Alibi
106The appellant initially instructed counsel in 2008 that he was not present at a number of the alleged crime scenes (counsel's preliminary advice, 5 August 2008 at appellant's submissions p 98). The appellant later instructed counsel that he did not have an alibi. In relation to that matter, Mr Webb said in his affidavit of 14 June 2011 -
"9. I cannot recall whether it was in the conference of 21 August or 9 October at Chambers that I raised the issue of alibi with [the appellant]. This occurred in one of these two conferences.
10. I said to [the appellant]: 'Mr C in relation to any of the matters that you are aware of is it the situation that you may have in fact been somewhere else, other than the place where the alleged conduct is said to have occurred?' Mr C said: 'Not really. All of the allegations basically relate to the area in which I lived and many of the allegations relate to things said to have happened in my own home'. I said: 'You need to think clearly about this issue because if you are going to raise any issue going to alibi Mr Roff needs to know well before any trial. An alibi means that you are saying that when something happened you were in fact somewhere else, positively identifying where it was that you were in terms of place and time. Mr Roff needs to provide notice to the Crown as to any issue of alibi. Alibi can't be raised on the run. It requires notice to the Crown so that the police can make enquiries. Do you understand that?' Mr C said: 'Yes but I don't have an alibi because I was living in the area where these things are said to have happened and many of them happened on the Crown case in the house that I was living at. So no I don't have an alibi for any of the matters that I am aware of.'
11. The issue of alibi was raised by me in conference and not by [the appellant]."
As a result of those instructions, no alibi notice was ever served. The appellant was present in court when counsel told his Honour that he was not running alibi (AB1863, 1865-1866) and there is no record of any complaint made by him at the time.
107The appellant submits, at appellant's submissions p 80, that the two matters where he would have relied upon alibi were in respect of counts 2 and 17.
108Count 2 involved DM staying at the home of the appellant's mother in Rozelle. The appellant said that he stayed that particular night at his sister's house nearby. He said that SC, the friend of his son who had gone to Sydney with them, could corroborate this.
109It was never alleged, nor was it the Crown case, that the appellant had stayed the night at his mother's home. The evidence of DM (AB688-689, 764) was that he awoke just as he was ejaculating to find the appellant giving him oral sex. The appellant then left the room. In cross-examination, DM said " He may well have left after that happened, but what I said was true, that's a fact. That's what happened he was there and that was him". No statement was ever obtained from SC, nor was he subpoenaed or required to be called in the Crown case by the defence.
110Count 17 involved DB being sexually assaulted in the appellant's car. DB's evidence (AB1293-1299) was that the offence occurred after they had left JR with JR's stepfather. The appellant said that JR would be able to give evidence that DB had stayed that night with him and his stepfather and that the offence could not have occurred.
111Police obtained a statement from JR on 5 May 2009, in which he said that the appellant had already seen him and had obtained an affidavit from him. Both the police statement and the affidavit obtained by the appellant are annexures to the affidavit of Ms Boulous sworn on 29 September 2011. The statement made by JR to the police and that obtained by the appellant are quite inconsistent on this issue. The statement made by JR to the police does not exclude the offence in count 17.
112The police served on the defence a copy of the statement made by JR and also a copy of the affidavit which the appellant had obtained from him. The witness was made available, but was not required to be called by defence counsel.
113Mr Webb referred to those matters in his affidavit of 4 October 2011 as follows -
"5. On the issue of alibi, [the appellant] gave specific instructions prior to the trial that he did not have an alibi available to him of which he was aware. In respect of count 2, at [the appellant's] mother's place at Rozelle, [SC] did not in my view raise alibi. [SC] was present at the house overnight, with the question at trial being whether or not [the appellant] returned to the house during the night (as [the appellant] instructed me that he was staying at his sister's house nearby, and returned the following morning bringing croissants for breakfast).
6. [JR] was made available by the learned Crown prosecutor at trial and was available to be called at the defence request. [the appellant] was advised of this matter during the course of the trial. I expressed a concern in the context of the trial raising public justice counts, that [JR] had previously been approached by [the appellant] to provide a statement. I raised with [the appellant] the issue that this matter might be dangerous. [the appellant] then indicated that he did not require [JR] to be called. Otherwise [JR] had initially been raised by [the appellant] as a prospective witness on the issue of character, not alibi."
