Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Criminal law - Appeal against conviction - Application for extension of time - Long delay - Application to adduce fresh evidence - Recanting witnesses giving evidence at Royal Commission that they fabricated evidence at trial - Recanting witnesses not called or subpoenaed to give evidence to the Court of Appeal - Whether transcripts of evidence of recanting witnesses' evidence at Royal Commission should be admitted under s 79C of the Evidence Act 1906 (WA)

Evidence Act 1906 (WA), s 79B, s 79C

Grant the appellant an extension of time within which to apply for leave to appeal

Amiss v The State of Western Australia [2006] WASCA 171; (2006) 165 A Crim R 387

Beamish v The Queen [2005] WASCA 62

Bryer v The Queen (1994) 75 A Crim R 456

Cavill v The State of Western Australia [2008] WASCA 108

Craig v The King [1933] HCA 41; (1933) 49 CLR 429

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

Festa v The Queen [2001] HCA 72; (2001) 208 CLR 593

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

Lancaster v The Queen [1989] WAR 83

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

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

Mickelberg v The Queen [2004] WASCA 145; (2004) 29 WAR 13

Nye v New South Wales [2002] NSWSC 1268; (2002) 134 A Crim R 245

PAS v The State of Western Australia [2009] WASCA 210

R v Hasenkamp (Unreported, NSWCCA, Library No 060495 of 1997, 24 February 1998

R v Hastings (Unreported, NSWCCA, Library No 60167 of 1997, 26 September 1997)

R v Hillier [2007] HCA 13; (2007) 228 CLR 618

R v Keenan [2009] HCA 1; (2009) 236 CLR 397

R v Marsala (Unreported, NSWCCA, Library No 60198 of 1995, 31 May 1996)

R v McVittie [2005] NSWCCA 267

R v Selewski (Unreported, NSWCCA, Library No 60281 of 1994, 19 June 1996

R v Vastag (Unreported, Library No 60420 of 1996, NSWCCA, 20 June 1997)

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

Re GAM [2005] VSCA 234; (2005) 12 VR 177

Thomas v State of New South Wales [2007] NSWSC 160

Thomas v State of New South Wales [2008] NSWCA 316; (2008) 74 NSWLR 34

Truscott v The State of Western Australia [2007] WASCA 62

White v The Queen [2006] WASCA 62

Wimbridge v The State of Western Australia [2009] WASCA 196

1 MARTIN CJ: I have had the advantage of reading the reasons to be published by Pullin JA, which helpfully set out the issues which arise in this appeal, and the facts and circumstances relevant to those issues. These reasons should be read in the context of those facts and circumstances, which I gratefully adopt.

2 As Pullin JA points out, there are essentially three issues which require determination. They are:

1. Should the fresh evidence tendered by the appellant be received in the appeal?
2. Should time be extended to allow the appeal to be brought?
3. If the fresh evidence tendered by the appellant is admitted, does it establish that the conviction of the appellant was a miscarriage of justice?

3 The first issue is logically anterior to the other issues. That is because the substantive appeal depends critically upon the receipt of the fresh evidence. If the fresh evidence is not admitted, the appeal is not arguable, and time should not be extended to allow it to be brought.

4 The fresh evidence which the appellant tenders, and upon which his appeal depends, is the transcript of the evidence given by F1 and F2 at the Royal Commission into whether there has been any corrupt or criminal conduct by Western Australian Police Officers (the 'Royal Commission'). The evidence is undoubtedly 'fresh' as it was not available to the appellant at the time of his trial and could not have been discovered by him at that time.

5 The relevant portions of transcript are exhibited to the affidavit of a legal practitioner employed by the law firm representing the appellant. They do not bear a certificate complying with s 50A of the Evidence Act 1906 (WA). However, the legal practitioner deposes that she believes the transcript to be a true copy of the transcript of the proceedings before the Royal Commission. It may be inferred from this assertion that the deponent believes that the transcript accurately records the proceedings before that Royal Commission. Throughout these proceedings, although the State opposed the admission of the transcript, it did not contest its accuracy, and took no point in relation to the lack of a certificate complying with s 50A of the Evidence Act. It is therefore appropriate for this court to proceed on the basis that the transcript accurately records evidence given on oath by the witnesses F1 and F2 at the Royal Commission.

6 The fact that F1 and F2 made the statements attributed to them in the transcript on oath is prospectively relevant to the issues in this appeal at two levels. At the first level, the fact that the statements were made is relevant because counsel for the State accepts that 'at trial the prosecution would not be obliged, having regard to what we now know about what the witnesses have said, to call these witnesses because they are not witnesses of the truth' (ts 40, and see also ts 98). Put another way, the State concedes that this court should conclude from the fact of the statements made by F1 and F2 on oath at the Royal Commission that they should not be taken to be reliable witnesses, and that if that unreliability had been known at the time of the appellant's trial, they would not have been called as part of the prosecution case.

7 That conclusion, drawn from the transcript of the statements made by F1 and F2, is relevant to the issues in the appeal. It follows that the evidence, in the form of the transcript, is relevant and admissible in the appeal as evidence of the fact that those statements were made by F1 and F2, irrespective of the provisions of s 79C of the Evidence Act.

8 The second prospective level at which the evidence in the form of the transcripts might provide evidence relevant to the issues in the appeal is if it is regarded as evidence of the truth of the statements made. In the portion of these reasons concerned with the substantive issue raised in the appeal, I will address the significance, if any, of the evidence being received as evidence of the truth of the facts asserted. However, for present purposes it is sufficient to note that, as F1 and F2 were not called as witnesses in the appeal, their statements out of court could only be received as evidence of the truth of the facts asserted if admitted pursuant to s 79C of the Evidence Act.

9 The relevant portions of that section can be found in the reasons of Pullin JA. Section 79B of the Evidence Act defines the expression 'qualified person' for the purposes of s 79C to mean a person who:

(a) had, at the time of making the statement, or may reasonably be supposed to have had at that time, personal knowledge of the matters dealt with by the statement; ...

10 Plainly, F1 and F2 were 'qualified persons' for the purposes of s 79C at the time they made their statements to the Royal Commission.

11 However, the statements made by F1 and F2 which are recorded in the transcript of the proceedings before the Royal Commission can only be admitted as evidence of the facts asserted in those statements if the appellant's failure to call F1 and F2 as witnesses falls within one or other of the exceptions provided by s 79C(2). The relevant exception relied upon by the appellant was that provided by par (d), namely, that:

[A]ll reasonable efforts to identify or find him have been made without success.

12 As Pullin JA points out, the State conceded that the appellant and his legal advisers had made all reasonable efforts to find the witnesses.

13 The evidence on that subject was as follows. On 20 May 2009, solicitors acting on behalf of the appellant wrote to the Corruption and Crime Commissioner, in his capacity as custodian of all documents relating to the Royal Commission in which F1 and F2 gave evidence. The letter outlined the issues raised in the appeal and advised the Commissioner that the appellant wished to adduce evidence from F1 and F2.

14 The letter advised the Commissioner that the solicitors knew the original names of F1 and F2, but assumed that they had been given new identities following the Royal Commission.

15 The letter implicitly sought such information as was available from the Corruption and Crime Commission which would assist in the current identification and location of F1 and F2.

16 The letter proposed in the alternative that subpoenas might be issued to require the attendance of F1 and F2 at the hearing of the appeal, with service of those subpoenas arranged by the authorities responsible for the protection of those officers. The letter proposed that thereafter F1 and F2 might give their evidence via video link from an undisclosed location to a closed court, being the procedure followed in Thomas v State of New South Wales [2008] NSWCA 316; (2008) 74 NSWLR 34.

17 On the same day a letter was written in similar terms to the Commissioner of Police in New South Wales.

18 No response was received to either letter, so the solicitors for the appellant wrote again to each of the Commissioners by letter dated 17 September 2009. The letter to the Commissioner of Police in New South Wales confirmed that in June 2009 the solicitors for the appellant had received advice to the effect that the issues arising from their letter had been referred by the police to the Crown Solicitor's Office of New South Wales for the provision of legal advice, and that they had subsequently been advised that such advice had been received.

19 An officer of the Corruption and Crime Commission of Western Australia responded to the letter from the appellant's solicitors by letter dated 1 October 2009. The letter advised that the information which had been received by the Corruption and Crime Commission did not include information pertaining to the whereabouts of F1 and F2 after completion of the Royal Commission. Accordingly, the Corruption and Crime Commission was unable to assist.

20 By letter dated 12 October 2009, an officer of the New South Wales Police Force responded to the letter from the appellant's solicitors. In that letter, the writer advised that the advice received had included a recommendation against the release of any information concerning the protected witnesses, on the basis that the release of that information would have the potential to place persons in danger 'were those persons' new identities or locations to be released'. The legal advice also referred to the potential for contempt of the Royal Commission if information were provided to the appellant's solicitors 'about the new identities of persons which had been assigned to them by the Royal Commission'. The advice also referred to alternative sources of evidence which could be used in the appeal (presumably being the reference to the tender of the transcript of the proceedings before the Royal Commission), and alternative means available to effect the service of the subpoena upon the persons sought, as outlined in the correspondence from the appellant's solicitors.

21 The letter went on to state that the advice which had been received included the following:

If the commissioner or his representative so approves, that Freehill solicitors be provided with all necessary assistance from the NSWPF in arranging the service of any legal process issued in respect of the protected witnesses upon the officers responsible for their protection and the NSWPF further provide any other necessary assistance for those witnesses if and when they are required to provide evidence to the Court.

22 The letter did not state, expressly, that the advice had been accepted, but that is its clear import.

23 There was no evidence of any further steps having been taken by the appellant or his solicitors in relation to these matters after receipt of the correspondence to which I have referred.

24 On the basis of this evidence, the State's concession that all reasonable efforts to identify F1 and F2 had been made, was properly made. It seems reasonable to conclude that there were only two prospective sources of information as to the current identities and locations of F1 and F2, namely, the Corruption and Crime Commission of Western Australia as custodian of the records of the Royal Commission, and the New South Wales Police Force. The appellant, through his solicitors, sought information from both sources. The evidence establishes that the Corruption and Crime Commission in fact had no information as to the current identities or whereabouts of the two witnesses and the New South Wales police declined to provide that information. The terms of the letter from New South Wales Police Force, to which I have referred, make it clear that new identities have been assigned to each of F1 and F2.

25 The letter from New South Wales Police Force also left open the possibility of utilising the procedure adopted in Thomas 'if the Commissioner or his representative so approves'. There is no evidence that the Commissioner or his representative has given such approval, nor, of course, is there any evidence that such approval has been sought. In the absence of evidence on the topic, I would not, myself, draw the inference that such approval would be given. In any event, the potential availability of such a course does not answer the question posed by s 79C(2)(d), which is whether the reasonable efforts to identify or find the witness have been made 'without success'.

26 In the context of s 79C, the word 'identify' can be taken to mean the obtaining of knowledge of the identity of the relevant witness. In the present case, the appellant is aware of the names used by each of F1 and F2 at the time they gave evidence at his trial. However, it is clear that each witness has been given a new identity which is not known to the appellant or his solicitors. Insofar as s 79C refers to a witness being identified, it should be read as applying to the identity of the witness at the time the efforts are made to identify him or her. Construed in that way, the evidence establishes that the appellant has not been successful in identifying F1 or F2.

27 In the context of s 79C, it seems to me that the word 'find' means to obtain knowledge of the whereabouts of the relevant witness. I agree with Pullin JA that the significance of obtaining knowledge as to the whereabouts of the relevant witness is no doubt so that he or she may be persuaded or compelled by court process to attend court to give evidence. However, while that is the ultimate objective of the person being found, meaning must still be given to the word 'find' in the statutory provision. That word has a plain and ordinary meaning which, in this context, should be taken to mean to obtain knowledge of the whereabouts of the relevant witness. Neither the appellant nor his solicitors have any knowledge as to the whereabouts of either F1 or F2. It seems to me to follow from this that their efforts to 'find' those witnesses have been made without success. The fact that an alternative mechanism might, subject to the approval of the Commissioner of Police, be available to enable a witness to give evidence does not mean that the witness has been found, within the natural and ordinary meaning of that expression.

28 In my opinion, the appellant has established that all reasonable efforts to identify or find F1 and F2 have been made without success, within the meaning of s 79C(2) of the Evidence Act, with the result that the appellant was not obliged to call those witnesses in order to render the transcript of their statements admissible as evidence of their truth pursuant to s 79C(1).

29 There is a general discretion under s 79C(6) to reject a statement tendered in evidence pursuant to the provisions of s 79C notwithstanding that the statement is otherwise rendered admissible by that section if:

the court is of the opinion that the probative value of the statement is outweighed by the consideration that its admission or the determination of its admissibility:

...

(b) may create undue prejudice, or confuse the issues ...

30 In this case, I would not exercise the discretion to refuse the evidence made admissible by the section. When, in considering the exercise of the discretion to reject otherwise admissible evidence, the court considers the question of 'undue prejudice', it must do so by reference to the interests of both parties to the proceedings. So, while it is appropriate to give consideration to the prejudice which the State might suffer as a result of its inability to cross-examine F1 and F2 on the statements made to the Royal Commission, the prejudice suffered by the appellant as a consequence of the rejection of the tender of the transcript must also be taken into account. If the tender of the evidence of the statements made by F1 and F2 in the course of the proceedings before the Royal Commission is rejected entirely, the prejudice suffered by the appellant is, of course, substantial, in that his appeal must be dismissed as a consequence. On the other hand, in the unusual circumstances of this case, the prejudice suffered by the State as a result of its inability to cross-examine F1 and F2 is not of that order of magnitude.

31 That is because this appeal has been conducted by both parties on the basis that no question of a retrial would arise in the event that the appeal is allowed. That assumption is properly made. Not only has the appellant fully served the sentence imposed upon him following his conviction, but a very substantial time has elapsed since the events giving rise to the charge brought against the appellant, and the exhibits tendered at the trial of the appellant are no longer available. The State therefore accepts that a retrial of the appellant could not be fairly conducted, with the consequence that if the appellant succeeds in establishing a miscarriage of justice, his conviction must be quashed without a retrial being ordered. It follows that no question of assessing the credibility of F1 and F2 for the purposes of evaluating whether or not a retrial should be ordered arises in this case.

32 For reasons which I will develop at greater length in the context of the substantive merits of the appeal, in cases such as this, where the fresh evidence received by the Court of Appeal amounts to a recantation of inculpatory evidence given at trial, there are a number of courses open to the Court of Appeal. They include the courses, either alternative or cumulative, identified by Fitzgerald P in Bryer v The Queen (1994) 75 A Crim R 456, 458. One course is to proceed on the basis that the witness's new version of events is before the jury, and is sufficiently relevant, cogent and plausible to be considered by the jury as exculpatory, and in particular, sufficient to raise a doubt as to guilt in all the circumstances. Another course is to proceed on the basis that the fresh evidence leads to the conclusion that the evidence originally given by the recanting witness is so untrustworthy that 'it ought not to be allowed to enter into the reasons for any verdict of guilty' - see Davies & Cody v The King [1937] HCA 27; (1937) 57 CLR 170.

