Criminal law - Appeal against conviction - Application for new trial on the grounds of the discovery of fresh evidence - Conviction for indecent dealing without consent of a child between the age of 13 and 16 years - Admissibility of evidence of supply of liquor to juveniles on other occasions - Admissibility of evidence to prove that accused lied to police in videotaped record of interview - Extent to which exculpatory statements made to police in videotaped record of interview on collateral issues justify the prosecution to tender evidence to refute explanations then made - Prejudicial effect of evidence compared with probative value - Test for grant of new trial in the light of fresh evidence

Allied Interstate (Qld) Pty Ltd v Barnes [1968] HCA 76; (1968) 118 CLR 581

Button v The Queen [2002] WASCA 35; (2002) 25 WAR 382

Day v Dyson [1965] VicRp 22; [1965] VR 165

Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193

Gallagher v The Queen [1986] HCA 26; (1986) 160 CLR 392

Harriman v The Queen [1989] HCA 50; (1989) 167 CLR 590

Healy v The Queen (1995) 15 WAR 104

Hills v Sklivas [1995] VicRp 37; [1995] 1 VR 599

Jaensch v The Queen [2000] WASCA 212

Mallard v The Queen [2003] WASCA 296; (2003) 28 WAR 1

Mawaz Khan v The Queen [1967] 1 AC 454

Middleton v The Queen (1998) 19 WAR 179

Milton v The Queen [2000] WASCA 25

Mule v The Queen [2004] WASCA 7

Pfennig v The Queen [1995] HCA 7; (1995) 182 CLR 461

Piddington v Bennett and Wood Pty Ltd [1940] HCA 2; (1940) 63 CLR 533

Pollitt v The Queen [1992] HCA 35; (1992) 174 CLR 558

R v Beck [1990] 1 Qd R 30

R v Bridgman (1980) 24 SASR 278

R v Chin [1985] HCA 35; (1985) 157 CLR 671

R v Gay [1976] VicRp 59; [1976] VR 577

R v Hall [1952] 1 KB 302

R v Sharp [1988] 1 WLR 7

Subramaniam v Public Prosecutor [1956] 1 WLR 965

Sutton v The Queen [1984] HCA 5; (1984) 152 CLR 528

Walton v The Queen [1989] HCA 9; (1989) 166 CLR 283

Willis v The Queen [2001] WASCA 296; (2001) 25 WAR 217

Wimpole v McIlwraith [1923] VicLawRp 68; [1923] VLR 553

Casey v The Queen, unreported; CCA SCt of WA; Library No 950064; 22 February 1995

1 STEYTLER J: I have had the advantage of reading, in draft, the judgment of E M Heenan J. I am consequently able to be brief in the expression of my reasons for joining in his conclusion that the appellant's convictions on two counts of indecent dealing with a child aged between the ages of 13 and 16 years contrary to s 321(4) of the Criminal Code and one count of sexual penetration of that child, on the same evening, contrary to s 321(2) of the Code, should be quashed and a retrial ordered.

2 As has been more fully explained by E M Heenan J, the three offences were alleged to have been committed, on an evening in July 1999, by the then 39-year-old appellant on a then 13-year-old girl, NMS, who was, at the time, so affected by alcohol that she had got sick all over herself and had barely been able to walk. The alcohol that she had consumed had been obtained by her, at least in part, at a party held at the appellant's home in Gosnells, where the appellant lived with his two teenage sons. The party had been held to celebrate the birthday of the appellant's niece, YBF, who was then 21 years old. The appellant and YBF were the only adults present, the rest of the guests, some 15 to 20 of them, having been teenagers.

3 YBF, having found NMS in her drunken and soiled condition, decided to wash her down. The principal controversy at the trial related to what happened thereafter.

4 NMS' evidence was to the effect that, after she had been placed, fully clothed, in the shower by YBF, the appellant took off her outer clothes (although she could not recall whether or not it was him who had also removed her underwear) and she was placed, naked, in a bath. She said that the appellant then fondled her breasts and placed his hand on her vagina, under the guise of feeling the temperature of the water. NMS said that, after she had had her bath, she was draped in a towel, taken to a bedroom by the appellant and YBF, and laid, naked, on a bed in the appellant's bedroom. The appellant remained, alone, in the bedroom with her and it was then that the sexual penetration took place. She was later fetched from the bedroom by her friend, and went home.

5 YBF, in her evidence, said that she alone had tended to NMS in the bathroom and put her in the bedroom. She made NMS drink some coffee and placed some clothes on the bed for her. After putting on the clothes, NMS went to sleep. YBF left, after locking the bedroom door and taking the key. She locked the room because she was concerned to protect her belongings in the room. When she returned at 9 am the next morning, the room was still locked.

6 The only other person who witnessed any events in the bathroom or bedroom was a teenage boy, CRH. He said that he saw the appellant and YBF in the bathroom at a time when NMS was being sick in the toilet. He said that NMS was then clothed. He did not see anything else of relevance.

7 The appellant did not give evidence at the trial. He had been the subject of a videotaped interview conducted by two police officers and the videotape was tendered in evidence by the prosecution. Because the appellant's answers to the questions put to him were largely exculpatory, he elected, as is so often the case these days, to rest his defence upon the strength of those answers as they appeared in the videotape. However, there had been some controversy, prior to the commencement of the trial before the jury, as regards the use to which some of the videotaped material might be put.

8 In the course of the videotaped interview the appellant had denied that he had supplied NMS with alcohol, saying that she had arrived at his house in an intoxicated condition. However, he acknowledged that alcohol had been readily available at his house (although he said that he did not knowingly let juveniles, other than his own children, drink alcohol in his home). He also acknowledged that, after NMS had been sick over her clothes, YBF had put NMS in a bath (he said that, as far as he knew, NMS was then still fully clothed) and said that YBF had asked him to make NMS a cup of coffee, but that he did not know whether or not he had done so. He said that, if he had gone into the bathroom, "it would have been in the initial time when ... [YBF] took ... [NMS] into the bathroom" and that he "wouldn't have gone back". He denied that he had any improper contact with NMS either in the bathroom or in the bedroom. He added that he could not have had sexual intercourse with NMS in any event, as he had been impotent since before 1999. He invited the police to check his medical records and gave them the name of his medical practitioner, Dr Burkett.

9 The appellant was questioned, in the course of the interview, about another incident at a party held some time after the alleged offences when he had tried to "crack onto" a 16-year-old girl, KLOM, by asking her sister, MM, if he could have sex with KLOM. However, he said, he "never even bothered" and later "passed out on the lounge" (KLOM, at the trial, said that she had overheard the question put to her sister and made plain her opposition to it). He was also questioned about other parties at his home and it was put to him, in effect, that he had commonly supplied alcohol and cannabis to young people at parties at his home. He acknowledged that young people had often consumed those substances at his home, but denied that it was him who had supplied those young people with them.

10 Counsel for the appellant disputed the admissibility of the videotaped evidence with respect to KLOM. He also disputed the admissibility of evidence which the prosecution proposed to lead from KLOM herself, encompassing evidence of the appellant's inquiry to her sister (and of KLOM's response when she overheard that inquiry) and also evidence to the effect that, during a period in which she had lived in the appellant's home, there had been lots of parties at which the appellant would provide the alcohol and try to get her drunk by pouring very strong drinks. Counsel for the appellant's objection was based upon the propositions that the evidence concerning the "advance" to KLOM disclosed the commission of a possible offence (he said that the evidence might establish that KLOM was under the appellant's care or authority at the time, giving rise to an attempted offence under s 322 of the Criminal Code) and, in effect, (although he did not put it quite like this) that its prejudicial effect outweighed its probative value.

11 The trial Judge was inclined to discount the first of those possibilities, saying that the evidence did not go so far as to establish any relationship of care or authority, and merely disclosed that KLOM had then been living in the appellant's house. He also said that the evidence tended to rebut the appellant's claim of impotence and might consequently be admissible upon this basis. Counsel for the appellant thereupon said that he would consent to the deletion, from the videotape, of any comments with respect to the issue of impotence and that he could give an undertaking that impotence would not be raised as part of the appellant's defence at the trial. When the prosecutor was invited to express an opinion on this suggestion, he responded by saying that the fact that the appellant had lied to the police (as the prosecutor saw it) with respect to his impotence was a matter which bore upon the appellant's credit and that the evidence concerning KLOM was admissible upon that basis. He also told the trial Judge that he proposed to lead evidence from Dr Burkett (as he subsequently did, by way of the tender of a statement from Dr Burkett) to the effect that the appellant had consulted him on 8 July 1999 (the offences were said to have been committed between 1 and 10 July 1999) with respect to his alleged impotence. Dr Burkett's statement revealed that a blood test was then taken and that, although Dr Burkett considered sending the appellant for further tests, he did not again see the appellant in regard to the test results and had "never had cause to treat ... [the appellant] for any complaint of impotence ...".

