R v A H K [2001] VSCA 220

5. I desire to add some brief comments of my own with regard to my conclusion that ground 1 of the application should be upheld. In doing so, I gratefully adopt the summary of the relevant facts and events which have been outlined in the judgment of O'Bryan, A.J.A.

8. The application before this Court proceeded principally upon the submission made by counsel for the applicant that "fresh evidence", which was tendered to the Court, should lead us to conclude that a miscarriage of justice had occurred at the applicant's trial in March 2000 and that the verdict of guilty recorded against him on count 5 of the presentment should be set aside. The "fresh evidence" relied upon by the applicant is in the form of an affidavit sworn by the applicant's solicitor (Michael George Wardell) on 23 October 2001, which affidavit annexes a number of exhibits. In particular the material upon which the applicant relies is that to be found in Exhibits "MGW1" and "MGW4". The affidavit of the solicitor explains how the material contained in those exhibits came into his possession. It is sufficient for my purposes to say that Exhibit "MGW1" is the letter which the Crown's principal witness at the trial (whom I shall call "M") wrote to the applicant whilst he was in prison following his conviction on count 5 of the presentment. I agree with O'Bryan, A.J.A. that the letter exhibited as "MGW1" does not contain any retraction by M of the evidence which she gave at the trial, in which she alleged that the applicant had raped her twice in the bedroom of a friend's house on 3 April 1999 and that, in between such two rapes, he had actively assisted his co-accused J to rape her (M). The letter shows a degree of affection between M and the applicant which might, to the uninitiated, appear somewhat remarkable having regard to the events which she had described at the trial. However, its only relevance to these proceedings is to be found in the somewhat obscure sentence:

"When this all started I had [my husband] ... on my back. [My husband] always threatening me to take the kids. I'm not with him any more. The house is under my name at last."

12. This sentence, and its significance, becomes clearer when one looks at the material contained in Exhibit "MGW4"; an oral statement which the solicitor swears was made to him in his office by M on 30 April 2001. I agree with O'Bryan, A.J.A. that the contents of that statement, if accepted, constitute a retraction by M of her evidence at trial that the applicant had had non-consensual intercourse with her on the two occasions charged in counts 4 and 7; but are confirmation of her evidence that she did not consent to the penetration of her by the co-accused J. (Namely, the rape alleged in count 5 of which J was convicted, as was the applicant either as an aider and abettor or person acting in concert.)

15. 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.

18. The substance of the statement which the solicitor swears was given to him by M in the morning of 30 April 2001 is set out in paragraph 56 of the judgment of O'Bryan, A.J.A. The only matters which I would add to those referred to by his Honour are the following statements recorded by the solicitor as having been made by M to him:

* "I believe I am an honest person and that is why I told [my husband] the next day about having slept with [the applicant]. ... I suppose I thought he would forgive me. Sadly this was not the case because [my husband] went right off and got very angry. The biggest thing in my life is my children and [my husband] threatened me that if I didn't make a complaint to the police and didn't carry through with the charges he would not only beat me up but ensure that I lost my kids."

* "Since I have made a complaint against [the applicant] I have always regretted it because he never raped me and in fact has always been a great friend to me. I was scared of what [my husband] would do to me and do to the kids and also I am scared of what the police might do if I withdrew the charges."

23. As O'Bryan, A.J.A. has pointed out in paragraph 57 of his reasons for judgment, M made a further statement to police on 20 May 2001. In the course of that statement she said:

"I am aware that [the applicant] is appealing his sentence and I just wrote the letter [i.e. "MGW1"] to try and get everyone off my back. I had even had a solicitor, Michael Wardell, come to my home and I think he works for [the applicant] and he has been trying to get me to make a statement to drop the charges and say it didn't happen, but [I] have not gone to see him because the rape did happen."

27. 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].

30. 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".

33. 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:

"Having seen and heard the complainant give sworn evidence at the trial of her friendly attitude to, and behaviour towards, and relationship with each of you, and especially you, [the applicant] both before and after this event, I do not accept the contents of the victim impact statement, even the otherwise admissible parts thereof."

Just as significantly, my sense of unease is not abated by the fact that the learned judge, whilst sentencing on the basis that the jury must have accepted that the applicant was aiding and abetting a rape committed by the co-accused, also said that he:

"Initially thought the verdict was strange in that it involved acceptance of only part of the complainant's evidence and rejection of the balance ..."

39. The respondent has also contended in this Court that we can safely put to one side the evidence of the applicant's solicitor that M made the statements to him

which are attributed to her in Exhibit "MGW4". It is said that we can do this because M did not return to authenticate that statement or those statements by signature and subsequently made a statement to the police confirming the evidence given at trial. Those facts, however, do not lead me to accept that she did not make the statements attributed to her by the solicitor. Not only does her subsequent statement to the police suggest that she has "not gone to see [the solicitor] because the rape did happen" but also ignores the fact that, in that office, she had on 30 April 2001 signed the acknowledgment to which I have earlier referred. All of this, to my mind, adds to the credibility of the "fresh evidence" upon which we are now asked to rely.

