Consideration
45The principles on which a verdict of acquittal or a new trial will be ordered on the grounds of fresh evidence are relatively well settled. In Ratten v R [1974] HCA 35; (1974) 131 CLR 510, Barwick CJ said (at [518]):
"In every situation the court must decide on the relevance of the new evidence, even in the case of a reference by the Attorney-General such as the present. It must decide its credibility, that is to say whether or not it is capable of belief, both as to veracity and competence in the case of oral evidence, and as to authenticity in the case of documentary evidence. But in some situations, as I shall point out, the court will decide whether it believes the evidence. In other situations it will be enough that, whatever its own view, the evidence is capable of belief, and likely to be believed, by reasonable men.
Having considered relevance and credibility, the court will weigh the cogency of the evidence, having in mind always the evidence produced at the trial. That evidence will be taken in that sense in which, having regard to its verdict, the jury must have accepted it.
For all these purposes the court may see and hear the witnesses of the new evidence, both Crown and appellant being entitled to examine and cross-examine as the case may be. Further, the court will be entitled to receive evidence which tends to support, contradict or weaken the new evidence or the inferences which might be drawn therefrom."
46In circumstances where what is sought is that the conviction be quashed and a new trial ordered, there are three questions that need to be considered. First, is the evidence fresh evidence in the sense that it was not available to the appellant at the time of trial: see Ratten v R supra, at 512; second, was it credible or capable of belief and third, was there a significant possibility that the jury acting reasonably would have acquitted the appellant. These principles were summarised by Kirby J in R v Abou-Chabake [2004] NSWCCA 356 at [63], Mason P and Levine J agreeing.
47In the present case there is no issue as to the freshness of the evidence. It arose out of a conversation which took place after conviction.
48What is required in respect of the second question was considered by the High Court in Gallagher v R [1986] HCA 26; (1986) 160 CLR 392 and Mickelberg v The Queen [1989] HCA 35; (1989) 167 CLR 259.
49In Gallagher v R supra, Gibbs CJ stated the evidence had to be credible or at least capable of belief. He went on to say as follows (at 397, citations omitted):
"There can be no doubt that the Court of Criminal Appeal is required to form some view as to the credibility of the fresh evidence. In some cases the Court of Criminal Appeal will be able to reach a firm conclusion as to whether the evidence is trustworthy or unreliable, but in many cases it will be able to do no more than decide whether or not the evidence is apparently credible, or capable of being believed. Where the fresh evidence conflicts with the evidence given at the trial, and the Court of Criminal Appeal has not heard the witnesses with whose evidence it is in conflict, it will often not be possible to decide whether a reasonable jury would (or might) believe the fresh evidence: cf per Stephen J in Lawless v The Queen . Further, as Mason J pointed out in the same case, the question will not necessarily be whether the evidence is likely to be believed by a jury, because evidence may be sufficiently cogent and plausible to lead a jury to have a reasonable doubt, although the jury might not necessarily prefer it to other evidence with which it is inconsistent."
50His Honour in considering the third question then made the following comments (at 399):
"It seems to me, with all respect, that where the trial was by jury, the accused was entitled to have the question of his guilt determined by the verdict of the jury, and that the Court of Criminal Appeal, in considering the effect of the fresh evidence, should consider what effect it might have had upon a reasonable jury. It is not enough that there is a bare possibility that a jury might have been influenced by the evidence to return a verdict of not guilty. On the other hand, it is too severe, and indeed speculative, a test, to require that the Court should grant a new trial only if it concludes that the fresh evidence was likely to have produced a different result, in the sense that it would probably have done so. I have had the advantage of reading the reasons for judgment prepared by Mason and Deane JJ who suggest that the Court of Criminal Appeal will conclude that the unavailability of the fresh evidence at the time of the trial will have involved a miscarriage of justice if the Court considers that there is a significant possibility that the jury, acting reasonably, would have acquitted the appellant if the new evidence had been before it at the trial. 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. It is only a practical guide to the application of that principle to say that the court will grant a new trial if, having approached the matter with the caution that is always demanded when fresh evidence is produced in a criminal case, and having weighed the credibility of the fresh evidence and considered its cogency in the light of the evidence given at the trial, it considers that a jury might reasonably have reached a different verdict if the evidence had been available at the trial."
51Whilst Mason and Deane JJ suggested the correct approach in the following terms (at 402):
"Regardless of the precise words in which one describes requirements such as 'cogency', 'plausibility' or 'credibility', the ultimate question for decision by an appellate court when considering an application for a new trial on the ground of fresh evidence in the relevant sense, is, as the remarks of Rich and Dixon JJ in Craig indicate, whether there has been a miscarriage of justice at the trial. 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. Obviously, that question can only be answered in the context of, and by reference to, 'the probative force and the nature of the evidence already adduced at the trial'."
52In Mickelberg v The Queen supra, Mason CJ stated the position as follows (at 273, citations omitted):
"The final matter concerns the appropriate test to be applied by an appellate court in deciding whether to set aside a conviction on the ground of fresh evidence. It is established that the proper question is whether the court considers that there is a significant possibility that the jury, acting reasonably, would have acquitted the appellant had the fresh evidence been before it at the trial. This test was endorsed by four of the five Justices in Gallagher v The Queen . Deane J and I considered that the test was best expressed in those terms. Gibbs CJ expressed his substantial agreement with the statement, although his Honour emphasized that 'no form of words should be regarded as an incantation that will resolve the difficulties of every case'. Dawson J said that the court would need to conclude that 'a jury might entertain a reasonable doubt about the guilt of the appellant'. His Honour went on to say that in his view the use of the expression 'significant possibility' did not involve a different standard. I am in agreement with those statements."
