R v A H K [2001] VSCA 220

R v A H K [2001] VSCA 220 - VSCA 2001 case summary — Zoe

[9]

The affidavit of the solicitor sets out in detail how the statement made by M to him on 30 April 2001 came into existence. Those circumstances might be thought to bear upon the plausibility of the solicitor's evidence that the retractions which he asserts were made by M on that day were in fact made. On 3 January 2001 the solicitor received a copy of the letter ("MGW1") from the applicant's de facto wife. On 20 April 2001 the solicitor, with counsel, attended upon the applicant at Port Philip Prison for the purposes of discussing with him the contents of that letter. As a result of the instructions received, the solicitor, on 26 April 2001, contacted M and arranged for her to attend at his offices on Friday, 27 April 2001 to discuss the letter which she had written to the applicant. When, on 27 April 2001, M did not keep that appointment, the solicitor attended at her place of residence where, following an angry confrontation with M's husband, the solicitor spoke to M outside her premises. During the course of the conversation M agreed to attend his office on the following Monday - 30 April 2001. In compliance with that assurance, M attended upon the solicitor at his offices at 10 a.m. on 30 April 2001. She attended of her own volition and without any pressure being placed upon her. Before commencing his discussion with M, the solicitor advised her that she did not have to say anything to him and that she could have legal representation present if she wished. The solicitor also explained to M that if she changed her version of events from that which she had given at trial she could leave herself open to prosecution for perjury. M signed a document acknowledging these cautions. (That signed acknowledgment was annexed to the solicitor's affidavit as "MGW3".) Thereafter, an interview commenced between the solicitor and M during the course of which the solicitor took contemporaneous hand-written notes of what M told him, and which, if the evidence is accepted, she claimed to the solicitor "constituted the truth". At the conclusion of the interview the solicitor informed M that he would have to reduce his hand-written notes to typed form; and M agreed that she would return on the following day (1 May 2001) to read the draft of the statement prepared, to make such changes as she thought necessary and sign the settled version. According to the solicitor, M then left the office saying "that she had never felt better in a long time now that she had finally told the truth". Notwithstanding, at approximately 2 p.m. on the same day (i.e. 30 April 2001), M rang the solicitor saying that she was not going to come in on the following day to sign the statement.

[15]

Where in this State the Court of Appeal is asked to set aside a conviction pursuant to s.568 (1) of the Crimes Act 1958 on the grounds of "fresh evidence", and where (as in my opinion is the case here) there has been no wrong decision on any question of law or other irregularity at the trial and the verdict of the jury is not unreasonable or insupportable having regard to the evidence at the trial, it is apparent that the Court can only allow the appeal if it considers that a miscarriage of justice has occurred by reason of the fact that the "fresh evidence" was not adduced at the trial. The fundamental question for the Court, in each such case, is whether it perceives that a miscarriage of justice has occurred[1]. In answering this question authorities binding on this Court have laid down three general considerations which should guide the Court in coming to its conclusion. The first of these, although it is not an inflexible rule, is that the conviction will not usually be set aside if the evidence relied on could, with reasonable diligence, have been produced by the accused at his trial. The second and third considerations, which are inter-related, are that the "fresh evidence" is apparently credible or plausible or, at least, capable of belief and, in the view of the Court, is sufficiently relevant and cogent in the sense that, if considered in combination with the evidence already given at the trial, the Court 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" (per Mason and Dean, JJ., Gallagher v. R. (supra) at 402). It is in respect of these last considerations that there has been, over the years, some difference of judicial opinion although it was the test adopted by this Court (albeit with a qualification) in R. v. Nguyen & Tran[2]. However, at the end of the day, it should not be forgotten that the expressions of judicial opinion to which I have referred are practical guidelines which do not detract from the force of the fundamental principle that an appellate court must allow an appeal if a miscarriage of justice is shown to have occurred. An appellate court will always receive "fresh evidence" if it can be clearly shown that the failure to receive it might have the result that an unjust conviction is permitted to stand[3].

[16]

In this case the "fresh evidence" which the Court is asked to accept and rely upon is of a different character from that which an appellate court is commonly asked to consider; namely evidence from a witness not available at trial whose evidence is apparently relevant, plausible and cogent and which, if available to the jury in the context of the other evidence which they had before them, might reasonably have led them to a different result or, put another way, leads an appellate court to the view that there is a distinct possibility that the jury would have acquitted if such evidence had been available. The evidence with which this Court is confronted is evidence of a different kind; namely evidence of a recantation by the Crown's principal witness of significant parts of the evidence which she gave at the trial. Although evidence of this sort has been treated by the courts as a species of fresh evidence, the courts have treated it as "fresh evidence" in respect of which the ordinary tests cannot be applied without qualification[4]. The reasons, enunciated by the courts, for the qualification are clear. If appellate courts were to act without extreme caution upon a declaration by a witness that he has committed perjury at trial "the whole administration of both civil and criminal justice would be undermined"[5]. Furthermore, the fact that a witness, following the trial, has given a new version of events might show that he or she is "now unreliable" but "it is a fallacy to assume from this that he (or she) was also unreliable at the trial. Witnesses may have second thoughts for a variety of different reasons"[6]. However, as the courts have been at pains to point out, every case must depend upon its own facts but much depends upon the reason or reasons assigned by the witness for having recanted his or her testimony. Much also depends upon the significance of the witness's evidence given at trial and whether the other evidence, not impugned, supported the conviction. Different appellate courts have applied these principles in different ways. Thus in R. v. Flower (supra), the Court declined to act on the witness's recantation regarding it as unreliable, particularly in the light of the absence of any acceptable explanation for the change in story. Accordingly, it proceeded to deal with the appeal as if the evidence of the recanting witness had not been tendered to the Court on the appeal. A similar view was taken of the "fresh evidence" tendered to the Court of Appeal in Queensland in the case of Briar[7]. A like view of the "fresh evidence" was taken by Walters, J. and King, J. in the case of R. v. Poulter (supra). However Bray, C.J. came to a different conclusion taking the view that, although the evidence was not plausible, that did not mean that it had no effect on the appellate court's assessment of the evidence given at trial. He concluded that there ought to be a re-trial. In R. v. Geesing (supra) all members of the Court came to the conclusion that, although the recanting witness was "unreliable and untrustworthy" they were left with "serious misgivings about the truthfulness of the evidence" which he gave at trial and that there was a "serious risk that [the witness's] evidence at the trial was false and that the jury had arrived at their verdict in reliance upon that false story"[8]. In Davies & Cody v. R., the High Court allowed the appeal on the ground that the jury had been inadequately instructed upon the evidence of identity. However, in respect of the ground of appeal with regard to the evidence of the recanting witness, the High Court noted that the judge's charge "does not advise the jury to reject his testimony". The Court went on to point out that "it was now known that [the evidence] is completely untrustworthy and ought not to be allowed to enter into the reasons for any verdict of guilty. Whether the jury believed his evidence or gave any weight to it in fact cannot be known ...". That, too, was a case, like the one before us, where the witness had subsequently withdrawn his "recantation".

