F. FURTHER EVIDENCE
305 In addressing the appellant's application to adduce further evidence for the purpose of the appeal, it is convenient to start by identifying the relevant legal principles governing the appeal to this Court and the reception of further evidence by this Court.
306 This is an appeal pursuant to s 24 of the Federal Court of Australia Act 1976 (Cth) (Federal Court of Australia Act). That section in subs (1)(b) provides that this Court has jurisdiction to hear and determine appeals from judgments of the Supreme Court of a Territory (other than the Australian Capital Territory or the Northern Territory). Section 27 of the Federal Court of Australia Act provides that this Court in its discretion may receive further evidence on appeal. Section 28 of the Federal Court of Australia Act provides, relevantly:
(1) Subject to any other Act, the Court may, in the exercise of its appellate jurisdiction:
(e) set aside the verdict and judgment in a trial on indictment and order a verdict of not guilty or other appropriate verdict to be entered.
(f) grant a new trial in any case in which there has been a trial, either with or without a jury, on any ground upon which it is appropriate to grant a new trial.
307 In each Australian State a common form statutory provision exists setting out the grounds upon which a Court of Criminal Appeal must allow an appeal and the circumstances in which it may dismiss an appeal. That common form statutory provision is modelled on s 4(1) of the Criminal Appeal Act 1907 (UK). In the case of this appeal, there is no common form statutory provision.
308 In Chamberlain v The Queen (No 2) (1984) 153 CLR 521, the High Court considered whether the Full Court of the Federal Court had the power to allow an appeal from the Supreme Court of the Northern Territory on the ground that the verdicts were unsafe, unsatisfactory or dangerous. In a joint judgment Gibbs CJ and Mason J (with whom Murphy J agreed) said that it was most unlikely that in 1976 it was the intention of Parliament to confer on the Federal Court an appellate power whose extent was to be determined by reference to the rule of the common law which allowed new trials to be had in certain criminal cases, a rule which was limited in scope and rarely applied and which had been obsolete since the Courts of Criminal Appeal had been established decades before. Their Honours said that it was equally unlikely that it was the intention of Parliament that criminal appeals to the new Federal Court should be governed by the common law rules relating to the grant of new trials in civil actions. Their Honours said at 529:
The true position, in our opinion, is that when the Parliament departed from the usual legislative model, and failed to state the grounds or principles on which the Federal Court is to determine criminal appeals, it conferred on that Court a wide discretion to ensure that justice is done in criminal cases … [s]ince it cannot be supposed that the Parliament intended to make available to the citizens of the Territories an inferior sort of justice, or to require that the Federal Court should affirm a criminal conviction notwithstanding that it had reached the conclusion that a miscarriage of justice had occurred, it must be concluded that the power of the Federal Court, unfettered in terms as it is, was intended to extend at least as widely as those of the State Courts of Criminal Appeal, and thus to enable the Federal Court to set aside a verdict whenever it is of opinion that there has been a miscarriage of justice.
309 Their Honours went on to conclude that the Full Court of the Federal Court did have the power, and indeed the duty, to set aside a verdict where it would be unsafe or dangerous to allow it to stand because in those circumstances a miscarriage of justice would have occurred.
310 Justice Deane delivered separate reasons and he agreed with the principal legal conclusions of Gibbs CJ and Mason J. Justice Brennan was in dissent.