33 As I have indicated, in this case the State concedes that the second course should be followed, and that it should be concluded, on the basis of the fresh evidence, that the evidence of each of F1 and F2 given at trial was unreliable.

34 For reasons which I will give below, in my view, this is not one of those cases in which the Court of Appeal should take the first course set out above and conclude the fresh evidence of F1 and F2, if given to a jury, was sufficiently cogent and plausible to have raised doubt as to the guilt of the appellant in all the circumstances. It follows that the State is not prejudiced by its inability to cross-examine F1 and F2.

35 For these various reasons, it seems to me that in the somewhat unusual circumstances of this case, the prejudice suffered by the State through its inability to test the credibility of the statements made by F1 and F2 when giving evidence before the Royal Commission is not as great as in other cases involving recanting witnesses. Accordingly, I do not consider that admission of the evidence in this case would cause undue prejudice.

36 For much the same reasons, I do not consider that admission of evidence of the statements made by F1 and F2 at the Royal Commission would confuse the issues in the appeal. As I have noted more than once, the State concedes that the fact that those statements were made leads to the conclusion that F1 and F2 should not be regarded as witnesses of truth, which is of itself relevant to the appeal. It seems to me to be quite possible for the court to resolve this appeal on that basis.

37 For these reasons, I would admit the statements in the transcripts, not only as evidence of the fact that the statements were made, but also as evidence of the truth of those statements pursuant to s 79C of the Evidence Act. I will address the significance of their admission for the latter purpose in that part of these reasons which deals with the substantive issue in the appeal.

38 I agree with Pullin JA that the overarching consideration applicable to an application for an extension of time within which to appeal against conviction is whether a miscarriage of justice will occur if an extension is not granted. Within the ambit of that overarching consideration, the five principal factors identified by Buss JA in Wimbridge v The State of Western Australia [2009] WASCA 196 will usually be relevant. They are the nature and extent of the delay, the reasons for the delay, the merits of the grounds of appeal, the prejudice to the appellant if an extension is not granted and the prejudice to the State if an extension is granted.

39 In this case, the delay has, of course, been lengthy. The delay up until the time in 2004 when the appellant discovered that F1 and F2 had given evidence at the Royal Commission to the effect that they had fabricated evidence given at his trial should not be held against the appellant. Further, that period of some 14 years following his conviction is relevant to the assessment of the significance and extent of the delay since 2004. The evidence does not establish whether a retrial would have been more feasible if this appeal had been brought earlier than it was, but it seems more likely than not that by 2004, a retrial would have been impractical for all the same reasons it is impractical today.

40 Further, when the appellant's delay in instituting this appeal after 2004 is evaluated, it is proper to take into account that he did not become aware of the evidence given by F1 and F2 at the Royal Commission until more than 10 years after he had been released from custody, at a time when it is reasonable to conclude that he had moved on with his life and put the events relating to his conviction and sentence behind him. In that context, a failure to move with alacrity and expedition is more readily explicable, and understandable, than in a context in which the conviction was fresh.

41 The evidence establishes that following the appellant's discovery of the nature of the evidence given by F1 and F2 to the Royal Commission, the sequence of events was as follows. During 2004, the appellant instructed solicitors in New South Wales, where he lived, to prepare an appeal against his conviction. Those solicitors prepared a draft notice of appeal in early 2005. However, the form was never completed, nor filed, as neither the appellant nor his solicitors had access to the transcript of his trial.

42 Later in 2005, apparently during the month of September, the appellant was provided with a draft letter from his solicitors to the Attorney General of Western Australia relating to the possibility of a petition to the Attorney for the exercise of the royal prerogative of mercy and a reference to the court, and also seeking the assistance of the Attorney's office in order to obtain the trial transcript. It seems that the draft letter was never sent to the Attorney.

43 Also during September 2005, it appears that the appellant learned, through his New South Wales solicitors, that a sum of money would be required in order to obtain a transcript of the trial from this court.

44 In October 2005, the appellant returned to the United States to obtain employment. He asserts that he was motivated by the purpose of obtaining funding to pursue the appeal which he intended.

45 In the first half of 2006, the appellant appears to have made some effort, from the US, where he was living, to contact those involved with his trial in Western Australia, and to obtain a copy of the trial transcript. Those efforts were unsuccessful.

46 In January 2007, the appellant returned to New South Wales. In May of that year he obtained a copy of the transcript of his trial from this court.

47 In July 2007, the appellant applied for, and was granted, legal aid for the provision of advice and investigation into the prospect of quashing his conviction. In August 2007, that aid was extended to include the purposes of petitioning the then Attorney General of Western Australia for the exercise of the royal prerogative of mercy.

48 In October 2007, the Legal Aid Commission on behalf of Western Australia, acting on behalf of the appellant, petitioned the then Attorney General. In April 2008, the Attorney General refused the petition.

49 In July 2008, the appellant was granted legal aid with respect to the preparation of appeal documents, and an application for extension of time within which to appeal was lodged on 9 September 2008.

50 Subsequent to the commencement of these proceedings, the hearing was deferred while, in the first half of 2009, the appellant's solicitors again petitioned the current Attorney General for exercise of the royal prerogative of mercy. In response to that petition, the Attorney advised that he would defer consideration of that question until the appellant had exhausted all other legal avenues available to him.

51 The relevant period of delay is therefore the period between early 2004, when the appellant discovered the evidence given by F1 and F2 to the Royal Commission, and September 2008, when these proceedings were commenced. That period of four years or so is, of course, substantial, but as I have indicated, it falls to be evaluated in the context of the period of 14 years which had elapsed following the appellant's conviction prior to his discovery of the evidence given by F1 and F2 to the Royal Commission.

52 During that period of four years, the conduct of the appellant and his legal advisers after May 2007, when he received a copy of the trial transcript, appears to me to have been reasonable and unexceptional. The attempt to persuade the Attorney General to exercise the royal prerogative of mercy was, in all the circumstances, a reasonable course to follow. In all the circumstances of this case, the time taken to commence these proceedings following the refusal of that petition by the Attorney General was not unreasonable.

53 Turning then to the period between early 2004 and May 2007, while it could not be said that the appellant was pursuing his rights with alacrity, nor could it be said that the appellant's conduct displayed a constructive abandonment of his right of appeal. The appellant's pursuit of that right appears to have been impeded by his lack of the transcript of the trial at which he was convicted and the lack of funding.

54 Turning then to the merits of the appeal, as I would admit the transcripts of the evidence given by F1 and F2 to the Royal Commission as evidence in this appeal, I consider that the appellant has established an arguable case with some merit.

55 Further, in the particular circumstances of this case, there appears to me to be a public interest in the appeal being heard and determined by this court. Sworn testimony by police officers to the effect that they fabricated evidence in the course of the appellant's trial gives rise to reasonable concerns with respect to the administration of justice in this case. Those concerns are, in my view, best addressed by the appeal being heard and determined on its merits, rather than dismissed by reason of the refusal of the application to extend time.

56 Turning to the question of prejudice to the parties, for the reasons I have given above in relation to the possible exercise of the discretion to refuse evidence otherwise admissible under s 79C, in my opinion, the prejudice to the appellant if his appeal is not heard and determined on its merits is significantly greater than the possible prejudice to the State if that course is followed.

57 For these various reasons, in this case, it is my opinion that the interests of justice require the appeal to be heard and determined on its merits. The weighing of the various factors relevant to the extension of time which is necessary for that consideration to occur, also favours that course. For those reasons, I would grant the appellant's application for an extension of time, and grant leave to appeal.

58 As Pullin JA points out, this appeal relies on s 30(3)(c) of the Criminal Appeals Act 2004 (WA). Subject to the 'proviso' in s 30(4), s 30(3)(c) requires the court to allow an appeal if, in its opinion, there was a miscarriage of justice. Where an appeal is brought on the basis of fresh evidence, a miscarriage of justice will be established if the appeal court considers that there is a significant possibility that the jury, acting reasonably, would have acquitted the appellant if the fresh evidence had been before it at the trial - see Gallagher v The Queen [1986] HCA 26; (1986) 160 CLR 392; Mickelberg v The Queen [1989] HCA 35; (1989) 167 CLR 259, 273 (Mason CJ). The appellant accepts that he carries the onus of establishing such a miscarriage.

59 There have been many cases in which the fresh evidence relied upon to establish a miscarriage of justice is a recantation by a prosecution witness (or, as in this case, by prosecution witnesses). An appropriate starting point for the consideration of such cases is the observations made in the High Court in Davies & Cody v The King (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 (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 aside a verdict or a judgment. But if the verdict is open to objection upon a ground affected by such evidence, the case is different.

60 The cases in this area are replete with observations concerning the undesirability of attempting to fashion and apply universally applicable principles or norms. Rather, each case is to be assessed on its particular facts and circumstances. However, the cases do illustrate the two overall possible courses that might be followed when a prosecution witness (or witnesses) recants the evidence given at trial.

61 First, the appeal court might conclude that the recanted evidence lacks plausibility, credibility or cogency, with the result that it does not diminish or impeach the evidence given at trial. In such a case, there will not have been a miscarriage of justice.

62 Second, in cases in which the recanted evidence does have sufficient credibility and cogency to cast doubt upon the evidence given at the original trial, there are at least two further logical possibilities, depending upon the nature of the recanted evidence, and its strength. The first of these further possibilities is that the recantation shows that the evidence of the recanting witness given at trial is so unreliable that it ought not to have been taken into account by the jury. In that case, the question of whether or not there has been a miscarriage of justice will be resolved by the appellate court assessing the strength of the prosecution case without the evidence of the recanting witness against the criterion of whether there was a significant possibility that the jury, acting reasonably, would have acquitted without such evidence.

63 The second of these further possibilities is the case in which the appeal court forms the view that the fresh evidence is sufficiently relevant, cogent and plausible to raise the possibility that it might have been accepted by the jury as exculpatory of the accused, in the sense that it would have raised a doubt as to the guilt of the accused, assessed in the context of all the evidence in the case. Again, it is important to emphasise that the criterion to be applied to determine whether there has been a miscarriage of justice is that of a significant possibility of acquittal, not a probability, assessed in the context of a trial in which the prosecution bears the burden of proof beyond reasonable doubt.

64 These various possibilities emerge from a consideration of the reasons given in decisions such as Bryer v The Queen, Re GAM [2005] VSCA 234; (2005) 12 VR 177 [30]; White v The Queen [2006] WASCA 62; Mickelberg v The Queen [2004] WASCA 145; (2004) 29 WAR 13, 136 [432]; Amiss v The State of Western Australia [2006] WASCA 171; (2006) 165 A Crim R 387; and PAS v The State of Western Australia [2009] WASCA 210.

65 In the present case, the first overall course to which I refer above, (that in which the appeal court considers that the fresh evidence lacks sufficient credibility or cogency to cast doubt upon the evidence given by the witness at the trial), can be excluded from consideration. That is because of the concession, properly made, by the State, to the effect that if the State had been aware of the fresh evidence in the form of the recantations of F1 and F2, they would not have been called as witnesses on behalf of the State at trial, because they would not have been regarded as witnesses of truth. Implicit in this concession is an acceptance of the significant possibility that the jury would not have regarded them as witnesses of truth if both versions of their evidence had been known at the time of trial. It follows from this concession that the State must be taken to accept that the fresh evidence has sufficient credibility and cogency to cast doubt over the original evidence given at trial. This evidence therefore falls under the second overall class identified above. It further follows that the question of whether there has been a miscarriage of justice must be assessed, at least under the first of the further possible courses outlined above, by excluding from consideration the evidence given by F1 and F2 at trial, and then asking whether, in the absence of such evidence, there was a significant possibility that the jury may have acquitted.

66 The second of the further possible courses is more contentious. That is the possibility that F1 and F2 would have given evidence at trial in terms of the evidence which they gave at the Royal Commission, and on that assumption, to ask whether there is a significant possibility that their evidence would have had sufficient credibility and cogency to be accepted by the jury, acting reasonably, as impeaching the evidence of the other police witnesses who gave evidence of statements made by the appellant which are said to include admissions of guilt, particularly the evidence of Messrs Dowding, Higgins and Staltari.

67 Implicit in this hypothesis is an assumption that the appellant and his legal advisers were aware, at the time of trial, that F1 and F2 would recant from the statements that they had made in their depositions and give the evidence that they subsequently gave in the Royal Commission. In that hypothetical scenario, a difficult forensic decision would have had to have been made as to whether to call F1 and F2 on behalf of the accused in order to discredit the evidence given by other police witnesses in respect of admissions said to have been made by the accused. Such a course would have been fraught with forensic risk. It would no doubt have been assumed, in taking such a decision, that F1 and F2 would have been cross-examined by the State on their earlier inconsistent statements. There would have been at least a possibility that the jury might have regarded the first version of events which they gave in their depositions to be more likely to be correct, in which event it would have corroborated the evidence given by others in respect of the admissions made by the appellant.

68 It is in this context that the observations made by Pullin JA in respect of the limitations upon this court's ability to assess for itself the cogency and plausibility of the recanting evidence given by F1 and F2, and the failure of the appellant to exhaustively pursue the possibility of causing subpoenas to issue to compel F1 and F2 to give their evidence to this court, perhaps by video link from a remote location, are significant.

69 F1 and F2 have not given evidence before us and we have had no opportunity to assess their demeanour. Nor have they been cross-examined. Cross-examination in respect of their motives for recanting may have been significant, as Pullin JA points out. In that circumstance, there was little point in calling before this court the other police witnesses who gave evidence at trial of confessions made by the appellant, and who adhered to that evidence in their evidence to the Royal Commission, as there is no capacity to compare and contrast their evidence under cross-examination with the recanting evidence of F1 and F2, other than by comparison with transcript. Obviously that is an unsatisfactory means of assessing the cogency and plausibility of the recanting evidence of F1 and F2.

