Rankins v The State of Western Australia

[2018] WASCA 138

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   RANKINS -v- THE STATE OF WESTERN AUSTRALIA [2018] WASCA 138

CORAM:   BUSS P

MAZZA JA

HALL J

HEARD:   23 FEBRUARY 2018

DATE OF FINAL

SUBMISSIONS          23 JULY 2018

DELIVERED          :   7 AUGUST 2018

FILE NO/S:   CACR 96 of 2017

BETWEEN:   DENNIS LLOYD RANKINS

Appellant

AND

THE STATE OF WESTERN AUSTRALIA

Respondent

ON APPEAL FROM:

Jurisdiction              :   SUPREME COURT OF WESTERN AUSTRALIA

Coram:   JENKINS J

File Number            :   INS 155 of 2015

Catchwords:

Criminal law - Appeal against conviction - Appellant convicted after trial of armed robbery - Whether prejudicial material erroneously introduced and placed before the jury resulted in a miscarriage of justice - Whether no substantial miscarriage of justice was occasioned by the introduction of the prejudicial material - Whether evidence sought to be relied on in the appeal demonstrated that a miscarriage of justice occurred at the trial - Whether the verdict of guilty on which the conviction is based should be set aside because, having regard to the evidence, it is unreasonable or cannot be supported

Legislation:

Criminal Appeals Act 2004 (WA), s 30, s 39, s 40(1)(e)
Criminal Code (WA), s 392(c)

Result:

Appellant's application in the appeal dated 12 July 2017, for leave to adduce additional evidence in the appeal, dismissed
Leave to appeal on ground 1 granted
Leave to appeal on grounds 2 and 3 refused
Application for an extension of time to appeal dismissed
Appeal dismissed

Category:    B

Representation:

Counsel:

Appellant	:	Mr S B Watters
Respondent	:	Mr B M Murray

Solicitors:

Appellant	:	Patti Chong Lawyer
Respondent	:	Director of Public Prosecutions (WA)

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

Beamish v The Queen [2005] WASCA 62

CDJ v VAJ [1998] HCA 67; (1998) 197 CLR 172

Clarke v The State of Western Australia [2018] WASCA 14

Cramphorn v Bailey [2014] WASCA 60

Crease v Barnett (1835) 1 Cr M&R 919

Dawson v The Queen (1961) 106 CLR 1

DPJB v The State of Western Australia [2010] WASCA 12

Dupas v The Queen [2010] HCA 20; (2010) 241 CLR 237

Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193

Filippou v The Queen [2015] HCA 29; (2015) 256 CLR 47

Gallagher v The Queen [1986] HCA 26; (1986) 160 CLR 392

Gilbert v The Queen [2000] HCA 15; (2000) 201 CLR 414

Hall v Braybrook (1955) 95 CLR 620

Huggins v The State of Western Australia [2018] WASCA 61

King v The Queen [2012] HCA 24; (2012) 245 CLR 588

Lane v The Queen [2018] HCA 28

Lawless v The Queen [1979] HCA 49; (1979) 142 CLR 659

Mack v The State of Western Australia [2014] WASCA 207

Mickelberg v The Queen [1989] HCA 35; (1989) 167 CLR 259

Nudd v The Queen [2006] HCA 9; (2006) 80 ALJR 614

OKS v The State of Western Australia [2018] WASCA 48

Perara-Cathcart v The Queen [2017] HCA 9; (2017) 91 ALJR 411

Phillips v The Queen [1985] HCA 79; (1985) 159 CLR 45

Rinaldi v The State of Western Australia [2007] WASCA 53

Seymour v The Queen [2006] NSWCCA 206; (2006) 162 A Crim R 576

Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300

Table of Contents

Buss P's reasons........................................................................................................................ 5

Overview of the State's case at trial

Overview of the appellant's case at the trial

Ground 1

Ground 2

Ground 3

Conclusion

Mazza JA's reasons................................................................................................................. 34

Hall J's reasons........................................................................................................................ 37

BUSS P:

1. The appellant has applied for an extension of time within which to appeal and for leave to appeal against conviction. 

2. On 25 July 2016, the appellant was convicted, after a trial in the Supreme Court before Jenkins J and a jury, of one count of armed robbery, contrary to s 392(c) of the Criminal Code (WA).

3. The appellant relies on three grounds of appeal.  Ground 1 alleges, in effect, that prejudicial material, namely a reference to a burglary, was erroneously placed before the jury when an electronic record of interview between police and the appellant was played at the trial, and as a result a miscarriage of justice occurred.  Ground 2 alleges, in effect, that additional evidence, not adduced at the trial, demonstrates that a miscarriage of justice has occurred.  Ground 3 alleges, in effect, that the verdict of guilty on which the conviction is based should be set aside because, having regard to the evidence, it is unreasonable or cannot be supported.

4. The last date for appealing against conviction was 16 August 2016.  The appellant did not file his appeal notice until 18 April 2017.  He has filed an affidavit sworn by him on 23 March 2017 in support of his application for an extension of time within which to appeal.

5. On 19 July 2017, Mazza JA referred the application for an extension of time and the application for leave to appeal to the hearing of the appeal.

6. I would refuse to grant an extension of time.  The appeal should be dismissed.  My reasons are as follows.

Overview of the State's case at trial

1. The State's case at trial was that shortly before 1.00 pm on Wednesday, 8 April 2015, the appellant was in Strickland Street, Denmark.  On several occasions he walked past the National Australia Bank branch at 59 Strickland Street.  At the time the appellant was wearing a black 'Everlast' hooded jacket with the hood on his head, a beanie and gloves.  A tomahawk or hatchet (the tomahawk) was concealed inside his clothing.

2. At about 1.00 pm on that date, the appellant pulled a black mask over the lower half of his face (up to his nose) and entered the bank.  At the time a bank employee, Simone Freitag, and another colleague were working behind the front counter in the teller area.  Other bank employees and customers were in other offices at the branch.  The appellant approached Ms Freitag and produced the tomahawk from inside his clothing.  He said, 'give me all the money'. 

3. Fearing for their safety, Ms Freitag and her colleague fled from the front counter and activated an alarm.  The appellant ran around an adjacent partition to the security door leading into the teller area.  He attempted, with the use of the tomahawk, to force the lock on the security door.

4. The appellant gained access to the teller area and stole cash from two open cash draws at the teller positions.  The total amount stolen was about $6,800.

5. The appellant ran from the bank and fled down a laneway adjacent to the rear of the bank.  As he ran across South Coast Highway, the appellant dropped $550.  This amount was recovered by a member of the public and returned to the bank.  The appellant got into a waiting car driven by his associates and left the area.

6. The car carrying the appellant stopped a short distance away on the Denmark to Mount Barker road.  The appellant alighted and threw his jacket, beanie, facemask, gloves and the tomahawk into the water under the bridge at the Quickup River crossing.  He then travelled in the car via Mount Barker to Albany where he used the stolen money to purchase clothing, sporting goods and illicit drugs.

7. On 9 April 2015, police arrested the appellant as a suspect in respect of the armed robbery and other offences.  He participated in an electronically recorded interview with police.  During the interview the appellant denied having committed the armed robbery.

Overview of the appellant's case at the trial

1. At the trial, defence counsel made an opening statement.  He told the jury that the State would be unable to satisfy them beyond reasonable doubt that the appellant was the person who had committed the armed robbery.

2. The appellant gave evidence under affirmation at the trial.  He denied having committed the offence.  The appellant admitted having told some lies to the police in his electronically recorded interview.  He explained in his evidence that he had lied because he was tired; to some extent, he was affected by drugs or by not having taken drugs; and he did not want to get other people (in particular, Narelle Ninyette and Wade Ninyette) into trouble.

Ground 1

1. Counsel for the appellant submitted that prejudicial material was erroneously placed before the jury when the electronic record of interview was played at the trial.  The interview had not been properly edited.  It was submitted that the admission of the prejudicial material occasioned a miscarriage of justice.

2. Counsel for the State accepted that the interview had not been properly edited, but asserted that no miscarriage of justice, alternatively no substantial miscarriage of justice, had occurred.

3. The impugned passage in the interview reads:

   SGT MACKAY:   … I'm sort of, trying to understand why you'd hand yourself in if at that point you actually hadn't done anything.  I appreciate we've spoken to you previously about a, a burglary offence.  Um, was it that matter that you were coming to hand yourself in for or has something happened in Walpole that you just wanted to get out of Walpole?