43. It is for these reasons that I have concurred in the conclusion by O'Bryan, A.J.A. that ground 1 of the application should be allowed, and the jury's verdict on count 5 should be set aside. In all the circumstances, and after anxious consideration, I think the appropriate order for the Court to make is that there should be a re-trial on that count. Whether or not that occurs is, of course, a matter for the Director. Having regard to the reasons for which I have come to this conclusion, it is unnecessary for me to say anything about the basis upon which the jury might properly convict an accused person for committing a rape in concert with a co-accused or for aiding and abetting a co-accused in committing such a rape.

53. The applicant was convicted in the County Court on one count of rape (count 5) in a presentment containing seven counts. Relevantly, count 4 alleged that on 3 April 1999 the applicant raped M (the complainant) by introducing his penis

into her vagina without her consent. Count 5 alleged that on 3 April 1999 on an occasion other than that referred to in count 4 the applicant and Paul Gerard Jelly raped the complainant by introducing the penis of the said Jelly into her vagina without her consent. Count 7 alleged that on 3 April 1999 on an occasion other than that referred to in counts 4 and 5 the applicant raped the complainant by introducing his penis into her vagina without her consent.

57. The jury found the applicant not guilty of every count save count 5. The applicant's co-accused Jelly was also found guilty on count 5.

60. After plea the applicant was sentenced to a term of 6 years' imprisonment and a period of 4 years was fixed before the applicant could become eligible for parole. A declaration of pre-sentence detention of 193 days was made.

63. Jelly was sentenced to be imprisoned for a period of three years and a non-parole period of one year was fixed.

66. Notice of application for leave to appeal against conviction was given on the ground that the verdict was unsatisfactory and unsafe by reason of discrepancies in the evidence and lack of credibility of the complainant's evidence.

69. The applicant was given leave to amend the grounds of appeal by the Registrar, Court of Appeal on 19 October 2001 by substituting three grounds.

1. That there was a significant possibility that, had certain "fresh evidence" been available to the Applicant at his trial, and adduced on his behalf, the jury acting reasonably, would have acquitted the Applicant of the charge of Rape as alleged in Count 5 of the presentment.

(a) By an undated letter postmarked December 2000 M "the prosecutrix" wrote to the applicant while he was an inmate at Port Phillip prison indicating inter alia; that she was sorry and that she wished "we could turn back the clock"; that the applicant should write to her at her address appearing on her letter; that she hoped that the applicant would still consider her as a friend; that her partner had threatened to take her children and that if the applicant wished to ring her he could do so by contacting her on the number provided in the letter (a copy of the said letter is attached).

(b) The applicant proposes to rely upon such additional facts matters and circumstances consistent with the matters set out in paragraph (a) hereof to be deposed to by Mr. Michael George Wardell, Solicitor for the applicant.

2. The verdict in respect of Count 5 is unsafe and unsatisfactory in all the circumstances.

3. The verdict in respect of Count 5 is inconsistent with verdicts in respect of Counts 4 and 7.

78. Notice of application for leave to appeal against sentence was given and the grounds were amended by leave of the Registrar on 26 October 2001. The grounds substituted are:

1. The sentence imposed on the applicant was manifestly excessive in all the circumstances.

2. The learned sentencing judge failed to take into account sufficiently or at all the circumstances of the commission of the offence including the pre-existing relationship that existed between the complainant and the applicant and personal circumstances as they applied to the applicant.

3. The sentence imposed upon the applicant is unreasonably and manifestly disparate to the sentence imposed upon the co-offender Paul Gerard Jelly.

84. The facts may be summarised as follows. In April 1999 the complainant was married and had four children. At about 7 p.m. on 2 April 1999 she visited the applicant's home where he lived with a female, Rhonda. At the house were the applicant who seemed drunk, Rhonda, Paul Jelly and a number of teenage children. From the applicant's home, the applicant, the complainant and Jelly proceeded by car to another house in Ballarat in which Chris and Dawn M lived. Chris was alone in the house. The applicant had brought with him a six pack of beer, stubby size.

87. Chris said in evidence that the applicant, M and Jelly were drinking in the lounge, that M was seated on a couch drinking and allowing the applicant to make advances towards her breasts, basically by sucking on her breasts. Chris said the applicant asked permission to go to another room because he wanted to talk to M about some private matter and he allowed them to go to a bedroom "as long as they didn't have sex".

90. Chris said M and the applicant went into the children's bedroom and he went into another bedroom alongside the lounge followed by Jelly. They were talking together until Jelly was called into the other room. Jelly was in the room for 10 to 15 minutes. When he left the room he was followed by M and the applicant.

