Ground 1A: new evidence
157Pursuant to ground 1A, the appellant sought to introduce evidence of a letter, dated 30 September 2011, from the Walt Disney Company (Australia) Pty Ltd to the appellant's solicitors. The letter was in response to a letter from the appellant's solicitors, dated 19 September 2011, in which they stated:
"We understand that the movie the Incredibles was released into cinemas for the first time world wide into London in October 2004 and into November 2004 in the USA. Would you please confirm in writing if this is correct or if the movie The Incredibles was released earlier any where else in the world and if so what date and where.
We also require the same information regarding the movie Chicken Little. We understand this movie was first released in 2005. Would you please provide written confirmation of the release date into cinemas and [w]here this was."
158The Walt Disney Company responded:
"The Incredibles was released in UK on November 19 2004 and in USA on November 5, 2004. Chicken Little was released in UK on January 27, 2006 and in USA on November 4, 2005.
The USA dates are the first dates of release worldwide for each picture."
159This ground is inextricably linked with the challenge raised in ground 1, that the evidence did not support the verdict of guilty. However, before dealing with that issue, it is convenient to consider the principles relating to admission of fresh and new evidence.
160The principles with respect to 'fresh evidence' and 'new evidence' are well settled. Kirby J's summary of the relevant principles in R v Abou-Chabake [2004] NSWCCA 356; 149 A Crim R 417 at [63], has been cited with approval in the case law including recently in Wood v R [2012] NSWCCA 21; Aouad and El-Zeyat v R [2011] NSWCCA 61; 207 A Crim R 411. It is helpful to set out that part of Kirby J's judgment:
"The authorities in respect of fresh evidence have recently been collected and analysed by Giles JA in R v Bikic [2002] NSWCCA 227, and Heydon JA in R v M [2002] NSWCCA 66 at paras 61-64; see also R v Sleiman [2003] NSWCCA 231 paras 101-105. The test was stated by Barwick CJ in Ratten v The Queen (1974) 131 CLR 510 at 518-520 (McTiernan, Stephen and Jacob JJ agreeing). It was reaffirmed in Lawless v The Queen (1979) 142 CLR 659 by Mason J at 674-5 (Barwick CJ and Aiken J agreeing). The principles may be summarised as follows:
First, a distinction is made between 'new evidence' and 'fresh evidence'. Fresh evidence is evidence not available to the accused at the time of the trial, actually or constructively. Evidence is constructively available if it could have been discovered, or available at the trial by the exercise of due diligence.
Second, great latitude must be extended to an accused in determining what evidence, by reasonable diligence, could have been available at his trial (Ratten v The Queen (supra) per Barwick CJ at 512).
Third, the Court is ultimately concerned with whether there has been a miscarriage of justice. The rationale for setting aside a conviction on the basis of new evidence or fresh evidence is that the absence of that evidence from the trial was, in effect, a miscarriage of justice. That evidence must be examined in the context of the evidence given at the trial (Mickelberg v The Queen (1989) 167 CLR 259, per Toohey and Gaudron JJ at 301).
Fourth, the issue of whether there has been a miscarriage is to be approached on a number of levels, depending upon the order sought (whether a verdict of acquittal or a new trial), and the capacity of the new or fresh evidence to sustain the order sought.
Fifth, where a verdict of acquittal is sought and the new evidence is of such cogency that innocence is shown to the Court's satisfaction, or the Court entertains a reasonable doubt as to guilt, the guilty verdict will be quashed and the appellant discharged. In such circumstances, it does not matter whether the evidence is fresh or simply new (Ratten v The Queen (supra) Barwick CJ at 518/519; cf Gibbs CJ in Gallagher v The Queen (1986) 160 CLR 392 at 398/399).
Sixth, where the evidence does not have that quality, or where a new trial is sought, a number of issues arise. The verdict will be quashed and a new trial ordered only where the following questions are answered affirmatively:
° Is the evidence fresh?·
° If it is, is it 'credible' or at least capable of belief (Gallagher v The Queen (supra) per Gibbs CJ at 395), or 'plausible' (Mickelberg v The Queen (supra) per Toohey and Gaudron JJ at 301)?·
° If it is, would that evidence, in the context of the evidence given at the trial, have been likely to have caused the jury to have entertained a reasonable doubt about the guilt of the accused (Gallagher v The Queen (supra) per Brennan J at 410) or, if there is a practical difference, is there a significant possibility that the jury, acting reasonably, would have acquitted the accused (Gallagher v The Queen (supra) per Mason and Deane JJ at 402)? See Mickelberg v The Queen (supra) per Toohey & Gaudron JJ at 301-302.