311 In Conway v The Queen (2002) 209 CLR 203, a conviction for murder had been entered against the appellant in the Supreme Court of the Australian Capital Territory. The appellant appealed to the Full Court of the Federal Court. His appeal was dismissed and he then appealed to the High Court of Australia. The High Court considered two issues. First, the Court considered whether the trial judge had misdirected the jury about what evidence could constitute corroboration of the evidence of certain witnesses. The Court concluded that there had been a misdirection. Secondly, the Court considered whether the Full Court of the Federal Court had the power to dismiss an appeal to it from the Supreme Court of the Australian Capital Territory on the ground that no substantial miscarriage of justice had occurred. In that context, the joint reasons (Gaudron ACJ, McHugh, Hayne and Callinan JJ) referred to s 28(1)(f) of the Federal Court of Australia Act and then said at 208:
To construe s 28(1)(f) as authorising the dismissal of appeal on the basis that no substantial miscarriage of justice has actually occurred gives effect to the long established rule of the common law that a new trial is not ordered where an error of law, fact, misdirection or other wrong has not resulted in any miscarriage of justice. Historically, the common law may have made an exception to this rule in the case of evidence wrongly admitted in a criminal trial. But, if it did, this Court and the Federal Court have recognised that the exception no longer has a part to play in the administration of criminal justice in cases where a statute gives a general right of appeal against conviction. Those Courts have self-evidently taken the view that this exception, if it exists at common law, should not shackle the power to dismiss an appeal under a statute conferring a general right of appeal in criminal cases. It is an exception that has little to recommend it in principle and it is hardly conducive to the proper administration of the criminal justice system to set aside a conviction where there has been no miscarriage of justice. To explain why this is so, it is necessary to trace briefly the remedies for setting aside a conviction at common law and the defects of those remedies.
A little later, their Honours said at 220:
In Chamberlain [No 2], Gibbs CJ and Mason J said 'the power of the Federal Court, unfettered in terms as it is, was intended to extend at least as widely as those of the State Courts of Criminal Appeal, and thus to enable the Federal Court to set aside a verdict whenever it is of opinion that there has been a miscarriage of justice'. Their Honours did not refer to the proviso in the common-form criminal appeal statute. But their remarks are consistent with the Federal Court having the power to dismiss an appeal on the ground that an identifiable error in the proceedings did not affect the result of the proceedings. In his judgment, Deane J reviewed the history of appeals from the various Territories. After doing so, his Honour expressed the view that the principle applied in Stokes applied to the grant of jurisdiction to the Federal Court to hear appeals from those Territories. His Honour said that the grant was "subject to the overriding power to dismiss the appeal in any case where it appeared to the Federal Court that, notwithstanding that a point raised in the appeal might be decided in favour of the appellant, no 'substantial' miscarriage of justice had actually occurred. (Footnotes omitted.)
312 The meaning of the proviso in the common form statutory provision was considered recently by the High Court in Weiss v The Queen (2005) 224 CLR 300. The appellant was convicted of murder by the Supreme Court of Victoria. He appealed to the Court of Appeal on the ground that the trial judge had erred in admitting certain evidence. The Court of Appeal relied on the proviso and dismissed the appeal. That Court had said that the correct test for the appellate court was to ask whether, without the wrongly admitted evidence, the jury at the appellant's trial would inevitably convict him rather than asking whether, without that evidence, any reasonable jury, properly instructed, would inevitably have convicted him. The High Court said at 314:
The fundamental task committed to the appellate court by the common form of criminal appeal statute is to decide the appeal. In so far as that task requires considering the proviso, it is not to be undertaken by attempting to predict what a jury (whether the jury at trial or some hypothetical future jury) would or might do. Rather, in applying the proviso, the task is to decide whether a "substantial miscarriage of justice has actually occurred".
A little later, the Court said at 315:
Three fundamental propositions must not be obscured. First, the appellate court must itself decide whether a substantial miscarriage of justice has actually occurred. Secondly, the task of the appellate court is an objective task not materially different from other appellate tasks. It is to be performed with whatever are the advantages and disadvantages of deciding an appeal on the record of the trial; it is not an exercise in speculation or prediction. Thirdly, the standard of proof of criminal guilt is beyond reasonable doubt.
313 The Court said that it is neither right nor useful to attempt to lay down absolute rules or singular tests that were to be applied by an appellate court where it examines the record for itself, beyond the three fundamental propositions mentioned earlier.
314 The Court said at 317:
… No single universally applicable description of what constitutes "no substantial miscarriage of justice" can be given. But one negative proposition may safely be offered. It cannot be said that no substantial miscarriage of justice has actually occurred unless the appellate court is persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused's guilt of the offence on which the jury returned its verdict of guilty.
Likewise, no single universally applicable criterion can be formulated which identifies cases in which it would be proper for an appellate court not to dismiss the appeal, even though persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused's guilt. What can be said, however, is that there may be cases where it would be proper to allow the appeal and order a new trial, even though the appellate court was persuaded to the requisite degree of the appellant's guilt. Cases where there has been a significant denial of procedural fairness at trial may provide examples of cases of that kind.