93. Under cross-examination Chris said that when M and the applicant were in the loungeroom he observed them kissing and cuddling on the couch and M said she wanted the applicant's child. When M and the applicant were in the bedroom he heard M laughing and moaning a bit as though she was enjoying herself. After Jelly went into the room he heard further moaning. When M emerged from the bedroom she appeared in a happy mood and she resumed kissing and cuddling the applicant.

97. The complainant said that she travelled to Chris's house in a vehicle with the applicant and Jelly. In the house the applicant asked Chris if he could take the complainant up to the bedroom to have a talk. The complainant said that in the bedroom the applicant told her he no longer loved Rhonda and that she was the only one he loved. She said he then pushed her down on the bed and she had a feeling that something was going to happen. She said that she told the applicant she didn't want to do anything. The complainant said the applicant proceeded to undress her and then he removed all his clothes. The complainant said she was menstruating and made it known to the applicant by saying no that she didn't want to have sex with him. She said she kept her legs closed but the applicant forced her legs open, climbed on top of her and had intercourse with her against her wishes and in due course ejaculated.

100. In a taped record of interview the applicant said he had consensual sex with the applicant but did not ejaculate, that he had done so on other occasions and she had initiated the sexual activity on the night.

103. The jury was not satisfied either that the sexual activity was without consent or that the applicant intended to have intercourse without consent and found the applicant not guilty.

107. The complainant said that immediately following the first incident the applicant called for Jelly who was in the loungeroom. Jelly came into the bedroom and shut the door behind him and the applicant said to him, "you're going to have a fuck" and Jelly said `Yes'". The applicant was still on the bed naked, as was the complainant.

110. I should interpolate to say that Jelly was 21 years of age, considerably younger than the applicant and intellectually impaired.

113. The complainant then described a second incident in which Jelly climbed on top of her and her vagina was penetrated by him without her consent while the applicant held her knees and kept them apart. She said she didn't remember saying anything and everything happened very fast. She said that Jelly ejaculated inside her body.

116. The description given by the complainant was of penetration of herself by Jelly with the applicant present and by words and conduct assisting Jelly.

119. The applicant in a record of interview admitted that he was present when Jelly had consensual sexual intercourse with the complainant and he was merely a spectator and did not hold her legs open.

122. In a record of interview Jelly at first said that when he was called into the bedroom the complainant said: "Do you want to join in?", and the applicant told him to take off his pants, which he did. Then he mounted the complainant and had sexual intercourse with her. Later in the interview, Jelly retracted his earlier statement that the complainant asked him to join in and said that she actually told him to go away, but he didn't because the applicant wanted him to stay. He also said that the applicant said: "You're going to have a fuck?", and he replied "Yeah". He also said the applicant was grabbing her legs wide open. Asked: "Did she tell you to stop it or to get off or anything like that?" He answered, "Yeah". He said the complainant was not enjoying what he did. Asked: "Do you think in this instance that's what you've done, you've had sex with somebody that didn't want it?", he answered "That's correct". He said he thought the complainant "was pretty scared", but couldn't leave the room because there were two of them in the room.

125. The jury must have accepted the evidence given by the complainant of the second rape supported, as it was, by Jelly's record of interview for it found both men guilty of count 5. The jury was satisfied that the applicant aided and abetted Jelly to have sexual intercourse with the complainant without her consent or acted in concert with Jelly. Each aspect of the law relating to criminal responsibility was left to the jury by the trial judge.

129. The complainant said that after Jelly finished the applicant said "well fuck off out of here then" and when he left the applicant shut the door. She said that the applicant climbed back on top of her and put his penis back in her vagina. She said she told him she wanted to get up, more than once, but he didn't do so and while he was having intercourse he told her he loved her. She said he completed the act and ejaculated. During the act the applicant inflicted injuries to her chin and left nipple by biting and scratched the back of her legs.

132. In a second tape recorded interview on 7 April 1999 the applicant denied having intercourse on a second occasion after Jelly left the room. His defence was that no second act of intercourse occurred between himself and the complainant.

135. This third incident became the subject of count 7.

138. Neither the applicant nor Jelly gave evidence at the trial.

141. The jury found the applicant not guilty of the third rape. The jury could not have been satisfied beyond reasonable doubt that the third incident occurred or, if it did, was without the consent of the complainant or that the applicant knew that she was not consenting.

144. The complainant was cross-examined extensively by counsel for each accused. The following evidence was given.

* She denied having contact with the applicant since April 1999 and was sure she had not spoken to him. Later, she said she had spoken to the applicant in a tavern but did not cry on his shoulders, did not kiss him and didn't say to him that she was sorry about what she had put him through and had only done it to save her marriage.

