Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Appeal against conviction - Fresh evidence - Recanting witness - Recantation subsequently withdrawn on oath - Whether a miscarriage of justice had occurred

Criminal Procedure and Appeals (Consequential and Other Provisions) Act 2004 (WA)

Application for an extension of time to appeal against conviction dismissed

Bryer (1994) 75 A Crim R 456

Davies and Cody v The King [1937] HCA 27; (1937) 57 CLR 170

Easterday v The Queen [2003] WASCA 69

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

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

Mickelberg v The Queen (2004) 29 WAR 13

Mickelberg v The Queen, unreported; CCA SCt of WA; Library No 990056; 12 February 1999

Pileggi v The Queen [2001] WASCA 260

R v AHK [2001] VSCA 220

R v Flower [1966] 1 QB 146

R v Geesing (1985) 38 SASR 226

R v Phillips (1936) 26 Cr App Rep 17

R v Poulter (1978) 19 SASR 370

Ratten v The Queen [1974] HCA 35; (1974) 131 CLR 510

Re GAM [2005] VSCA 234; (2005) 156 A Crim R 134

White v The Queen [2006] WASCA 62

Lawless v The Queen (1986) 160 CLR 659

M v The Queen [1994] HCA 63; (1994) 181 CLR 487

1 WHEELER JA: I have had the advantage of reading in draft the reasons for decision of Buss JA, with which I agree.

2 McLURE JA: I have had the advantage of reading the reasons for judgment of Buss JA. I agree with him that the application for an extension of time to appeal against conviction should be dismissed.

3 By a majority jury verdict, the appellant was convicted of doing grievous bodily harm to Mario Zuccala, the complainant. The appellant was sentenced to, and has served, a 2-year term of imprisonment for the offence. The appellant appears in person. In substance, he seeks to appeal his conviction on the ground of fresh evidence. The evidence tendered in the appeal disclosed that a witness for the prosecution, Ms Penny Smith, stated that she gave false evidence at trial. However, she gave sworn evidence in the appeal that her evidence at trial was the truth. Before going to the fresh evidence, it is appropriate to refer to the evidence at trial.

4 The appellant had arranged to meet Ms Smith, a recent acquaintance, at a nightclub in East Perth on New Years Eve. Ms Smith was at the nightclub with a group of friends including the complainant and his wife and Leanne Hawthorne. The complainant was ejected from the nightclub following an argument with his wife. He was assaulted in a laneway in the vicinity of a fire escape door at the rear of the nightclub.

5 The complainant described being in the laneway with the appellant. He said he turned his back on the appellant and was struck a blow to the back of his head causing him to fall face down. He then described what appeared to be one of the nightclub's doormen kicking him repeatedly to both sides of his face.

6 Ms Smith gave evidence that, prior to the assault, the appellant asked her if she wanted him to sort things out to which she responded "No, don't be stupid". He then said he knew some bouncers that could get a bit heavy if need be. She saw the appellant and Ms Hawthorne talking inside the nightclub near the open fire escape door and she could see the complainant in the laneway. She then saw the complainant speaking to the appellant and Ms Hawthorne. The complainant was in the laneway, Ms Hawthorne was standing just outside the door and the appellant was standing next to Ms Hawthorne. Ms Smith then moved away and lost sight of that area. A little later she returned to the area and walked out the open door. She saw the complainant lying on the ground and the

appellant walking towards her up the laneway from the street. At a meal at Fast Eddy's after the assault, the appellant told her and Ms Hawthorne he used to be a professional boxer and when he starts things he usually finishes them but this time he did not. Ms Smith was not challenged about the conversations with the appellant of which she gave evidence.

7 In cross-examination Ms Smith said she saw Ms Hawthorne in the laneway but did not see her walk out and the appellant was in close proximity to Ms Hawthorne.

8 Ms Hawthorne's evidence was that she was speaking to the appellant near the fire escape door and saw the complainant come down to the door from the laneway. An employee shut the door leaving her inside the nightclub and the appellant and the complainant outside in the laneway. She also gave evidence that the appellant said that he was a professional boxer and that if he started something he usually finished it but this time he did not. She confirmed in cross-examination that the appellant was in the laneway facing her in the doorway before the door was shut.

9 The prosecution also called Detective Senior Constable Ronald Adams, the police officer in charge of the investigation. He testified that the appellant denied knowing persons called Jamie Barnes or Tina Cassidy. He testified that Mr Barnes was a doorman at the Racquet Club who was in a relationship with Mrs Cassidy and that a call was made from the appellant's mobile telephone to a number leased to Mrs Cassidy. There was no direct challenge to this evidence.

10 The appellant gave evidence. He denied assaulting the complainant. He said that at the time of the conversation involving Ms Hawthorne and the complainant, the door closed leaving him on the inside of the nightclub, not in the laneway. He later entered the laneway through the rear door and saw the complainant lying on the ground. He said he did not think he would have told Ms Smith and Ms Hawthorne that he was a professional boxer but it could have been a misinterpretation of what he had said and that he could not remember a lot of the whole night. The appellant agreed that he said to Ms Smith and Ms Hawthorne that when he started something he usually finished it but this time he didn't. He said he was not referring to the complainant but to a bowl of food in front of him. He also said that he possibly said to Ms Smith "Do you want me to sort things out". He did not think he said "I know some bouncers here and they can sort it out and get a bit heavy".

11 The case against the appellant was circumstantial. No-one who gave evidence at trial said they saw who hit the complainant.

12 Fresh evidence is evidence which either did not exist at the time of the trial or which could not then with reasonable diligence have been discovered. The unavailability of the fresh evidence at the time of trial will involve a miscarriage of justice if the Court considers that there is a significant possibility that the jury, acting reasonably, would have acquitted the appellant if the new evidence had been before it at trial: Gallagher v The Queen [1986] HCA 26; (1986) 160 CLR 392 at 399; Mickelberg v The Queen [1989] HCA 35; (1989) 167 CLR 259 at 273, 275 and 302.

