Citation : LAWLESS -v- TURNER [2005] WASC 254

Appeal - Criminal law and procedure - Leave to appeal to Court of Appeal from decision of single Judge of Supreme Court sitting in General Division on appeal from decision of Magistrate - Refusal of Judge to allow substitution of new ground relying on additional evidence not before Magistrate - Whether reasonable prospect of succeeding on appeal to Court of Appeal

Criminal Appeals Act 2004 (WA), s 4, s 8, s 9, s 11, s 14, s 18

de la Espriella-Velasco v The Queen [2006] WASCA 31; (2006) 31 WAR 291

Lawless v Turner [2005] WASC 254

Samuels v Western Australia [2005] WASCA 193; (2005) 30 WAR 473

1 ROBERTS-SMITH JA: This is an appeal from a decision of a single Judge of the Supreme Court sitting in its General Division (the subject appeal) dismissing an appeal by the appellant from a decision of his Honour Mr P Nicholls SM, sitting in the Court of Petty Sessions at Midland on 6 June 2002 ("the primary decision").

2 The appellant was convicted after trial before the Court of Petty Sessions, of one offence of possessing an iron bar with the intention of using it to cause fear, contrary to s 8(1)(b) of the Weapons Act 1999 (WA) and one count of damaging a door, contrary to s 80 of the Police Act 1892 (WA).

3 His appeal to the single Judge was heard by Le Miere J on 2 September 2005. His Honour's reasons dismissing that appeal were delivered on 18 November 2005 (Lawless v Turner [2005] WASC 254).

4 It is apposite to explain the statutory provisions which apply here.

5 The Criminal Appeals Act 2004 (WA) (No 60 of 2004) is an Act about appeals in criminal cases and related matters. It came into operation on 2 May 2005. Part 2 of that Act deals with appeals to a single Judge of the Supreme Court sitting in its General Division, from decisions of courts of summary jurisdiction (now called the Magistrates' Court - see Magistrates Court Act 2004 (WA), s 4 and s 11(4)). By s 8(1), an appeal may be made under Div 2 of Pt 2 of the Act on one or more of the following grounds:

(i) made an error of law or fact, or of both law and fact;

(ii) acted without or in excess of jurisdiction;

(iii) imposed a sentence that was inadequate or excessive;

(b) that there has been a miscarriage of justice."

6 Section 9(1) stipulates that leave of the Supreme Court is required for each ground of appeal. Section 9(2) provides that the Supreme Court must not give leave to appeal on a ground unless it is satisfied that ground has a reasonable prospect of succeeding. That test is in exactly the same form as in s 27(2), which applies to appeals from superior courts to the Court of Appeal. The proper application of that test was explained by the Court of Appeal in Samuels v Western Australia [2005] WASCA 193; (2005) 30 WAR 473 at [50] - [59].

7 The powers of the Supreme Court on an appeal under Div 2 of Pt 2 of the Criminal Appeals Act are set out in s 14(1). They include power to dismiss or allow the appeal, set aside or vary the decision of the Magistrates Court and sentence imposed, order made or thing done as the result of the decision or substitute a decision that should have been made by the Magistrates Court.

8 Section 14(2), (3), (4) and (5) must also be noted:

"(2) Despite subsection (1)(b), even if a ground of appeal might be decided in favour of the appellant, the Supreme Court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.

(3) The Supreme Court is not required to set aside or vary a decision of a court of summary jurisdiction because the court omitted to make any necessary finding of fact if the facts or evidence -

(a) in substance support the decision_;_ or

(b) justify the finding,

and the Supreme Court, under subsection (1), may instead either vary the decision or substitute another decision for it.

(4) On an appeal against a conviction, the Supreme Court may vary a decision of a court of summary jurisdiction or substitute another decision for it if there is some excess which may, consistently with the merits of the case, be corrected.

(5) On an appeal against a sentence, the Supreme Court may have regard to any relevant matter that has occurred between when the offender was convicted and when the appeal was heard."

9 Division 3 of Pt 2 covers appeals from a single Judge to the Court of Appeal.

10 A party to an appeal under Div 2 who is aggrieved by a decision made in the appeal by a single Judge of the Supreme Court which refuses leave to appeal or dismisses or decides an appeal may appeal to the Court of Appeal against that decision (s 16(2)).

11 Section 18 provides that:

"Subject to this Division, Division 2 (other than sections 7, 8, 10 and 13), with any necessary changes, applies to and in respect of an appeal under this Division as if -

(a) the appeal were an appeal under Division 2; and

(b) unless the context requires otherwise, references in Division 2 -

(i) to a court of summary jurisdiction were to the Supreme Court sitting in its General Division; and

(ii) to the Supreme Court were to the Court of Appeal."

12 The effect of s 18 includes the requirement in s 9 for leave to appeal in respect of each ground.

13 The appellant's appeal notice was filed on 9 December 2005. There was one draft ground of appeal, that being that:

14 At that stage, and throughout these proceedings the appellant has been representing himself, although he was represented by counsel before Le Miere J and before the Magistrate.

