R v Filimoehala

[2003] NSWCCA 37

Reported Decision: 138 A Crim R 299

New South Wales

Court of Criminal Appeal

CITATION:	REGINA v FILIMOEHALA [2003] NSWCCA 37
HEARING DATE(S):	09/04/2002
JUDGMENT DATE:	6 March 2003
JUDGMENT OF:	Mason P at 1; Dowd J at 2; Smart AJ at 46
DECISION:	Leave to appeal granted; appeal dismissed
CATCHWORDS:	Appeal against interlocutory judgment - Crown seeks leave to withdraw acceptance of guilty plea to lesser charge - duty of the prosecution to the Court - prejudice to the accused - adduction additional evidence.
LEGISLATION CITED:	Criminal Appeal Act 1912 Evidence Act 1995
CASES CITED:	Beeby (1999) 104 ACrimR 142 Boag (1994) 73 ACrimR 35 BWM (1997) 91 ACrimR 260 Gallagher (1986) 160 CLR 392, Lawless (1979) 142 CLR at 659 Mickelberg (1989) 167 CLR 259
PARTIES :	Beauttlar (Bila) Filimoehala (Applicant) Crown
FILE NUMBER(S):	CCA 60778/2001
COUNSEL:	PJD Hamill (Applicant) GIO Rowling (Crown)
SOLICITORS:	DJ Humphreys (Applicant) SE O'Connor (Crown)

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	00/51/0075
LOWER COURT JUDICIAL OFFICER :	Black DCJ

60778/01

MASON P
DOWD J
SMART AJ

Thursday 6 March 2003

REGINA v BEAUTTLAR (BILA) FILIMOEHALA

Judgment

1 MASON P: I agree with Dowd J and Smart AJ.

2 DOWD J: The applicant, Beauttlar Filimoehala, seeks leave to appeal against the judgment of Black QC DCJ, who granted leave to the Crown to withdraw the acceptance of a plea of guilty previously entered by the applicant.

3 As it will become relevant for several purposes, I will set out below, the relevant parts of s5F of the Criminal Appeal Act 1912 (“the Act”):

“ Appeal against interlocutory judgment or order

5F (1) This section applies to:

(a) proceedings (including committal proceedings) for the prosecution of offenders on indictment in the Supreme Court or in the District Court, and …
…

(3) Any other party to proceedings to which this section applies may appeal to the Court of Criminal Appeal against an interlocutory judgment or order given or made in the proceedings:

(a) if the Court of Criminal Appeal gives leave to appeal, or
(b) if the judge, justice, justices or magistrate of the court of trial certifies that the judgment or order is a proper one for determination on appeal.

(4) An appeal under this section shall, unless the Court of Criminal Appeal gives leave to adduce fresh, additional or substituted evidence, be determined on the evidence (if any) given in the proceedings to which the appeal relates.

(5) The Court of Criminal Appeal may:

(a) affirm or vacate the judgment or order appealed against, or
(b) give or make an interlocutory judgment or order instead of the judgment or order appealed against.
(6) If leave to appeal under this section is refused by the Court of Criminal Appeal, the refusal does not preclude any other appeal following a conviction on the matter to which the refused application for leave to appeal related.
…”

4 A certificate under s5F 3(b) was not given thus, leave for this appeal is required.

5 On 20 August 2000 the applicant was arraigned before Gibson QC DCJ on the following charges:

(a) that on 7 November 1999 at Ballina he did maliciously inflict grievous bodily harm upon Kevin Raymond Ellis with intent to do grievous bodily harm to him, contrary to the provisions of s33 of the Crimes Act 1900; and in the alternative;
(b) that on 7 November 1999 at Ballina he did maliciously inflict grievous bodily harm upon Kevin Raymond Ellis, contrary to the provisions of s35 of the Crimes Act 1900.

6 As had previously been arranged between counsel for the applicant and the Crown who then appeared, the applicant entered a plea of not guilty to the first charge but guilty to the alternative charge. It was understood between counsel that the applicant would ask that several assault charges be taken into account on the sentence under a Form 1. The Crown accepted the plea in full satisfaction of the indictment and proceedings were stood over for sentencing.

7 On 7 November 2001 at Lismore District Court the Director of Public Prosecutions, by motion, sought an order that the Crown be granted leave to withdraw the acceptance of the plea of guilty. Black DCJ granted leave.