Mr Webb was not cross-examined as to alibi by the appellant in the appeal.
114The advice which counsel provided to the appellant in relation to JR was forensically sound. Any evidence from SC would not have provided an alibi. The appellant has failed to establish that he had an alibi defence available and that his case at trial was damaged by counsel's failure to raise that issue.
115This sub-ground of appeal has not been made out.
(c) Failure to call upon Crown witnesses for cross-examination
116No submissions were made by the appellant specifically directed to this ground of appeal. In any event, the ground of appeal is not made out. Where appropriate, the Crown witnesses were vigorously cross-examined. Consistently with his evidence, however, counsel was careful to avoid referring to the TR2 proceedings and the Port Macquarie proceedings in that cross-examination.
(d) Failure to call upon defence witnesses to give evidence
117The appellant's complaints in this regard have already been dealt with in respect of the matters raised in sub-ground (b) above.
118This sub-ground of appeal has not been made out.
(e) Failure to defend the appellant with respect to the aspersion made by his Honour before the jury that the appellant may be a "MIND READER".
119This is a reference to an observation made by his Honour in the course of the trial at AB1970. The appellant was being cross-examined. The context of his Honour's observation was -
"CROWN PROSECUTOR: Q. In the first sentence of that letter you say that SB has been living with you for twelve weeks?
Appellant: A. Yes.
Q. So it would be correct to say that he was living with you in April 2004 wouldn't it?
A. Well I believe what I should have put is - no - if you read my letter, "SB has now been in my care for some twelve weeks". Probably I should have put approximately twelve weeks and I can give you the statement here that gives you the exact date SB came into my care, the day I took him to DOCS, you've got it in your files Miss.
HIS HONOUR: No, no please Mr C.
APPELLANT: Sorry.
HIS HONOUR: Don't volunteer things that you say people have got because they may not have them - I don't know.
APPELLANT: They served on you your Honour.
HIS HONOUR: No, you may be a mind reader for all I know but you can't keep on asserting that people have got things, right. Mr C. I am not going to ask you again. I'm going to have to cut you off because it's not an answer to the question.
APPELLANT: Yes, sorry.
HIS HONOUR: You're not answering the question, right.
WITNESS: Okay.
CROWN PROSECUTOR: Q: I understand you agree that you wrote a letter to DOCS on 1 July 2004.
A. Yes.
Q. Saying that SB had been in your care for some twelve weeks?
A. That's right, yes.
HIS HONOUR: And by that you mean approximately twelve weeks?
A. Yes.
Q. In answer to the Crown, can he find a document that assists him to remember the date that SB came into his care, Madam Crown?
CROWN PROSECUTOR: Well yes.
HIS HONOUR: Right, without telling us what the document is, see if you can find the relevant document there in fairness to the earlier answer you gave." (AB1969.33 - 1970.31)
120During the appellant's evidence his Honour had warned him (for his own benefit) not to volunteer information that was not responsive and to listen carefully to each question (AB1885, 1922, 1924, 1925, 1951, 1958). The appellant did not heed those repeated warnings. The comment by his Honour at AB1970 was made against that background. Even following this comment by his Honour, the appellant continued to volunteer information (AB1978, 1979, 1983, 1998, 2009, 2010 and 2014).
121The intervention of his Honour was designed to assist the appellant, not to belittle or demean him in the eyes of the jury. When using the expression "mind reader", his Honour was doing no more than attempting in a perhaps colourful way to direct the appellant that he should only answer the question which he was asked and not try to anticipate future questions.
122Given the circumstances in which his Honour made this comment, there was no occasion for counsel to intervene. On the contrary, intervention by counsel may well have been counter-productive and have sent a message to the jury which was adverse to the appellant's interest.
123This sub-ground of appeal has not been made out.
(f) The failure to put exculpatory statements and/or documents before the Court and to the various Crown witnesses as outlined in the submissions.