15 On 13 January 2006 the appellant filed what he described as the "Appellant's Case Criminal". That was a thick document printed in bold block letters in large print. There were nine grounds of appeal. As set out, they were:

"1. I HAVE BEEN CONVICTED FOR A CRIME I DID NOT COMMIT

2. I HAVE BEEN CONVICTED ON FALSE FABRICATED AND PERJURED EVIDENCE. THAT HAS BEEN PROVEN, BY TELSTRA RECORDS, TO BE UNSAFE AND UNSOUND .AND UNRELIABLE

3. THE POLICE INTERFERED WITH EVIDENCE, TO SUCH AN EFFECT AS TO REVENT MY DEFENCE TO CARRY OUT A FULL PRE TRIAL DISCOVERY

4. THE POLICE CORRUPTED WITNESS, TO RENDER THEM, UNSAFE AND UNSOUND AND UNRELIABLE.

5. THE EVIDENCE USED TO CONVICT. HAS NOW BEEN PROVEN TO BE UNSOUND. AND I ASK FOR A DISMISSAL OF CONVICTION AND A RETRIAL. WHERE WE, CAN PRESENT ALL THE EVIDENCE THAT WAS DENIED ACCESS TO AND IS NOW AVAILABLE.

6. WE WISH TO CALL WITNESS, WHO WERE IN THE HOTEL AT THE TIME OF THIS INCIDENT WHO ARE NOW AVAILABLE TO GIVE EVIDENCE IN COURT.

7. THERE HAS NOT BEEN A SIMULTANEOUS EXAMINATION OF RECORDS FROM TELSTRA IN CHRONOLOGY CONJUNCTION WITH THE POLICE OCCURRENCE RECORDS .AND OTHER RECORDS.

8. THE EVIDENCE OF THE POLICE, PROVES I COULD NOT HAVE BEEN AT THE COMPLAINANT HOUSE."

16 Pullin JA subsequently ordered that the matter be listed ex parte before him on 29 March 2006. On that day his Honour informed the appellant that he believed he had some contact with him in the ordinary course of the appellant's business. The appellant said he had no concern about that. His Honour then explained the requirement for leave to appeal and certain deficiencies in the materials provided by the appellant. In particular, although the appeal was against the decision of Le Miere J, the appellant had made no reference to that at all. Following that explanation, the appellant requested an adjournment, which his Honour granted. He also gave the appellant leave to amend his grounds of appeal and Appellant's Case.

17 On 26 April 2006 the appellant filed what he describes as an "Amended Appellant's Case" to be read with his earlier document, but also requesting that his appeal be adjourned sine die until funds became available for legal representation.

18 The file shows that on 15 May 2006, Pullin JA had subsequently recalled other matters which made it inappropriate for him to deal with this appeal.

19 The Registrar issued a notice requiring the appellant to attend before a single Judge on 16 June 2006 to present submissions on the issue of leave to appeal.

20 He came before Wheeler JA on that day. Her Honour explained the deficiencies and difficulties still apparent with the appellant's documents. She asked about his request to adjourn the appeal pending the availability of legal representation. He indicated there was no likelihood he could obtain it presently. Her Honour explained the options open to the appellant. He indicated he wished to have a further adjournment to rework his Appellant's Case in the way in which her Honour had said was required. He referred to the need to adduce new evidence. Her Honour explained to him the difficulties about that and what would be required of him in respect of it. She then adjourned the proceedings, ordering that by 18 August 2006 the appellant file an application to adduce further evidence; an affidavit setting out what that further evidence was and annexing that further evidence; and substituted amended grounds referring to the relevant pages of the trial transcript or the new evidence in support of those grounds.

21 On 17 August 2006 the appellant filed a further document headed "Appeal Notice (Criminal)". To that was attached what he describes as a review of the evidence, the reasons for judgment of Le Miere J, what appears to be a faxed copy of a telephone message record to Northam Police Station, various telephone records, a copy of handwritten notes in a police occurrence book and selected marked pages of what was apparently the transcript of the proceedings before the Magistrate on 16 April 2002. It is apparent the appellant was doing his best to provide the material in the form explained to him by Wheeler JA.

22 On 12 September 2006 the appellant filed an affidavit which was the same document he had described as a review of the evidence, but which he now swore to. It is a combination of argument and factual assertions about the relevant events, the charges and the proceedings before the primary court and before Le Miere J. In it, the appellant refers to certain Telstra records and telephone calls to and from the Northam Police Station. I understand this to be the "new" or additional evidence upon which he wishes to rely on the appeal (for convenience, and more correctly, I shall refer to this as the "additional evidence").

23 However, because on their face the documents did not appear to be those which had been required by the orders made by Wheeler JA on 16 June 2006, I directed the matter be listed before me on 22 November 2006 for the appellant to show cause why his appeal should not be struck out for non-compliance with the orders made on 30 June 2006.

24 When he appeared before me on that occasion, the appellant confirmed that the documents he had filed on 17 August and 12 September 2006 were intended to comply with what Wheeler JA had required on 16 June. They do not in fact do so. Nonetheless, in light of the explanation given to me by the appellant on 22 November, which it is not necessary for me to detail here, I am satisfied I can properly deal with the question of leave to appeal. It is sufficient to say the appellant clarified orally what he was seeking to put on the appeal, and the ground he really wished to argue and the additional evidence on which he sought to rely.