A brief summary of the facts

8 On the evening of Saturday 6 November 1999 a group of eight young males including the victims of the several assaults went to the Mad Cow Nightclub in Ballina. The applicant was in Ballina for the weekend with his brother, Sonny, and his brother-in-law. The applicant attended the Ballina RSL Club where he consumed a quantity of alcohol. The applicant and his brother-in-law left the club shortly before midnight dressed in a Hawaiian style shirt, this departure being recorded by security video.

9 The applicant attended the Mad Cow Nightclub with his brother and brother-in-law where he was identified as being the person dressed in the Hawaiian shirt. At about 2:15am one of the eight person group became involved in a physical confrontation with a person outside the group, Delsignore. One of the males in the eight person group and Delsignore were escorted from the premises. The group commenced to leave, Delsignore being held back by security officers until the group of eight persons had disappeared. The applicant appeared at the exit doors and asked if Delsignore was “all right” and the applicant then took a member of the group around the throat and that person then attempted to break free but was unable to do so until a security officer witnessing the event told the applicant to let the person go, which the applicant did.

10 As the group of eight males then walked down to River Street, the main street of Ballina, the applicant, his brother and brother-in-law and Delsignore walked to the corner of Moon and River Streets. The applicant, who was screaming out at the group of males, one of whom turned back to say, “We don’t want any trouble.” The applicant then grabbed hold of this male around the shoulders, picked him up and threw him onto the concrete path, causing that person to suffer a graze to his right arm. He then yelled at the applicant “We don’t want any trouble”, and was able to get away from the applicant.

11 The applicant then violently assaulted another member of the group, throwing him against a steel gate causing him pain. The applicant then kicked him in the head forcefully, causing a graze to the forehead. As the victim turned over the applicant repeatedly stomped with his feet on the victim’s head, another member of the group called out to the applicant: “Leave him alone.”

12 The applicant then turned to that person in turn, took hold of him, threw him to the ground and up against a concrete pillar and then kicked him in the head. The applicant then picked this person in turn and repeatedly drove the upper area of his body onto the concrete footpath which continued for about half a minute until the victim was released. He was left bleeding from the head and in a semi-conscious state.

13 The applicant then walked in a westerly direction at which time, a male person, Kevin Raymond Ellis, had just entered River Street from Moon Street, having also left the Mad Cow Nightclub, Ellis not having been involved in any of the groups. The applicant was at this time yelling out “Who else wants to fight me?” On seeing Ellis, the applicant walked over to him and said, “Come on”, holding up his fists. Ellis ignored the applicant and went to walk past him, the applicant then punching Ellis to the head with a clenched fist hitting Ellis forcefully in what is described as a “king hit”. Ellis fell to the ground, striking his head hard on the concrete having had no opportunity to defend himself and having done nothing to provoke the applicant. Ellis remained unconscious from the first blow.

14 The applicant then stomped on Ellis’s head and body a number of times. On each occasion the applicant’s boot hit Ellis’s head causing it to bang against the concrete footpath. The applicant then walked away from the area with his family and Delsignore leaving Ellis lying unconscious with a considerable amount of blood coming from his head. Ellis and two of the others were conveyed to Ballina Hospital for treatment. Ellis subsequently being taken to Lismore Base Hospital and then being flown to Royal Brisbane Hospital for specialist treatment where he remained in intensive care for ten days before being returned to Lismore Base Hospital for a further number of days.

15 Ellis suffered from a fractured skull, fractured cheek bone, fractured jaw, three fractured ribs, extensive internal bleeding including within his head and appears to have permanent injury covering 70% loss of hearing to one of his ears and nerve damage to one side of his face. He had not, as at 2 January 2000, been employed since the assault.

16 The other victims have not suffered long term effects of the injuries.

The Case before Black DCJ

17 The court heard evidence that the Crown Prosecutor who had appeared before Gibson DCJ did not retain the carriage of the sentence matter and it was referred to the senior Crown prosecutor who then referred it to the Director of Public Prosecutions who determined that the application for withdrawal of the plea be made and that the matter proceed on the more serious offence which carries twenty years’ penalty rather than the offence to which the applicant pleaded which carries seven years. The difference in the two offences as set out above is that the more serious offence requires the Crown to prove that the infliction of grievous bodily harm was done with intent to do grievous bodily harm.