13 In determining whether there is such a significant possibility, the Court must be satisfied that the fresh evidence has cogency, plausibility and relevance: Lawless v The Queen [1979] HCA 49; (1979) 142 CLR 659. The fresh evidence has to be credible in the sense that a reasonable jury could accept it as true but it is not necessary that the Court thinks it likely that a reasonable jury would believe it: Mickelberg v The Queen (1989) at 302 per Toohey and Gaudron JJ (citing Lawless at 676 - 677 and Gallagher at 410). The Full Court of the Supreme Court in Mickelberg v The Queen, unreported; CCA SCt of WA; Library No 990056; 12 February 1999 said (at 22):

"Although the ultimate question concerns the court's opinion as to the effect of the fresh ... 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, 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."

14 Thus, the role of the Court of Appeal on a fresh evidence application is to determine whether the evidence was capable of being accepted as true by a reasonable jury.

15 As I noted in White v The Queen [2006] WASCA 62 at [203], this is unlike the approach to fresh evidence taken by the English Court of Criminal Appeal in R v Flower [1966] 1 QB 146 where the outcome depends on whether the appellate court is positively satisfied that the fresh evidence is true or false or, if not positively satisfied of its truth (or falsity), accepts that it might be believed by a reasonable jury. The fresh evidence in Flower was that of a recanting witness. The approach in Flower has been followed by intermediate courts in Australia when dealing with recanting witnesses: R v Poulter (1978) 19 SASR 370; R v Geesing (1985) 38 SASR 226; Bryer (1994) 75 A Crim R 456. It was not the approach taken by the Full Court in Mickelberg v The Queen (2004) 29 WAR 13 at [432] per Steytler J with whom Malcolm CJ agreed. The Full Court considered whether the fresh evidence had the requisite cogency and plausibility solely by reference to whether it was capable of being accepted as true by a reasonable jury.

16 It is said that the ordinary test with regard to fresh evidence cannot be applied without qualification to fresh evidence that amounts to a retraction of evidence given at trial: see Geesing at 230 per King CJ, relying on the judgment of the High Court in Davies and Cody v The King [1937] HCA 27; (1937) 57 CLR 170. The High Court said (at 183 - 184):

"A declaration by a witness that he has committed perjury cannot possibly be accepted as a ground in itself for setting aside the result of a trial in which the witness has given evidence. If the contrary were held, the whole administration of both civil and criminal justice would be undermined. The subsequent discovery that some evidence ... is said by the witness who gave it to be false, or is actually proved to be false, cannot, as a general rule, be allowed as a ground in itself for setting aside a verdict or judgment."

17 As I read the authorities, the qualification is that it cannot be reasoned without more that in light of the retraction, a retrial should be ordered because the retraction alone gives rise to a significant possibility that the verdict of the jury on a retrial might be different: Pileggi v The Queen [2001] WASCA 260 at [56] - [58] per Parker J citing Flower and Bryer. That is, the unreliability reflected in the fact of recantation does not of itself generally justify appellate intervention.

18 However, the qualification does not apply if the fresh evidence establishes that the recanting witness is so untrustworthy that his or her evidence ought not to be allowed to enter into the reasons for any verdict of guilty. In Davies and Cody the fresh evidence was given by an associate of the appellants who said the appellants had admitted to him their involvement in the offence in question. The witness was described by the High Court as a man of very bad character and the jury had been warned of the dangers of acting on his evidence. After trial, the witness swore a declaration that his evidence at trial was false in every material particular and then swore another declaration stating that his evidence at trial was all true. The High Court concluded that the witness's evidence was completely untrustworthy and ought not to be allowed to enter into the reasons for any verdict of guilty.

19 The fresh evidence on which the appellant relies is as follows. He gave evidence that some six or so weeks after he was sentenced, Ms Smith told him during a prison visit that she was sleeping with the charging police officer in the lead up to the appellant's trial, that the police officer told her what to say in the Court room and that she had lied in Court.

20 A letter dated 27 July 1997, signed by Ms Smith and addressed "To whom it may concern", states:

"I feel that my testimony was biased and inaccurate due to emotional pressures and pressure from the police and other people involved in the incident. I believe that Trevor has been convicted for a crime that he was not guilty of."

21 The appellant also relies on a transcript of a conversation between the appellant and Ms Smith in a dining hall in July or August 2005 in which she admitted that she had a sexual relationship with Detective Adams and that he manipulated or influenced her to give false evidence at trial. The transcript records Ms Smith as saying that it was "like [Adams] had ... a vendetta against [the appellant]". The conversation at the food hall was a lengthy and, on its face, cordial exchange in which other matters were also discussed. At no time did Ms Smith identify in what respects the evidence she gave at trial was false.

22 In an affidavit sworn by Ms Smith on 24 March 2006 and tendered in the appeal she recanted her statements that she gave false evidence at trial and that Detective Adams had encouraged her to do so. The circumstances in which Ms Smith came to sign the affidavit were that two detectives attended at her home and spoke to her regarding allegations about Detective Adams made by the appellant in a letter to police and in the typed record of the appellant's conversation with Ms Smith at the food hall. The affidavit states in part:

"I gave truthful testimony during the trial of [the appellant] ... I did not tell lies about the matter when giving evidence and too [sic] my knowledge all witnesses gave truthful evidence ...

I was present during a taped interview with [the appellant] however my answers were emotional and I felt that I was manipulated to provide certain responses to [the appellant's] answers ...

I later refused to sign a transcript of this conversation as it was not an accurate portrayal of events surrounding [the appellant's] trial.

...

In relation to [the] letter ... dated July 27th, 1997 I wish to clarify that I only wrote the letter to assist [the appellant] to obtain work release from prison. At the time I had emotional feelings for [the appellant] and exaggerated the letter to assist with his work release. I was naïve at the time and had no proper understanding of the law ...

I wish to clarify that at no time did Detective Ron Adams or any other police officer encourage me to lie in the witness box during [the appellant's] trial. I gave truthful evidence.

...

I am of the belief that [the appellant] is pursuing this matter to avoid paying $20,000 in criminal compensation ...

I have since moved on with my life and have been married and have a child ...

On March 23rd, 2006 Detective Senior Constable Johnson attended at my home where he further questioned me on behalf of the DPP."

