Wheatley v The Queen - [2004] WASCA 71

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : COURT OF CRIMINAL APPEAL

CITATION: WHEATLEY -v- THE QUEEN [2004] WASCA 71

CORAM: STEYTLER J
WHEELER J
MCKECHNIE J

HEARD: 11-13 FEBRUARY 2004

DELIVERED : 8 APRIL 2004

FILE NO/S: CCA 197 of 2002

BETWEEN: ROWAN CHELTON SINCLAIR WHEATLEY
Petitioner
AND
THE QUEEN
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram   :YEATS DCJ
File Number            :  IND GER 1 of 1997

Catchwords:

Criminal law and procedure - Reference by the AttorneyGeneral of a petition for the Royal Prerogative of Mercy - Appeal against conviction - Whether the evidence led is fresh evidence or new evidence - Whether the evidence led at the appeal casts doubt on the credibility of a witness at the trial - Turns on own facts

Legislation:

Nil

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Petitioner: Mr L B Robbins
Respondent: Mr D Dempster

Solicitors:

Petitioner: Bayly & O'Brien
Respondent: State Director of Public Prosecutions

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

Easterday v The Queen [2003] WASCA 69
Gallagher v The Queen (1986) 160 CLR 392
Lawless v The Queen (1979) 142 CLR 659
Mallard v The Queen [2003] WASCA 296
Mickelberg v The Queen (1989) 167 CLR 259
Mickelberg v The Queen, unreported; CCA SCt of WA; Library No 990056; 12 February 1999
Nolan v The Queen, unreported; CCA SCt of WA; Library No 970260; 22 May 1997
Ratten v The Queen (1974) 131 CLR 510

Case(s) also cited:

Nil

STEYTLER J: On 6 November 1997 the petitioner was convicted by a jury on seven counts charged in an indictment which had been brought jointly against him and two co‑offenders, Craig Norton and Richard Heron. Those charges read as follows:
"(1)On 20 March 1996 at Greenhead ROWAN CHELTON SINCLAIR WHEATLEY and CRAIG DALLAS BRAMBLEY NORTON entered the place of MATTHEW JOHN MOREY without his consent, with intent to commit an offence therein.
(2)AND FURTHER that on the date and at the place referred to in Count 1 ROWAN CHELTON SINCLAIR WHEATLEY and CRAIG DALLAS BRAMBLEY NORTON unlawfully assaulted MATTHEW JOHN MOREY and thereby did him bodily harm.
(3)AND FURTHER that on the date and at the place referred to in Count 1 ROWAN CHELTON SINCLAIR WHEATLEY and CRAIG DALLAS BRAMBLEY NORTON unlawfully detained MATTHEW JOHN MOREY.
(4)AND FURTHER that on the date and at the place referred to in Count 1 ROWAN CHELTON SINCLAIR WHEATLEY and CRAIG DALLAS BRAMBLEY NORTON wilfully and unlawfully damaged a security screen door the property of BRIAN THOMAS MOREY.
(5)AND FURTHER that on or about 21 March 1996 at Greenhead ROWAN CHELTON SINCLAIR WHEATLEY attempted to enter the place of DARREN LEE MOREY with intent to commit an offence therein.
(6)AND FURTHER that on the date and at the place referred to in Count 5 ROWAN CHELTON SINCLAIR WHEATLEY and RICHARD CLYDE HERON wilfully and unlawfully damaged a security screen door the property of BRIAN THOMAS MOREY.
(7)AND FURTHER that on the date and at the place referred to in Count 5 ROWAN CHELTON SINCLAIR WHEATLEY and RICHARD CLYDE HERON wilfully and unlawfully damaged a window the property of BRIAN THOMAS MOREY."
The petitioner did not appeal against any of those convictions. However, some years after the time for lodging an appeal has elapsed, he has obtained further evidence which, he says, casts doubt upon the verdicts of the jury and by reference to which he has been successful in persuading the Attorney‑General to refer the matter to this Court under s 140(1)(a) of the Sentencing Act 1995. That section, insofar as it is presently relevant, provides that:
"(1)A petition for the exercise of the Royal Prerogative of Mercy in relation to an offender convicted on indictment … may be referred by the Attorney General to the Court of Criminal Appeal … -
(a)for the whole case to be heard and determined as if it were an appeal by the offender against the conviction …".
Before turning to the grounds upon which the petitioner seeks to have his convictions quashed, I should say something about the evidence which was led at the trial and also about the further evidence which has been led in this Court.

The Evidence at Trial

The evidence at trial established that, on the evening of 20 March 1996, the petitioner, Norton, and a third man, Lou Corkhill, had dinner at Heron's house, together with Heron and his wife Ava. All were drinking bourbon and Coke. Ava Heron put her children to bed at about 9.30 pm and, when she returned from doing so, she saw that the petitioner and Norton had gone. The two men returned about half an hour later and said that they had been to the home of Matthew Morey, one of the complainants. The petitioner said that they had "done the deed".
There was no dispute as to the fact that the petitioner and Norton had gone to Matthew Morey's house at 38 Greenhead Road, Greenhead. However, there was a dispute as regards what happened there.
Morey's evidence was that he had gone to sleep at 8.30 pm and that he was woken at 10.30 pm by a presence in his room. He saw the petitioner and Norton in his bedroom doorway. Both men were angry. They came into his room and pushed him back onto his bed. The petitioner said, "You're not going anywhere," and then grabbed him by the throat and began to squeeze. He blacked out after 15 seconds. When he regained consciousness, the petitioner and Norton punched him in the head, chest and groin. Both men were holding cans of beer and slurring their words. They were speaking loudly. The petitioner told Morey that Morey owed him $1600. Norton accused Morey and other members of his family of stealing the pots of other crayfishermen.
Morey also said that he tried to escape off the bed, but was pushed back while the assault continued. After about five minutes, Norton left for the kitchen where Morey could hear him rummaging through the drawers and cupboards. Morey also heard Norton activating his answering machine and listening to a message on it left by his brother, Darren Morey. The petitioner remained in the room with Morey. He was screaming at Morey. However, with Norton out of the room, Morey took the opportunity to push past the petitioner and escape to the kitchen. There he took possession of a kitchen knife in order to protect himself. Norton was by then outside the house. Morey ordered the petitioner out of the house and then proceeded to eject him from the house through the front door. Having done so, he locked the front door and telephoned the police. While he was on the telephone, the petitioner and Norton rammed his front door with an eight‑foot long pole. They then left in the petitioner's Holden utility.
The petitioner and Norton offered a somewhat different version of events. The two men said that, after a discussion, they decided to visit Matthew Morey in order to tell him that they had proof that he had been "pulling pots". They drove to Morey's home in the petitioner's utility and arrived at approximately 10 pm. They knocked on the front door and called out Morey's name, before entering his home. The front door was unlocked and, according to the petitioner, there was a "fishermen's custom" that, after knocking and calling out the occupant's name, they were free to enter. They arrived at Morey's bedroom doorway. Morey, who had awoken and turned his light on, asked them what they wanted. The two men asked him if it was all right for them to speak to him. Morey said that it was. Norton put to Morey the allegation with respect to the "pot pulling". Morey became aggressive and denied the allegation. Norton then left the room while the petitioner continued to challenge Morey about the "pot pulling", telling him that he was a liar. The two men began to shout at each other. Morey pushed past the petitioner, went to the kitchen and took a knife from the breakfast bar. The petitioner fled, followed by Morey. The petitioner shut the front door, picked up a nearby piece of timber and used it to barricade the door. He and Norton then left and returned to Heron's house. There the petitioner told Heron that Morey had "lost the plot". He also said that "the deed is done", by which he meant that he had confronted Morey about the "pot pulling".
That brings me to the events which happened later that night.
At about 11.30 pm, Corkhill and Norton left Heron's home. The petitioner remained there. In their evidence at the trial the petitioner and Heron said that, at about 1 am, they decided to look at some of the petitioner's pots which had earlier become snagged and which the petitioner had re‑set. Upon arriving at the jetty they changed their minds about looking at the pots. However, while there, they discussed an incident in which Matthew Morey had confronted Heron with a knife on the jetty. They decided that, in an attempt to ensure that this kind of situation did not occur again, they should go to the home of Matthew Morey's father, Brian Morey, and tell him what had happened earlier that evening. They drove there (Brian Morey's house was at 2 Johns Street, Greenhead) in the petitioner's vehicle and parked outside the front of the house. As matters turned out, the only occupants of the house, at the time, were Matthew Morey and his brother Darren.
There was a substantial dispute about what happened after the petitioner and Heron had arrived.
I will set out, first, the version offered by Matthew Morey (who said that he had taken refuge in his father's house after the events which had occurred earlier that night) and his brother Darren. They said that the petitioner and Heron got out of the petitioner's utility armed with three‑foot long pieces of wood. Heron was standing behind the petitioner with his jumper pulled up around his head. One or both of the men yelled abuse at the two Moreys. Matthew Morey said that the petitioner then grabbed hold of the house's security door, tore it off its tracks and smashed it on the bonnet of Darren Morey's Landcruiser. The petitioner and Heron then struck the glass of the front sliding door of the house with their pieces of wood. While shouting abuse at Matthew Morey, the two men proceeded to walk along the front of the house hitting the windows until they reached the bedroom window, the bedroom being the room in which Matthew Morey was standing. The petitioner struck the glass of the window, smashing it. Darren Morey, who had gone to get his father's Winchester rifle from the main bedroom, gave it to Matthew Morey who loaded the rifle and pointed it towards the top left‑hand corner of the window, aiming for a space above the heads of the petitioner and Heron. He then fired the rifle. The bullet passed through a vertical blind and then through the window itself. This did not deter the two assailants, with the consequence that Matthew Morey fired a second shot, this time a little closer to the petitioner and Heron. The bullet went through the hole which had been caused by the breaking of the window by the petitioner. The petitioner and Heron then ran away, leaving the petitioner's utility behind.
The petitioner's version of events, and that of Heron, differed significantly from that given by the Morey brothers. At the trial, they said that, after getting out of the utility, the petitioner called out to Brian Morey but received no response. He had previously sounded the horn of his utility about four times. The petitioner also knocked on the glass sliding door of the house, after calling out Brian's name. When he received no response, he slid the sliding screen door shut but it somehow fell off its tracks. Because this had happened, the petitioner said, he felt that he should persist in trying to gain Brian Morey's attention. He walked over to the main bedroom window (albeit he did not know that it was such). He was about to tap on that window when a shot was fired through it. He fled. Upon arriving at his utility, he heard a second shot. He kept on running.
Heron said that he had earlier headed back to the utility when the petitioner had been unable to attract attention at the front door of Brian Morey's house. He said that, while walking towards the utility, he heard a "swishing" sound. This made him turn around. He saw the house's security screen door lying on the ground. He continued walking towards the utility and had got into it when he heard a loud "explosion". He leapt out of the utility and saw that the petitioner was up against the wall of the house with an expression of terror on his face. He saw the petitioner head towards the utility and then heard the sound of another shot. The two men ran to Heron's house. Heron entered his house, but the petitioner kept on running until he had reached his own home. Neither of them called the police.
However, Darren Morey did call the police. They arrived at the Johns Street house within minutes of receiving the call. There were two police officers, being Senior Constable Gregory Ukich and Senior Constable Ken McLeod. In their evidence at the trial they said that they saw a white Holden utility parked 10 metres from the front of the house. That utility subsequently proved to be that of the petitioner. When they saw the Morey brothers, both appeared upset and Darren, in particular, appeared to be very frightened and concerned for his own safety. He was carrying a baseball bat. Both police officers, on inspecting the house, noticed that the front security screen door had been ripped off its tracks and left on the ground and that the bedroom window had been smashed. Ukich observed glass on the floor of the bedroom.
Ukich took a handwritten statement from Matthew Morey while McLeod took one from Darren Morey. After Matthew Morey's statement was completed, Ukich accompanied him back to his home at 38 Greenhead Road, where Ukich noted that there was a dent in the security door and that a tomato sauce bottle appeared to have been thrown against the wall. Matthew Morey's jeep was parked at the front of his house and, after the two men had stayed at the house for 20 to 30 minutes, Ukich returned to the Johns Street house in the police vehicle while Morey returned in his jeep. Ukich had noted red welts and marks on Morey's neck and chest area and traces of blood in his ear.
At 3 am two other police officers, both detectives, arrived at the Johns Street address together with a police officer from the forensic division, Constable Bryn Jones.
Jones noticed that the bedroom window was broken, with the majority of the glass having spilled inside the window. The damage was consistent with the window having been broken from outside with some degree of force. He located two spent cartridges just on the outside of the bedroom door, near an adjoining passageway. He took photographs of the injuries sustained to Matthew Morey's neck.
Jones detected and lifted some fingerprints on the outside of the glass sliding door. These proved to be from the petitioner's left hand. Multiple prints were lifted, indicating that the petitioner had touched the glass at least three times in the same place. The prints were found in a horizontal position with the thumb pointing downwards. This was consistent with an attempt to slide the door open.
A police photograph of the petitioner's utility, taken while it was still parked outside the front of Brian Morey's house, shows a long wooden plank in the rear of the vehicle. The petitioner could not explain how it got there.
The petitioner was later interviewed by two police officers, Detectives Hall and Carter. It was not in dispute that he lied to them about the events which had occurred. The police evidence was to the effect that the petitioner was asked by Hall whether he knew Matthew Morey and that he responded by saying, "Of course I do, he's the biggest prick in Greenhead." The petitioner also told the police officers that Matthew Morey was a thief and that he "pulls other people's pots". When asked whether or not he had been to Matthew Morey's home, or to the Johns Street home, the petitioner said that he had not visited either house and that he had been at home all night. He was then asked whether or not he owned a white Holden utility and responded by saying, "Yeah, have you found it?" He went on to tell the two police officers that someone had stolen it the previous night. When asked why he had not reported the theft to the police, he said, "I had to get to work. The ute will turn up somewhere." He also denied that he had seen either of Heron or Norton at all during the preceding night. When asked when was the last time that he had been at Matthew Morey's house, he said, "A long time ago. I can't remember when." When asked when was the last time that he had been to Darren Morey's house in Johns Street, he replied, "I don't know. It has been a long time. Why would I want to go to their house with that lunatic there?"
There then followed an exchange in these terms (according to the evidence of Detective Carter):
"Detective Hall said, 'Do you know where their houses are?' He [the petitioner] said, 'Yeah, of course I do.'
Detective Hall said, 'Can you explain to me how your utility ended up in the driveway of Darren's house in Johns Street?' The accused said, 'I don't know. Someone must have stolen it.'
Detective Hall said, 'The utility is unlocked and the keys are in the ignition. Can you explain that?' The accused said, 'Someone stole it.'
Detective Hall said, 'So do you wish to report your vehicle stolen?' The accused said, 'No, it doesn't matter. If you have got it back then it's not worth reporting it stolen, is it? Look, what am I supposed to have done wrong?
Detective Hall said, 'At about 10 pm last night two people went to Matt's house, entered the house, assaulted Matt and damaged the front door of the house.' The accused said, 'Well, what's that got to do with me?'
Detective Hall said, 'Two people were recognised, one as Craig Norton and the other one as you.' The accused said, 'No, that's bullshit. I was at home all night.'
Detective Hall said, 'And the vehicle used was your utility.' The accused said, 'Well, it was stolen, wasn't it?'
Detective Hall said, 'Then about 1 am this morning two people went to Darren's house, ripped off the front door and smashed the bedroom window.' The accused said, 'I was at home all night.'
Detective Hall said, 'These two people have been recognised as Rick Heron and you,' and the accused said, 'I didn't go anywhere near that place. I was at home all night.'
Detective Hall said, 'And again, your utility was used. How do you explain all of that?' and the accused said, 'I'm as surprised as anyone, but it's not me.'
Detective Hall said, 'Rowan, this is a very serious matter. Someone could have been killed. Shots were fired to scare you away from Darren's house,' and the accused said, 'Get the person who stole my ute and you will get the person who did it. You can check my fingerprints if you like. It wasn't me.'
Detective Hall said, 'We will check your fingerprints,' and at that stage he was advised that he would be charged."
When Heron was interviewed by police, he also denied that he had been to the Johns Street house on the previous night. He said that he had been at home, with friends.
The petitioner said that he had lied to the police because he had been locked up in a cell for three hours and did not have an opportunity to consult a lawyer and because he thought that he had "to say something" as they were going to "book" him. When Heron was asked, during the course of his evidence, why he had lied to the police, he said, "I didn't really know what had happened at the other property that evening. I wasn't, you know - wasn't saying anything." He also said that he had lied about the visit to the Johns Street property because he had seen the flyscreen door on the ground and did not know what else had happened. He said that he "was a bit shocked about different events that had happened".