70 For the reasons I have given above, I do not consider that the failure of the appellant and his legal advisers to exhaustively pursue the possibility of obtaining the consent of the Commissioner of Police of New South Wales for a process which would have enabled subpoenas to be issued to compel F1 and F2 to give their evidence under conditions which would have protected their new identities, precludes the admission into evidence of the transcript of their evidence before the Royal Commission. However, the failure of the appellant and his advisers to take every step reasonably open to enable this court to itself evaluate the plausibility and cogency of the recanting evidence of F1 and F2 counts against the proposition that the appeal should be determined on the basis that there was a significant possibility that if F1 and F2 had been called at trial, and had given their recanting evidence, it would have been sufficiently cogent and plausible to cause the jury to reject the evidence of the appellant's admissions given by the other police witnesses. The state of the evidence before this court does not enable any assessment to be made of that likelihood, and therefore precludes any conclusion that there was a significant possibility that the jury would have reasoned in that way.

71 For these reasons, in the particular circumstances of this case, it seems to me to be appropriate for the question of whether there has been a miscarriage of justice to be assessed on the assumption that F1 and F2 did not give evidence at trial, with the result that their evidence would not have been taken into account by the jury. The question in the substantive appeal then becomes whether, on that assumption, there is a significant possibility that the jury, acting reasonably, would have acquitted the appellant.

72 However, for the sake of completeness, I will also address the consequences of the alternative assumption (which I would not make, for the reasons already given), which is to the effect that F1 and F2 gave their recanting evidence at trial and that evidence was sufficiently cogent and plausible to have caused the jury to reject the evidence of the appellant's admissions given by other police officers. On this alternative assumption, the substantive question in the appeal would be whether, in that circumstance, there was a significant possibility that the jury, acting reasonably, would have acquitted the appellant if it had rejected all the evidence of admissions made by him to the other police officers.

73 The appellant relies upon a series of decisions of the Court of Criminal Appeal of New South Wales in which convictions have been quashed as a consequence of fresh evidence in the form of testimony given by police officers during the course of a Royal Commission. Because there have been a number of such cases in that court, there is a tendency for the judges of that court to express reasons in terms which suggest that such cases form part of a specific and separate legal category of case in which distinct legal principles apply. However, notwithstanding that tendency, it is clear that each case must be assessed by reference to its own particular facts and circumstances.

74 Nevertheless, a consideration of the cases upon which the appellant relies may provide some general indication of the approach taken in that court in relation to cases of this kind.

75 Mr McVittie was arrested in Western Australia and extradited to New South Wales to face charges of armed robbery. One of the police officers involved in his arrest in Western Australia was one of the officers involved in the case of the appellant. During Mr McVittie's trial, evidence was given by the same police officer who is referred to as F1 in these reasons of a confession said to have been made by Mr McVittie, to the effect that he had been found in possession of a firearm.

76 During his evidence before the Royal Commission in which he recanted the evidence given against the appellant, F1 also recanted the evidence which he had given against Mr McVittie.

77 Further, in the course of an inquiry conducted by the New South Wales Crime Commission, F1 admitted that on his arrival in Perth to extradite Mr McVittie, he had been told by Western Australian police that they had planted the firearm on Mr McVittie and had fabricated the confessional material that formed part of the case against him.

78 The reasons of the Court of Criminal Appeal are brief. The reason for their brevity was explained by Simpson J in the following terms:

It is unnecessary to provide more detail. It is quite plain that although the tainted evidence was not the only evidence led in the trial against Mr McVittie, it contaminated the proceedings beyond repair [7].

79 It seems that the appeal was conducted and determined on the basis that the recanting evidence of F1 should be accepted by the court. That evidence compelled the conclusion that fabricated evidence had been given at Mr McVittie's trial of his possession of a firearm and of his admissions. In those circumstances, it is easy to understand why no analysis was made of the remaining evidence against Mr McVittie. However, the circumstances of that case are quite different to the present, in that there is no suggestion of the fabrication of evidence as dramatically detrimental as the planting of a firearm, and for the reasons I have given, the evidence falls short of establishing that the evidence given by other police officers of the admissions made by the appellant was fabricated.

R v Vastag (Unreported, Library No 60420 of 1996, NSWCCA, 20 June 1997)

80 Mr Vastag was convicted on two counts of supplying a prohibited drug - one charge relating to the supply of ecstasy and the other charge relating to the supply of amphetamine. The prosecution case was that a trafficable quantity of each drug was found in a vehicle driven by Mr Vastag. At trial, he contended that the ecstasy had been planted on him by the police, and that the amphetamine was for his personal use.

81 Mr Vastag relied upon fresh evidence, in the form of evidence given to the Royal Commission into the NSW Police Force (the 'NSW Royal Commission') to the effect that each of the police officers involved in his apprehension and arrest were corrupt and had, in other cases, planted drugs on suspects.

82 Reference is made in the reasons for decision to a number of cases brought in New South Wales in consequence of evidence given to the NSW Royal Commission. Viewed in isolation, some of those passages are capable of supporting the notion that specific principles had evolved in relation to those cases. However, that impression would be false. As Levine J (with whom Studdert J agreed) observed:

What is clear is that every appeal of this kind will have to be considered carefully on its merits bearing in mind the continuing application of the fundamental principles as to 'fresh evidence' appeals [24].

83 In the view of the majority, the prosecution case against Mr Vastag was essentially dependent upon the evidence of the two police officers. The majority observed that the fresh evidence, in the form of the evidence given to the NSW Royal Commission, would have provided fertile ground for cross-examination of those police officers as to their credit. They therefore concluded that there was a significant possibility that the jury acting reasonably would have acquitted Mr Vastag if the fresh evidence had been placed before it. However, that conclusion depended critically upon the finding that the prosecution case was essentially dependent upon the evidence of the two police officers. For reasons which I will develop below, that is quite different to the present case.

84 Meagher JA dissented for reasons briefly given. He classified cases in which appeals were brought as a result of fresh evidence given to the NSW Royal Commission into three categories. He described the first as:

[W]here the police evidence in the Royal Commission actually involves admissions made by police officers concerning the very facts of the case under appeal. At least if those admissions are of any substance, the appeal should be upheld and a new trial ordered.

85 Understandably, the appellant relies upon that passage and asserts that it applies exactly to the circumstances of this appeal. However, Meagher JA was in dissent and is, with respect, in error in suggesting that there is some definable category of case in which an appeal will axiomatically be allowed merely because a witness recants. Such a proposition is inconsistent with High Court authority and must be rejected.

R v Marsala (Unreported, NSWCCA, Library No 60198 of 1995, 31 May 1996)

86 Mr Marsala was convicted of supplying a prohibited drug, namely, amphetamine. The prosecution case depended almost entirely upon evidence of a police officer to the effect that during the search of a bedroom occupied by Mr Marsala, he located a trafficable quantity of amphetamine. Mr Marsala at all times denied knowledge of the existence of the drug.

87 In the Court of Criminal Appeal, fresh evidence in the form of evidence taken by the NSW Royal Commission was admitted. That evidence was from a witness to the effect that the police officer concerned was known to be corrupt. The State took no objection to the reception of that evidence.

88 The court observed that the credibility of the police officer was of critical significance to the case. The State conceded that evidence as to the character or credibility of the police officer, had it been available at trial, could have affected the outcome. It follows that the State effectively conceded the appeal, given that the criterion to be applied is whether or not there is a significant possibility that the fresh evidence, if available, would have resulted in an acquittal.

89 Given the concession made by the State in that case, and the critical nature of the evidence given by the police officer whose character was impugned by the fresh evidence, the circumstances of that case are quite different to the present.

R v Selewski (Unreported, NSWCCA, Library No 60281 of 1994, 19 June 1996

90 Messrs Gudgeon, McBride and Selewski were convicted of conspiring to manufacture a prohibited drug, namely, methylamphetamine. The prosecution case was that Messrs Gudgeon and McBride were apprehended at premises at which chemicals and utensils that might be utilised to manufacture methylamphetamine were also found. There was also evidence given by police witnesses in respect of admissions made by those accused at the time of their apprehension. The prosecution case against Mr Selewski was that he was arrested arriving at the premises and that chemicals suitable for use in the manufacture of methylamphetamine were found in his car. His evidence at trial was that he was in fact arrested about 20 miles from the premises and that there were no chemicals in his car at the time of his apprehension.

91 Three of the police witnesses who had given evidence at trial recanted during the course of their evidence before the NSW Royal Commission. Their evidence was to the effect that Mr Selewski was, in fact, arrested 20 miles away from the relevant premises, and that the chemicals said to have been found in his car were corruptly planted there by police. They also gave evidence to the effect that the admissions said to have been made by Gudgeon and McBride were fabricated. However, other police witnesses who gave evidence at trial in respect of the evidence of Gudgeon and McBride adhered to the evidence which they gave in respect of their admissions.

92 The appeal was conducted on the basis that it was unnecessary for the appeal court to resolve the conflict of evidence between the police officers. That was not the basis upon which this appeal was conducted.

93 In relation to the appeal by Mr Selewski, the court observed that the prosecution case against him was almost entirely based upon the evidence of the police officers who had recanted their evidence. Accordingly, the appeal court observed that the significance of that evidence was such that it was inevitable not only that the conviction be quashed, but also that a judgment of acquittal be entered.

94 In the case of the other two appellants, as I have mentioned, there was other evidence against them. However, the prosecution conceded that notwithstanding that other evidence, the confessional material was of such far-reaching importance that the conviction should be regarded as unsafe, and a retrial ordered. Because of that concession, it was unnecessary for the court to undertake a detailed consideration of the evidence against those two appellants. Of course, no such concession is made by the State in this case.

95 It will therefore be seen that none of the appellants were in a position directly analogous to the appellant in this case. In the case of Selewski, his conviction depended entirely upon the tainted evidence. In the case of Gudgeon and McBride, the concessions made by the State meant that the court was not required to analyse the strength of the prosecution case without regard to the tainted evidence.

R v Hastings (Unreported, NSWCCA, Library No 60167 of 1997, 26 September 1997)

96 Mr Hastings was convicted of supplying cocaine. The prosecution case was that four police officers searched Mr Hastings and found cocaine in his clothing. He denied possessing any drugs, and asserted that they had been planted by police.

97 Mr Hastings appealed on the basis of fresh evidence, in the form of evidence given to the NSW Royal Commission which suggested that one of the four detectives was corrupt. Gleeson CJ accepted, for the purposes of the case, that the material could have been used to effectively cross-examine that police officer as to his credit. However, as Gleeson CJ pointed out, the difficulty confronting Mr Hastings was that the critical evidence against him at trial was not the evidence of that police officer, but the evidence of all police officers, and in particular, the police officer who actually found the cocaine in Mr Hastings' pocket. In the view of Gleeson CJ (with whom the other members of the court agreed), even if a successful attack had been made upon the credit of one of the four police officers, this would not have resulted in a significant possibility that the jury would have rejected the evidence of the other three. On their evidence, it was reasonably open to the jury to be satisfied beyond reasonable doubt that their evidence should be accepted and the accused convicted. This case shows that care must be taken to assess the precise extent to which the prosecution case is tainted by the fresh evidence.

98 In the course of his reasons, Gleeson CJ eschewed the proposition that there were discrete principles applicable in cases in which information to the discredit of a police witness had emerged during the course of a Royal Commission. Rather, as he observed, there are a wide variety of facts and circumstances in individual cases, and each case will turn upon its particular facts and circumstances.

R v Hasenkamp (Unreported, NSWCCA, Library No 060495 of 1997, 24 February 1998

99 Mr Hasenkamp was convicted of cultivating a commercial quantity of cannabis plants. The prosecution case was based upon evidence from police officers to the effect that they found implements which could have been used in the cultivation of the plants at a property occupied by Mr Hasenkamp, and of statements made by him which could be construed as linking those utensils with the plantation. The prosecution also relied upon a written record of interview signed by Mr Hasenkamp. However, at trial he asserted that a significant part of the record of interview was fabricated by police and that he had participated in it only as a result of threats made by police.

100 The trial judge directed the jury that if they were not satisfied beyond reasonable doubt that the record of interview was accurate and the statements had been voluntarily made by Mr Hasenkamp, they should acquit him, because the remaining evidence was insufficient to sustain a conviction. The Court of Criminal Appeal agreed with that analysis of the prosecution case.

101 The appeal was brought on the basis of fresh evidence, in the form of evidence given to the NSW Royal Commission to the effect that the only officer who had given evidence with respect to the admissibility of the confessional material at trial was corrupt. In the view of the court, that evidence, if known to the jury, would have given rise to a significant possibility that the jury would not have been satisfied that the written admission was accurate and voluntary and, on that basis, would have entertained a reasonable doubt as to the guilt of Mr Hasenkamp. Accordingly, the appeal was allowed. By majority, no retrial was ordered on the basis that Mr Hasenkamp had served all but a very small portion of the sentence imposed.

102 This review of the cases upon which the appellant relies reinforces the observation that the outcome in any particular case depends critically upon the particular facts and circumstances of that case. The central question of whether the appellant has established a miscarriage of justice because there is a significant possibility that if the jury had been aware of the fresh evidence now available, it would, acting reasonably, have acquitted rather than convicted, will often turn critically upon the significance of the impugned evidence within the context of the prosecution case as a whole. This is the factor which explains the different outcome for the appellants in Selewski and the reason why the appeal in Hastings was unsuccessful.

103 It is therefore necessary to address the central question in this case first, on the basis which I consider to be appropriate, of excluding from consideration the evidence given by F1 and F2 and postulating whether the exclusion of that evidence would have given rise to a significant possibility that the jury would have acquitted the appellant. Further, for the sake of completeness, although for reasons given I do not consider this approach to be appropriate, I will also address the central question on the hypothesis that the recanting evidence of F1 and F2 was given to the jury, and was of sufficient cogency to cause them to reject the evidence given by other police officers in respect of admissions made by the appellant.

The evidence of the appellant's prior convictions

104 Before directly addressing those questions, it is necessary to deal with a submission put on behalf of the appellant to the effect that those questions should be addressed on the hypothesis that if the fresh evidence had been available at the time of trial, the evidence of his prior convictions for armed robbery would not have been admitted into evidence. The submission is put on the basis that the appellant's attack at trial on the credibility and character of the police witnesses was central to the ruling that his prior convictions be admitted into evidence pursuant to s 8(1)(e) of the Evidence Act. That section provides that an accused person may be cross-examined as to his prior convictions if, relevantly to this case, evidence has been given of his good character or the nature or conduct of the defence is such as to involve imputations on the character of the witnesses for the prosecution.

105 In ruling on the application to cross-examine on the appellant's prior convictions, the trial judge observed that evidence had been given by the accused directed to the establishment of good character, and a serious attack had been mounted upon the credibility of Ms Finn bolstered by imputations upon her credit relying upon her role in drug trafficking, her prostitution and her previous convictions. For my part, I would have thought those findings to be quite sufficient to sustain the application for leave to cross-examine in respect of prior convictions.