124This has already been dealt with in relation to the specific issues identified in sub-ground (b). The concern of counsel (and it was a legitimate concern) was that the production of too many exculpatory statements and videos would strengthen the inference that the appellant was able to control and manipulate young persons by getting them to sign statements which he had prepared and on most occasions witnessed. This would be particularly dangerous in relation to the public justice counts; it would also be dangerous in relation to the other counts as showing the appellant's influence over the young persons.
125Counsel's decision to rely upon some exculpatory statements and not on others was forensically sound, and the appellant has failed to establish that the refusal by counsel to put all available exculpatory statements and videos before the Court damaged his case.
126This sub-ground of appeal has not been made out
(g) Failure to properly and/or adequately examine the appellant in chief and/or in re-examination to establish his innocence with regards to the state of the evidence.
127It is clear from the affidavits of Mr Webb and Mr Roff that a comprehensive proof of evidence was prepared before the appellant gave his evidence and that discussions took place with the appellant in relation to that proof before he gave his evidence. Mr Roff in his affidavit of 14 June 2011 said -
"34 On or about 11 June 2009 I received from Dr Webb a draft proof of instructions in relation to PFC. He said to me words to the effect of "Have a look at this and see if it accords with your recollection of his instructions. We will go through it with [P] downstairs and see if he agrees". I did not make any suggested amendments as it appeared to me to accord with the instructions provided by PFC. I do not recall any amendments or corrections subsequently being made by PFC. These instructions were the result of having reviewed the material provided by the prosecution and PFC, as well as having spoken with PFC in great detail over numerous occasions."
128The evidence in chief and in re-examination of the appellant is fully consistent with the case for the defence which was put to the complainants and the Crown witnesses in cross-examination. The presentation of this evidence was, however, marred by the appellant's tendency to give non-responsive replies to questions and to volunteer information. The reasons why no evidence was led concerning the TR2 proceedings and the Port Macquarie proceedings have already been given.
129This sub-ground of appeal has not been made out.
(h) Failure in general to defend the appellant to a professional standard having regard to all matters raised in these submissions, inter alia, no proof of evidence.
130A proof of evidence was prepared and the structure of the evidence in chief led from the appellant is consistent with the existence of such a proof of evidence. At para 22 of his affidavit of 14 June 2011 Mr Webb set out the philosophy which underpinned the defence case and how he explained that to the appellant. He advised the appellant that he intended to run the defence case in the following way -
Where the appellant had made exculpatory videos in respect of any of the complainants, counsel intended to rely on that video only as the best and most transparent record of his not engaging in sexual misconduct with that person.
That he would not rely upon other evidence unless in the context of the trial and in his forensic judgment there would be a benefit to the appellant. Counsel explained that there was a limit that a jury would reach in terms of absorbing all of the statements and documents which the appellant had prepared and that at some point the number of videos and statements might look as though the appellant had something to hide.
That he would not tender all of the material that the appellant wanted him to nor would he ask questions in cross-examination that he did not think would advance the appellant's case.
131The course adopted by counsel in this respect was forensically sound. It reflected the fact that the public justice counts were intricately bound up with the sexual assault counts. It also reflected the position in which counsel was placed by the instructions, against his strong advice, that there should not be separate trials for each complainant; while the appellant apparently had in mind that dealing with all matters together would assist his contention that the complainants had conspired to bring false accusations against him, the danger in the course was very real and it required careful handling. Most of the material the appellant relied upon to suggest that he had been "set up" came from statements or videos taken by him from the complainants or other young persons. The more the appellant produced such statements, the greater was the risk that the jury would conclude that the appellant was able to control the complainants and other young persons by getting them to sign them.
132Counsel was also rightly concerned about some of the material in the brief and other material which the appellant apparently had in his possession, but which he had not provided to counsel or Mr Roff. Some of that material would properly be regarded as child pornography. The approach to that material, which counsel correctly took, was that he would not tender it in the trial unless he was able to see some forensic advantage. One of the problems faced by counsel and the appellant was that even though the appellant claimed that some of the pornographic material was prepared by the complainants to "set him up", the only person who ever produced such material, either to the police or to the Court, was the appellant himself. This left the appellant open to the inference that he had created it.
