Grounds 1 and 2
58 Grounds 1 and 2 are as follows:
"The appellant has available to him fresh evidence the absence of which at trial resulted in a miscarriage of justice (refer Annexure "A").
There is a significant possibility that the jury, acting reasonably, would have acquitted the Appellant if the new evidence had been before them"
59 Annexure A to Ground 1 is a two page report by Dr Brian L McDonald dated 12 February 2002. It forms part of an affidavit affirmed by Dr McDonald on 13 February 2002. That affidavit annexes an extensive statement of Dr McDonald's qualifications and experience, and also his report.
60 The Crown opposed the reception of the evidence on the ground that it had to be shown that it was unavailable without the exercise of reasonable diligence, and this was not shown; that it was not cogent; and that it was not likely to give rise to a reasonable doubt. The court decided to admit the evidence provisionally so that the last two of the Crown's points could be properly considered. In relation to diligence, an affidavit was read on behalf of the Crown sworn by Stephen Murray Thomson dated 5 March 2002.
61 The question is whether Dr McDonald's evidence reveals that there was a miscarriage of justice at trial within the meaning of s 6(1) of the Criminal Appeal Act 1912.
62 In Ratten v R (1974) 131 CLR 510 at 518.6-520.3 Barwick CJ (McTiernan, Stephen and Jacobs JJ) said:
"In every situation the court must decide on the relevance of the new evidence, even in the case of a reference by the Attorney-General such as the present. It must decide its credibility, that is to say whether or not it is capable of belief, both as to veracity and competence in the case of oral evidence, and as to authenticity in the case of documentary evidence. But in some situations, as I shall point out, the court will decide whether it believes the evidence. In other situations it will be enough that, whatever its own view, the evidence is capable of belief, and likely to be believed, by reasonable men.
Having considered relevance and credibility, the court will weigh the cogency of the evidence, having in mind always the evidence produced at the trial. That evidence will be taken in that sense in which, having regard to its verdict, the jury must have accepted it.
For all these purposes the court may see and hear the witnesses of the new evidence, both Crown and appellant being entitled to examine and cross-examine as the case may be. Further, the court will be entitled to receive evidence which tends to support, contradict or weaken the new evidence or the inferences which might be drawn therefrom.
It is now necessary to differentiate the use which the court may make of the new evidence according to which of the instances of miscarriage it is considering. If the court is considering whether the verdict of guilty should be set aside outright for the reason that innocence is shown, or the existence of an appropriate doubt established, the court will consider all the material 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. Of course, if it is concluded that there was a miscarriage in the sense that the court itself is satisfied of innocence or entertains a reasonable doubt as to guilt, there will be no question of a new trial. The verdict of guilty will be quashed and the appellant discharged.
Further, when the material before the court satisfies the court of a miscarriage of this kind, it will not matter that the new material or some part of it is not fresh evidence, in the sense that it was not or could not have been available at the time of the trial. Thus, until the court decides that there is no miscarriage of this kind, it will not need to consider whether or not any part of the new evidence satisfied the criterion of fresh evidence. The court's acceptance that guilt beyond reasonable doubt is not established, means inevitably that to maintain the verdict of guilty would be a miscarriage of justice. Also, as I have already said, it will not matter in such a case that the trial was fair and without blemish.
But if the material before the court of criminal appeal does not convince the court of such a miscarriage, or if the appellant's claim is only for a new trial, the fact that the new material is not wholly fresh evidence in the sense I have described will be material. I have already pointed out that the non-production by the accused of evidence available to him at the trial - available actually or constructively in the sense I have mentioned - will not make the trial in any sense unfair.
But there is the situation where, although the trial so far has been fair, evidence is discovered after the verdict which could not reasonably have been available at the trial: that is to say, fresh evidence is produced to the court of criminal appeal. The claim on behalf of the appellant, whether as an alternative to a claim to the absolute quashing of the conviction, or as his sole claim, is that without the consideration of the fresh evidence by the jury a miscarriage will have occurred: the trial will not have been a fair trial. In this situation, the court must as before decide the credibility and the cogency of the fresh evidence in order to determine whether, when the fresh evidence, if believed by the jury, is taken with the evidence given at the trial in that sense most favourable to the accused which reasonable men might property accept, it is likely that a verdict of guilty would not have been returned. In considering the material before it for this purpose, the element of credibility will be satisfied if the court is of opinion that the evidence is capable of belief and likely to be believed by a jury. The court in this instance will not be directly acting upon its own view of the evidence but rather upon that view most favourable to an appellant, which in the court's view a jury of reasonable men may properly take. Of course, it may be said, as was said in Stafford v Director of Public Prosecutions [(28) [1974] AC 878] that the view of the court must be taken to be a reasonable one, and a contrary view, by whomsoever held, to be an unreasonable one: and no doubt at times this must be so. But I conceive that there may be reasonable views of facts which do not commend themselves to the court which do not become unreasonable because the court does not entertain them. In the situation with which I am presenting dealing, namely of fresh evidence not claimed to establish innocence but to be of such credibility and cogency as to be likely to influence a jury away from a verdict of guilty, it is what a reasonable jury might reasonably make of this evidence which is the dominant consideration. Of course, if the court thinks that there is no doubt that its own view of the evidence is the only reasonable view, it will act upon that view as one upon which the jury would be bound to act."
