westcott at Midland. He said that he asked her why she had lied at his trial. The essence of her response was that she was scared that, if she did not implicate him, she might go to gaol and lose custody of her daughter. Ms Westcott's evidence was that the appellant suggested she could change things if she saw his solicitor. She refused to do so. She said that on 7 August 1998, which was after the dismissal of his appeal by this Court on 20 May 1998, she again met the appellant in Midland. He told her that because of his convictions the claim in respect of the burning of the hotel had been rejected by the insurance company. It seems the basis for this was material non-disclosure; the insurance company relying on the failure of the appellant to disclose his part in the burning of the two vehicles for the purpose of false claims being made on insurance companies. During this conversation the appellant stressed that he would lose everything because of his convictions. On this occasion Ms Westcott agreed to see his solicitor. The reason offered to this Court is in essence that her conscience was troubling her because of the harm and trouble she had caused to the appellant. She was feeling very guilty about what she had done.
Ms Westcott did see the appellant's solicitor, who was engaged in dealing with the insurers of the hotel in an attempt to recover the value of the hotel lost by virtue of the fire. Ms Westcott said that she told the appellant's solicitor that the evidence given at the trial of the appellant was false. So too had been her earlier statements to the police and the insurance investigator. The essence of the falsity, she said, was the evidence of and references in the statements to any involvement of the appellant in the burning of her car. After being told by the solicitor that she could now be subpoenaed to give evidence as to what she had told the solicitor, she was advised to seek independent legal advice, which she did. On 25 October 1999, well over a year after she says she agreed to see the appellant's solicitor, Ms Westcott made a statutory declaration. This, she says, confirmed the account she had given to the appellant's solicitor that the appellant had not arranged for the burning of her vehicle, she had made that arrangement herself directly with Mr Linton, the appellant did not know of it and she had lied about his involvement because she was frightened that she would go to gaol and lose the care of her child. The essence of this statutory declaration was repeated in the affidavit of Ms Westcott sworn 21 November 2000 in support of this present reference. The account given in the October 1999 statutory declaration and in the November 2000 affidavit formed the basis of the evidence of Ms Westcott before this Court on the hearing of the reference.
Legal Principles
In this reference the appellant seeks the setting aside of the verdicts returned by the jury with a view to his being retried on the two counts in the indictment. In a case of this nature the essential issue for this Court is to discern whether there has been a miscarriage of justice. As was observed by the High Court in Davies & Cody v The King (1937) 57 CLR 170 at 180, and reaffirmed in M v The Queen (1994) 181 CLR 487 at 493, the duty of this Court to quash a conviction when it thinks on any ground that there was a miscarriage of justice covers:
"… not only cases where there is affirmative reason to suppose that the appellant is innocent, but also cases of quite another description. For it will set aside a conviction whenever it appears unjust or unsafe to allow the verdict to stand because some failure has occurred in observing the conditions which, in the court's view, are essential to a satisfactory trial, or because there is some feature of the case raising a substantial possibility that, either in the conclusion itself, or in the manner in which it has been reached, the jury may have been mistaken or misled."
The appellant relies on the fresh evidence of Ms Westcott by which she recants the evidence she gave at the trial. As was said in Craig v The King (1933) 49 CLR 429 at 439 per Rich and Dixon JJ:
"If after a verdict of guilty the mere fact that a prisoner produced further relevant evidence required the Court to vacate the conviction and submit the question of the prisoner's guilt to another jury, then in a jurisdiction where perjury is rife great abuses would ensue. A Court of Criminal Appeal has thrown upon it some responsibility of examining the probative value of the fresh evidence. It cannot be said that a miscarriage has occurred unless the fresh evidence has cogency and plausibility as well as relevancy. The fresh evidence must, we think, be of such a character that, if considered in combination with the evidence already given upon the trial the result ought in the minds of reasonable men to be affected. Such evidence should be calculated at least to remove the certainty of the prisoner's guilt which the former evidence produced. But in judging of the weight of the fresh testimony the probative force and the nature of the evidence already adduced at the trial must be a matter of great importance."
Relevantly to the present reference, the issue was further discussed by Barwick CJ in Ratten v The Queen (1974) 131 CLR 510 at 519 and summarised at 520 as being:
"But if there is fresh evidence which in the court's view is properly capable of acceptance and likely to be accepted by a jury, and which is so cogent in the opinion of the court that, being believed, it is likely to produce a different verdict, a new trial will be ordered …
It is not enough that there is a reasonable possibility that a doubt will be raised: there must be a likelihood of a different verdict."
This last passage should now be understood as referring to a significant possibility of a different verdict, rather than a likelihood, ie there must be a significant possibility that the jury would have acquitted the appellant had the fresh evidence been before it at the trial; Mickelberg v The Queen (1989) 167 CLR 259 at 273 per Mason CJ and Gallagher v The Queen (1986) 160 CLR 392.
Necessarily, the process of the assessment of the relevance and credibility of the fresh evidence to the issue of guilt, and its cogency, will be undertaken in light of the evidence led at the trial, the trial evidence being "taken in that sense in which, having regard to its verdict, the jury must have accepted it"; Ratten at 518 per Barwick CJ. The Court's consideration of the fresh evidence and its effect in the particular circumstances of the case is, of course, to discern whether it has been demonstrated that a miscarriage of justice has occurred.
It is to be remembered, however, that as Gibbs CJ cautioned in Gallagher at 399 and Mason CJ noted in Mickelberg at 273 "no form of words should be regarded as an incantation that will resolve the difficulties of every case."
In assessing the effect of the fresh evidence on the jury the court inevitably will form its own assessment of the witness and the fresh evidence, and of any additional evidence adduced which might "tend to support, contradict or weaken the new evidence or the inferences which might be drawn therefrom" (see Ratten at 518), but in assessing the effect of the fresh evidence it is necessary for the court to keep in mind the possibility that in some instances a jury acting reasonably might come to a different view from the court of the credibility of the witness or of the cogency of the fresh evidence.