12 The trial Judge (unprompted by counsel for the appellant) also questioned the prosecutor about the admissibility of evidence with respect to the general availability, at the appellant's home, of alcohol and drugs. The prosecutor contended, in response, that this evidence was relevant and admissible as to the appellant's credibility because of his denial in the videotaped interview that he had supplied alcohol to NMS on the night in question, contrary to her evidence, and also because of his denial that he supplied alcohol to underage teenagers at his home, contrary to the evidence of several people who had attended parties there. This evidence was also said to buttress NMS' credibility as to the course of events on the night of the alleged offences.

13 Having heard, and participated in, the debate between counsel, the trial Judge informed counsel for the appellant that he was "ruling against" him. While he did not offer any reasons in support of that ruling, it is apparent from his part in the debate that the trial Judge considered that the evidence relating to KLOM was relevant as tending to rebut the appellant's claim of impotence, that its prejudicial effect was outweighed by its probative value and that the claim of impotence should not be edited from the videotape because it might be found to be a lie and, hence, to be material to the jury's deliberations (albeit his Honour did not say whether or not he regarded the lie, if it was such, as being incriminatory, in the sense that it was told because the appellant was conscious of his guilt and "knew that the truth of the matter about which he lied would implicate him in the offence": Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193 at 211, or as being one which went, merely, to the credibility of the appellant). His Honour appeared also to regard the evidence of the supply of alcohol and the availability of cannabis on other occasions as being admissible upon the basis contended for by the prosecutor, notwithstanding its prejudicial effect.

14 Evidence was subsequently led, at the trial, from KLOM in the respects foreshadowed and, as I have said, the statement from Dr Burkett was tendered. As E M Heenan J has said, no suggestion was made by the appellant's counsel to NMS, in the course of cross-examination, that the alleged sexual intercourse could not have occurred because of the appellant's impotence and nor was that issue otherwise raised except in the course of the videotape tendered by the prosecutor.

15 Evidence was also led of other occasions upon which the appellant and others had supplied alcohol and cannabis at his home (albeit only one witness, KLOM, said that the appellant himself sometimes supplied the cannabis), most of these occasions having been subsequent to the time of the alleged commission of the offences against NMS by the appellant.

16 Against this background, it is convenient to deal first with grounds 2 and 3 of the grounds of appeal. They are to the effect that the trial Judge erred in admitting evidence that the appellant had, on unspecified occasions, supplied or made available alcohol and cannabis to teenagers and that he had, on an unspecified occasion subsequent to the period 1 to 10 July 1999, made a sexual advance to KLOM.

17 I will deal, first, with the second of those grounds (ground 3) relating to the sexual "advance" to KLOM.

18 The evidence concerning this advance lent no assistance at all to the proof of the commission of the alleged offences against NMS, except, perhaps, by way of evidence of the propensity of the appellant to "crack onto" young girls. Even then, its value was tenuous. KLOM was 16 years old, whereas NMS was 13. The circumstances of each occasion were very different. The incident with KLOM was, as I have said, some time after that with NMS. Plainly, the prejudicial value of this evidence (showing, as it did, the disreputable nature of the appellant's character in, as KLOM effectively put it, plying her with alcohol over a period when he apparently wanted to have sex with her, notwithstanding that she was only 16 years old) by far outweighed its very limited direct probative value. It was no doubt for that reason that its propensity value was not relied upon by the prosecutor for its admissibility: see, for example, Harriman v The Queen [1989] HCA 50; (1989) 167 CLR 590 and Pfennig v The Queen [1995] HCA 7; (1995) 182 CLR 461. Consequently, the only basis upon which this evidence could properly have been admitted was for the purpose of demonstrating that the appellant had lied about his impotence in the course of his videotaped record of interview.

19 The lie, if it was found to have been such, was not one which was advanced by the prosecution as reflecting a consciousness of guilt. Indeed, during the trial the prosecutor expressly disclaimed any such reliance and said that it should be left to the jury (as it subsequently was, by the trial Judge) only as a matter reflecting upon the appellant's credibility. In my opinion, while the lie, if found to be so, had some value in that respect, that value was outweighed by the prejudicial effect of the evidence which tended to establish it. As E M Heenan J has said, the value of the evidence concerning KLOM, insofar as it tended to establish the lie, was lessened by the fact, recognised by the trial Judge, that a drunken inquiry (and that is all it ever was) about the possibility of having sex with a young girl, while no doubt inconsistent with a state of impotence, does not, of itself, go so far as to establish that the appellant was not, in fact, impotent. On the other hand, the evidence of and concerning KLOM was undoubtedly evidence of a highly prejudicial kind which, as I have said, showed a propensity, on the part of the appellant, to engage in discreditable conduct of a sexual kind with young girls. Its prejudicial effect (of a kind which, it seems to me, could not adequately be obviated by any directions to a jury) was such as, by far, to have outweighed its probative value and, in circumstances in which the prosecution disclaimed any reliance upon the alleged lie as reflecting a consciousness of guilt and in which the appellant was prepared to edit out of the videotape any reference to his impotence and to undertake not to raise any claim of impotence in support of his defence, it should, in my opinion, have been excluded: see Sutton v The Queen [1984] HCA 5; (1984) 152 CLR 528 at 534, per Gibbs CJ, and 565, per Dawson J. I should add that, in my respectful opinion, any such editing of the videotape could have been achieved without distorting the balance of the appellant's interview, the principal importance of which, from the prosecution's perspective, was presumably the admission, by the appellant, that he may have been in the bathroom when NMS was there.

20 I would consequently uphold this ground of appeal.

21 As to ground 2, the evidence of the supply of alcohol and of the ready availability of cannabis at the appellant's home on other occasions (comprehensibly described in the judgment of E M Heenan J) was of little or no probative value to the allegation that the appellant had sexually assaulted NMS. While her evidence was that the appellant had supplied her with alcohol on the night in question, there was evidence that he had done the same for others, and there was little to suggest (and the prosecutor did not contend) that his motive in supplying NMS with alcohol was that of enabling him, later, to have sex with her. Rather, the evidence appeared to indicate that the alleged sexual assaults were opportunistic, when the appellant came to assist YBF in cleaning NMS up in the bathroom and later taking her to the bedroom. Consequently, the disputed evidence had only the limited value of demonstrating that the appellant had lied (if the jury was to find that he had done so) about his activities concerning the supply of alcohol and/or cannabis which, in the way in which the prosecution case was run, was an issue which was essentially peripheral to the commission of the alleged offences.

22 On the other hand, the evidence of what took place on other occasions had considerable prejudicial effect, showing, as it did, the appellant's disreputable tendency to corrupt young people by encouraging underage drinking on a large scale and by (at the very least) doing nothing to prevent drug-taking by children in his own home. It consequently seems to me that this evidence, too, should have been excluded (see Sutton v The Queen, above, (ibid)).

23 I should add, as E M Heenan J has done, that, while the evidence established that, after the time of the alleged assaults, NMS chose to move into the appellant's house after falling out with her mother, no attempt was made to support the admissibility of this evidence by reference to any suggestion (and there was none in the evidence) that the ready availability of drugs and alcohol at the appellant's home might be taken to explain why she should have done so (cf Jaensch v The Queen [2000] WASCA 212).

24 That leaves only ground 1, which rests upon the availability of the fresh evidence (and it is conceded to have been so by the respondent) referred to in the judgment of E M Heenan J. I will not repeat all that his Honour has said in that regard, save to say that the effect of the evidence (from a third person, TM, who claims to be independent of the appellant) was, essentially, that NMS had volunteered to him that she had "put a man in gaol" for raping her when he had not done it, her mother having "put her up to it" in the belief that she could "get money out of him". As E M Heenan J has said, NMS gave evidence before us (by video facility) to the effect that she had said no such thing to TM and that her account of what had been done to her by the appellant was true. She said that she and TM had last parted on bad terms.

25 I agree with what E M Heenan J has said in respect of the tests to be applied when a Court is confronted with fresh evidence of this kind (as to which see Gallagher v The Queen [1986] HCA 26; (1986) 160 CLR 392 and Mallard v The Queen [2003] WASCA 296; (2003) 28 WAR 1 at [16]). I also agree with E M Heenan J, generally for the reasons that he has given, that the fresh evidence in this case is such as to satisfy those tests, the evidence being properly categorised as fresh, the fresh evidence being capable of belief by a reasonable jury (albeit I had some reservations in that regard, both because I considered TM not to be a particularly impressive witness and because, by his own admission, he had been in the midst of a significant period of drug and alcohol abuse at the time at which the admissions were said to have been made to him by NMS) and there being, in all of the circumstances of this case (most particularly taking into account the fact that the trial turned very much upon the jury's assessment of NMS'

credibility), a significant possibility that the jury, acting reasonably, would have acquitted the appellant had the fresh evidence been before it.

26 It follows, as I have foreshadowed, that in my opinion there has been a substantial miscarriage of justice such that the appeal should be allowed, the appellant's convictions quashed and a retrial ordered.