23 Ms Smith said in evidence at the appeal that she told the police officer who brought the original affidavit to her for execution that she had never been married and he said it did not matter. I infer the affidavit was prepared by a police officer. In circumstances such as the present involving an allegation of improper conduct by the investigating police officer which had the capacity to affect the integrity of a trial, the public interest would have been better served if Ms Smith had been interviewed by the State's lawyers.

24 Ms Smith's oral evidence in the appeal was that she wrote the letter of 27 July 1997 but did not hold the view, then or now, that she gave inaccurate or untrue evidence at trial. She said she wrote the letter because she loved the appellant, thought he was innocent and wanted to get him out of gaol. She said that before the trial, lots of people were talking in her ear about what had happened.

25 She confirmed in evidence that she had a couple of sexual encounters with Detective Adams but denied that it could be described as a relationship. She explained that she had the impression that Detective Adams had a vendetta against people in general and not just against the appellant. As to the transcript of the conversation in the food hall, she said it was, in broad terms, an accurate record of what was said and that she responded in the way she did because the appellant was aggressive and she was scared. However, Ms Smith also said that she had always thought the appellant was innocent until an event in a car park after the meeting in the food hall. Ms Smith was asked the basis for her belief as to the appellant's innocence of the charge and she said:

"Just the type of person he was. He didn't come across as to be a violent person until late last year; I actually witnessed it for myself."

26 She explained that was in a car park when the appellant wanted her to sign a transcript of the conversation in the food hall before a justice of the peace.

27 The first question is the cogency, plausibility and relevance of the fresh evidence on which the appellant relies, being what Ms Smith said to him in prison, the contents of her letter of 27 July 1997 and the statements she made at the food hall in 2005.

28 The evidence establishes that prior to the appellant's trial Ms Smith had sexual relations with Detective Adams, the police officer in charge of investigating the assault on the complainant, and that Ms Smith made unsworn statements on at least two occasions between 1997 and 2005 to the effect that she gave false and misleading evidence at the appellant's trial as a result of pressure or influence exercised by Detective Adams.

29 In view of her admissions that she made the relevant statements in the letter of 27 July 1997 and at the food hall in 2005, there is no reason to reject the appellant's evidence as to what Ms Smith said to him during a prison visit in 1997. It is consistent with the statements she admits having made.

30 The explanation she gave for the statements made in her letter (that she was in love with the appellant and was seeking to facilitate his work release) cannot apply to the statements she made in 2005. It is clear the appellant and Ms Smith had lost contact with each other long before the meeting in 2005. Ms Smith said she made the statements at the food hall in 2005 because the appellant was aggressive and she was scared. That evidence is difficult to reconcile with the tenor and content of the dialogue at their meeting at the food hall. It is also difficult to reconcile with the witness's other evidence that she had thought the appellant was innocent of the crime charged because she did not perceive him to be a violent person until after the meeting at the food hall. Moreover, she does not give that explanation in her affidavit. Further, her explanation of what she intended to convey when she said that Detective Adams had a vendetta against the appellant is also not convincing.

31 In my assessment, the witness's sworn evidence as to why she said what she did to the appellant in 2005 lacks cogency. Uncertainty as to where the truth lies on these matters has the potential to impact on the credibility of the witness's sworn evidence in general, including her evidence on the central question in issue, being whether or not she gave any false or misleading evidence at the trial of the appellant. However, that assessment falls well short of justifying a conclusion that the witness is so untrustworthy that her evidence ought not to be allowed to enter into the reasons for any verdict of guilty. Based on her evidence in the appeal, the witness would, on a retrial, repeat her original evidence and her credibility would be tested in cross-examination by reference to her inconsistent out of court statements and her explanations for those statements. That is, on an orthodox analysis the fresh evidence is relevant only to her credit (cf R v Phillips (1936) 26 Cr App Rep 17; Cross on Evidence, 7th Aust ed (2004) at [33800]). Accordingly, it might be contended it is the retraction alone that is relied on as giving rise to the requisite effect on the verdict, in which event relief should be denied. My preliminary view is that the qualification to the fresh evidence rule (referred to in Pileggi and Flower) would not apply in the unusual circumstances of a double recantation.

32 However, it is unnecessary to determine that issue because I am not satisfied that the fresh evidence gives rise to a significant possibility that a verdict on a retrial might be different. Although Ms Smith's out of court statements could leave a reasonable jury in doubt as to the reliability of her evidence if it stood alone, it is corroborated in essential respects by the evidence of other witnesses. Both the complainant and Ms Hawthorne gave evidence that the appellant was in the laneway with the complainant

very shortly before he was assaulted. Ms Hawthorne confirmed Ms Smith's evidence as to what the appellant said at Fast Eddy's. The only evidence of Ms Smith that is not corroborated by another prosecution witness concerns the conversation with the appellant about sorting out the problem. However, the appellant admitted that he said words to the effect "Do you want me to sort things out" and she replied "Don't be stupid. It will be all right". Further, the appellant was equivocal about whether he said to her that he knew bouncers at the nightclub and that they "can sort it out and get a bit heavy".

33 As the fresh evidence does not give rise to a significant possibility of a different verdict, I would refuse an extension of time for leave to appeal.

34 BUSS JA: On 18 April 1997 the appellant was convicted, after a trial in the District Court before Judge Yeats and a jury, of doing grievous bodily harm to Mario Zuccala, contrary to s 297 of the Criminal Code (WA). The verdict of the jury was by a majority. The appellant was sentenced to an immediate term of 2 years' imprisonment with eligibility for parole.

35 On 14 December 2004 the appellant made application under s 697 of the Criminal Code (which provision was subsequently repealed by the Criminal Procedure and Appeals (Consequential and Other Provisions) Act 2004 (WA)) for an extension of time in which to appeal against conviction.

36 The proposed grounds of appeal allege, in essence, that Penny Elaine Smith, who was a prosecution witness at his trial, gave false evidence in consequence of influence exerted on her by a police officer. The appellant submits that, as a result, a substantial miscarriage of justice occurred.

37 The prosecution's case, as explained in opening, was as follows.

38 On the evening of 31 December 1995 the complainant and his wife, Linda Zuccala, went to the Racquet Club (a nightclub) in East Perth with their friends, Ms Smith, Leanne Hawthorne and Denise Price. Ms Smith had arranged to meet the appellant at the nightclub. According to Ms Smith, she had met the appellant on 26 December 1995. During the evening Ms Smith introduced the appellant to the complainant.