In a case such as the present, where the fresh evidence involves the retraction or recantation of sworn evidence given by the witness at the trial, there is every reason for great care to be taken in assessing the credibility and the cogency of the fresh evidence. As a matter of fact this is obviously so because the very foundation of the fresh evidence is an assertion by the witness that he or she gave false evidence on oath at the trial. When evidence is offered on that footing there is every reason for considerable circumspection about what is now offered as the sworn evidence of the witness. Very careful scrutiny is required especially as to the reasons now offered for giving the allegedly false evidence at trial and for the decision to give different evidence now. This is so not only as a matter of fact, but also because of the need to guard against the possibility of manipulation to which the administration of justice is so vulnerable in this respect.
So it is that in the special circumstances of a retraction or recantation of trial evidence, the High Court observed in Davies & Cody v The King (supra) at 183 - 184:
"A declaration by a witness that he has committed perjury cannot possibly be accepted as a ground in itself for setting aside the result of a trial in which the witness has given evidence. If the contrary were held, the whole administration of both civil and criminal justice would be undermined. The subsequent discovery that some evidence (as in this case) is said by the witness who gave it to be false, or is actually proved to be false, cannot, as a general rule, be allowed as a ground in itself for setting aside a verdict or judgment. But if the verdict is open to objection upon a ground affected by such evidence, the case is different. It would not be wise to attempt to frame a universal rule even for such cases. As the Full Court indicates in its judgment, the subsequent statement that the original evidence is false may be explainable by pressure brought to bear upon a witness or by the operation of any one of an indefinite number of motives. Each case should be treated in relation to its own facts."
In R v Gale [1970] VR 669, Winneke CJ, delivering the judgment of the Full Court, made the following observations at 672 - 673:
"It should, of course, be clearly understood that the mere fact that a witness who has given evidence at a trial recants on the evidence he has given and subsequently alleges that his evidence was false, is not in itself a ground for interfering with a verdict or a ground for a new trial: see Davies & Cody v R …. In special circumstances it may warrant interference by the Court …
We should add that where there has been a recantation by a witness of evidence given at a trial, before the Court would consider interfering, the most cogent explanation would be necessary why the witness had given false evidence at the trial. In the absence of a completely acceptable explanation the Court of Appeal would be most unlikely to accept the subsequent testimony in preference to the evidence given at the trial."
The observations in R v Gale echoed in some respects the approach and conclusions of the Court of Criminal Appeal, Lord Parker CJ, Ashworth and Widgery JJ, in R v Flower & Siggins [1966] 1 QB 146 where the Court identified three situations in cases of recantation. In the first, the Court accepts the fresh evidence as true and conclusive of the appeal in which case the conviction would be quashed. In the second, although not satisfied of its truth, the Court nevertheless thinks that it might be believed by a jury in which case as a general proposition the Court would be inclined to order a new trial. In the third, the Court disbelieves the fresh evidence and is satisfied that the witness is not speaking the truth, in which event no new trial is called for. At 151, Widgery J delivering the judgment of the Court of Criminal Appeal, concluded that the recanting witness:
"… gives no acceptable explanation of the reasons for her having changed her story and we feel compelled to reject the evidence of Mrs Brown where it differs from her evidence at the trial and we accordingly proceed to deal with this appeal as though the evidence of Mrs Brown had not been given before us in this Court."
In reaching this view it was said at 150 - 151:
"If the witness's new version of the case is disbelieved this may very well show he is now unreliable, but it is a fallacy to assume from this that he was also unreliable at the trial. Witnesses may have second thoughts for a variety of different reasons. Some become emotionally disturbed, others brood on the effect of their evidence, whilst others are subject to more tangible pressures to induce them to depart from the truth. It is the witness's state of mind at the trial which matters and this ought to be judged by reference to the circumstances prevailing at that time. It is trite to say that every case depends on its own facts but in our view there is no general requirement for a new trial merely because the witness's account in this Court differs from that given in the court below. So much depends in every case upon the reason, if any, given by the witness for having changed his or her testimony."
The observations of the New Zealand Court of Appeal in K v The Queen [1984] 1 NZLR 264 at 270 are indicative of the somewhat similar approach taken in that case. At 270 the Court concluded:
"In so far as any recantation emerges from the conflicting statements by the girl since the trial, we have no doubt that her attitude reflects the very human, family pressures of the situation. To grant either an acquittal on appeal or a new trial here would be to allow the criminal justice system to be manipulated because a key witness has come to regret the consequences of giving truthful evidence."
As King CJ observed, however, in R vGeesing (1985) 38 SASR 226 at 230 - 231 there are cases:
" … in which a witness's untrustworthiness as disclosed by his change of story leaves the court in doubt as to the reliability of his story at the trial. In such circumstances the court may have a serious apprehension that the jury has reached its verdict in reliance upon false evidence and may therefore feel that there has been a miscarriage of justice."
It is not the case, therefore, that the circumstance that a witness has retracted material or critical evidence given at trial must or should normally be accepted as warranting a re-trial, as is sought by the appellant in this case. Nor may it be reasoned without more, as was the tendency of much advanced for the appellant on the hearing of this reference, that in light of the retraction a re-trial should be ordered because the retraction alone gives rise to a significant possibility that the verdict of the jury on a re-trial might be different as they would also have the current evidence. In this respect in addition to the observations in R vFlower & Siggins quoted above, I note the views of Fitzgerald P in R vBryer (1994) 75 A Crim R 456 at 458, Pincus JA at 462 and Williams J at 475 - 476. As was held in Davies & Cody v The King, and as the other decisions referred to confirm, the mere fact of a retraction is not sufficient to warrant a re-trial. Where there is more than the mere fact of retraction, in the sense indicated in Davies & Cody v The King, there is no universal rule and each case must be treated according to its own particular circumstances. A critical consideration in any such case is an evaluation of the relevance, credibility and cogency of the retraction; why was false evidence given at the trial, why has the witness changed his or her testimony, and why is the present version of the witness' account to be preferred to that given at the trial? There will be found to be "more than the mere fact of retraction" in the relevant sense where, from an examination of what the Court considers to be relevant, credible and cogent fresh evidence, retracting evidence given at the trial, in light of all the circumstances especially the evidence at the trial, it appears to the Court there is a significant possibility that the jury, acting reasonably, would have acquitted the appellant had the fresh evidence been before it at the trial. In such a case a fresh trial would normally be appropriate.