27 WHEELER J: I have had the advantage of reading in draft the reasons for decision of Steytler J and of E M Heenan J. As to grounds 1 and 2, I agree with what each of their Honours has written about those grounds, and it was for that reason that I joined in the orders allowing the appeal. So far as ground 3 is concerned, which is that relating to the sexual advance to KLOM, I take a different view. It is my view that in relation to that evidence, it was probative and admissible and was correctly admitted, notwithstanding its somewhat prejudicial effect.

28 The view that I take of this evidence, however, rests upon a view as to the relevance of the evidence capable of bearing upon the appellant's alleged impotence which appears to be different from that taken by the prosecution at trial. Indeed, it seems to me, with respect, that the prosecutor was somewhat confused about the basis upon which the evidence could have been adduced. In order to explain that view, it is necessary to consider all of the evidence which may bear upon this issue.

29 The evidence does not establish with precision the date on which the alleged offences occurred. However, it appears that it must have been early in July 1999. The complainant had attended at the appellant's house on that night for the purpose of going to a party. The party was a birthday celebration for YBF, who was born on 10 July. She was unable to recall whether the party took place on her birthday or shortly before or shortly afterwards. REC went to live at the appellant's house "around" July 1999. The complainant was living there already and she and REC shared a bedroom for "a couple of weeks". In cross-examination, REC gave a date of moving into the house as "July, August" of that year. She said that when she moved in the complainant was already living there. She also said that she had met the complainant on only a few occasions at parties at the house over the preceding six month period. It was the complainant's evidence that she had moved in to the appellant's house on the day following the alleged offences.

30 The evidence of the appellant's general practitioner was that it was on 8 July 1999 that the appellant mentioned that he was suffering from

impotence and that the general practitioner took a blood test which apparently related to this complaint. It was also the general practitioner's evidence that he did not see the appellant again in relation to the blood test results and had no record of any further treatment of the appellant in relation to a complaint of impotence. He did see the appellant after that visit of 8 July 1999, the last occasion on which he saw him being 17 March 2000.

31 When interviewed by police in August 2001, the appellant had the complainant's allegations put to him. The questioning at the relevant point went as follows:

"She said you - you rubbed her breasts again. So that was the second time: once in the bath, and once in bed.

Yeah OK.

Well - and then she goes on to say that you've jumped in bed with her, and had sexual intercourse with her.

Do me a lot of good, wouldn't it?

Have you had sexual intercourse with her?

No. I never have. I couldn't have, anyway.

Why is that?

Go and check my doctor's records. I've been impotent since before 99. I can't get an erection, so what's the point of trying to have -

I see?

-- Sex with somebody?"

32 The appellant referred the police to the general practitioner who gave the evidence to which I have referred.

33 It can be seen then that as part of his denial of these offences, the appellant not only said that, being impotent, he was unable to commit the sexual penetration offence which was count 3, but that there was in effect "no point" in his indecently dealing with her in the other ways described in the other counts.

34 In my view, it would have been open to the prosecutor to submit that in attending upon his general practitioner at the time at which he did, the appellant was attempting to manufacture for himself a defence upon which he subsequently attempted to rely, and a defence which he knew to be false. Even without the evidence relating to KLOM, a foundation for a submission of that kind would be found in a number of factors, they being: the proximity of the complaint of impotence to the date, so far as it could be ascertained, of the offences; the fact that the complaint of impotence was apparently the first of its kind made to the general practitioner; and the fact that there was apparently no follow-up in relation to the blood test, no further complaint of impotence, and no further attempt to obtain any treatment or advice in relation to that condition. This was not then, simply a case of a lie told to police; it was a case of an attempt, at a date very close to the date of an offence, to manufacture evidence of a condition which would be incompatible with the commission of the offence. Just as, in some circumstances, evidence of flight may be adduced as evidence showing a consciousness of guilt on the part of an accused person, and may be admitted even where the circumstances of the flight are prejudicial (see R v Gay [1976] VicRp 59; [1976] VR 577, R v Bridgman (1980) 24 SASR 278), evidence of an attempt to falsely demonstrate incapacity to commit an offence would generally be probative and admissible.

35 The evidence relating to the sexual advance to KLOM was a further circumstance suggesting that the appellant was not impotent in the latter part of 1999. It is true that the appellant is alleged to have done no more than enquire about whether he would be permitted to have sex with KLOM. Such an enquiry is not necessarily inconsistent with impotence, but it is at the least odd behaviour for a man who had (as the appellant alleged to police) been impotent from before 1999 until at the least the time he was interviewed in 2001. As the appellant himself asked the police "... what's the point of trying to have sex with somebody?" for a person who suffers from that condition. While the enquiry did not go so far as to demonstrate conclusively that the appellant was not impotent, then, it was a circumstance which could be put together with the other matters to which I have referred and which might permit the jury to be satisfied that, not only was the appellant not impotent, but that he had manufactured his story of impotence out of a consciousness of guilt shortly after the commission of the offences.

36 Of course, given that the appellant was 39 and KLOM 16 at the time at which his drunken enquiry about having sex with her was made, the evidence concerning KLOM plainly placed the appellant's character in an unfavourable light. However, I am not able to regard it as so highly prejudicial that it should have been excluded notwithstanding its probative value. There is a very important distinction between sex with a 16-year-old girl (even had the appellant's drunken purpose been carried out) and the offences alleged here, in that it would not have been an offence for the appellant to have had sexual intercourse with KLOM. Although there was some suggestion by the appellant's counsel at trial that the enquiry may have revealed an attempt to commit an offence, in that KLOM might have been regarded as under the appellant's "authority", that seems to me an unlikely conclusion, and one hardly likely to have been considered by a jury.

37 His Honour did give the jury a propensity reasoning warning directed to the evidence relating to KLOM. In my view, it would have been improved by pointing out to them that, as probably most people in the community are aware, even if attempting to have sex with KLOM was somewhat disreputable (assuming that the jury accepted that he done so), it was not an attempt to do anything which was unlawful.

38 For the reasons which I have given, it is my view that the evidence relating to KLOM was both probative and rightly admitted. It also follows from what I have said that it would have been quite wrong for his Honour to have acceded to the defence suggestion that the video should be edited so as to omit any reference to the appellant's alleged impotence.

39 Before leaving this matter, however, I would add only the following observation. It has not been necessary to consider broader questions surrounding the editing of videotaped records of interview, or the admissibility of evidence which demonstrates that some things said on the videotape are untruthful. However, I do have some difficulty with the concept that where, in a videotaped record of interview, an accused person can be demonstrated to have lied, not about an extraneous matter, but about a matter central to the offence charged (such as his capacity to commit it), the prosecution is unable to adduce evidence demonstrating that the accused has lied because such evidence would be relevant only to his "credit". The difficulty arises because of the peculiar status of such an interview, which has been described in some detail in the reasons of E M Heenan J.

40 Exculpatory statements made by an accused person in the course of a mixed interview containing both admissions and exculpatory statements, are evidence upon which a jury may place weight. All other witnesses in a trial generally give evidence on oath and are able to be cross-examined.

If an accused person had made the exculpatory statements contained in the interview from the witness box, he or she would be cross-examined about them. While, if the exculpatory statement went only to credit, the prosecutor would be bound by the accused's answer, at the least in that case the prosecutor would be able, in the conventional way, to explore with the accused the consistency or inconsistency between those exculpatory statements and any other evidence in the case, and the jury would be in a position to consider the accused's demeanour when confronted with the suggestion that the exculpatory statements were false.

41 Even if, as in this case, the accused did not wish to rely upon a particular exculpatory statement, it would obviously be relevant to the jury's consideration of the interview as a whole to know that some assertions made by the accused about the alleged offence were demonstrably false. If the accused is not able to be cross-examined on the statement, it is arguable that it is important that they have at least what other limited tools for evaluating it as may be available.

42 The usual rule that evidence may not be adduced to contradict a witness on a matter going to credit stems from a desire to keep trials within manageable limits, and evolved in a context in which cross-examination itself was seen as an effective means of testing the evidence of a witness. It may be that the rule which has developed as to the admissibility of the exculpatory statements of an accused, when made during the course of a "mixed" interview, may require some re-evaluation of the question of whether it is open to the prosecution to contradict those exculpatory statements by the calling of evidence. However, these difficult issues fortunately need not be considered on this occasion.

43 EM HEENAN J: The appellant, Ivan William Slater, was tried before his Honour Judge H H Jackson and a jury in the District Court of Western Australia in a trial lasting three days on an indictment containing four counts alleging offences committed on a night in July 1999 against a girl, NMS, then aged between 13 and 16 years. The indictment alleged two offences of indecent dealing with a child between the ages of 13 and 16 years contrary to s 321(4) of the Criminal Code and two further offences of sexual penetration of NMS, a child between the ages of 13 and 16 years, contrary to s 321(2) of the Code. At the end of the trial the appellant was convicted on the first three counts in the indictment and acquitted on the fourth. The offences of which the appellant was convicted were that:

"(1) on a date unknown between 1 July 1999 and 10 July 1999 at Gosnells the appellant indecently dealt with NMS a child between the ages of 13 and 16 years;

(2) and further, that on the same date and at the same place the appellant indecently dealt with NMS a child between the ages of 13 and 16 years;

(3) and further that on the same date and at the same place the appellant sexually penetrated NMS a child between the ages of 13 and 16 years."

