Tkacz v The State of Western Australia - [2005] WASCA 108

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: TKACZ -v- THE STATE OF WESTERN AUSTRALIA [2005] WASCA 108

CORAM: STEYTLER P
MCLURE JA
PULLIN JA

HEARD: 4 MAY 2005

DELIVERED : 13 JUNE 2005

FILE NO/S: CCA 6 of 2004

BETWEEN: MICHAEL TKACZ
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :HEALY DCJ
File No  :IND 256 of 2000

Catchwords:

Criminal law and procedure - Appeal against conviction - Whether miscarriage of justice from lack of compliance with s 611B of the Criminal Code (WA) - Whether trial Judge should have directed jury on s 24 of the Criminal Code - Whether trial Judge disparaged witness - Whether new evidence should be admitted - Turns on own facts

Legislation:

Criminal Code (WA), s 24, s 83(c), s 611B, s 611B(1)(c), s 611B(1)(d), s 611B(3), s 697

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: In person
Respondent: Mr D Dempster

Solicitors:

Appellant: In person
Respondent: State Director of Public Prosecutions

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

Beamish v The Queen [2005] WASCA 62
Lawless v The Queen (1979) 142 CLR 659
Mallard v The Queen (2003) 28 WAR 1
Mickelberg v The Queen (1989) 167 CLR 259
Mickelberg v The Queen (2004) 29 WAR 13
Ratten v The Queen (1974) 131 CLR 510

Case(s) also cited:

Alford v Magee (1952) 85 CLR 437
Bailey v South Australian Police, unreported; SCt of SA Magistrate Appeals; SCGR9459; 3 March 1994
Bradshaw v The Queen, unreported; SCt of WA (CCA); Library No 970944; 13 May 1997
Clarkson v Director of Public Prosecutions [1990] VR 745
Craig v The King (1933) 49 CLR 429
Gallagher v The Queen (1986) 160 CLR 392
Glennon v The Queen (1944) 179 CLR 1
Lawless v The Queen (1979) 142 CLR 659
Leary v The Queen [1975] WAR 133
Mathews v The Queen (2001) 24 WAR 438
Mraz v The Queen (1955) 93 CLR 493
R v Azaddin (1999) 109 A Crim R 474
R v Burke (1991) 56 A Crim R 242
R v Clarke [1934] St R Qd 23
R v Ireland (1970) 126 CLR 321
R v Keane [1994] 2 All ER 478
R v Lincoln [1944] 1 All ER 604
R v Shurmer (1886) 17 QBD 323
R v Solomon [1980] 1 NSWLR 321
R v Zischke [1983] 1 Qd R 240
RPS v The Queen (2000) 199 CLR 620
Sullivan v The King (1913) 15 WALR 23
Wilde v The Queen (1988) 164 CLR 365
Wilson v Nightingale (1846) 8 QB 1034