18 The application was made before Black DCJ on the basis that the Crown having accepted the plea to the lesser offence had committed an error of judgment. The Crown then tendered, and Black DCJ admitted, a statement of facts prepared by the police from witness statements and told the court that it was put forward as an accurate statement of facts. Counsel for the applicant objected to the admission of the statement on the grounds that, in pointing to the error of judgment relied on by the Crown that there should have been an affidavit from the Crown Prosecutor as to what he looked at in terms of statements and that Black DCJ should not just look at the summary statement of facts.

19 In a judgment, Black DCJ outlined his reasons for admitting the statement prepared by the officer in charge stating that he accepted the assurance of the Crown that the document was reliable and appropriate to be relied on, holding that counsel for the applicant had a number of avenues whereby he could attack the basis of the statement of facts. The document was then admitted as part of the Crown’s case.

20 It was put to Black DCJ by counsel for the applicant that the Crown should submit the whole of the evidence before the Crown, who appeared in the previous hearing before Gibson DCJ. The Crown elected not to tender the statements in support of the statement of facts stating that the statement of facts was an accurate summary of the Crown case. After being given an opportunity, counsel for the applicant declined to call any evidence or tender any statements but submitted that the Crown should have made available to the court all the material that the original Crown Prosecutor had when he made the decision to accept the plea to the lesser charge.

21 In his reasons for allowing the Crown to withdraw its acceptance of the plea, Black DCJ referred to the history of the matter as set out in the affidavit which placed before the court the evidence as to the internal review by officers of the Director of Public Prosecutions.

22 His Honour found that the Crown had the right to make the application and relied on BWM (1997) 91 A Crim R 260. His Honour then found it was not necessary to have all depositions or statements before him, nor was it necessary to have an affidavit from the Crown and that the material before him was accepted as the only material before him in particular the two paragraphs setting out the assaults and the injuries to Ellis as summarized above and that although there were other issues as to identification and intoxication, Black DCJ found that it was extremely difficult, in the light of the contents of the statement of facts, which he obviously treated as an outline of the case for the prosecution that an acceptance of a plea to the lesser count caused severe problems of credibility and the duty of the prosecution to the court.

23 His Honour relied on the following passages of Hunt CJ at CL in BWM at p263:

“In the High Court, the basis upon which leave may be granted to the Crown to withdraw an acceptance of a plea was expressed as being where it is in the interests of justice that the Crown be permitted to do so. It was made clear that different interests were involved in that question, a proposition which was ultimately accepted by the applicant. The interests of justice include the legitimate interests of the Crown, which prosecutes on behalf of the community, as well as the legitimate interests of the accused. The High Court gave examples of situations which would fall within the interests of justice. The legitimate interests of the accused include the prejudice to him by any admissions made – these would include any admissions implicit in the plea itself – which would not have been made if the matter were to go to trial, or the unavailability of his witnesses at the time when the trail would proceed. The legitimate interests of the Crown include the situation which arise when the facts tendered on the sentencing demonstrate to the judge that the accused was guilty of the more serious offence originally charged. “

and further at p267:

“It would not be acceptable to the community on behalf of which the Crown prosecutes that a person charged with murder should be sentenced only for the substantially less serious offence of manslaughter where there remains outstanding the disputed but unresolved issues of fact which bear directly upon his guilt or otherwise of the more serious crime.”

24 His Honour applied the latter passage and held that putting the interests of the community first, that it would not be appropriate for a situation on the basis that it is accurately described in the relevant paragraph of the statement of facts to be disposed of by the way of acceptance of a plea to the alternative count as it did not reflect the apparent gravity of the matter set out in the statement of facts.

25 His Honour held that there was no prejudice demonstrated on the part of the applicant as the Crown had undertaken not to rely on the plea that was entered and the facts leading up to that plea and, therefore, that it was in the interest of justice to grant the Crown leave to withdraw its acceptance of the plea.

Grounds of Appeal

26 The grounds of appeal sought to be relied on by the applicant firstly related to the admissibility of the statement of facts in which it was submitted that the provisions of the Evidence Act 1995 were not applied and that the judge erred in accepting the assurance by the Crown as to the reliability and admissibility of the statement of facts rather than applying the rules of evidence.

27 The remaining ground 4 was that Black DCJ erred in granting the Crown leave to withdraw the plea as the Crown had failed to identify circumstances warranting a change of the evidentiary position from that taken at the time the plea was accepted.