315 The Court also considered the scope of the proviso in the recent case of Gassy v The Queen [2008] HCA 18 at [15]-[20] per Gummow and Hayne JJ; at [58]-[68] per Kirby J. The remaining legal question relates to the circumstances in which this Court hearing a criminal appeal may receive further evidence under s 27 of the Federal Court of Australia Act. The appellant referred the Court to Gallagher v The Queen (1986) 160 CLR 392 and Mickelberg v The Queen (1989) 167 CLR 259. Gallagher 160 CLR 392 is authority for the proposition that assuming no error at trial, a Court of Criminal Appeal can only allow an appeal if it considers that a miscarriage of justice has occurred by reason of the fact that the evidence now sought to be adduced was not called at trial. In determining that question the three main considerations are as follows:
1. A conviction will not, in the usual case, be set aside if the further evidence was available or could, with reasonable diligence, have been made available by the accused at trial. This is not an inflexible requirement, and as Gibbs CJ noted in Gallagher 160 CLR 392 at 395, there may be cases in which the strength of the fresh evidence may be such as to justify interference with the verdict even though that evidence might have been discovered before the trial.
2. The further evidence must be apparently credible, or at least capable of belief.
3. There must be a significant possibility that the evidence, if believed, would reasonably have led the jury to return a different verdict. This requirement has been expressed in a variety of ways. In Gallagher 160 CLR 392, Mason and Deane JJ said at 402:
The appellate court will conclude that the unavailability of the new evidence at the time of the trial involved such a miscarriage if, and only if, it considers that there is a significant possibility that the jury, acting reasonably, would have acquitted the applicant of the charge if the new evidence had been before it in the trial.
Chief Justice Gibbs referred to this formulation of the requirement and said at 399:
I am in substantial agreement with this statement. However, I would emphasize that no form of words should be regarded as an incantation that will resolve the difficulties of every case. No test can detract from the force of the fundamental principle that the appeal must be allowed if a miscarriage of justice is shown to have occurred.
Justice Brennan formulated the test in the following words at 409-410:
To obtain an order for a retrial, it is sufficient to show that it is likely, not that it is certain, that a different verdict would have been produced if the fresh evidence had been given.
(See Gallagher 160 CLR 392 at 421-422 per Dawson J and Mickelberg 167 CLR 259 at 273 per Mason CJ; at 275 per Brennan J; at 301 per Toohey and Gaudron JJ).
316 The scope of the power in s 27 of the Federal Court of Australia Act in the context of civil appeals has been considered by this Court on a number of occasions. The leading authority is in fact the High Court decision in CDJ v VAJ (1998) 197 CLR 172. In that case the Court considered the statutory equivalent to s 27 in the Family Law Act 1975 (Cth). The Court said that that section mandated a more flexible approach than that dictated by the common law in cases where there is an application for a new trial on the ground of the discovery of fresh evidence. However, McHugh, Gummow and Callinan JJ also said at 202:
The power to admit the further evidence exists to serve the demands of justice. Ordinarily, where it is alleged that the admission of new evidence requires a new trial, justice will not be served unless the Full Court is satisfied that the further evidence would have produced a different result if it had been available at the trial. Without that condition being satisfied, it could seldom, if ever, be in the interests of justice to deprive the respondent of the benefit of the orders made by the trial judge and put that person to the expense, inconvenience and worry of a new trial.
317 In light of those observations, it is understandable that the appellant submitted that in a criminal appeal the relevant principles are those set out in Gallagher 160 CLR 392. We will proceed on that basis because we think the application to adduce further evidence fails even by reference to the principles enunciated in Gallagher 160 CLR 392.
