Regina v Doney

(2) Whether there has been, by reason of the evidence now brought forward, a miscarriage of justice at the trial.

(3) Whether the fresh evidence relating to the authorship of Exhibit Q in the proceedings is credible and cogent.

(4) Whether in view of the fresh evidence, there is a significant possibility that, had it been before the jury, the jury would have had a reasonable doubt that the Appellant was the author of Exhibit Q.

If the answers to questions 3 and 4 are in the affirmative, questions 1 and 2 also should be answered in the affirmative." 23 During the course of argument on appeal counsel for both parties accepted that, practically speaking, there was only one issue, namely, Issue No. 4. The other issues are merely ancillary to that issue.

The legal principles applicable to an appeal of this kind 24 The reference by the Minister under s 474C(1)(b) was a reference of "the whole case" to be dealt with as an appeal under the Criminal Appeal Act 1912. 25 In Ratten v The Queen (1974) 131 CLR 510 Barwick CJ (with whom McTiernan, Stephen and Jacobs JJ agreed) at 514 commented as follows in regard to a reference of "the whole case" by the Attorney General of Victoria: "As the Full Court was required to treat the reference to it under s 584 as an appeal, it was bound in dealing with it to act upon legal principles appropriate to an appeal. Thus, although all the material supporting the applicant's petition formed part of the whole case to be considered by the Court, the ordinary principles as to admissibility of evidence must be applied in the consideration of that material …" 26 In Mickelberg v The Queen (1989) 167 CLR 259 (at 311 to 312) it was said by Toohey and Gaudron JJ (with whom Mason CJ and Brennan J agreed) that, when a case is referred under s 21(A) of the Criminal Code (WA) (the Western Australian equivalent of s 454C(1)(b) of the Crimes Act), ordinarily it is the duty of the Court of Criminal Appeal to pronounce upon the whole case as presented and the whole case "must be passed upon by the application of legal principles appropriate to criminal appeals". 27 In the present case, however, the parties have agreed that, in effect, this Court is required to pass judgment only upon the issues as agreed. That agreement which, as I have said, was sensibly arrived at by the parties, takes the matter out of the ordinary "whole case" rule as expressed in Ratten v The Queen and Mickelberg v The Queen. 28 Ordinarily, in a case of this kind, there is a contest as to whether the new evidence to be led is "fresh". In the present case the parties agreed that the evidence to be led was fresh and no issue arose in this respect. 29 In Ratten v The Queen Barwick CJ said that the use that may be made of fresh evidence differed, depending upon whether the appellant claims a verdict of acquittal as of right, or seeks merely the ordering of a new trial. Where the Court concludes that, as the result of fresh evidence, it has a reasonable doubt as to guilt, the appellant is entitled to an acquittal as of right: R v Pedrana [2001] NSWCCA 66. The appellant did not, in these proceedings, contend that the fresh evidence entitled him to an acquittal as of right. 30 The appellant, rather, sought to bring himself within the second situation referred to by Barwick CJ in Ratten v The Queen, namely, where an appellant does not submit that the verdict should be quashed without more, but contends that he or she is entitled to a new trial by reason of the fresh evidence and argues that, as a matter of discretion, a verdict of acquittal should be entered. In regard to that situation Barwick CJ (at 519) said "[T]he court must as before deciding 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 properly 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. … In the situation with which I am presently 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". 31 In Mickelberg v The Queen at 273 Mason CJ said the following concerning the second situation referred to by Barwick CJ in Ratten v The Queen: "It is established that the proper question is whether the court considers that there is a significant possibility that the jury, acting reasonably, would have acquitted the appellant had the fresh evidence been before it at the trial. This test was endorsed by four of the five Justices in Gallagher v The Queen [(1986) 160 CLR 392]. Deane J and I [at 402] considered that the test was best expressed in those terms." 32 In the circumstances of this appeal it is the test so expressed by Mason CJ that has to be applied. 33 Should this Court, after applying that test, come to the conclusion that the appellant is entitled to a new trial, it will then be required to address the discretionary question whether an acquittal should be ordered. As I observed in R v Pedrana: "This would depend on whether any circumstances exist that might render it unjust to the appellant to make him or her stand trial again (remembering, however, that the public interest in the proper administration of justice must be considered as well as the interests of the individual accused): King v The Queen at 427 and 433; Director of Public Prosecutions (Nauru) v Fowler (1984) 154 CLR 627 at 630. Should the interests of justice require than an appellant not stand trial again, the Court, as a matter of discretion, will enter a verdict of acquittal: Spies v The Queen (2000) 74 ALJR 1263 at 1283." The objection to the evidence of Messrs Westwood and Holland 34 The fresh evidence that the appellant sought to lead was that of John Alexander West, a handwriting expert. The Crown sought to rely on the evidence of two other handwriting experts, Paul Denison Westwood and Neil William Holland, to rebut the evidence of Mr West. Mr Neil SC, senior counsel for the appellant, objected to the respondent leading this evidence in rebuttal. 35 The Court dismissed the objection and indicated that it would give reasons for its decision when delivering its reasons in regard to the appeal itself. I proceed now to set out my reasons for joining in that decision. 36 In Ratten v The Queen the High Court approved the procedure that had been followed by the Victorian Full Court in hearing the appeal in that case. That procedure is apparent from the following remarks of Barwick CJ at 520: "The Full Court received oral evidence both from the appellant and from the Crown: it allowed cross-examination of the witnesses produced by the appellant and the Crown. The Court's course in doing so, was challenged by the appellant. But in my opinion the Full Court was not in error in the course it took. In the first place the Full Court was entitled and indeed bound to satisfy itself whether, upon all the material available to it, there was such doubt as to the guilt of the applicant as would make the maintenance of the jury's verdict a miscarriage of justice. In the second place, in the alternative situation in which a new trial was sought, the court had to satisfy itself as to the credibility and cogency of the fresh evidence in order to decide whether, if it were believed, it was likely to bring about a different verdict". 37 The same issue was raised in Mickelberg v The Queen (unreported, CCA Supreme Court of Western Australia, 12 February 1999) where the Court (Malcolm CJ, Ipp and Wheeler JJ) said: "When additional evidence is adduced on behalf of an appellant, the Court will be entitled to receive other evidence which 'tends to support, contradict or weaken the new evidence or the inferences which might be drawn therefrom" ( Ratten v The Queen at 518 per Barwick CJ). To the extent that the other evidence bears directly upon the additional evidence adduced by an appellant, in the sense of contradicting or explaining it, it will be admissible as it would assist in assessing 'the cogency' of that evidence". 38 The evidence of Mr Westwood and Mr Holland tended to contradict or weaken the fresh evidence of Mr West. On that basis, I concluded that the respondent was entitled to adduce it.