39 Shortly after midnight, the complainant and his wife had an argument in the nightclub, and Ms Zuccala became very upset. Two doormen ejected the complainant from the nightclub through the front

door. The complainant endeavoured to re-enter the premises, through the front door, on several occasions, to speak to his wife, but was refused re-entry.

40 According to Ms Smith, the appellant asked her whether she wanted him to "sort [the complainant] out". Ms Smith responded "don't be stupid. It will be all right". The appellant then said, "I know some bouncers here and they can sort it out and get a bit heavy if need be". Ms Smith shook her head and walked away to speak to Ms Zuccala.

41 According to the complainant, after he was refused re-entry through the front door on several occasions, he went to a fire escape door at the rear of the nightclub, which opened onto a laneway. He had been near the fire escape door when he was inside the nightclub earlier in the evening, and at that time the door had been open. When he went to the laneway the rear door was open, and he saw Ms Hawthorne, who was with the appellant. The complainant had a brief conversation with Ms Hawthorne about his wife.

42 According to Ms Smith, she saw the complainant standing in the laneway near the fire escape door, talking to Ms Hawthorne and the appellant. The appellant was in the laneway with the complainant. Ms Smith and Ms Zuccala then moved further into the nightclub.

43 According to Ms Hawthorne, an employee of the nightclub came and shut the rear door. When the door was shut, Ms Hawthorne saw the complainant and the appellant near each other in the laneway. Her recollection was that she did not see anyone else in the laneway.

44 According to the complainant, when the rear door was shut he was in the laneway with the appellant. No-one else was present. The complainant spoke to the appellant about his having been ejected by the doormen and that he had been unable to re-enter the premises. According to the complainant, he turned away from the appellant as the rear door was being shut and, within a matter of seconds, he felt an extremely heavy blow to his head from behind, and collapsed to the ground. According to the appellant, someone, whom he thought was a doorman from the nightclub, approached him and kicked him in the face. He covered his face and then felt several blows to his head and body before losing consciousness.

45 According to Ms Smith, a short time after the rear door was shut, she returned to that vicinity and noticed that the door was open. She saw someone lying on the ground in the laneway. She approached the person and saw that it was the complainant. She also noticed the appellant in the laneway and that he was walking towards the complainant. When she saw the complainant lying in the laneway, she also saw two doormen from the nightclub, who were kneeling over the complainant and telling him that they would get help for him.

46 According to Ms Hawthorne, she went into the laneway with Ms Smith.

47 Later, after the complainant had been conveyed to hospital, Ms Smith, Ms Hawthorne and the appellant went to Fast Eddy's in Murray Street, Perth, to purchase a meal. While they were waiting for their food there was a discussion about what had happened to the complainant. According to Ms Smith, the appellant said to her:

"If I tell you something do you promise not to get shitty?"

Ms Smith said, "No." The appellant then told Ms Smith and Ms Hawthorne that he used to be a professional boxer and when he starts something he usually finishes it, but this time he didn't.

48 The appellant gave evidence at his trial. He denied hitting the complainant. The appellant admitted seeing the complainant in the laneway prior to the back door being closed. When the door was closed, he and Ms Hawthorne were inside the nightclub and the complainant was outside. Later, he went to the back door with Ms Smith and Ms Hawthorne, and he saw Ms Smith run ahead of him into the laneway. The appellant saw the complainant lying face down in the laneway. When Ms Smith ran towards the complainant there was a doorman from the nightclub "kneeling down upon him". The appellant admitted that he went to Fast Eddy's with Ms Smith and Ms Hawthorne. He had no recollection, however, of making the statement at Fast Eddy's which Ms Smith said he had made.

49 On or about 27 July 1997 Ms Smith signed a letter bearing that date. The letter was, relevantly, in these terms:

"To whom it may concern,

I was a crown witness against Trevor Damien Amiss on April 17th 1997. I have known Trevor since December 1995. Since he was sentenced in April 1997 I have been visiting him every weekend.

I feel that it would be more beneficial for Trevor to be put on the work release program than to carry out the rest of his sentence. He is hard working, kind and considerate and always does the right thing by others.

I feel that he has done his time in prison very well and I believe that he would be much better off working and earning a living in a job where his employer needs his qualifications and skills.

I feel that my testimony was biased and inaccurate due to emotional pressures and pressure from the police and other people involved in the incident. I believe that Trevor has been convicted for a crime that he was not guilty of.

..."

50 Ms Smith sent this letter to the appellant while he was in prison.

The tape-recorded conversation between the appellant and Ms Smith

51 After the appellant was released from prison he had a meeting with Ms Smith. The appellant tape-recorded the conversation and arranged for what he said was a transcript of the conversation to be prepared. This document was included in the papers before this Court. The transcript records an acknowledgment by Ms Smith that she had had a relationship with Ronald David Adams (a detective senior constable in the Western Australian Police Service, who was involved in the investigation of the complainant's complaint against the appellant) prior to and during the appellant's trial. In the transcript, "T" refers to the appellant and "Female" to Ms Smith. The transcript provides, relevantly, in this respect:

" ...

T. but in what way did Ron pressure you did he, you know like....in this....in our visits you said. Said to me....that you were sleeping with the officer....did he ever use his....um....sexual manipulation....and well you know. This that and the other....I noticed you dumped him just before the trial....

Female....that not what happened....but um....yeah I think he used his influence....he really wanted to get. I don't know real this is, but, it its like he had a vendetta against you....

T....can you said that straight in there please

Female....it was like he had, in um, a vendetta against you

T....and were you sleeping with the charging officer in the lead up to my trial?

Female....I really don't understand what my sexual performance, has got to do with anything....

T....OK, the judge wants to know you were pressured....I believe, I believe myself looking at you today, looking back on this incident and me knowing you from 1997 and early 1998, I believe he sexually, um, emotionally manipulated you, to be on the stand....would you agree with that?

Female....yes, I would.

T....now what did I say? Would you, if I put to you Penny....that Ron sexually, sexually and emotionally....

Female....used his influence.