Finally, so far as is relevant for present purposes, evidence was also led on behalf of the petitioner and his co‑accused from Dr Clive Cooke, a medical practitioner specialising in forensic pathology. He said that if Matthew Morey's version of the assault on him was correct, he would have expected to see bruising to the face "ranging from redness through [to] bruises, even sometimes grazes to the skin, and even sometimes cuts to the skin. The minimum one would expect to see would be some redness, some swelling, and some bruising". None of these signs were visible on the photographs of Matthew Morey taken by Constable Jones. He was also unable to see any injury to Matthew Morey's chest but said that the skin and tissues of the upper chest are "more resilient" and that trauma to that area would usually result in minimal external injuries.
Dr Cooke said that strangulation marks typically fall into two categories, involving either circular areas of bruising, known as finger‑pad bruises, or a small type of grazing of the skin which can either be straight or slightly curved, usually corresponding with fingernail impressions. The photographs of Matthew Morey did not show either of these kinds of injuries. Rather, the marks on Morey's skin, as they appeared in the photographs, were consistent with scratch‑like markings. However, Dr Cooke had been unable to examine Morey and said that he could not be certain that the markings on the neck were actually caused by the skin breaking. He also said that, if more pressure was applied to the skin, this could cause a deeper bruise which would take longer to appear on the surface. He accepted that it was possible for the scratch‑like injuries to have been caused by Matthew Morey struggling to escape from the petitioner's grasp. In the course of re‑examination he was asked whether the injuries that he could observe on the photographs were consistent with the account with Matthew Morey had given. He answered, "No."

The Further Evidence Led in this Court

With the consent of the respondent, the petitioner led evidence before us from three witnesses, Ross Morphett, Garth Dobney and Dr Armand Zurhaar. The respondent led evidence, responsive to that given by Dr Zurhaar, from Senior Constable Eric Davies and Mr Bernard Lynch and also evidence, responsive to that given by Mr Morphett, from Russell Morey, the brother of Matthew and Darren Morey.

Ross Morphett

Mr Morphett is a respected fisherman who lives in Greenhead. He has lived there since 1965 and was the former owner of the Johns Street house.
In his evidence, he said that in the early hours of 21 March 1996 he was awakened by a telephone call and that he was asked to go to the Johns Street house which was a short distance away from his own home. When he arrived there, the petitioner's utility was parked at the front of the house. However, neither the petitioner nor Heron was there. When he approached the front sliding glass door of the house, which was opened by Darren Morey, he noticed that the flywire door was damaged (albeit he could not recall whether or not it was "still in the hinges"). He then walked around the fence line of the property, in the course of which he met Russell Morey, who had been telephoned by one of his brothers. Russell Morey was armed with a baseball bat.
At about that time, two police officers arrived at the house. One of the officers went inside and the other remained outside. Morphett, Russell Morey and at least one of the police officers then moved towards the bedroom window. Morphett said that he saw a bullet hole in the window. He said that there was some conversation about this. He was then about three metres from the window. When asked, in the course of his evidence‑in‑chief, whether there was any other damage to the window, he responded by saying, "Not that I observed, no." He did not notice any glass. It was dark outside, but the bedroom light was on and Matthew Morey was inside the bedroom explaining to a police officer what he had done with the rifle which he had in his hand.
During the course of cross‑examination, the following exchange occurred between counsel for the respondent and Morphett:
"You were asked about glass on the ground and, as you remember it, there was no glass on the ground and you say that because you had bare feet?---Well, I was three metres away and you've got to understand it was dark at the time. It was virtually I'd say in the vicinity of 2.30 in the morning and if there was glass on the ground, it would've been dark. There would've been no lights on, to my knowledge, on that side of the house.
I'm not being critical. You weren't looking for glass?---No, I wasn't, no.
You happened to have bare feet and because you had bare feet and you didn't cut yourself you are assuming there wasn't glass on the ground. Is that right?---I didn't see any glass on the ground.
But you weren't looking for glass?---I had no need to.
And what I'm saying is when you say that there was no glass on the ground, you are saying that because you had bare feet?

---That didn't enter my mind. I didn't see any reason to look for broken glass.
What I'm suggesting is there may have been some broken glass on the ground but you didn't notice it?---I didn't see any window broken to look for broken glass.
Do you accept that there may have been broken glass on the ground - some broken glass on the ground - but you didn't see it at the time?---It is a possibility, I suppose, yeah.
Do you think as well, after all this length of time, it might be that you are mistaken about the window being broken?---It happened a long time ago, even when I gave the statement, but I still remember a bullet hole.
I hear what you say about that. Might you be mistaken about whether the glass was smashed in the window. That's what I am wondering?---According to the pictures it has been broken.
And you have told us you don't recollect that - seeing that at the time - and what I'm asking you is do you think you might be mistaken about that?---No. To my knowledge, to what I remember of the event, I can't remember any reason to mention broken glass but 2.30 in the morning - anything is possible."
Morphett also said that he had walked around the petitioner's utility and had not noticed a long piece of wood sticking out of it. When cross‑examined about this, he said that he "had no reason to duck or move aside from the plank of wood hanging out of the back", but added that it was possible that there may have been pieces of wood in the utility, the "well" of which was in darkness.