133In relation to the cross-examination of the complainants, it is apparent from the transcript that they were cross-examined at length as to the deficiencies in their evidence and the lack of immediate complaint. (We refer to this also at [366]-[367] below. Some of the complainants were giving evidence at trial twelve years after the events in question. Nevertheless, it is also apparent from the transcript that a number of the complainants found giving evidence about what had occurred quite traumatic.
134A number of the complainants found it difficult to be accurate with the dates when various offences occurred. The trial judge directed the jury that this lack of particularity or any change in the dates on which the offences were said to have happened, was a matter which could be taken into account in assessing the credibility of the particular complainant. On the other hand, his Honour said that the jury was entitled to take into account that the offences occurred at a time when the complainants were very young and that there was no evidence that they were keeping a diary or had any reason to record precisely when these events occurred.
135The judge directed the jury on the issue of delay and how it operated to disadvantage the appellant and also how it impacted on the credibility of the complainants. This was a strong direction and assisted the appellant. There was no occasion for counsel to ask his Honour to modify that direction in any way. Nevertheless, in each case the complainants gave reasons why they delayed in reporting the matter to the police. The acceptance or rejection of this evidence was a matter for the jury. It did not and could not reflect upon the competence of counsel in his representation of the appellant.
136The cross-examination of the complainants demonstrates that counsel identified and relied upon inconsistencies in the evidence of the complainants with a view to challenging their credibility. In some cases he relied upon inconsistencies between the versions given by the complainants in evidence at the trial and on other occasions he relied upon the appellant's instructions as to alleged inconsistencies. It is apparent from the cross-examination of the complainants that they were fully tested on these issues.
137This sub-ground of appeal has not been made out.
The admission by counsel that he had failed in his duty to the appellant
138The appellant submitted in his Ninth Supplementary Submissions (appellant's submissions p 905) that at the end of the trial counsel had admitted that he had failed in his duty to the appellant. There was a background to the exchange between the trial judge and counsel on which he relied. On more than one occasion in re-examination the appellant had stated in open court that he consented to showing his private parts to the jury. Despite the efforts of counsel to control him, the following occurred at AB2023 in the presence of the jury -
"APPELLANT: Mr Webb, I consent to showing my private parts to the -
WEBB: Sir is there anything else you wanted to say about that document?
A. No about the other matter that we discussed. I'm quite happy to show my private parts to the jury -
WEBB: Just a moment.
WEBB: There's no further questions arising in re-examination.
APPELLANT: Mr Webb, I've decided I'm quite happy to do that. I've put the embarrassment aside. And I'm quite happy to display it and I think that has to be done.
WEBB: Would you just be quiet Mr C thank you.
APPELLANT: Mr Webb I have to do that, that's my instructions."
139The appellant relied upon the subsequent part of the trial transcript -
"HIS HONOUR: Mr C I'm going to give you an opportunity to speak to your barrister in a moment privately, not in open court and that's in fairness to you but Mr Webb is endeavouring to look after your interests and I just want to hear what he has to say. Yes Mr Webb?
WEBB: In my submission in light of the way that it has emerged and the particularity of the utterance concerning I so instruct the wand waving aspect that that has without seeking to invest it with any form of humorous taint in my submission the situation it is sought to make medical investigations concerning this. Your Honour would bear in mind he is a man with five children off the bat but -
HIS HONOUR: What, which is information he volunteered.
WEBB: That's so and given the way that it has been raised and also some of the issues which arise in Regina v Takeo and any sense the jury might have that there's not a united and faithful approach in terms of the legal advisers of the client in my submission application is made to immediately inquire of the appropriate medical practitioners who may be able to shed some light on this issue.
HIS HONOUR: That's why I'm raising it because it is quite clear that if I can use a colloquialism both in the context of what was not said by your client in cross-examination and the further information he provided in re-examination, that your client has I don't mean this critically of him, but a "bee in his bonnet" about a particular aspect of the matter and I can't ignore it as much as I can't ignore an elephant sitting in the room. So as much as someone or anyone would wish it to go away or not go away, the truth of the matter it has been raised with the jury and that's a matter that needs to be addressed. Can I ask this question of you and if you decline to answer it I would fully understand but are you in a position to tell me what the character of the issue is?