   RANKINS:  Oh, I was, I was going to end my relationship.

   SGT MACKAY:  Okay.  All right.  That makes sense.

   RANKINS:  'Cause my conditions are to stay at Walpole.

   SGT MACKAY:  Okay (EROI 26).  (emphasis added)

4. The prejudicial material in question is the police officer's statement that 'I appreciate we've spoken to you previously about … a burglary offence'.

5. At the trial, while the electronic record of interview was being played, in the presence of the jury, the trial judge stopped the recording shortly after the impugned passage and adjourned the proceedings (ts 710 ‑ 711).  After the adjournment a discussion ensued between her Honour, the prosecutor and defence counsel, in the absence of the jury, in relation to the police officer's statement about the burglary offence and the failure properly to edit the interview (ts 711 ‑ 724).

6. The first part of the discussion between the trial judge, the prosecutor and defence counsel (in the absence of the jury) began at 3.33 pm on 20 July 2016 and concluded at 3.44 pm on that day.  Her Honour observed, with the concurrence of defence counsel, that the audio of the electronic recording '[was not] very clear' and 'there might [have been] some portions of the interview that the jury [have not] picked up' (ts 714).  It was agreed that the trial should be adjourned for the day and should resume at 9.30 am the next day. 

7. At 3.44 pm on 20 July 2016, her Honour told the jury, relevantly:

   We will adjourn now until 9.30 am tomorrow morning … [Y]ou will have noticed in the playing of the interview that there were times where the recording jumped.  Can I explain to you the reason why that is.  It is the standard practice in respect of all of these police interviews that irrelevant and unnecessarily repetitious material is removed from the interviews.

   You have no idea how long some of these interviews can be.  They traverse all sorts of irrelevant chit chat about things - we would be here for five hours sometimes if we were to listen to the whole of the interviews.  So, with the consent of both of the parties, the interviews are edited.  I can assure you that relevant material is not edited because the editing is done with the consent of both parties and with the approval of the court.

   So you get to hear the relevant material but the jumping is because irrelevant or repetitious material is removed from the interview (ts 715 ‑ 716).

8. The second part of the discussion between the trial judge, the prosecutor and defence counsel (in the absence of the jury) began at 9.31 am on 21 July 2016 and concluded at 9.43 am on that day.  The prosecutor informed her Honour that the electronic record of interview had been edited overnight and that the impugned passage referring to the burglary had been deleted.  The prosecutor also told her Honour that she had agreed with defence counsel that the recording should be replayed to the jury from a point before the impugned passage (which had been deleted overnight) so that if any members of the jury thought they had heard the word 'burglary' the previous afternoon, they would 'think they were wrong' (ts 721).  Her Honour asked defence counsel what, if anything, he would like her Honour to say to the jury about the interview as played to the jury the previous day.  Defence counsel replied:

   In relation to the video my thoughts are, your Honour, that your Honour should simply say to the jury that … there [were] some matters which required editing which, due to some extraneous reason were not edited.  It has now been edited out.  I'm trying to think of how to say this without drawing attention to anything.  But, the editing process has now been formalised in some way, so now we're ready to proceed.  Something along those lines. 

   I obviously don't want to draw any attention to anything that the jury might have heard yesterday.  But if that part of the video could be re‑played as edited, then I'm hoping that if the jury did hear anything they hear it re-played.  That will sort of cancel it out.  You can't ever tell, of course (ts 721).

9. Defence counsel agreed with her Honour that the correct approach was for her Honour to tell the jury that there had been 'some editing' overnight and that the jury were to have regard 'to the interview as it now is, and as will now be played to them' (ts 722).

10. Defence counsel did not make an application to the trial judge for the discharge of the jury.

11. At 9.43 am on 21 July 2016, her Honour told the jury:

    Members of the jury, there's a couple of things I have to explain to you.  Now, [the prosecutor] has advised me of two things.  The first is that she was wrong about how long the interview is and it's, in fact, longer than she anticipated.  Secondly, counsel have advised me that there were some irrelevant matters in the interview, so it has been further edited. 

    Obviously, that will be some comfort to you in that it won't be as long as it would have been, but what that means is that it's important that I say to you that you are to have regard to the interview as you hear it and, obviously, if there has been any editing about matters you've already heard, you are to have regard to what's in the interview now as opposed to what you may have heard yesterday. 

    So we are now … going to continue playing the interview and what I have required is that we go back over some of what we've already heard, and I apologise for that, but it's just to ensure that you remember … where we're at in the interview, so to speak, and that you can pick up easily, then, the material as you hear it.  And I believe we've now got it cued and we can start playing it (ts 724).

12. The electronic record of interview (with the impugned passage deleted) was then played to the jury and the trial continued.

13. No comment about the impugned passage or the burglary was made to the jury by the trial judge, the prosecutor or defence counsel or by any witness at any stage of the trial.

14. In Hall v Braybrook,[1] Dixon CJ said that the general rule that a tribunal of fact responsible for determining the guilt or innocence of an accused should not be informed of his or her criminal record, bad character or antecedents before the tribunal pronounces a finding of guilt has become a principle which pervades the law governing the conduct of criminal proceedings.  His Honour added that all concerned in the criminal law are highly sensitive to any infringement of this principle because of 'the prejudice to the issue of guilt which is thought inevitably to ensue' (628).  Also see, to similar effect, the observations of Fullagar J (648).  And see, too, Dawson v The Queen,[2] Phillips v The Queen[3] and the discussion by Hunt AJA (Simpson and Rothman JJ agreeing) in Seymour v The Queen.[4] 

    [1] Hall v Braybrook (1955) 95 CLR 620, 627 ‑ 628.

    [2] Dawson v The Queen (1961) 106 CLR 1, 16 (Dixon CJ).

    [3] Phillips v The Queen [1985] HCA 79; (1985) 159 CLR 45, 50 - 51, 55 (Mason, Wilson, Brennan and Dawson JJ), 59 - 60 (Deane J).

    [4] Seymour v The Queen [2006] NSWCCA 206; (2006) 162 A Crim R 576 [46] - [48].

15. Section 30(1) of the Criminal Appeals Act 2004 (WA) provides that s 30 applies in the case of an appeal against a conviction by an offender.

16. By s 30(2), unless under s 30(3) this court allows the appeal, it must dismiss the appeal.

17. Section 30(3) provides:

    The Court of Appeal must allow the appeal if in its opinion -

    (a)the verdict of guilty on which the conviction is based should be set aside because, having regard to the evidence, it is unreasonable or cannot be supported; or

    (b)the conviction should be set aside because of a wrong decision on a question of law by the judge; or

    (c)there was a miscarriage of justice.

18. By s 30(4), despite s 30(3), even if a ground of appeal might be decided in favour of the offender, this court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.

19. Section 30(3) and s 30(4) must, of course, be construed by reference to the statutory text (rather than secondary sources or materials) having regard to the historical context of the common form of criminal appeals statute. See Weiss v The Queen.[5]

    [5] Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 [12] - [31] (Gleeson CJ, Gummow, Kirby, Hayne, Callinan & Heydon JJ).

20. The statutory direction in s 30(3) that this court must allow the appeal is conditional upon this court forming the opinion specified in par (a), par (b) or par (c).

21. As to s 30(3)(c), the expression 'miscarriage of justice', having regard to its historical context, refers to 'any departure from trial according to law, regardless of the nature or importance of that departure': Weiss [18] (original emphasis). See also King v The Queen.[6] Section 30(3)(c) covers cases where, as a consequence of irregularity or otherwise, an accused has not received a trial according to law or has not received a fair trial. See Weiss [45]; Filippou v The Queen.[7] When the expression 'miscarriage of justice' in s 30(3)(c) is understood in that manner, the word 'substantial', in the context of the expression 'substantial miscarriage of justice' in the proviso in s 30(4), has work to do. See Weiss [18]; King [53].

    [6] King v The Queen [2012] HCA 24; (2012) 245 CLR 588 [53] (French CJ, Crennan & Kiefel JJ).

    [7] Filippou v The Queen [2015] HCA 29; (2015) 256 CLR 47 [14] (French CJ, Bell, Keane & Nettle JJ).