Garth Dobney

Mr Dobney is another resident of Greenhead, having lived and worked there for the past 13 years.
In his evidence, he said that in 1996 he left Greenhead for around one year and, after his return, worked with Matthew Morey on a crayfishing boat for some six to eight months during 1998. During that period Matthew Morey told him a few things about the incidents which had resulted in the trial of the petitioner, Norton and Heron. When asked what Matthew Morey had said, he responded by saying:
"Basically just that was [sic] Rowan, Rick and Craig Norton had gone around to his house, apparently assaulted him and then he was just saying stuff like - that Matt had gone to his parents' house after the assault and that Rowan and Rick had gone back around there, tried to tear the door off or something like that. Matt was saying how he fired a shot over Rowan's head; and Matt just said how he tried strangling himself."
When asked to expand upon this last comment, he said that Matthew Morey told him that, while in his parents' house in Johns Street, he had gone into his bathroom, looked at himself in the mirror and tried to strangle himself in order to make marks on his neck.
Dobney also said that Matthew Morey had told him that he (Morey) had "planted a piece of wood in his [presumably the petitioner's] ute". He said that this did not mean much to him at the time. He added that Matthew Morey had told him that he had fabricated evidence before and that he could do it again.
During the course of cross‑examination, Dobney said that Matthew Morey had discussed his strangling of himself during November or December of 1998 when he, and two others, were "having a few drinks" at Dobney's home. The two others were persons whom he identified only as "Jason and Lorraine". He said that there had been "a little bit of a scuffle" during the course of the evening. He said that "mainly first up it was Lorraine and me because I asked them to turn the music off because I wanted to go to bed and they wouldn't". Matthew Morey then intervened. When asked whether he and Matthew Morey came to blows, Dobney said, "No, we just had a little roll on the ground and that was it." When it was put to him that he had had "a skinful" that night, he acknowledged that he had "had a few drinks, … the same as everyone else".
Dobney also said that Matthew Morey had told him about "fabricating" evidence "many times in the past during the off‑season". However, he did not go to the police or tell anybody what Matthew Morey had told him, other than the petitioner and officers of the Anti‑Corruption Commission who later approached him.
It was put to Dobney that Matthew Morey had dismissed him from his employment with him because he had a drug problem. Dobney initially denied that he had had a drug problem at that time but, when confronted with transcript revealing that, in the course of submissions made on his behalf in proceedings in which he was sentenced after being convicted of burglary and stealing, his counsel had made reference to his drug problem, he was forced to acknowledge that he did then have such a problem. However, he said that before he "got the sack" he had told Matthew Morey that he was not "going to go down south with the boat". Dobney added that it was not Matthew Morey who had dismissed him. He said that Matthew Morey's father had done so.
Dobney has, at a time or times since his dismissal by a member of the Morey family, worked for a member of the petitioner's family.

Dr Armand Zurhaar

Dr Zurhaar is the holder of a bachelor's degree and a doctorate of philosophy in applied science and a graduate diploma and a master's degree in science. He studied what he referred to as "forensic glass analysis" in the course of both his honours degree and his master's degree. He has spent the last 20 years working in the field of "material science and forensics" which, he said, involves work in the area of ballistics, forensic science and chemistry, as well as forensic materials, crime scene reconstructions and work of that nature.
In March 2000 he prepared a report which was tendered in evidence in these proceedings.
There are two aspects to the report. The first relates to a jarrah plank, some 2.2 metres long by 95 millimetres wide and 25 millimetres deep, which was examined by Dr Zurhaar. The plank was said to have been that used to damage the screen door at Matthew Morey's home in Greenhead Road. After examining the markings on each end of the plank and the position and nature of the damage to the screen door, Dr Zurhaar concluded that the "only configuration that was found to satisfy all of the physical evidence is the bracing of the timber plank into the screen door". He said that if the bottom end of the plank leaned against a slight lip in the paving on the ground outside the door, and the front of the plank was then pressed down against the door itself in order to jam it closed, this would result in precisely those markings which were found on the plank itself and also in the damage which was found on the door.
The second aspect of Dr Zurhaar's report relates to the damage to the window of the bedroom of the Johns Street house and the probable position from which the second shot was fired in the early hours of 21 March 1996. As will be apparent from what I have said above, Matthew Morey maintains that the second shot was fired from the bedroom. However, the petitioner contends that it was fired from outside the front door of the house. Dr Zurhaar concluded that only one shot was fired from the bedroom and that, if an impact mark which was found on a nearby kerb was caused by a rifle bullet, the bullet was fired from outside the front door of the house, as the petitioner says it was.
Dr Zurhaar supported these last conclusions on a number of bases.
Firstly, he said, the vertical blinds on the window showed only one bullet hole and, more importantly, only one area in which there were gunshot residues and evidence of "blow‑back". The gunshot residues are left on the blind by the gunpowder which follows the course of the bullet. The "blow‑back" results from the spraying backwards, in the direction of the shooter, of material from the surface struck by the bullet, in this case the glass window, as well as "spatters" of metal from the bullet itself and some gunpowder.
Next, Dr Zurhaar said that the fracture patterns depicted in the photographs of the broken window taken by the police photographer were consistent with a window which had only once been penetrated by a bullet.
Dr Zurhaar also spoke of a number of "reconstructive ballistic and impact tests" which had been carried out by him in March 2000. These tests were designed to duplicate the actual conditions present on the night of 21 March 1996, save that 3 mm glass was used instead of the 4.89 mm glass which had in fact been present, Dr Zurhaar having been under a mistaken impression as regards the thickness of the glass which had been in the window at the relevant time. His description of the tests carried out by him and the conclusions which he drew from those tests are set out in his report as follows:
"The vertical blinds were positioned in the direction and angle determined by the laboratory examinations of the exhibits and the shooter was positioned relative to the blinds so as to achieve an oblique entry angle into the slat. A single shot was then fired from the seized weapon at a distance of 3m into the slat at an angle of 15‑20° from perpendicular (see Photo 34). The bullet was seen to penetrate the glass and produce a characteristic 'hole' with opaque edges (see Photo 35). The hole produced in the blind slat was found to match the hole in the exhibit slat with respect to entry angle (see Photos 25‑26). The distribution of residues present on the adjacent slats also matched the pattern present on the exhibits (see Photos 27‑28). Previous testing which involved firing bullets through a slat to determine entry angle were carried out without glass behind the blind and no residue pattern was produced on the adjacent slats. This test confirmed that the position of the slats relative to the glass and the position of the shooter relative to the slats as determined from laboratory examinations was correct. The above tests were also replicated with the only variation being that the shooter was positioned at a distance of 2m from the window not 3m. The same results were produced. Placing the shooter at a distance of 1m was not carried out as previous testing showed a substantial difference in gunshot residue distribution occurs at such close ranges. Placing the shooter at distances greater than 3m was also not carried out as the layout of the house and bedroom made it very difficult, if not impossible, for the shot to have been fired from greater distances.
Further tests were also carried out to determine if it was possible to produce a bullet penetration in the glass if the window has first been attacked by an intruder wielding a length of timber or a wooden baseball bat. Once the glass has been broken by such forceful blows, the fractures that are present have weakened the pane structure to the point that it is no longer possible to fire a bullet through the glass and make a penetration hole. Instead, a bullet impacting the glass will blow out large sections and leave a characteristic fracture edge pattern (see Photos 36‑39). The resistance to penetration of a fractured pane is substantially lower than that of an intact pane. A bullet impacting a weakened glass surface will not create the blowback of residue that occurs when it impacts a solid intact surface.
Impact tests were carried out with both a length of timber and a wooden baseball bat. The object of the tests was to attempt to reproduce the fracture profile present in the exhibit photographs. The examination of the crime scene photos indicated that a bullet had penetrated the glass and that no less than 3 impacts had occurred to the rest of the pane to cause breakage of the glass. One test involved firing a bullet through the glass to produce a hole and then impacting the glass with the wood. The fracture patterns shown in the exhibit photographs suggest that the first blow was in close proximity to the bullet hole and that the other two blows were to the right of the bullet hole when viewed from outside (see Photos 40‑43). When this sequence was applied to the test pane, the fracture patterns that were produced were very similar to those depicted in the crime scene photos.
To test the assertion that the bullet was fired after the window was broken from the impacts; several panes were attacked with either a length of wood or a wooden baseball bat. In all cases, the nature of the fractures that occurred showed far fewer similarities to the crime scene. In particular, the opaque edge that is characteristic of a bullet penetration could not be produced by a broad edge impact (see Photo 44). This supports the rest of the forensic findings, in that the impacts occurred after the bullet penetration of the glass."
As regards this last proposition, Dr Zurhaar was shown, during the course of his oral evidence, a set of photographs taken during tests conducted by Senior Constable Davies on behalf of the Anti‑Corruption Commission on 24 January 2002, in the course of which Constable Davies fired six shots into broken panes of glass. Dr Zurhaar acknowledged that the photographs showed some opacity in the glass immediately adjacent to the area struck by the bullet but said that, in most cases, the degree of opacity was less than that on the crime scene photo, indicating, in his opinion, that the crime scene glass was struck by a bullet before it had been broken. He also said, as regards the issue of opacity, that, if the bullet was fired through a broken pane of glass within 100 to 150 millimetres of the frame edge, "for all intents and purposes you are shooting a solid piece glass".
In the course of cross‑examination, Dr Zurhaar said that the fact that he had mistakenly performed his tests on 3 mm glass rather than 4.89 mm glass made no difference. That, he said, was because the "response" of a 3 mm pane of glass was directly similar to that of a 4.89 mm pane of glass when impacted by either a high‑speed projectile or a piece of wood or a baseball bat. He maintained that this was so notwithstanding that, in the course of an earlier interview with representatives of the police Internal Affairs Unit, he had said that he had picked up glass particles from the pavers to check that the glass was in fact 3 mm glass because "somebody might allege … that our testing assumed that the original pane was only a three‑millimetre pane and if somebody could show up with six millimetres it would invalidate our testing". However, he explained this by saying that he was then simply referring to the need to avoid a possible contention (with which he did not agree) that any difference in the thickness of the glass would invalidate the testing.
Dr Zurhaar also acknowledged, during the course of cross‑examination, that he had said to the representatives of the Internal Affairs Unit that "crack and fracture analysis and bullet penetrations and things will change depending on the thickness of the glass", but added that he had meant by that only that if the glass at the crime scene was very much thicker than that used in testing, as, for example, if it had been as much as 10 mm thick, then this would be the case.

As I have foreshadowed, Dr Zurhaar also mentioned, in his report, an impact mark which was found in the concrete kerbing present along the access road at the front of the Johns Street property. He said that that impact mark presented all of the physical characteristics of a high‑speed projectile impact and was consistent with damage caused from the ricochet of a .357 or similar sized bullet (being the size of the bullets fired from the rifle on 21 March 1996). He said that the shape of the impact allowed a direction of impact to be established by using a collimated helium‑neon tube laser. By this means, he concluded that, if the impact mark was that of a bullet fired from the rifle used by Matthew Morey, the rifle would have been fired from a point directly adjacent to the front door of the property at the foot of the step.
Testing of the piece of kerbing which had been impacted (the piece was cut away and removed from the site) showed no traces of lead from a bullet. However, Dr Zurhaar said that this may be due to the weathering experienced by the concrete comprising the kerbing or because the piece of concrete that actually came into contact with the projectile was torn away with the ricochet and lost to the environment. He accepted, in the course of cross‑examination, that there was no proof that the mark had been made by a bullet. He also accepted that he could not say when the mark had been made.
When cross‑examined as regards the proposition that a second shot had been fired through the window in circumstances in which it had previously been broken by the petitioner, Dr Zurhaar said that there was no forensic evidence on the site to support that proposition, whether in the form of powder residues or blow‑back on the blinds, but acknowledged that it was possible, if "highly improbable".
Dr Zurhaar said that his preferred supposition proceeded upon the assumption that the vertical blinds "were almost fully open, perpendicular but with a slight twist to the right", that orientation having been pieced together from the forensic evidence. He said that, if there was no glass for the bullet to strike at the time that it went through the window, there would be no blow‑back, but there would still be some powder from the shooter's side of the blind unless the bullet went precisely through the middle of the gap between two slats. His evidence in this last respect was a little equivocal. At a later point in his evidence he said that he thought that it would be impossible not to get some powder on the adjacent slats, although, still later, he said that the gap between the slats was probably 100 millimetres at the most and that it would require a precision shot to avoid leaving any of the following particles on an adjacent slat. However, he acknowledged that much would depend upon how far back from the slats the shooter was standing. He said that if the shooter was standing some three metres from the window, the cloud of powder residue would be upwards of at least a foot in diameter. Presumably (although he did not say this), if the shooter was very close to the blinds, the powder residue would be likely to miss the slats if the bullet passed through the centre of a gap between them. Dr Zurhaar did not conduct any tests in order to see what would happen if a bullet was fired precisely between two slats. He did say, somewhat surprisingly, that the two spent cartridges lying on the floor of the bedroom were not in a position "conducive to a shot having been fired that would have gone straight through and missed everything". However, there is nothing to say whether or not the cartridges, or either of them, had been moved.
Dr Zurhaar also said that the blow‑back obtained from the police testing was much less than that on the crime scene photos and that there was no way of reproducing the blow‑back on the crime scene photos without putting the bullet through a solid pane. He acknowledged that a shot fired through glass within 50 millimetres of the frame would simulate a solid pane, but said that:
"[W]e know from the hole in the blind and its location relative to the window that it went through the window at least 350 millimetres away from any support that might be given by the frame. The only way therefore to produce the back‑spatter pattern we had, the absence of the mud paving or crazy paving, and the lack of a solid opaque bullet hole is produced by putting that bullet through a solid piece of glass."
Dr Zurhaar said that the phenomenon of "crazy paving" or "mud‑crazed" cracking (a multitude of small cracks spreading in all directions), referred to in this last response, was only present in glass that had already been fractured at the time of impact. By way of comparison, an impact on unbroken glass would, he said, be more likely to produce straight or "superradial" stress cracking, of the kind which, he believed, was depicted in the photographs of the crime scene. He went on to say that every shot fired by Senior Constable Davies in the course of the police testing had produced "mud‑crazing". He concluded that there was nothing to support the hypothesis that a bullet was fired, at the crime scene, through already broken glass.