* She admitted that she gave the applicant her mobile telephone number in the tavern so he could ring her.

* She admitted that the applicant came to the house where she boarded at her invitation and they sat on a couch together, she was crying and she sat on the applicant's knee and gave him a cuddle.

* She admitted that at Chris's house on the night she was raped she was "mucking around a little bit" with the applicant but "not flirting".

* She admitted that when she left the bedroom in Chris's house she said to Chris, "I'm sorry" and said nothing about being raped.

* She agreed she was asked by Rhonda to drop the charges against the applicant to help Rhonda and that she agreed to do so for the sake of their children.

* She denied that she told Rhonda she was a willing party to the acts of intercourse.

* She denied she said she was sorry and had only reported the matter to save her marriage.

* She denied making up that she was raped or saying to people that she had made it up.

* She denied having sexual intercourse with the applicant on dates before the April rapes occurred.

* She admitted to making noises when she was being raped by the applicant, but said they were noises made when someone is hurting you.

* She affirmed the applicant was involved in holding her down while Jelly was having sex with her.

* She denied making up the allegations of rape to protect her marriage which ended when she parted from her husband in November 1999.

160. The complainant's credibility as a witness was seriously compromised by her conduct immediately after the rape incidents finished and by her subsequent conduct towards the applicant. Her ambivalence towards the applicant revealed at trial was quite remarkable and must have raised a doubt about her account of the three rape incidents. But notwithstanding her lack of credibility the jury acted upon her evidence in relation to count 5.

163. The trial judge directed the jury that so far as count 5 was concerned no issue arose about sexual penetration by Jelly alone. The issues to be determined were whether the complainant was not consenting and whether the applicant and/or Jelly knew or realised that she was not consenting or might not be consenting and determined to have sexual intercourse whether she was consenting or not.

166. The trial judge directed the jury that so far as the applicant was concerned in relation to count 5 he did not dispute that Jelly sexually penetrated the complainant. His Honour directed the jury that the applicant was not charged on count 5 upon the basis that he penetrated the complainant, but on the basis that when Jelly penetrated the complainant the applicant and Jelly were acting in concert, or on the basis that the applicant was aiding and abetting Jelly in the commission of rape.

169. His Honour gave the jury a direction about the law of acting in concert and aiding and abetting consistent with what was said by Smith, J. in R. v. Lowery & King (No.2)[9].

"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."

The learned trial judge did not leave a case to the jury based upon the doctrine of "innocent agency"; that is that they could convict the applicant as a "constructive principal" to a crime of rape committed through the agency of Jelly.[10]

177. It follows from the directions given to the jury that before the applicant could be convicted on count 5 the Crown had to prove there was an agreement or understanding or arrangement between him and Jelly that Jelly would have sexual intercourse with the complainant without her consent, that she did not consent in fact and that he, the applicant, knew she was not consenting or might not be consenting (the mens rea).

Fresh evidence provided by Michael George Wardell

181. The fresh evidence related to post-conviction words and conduct by the complainant. In December 2000, about nine months after sentence was imposed, the complainant wrote to the applicant in prison. Relevantly, the letter commenced: "Dearest A", and contained the following words:

"I never meant to hurt you, I am sorry. My only wish is that we could turn back the clock so that we would not be in the position that we are today. Will you please write to me at the address on top of this letter to tell me what you want me to do. I hope that you still consider me your friend."

The letter is Ex. MGW 1 to an affidavit made by the applicant's solicitor, Michael Jordan Wardell sworn on 23 October 2001.

186. It will be convenient to refer to the letter as Ex. MGW 1. Exhibit MGW 1 also contained an invitation to ring her on a number provided and concluded: "I will help you to get out of that horrible place. To you my friend Ta Lama Ta Lay."

189. The words "Ta Lama, Ta Lay" mean "I love you" in Sierra Leone, the applicant's native country.

192. Exhibit MGW 1 evidences affection by the complainant for the applicant, remorse that he is in prison and a desire to help him. It does not indicate a retraction of the allegations she made in court of the three rapes, or of untruthfulness in her evidence at the trial.

195. The applicant's solicitor was in the process of preparing notices of application to appeal conviction and sentence when the letter was brought to his attention by Rhonda. The solicitor visited the applicant on 20 April 2001 and was instructed that several persons would corroborate the fact that the complainant had sought to withdraw her complaint against the applicant prior to trial.

198. The solicitor visited the complainant's home on 27 April and spoke to her about making an appointment for her to talk to him about the truth of her evidence at the trial. Before doing so the solicitor had met the complainant's husband who was hostile to a lawyer coming around and talking to his wife about the applicant who had raped his wife and been convicted.

201. A meeting took place on 30 April between the complainant and the solicitor in the offices of the solicitor. The complainant attended alone and voluntarily. Notes were made of the conversation and from the notes the solicitor prepared a draft statement which the complainant said she would read on 1 May.