25 The first point which has now been clarified is that the additional evidence is in fact evidence upon which he sought to rely before Le Miere J. It was the subject of an application made prior to the hearing of that appeal. The dismissal of that application by his Honour is in fact part of the subject of this appeal. Indeed, as the appellant now explains it, that is really the sole point of this appeal.

26 I commence with the appellant's grounds of appeal as they presently stand. They are:

"1. THE POLICE HAVE ENTERED, AS EVIDENCE IN SUBMISSIONS, IN EVIDENCE PRESENTED TO COURT. THAT THE APPELLANT WAS UNDER OBSERVATION BY POLICE AT THE TIME THE COMPLAIN TENT [sic complainant] HAD IDENTIFIED THE APPELLANT ELSEWHERE

2. IN VERBAL EVIDENCE IN SUBMISSIONS BY POLICE TO COURT

3. IN AFFIDAVIT BY POLICE

4. IN TELEPHONE RECORDS FROM TELSTRA OF POLICE PHONE CALLS, WHICH CLEARLY SHOW THAT ACT STG SHEPARD MADE ONLY 1 CALL TO CONSTABLE TURNER AND THAT PHONE CALL OCCURRED AT .55AM.

5. ANY CLIME [sic claim] THAT THIS CALL OCCURRED LATER IS WITHOUT FOUNDATION AND CANNOT BE SUSTAINED

6. IN POLICE OCCURRENCE BOOK RECORDS THE APPELLANT WAS UNDER OBSERVATION BY POLICE OFFICERS AT THE SAME TIME THE COMPLAINANT HAD IDENTIFIED THE APPELLANT ELSEWHERE AS THE OFFENDER

7. POLICE OCCURRENCE BOOK RECORDS SHOW POLICE OFFICERS, RESPONDING AT 1.45

8. TO THE COMPLAINANTS, BY THE COMPLAINANT THAT HE APPELLANT WAS OUTSIDE HER HOUSE AT .56

9. PRIOR TO HER PHONE CALLS AT 1.53 1.57 AM

10. THE POLICE COVER OVER RELEVANT EVIDENCE IN THE OCCURRENCE BOOK

11. THE POLICE FAILED TO DISCLOSE RELEVANT MATERIAL EVIDENCE TO DEFENCE

12. THE POLICE FAILED TO PRODUCE RELEVANT POLICE TELEPHONE MESSAGE RECORDS TO DEFENCE AT .55 1.53 1.57 AM"

28 The appellant says the prosecution initially presented a case that the incident happened at 12.45 pm, but later, in the appeal before Le Miere J, put it on the basis it must have happened later, at 2 am. The additional evidence upon which he wished to rely before Le Miere J was in the form of telephone records from Telstra obtained after the primary decision, which show the incident could not have happened at 2 am. The appellant says the event occurred at 1.45 am and at that time he was under police observation at his hotel (by this he means simply that there was a police officer there who saw him).

29 In broad terms the appellant maintains that since the primary decision he has analysed the statements of the complainant from the transcripts of all previous Court hearings and compared them with the complainant's evidence at trial before the Magistrate and with Telstra records of the complainant's telephone calls and the police record showing receipt of telephone calls from the complainant, and says that they totally contradict each other. In short, he says all of this shows he was in his hotel when the incident occurred.

30 The police record to which he refers is the police occurrence book.

31 The appellant explains that everything else revolves around the single issue of timing; that the timing cannot have been as put in the prosecution case, and that when the evidence about that is properly understood, it shows the appellant could not have been at the complainant's house when the incident occurred.

32 In light of this explanation given by the appellant at the hearing of his application for leave to appeal, it may be taken that the proposed appeal is against his Honour's refusal to allow the substitution of the new ground 4.

33 To appreciate how this is put, it is necessary now to outline the prosecution case before the Magistrate. I take it essentially from the judgment of Le Miere J.

34 The appellant was the licensee of and lived at the Imperial Hotel, York. That hotel is located on Avon Terrace. The complainant lives on Avon Terrace about 1 kilometre away from the hotel.

35 There was a history of incidents leading to ill feeling between the appellant and the complainant.

36 After the appellant became licensee of the hotel in July 2000 the complainant approached him about holding a function there to raise funds for the York Wine and Roses Festival Association of which the complainant was an office bearer. The function took place in September 2000. Afterwards, there was a disagreement and confrontation between the complainant and a Ms Bahemia and the appellant. The complainant and Ms Bahemia claimed the Association was entitled to a commission for each ticket that had been sold. The appellant claimed the Association was only entitled to a commission in respect of the tickets that had been sold by the Association.

37 There was evidence of a further incident involving the complainant and the appellant about a week before the alleged offences. That involved a dispute over the appellant's dog.

38 It was common ground that as a result of the previous contacts between the appellant and the complainant there was bad blood between them.

39 The appellant was convicted of being in possession of the iron bar and damaging the complainant's door between midnight and 1 am on 3 June 2001. The Magistrate considered the primary issue in the case was the identification of the offender who carried the iron bar and damaged the door.

40 Before the Magistrate the complainant's evidence was that on the afternoon of 2 June 2001 she was at home with her son D, then aged 16 years. The appellant's dog came onto her property. They tied the dog up and called the ranger. The ranger removed the dog from the property at about 3.30 to 4 pm. About 8 pm or 8.30 pm the police came to her house looking for the appellant's dog. The complainant saw the appellant on four or five occasions later that evening. On some occasions he just drove slowly past; on others, he got out of the car and walked up and down the footpath.