If it stopped there, one would certainly hesitate, but the evidence given in relation to the various police officers involved in the case also involves serious imputations. (ts 573)

107 The trial judge went on to observe that an attack had been made upon the character of five police witnesses, including F1 and F2, with the primary attack having been made against Officer Higgins. On the best construction of the transcript of the reasons given by the trial judge before allowing cross-examination to proceed in respect of the appellant's prior record, the attack upon Officer Higgins seems to have been what 'tipped the scales'.

108 As I have already indicated, for my part I would have thought that the advancement of the appellant as a person of good character, and the strident attack upon the character of Ms Finn, who was an important prosecution witness, were quite sufficient in themselves to justify the grant of leave to cross-examine in respect of prior convictions. However, assuming for the sake of argument that it was only the attack upon the police officers, and in particular the attack upon Officer Higgins, which 'tipped the scales' for the trial judge, the result is no different under either of the two hypothetical scenarios postulated.

109 Under the first scenario, the evidence of F1 and F2 is excluded from consideration, but the evidence of the other police officers remains part of the prosecution case. In that scenario, it is reasonable to assume that the same attack would have been made upon those three police officers including, in particular, the attack upon Officer Higgins.

110 The alternative scenario, which I include only for the sake of completeness, postulates all five officers giving evidence, but on terms which assume that the jury found the recanted evidence of F1 and F2 to have sufficient cogency and plausibility to cast doubt upon the evidence of the other officers. However, in such a forensic contest there would still have been an attack upon the evidence of the three officers who did not recant, including in particular the attack upon Officer Higgins.

111 So, on whatever scenario is chosen, the result is the same in that there would still have been an attack upon the three police officers other than F1 and F2 and, in particular, an attack upon the evidence of Officer Higgins, which would have resulted in leave being granted to cross-examine the accused in respect of his prior convictions for armed robbery.

112 Proof of the accused's prior convictions, and cross-examination in respect of them would, of course, only be for the purpose of denying the accused's assertion of prior good character and impugning his credit.

113 The analysis of the prosecution case undertaken by Pullin JA spares me the burden of undertaking a similarly detailed analysis. In my view, key features of the prosecution case against the appellant were:

(a) the appellant was an associate of each of Ms Finn and Mr Moss;

(b) Mr Moss was a person who the jury could have inferred was familiar with the banking practices of the Raffles Hotel;

(c) Mr Moss and the appellant were at the house occupied by Ms Finn on the day before the robbery, when Ms Finn overheard them talking about 'what sounded like the planning of a robbery';

(d) one or other of the appellant or Mr Moss asked Ms Finn if she had any rubber gloves. She provided rubber gloves which at trial she identified as being similar to those found in the ornamental pool in King's Park with the other equipment likely to have been used in the robbery;

(e) Ms Finn was asked by Mr Moss to book three tickets to Sydney leaving at approximately midnight on the day of the robbery, being first-class tickets in false names;

(f) on the day of the robbery, Mr Moss bought travel bags for himself and the appellant to the house occupied by Ms Finn. Later that day, according to Ms Finn, Mr Moss, the appellant and Ms Finn caught a taxi to the airport, in the course of which the appellant gave Ms Finn $2,000 in cash to pay for the airline tickets to Sydney;

(g) the appellant travelled to Sydney under a false name;

(h) a day or two after arriving in Sydney, the appellant travelled to Los Angeles;

(i) shortly after arriving in the United States, the appellant purchased a vehicle in a false name using Australian cash;

(j) the appellant's fingerprints were found on a newspaper in the motor vehicle that was used in the course of the robbery;

(k) the items found in the ornamental lake in King's Park included a number of items which were consistent with them having been used in the robbery. Amongst those items were human hairs which 'resembled exactly' the samples of head hair taken from the appellant.

114 I respectfully agree with Pullin JA that irrespective of the evidence given by the police officers, the prosecution case was extremely strong.

115 The appellant gave evidence in which he provided an innocent explanation for his fingerprints being on the newspaper. He asserted that it was mere coincidence that he, Ms Finn and Mr Moss all planned to travel to Sydney together. He denied travelling to the airport in company with Ms Finn and Mr Moss, although he accepted that his bag was taken to the airport by them. He asserted that he was surprised to be given a ticket under a false name and that he paid less than the price of a first-class ticket. He provided an explanation for the cash which he had used in America to purchase the motor vehicle. It was to the effect that he had $11,000 in cash which he had hidden in a tin in the false bottom of a speaker.

116 In my opinion, a jury acting reasonably would have found the appellant's attribution of the events objectively established by the evidence to coincidence, and his explanation for the cash which he used in the United States, to be inherently implausible, in the face of an overwhelming prosecution case. The appellant was obviously associated in some way with either the robbery or those who had committed the robbery - his fingerprints were on the newspaper found in the vehicle used in the robbery. The assertion that it was a mere coincidence that his flight to Sydney, and onward flight to America, were made immediately following the robbery stretches credulity to breaking point. Although it must be accepted that scientific comparison of hair samples is not as precise or convincing as, for example, fingerprint or DNA analysis, in the context of the other prosecution evidence, the evidence in respect of the correspondence between the hair samples found with the items associated with the robbery in King's Park, and the appellant's hair, would be likely to have had a significant effect upon the jury. Viewed in that context, the appellant's explanation for arriving in America with significant quantities of Australian cash beggars belief.

117 For the reasons I have given, in my opinion, the proper approach to this appeal is to hypothetically augment the evidence to which I have referred with the evidence of the three police officers who have adhered to the evidence which they gave at trial, but to exclude from consideration the evidence given by F1 and F2. The evidence of those police officers would reinforce what was, in my view, an overwhelming prosecution case. In my view, the exclusion of the evidence of F1 and F2 from the matters taken into account by the jury at the trial of the appellant would not give rise to any significant possibility that he would have been acquitted.

118 Nor is the result any different if one takes the alternative hypothesis to the effect that the recanting evidence of F1 and F2 was given at trial and regarded by the jury as having sufficient cogency or plausibility to cast doubt upon the evidence given by the other police officers. In that circumstance, the jury would no doubt have excluded from consideration the admissions said to have been made by the appellant while in police custody. However, that process of reasoning would not result in the jury's exclusion from consideration of any of the other evidence to which I have referred, if the jury was acting reasonably. The jury could not have logically reasoned, for example, that because the police conspired to fabricate evidence against the appellant, the evidence of Ms Finn was any less plausible, or the evidence of the fingerprints on the newspaper found in the motor vehicle was any less significant, or the evidence that the hair found in the motorcycle helmet resembled the appellant's hair was any less important, and so on.

119 In my opinion, even if the evidence of admissions made by the appellant while in police custody is entirely excluded from consideration, there is no significant possibility that the jury would have arrived at any different verdict, given the overwhelming case against the appellant.

120 I accept the observation made by Gleeson CJ in Selewski to the effect that:

[O]nce it appears that an investigative and prosecuting process has been corrupted, it is often extremely difficult to work out how far the corruption might extend.

121 However, in the present case, the evidence of the admissions said to have been made by the appellant while in police custody was quite separate and distinct in character and source from the other evidence to which I have referred. There is no logical reason to suppose that a jury acting reasonably would have inferred from the conclusion that the appellant had been 'verballed' while in police custody in Sydney that other aspects of the prosecution case were similarly tainted. Such a process of reasoning would, in my view, have been illogical and unreasonable.

(a) grant the appellant an extension of time within which to apply for leave to appeal;

(c) admit as evidence in the appeal the transcript of the evidence given by F1 and F2 at the Royal Commission; and

123 PULLIN JA: About nineteen years ago on 14 March 1990, the appellant was convicted of armed robbery and unlawful use of a motor vehicle after a trial before Justice Murray and a jury in the Supreme Court. He was sentenced to 7 years' imprisonment with eligibility for parole. He served time in prison, was released from custody on 23 September 1992 and completed his parole period on 23 September 1994.

124 The appellant now seeks an extension of time in which to appeal on the ground that there was a miscarriage of justice, which he says is revealed by fresh evidence consisting of statements given by two New South Wales police officers (F1 and F2) in December 2002 to the Police Royal Commission in Perth, that they had fabricated the evidence they gave at the trial of the appellant.

(1) On 7 June 1988 at Applecross Craig Robert Coffman unlawfully used a motor vehicle without the consent of the owner or person in charge thereof.

(2) On the same date and at the same place Craig Robert Coffman stole from Wayne Allan Veitch with actual violence the sum of $43,004.05 in money the property of Laxon Pty Ltd, trading as the

Raffles Motor Hotel (1979) and that at the time he was armed with a dangerous weapon namely a rifle

126 The evidence given at trial included the following:

(a) at about 3 pm on Tuesday 7 June 1988 the bar manager employed at the Raffles Hotel went to the ANZ Bank near to the hotel in Canning Highway. He carried an Alpine cigarette box containing bags containing cash takings including cheques and other banking documents. Near the ANZ Bank he felt force put on his shoulder and he spun around to be confronted by a male wearing a full face black motor cycle helmet with a dark full faced visor, a black zip-up jacket and dark pants and armed with a sawn-off rifle or shotgun. The person told the witness 'drop it';

(b) the bar manager dropped the box, the assailant picked it up and then ran back to a white Falcon sedan which the bar manager thought had the registration number 7HU-416. He was not completely certain of the last three digits. The car headed south out of the car park;

(c) a female witness observed the assailant run to the Falcon and was certain that the registration number was 7HU-316;

(d) some hours earlier, the manager of a car yard in Victoria Park noted that a 1987 white Falcon sedan 7HU-316 had been stolen from the car yard;

(e) the stolen vehicle was located by a police officer at 3.20 pm on the day of the robbery. It was parked in a car park in Applecross. An employee of the car yard arrived sometime after 3.30 pm to find forensic officers working on the vehicle. The employee noticed a newspaper in the vehicle which he regarded as odd because vehicles in the car yard were kept clean. The newspaper was the 'Daily News'. It was a first edition of that paper and was dated 7 June 1988. There was evidence that that presses to print that edition began to roll at 10 am and that it could have been purchased from about 10.10 am onwards in the centre of Perth and at the latest by midday in suburbs within a 15 km radius of the city (ts 101);

(f) the police forensic officers detected two fingerprints on the front page of the newspaper and they were developed via the application of appropriate chemicals later. The police did not at first know whose fingerprints they were but after the appellant was identified as a suspect three months later in September 1988, they were matched with the appellant's fingerprints and found to be identical (ts 302);

(g) on the afternoon of 7 June 1988, a witness was in Kings Park and at the ornamental lake and fountain saw what appeared to be a black object floating in the lake. The object was a full-face black crash helmet. The witness lifted the crash helmet out of the water and below the helmet there was what appeared to be a white jumper tied up around the neck. There was also a bag and in the bag was a sawn-off .22 rifle. The witness collected those items and they were later collected by the police (ts 75);

(h) the police found that the rifle had a bullet in the breech and that other items in the bag included a set of Ford vehicle keys, a number of cheques and deposit books, rubber gloves and pieces of cardboard box with the emblem 'Alpine cigarettes'. Two of the keys operated the glove box of the Ford vehicle used in the robbery and two keys operated the left-front passenger door and the driver's door of the car but did not operate the ignition. There was evidence that sometime after the robbery, a car dealer had replaced the original ignition barrel;

(i) on 12 May 1989 (ts 371) Detective Sergeant Higgins examined the helmet and noticed some hair in it. Samples of this hair were examined under an optical microscope by a forensic biology technologist and compared with hair samples later taken from the appellant. The colour and physical characteristics of the hair samples from the helmet 'resembled exactly' (ts 503) the samples of head hair taken from the appellant;

(j) a person by the name of Colin Anthony Moss was employed at the Raffles Hotel for about three months up until February 1987. The jury was entitled to infer that this person had become familiar with the banking practice of the Raffles to bank the previous day's takings in cash at the ANZ Bank in Applecross;

(k) a prosecution witness, Ms Linda Finn (or Kerr), gave evidence that at the time of the commission of the offences she lived in Western Australia under the assumed name of Samantha Gibson. She gave evidence that she was known as 'Sammy' and gave evidence that:

(i) while living at a house in Robinson Avenue in Northbridge, she met Colin Moss;

(ii) later on 6 June 1998, the day before the robbery, Moss and the appellant arrived at the house. She overheard the appellant and Moss talking about 'what sounded like the planning of a robbery' (ts 219);

(iii) on the same day she was asked by Moss to book three airline tickets to Sydney the following day in false names. As a result she rang and booked three tickets to Sydney, on a flight scheduled to leave Perth at 11.55 pm on 7 June 1988. She was asked by 'someone' to book first class tickets. She booked with Ansett Airlines two tickets in the name of 'Peters' and one in the name of 'Baker';

(iv) either the appellant or Moss asked her if she had any rubber gloves of the sort used for dying hair. At trial Ms Finn identified exhibit 13, being the rubber gloves found with the other items in the ornamental pool as being rubber gloves like those at her home (ts 122);

(v) Moss told her '[l]isten to the radio and you might have a better understanding of what's going on' (ts 227);

(vi) on the morning of 7 June 1998 Moss brought travel bags for himself and the appellant around to the Robinson Street address and left them there (ts 228);

(vii) Moss and the appellant came to the house between 5.00 pm and 7.00 pm on 7 June 1998;

(viii) with the appellant and Moss, she caught a taxi to the airport and in the taxi the appellant gave her $2,000 in cash to pay for the first class airline tickets to Sydney. She paid for the tickets and they then flew to Sydney (ts 230);

(ix) upon arriving in Sydney, she and Moss went to the race course. She won about $500 and Moss lost about $7,000;

(l) there was evidence from a traffic officer employed by Ansett Airlines that on the evening of 7 June 1988, a male and a female came to the counter and paid approximately $2,000 in cash for first class tickets to Sydney for Mr and Mrs Baker and Mr Peters and that he later saw them with another male (ts 135);

(m) on 9 June 1988 a person giving the name of Coffman booked a one-way ticket by air to Los Angeles (ts 656);

(n) a used car dealer from South Carolina in the United States of America gave evidence that on 12 June 1988, he sold a vehicle to the appellant who was then using the name of Komiazyk, which he later changed to Coffman. The witness gave evidence that the appellant bought the car and paid $5,600 in Australian $100 notes (ts 149 - 150); and

(o) the appellant had previously committed two offences of armed robbery.

Evidence given by Western Australian police officers at trial

127 Two senior Western Australian police officers, Detective Senior Sergeant Garry Patrick Higgins and Detective Senior Constable Dominic Anthony Staltari gave evidence at the trial. DS Higgins was not involved in the investigation of the robbery in June 1988. He became involved in September 1988 as a result of information from an informant (ts 371). He interviewed Ms Finn. Moss was then arrested in October 1988 (ts 427) and he was tried twice in 1989 and acquitted. Investigations revealed that the appellant had left Australia in June 1988 (ts 438). He was traced to the United States and on 19 May 1989, US Marshalls arrested the appellant in South Carolina (ts 437). He was then held in a detention centre and on 11 September 1989, DS Higgins and DS Staltari travelled to the United States to bring the appellant back to Australia after a United States court had ordered his extradition.