STEYTLER P: On 18 December 2003, after a trial by jury, the appellant was convicted on one count of being a public officer who, without lawful authority or reasonable excuse, acted corruptly in the performance or discharge of the functions of his office so as to gain a benefit to any person, contrary to s 83(c) of the Criminal Code (WA). He had been charged with two such counts but was convicted only on the first of them. He now appeals against that conviction.
The public office held by the appellant was that of telecommunications manager at Curtin University ("Curtin"). Curtin provided him with a corporate credit card so that he could use it to purchase goods or services on its behalf. He used it, on 21 December 1996, to buy two Motorola mobile telephones. Shortly afterwards, he gave one of them to a work colleague, Ms Audrey Daniel, as a present for her private use. He gave another mobile telephone (he said that it was not one of those purchased on 21 December 1996) to his wife, Mrs Vicki Tkacz, from whom he had recently separated. Until 22 December 1997, Curtin paid the telephone bills for Ms Daniel's telephone ("Daniel telephone"). It also paid the telephone bill for Mrs Tkacz ("Tkacz telephone") until about May 1998. The appellant's conduct in respect of the Daniel telephone led to count 1 on the indictment, being that on which he was convicted. His conduct in respect of the Tkacz telephone led to count 2 on the indictment.
Ms Daniel's evidence at the appellant's trial was that, when the Daniel telephone was given to her, she was told by the appellant that it was going to be put "on the university's corporate plan" but that, when the appellant had "sorted everything out", it would be "switched" into her name and the bills would be sent to her (transcript 130). She did not receive any bills for about a year, but she had been told by the appellant that "he was taking care of everything and that he would give it all to … [her] and … [she] would reimburse him for the amount because he had to sort out the plans" (transcript 131). The appellant did not show Ms Daniel any bills over the period of about a year and she was not aware that Curtin was paying for the calls made on the telephone. She said that she was asked at one point (she could not remember when) to reimburse the appellant and that she gave him an amount of money but could not remember what amount. On 22 December 1997 she signed a "Personal Mobile Telephone Contract" with Telstra Ltd (the carrier) at the appellant's request and, thenceforth, she began to receive, and pay, the bills for the telephone.
In her evidence, Mrs Tkacz said that, at the end of 1996 or early in 1997, the appellant gave her the use of a mobile telephone and the use of a car. Both were for her "unlimited" personal use (transcript 146). She had no recollection that the telephone was to be used only in emergencies. She used the telephone for general personal use. She never saw, or paid, any bills in respect of it. She assumed that the appellant had obtained the telephone, like his car, as part of his salary package. She was later asked to return the telephone to the appellant and did so (she could not remember when).
Evidence was also given at the trial by Mr Gary Wood. He was, from January 1997, employed in Curtin's telecommunications branch ("branch"). He reported to the appellant. He said that mobile telephones were purchased for use in the branch. He was asked to take on responsibility for the payment of telephone accounts. There were then five mobile telephones for which bills were received in the branch "on three or four accounts", although Mr Wood had seen only two telephones, being those used by the appellant and his assistant (transcript 160). He was asked by the appellant to consolidate the accounts into one account. When he did so, in January 1997, he asked the appellant who were the owners of the telephones and was told that the telephones were "issued on loan to other staff that wanted to use them" (transcript 161). He was also told that, when the consolidated account was received, he was to "assign the cost … to various internal cost centres and to particular line items" (transcript 161). He said, in his evidence, that in relation to two particular mobile phones, service numbers 226 (which turned out to be the Tkacz telephone) and 439 (which turned out to be the Daniel telephone), calls were made and costs were incurred and these were paid for by Curtin. Mr Wood said, in this last respect, that he completed an authority to pay, referred to as an "allonge", in respect of each bill and that that document was sent to "financial services" which would attend to payment of it (transcript 174 and 231).
In January 1998 the appellant instructed Mr Wood to transfer service number 439 into Ms Daniel's name. In February 1998 an additional bill was received and paid by Curtin in relation to that service but, from then on, service number 439 no longer appeared in the Curtin accounts and bills were sent directly to Ms Daniel. However, between March and May 1998 service number 226 continued to appear in Curtin accounts. Calls were made on that telephone and costs were incurred in respect of it. These were paid for by Curtin.
Mr Wood said that, in around February or March 1998, he started to become concerned that he was "paying bills for … [telephones] that may have actually been used by people that weren't authorised to do so" (transcript 183). He feared that he might be implicated in unlawful conduct and telephoned Legal Aid, anonymously, in order to obtain legal advice. He also obtained advice from other sources. This led him to speak to one of Curtin's senior managers in about April 1998. He also spoke to the appellant in about March or April 1998 in respect of service number 226. He said that the appellant told him that he had "checked the bill" and that he had noticed that his wife was still using the telephone. Until then, Mr Wood had not been aware that the telephone had been in Mrs Tkacz's possession. He said (transcript 184) that he had assumed "based on … [his] conversations with … [the appellant] that in fact it had been loaned out to someone and was being used by another Curtin staff member legitimately". Some time after that, the appellant produced the Tkacz telephone, saying that he had got it back from Mrs Tkacz.
Subsequent investigations revealed what had taken place in respect of the Daniel and Tkacz telephones and, in August 1998, the appellant was suspended and his job was taken over by Mr Wood. The appellant was dismissed by Curtin in November 1998.
Evidence was also given by Mr John Glassford. He had been Curtin's "Acting Associate Director of Facilities Management" in 1996. As such, he was the appellant's "line manager". He said that he had not authorised the appellant to provide a mobile telephone to either of Ms Daniel or Mrs Tkacz. He also said that he had not authorised the telephone bills of either to be paid for by Curtin.
In his evidence at the trial the appellant (who represented himself) said that he bought the two telephones purchased by him in December 1996 with a view to on‑selling them to Curtin staff and then reimbursing Curtin for their cost. He gave one of them to Ms Daniel as a Christmas present "with the clear intention that … [he] was going to transfer it into her name" and with no intention "that Curtin … was going to pay for that phone". Then, he said, in the stressful environment of his work he "simply forgot about the phone" (transcript 349). The first time he remembered it was in December 1997 when he went to get Christmas decorations out of his cupboard at home. He saw the second telephone in that cupboard, causing him to remember the Daniel telephone. He promptly asked Ms Daniel whether she had been receiving any bills in respect of it. She said that she had not.
The appellant said that he then gave Mr Wood the telephone which had been in his cupboard and asked him whether bills had been coming in in respect of the Daniel telephone. Mr Wood said that they had. The appellant said that he thereupon asked Mr Wood why he had been paying them. While the appellant did not say what response he received to that question, he did say that Mr Wood "wouldn't have known probably what it was but hadn't said anything … about it". The appellant said that he had never seen the bills up until that time. He immediately arranged for Ms Daniel to transfer the telephone into her own name and reimbursed what he believed was the cost of her telephone bills to Curtin (he paid $213, but later learned that more than $700 had been paid in respect of that telephone's accounts).
As to the Tkacz telephone, the appellant said that this had been purchased by Curtin in 1994 and that it had sat in a drawer, unused, until he gave it to Mrs Tkacz. He said that he gave the telephone to her for use only in emergencies. Because he believed that she had never been in an emergency, he assumed that she had never used the telephone. He asked her to return it in February 1998 because his relationship with her was not good. She did so and he returned the telephone to Curtin.