205. The complainant did not attend to read the statement on 1 May and at 2.04 p.m. telephoned the solicitor to advise that she no longer wished to make a statement and would not be in to read or sign the draft.

208. The draft statement was neither read by the complainant nor signed by her. Its contents are derived from the notes made by the solicitor on 30 April.

211. The following are relevant extracts from the draft statement (Exhibit MGW 4 to the affidavit of Michael George Wardell sworn 23 October 2001.).

* My reasons for making this statement are because my original complaint to the police and subsequent evidence at the trial were made under threats by others and as a consequence of that are not totally true.

* Ever since I made my original complaint to the police I have wanted to withdraw the charges but had either been threatened with physical abuse and the threat of having my (four) children taken away from me by my husband Michael or not been listened to by Grant McDonald of the Ballarat police.

* I think Michael has always been jealous of my relationship with K and that is why he got very angry when I told him that I had slept with K and why I reported it to the police.

* Michael is my husband and I love him dearly, however he never gave me the support and encouragement and love that K did. When I say love I mean as friends as opposed to lovers.

* During the course of the night (2/4/99) I said in my evidence that I probably had one or two stubbies of heavy beer but I think I probably had a lot more than that.

* As I said K and I have a very close friendship but I swear prior to this night I had never slept with him.

* When we were at Chris's place K suggested to me that we go down to the bedroom to talk. I had no problem with that suggestion as I was having a good time and enjoying being with him.

* Once we were in the bedroom K suggested that we go to bed to which I said that I didn't want to because I had my period. K didn't think me having my period was such a big deal and so kept on flirting with me and telling me how much he wanted me and how nice I was. It was just wonderful to hear a man talking to me like this and because I was pretty light headed from the drinks I'd had I left my inhibitions go and consented to K's request that we make love. K and I then got undressed and made love on the bed. K did not rape me I voluntarily had sex with K.

This last extract from Ex. MGW 4 clearly relates to count 4 of which the applicant was found not guilty by the jury. Notwithstanding the applicant's evidence at the trial that she did not consent to sexual intercourse with the applicant, clearly if she made the statement she provided new evidence that she had consensual sex with the applicant.

* After we had finished K called out to Paul Jelly who was a friend of K's who had driven to Chris's place with K and I. Paul came into our room and I remember saying to K "What is he doing in here?". I can't really recall what K said but very quickly Paul was on top of me having sex. While Paul was doing this K was holding my legs apart and leaning on my stomach and chest. I didn't mind having sex with K but I definitely did not want to have sex with Paul. I felt cheap and degraded by having sex with Paul and I was annoyed with K that he didn't mind. Once Paul finished having sex with me K told him to fuck off which he did.

This extract from Ex. MGW 4 is not new evidence for it repeats in substance the evidence the complainant gave concerning count 5 at the trial that Jelly raped her in the presence of the applicant who assisted Jelly.

* Once Paul left K and I had sex for the second time. Whilst I was annoyed at K for having called Paul into the room and for holding me on the bed while Paul had sex with me I wasn't so annoyed with him that it prevented me from consenting to have sex with him for a second time.

This extract from Ex. MGW 4 relates to count 7 at the trial, of which the applicant was found not guilty. The extract, if true, contradicts the complainant's evidence at trial that she did not consent in relation to count 7 and is new evidence. Nevertheless, the jury was not satisfied, either that non-consensual sex took place, or that a third sexual act occurred, which was the defence case based upon the second record of interview.

* In my complaint to the police and my evidence during the trial I had said that I did not consent to having sex with K but that is wrong. In the mood of that particular evening I wanted to have sex with K although I did have a concern that I had my period. This is a substantially different account to the evidence given at the trial and constitutes new evidence.

* I am still not sure why K called Paul in or why he allowed Paul to have sex with me, or why he held me on the bed while Paul was doing it. I never wanted to have sex with Paul and didn't consent to it but after Paul left I didn't object to K and I doing it again.

In this extract from Ex. MGW 4 the complainant has re-affirmed her evidence at the trial in relation to count 5.

* It is also not a very nice thing to have to admit that you have slept with two men on the one night. Even though I never consented to Paul having sex with me the fact that I had consensual sex with K after Paul could make people think that I didn't think it was such a big thing what Paul did.

* This is the first time that I feel good about what happened because it is the first time I have told the whole truth on what happened. I am sorry for what happened to K and that is why I wrote him a letter dated the 17th December 2000 trying to explain why I had given the evidence that I gave.

232. The complainant signed a jurated statement dated 20 May 2001 confirming her earlier statement to the police and her evidence at the trial. In the jurated statement the complainant explains that she wrote the letter Ex. MGW 1 because she had been pestered by Rhonda to drop the charges and to forgive and forget. She confirmed that "she was raped by the applicant and that will never change.". She said that Mr. Wardell had been trying to get her to make a statement to drop the charges and say it didn't happen but she did not go to see him because the rape did happen.