128 Before they left Australia for the United States, Higgins received in the mail from a Western Australian solicitor, Duncan McGrath (ts 439), an affidavit sworn by the appellant dated 16 August 1989, par 3 of which read that the appellant 'has not and will not make any statement either written or verbal regarding the ... charges about which he may be questioned' (ts 438).

129 DS Higgins said that he did not interview the appellant before leaving the United States but while still in the United States and on 18 September 1989 the appellant said to him:

This has ruined my life. I wanted to stay here. I had a good job driving trucks and getting my family established. What have you got on me. You haven't come all this way for nothing.

DS Higgins said that on the plane journey back to Australia the appellant continually brought up the Moss case and the circumstances surrounding his trials and asked what evidence the police had against him (ts 378). DS Higgins said he did not want to have any discussion on the plane and that when the appellant persisted in asking questions about what evidence the police had, he told the appellant to 'shut up' (ts 444). When they arrived in Sydney, the appellant was lodged in a cell at the Sydney Police Centre.

130 DS Higgins gave evidence that on 22 September 1989 in an interview room at the Sydney Police Centre, he and DSC Staltari met the appellant and that he cautioned the appellant (ts 379). DS Higgins gave evidence that DSC Staltari took notes of the conversation which took place. DS Higgins gave evidence that he said to the appellant:

Am I correct in saying that this meeting is at your request? (ts 379)

131 DS Higgins said that the appellant said 'Yes, that's right'. DS Higgins said that the appellant said to him:

I want to know what you've got on me. I'm entitled to know.

I said, 'Do you agree that neither Nick or myself asked you questions about the case, and that in fact we both told you numerous times to leave it until we arrived in Sydney, because the plane wasn't the appropriate place to talk?' He said, 'That's right. I decided to talk to you and find out what other evidence you have on me.' I said, 'Do I take it you are waiving your rights under the affidavit?' He said, 'Garry, just tell me what the other evidence is.' I said, 'I'm going to give you the opportunity to read this statement if you wish. It's self-explanatory.' He said 'If it's going to tell me what you've got on me' - 'if it's going to tell me what you've got, I'll read it' (ts 379).

DS Higgins said that he then cautioned the appellant again and then showed the appellant a statement made by Inspector McCaffery, which stated that he was a fingerprint expert; that on 12 September 1988 he was handed a photograph of a fingerprint developed from a newspaper; that he recovered a set of fingerprints from police records in the name of the appellant; that he caused an enlargement to be made of the photograph of the fingerprint on the newspaper and an enlargement of the set of fingerprints in the name of the appellant and that from his examination he was satisfied that the fingerprint on the newspaper was identical to a fingerprint of the appellant (ts 379). There was no reference in that statement to where the newspaper had been found. (The significance of this will appear below).

133 DS Higgins said that the appellant read the statement and after doing so had said:

134 The appellant was then asked if he wanted to comment on the statement and his response was:

135 When pushed for an explanation, the appellant responded:

I'll have to think of one. What else have you got? (ts 380)

136 DS Higgins then showed the appellant the paperwork relating to the appellant's purchase of the vehicle in the United States on 14 June 1988 paying part by $5,600 in Australian currency. The appellant asked how DS Higgins had got the documents and DS Higgins told him that the US Marshall office gave them to him.

137 DS Higgins gave evidence that the appellant had transcripts of the Moss trials which he received while he was in custody in the United States and that the appellant asked to look at the originals of two sets of notes DSC Staltari had taken when Moss had been interviewed twice in October 1988. DS Higgins then showed the appellant a copy of the notes which Moss had signed. Moss' statements were not tendered at the trial of the accused but they were marked for identification. Parts were read to the jury on the basis that on one view of the evidence, comments made by the appellant after reading the statements amounted to a voluntary adoption of Moss' statements. The parts read out revealed that Moss said that the appellant committed the robbery, that Moss helped plan the robbery and acted in an aiding role. Having read that document, DS Higgins gave evidence that the appellant said:

I now know that Moss was lying at both trials. That's him talking and that's his signature. If only he kept his mouth shut and not told Sammy. Now I know what you've got on me I want to get my life organised with Wendy. Can I see her now and we'll talk again in Perth after I've had a chance to think about all of this. Is that alright? (ts 382)

138 DS Higgins said he then had a conversation with the appellant in relation to travel arrangements, that DS Staltari said that he would like the appellant to read out to him the notes that he had taken during that interview on that day and that the appellant said that DS Staltari could read them but he would not be signing anything. DS Higgins then said that DS Staltari read the contents of the notes to the appellant in his [Higgins] presence (ts 382 - 383). DS Higgins said that F1 then spoke to the appellant who was then taken back to the cells.

139 Back in Perth on 23 September 1989, DS Higgins gave evidence that he had a further interview with the appellant and that once again DSC Staltari attended and took notes. The appellant asked to look again at the statement of Inspector McCaffery about the fingerprint. He showed the appellant Inspector McCaffery's statement again and gave evidence that having read it the appellant said:

140 Higgins gave evidence that he said '[c]an you give me an explanation now you've had time to think?' and that the appellant replied '[i]t will take a lot of talking to get out of this one'.

141 DSC Staltari corroborated DS Higgins' evidence and deposed at the trial that the appellant was never told by him or DS Higgins before the Sydney interview that the newspaper referred to in Inspector McCaffrey's statement had been found in the getaway car (ts 491).

Evidence of New South Wales police officers

142 Three New South Wales police officers gave evidence at the trial. The first was a police officer who was identified at the Royal Commission and at the hearing of this appeal with the initial and number 'F1'. He gave evidence that after the appellant had been interviewed at the Sydney Police Centre by Higgins and Staltari, he was introduced to the appellant and that Higgins and Staltari then left the room. While only the appellant and F1 were in the room, F1 gave evidence that:

I said to the accused, 'I'm Detective ... I am in charge of a taskforce on which the Sydney detectives are now working. I understand that you have been interviewed by Detectives Higgins and Staltari from Perth. Is that correct? (ts 344 - 345)

The accused said 'Yes'. I said 'Have you read the interview they had with you?' He said 'No. Nick read it over to me.' I said, 'Is the interview true and correct?' He said 'Yes'. I said 'Did you give the answers of your own free will?' He said 'Yes'. I said 'Has any threat, inducement or promise been held out to you to give the answers that you gave?' He said 'No'. I said, 'Have you any complaints about the manner in which you have been interviewed?' He said 'No'. I said 'Righto, that's it. Good luck'. He said 'Thanks' and I then left the room.

143 The second New South Wales policeman to give evidence was Detective Dowding, who with 'F2', escorted the appellant up to the interview room in the Sydney Police Centre on 22 September 1989 and then with F2 escorted him back to the cells after the appellant was interviewed by DS Higgins and DSC Staltari (ts 351 - 352). His evidence of what was said by the appellant on the way to and from the interview room was the same as the evidence of F2.

144 'F2' was the third New South Wales policeman and he gave evidence that on 22 September 1989 while he and Dowding were escorting the appellant to the interview room in the Sydney Police Centre to be interviewed by DS Higgins and DSC Staltari, the appellant was 'quite chirpy' and asked '[d]o you know what they've got on me?' to which Dowding said '[i]t must be good to bring you all the way back here' and the appellant responded '[t]hey can't prove anything but do you know what they've got on me ... they can't identify me at the robbery. They just wanted a holiday'.

145 F2 further gave evidence that when taking the appellant 'back downstairs' to see his wife after the interview with Higgins and Staltari, '[h]e wasn't quite the same. He didn't appear to be as happy as he was before' and that the appellant said to Dowding and F2:

You were right. It was good. They've got my fingerprints on a newspaper in the car. I've blown it. I've lost my family (ts 353).

In the light of the evidence that the appellant was not told that the newspaper had been found in the getaway car, this statement was a significant piece of evidence against the appellant.

146 The appellant gave evidence at trial and denied making any of the statements which Higgins, Staltari and the three New South Wales police officers said he had made and which are set out above.

147 The appellant gave evidence that he played no part in the robbery (ts 520 - 521). He admitted that he knew Moss; he admitted that he had been at Ms Finn's residence on the day of the robbery and that Moss was there at the same time, but said that Moss was there in company with another male. He agreed that he, Moss and Ms Finn went to the airport on the evening of the robbery. He denied that he gave money to Ms Finn to pay for the tickets (ts 528). He admitted that he travelled to Sydney using the ticket with the name 'Peters' on it (ts 529). He admitted that he paid money in Australian dollars for the purchase of the vehicle in the United States and that he first gave a false name to the vendor of the vehicle.

148 The appellant gave evidence that he was a US citizen (ts 518); that he had family members in Australia and in South Carolina (ts 519) and that in 1987 he had worked in Sydney (ts 517). He said that his marriage was not 'great but it was patchable', that he came to Perth with the intention of starting a tow truck business but that did not work out (ts 518). He said that he went to Manjimup for three days and that he came back on Tuesday 7 June 1988, planning to leave Perth on the next day (ts 521). He said he arrived in Perth around midday and went to Ms Finn's house (he called her Kerr); that she made him a sandwich and coffee and that Moss and a male friend were there talking about horse races and that they had a newspaper (ts 522). The appellant said that he 'casually flicked through' the newspaper (ts 523). His evidence was to the effect that it was mere coincidence that he and Moss and Ms Finn were all planning to travel to Sydney on 7 June 1988 (ts 522). He said he left his bag at Ms Finn's house, that he went to see his brother and then went out to the airport in a taxi on his own and that his bag was taken to the airport by Moss and Ms Finn (ts 529). He gave evidence that he was surprised when he was given a ticket with the name 'Peters' on it and that Moss and Ms Finn explained that they travelled under aliases. He said that he also noticed that the ticket was a first class ticket; that Moss said that they were going 'in style' and that he paid Moss $500 which he understood to be less than the price of the first class ticket but more than the price of a normal fare (ts 530). He denied that he gave $2,000 to Ms Finn for the ticket.

149 The appellant also testified that in Sydney he obtained an international driver's licence, that his own licence was due to expire and that he had 'another licence in the name of Komiazyk' which 'I used to drive tow trucks under ... in New South Wales' (ts 534). He said that he used that name in New South Wales because he once had a licence cancelled 'for three years under Coffman in New South Wales' and could not obtain a driver's licence in that name (ts 534). He said that he had $11,000 in Australian money in New South Wales which was kept in a tin in the 'false bottom in a speaker' (ts 592) and which he had earned as a tow truck driver. He said that after changing some money into US dollars and meeting other expenses, he had about $8,000 Australian dollars left which is why he was able to pay some Australian currency when purchasing a vehicle in the United States (ts 533). He then flew to the United States.

150 The appellant also gave evidence that when he had been apprehended in the United States and taken back to Sydney, that he did not make a request to speak to DS Higgins and DSC Staltari (ts 600). He said in evidence-in-chief that he was not shown the McCaffery statement. In his evidence-in-chief he said that he first heard about the fingerprint evidence on 8 November 1989. In cross-examination he conceded that he knew about the fingerprint earlier than 8 November 1989, namely 29 September 1989, when he read an affidavit in support of a police application to revoke his bail (ts 597).

151 There is no evidence that Ms Finn was involved in the planning of the robbery and there is no evidence that she participated in it. However, the inference was open that she knew that the proceeds of the moneys were being used to allow the appellant and Moss to leave the jurisdiction (ts 230). On that basis, the inference was open that she was an accessory after the fact. The trial judge directed the jury that Ms Finn was an accomplice and that as a result it was dangerous to rely on her evidence unless it was corroborated (ts 658). His Honour directed that admissions to the police if the jury found that they had been made, would corroborate Ms Finn's evidence. In my opinion, the appellant's own evidence and the evidence of the airline employees also corroborated Ms Finn's evidence and implicated the appellant in the commission of the offence.

152 Ms Finn was cross-examined about the fact that she had criminal offences, was a drug addict and was a prostitute (ts 236 - 246). Because the appellant's counsel attacked the veracity of the police officers and accused them of fabricating evidence, the prosecution was permitted pursuant to s 8(1)(e)(ii) of the Evidence Act 1906 (WA) to lead evidence that the appellant had previously been convicted of two offences of armed robbery (ts 611). In my opinion, the attack on Ms Finn's character also justified leading the evidence of the appellant's convictions pursuant to s 8(1)(e)(ii).

The application to adduce fresh evidence - transcripts of evidence of F1 and F2 at the Police Royal Commission

153 An affidavit sworn 4 February 2009 by Samantha Bellini, a solicitor employed by Freehills, the firm acting on behalf of the appellant, exhibited the transcript of evidence given by F1 and F2 at the Royal Commission. The transcript revealed the following:

154 F2 gave evidence to the Police Royal Commission on 18 December 2002 that he became a member of the New South Wales Police Service in 1980 and in 1982 he commenced plain clothes duty. In 1998 he became involved in an investigation conducted by the New South Wales Crime Commission and the Police Integrity Commission in New South Wales into allegations of corrupt police activity and admitted personal misconduct. In the course of that investigation known as Operation Florida he brought to the attention of the investigators matters involving two Western Australian cases, one being the case against the appellant. Both cases were the subject of subsequent investigation by the Police Royal Commission. At the Police Royal Commission F2 gave evidence that he could not at first recall the name of the person involved, but later he recalled or reminded himself that the person involved was called 'Coffman'. F2 said he found a duty book relating to Coffman which reminded him that DS Higgins, DSC Staltari and Coffman had been picked up from Mascot Airport and taken to the Sydney Police Centre where the appellant was lodged in cells. F2 was not certain who actually picked them up. He said that he had seen DS Higgins and DSC Staltari as they left to go to the United States to bring the appellant back. Counsel assisting the Royal Commission then questioned F2 as follows and elicited the following answers:

Can we start by dealing with Coffman in the cells? Was he kept in the cells overnight?---Yes.

Did somebody go and get him?---Dowding and I took him from the cells up to the interview room and lodged him in an interview room, as I said before, on the third floor.

Right?---And after he was interviewed, he was taken back down. However, - - it was - - Dowding and I had to make some notes in our note - - or in his notebook in relation to alleged verbal conversations in relation to that fingerprint, which we did, but of course that conversation never took place.

All right. You made a statement eventually, did you not, in relation to what had happened on that day - -?---Yes.

- - for inclusion in the brief?---Yes.

Have a look at exhibit 1063 which is barcoded 1020701. Apart from a signature which has been blocked out at the end and the substitution of Coffman's name as F3 at the beginning, does that seem to be the statement that you made in relation to the events of the day?---Yes.