The grounds of appeal

The appellant originally raised 17 grounds of appeal. Only five of these are pursued. They are essentially as follows:
(1)The trial Judge failed adequately to explain to the jury the meaning of s 24 of the Criminal Code (WA) ("Code") "as it related to the counts on which the Appellant was being tried" (ground 1).
(2)There was a miscarriage of justice because the prosecutor did not comply with s 611B of the Code, in that he did not provide a description of the relevant evidence contrary to s 611B(1)(b), failed to provide any notice as required by s 611B(1)(c), failed, contrary to s 611B(3), to file and serve the required certificate of compliance and failed to "provide copies of allonges" (ground 3).
(3)The trial Judge erred in allowing the prosecution to call two witnesses, Dr Jane Den Hollander and Mr Massimo Montisci, at the commencement of the trial when the appellant had no time properly to investigate and address their evidence (ground 5).
(4)There was a miscarriage of justice because the trial Judge "disparaged one of the Appellant's witnesses", Mr Graham Cavanagh, a certified practising accountant, when he "made 'a joke' of part of the witness' testimony then stated 'we actually trust most accountants'" (ground 10).
(5)There was an aggregation of errors arising from grounds 1, 3, 5 and 10 "which prevented the Appellant from receiving a fair trial and which resulted in a miscarriage of justice" (ground 17).
I should mention that grounds 11 to 14 raised a number of procedural difficulties which, the appellant said, he had encountered during the trial. While these were not pursued as grounds of appeal, the appellant did make a number of points in respect of them in order "to highlight for the Criminal Practice and Procedure Committee some of the problems experienced by an unrepresented litigant".
The appellant also applied for leave, under s 697 of the Code, to introduce new evidence in the form of a number of allonges, and associated material, relating to the accounts for the Daniel and Tkacz telephones.
I propose, first, to deal with the grounds of appeal and then to turn to the application to adduce new evidence.

Ground 1

It became apparent, from the appellant's submissions and from an examination of the trial transcript, that the appellant's real complaint under ground 1 was that no direction at all was given in respect of s 24 of the Code for the purposes of count 1 on the indictment, being the charge of which the appellant was convicted. The direction that was given in respect of s 24 was given only in respect of count 2.
The prosecution case in respect of count 1 was opened and run upon the basis that the appellant had, without any lawful authority or reasonable excuse, acted corruptly in the performance of his functions by buying the Daniel telephone at Curtin's expense, giving it to Ms Daniel, causing the billing on that telephone to be included with bills for other accounts which were consolidated in one account, and then allowing that account to be paid for by Curtin, without reimbursement, notwithstanding that Ms Daniel was using the telephone for personal purposes. The appellant's conduct in this respect was said by the prosecutor to have been "quite deliberate" (transcript 125). As will be apparent from what I have already said, the appellant did not dispute any of the objective facts. Rather, his defence was that he simply forgot to transfer the telephone into Ms Daniel's name and that he also forgot that Curtin was paying her bills (transcript 349 and 355). Consequently, no question of "honest and reasonable, but mistaken, belief in the existence of any state of things" arose for the purposes of s 24.
There is no substance to this ground.