In that process of evaluation as Fitzgerald P said in Bryer at 458 it needs to be shown that:
" … the witness's new version of events is sufficiently relevant, cogent and plausible to raise a doubt as to guilt in all the circumstances, including the original evidence and explanations given for the original evidence and the recantation …"
And as Pincus JA said at 462:
" … the court will not ordinarily set aside the verdict unless it considers, having regard among other things to the reasons given for the recantation and for the original, allegedly false evidence, that there is reason to think that the later rather than the earlier version is genuine."
It is also proper to bear in mind from Davies & Cody v The King that there will be recantation cases where the circumstances reveal to an appellate court that the evidence of the witness "is completely untrustworthy, and ought not to be allowed to enter into the reasons for any verdict of guilty". When that is so will emerge as a matter of fact from the court's examination of the circumstances of a particular case.
The evidence of Ms Westcott
It is to be noted that the evidence of Ms Westcott at the trial was confined to the burning of her own car. Only Mr Linton gave evidence in respect of the earlier burning of the appellant's car. In fact it is the evidence of Ms Westcott in this appeal that when first approached by the police she knew nothing about the earlier burning of the appellant's car.
It was Ms Westcott's evidence at the trial that in a conversation with the appellant in which she mentioned the trouble she was having with her Holden Gemini she commented that she should just put a bomb under it. He then said that "We could get rid of it" - "Just get it burnt". She agreed to that and the appellant told her it would cost her $200 which she was to pay to him. They then arranged for the vehicle to be burnt one night when she was at the hotel. The appellant told her when it was going to be burnt, but she had no idea who was going to do the burning. She could not recall giving a key to the vehicle to anybody. While she was working at the hotel that night two police officers came and asked her where her car was. She told them it was at the back of the hotel in the carpark. They said that it had been found, burnt. She said the appellant had taken her the next day to the police holding bay to see the burnt-out vehicle.
Later she had made a claim on her insurance company which, in due course, paid out her finance debt on the car and paid to her the balance which was some $1,200 or $1,300. It was her evidence that she did not know at that time who had burnt her car although she later learnt it was Mr Linton. She was told this by the appellant. It was her evidence in cross-examination that she gave $200 from the money she received from the insurance company to the appellant as had been agreed. She denied that she had herself put the $200 in the till and crossed that amount off Mr Linton's bar bill.
She was cross‑examined at the trial about ignition keys to the vehicle. She had a set in her hand bag when the police came as she remembered them asking if she had her keys. It was her evidence at trial that she could not remember giving anybody a key, nor could she remember whether there was a spare. She was, of course, giving evidence in November 1997 of events early in 1990 and in cross‑examination she was invited to refresh her memory of these events from what she had filled in on her insurance claim. In the claim she had said she had one set of ignition keys and, having read that, it was her evidence that "I'm pretty sure I only had one set". It was put to her that she had given a set of keys to Mr Linton. She denied that was so, repeating that at that time she did not know who was going to be burning her car. In the course of her evidence on this appeal, however, while maintaining the position that she could not remember giving a key to her car to anybody, she did indicate that in 1990 there may have been a spare key secreted on the car.
In the course of her cross‑examination at the trial she said she had told no one about the appellant's involvement in the burning of her vehicle. She said she had only spoken about it when police from the arson squad took her to the police station on 12 June 1996 after the hotel fire. Her evidence was that in the June 1996 interview the police had raised the question of the burning of her car and had put to her that the appellant was involved. They had also put to her that she had defrauded her insurance company. She gained the understanding that they knew all about the burning of her car. She thought this must have been because Mr Panoho, the insurance investigator, had provided the police with information gathered as he investigated the hotel fire.
Her evidence at the trial of the appellant was that, between the hotel fire and the police interview, the insurance investigator had not spoken to her about the burning of her vehicle, although he had spoken to her about the burning of the hotel. Apart from locking up when she left the hotel on the evening of the fire, it was her account that she knew nothing of the burning of the hotel. It was then her evidence that it had not been suggested to her that the appellant was involved in the burning of the hotel. She denied the suggestions put to her in cross‑examination at the trial that she had falsely involved the appellant to spread the blame for what she had done in respect of the false claim for the burning of her vehicle, and that this was done so that when the court came to deal with her she would be looked on in a more advantageous light. Her denial in this last respect can be readily understood and accepted as, at the time of the trial of the appellant, she had pleaded guilty more than a year earlier and been sentenced for her part in the offence.
In her evidence to this Court, Ms Westcott affirmed the truth of what she had sworn in her affidavit of 21 November 2000 and a second affidavit which she swore on 30 March 2001. In the earlier of these affidavits she described the problems she was having with her motor car and the repair costs which she could not afford. The affidavit then continues:
"12.It was common knowledge that Rick Linton, a regular at the Stockman, was always desperate for money. Tony Pileggi had even told me that Rick was always looking for money.
13.I asked Rick Linton if he could burn my car and he said that he would do it for $200. I said to Rick words to the effect 'Would you get rid of my car?' and he said 'Yes, for $200'."
