This conversation between the appellant and his daughter took place some short time after his arrest on the subject charge.
153 When E was cross-examined at trial, this conversation between she and her father was not put to her. And yet the appellant gave evidence of that conversation in chief, the inference being that his legal representatives were aware that he was going to give that evidence.
154 However, it was suggested to E in cross-examination that a week or two after the events in question she had gone and stayed with Ms Toobey. She was asked whether she recalled having a conversation with Ms Toobey about what had happened on 13 and 14 January, to which she responded in the negative. The following exchange then occurred: (WB 474)
"Q. Could it be that you told Tammy that you didn't think that your mother had been raped?
A. I don't remember.
Q. Could it be that you said to Tammy that you didn't think that your mother had been raped because you didn't hear your mother calling out during the night?
A. I don't remember."
155 It was then suggested that E had spoken to her father on the telephone shortly after the events in question about the fact that she had "got into a bit of trouble". E agreed that she had got into trouble but denied that she ever spoke to her father about it. When it was suggested to her that she did speak to her father on the telephone "about that subject", she answered "No". Counsel then indicated to the trial judge that he wished to put to E the content of the telephone conversation between her and her father, but his Honour rejected the question upon the basis that she had denied that there had been a phone call. Counsel did not elaborate, understandably as the jury was present, upon the nature of the conversation he wished to put to the witness.
156 However, as we have noted, there is nothing in E's evidence "about that subject" referred to in the preceding paragraph that would suggest that it was intended to suggest to E that she had told her father that which he had attributed to her in the appellant's evidence referred to at [152] above, namely, that she had informed him that she did not believe that he had raped her mother and that the latter had made it up. These matters further undermine the appellant's case on the appeal.
157 Although, as we have indicated, the appellant abandoned any submission that ER had requested, told or procured her daughter to lie in the evidence she gave at trial implicating her father, nevertheless it was submitted that E's evidence was sufficiently plausible to entitle a jury to find or, at least, infer that ER had permitted her daughter to give or at least acquiesced in her giving sworn evidence knowing that it was untrue.
158 For the reasons we have given, we do not consider that E's evidence is sufficiently credible to justify the jury drawing any such inference let alone making a finding to that effect. We would therefore reject the appellant's submissions based on this aspect of the evidence before this Court. That lack of credibility or plausibility in E's evidence is founded, as we have already remarked, upon what we regard as her obvious and natural desire, particularly when either speaking to her father or giving evidence in his presence, to please him so that his conviction, if it stands, could not be attributed to anything said by his daughter but would be entirely based on the evidence of his ex-wife. In this manner, E achieves a balance between her parents insofar as she understandably desires to retain the affection of each of them.
159 One final matter needs to be considered. During the course of argument counsel's attention was drawn by the Court to its decision in JJT v R [2006] NSWCCA 283; (2006) 67 NSWLR 152, a case in which the facts are not entirely dissimilar to those of the present. In that case the appellant was convicted on a number of counts alleging indecent assault of his niece. His daughter was present when the acts, upon which two of those counts were based, were allegedly committed and who was aged 12 years at the time. She gave evidence at trial and in particular respects her evidence supported the complainant in relation to those counts. However, the daughter had since stated that the evidence she gave at trial was false. It was because of this change in her evidence that a petition was lodged that led to the appeal then before the Court.
160 As in the present case, an earlier appeal (before the daughter recanted on her evidence) was dismissed by this Court. It was submitted on the second appeal that there had been a miscarriage of justice having regard to the evidence which was now available: in particular, although not exclusively, the fresh evidence of the daughter.
161 Like E, the daughter in JJT was 12 at the time of the alleged offences and aged 13 when she gave evidence at the trial. One difference between that case and the present was that unlike the appellant in the present case, in JJT the accused did not give evidence at trial but did so at the hearing of the appeal. He denied the alleged assaults.
162 McClellan CJ at CL, with whom James J agreed and with whom Simpson J generally agreed, referred to the principles relating to the application of s 6(1) of the Criminal Appeal Act authoritatively considered by the High Court in MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606. The faithful application of those principles, his Honour said, required this Court to determine whether, having regard to the evidence received at the trial, together with the evidence admitted in the appeal, the verdict of the jury could not be supported.
163 Although in that case the accused had not given evidence at his trial, his Honour did not give any credence to the evidence given by him on the appeal, describing it as a "ritualistic denial of the allegations". However, of more significance was the irreconcilable conflict between the evidence given by the accused's daughter at trial and her evidence on the appeal. His Honour concluded (at [62]) that in the circumstances the appeal had to be determined on the basis that the daughter could not give evidence that supported either the Crown case or that of the accused. The consequence was that the appeal had to be determined having regard to the evidence at the trial but without the daughter's evidence.
164 The learned Chief Judge considered that the evidence given by the daughter at trial was not convincing. He therefore concluded (at [68]) that the jury could only have placed minimal, if any, weight on her evidence. It had little, if any, evidentiary weight in the Crown case.
165 His Honour ultimately held (at [78]) that a consideration of the evidence before the jury and the additional evidence admitted in the appeal did not lead to the conclusion that there was a significant possibility that an innocent person had been convicted. He therefore proposed that the appeal be dismissed.
166 Simpson J, with whose reasons James J agreed, approached the matter a little differently. In particular, her Honour drew attention (at [103]) to the fact that when dissected, s 6(1) could be seen to provide a number of distinct grounds on which this Court might set aside a jury verdict. The first of these is that the verdict was unreasonable or could not be supported "having regard to the evidence". This, her Honour said, related to the evidence that was before the jury. The second ground is an erroneous decision of any question of law. The third ground is miscarriage of justice which may be established by, amongst other things, fresh evidence which may relate to events prior to, at or postdating trial.
167 In JJT, her Honour considered that only the third ground was relevant to the appeal. In the circumstances of that case, she agreed with the Chief Judge that it was unlikely that the jury would have placed weight upon the daughter's evidence and the fact that they convicted the accused on only some of the charges suggested that they regarded other evidence as having significantly more weight. In any event, she said (at [107]) that:
"the task of this Court is not … to review the jury verdict. It is not to the point that the jury might have regarded [the daughter's] evidence as significant. The task of this Court is to determine whether, in the light of the evidence as it must now be regarded, a miscarriage of justice has been shown to have occurred. The question now is whether, excluding the evidence of [the daughter], the remaining evidence establishes guilt."