235. Mr. Wardell also spoke to several persons who made statements. Mr. Reeves made a statement on 1 May 2001 (Ex. MGW 6). Some time after the 2 April events occurred the complainant accepted an offer from Reeves to stay at his place with her children. Reeves stated that after the complainant moved in she eventually told him she had been raped by K and Paul Jelly. She also said she wanted to drop the charges because she felt sorry for Rhonda and her children. She also felt sorry for the applicant because his age would make prison difficult for him. She said she had been pressured to charge the applicant by her husband.

238. Rhonda made a statement (Ex. MGW 7) in which she said that the complainant was forced to charge her husband, the applicant, with rape. She also stated that the complainant told her she wanted to drop the charges.

241. Cindy made a statement (Ex. MGW 8) in which she said the complainant told her that Mick, her husband, had forced her to report (the rape) to the police and the complainant said "that she would do anything she could to get K out as he had never raped her because she liked K and wanted it from K". The complainant also said "that she never really wanted Paul to have sex with her".

244. Only the statement of Cindy provides new evidence.

248. This ground was argued by Mr. Shwartz for the applicant as the principal ground.

251. It was contended by Shwartz that there was a significant possibility that had the "fresh evidence" been available to the applicant at his trial the jury acting reasonably would have acquitted the applicant of the charge of rape alleged in count 5 of the presentment.

254. The considerations which will guide a Court of Criminal Appeal in deciding whether a miscarriage of justice has occurred because fresh evidence now available, but not at the trial, have been variously stated, according to the circumstances in particular cases, in a number of leading authorities.[11]

257. In Craig[12] Rich and Dixon, JJ. stated the test thus:

"It cannot be said that a miscarriage of justice occurred unless the fresh evidence has cogency and plausibility as well as relevance. 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 to 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."

261. In Ratten[13], Barwick, C.J. said that the appellate court will consider all the new evidence itself "forming and acting upon its own belief in, or disbelief of, the evidence, and upon its own view of the facts of the case including the evidence at the trial, though as I have said, taking the facts as proved at the trial in the sense which having regard to its verdict the jury must have taken them." Menzies, J. adopted without reservation the passage set out above from the judgment of Rich and Dixon, JJ. in Craig. His Honour referred to a statement of Lord Cross of Chelsea as most apposite in Stafford v. Director of Public Prosecutions[14].

"In a fresh evidence case it is natural for the court to put itself in the position of the jury which convicted on the original evidence and to ask itself whether the addition of the fresh evidence might have induced a reasonable doubt in its mind. But that is only another way of asking whether it might have induced a reasonable doubt in the minds of the members of the court if they had constituted the jury."

265. The three main considerations which will guide a Court of Criminal Appeal in deciding whether a miscarriage of justice has occurred because fresh evidence not available at the trial has become available since are specified in Gallagher v. R. by Gibbs. C.J.[15].

1. The conviction will not usually be set aside if the evidence relied on could with reasonable diligence have been produced by the accused at the trial.

2. Whether the evidence is apparently credible (or at least capable of belief).

3. Whether, if believed, the evidence might reasonably have led the jury to return a different verdict.

271. After considering the three tests referable to fresh evidence Gibbs, C.J. observed[16]: "I would emphasise that no form of words should be regarded as an incantation that will resolve the difficulties in every case." Gibbs, C.J. referred to the passage already cited from Craig and said: "Perhaps no more elaborate statement of the position can usefully be made."[17]

274. Mason and Deane, JJ. also cited with approval the remarks of Rich and Dixon, JJ. in Craig[18] and added:

"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."

278. Thus stated, the test is more objective than that prescribed by Lord Cross in Stafford. The remarks of Mason and Deane, JJ. were substantially agreed in by Gibbs, C.J.[19]

281. In Mickelberg v. R.[20], Mason, C.J. affirmed that the appropriate test to be applied by an appellate court in deciding whether to set aside a conviction on the ground of fresh evidence was endorsed by four judges in Gallagher[21].

"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."[22]

285. The words "significant possibility" conjure a number of meanings. In context it can be accepted that they do not involve a lesser standard than that the jury "might entertain a reasonable doubt about the guilt of the appellant."[23]

288. It has been necessary to consider the leading authorities in order to establish the appropriate considerations to be given to the so-called fresh evidence presented to this Court.

1. Generally the evidence sought to be relied upon must be new or fresh in the sense that it could not with reasonable diligence have been available to the accused at the trial.

2. It is of great importance in evaluating the weight to be given to the fresh evidence that it have cogency and plausibility as well as relevancy.

293. The test of cogency requires the court to find that the fresh evidence must be compelling and forceful, which is the same as saying that it must have probative force.