Which of course adopts the statement of Detective Dowding, pages 1 to 5, does it not?---Correct.

I'll ask you to have a look at Mr Dowding's statement, which is exhibit 1062, if that could be brought up please. That's barcoded 1020703. I'll take you through it, but does that, from the first page, appear to be the statement that you adopted of Detective Dowding?---Yes.

With, again, some alterations to deal with a substitution of Coffman's name for F3?---Yes.

The statement commences halfway down that page in front of you by reference to the morning of the 22nd of September 1989 and refers to you as F2 going with Higgins and Staltari to the Sydney Police Centre. It then purports on the bottom of that page to refer to a conversation which took place between Dowding and Coffman?---Yes.

I suppose you can recall. Did that conversation take place in roughly those terms?---I would say that parts of it may have taken place, but maybe not in that context..

Was Coffman's wife at the SPC that day?---Yes.

Now, if you go on - - read on, you'll notice that halfway down the second page it refers to going to an upstairs interview room - - -

MR HASTINGS: - - - upstairs interview room, and on the way to the lift, Coffman saying:

'It must be good to bring you all the way back here.'

'They can't prove anything, but do you know what they've got on me?'

'They can't identify me at the robbery. They just wanted a holiday. Did they get my bags?'

If we can go over the page, please? Dowding said:

'Good. I wasn't coming back here. It's much cheaper over there, that's for sure.'

Did a conversation like that take place?---I would say that possibly part of it did.

Are you able to say what part did, and any part that didn't?---No.

Then the statement goes on to refer to the fact that Coffman's wife was waiting in the waiting room area, and there was a conversation about that, including Coffman saying something to his wife. Did something like that happen?---I know there was - - I know his wife was there, and I - - and I recall there obviously was a conversation about making some arrangements, but you know, whether it was in these terms, I'm not sure.

MR. HASTINGS: And at the bottom of the page, the statement goes on:

'Accompanied by' - you - 'I then left that area with the prisoner, Coffman, and spoke to his wife. A short time later, F2 and I took Coffman to an interview room where Detectives Higgins and Staltari were waiting.'

And over the page, he says that you and he then left the interview room. Did that happen?---Yes.

On the top of the next page, he refers to the fact that he later saw Detective Fl. Did you and Dowding later see Detective Fl? I think that's meant to - - yes, anyway?---Yes, I know who it is. I believe so, yes.

The statement then goes on to say:

'Some time later, Detectives Higgins and Staltari came from the interview room and we had a conversation with them. Detective F2 and I then entered the interview room and I said, 'Come on, we'll take you back downstairs to see your wife.'

'You were right. It was good. They've got my fingerprints on a newspaper in the car. I've blown it. I've lost my family.'

Did that conversation take place?---Which part?

The last part, the statement attributed to Coffman - -?---And the fingerprints?

When he said:

WITNESS: No.

MR HASTINGS: How did that come to be in the statement of Dowding, which you in turn adopted in your statement?---Well, that was the important part, or my recollection of the important part was that we get an admission of some sort in relation to the fingerprint, from Coffman.

And was that what was to be said in the light of the instructions that you referred to earlier coming from Detective Fl?---Yes.

...

What happened about the creation of notes and/or a statement in relation to the invented admission by Coffman? How was that done?---Oh, I can't - - I can't recall. We made notes, or notes were made in Dowding's notebook. Just when they were made, I'm not exactly sure, but it would have been after the event.

...

MR HASTINGS: Did it concern you that you were involving yourself in fabricating evidence in a matter which involved police from another State - in another police service?---No.

On one view you might have exposed yourself to risk had you fabricated some evidence in the presence of other police. Were you concerned about that risk?---No.

Why not?---It was an accepted practice. It was extensively practised.

Did you yourself have any discussions with Higgins or Staltari about the evidence that you fabricated in this case?---I don't recall a conversation with him, no.

You said earlier I think your instructions came from Detective Fl?---Yes.

155 F2 was then cross-examined by counsel representing DS Higgins and DSC Staltari as follows and elicited the following answers:

Well, have you been told that a prosecution will not proceed against you if you cooperate in this Commission?---I believe that to be the case.

Yes, and you understand fully that your identification is protected?---Yes.

Are you still a serving police officer?---Yes.

156 F1 gave evidence to the Police Royal Commission on 16 December 2002 concerning allegations that officers of the Western Australian and New South Wales police services combined to fabricate evidence concerning two separate cases, one of which involved the appellant. F1's evidence was that he became a constable in 1971 and a plain clothes officer in 1973 and that he retired from the Police Force in 1993 having achieved the rank of Detective Sergeant. At some stage in 2001 he then became aware that F2 had been cooperating with the New South Wales Crime Commission and that he had used a listening device. He gave some evidence above another set of proceedings and then he was questioned by counsel assisting the Royal Commission as follows and elicited the following answers:

Can I take you back now to Coffman? The statements and other records indicate that - - -

MR HASTINGS: - - - indicate that Detectives Higgins and Staltari came back from the United States to Sydney on Thursday, the 21st of September 1989 and Coffman was lodged in the cells at the Sydney police centre. Do you remember that in general terms?---Yes.

When you were first interviewed or debriefed what was your recollection of the misconduct involved with the processing of Coffman?---Coffman - - I can't remember whether it was conversations on the plane or an interview at the police centre but I performed the role of what in New South Wales then was called the oversighting officer and that was that I - - after a person was interviewed an independent officer asked questions of the interviewee as to the manner in which - - or the manner in which the interview was conducted and its correctness.

And what was your recollection of the way in which you carried out that role?---Well, I didn't. I just wrote it up later.

Did you have or do you now have a recollection of what happened which led to you fabricating that evidence?---Well, there was a conversation between myself and F2 and another New South Wales detective, and the Perth detectives as to how this would occur and it was worked out, and then we arranged that F2 and the other detective would give Coffman a - - in police parlance, 'a short, sharp one' when they were conveying him from one place to another which would corroborate the evidence of the interview of the - - by the Perth detectives.

And did you have some role in coordinating the evidence of the Perth detectives, your evidence and the evidence of F2 and the other officer?---Yes. I think that was probably my role.

And what did that involve?---Well, I coordinated it.

Meaning?---I put it all together.

Ensuring it was consistent?---Yes.

Do you recall where this discussion took place?---I don't.

Were you stationed at the Sydney police centre then?---No, at the time I was in charge of a taskforce which was across the road.

What about F2? Was he stationed at the Sydney police centre? He was with me.

And the other officer was Kim Dowding, was it not?---Yes.

...

Your statement in this matter, if I can have it brought up, please, is barcoded D1020697. Again, this is the edited version which has F2's name and Coffman's name and your name -

MR HASTINGS:. - - - and your name deleted, but you can see that it indicates that 11.40 am on the 22nd of September you went to the Police Centre and there saw Dowding and F2, and you then saw Detective Sergeant Higgins, Detective Staltari.

'They told me something and I then went into a room where Detective Sergeant Higgins introduced me to Coffman. Higgins and Staltari then left the room.'

And then you purported to put the usual questions and required an oversighting officer in getting positive answers from Coffman. Do you remember that?---Yes.

Is that the interview which you say did not take place? Perhaps you need to - - if we can go to the next page, please?---Yes.

In fact, did you go anywhere near Coffman in that context?---No.

...

During the proceedings here - when evidence was being led of your alleged conversation with Coffman in these circumstances, did you hear Coffman say something?---Coffman said either to his solicitor or to the instructing solicitor or his barrister, 'I've never seen this bloke before.'

Was that correct?---He might have glimpsed me, but that was about it.

And insofar as the evidence that you fabricated was supposed to result in the adoption of an interview between Higgins and Staltari and Coffman, to your knowledge had any such interview taken place?---Well, I can't say - - -

WITNESS: - - - can't say that it didn't take place in some form or other. I mean - - -

MR HASTINGS: What does that mean?---If I was to - - whether I was going to or - - sorry, it's not the plan usually to verbal a person. I mean, if you can get the necessary admissions, well, then you do so. A lot of the questions and answers in the interview may well have been given and the answers - - the questions given and the answers received.

In the oversight procedure that you fabricated you made reference to saying, 'I said, "Have you read the interview with you'll"'- - 'I said, "Have you read the interview they had with you"' and at the top of the page "now in front of you?" you fabricated the response, 'He said, "No. Nick read it over to me"? --- Yes.

Did you know whether that had happened or not?---No, I can't remember now.

The remainder of the evidence was - - ?---It may have been that he couldn't speak - - it may well have been that he couldn't read. Don't know.

The remainder of this parcel of evidence was from F2 and Dowding, who claimed that when they were escorting Coffman down to the cells after your oversighting role had been allegedly discharged they had a short, sharp conversation with Coffman during which he made what seemed to be an interview - sorry, seemed to be an admission. Do you have any knowledge as to whether that admission was actually made or not?---I believe not.

Was that matter that you described as 'a short, sharp one' I think earlier - - -?---Yes.

As being something which was fabricated when you met? ---Yes. It was to link in with the - - from memory there was something in the interview with - - the Perth interview was to do with family or something like that and this was linked into that by saying something like, 'I'm stuffed. I've lost the family' or something similar to that.

I've referred you to the alleged conversation between Higgins and Staltari and Coffman?---Yes.

Your alleged oversighting and the alleged short, sharp verbal between F2 and Dowding and Coffman?---Yes.

Were they the matters that had been discussed at this meeting that you talked about earlier in which you had been the main player in ensuring consistency?---Yes.

MR HASTINGS: There were some other aspects of the prosecution case against Coffman which you've discussed with F2 from time to time, have you not?---Yes.

...

There's just one aspect of your discussions with F2 that I want to particularly bring to your attention. On one occasion when F2 was, I think, having lunch with you and some other officers in May of the year 2000, during which he recorded the conversation, there was a discussion about the Coffman matter ... there was ... reference to Mr Staltari that I want to bring to your attention, in that you are recorded as saying this, 'Staltari didn't know' and F2 said 'He wouldn't have known what was going on, mate.'

You said, 'Piggy - - Piggy was going - -'F2 said 'Staltari said to me - - Staltari to me was just a sort of a boy to fucking hit Higgy.'

You said, 'Yeah, he was.' And then F2 said 'The last time I was over there - - You said 'Piggy' and F2 said 'Staltari didn't want anything to do with me at all.' And then you said 'Higgy - - Piggy didn't know what was going on either, how we do this. Piggy told me about the print' and you said 'This is what we do.' One construction of that passage of conversation is that you were indicating that Mr Staltari was unaware of what was going on in terms of the fabrication of the evidence. Was that what you meant?---I don't - - I didn't quite catch all of that, I'm afraid. I've been confused a bit with - - - when you say 'the print' and the - -

All right. Commissioner, unfortunately it's not scanned into the system. Perhaps if we take the adjournment now, if that's all right, I might give the witness the opportunity to read it over the break.

COMMISSIONER: Yes.

MR HASTINGS: And he can respond then.

COMMISSIONER: Yes, very well. We'll adjourn until 2 o'clock.

COMMISSIONER: Yes, Mr Hastings?

MR HASTINGS: Witness, before lunch I had asked you whether you could explain some dialogue between you and F2 which seemed to relate to this matter, in the course of which you said, 'Staltari didn't know' and F2 said, 'He wouldn't have known what was going on, mate', and he then said, 'Staltari to me was just just, sort of, a boy to fucking Higgy', and you said, 'Yeah, he was'?---Yes.

Are you able to recall to what you were then referring? ---I think we were just referring in general to Staltari's relationship to Higgins.

Which was what, as far as you could see?---The junior and senior man.

Yes, thank you, Commissioner, that's all.

157 In a second affidavit sworn 28 October 2009, Ms Bellini deposed that attempts had been made to locate F1 and F2. Freehills had made those inquiries by writing to the Commissioner of Police in New South Wales, explaining that Freehills were acting for the appellant and that they wished to adduce evidence of F1 and F2 confirming the evidence that they had given at the Royal Commission. Freehills' letter said that the assumption was that F1 and F2 had been given new identities after the Royal Commission and asked if arrangements could be made to serve subpoenas on F1 and F2 requiring them to give evidence by video-link in a way which would keep the whereabouts and identities of F1 and F2 confidential.

158 A reply was received, not from the Commissioner, but from the Inspector, Professional Standards Manager of the New South Wales Police Force, stating that legal advice had been sought and that the advice recommended against the release of information regarding protected witnesses, but that if the 'Commissioner or his representative' (which I take to be a reference to the New South Wales Commissioner of Police or his representative) approved:

[T]hat Freehills solicitors, be provided with all necessary assistance from the NSW [Police Force] in arranging the service of any legal process issued in respect of the protected witnesses upon the officers responsible for their protection and the NSW [Police Force] further provide any other necessary assistance for those witnesses if and when [sic] are required to provide evidence to the court.

No application was made to this court to issue subpoenas directed to F1 and F2 requiring them to give evidence to this court. No evidence was tendered that revealed any attempt to ask for the Commissioner's approval.

159 Ms Bellini's affidavit revealed that an approach to the Corruption and Crime Commission of Western Australia which had custody of the Royal Commission documents, produced a response that there was no information about the whereabouts of F1 and F2.

160 Relying on the affidavits of Ms Bellini, the appellant made an application, relying on s 79C(1) and s 79C(2a) of the Evidence Act, to admit the transcripts of evidence given by F1 and F2 as the fresh evidence in support of the grounds of appeal.

1. There has been a miscarriage of justice in that there is now available fresh evidence that establishes that there is a significant possibility that, in the light of all the admissible evidence (that is, the fresh evidence and the evidence given at the trial) a jury, acting reasonably, would have acquitted the appellant.

(A) the evidence of F1 (a New South Wales Police Officer) given at the Royal Commission into whether there has been corrupt or criminal conduct by any Western Australian Police Officer of January 2004 (Police Royal Commission).

(B) the evidence of F2 (a New South Wales Police Officer) given at the Police royal Commission.

(C) Particular abandoned.

1. Alternatively to 1, there has been a miscarriage of justice in that there is now available fresh evidence that establishes that there is a significant possibility that, had the fresh evidence been available as a basis for:

(a) cross-examination of the police witnesses as to their credit; or

(b) a foundation for further enquiry,

in light of the evidence given at the trial, a jury, acting reasonably, would have acquitted the appellant.

(A) The appellant repeats the particulars to 1.

Section 79C of the Evidence Act 1906

162 Section 79C of the Evidence Act reads:

(1) Subject to subsection (2), in any proceedings where direct oral evidence of a fact ... would be admissible, any statement in a document and tending to establish the fact ... shall, on production of the document, be admissible as evidence of that fact ... if the statement -

(a) was made by a qualified person; or

(b) directly ... reproduces or is derived from ...