On the account in this affidavit the appellant had no involvement at all in the idea of burning her car or in arranging for that to occur. In fact, on this account, she did not even directly suggest that the car be burnt. She merely put to Mr Linton "Would you get rid of my car?" The next day she told the appellant that her car had been burnt. That was when she asked him to take her to see the car at the police holding yard. In this affidavit she says that when the cheque for about $1,200 arrived from the insurance company she asked the appellant if she could cash it through the Stockman Hotel. He agreed. She then added that she left $200 in the till which represented the $200 she owed Mr Linton, and she crossed the $200 off Mr Linton's account with the hotel. She added that she did not tell the appellant she had done this. He would have assumed that Mr Linton had paid off his account in the normal way.
In her affidavit Ms Westcott says that what she told the police of the involvement of the appellant in the arrangements to burn her car were false. She swore she made the arrangements with Mr Linton herself and the appellant did not know anything about them. She explained she lied about his involvement because she was frightened that she would go to gaol and lose the care of her child.
In her affidavit she says that in June 1996 she was questioned by Detective Tristram and Detective Sergeant Moore about the hotel fire. She had no involvement and had no reason to think the appellant was involved. They then asked her about her car. She understood from them that the insurance investigator Mr Panoho had found out about her car having been burnt and he had told the police. She says that at first she denied that she had anything to do with the burning of her car but that Detective Tristram had told her that if she did not come clean she would go to gaol and lose her daughter. Detective Tristram had also said that "All they wanted was Tony and that he would make sure that I did not go to gaol or lose my daughter if I gave them what they wanted in relation to Tony." She says she was then left alone in a room for at least two or three hours. She panicked and decided to tell them what they wanted to hear. When the detectives came back she gave them a false statement in relation to the appellant's involvement in arranging for her car to be burnt.
At the hearing of this Reference Ms Westcott was cross-examined on her affidavit. Having said in her affidavit that she was threatened and then left alone for "at least two or three hours in a room by myself", it was her evidence in cross‑examination that she was left for about an hour. When pressed she denied that she was left alone for only 10 or 15 minutes, saying it was a lot more than 10 minutes. She said that when the police returned she then freely confessed about her car as she had been told if she came clean she would not have to go to gaol and lose custody of her daughter. On this account nothing further was said about the burning of the hotel.
When asked why she had thought to involve the appellant in her confession when he had not been involved with the burning of her car, her explanation was that she had told people at the hotel about the burning of her car and "The first few people I told they were like disgusted with me and so I said 'Well, Tony did it.' He was like the sleazy ding …". She had earlier said she did this so that she didn't look so bad. It was also her evidence that she understood from the police that Mr Panoho, the insurance investigator, had got lots of statements and she "knew what I'd told people would have got back to him". She said that she did not tell the truth to the police because she felt they would not have believed her because of what she had told others at the hotel.
At another point in the cross‑examination Ms Westcott agreed that she had had an intimate relationship with a Mr Davey for a period of time between 1991 and 1996. She agreed she had confided in Mr Davey that she had arranged with the appellant for her car to be burnt for $200. Her explanation for telling Mr Davey that the appellant had been involved was remarkably similar to her explanation for identifying the appellant to the people she had told at the hotel. She said that when she had told Mr Davey that she had arranged for her car to be burnt he had a look of disgust, so she said "Well Tony organised it." She explained that she had lied to Mr Davey because she wanted him to think better of her. She felt that it wouldn't look as bad for her if she had not arranged for the burning of the vehicle directly with Mr Linton but had arranged it with the appellant. When pressed why that would be so, she said, "He had a reputation as, like, the dirty ding sort of thing. People just weren't shocked with him". In the course of re‑examination of Ms Westcott this topic was taken up again. She then added that in addition to telling Mr Davey and customers at the hotel she had also told some friends and she had involved the appellant when she told each of these people. They too had looked quite disgusted when she told them what she had done, so she said that the appellant had organised it.
When the police interviewed Ms Westcott on 12 June 1996 she also agreed to a video recorded interview. This, she says, occurred after the episode she described in which she had been threatened and left alone in a room. The Court has been able to examine the video recording of this interview. In it Ms Westcott apparently freely volunteered an account of the burning of her motor vehicle and the false insurance claim which account was essentially in accordance with the evidence she gave at the trial of the appellant. Her appearance at the interview, as revealed on the videotape, gave no indication of her acting in fear or in any obvious distress. While there were some matters of detail about which she was unclear during this interview in June 1996, the essence of her account was that the arrangement was made with the appellant, and not with Mr Linton; she did not know until later who had burnt her car; to the best of her knowledge she did not supply a key to anyone; and when the insurance money arrived she paid $200 to the appellant. At the end of the recording she agreed that she had not been threatened with anything and that she had participated voluntarily "on the hope I don't go to gaol", as to which Detective Tristram replied "But that's not up to us."
The following day Ms Westcott spoke to the insurance investigator Mr Panoho and made a statutory declaration. This covered the same area as her account to the police the previous day, although in some respects it was more detailed. In this statutory declaration she said that after she received the insurance money and gave the appellant $200, the topic of burning her car just never got talked about. She added the only person she did discuss it with was Mr Davey.
A few days later on 17 June 1996 she signed a further statement for the police which was also in essentially the same terms as her earlier statement.
The transcript of proceedings in August 1996 when Ms Westcott pleaded guilty before the Chief Judge of the District Court reveals that her counsel informed the Chief Judge that her client had no objection to a compensation order being made in favour of the insurance company, such an order having been sought by the Crown prosecutor. She did indicate it would take a considerable period of time to pay the amount which was $6,495. Her counsel, Ms Westcott agrees, was acting on her express instructions, when counsel expressly adopted the videotaped record as a correct explanation of Ms Westcott's actions and stressed that she was in severe financial desperation with the vehicle when the suggestion of burning it and claiming insurance was put to her by the appellant. It was stressed to the Chief Judge that this was something Ms Westcott grasped onto, it being something she had not herself had any idea of attempting. It was expressly stated in this submission that Ms Westcott had no idea that Mr Linton would be the person who burnt the vehicle.