Ground 3

It is apparent from the appellant's submissions in respect of ground 3 that his principal complaint is that:
(a)on 11 December 2003 (the trial having commenced on Monday, 15 December 2003) he received a telephone call from the prosecutor informing him that the prosecutor could not provide him with a certificate of compliance (required by s 611B(3) as regards compliance with the requirements of s 611B(1), which deals with pre‑trial disclosure by the prosecution) but that the witnesses who would be called at the trial were those listed in the papers which had already been provided by the prosecutor;
(b)he received a second telephone call from the prosecutor, on the same day, in the course of which the appellant was told that Curtin wanted to introduce witnesses additional to those on the list and that the prosecutor wanted to fax to the appellant a so‑called "duty statement" setting out what had been the appellant's job description at Curtin;
(c)two faxes were sent to the appellant on the following day, one comprising the job description and the other comprising documents, which had been current at the material time, setting forth Curtin's policies and procedures in respect, inter alia, of the use of its corporate card; and
(d)the appellant was prejudiced by these late disclosures.
There is no doubt that the statements of the two witnesses in respect of whom late notice was given by the prosecution (Den Hollander and Montisci) should have been given to the appellant earlier, as should the documents which were faxed to him on 12 December 2003. However, I am satisfied that the late notice did not give rise to any miscarriage of justice.
Dr Den Hollander was the "General Manager, Student and Staff Services" at Curtin. The division which she managed performed a human resources function and maintained duty statements in respect of various positions at Curtin. Amongst these was a duty statement which had been prepared in respect of the position of telecommunications manager. Dr Den Hollander said that it had been in existence for some years. She produced the duty statement at the trial, being that of which a copy had earlier been faxed to the appellant.
Mr Montisci, who was, at the time of the trial, Curtin's "Acting General Manager, Financial and Commercial Services", gave evidence of what had been Curtin's policy as regards the use of its credit cards. He did so by reference to the policy documents (copies of which had been faxed to the appellant on 12 December 2003) which, he said, had been current at the material time. He had not himself been employed by Curtin until December 2002.
The transcript of the proceedings reveals that at the commencement of the trial the prosecutor informed the trial Judge that Dr Den Hollander and Mr Montisci were "replacing certain of the evidence that … [other] witnesses will give" (transcript 86) and that the substance of their evidence was the duty statement and policy documents which had been provided to the appellant. When the appellant complained about the late notice, the trial Judge told him that he would have the morning break and over lunchtime to consider the evidence and that, if he needed more time, he should inform the trial Judge accordingly. The trial Judge also told him that this was not an unusual circumstance and that it sometimes led to trials being adjourned (transcript 88). A little later, during a break in the proceedings, the trial Judge suggested to the appellant that he look at the various documents which had been produced and that, if there was anything which took him by surprise, he should inform the trial Judge before the jury's return (transcript 111). Some 35 minutes later, the trial Judge asked the appellant whether anything which he had seen had taken him by surprise. He responded by saying "no". At no other time did the appellant complain about the calling of these two witnesses or about the tendering of the documents to which I have referred. When Dr Den Hollander gave evidence (on the afternoon of 16 December 2003), the appellant said that he was "not quite sure why she's here so I'm not really quite sure what I should ask her" (transcript 311).
The transcript consequently discloses that the appellant was well aware that he could seek further time to prepare, if he regarded himself as being prejudiced by the short notice of this evidence, but that he chose not to do so. In any event, it seems to me that the evidence was of only peripheral significance to the issues at the trial. There appears to have been no real dispute as regards the appellant's job description. Also, while the appellant claims to have been unaware of some of the material contained in the policy statements, it seems to me that nothing turned on this. The question for the jury, as the prosecution put its case, was whether the appellant had been deliberate in his conduct in giving a mobile telephone to Ms Daniel and allowing her to use it while Curtin bore the cost thereof or whether, as he said, he had simply forgotten to make the necessary arrangements to recoup the cost of doing so and to ensure that the telephone was put in Ms Daniel's name.

Ground 3 consequently fails.

Ground 5

For the reasons already given in respect of ground 3, ground 5 fails also.