WEBB: Yes your Honour, as I apprehend the position, Mr C indicates that he at times material to the allegations, particularly the anal/penile allegations he was impotent or unable to sustain a erection by reason of some medical aspect, the onset of which occurred ex post facto to the five children." (AB2027-2028) (emphasis added)
140In subsequent discussions between counsel, his Honour and the prosecution it was agreed that the appropriate way to establish any suggestion of impotency was by reference to medical evidence, not by reference to the assertions of the appellant. After seeking instructions, counsel advised the Court as follows -
"WEBB: A decision has been made not to pursue the matter any further, to leave it as it presently stands and accordingly I'm in a position to close the defence case." (AB2037)
141The issue raised by the appellant at the conclusion of re-examination had been the subject of advice and specific instructions (Mr Webb's affidavit of 14 June 2011, pp 24-26, 50-51). The outburst by the appellant clearly came as a complete surprise to counsel.
142The appellant relied on the matter we have emphasised in the passage last set out as an admission of failure in duty. In the full context, the statement by counsel is not an admission that he failed to do his duty by his client. What counsel was concerned about was an impression that the jury may have formed because of the conduct of the appellant, that there was some division of opinion between the appellant and counsel. The exchange between counsel and the trial judge could not in any way be regarded as an admission by counsel that he had not properly looked after the interests of the appellant.
143The written instructions disclosed that the appellant provided counsel with frequent and detailed instructions throughout the course of the trial, setting out not only matters that he wanted addressed but also specific questions that he wanted asked of certain witnesses. Some of these instructions were cast in mandatory terms. These instructions were not binding on counsel. The appellant was aware that he could terminate counsel's retainer at any time but specifically chose to continue with his representation, notwithstanding the decisions made by counsel during the trial, many of which are now the subject of complaint by the appellant.
144Counsel was entitled to exercise his discretion and to take whatever forensic or tactical decision he thought best in the circumstances. It is clear that in the light of the instructions not to seek separate trials, counsel faced a very difficult task. In the context of making appropriate forensic and tactical decisions in this case, counsel had to have regard to the risk associated with the possible disclosure of the appellant's prior convictions. Counsel also had to deal with the appellant's inability or unwillingness to understand the significant prejudice to his case had counsel followed all of his instructions.
145Ground of appeal 1 has not been made out.
Ground of Appeal 9 - Fresh and/or new evidence as outlined herein was never put before the Court which led to a miscarriage of justice, inter alia, counsel did not know the "full carrot video" existed and had never seen the "Todd Ellis" video.
146It is convenient to deal with this ground of appeal in proximity to ground of appeal 1.
147The appellant's submissions in relation to this ground of appeal are set out in Part B of his Eighth Supplementary Submissions (appellant's submissions p 900). The appellant submitted that all of the material he referred to in the submissions constituted "fresh evidence" on the basis that it was "concealed", not only by counsel but also by the police and by the Crown. The appellant submitted that because counsel had not seen the "full carrot video" or "Todd Ellis video" that the trial miscarried and the appeal should succeed on that basis.
148A preliminary, but important issue is whether any of the material constitutes "fresh evidence". The principles on which fresh evidence may be admitted on a conviction appeal have been considered on a number of occasions: for example, R v Gallagher (1986) 160 CLR 392, Mickelberg v The Queen (1989) 167 CLR 259; R v Abu-Chabake [2004] 149 A Crim R 417 and GAR v R (No 1) [2010] NSWCCA 163 at [26].
149For evidence to be fresh, it must be evidence that was not available at the time of trial. It is not contended by the appellant that any of the material upon which he now seeks to rely was not in existence or was not within his knowledge, or not available, to be used at trial. The real complaint is that his counsel or the Crown did not adduce the evidence or chose not to rely upon it.
150In Gallagher the following statement of principle by Rich and Dixon JJ in Craig v The King (1933) 49 CLR 429 at 439 was referred to with approval -
"A Court of Criminal Appeal has thrown upon it some responsibility of examining the probative value of the fresh evidence. It cannot be said that that a miscarriage has occurred unless the fresh evidence has cogency and plausibility, as well as relevancy. The fresh evidence must, we think, be of such a character that, if considered in combination with the evidence already given upon the trial the result ought in the minds of reasonable men be affected. Such evidence should be calculated at least to remove the certainty of the prisoner's guilt which the former evidence produced. But in judging of the weight of the fresh testimony the probative force and the nature of the evidence already adduced at the trial must be a matter of great importance."