After Ms Westcott was sentenced, at her request, she made a fresh statement for the police, which was in essentially the same terms as her statements in June 1996, but which deleted any reference to her address and her place of employment. This was done as she did not want the appellant to be able to contact her. She accepted in her cross‑examination in this Court that at this stage she was under no risk of going to gaol and losing custody of her daughter as she had been sentenced and put on probation. Her explanation was that she felt she couldn't change her statement at that time.
She then gave evidence at the trial of the appellant in November 1997 which, once again, was in accordance with the account she had given to the police. She now accepts that when she gave this evidence at the trial she was fully aware that it was false and that the evidence could lead to the appellant's conviction and punishment. Her explanation was that she thought the appellant would get off. She also accepts that she was then under no risk of going to gaol and losing custody of her daughter. When the appellant was convicted, however, her evidence is that she did nothing until the second of the two chance meetings she had with the appellant by which time, she says, her conscience was troubling her.
Ms Westcott told this Court that she had decided to come forward and give the evidence retracting what she had said at the trial because "I didn't think it was fair that he lose everything because of me and a car. I told people in the pub that he organised it and he hadn't, and I never dreamt the pub would burn down and it would all come to this".
The credibility and cogency of Ms Westcott's retraction
Taken on its own, as a piece of evidence, Ms Westcott's reason for recantation is capable of being accepted as credible, if perhaps not terribly convincing. This is not a case, however, where there is anything independent of her evidence to add any weight or cogency to her assertion that she did not think it was fair that the appellant should lose everything and that this troubled her conscience. There are, however, further elements which must also be weighed.
It emerged in cross‑examination before this Court that her first contact with the appellant after his conviction, ie early in 1998, did not occur by chance but at her instigation. She said that the appellant is the father of her daughter. She told the Court that while he has not formally admitted paternity the appellant has never formally denied it, and that for a time he paid her maintenance of $40 per week in respect of the child. After the appellant's conviction in November 1997 Ms Westcott was seeking maintenance for her daughter from him. She turned to the Child Support Agency for assistance in this. In this respect it was her evidence in cross‑examination that at some time early in 1998 she contacted the appellant to warn him there was a letter going to his house. She did this in case the appellant's wife opened it. It appears from this and other evidence that his wife was still unaware of the child.
While at first she refused to see the appellant's solicitor, during their subsequent conversation when he stressed to her that he would lose everything she agreed to see his solicitor. She told this Court that the appellant is now paying her maintenance of $50 a week in respect of her daughter. It was not explained how or when this came about. It is apparent that were the appellant to "lose everything" because of the failure of his claim against the insurance company in respect of the hotel property, his financial position might well threaten her continued receipt of the maintenance payments now being made. Whether that should ever prove to be the case, or not, it is apparent that there is a continuing mutual connection and financial relationship between the appellant and Ms Westcott by virtue of the daughter. This element provides an additional reason for circumspection about acceptance of the reason given by Ms Westcott for her eventual decision to retract the evidence she had given implicating the appellant.
Ms Westcott's account of how and why she first came to implicate falsely the appellant in the burning of her car proves to be even far more unsatisfactory and unconvincing . This did not just occur at the trial, or even when Ms Westcott was first interviewed by the police or the insurance investigators. On her evidence it first occurred much earlier than 1996 although, it seems, some time after the burning of the vehicle. It is not altogether clear, on her present account, whether it was when she told her then intimate boyfriend, Mr Davey, or unidentified customers at the hotel. The inference from her evidence is that at least some of the customers were told after she told Mr Davey. No satisfactory reason is offered why she came to disclose to him that she had made a fraudulent insurance claim some time earlier, but, as indicated earlier in these reasons, it is her evidence that when she told him he looked so disgusted at her dishonesty that she quickly added that it was the appellant's idea.
Quite unexplained is why, if Mr Davey's impression of her honesty was of such importance to her, she should tell him about the burning of the car and the false insurance claim in the first place. Even less satisfactory was her explanation why she decided, on the spur of the moment, to falsely implicate another as the originator of the idea and the organiser of the burning of the vehicle, and her explanation for choosing the appellant for this fictional role because he had a reputation as "the dirty ding". In these critical respects her evidence lacked inherent credibility and failed to carry conviction as an explanation for her decision to implicate falsely the appellant in serious criminal conduct. Importantly, the manner in which she gave this evidence, repeated as it was, detracted even further from its credibility. It impressed as entirely contrived evidence about which Ms Westcott appeared to be particularly uncomfortable. Her references to the "dirty ding" seemed to be rehearsed. I was left entirely unconvinced as to the truth of the evidence of Ms Westcott in these respects. It is my clear impression of this evidence, and the way it was given, that a jury acting reasonably would be equally unpersuaded by it and would regard it as fabricated.
There was more of this as it was her evidence to this Court that the same thing occurred as she told various customers at the hotel about the burning of her car. There was no satisfactory explanation for her disclosing this criminal conduct involving herself to the various customers. Further, her only explanation for lying to each of these customers was the same as her explanation for lying to Mr Davey; as she told them that she had made a false claim on her insurance company after arranging for her car to be burnt, she was so concerned at the look of disgust on their faces that once again, falsely, she implicated the appellant to make him appear to be the primary originator of the plan and the organiser of the burning. She did this so that she would appear in a better light. Her explanation for choosing the appellant was that he was a "greasy ding" or a "dirty ding". Leaving aside the offensive nature of such a description to persons of Italian descent, this explanation did not improve in its credibility with repetition in this different setting. It appeared even more obviously contrived. It is to be remembered that she was talking to customers at the hotel where she was working as a barmaid. The person she was falsely implicating was one of the two partners and licensees who was also in regular contact with the customers. It is extremely difficult to accept that she would tell lies of such serious import to a number of customers in the hotel about the appellant, when there was such an obvious likelihood that word would get back to the appellant. After all, on her present evidence, she was falsely implicating him in arson and false pretences. He was the father of her child and the livelihoods of herself and her child depended at that time upon her job at the hotel. Once again, I found this evidence, both in content and in the manner in which it was given, not to be credible. In my view a jury acting reasonably would form the same view of it.