T....used his influence, as a police officer, to put you on the stand in a court of law to give evidence, false incriminating evidence in a court of law, in 1997, would you agree to that (she's just around the corner there), would you agree to that?

Female....um....yes I would

T....yes, you would?

Female....yes

,,,

T....as I was saying, I was, I was sentenced in the...court on the 18th April 1997, so its obvious that she was visiting me and sleeping with the charging officer or sleeping with the charging officer between me being charged and....the court case....do you agree with that Penny?

Female....yeah

T....can you say yes just once more for me?

Female....yes!

T....Thank you....

..."

52 On 24 March 2006 Ms Smith swore an affidavit in relation to the appellant's application to this Court. The affidavit was relied upon by the respondent and tendered in evidence. It provides:

"(1) I am thirty four years old and live in Cloverdale.

(2) I am a home mother.

(3) On Tuesday November 8th, 2005, Detectives Sells and Forbes from Perth Detectives attended my home and spoke to me regarding the contents of a letter Trevor Amiss had sent to the Police making certain allegations.

(4) In response to the allegations in that letter and the accompanying typed record of a taped conversation I made a following statement.

(5) I gave truthful testimony during the trial of Trevor AMISS for the charge of Grievous Bodily Harm. I did not tell lies about the matter when giving evidence and too [sic] my knowledge all witnesses gave truthful evidence.

(6) I was present during a taped interview with Trevor however my answers were emotional and I felt that I was manipulated to provide certain responses to Trevor's answers [sic].

(7) I later refused to sign a transcript of this conversation as it was not an accurate portrayal of events surrounding Trevor's trial.

(8) I further offered to provide an accurate statement to Trevor, however he refused and threatened to subpoena me. Trevor is very intimidating.

(9) In relation to a letter I sent Trevor in Prison dated July 27th, 1997 I wish to clarify that I only wrote the letter to assist Trevor to obtain work release from prison. At the time I had emotional feelings for Trevor and exaggerated the letter to assist with his work release. I was naïve at the time and had no proper understanding of the law.

(10) I wish to clarify that at no time did Detective Ron Adams or any other Police Officer encourage me to lie in the witness box during Trevor's trial. I gave truthful evidence.

(11) At no stage before or during the trial did any Police Officer treat me in an unfair or improper manner. From my memory all were very supportive of me during a period that was difficult for me to deal with.

(12) I am of the belief that Trevor Amiss is pursuing this matter to avoid paying $20,000 in criminal compensation.

(13) I have since moved on with my life and have been married and have a child.

(14) On March 23rd, 2006 Detective Senior Constable Johnson attended at my home where he further questioned me on behalf of the DPP.

(15) As a result of that I prepared this affidavit."

53 Ms Smith gave sworn evidence before this Court. She was initially cross-examined by the appellant. The appellant had difficulty in asking Ms Smith relevant and admissible questions. At the suggestion of the presiding Judge, the appellant handed to the Court a list of written questions which he wished to ask Ms Smith. The presiding Judge then asked Ms Smith those of the questions which, the Court decided, were not irrelevant, oppressive or gratuitously harassing. After the presiding Judge asked Ms Smith the relevant and admissible questions, the appellant did not seek to have any supplementary questions put to Ms Smith and did not assert that any particular issue had not been explored. Counsel for the respondent did not ask Ms Smith any questions.

54 Ms Smith gave evidence that she wrote and signed the letter dated 27 July 1997 for these reasons:

(a) at the relevant time she believed the appellant was innocent;

(b) she visited the appellant every weekend in prison;

(c) the appellant asked her to write the letter;

(d) she wrote the letter to assist the appellant to obtain "work release" from prison; and

(e) at the relevant time she loved the appellant unconditionally, and wanted him to be released from prison and by her side.

Ms Smith admitted in evidence that the letter conveyed the impression that her evidence at the trial was false, at least in part. She said, however, that, in truth, when she wrote the letter she was not of the view that her evidence at the trial was inaccurate or untrue. She was not now of the view that the evidence she gave at the trial was inaccurate. Her belief, at the time she wrote the letter, that the appellant was innocent of the charge, had been based on the following:

"Just the type of person he was. He didn't come across as to be a violent person until late last year; I actually witnessed it for myself."

55 Ms Smith gave evidence that she had a conversation with the appellant in 2005 at a food hall, which the appellant tape-recorded. Subsequently, the appellant asked her to sign what he said was a transcript of the conversation. She refused to sign it because she "didn't feel it was an accurate [portrayal] of what happened". Ms Smith admitted, in evidence, however, that the transcript referred to earlier in these reasons was "broadly accurate" in the sense that, in the main, she had said what was attributed to her in the transcript (but not in the sense that it was, in the main, true). Ms Smith said that after the appellant had been charged and prior to his trial, she had a relationship with Detective Senior Constable Adams. Ms Smith also said that she told the appellant, at the meeting at the food hall, that she thought Detective Senior Constable Adams had a "vendetta" against him. She explained this statement, in evidence, as follows:

(a) she always thought the police had a vendetta against people in general; and

(b) she believed that Detective Senior Constable Adams did not have a more serious vendetta against the appellant than anyone else.

According to Ms Smith, the appellant was "very aggressive" during the meeting at the food hall. She also said that she was "scared so I just basically wanted to agree to anything". Ms Smith denied, in evidence, that she had been under any pressure from Detective Senior Constable Adams, when she gave evidence at the appellant's trial, to give evidence in any particular way.

56 Ms Smith gave evidence that, with one exception, her affidavit sworn on 24 March 2006 was true and correct. The exception related to her statement, in par 13, that she had been married. Ms Smith said that she had never been married and that she had so informed the police officers who prepared the statement, but they told her "it wasn't an issue".

57 The appellant gave sworn evidence before this Court.

58 The appellant said that the circumstances relating to Ms Smith sending him the letter dated 27 July 1997 were these. On 18 April 1997, immediately after his sentencing, Ms Smith asked him whether she could visit him in prison. He told her she could visit him. Thereafter, Ms Smith visited every weekend. After about six weeks, Ms Smith told him, on one of these visits, that she had lied in Court, that prior to the trial she had been sleeping with one of the police officers who had been investigating the complaint against him, and that this police officer had told her what to say in evidence. The appellant said he requested Ms Smith to put these matters in writing as they might enable him to be put on the work release program. Some time later he received Ms Smith's letter.