3. The fresh evidence, in combination with the evidence given upon the trial, must lead the appellate court to conclude that the jury at trial acting reasonably might have entertained a reasonable doubt about the guilt of the accused.

297. All the leading authorities formulate the appropriate considerations upon the basis of what the trial jury might have done had the fresh evidence been before it at the trial and not upon the basis of what another jury might do were a new trial to be ordered. There is an obvious difficulty here because the letter was written nine months after the trial when post-trial feelings are expressed by the complainant towards the applicant. It is impossible to suppose what the trial jury might have done had it been told that within a year the complainant would write to the applicant in prison expressing affection for him and remorse that she had hurt him.

300. The fresh evidence cases deal with evidence which was unavailable at the trial, but which can be evaluated upon the basis it was capable of being considered by the trial jury.

303. Mr. Shwartz submitted that the fresh evidence comprised the letter (Ex. MGW 1), the draft statement (Ex. MGW 4) and Cindy's statement (Ex. MGW 8) all of which are exhibited to Mr. Wardell's affidavit.

306. In my view the letter was incapable of revealing the existence of a sexual relationship between the complainant and the applicant prior to 3 April and it would be unreasonable to infer from it that more than a platonic relationship existed before 3 April.

309. The letter added nothing new to the evidence known at the trial about the relationship between the complainant and the applicant on 3 April. It throws no new light on count 5. In terms of the appropriate considerations formulated above I am of the view that Ex. MGW 1 lacks cogency and relevance and is not fresh evidence.

312. Mr. Shwartz submitted that Ex. MGW 4 and Ex. MGW 8 amount to a recantation of the complainant's evidence at trial, particularly in relation to her relationship with the applicant on 3 April, and impacts upon the issue whether she consented to the three acts of penetration. He submitted that her evidence was made so untrustworthy that a jury acting reasonably ought to have had a reasonable doubt about consent and the applicant's state of mind when each act of intercourse occurred. Exhibit MGW 4, requires this Court to quash the conviction because the case against the applicant depended upon the jury believing the complainant. Matters allegedly said to Wardell by the complainant in relation to consent are in direct contradiction to the evidence given by her at the trial, rendering it highly likely that a jury informed of those matters would have found the applicant not guilty in respect of count 5, Mr. Shwartz submitted.

315. Mr. Coghlan submitted that Ex. MGW 1 is fresh evidence, but put at its highest does not involve any retraction relating to count 5 and does not impact on the material issues, consent and mens rea in relation to count 5. He further submitted that Ex. MGW 4 was never signed and is explained in the signed jurated statement which confirmed the evidence given at trial. Since the jurated statement was signed the complainant's position cannot be viewed as a recantation.

318. Exhibit MGW 4 is no higher than an inconsistent statement for which an explanation has been offered in the jurated statement, Mr. Coghlan submitted.

321. As I previously explained, I am of the opinion that the letter does not provide cogent evidence going to the issue of consent. It is insufficient to show that the jury might have entertained a reasonable doubt about the guilt of the applicant on count 5.

324. The circumstances surrounding Ex. MGW 4 are altogether different. Assuming the complainant could have been cross-examined at the trial about the conversation she had with Wardell on 30 April 2001 and relevant matters in the draft statement put to her, if she did not distinctly admit the conversation with Wardell, Wardell could be called to prove that she did make the statements recorded in Ex. MGW 4. The relevant extracts set out in paragraph [56] are plausible, cogent and relevant to the issues of consent and mens rea in relation to the three rape incidents and, in particular, to count 5.

327. In evidence in relation to count 4 the complainant said she didn't want to have sex with the applicant, she kept her legs closed, but the applicant forced her legs open. She gave similar evidence in relation to count 5 of the applicant holding her knees and keeping them apart. The evidence about holding the knees and keeping them apart was relevant to consent and mens rea in relation to both counts. In Ex. MGW 4 the complainant allegedly said in relation to count 4 the applicant did not rape her and she voluntarily had sex with him. By implication, she withdrew the evidence at the trial that the applicant forced her legs open.

330. Whether the complainant's legs or knees were kept apart by the applicant when Jelly had intercourse with the complainant was relevant to both consent and mens rea.

333. I have reached the conclusion that the fresh evidence in the form of Wardell's evidence of the conversation on 30 April should lead this Court to conclude that the jury at trial acting reasonably might have entertained a reasonable doubt about the guilt of the applicant on count 5. Accordingly, I am of the view that Wardell's affidavit should be admitted on this application and ground 1 be upheld.

337. Mr. Shwartz submitted that a verdict may be set aside as unsafe and unsatisfactory notwithstanding there is evidence upon which the accused could be convicted, if the appellate court, after an examination of the whole of the evidence at trail, is of the opinion that the jury ought to have entertained reasonable doubt as to the guilt of the accused.