It is to be noted that, in re-examination, the class of persons to whom she had decided to tell this serious lie about the appellant was expanded to include some friends who were not customers at the hotel. Why she should tell them of her dishonest and criminal conduct and why she should think that, by lying to persons who had no contact with the hotel to implicate falsely the appellant, she would appear in a better light to her friends became even more obviously lacking in credibility and contrived by its repetition.
This evidence of Ms Westcott that she had lied to Mr Davey, to hotel customers and to friends, falsely implicating the appellant in the burning of her car with the idea of falsely claiming on her insurance policy is fundamentally critical to her explanation for giving what she now says was false evidence against the appellant at his trial. In essence, she says she gave false evidence because she felt she couldn't go back on the lies she had told the police when they first interviewed her on 12 June 1996. Her explanation for having told lies to the police on that occasion is that she expected that the lies she had told the customers at the hotel would have got back to the police through the insurance investigator, Mr Panoho, so that if she told the police the truth they would not believe her. Therefore, as she was afraid of going to gaol and losing her daughter, she decided on 12 June 1996 that she must tell the same lies to the police that she had told the customers. Having done that, it was the same lies that she then maintained in her various statements to the police, on the video recording, in the statutory declaration for the insurance investigator, when instructing her lawyer for her plea of guilty and then, of course, when she actually came to give evidence against the appellant on his trial in November 1997. The problem inherent in all of this, for the purposes of this reference, is the lack of credibility of her present account of the starting point of these lies. If it cannot be accepted that she told these lies to customers and to Mr Davey and friends, then her explanation for lying to the police in June 1996 and therefore for eventually lying on oath on the appellant's trial is left without foundation.
I would further note, in this respect, that no customer from the hotel has given evidence in support of the reference, nor has Mr Davey or any other friend of Ms Westcott. There is a complete absence of corroboration. There is only the account of Ms Westcott, in her affidavits in support of the reference and on oath before this Court, that she ever told customers at the hotel, or Mr Davey, or other friends, anything about the burning of the vehicle and the false claim on the insurance policy, and that she had implicated the appellant when she did this. Of some further significance in this respect is the statutory declaration which Ms Westcott made on 13 June 1996, the day after she was interviewed by the police, when she saw the insurance investigator Mr Panoho. As noted earlier in these reasons, in that statutory declaration she swore that after she received the money for the insurance payout on her car she gave $200 to the appellant and presumed that he had given it to Mr Linton and that the "topic of burning my car just never got talked about after this. The only person I did discuss this with was my boyfriend at the time." Had the lies she had told the customers at the hotel been of such compelling force for her only the preceding day, so compelling that they persuaded her falsely to implicate the appellant in this serious criminal conduct in her statements to the police, it is not credible that she would have forgotten them when she made the statutory declaration the next day.
There is another matter which is of some relevance. It is her present evidence that, in 1990 when she was in financial trouble because of her vehicle, one day she simply asked Mr Linton, whom she knew as a customer at the hotel, if he would burn the car for her, or more accurately on her evidence, if he would "get rid of" her car. Given what we have heard of her past life, her professed ignorance to that time of the burning of the appellant's vehicle the previous year, and the nature of her contact with Mr Linton, this is an extremely surprising account. It involves accepting the notion that she herself thought up the idea of creating the appearance that her vehicle had been stolen, burning it, and then making a false claim in respect of it to her insurance company. Further, that she then thought to involve another person in the task of burning the vehicle, and to approach a relative stranger Mr Linton to seek his assistance. There is no suggestion that she had any reason for thinking that Mr Linton would be amenable to the idea, or that it would be within his capacity to carry out what was required, and there is nothing to suggest that she had any reason to think that he could be relied upon in such an enterprise or to keep secret what had occurred.
The account which Ms Westcott now gives on oath to this Court is somewhat in marked contrast as to its apparent credibility and cogency to the account which she gave on oath at the trial of the appellant, and which was the basis for her plea of guilty and plea in mitigation, and which was the account she gave to the police and the insurance investigators. On that account she had spoken only of her financial problems with the vehicle at the hotel. It was then the appellant who spoke to her privately suggesting the idea and that he could arrange for the vehicle to be burnt so that she could make a claim on her insurance. This he did when she grasped the idea as a way out of her predicament.
Other evidence
Mr Linton was called before this Court. He maintains the truth of the evidence which he gave at the trial of the appellant. This is also the basis upon which he himself pleaded guilty to his part in the burning of both vehicles as part of the false pretences with which he was charged. His evidence on oath at the appellant's trial accorded in its essential elements with that given by Ms Westcott at the trial. There were differences in detail which were fully explored by the experienced counsel who acted for the appellant at his trial and which were fully explored again before us. Mr Linton's position is that the evidence he gave at trial was the truth and he strongly refuted the new version of the events now advanced by Ms Westcott.