44 From these convictions the appellant appeals to this Court seeking an order that the convictions be quashed and a new trial ordered. There are three grounds of appeal, namely:

"1. that the conviction(s) should be set aside and a new trial ordered as a result of fresh evidence obtained subsequent to the appellant's conviction;

2. the learned trial Judge erred in admitting evidence that the appellant had on unspecified occasions, supplied or made available alcohol and cannabis to teenagers; [and]

3. [the learned trial Judge erred in] admitting evidence that the appellant had on an unspecified occasion subsequent to the date to which the indictment refers, made a sexual advance towards a 16 year old girl [other than NMS]."

45 The fresh evidence relied upon for the first ground of appeal was evidence of a third person who, after the trial, informed the appellant that in a conversation between the third person and NMS, she had said words to the effect that she had "put a bloke in jail for raping me, but he didn't do it" in circumstances which identified the convictions of the appellant as the subject of the alleged remark. Upon this ground of appeal, this Court heard evidence from TM, the person to whom NMS is said to have made this remark, and from NMS, in the latter case, by video. Both witnesses were examined on oath and cross-examined. In addition, an affidavit of TM sworn 9 July 2003 was received as Exhibit 1 and an affidavit of Mr Stephen Peter Barron sworn 22 March 2004 was received as Exhibit 2. The first affidavit from TM briefly outlined his proposed fresh evidence, while the affidavit from Mr Barron, based on prison records, showed that TM and the appellant, Slater, were in the same unit, both as prisoners, in May 2003 so identifying the occasion when the appellant claims that he first learned of the fresh evidence. The nature and significance of this alleged fresh evidence will be set out later in these reasons.

46 The offences were alleged to have been committed one evening, possibly a Saturday evening, at a party at the appellant's home at that time - a house located at 4 Roderick Close, Gosnells. The appellant, who was born on 29 April 1960 and was, therefore, 39 years of age at that date, lived at that home with his two teenage sons. He was separated from his wife and had been unemployed for several years. On this particular evening there was a party at the appellant's home in the sense that a number of young people, mainly friends or acquaintances of the appellant's sons and their friends, called in. There were somewhere between 15 and 20 people at this party during the course of that evening. Various alcoholic drinks were available some of which had been brought to the home by the visitors. From these supplies drinks were poured for the individuals either by themselves, by their friends or by the appellant throughout the course of the evening. Most visitors were young and in their mid teens or younger. The appellant was the eldest person in the group but another young adult, his niece, YBF, was present. In addition to drinking the liquor which was readily available, several young persons at the party smoked cannabis. The appellant was present throughout the evening spending much of his time sitting around a fire in the backyard and drinking himself.

47 NMS was born on 31 January 1986 and was, therefore, aged 13 years at the date of this party. She knew the appellant's sons and other visitors from school and had met the appellant once or twice before. She lived nearby with her mother and two sisters. It was her evidence that she had visited the appellant's home for the first time on the day of the party and while there smoked marijuana which had been offered to her by one of the appellant's sons. She then returned to her mother's home, contacted her close girlfriend and, some hours later in the evening, returned to the appellant's home to attend the party. While at the party she says that she was offered drinks by the appellant, mixes of vodka and orange or bourbon and Coke or other similar spirit mixes. She drank eight or nine of these in the course of the evening and became very drunk. It was her evidence that she became so intoxicated that she went into one of the boy's rooms and eventually got sick all over herself and that she was found by the 22-year-old, YBF, and taken by her to the bathroom to be cleaned up.

48 According to NMS, she was put under the shower clothed to be washed down and while this was happening YBF ran the bath. YBF then took off her clothes and placed her in the water in the bath naked. NMS says that the appellant came in to help wash her down and asked YBF to bring her a cup of coffee. She says that while in the bath the appellant began to wash her and in doing so fondled her breasts and then placed his hand in her "private area" between her legs. YBF came back with the coffee and she drank some. She was then lifted out of the bath, draped in a towel, taken, or carried, by the appellant to a bedroom and laid on the bed naked. According to her the appellant remained in the room alone, again fondled her breasts, undressed, laid on top of her and proceeded to have intercourse involving full penetration. She said that this stopped and then commenced again after some time, after which the appellant got up, dressed, told her not to say anything about the incident and left the room. No other person saw or heard the appellant dealing with NMS in this fashion.

49 After some time NMS was able to go home but the next day she quarrelled with her mother and was ordered out of the house. She returned to the appellant's home, explained that she had been "kicked out" and that she had nowhere to stay and accepted the invitation to stay at the appellant's home with others who were living there, including another teenage girl with whom she shared a bedroom. There was no allegation of any further sexual contact between the appellant and NMS during the two months or so that she continued to live at his home after the party. No complaints or accusations were made by NMS to the appellant, to her mother or to other friends at this time.

50 Quite some time later, on a date never established by the evidence but which appears to have been as much as a year or more later, NMS described these events to her close friend KP, the other young girl who had accompanied her to the party on the night in question. This in turn led to NMS reporting the matter to the police. This led to investigations being conducted by Detective K J Wisbey during June, July and August 2001 culminating in a videotaped record of interview of with the appellant at the police office at 250 Adelaide Terrace, Perth on 10 August 2001. An edited version of this videotaped record of interview was adduced as evidence for the prosecution at the trial of the appellant and the content and use at trial of the videotaped record of the interview gives rise to the second and third grounds of appeal. Before dealing with those grounds it is necessary to proceed with the narrative a little further.

51 In the course of the videotaped interview the appellant was asked whether or not he had supplied alcoholic drinks to the young girl NMS on the night of the party. He denied doing so, saying that he had not bought or supplied liquor but that others had brought alcohol to the party and that it was freely available with young people helping themselves or pouring each other drinks throughout the evening. He was also asked whether it was common for there to be parties or similar gatherings of young people at his home before and after July 1999 at which he supplied liquor to the young teenagers attending. He denied doing so but accepted that there had been frequent occasions when gatherings of young people had been held at his house and when liquor and cannabis had been consumed.

52 In relation to the events said to have occurred on the evening of the party in July 1999, the appellant told the police officer that the young girl NMS, had arrived at the party during the course of the evening very badly affected by liquor and quite drunk. He said that she had got sick over herself outside on the front driveway and had also lost control of her bladder and wet herself. He denied that she had got sick in one of the bedrooms. He said that he and his niece, YBF, took the heavily intoxicated young girl, in her soiled state, into the bathroom and placed her fully clothed under the shower to wash her down. He said that the bath was run and that the young girl was then lifted into the bath fully clothed and then washed down further by himself and his niece. He denied any improper contact with the girl while in the bathroom and said that, with his niece's help, he then took her to one of the bedrooms, laid her down on the bed to rest and left her there. He denied any improper conduct either in the bathroom or in the bedroom and absolutely denied that he had or had attempted to have sexual intercourse with the girl or that he had penetrated her in any way.

53 In reinforcement of his denial of any sexual contact with the girl, the appellant said to the police officer in the course of the video interview that none of the allegations against him could possibly have occurred because, at that time, he was impotent and had sought medical treatment for this condition which could be confirmed by enquiry from his doctor.

54 The appellant was also questioned about his conduct on other occasions, including at another party or gathering at the Gosnells house some weeks or months after July 1999. In particular, he was asked whether at this subsequent party he had attempted to "crack on to" the twin sister of MM (a girl KLOM) by asking MM if he could have sex with her sister. He admitted that he had asked whether he could have sex with her twin at this other party but said that he was extremely drunk at the time and that there was nothing in it and that he just went and passed out elsewhere shortly afterwards.

55 For the prosecution the evidence of seven witnesses was adduced at the trial. The evidence of the young girl NMS, including her cross-examination by counsel for the appellant, had been pre-recorded and the video of that evidence was tendered and played as her evidence at the trial - apparently as a result of directions given in that regard earlier under s 106I of the Evidence Act 1906. There was oral evidence in cross-examination of four other young people - KLOM, a boy TAS, another boy CRA and another young woman REC.

56 KLOM was not at the Slater house on the evening in July when NMS was sick and when it is alleged that the offences were committed. However, her evidence was to the effect that she moved into the Slater house during the second half of 1999 after NMS had moved back to her mother's home and that while she was there, there were occasional parties or gatherings at which alcohol was available and that the appellant would buy this and pour it for the young people there at the time, often bourbon and Coke. As well, she said, that the people in the house smoked marijuana at these parties and that this would be supplied by the appellant or by the young people themselves.

57 Miss KLOM also testified that some time in the latter half of 1999 she overheard the appellant enquiring of her twin sister (MM) whether it would be alright if he could sleep with her (KLOM) and that the appellant was pretty drunk at the time. She challenged the appellant over this saying that it was not going to happen and there was a big argument and nothing further came of it.