22. The proviso in s 30(4) applies to par (a), par (b) and par (c) of s 30(3). See Filippou [15].

23. By s 30(3) read with s 30(4), two questions arise for determination. First, whether the appellate court '[is of the] opinion' specified in par (a), par (b) or par (c) of s 30(3) and, secondly, whether the court 'considers that no substantial miscarriage of justice has occurred' within s 30(4). See Perara-Cathcart v The Queen.[8] 

    [8] Perara-Cathcart v The Queen [2017] HCA 9; (2017) 91 ALJR 411 [38] - [40], [48] (Kiefel, Bell & Keane JJ).

24. The principles governing the application of the proviso in s 30(4) are set out in my reasons (Beech JA & Pritchard J relevantly agreeing) in OKS v The State of Western Australia.[9]

    [9] OKS v The State of Western Australia [2018] WASCA 48 [83] - [109].

25. Since OKS was decided, the High Court has delivered judgment in Lane v The Queen.[10]  In Lane, Kiefel CJ, Bell, Keane and Edelman JJ said:

    (a)It is established that an error at trial may preclude the application of the proviso in the sense of precluding a conclusion that there was no substantial miscarriage of justice, 'irrespective of the appellate court's view as to whether the evidence properly admitted at trial proved the appellant's guilt beyond reasonable doubt' [38]. That is, 'some errors will establish a substantial miscarriage of justice even if the appellate court considers that conviction was inevitable' [38].

    (b)In deciding whether the trial process miscarried in a way that, without more, will result in a substantial miscarriage of justice, 'one cannot leap from the evidence to the verdict of the jury, ignoring the Crown's case and the directions of the trial judge' [41]. How the judge left the case to the jury 'is apt to have a critical bearing on the performance by the jury of its task' [41].

    (c)The proviso permits an appellate court to dismiss an appeal from a judgment of the trial judge which gives effect to the jury's verdict.  However:

    [T]he proviso does not permit the appellate court to exercise the function of the jury. The language of the proviso cannot be understood as if it were to the effect that an appeal in which the possibility that the jury has not performed its function … may be dismissed on the basis that the appellate court is satisfied of the guilt of the accused [48].

    [10] Lane v The Queen [2018] HCA 28.

1. In the present case, I am of the opinion, for the following reasons, that the police officer's statement in the interview with the appellant that 'I appreciate we've spoken to you previously about … a burglary offence', which was put before the jury, occasioned a miscarriage of justice, within s 30(3)(c) of the Criminal Appeals Act. 

2. First, whether the admission into evidence of the police officer's statement constituted a departure from trial according to law, and therefore a miscarriage of justice within s 30(3)(c) of the Criminal Appeals Act, is to be determined by reference to the nature and quality of the statement; in particular, whether it was admissible at law and whether it was prejudicial to the appellant. 

3. Secondly, the determination is to be made as at the time the statement was adduced, and not by reference to the actions taken subsequently at the trial to obviate or minimise any prejudice to the appellant. The actions taken subsequently at the trial are relevant to whether this court considers that no substantial miscarriage of justice has occurred, within s 30(4) of the Criminal Appeals Act.

4. Thirdly, the impugned passage was inadmissible.  It connoted that the police had suspected that the appellant had previously committed a burglary and that he may therefore be a person of bad character. 

5. Fourthly, the impugned passage was admitted inadvertently as a result of improper editing of the electronic record of interview.  The appellant's competent and very experienced criminal defence counsel did not fail to object to its admissibility for a forensic or tactical reason. 

6. Fifthly, the mere possibility that the audio of the electronic recording '[was not] very clear' and 'there might [have been] some portions of the interview that the jury [have not] picked up' (ts 714) does not advance the State's case on the issue of miscarriage.  There remained a reasonable risk that at least some members of the jury may have heard the impugned passage. 

7. Sixthly, in the context of the facts in issue at the trial, the admission into evidence of the police officer's inadmissible statement was prejudicial to the appellant.  The prejudice was not immaterial or insignificant.  The admission of the statement constituted a departure from trial according to law, and therefore a miscarriage of justice.

8. I am satisfied, however, that no substantial miscarriage of justice, within s 30(4) of the Criminal Appeals Act, occurred as a result of the admission into evidence of the police officer's statement and that, accordingly, the appellant's appeal on the basis of ground 1 should be dismissed.  The reasons for my satisfaction are as follows. 

9. First, the reference to the police having spoken to the appellant previously about a burglary offence was brief.  Also, the reference did not occur shortly before the jury retired to consider their verdict.  The impugned passage was played on 20 July 2016 at about 3.15 pm and the jury retired to consider their verdict on 22 July 2016 at 3.04 pm.  The jury heard a substantial amount of evidence after the reference to the burglary. 

10. Secondly, the trial judge dealt with the irregularity appropriately by her explanations and directions to the jury and by ordering that the recording be replayed to the jury from a point before the impugned passage, after it had been deleted on the night of 20 July 2016 pursuant to the agreement between the prosecutor and defence counsel. 

11. Thirdly, the appellant's competent and very experienced criminal defence counsel, who was absorbed in the atmosphere of the trial, expressly agreed with her Honour's explanations and directions to the jury and did not make an application to her Honour for the discharge of the jury. 

12. Fourthly, a criminal trial on indictment proceeds on the assumption that, as a general rule, the jurors are true to their oath or affirmation and they understand and obey the trial judge's directions.  See Gilbert v The Queen;[11] Dupas v The Queen.[12]  There is no reason to suppose that the jury did not follow, or might not have followed, her Honour's directions.  There is no reasonable possibility, having regard to her Honour's explanations and directions and the replaying of the recording after the impugned passage had been deleted, that any member of the jury who had heard the impugned passage would have taken the police officer's statement into account in evaluating the credibility or reliability of the appellant's evidence at the trial or in considering whether the State had proved its case against the appellant beyond reasonable doubt.

    [11] Gilbert v The Queen [2000] HCA 15; (2000) 201 CLR 414 [13] (Gleeson CJ & Gummow J), [31] (McHugh J).

    [12] Dupas v The Queen [2010] HCA 20; (2010) 241 CLR 237 [29] (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel & Bell JJ).

13. Fifthly, the appellant gave evidence at the trial of conduct by him which the jury may reasonably have regarded as discreditable.  At the time of the relevant events, the appellant was taking Suboxone.  This medication had been prescribed for him because he had been a heroin addict (ts 760).  On 9 April 2015, the appellant had 60 strips of Suboxone which he had accumulated and buried in Albany (ts 775, 783 ‑ 784).  The appellant intended that the Suboxone strips should be smuggled to a relative, who was in prison, so that the medication could be sold and the appellant would receive some of the proceeds.  He had engaged in similar conduct on two previous occasions (ts 787, 789, 791).  The appellant gave evidence that he was on bail in connection with another charged offence when the armed robbery was committed, and he believed that he may have been in breach of a curfew requirement (ts 771, 783).  When he was in Albany on 8 April 2015, the appellant purchased a 'half weight' of methylamphetamine for $400 and supplied it to Wade Ninyette, Narelle Ninyette and Robert Ninyette (ts 795). 

14. Sixthly, in the circumstances, the appellant's trial was not unfair as a result of the admission into evidence of the police officer's statement.

Ground 2

1. In Clarke v The State of Western Australia,[13] I summarised (Mazza JA agreeing) the principles governing the admission on appeal of additional evidence not adduced at the trial.  My summary was reproduced by this court in Huggins v The State of Western Australia.[14]  The reasons in Clarke are currently suppressed.  I will repeat the relevant part of what I wrote in that case.

   [13] Clarke v The State of Western Australia [2018] WASCA 14 [231] ‑ [246].

   [14] Huggins v The State of Western Australia [2018] WASCA 61 [384] ‑ [397] (Buss P, Mazza & Beech JJA).

2. Part 4 of the Criminal Appeals Act is headed 'Provisions applicable to any appeal' and comprises s 36 to s 45.

3. Section 39(1) provides that an appeal court must decide an appeal on the evidence and material that were before the lower court. By s 39(3), however, s 39(1) does not affect the power of an appeal court to admit evidence pursuant to s 40.