59 The appellant also said that the transcript of his conversation with Ms Smith at the meeting at the food hall was, to the best of his knowledge and belief, an accurate transcript of the conversation.

60 The appellant also gave some evidence of a meeting with Ms Smith in relation to the transcript and a subsequent telephone call to her, but it is unnecessary to recount that evidence in these reasons.

The fresh evidence in the letter and the transcript

61 The letter dated 27 July 1997 and the transcript of the tape-recorded conversation between the appellant and Ms Smith contain fresh evidence in relation to the appellant's conviction, relevantly, as follows:

(a) in the letter, Ms Smith states that her evidence at the trial was "biased and inaccurate"; and

(b) in the transcript, Ms Smith agrees with the appellant that at the trial she gave "false incriminating evidence" in consequence of influence exerted on her by Detective Senior Constable Adams.

62 The evidence of a recantation by Ms Smith after the trial is a species of fresh evidence. See Bryer (1994) 75 A Crim R 456 at 458.

The applicable legal principles: fresh evidence generally

63 The principles to be applied by an appellate court in determining whether fresh evidence indicates that a miscarriage of justice has occurred at a criminal trial have been enunciated and explained by appellate courts on numerous occasions.

64 In Mickelberg v The Queen [1989] HCA 35; (1989) 167 CLR 259, Mason CJ expressed, at 273, the test to be applied by an appellate court, in deciding whether to set aside a conviction on the ground of fresh evidence, as follows:

"It is established that the proper question is whether the court considers that there is a significant possibility that the jury, acting reasonably, would have acquitted the appellant had the fresh evidence been before it at the trial. This test was endorsed by four of the five Justices in Gallagher v. The Queen ((1986) [1986] HCA 26; 160 CLR 392). Deane J and I (at 402) considered that the test was best expressed in those terms. Gibbs CJ (at 392) expressed his substantial agreement with the statement, although his Honour emphasized that 'no form of words should be regarded as an incantation that will resolve the difficulties of every case'. Dawson J said (at 421) that the court would need to conclude that 'a jury might entertain a reasonable doubt about the guilt of the appellant'. His Honour went on to say (at 421) that in his view the use of the expression 'significant possibility' did not

involve a different standard. I am in agreement with those statements."

65 The approach of an appellate court to the consideration of fresh evidence will be different if the appellant submits that a conviction should be set aside outright (and there should not merely be a retrial) in that innocence is shown, or the existence of an appropriate doubt established. See Ratten v The Queen [1974] HCA 35; (1974) 131 CLR 510 per Barwick CJ at 518 - 519, and the examination of the relevant issues by Steytler J (as his Honour then was) in Easterday v The Queen [2003] WASCA 69 at [207] - [211].

The applicable legal principles: where the fresh evidence involves a recantation

66 The test referred to by Mason CJ in Mickelberg (1989) must be applied with considerable caution where the fresh evidence involves a recantation.

67 In Davies and Cody v The King [1937] HCA 27; (1937) 57 CLR 170, Latham CJ, Rich, Dixon, Evatt and McTiernan JJ explained, at 183 - 184, the rationale for approaching recantation evidence with considerable caution:

"A declaration by a witness that he has committed perjury cannot possibly be accepted as a ground in itself for setting aside the result of a trial in which the witness has given evidence. If the contrary were held, the whole administration of both civil and criminal justice would be undermined. The subsequent discovery that some evidence (as in this case) is said by the witness who gave it to be false, or is actually proved to be false, cannot, as a general rule, be allowed as a ground in itself for setting side a verdict or judgment. But if the verdict is open to objection upon a ground affected by such evidence, the case is different. It would not be wise to attempt to frame a universal rule even for such cases. As the Full Court indicates in its judgment, the subsequent statement that the original evidence is false may be explainable by pressure brought to bear upon a witness or by the operation of any one of an indefinite number of motives. Each case should be treated in relation to its own facts."

68 Although every case depends on its own facts, an appellate court's assessment of the evidence of the recanting witness and its decision as to the orders which should be made on the appeal will be influenced significantly by two matters. First, the reason or reasons given by the witness for having recanted his or her evidence. Secondly, the significance of the evidence of the witness at trial and whether (and, if so, to what extent) the appellant's conviction was supported by other, apparently reliable, evidence. See R v AHK [2001] VSCA 220 per Winneke P at [9] (with whom Brooking JA agreed). Winneke P reviewed, at [9], the manner in which appellate courts have applied the principles relating to fresh evidence which involves a recantation:

"Different appellate courts have applied these principles in different ways. Thus in R v. Flower ([1966] 1 QB 146), the Court declined to act on the witness's recantation regarding it as unreliable, particularly in the light of the absence of any acceptable explanation for the change in story. Accordingly, it proceeded to deal with the appeal as if the evidence of the recanting witness had not been tendered to the Court on the appeal. A similar view was taken of the 'fresh evidence' tendered to the Court of Appeal in Queensland in the case of Bryer ((1994) 75 A Crim R 456). A like view of the 'fresh evidence' was taken by Walters J and King J in the case of R v. Poulter (supra). However Bray CJ came to a different conclusion taking the view that, although the evidence was not plausible, that did not mean that it had no effect on the appellate court's assessment of the evidence given at trial. He concluded that there ought to be a re-trial. In R v. Geesing (supra) all members of the Court came to the conclusion that, although the recanting witness was 'unreliable and untrustworthy' they were left with 'serious misgivings about the truthfulness of the evidence' which he gave at trial and that there was a 'serious risk that [the witness's] evidence at the trial was false and that the jury had arrived at their verdict in reliance upon that false story' (at 231 per King CJ, at 244-5 per White J, and at 248-9 per Mohr J). In Davies & Cody v. R, the High Court allowed the appeal on the ground that the jury had been inadequately instructed upon the evidence of identity. However, in respect of the ground of appeal with regard to the evidence of the recanting witness, the High Court noted that the judge's charge 'does not advise the jury to reject his testimony'. The Court went on to point out that 'it was now known that [the evidence] is completely untrustworthy and ought not to be allowed to enter into the reasons for any verdict of guilty. Whether the jury believed his evidence or gave any weight to it in fact cannot be known ...'. ..."