41 She said that about 11.15 pm the appellant approached her house. The door was ajar. She braced the door and the appellant pushed on it. The complainant was pushed against the corner of the hallway. The appellant left. The complainant saw the appellant get back into his vehicle and drive off. She telephoned the police. That was about 11.20 pm. After the appellant had left, the complainant inspected the door and observed there were big scrape marks apparently from being hit with a metal object.

42 Some time later the complainant was in bed when she heard a car pull up. She went to the hallway. She could hear that the door was being attacked. Bits of wood flew off and the lock broke and the door flew open and she saw the appellant standing there. He stopped then she saw him throw something in the back of his car and he drove off. The complainant telephoned the police again. The object the appellant was carrying was a metal bar, probably 18 inches to 2 feet long.

43 Photographs of the complainant's door showed a split and a hole in the door next to the latch. Her telephone records showed she telephoned the police at 11.22 pm on 2 June and 12.45 am, 12.56 am, 1.52 am, 1.57 am and 8.59 am on 3 June 2001. She said that the later phone calls were because the police had not turned up.

44 In his evidence the complainant's son said that someone came to the door that night and his mother was talking to whoever it was. The person came back later and was knocking on the door and whistling and walking past. Later, the door was being beaten on. His mother came into the room rubbing her head because she had to brace the door when it was beaten. On the second occasion the door actually gave way. D got up and stepped into the hallway just as the door gave way. His mother was behind the door. He saw the appellant stepping off the verandah. He recognised the appellant because he knew him, having worked with the appellant at his hotel as a waiter.

45 Ms Bahemia gave evidence that on the night of 2 June 2001 she was at a restaurant on Avon Terrace, which she left around midnight. She saw the appellant entering his car outside the hotel. He drove his car in the direction of the complainant's house. When Ms Bahemia turned off Avon Terrace the appellant was still driving along it.

46 Senior Constable Turner was off duty and was playing in a band at the hotel on the night of 2 June 2001. His evidence was that at about 12.50 am on 3 June he received information on his mobile telephone as a result of which he spoke to the appellant in the back bar of the hotel. He told the appellant that he had received a complaint that the appellant had been to the complainant's house and broken her front door. The appellant said that he had not been there and had not done that. At about 1.45 am that morning Senior Constable Turner went to the complainant's house. He then conducted patrols of the York town site in an attempt to locate the appellant's vehicle. He subsequently found it parked in Howick Street, which runs parallel to Avon Terrace and is about 100 or 150 metres from the hotel. The appellant normally parks his vehicle out the front of the hotel, or if the carparks at the front are occupied he parks it in the back gravel carpark. Senior Constable Turner found out the following day or the day after that, that the appellant had reported his vehicle stolen. The complainant's house is approximately 1 kilometre from the hotel.

47 The appellant gave evidence before the Magistrate. He said that at about 12.40 pm on 2 June he learned that his dog was missing. He drove to the complainant's house and whistled for it.

48 He drove around York looking for it. He returned to the complainant's house about 1 pm and again whistled for the dog. He got out of his car and walked past the front of the house. He then drove back to the hotel. At about 1.45 pm he drove towards Northam and stopped outside the complainant's house. He went to the door and knocked on it. There was no response. He said he went back to the car and whistled for the dog. There was no response to that. He drove on to Northam, returning to York about 3.30 pm. He then went to the York police station where he told them the dog was missing and that he a problem with the complainant and asked them to look into it. He said that at about 4 pm the police officer returned to the station and told him he had spoken to the complainant but she said she knew nothing about the appellant's dog, had not seen it and did not know where it was. The appellant returned to the hotel.

49 He said that about 5 pm he again drove around York looking for the dog. He went to the complainant's house just before 7 pm, driving past the house but not stopping. He said he and his wife had dinner at the hotel with friends after that. His wife went to bed before the dinner finished, which was about 10 pm. The appellant said he then went around the hotel coffee shop and bars checking on things and then went to get some ice. He returned and parked his car in front of the hotel about 10.45 pm. About 11 pm he commenced closing the front bar, the alfresco area and coffee shop. He then attended to the till and the Eftpos. He produced the till records which showed that the Eftpos was turned off at 11.01 pm. He produced a financial report for the daily takings. That included a till reading for the day stating it was taken at 11.25 pm. The report is in the appellant's handwriting. He said he completed the document at approximately 11.30 pm. He said he locked the office and went to see how the band was going. He said Senior Constable Turner came to him and said he received a complaint that the appellant had smashed the complainant's door down. The appellant denied that. He said he finished his drink and checked that everything was locked up. He said that at approximately 11.45 pm he moved his car around the back of the hotel before returning inside and going to bed. He did not get up during the night.

50 The appellant's wife testified that she had dinner with the appellant and friends at the hotel but that she left the dinner and went to bed at about 9 pm. She said the appellant came to bed at around 11.40 pm. She remembered the time because there was a digital clock next to the bed. He got into bed and if he had got out again she would have stirred and would have woken up.