The nature of the contest arising from the fresh evidence 39 In answering the question raised by this appeal (namely, whether there is a significant possibility that, had the fresh evidence been before the jury, the jury would have had a reasonable doubt that the appellant was the author of Exhibit Q) it is not to the point that this Court might prefer the evidence of Mr Westwood and Mr Holland to that of Mr West, or might consider that a reasonable jury would come to the same conclusion. 40 Mr West expressed the adamant and unequivocal opinion that the appellant was not the author of Exhibit Q. Therefore, unless this Court considers that Mr West's testimony would be rejected by a reasonable jury, there would have to be a significant possibility that such a jury would have a reasonable doubt as to whether the appellant was the author of Exhibit Q. 41 Practically, therefore, it seems to me, this appeal depends on whether, in the light of all the fresh evidence and the other relevant evidence, this Court considers that the expert testimony of Mr West would be regarded by a reasonable jury as having been discredited.

The qualifications of the respective experts and some general comments as to their testimony 42 The qualifications of Mr West are impressive. He has been involved in document examination since 1963 when he became a document examiner with the New Zealand police. He studied for a number of years in New Zealand and also in Washington, D.C. under the guidance of the chief document examiner for the United States Treasury. Eventually he became chief document examiner for the New Zealand Police and held this position for twenty years. He supervised a staff of five. He retired from the New Zealand Police in 1983 but was retained on a part-time basis to tutor staff and supervise examinations. He continued in this position while being retained by private persons until 1998. 43 The qualifications of the respondent's experts, Messrs Westwood and Holland, were no less impressive. 44 Mr Westwood commenced the study of forensic document examination in 1968 and has been testifying as an expert in this field since 1972. He was attached to the document examination bureau of the Federal Police from 1969 to 1983. He resigned from the Federal Police after having served as officer-in-charge of the document examination bureau for approximately ten years. He was then appointed as the director of the document fraud section of the Department of Immigration and Ethnic Affairs. He resigned from this position on 1 July 1987 to take up full-time private practice. 45 Mr Holland first became involved in the study of documents prior to 1976 and from 1976 to 1989 was employed in the document examination branch of the Victoria Police State Forensic Science Laboratory. He was appointed branch manager at the end of 1980. Since 1 July 1989 he has practised as a consultant and his experience is vast. 46 None of these three witnesses testified at the trial. Mr Anderson, who gave evidence on behalf of the prosecution, was the sole expert witness at the trial. Certain aspects of Mr Anderson's testimony were criticised by all three of the new expert witnesses and he was not called to testify at the appeal. Mr Bellew, who appeared on behalf of the Crown in the appeal, did not seek support from Mr Anderson's evidence. Mr Neil criticised the testimony of Mr Anderson and submitted that the jury may well have been confused by the manner in which it was presented. In the result, it seems to me, Mr Anderson's testimony is not a factor of significance in determining this appeal. 47 Both Mr Westwood and Mr Holland were impressive witnesses. Neither Mr Westwood nor Mr Holland was seriously shaken in cross-examination. Their evidence was cogent, lucidly given and persuasive. It does not necessarily follow from these findings, however, that the appeal fails. Depending on the quality of the testimony of Mr West, and the other relevant evidence, the Court may still come to the conclusion that there is a significant possibility that, in the light of the fresh evidence, a jury would have had a reasonable doubt that the appellant was the author of Exhibit Q. 48 In these circumstances, there is little point in burdening these reasons with a close examination of the fine detail of the testimony of Mr Westwood and Mr Holland. In the end, what is in issue, is the cogency and probative value of the evidence given by Mr West. 49 There is one further general comment that I should make concerning the evidence of the prosecution experts and that given by Mr West. Mr Westwood and Mr Holland employed a number of scientific techniques in facilitating their study of the documents that were put before them. These included photography, enlargement, the use of a stereo microscope and a drawing tube, all of these techniques being applied to the original documents. Mr West, on the other hand, had limited access to the original documents. The reason for this limited access was not explored in evidence. Also, Mr West did not employ the same technical methods of examination. He relied largely on examination by his naked eye and by a magnifying glass. 