69 In Bryer, an accomplice witness gave evidence on appeal recanting the evidence he had given at trial which inculpated the appellant. Fitzgerald P considered the manner in which an appellate court should assess the impact of a recantation upon the fairness of a trial. His Honour said, at 458:

"A recantation, after trial, by a witness who gave evidence against a person convicted, is a species of fresh evidence. Logically, if the recantation is true, the jury at trial ought not have had the recanting witness's evidence implicating the accused; there should have been either no evidence from the recanting witness, or evidence from the recanting witness exculpatory of the accused, either directly or because inconsistent with the accused's guilt. Consideration of what the jury's verdict might have been on that basis would often lead to a conclusion that a conviction was unsafe, eg, because the available evidence would not sustain a conviction. However, the ordinary application of the 'fresh evidence' test would require the appellate court to consider what the jury might have done if it had had contradictory evidence from the recanting witness, demonstrating that the recanting witness was, at best, unreliable and probably a perjurer.

Whatever the difficulties which a recantation presents, the courts have been unwilling to conclude that a recantation must always raise a possibility of miscarriage. However, the basis for setting aside a conviction on the ground of a recantation is wider than in relation to other fresh evidence. A conviction is set aside on the basis of a recantation if (i) the witness's new version of events is sufficiently relevant, cogent and plausible to raise a doubt as to guilt in all the circumstances, including the original evidence and explanations given for the original evidence and the recantation, or (ii) the evidence of the recanting witness is so untrustworthy that it 'ought not to be allowed to enter into the reasons for any verdict of guilty': Davies and Cody v R [1937] HCA 27; (1937) 57 CLR 170. In the latter circumstance, it would be inappropriate for the recanting witness to be called in the event of a retrial."

70 Those observations in Bryer (in particular, the two conditions or alternatives specified by Fitzgerald P) were referred to by Callaway JA in Re GAM [2005] VSCA 234; (2005) 156 A Crim R 134. His Honour said, at 143 [30]:

"Fitzgerald P's two conditions might be thought to imply that the effect of fresh evidence on a witness's credibility is to be assessed only under (ii). I assume in the petitioner's favour, without deciding, that that is not so. In other words, there may be cases where a new trial should be directed even if the witness's new version of events is not accepted, because the circumstances in which it came to be put forward significantly undermine the evidence the witness gave at the trial, without its having to be shown that his or her evidence is so untrustworthy that it 'ought not to be allowed to enter into the reasons for any verdict of guilty' (Compare R v Poulter (1978) 19 SASR 370 at 377 and R v Geesing (1985) 38 SASR 226 at 231, 244 and 247-248). It follows that I shall bear Mr Richter's submissions about credit and perjury in mind in considering the applicability of each of Fitzgerald P's conditions."

71 More recently, the conditions referred to by Fitzgerald P in Bryer were considered by Wheeler JA in White v The Queen [2006] WASCA 62. Her Honour said, at [150] - [151]:

"Considering the first of those alternatives, if the appellate court considers that the recantation is true, then it will be necessary to assess what the jury's verdict might (not would) have been had the jury either not had any evidence from the recanting witness (in the case of a simple retraction of evidence), or had the jury had before it the evidence which the recanting witness later gave (in the case of a substituted version of the evidence). Considering the matter in that way will often lead to a conclusion that a conviction was unsafe, depending upon an assessment of the relevance and significance of the evidence which is recanted. Consistently with Davies (at 184), a similar conclusion may be reached if the Court is not prepared to accept the recantation as true, but reaches instead the conclusion that the recanting witness is so untrustworthy that his or her evidence 'ought not to be allowed to enter into the reasons for any verdict of guilty'. Where the Court is not itself able to reach a conclusion, but considers that the recantation has some cogency and plausibility, then it is necessary to consider what a jury might (not would) have done if it had had before it both the evidence at trial and evidence of the recantation.

Which of these approaches - that of notionally 'subtracting' the recanted evidence from the trial, or of notionally putting both versions before the jury - is appropriate will depend upon the circumstances of the case, and an assessment is not always easy; compare the different approaches of Murray J at [112] and Steytler J at [433] of Mickelberg. Sometimes, it will be appropriate to consider both, as in R v Poulter (supra) at 380 where Bray CJ said, of the recanting evidence in that case:

'I think that any reasonable jury properly directed and not having Mrs Baker's evidence before it, or having both versions of her evidence before it, might well have acquitted the appellant, though, of course, it might equally well have convicted him.'"

72 In Mickelberg v The Queen (2004) 29 WAR 13, Steytler J (as his Honour then was) said, at 136 [432]:

"Lewandowski was, as I have said, a recanting witness. That fact requires the court to look very closely at his evidence, evaluating not only its relevance, but also its credibility and cogency, taking into account all relevant factors, including the evidence given by Lewandowski at the trial, other evidence given at the trial and since, the reasons offered by Lewandowski for giving false evidence at the trial and the reason offered by him for his change of testimony. In reaching the conclusion, expressed above, that the essential gravamen of Lewandowski's evidence was capable of acceptance by a jury (and it is important to remember that it is not necessary that the court should think it likely that a reasonable jury would believe it, only that a reasonable jury could accept it as true (Mickelberg (at 302), per Toohey and Gaudron JJ) or as sufficiently cogent and plausible to lead a jury to have a reasonable doubt (Gallagher (at 397), per Gibbs CJ, citing Mason J in Lawless (at 676))), I have looked closely at Lewandowski's evidence, taking into account the matters to which I have referred and bearing in mind the strictures expressed in the applicable cases."

Malcolm CJ, at 24 [32], agreed with Steytler J's exposition of the principles to be applied to the evidence of Lewandowski as a recanting witness.

73 In White, McLure JA endorsed, at [209], the approach to fresh evidence involving a recantation taken by Steytler J in Mickelberg (2004) at 136 [432]. The other member of the Court in White, Pullin JA, agreed, at [211], with Wheeler JA's reasons and also approved the principles enunciated by Steytler J in Mickelberg (2004). His Honour said, at [222] - [223]:

"The Court of Appeal still has a role to perform when further evidence is given before it. In the first place the evidence will have to pass the usual test of relevance. The evidence must also be credible, cogent and plausible. It will be credible if a reasonable jury 'could accept it as true': Mickelberg v R [1989] HCA 35; (1989) 167 CLR 259 at 302 per Toohey and Gaudron JJ (Mason CJ agreeing). See also Mickelberg v R (2004) 29 WAR 13 at [432] per Steytler J. Evidence will be plausible if it has the appearance of truth.