51 Additional evidence sought to be relied upon by the appellant was the subject of an application to substitute a new ground 4 before Le Miere J. His Honour explained that at [17] - [20] of the subject appeal judgment:

"17 On 28 October 2003 Heenan J ordered that the appellant have leave to appeal on five grounds. Ground 4 was a new evidence ground. The new evidence was said to be the Imperial Hotel security video tapes taken on 2 and 3 June 2001 which show, amongst other things, that the applicant was not in the bar of the hotel at around 12.50 am when he was alleged to have been spoken to by Senior Constable Turner regarding the complaint of the complainant made shortly prior to that time. The appellant swore an affidavit on 11 July 2002 in support of his application to adduce further evidence. The respondent filed four affidavits in response to, or as a consequence of, the affidavit of the appellant sworn 11 July 2002. Those are the affidavits of Senior Constable Turner sworn 24 November 2003 and three affidavits sworn by police officers Robert Leon Vogels, David Charles Shepherd sworn 26 November 2003 and Peter Robert Jaremczuk sworn 8 January 2004.

18 At the hearing of the appeal the appellant abandoned ground 4 and sought leave to substitute a new ground 4 in the following terms:

'The appellant relies on the new evidence, which tends to contradict the evidence of the complainant and cast doubt upon the reliability thereof in her assertion that the appellant was present at her home at or about 12.45 am on 3 June 2001 being that contained in:

1. the affidavit of Matthew David Turner sworn 24 November 2003 and annexure MDT1 and MDT2 thereof;

2. the affidavit of Robert Leon Vogels sworn 26 November 2003 and annexure RLV1 thereto;

3. Paragraphs 1 to 8 inclusive of the affidavit of David Charles Shepherd sworn 26 November 2003 and annexure DCS1 thereto.

4. the affidavit of Peter Robert Jaremczuk sworn 8 January 2004 annexure PRJ1 thereto.

5. Annexures KGL1 to KGL6 to the affidavit of Kevin Gerard Lawless sworn 12 April 2005.'

19 Annexures KGL1 to KGL6 of the affidavit of the appellant sworn 12 April 2005 are, or relate to, records of telephone calls made and received from the mobile telephone of Constable Turner on 3 June 2001 and the mobile telephone of the appellant at various times between 1 June 2001 and 8 June 2001.

20 At the commencement of the appeal I acceded to the proposal of the appellant, agreed to by the respondent, that the appellant's application for leave to amend the grounds of appeal by inserting the proposed new ground 4 and the application for leave to adduce the new evidence be heard together with the appeal."

52 The most useful way of dealing with this is to set out in full what his Honour said about it at [64] - [79]:

"64 The proposed new ground 4 is that the new evidence to which I have earlier referred tends to contradict the evidence of the complainant and cast doubt upon the reliability of her assertion that the appellant was present at her house at about 12.45 am on 3 June 2001.

65 The court should not grant leave to appeal on a ground unless that ground has reasonable prospects of succeeding: Criminal Appeals Act 2004 (WA), s 9(2). I will consider whether to grant leave to appeal on the proposed new ground 4 together with the question of whether leave should be granted to adduce the new evidence.

66 The principles relating to the admission of fresh and new evidence on appeal are well established. However, the appellant submits that the statutory power contained in s 40(1)(e) of the Criminal Appeals Act to receive new evidence gives a broader discretion to admit the new evidence. Section 40(1)(e) applies to any appeal to a superior court. In my view the discretion conferred by s 40(1)(e) is to be exercised in accordance with the established principles relating to the admission of fresh and new evidence on appeal.

67 Fresh evidence is evidence which did not exist at the time of the 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: Beamish v The Queen [2005] WASCA 62 at [9]. Counsel for the respondent submitted, and I accept, that in the case of fresh evidence there is a three stage test. First, it must be shown that the evidence relied upon could not, with reasonable diligence, have been produced by the appellant at trial (although this is not a universal and inflexible requirement). Secondly, the evidence must be cogent, plausible and relevant. Thirdly, there must be a significant possibility that the finder of fact, acting reasonably, would have acquitted the appellant had the fresh evidence been before it at trial: Button v The Queen [2002] WASCA 35; 25 WAR 382 per Malcolm CJ at [58]; Beamish v the Queen (supra) per the court at [14].

68 None of the new evidence is fresh evidence. Some of the telephone records were available at trial. All of the telephone records could have been subpoenaed by the appellant at the trial. There is no evidence explaining why the appellant did not do so.

69 In the case of new evidence, the appeal court should only quash a conviction if the evidence 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 v The Queen [1974] HCA 35; (1974) 131 CLR 510 per Barwick CJ at 520. The mere likelihood that the finder of fact would have returned a verdict of not guilty is insufficient to set aside a conviction on the basis of new evidence: Lawless v The Queen [1979] HCA 49; (1979) 142 CLR 659 per Mason J at 675. In a criminal trial the accused is entitled to decide how his case is to be conducted, in particular, what evidence he will call. He makes his decision in 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: Lawless v The Queen (supra) per Mason J at 675 - 676

70 The appellant submits that the new evidence establishes, with accuracy attributable to the telephone records, the times at which the complainant made various calls to the police and various police officers called each other.

71 The appellant submits that the new evidence establishes the following matters. First, the complainant telephoned the police at 12.45 am on 3 June and hence the damage to her door occurred at or shortly before 12.45 am. Secondly, Constable Turner spoke to the appellant at the Imperial Hotel at 12.55 am. Thirdly, the complainant telephoned the police and complained that the appellant was again outside her house at 12.56 am.