Eric Davies

Senior Constable Eric Davies is employed by the Australian Federal Police as a firearms and ballistics team member within the forensic services, having held that appointment since July 2003. Prior to that he was employed for a number of years in the ballistics section of the Maylands Police Academy in the Western Australian Police Service.
He gave evidence of a number of tests which he carried out and which resulted in the production of a report authored jointly by himself and Mr Bernard Lynch in March 2002.
The report, in its "Executive Summary", reads in part as follows:
"On testing, our results showed that glass and projectile blowback occurs whether the bullet strikes an intact or broken pane. It was also found that bullet holes with opacified edges were readily produced when shots struck broken panes and near broken edges.
It was also noted that the glass from the scene was 5 mm glass and not the 3 mm glass used in the ACC tests. Further, the scene photographs are somewhat limited in what they show regarding the fractures. Hence the basis for … [Dr Zurhaar's] conclusions are flawed or questionable. Therefore, it is our opinion that whilst … [Dr Zurhaar's] finding is a distinct possibility, the alternative that the bullet struck an already broken pane cannot be discounted."
In their summary and conclusions, the authors of the report said, inter alia, that:
"1.The mark on the kerbing cannot be reliably identified as a bullet hole caused by a projectile from either of the recovered fired cartridge cases.
2.At least one shot has been fired from inside the bedroom. There is only evidence (a bullet hole) of one shot being fired but a second shot could have been fired without leaving another bullet hole in the blind if the shooter moved to fire the second shot.
3.No reliable inferences can be drawn from the position or number of fired cartridges in the bedroom.
…
5.The shot has been fired from a position to the right of the bullet hole from a range of approximately 3 metres.
6.The shot that passed through the blind has struck window glass resulting in blowback of glass and projectile lead.
7.It cannot be concluded on the basis of glass and lead blowback on the blind alone that the window was intact as these residues are produced whether the glass is broken or not.
8.The major damage to the bedroom window was caused by it having been smashed from the outside.
9.It is plausible that the pane of glass in the bedroom window was intact prior to being shot and was subsequently smashed with a blunt instrument … .
10.The possibility that the window was already smashed before being shot cannot be discounted. The reasons for this are:
(i)each pane of glass smashes differently. The way in which it smashes depends on the force applied, the location of the force, the stresses on the window, the size of the implement (not identified) and the original condition of the window (unknown). Hence the size and shape of a hole may be unpredictable;
(ii)the possibility that the shot has struck near an edge, leaving a partial hole (opaqueness) and no other fractures as appears in the scene photograph and demonstrated in reconstructive experiments. Note: the blind obscures much of the area surrounding the apparent bullet hole in the only close up scene photograph;
(iii)the presence of projectile glass particles back splattered onto the blind occurs where a projectile strikes an already damaged pane.
11.Having regard to the foregoing, it is considered that the sequence of gunshot and glass breakage cannot be absolutely determined.
…"
In his oral evidence Constable Davies said, as seems to me to be the fact, that it is not possible to tell conclusively from the photographs whether or not "mud‑crazing" was present. He also said that, in the course of his testing, "mud‑crazing" was not seen in every instance in which a bullet was fired through a previously broken pane of glass. One instance of the absence of "mud‑crazing" was a test in which the bullet hit the glass at least five centimetres away from the frame. Constable Davies concluded that, from what he had seen at the crime scene and in the course of his testing, it was a reasonable proposition that there was some breakage of the glass, that a first shot was then fired into the glass, that there was further breakage of the glass and that a second shot was then fired through open space.

Bernard Lynch

Mr Lynch is the principal chemist in the physical evidence section of the forensic science laboratory at the Western Australian Chemistry Centre. He has been employed at the Chemistry Centre in the general area of forensic chemistry since about 1976 and has had ongoing involvement in examining physical evidence, including glass and gunshots.
In his evidence‑in‑chief (he was not cross‑examined) he confirmed the conclusions at which he and Senior Constable Davies had arrived in their report. He also made some additional comments of particular relevance. The first of these related to the damaged kerb. He said that, in the absence of evidence of projectile material, it was not possible to conclude that the damage was cause by a projectile. He also said that it was not possible to say when the damage occurred. Next, he said that when bullets are fired through broken panes of glass, they produce opacified regions. Finally, Mr Lynch was asked whether, having regard for the available evidence, it was "a reasonable scenario that the window was broken to an extent, that the first shot then went through glass as shown in the photograph, that the window was then broken again, or if the window was broken again a second shot then went through open space". He responded by saying, "That could have happened."

Russell Morey

Russell Morey was the last of the witnesses to give evidence before us. He is, as I have said, the brother of Matthew and Darren Morey. In March 1996 he lived in Greenhead, close to the house in Johns Street in which his parents and his brother Darren lived.
In the early hours of the morning of 21 March 1996 he was telephoned by his brother Darren and made his way to his parents' home. He could not remember whether or not he was then armed with a baseball bat.
When he arrived at his parents' home, he saw the petitioner's utility parked at the front. He also saw a large hole in the front window of the bedroom of the house. He saw glass, outside, on the ground and also inside the bedroom. Two police officers arrived shortly after he did. He remembered Ross Morphett being present.

Fresh/New Evidence

It is important, when considering the further evidence which was placed before us, to bear in mind the distinction between "fresh" and "new" evidence. Fresh evidence is evidence which either did not exist at the time of trial or which could not then with reasonable diligence have been discovered. New evidence is evidence which was available at the trial or which could, with reasonable diligence, then have been discovered.
The rationale for setting aside a conviction on the ground of fresh evidence has been said by Toohey and Gaudron JJ in Mickelberg v The Queen (1989) 167 CLR 259 at 301 to be that the absence of that evidence from the trial was, in effect, a miscarriage of justice (see also Gallagher v The Queen (1986) 160 CLR 392 at 395, 402 and 410).
However, different considerations apply in the case of new evidence. In Lawless v The Queen (1979) 142 CLR 659 at 675 ‑ 676 Mason J said:
"However, it is not permissible for a court of criminal appeal to set aside a conviction if the newly adduced evidence, not being fresh evidence strictly so called, reveals no more than a likelihood that the jury would have returned a verdict of not guilty. Two considerations operate to bring about this result. The first is that in a criminal trial the accused is entitled to decide how his case will be conducted, in particular, what evidence he will call. He makes this decision in the light of the knowledge that he is tried but once, unless error or miscarriage of justice results in a successful appeal. He cannot therefore conduct his defence by keeping certain evidence back in the expectation that, if he is convicted, the existence of the uncalled evidence will provide a ground for a second trial at which a different or refurbished defence may be presented. Accordingly, an accused person, if convicted, generally cannot complain of a miscarriage of justice if he deliberately chooses not to call material evidence, it being actually available to him at the time of the trial, or if he fails to exercise reasonable diligence in seeking out material evidence.
The second consideration is that there must be powerful reasons for disturbing a conviction obtained after a trial which has been regularly conducted. ... If the evidence newly adduced falls short of establishing that the accused should not have been convicted, there is no overwhelming reason why the conviction, regularly obtained after a fair trial should not be allowed to stand."
Similarly, in Mickelberg, above, at 301, Toohey and Gaudron JJ said:
"There is no miscarriage of justice in the failure to call evidence at trial if that evidence was then available, or, with reasonable diligence, could have been available: see Ratten v The Queen (1974) 131 CLR 510, at pp 516‑517, per Barwick CJ …".
While there have been suggestions to the effect that the distinction between fresh and new evidence is not as significant as it once was (see, for example, Nolan v The Queen, unreported; CCA SCt of WA; Library No 970260; 22 May 1997, per Malcolm CJ with whom Pidgeon and Murray JJ were in agreement), the distinction is, as the Court pointed out in Mallard v The Queen [2003] WASCA 296, one which is soundly based in principle and which continues to be recognised: see, for example, Easterday v The Queen [2003] WASCA 69 at [204], although, as was noted in Ratten v The Queen (1974) 131 CLR 510 at 517 and again in Mickelberg, at 301, there may be somewhat greater latitude in the case of criminal trials than in the case of civil trials (see also Mallard at [14]).
Where the evidence is new, but not fresh, a verdict of guilty will be quashed only if it either shows the appellant to be innocent or raises such a doubt about his guilt in the mind of the Court that the verdict should not be allowed to stand: Ratten, above, at 520, per Barwick CJ. On the other hand, where the evidence is fresh, the test appears to be that of whether the petitioner has established that there is a significant possibility that, in the light of all the admissible evidence (including that given at the trial), a jury, acting reasonably, would have acquitted him or her: Gallagher, above, at 399; Mickelberg, above, at 273, 275 and 302; Mallard, above, at [16] and Mickelberg v The Queen, unreported; CCA SCt of WA; Library No 990056; 12 February 1999.
In the last mentioned of the Mickelberg cases the Court said (at 22) that:
"Although the ultimate question concerns the court's opinion as to the effect of the fresh or new evidence on a jury, it is inevitable that, in the process of answering that question, the court will form its own assessment of the credibility of the witnesses. Regard will be had to the fact that, as Mason CJ, Deane, Dawson and Toohey JJ pointed out in … [M v The Queen (1994) 181 CLR 487 at 494], 'a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced'. Regard, however, will also be had to the possibility that, in some instances, a witness regarded by the court as credible beyond reasonable doubt, may be seen by a jury in a different light, and that a jury might have a different view of a witness, regarded by the court as not being capable of belief."
In this case the evidence of Mr Dobney was fresh, but that of Mr Morphett was plainly not.
The transcript of the evidence at the trial reveals that the then counsel for the petitioner, in the course of cross‑examining Constable Ukich on the fourth day of the trial, put to him that Mr Morphett had been present at the Johns Street house in the early hours of 21 March 1996. It was then open to those advising the petitioner to speak to Mr Morphett and, if they chose to do so, to lead evidence from him in respect of his observations of the scene upon his arrival. However, no evidence was led from him in that or any respect.
As to the evidence of Dr Zurhaar, counsel for the respondent conceded that this was fresh evidence, except for that part of it which related to the likely cause of the damage to the screen door at the Greenhead Road property. The exception was said to arise because the cause of the damage to the door was always a live issue at the trial. For my part, I have some difficulty in understanding why the balance of Dr Zurhaar's evidence falls into any different category as it seems to me that the question whether the window was shattered before or after the firing of the second shot, and the question whether the second shot was in fact fired from the bedroom or from near the front door, were always live issues at the trial. However, I am prepared to proceed upon the basis of the concession made on behalf of the respondent.
The evidence led by the respondent from Mr Russell Morey was, of course, led in answer to that adduced from Mr Morphett and that led by the respondent from Senior Constable Davies and Mr Lynch was led in response to that of Dr Zurhaar.