Ground 10

The appellant called Mr Cavanagh as a witness. I have earlier mentioned that he was a Certified Practising Accountant. He had worked at Curtin. It was Mr Cavanagh who had appointed the appellant to a position at Curtin in mid‑1983.
During his evidence‑in‑chief, Mr Cavanagh was asked by the appellant why he had given the appellant a position in "financial services" when the appellant did not have an accounting background. Mr Cavanagh responded as follows (transcript 412):
"Basically we felt that we needed the organisational expertise of someone other than an accountant. We had enough of them around, if you like, to look after the professional sort of side of it and needed someone with more ability to actually do the organisation that was needed in especially a major enrolment period and getting temporary staff and making sure that we had the rosters set up and could relieve staff because these enrolment periods during the day went from quite early morning into the evening and you had to have relief staff. We had cash being taken from the area which we set aside in the student cafeteria with a whole lot of cash registers and we needed security staff to help bring that money back into the main administration and get it banked and we certainly wouldn't want to think of setting up such an operation within an unsecured area in today's environment. But at least it was safe back in those sort of days, or relatively safe."
The following exchange then took place between the trial Judge and Mr Cavanagh:
"You are not saying it wasn't safe to do it. It wasn't secure to let an accountant do it, are you?---No. But the actual physical cash, you know.
I know what you - - -?---Yes, sorry, a joke. No, we usually trust most accountants.
[The trial Judge]: We all do."
Mr Cavanagh was called by the appellant as a character witness. However, he also gave evidence regarding Curtin's policies and procedures associated with the use of allonges and its corporate credit cards. The appellant contends that Mr Cavanagh's evidence was crucial to the defence and that, because Mr Cavanagh was disparaged by the trial Judge in the course of making the joke reflected in the transcript quoted above, the jury may not have believed Mr Cavanagh's testimony.
I am unable to accept that Mr Cavanagh was disparaged by the trial Judge. The trial Judge's remarks were self‑evidently intended to be humorous. They could not reasonably have been taken as diminishing Mr Cavanagh, or his evidence, in any way. I should add that, in the course of his summing up to the jury, the trial Judge described Mr Cavanagh as "a very, very, experienced accountant who was in charge of … [Curtin's] finance department" (transcript 452).
There is no substance to this ground.

Ground 17

It follows, from what I have said in respect of grounds 1, 3, 5 and 10 that none of the errors there contended for has been made out. That being so, ground 17 also fails.