72 The appellant submits that the time of the incident may be taken as about 12.45 am. The appellant further submits that it is unlikely that the appellant committed the offence at about that time, drove back to the Imperial Hotel and was standing in front of Constable Turner at 12.56 am. I do not accept that submission. Given the short distance between the hotel and the complainant's house there is nothing unlikely about the appellant being at the hotel 11 minutes after causing damage to the complainant's door.

73 The appellant next says that the new evidence establishes that the appellant was at the Imperial Hotel at 12.55 am standing in front of Constable Turner and therefore could not have been outside the complainant's house at 12.56 am. The appellant submits that the telephone records establish that the complainant complained to the police at 12.56 am that the appellant had returned to her house. The appellant submits that that evidence casts grave doubt on the credibility of the complainant.

74 The respondent submits that the appellant stated in her evidence-in-chief that the appellant came past her house again after the 12.45 am incident but did not specify a time. She confirmed in her evidence-in-chief that she telephoned the police again at 12.56 am, 1.52 am and 1.57 am. The complainant stated that these calls were 'because no one had turned up. The police hadn't turned up, and I was really quite frightened because he had been coming all day'. The complainant was cross-examined about her subsequent phone calls and sighting of the appellant after the incident. The complainant confirmed that she had called Northam Police Station three times after 12.45 am, namely at 12.56 am, 1.52 am and 1.57 am. The respondent submits that the complainant did not specify during which of the three phone calls she sighted the appellant. I have carefully read the transcript. I accept the respondent's submission. Accordingly, the fact that the appellant was at the hotel in front of Constable Turner at 12.56 am does not contradict the evidence of the complainant.

75 The appellant further relies on annexure MDT2 to the affidavit of Constable Turner. The appellant submits that this document suggests that when the complainant made her complaint regarding the damage to her door she said: 'Kevin Lawless has just come to my house and kicked my front door in'. The appellant submits that this raises a further issue with respect to the complainant's credibility, namely, whether, as she claimed, the appellant was carrying an iron bar and whether he used the iron bar to cause the damage to the complainant's door. It is submitted that it is highly significant that the complainant apparently made a statement to police within minutes of the offending behaviour that is completely inconsistent with both offences.

76 Annexure MDT2 is a copy of a telephone message made by officers at Northam Police Station regarding the complaint received from the complainant at 12.53 am on 3 June 2002. Constable Turner obtained the copy of that telephone message in early March 2002 from Senior Constable Da Ronche then of the Northam Police Station. The message records a statement by an unknown officer. There is no evidence as to how the message came to be transcribed. Evidence has not been given by the person who received the message. Whether the message records accurately words spoken by the complainant or the message taker's own description of what the complainant said is unknown.

77 The new evidence does not show the appellant to be innocent nor does it raise such a doubt about his guilt in the mind of the court that the verdict should not be allowed to stand.

78 There is another reason why the evidence establishing that the appellant was standing before Constable Turner in the hotel at 12.55 am should not be received as new evidence on appeal. The appellant's case at trial was that he was not at the complainant's house at the time of the offence. His case was that he was not spoken to by Constable Turner at 12.50 am because he had gone to bed at 11.40 pm. That evidence was corroborated by his wife, although rejected by the Magistrate as unreliable. The appellant argued that Constable Turner must have been mistaken as to the time he said he spoke to the appellant, that is it was not 12.50 am but earlier in the evening, prior to the appellant going to bed at 11.40 pm. The effect of the appellant's application to adduce further evidence is to change the defence run at trial. The appellant now seeks to prove that he was in fact speaking to Constable Turner at 12.55 am, contrary to his evidence at trial, and therefore he could not have been at the complainant's house. In those circumstances, leave should not be granted to adduce the fresh evidence.

79 The proposed new ground 4 of the appeal does not have any merit. I do not grant leave to amend the grounds of appeal to introduce that ground of appeal."

53 As I have noted above, leave to appeal must not be granted unless the particular ground has a reasonable prospect of succeeding on appeal (s 18 Criminal Appeals Act).

54 In my opinion the appellant's challenge to the order by Le Miere J refusing leave to add the substituted ground 4 does not have that necessary prospect of success.

55 His Honour's view that the discretion conferred by s 40(1)(e) of the Criminal Appeals Act is to be exercised in accordance with the established principles relating to the admission of fresh and new evidence on appeal, was arguably unduly narrow.

56 In de la Espriella-Velasco v The Queen [2006] WASCA 31; (2006) 31 WAR 291, Pullin JA thought the discretion under s 40 to admit evidence on an appeal was not significantly different than that which had previously been obtained under s 697 of the Criminal Code (WA) ([149]). His Honour explained his understanding at [150] - [154]:

"150 A number of points should be made about the power contained in s 40 to admit further evidence on the hearing of an appeal. Most emerge by the application of reasoning revealed in the decision of the High Court in CDJ v VAJ (1998) 197 CLR 172. That was a case in which the High Court was considering s 93A(2) of the Family Law Act 1975 (Cth), which conferred on the Family Court of Australia the discretion, in an appeal, to receive 'further evidence' upon questions of facts. The provision is therefore similar to s 40. The points which emerge are as follows:

(a) The discretion to receive further evidence is unconfined by anything within s 40 and so the discretion is confined only by the subject matter of the legislation and by the requirement that it be exercised judicially and consistent with the judicial process: (CDJ v VAJ per Gaudron J (at [52], [53]), McHugh, Gummow and Callinan JJ (at [110]) and Kirby J (at [186]).