Grounds of appeal

That brings me, at last, to the petitioner's single ground of appeal. It reads as follows:
"That by reason of the discovery of fresh evidence the applicant's convictions are unsafe and unsatisfactory and have resulted in a miscarriage of justice.
Particulars
Fresh evidence has become available since the applicant's trial which was not reasonably ascertainable or discoverable by the application [sic] or his legal advisors prior to trial to the effect that:
(i)Matthew John Morey, the principal crown witness against the applicant lied on oath in crucial aspects of his evidence; and
(ii)Matthew John Morey has admitted that the evidence he gave against the applicant was fabricated."

Reference of the Whole Case

This ground of appeal must be considered in a context in which, by virtue of s 140(1)(a) of the Sentencing Act, the reference is one for "the whole case" to be heard and determined "as if it were an appeal". This requires this Court to consider the case in its entirety, subject only to the limitation that it be heard and determined as if it were an appeal by a person convicted: see Mickelberg (High Court), above, at 311 ‑ 312; Ratten, above, at 514 and Mallard, above, at [7].

The Events of 20 March 1996

Against this background I propose, first, to consider the events of 20 March 1996. These encompass counts 1 to 4 on the indictment, being the four offences which were found by the jury to have been committed at the Greenhead Road house of Matthew Morey.
As to counts 1, 2 and 3, being those which alleged respectively that the petitioner and Norton entered Matthew Morey's home without his consent with intent to commit an offence therein (said to be an assault), that they unlawfully assaulted him and did him bodily harm and that they unlawfully detained him, the only addition to what was before the jury is the evidence of Mr Dobney.
I formed the very firm impression, on listening to his evidence, that there is no prospect of any reasonable jury relying upon it.
While Mr Dobney attempted to underplay his animosity towards Matthew Morey, there was abundant evidence of it. I have said that he has been in a physical fight with Matthew Morey (albeit he chose to describe it as only "a little roll on the ground"). I have also said that he was dismissed from his employment by a member or members of the Morey family and that it was put to him that this was because of a drug problem. While he denied this, I found his denial to be unconvincing. Indeed, that was my impression of the whole of his evidence. It is also worth noting that, while Dobney said that he was told by Matthew Morey that Morey "had tried strangling himself", he did not say that Morey had told him that he (Morey) had not been assaulted by the petitioner and Norton. Rather, it seems from the extract from Dobney's evidence which I have quoted above that Morey told Dobney that he had been assaulted by the two men.
As to Matthew Morey's injuries, it is true that Dr Cooke, in his evidence at the trial, thought that the injuries suffered by Matthew Morey were inconsistent with those which might have been expected had his version of events been true and this does lend some support to the suggestion that they were self-inflicted. However, as I have said, Dr Cooke also acknowledged that the injuries which he observed were consistent with injuries which might have been caused by Matthew Morey struggling to escape from the petitioner's grasp. It may also be noteworthy that the injuries were already in existence by the time the police officers arrived. I have earlier mentioned that they were observed by Constable Ukich and later photographed by Constable Jones.
When all of the evidence is considered together, including that of Mr Dobney, I am simply unable to accept that it would be sensibly open for a reasonable jury to form any other view than that arrived at by them at the trial. The petitioner and Norton went to Matthew Morey's home after having consumed a few drinks and, effectively, barged in without invitation. There is no doubt that the petitioner was then angry. It is difficult to believe that he, or Norton, would, in the circumstances, have been so polite as to inquire of Matthew Morey whether it was all right for them to speak to him, as they said they did. It also seems to me to be most unlikely that their purpose would have been no more than that of confronting Matthew Morey with the fact that there was proof that he had been "pulling pots". It is equally unlikely, in my opinion, that the petitioner would have told Ava Heron that he had "done the deed" if he had done no more than confront Matthew Morey with this allegation. It is also difficult to understand why, if that was all that had occurred, Matthew Morey should have called the police and then sought refuge in his father's house.
So far as count 4 is concerned, the issue whether or not the screen door had been "rammed" or merely jammed shut was squarely before the jury at the trial. It was always the case of the petitioner that he had done no more than jam the security door closed with the plank in order to protect himself from Matthew Morey (although, while little turns on this, one might speculate as regards the question of how he found the time to do this if, when he fled the house, he was so closely followed by the armed Morey that he needed to barricade Morey in the house in order to protect himself). Similarly, it was always the case of the prosecution that the petitioner and Norton had "rammed" the security door with the plank, although Matthew Morey, in his evidence, did appear to acknowledge that the plank or pole might have been propped against the door. That is apparent from the following exchange which occurred during the course of Matthew Morey's cross‑examination by the then counsel for the petitioner (appeal book 240):
"It wouldn't be right that in fact you weren't able to open the front door after they had left because there was a pole propped against it which prevented the door opening?---That's a good point, because I think they did the pole [sic] there or something. I'm not sure. No, I'm not sure.
But you accept that possibility?---It's a strange one, but there's something about it that's sort of - not sure."
A little later, the following exchange occurred, also in the course of the cross‑examination of Matthew Morey:
"Now, when these men did walk away from your house after the pole had come into contact with your screen door, were they carrying anything at that time in their hands?---That is a bit that I'm not really sure of, whether they left the timber there and came back and got it, because I never actually went back out the front again, but I have a funny feeling that the timber was there against the door or something, although I'm not really sure."
While the evidence of Dr Zurhaar strongly supports the proposition that the damage to the screen door was brought about in the course of jamming it closed, this part of his evidence is, as I have said, not conceded to be fresh evidence and is patently not so. More importantly, it does not provide any support for the single ground of appeal which, as I have said, is exclusively to the effect that the evidence now available reflects upon Matthew Morey's credibility. As I have pointed out, he was, in his evidence, prepared to acknowledge the possibility that the plank had been jammed up against the door, albeit he later described this as "a bit of a weak theory". However, the jury either did not accept this as a reasonable possibility or else found that, if it was, it was insufficient, in the circumstances, to give rise to a defence to the charge of wilfully and unlawfully damaging the security screen.

Events on 21 March 1996

As to the events which occurred on 21 March 1996 (giving rise to counts 5, 6 and 7 on the indictment), it is necessary, first, to deal with the evidence of Mr Morphett.
He presented as an honest witness who sought to assist the Court to the best of his ability. However, his evidence really did not advance matters to any great degree. Of course, if a jury was to find, on the strength of his evidence, that the bedroom window of the Johns Street house was undamaged, save for a small bullet hole, at the time of his arrival, this would bear directly upon the credibility of Matthew Morey. However, it seems to me that it would not be open to a reasonable jury to make any such finding.
I have already said that Mr Morphett was not prepared to say that the window was not shattered. All that he was prepared to say was that he did not notice that it had been shattered. He was confident that he saw a bullet hole and this is what had stuck in his memory. I formed the distinct impression, in the course of listening to his evidence, that the bullet hole, and the fact of the rifle having been fired, made a considerable impact on him but that he was otherwise uncertain in his recollection of events, not surprisingly after the considerable lapse of time which had occurred before he was first asked to say what it was that he had seen upon his arrival at the house.
Next, it necessarily follows, in this respect, that if, after it was seen by Mr Morphett, the window had been broken by Matthew Morey himself (as must have been the case if the petitioner's version of events was true and if Mr Morphett was correct in his recollection), then the police officers must have been party to this fabrication of evidence. On the face of it, that proposition appears to be absurd. The police had no reason for partisanship in a dispute between crayfishermen, let alone as regards such a relatively trivial aspect of the events which had occurred. That the police officers must have been involved in any such conspiracy was conceded by counsel for the petitioner. This concession was made necessary by the fact that the evidence at the trial established that, from the time of Mr Morphett's arrival, Matthew Morey was at all times in the company of a police officer (save for the short drive back to the Johns Street property from his home) until such time as the police photographer had photographed the damage to the window.
It is apparent from the verdict of the jury that the jury accepted the evidence of the police in this respect. In my opinion, the same result would inevitably have followed even if the new, and somewhat equivocal, evidence of Mr Morphett had been available to it. I reiterate, also, that that evidence is quite plainly not fresh evidence.
As to the scientific evidence, it seems to me that this was inconclusive. Dr Zurhaar accepted that it was possible, if highly improbable, that the second bullet was fired from the bedroom. On the other hand, those who gave evidence on behalf of the respondent in this

respect accepted that this was a reasonable scenario as, they said, was that preferred by Dr Zurhaar.

Of course, the scientific evidence must be looked at in its overall context in which, in my opinion, the version of events offered by the petitioner and Heron was patently unworthy of credit. It defies belief to think that, after the earlier incident, the two men would have decided, at around 1 am, to tell Matthew Morey's father of his son's wrongdoings. Even less likely is the suggestion that the screen door accidentally fell over and (even if the fingerprint evidence could be put to one side) that the petitioner had done no more than knock on the sliding door. If this is all that had occurred, it seems to me to be most unlikely that the police would have been called by the Morey brothers rather than by one or both of the petitioner and Heron (to say nothing of the fact that Darren Morey and Ross Morphett were also called over in the early hours of the morning) and even more unlikely that Darren Morey would have been found by those who arrived at the scene in what they described, in effect, as a somewhat panicked state. Also, the series of lies told by each of the petitioner and Heron is explicable, in my opinion, only by a consciousness of their guilt.
While there were some unsatisfactory aspects of the evidence, as, for example, the (somewhat equivocal) evidence of Dr Cooke (who, as I have said, never examined Matthew Morey), the seemingly exaggerated evidence of Matthew Morey as regards the smashing of the screen door on the bonnet of Darren Morey's Landcruiser and the difficulty in explaining how the length of wood found its way into the back of the petitioner's utility (and the possibility is open, in this last respect, that the petitioner had collected the length of wood from Matthew Morey's home before driving to the Johns Street property, Mr Morphett's evidence of not having seen it in his utility having been somewhat vague), these are not enough, in my opinion, to raise any reasonable doubt.
I would consequently dismiss the appeal.
WHEELER J: I have had the advantage of reading in draft the reasons for decision of Steytler J. I agree with those reasons and have nothing to add.
MCKECHNIE J: Following a trial in the District Court in Geraldton the petitioner was convicted of seven charges arising out of two separate incidents which occurred on 20 March 1996 at Greenhead. They were:

"(1)On 20 March 1996 at Greenhead ROWAN CHELTON SINCLAIR WHEATLEY and CRAIG DALLAS BRAMBLEY NORTON entered the place of MATTHEW JOHN MOREY without his consent, with intent to commit an offence therein.
(2)AND FURTHER that on the date and at the place referred to in Count 1 ROWAN CHELTON SINCLAIR WHEATLEY and CRAIG DALLAS BRAMBLEY NORTON unlawfully assaulted MATTHEW JOHN MOREY and thereby did him bodily harm.
(3)AND FURTHER that on the date and at the place referred to in Count 1 ROWAN CHELTON SINCLAIR WHEATLEY and CRAIG DALLAS BRAMBLEY NORTON unlawfully detained MATTHEW JOHN MOREY.
(4)AND FURTHER that on the date and at the place referred to in Count 1 ROWAN CHELTON SINCLAIR WHEATLEY and CRAIG DALLAS BRAMBLEY NORTON wilfully and unlawfully damaged a security screen door the property of BRIAN THOMAS MOREY.
(5)AND FURTHER that on or about 21 March 1996 at Greenhead ROWAN CHELTON SINCLAIR WHEATLEY attempted to enter the place of DARREN LEE MOREY with intent to commit an offence therein.
(6)AND FURTHER that on the date and at the place referred to in Count 5 ROWAN CHELTON SINCLAIR WHEATLEY and RICHARD CLYDE HERON wilfully and unlawfully damaged a security screen door the property of BRIAN THOMAS MOREY.
(7)AND FURTHER that on the date and at the place referred to in Count 5 ROWAN CHELTON SINCLAIR WHEATLEY and RICHARD CLYDE HERON wilfully and unlawfully damaged a window the property of BRIAN THOMAS MOREY."