28 During the course of the hearing the Crown sought to rely on an affidavit filed which purported to exhibit the document headed “Facts” which had been admitted before Black DCJ which had been prepared by the officer in charge of the case and in addition, annexed the forty statements of the witnesses intended to be called. Mr Hamill, counsel for the applicant opposed the filing of this material before this court on the basis that it has not been shown why the material had not been placed before the District Court and there was no evidence that any of the material now sought to be adduced was any different.

29 Mr Hamill for the applicant relied on Boag (1994) 73 ACrimR 35 which was an application to withdraw a plea which case dealt with principles and the test to be applied as set out in the judgement of Hunt CJ at CL pages 37 and 38, with which the other members agree.

30 I note the following passage in Boag at p38:

“Such requirements, it seems to me, are perhaps of less importance where the appeal is from an interlocutory judgment or order rather than against a conviction: cf Martin v Abbott Australasia Pty Ltd [1981] 2 NSWLR 430 at 436-437; Wickstead v Brown (1992) 30 NSWLR 1 at 11. But the very least which must be provided before leave is granted to adduce additional evidence on the hearing of the appeal, in my view, is an acceptable explanation for the absence of that evidence at first instance”,

referring to the admissibility of further evidence.

31 It was submitted by Mr Hamill for the applicant that if court made an order vacating the order made in the District Court then the Crown could then run its application on the basis of proper admissibility before that court. It was submitted that this court should not receive a document setting out the statements of all the witnesses where a Crown Prosecutor specifically chose not to produce it in the District Court denying the applicant the opportunity of making submissions.

32 During the course of the hearing this court granted leave to adduce the additional evidence as set out in the affidavit of the respondent’s instructing solicitor. This court frequently admits fresh, additional or substituted evidence by leave as it is empowered to do under s5F of the Act. This is particularly so in an appeal from an interlocutory judgment but there should be an explanation for failure to call the evidence before the trial court. It had been held that a tactical decision of counsel is not an acceptable explanation (R v Boag).

33 This court was asked by counsel to reject the evidence of the statements the applicant tendered at a time when the applicant seeks to have an order made by the District Court set aside, on the basis that the statements were not before the District Court. It is inappropriate to suggest, as the applicant’s counsel did, that this Court should vacate the order and have the matter go back before the District Court. The parties are present before this court, the material is the same and an additional hearing is unnecessary.

34 These proceedings are interlocutory in nature. There is, therefore, no finality of any decision such as a conviction and there is no prejudice, as such, occasioned to the applicant other than the loss of the benefit of the agreement as the acceptance of the plea to the lesser charge.

35 Leaving aside the question of whether the statement of facts ought to have been admitted, the statement of facts clearly disclose facts that would support the more serious offence and it is clearly in the interests of justice that this court determine the issue by admitting the additional evidence on which the Crown seeks to rely. The evidence by way of affidavit relied on by the respondent sought to be admitted, should be admitted.

36 The evidence now being before this Court the grounds of appeal relating to the admissibility of the statement of facts is not now a matter on which this court has to decide. It is, however, clearly desirable on an application in the circumstances such as this application that the Crown place before a District Court evidence setting out the reasons for the acceptance of a plea and the material such as the statements upon which the Crown had relied.

37 Cumbersome though this procedure may be, there is clearly an interest in the community in the acceptance of pleas, after negotiations have taken place for the acceptance of a plea, unless the interests of justice otherwise dictate.

38 Although the statement of facts which was admitted did not purport to be proof of the matters contained within it and it purported to only outline the case for the Crown the seriousness of an issue such as the withdrawal of acceptance of a plea warrants proper evidence being placed before a court when a motion to allow withdrawal of that acceptance is to be heard. The evidence placed before Black DCJ was clearly insufficient.

39 As to the last ground of appeal, it was submitted that there was no identification parade although offered on behalf of the applicant and it was further submitted there were discrepancies between the descriptions of the various witnesses.

40 It seems to me that there will inevitably, particularly where there is alcohol in the early hours of the morning involved, in an intense situations such as described in the evidence now before the court, that there will be such variations. That is clearly, however, a matter for a jury. The issues of intoxication and intention will be, it is put, relevant in determining the intent of the applicant in the commission of the more serious charge. It seems to me this is clearly a matter for a jury to determine.

41 The submission of counsel for the applicant in submissions received subsequent to the hearing was the applicant’s position is that this court should vacate the order made by Black DCJ but that there is no basis to find that there are good and proper reasons for the court to grant leave to the Crown to withdraw its acceptance as all that has been established in the present case is a difference of opinion between Crown Prosecutors.