4. Section 40(1) provides, relevantly:

   For the purposes of dealing with an appeal, an appeal court may do any or all of the following ‑ 

   (a)order the production of any record or thing, whether or not an exhibit, that is or may be relevant to the appeal;

   (b)order a witness who would have been compellable at the trial in the lower court, whether or not called at the trial, to attend and be examined before the appeal court;

   …

   (d)subject to the Evidence Act 1906 section 9, admit the evidence of a witness, including a convicted appellant, who is a competent but not compellable witness;

   (e)admit any other evidence.

5. The discretionary power conferred on this court by s 40(1)(e) to admit 'any other evidence', for the purposes of dealing with an appeal, is not expressly limited or confined. However, the subject matter, scope and purpose of the relevant provisions in the Criminal Appeals Act, and the issues to be resolved in each appeal, will indicate those considerations which are relevant or irrelevant to the exercise of the power.[15] The power in s 40(1)(e) must be exercised, in the context of an appeal against conviction pursuant to s 30, having regard to, amongst other things, the relevance of the evidence sought to be adduced in evaluating whether, within s 30(3), this court is of the opinion that the verdict of guilty on which the conviction is based should be set aside because, having regard to the evidence, it is unreasonable or cannot be supported (s 30(3)(a)); or the conviction should be set aside because of a wrong decision on a question of law by the judge (s 30(3)(b)); or there was a miscarriage of justice (s 30(3)(c)).

   [15] See, generally, CDJ v VAJ [1998] HCA 67; (1998) 197 CLR 172 [108].

6. At common law, there is a well-established distinction between fresh evidence, on the one hand, and new evidence, on the other.  Fresh evidence is evidence that either did not exist as at the date of the trial or could not, with reasonable diligence, have been obtained or discovered for use at the trial.  New evidence is evidence that could, with reasonable diligence, have been obtained or discovered for use at the trial.[16] 

   [16] Beamish v The Queen [2005] WASCA 62 [9].

7. The courts have traditionally treated appeals (including appeals against criminal convictions) based on fresh evidence differently from appeals (including appeals against criminal convictions) based on new evidence.

8. Where an accused has been convicted, an appellate court will not allow an appeal, on the basis of new as distinct from fresh evidence, unless the new evidence establishes that the appellant is innocent or the new evidence raises such a doubt that the court is satisfied that the appellant should not have been convicted.[17] 

   [17] Lawless v The Queen [1979] HCA 49; (1979) 142 CLR 659, 675 - 676; DPJB v The State of Western Australia [2010] WASCA 12 [66].

9. Where an accused has been convicted, an appellate court will not allow an appeal, on the basis of fresh as distinct from new evidence, unless there is a 'significant possibility' that, on the basis of all of the admissible evidence (that is, the fresh evidence and the evidence given at trial), a jury, acting reasonably, would have acquitted the appellant.[18]  The fresh evidence must be relevant.  It must also be credible in the sense that a reasonable jury could accept it as true (but it is not necessary that the appellate court should think it likely that a reasonable jury would believe it) or be sufficiently cogent and plausible to lead a reasonable jury to have a reasonable doubt as to the appellant's guilt (although the reasonable jury might not necessarily prefer it to other evidence with which it is inconsistent).[19]  

   [18] Gallagher v The Queen [1986] HCA 26; (1986) 160 CLR 392, 399, 402; Mickelberg v The Queen [1989] HCA 35; (1989) 167 CLR 259, 273, 301 - 302.

   [19] Lawless (676 - 677); Gallagher (397), (401 ‑ 403, 410); Mickelberg (302).

10. Ordinarily, there will be no miscarriage of justice at a criminal trial unless:

    (a)in the case of an appeal against conviction based on new evidence, the traditional test for allowing an appeal against conviction, on the basis of new evidence, has been satisfied; and

    (b)in the case of an appeal against conviction based on fresh evidence, the traditional test for allowing an appeal against conviction, on the basis of fresh evidence, has been satisfied.

11. Although it is highly unlikely that Parliament intended that s 40(1)(e) should be construed as obliterating the distinction developed in the common law courts between the admission of fresh evidence and the admission of new evidence on appeal, the power in s 40(1)(e) is broader than the principles applicable in common law proceedings.[20]  

    [20] See, generally, CDJ [108], [111].

12. As I have indicated, an appellant's prospects of establishing that a miscarriage of justice, within s 30(3)(c), has occurred will be relevant in determining whether the court should exercise its power to admit additional evidence (whether new or fresh) in the appeal pursuant to s 40(1)(e).

13. In Rinaldi v The State of Western Australia,[21] Steytler P (Wheeler & Pullin JJA agreeing) said, in relation to s 40(1)(a), (b), (d) and (e):

    While these provisions afford the Court a discretion, which is not expressed to be limited in any way, to do any of the things provided for, it is most improbable that the legislature intended that they 'should be construed in a way that would have the practical effect of obliterating the distinction between original and appellate jurisdiction':  CDJ v VAJ (1998) 197 CLR 172 at [111] per McHugh, Gummow and Callinan JJ (dealing with the provisions of s 93A(2) of the Family Law Act 1975 (Cth)) and see also De La Espriella-Velasco [[2006] WASCA 31; (2006) 31 WAR 291] at [150] per Pullin JA. The common law principles have, of course, been developed over many years in order to meet the ends of justice and the considerations giving rise to them will plainly be material to the exercise of the statutory discretion, which must be exercised judicially. While the common law principles touching upon the distinction between new and fresh evidence are not necessarily determinative of the manner of exercise of the statutory discretion, the considerations giving rise to those principles will ordinarily be weighty, so much so that it will be a rare case in which an exercise of the statutory discretion produces a different outcome to that produced by application of the common law principles [84].

    [21] Rinaldi v The State of Western Australia [2007] WASCA 53.

14. As Steytler P explained in Rinaldi, although the common law principles concerning new and fresh evidence are not necessarily determinative of the manner in which the discretion conferred by s 40(1)(e) will be exercised, those principles will, ordinarily, be weighty, and it will be a rare case in which an exercise of the statutory discretion produces an outcome different from that produced by the application of the common law principles. Steytler P's observations in Rinaldi have been referred to with approval in numerous decisions of this court.[22]  

    [22] See, for example, DPJB [64]; Cramphorn v Bailey [2014] WASCA 60 [61].

15. In my opinion, in the case of an appeal against conviction based on new or fresh evidence, the common law principles concerning new and fresh evidence are relevant to the exercise of the discretion under s 40(1)(e) and the determination of whether there was a miscarriage of justice at the trial within s 30(3)(c), but the exercise of the discretion and the determination of whether there was a miscarriage of justice do not involve the rigid application of those principles. As McHugh, Gummow and Callinan JJ noted in CDJ, in the context of civil proceedings, the common law courts have always reserved to themselves 'an exceptional power to set aside a verdict on the ground of further evidence where the interests of justice require it' [105]. The power under s 40(1)(e) is to be exercised, and whether there was a miscarriage of justice within s 30(3)(c) is to be determined, having regard to, amongst other relevant considerations, the overarching principle of the proper functioning and the protection of the integrity of the criminal justice system in the particular case. The interests of justice in that context include not only the interests of an accused who has been convicted, but also the public interest as represented by the State.

16. In the present case, the appellant filed an application in the appeal dated 12 July 2017 for leave to adduce additional evidence in the appeal, pursuant to s 40(1)(e) of the Criminal Appeals Act.  The evidence comprises:

    (a)a forensic biology report dated 14 December 2015 of Penny Cooper, a forensic scientist, in relation to items she had examined in connection with the charge against the appellant;

    (b)a forensic biology addendum report dated 19 January 2016 of Ms Cooper in relation to items she had examined in connection with the charge against the appellant; and

    (c)a forensic disclosure report dated 9 March 2016 compiled by Senior Constable Gibson in connection with the armed robbery allegedly committed by the appellant.

17. All of those reports were part of the State brief that was served on the appellant prior to his trial.  Indeed, the forensic biology addendum report was tendered by agreement at the trial and became exhibit 6.1.

18. The appellant's application in relation to the forensic biology addendum report is misconceived and unnecessary.  That report was before the jury. 

19. The other reports are neither new nor fresh. They were in the appellant's possession prior to his trial. Plainly, that is a highly relevant factor in the exercise of this court's discretion under s 40(1)(e) of the Criminal Appeals Act.