On 18 November 1997 the petitioner was sentenced to a total of 3 years' imprisonment which was then suspended for a period of 2 years. The petitioner has never appealed against his conviction. However, it appears that subsequently an investigation into the whole incident was carried out by the Anti‑Corruption Commission.
On 29 October 2002 the Attorney‑General referred the whole case to the Court of Criminal Appeal to be heard and determined as if it were an appeal.
The grounds of appeal which remain unamended are as follows:
"That by reason of the discovery of fresh evidence the applicant's convictions are unsafe and unsatisfactory and have resulted in a miscarriage of justice.
Particulars
Fresh evidence has become available since the applicant's trial which was not reasonably ascertainable or discoverable by the application (sic) or his legal advisors prior to trial to the effect that:
(i)Mathew (sic) John Morey, the principal crown witness against the applicant lied on oath in crucial aspects of his evidence; and
(ii)Mathew (sic) John Morey has admitted that the evidence he gave against the applicant was fabricated."

The events at 38 Greenhead Road

The facts are set out in detail in the judgment of Steytler J and, as it appears, there is no dispute that on the night of 20 March 1996 the petitioner went to premises at 38 Greenhead Road which was the residence of Matthew Morey. Later that evening the petitioner went to 2 John Street, Greenhead. On each occasion he was in company. What occurred at each place was the matter at issue in the trial. The prosecution case, principally dependent upon the evidence of Matthew John Morey, was that he [Matthew Morey] was in bed asleep when he was woken up at about 10.30 pm by the presence of the petitioner and another in his bedroom. They were both very angry. (I interpose to note that it was the petitioner's case at trial that he went to speak with Matthew Morey because he had proof that Morey had been pulling cray pots.) Within moments Matthew Morey was pushed back on the bed with the petitioner's hands around his throat:
"He had both his hands locked around me throat, giving it a good squeeze … It was like you can't breathe and the blood's not flowing to your head. … I felt powerless."
Shortly after Matthew Morey was punched with both fists in the head, chest and groin by the other person. The entry into Greenhead Road constituted count 1 on the indictment and the prosecution nominated the hands around the throat as constituting count 2.
Matthew Morey gave evidence that he was kept in the bedroom for about 5 minutes although he tried to leave a couple of times. He was prevented from leaving. This constituted count 3. After about 5 minutes he could hear smashing outside. He pushed past the petitioner into the kitchen and took up a Staysharp knife to protect himself. He ordered the petitioner out of the house. There was a short struggle. Both the petitioner and the other person left through the front door. Matthew Morey then pulled the door shut, put the catch back on and telephoned the police. While he was on the telephone waiting to talk he could hear the petitioner outside yelling and saying "'Tell the police this as well', as they rammed my front door with a big long pole." The door was rammed just the once. Thereafter the men ran away.
Matthew Morey described the damage to the door (which was not tendered in evidence at trial) "A good 3 or 4 inches they stove the door in. … The hinges got torn out of the wood as well." He looked through the mesh and saw "them hopping into Rowan's ute".
Detective Sergeant Carter gave evidence about the Greenhead Road property door:
"The front door was ‑ I think the door itself was open but the security screen door was closed. That was damaged. It was like dented inwards."
Matthew Morey apparently left by the back door when he went to John Street. In the course of cross‑examination he was asked:
"It wouldn't be right that in fact ‑ see, you have been telling us that one or more of them were using some sort of pole to batter against your front door. Is that right?‑‑‑Yes, a batter; just the single ‑ rammed the front door, yeah.
It wouldn't be right that in fact you weren't able to open the front door after they had left because there was a pole propped against it which prevented the door opening?‑‑‑That's a good point, because I think they did the pole there or something. I'm not sure. No, I'm not sure.
But you accept that possibility?‑‑‑It's a strange one, but there's something about it that's sort of ‑ not sure.
I wonder if you could have a look at exhibit 4, these three photographs?‑‑‑Right.
Can you point to the damage that this pole made when it was being rammed against either of your front doors?‑‑‑Yeah, just near the handle where you open the front door. It's very slight actually. You can't really pick it up in the photo a lot, but there is a concave there. You could still come and have a look at my door now if you like. It's still quite dented in.
…
Now, when these men did walk away from your house after the pole had come into contact with your screen door, were they carrying anything at that time in their hands?‑‑‑That is a bit that I'm not really sure of, whether they left the timber there and came back and got it, because I never actually went back out the front again, but I have a funny feeling that the timber was there against the door or something, although I'm not really sure.
Or do you think that they took it away with them?‑‑‑Yeah, well, there's a picture of a similar piece in that ute and whether that's it ‑ I'm really not sure and I don't like you to lead me down speculating about it because I'm not sure on it."
It was put to Matthew Morey that he had moved the piece of wood:
"I see. Now, the plank that you have already identified, I think, from Mr Trowell in the back of the white ute which was later found in the early hours of the morning outside your father's house - - -?‑‑‑Yeah.
- - - is it your evidence that you think that that is the plank from your house?‑‑‑Yeah. It seemed bigger when they rammed the door but that is quite a big piece of wood. I mean, it is the 4 inches wide. It's just not four by four. It's four by one.
And you didn't put it there?‑‑‑No way.
And after ringing the police to come to your father's house you didn't go back to your house?‑‑‑No, no, no.
You didn't get any bits of wood?‑‑‑No.
You didn't put them in the ute?‑‑‑No.
You didn't move the white ute outside your father's house?‑‑‑No, I stayed inside. I stayed in the house. I never went out and touched any wood or played with any evidence. From the moment them clowns came to my house I had the intention that one day we will be in court and it will have to be settled there. I wasn't going to mess it up for myself.
…
You say they rammed your door ‑ they rammed your door with a piece of timber. Is that right?‑‑‑Yeah. It may have only been Rowan Wheatley that rammed the door.
Yeah. Why do you say that?‑‑‑I'm just not sure that there was two of them holding that pole when they ran into it. I'm not real sure.
You saw it, didn't you?‑‑‑Not clearly, no. The doors were closed, but you could hear it and, yes, near the doors getting smashed and you could see them take off with the pole when they left.
…
Mr Norton will say that the manner in which the plank was put against your door, your screen door, was to wedge it shut?‑‑‑Oh.
Are you able to say anything about that contention?‑‑‑I don't think so. I don't think so.
…
And is it right that you agree with me that the position in which the plank was ‑ contacted your door - - - ?‑‑‑Mm.
- - - is consistent with the door being wedged shut by a plank?‑‑‑Yeah, it would be very difficult, though, because I have got the smooth carport out the front. It's paved. I would say if you tried to wedge a plank or something there it wouldn't hold. It would just fall down.
All right. It would just fall down, would it?‑‑‑I would guarantee it would just fall down.
All right?‑‑‑It's a bit of a weak theory, I'm afraid."

He was asked where it was and said:
"I would say a metre and a half off the ground, off the foundations of the house, and not to the centre. Virtually looking at it on an angle like this, virtually to the left of me.
… It was off to the left side of the window."
He was asked:
"Apart from that single bullet hole was the window smashed in any way?‑‑‑No. The curtains ‑ they were in a bit of disarray.
…I did not notice any glass, not like these pictures are showing anyway."
Mr Morphett was not wearing shoes. Matthew Morey went into the bedroom and gave a demonstration about what was happening. Mr Morphett remained about 3 metres away from the window. He was shown a photograph and said:
"To me that window was not broken in the manner it is now. I did not notice any glass."
In cross‑examination he agreed it would be a fair comment that his recollection was his best but vague. He was there for about 10 minutes. The purpose of walking across to the window so far as he was concerned was:
"And the purpose of walking across to the window so far as you were concerned was that you had been told about shots being fired and you wanted to look at the window?‑‑‑Shots through the window.
Through the window, and so you were looking up to see if you could see any evidence of shots. Is that right?‑‑‑Well, I'd say Matthew led us to the window.
But what you were interested in when you were looking at the window was if you could see any evidence of shots. Is that right?‑‑‑Well, I'd say Matthew pointed ‑ all I noticed was there was a bullet hole in the window.
What I'm asking you, see, is why were you looking at the window? What were you looking for? And you were looking for a bullet hole, weren't you?‑‑‑I wasn't looking for anything. I was just following the team."
When asked about glass on the ground he said:
"Well, I was three metres away and you've got to understand it was dark at the time. It was virtually I'd say in the vicinity of 2.30 in the morning and if there was glass on the ground, it would've been dark. There would've been no lights on, to my knowledge, on that side of the house.
I'm not being critical. You weren't looking for glass?‑‑‑No, I wasn't, no."
Mr Morphett said he had no need to look for glass because he did not see any reason to look for it: "I didn't see any window broken to look for broken glass". But he conceded that it is a possibility that might be glass on the ground:
"It happened a long time ago, even when I gave the statement, but I still remember a bullet hole".
…
…To my knowledge, to what I remember of the event, I can't remember any reason to mention broken glass but 2.30 in the morning ‑ anything is possible."
To my mind, Mr Morphett was a patently honest witness doing his best to recall events in which he had only minor involvement and which had occurred many years ago. Indeed, they had occurred some years before he had even made his statement.
There is a serious question as to whether Mr Morphett's evidence is in fact fresh evidence. Greenhead was a small community and reasonable enquiry would surely have elicited the fact that Mr Morphett had attended on the night. The fact was elicited during the course of the evidence from both Constables Ukich and McLeod at a time when it was still possible for the evidence to be followed up. Nevertheless, I will examine the evidence on the basis that it is fresh evidence notwithstanding my doubts.
The evidence must be seen against the evidence at the trial. Both Constables Ukich and McLeod gave evidence that the window was smashed when they arrived. Matthew Morey and Darren Morey seemed to have been in company of police officers thereafter until the photograph was taken of the window. Undoubtedly at that time the window was smashed. Darren Morey gave evidence that the window was smashed before the police arrived.
There exists a possibility that the window may have been smashed by Matthew Morey or Darren Morey before the police arrived in order either to disguise the fact that a shot was fired directly at the petitioner or to fabricate evidence against the petitioner by exaggerating the extent of the damage he had caused. However, that is not what is being advanced by the petitioner. Necessarily the petitioner advances, through Mr Morphett, the fact that if the witness's evidence is capable of acceptance by a jury the window must have been smashed at some time after the attendance of Constables McLeod and Ukich. No ground of appeal addresses their conduct. Mr Robbins, in his closing submissions, in response to a question from the Bench, indicated that the evidence of Constables Ukich and McLeod must have been flawed. However, it is impossible to see how or why that would be. No motive is advanced as to why their evidence would be flawed or deliberately false. Nor does the smashing of the window after their attendance make any sense. In the light of the whole of the evidence at trial, the evidence of Mr Morphett, if he had gone so far as positively asserting that the window was intact, is implausible.
However, in the passages I have set out it is clear that the principal focus on the night was the bullet hole which Mr Morphett, as one might expect, clearly remembers. He concedes the possibility that the window may have been broken but he did not notice it. This is reasonable, especially in view of the fact that he observed the window at night, albeit with the bedroom lit, from a distance of 3 metres, at a time when the bullet hole was the main interest. Although I accept Mr Morphett as an honest witness, I do not accept his account as in any way reliable and, when read with the evidence at trial, I conclude that there is no possibility that the lack of his evidence at trial led to a miscarriage of justice.