(i) information in ...statements, ... made by a qualified person;

...

(2) Where a statement referred to in subsection (1) is made by a qualified person or reproduces or is derived from a statement made by a qualified person, that person must be called as a witness unless -

(a) ...

(b) ...

(c) ...

(d) all reasonable efforts to identify or find him have been made without success;

...

(2a) Notwithstanding subsections (1) and (2), in any proceedings where direct oral evidence of a fact ... would be admissible, any statement in a document and tending to establish the fact ... shall, on production of the document, be admissible as evidence of that fact ... if -

(a) the statement is, or directly or indirectly reproduces, or is derived from, a business record; and

(b) the court is satisfied that the business record is a genuine business record.

(2b) Where a statement referred to in subsection (2a) is made by a qualified person that person shall not be called as a witness unless the court orders otherwise.

(3) This section makes a statement admissible notwithstanding -

(a) the rules against hearsay;

(b) the rules against secondary evidence of the contents of a document;

(c) that the person who made the statement or the person who made a statement from which the information in the statement is reproduced or derived is a witness in the proceedings, whether or not he gives evidence consistent or inconsistent with the statement; or

(d) that the statement is in such a form that it would not be admissible if given as oral evidence,

but does not make admissible a statement which is otherwise inadmissible.

(4) Notwithstanding subsections (1), (2) and (2a), in any criminal proceedings a statement in a document which was made in the course of or for the purpose of -

(a) the investigation of facts constituting or being constituents of the alleged offence being dealt with in the proceedings;

...

shall not be rendered admissible as evidence by this section.

...

(6) For the purposes of this section a court may, in its discretion, reject a statement notwithstanding that the requirements of this section are satisfied with respect thereto, if the court is of the opinion that the probative value of the statement is outweighed by the consideration that its admission or the determination of its admissibility -

(a) may necessitate undue consumption of time; or

(b) may create undue prejudice, confuse the issues, or in proceedings with a jury mislead the jury.

163 There is no dispute that F1 and F2 were qualified persons as defined in s 79B. Therefore they fell within the meaning of s 79C(1). It was also not in dispute that the transcripts contained statements of facts of which direct oral evidence, would be admissible on the present application and that the transcripts directly reproduced information in statements made by a qualified person. The respondent objected to the admission of the statements, if F1 and F2 were not called as witnesses. The written submissions of the respondent read:

1. The appellant has not supported the application for leave to appeal out of time with any reasonable explanation as to the absence of direct evidence in the form of affidavit evidence of F1 and F2 that relate directly to the appeal. In the absence of that evidence, the respondent submits the evidence of F1 and F2 ought not to be admitted before this court or if admitted that the absence of that evidence impacts upon the weight that ought to be accorded to the evidence of F1 and F2.
2. The respondent submits that it has not been demonstrated that it is not reasonably practicable to secure the attendance of F1 and F2 at the appeal and that the assertions contained within paragraph 60 of the appellant's submissions do not suffice to constitute 'all reasonable efforts to identify or find [F1 and F2] have been made without success': s 79C(2)(d) of the Evidence Act 1906. It is submitted that the evidence of F1 and F2 is not admissible pursuant to s 79C of the Evidence Act 1906.

164 The reference to par 60 of the appellant's submissions is a reference to the fact that the appellant had written to the Crime and Corruption Commission and the Commissioner of the New South Wales Police Force. At the stage those submissions were prepared, no response had been received to those letters.

165 In an interchange with counsel for the respondent at the hearing of the appeal, it was put to counsel by a member of the court that the appellant would rely upon affidavit evidence to the effect that F1 and F2 had been given new identities and counsel for the respondent responded:

That's right. I do concede that my learned friends have made all reasonable efforts to find the witnesses, and that's my concession. Other than that, on the basis that I have outlined I do object to the admissibility of their evidence before the court (appeal ts 41).

It was not conceded that there was any lack of success in those efforts. The respondent therefore continued to maintain that it had not been demonstrated that it was not reasonably practicable to secure the attendance of F1 and F2.

166 The appellant was convicted in March 1990 and the time for appealing against those convictions expired in April 1990. The application for an extension of time is supported by two affidavits.

167 The first is an affidavit sworn by the appellant on 2 September 2008. In this he deposed as follows: he was advised after the trial that he had no prospects of a successful appeal. He served his sentence of imprisonment and was released from custody in the 'latter part of 1992'. The appellant then went to New South Wales and later returned to the United States. In 2002, the appellant was residing in the United States when he was contacted by an officer of the Police Royal Commission asking if he would give evidence. He chose not to do so. In February 2003, the appellant returned to New South Wales and in September 2003 was arrested in relation to a marijuana offence and was represented by the New South Wales Justice Advocacy Centre. 'Sometime in early 2004' he became aware that the Advocacy Centre had obtained transcript from the Police Royal Commission and he then became aware that F1 and F2 had given evidence to the Police Royal Commission that their evidence against the appellant at his trial in 1989 had been fabricated. As a result, the appellant instructed lawyers to prepare an appeal. A draft appeal notice dated 29 March 2005 was prepared by his lawyers, but the 'content was not complete due to our not having the actual trial transcript'. However, the appellant then accepted advice to 'get the marijuana offence out of the way' and then deal with the appeal. His affidavit deposed that the 'principal marijuana charge' was 'resolved in [his] favour', although he also deposed that in May 2005 he was sentenced to 9 months' probation for possessing marijuana leaf. In September 2005 he was 'provided with a draft letter [from his solicitors] to the Western Australian Attorney General in regard to a possible petition in respect to his armed robbery conviction and also seeking the assistance of the Attorney General's office in respect of obtaining the actual trial transcript'. In October 2005 he returned to the United States with a view to earning money to help meet legal expenses to fund an appeal against his convictions. He returned to Australia for a number of weeks in April/May 2006 for 'family reasons'. The appellant met with a Les Connolly who did 'voluntary work for people with legal problems' and this person assisted him prepare a letter to the District Court saying that he proposed appealing and asking for transcripts to be sent to Connolly. The appellant contacted counsel who appeared for him at the trial. Counsel told him about the Royal Commission evidence and asked what he wanted if he was to act for him on an appeal. Counsel said he would want $5,000 to set things in motion. The appellant returned to the United States in May 2006. He returned to Australia in January 2007. He renewed his endeavours to obtain the trial transcript and he received it on 9 May 2007. He was unable to raise sufficient funds and eventually he was advised by Connolly that he should apply for legal aid. The appellant did this in about June 2007, and in July 2007 he was advised that funding had been granted for advice and investigation about the likelihood of a successful appeal.

168 The second affidavit filed in support of the application for an extension of time was sworn 2 September 2008 by Ms Karen Farley, a solicitor employed by the Director of Legal Aid WA. Ms Farley deposed that the appellant was granted legal assistance by Legal Aid WA in July 2007 and that she provided advice. Further Legal Aid funding was then granted for the purposes of petitioning the Attorney General which occurred when a letter was sent by Ms Farley to the Attorney General on 3 October 2007 attaching a petition. The Attorney General responded by letter dated 8 April 2008 stating that he would not refer the petition to the Court of Criminal Appeal under s 140(1)(a) of the Sentencing Act 1995 (WA) and nor would he recommend to the Governor that the Governor exercise the prerogative of mercy in his favour because:

[T]he case against Mr Coffman was always very strong, even without the tainted police evidence. He has long finished his term of imprisonment and in these circumstances; I cannot see any useful purpose being achieved in referring his petition to the Court of Criminal Appeal.

169 On 6 May 2008 the appellant gave instructions that he wished to appeal against the convictions and on 23 July 2008, legal aid was granted for that purpose. An appeal notice was prepared and filed on 9 September 2008.

Principles governing an application for an extension of time for leave to appeal against conviction

170 Where there has been a lengthy delay, exceptional circumstances must usually be shown before the court will grant an extension of time unless it can be shown that there will be a miscarriage of justice if an extension is not granted: Lancaster v The Queen [1989] WAR 83, 85; Wimbridge v The State of Western Australia [2009] WASCA 196 [19] (Wheeler JA), (Miller JA agreeing), [42] (Buss JA). A delay of three months has on occasions been described as 'gross': Truscott v The State of Western Australia [2007] WASCA 62 [1]. The five principal factors identified by Buss JA in Wimbridge which are usually relevant to the assessment of an application for an extension of time are the: nature and extent of delay, reasons for the delay, merits of the grounds of appeal, the prejudice to the appellant if an extension is not granted and the prejudice to the State if an extension is granted.

171 If there has been a lengthy delay, notwithstanding that some of the factors may not be favourable to the grant of an extension, the overarching consideration is whether a miscarriage of justice will occur if an extension is not granted.

Whether an extension of time should be granted

172 There has undoubtedly been a lengthy delay. The right of appeal expired over 19 years ago. However, I do accept that no regard should be had to the delay up until 'sometime in early 2004' which is when the appellant discovered that F1 and F2 had given evidence at the Royal Commission that they had fabricated evidence given at his trial. In the light of that information and the time since conviction, it would have been reasonable to expect the appellant to make a prompt application for an extension of time in which to appeal. Instead, no such application was then made and no application was made for legal aid, despite the fact that the appellant did not have sufficient funds to obtain legal assistance to conduct an appeal or make an application for an extension. No application was made for legal aid until June 2007 which was over three years from the time when he learned about the evidence of F1 and F2 and no appeal was instituted until about four and a half years later on 9 September 2008. There was therefore a delay of several years during which nothing was done to institute an appeal, seek an extension of time or to apply for legal aid after the appellant became aware of the fabricated evidence.

173 It is then necessary to look at his reasons for the delay. It is true that he did take steps to seek advice and to request the trial transcript but he did not persist in his attempts to obtain the transcript. The explanation for the delay between 2005 and 2007 is unsatisfactory. When he gained information about F1 and F2's evidence to the Royal Commission, he had access to legal advice from those acting for him in relation to charges concerning possession of marijuana. He did consult them and having done so, he decided to do nothing about instituting an appeal; instead he decided first to deal with the marijuana charges. Then, having dealt with those matters, the appellant returned to the US claiming that he wanted to earn funds to pay legal costs in relation to an appeal. In my opinion the appellant was dilatory in taking steps to institute an appeal.

174 Attention must then be given to the merits of the appeal. The appeal has no merit if the statements in the transcripts of evidence given by F1 and F2 at the Royal Commission should not be admitted pursuant to s 79C of the Evidence Act. For the reasons which appear below, those statements should not be admitted. However, even if the statements should be admitted and treated as evidence F1 and F2 would have given to this court, they do not, for the reasons given below, establish that there was a significant possibility that a jury acting reasonably would have acquitted the appellant.

175 As to prejudice to the parties, the appellant would be undoubtedly prejudiced if there was some merit to his appeal and he lost the chance of his conviction being quashed. However, he suffers no prejudice in my view, because there is no merit to his proposed grounds of appeal.

176 Finally, I turn to the question of prejudice to the respondent. The respondent would be theoretically prejudiced if the appeal was allowed and a retrial ordered. This is because the exhibits have now been lost. However, prejudice to the State is theoretical because if an extension were granted, leave granted, the appeal allowed and the conviction quashed, it is not likely that a retrial would be ordered because the appellant has served his sentence.

177 Taking all those factors into account, the lengthy delay of several years after he learnt of the evidence of F1 and F2 at the Royal Commission, the lack of a satisfactory explanation for the delay and the lack of merit in the proposed grounds of appeal leads to the conclusion that the application for the extension of time in which to appeal should be dismissed.

178 I now turn to the merits of the appeal and the application to admit the statements contained in the transcripts of evidence of F1 and F2 from the Royal Commission.

Principles governing appeal based on fresh evidence

179 Logically, a decision should first be made about whether the transcripts of evidence of F1 and F2 at the Royal Commission should be received as evidence in this appeal pursuant to s 79C of the Evidence Act, but before doing so, I will refer to the principles governing appeals based on fresh evidence and particularly fresh evidence consisting of recanting witnesses and will make some observations about the proposed evidence.

180 An appeal alleging that there is fresh evidence warranting the quashing of a conviction on a criminal charge, is an appeal based on s 30(3)(c) of the Criminal Appeals Act 2004 (WA). That section provides that the Court of Appeal must allow an appeal if, in its opinion, there was a miscarriage of justice. An appeal based on fresh evidence is an appeal alleging a miscarriage of justice: see Ratten v The Queen [1974] HCA 35; (1974) 131 CLR 510.

181 In Craig v The King [1933] HCA 41; (1933) 49 CLR 429, 439, Rich J and Dixon J observed 'that the exercise of a power to direct a new trial because fresh evidence is forthcoming, must be attended both with danger and with difficulty'. They pointed out that it is the function of the jury to determine questions of fact and that when they have found a verdict, they have performed that duty. Their Honours said:

If after a verdict of guilty the mere fact that a prisoner produced further relevant evidence required the court to vacate the conviction and submit the question of the prisoner's guilt to another jury, then in a jurisdiction where perjury is rife great abuses would ensue (439).

182 When an appellant seeks to overturn a verdict of a jury on the basis of fresh evidence, then the test to be applied by the appeal court is to ask itself: whether there is a significant possibility that in the light of all the admissible evidence, including the fresh evidence, and the evidence given at trial, a jury acting reasonably would have acquitted the accused: Gallagher v The Queen [1986] HCA 26; (1986) 160 CLR 392 399, 402 and 421; Mickelberg v The Queen [1989] HCA 35; (1989) 167 CLR 259, 273, 275 and 302 and Beamish v The Queen [2005] WASCA 62 [14]. The appeal court has the responsibility of examining the fresh evidence in order to satisfy itself that the evidence is relevant and if relevant, that the evidence is credible and cogent: Mickelberg v The Queen [2004] WASCA 145 [432]; (2004) 29 WAR 13 [33]; White v The Queen [2006] WASCA 62 and PAS v The State of Western Australia [2009] WASCA 210 [54] - [56]. If the evidence is not credible and cogent, it may be rejected: see for example Gallagher, Lawless v The Queen [1979] HCA 49; (1979) 142 CLR 659 and White. 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: McLure JA in Amiss v The State of Western Australia [2006] WASCA 171; (2006) 165 A Crim R 387 [14].

183 Fresh evidence consisting of a statement by a witness that his evidence at the trial was false must be scrutinised with care and caution, as must his reasons for giving the false evidence and for the change in evidence: White [147] and [211] and Amiss [66] per Buss JA, Wheeler JA agreeing.

184 The High Court in Davies & Cody v The King [1937] HCA 27; (1937) 57 CLR 170 said:

The subsequent discovery that some evidence is said by a 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 (183 - 184).