Seventh, the concept of a miscarriage of justice is not an abstract investigation of truth (cf an Inquiry under s474D Crimes Act 1900). It is an investigation in the context of the adversarial nature of a criminal trial. Where deliberate tactical decisions are made on the part of the accused as to the evidence that should or should not be called, and the issues that should or should not be pursued, there is nothing unfair, and there will be no miscarriage, in holding an accused to such decisions, even though it is conceivable that other decisions or something else may have worked rather better (Ratten v The Queen (supra) at 517).
161In Wood v R, McClellan CJ at CL summarised the distinction between 'fresh evidence' and 'new evidence' at [707]:
"The law makes a distinction between 'new evidence' and 'fresh evidence.' 'New evidence' is evidence that was available and not adduced at the trial. 'Fresh evidence' is evidence which either did not exist at the time of the trial or, if it did, could not then have been discovered by an accused exercising due diligence". (citation omitted)
162The appellant accepted the evidence contained in the affidavit of Ms Duncan of 6 October 2011 was not 'fresh evidence', but nonetheless submitted that that evidence supported an order of acquittal. The appellant contended that this new evidence, when considered alongside the other evidence in the trial, was sufficient to raise doubt as to the appellant's guilt. The appellant submitted that, having regard to all of the evidence, including the new evidence, the Court would be positively satisfied of the innocence of the appellant, or have a doubt as to the appellant's guilt. The appellant relied, in particular, upon the following statement in Ratten v The Queen [1974] HCA 35; 131 CLR 510 at 518, per Barwick CJ:
"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." (emphasis added)
163The Crown submitted that the new evidence, upon which the appellant relied, was not of a quality that of itself demonstrated innocence and thereby did not satisfy the fifth principle outlined by Kirby J in Abou-Chabake in relation to an acquittal. Nor did this evidence satisfy the principle that applied for a new trial.
164With respect to the Crown's primary submission, the appellant in reply contended that there was no requirement in the authorities that the new evidence itself demonstrated innocence or was of such cogency that, without more, it gave rise to a reasonable doubt. Rather, the Court needed to make an independent assessment of the new evidence in light of all of the evidence at trial.
165I have read the full transcript of the evidence in this matter as required of an appellate court when this ground of appeal is raised: see M and MFA.
166The evidence adduced by the Crown and that adduced by the appellant was almost in perfect contradistinction. From the appellant's side, the evidence sought to minimise the close relationship between the families, the frequency of their contact and the nature of the relationship between M and the appellant's daughter Sh. The evidence adduced on behalf of the Crown was that the families had a close relationship from the time M's family arrived in Australia. The families socialised together, M and Sh were very close and there were frequent sleepovers.
167A significant feature of the case was M's credit and reliability. That was to be expected. There were essentially four areas of challenge to her credit and reliability. The first was the date upon which the sexual contact had commenced. M's evidence changed on this. She first said it was the December/January school holidays 2001. She later said she thought it was the September school holidays. It is clear it could not have been the December/January school holidays.
168The second was the movie that was watched on the occasion of the first, second and third counts in 2004. There seemed overall consensus in the evidence that the families celebrated Sh's birthday together on that occasion. In her ERISP, M first identified the movie as Chicken Little and then corrected that to say it was The Incredibles. If the new evidence is admitted, the children could not have watched The Incredibles on that occasion. However, M's evidence in cross-examination was she thought it was The Incredibles that she watched on that sleepover (above at [39]). When challenged again on this, she said:
"I remember watching The Incredibles on a computer. I think it was on that night. I do know I did watch a movie on that night."
169The third and perhaps most critical challenge was the date upon which counts 4 and 5 occurred. M never precisely identified on what night this conduct had occurred, although on the ERISP, the date most likely to have been identified was 23 December 2006. In cross-examination, she said it "may not have been 23 December ... it could have been maybe even a week before that" (above at [53]). She remained constant in her evidence that although she had told the police she thought the last occasion was on 23 December, she had also said that she was not sure. As it turned out, the weekend before 23 December was the weekend about which the appellant did not give convincing evidence.
170For myself, I did not find the evidence of the appellant, overall, to be convincing. There were some contradictions between his evidence and that of his wife. Whilst that might be expected, there were some points of contradiction that were particularly important. One significant contradiction was his evidence that he did not go into the bedroom when there was a sleepover. He said that only his wife checked on the children (above at [94]). By contrast, his wife said that she and the appellant would take turns in checking on the children. She also said that her husband was the one who turned the computer off if the movie had finished or the children had fallen asleep. The appellant's evidence that he did not go into the bedroom when the children were in bed was also contradicted by L's evidence.