(b) In particular the discretion to admit further evidence is not restricted by the need to show 'special grounds' or the procedural requirement of 'special leave'. The almost fixed rules at common law which govern the admission of further evidence on an appeal do not apply (per McHugh, Gummow and Callinan JJ (at [104]) and Kirby J (at [186])).

(c) The power to admit further evidence exists to serve the demands of justice (McHugh, Gummow and Callinan JJ (at [111])).

(d) It is however, highly unlikely that Parliament, in conferring jurisdiction on the Court of Appeal to hear appeals, intended that s 40 should be construed in a way that would have the practical effect of obliterating the distinction between original and appellant jurisdictions (McHugh, Gummow and Callinan JJ (at [111])).

(e) The availability of further evidence relevant to the issues in the appeal cannot be treated as equivalent to a ground of appeal, proof of which prima facie entitles the appellant to a new trial (McHugh, Gummow and Callinan JJ (at [111])).

(f) Ordinarily, where it is alleged that the admission of new evidence requires a new trial, justice will not be served unless the Court of Appeal is satisfied that the further evidence would have produced a different result if it had been available at the trial (McHugh, Gummow and Callinan JJ (at [111])).

151 All that is set out above governs the decision to admit the further evidence. In short, at the stage of deciding to admit further evidence, the court will not refuse to hear further evidence merely because it is 'new' evidence rather than 'fresh' evidence, although the distinction is relevant. The expressions 'fresh' evidence and 'new' evidence are well understood and the distinction is explained in Mickelberg v The Queen (2004) 29 WAR 13 at [410] - [411].

152 The distinction between 'fresh' and 'new' evidence continues to be of importance. The distinction is important because 'new' evidence, after all, is evidence which was available and known by the convicted person to be available at the time of the original trial, or alternatively, 'constructively' (Ratten v The Queen [1974] HCA 35; (1974) 131 CLR 510 at 517) known to be available at the time of the original trial. An accused will 'constructively' know about evidence if, although not actually aware of it, he or she could with reasonable diligence have discovered the evidence by the time of the original trial. Admittedly, 'great latitude' (Ratten (at 517)) must be extended to an accused in determining what evidence by reasonable diligence in his own interest he could have been able to produce at trial. This is because an accused will often be disadvantaged in intellectual terms, or in terms of financial and legal resources in the conduct of the case. The fact that such latitude must be shown may be the reason why it has been said that the distinction between 'fresh' and 'new' evidence is not as significant as it once was: Nolan v The Queen (unreported, Court of Criminal Appeal, WA, No 99 of 1995, Malcolm CJ, Pidgeon and Murray JJ, 22 May 1997). The distinction does, however, remain and is soundly based in principle. See Mickelberg v The Queen (at [415]). There will be many cases where no latitude should be granted because the accused is not disadvantaged in any way.

153 The reason for continuing to distinguish between 'new' and 'fresh' evidence is not to re-establish a set of rules bordering on fixed rules but merely to recognise that, in many cases, the court is likely to exercise its discretion and refuse to admit further evidence - in circumstances where the convicted person chose not to lead the evidence at trial or did not lead evidence which was available on reasonable inquiry. The fact that a tactical decision was made not to lead evidence or the fact that there was a failure to make reasonable inquiry will be facts relevant to the court's decision about whether the convictions should be quashed and a retrial ordered. A decision made for tactical reasons is a decision which an accused person must live with. There will be no miscarriage of justice: Lawless v The Queen [1979] HCA 49; (1979) 142 CLR 659 at 675 676. As Barwick CJ said in Ratten v The Queen (at 517), a criminal trial is not an inquisition. It is a trial:

... in which the protagonist is the Crown on the one hand and the accused on the other. Each is free to decide the ground on which it or he will contest the issue, the evidence which it or he will call, and what questions whether in chief or in cross-examination shall be asked ... [c]onsequently if the proceedings are not blemished by error on the part of the judge, whether it be on a matter of law or in the proper conduct of the proceedings or by misconduct on the part of the jury, there has been a fair trial. It will not become an unfair trial because the accused of his own volition has not called evidence which was available to him at the time of his trial, or of which, bearing in mind his circumstances as an accused, he could reasonably have been expected to have become aware and which he could have been able to produce at the trial.

154 Barwick CJ, after mentioning the latitude which must be extended to an accused in determining what evidence by reasonable diligence the accused could have had available at the trial, then concluded that: '... he must bear the consequences of his own decision as to the calling and treatment of evidence at the trial.'"

"156 If further evidence is admitted on appeal, this cannot be used to establish a ground of appeal that the verdict was unreasonable and unsupported by the evidence: s 30(3)(a). The further evidence cannot be used to establish that there was any wrong decision by the trial judge on a question of law (s 30(3)(b)): Gallagher v The Queen [1986] HCA 26; (1986) 160 CLR 392 at 395. If the further evidence is to result in a successful appeal, it must be because there has been a 'miscarriage of justice': s 30(3)(c), and as to that, Barwick CJ said (at 517) in Ratten:

... there will be no miscarriage simply because evidence which was available to him actually or constructively was not called by the accused, even though it may appear that if the evidence had been called and been believed a different verdict at the trial would most likely have resulted. The accused, nevertheless, will have had a fair trial.