The plank in the petitioner's utility

Mr Morphett also gave evidence about the plank. He was shown a photograph of the utility which had a plank protruding from the back. He said:
"There was rubbish in the back. I don't remember the plank. I don't remember that big bit of a timber put in the back of the ute on the night in question."
In cross‑examination he said:
"I remember walking around the ute and I had no ‑ you know, as you generally walk around a vehicle. I had no reason to duck or move aside from the plank of wood hanging out of the back."
And he was asked:
"What you recollect is there was nothing sticking out, is it?‑‑‑Possibly. It was semi‑darkness but my vehicle lights were shining in the back but it wasn't shining really in the well of the ute."
Exhibits 6 and 7 at the trial are photographs of the utility with a plank in the tray. The plank does not appear to extend much beyond the towbar. There would be no particular reason to "duck or move aside" from it.
The evidence of Dr Zurhaar in relation to the plank, in summary, is that it has markings upon it consistent, even highly consistent, with having been wedged against the door at 38 Greenhead Road. At one edge is a bevelled edge consistent with being pushed on the ground and at the other end there are marks consistent, as Dr Zurhaar says, with a downward pressure to wedge it in position thereby causing an indentation of the Amplimesh. It would appear that the plank which Dr Zurhaar examined was the plank which was photographed in the utility. The petitioner's argument is that the plank may have been planted by Matthew Morey.
I am not quite sure I follow the logic as to how the fresh evidence assists in resolving any issue which was not otherwise before the jury at trial. At trial the petitioner admitted he had used a plank to wedge the door. That plank is the same as the one examined. If it had been found in his vehicle later at John Street, as alleged by the prosecution, this was a link between the petitioner and the incident at Greenhead Road. However, as I have said, the petitioner admitted use of a plank. Mr Morphett's evidence is not so high as a positive averment that there was a plank. Rather his evidence is of a non‑remembrance of a plank. The petitioner gave evidence at trial:
"Did he get his hands on you again ‑ well, sorry. Did he get his hands on you at all as you were leaving?‑‑‑No.
So you went out through the front door, did you?‑‑‑Front door, yes.
Did he follow you outside?‑‑‑I think he was roughly ‑ yes, he did, but he was roughly 10, 12 feet behind me.
So what did you so (sic)?‑‑‑I got out the front door, the front flyscreen door, closed it shut, picked up a piece of timber and jammed it so he wouldn't come out after me.
What sort of timber was it and where did you find it?‑‑‑I can't give you any dimensions but it was a plank and it was roughly out here.
Witness indicating a area between the areas marked 'front door' and 'car' on the plan.
Right, and where did you jam it?‑‑‑I jammed it into the door on about that angle.
Witness indicating about a sort of 30 or 40‑degree angle."
The petitioner said that he did that without anybody's assistance and ran to his ute then drove away.
At trial the wedging, as opposed to ramming, of the plank was clearly an issue. Matthew Morey conceded the possibility that the plank may have been wedged.
Evidence that the plank was in the utility later that night therefore would be evidence favouring the prosecution theory that the plank was rammed once against the door. The petitioner was asked about the plank and said:
"Had you moved it to that position yourself?‑‑‑No.
And when you last saw it when you left it to walk up to the front door of Brian Morey's house, was there that plank of wood in the tray of the ute?‑‑‑No.
Do you have any knowledge of how that got there?‑‑‑No.
And you didn't report your ute stolen. Right?‑‑‑No.
Because it hadn't been. Is that right?‑‑‑No."
When Constable McLeod was cross‑examined he was asked:
"I mean one suggestion was that that plank might have come from Mathew Morey's house, right?‑‑‑I've got no idea about that suggestion at all."
Even if Mr Morphett's evidence about the plank can be regarded as fresh, it is simply a non‑remembrance of a plank in a utility some 8 years ago on a dark night when the well of the utility tray was not well lit even though the back of the utility was illuminated by the headlights of Mr Morphett's car. There is no suggestion in the evidence or otherwise that the police planted the plank in the back of the ute. Manifestly Matthew Morey could not have planted the plank prior to the petitioner's attendance at John Street and thereafter the opportunity to bring the plank and place it in the utility was limited although, because his Jeep Cherokee was photographed at John Street, not completely impossible. However, this was an issue which was live at trial and Mr Morphett's evidence does not significantly impact on it to raise any question that there was a miscarriage of justice by the absence of his evidence.

The shots fired at 2 Green Street

I was left in some confusion as to precisely the petitioner's case on this aspect.
The petitioner referred to a portion of the evidence of Constable Jones, which I have outlined, as being read so as to give rise to the possibility that there was only one shot fired. However, it was common ground at the trial that two shots were fired. Matthew Morey admitted firing two shots. His brother Darren said there were two shots. The petitioner said there were two shots. The other person in company with the petitioner said there were two shots. The inescapable conclusion that two shots were fired has a direct impact on the reliability of Dr Zurhaar's evidence. There was only ever one bullet hole found in the bedroom window glass. The second shot either went out through the portion of the window where the glass was broken or was fired somewhere else. Neither the petitioner nor Heron saw from where the second shot was fired. Both Moreys say it was fired from the bedroom. If there was a reasonable possibility that shot was found to have been fired from somewhere else, most probably, on the petitioner's case, from the front door, that may render the petitioner's denial that he broke the window more plausible, and Matthew Morey's evidence on the point less plausible and he less credible. The issue is principally directed to count 7.

The evidence of Dr Zurhaar

Dr Zurhaar is the principal of Zedcon Scientific Services and it appears he was engaged as a consultant by the Anti‑Corruption Commission to provide forensic services into an investigation of this matter. He has a PhD in Applied Science, the topic of his thesis being polymer science. He has a Graduate Diploma in Forensic Glass Analysis and a Masters Degree in Forensic Glass Analysis. He has spent the last 20 years working in the field of material science and forensics which involves work in the area of ballistics, forensic science and chemistry, as well as forensic materials, crime scene reconstructions and work of that nature. It appears this is only the second occasion on which Dr Zurhaar has given evidence about ballistics in a criminal court and I remain unsure of his precise expertise in ballistics or telemetry.

The plank

Dr Zurhaar examined the plank and as a result of his examination it appears clear that the plank which was seized by police was the plank which came into contact with the Amplimesh screen door at 38 Greenhead Road. In his report (Exhibit 2) Dr Zurhaar concluded:
"The shape and size of the impression is consistent with flexing caused by the pressure placement of the timber plank or a single event impact such as a kick from an angry person. … There is no evidence to support an assertion that the screen door was rammed."
Dr Zurhaar detected on the actual door at 38 Greenhead Road:
"The only configuration that was found to satisfy all of the physical evidence is the bracing of the timber plank into the screen door as shown in Photo 11. …When in this position, the timber plank was found to be the most effective in acting as a brace to stop the door from opening outwards."
In his summary, Dr Zurhaar said:
"The tests conducted on the timber plank have shown that the plank was used as a brace against the screen door at 36‑38 Greenhead Road. The impression damage caused by the bracing with the timber is the only damage that has occurred to the door. There is no evidence of multiple or repeated impacts. The impression left in the door was a permanent deformation of the mesh and there is no evidence to support that anyone has attempted to re‑straighten the impact zone."
Matthew Morey's evidence, of course, was that there was only incident and so to that extent Dr Zurhaar's evidence is consistent. Certainly, Dr Zurhaar's evidence raises no new issue in that regard. It is clear however that when the plank came into contact with the Amplimesh it did so with sufficient force to cause damage to it.

The bedroom window at 2 Green Street

Dr Zurhaar analysed gunshot residue on the Starlite slats. He found:
"Of major significance is the fact that the direction of the residues impact onto the slats is from the glass face and indicates a blow‑back situation has occurred (see Photo 27). This means that the glass was present when the bullet was fired and upon impact with the window, gunshot residues and glass fragments were blown back onto the slats of the blind in a pattern radiating from the point of impact."
This is clearly a reference to the obvious bullet hole in the window. It was also common ground that the petitioner moved to the main bedroom window on the outside of the house. His evidence was:
"I was about to tap on the window and the shot came flying out the window."
He bolted:
"I got to the car and then another shot rang out and I kept on running."
He denied that he broke the window.
Dr Zurhaar concluded:
"It is understood that evidence has previously been given that more than one shot was fired through the main bedroom window. There is no evidence present to support this assertion. The physical evidence present on the blind slats only supports a single shot occurrence. It is highly improbable that a second shot was fired, as the bullet would have needed to pass through the blind and window without leaving any forensic evidence at all."
This indicates a considerable misconception in that there was evidence, admittedly controversial, that part of the window had been broken and that the second shot had been fired through the part where there was no glass. The evidence of Matthew Morey was that, following the first shot, more glass was broken. In that case, findings of blow‑back would not be expected. As Dr Zurhaar himself explained following reconstructive testing:
"Previous testing which involved firing bullets through a slat to determine entry angle were carried out without glass behind the blind and no residue pattern was produced on the adjacent slats."
Dr Zurhaar carried out tests to determine whether it was possible to produce bullet penetration marks in the glass if the window had first been attacked by an intruder wielding a length of timber or a wooden baseball bat. In his opinion, once the glass has been broken by such forceful blows, the fractures that are present would have weakened the pane structure to the point that it is no longer possible to fire a bullet through the glass and make a penetration hole. Instead a bullet hitting the glass would blow out large sections and leave a characteristic fracture edge pattern. The resistance to penetration of a fractured pane is substantially lower than that of a intact pane. A bullet impacting a weakened glass surface will not create a blow‑back of residue that occurs when it impacts on a solid intact surface. This finding is challenged by experts called on behalf of the respondent. However, putting this challenge to one side for the moment, the underlying assumption is that the second shot would have hit glass. In his summary, Dr Zurhaar concluded:
"The tests conducted on the vertical blinds taken from the crime scene have confirmed that a single gunshot has penetrated a single blind slat at an oblique angle. The reconstructive testing has confirmed that the blinds were almost in a fully open position with a slight right twist and that that the shooter was located 2‑3m away from the window in or near the doorway to the main bedroom. The physical evidence shows that only one shot was fired through the main bedroom window. The tests and analyses conducted have confirmed that the window was intact at the time of the shooting and that this has resulted in a focussed penetration of the glass thereby causing a substantial blow‑back of glass fragments and gunshot residues."
Dr Zurhaar's conclusions were strongly attacked by counsel for the respondent in the course of cross‑examination. There is evidence that the glass in the Green Street window was approximately 5mm thick. Dr Zurhaar carried out tests on glass that was 3mm thick because he was instructed to do so by the Anti‑Corruption Commission. In cross‑examination he was asked whether he agreed that the thickness of the glass was a matter of importance for testing. His reply was: "No, I don't, not with relevance to the tests that were carried out here." He considered the thickness of the glass was inconsequential to the outcome of the test. He accepted that he had an interview with two officers from the Police Internal Affairs Unit on 1 October 2001 and that the interview was recorded on tape. He accepted that he said:
"We used three millimetre panes therefore our reconstructive testing was accurate given that, you know, crack and fracture analysis and bullet penetrations and things will change depending on the thickness of the glass."
He denied that the difference in thickness of the glass made any material difference.
In the course of an explanation about blow‑back he said:
"… the bullet goes through the blind into the glass and what blows back on the other blinds is a combination of very fine particles of glass covered in lead metal and gunpowder and that is why we know that the bullet had to have hit a piece of glass because if the glass hadn't have been there there would have been no disruption and it would have gone straight through. That's not theory. We have actually proven that in our testing."