McLure JA in Amiss at [16] 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'. After referring to Davies & Cody v The King her Honour noted at [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: ... That is, the unreliability reflected in the fact of recantation does not of itself generally justify appellate intervention.

185 McLure JA also noted at [18] in Amiss, 'that 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'.

186 In summary, in a case involving fresh evidence consisting of a recantation, the appeal court will usually hear the witness and examine the witness' credibility and the cogency of the evidence with a view to deciding whether a reasonable jury could accept the recantation evidence as true or whether the recanting witness is shown to be so untrustworthy that his evidence given at trial ought not be allowed to enter into the verdict of guilty: Mickelberg (302); White [222]; PAS [55] - [56]; and Amiss [18]. If an application is made (as is the case here) to admit the fresh evidence in documentary form under s 79C and the recanting witness is not called before the appeal court to be examined and cross-examined, then the appeal court will be denied the opportunity of performing the task of assessing the credibility and cogency of the recanting witness and will not hear for itself the reasons given for giving the untruthful evidence and for changing the evidence.

187 Cross-examination of F1 and F2 may have been very important. For example, from the transcript of evidence given at the Royal Commission it is clear that F2 was first identified by the New South Wales Crime Commission as having committed some form of misconduct in his work in the Police Force, details of which were not disclosed in the transcript. It is clear from cross-examination at the Royal Commission that at some stage he was 'told he would not be prosecuted for giving evidence at the Royal Commission'. His evidence was that he was still a serving officer notwithstanding that he had been interviewed about his personal misconduct during his career as a police officer in New South Wales in 1998. If he had been called to give evidence, F2 could have been cross-examined to determine whether F2 felt that he had to provide evidence of wrongdoing of others (as well as himself) in order to become a witness of value to the inquiry and thence to gain some immunity from prosecution for his own wrongdoing.

188 F1 had become aware that F2 had been cooperating with the New South Wales Crime Commission, alleging corrupt conduct by himself and other officers and that F2 had been collecting evidence from time to time by means of a listening device, including evidence gathered in conversations with him. When F1 found out about this, it caused him concern and he was then approached by the Crime Commission 'to become a corroborative witness'. F1 in turn made allegations about others. He denied that he had been offered an indemnity of any kind but agreed that he had not received any punishment as a result of his disclosures. This also would have provided a basis of potential cross-examination with a view to gaining admissions that F1 had a motive for alleging the misconduct of others in order to gain a benefit for himself.

189 Further, the transcript of the evidence of F1 at the Royal Commission about the arrangements he made with the 'Perth detectives' was generalised and at times ambiguous, some evidence suggested that DSC Staltari was not involved in those arrangements. This court would have been interested to learn precisely what the arrangements were and with whom they were made. Cross-examination may have revealed with more precision whether F1's evidence impugned the evidence of DSC Staltari. Finally it emerged that F1 was asked to recall details about this case for the first time 15 years after the events. He and F2 were understandably uncertain about some of the events.

190 All of these points would have attracted close questioning in cross-examination if F1 and F2 had given evidence to this court. If the transcript of evidence of F1 and F2 at the Royal Commission is admitted under s 79C of the Evidence Act, all this court will have is the transcript of evidence given by F1 and F2 at trial and the transcript of evidence they gave to the Royal Commission, with no way of performing the role of assessing the credibility of F1 and F2.

191 In Lawless, the fresh evidence consisted of an unsworn statement of a witness to a shooting which suggested it was not the appellant who shot the deceased. Although this was not a recanting witness case, observations made in the reasons for decision in the High Court are pertinent. The appellant in that case claimed to have an alibi and not to have been present at the time the shooting occurred. There was other direct evidence given at trial that he was present. The fresh evidence was in the form of an affidavit verifying an unsworn statement of a witness who had not been called at the trial. Barwick CJ noted that the Court of Criminal Appeal in that matter was prepared to consider and did consider the matter referred to that court by the Attorney-General:

[O]n the footing that Mrs Telford was, as the Crown conceded at the hearing before that court, a credible person. The court was prepared to act on the assumption that Mrs Telford would give evidence precisely as stated in her statement to the police officer and perhaps, impliedly, that it would not be shaken at all by cross-examination (664).

In the present case, the Court of Criminal Appeal neither heard the evidence nor had the oath of Mrs Telford to the material contained in the statement taken from her by the police officer. It seems to me that the concession made by the Crown that Mrs Telford was credible in what she said to the police officer was no adequate substitute for the hearing of evidence by Mrs Telford both in examination-in-chief and in cross-examination. As a result, this court is not in a position, in my opinion, to form a conclusion as to whether her evidence is likely to be believed.

193 Likewise in this case, the failure of the appellant to call F1 and F2 to give evidence means that this court will not be in a position to draw any conclusion as to whether a jury would be likely to believe F1 or F2 or whether F1 or F2 were completely untrustworthy. If the transcripts are admitted without F1 and F2 giving evidence, then the appellant will be merely pointing to material produced outside of this court of evidence by F1 and F2. Thus, as McLure JA said in Amiss, the unreliability reflected in the fact of a recantation, does not of itself usually justify appellate intervention.

Should the statements of F1 and F2 in the transcript of evidence to the Royal Commission be admitted as fresh evidence pursuant to s 79C(1) or (2a)

194 The statements made by F1 and F2 to the Royal Commission and recorded in transcripts of their evidence that they had given false evidence about what the appellant said to them in 1989 are statements made by qualified persons. There was no submission that the statements made by F1 and F2 and recorded in the transcript were not 'made' by F1 and F2 as qualified persons. A document recording a statement made by a qualified person where the document itself has been made by a third party will be admissible under s 79C: Beamish v The Queen [155]; Cavill v The State of Western Australia [2008] WASCA 108 [36]. A 'statement' includes any 'representation of fact whether made by words or otherwise' (see definition of 'statement' in s 79B).

195 The Royal Commission transcript reveals F2 making a representation of fact that he had falsified the oral comment by the appellant that 'they've got my fingerprints on a newspaper in the car. I've blown it. I've lost my family.' The Royal Commission transcripts reveal that F1 made a representation of fact that he had a conversation with the appellant after the interview conducted by the Perth detectives and falsified what he said and what the appellant said to him. He also made statements that he had given instructions to F2 that F2 and Detective Dowding should fabricate evidence. His evidence also contained the representation of fact that he had a conversation with the 'Perth detectives' about the fabrication of evidence and that 'we' arranged that F2 and the 'other detective' would give the appellant 'a short, sharp one'.

196 In my opinion, the statements in the transcripts of evidence may not be admitted as fresh evidence pursuant to s 79C(1) because s 79C(2) has not been satisfied. Reasonable efforts have been made to 'find' F1 and F2 and counsel for the respondent conceded this. However, the reasonable efforts were not unsuccessful; they were successful. To 'find' a person in context, means to find that person so that he or she may be persuaded or compelled by court process to attend court to give evidence.

197 The response by the New South Wales Police Force was that while they would not release information about F1 and F2, the New South Wales Police Force, with the approval of the Commissioner or his representative, was prepared to arrange the service of legal process upon F1 and F2 and to provide 'necessary assistance' for the witnesses if and when they were required to provide evidence to the court. In my view it is highly unlikely that the Commissioner would have withheld approval if this court had issued subpoenas directed to F1 and F2. The names of F1 and F2 were known to the parties and appropriate orders could have been made for the issue of subpoenas under the alias F1 and F2, arrangements made via the New South Wales Police to serve the subpoenas and arrangements made for those witnesses to give evidence by video-link. The appellant was aware of this course of action because Freehills in their letter to the Commissioner of Police referred to the case and to Thomas v State of New South Wales [2008] NSWCA 316; (2008) 74 NSWLR 34 [72] as suggesting a similar course of action. There was nothing to suggest that F1 and F2 had left Australia. In fact, the letter from the Inspector on behalf of the New South Wales Police Force implied that they were still in Australia because the offer was made that the New South Wales Police Force would be able to provide assistance when it came necessary for them to give evidence to the court. As mentioned, no application was made to this court for subpoenas to issue to compel F1 and F2 to give evidence. In the light of that evidence it must be concluded that the appellant made a deliberate forensic choice not to make any effort to subpoena F1 and F2.

198 Section 79C(2) provides that the qualified person 'must' be called as a witness unless one or other of the conditions has been met. In my opinion, the appellant did not establish that there was any lack of success in finding F1 and F2. On that basis, the relevant statements in the transcripts of evidence of F1 and F2 may not be admitted into evidence pursuant to s 79C(1) because s 79C(2) has not been complied with.

199 The appellant also relied upon s 79C(2a) which is set out above. The transcripts are 'business records' as defined in s 79B because 'business' includes the business of any governmental body: see Cavill [39]; Nye v New South Wales [2002] NSWSC 1268 [10]; [2002] NSWSC 1268; (2002) 134 A Crim R 245 [6] - [10]; Thomas v State of New South Wales [2007] NSWSC 160 [4] - [11]. The opening words '[n]otwithstanding subsection (2)' means that the transcripts could be tendered without calling F1 and F2 and s 79C(2b) puts this in positive form stating that where a statement referred to in s 79(2a) is made by a qualified person that person 'shall not' be called as a witness 'unless the court otherwise orders'.

200 In addition, s 79C(6) confers a discretion on the court to reject a statement if the probative value of the statement is outweighed by the consideration that the admission of the document may create 'undue prejudice' or 'confuse the issues'. In my opinion, the respondent would be prejudiced unduly by the lack of opportunity to cross-examine F1 and F2. The issues would be confused by the receipt of transcripts which did no more than show that F1 and F2 were prepared to say on oath, that statements that they made on oath at the trial were not true and which transcripts gave generalised and ambiguous evidence about the role of the Perth detectives. The appeal court is required to perform its role of assessing the credibility of the witnesses and the cogency of the explanations they gave for their recantation, therefore appellant should have provided the court with the opportunity of seeing and hearing F1 and F2 give evidence. As McLure JA said in Cavill at [41], 'the preservation of the primacy of direct oral evidence on central issues in criminal cases should be preserved save in exceptional circumstances, as in the Beamish case'.

201 Pursuant to s 79C(6) I would therefore reject the proposed tender of the transcripts of evidence of F1 and F2. Although it is not therefore necessary to do so, I would otherwise have ordered that F1 and F2 be called as witnesses pursuant to s 79C(2b) before the statements in the transcripts were admitted under s 79C(2a). It is clear that the appellant deliberately chose to proceed without attempting to subpoena and call F1 and F2. The appellant has therefore chosen to have the court make a decision based on that course.

202 In conclusion, the statements in the transcripts are not admissible under s 79C(1), and even if the requirements of s 79C(2a) were satisfied, I would, in the exercise of the court's discretion conferred by s 79C(6) reject the statements.

The strength of the circumstantial evidence against the appellant

203 Finally, I will make an assumption that my decision to refuse an extension of time and my decision that the statements in the transcripts of F1 and F2's evidence at the Royal Commission are not admissible or should not be rejected are wrong. I will therefore assume that an extension should be granted and the statements admitted.

204 It is then necessary to ask whether there is a significant possibility that in the light of the fresh evidence and the evidence given at trial that a jury acting reasonably would have acquitted. The evidence of F1 at the Royal Commission could have impacted on the evidence of DS Higgins or DSC Staltari. F2 said that he had no discussion with Higgins or Staltari about the evidence that he fabricated. He said that his instructions came from F1. As to F1, he said that there was a 'conversation between myself and F2 and another New South Wales detective and the Perth detectives as to how this would occur and it was worked out and then we arranged for F2 and the other detective would give Coffman a ... short, sharp one'. I do note out of fairness to DSC Staltari that the evidence is unsatisfactory in its generality because there was also evidence that 'Staltari didn't know'.

205 If that evidence had been given at trial it would have been open for a reasonable jury to have concluded that DS Higgins at least had been party to an agreement with F2, for F1 and F2 to fabricate evidence of admissions. That would mean that it would have been open to the jury to accept the evidence of F1 and from there to conclude that the appellant should be believed when he said at trial that he made no admissions to the police. I should also note out of fairness to Detective Dowding that he was not given the opportunity of commenting on the Royal Commission evidence of F1 and F2. His evidence was that the appellant made the incriminating comment about the fingerprints being found on the newspaper in the car.

206 Nevertheless, I will proceed on the basis that a jury acting reasonably would have concluded that the appellant made no admissions of any kind. It is then necessary to examine the circumstantial evidence against the appellant. In doing so I will assume that if the police had not given evidence or if F1 and F2 had given the evidence they gave at the Royal Commission, the jury may have accepted such explanations the appellant offered for some of the circumstantial evidence. A jury cannot be satisfied beyond reasonable doubt on circumstantial evidence unless no other explanation than guilt is reasonably compatible with the circumstances. It is important to bear in mind that in considering a circumstantial case, all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence: R v Hillier [2007] HCA 13; (2007) 228 CLR 618 [46] (Gummow, Hayne and Crennan JJ). It is an error to take each aspect of the circumstantial evidence and assess it separately from the rest of the evidence. In other words, a circumstantial case is not to be considered piecemeal: Hillier [52]; R v Keenan [2009] HCA 1; (2009) 236 CLR 397 [128] (Kiefel J) (Hayne, Heydon and Crennan JJ agreeing). It does not matter that some of the circumstantial evidence is 'weak': Festa v The Queen [2001] HCA 72; (2001) 208 CLR 593 [14] (Gleeson CJ).

207 There was an overwhelming circumstantial case against the appellant if the fingerprint evidence is taken into account. However, even if the fingerprint evidence is ignored, the police evidence about the appellant's alleged admissions is disregarded in its entirety, and the appellant's explanations as were offered about the circumstantial evidence accepted, there remained a strong circumstantial case against the appellant and in light of it there was no significant possibility that a jury acting reasonably would have acquitted the appellant. This is because there is no dispute even on the appellant's case, that:

(a) he was present at Ms Finn's house with Moss on the day that the offences were committed;

(b) Moss had information from which it may be inferred that he knew of the movements of the bar manager and his banking habits;

(c) even though examination of hairs is an imprecise method of identification, hairs with the characteristics and colour 'exactly resembling' samples of the appellant's hair were found in the helmet;

(d) the helmet was found with the keys which fitted the getaway car and with a sawn-off rifle;

(e) the appellant flew with Moss and Ms Finn to Sydney on the evening after the offences were committed;

(f) the appellant was prepared to and did fly on a ticket under the false name of 'Peters';

(g) the appellant booked a one-way ticket to Los Angeles in Sydney;

(h) the appellant purchased a vehicle in the United States only a few days after the robbery under a false name; and

(i) the appellant had previously committed two offences of armed robbery.

208 I would refuse the appellant's application for an extension of time in which to appeal.