151In Mickelberg the test was expressed at 310 as -
"There is no very precise formulation of the quality which must attach to fresh evidence before it will ground for a successful appeal. It has been said that it must be "credible", "cogent", "relevant", "plausible": See, e.g. Gallagher ; Craig v The King ; Ratten ; Lawless. 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)." (footnotes omitted)
152In accordance with earlier directions in this Court, the appellant gave notice that he wished to tender the following items as "fresh evidence" on the appeal. In relation to each item of evidence in the absence of full compliance with the earlier directions, he was directed by the Court (T40, 24 October 2011) to indicate what it showed and what should have been done with it by counsel at trial. The "fresh evidence" was -
(i) A video of SB masturbating on the chair in front of a computer.
(ii) A CD containing photographic images (which could be characterised as child pornography) which was labelled "Copy of [S's] fake pictures behind TV" and "[S's] music".
(iii) A CD entitled "Car Cam phone calls".
(iv) A video entitled "Dean - Tim".
(v) A full version of the "carrot video".
(vi) Two floppy disks and a CD copy containing photographic images (which could be characterised as child pornography) which were labelled "set up [P] 1998".
(vii) A video described as the "Todd Ellis video".
153Leaving aside that this evidence was not "fresh", there are other reasons why the tender of this evidence should be rejected.
154In relation to item (i), the appellant sought to answer the questions posed to him by the Court by saying -
"Counsel should have put it before the Court because it went to the motive why SB was setting me up, or one of the motives why SB was setting me up". (T41, 24 October 2011)
This was not a response in accordance with the direction of the Court. Moreover, the first five minutes of this video was shown to Mr Webb in cross-examination and he denied that he had ever seen it before.
155Since this video was not shown to Mr Webb before or during the trial, it is not open to the appellant to now argue that a copy of the video should have been used in the trial. In any event, from the limited description provided of its contents, and from the brief part of it which was viewed by the Court, the video did not in any way satisfy the tests set out in Gallagher and Mickelberg.
156In relation to item (ii), in answer to the questions posed by the Court the appellant said -
"Counsel should have put to SB that he'd made the first disc or both discs were made by him, the CD2, Copy of [S's] Fake Pictures Behind TV, was specifically made to set me up and SB refers to this in his retraction statement of 6 December 2006." (T41, 42, 24 October .2011)
157The appellant's response did not answer either of the questions put by the Court and did not provide a basis for the tender of that item. There was the added difficulty that SB had refused to acknowledge that he had signed the statement of 6 December 2006. Accordingly, the Gallagher and Mickelberg tests are not satisfied and the tender should be rejected.
158In relation to item (iii), the appellant said -
"Well SB's evidence was that he rang from Casino telling me I couldn't use the videos in evidence, where S's telephone conversations from Casino are that he's trying to borrow money off me and he gives the account details, so clearly this went to the credibility of SB and to Ms Crystal Egan, that they both lied about that phone call. (T42, 24 October.2011)
159The background to this item is set out above. It was faked, and for the reasons earlier set out it is clear that counsel's decision not to rely upon the item was forensically sound. Moreover, the probative value of the item was marginal at best and would have had no effect on the outcome of the trial.
160In relation to item (iv), the Appellant said -
"This was one of the most important parts because it relates to DB and an interview I did with him in 2001 where he states that he has been approached by the first complainant, [TR], to set me up and that was my whole case that I'd been set up from the beginning and DB had - that video had to be put to DB as well as [TR]. That's why [TR] had to be called." (T42, 24 October 2011).
161We have earlier referred to the Dean-Tim video. As there described, the potential prejudicial effect of that item, had it been used at the trial, far outweighed any benefit which it might have gained for the Appellant. Counsel's refusal to tender the video was forensically sound. It can not be said that it would have been likely to cause the jury to entertain a reasonable doubt about the appellant's guilt, quite the reverse, or that it satisfies any other test for reception as fresh evidence.