[17]

In this case I am left in a state of considerable unease about the applicant's conviction, in the light of the statements said to have been made by M to the applicant's solicitor on 30 April 2000. I have no reason to doubt the sworn evidence of the applicant's solicitor that M did make the statements to him which he asserts were made. In that sense I would accept his evidence as credible and plausible. In making those statements, M was recanting significant portions of her evidence given at trial. Furthermore, she has given what seem to me to be very cogent explanations for giving the evidence which she did at trial and for recanting that evidence in her statements to the applicant's solicitor. It is true, as the respondent points out, that her recantations only go to evidence which she gave in respect of the rapes charged against the applicant in counts 4 and 7, upon which the jury returned verdicts of not guilty. It is also true that she did not recant the substance of her evidence in respect of the rape alleged in count 5 upon which the applicant and his co-accused were convicted. Those facts, however, do not remove the sense of unease which I feel. M was the principal witness (indeed the only witness) upon whom the Crown relied to prove the three counts of rape which it had preferred against the applicant. It is clear that the jury must have perceived imperfections in her evidence which led them to entertain a reasonable doubt in respect of counts 4 and 7. I would suspect that such doubt was to some extent engendered by the independent evidence of the relationship existing between the applicant and M both before and after the alleged rapes. However, I agree with counsel for the applicant that a witness's credibility is indivisible. It seems to me to be a distinct possibility that if the jury had known that M was fabricating her evidence that she was a non-consenting party to the acts of intercourse charged in counts 4 and 7 they may well have entertained a reasonable doubt about her evidence that she was not a consenting party to the rape alleged in count 5. My unease in this respect is only strengthened by the evidence of the occupier of the premises in which the rapes were alleged to have occurred, from which an inference could be drawn that M was making sounds consistent with the fact that she was enjoying herself while the co-accused was in the bedroom and his evidence of her behaviour and demeanour when she ultimately left the bedroom with the applicant, including her failure to make complaint. Indeed as the learned judge said in the course of his sentencing remarks:

[77]

"To prove that Mr K was acting in concert with Mr Jelly, in this case, the Crown has to prove first of all that a rape was committed by Mr Jelly. Not a penetration, but a rape, was committed by Mr Jelly. (2) That there was an agreement or understanding or arrangement between Mr K and Mr Jelly to commit that rape. And (3) That Mr K was a party to that agreement; and then, was present at the scene of the rape; if it is a rape, pursuant to that agreement, either helping or holding himself ready to help if called upon. That is what the Crown has to prove in order to prove that Mr K was acting in concert with Mr Jelly. The Crown puts it another way and says, all right, if he was not acting in concert with him, at least he was aiding and abetting Mr Jelly. And the law is that one who aids and abets another to commit a crime is himself guilty of that crime. Now aiding and abetting means doing one of three things while being aware that the crime is being committed. First of all, doing one or other of these three things. First of all, intentionally helping the other person to commit the crime. Or, secondly, intentionally encouraging the other person to commit the crime by words or by presence and behaviour; not by mere presence. Or thirdly, by intentionally conveying to the other person, by words or by presence and behaviour, an assent to and concurrence in that other person's commission of the crime. So, to prove Mr K guilty of Count 5 as on the basis of him aiding and abetting Mr Jelly, the Crown has to prove beyond reasonable doubt that Mr Jelly committed the crime of rape. (2) That Mr K was present during the commission of that crime. (3) That Mr K intentionally, not recklessly or carelessly or absentmindedly, but intentionally, either did an act, which helped Mr Jelly to commit the crime; or encouraged Mr Jelly to commit the crime. And that can be done by presence and behaviour, providing that the behaviour is intended to encourage Mr Jelly to commit the crime. Or, (3) By conveying to Mr Jelly his assent, his, Mr K's assent and concurrence in the commission of the crime; and again, such assent and concurrence may be conveyed by presence and behaviour, but not by mere presence; provided that the behaviour is intended to convey assent and concurrence to Mr Jelly. So the Crown has to prove each of these three things. (1) Mr Jelly committed the rape. (2) That Mr K aided and abetted him in the way that I have described. And (3) That Mr K intended to do whatever he did which amounted to aiding and abetting for the purpose of encouraging or concurring in the commission of that crime, and all of that has to be proved beyond reasonable doubt."

At a glance

Court

Decision date

Before

Source

Judgment (178 paragraphs)

Parties