A most significant issue from the appellant's viewpoint is the account which Mr Linton first gave to the police when he was interviewed on 17 June 1996. In this he indicated that as far as he could remember it was Ms Westcott that had asked him to burn the car and he thought it was, or that it must have been, Ms Westcott who gave him the key. It will be appreciated that this could provide significant confirmation of the account Ms Westcott now gives. It was Mr Linton's explanation of this, both at the appellant's trial and before this Court, that he said these things because at the time there was no indication that the police had any knowledge of the appellant's involvement and he tried to avoid involving the appellant. It was clear to Mr Linton, he says, that the police were aware of the burning of the car and the false insurance claim and of Ms Westcott's necessary involvement and of his own, so he attempted at first to limit his account of those involved to Ms Westcott and himself. He was closely cross‑examined before us, as it appears from the transcript he had been at the trial, about what led him in the end to mention the involvement of the appellant, which he did even in the course of his first interview. He then said it was the appellant who had, by pre-arrangement with Mr Linton, driven in another car and waited some distance away while Mr Linton set Ms Westcott's car alight, and then had driven Mr Linton back to the hotel. It was the evidence of Mr Linton that somebody must have mentioned the appellant, although the transcript does not bear this out at that point of the interview. It is to be noted, however, that he only referred to the appellant when specifically asked whether he had taken someone else with him when he went to burn the car and that while identifying the appellant in answer to that question he was careful to make clear that the appellant had no part in the actual burning of the vehicle. What appreciation, if any, he may have had of the legal significance of the appellant driving him back to the hotel after the car was burnt was not explored. It also appears that, on that occasion, the police had spoken to him first about the hotel fire and then the burning of the appellant's own car in 1989, so that the appellant had featured in their discussion but, on Mr Linton's evidence, not in a way which suggested that the police were aware that it was the appellant who had organised Mr Linton to burn Ms Westcott's car.
Also explored thoroughly before us in cross‑examination, as they had been at the trial, were the variations in detail between the account given by Mr Linton to the police when interviewed on video, a subsequent written statement to the police, and a statutory declaration later given to the insurance investigator, and his actual evidence at the trial of the appellant. Mr Linton accepts that during the years 1989 and 1990 he was drinking quite heavily and that he had from time to time used marijuana, and that his recollection of detail both in 1996 and at the time of this hearing seems to have been affected by this and by the lapse of time. This does not explain every issue of course, but it was my general impression, in particular of his explanation that when first interviewed by the police he tried to shelter the appellant, that his evidence had a ring of genuineness which was maintained despite the most searching cross‑examination to which he was exposed.
The evidence of Mr Panoho and the two police officers was that it was Mr Panoho who first got wind of the burning of the two vehicles. He passed this information to the police officers who then spoke to Ms Westcott. Contrary to the evidence of Ms Westcott, who said that the police officers claimed to have a number of statements about the burning of her vehicle, Mr Panoho had received this information from a discussion with one person. There was no written statement, let alone a number of them. There were not a number of informants. The information did not come from either Mr Davey or customers at the hotel.
Another body of evidence extensively explored before us concerned what had passed between Ms Westcott and the police officers when they spoke to her on 12 June 1996. This concerned her evidence that she was threatened, or as she also put it - felt threatened, that if she did not tell the police what they wanted to know she would go to gaol and lose her child. It was her evidence that having been threatened in this way, or having gained that impression, she was then left alone for considerable time, she thought at least two to three hours, by the end of which time she was so distressed at the possibility that she might go to gaol and lose her child, that she took what she thought was the only course open to her to avoid this. That was to lie to the police by telling them it was the appellant's idea to burn her car and that he arranged it for her.
It is to be noted that running sheets were not used by the police officers. Further they were following a procedure by which they discussed and took a witness statement about the hotel fire, and another statement concerning Ms Westcott's car. They also interviewed Ms Westcott as a suspect in respect of her car. It is accepted by the police witnesses that Ms Westcott was left alone in a room for a time, although only for a relatively short period perhaps 10 to 15 minutes, not for two to three hours. The police witnesses both said that it was put to Ms Westcott that if she was prepared to give evidence against the appellant it might be possible not to charge her with an offence at all. This was said before she was left alone.
The evidence of the officers was that she was then left alone because they went to discuss the case with their superiors to confirm whether this could be done. They were told it could not and that if she admitted an offence in which she was a principal offender she must be charged. When the officers returned they told her this and asked, nevertheless, whether she was prepared to go on and be interviewed, the interview being recorded by video. She agreed. The officers then repeated that they had now been instructed that the inducements they had proposed earlier could not be offered, and they made clear that she would be charged if there was evidence to warrant this. This is dealt with at the commencement of the video.
In the absence of running sheets it is not possible to be confident of times, but given the earliest time at which Ms Westcott was collected from her residence that day to be taken to the office of the arson squad, and the discussion and statement that was taken in respect of the hotel fire, and then the discussion concerning the burning of her vehicle, it would appear that at the most she could not have been left for anything exceeding about an hour. It may have been much shorter as the officers suggest. The officers expressly deny making any threats that Ms Westcott would go to gaol and lose her child. It is their evidence that the child was first mentioned at the end of the video interview and then by Ms Westcott herself. That did occur at the end of the video recording. As indicated earlier the Court has been able to view the videotape of that interview and it is my impression that Ms Westcott was showing no evident sign of distress or that she was acting under threat or pressure. Indeed, she appears collected and readily volunteered her account. The video recording does not offer support for her present evidence.
Should there be a re-trial?
For the purposes of this reference it is significant that Ms Westcott's present evidence does not deal in any way with the first offence. It is the evidence that she had no knowledge of the first offence even when her own car was burnt. Her evidence at the trial was confined to the burning of her own car. There is no direct reason, therefore, why the present recantation, even if accepted, should lead to the setting aside of the verdict in respect of count 1. It is submitted, however, that if Ms Westcott's recantation had been before the jury, they might not have been prepared to place any weight on her evidence. Without her evidence, it is submitted, the jury might not have been prepared to accept Mr Linton's evidence as to either offence, or at least not have been prepared to accept it as sufficiently cogent to prove the commission of either offence beyond reasonable doubt.
Were Ms Westcott's recantation credible and cogent in the relevant sense it would be necessary to consider whether, if it had been before the jury, along with all the other evidence, there would have been a significant possibility that the jury, acting reasonably, would have acquitted the appellant of either or both charges. For the reasons already given, however, Ms Westcott's recantation lacks the credibility and cogency which gives rise to that issue. It has not been demonstrated that there is reason to think that her present evidence rather than her evidence at trial is genuine. Further, when the whole circumstances are viewed overall, the evidence she gave on oath at the trial and what she told the police and the insurance investigator has an apparent credibility and cogency which the account she now seeks to advance lacks. In this last respect I would note that for this reason this is not a case where it should be concluded, as was the factual position in Davies & Cody v The King (supra) at 184, that Ms Westcott has been shown always to have been completely untrustworthy such that the evidence she gave at the trial ought not be allowed to enter into the reasons for any verdict of guilty.