318 We turn now to describe the context in which the appellant seeks to adduce further evidence.
319 In the course of his interview by Detective Sergeant Peters and others on 1 February 2006, the appellant described putting a sheet of plastic over the deceased's body. He was asked where he obtained the plastic from and he said that it was "[f]rom just up the back where they were building" and he agreed that that was where the "building site was". The plastic was just lying on the ground and there was no material on it. Detective Sergeant Peters gave evidence at the trial. During the course of cross-examination, counsel for the appellant asked him whether certain features of the murder were "part of the media publicity and information generally available". For example, he was asked whether it was information generally available that the deceased had been found in the Cockpit Reserve and her body wrapped in black plastic. He said that that information was generally available. It was also known that it was the view of the police that the deceased had last been seen in or in the vicinity of Rooty Hill Road. The extent of the deceased's injuries was known on Norfolk Island. In re-examination, counsel for the Crown asked Detective Sergeant Peters whether the police had ever "put out" in the public domain any view about where the plastic sheet had come from. The following question and answer appears:
Q Had it ever been published publicly, as far as you're aware, as to any particular building site that this black plastic was thought to have come from?
A Not that I can recall.
320 Detective Sergeant Peters said that Mr Cochrane's fingerprints were on the plastic sheet and that there had been reference to that fact at the inquest. Reference had also been made to Mr Cochrane working at the Taylors Road site and other building sites but there had been no reference to the fact that Mr Cochrane was working on the Little Cutters Corn site at or about the relevant time.
321 In the course of his address to the jury, counsel for the Crown said:
There is much in the interview, I submit to you, that indicates some firsthand knowledge about this crime on the part of Glenn McNeill, the accused. …
Now this was all in the context of questions about what was out there in the public domain, what was known to the public about all of this. The fact of that plastic being at a building site in Little Cutters Corn was not in the public domain, yet the accused knows where it came from in the interview …
So the accused says where he got it - from up the back where they were building. That information was not in the public domain. It's a detail that he knows because he was involved in the crime.
322 The trial judge referred to this topic on a number of occasions in his summing up and, in particular, when summarising some of Detective Sergeant Peters' evidence and submissions made by counsel in relation to it.
323 The further evidence relevant to this topic is contained in an affidavit of Mr Geoffrey James Atkinson sworn on 3 December 2007. Mr Atkinson is a solicitor and a member of the firm of solicitors acting for the appellant. He annexes to his affidavit an electronic message to the appellant's counsel from one Dr Jeremy Gans and photocopies of pages from a book entitled Norfolk: Island of Secrets published by Mr Tim Latham in 2005. Copies of three pages of the book are annexed to the affidavit. The first page is page 206 and it contains the following passage:
Of the sixteen Persons of Interest Stevie Cochrane is the only one with a forensic link to Janelle's body. The carpenter's palm prints match two of the prints found on the black plastic. But Cochrane is also the only person Bob Peters has ever admitted to no longer actively pursuing.
Stevie Cochrane and Janelle Patton didn't know each other and no other forensic evidence has been found that links him to the crime. It's not known how his prints got on the plastic but it appears police had concluded the prints were placed there innocently, as part of his trade.
324 The second page is page 226 and it contains the following passage:
While the cars were being dismantled, Bob Peters was also searching a property several kilometres from where Janelle once lived - a flat at the end of a small cul-de-sac known as Little Cutters Corn. It had never been searched before and in 2002 was next door to a house under construction (a building that Stevie Cochrane worked on as a carpenter).
325 The third page is page 227 and in it there is a statement that the investigation conducted by Detective Sergeant Peters was concentrating on "a New Zealand national, a 28-year-old former-TEP who lived on Norfolk Island for two years and left six weeks after Janelle's murder".
326 Mr Atkinson deposes to the fact that on 3 December 2007 he spoke to a Ms Elizabeth Croger at Allen & Unwin and that she advised him that the date of publication and distribution of the book Norfolk: Island of Secrets by Tim Latham was 1 September 2005, that there was an embargo placed upon its distribution until 9 September 2005 and that it was released for retail sale on 9 September 2005.
327 In the course of his submissions to this Court, senior counsel for the appellant said:
… there's no issue between the Crown and I that your Honours can take that this book was published in Australia and distributed in New Zealand. The precise details of where in New Zealand and where in Australia it actually ended up and by how many copies, and so on, is not a matter that's available to the Court to take into account. We don't have any evidence of that material but my statement is correct.
328 In his submissions, senior counsel for the Crown told the Court that there was no issue that the book had been distributed in New Zealand before the date of the appellant's interview by the police, although the number of copies distributed was not known.