20. It was submitted on behalf of the appellant that the reports 'assist in showing that [the appellant] was not the offender as there was no fingerprint or DNA evidence identifying the appellant as the offender, despite the fact that the offender can be seen on the CCTV footage … opening the inner door of the bank to the teller area with only one glove on'.  It was also submitted that, according to the forensic disclosure report, a fingerprint found on the inner edge of that door was unidentified.

21. I am satisfied that the reports do not, either individually or collectively, establish that the appellant is innocent or raise such a doubt as to persuade the court that the appellant should not have been convicted.  No miscarriage of justice has occurred.  My reasons are as follows.

22. First, the reports merely show that the appellant's fingerprints and DNA were not found in the bank or on a number of items (in particular, a tomahawk and clothing) recovered by police from under the bridge at the Quickup River crossing, which were apparently connected with the armed robbery.  The tomahawk was found in the water on 15 April 2015 (ts 678 ‑ 681, 698; exhibit 10.5).  The clothing was found in the water on 10 April 2015 (ts 642).  All of the items recovered were tested forensically.  No fingerprint or DNA evidence was recovered (ts 683).  The crime scene was tested forensically.  No fingerprint or DNA evidence implicating the appellant was located (ts 670, 683, 709).

23. Secondly, the forensic biology report (which was in the appellant's possession prior to trial but was not tendered at the trial) does not contain any material that was not in the forensic biology addendum report (which was tendered by agreement at the trial).

24. Thirdly, the forensic disclosure report states that two latent fingerprints were found on the inner edge of the secure entry door to the teller area inside the bank.  One of those fingerprints was unidentified and the other had 'insufficient ridge detail for comparison'.  Accordingly, the report does not establish that the latent fingerprints were not those of the appellant.  In any event, the report does not establish that the latent fingerprints resulted from the offender touching the door.  Although the forensic disclosure report does not implicate the appellant, it does not 'assist in showing that [the appellant] was not the offender', as submitted on behalf of the appellant.

25. Fourthly, the State's case against the appellant at the trial was based, to a significant extent, on circumstantial evidence.  The trial judge directed the jury in her summing up that there did not appear to be any reasonable theory, based on the evidence, that anyone other than Wade Ninyette or the appellant had committed the armed robbery (ts 844).  Defence counsel made similar comments in his closing address (ts 23).  There was no evidence that Wade Ninyette's DNA or fingerprints were found at the crime scene or on any of the items which the police recovered from the water under the bridge at Quickup River crossing. 

26. Fifthly, the appellant's competent and very experienced defence counsel did not refer, in his closing address, to the absence of fingerprint and DNA evidence.  That indicates that defence counsel, who was absorbed in the atmosphere of the trial, regarded those circumstances as neutral.  In any event, the facts in question were before the jury.

1. Ground 2 is without merit.  The appellant's application in the appeal dated 12 July 2017, for leave to adduce additional evidence in the appeal, should be dismissed.

Ground 3

1. In Mack v The State of Western Australia,[23] I summarised (Martin CJ & Mazza JA agreeing) the principles to be applied by an appellate court in determining whether a verdict of guilty on which a conviction is based should be set aside because, having regard to the evidence, it is unreasonable or cannot be supported.  It is unnecessary to repeat the relevant principles.

   [23] Mack v The State of Western Australia [2014] WASCA 207 [141] - [147].

2. Counsel for the appellant submitted in support of ground 3 that:

   (a)There was no evidence that the appellant's DNA or fingerprints were found at the bank.

   (b)There was no evidence that the appellant's fingerprints or DNA were found on items which the police recovered from Quickup River.

   (c)None of the witnesses who saw the offender were able to identify the appellant as the offender.

   (d)All of the witnesses who attempted to estimate the offender's age thought that he was significantly younger than the appellant and closer in age to Wade Ninyette.

   (e)Although the appellant spent cash during the afternoon following the robbery, there was no direct evidence which identified the cash as part of the proceeds of the robbery.

   (f)There was no evidence that the shoes and shorts worn by the appellant were the shorts and shoes actually worn by the offender.

   Those submissions are factually accurate.

3. The State's witnesses at the trial comprised Wade Ninyette, Michael Wigley, Neil Atkins, Ms Freitag, Robyn Unsworth, Andrew Ross, Peter Speigl, Trent Speigl, Susanne Speigl, David Lewis, David Wall, Andrew Dunn, Vaughan Mackay and Daniel Heller. 

4. The appellant was the only witness called by defence counsel.

5. Wade Ninyette said in evidence:

   (a)On 8 April 2015, Wade Ninyette was living in Walpole with his aunt Narelle Ninyette and the appellant.  On the morning of 8 April 2015, Wade Ninyette travelled by car from Walpole to Denmark.  The car belonged to Robert Ninyette.  The people in the car were Wade Ninyette, Narelle Ninyette, Robert Ninyette and the appellant.  The car stopped in a carpark near an IGA store in Denmark, not far from the National Australia Bank branch (ts 506 ‑ 507).

   (b)The appellant alighted from the car.  He returned after about 20 minutes (ts 507).

   (c)The appellant was wearing a black jumper with the word 'Everlast' written in white across the chest.  The jumper was a 'hoodie' (ts 507).

   (d)When he returned to the car, the appellant was sweating.  The appellant had 'chunks' of money.  The money was green and yellow in colour.  The appellant also had a tomahawk in his possession.  The appellant told Robert Ninyette (who was the driver of the car) to 'drive' (ts 508).

   (e)Robert Ninyette then drove the car to Mount Barker.  However, during the journey, the appellant asked Robert Ninyette to stop.  When the car stopped the appellant alighted.  He was wearing a black jumper and black shorts and had the tomahawk in his possession.  The appellant then ran into the bushes.  When he returned to the car, the appellant was not wearing the black jumper and he did not have anything in his possession (ts 509).

   (f)As far as Wade Ninyette knew, the appellant retained all of the money that he had when he returned to the carpark near the IGA store in Denmark (ts 509).

   (g)On 8 April 2015, Wade Ninyette was wearing a black singlet and blue shorts (ts 514).

   (h)It was the appellant's idea to stop in Denmark.  The appellant was the only person who alighted from the car while it was in the carpark near the IGA store (ts 514 ‑ 515).

6. Wade Ninyette admitted that in a witness statement dated 28 April 2016 that he gave to the police he said he did not see whether or not the appellant had a tomahawk (ts 517 ‑ 518).  The appellant had his hands in the pockets of his hoodie, as though he was holding something, but Wade Ninyette did not see what it was (ts 517).  Wade Ninyette also admitted in his evidence that he had a 'patchy' memory about the events in question (ts 524).

7. Wade Ninyette is Aboriginal.  At the material time, he was aged 19 years (ts 511).

8. Mr Wigley said in evidence:

   (a)On 8 April 2015, he was employed as a mechanic.  He was in Denmark on that day.  He parked his car in a laneway which runs parallel to Strickland Street.  Mr Wigley had lunch with his wife.  He then returned to his car.  As he was returning to his car, Mr Wigley saw a man who seemed very agitated and aggressive.  The man 'looked quite hyped up and scary looking' (ts 531 ‑ 532).

   (b)The man was dark‑skinned, had a lot of hair on his face and was wearing a hoodie (ts 532).

9. Mr Wigley admitted that on 9 April 2015 he had been unable to identify the appellant as the offender from a board of 12 photographs shown to him by the police (ts 535 ‑ 536).  Mr Wigley also gave evidence that on 9 April 2015 he had told the police that the offender was aged 25 years. 

10. The appellant is Aboriginal.  At the material time, he was aged 41 years.

11. Mr Atkins said in evidence:

    (a)On 8 April 2015, Mr Atkins was in Denmark.  He was walking along Strickland Street when he noticed 'a dark‑skinned Aboriginal male' coming towards him.  The time was about 1.00 pm (ts 537).

    (b)Mr Atkins noticed the man because he 'seemed tense'.  He was wearing a hoodie with the hood over his head, despite the weather being fine and warm.  The man's hands were in his pockets (ts 537).

    (c)The man's hoodie was an 'Everlast' hoodie.  It was black with the 'Everlast' logo written in white across the front.  The man was wearing shorts, which Mr Atkins believed were black (ts 537 ‑ 538).

12. Mr Atkins admitted that he was unable to identify the appellant as the offender on 9 April 2015 when the police showed him a photoboard containing 12 photographs (ts 539 ‑ 540).