42 What has been placed before the court is evidence of the circumstances consequent upon the change of prosecutor and an explanation as to the processes of the office of the Director of Public Prosecutions as an explanation of the application before Black DCJ. What is further clear is that the evidence now placed before this court clearly establishes a most serious set of facts which ought clearly be the subject of the more serious charge and that the matter should go before a jury on the undertaking of the Crown not to adduce evidence as to the offering of the plea to the lesser charge nor any evidence relating to the circumstances leading up to that. The Crown should deal with its case as it was before the hearing of 20 August 2001.

43 It is clearly in the interests of justice that the more serious charge be determined by a jury applying the passage in BWM at p267 cited above. Justice Dunford in Beeby (1999) 104 A Crim R 142 with whom the other members of the court agreed, held that where a plea was accepted to a manifestly lesser charge, it would bring the system of justice into disrepute. In my view, on the serious nature of the evidence before this court, to allow the applicant to be sentenced to the lesser count would similarly endanger the reputation of the system of justice.

44 The facts of this case warrant, in the interests of justice, that the Crown have leave to withdraw its acceptance of the plea.

45 I would therefore make the following orders:-

( i) That leave to appeal be granted;
(ii) That the appeal be dismissed.

46 SMART AJ: The background is set out in the judgment of Dowd J with which I am in general agreement.

47 The application by the Crown to withdraw its acceptance of the plea of guilty to the alternative charge of maliciously inflicting grievous bodily harm in full satisfaction of an indictment containing that count and a count of maliciously inflicting grievous bodily harm with intent proceeded before Black DCJ on inadequate evidentiary materials. The Crown relied on the affidavit of the solicitor handling the matter in the Lismore office of the Director of Public Prosecutions explaining that there was a paper committal on 2 May 2000 when the accused did not attend and that he was subsequently arrested on a warrant on 5 May 2000. The affidavit traced the subsequent history. On 23 June 2000 the accused entered pleas of not guilty to an indictment prepared by Crown Prosecutor McPherson containing the charges earlier mentioned and four charges of assault on other victims.

48 After various mentions the matter was listed for trial on 20 August 2001 before Gibson DCJ. On that day Crown Prosecutor Bowers presented a fresh indictment containing the count of maliciously inflict grievous bodily harm with intent and the alternative count of maliciously inflicting grievous bodily harm with four offences of assault being placed on Form 1 to be taken into account. After the plea of guilty to the alternative count was accepted the sentence hearing was adjourned to 5 October 2001 to enable a full pre-sentence report to be available.

49 After several reports had been submitted the Deputy Director of Public Prosecutions directed that leave be sought to withdraw the Crown's acceptance of the plea of guilty to the charge of maliciously inflict grievous bodily harm in full satisfaction of the indictment. Obviously the Deputy Director took the view that Crown Prosecutor Bowers had erred in the course he had taken and that it was contrary to the public interest.

50 On the hearing of the leave application before Black DCJ the Crown tendered and the judge admitted, over objection, a statement of facts prepared by Det Sgt Taylor. Crown Prosecutor McPherson asserted that the statement of facts was accurate and reliable. It was a "distillation of witness statements." The Crown Prosecutor was content to rely on the statement of facts to demonstrate the basis of the application. In response to an inquiry from the judge the Crown Prosecutor stated that there were 39 statements plus some photographs, that he had the bundle of statements and that there was a substantial amount of reading.

51 The judge delivered a judgment holding that the statement of facts was admissible. He relied on the Crown assurance that the statement was reliable and appropriate to be relied upon in connection with the Crown application. The statement was admitted for the limited purpose of forming a judgment upon the contents of the notice of motion. The judge rejected the contentions of the accused that the statement was not accurate, not fair and that what should have been tendered was the basic material from which it was prepared, The accused was correct in his submission that the relevant primary material should have been before the judge. It may not have been necessary to place all 39 statements before the judge. What was needed was the material which showed the gravity of the accused's conduct towards the principal victim nominated in the indictment and the injuries he sustained.

52 It is apparent from reading the transcript of the hearing that the primary material was in court and that the accused had a copy of it. Both the judge and the Crown were concerned not to encumber the court with too much material. The judge was correct when he intimated that he was not going to permit the accused to cross-examine the authors of the thirty nine statements. The judge was concerned that the Crown's application should not take an undue amount of the court's time and become a general investigation into the strengths and weaknesses of the Crown case, that is, a mini trial.