329 Mr Cochrane was working on two building sites at or about the time of the deceased's murder. By reference to that fact alone, the black plastic may have come from either of the building sites at which he was working at or about the relevant time. The Crown's submission to the jury was that it was likely that the plastic sheet came from the building site adjacent to the appellant's premises. That fact, so it was submitted, was not in the public domain. In those circumstances, the appellant's statement during the interview that he obtained the plastic sheet from "up the back" was significant because he could only have known that fact if he was the murderer. The appellant submits by reference to the further evidence that the "fact" that the black plastic was likely to have come from the building site adjacent to the appellant's premises was in the public domain before the appellant's interview by the police.
330 A number of general points about the further evidence should be made. First, the Crown made a number of points directed to the question of what the appellant knew about the contents of the book. The Crown submitted that there was no evidence from the appellant that he had read the book or spoken to any person who had read the book. That submission does not assist the Crown because the issue is what information concerning the source of the black plastic was in the public domain and there was no onus on the appellant to prove any particular matter relevant to that issue. There is a good deal more force in the submission that it may be doubted whether information as to the source of the black plastic was truly in the public domain as a result of the publication of the book. The relevant passages in the book are 20 pages apart and there is no express statement in the relevant passages that the black plastic came from a building site upon which Mr Cochrane was working, and that site may have been the site adjacent to the appellant's premises, nor that the police thought that to be the case. A reader of the book would need to read and analyse the relevant passages closely before drawing a conclusion as to the source of the black plastic, or the likely source of the black plastic, and as a practical matter it may be doubted whether the appellant's knowledge as to the source of the black plastic could have resulted, directly or indirectly from the publication of the book. However, in our opinion that is not the proper question and we are persuaded that the publication of the book did mean a fact as to the source, or likely or possible source, of the black plastic was in the public domain. The Crown accepted as much in its written submissions on this topic when it said that it is possible, "to deduce by close analysis of the book that the black plastic may have originated from the building site at Little Cutters Corn or perhaps some other building site worked on by Mr Cochrane." Secondly, this is not a case where the "fact" known only to the person guilty of the crime is established beyond doubt by evidence other than evidence of a statement by the accused. In this case, it is not clearly established by the evidence (other than evidence of the statement by the appellant) that the black plastic came from the building site adjacent to the appellant's premises. It may have come from another building site at which Mr Cochrane was working at the relevant time. However, having said that, the evidence was that Mr Cochrane was working at only two building sites at the relevant time and we do not think there is any doubt that if the information was not in the public domain, a jury would be entitled to use the appellant's statement during the interview as to where he obtained the black plastic as evidence against him. Thirdly, the evidence is not "fresh evidence". The book had been published well before the trial. The distinction between fresh evidence in the strict sense and further evidence is clear: Lawless v The Queen (1979) 142 CLR 659 at 676-677 per Mason J. It is true, as counsel for the Crown submitted, that there is no evidence from the appellant as to the source, if he was not the murderer, of his information that the black plastic came from, or was likely to have come from, the building site adjacent to his premises, or from either the appellant or his advisers as to the inquiries they made prior to trial as to features of the murder which were in the public domain and those which were not. Nevertheless, it seems to us that the proper inference is that neither party was aware of the book and the relevant passages therein until after the trial. Fourthly, although the publication of the book is evidence which undermines the relevant evidence of Detective Sergeant Peters, and, if known, could have been used in that way, it is likely that if known to the Crown the relevant evidence from Detective Sergeant Peters would not have been led.
331 It seems to us that the question for this Court is whether a miscarriage of justice has occurred by reason of the fact that the publication of the book and the relevant passages therein was not called at trial to negate the relevant part of the evidence of Detective Sergeant Peters or, perhaps, to put before the Crown so that the Crown did not adduce that evidence.
332 To determine that question it is necessary to return to the relevant principles stated in Gallagher 160 CLR 392. The first requirement or consideration is whether the publication of the book and the relevant passages therein was available, or with reasonable diligence could have been available, at trial. The book had been published before the trial but, as we have said, it is fair to assume neither party was aware of it or at least of its significance at the time of trial. We do not think the appellant can establish that the publication of the book and the relevant passages therein was not available or with reasonable diligence could not have been available at trial. However, we do not think the application to adduce further evidence should be decided on this ground when it is reasonable to infer that the Crown was not aware of it and would not have led the relevant evidence from Detective Sergeant Peters had it been aware of it.