50 The difference in techniques underlay the different approaches adopted by the witnesses concerned. Mr Westwood and Mr Holland were at pains to ascertain what they termed the "structure" of the handwriting on Exhibit Q and the specimen documents. 51 By the "structure" of the handwriting is meant the particular way in which each relevant letter was constructed. That is, at what point the pen was first applied to the paper to commence the formation of a particular letter, the direction in which the pen proceeded, with what pressure it was applied, when it was next removed from the paper, when it was reapplied and so on. The concept also includes the particular idiosyncratic forms found in particular letters, such as curls, hooks, loops and so forth. Mr Westwood and Mr Holland paid meticulous attention to these matters. 52 Mr Westwood and Mr Holland did not attach particular importance to the overall shape of the letters and their general appearance. That is to say, they did not attribute particular significance to the general similarity or differences between the handwriting in Exhibit O and the specimen documents. They regarded the comparison between the structure of the letters in Exhibit Q and the structure of like letters that appeared in the specimen documents, as being of paramount importance. 53 Mr West, on the other hand, was adamant that general appearance and general similarities and differences in the writing on one document, when compared to the writing on another document, were highly significant. His attitude was that the most important aspect of the writing on Exhibit Q, when compared to the specimen documents, was a simple one, namely, that the writing on Exhibit Q looked different. On more than one occasion Mr West said that the writing was so different that a layman could see that the author of Exhibit Q was not the author of the specimen documents. He invited the Court to look for itself at the writing. For myself, I could not but agree that the writing on Exhibit Q looked different, in a general way, from the specimen writing. 54 On this basis, Mr West said that he did not need techniques such as high quality photography, enlargement, microscopic examination and drawing tubes to inform him sufficiently to enable him to form a reliable opinion. He said that there was a disadvantage in looking at enlargements. He asserted that in doing so one could lose sight of the "whole picture". He said that the "whole picture" was of overriding significance. While he conceded that the structure of the writing was relevant, he did not appear to attach much importance to it. 55 I think it fair to say that the methods of Mr Westwood and Mr Holland appeared to be more scientific than those of Mr West. They utilised technology effectively to analyse and break down the writing and their opinions were supported by a close examination of the formation of each relevant letter. Mr West's methods were far more intuitive. He relied on visual examination and experience. 56 Mr Westwood and Mr Holland did not approve of Mr West's methods, and Mr West was cross-examined extensively by Mr Bellew in this regard. Indeed, the cross-examination of Mr West, generally, was careful, searching and effective. 57 The cross-examination revealed several errors in Mr West's testimony as given in chief. He was shown to have missed a number of letters in the specimen documents that were inconsistent with some of his assumptions and other errors were revealed. These matters detracted from the force of his views. 58 Mr West also displayed tendencies to be argumentative and at times seemed to adopt the role of advocate. Nevertheless, he was a patently honest witness who frequently made concessions when they were called for. He undoubtedly firmly believed in the rightness of his views. Despite the exposure of several errors of detail, he remained unshaken in his conclusions.