The mere fact that the Court of Appeal is doubtful about the truth of the evidence because of concerns about the credibility of a witness, will not be enough to deny the evidence the attribution of fresh evidence leading to a conclusion that there has been a miscarriage of justice. The decision in Mickelberg v R (2004) 29 WAR 13 is an example. Members of the Court expressed concern about the quality of Lewandowski's recanting evidence, but that did not lead the Court to conclude that the evidence was not at least plausible and capable of acceptance by a jury."

74 Where fresh evidence involves a recantation, it will be necessary for the appellate court to form a view as to the credibility of the recanting witness and the cogency and plausibility of his or her recantation. It is not, however, essential, for the appeal to be allowed, that the court consider it likely a reasonable jury would believe the recantation. It may be sufficient that a reasonable jury could accept it as true. If the appellant's conviction is to be quashed, the court's findings in relation to the recanting witness and his or her recantation may be significant in determining whether a verdict of acquittal should be entered or a retrial ordered. As observed in Davies and Cody, each case should be treated in relation to its own facts.

The applicable legal principles: where the fresh evidence involves a recantation and a withdrawal of the recantation

75 I have mentioned that the test referred to by Mason CJ in Mickelberg must be applied with considerable caution where the fresh evidence involves a recantation. That approach is especially required if the recantation is subsequently withdrawn. See R v AHK per Winneke P at [9].

76 In my opinion, although every case depends on its own facts, where fresh evidence comprises a recantation by a witness which is subsequently withdrawn, the general principles to be applied in determining whether to set aside a conviction, are these. First, the appellate court must examine carefully the relevance, credibility and cogency of the witness's evidence at trial and the relevance, cogency and plausibility of the recantation and its withdrawal. Secondly, in evaluating matters of credibility, cogency and plausibility, the appellate court must take into account all relevant factors including the reason or reasons given by the witness for the recantation and its withdrawal. Thirdly, the appellate court must decide whether, based on the court's evaluation of:

(a) the relevance, credibility and cogency of the witness's evidence at trial;

(b) the relevance, cogency and plausibility of the recantation and its withdrawal and of any other fresh evidence before the court; and

(c) any other, apparently reliable, evidence at trial,

there is a significant possibility that a reasonable jury would have acquitted the appellant had the fresh evidence (that is, the recantation and its withdrawal and any other fresh evidence before the court) been available at the trial.

77 If the appellate court concludes that there is a significant possibility that a reasonable jury would have acquitted the appellant, the conviction should be quashed, and consideration given to whether, in the circumstances, a verdict of acquittal should be entered or a retrial ordered.

The fresh evidence and the credibility of Ms Smith

78 I agree with McLure JA's analysis of and conclusions in relation to the fresh evidence relied on by the appellant, that is, the letter dated 27 July 1997 and the tape-recorded conversation at the meeting at the food hall. I also agree with her Honour's assessment of Ms Smith's evidence in the affidavit sworn on 24 March 2006 and before this Court.

79 In my opinion, there is not a significant possibility that a reasonable jury would have acquitted the appellant had:

(a) the letter dated 27 July 1997 and the tape-recorded conversation at the meeting at the food hall; and

(b) Ms Smith's affidavit sworn on 24 March 2006 and her evidence before this Court,

80 Although Ms Smith's evidence at trial was, no doubt, important in satisfying the jury beyond reasonable doubt as to the appellant's guilt, his conviction was not supported solely by her evidence. There was a significant body of other, apparently reliable, evidence which corroborated material aspects of Ms Smith's evidence at trial. For example:

(a) The complainant, in his evidence at trial, described being in the laneway and having a conversation with Ms Hawthorne, who was standing at the rear door with the appellant. After the conversation, the appellant went into the laneway and spoke to the complainant. The complainant then heard a noise, turned his back on the appellant, and noticed that the rear door was being closed. As the door was being closed, he received a hard blow to the back of the head which made him fall, face forward, to the ground.

(b) Ms Hawthorne, in her evidence, said that she was at the rear door having a conversation with the appellant when she saw the complainant approach the door from the laneway. She said that an employee of the nightclub shut the rear door, leaving her inside, and the complainant and the appellant "standing close together on the outside"; that is, in the laneway. She did not recall seeing anyone else at that time in the laneway. Ms Hawthorne then went further into the nightclub and spoke to Ms Smith. After about five minutes she returned with Ms Smith to the rear door, noticed that it was open, and saw the complainant lying in the laneway. Ms Hawthorne also said that later, at Fast Eddy's restaurant, the appellant told Ms Smith and her that he was a professional boxer and if he started something he usually finished it, but this time he didn't.

(c) The appellant admitted, at trial, that when Ms Smith was consoling the complainant's wife at the night club, he possibly asked Ms Smith whether she wanted him to "sort things out". Although he did not recall his exact words, he definitely did not say, "Do you want me to sort [the complainant] out?". He indicated that it would have been, to the effect, did Ms Smith want him to "Sort this problem out?" or "Sort out that problem?". The appellant also admitted that Ms Smith told him "Don't be stupid. It will be all right".

81 I would dismiss the application for an extension of time in which to appeal against conviction.

• Evidence at trial
• Legal principles
• The fresh evidence
• Analysis
• The prosecution's case at trial
• The appellant's case at trial
• The letter dated 27 July 1997
• The tape-recorded conversation between the appellant and Ms Smith
• Ms Smith's affidavit
• Ms Smith's evidence before this Court
• The appellant's evidence before this Court
• The fresh evidence in the letter and the transcript
• The applicable legal principles: fresh evidence generally
• The applicable legal principles: where the fresh evidence involves a recantation
• The applicable legal principles: where the fresh evidence involves a recantation and a withdrawal of the recantation
• The fresh evidence and the credibility of Ms Smith
• The disposition of the application