Whilst Toohey and Gaudron JJ expressed the following views (at 301) (emphasis added):
"In essence, the fresh evidence must be such that, when viewed in combination with the evidence given at trial, it can be said that the jury would have been likely to entertain a reasonable doubt about the guilt of the accused if all the evidence had been before it ( Gallagher , per Brennan J) or, if there be a practical difference, that there is 'a significant possibility that the jury, acting reasonably, would have acquitted the [accused]' ( Gallagher , per Gibbs CJ and per Mason and Deane JJ). If there is a difference it is not material to the outcome of the present applications. For ease of expression we proceed by reference to the formulation that the jury is likely to have entertained reasonable doubt had all the evidence been before it, noting, in that context, that it is necessary that the fresh evidence be credible in the sense that a reasonable jury could accept it as true, but it is not necessary that the court should think it likely that a reasonable jury would believe it: see Lawless , per Mason J, and Gallagher , per Brennan J, but cf Barwick CJ in Ratten. "
53It should be noted that the formulation by Toohey and Gaudron JJ in Mickelberg was different to that of Dawson J in Gallagher , namely that the jury might entertain a reasonable doubt about the guilt of the appellant. Notwithstanding this, this Court has adopted the approach of Toohey and Gaudron JJ in Mickelberg and stated that there is no practical difference between the formulation that a jury would have been likely to entertain a reasonable doubt and the formulation that there was a significant possibility that a jury acting reasonably would have acquitted the appellant: See R v Abou-Chabake supra at [63].
54Uninstructed by authority, I would have considered that the test of significant possibility imposed a somewhat lower threshold than the test of whether the evidence was such that a jury would have been likely to entertain a reasonable doubt about the guilt of the appellant. However, in the present case the application of either test, in my view, will lead to the same result.
55The evidence is fresh evidence in the sense that it was not available at the trial. The parties accepted it first arose in the conversation to which JM deposed.
56In my opinion, the evidence of JM is credible in the sense that it is capable of belief. Although the Court had an opportunity of observing JM and MH in the witness box, it was not possible in my opinion, to decide more than that the evidence was capable of being believed: See Gallagher v R supra at 397. Having said that, there were a number of difficulties with the evidence of JM which are relevant to the consideration of the question of whether, if the evidence was before the jury, there was a significant possibility that the appellant would be acquitted.
57Turning to the third question I am, however, of the view that if the evidence was before the jury there would not have been a significant possibility of the appellant being acquitted. This is for a number of reasons.
58First, it is by no means clear precisely what MH was referring to in the alleged conversations. She is alleged to have said that both her statements before the Court were made up. She is not alleged to have directly said that she gave false evidence in the Court, although it may perhaps be inferred that was what she was allegedly intending to convey.
59Second and aligned to this point, assuming the jury accepted the evidence of JM as a true recollection, it is not clear what part of MH's statement or her evidence MH was stating to be false. It must be remembered that MH gave evidence at the trial on two issues of importance, namely, that the complainant had complained to her about the first incident and, secondly, that the complainant had complained to her about the second incident. It is not clear whether she was saying she lied about each of these complaints.
60Third, it is not entirely clear from the evidence that MH was saying that she simply went along with what FW and the complainant told her or that she actively participated with them in falsifying the evidence before the Court. JM's evidence was that MH said: "Both of my statements for courts were made up between [FW], [the complainant] and me. I just went along with what [FW] and [the complainant] told me". Although the previous sentence attributed to her would suggest that she was complicit in providing false evidence, there is ambiguity in the last sentence.
61Fourth, it must be remembered that MH denied the terms of the conversation. Once again, although it was not possible to form a view as to her reliability, nothing was put to her which would suggest that her denials were false.
62Fifth, aligned to the fourth matter there are a number of difficulties with the evidence of JM. She admitted her memory was unreliable and that sometimes she could not remember or might not understand what was going on. More importantly, she initially said her grandchildren were not mentioned at all, although later in her evidence she said MH told her she had custody of the children. She admitted MH gave her her mobile phone number and said she could ring the children but said she did not think there was any further conversation about them, something which might seem surprising. Ultimately she said that MH told her that the word around town was that the case had been made up. That, of course, was something different to a statement that MH had been complicit in making up the case.
63Sixth, the inconsistency in the evidence of the complainant and that of MH to which I have referred above (see at [21], [23]-[27]) if anything tends against the suggestion that the story was concocted between MH, the complainant and FW.
64Finally, and perhaps most importantly, the jury had the opportunity of observing the complainant, MH and FW in the witness box and of making an assessment of their credibility. Taking all of the factors referred to above into account, it does not seem to me that the assertions of JM, coupled with the denial of those assertions by MH, would influence the jury such that there would be a significant possibility of an acquittal.
65In those circumstances, leave to appeal against conviction should be granted, but the appeal dismissed.