58 The young boy, TS, had, for a short time, been the boyfriend of NMS and knew the appellant's younger son. In 1999 he used to go to the Slater home for parties on Friday or Saturday nights and said that alcoholic drinks were provided on those occasions by the appellant, that these drinks were offered to him by the appellant although he was only 14 at the time, and that cannabis would be supplied by the appellant's older son. He also visited the house during 1999 when NMS was staying in the house for some time and saw her drinking alcohol provided by the appellant. However, he did not remember or give any evidence about the evening in July 1999 when NMS was sick and the offences were said to have been committed.

59 The young boy CRH was 13 in 1999 and used to go to school with NMS. He knew the appellant's two sons and used to go to the Slater home from time to time. He said that there would be parties at the house on Friday and Saturday nights, that the age group of the people at the parties would be from 13 to 18 (apart from the appellant) and that there would be alcohol at the parties. He said that the appellant would give out the drinks which were rum based. Cannabis was used at these parties and was supplied by one of the appellant's sons and by another young man. CRH was at the appellant's home on the evening in 1999 when NMS was sick and saw the appellant, his niece YBF and NMS together in the bathroom as NMS was being sick. She was clothed at this point. He also said that he saw NMS later at parties at the Slater home and that she used to drink alcohol which she had either brought herself or got from other people at the party and occasionally smoked cannabis. He had no other recollection of the incident when NMS was sick at the July party.

60 REC knew one of the appellant's sons from her time at school and, through him, met the appellant. In 1999 she was aged 18 years and in or about July moved into the Slater home at a time when NMS was living there together with the appellant's two sons and two other young men. She shared a bedroom with NMS for a couple of weeks and stayed in the house for over two months. She gave evidence that there would usually be parties or gatherings at the Gosnells house every weekend and that the appellant would be present and drinking rum. The age group of the people attending was between 14 and 19 years and everyone shared the alcohol which was available. She bought some of the alcohol but the appellant also purchased alcohol and shared it with the others. When NMS was staying at the house REC saw her drink alcohol, supplied by the appellant, and smoke marijuana. She saw NMS intoxicated at these parties. She was unable to recall any occasion when NMS was sick at one of those parties.

61 The other evidence for the prosecution was from Detective K J Wisbey who conducted the video record of interview with the appellant which has already been mentioned, and which was tendered as part of the case for the prosecution. Detective Wisbey also gave evidence that, as result of his discussion with the appellant in the recorded interview, he made enquiries from Dr Burkett, the person identified by the appellant as his medical doctor. He produced a statement from Dr Burkett which, was tendered by consent to constitute the evidence of Dr Burkett (who was not called). This statement showed that Dr Burkett was a general medical practitioner who had been working, since 1967, at the Tandara Medical Group in Gosnells at which several doctors worked. The records of the surgery showed that the appellant had attended on occasions since November 1997 and it recorded that Dr Burkett saw the appellant on 8 July 1999 when Mr Slater mentioned that he was suffering from impotence. The doctor suggested a blood test as a result of which he considered sending the appellant to Sir Charles Gairdner Hospital for further tests but he did not see the appellant again in regard to the blood test results and had no record of him ever attending SCGH for such treatment. According to Dr Burkett's statement he last saw the appellant on 17 March 2000, apparently about some different matter, and never treated the appellant for any complaints of impotence.

62 As is apparent from this summary, the only direct evidence of the offences which were alleged to have been committed came from NMS, and from the videotaped interview of the appellant who denied that sexual contact of any kind had occurred between himself and the young girl either in the bathroom or in the bedroom. CRH was the only other witness for the prosecution who had been present at the home that evening and all he could say was that he had seen NMS being sick, and being attended to in the bathroom by the appellant and his niece YBF and that she was clothed at the time.

63 The evidence of KLOM, TAS and REC about life at the Slater household, and in particular the parties frequently held there with alcohol being available, sometimes supplied and poured by the appellant, and cannabis being used by persons including NMS, all related to other occasions, mostly it would seem, after the alleged offences of early July 1999. In particular, the incident described by KLOM of the appellant, while drunk, discussing with her twin sister whether he might be able to have sex with KLOM, occurred some time after the date of the offences alleged.

64 The appellant himself did not give evidence. However, his niece, YBF was called and gave evidence for the accused. Her evidence was taken by video link because, at the date of the trial, she was living in the Northwest of the State. She had been born in July 1978 and turned 21 in early July 1999. At that time she was living at the appellant's home in Gosnells with her uncle and two cousins. There was a party at the appellant's home to celebrate her birthday and NMS was present. YBF only noticed NMS occasionally but first took particular notice when she saw her being sick in the garden. YBF went to her aid and decided that she should run a bath for her. She took the young girl into the bathroom, where she went to the toilet and continued to be sick. YBF ran a bath and then placed NMS in the bath fully clothed. YBF described the young girl as being barely able to walk. She felt obliged to try and clean her up "because she had spew all over her". According to YBF she attended NMS alone and nobody else came to see how she was. After putting her in the bath the girl put towels around herself and then she, YBF, walked her down the hallway and put her in the bedroom which YBF used. She asked her younger cousin to make a coffee and put out some clothes for her to put on. YBF made the young girl drink the coffee and then she went to sleep. She left NMS in the bedroom alone on the bed next to the clothes. YBF then locked the bedroom door and left and did not see the girl until the next day.

65 In cross-examination YBF explained that she had been living at her uncle's home at the time because she was coming off drugs - heroin, speed and pot. In cross-examination she was asked about parties at the Slater home and explained that these were held from time to time and that a lot of young teenagers attended. She denied ever seeing her uncle provide alcohol to the teenagers at these parties. She said that she saw one of her cousins smoking cannabis but not the other cousin nor the appellant and that she never saw the appellant supply alcohol or give alcohol to under-age kids. She insisted that it was she alone who had put NMS in the bath after she found her outside extremely drunk and being sick.

66 Consequently, when all the evidence had been taken, the only evidence against the appellant of indecent dealing with, or sexual penetration, of NMS was from the young girl herself. There was evidence in the videotaped record of interview that the appellant had been present in the bathroom helping YBF to clean and wash NMS while fully clothed and, shortly afterwards, helping to take her to the bedroom to rest. His presence in the bathroom, helping YBF to attend to the young girl was also directly confirmed by the evidence of CRH. That evidence was in direct conflict with the testimony of YBF, the appellant's niece, who maintained that she had attended to the girl alone and that her uncle was not with her in the bathroom or in the bedroom. No other witness gave evidence about these critical events.

67 In those circumstances the case for the prosecution depended entirely upon the jury accepting the evidence of NMS, that she had been indecently dealt with in the bathroom and in the bedroom, and that she had been sexually penetrated in the bedroom by the appellant as she had described. This put a premium on her credibility which had to be assessed having regard to all the evidence including the large quantity of circumstantial evidence which had been received at the trial.

68 The verdicts of the jury reveal that it was satisfied that the evidence of NMS was credible and could be accepted to reach a conclusion, beyond reasonable doubt, that the appellant was guilty of the first three counts charged in the indictment. His acquittal on the fourth account seems to imply that the jury was not prepared to accept, beyond reasonable doubt, that there was a second act of sexual penetration in the bedroom and this may simply mean that the jury was not satisfied that there had been a withdrawal by the appellant and a second penetration, rather than one continuing act of intercourse.

69 The appellant's case at trial was simply that he did not deal indecently with NMS in any way as alleged or at all and that he did not sexually penetrate her as she claimed. His version of events was that he helped YBF to wash the girl down in the bathroom, when she was still clothed, and afterwards took, or helped take, her to the bedroom where he left her on the bed alone to try and recover from her ordeal. I have already noted that the appellant did not give evidence at his trial and no suggestion or imputation was made by his counsel on his behalf to NMS in cross-examination, or to any other witness, that the sexual penetration could not have occurred because of impotence or that impotence meant that he did not have, or was unlikely to have, a sexual passion for any woman.

Objections to the Admissibility of Evidence

70 At the commencement of the trial, and in the absence of the jury, counsel for the appellant objected to evidence being adduced on behalf of the prosecution to show that the appellant had claimed to be impotent in the record of interview; that on some unspecified later occasion in an intoxicated state he had enquired if he could have sex with KLOM or of any other evidence relating to the question of impotence (presumably including the statement of Dr Burkett which dealt only with that issue). In the course of dealing with these submissions the learned trial Judge observed that the appellant had told the police that he could not have sexually penetrated the young girl because he was impotent and that the Crown may well be entitled to rebut that assertion by leading evidence on the issue. In response, counsel for the appellant at trial (AB 100) offered an undertaking on behalf of the appellant that he would not raise the issue of impotence as part of a defence and, on that basis, all evidence dealing with the issue of impotence should be excluded.

71 In addition, counsel for the accused submitted that proposed evidence relating to the availability of alcohol to teenagers visiting parties at the appellant's home, and the use of cannabis by young people at these parties on various other occasions, both before and after the date of the alleged offences in mid-July 1999, was irrelevant and prejudicial and should be excluded.