As to what might otherwise appear on the binds he said:
"Only if the air stream that's travelling with the bullet comes into contact with the blinds will you then get a deposition of - when a gun fires and you have gunpowder and stuff coming out the muzzle, that travels with the bullet for a considerable distance. Anything that gets in the way of that, either the bullet having to pass through it or glance against it or come near it, is actually going to get a distribution of powder on it.
…
… it would have meant that the shooter in this situation would have had to have moved from where he was standing, otherwise he would have put it through a slat again, but if he had moved from that and managed to line up exactly through a slat, it is possible that a bullet could have got through and we wouldn't know about it. However, the cartridge then which gets ejected should have been ejected somewhere as well."
I interpose to note again that Constable McLeod's evidence was that he removed two spent cartridge cases from the bedroom and later replaced them in a reasonably precise position as to where they were for the purpose of a photograph. To justify his conclusion Dr Zurhaar said:
"It is highly improbable that a second shot was fired as the bullet would have needed to pass through the blind and the window without leaving any forensic evidence at all."
Dr Zurhaar based his conclusion, amongst other things, on the need for the shooter to aim in that situation. To my mind, this is a subjective interpretation of evidence and not the basis for the formation of an expert opinion which should be based solely on observations made at the scene. The fact that this has been taken into account detracts to a degree from his overall conclusion of high improbability.
Dr Zurhaar based part of his conclusions on the lack of opacified edges when bullets struck broken panes. In cross‑examination he was taken to a photograph and a video‑tape where a Federal police officer, formerly employed by the West Australian Police, Eric Mervyn Davies, a firearms and ballistics expert, had conducted experiments, together with Mr Bernard Frank Lynch, the Principal Chemist in the Physical Evidence Section of the Forensic Science Laboratory at the Chemistry Centre. Dr Zurhaar agreed there was a degree of opacity shown in some of the photographs although he denied that the degree of opacity relates to that of the crime scene exhibit. He accepted that he said to Police Internal Affairs officers:
"We have, not only from a knowledge base but from actual reconstructive tests, shown that had the window been partially broken or not present, you would not have got any blow‑back of either glass or gunshot residue onto the back of the blind."
He qualified that in evidence by saying:
"--- It is correct to the extent that was present in the intact panel. That's not a correct statement to say you wouldn't have got any at all."
Dr Zurhaar's opinion is encapsulated in a portion of the cross‑examination where he said:
"If you shoot a bullet through a broken pane in the location where the crime scene bullet hole was sufficiently to the centre of the pane you will not get an opacified bullet hole that mimics the bullet hole that was found at the scene of the crime. What you get is a partial circle with some partial opacity with mud‑crazed cracking come from it. None of those characteristics in any of those are present in the crime scene shot. You could see yourself from that video where that spatter pattern that occurred from the broken pane extended at best an inch in from each of the slats you were looking at, whereas my photographs and the crime scene photographs clearly show that the spatter existed all the way across the width of the slat, not just on the leading edge that was closest to the glass."
As he concluded:
"The only way therefore to produce the back spatter pattern we had, the absence of mud‑paving or crazy‑paving and the lack of a solid opaque bullet hole is produced by putting that bullet through a solid piece of glass."
No photograph was able be produced showing clear radial lines coming from the bullet hole.
The Davies/Lynch report was produced in response to Dr Zurhaar's report. I am conscious that the exercise before the Court of Criminal Appeal is not a weighing of the evidence and a decision as to which opinion is more probable. Davies/Lynch considered that it was plausible that the pane of the glass in the bedroom window was intact prior to being shot and that it was subsequently smashed with a blunt instrument. In other words, they accepted that the principal finding of Dr Zurhaar was plausible.
However, they continued:
"10.The possibility that the window was already smashed before being shot cannot be discounted. The reasons for this are:
(i)each pane of glass smashes differently. The way in which it smashes depends on the force applied, the location of the force, the stresses on the window, the size of the implement (not identified) and the original condition of the window (unknown). Hence the size and shape of a hole may be unpredictable.
(ii)the possibility that the shot has struck near an edge, leaving a partial hole (opaqueness) and no other fractures as appears in the scene photograph and demonstrated in reconstructive experiments. Note: The blind obscures much of the area surrounding the apparent bullet hole in the only close up scene photograph.
(iii)The presence of projectile glass particles back splattered onto the blind occurs where a projectile strikes an already damaged pane.
11.Having regard to the forgoing, it is considered that the sequence of gunshot and glass breakage cannot be absolutely determined."
The case is complicated by the lack of useful close‑up photographs of damage to the window taken at the time of the event. The only photograph of any significance is Exhibit A4 at trial. The video‑tape of the Davies/Lynch experiments strongly supports their conclusions and does not support Dr Zurhaar's conclusions concerning opacity. The view of the impact area is obscured in Exhibit A4 by the blinds.
Had Dr Zurhaar's evidence been led at trial, along with that of Davies and Lynch, the evidence would have amounted to an expression of opinion by Dr Zurhaar that the probability was that the window was intact at the time of the first shot. However, that is based, in part, on Dr Zurhaar's view as to opacity and mud‑crazing, which I did not accept having regard to the video of the experiments carried out by Lynch and Davies. Neither Exhibit A4 nor any part of trial Exhibit 8 is truly illustrative of the actual bullet hole in the window.
Dr Zurhaar conceded as a possibility that a second shot may have been fired through the broken window even though he found this to be unlikely. The unlikelihood was, in part, based on his view as to the shooter, a matter which is not expert evidence. I do not consider that, at its highest, Dr Zurhaar's evidence creates a possibility that there has been a miscarriage of justice having regard to the whole of the evidence at trial, including the evidence as to the finding of the two cartridge cases within the main bedroom, the fact that the window had obviously been broken from the outside, the contemporaneity of Matthew Morey's statements, including his immediate admission that he had fired two shots.

The ricochet mark

Dr Zurhaar examined a part of concrete kerbing along the access road to John Street which he said had the characteristics of a high speed projectile impact. He considered the shape of the impact allowed a direction of impact to be established using a collimated helium tube laser. The direction of impact was sighted back to the house directly adjacent to the front door at the foot of the step. Although, in his report, Dr Zurhaar thought that the mark was consistent with a high speed projectile, such as a bullet, and that it was unlikely that the mark was caused by anything other than a bullet. In cross‑examination he was much less certain. He conceded there was no residue indicative of a bullet and conceded that there is no empirical proof that it was a projectile. He said:
"There is no proof a bullet made that mark.
There is also no proof that whatever the mark was, it was made at a particular time?‑‑‑There is no time on it whatsoever.
In fact, have you on a previous occasion described that as the weakest of all the evidence we have found?‑‑‑One of the weakest, I suppose, yes. It's very inconclusive. It does not have that final bit of forensic evidence to confirm what caused it. It remains a theory.
In short, we don't know what caused it or when it was caused. Is that right?‑‑‑Not with any scientific certainty."
The petitioner did not say in examination‑in‑chief from where the shots were fired. In cross‑examination by counsel for the other accused, Heron, he agreed that the second shot was a matter of seconds after the first shot. He described it:
"Got shot at there at the window and then I bolted to the car and the second shot was fired."
This is, of course, in the context of evidence he had given where he said the bedroom window was intact and it had never been broken. In other words, evidence which, by its verdict, the jury specifically rejected. In cross‑examination by the prosecutor the petitioner said:
"You go round to the window; a shot fires; the window doesn't break. How far were you from where the - - - ?‑‑‑Glass came out of the window.
Did it?‑‑‑Yes.
You saw that?‑‑‑I could hear it.
You could hear it. Where were you standing - in proximity to the bullet?‑‑‑North of the shot.
North of the shot. We had better see that exhibit, exhibit 8. How close did you reckon it was from you - the bullet shot?‑‑‑I couldn't give you an exact indication but I would say it was about so far.
All right. You are indicating, what, about 4, 5 feet - 4 feet?‑‑‑About 4 feet.
I think it was put to Morey that it was fired towards you, but that was quite a distance from you, wasn't it?‑‑‑It felt very close.
Yes, but it was quite a distance from you, wasn't it?‑‑‑Well, that's very rough."
The petitioner was unable to say anything about the second shot. He did not know where the second shot went. He did not hear it zinging passed his ear.
Heron described how, after going back up to the house and returning to the vehicle, he was sitting in the car when he heard an explosion. The petitioner was up against the wall. He started making his way towards the car. Something was said and another shot went off. He did not see who fired the shots or know where they came from nor did he hear any breaking glass.

Conclusion

The fresh evidence must be judged in light of the evidence at trial. As to the two shots, the prosecution case was that the first shot went through a pane of glass and that the second shot went through part of the broken window. Both shots were fired from within the bedroom by Matthew Morey and the cartridges ejected there. Constable McLeod gave evidence about the finding of the cartridges within the bedroom. The prosecution case was that when the police arrived, the window had been smashed from the outside. At trial there was no evidence that any second shot was fired from the front door. Dr Zurhaar's evidence as to the impact mark on the kerb does not extend to an opinion that it was caused by a round fired on the night in question or raise any reasonable possibility that it may have been so fired. All witnesses agree that two shots were fired on the night. The video reconstruction does not support a significant aspect of Dr Zurhaar's opinion in relation to opacity. Dr Zurhaar concedes the possibility that a second shot may have been fired through the broken window. Mr Morphett's evidence, as I have set out, does not raise any reasonable likelihood that his evidence may have altered the course of the trial or that there was a miscarriage of justice.
As to the plank, at the trial it was conceded by Matthew Morey the possibility that the plank may have been wedged against the door although he thought it unlikely. The plank was, in the petitioner's words: "Jammed against the door and did cause damage". It was common cause at trial, and Dr Zurhaar has confirmed, that there was only one impact to the door. The use of the word "ram" is not, in the circumstances, of any significance one way or another.
The manner in which the plank found its way into the back of the petitioner's vehicle where it was located at John Street is unclear on the evidence, but as that plank was undoubtedly the plank used on the night, and the petitioner admitted using a plank, the lack of clarity does not affect the verdicts.
Although Dobney's evidence is relevantly fresh, having heard it, I accord him no credibility and accordingly I ascribe no weight to the evidence.
In my opinion, the appeal on the petition should be dismissed.