And see also Mickelberg v The Queen [1989] HCA 35; (1989) 167 CLR 259 at 301.

157 The interests of justice are served by finality in litigation. The interests of justice will not usually be served by allowing an appellant to adduce evidence on an appeal if the appellant made a tactical decision at trial not to call that evidence, or if the appellant suffered Nelsonian blindness and for that reason did not call that evidence at trial. Having said that, the overriding consideration however, must be whether or not the further evidence demonstrates that there has been a miscarriage of justice. If the evidence is 'fresh evidence', then the court only has to reach a conclusion that there would have been an increased chance of acquittal in order to decide that there was a miscarriage of justice. It must be shown that the jury would have been 'likely' to have entertained a reasonable doubt; or 'might' have; or there was a 'significant possibility' of that being so: Mickelberg v The Queen (at 275); Roth-Beirne v Western Australia [2005] WASCA 170; (2005) 156 A Crim R 101 at [40]).

158 However, if the evidence is 'new' evidence, then it is not enough merely to show an increased chance of acquittal: Tkacz v Western Australia [20051 WASCA 108 at [49]. The 'new' evidence must be strong enough to show that the appellant is innocent or raises such a doubt that the court concludes that the accused 'should not have been convicted': Lawless (at 676); Mickelberg v The Queen (2004) 29 WAR 13 at [413]; Nolan (at 62-63); Easterday v The Queen [2003] WASCA 69; (2003) 143 A Crim R 154 at [371]; Hillstead v The Queen [20051 WASCA 116 at [61]."

58 Whilst I did not disagree with what his Honour said there about the operation of s 40 and the "new/fresh evidence" distinction, I preferred to reserve expressing any determinative view until having had the benefit of full argument ([2]). The other member of the Court, Miller AJA, accepted the distinction between fresh and new evidence remains and is clearly established as a point of principle ([373]).

59 It might be concluded from what was said by the High Court in CDJ v VAJ (1998) 197 CLR 172 that the discretion conferred by s 40(1)(e) of the Criminal Appeals Act to admit evidence on an appeal is more ample than the principles applicable in common law proceedings, and the common law rules which govern the admission of fresh evidence in the common law courts cannot exhaustively define the scope of the discretion (per Gaudron J at [52]; McHugh, Gummow and Callinan JJ at [108]). Where no qualifications nor conditions are expressed in relation to the exercise of a discretionary power by a court, the scope of the discretion is a matter of statutory construction, and will be confined only by the subject-matter of the statute and the requirement that the discretion be exercised judicially (Gaudron J at [53]).

60 The fact that the power is conferred on a court exercising appellate jurisdiction is particularly relevant. The consequence is that evidence should ordinarily not be admitted for the first time on appeal if it was available, or could reasonably have been obtained, at the time of hearing (Gaudron J at [55]; McHugh, Gummow and Callinan JJ at [111]; Kirby J at [186] - [189]). As McHugh J et al observed at [111]:

"Nevertheless, it is highly unlikely that Parliament in conferring jurisdiction on the Full Court to hear appeals intended that s 93A(2) should be construed in a way that would have the practical effect of obliterating the distinction between original and appellate jurisdiction. Nor can the availability of further evidence relevant to the issues in the appeal be treated as equivalent to a ground of appeal, proof of which prima facie entitles the appellant to a new trial. The power to admit the further evidence exists to serve the demands of justice. Ordinarily, where it is alleged that the admission of new evidence requires a new trial, justice will not be served unless the Full Court is satisfied that the further evidence would have produced a different result if it had been available at the trial. Without that condition being satisfied, it could seldom, if ever, be in the interests of justice to deprive the respondent of the benefit of the orders made by the trial judge and put that person to the expense, inconvenience and worry of a new trial."

61 I do not stay here to attempt to reach any final or determinative view of the effect of s 40(1)(e). The consideration of an application for leave to appeal by a single Judge is not the occasion for that. I approach the matter on the basis that the Court of Appeal might take the view that s 40(1)(e) confers a wide discretion to admit evidence on appeal, which is not confined by the established principles in relation to the admission of fresh or new evidence on appeal. That is not to say those principles would not have any relevance to an application to adduce evidence. It is apparent from what was said in CDJ that they would continue to be significant considerations. The statutory discretion in that case was similarly unconfined, although as a matter of construction the statutory context was an important guide to the nature and scope of the discretion there granted. The different statutory context here might lead to a discretion differently understood.

62 Taking this approach, in my opinion, even if the Court of Appeal were to take what might be described as the "wider view" of the discretion conferred by s 40(1)(e), that Court would still not be likely to conclude that his Honour's exercise of the discretion miscarried. On either view of the law relating to the admission of evidence on appeal, the reasoning of his Honour as set out above, appropriately analyses the evidentiary issues sought to be raised, in the context of the evidence before the Magistrate, and articulates a conclusion which on that material it was properly open for his Honour to reach.