13. Ms Freitag said in evidence:

    (a)After leaving the bank for lunch, Ms Freitag saw a 'dark‑skinned' man wearing a hoodie.  The hoodie was zipped up to the neck and the man was wearing the hood over his head.  His hands were in his pockets (ts 544).

    (b)Later, the man came into the bank and demanded money.  He appeared to be armed with a weapon (ts 546).

    (c)Ms Freitag thought the offender was about 175 cm in height and of slim build.  She thought he was aged about 25 years (ts 547).

14. The prosecutor read into evidence a witness statement affirmed by Ms Unsworth.  In the statement Ms Unsworth said:

    (a)On 8 April 2015, she was employed by the National Australia Bank in Denmark (ts 563).

    (b)On that day she saw a man walk past the bank on a few occasions.  He was wearing a black hooded jacket with black three‑quarter length shorts and black shoes (ts 567 ‑ 568).

    (c)Ms Unsworth thought the man was Aboriginal (ts 569).

    (d)Shortly after, the man came into the bank.  As he walked into the bank the man pulled a mask over his nose and mouth.  The man came towards the counter.  He had a weapon.  The weapon had a handle, had metal on top and was about 30 cm long.  That is, there was metal on top of the handle (ts 571 ‑ 572).

    (e)The man said something before he gained entry into the restricted area of the bank (ts 572).

    (f)Ms Unsworth said the man was in his late 20s or early 30s (ts 581).

15. Mr Ross said in evidence:

    (a)On 8 April 2015, Mr Ross was in an interview room at the National Australia Bank in Denmark (ts 584).

    (b)Mr Ross saw a man in the bank who was wearing a black hoodie.  The hoodie was plain.  There were no motifs on it.  The man was wearing a 'bandana' which covered the lower part of his face (ts 587).

    (c)Mr Ross did not recall the colour of the man's eyes or skin.  He did not notice whether the man had anything in his hands (ts 587).

    (d)Mr Ross was unable to judge the man's height because the man was in a crouching position (ts 590).

    (e)Mr Ross thought the man was aged between 20 and 35 years (ts 591).

16. Mr Peter Speigl said in evidence:

    (a)On 8 April 2015, at about 1.00 pm, Mr Speigl was outside a coffee shop on the South Coast Highway in Denmark.  He was with his wife and his son (ts 597).

    (b)As Mr Speigl, his wife and his son approached a laneway, Mr Speigl saw a man running down the laneway towards them.  The man was young and dark‑skinned and was wearing dark clothing.  Mr Speigl's estimate of the man's age was between 20 and 25 years (ts 598).

    (c)Mr Speigl saw money 'floating in the air' in the laneway where the man had been running.  Mr Speigl called out very loudly to the man and pointed to the money on the road.  The man 'stopped, looked, hesitated for a minute'.  The man then turned and ran away (ts 599).

    (d)The man appeared to be running towards the IGA carpark (ts 600).

17. Mr Trent Speigl said in evidence:

    (a)On 8 April 2015, Mr Speigl was in Denmark with his parents.  At about 1.00 pm on that day they were walking on South Coast Highway towards a laneway in Denmark (ts 608).

    (b)Mr Speigl saw a dark‑skinned man.  The man was wearing a 'darkish' hoodie and had his right hand in his pocket (ts 609).

    (c)Mr Speigl saw a lot of money fall out of the man's pocket.  The man did not stop even when Mr Speigl's father called out to him (ts 610 ‑ 611).

    (d)The man was aged about mid-20s to 30 years and was about 180 cm in height (ts 609).

    (e)At a later date Mr Speigl was shown 'a page of photographs' and asked to identify the man.  He was unable to identify him (ts 611).

18. Ms Speigl said in evidence:

    (a)On 8 April 2015, Ms Speigl was in Denmark with her husband and her son (ts 614).

    (b)At about 1.00 pm on that day, she saw a man running across the road and money 'floating onto the road' (ts 614).

    (c)The man was dark‑skinned, of medium build, about 180 cm tall and was wearing a dark jacket and dark pants (ts 615).

    (d)At a later date Ms Speigl was shown photographs by the police.  She was unable to identify the man she had seen (ts 615 ‑ 616).

19. Mr Lewis said in evidence:

    (a)On 8 April 2015, he was the owner/manager of Ray's Sportspower in Albany (ts 617).

    (b)At about 4.00 pm on that day he was approached in his shop by a man.  The man was about 179 cm in height, Aboriginal and had 'browny coloured … scraggly hair'.  His hair was 'just short of shoulder length'.  The man was in his mid‑20s (ts 617 ‑ 618).

    (c)The man selected a pair of Nike shoes.  They were black and red in colour (ts 618).

    (d)As Mr Lewis was serving the man, an Aboriginal woman joined them.  She was about 160 cm in height and was probably in her mid‑20s (ts 618).

    (e)The man and the woman selected, between them, four pairs of Nike shoes (ts 618 ‑ 619).

    (f)The man and the woman also selected some clothing and other items (ts 619).

    (g)The total sale price of the goods was about $890 (ts 619).

    (h)The man and the woman paid for the goods in cash.  The cash comprised $20 and $50 notes (ts 623).

    (i)The man produced $200 and the woman produced the balance (ts 625 ‑ 626).

20. Sergeant Wall gave evidence that:

    (a)On 9 April 2015 he searched Narelle Ninyette's home.  At the time the appellant and Wade Ninyette lived with Narelle Ninyette.  Police located 'some shoes' and 'a football and other sporting equipment or sporting clothing' (ts 629 ‑ 630; exhibit 8.1 and 8.2).

    (b)On 9 April 2015 he searched Robert Ninyette's car.  Nothing of interest to the police was located (ts 631 ‑ 632).

21. Sergeant Dunn gave evidence that on 10 April 2015 he found a hoodie jacket with 'Everlast' written on it.  He found the hoodie in water under the bridge at the Quickup River crossing (ts 642).  Sergeant Dunn also found in the same location a pair of gloves, a beanie and a neck scarf (ts 642 ‑ 648).

22. Detective Mackay gave evidence that on 27 August 2015 he became aware of telephone calls that had been made between the appellant and Narelle Ninyette and that on 29 October 2015 he obtained a transcript of those calls (ts 655).  The calls were recorded while the appellant was remanded in custody at Albany Regional Prison in connection with the armed robbery offence (ts 658 ‑ 659). Detective Mackay said that after listening to the telephone calls he went to the vicinity of two premises, namely Albany Podiatry and Pregnancy Matters (ts 662 ‑ 663).  At both locations Detective Mackay and another police officer noticed and photographed evidence of 'diggings' in the soil (ts 663 ‑ 664).  The police did not find anything at the location of the 'diggings' (ts 695).  On 15 April 2015, Detective Mackay found a tomahawk or axe in the water under the bridge at the Quickup River crossing (ts 697 ‑ 700).  When he was arrested the appellant was wearing three‑quarter length black pants (ts 672).  Detective Mackay confirmed that no fingerprints of any interest to the police were located at the bank (ts 670).  None of the witnesses to the armed robbery offence or its aftermath identified the appellant as the offender (ts 693).

23. The transcript of the telephone calls between the appellant and Narelle Ninyette reveals that on 26 August 2015 and 4 September 2015 they had discussions about money, the premises known as Pregnancy Matters and 'digging' in the vicinity of those premises.  The only reasonable inference from the transcript of those conversations, in the context that the appellant and Narelle Ninyette were aware that their discussions were being recorded, was that the appellant was endeavouring to inform Narelle Ninyette of the precise location where he had hidden some money which had been wrapped in plastic.

24. It is unnecessary to summarise any of the evidence of Detective Senior Constable Heller.

25. The appellant said in evidence:

    (a)The appellant is aged 43 years and is 173 cm in height (ts 758).

    (b)On 8 April 2015, he was wearing black shorts, a white shirt, black and white Nike shoes and white ankle socks.  He did not have an 'Everlast' hoodie with him.  When defence counsel asked him whether he had ever owned a black 'Everlast' hoodie or an 'Everlast' hoodie, the appellant said that he owned a jacket (ts 762).

    (c)On 8 April 2015, Wade Ninyette was wearing black shorts,  black and white shoes and had a blue Nike backpack with him (ts 762).