340. The test formulated in M v. R.[24] by five justices in the High Court in a joint judgment states that the question whether it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty requires the court to pay full regard to the fact that the jury is the body entrusted with the primary responsibility of determining guilt or innocence and the fact that the jury has had the benefit of having seen and heard the witnesses.

343. As a matter of law there was evidence upon which it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty of acting in concert with or aiding and abetting Jelly to rape the complainant. The case against Jelly was very strong indeed, if his record of interview was proved to the jury's satisfaction. The case against the applicant, however, depended upon the jury first finding Jelly guilty of rape. The jury saw and heard the complainant. Her evidence was that she was raped by Jelly in the presence of and with physical assistance from the applicant. The critical issues were, whether the complainant did not consent to Jelly having intercourse with her and whether the applicant had the necessary mens rea.

346. The circumstances were somewhat bizarre, because the jury was not satisfied that a few minutes earlier the applicant had had intercourse with the complainant without her consent or had the necessary mens rea. The evidence was sufficiently credible and cogent, in my opinion, to support the guilty verdict on count 5. No miscarriage of justice has been shown.

Ground 3 -verdict on count 5 is inconsistent with verdicts on counts 4 and 7

353. I reject Mr. Shwartz's submission that the acquittal of the applicant in respect of counts 4 and 7 is inconsistent with the conviction of the applicant in respect of count 5. It was not unreasonable for the jury to come to the conclusion in respect of count 4 that the complainant either consented to the applicant having intercourse with her or that the applicant reasonably believed she was consenting. In respect of count 5 the central issue for the jury was whether the applicant penetrated the complainant. Consent and intent were other viable issues.

356. The fifth count was altogether different for it involved penetration of the complainant by another male person who had no close relationship with the complainant. A reasonable jury could have come to the conclusion that the complainant did not consent in fact and made her lack of consent known to both the applicant and the person who penetrated her based upon acceptance of her evidence.

359. The verdict in respect of count 5 is explicable on the basis that the applicant acted in concert with or aided and abetted Jelly when Jelly raped the complainant and I have no difficulty in rejecting ground 3.

362. I am of the opinion that the conviction on count 5 should be set aside. Mr. Shwartz submitted that, if the conviction is set aside, a new trial should not be ordered because the applicant has spent considerable time in custody serving his sentence. I consider a new trial should be ordered but whether a new trial is held lies within the discretion of the Office of Public Prosecutions. In fairness to the complainant it might be thought that she should be given the opportunity to answer on oath the statements attributed to her in the form of Ex. MGW 4.

366. It is unnecessary to consider this application.

369. For these reasons I would allow the application for leave to appeal the conviction, set aside the conviction and order a new trial.

[1] cf. Gallagher v. R. [1986] HCA 26; (1986) 160 C.L.R. 392 at 395 per Gibbs, C.J.

[2] [1998] 4 V.R. 394 at 400-401 per Kenny, J.A.

[3] See R. v. McIntee (1985) 38 S.A.S.R. 432 at 435 per King, C.J.

[4] Davies & Cody v. The King [1937] HCA 27; (1937) 57 C.L.R. 170 at 183-4; R. v. Flower [1966] 1 Q.B. 146 at 150-151; R. v. Poulter (1978) 19 S.A.S.R. 370 at 376; R. v. Geesing (1985) 38 S.A.S.R. 226 at 230.

[5] cf. Davies & Cody v. The King, supra, at 183-4.

[6] R. v. Flower, supra, per Widgery, J. at 150.

[7] (1994) 75 A.Crim.R. 456.

[8] R. v. Geesing (supra) at 231 per King, C.J., at 244-5 per White, J., and at 248-9 per Mohr, J.

[9] [1972] VicRp 63; [1972] V.R. 560 at 560-561.

[10] R. v. Cogan and Leak [1975] EWCA Crim 2; [1976] 1 Q.B. 217; R. v. Hewitt [1997] 2 V.R. 301 at 306.

[11] Craig v. R. [1933] HCA 41; (1933) 49 C.L.R. 429. See also Ratten v. R. [1974] HCA 35; (1974) 131 C.L.R. 510; Lawless v. R. [1979] HCA 49; (1979) 142 C.L.R. 659; Gallagher v. R. [1986] HCA 26; (1985-1986) 160 C.L.R. 392; Mickelberg v. R. [1989] HCA 35; (1988-1989) 167 C.L.R. 259.

[14] (1974) A.C. 878 at 907.

[15] [1986] HCA 26; (1985-1986) 160 C.L.R. 392 at 395-6.

[20] [1989] HCA 35; (1988-1989) 167 C.L.R. 259.

[23] Gallagher v. R. (as above) at 421.

[24] [1994] HCA 63; (1994) 181 C.L.R. 487 at 493.