The task of the jury in regard to issues of disputed handwriting 59 In the light of Mr West's repeated invitations to the Court itself, to compare, the handwriting on the different documents, the question arises as to the directions that would be given to a jury on this issue. 60 In R v Leroy [1984] 2 NSWLR 441 Street CJ said at 446: "It is to be observed that his Honour specifically cautioned the jury to be guided by the handwriting expert. At the same time there was admissible evidence from Deborah Sheil that the writing on the application form appeared similar to that of the appellant, and it was open to the jury under the Evidence Act 1898 to make the comparison itself, and to reach a conclusion on the matter. The jury had additional material beyond that available to the handwriting expert, providing a context in which apparent similarities might well have been regarded by the jury as sufficient to support a conclusion that the appellant was the author of the post office box application. I can myself find no error in the manner in which his Honour left the matter to the jury". 61 Thus, according to R v Leroy, a jury may be told that they are themselves entitled to make a comparison between handwriting that is disputed and admitted, although they should be told to pay particular attention and regard to expert testimony on the issue. 62 In Grayden v The Queen [1989] WAR 208 Malcolm CJ adopted this approach and remarked at 213-14: "The position in Australia appears to be that the trial judge can give a warning to the jury in respect of the process of comparing handwriting, where documents are left with them in the absence of expert testimony, unless the circumstances require it, but such a warning is not mandatory. The trial judge should, however, make it clear to the jury that the determination of the question of authorship is solely a matter for them: R v Leroy [1984] 2 NSWLR 441 at 446 and Daley v The Queen [1979] Tas SR 75 at 82-83".

See also Medina v The Queen [1990] 3 WAR 21. 63 These authorities all stem from and are based on the High Court authority of Adami v The Queen (1959) 108 CLR 605. 64 In my view there is nothing in the Evidence Act 1995 that alters the approach expressed above. [In the light of] Mr West's frequent requests that the Court look itself at the documents makes the present an a fortiori case of the jury being entitled to take into account their own impressions of the handwriting.

The detail of Mr West's testimony 65 I shall refer to some of the detail of Mr West's testimony. 66 Mr West focussed on the letter A as it was written on Exhibit Q. He said that in some of these A's there was a particular kind of loop that distinguished it from the letter A in other documents. He said that this was a significant factor because an A so formed consistently appeared in Exhibit Q. 67 In cross-examination, however, Mr West was shown several A's in a number of the specimen documents that contained a loop or the makings of a loop of a similar kind. Mr West had not previously noticed these A's and he was cross-examined about this by Mr Bellew. Mr West's answer was that there were twelve A's in Exhibit Q, a relatively short document, all of which had the characteristic loop. While in the specimen document there were "the odd one or two" with a loop or the makings of a loop of a similar kind, there was not that degree of consistency overall. Mr West attributed considerable importance to this feature of consistency in Exhibit Q and discounted the importance of the few A's in the other documents. 68 In his evidence in chief, Mr West said that he regarded the letter G in Exhibit Q as being significant. There were three G's in Exhibit Q. The form of two of these G's was that of the numeral 6. In cross-examination it was pointed out to Mr West that there were G's in that form in some of the specimen documents. His answer was that the writing of a G in the form of a 6 was common but its significance in this case was that two out of three G's used on Exhibit Q the G's were written in that form. Again, his point was that the overall consistency of this idiosyncratic way of writing a G was the significant aspect. 69 Mr West gave like evidence in regard to the letter H. Again, Mr Bellew in cross-examination pointed out that particular characteristics relied on by Mr West in regard to a particular letter H in Exhibit Q appeared to some degree in the specimen documents. Mr West's reply was that although specimen documents did contain H's that bore some resemblance to the H in question, none was sufficiently close in form to cause him to alter his view that the H on Exhibit Q was written by a different person to the one who wrote the H's on the specimen documents. 70 Mr West attributed importance to the fact that the letter C on Exhibit Q was written in such a way as to be connected to the letter that followed it. Mr Bellew pointed out that this occurred several times in the specimen documents. Mr West's answer was that it occurred more frequently in Exhibit Q. 71 Mr West referred to the idiosyncratic form of the letter P, of which there was one example in Exhibit Q. There does not seem to have been a letter P written in this form on a specimen document. 72 Mr West referred to the letter O of which there were a number in Exhibit Q. Some of these contained a loop in an unusual form. In the specimen documents there were O's that also contained loops. Mr West contended that the loop in the O's in Exhibit Q was different. 73 Arguments of the same kind occurred in relation to other letters on Exhibit Q such as the letters M, F, T and E. In all of these Mr Bellew demonstrated that there were letters which appeared to be in similar form in the specimen documents to that used in Exhibit Q and Mr West countered by asserting either that there were differences in Exhibit Q in regard to these letters or that the consistency of the forms in Exhibit Q was significantly different to those in the specimen documents.