New evidence

That leaves the appellant's application to adduce new evidence in the form of the allonges used over the material period and associated documents, including documents produced by Curtin in respect of its policies and procedures as regards the completion of allonges.
None of these documents was produced on behalf of the prosecution prior to the trial. Nor, it seems, did either the prosecution or the police ever make any attempt to obtain documents of that kind from Curtin. They were first produced, under subpoena issued on behalf of the appellant, for the purposes of the appeal.
The appellant says that these documents should have been produced at or prior to the trial. Of the 18 allonges now sought to be relied upon by the appellant (all of which relate to telephone accounts over the material period) eight were signed by Mr Wood and the other 10 had the letters "S/A" or the words "see attached" written on the incurring officer's signature line. Those letters or words referred to telephone invoices which were attached to the allonges and these had been signed by Mr Wood.
The appellant contends that, had these documents been produced prior to or during the trial, he could have made use of them to cross‑examine Mr Wood as regards his credit. He at first said that Mr Wood was not authorised to sign the allonges, but later withdrew that submission when faced with evidence of Mr Wood's authority. However, he maintained the argument that Mr Wood's credibility could have been attacked by having him read aloud a payment certification clause which appeared on each of the allonges, to the effect that the account was "correct in respect of Treasurer's instruction 305, and University Policies and Procedures". He said that he could then have put to Mr Wood that a man of his experience should have appreciated that, without making proper inquiries, he could not sign that certificate as the instructions, policies and procedures referred to in the certification clause required him to ensure, before doing so, that the accounts were properly incurred. The appellant also contended that Mr Wood's failure to sign those allonges containing the letters "S/A" or the words "see attached" indicated a failure, on his part, to demonstrate that he had complied with proper accounting procedures. The appellant pointed to the fact that Treasurer's instruction 305 provides that the "Incurring Officer's signature on the payment voucher provides the Certifying Officer with an assurance that the payment details are correct in terms of the Treasurer's Instructions". Also, instruction (4) on Treasurers instruction 305 requires the incurring officer not to "certify to the payment of an account" unless satisfied, inter alia, that "the accounts to be charged are correct" and that "any recoverable expenditure is clearly indicated on the payment voucher".
The appellant also contended that, if he had had the allonges, he could have cross‑examined a prosecution witness, Peter Groves (an ex‑policeman who had investigated the matter and who gave evidence at the trial) in respect of them. He said that he would have cross‑examined Mr Groves as to why it was that he had not obtained copies of the allonges and provided them to the prosecutor. He also said that, if he had been given copies of the allonges, he might have discussed them with Mr Cavanagh in the course of preparing his defence.
The appellant acknowledges that he knew of the existence of the allonges at the time the trial. He had seen them during his tenure at Curtin. However, he says that, because some years had elapsed since he had worked at Curtin and because no allonges were produced by the prosecution, he thought that Curtin's procedures might have changed and that allonges were no longer used. Hence, he did not think to call for their production.
Of course, the allonges in question were those which were in use while the appellant worked at Curtin and it was irrelevant to their continued existence whether or not procedures had thereafter changed. Also, as I have mentioned, Mr Wood referred specifically to the allonges during the course of his evidence. The appellant could then have called for them to be produced, but chose not to do so. It is consequently plain that the evidence now sought to be adduced by the appellant is new, and not fresh: Beamish v The Queen [2005] WASCA 62 at [9]. While this would not be fatal to the application to adduce the evidence if it's absence at the trial could be shown to have resulted in a miscarriage (see the discussion in Beamish, above, at [13]; Ratten v The Queen (1974) 131 CLR 510 at 517; Mickelberg v The Queen (1989) 167 CLR 259 at 301 and Mallard v The Queen (2003) 28 WAR 1 at [14]), this is not such a case.
The critical aspects of Mr Wood's evidence related to what he had been asked to do by the appellant (to consolidate the various telephone accounts into one account and take on the responsibility for their processing) and what he had been told by the appellant in respect of the telephones the subject of these accounts (that they were on loan to staff for Curtin use). The allonges and associated documents did not bear on

this evidence at all. As to Mr Wood's general credibility, it was always open to the appellant to suggest to him that he had not adequately met his responsibility of investigating the accounts, although, if he had done so, it seems plain from Mr Wood's evidence that he would have responded by saying that he had been satisfied in that regard by the answers given to him by the appellant himself. In any event, it is difficult to see why Mr Wood's credibility in respect of the more important aspects of his evidence should have been damaged by any perceived laxity in the way in which he approached his task. Similarly, the sloppiness, or otherwise, of Mr Groves' investigation seems to me to have been a matter of no significance as regards the question of the appellant's guilt or innocence on the charge of which he was convicted.

In these circumstances, and given that the crucial question for the jury was that of what was the appellant's own intention, regardless of what may or may not have been done by Mr Wood in the course of authorising payment of the accounts, the documents now sought to be produced seem to me to be of peripheral relevance, at best.
The appellant has consequently failed to demonstrate any sufficient reason for giving him leave to adduce the new evidence.

Conclusion

It follows that I would dismiss the appeal and refuse the application to adduce further evidence.
MCLURE JA: I agree with Steytler P.
PULLIN JA: I agree with the reasons of Steytler P and the orders he proposes. I add only the following observations concerning the new evidence which the appellant wished to rely on.
The appellant argued that if the allonges had been available at the trial, then he would have been able to cross‑examine Mr Wood more effectively. The appellant submitted that the jury would have been much less likely to believe Mr Wood's evidence if they could see something in writing to show that Mr Wood was lax in his application of policy 305, which directed an incurring officer not to certify the payment of an account unless satisfied that any recoverable expenditure was clearly indicated on the payment voucher. The appellant argued that the allonges would have affected Mr Wood's credibility.

That argument is not sufficient to establish the right to adduce new evidence. (See the distinction between "new" and "fresh" evidence referred to in Beamish v The Queen [2005] WASCA 62 at [9]). An increased chance of acquittal is not enough. What has to be shown is that the appellant "should not have been convicted": Lawless v The Queen(1979) 142 CLR 659 at 676; Mickelberg v The Queen (2004) 29 WAR 13 at [413]. See also Mallard v The Queen (2003) 28 WAR 1 at [15].
The mere contention that Mr Wood's credibility would have been called more strongly into question does not lead to the conclusion that the appellant should not have been convicted.