72 The submissions on these questions went on for some time with the learned trial Judge exploring the propositions in dialogue with counsel. No single set of reasons nor any one ruling on these objections appears to have been made by the learned trial Judge, but his Honour's treatment of the issues can be gleaned from an examination of the interchanges with counsel which took place during the course of these submissions. In attempting to assimilate, from these sources, the basis of his Honour's response to these issues, I have concluded that his Honour took the view that because the appellant in his video record of interview had closely associated a stated condition of impotence with his denial that any sexual penetration of the girl had occurred or could occur, it was open to the prosecution to anticipate that such a defence might arise from the evidence led at the trial and that, accordingly, in anticipation of that occurring the prosecution was entitled to lead evidence to rebut, if it could, the assertion that the appellant was impotent.

73 In making these observations his Honour appears to have distinguished between the assertion made by the appellant to the police in the video recorded interview that he was impotent and the evidence relating to his conduct on the undated occasion sometime after the night in July 1999 when he spoke to another young woman attending the party at the house enquiring whether he could have sex with her sister. His Honour appears to have indicated that this latter conduct was not necessarily inconsistent with a condition of impotence and that if such evidence were to be led it would call for the need for a warning to the jury about its limited significance and how it could be used only in attempted rebuttal of an assertion that the appellant was impotent and not as an indication of his disposition to seek sexual relationships with young women generally or those attending the louche parties which occurred at his home.

74 His Honour does not appear to have dealt directly with the proffered undertaking by counsel for the appellant that the issue of impotence would not be raised in the defence but I consider that I should infer that because of the learned trial Judge's conclusion that the prosecution was permitted to rebut the statement in the video record of interview of the appellant that the sexual penetration could not have occurred because he was impotent at the time, his Honour decided that it would not be open to him to exclude such rebuttal evidence merely because of such an undertaking: R v Hall [1952] 1 KB 302 at 307. It is possible that offer of the undertaking might have been more significant if the only evidence about impotence which the prosecution intended to adduce was the evidence of Dr Burkett and the evidence of KLOM about the subsequent occasion on which the appellant had enquired whether or not he could have sex with her.

75 The learned trial Judge himself noted that the proposed evidence about the availability and supply of liquor to teenagers at the gatherings at the appellant's home, both before and after July 1999, together with the availability and smoking of cannabis at those gatherings by young people, including NMS, was evidence likely to be very prejudicial to the accused. Initially, it seems, that the prosecutor sought to adduce this as propensity evidence tending to show that the evidence of NMS about being supplied with drinks consisting of bourbon and Coke or vodka and orange by the appellant was correct, thus enhancing her credibility.

76 As the submissions on this issue proceeded, however, the prosecution propounded a different use of the evidence namely, as tending to prove that the appellant had lied to the police during the videotaped interview when denying that he supplied liquor to NMS on the night in question or to other young people on other occasions. On this basis the justification for the reception of the evidence was, the prosecution submitted, that it tended to establish that the accused had lied to the police (admittedly about a collateral issue) and that if the jury were satisfied that there had been such a lie it could be used to diminish the credibility of the appellant. In the end it seems that the learned trial Judge accepted these submissions from counsel for the prosecution and regarded the evidence of the behaviour of the accused at other parties as admissible in order to establish that the appellant had lied to the police. This much at least is evident from his Honour's observations about the nature of the directions which he would ultimately have to give to the jury about the significance of such a lie. His Honour also observed that the cogency of such evidence would be a matter for eventual consideration by the jury.

77 The objections to the reception of this evidence by counsel for the appellant at the trial were not based solely on it being strictly inadmissible but included the submission that, even if it were inadmissible, the prejudicial effect of the evidence was likely to be so great as to outweigh its probative effect and, for that reason, it should be excluded in the exercise of discretion. The exercise of the discretion to exclude admissible evidence does not appear to have featured very prominently in the submissions of counsel while these issues were being addressed at trial in the absence of the jury. Nevertheless, it is clear that the learned trial Judge appreciated that he was obliged to consider the prejudicial effect of the evidence and to "make some sort of a discretionary judgment about those things" (AB 120C) and it is clear that his Honour concluded that the discretion should be exercised in favour of the reception of the evidence but his Honour's reasons for that course do not appear to have been fully stated.

78 The situation faced by the learned trial Judge at the beginning of the trial, before any of the witnesses were called and where the appellant, by his counsel, had not begun any cross-examination which might suggest the lines of defence which would actually be taken in the course of the trial was both difficult and complicated. The prosecution was, of course, entitled and obliged to adduce all its evidence, including evidence which may be necessary to rebut any anticipated defence to be raised by the accused or otherwise arising, without splitting its case - R v Chin [1985] HCA 35; (1985) 157 CLR 671. However, what are matters which may be expected to be raised and which justify, in anticipation, the admission of rebutting evidence as part of the prosecution's case which may be foreseen at the commencement of the trial will always depend, not just on the facts and circumstances of the particular case but, to a significant degree, upon the defence adopted or pursued by the accused not merely in the courtroom but in the course of any conduct, or explanations given by him, previously relating to the case, especially if those statements or explanations form part of what is admissible evidence to be led against him by the prosecution at the trial.

79 Further, the submissions disclosed that the prosecution intended to prove each of the alleged lies made by the appellant to the police (regarding his impotence and regarding his denial of supply of liquor to teenagers at many of the parties at his home) not as a lie revealing consciousness of guilt, but as a lie which went to diminish the credibility of the accused. That then prompts the question of what was the credibility of the accused which was sought to be impeached: was it the credibility of any evidence which he might give by sworn testimony in the course of the trial, or was it the credibility of the explanation which he gave to the police during the course of the interview extending beyond statements which he made about impotence and the supply of liquor? Just what status would the explanatory or exculpatory statements made by the accused, in his videotaped record of interview, possess if that interview were admitted at the trial, which could be aspersed by this attack on his credibility? Finally, having regard to the proffered undertaking that the accused would not rely on any question of asserted impotence at the trial, did this mean that the significance of any lie which might have been told about impotence to the police was so diminished in the overall significance of this particular trial that the prejudicial effect of evidence about an enquiry made by him while drunk some appreciable time later about whether or not another young girl would have sex with him was so great that the evidence should be excluded in the exercise of discretion. Similar issues about the significance of the prejudicial effect when compared to the probative value, of the evidence about the supply of liquor and the availability of cannabis to teenagers at other parties also arose.

80 The second and third grounds of appeal raised by the appellant in this Court expressly assert that the learned trial Judge erred in admitting evidence that the appellant had on unspecified occasions supplied or made available alcohol and cannabis to teenagers and, that there had been a further error in admitting evidence that the appellant had on an unspecified occasion subsequent to the date to which the indictment refers made a sexual advance towards a 16-year-old girl.

81 It must immediately be accepted that the evidence which is so challenged is not evidence which proves or tends to prove any of the constituent elements of the offences charged nor the commission of any of the offences charged. The supply of liquor or cannabis to teenage visitors to the Slater household on other occasions does not establish or tend to establish that any of the offences charged were committed. Nor does the proof of disreputable conduct by the appellant in making an enquiry about the possible availability of a young woman to him for sexual purposes on a later occasion, do so either. On the other hand, evidence of that kind showing the appellant's character in a very discreditable light would certainly be very prejudicial to the accused because of the risk that even with the most careful of warnings from the trial Judge in the course of his direction, the jury might be disposed to reason that because of the accused's irresponsible and disreputable behaviour on these other occasions, he is more likely to have committed the offences with which he had been charged. Consequently, it is necessary to consider both the question of the strict admissibility of this challenged evidence and, in the event that any of it is admissible, the question of whether it should have been excluded in the exercise of discretion because of its prejudicial effect when contrasted with its probative value.

82 The starting point for this exercise appears to me to be an examination of the status of the videotaped record of interview of the appellant conducted by the police including, in particular, his denial of the supply of liquor to NMS on the night in question, his denial of the supply of liquor to other young visitors on other occasions before and after the alleged offences, his assertion that he was incapable of achieving sexual penetration because of impotence, and his admission that on a subsequent occasion he enquired about the availability, for sexual purposes, of another young girl at a party at his home.

83 The basis for the admission of an out-of-court statement by an accused person as evidence against him at his trial is that it contains admissions against interest and that, accordingly, because such admissions are likely to be true, they can be received as an exception to the rule against hearsay. On the other hand, so-called "mixed statements" made out of court which contain admissions against interest as well as self-serving or exculpatory statements give rise to other considerations because the exculpatory or self-serving component of those statements as an exception to the hearsay rule are not justified by the same considerations.