162In relation to item (v), the appellant said -
"Okay, now as referred to in the mandatory questions and in SB's statement that I took from him at Manning River, 3 December 2004, S refers to these three videos and that the short one that was tendered in evidence was made to set me up and that it was a video by his brother, D. So clearly these questions had to be put to SB, as well as DB, that D had made that video.
GILES JA: Made the short one as -
APPELLANT: As well as the long one. DB made the whole carrot video.
GILES JA: Well just on that one, what's the point of the full version rather than the short version?
APPELLANT: Because SB refers, gives details in this 3 December 2004 statement which is also on video. That statement was taken on video where he explains how the video was made.
GILES JA: Let me be a little more specific because we do need to understand this.
APPELLANT: Yes.
GILES JA: What would the full version show which would assist your case which the short version would not show?
APPELLANT: That DB had made the video and that the words on the video were not at the end of the video as S's evidence - S states in his evidence, that at the end of the tape 'Mr C told me to say these words' where it is not at the end of the tape - it's about a third of the way in I believe. So it proves that it's not there. S is relying on just a small piece of the tape which is the set up tape saying 'hey, Mr C told me to say this at the end', and it's not at the end it's about a third of the way in." (T42-43, 24 October 2011)
163We have earlier related the difficulties associated with the "carrot video". The explanation by the appellant to the Court as to why the second or full "carrot video" should have been tendered at trial does not address the difficulties there identified. This is particularly so when count 14 was specifically based on the appellant's possession of Exhibit D, the "carrot video" which was tendered at trial. The tender of an even longer and probably more explicit "carrot video" would have done nothing to advance the appellant's case. It appears that the appellant eventually saw the point of its tender on appeal as showing that SB was incorrect in saying that he had been told by the appellant to refer to the appellant coming at the end, because that was not said at the end but part way through. We do not regard that as satisfying the requirements for admission of fresh evidence.
164In relation to item (vi), the appellant said -
"Yes. Okay, now in 1998 after I'd reported [CB] to the police for the serious assault and after I'd caught DM on a security video, hidden video, masturbating at the computer they made these fake pictures to set me up in 1998 and that was the White Bridge High photographs that I tendered before Judge Norrish on 16 July and that is why my instructions to Mr Webb put the pictures and put the White Bridge High photos into evidence so that they can freely see that I'd been set up because DM denies the pictures were made and [CB] says they were.
So that is basically those White Bridge High photos had to go in to see that - to show that hey, DM says these were never made, they're not real, and [CB] says they are real. But they're not, they're fake photos that [CB] had made up with DM to set me up in 1998." (T43.33, 24.10.2011)
165While the appellant's explanation provides no basis for the tender of this item, some information as to its content can be found elsewhere in the appeal papers. Items were produced by the appellant at his bail application following the trial, and the Crown arranged for the contents of the floppy disks to be transferred to a DVD (AB2292-2298). The transcript of the bail application reveals that many of the images on these floppy disks were identical to those on other CDs produced by the appellant. Although the appellant claimed that the images on these disks were made by CB and DM in 1998 in order to set him up, he conceded in his evidence on the bail application that neither CB nor DM had ever produced these disks or photographs to anyone (AB2297). The source of these disks appears to have been the appellant. From what was said on the bail application, there appears to be nothing on the disks to support the appellant's assertion that they were made by CB or DM, or that they were made with the intention of setting him up. No basis has been established by the appellant for the tender of this item.
166Item (vii) was the Todd Ellis video. We have earlier referred to it. The Court rejected its tender on the first day of the appeal (T55 - 56, 14 October 2011).
167The appellant has not established any basis for the admissibility of items (i) - (vii). None of those items could be regarded as "fresh evidence". Even if that problem could be overcome, none of the items go close to satisfying the Gallagher and Mickelberg tests in that none of those items, either individually or together, taken in combination with the evidence given at trial, would have been likely to cause the jury to entertain a reasonable doubt about the guilt of the appellant. Two of the items were not provided to counsel or his instructing solicitors and so they cannot be criticised for not tendering them at trial. In relation to all of the items, either individually or in combination, there were or would have been sound forensic reasons for them not being tendered.
168The tender of this evidence on the appeal is rejected. This ground of appeal is not made out.