63 In Lawless v R (1979) 142 CLR 659 at 674-5 Mason J said that Barwick CJ had correctly stated the relevant principles; Barwick CJ (not surprisingly) and Aickin J agreed.
64 Accordingly the first question is whether Dr McDonald's evidence causes this Court either to conclude that the appellant was innocent or to experience a reasonable doubt as to his guilt.
65 Dr McDonald's evidence should not cause this Court to conclude either that the appellant was innocent or that there was a reasonable doubt. Indeed the appellant does not invite the court to come to either conclusion. Rather he invites the court to conclude that the jury would have acquitted or, at least, that there was a significant possibility of that outcome had Dr McDonald's evidence been before it. The appellant's submission was:
"Dr McDonald's conclusion is noted that 'it is 20 times more likely that a single person of type 1+2+ [the complainant's mother's friend] contributed to the stain on the Complainant's underpants than two people, one of type 1+ (the Complainant) and the other 2+ (the Appellant) contributed to the stain'. It is also noted Dr McDonald's conclusion that 'if a person of type 1+ is a contributor then it is 7 times more likely for a second person to be a 1+2+ type than a 2+ type'.
It is submitted that on the basis of Mr Goetz's evidence (see paragraphs 2.9 and 2.10 above) the jury were left with the proposition that the stain on the Complainant's underpants emanated from either the Appellant or [the complainant's mother's friend], and that it was equally likely that it emanated from one or the other.
If Dr McDonald had given evidence before the jury in accordance with his report, it is submitted that it is likely the jury would have formed the view that it was significantly more probable that the stain on the underpants emanated from [the complainant's mother's friend] and not from the Appellant. Arguably, that would lead them to conclude that there was a significant possibility that some kind of sexual impropriety occurred between [the complainant's mother's friend] and the Complainant. In the context of the Complainant's denial of any such impropriety, it is submitted that her overall credibility would be diminished to such a significant extent that there is a significant likelihood that the jury would not be able to accept her version beyond a reasonable doubt on any of the counts, and that not guilty verdicts would be returned: Mickelberg (1989) 43 A Crim R 182; Zaidi (1991) 57 A Crim R 189; Frawley (1993) 69 A Crim R 208; PLV 51 NSWLR 736."
66 It is to be noted that the appellant does not claim that Dr McDonald's evidence excludes him as a possible wrongdoer, and it does not. Quite independently of the fact that the appellant did not ask the court to conclude that the appellant was innocent or that there was a reasonable doubt, the reasons why the evidence does not cause a conclusion of innocence to be arrived at or a reasonable doubt to be experienced are that the complainant's evidence is basically credible both as to her experiences with the appellant and with her lack of maltreatment by the friend; the evidence of the friend, too, in view of its self-disparaging nature is credible; and, as noted earlier, important parts of the complainant's evidence are confirmed by the appellant in his record of interview (as to not wearing underpants), by the complaint to the complainant's mother, by the complaint to the medical practitioner, and by the complaint to the police.
67 Accordingly it is necessary to consider whether, had the evidence of Dr McDonald been before the jury, they would have acquitted or whether there was a significant possibility of that outcome. Let it be assumed, contrary to what Barwick CJ said, that the question whether the evidence relied on could with reasonable diligence have been produced at the trial should be put aside. (Gibbs CJ in Gallagher v R (1986) 160 CLR 392 at 395 said that that "is not a universal and inflexible requirement: the strength of the fresh evidence may in some cases be such as to justify interference with the verdict, even though that evidence might have been discovered before the trial.") The fact is that the appellant's submissions are no more than an appeal to speculation. They are replete with words such as "if", "arguably" and "possibility". Up to a point that form of argument, which is designed to generate the possibility of the jury having a reasonable doubt, is permissible, but possibility is heaped on assumption to far too great an extent. The submissions depend on there being a reasonable possibility of sexual impropriety between the friend and the complainant. The only time when this could have occurred was after the complainant's mother left her house and before she or anyone else returned. The appellant's case creates contradictions: on the one hand it is said that the complainant's brother arrived too soon for the friend to do what he said he did; on the other hand it is said the friend had time to assault the complainant. The existence of disparities between the recollections of the mother, the friend and the complainant, even if they existed, which they do not, is immaterial in view of the fact that they do not demonstrate a reasonable possibility of an opportunity to assault the complainant. Even if Dr McDonald's conclusions as to probabilities are correct, it is not reasonably contestable that some crime was committed against the complainant, and there is no satisfactory evidence that the friend had an opportunity to commit it.
68 The question of Dr McDonald's evidence was the topic of the bulk of the vigorous oral argument advanced by Mr W C Terracini, SC, who appeared with Mr G A Newton for the appellant. At an early stage in the appellant's argument, it was apparently suggested that the appellant's advisers before the trial had failed to understand the significance of mixing the bodily fluids of either the complainant and the appellant or the complainant and the friend or whether the fluid on the underpants was only that of the friend. The appellant submitted that if the Crown could not make out that there was DNA from the victim on the under garment then the DNA evidence goes nowhere.