84 On the other hand, the hearsay rule applies only to out-of-court statements tendered for the purpose of directly proving that the facts as are asserted in the statement: Subramaniam v Public Prosecutor [1956] 1 WLR 965 at 970; Walton v The Queen [1989] HCA 9; (1989) 166 CLR 283 per Mason CJ at 288 and Pollitt v The Queen [1992] HCA 35; (1992) 174 CLR 558 per Brennan J at 577. If the purpose to be achieved by tendering as evidence some statement made by an accused out of court is not to demonstrate the truth of what is asserted but, rather, to show its proven falsity, the situation is different. In that case the proof of a false statement made by a person out of court gives rise to an admission to be implied from any conscious falsity but, in the absence of such an implied admission they do not come within the hearsay exception - Mawaz Khan v The Queen [1967] 1 AC 454. This includes previous statements containing assertions apparently supporting the accused's case where it can be shown that the assertions are lies from which a consciousness of guilt might be inferred. However, the same cannot be said of a statement apparently self-serving or exculpatory, which can be proved to be a lie but a lie of a kind which does not demonstrate consciousness of guilt. This is so because that would be to show no more than that the accused has lied on a previous occasion and, therefore, should not be believed at a point before the accused has done anything to put his credit in issue - see Evidence Act, s 8(1)(e) (see also: Cross on Evidence: Australian Edition par [17645]).

85 This is so unless the proposed evidence comes within the permitted scope for the reception of propensity evidence - see Pfennig v The Queen [1995] HCA 7; (1995) 182 CLR 461 and Harriman v The Queen [1989] HCA 50; (1989) 167 CLR 590. It was not suggested in the present case that lies said to have been made by the appellant to the police in the course of the videotaped record of interview concerning impotence were admissible because they revealed propensity of a material kind. Nor was it suggested that evidence of lies to the police by the accused denying that he had supplied liquor to teenagers or that he had provided cannabis for them to use were lies which exhibited a consciousness of guilt rather than lies which impaired his credibility. Quite why this would be so does not appear to have emerged clearly from the course of submissions at the trial or on this appeal but is, perhaps, due to the fact that absence of consent by the young girl to indecent dealing by the appellant, or to sexual penetration by him, was not an element of the offences charged and so issues of consent were irrelevant at law. Nevertheless, it would appear that if the case against the accused involved a contention that he deliberately set out to ply NMS with liquor with a view to getting her intoxicated and thus facilitating sexual contact with her (even though this would provide no legal defence), similar conduct on previous occasions with other young girls may be admissible as similar fact or propensity evidence. In this case it was not suggested that the evidence about the supply of liquor or the availability of cannabis at the Slater home went that far.

86 It is not now in doubt that where a party intends to adduce in evidence against the opposing party an out-of-court statement containing admissions but which also contains self-serving or exculpatory content, in other words a "mixed statement", the party against whom it is to be used is entitled to insist that the whole of the statement be received into evidence. This rule is supported not merely by the principle that the entirety of the statement is needed to allow the incriminating parts of it to be read in context and with their true significance but also upon the broader principle that the party against whom it is sought to be used may invite the court, or the jury as the case may be, to make whatever use of any part of the statement as is thought fit. The position is described in Phipson: "The Law of Evidence" 15th ed, Sweet & Maxwell 2000 at 31-31 as follows:

"A mixed statement can be defined as one containing both exculpatory elements and an admission of fact which is significant to any issue in the case, that is capable of adding some degree of weight to the prosecution case on an issue which is relevant to guilt.

The historical rule appears to have been, both in civil and in criminal cases, that where an admission was proved against a party he was entitled to have proved as part of his adversary's case the whole statement, document, or correspondence containing, or referred to in, the admission although other parts might be favourable to himself, but the jury might attach different degrees of credit to the different parts [references omitted].

That rule was adopted in R v McGregor (1967) 51 Cr App R 338, CA. However, there followed a series of cases culminating in R v Pearce (1979) 69 CR App R 365 CA in which it was held that exculpatory parts of a statement were not evidence of the facts stated, although the jury were entitled to consider them in evaluating the statement and deciding whether the statement as a whole constituted an admission. As Lawton LJ said in R v Sparrow (1972) 57 Cr App R 352 CA at 357:

'Many lawyers find difficulty in grasping this principle of the law of evidence. What juries make of it must be a matter of surmise, but the probabilities are they make very little.'

In R v Duncan (1981) 73 Cr App R 359, the Court of Appeal recognised these difficulties. The decision and language of Lord Lane CJ in that case have now been expressly approved by the House of Lords in R v Sharp (1988) 86 Cr App R 274 and R v Azis [1996] 1 AC 41 at 49 - 50. The relevant passage in the judgment in R v Duncan reads:

'Where a "mixed" statement is under consideration by the jury in a case where the defendant has not given evidence, it seems to us that the simplest, and, therefore, the method most likely to produce a just result, is for the jury to be told that the whole statement, both the incriminating parts and the excuses or explanations, must be considered by them in deciding where the truth lies. It is, to say the least, not helpful to try to explain to the jury that the exculpatory parts of the statement are something less than evidence of the facts they state. Equally, where appropriate, as it usually will be, the Judge may, and should, point out that the incriminating parts are likely to be true (otherwise why say them?), whereas the excuses do not have the same weight. Nor is there any reason why, again, where appropriate, the Judge should not comment in relation to the exculpatory parts upon the election of the accused not to give evidence.' "

87 See also Archbold: "Criminal Pleading Evidence of Practice" (2003) at pars 15-307 to 15-310.

88 Examples of the earlier, now discarded practice, can also be found in Australia in Wimpole v McIlwraith [1923] VicLawRp 68; [1923] VLR 553; and Day v Dyson [1965] VicRp 22; [1965] VR 165 per Adam J at 169. Nevertheless, the availability of all the evidence in the mixed statement, upon its reception, for all purposes in Australia is now fully recognised: see Allied Interstate (Qld) Pty Ltd v Barnes [1968] HCA 76; (1968) 118 CLR 581 at 585 and 574 and R v Beck [1990] 1 Qd R 30 at 33. This position has been expressly accepted and endorsed by this Court in Healy v The Queen (1995) 15 WAR 104 per Kennedy J at 111 - 112; and in Willis v The Queen [2001] WASCA 296; (2001) 25 WAR 217 per Owen J at 238 and per Parker J at 134 both applying the observations of Pidgeon J in Middleton v The Queen (1998) 19 WAR 179 at 182. This approach was again recently endorsed by this Court in Mule v The Queen [2004] WASCA 7 at [13], [19] per Wheeler J. For an example of the same approach taken elsewhere in Australia see Hills v Sklivas [1995] VicRp 37; [1995] 1 VR 599 per Batt J at 610.

89 One consequence of this significance of the admission of a "mixed statement" is that the exculpatory content will be sufficient to raise a defence for the accused, such as accident, lack of voluntariness, physical incapacity or any other such issue even one upon which the accused or the defendant may carry the burden of proof. This will be so even where the accused does not give evidence himself or does not adduce evidence at all - Allied Interstate (Qld) Pty Ltd v Barnes (supra) and R v Sharp [1988] 1 WLR 7.

90 It therefore follows that upon the tender by the prosecution of the video recorded interview of the appellant by the police including, as it did, his protestation that the alleged sexual penetration could not have occurred because of his claimed state of impotence, that the prosecution was entitled to anticipate, and therefore rebut through evidence-in-chief, an assertion of impotence. In my view, the prosecution was entitled to do this even when counsel for the appellant at the trial offered an undertaking that the issue of impotence would not be raised. That was not an undertaking which could ever have been fully fulfilled because the issue had been raised by the accused in his statement to the police and it was so closely intertwined with his denial of the conduct of which he was accused that it could not be separated from his overall explanation without grossly distorting it. Accordingly, I consider that the learned trial Judge was correct to permit those statements by the appellant about impotence made in the record of interview to be admitted together with the evidence of Dr Burkett which also dealt with that issue.

91 However, it is not the admission of that evidence which is challenged on this appeal but, rather, the reception of the evidence in the record of interview and from the witness KLOM, that at a subsequent party the appellant had enquired about her availability to him for sex by enquiry to her twin sister. The justification for the reception of that evidence, where the appellant admitted that he had made that enquiry while drunk but had not pursued it, was only for the effect it could have in rebutting the assertion of impotence. With all respect, I do not consider that this evidence of attempted solicitation of another girl for sexual favours, on a later occasion was admissible for this reason. As the learned trial Judge himself remarked, an enquiry about the potential availability of a young woman for sexual purposes, or indeed any sexually suggestive or lewd remark in similar circumstances, is not inconsistent with a state of male impotence. Whether the person making the enquiry or any other similar suggestive remark would be actually capable of performing the act which seemed to be pre-occupying his thoughts is a different matter. It would be quite another thing if the evidence to rebut the out-of-court assertion of impotence were to be that the person making the assertion had in fact completed acts of intercourse on other occasions, before or after the alleged offence, or was observed to be in a condition able to do so because he had a sustained erection. However, an interest in, or an inclination for, sexual activity expressed by a man at a party when drunk is not, of itself, capable of refuting an assertion of impotence. For that reason I consider that this evidence was wrongly admitted. If I were wrong in that conclusion and the evidence were to be regarded as being, to some degree, probative in refuting the assertion of impotence, I consider that its value in that regard is so small that, bearing in mind the very prejudicial effect which such evidence is likely to have on the minds of a jury, it should have been excluded in the exercise of discretion. Either way I consider that there was an error at the trial in permitting this evidence to be adduced.