333 The second requirement or consideration is whether the further evidence is apparently credible, or at least capable of belief. The relevant fact is the publication of the book and the relevant passages therein and that is not disputed. The second requirement or consideration is made out.
334 The third requirement is that the further evidence gives rise to a significant possibility that the jury, acting reasonably, would have acquitted the appellant. We would assume, for the purpose of deciding whether the third requirement is made out, that the relevant evidence from Detective Sergeant Peters about what was in the public domain about the source, or possible source, of the black plastic would not have been evidence before the jury. Having regard to the way in which the trial was conducted, the nature of the further evidence and the arguments put on appeal, that is, it seems to us, the proper assumption. On that basis, we are of opinion that the requirement is not made out.
335 The Crown case against the appellant was a very strong one. It was a case where there was both direct evidence against the appellant by way of the admissions he made during the interview and a substantial body of circumstantial evidence. It is not necessary to repeat all that has been said. We will simply identify the main items of evidence which lead us to conclude that absent the relevant evidence from Detective Sergeant Peters nevertheless there was no significant possibility that the jury, acting reasonably, would have acquitted the appellant.
336 The most incriminating item of evidence against the appellant was his own confession. That consisted not only of what he said during the interview but the appellant's handwritten statement completed at the time of the interview. It is true that it is difficult to reconcile aspects of the appellant's description of the circumstances of the murder with other evidence in the case, such as the injuries sustained by the deceased, but there is no reason to doubt the accuracy or reliability of his confession to the murder of the deceased. We have viewed the videotape of the interview and read the transcript of what the appellant said and we agree with the trial judge that the appellant appeared genuinely remorseful and had a desire to unburden himself of his guilt.
337 There was a substantial body of circumstantial evidence incriminating the appellant. The deceased's body was found partially wrapped in a sheet of black plastic. Two of the appellant's fingerprints from 10 prints were found on the sheet of black plastic. Mr Cochrane's palm prints were found in the black plastic and the evidence was that Mr Cochrane had worked on a building site adjacent to premises formerly occupied by the appellant, the Little Cutters Corn site. Mr Cochrane gave evidence that he had taken black plastic from the Taylors Road site to the Little Cutters Corn site. At the time of the deceased's murder, the appellant had owned and driven a 1984 Honda Civic. Before it was discovered by the police, that vehicle had been abandoned for several years. A number of small glass particles and particles of white and green paint were located in the deceased's hair, on her clothes and on the black plastic. Scientific analysis of the glass particles revealed that the particles originated from a similar source to particles of glass located in the boot of the Honda Civic and to glass later found in the soil next to the premises occupied by the appellant in 2002. In April 2006, layers within the particles of white paint located in the deceased's hair and on the sheet of black plastic were found to be a match with similar particles of white paint in the boot of the Honda Civic. The police took a swab from the inner boot surface of the boot lid of the Honda Civic and it returned a DNA profile, the female component of which was 10,000 million times more likely to have originated from the deceased than another unrelated female chosen at random.
338 The case against the appellant was very strong and we do not think the absence of Detective Sergeant Peters' evidence as to whether the source of the black plastic was in the public domain, or the ability to contradict that evidence by reference to the publication of the book and the relevant passages therein gives rise to a significant possibility that the jury, acting reasonably, would have acquitted the appellant. It follows that we do not think there was a miscarriage of justice.
339 One final point concerning the further evidence must be dealt with. The appellant referred to the fact that the trial judge relied on the fact that the source of the black plastic was not in the public domain in his written reasons for ruling on the voir dire that the record of interview and handwritten statement were admissible. Those reasons were delivered after the trial and, as we understand it, the assertion that the source of the black plastic was not in the public domain would not have been known to the trial judge at the time of his actual ruling. The particular challenges to the trial judge's ruling have been rejected for the reasons already given. The trial judge's ruling is otherwise amply supported by the reasons he gave, even excluding his reliance on (as he understood it) the source of the black plastic not being in the public domain.
340 The appellant's application for the Court to receive further evidence pursuant to s 27 of the Federal Court of Australia Act must be refused.