The methods used by Mr West 74 Mr Bellew criticised the methods used by Mr West. He submitted that Mr West had made an inadequate examination of the original documents. He pointed to the fact that Mr West placed his main focus on a comparison between Exhibit Q and the Zudick document, rather than paying equal and close attention to all the specimen documents. He noted that Mr West had not magnified the entries before studying them and did not have good photographic reproductions of the originals. He had not used a stereo microscope, he had not produced a micrograph, he had not used a drawing tube, he had had problems with illegibility of the documents, he had not kept his notes, and he had not used charts. 75 Mr Bellew correctly pointed out that Mr Westwood and Mr Holland conducted an exhaustive analysis of each relevant letter. Mr West did not. As I have explained he attributed more importance to the general shape and appearance of the letters.

Conclusion 76 Mr Bellew's submissions as to the omissions and errors made by Mr West in his evidence in chief have force and, generally, I think they are correct. I also accept that there is force in his submissions about the respective methods used by the Crown witnesses on the one hand and Mr West on the other. 77 Other criticisms could be made of Mr West's testimony. Some of his explanations for his errors were weak. At times he attached more importance to matters (such as the significance of the G's in the form of sixes) than was deserved. At times he discounted features relied on by Mr Westwood and Mr Holland to a degree that did not appear warranted. I have referred to his tendency to argumentativeness and advocacy. All these matters undoubtedly affected Mr West's credibility and weakened the persuasiveness of his opinions. 78 Nevertheless, I consider that these negative aspects of Mr West's testimony were not such that his evidence as a whole and the conclusions to which he came were entirely discredited. Mr West was able to demonstrate, effectively, many features of the handwriting in Exhibit Q, readily visible to a lay person, that were not in the handwriting on the specimen documents. This afforded some cogency and probative value to his opinions. A jury might attach significant weight to his great experience and the fact that he had held positions of considerable responsibility and importance in the field for many years. Mr West maintained his opinions with conviction and I formed the view that a jury would not disregard the effect of his testimony. There was a common sense element in his approach that could appeal to a jury, at least to a degree sufficient to be capable of giving rise to some doubt on their part as to the authorship of Exhibit Q. 79 All in all I consider that, despite the sterling efforts of Mr Bellew and the high degree of professionalism and competence and, indeed, cogency of the Crown witnesses, there is a significant possibility that a jury would have a reasonable doubt that the appellant was the author of Exhibit Q. 80 I therefore conclude that the appellant is entitled to a fresh trial. That, however, is not the end of the inquiry. As I observed in R v Pedrana: "It remains to have regard to any discretionary factors which may establish that it will be contrary to the interests of justice to order a new trial. In that event, as I have explained, the appellant would be entitled to an order for acquittal on discretionary grounds." 81 As I mentioned earlier, the appellant has served the sentence that was imposed upon him in consequence of the conviction of 3 August 1989. That being so, and in the light of the long history of litigation in this matter, I think that there would be little point in a new trial. I consider that the interests of justice would best be served if a new trial was not ordered and a verdict of acquittal be entered. In the circumstances I propose that the appeal be upheld, the conviction be quashed and verdict of acquittal entered. 82 HIDDEN J: I agree with Ipp AJA. 83 BARR J: I agree with Ipp AJA.

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