69 After an adjournment, the appellant's counsel was taken to a report on behalf of the appellant dated 31 July 2000 prepared by Genetic Technologies Corporation Pty Limited of Fitzroy, Victoria. That report stated that the DNA on a portion of the complainant's underclothes was female, the only possible female source being the complainant. The appellant then refined the submission and said that the question did not turn on DNA testing but on PGM testing and on the mixing of fluid from two sources. It is hard to understand why the possibility of PGM testing and its relationship to the mixing of fluids did not occur to the appellant's lawyers at trial if it were thought profitable to do so.
70 The report of Dr Goetz, served by the Crown, on which his evidence at the trial was presumably based, dealt with that subject. Trial counsel, as has been seen, swore an affidavit in respect to other aspects of the trial. That affidavit did not deal with that subject. The date of the affidavit was 14 February 2002. Dr McDonald's affidavit was sworn on 13 February 2002. The issue was thus present to the mind of the appellant's lawyers when they were in contact with trial counsel. The appellant's counsel conceded that Dr McDonald's report did not rule his client out. He said that there was a significant possibility that it would have made a difference at the trial because "scientific material has the weight of impartiality and carries with it far greater effect than evidence from lay persons merely saying what they saw and heard." While that may sometimes be true, it is not true in the circumstances of this case.
71 The appellant's submissions set out above rely on Dr McDonald's evidence on probabilities. The jury would have been likely to give it much less weight than and, indeed, not to give it any significance in comparison with, the evidence which they did accept, namely:
(a) that the complainant had plainly been abused;
(b) that only two persons could have abused her;
(c) that the appellant had lengthy opportunities to do so;
(d) that the time within which the friend could have done so was at most about one hour and all the evidence, namely, that of the friend, the mother and the mother's report of what her son said, pointed to the fact that there were only a few minutes within which the complainant was present;
(e) that the complainant gave essentially convincing evidence that the accused was the person responsible for abusing her;
(f) that that was confirmed by the appellant's submission that he only wore underpants. There was no suggestion that the complainant could have acquired knowledge about his habitual non-wearing of underpants on any occasion other than that of which the complainant complained;
(g) that her evidence was confirmed by substantially similar complaints to her mother, the medical practitioner and the police, all of which identified the appellant as the offender;
(h) that it was never suggested to the friend that he used a vacuum cleaner on the day in question on the complainant. The vacuum cleaner in evidence was before this court and, as counsel for the appellant said, it was a large industrial type of vacuum cleaner. He did not say, but, in my opinion, it is correct to say, that it was the type of vacuum cleaner not usually found in domestic households. The complainant drew a diagram of it, which was before the court.
72 In the course of argument in this Court, some stress was placed on questions of opportunity. The fact is that the friend's denial of opportunity was never challenged by a single question at the trial. Counsel for the appellant declined to advance a R v Birks (1990) 19 NSWLR 677 submission on that point or any other point. For that reason, Dr McDonald's evidence is unlikely to have changed the verdict of the jury or led to any other result. There is no significant possibility that there would have been any other result before this jury or a reasonable hypothetical jury.
73 In any event, no explanation is offered by Dr McDonald as to why his evidence was not tendered at the trial. Nor, despite the evidence from the appellant and Mr O'Donnell about why evidence relating to the appellant's election not to testify took place, is there any other evidence explaining why Dr McDonald's evidence was not tendered at the trial. Counsel for the appellant conceded there was no adequate explanation. The appellant does not suggest that the reports of Ms Briese and Mr Goetz, on which their evidence at the trial was based, were not available to the appellant for a significant time before the trial. There is also evidence that on 6 July 2000 the appellant's solicitors were served with a statement dated 30 June 2000 by the friend asserting that on 13 February 1997 he had a vasectomy, and that on 6 July the Crown indicated willingness for the complainant's underpants to be tested in Victoria by a company of the appellant's choice. On 31 July the appellant's solicitors received a report on that test from Genetic Technologies Corporation Pty Limited. On 12 September 2000 the appellant's solicitors indicated to the Crown by telephone a desire for further testing and the Crown indicated its co-operation. In the meantime, on 16 August 2000, the appellant had obtained an adjournment of the trial fixed for that day in part because of the desire to have further testing carried out. On 13 September 2000 a letter from the appellant's solicitors in relation to the further testing was sent. It is plain that the appellant's advisers were alive to the possible utility in the case of forensic evidence. In those circumstances it is not possible to infer that there is any explanation for their failure to call evidence in the nature of that which Dr McDonald has now given, that it would not now materially exist in the client's interests.
74 It is necessary to return to the question of whether the appellant's Ground 3 arguments, taken with Dr McDonald's evidence, would result in that ground being upheld. For the reasons just given, they could not. Accordingly, Dr McDonald's evidence should be rejected. Grounds 1 and 2 fail.