Were it necessary, nevertheless, to evaluate the possible effect of the recantation to determine whether there was a significant possibility that the jury would have acquitted, not being satisfied beyond reasonable doubt of the appellant's guilt of each count, it would be relevant not only to weigh the matters already considered in these reasons, but also issues such as whether by virtue of the recantation of Ms Westcott's evidence concerning the second count, a jury acting reasonably would find themselves unable to be satisfied beyond reasonable doubt of the evidence of Mr Linton concerning the first count, as they clearly were at the trial, notwithstanding its deficiencies and the weaknesses in his character, each of which were well explored.
In this respect it is further submitted that, had the recantation been known at the time of the trial, it is more likely that separate trials would have been ordered. We were invited in the course of submissions to attempt to assess how a jury might have regarded Mr Linton's evidence had there been separate trials. I am not satisfied, however, that it is appropriate in a case such as this, when seeking to assess the possible effect of fresh evidence, to go so far as to attempt to determine whether there might have been procedural differences at the trial, such as separate trials of the two counts.
Be that as it may, on the hypothesis being considered that the recantation was before the jury at the trial, which of course was one that strictly does not arise for the reasons given, it must be remembered that the first count was always a case of Mr Linton's word against the appellant's denial. The trial judge gave an appropriate direction to the trial jury that the evidence as to the two counts must be considered separately, and the jury was directed that the only evidence against the appellant in support of count 1 was that of Mr Linton. The jury were directed, as a consequence, that to convict the appellant on count 1 they must believe the evidence of Mr Linton beyond reasonable doubt despite his being, on his own evidence, an accomplice of the appellant in the offence. The jury were explicitly and appropriately directed as to the dangers inherent in the evidence of an accomplice and of the need for the most careful consideration of Mr Linton's evidence in light of the specific warnings given by the judge. These warnings included a direction as to the danger of convicting on the uncorroborated evidence of an accomplice. The jury were specifically directed that there was nothing in the evidence, as to either count 1 or count 2, which constituted corroborative evidence. With respect to count 2 the jury were directed that Ms Westcott and Mr Linton could not corroborate each other because each of them were accomplices.
As was recognised in the decision of this Court in Pileggi v The Queen (supra) there was scope in this case for the jury to regard the evidence of Ms Westcott as supporting the evidence of Mr Linton re count 2 and therefore to do so indirectly re count 1. Notwithstanding this, and given the directions which have been outlined there is not shown to be, in my view, any sufficient reason to conclude that there is a significant possibility that a jury trying count 1, with knowledge of the recantation with respect to count 2, and whether trying count 1 separately or together with count 2, would not be as convinced by the evidence of Mr Linton regarding the involvement of the appellant in count 1 and so be convinced beyond reasonable doubt, as was the original trial jury. The evidence concerning count 1 remains as it was at the trial.
With regard to count 2, on the hypothesis being considered, the task of the jury would obviously be more complex than at the original trial. Naturally that makes any attempt to assess the possibilities of the outcome of that process more difficult and less certain. With respect to the evidence of Ms Westcott itself, I have already indicated that it is the view I have formed that her recantation lacks credibility and cogency and would be so viewed by a jury acting reasonably. While perhaps there may be a possibility that a jury could attach sufficient credibility to it to be left in the end with a reasonable doubt by virtue of her present evidence, I am not able to be satisfied that the conclusion is justified that there is a significant possibility of that occurring.
On the hypothesis being considered, the jury would also have Mr Linton's determined maintenance of his evidence, notwithstanding Ms Westcott's recantation. For the reasons already canvassed it appears to me that his evidence would tell against the possibility of the jury attaching any credibility to Ms Westcott's recantation and that her recantation would not in the end have the effect of lessening the credibility and cogency which otherwise attached to his evidence. Even though Mr Linton's evidence concerning count 2 has been the subject of intense further scrutiny on this reference that process has left me with a clear impression of the reasons why a jury acting reasonably might well accept his evidence, despite its deficiencies, despite the admitted defects in his character, and despite the denials of it by the appellant, and do so beyond reasonable doubt. I am unable to be satisfied that there is a significant possibility of the contrary, having paid very careful attention to the evidence, especially that of Ms Westcott and Mr Linton, and to the many factors which were scrutinised before us which tell for and against the acceptance of Mr Linton's evidence notwithstanding the recantation by Ms Westcott. While recognising and attempting to allow for the possibility that a jury acting reasonably might take a different view, I am not able to conclude that there is a significant possibility that, on the hypothesis being considered, a jury would acquit the appellant of count 2.
With respect to count 2 there is the further aspect that Ms Westcott's recantation does not involve any direct conflict with, or detraction from, that part of Mr Linton's evidence at trial, which he maintains now and which has not varied from the first interview with the police, that it was the appellant who drove out to near where Mr Linton set fire to Ms Westcott's vehicle, and who waited for Mr Linton as he did so and drove him back to the hotel. In the circumstances, on its own, this is enough to justify the conviction of the appellant on count 2 as an accessory. This aspect alone affords a further and distinct reason against a conclusion that there is a significant possibility that the jury would have acquitted the appellant had the recantation of Ms Westcott been before it at the trial.
For these reasons I find myself unpersuaded that the verdicts of guilty the subject of this reference should be set aside. In this case I am not persuaded there is reason to think that Ms Westcott's present evidence, rather than the evidence she gave at the trial, is genuine, or that the appellant was convicted on false evidence. I am not persuaded that there is a significant possibility that the recantation, if known to the jury at the trial, would have resulted in an acquittal of the appellant on either count, or that on any other basis there is reason to think that justice has miscarried in this case.
I would dismiss the appeal.
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