    (d)The appellant claimed that he had owned a dark blue 'Everlast' jacket with a hood.  However, in his interview with the police he said that he had owned a black 'Everlast' hoodie, but it had been stolen (ts 809 ‑ 810).

    (e)On 8 April 2015, the appellant, upon arriving in Denmark, alighted from the car being driven by Robert Ninyette.  The appellant went to a public toilet.  He was away from the car for no longer than 10 minutes.  He did not have a hatchet or a hoodie.  He did not go to the bank.  When he returned to the car, Wade Ninyette was not there.  Wade Ninyette was wearing a black 'Everlast' jumper.  When Wade Ninyette returned to the car, Robert Ninyette, Wade Ninyette, Narelle Ninyette and the appellant travelled towards Mount Barker.  Some time later, Wade Ninyette said he wanted to go to the toilet.  The car stopped near a bridge.  Wade Ninyette took the blue Nike backpack with him.  When he returned to the car Wade Ninyette had changed into a singlet and blue shorts (ts 762 ‑ 769).

    (f)The appellant admitted that, on 8 April 2015, he was in possession of a significant amount of cash.  He claimed that he had withdrawn $1,800 cash from Narelle Ninyette's bank account over a period of days before he travelled to Albany on 8 April 2015 (ts 759 ‑ 760, 793). 

    (g)On 8 April 2015, the appellant purchased amphetamines in a shopping centre carpark in Albany (ts 769).

    (h)On 8 April 2015, the appellant and Narelle Ninyette had purchased items for themselves and their children (ts 770).  Both of them paid cash for the items (ts 771).

    (i)The word 'money', used in the recorded telephone calls between the appellant and Narelle Ninyette, was a code word for 'Suboxone'.  The appellant wanted Narelle Ninyette to bring Suboxone to the prison so he could sell it to other prisoners (ts 787, 789 ‑ 790).

26. During his evidence the appellant admitted that he had lied to the police about his movements on 8 April 2015 and that he had falsely denied having owned a pair of black Nike shoes which the police had found in the house that he shared with Narelle Ninyette and Wade Ninyette (ts 785 ‑ 786, 812 ‑ 817, 822 ‑ 824). 

27. Further evidence in respect of the appellant and Wade Ninyette was as follows:

    (a)CCTV footage taken at the bank and in photographs obtained from that footage showed that the offender wore three‑quarter length black shorts, white socks and a pair of black Nike shoes which had a white sole (the white sole not extending, however, to the front of the shoe).

    (b)The appellant admitted that he wore black shorts and white socks in the CCTV footage taken from the Mount Barker Roadhouse between 1.40 pm and 1.48 pm on 8 April 2015, at the Priceline Pharmacy between 2.30 pm and 2.33 pm on that date, and at Ray's Sportspower between 4.09 pm and 4.17 pm on that date (ts 761 ‑ 762, 821).

    (c)When the appellant was arrested on 9 April 2015 he was wearing three‑quarter length black pants (ts 672; exhibit 12.3).

    (d)On 9 April 2015, police located most of the items which had been purchased from Ray's Sportspower in the house that the appellant shared with Narelle Ninyette and Wade Ninyette.  A pair of used black Nike shoes, of similar appearance to those worn by the offender, were found in a red Nike shoebox (ts 630 ‑ 631; exhibit 7.2).  During his electronically recorded interview with police, the appellant denied ownership or knowledge of this pair of shoes (ts 822 ‑ 824; exhibit 25 pp 74 ‑ 76).  The appellant was not 'excluded as a contributor' to the DNA found on the pair of shoes in question, but Wade Ninyette was 'excluded as a contributor' to that DNA (ts 865 ‑ 867; exhibit 6.1).  In his evidence, the appellant admitted that he owned the shoes in question, that he wore them on 8 April 2015 and that he had lied to the police about them (ts 761, 823 ‑ 824).  In his evidence, the appellant also admitted that he had removed the shoes after buying clothes and other goods at Ray's Sportspower, that he had put on a 'new' pair of Nike shoes, that he had put the 'old' shoes into the box that the 'new' shoes had come in, and that he had put the box containing the 'old' shoes in the car (ts 770 ‑ 771, 821 ‑ 822).

    (e)In his evidence, Wade Ninyette said that on 8 April 2015 he wore blue shorts, a black singlet and black shoes with a white band around them (ts 514).  CCTV footage taken from the Mount Barker Roadhouse, the Priceline Pharmacy and the Albany Hospital showed Wade Ninyette wearing clothing of that description.  Also, when the police spoke to him on 9 April 2015, Wade Ninyette appeared to be wearing the same clothing.

    (f)The CCTV footage taken from the Mount Barker Roadhouse, the Priceline Pharmacy and Ray's Sportspower showed the appellant and Narelle Ninyette paying cash for goods.  At Ray's Sportspower they spent about $890.  There is no evidence that on any of these occasions Wade Ninyette paid cash.

28. The trial judge directed the jury that the appellant's lie concerning his knowledge and ownership of the pair of black Nike shoes could be used against him as an implied admission against interest arising from his consciousness of guilt (ts 864).  See Edwards v The Queen.[24]

    [24] Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193.

29. The appellant's lie about his movements on 8 April 2015 was left to the jury as a matter relevant merely to his credibility.

1. I am of the opinion, after examining the trial record and weighing the evidence (in particular, the circumstantial evidence relied on by the State and the evidence of Wade Ninyette and the appellant), that it was reasonably open to the jury to reject the appellant's defence, including the exculpatory statements made in his electronically recorded interview with police and in his evidence, and to be satisfied beyond reasonable doubt as to his guilt.

2. The circumstantial evidence relied on by the State, evaluated in its entirety and not on a piecemeal basis, constituted a strong case against the appellant, irrespective of the direct evidence of Wade Ninyette. 

3. The jury had the very significant advantage of seeing and hearing the witnesses (notably, Wade Ninyette and the appellant) give their evidence.

4. It was reasonably open to the jury to accept those parts of Wade Ninyette's evidence which implicated the appellant.  He was subjected to a competent and careful cross‑examination.  It is not apparent that Wade Ninyette's evidence was in any material respect incredible or unreliable or that the only course reasonably open to the jury was not to accept, or alternatively, to reject, those parts of his evidence which implicated the appellant.

5. The factual matters relied on by counsel for the appellant in his submissions (see [83] above) did not, either in themselves or in combination with any other facts or circumstances, preclude the jury from being satisfied beyond reasonable doubt as to the appellant's guilt.  The absence of the appellant's DNA and fingerprints at the bank and on the items recovered by the police from Quickup River was neutral.  The absence of that evidence did not inculpate or exculpate the appellant or Wade Ninyette.  The failure of the witnesses who saw the offender to identify the appellant was not, in the circumstances, of significance.  The offender was wearing a hoodie and was endeavouring to disguise his appearance.  The fact that the witnesses who attempted to estimate the offender's age thought that he was younger than the appellant and closer in age to Wade Ninyette was not significant.  As I have mentioned, the offender was wearing a hoodie and was endeavouring to disguise his appearance.  The jury had the very substantial advantage of observing the appellant and Wade Ninyette at the trial.  In particular, the jury was able to form an assessment as to whether the appellant had a relatively youthful appearance.  The witnesses' observations of the offender were for a very short period and, on some occasions, the offender was moving relatively quickly.  Further, at the trial, defence counsel referred to the appellant as being a 'young looking 42' (transcript of closing addresses, 22 July 2016, p 26) and Mr Lewis, the owner/manager of Ray's Sportspower who served the appellant as he bought clothing and other goods, described him as being in his mid‑20s (ts 618).

6. The jury were entitled to take the view that the evidence of the appellant's recorded conversations with Narelle Ninyette, the appellant's Edwards lie, the CCTV footage showing the clothing worn by the offender and the clothing worn by the appellant, and the significant amount of cash in the appellant's possession on 8 April 2015 were important matters which supported the State's case and undermined the appellant's defence. 

7. The jury, by their verdicts, rejected the appellant's evidence, at least in relation to whether his evidence exculpated, or tended to exculpate, him or created a doubt, or tended to create a doubt, about his guilt.  The jury, having rejected that evidence, was persuaded by and acted on other evidence relevant to the charge and concluded it was satisfied beyond reasonable doubt that the State had proved the offence; in particular, that the appellant had committed the offence.