171Another aspect of the evidence that was unsatisfactory was in respect of the closeness of the relationship between M and Sh. The appellant initially said that their relationship was "one of the closest" (at [113] above). However, he downplayed the relationship in later cross-examination when he said that they were "not particularly" close (at [113] above). The appellant's wife also downplayed the closeness of the relationship. Her evidence was that L was more fond of Sh than M was and that L stayed over more frequently than M (at [143] above). This was contradicted by M's evidence, but more particularly by L's evidence.
172The appellant's evidence was that the families were "not exactly" close and they only socialised because they were family. This was different from the effect of the following evidence of his wife. In giving evidence of the relationship in 2002 and 2003, following the family argument, the appellant's wife said that after M's mother returned from India, she had "some hope that we could pick up from where we left off" (at [132] above). She did not indicate in her evidence that her hope did not materialise, whereas the appellant in his evidence said that there were lingering tensions right up until the beginning of 2007, which he considered emanated from M's family.
173In another part of the appellant's wife's evidence, she too sought to downplay the closeness of the relationship between the families when she said that the families were mostly close for the "sake of the kids" (above at [144]). She said that the apparent closeness of the families was in fact "a façade". She said there was a lot of underlying tension which went back to their time in the Middle East. She stressed that they did a lot of things together for the sake of her daughter, Sh.
174There were a number of other differences, but not of such significance. For example, there was a difference in the evidence of the appellant and his wife about the improvement of the relationship between the families in 2003. However, that difference in the evidence may have been merely a difference of perception as to the cause of the improved relationship.
175The appellant sought to support his own evidence where possible. This was so in respect of his activities on the first two weekends in December and his activities on 22, 23 and 24 December. The veracity of his alibi notice was successfully attacked in part, but not, in my opinion, critically as to his activities on the night of 23 December. However, for my part, I am not satisfied that M's evidence as to the date of conduct involved in counts 4 and 5 could reasonably be confined to 23 December. It is apparent that the jury did not so confine it, notwithstanding the trial judge's statement in the summing up. It should be accepted that the jury exercised an independent mind in that regard.
176The appellant contended that he did not have the use of a work computer until mid 2005. However, the jury did not have to accept that evidence. There was also the evidence in relation to the projector that was not independently supported. Had the jury accepted the appellant's evidence, at least in its substantial aspects, including his denial that he had committed the offences alleged, they would have acquitted him. It is apparent, however, by the jury's finding of guilty, that they did not accept the appellant's denials and must have rejected other aspects of his evidence. On that assumption, the jury had to be satisfied, beyond reasonable doubt, on M's evidence and to the extent that there was evidence in support from her parents and L, that the appellant had committed the offences.
177The appellant contended that certain answers M gave in the ERISP were such that L must have known that the appellant was assaulting M, if in fact that occurred. The following questions and answers were critical to this submission:
"A414 And yeah, so then [L] would wake up, she would move. And then [L] waking up made me wake up, so then I thought, and then realized he was there and that, so, the same, the same routine, the same thing.
...
Q430 OK. So when you said the first time, before you said that you were, you woke up, [L] woke up, which made you wake up and you realised that your uncle was in the bed, is that right?
A Mmm.
Q431 So when you were watching the movie, did you watch the whole thing, or did you fall asleep, or were you awake or something else?
A I fell asleep around halfway through the movie.
Q432 OK. And, and it was when, was that when you woke up next, when [L] woke up?
A What, like what happened was, [L] heard him coming in. I knew that because otherwise she wouldn't have woken up, so [L] probably heard him coming in. And when he came in, he got into the bed. I knew that she was awake because she always, when, when she wakes up, she doesn't stay lying down, she gets up and then she kind of just bounces on the bed and she just sits there and tries to make people like notice that she's there.
...
Q449 OK. OK. So, you noticed that [L] woke up and you noticed that he was there and he was getting into bed lying down, he was about to lie down. What did [L], what did, did you see [L] then, after that - -
Q450 - - or - -
A Yeah, [L] was just sitting up and she was just looking at me. And I just went, Oh, go to sleep. So she just went to sleep and I went to sleep.
...
Q474 - - what made it stop?
A No, I don't know why he stopped. Maybe, maybe he was afraid that [L] might see what he was doing - -
...
Q516 OK.
A And then [L] came with me. And then he came back to check if we were OK, and I said, Yeah, we're fine. And we went back there and then he came back.
Q517 OK.
A And then he started touching me again.
Q518 And so when you said that you needed to go to the toilet, who were you saying that to?
A To him, my uncle.
Q519 To him. And how did [L] know that you were saying that you needed to go to the toilet?