53 On the other hand, the Crown was seeking to resile from its previous stance and agreement. It had to demonstrate that there was a good reason for the court to grant the leave sought.

54 Unless the accused consents the course followed by the judge in the present case is not one that should usually be followed.

55 On the hearing of the application for leave to appeal we heard the arguments in support of the application and those which would be advanced on the hearing of the appeal if leave were granted. The Crown sought to read the affidavit of Paul Alfred Clark of 5 April 2002 which annexed the Crown's Brief of Evidence comprising the statement of facts of 2 January 2000 prepared by Det Sgt Taylor, 33 statements of witnesses, 6 medical reports and one analyst's certificate.

56 This court determined to admit that evidence for reasons to be given later. I now set out my reasons for participating in that decision.

57 Section 5F(4) of the Criminal Appeal Act 1912 provides that an appeal against an interlocutory judgment or order shall be determined by this court on the evidence given in the proceedings to which the appeal relates, unless this court gives leave to adduce fresh, additional or substituted evidence. The section does not specify the tests or criterion which this court is to apply in granting or refusing leave.

58 The accused in his opposition to the grant of leave under s 5F(4) of the Act relied heavily on Boag (1994) 73 A Crim R 35 at 38 where Hunt CJ at CL (with whom McInerney and James JJ agreed), held that the requirement that leave be obtained must be interpreted as imposing some restriction upon the adducing of further evidence.

59 In Boag the accused sought and was refused leave to withdraw a plea of guilty by the primary judge. In that case there was a vigorous and unseemly confrontation in a hotel in which coarse abuse was uttered. When Boag was queried whether he was the one uttering the coarse abuse he was holding a schooner in his hand. He swung his arm around and jammed the glass into the victim's face, shattering the glass. The victim suffered severe injuries to his eyes. On his application before the primary judge Boag gave no evidence.

60 On his appeal to this court Boag sought to adduce additional evidence, namely, an affidavit from himself to the effect that he never intended to inflict grievous bodily harm upon the victim, he did not realise he was holding a glass in his hand at the time when he assaulted the victim, he never intended to use that glass in his hand as any sort of weapon, that although he did not know what he was pleading to, he "now" understood, that he should not have instructed his counsel to plead guilty because he never intended to inflict grievous bodily harm and he had given those instructions because he was overborne by fright and fear which affected his judgment and he had desired to have the matter concluded as quickly as possible and to obtain any benefits from a plea of guilty.

61 In this context it is easy to understand why Boag's affidavit was not admitted and the court rejected his appeal. Hunt CJ at CL emphasised the need for finality in the resolution of matters in the criminal courts. Hunt CJ at CL referred to the well-known cases of Gallagher (1986) 160 CLR 392, Mickelberg (1989) 167 CLR 259 and Lawless (1979) 142 CLR at 659. These were cases where it was sought to adduce further evidence after conviction. Generally, they establish that there is no miscarriage of justice in the failure to call evidence at trial if that evidence was available or with reasonable diligence could have been available. In Gallagher at 395 Gibbs CJ pointed out that this was not a universal and inflexible requirement as the strength of the evidence may in some cases be such as to justify interference with the verdict, even though that evidence might have been discovered before the trial.

62 The authorities acknowledge that the rules as to the admissibility of additional evidence have not become rigid or stereotyped and that there is a degree of flexibility with them. The ultimate issue is always whether there has been a miscarriage of justice.

63 Gibbs CJ observed in Gallagher at 395:

"The circumstances of cases may vary widely, and it is undesirable to fetter the power of courts of Criminal Appeal to remedy a miscarriage of justice.”

64 I respectfully agree with the statement of King CJ that '… appellate courts will always receive fresh evidence if it can be clearly shown that failure to receive such evidence might have the result that an unjust conviction or an unjust sentence is permitted to stand'.

65 Hunt CJ at CL in Boag at 38 acknowledged that the requirements which existed in relation to adducing additional evidence were perhaps of less importance where the appeal is from an interlocutory judgment or order. In practice, this court has generally adopted a more liberal approach in admitting additional evidence on appeals from interlocutory judgments or orders. This has primarily been designed to avoid miscarriages of justice. Interlocutory applications are often dealt with and have to be dealt with by the primary judge at short notice and in hurried circumstances. At that stage what is significant is on occasions, not fully appreciated. This court has been reluctant to deal with matters on inadequate materials, determine them and then see a further application being made on the further material to the primary judge and a further appeal. It has been better to resolve the disputes and not delay the criminal processes.