8. A jury, acting reasonably, was not precluded by the state of the evidence at trial (in particular, the evidence of Wade Ninyette and the appellant and the circumstantial evidence) from convicting the appellant. 

9. The trial record does not require the conclusion that the jury must necessarily have entertained a doubt about the appellant's guilt.  The verdict of guilty is not unreasonable.  It was supported by evidence that the jury was entitled to accept.  After paying full regard to the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, and after paying full regard to the consideration that the jury has had the benefit of having seen and heard the witnesses, I do not have a reasonable doubt as to the appellant's guilt or as to the correctness of his conviction.

10. Ground 3 is without merit.

Conclusion

1. I would grant leave to appeal on ground 1, but refuse leave to appeal on grounds 2 and 3.

2. I would refuse to grant an extension of time to appeal because the appeal lacks merit.  The appeal must be dismissed.

3. The orders I would make are as follows:

   (1)The appellant's application in the appeal dated 12 July 2017, for leave to adduce additional evidence in the appeal, is dismissed.

   (2)Leave to appeal on ground 1 is granted. 

   (3)Leave to appeal on grounds 2 and 3 is refused.

(4)The application for an extension of time to appeal is dismissed.

(5)The appeal is dismissed.

MAZZA JA:

1. I agree with Buss P that this appeal against conviction must be dismissed, and with the orders that he proposes.

2. I agree with his Honour's reasons in respect of grounds 2 and 3 and the appellant's applications.  What follows are my reasons for dismissing ground 1.

3. Ground 1, in substance, alleges that the appellant suffered a miscarriage of justice because of the evidence referred to in [18] and [19] of Buss P's reasons.  It will be recalled that reference was made in the appellant's electronic record of interview with Sergeant Mackay to a burglary offence.  While Sergeant Mackay did not explicitly allege that the appellant had committed the offence, it conveyed that he had been suspected of doing so.  To this extent, it could be thought that the appellant may be a person of bad character.  It is common ground that this portion of the electronic record of interview was supposed to have been edited prior to the trial and should not have been played to the jury.

4. The statutory basis for ground 1 is s 30(3)(c) of the Criminal Appeals Act 2004 (WA) which provides this court must allow an appeal against conviction if, in its opinion, there has been a miscarriage of justice. Section 30(3)(c) is subject to the proviso in s 30(4) of the Criminal Appeals Act which provides that even if a ground of appeal might be decided in favour of the appellant, this court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.

5. Ground 1 raises the question of whether there was a miscarriage of justice by reason of the inadvertent reference to the burglary offence and, if there was, should the court dismiss the appeal because it considers that no substantial miscarriage of justice occurred. 

1. The distinction between a miscarriage of justice, on the one hand, and a substantial miscarriage of justice, on the other, was examined by the High Court in Weiss v The Queen.[25]

   [25] Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300.

2. In Weiss, the Court (Gleeson CJ, Gummow, Kirby, Hayne, Callinan and Heydon JJ) had regard to the history of the common form criminal appeal provisions which exist in all States and Territories, including, of course, Western Australia.

3. The Court began by noticing that the origin of these provisions was the Criminal Appeal Act 1907 (UK).  The Court observed that this statute was enacted against the background of the so‑called Exchequer rule which arose from the Court of Exchequer's decision in Crease v Barnett.[26]  As the rule came to be understood, a miscarriage of justice was 'any departure from trial according to law, regardless, of the nature or importance of that departure'[27] (original emphasis).  It is this meaning that the Court ascribed to the common form criminal appeal provisions.  The Court explained that the word 'substantial' in the proviso was intended to require consideration of matters beyond the bare question of whether there had been any departure from the applicable rules of evidence or procedure.[28]  

   [26] Crease v Barnett (1835) 1 Cr M&R 919.

   [27] Weiss v The Queen [18].

   [28] Weiss v The Queen [12] ‑ [25].

4. Thus, the expression 'miscarriage of justice' as it appears in s 30(3)(c) of the Criminal Appeals Act is to be construed as being 'any departure from trial according to law regardless of the nature or importance of that departure'.[29]

   [29] Weiss v The Queen [18].

5. In Weiss, the Court went on to observe that Wigmore, in his work, 'A Treatise on the Anglo‑American System of Evidence in Trial at Common Law' (3rd ed) (1940) vol 1 368, identified two theories that could support the Exchequer rule.  It is only necessary to refer to the first of these theories.  According to Wigmore, a party has a legal right to observance of the rules of evidence.  The Court in Weiss added to this statement that to observance of all other aspects of law and procedure.

6. It is for the appellant to demonstrate that there was a miscarriage of justice in his or her trial.  Whether there was a miscarriage of justice requires this court to objectively assess all of the relevant circumstances.  This court must be satisfied that a miscarriage of justice actually occurred in the trial.

7. In the present case, whether a miscarriage of justice actually occurred requires a consideration of not just the fact that the evidence was inadvertently adduced, but whether there is any perceptible risk that the jury would have taken the evidence into account in its deliberations.  If there was no perceptible risk, I am unable to see how there has been any departure from trial according to law or that there has been any infringement of the appellant's legal right to the observance of the rules of evidence.

8. An analysis of all the surrounding circumstances in the present case reveals, in my opinion, that there is no perceptible risk that the jury would have taken into account in its deliberations the inadmissible evidence.

9. Upon the impugned passage being played, her Honour immediately stopped the proceedings.  Having ascertained that the impugned passage had not been edited from the interview as arranged, the trial was adjourned to the following day.  Overnight, the video‑recording of the interview was edited to delete the impugned passage. 

10. The following morning, both counsel agreed that the newly‑edited version of the video interview would be played, beginning a little before where the impugned passage had been.  It was also agreed that her Honour would direct the jury if there was any difference in the version they were about to see when compared with the version that was played the previous day, they were to have regard only to the newly‑edited version of the interview.  When the jury returned to the courtroom, her Honour gave the directions set out in [26] of Buss P's reasons.  Those directions were clear and unequivocal.  The jury was told that they were to have regard to the content of the newly‑edited interview, and not what they may have heard previously.  Defence counsel took no exception to these directions.  The newly‑edited version was then played to the jury.  Nothing more about the impugned passage was said at any further point in the trial. 

11. At no stage did the competent and highly‑experienced defence counsel make an application to discharge the jury or seek any further direction.  It may reasonably be inferred that defence counsel and the appellant took the view that any perceptible risk of prejudice, by reason

of the jury hearing the impugned passage, was effectively cured by the measures that were taken and that it was not in the interest of the appellant to, in effect, apply for a new trial. 

1. There is no reason to doubt that the jury would have understood and followed her Honour's directions or rely on the newly‑edited version of the video interview.[30]  Of course, it was this version of the interview that was admitted into evidence (exhibit 25) and it was only this version of the interview that was available for the jury to view in its deliberations.  As a result of the measures that were taken, in substance, the rules of evidence were observed and there was no departure from trial according to law.

   [30] See Gilbert v The Queen [2000] HCA 15; (2000) 201 CLR 414 [13] (Gleeson CJ & Gummow J).

2. In considering the question of miscarriage of justice, it is relevant to bear in mind that, as a general rule, counsel's conduct binds the client.[31]  It is clear, from the way defence counsel approached the unexpected reference to the burglary offence, that he (properly) took the view that the measures that were put into place obviated any perceptible risk that the reference would have been taken into account by the jury. 

   [31] Nudd v The Queen [2006] HCA 9; (2006) 80 ALJR 614 [9] (Gleeson CJ).

3. For these reasons, I have reached the conclusion that what occurred in the appellant's trial did not constitute a miscarriage of justice.  While I would give leave to appeal on ground 1, the ground has not been made out.

4. If, contrary to this conclusion, there was a miscarriage of justice occasioned by the inadvertent admission of the reference to the burglary, for the reasons given by Buss P, I would have invoked the proviso pursuant to s 30(4) of the Criminal Appeals Act.

HALL J:

1. I agree that the appeal should be dismissed, for the reasons given by Buss P in respect of grounds 2 and 3 and for the reasons given by Mazza JA in respect of ground 1. In saying this I make clear that in the event that there was a miscarriage of justice as asserted in ground 1, I too would apply the proviso pursuant to s 30(4) of the Criminal Appeals Act.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

MW
ASSOCIATE TO THE HONOURABLE PRESIDENT BUSS

7 AUGUST 2018