A I don't know, maybe she was awake - -
Q520 OK.
A - - cause, yeah, knew that, yeah.
Q521 So then [L] said that she will come with you, too.
A Yep.
Q522 OK. When you got out of the bed to go to the toilet, was your uncle still in the bed, or he'd, had he got out of the bed, or something else?
A I went. And he kind of sat up.
Q523 Yes.
A And then my, then [L], when [L] got out of bed and she followed me, he followed us. And he went and he knocked on the door and he said, Are you OK? And we said, Yeah, we're fine. And we got out of the bathroom and we went back to the bed.
Q524 OK. So then you went back to the bed. And what did you do once you back into the bed?
A I got in and [L] got in and then he came."
178At Q and A499 M said that L was mostly asleep on the occasions the appellant assaulted her and at A500, that L did not know "what was going on".
179The appellant submitted that this answer was consistent with M's knowledge that L would not support her. In effect, the submission was that M was not only fabricating her story, but also providing her own 'cover' to explain away the obvious inconsistency she knew she would be confronted with in the description of how the assaults occurred.
180The appellant also relied upon the following cross-examination to counter the Crown's argument that there was no evidence that L was "awake, conscious and aware that something unusual was occurring at a time when the appellant committed the offences":
"Q. ... When uncle first got into the bed [L] was awake wasn't she?
A. Yeah.
Q. You told us that?
A. Yeah she probably was.
Q. So why on earth couldn't you elicit her help?
A. Pardon?
Q. Why on earth, I'm sorry about that, why on earth ask her for help?
A. I don't know it didn't occur to me at the time."
181The appellant contended that L did not give any evidence of sitting up in bed to find him in bed with them. The appellant submitted that, given M's account, it was inconceivable that he could have sexually assaulted her without L being aware of it. I do not agree. There were aspects of L's evidence that did support M's evidence and in certain respects it did so in a compelling way. In other respects there were differences in the evidence, including the bedroom in which the children watched Charlie and the Chocolate Factory. However, it would be unusual if there were not differences in their recollections.
182The task on this ground of appeal is for the Court to determine whether, on the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty: see M cited at [7] above. In undertaking this task, I am required, in accordance with the instruction in M, at 492-494, to make an independent assessment of the evidence. In that regard, having considered that the appellant's evidence was not convincing, it has been necessary to carefully assess the evidence adduced by the Crown.
183Since preparing my reasons for judgment, the High Court has handed down its decision in Douglass v The Queen [2012] HCA 34. That case involved the credibility and reliability of a young child, who at age three made allegations of aggravated indecent assault in response to leading questions and after initially denying the conduct that was said to constitute the offence. Relevantly, the Court reaffirmed the principle that in a criminal trial the jury (or in a judge alone trial, the judge) must determine whether the evidence taken as a whole proves the elements of the offence beyond reasonable doubt: see Murray v The Queen [2002] HCA 26; 211 CLR 193. It is not merely a question of preferring the evidence of one witness over the evidence of another. The question of reliability of the child's evidence had to assessed having regard to its inconsistencies.
184In this case, the evidence adduced by the Crown, even with its variations amongst the Crown witnesses, did not cause me to have a doubt that the appellant committed the various acts that comprised the offences with which he was charged. In any event, this was a case where I consider that the jury had an advantage in seeing and hearing the witnesses. They were faced with conflicting evidence and evidence that in some respects was inaccurate or uncertain. These inaccuracies and uncertainties have been set out in the extracted portions of the evidence. Given his Honour's direction as to the date of the 2006 offences and the jury's clear and independent determination that the offences must have occurred earlier, considerable weight must be given to the jury's assessment of the witnesses and in particular, their assessment of the credibility of the complainant. If I were to have a doubt, the jury's advantage in seeing and hearing the evidence in this case would have resolved that doubt for me. I would reject ground 1.
185My conclusion has involved a consideration of M's evidence in its totality, including those aspects of her evidence that must have been wrong. In particular, if account is taken of the new evidence, she must have been wrong as to the movie she watched in 2004 on the occasion of counts 1, 2 and 3 . Having said that, as a matter of principle, the new evidence sought to be adduced does not satisfy the requirement that it be of such cogency as, relevantly, to cause the Court to entertain a reasonable doubt as to the appellant's guilt. As I have said, M's evidence was that she thought The Incredibles was the movie she watched on that occasion, but that it was certainly a movie that she had watched on some occasion of a sleepover. The reliability of that evidence was a matter for the jury. Nor is it fresh evidence, so that the principles relating to a new trial have not been satisfied.
186It follows in my opinion, that the new evidence does not satisfy the principles for admissibility and ground 1A should be rejected.