66 In Boag at 38 Hunt CJ at CL said:

"But the very least which must be provided before leave is granted to adduce additional evidence on the hearing of the appeal … is an acceptable explanation for the absence of that evidence at first instance…."

67 This statement of principle was correct if confined to the circumstances or kind of situation with which Hunt CJ at CL was dealing. The explanation for the absence of the evidence is often an important consideration. In Boag an acceptable explanation for the absence of the evidence at first instance was essential. The statement of Hunt CJ at CL does not, for example, touch upon the situation where the strength of the additional evidence is such as to either point to a different result or the same result where the original result had been obtained on insufficient or inadmissible materials. The statement of Hunt CJ at CL was not intended to derogate from the statements of principle of the High Court that the rules as to the admission of additional evidence are not rigid or inflexible and that the touchstone for the admission of such evidence is whether it is necessary to avoid a miscarriage of justice or the reasonable possibility of one. There is a strong public interest in those who commit serious crimes (or are believed on reasonable grounds to have done so) being charged correctly and tried.

68 In the present case while the materials placed before the judge were inadequate the additional material, despite the submissions of the accused to the contrary, points to the result reached by the judge as being the correct one.

69 The reasons for admitting Mr Clark's affidavit and the Crown's brief of evidence are as follows:

(a) The important public interest in ensuring that those who are alleged, on reasonable grounds, to have committed serious criminal offences are charged correctly, that is, in accordance with the gravity of the offence revealed by the Crown materials, prosecuted and tried. In the present case the accused did not even appear at the hearing of the committal proceedings.

(b) If the judge had not incorrectly acceded to the Crown's application to admit the unverified summary of Det Sgt Taylor and proceed on that basis it is probable that the Crown would have tendered the Crown brief of evidence, a copy of which the Crown had available in court and a copy of which the accused also had. After being given an opportunity to consider his position after the judge's ruling the accused did not seek to lead evidence. For example, he did not seek to tender the Crown brief and suggest that it did not support the statement prepared by Det Sgt Taylor.
(c) While finality in criminal proceedings is highly desirable and important and the Crown should have conducted its case correctly before the judge and placed the relevant evidentiary material before him, these considerations are outweighed by the matters of public interest earlier mentioned when an interlocutory judgment or order is under consideration.
(d) Because of the apparent strength of the Crown materials and the issues which they raise there would be a miscarriage of justice if leave were not granted to the Crown to rely on those materials. The resolution of the issues ought not to be tied to incorrect steps taken by the Crown.
(e) If this court were to reject the Crown brief of evidence and hold that the statement prepared by Det Sgt Taylor was inadmissible even on an interlocutory basis (as I think it was) or an insufficient basis on which to act in the circumstances this would involve unnecessary expense and delay. In such an eventuality this court would allow the appeal. That would result in the Crown making a further interlocutory application to the judge on fuller materials that is on the Crown brief of evidence. That would result in a further hearing before a primary judge and possibly a further application for leave to appeal. The accused complained that if the Crown brief of evidence were admitted he would lose the opportunity of having a primary judge look at such material and exercise his discretion and the further opportunity of having that decision reviewed on appeal.

70 The disadvantages complained of are more apparent than real. On our admitting the Crown brief of evidence the accused stated that he did not wish to lead or tender any evidence. The statement of Det Sgt Taylor covers in summary the important aspects of the Crown brief of evidence and the accused did not attend and seek to participate in the committal proceedings.

71 I return to the question of the strength of the Crown case. In his supplementary written submissions, filed consequent upon this court granting the Crown leave to rely on Mr Clark's affidavit and the attached Crown brief of evidence, the accused pointed to issues of identification, intoxication, intention and causation. Reliance was also placed on the different observations made by different witnesses. These are issues to be resolved by the jury. However, the Crown case does appear to be one of some strength. The allegations made by the Crown and the severe injuries suffered by the principal victim are far too serious to justify the Crown proceeding on a charge of maliciously inflict grievous bodily harm.

72 Because error has been established in the way the court below dealt with the matter I would grant leave to appeal. However, as the decision made was correct I would dismiss the appeal.

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Last Modified: 03/13/2003