92 This aspect of the attempt of the prosecution to rebut the assertion of impotence made by the appellant during the police interview involved a passage in the interview which is quite separate, and in my view severable, from the account which the appellant gave about his involvement in the events occurring on the night of the party when the offences were said to have been committed. This part of the interview with the police officers does not contain any admissions about the appellant's presence at the home on the night in question nor of his involvement with NMS in the bathroom, in the bedroom or otherwise. Nor does it contain any exculpatory or self-serving statements by the appellant in relation to his activities that night. His answers on this topic went solely to his conduct in approaching the other young girl's sister on a subsequent occasion and could not in my opinion be regarded as an essential part of the mixed statement and therefore a necessary and inseverable part of it.

93 The other related ground of appeal challenging the admissibility of evidence at the trial relates to the evidence that the appellant had, on unspecified other occasions, supplied or made available alcohol and cannabis to teenagers. Part of this evidence is included in the testimony of NMS, another point is found in the form of responses, denying that it had occurred, made by the appellant in his video record of interview. More is contained in the evidence of KLOM, TAS, CRH and REC who, as already described, were witnesses for the prosecution at the trial.

94 As I have already observed, the principal reason for leading this evidence was that it tended to reveal that the accused had lied when denying to the police that he had supplied alcohol or cannabis to young children at the frequent parties held at his home. The prosecution sought to use this lie, not as signifying an implied admission of one or more of the offences charged because it was a lie made out of consciousness of guilt but, rather, because it was a lie restricted to impairing the credibility of the appellant. The credibility which it was designed to diminish, at the stage of the trial where the admissibility of the evidence came into question, must have been the credibility which the appellant's denials and exculpatory statements made in the video record of interview possessed, and the potential credibility which any evidence which he might have given at the trial because, at that stage, the appellant still had the option of giving evidence on oath in his own defence. He did not have to decide whether he would or would not do so until the end of the case for the prosecution.

95 A somewhat similar issue but involving the tender of evidence that a step-father had supplied alcohol and drugs to his 10 or 11-year-old step-daughter and to others, in the course of the prosecution case on a trial of the step-father for unlawful and indecent assault upon the girl, was examined by this Court in Jaensch v The Queen [2000] WASCA 212 but in the context where the tender of such evidence was sought to be justified on the basis that it constituted "relationship evidence" in a case where the girl had been living at home with the step-father for some time.

96 In Jaensch (supra) the evidence of a variety of continued indecent behaviour by the step-father towards the young step-daughter over quite a long time before the commission of the offence charged was much more extensive than, and unlike, any conduct between this appellant and NMS. It involved many episodes of inappropriate and suggestive conversations and touching between the step-father and the young child. Kennedy, Pidgeon and Anderson JJ dismissed the appeal against conviction in Jaensch v The Queen (supra) and each of their Honours concluded that the relationship evidence against that accused had properly been admitted. In the course of a judgment with which Kennedy J agreed, Anderson J said (at [65]), with regard to the tender and admission of evidence that the applicant had supplied alcohol and drugs to the complainant and others:

"Generally speaking, and depending upon the precise circumstances of the case, it is unlikely that evidence that a father (or step-father) allowed a teenage daughter to take alcohol and smoke marijuana in the home would be probative of an allegation that he had sexually assaulted her. There might be evidence of a connection between the permissive conduct relating to substance abuse on the one hand and the sexual misconduct on the other. For example, if it was the Crown case that the motive in encouraging the girl to take alcohol and drugs was to seduce her, the evidence with respect to the supplying of alcohol and/or drugs would plainly be admissible. However, where the evidence does not go so far as to provide any direct link between the one kind of conduct and the other, prima facie, the evidence would not be admissible. Evidence of reprehensible conduct on the part of the accused which is not probative of the charged offence is irrelevant and is not made admissible by giving it a label such as 'background evidence' or 'relationship evidence' or 'manner of living evidence'. The only basis upon which prejudicial background evidence is admitted is that it has probative value beyond proof of mere bad disposition. The basis for the admission of such evidence is that it is circumstantial evidence; that is, evidence which is actually probative of the disputed conduct: Gibb v The Queen (1998) 72 ALJR 1012; Pfennig v The Queen [1995] HCA 7; (1995) 182 CLR 461, especially at 482 - 483. If background evidence is not of that character and quality, it should not be admitted and, if it is wrongly admitted and is prejudicial, the trial will usually miscarry. The accused will not have had a fair trial."

97 After outlining the details of the young girl's circumstances in the Jaensch case and, in particular, how she returned to live with the applicant when she was nearly 17 years of age after the alleged offences had been committed, Anderson J went on to say (at 67):

"These being the circumstances, I am of the opinion that the generalised evidence now under consideration was admissible as probative of the Crown case and its prejudicial effect did not outweigh its probative value. It seems to me that when a step-father of mature years is alleged to have done something immoral with a young step-daughter in the home without her consent and there is evidence that no complaint was made by the girl and the girl continued as a matter of choice to live with the step-father and chose to return to live with him after living with her natural mother for a while, the jury is entitled to know what was going on in the step-father's home - how they were living - in considering the girl's evidence on the allegation. In this case, evidence of corrupting conduct by the applicant, including in the form of over indulgence of the complainant by freely permitting the use of alcohol and drugs in the home and by actually supplying drugs to the complainant and her school friends for their enjoyment, was relevant to that consideration. It tended to explain her behaviour. It tended to explain why she was attracted to live with the applicant and why she may have been prepared to put up with unwelcome sexual advances on the part of the applicant when it might seem to the jury that, if her evidence as to the charged offences was true, she would have shunned the applicant and would have gone to live with her mother."

98 There are, of course, some similarities between the Jaensch case and the present in that a day or so after the episode of the party in July 1999 NMS left her mother's home and went to live at the Slater household and remained there for about two months. There is also the evidence that no immediate complaint was made and that NMS did not bring the matter to the attention of the police until about 15 months later. By contrast, in the present case, the young NMS had never lived at the Slater house before this alleged incident and this was the first party which she had attended there. Nor was there any suggestion that on earlier or subsequent occasions the appellant had supplied alcohol or drugs to young people, including young girls, with a view to seducing them or that on other occasions he had had sexual conduct with young girls in his house as a result of such a modus operandi. I do not see how, in the present case, the reception of this evidence could be justified on the basis that it is evidence of propensity within the rules as accepted in R v Pfennig (supra) and R v Harriman (supra). More significantly, the prosecution does not seek to justify the reception of the evidence about the supply or availability of alcohol and drugs to teenagers at the Slater home as propensity evidence. In the written and oral submissions for the respondent the point made is that:

"In the interview the applicant disputed the complainant's credibility by advancing his own. It was the defence case 'that the complainant was lying about the circumstances in which she claimed to be raped ... [this evidence] was relevant in that it tended to increase the likelihood that the complainant's evidence of how she came to be drunk and able to be taken advantage of by the applicant was correct, a matter in issue at the trial. It also, if believed by the jury, rebutted his assertions to the contrary in his interview with the police and reflected upon his credibility. The evidence lead by the Crown of the applicant's role in consumption of liquor by juveniles at his home was consistent with what the complainant alleged had happened on the night in question."

99 Accordingly, the justification asserted for the reception of this evidence is put on the basis that it reflected adversely on the credibility of the appellant. As his conduct on the other occasions was no part of the elements of the offences charged, this would only be so if the evidence established that he was generally disreputable and of bad character. That could not be done by the prosecution unless he put his character in issue or the evidence to be led went to the issue in the sense of establishing or refuting a fact on which proof of the offence itself depended as distinct from general credibility - see Piddington v Bennett and Wood Pty Ltd [1940] HCA 2; (1940) 63 CLR 533 per Dixon CJ at 554.

100 In the present case there was no suggestion of any prior relevant relationship between the appellant and NMS, nor any pattern of behaviour involving a striking similarity between what NMS claimed the appellant had done on the night in question and his conduct on earlier or subsequent occasions. Unless the proposed evidence about the supply of liquor and drugs to other young people on other occasions was admissible because it came within the tests for satisfying similar fact or propensity evidence it would be nothing more than evidence going to a collateral issue - see Piddington v Bennett and Wood Pty Ltd (supra). If the accused had, in fact, himself given evidence and had been asked in cross-examination by the prosecution whether he had supplied liquor or cannabis to young visitors at his home on other occasions and denied it, the cross-examiner would have been obliged to accept that denial as final because it related to a collateral issue and rebutting evidence would not have been permitted. I do not see how the situation can be different merely because the prosecution desires to adduce rebutting evidence on a collateral issue in chief because of a denial contained in a record of interview which formed part of the prosecution case. In short, I consider that all this evidence was wrongly admitted and was certainly prejudicial to the appellant.

101 Following on his convictions on the first three counts in the indictment the appellant was sentenced for those offences. The appellant was thereafter detained at Casuarina Prison. He says that in about April 2003 he there met another prisoner, TM, and later became engaged in a conversation with TM and a third prisoner, MDC, about mutual acquaintances in the Gosnells area. Evidence from the Manager of Offender Records at the Department of Justice reveals, after consulting prison records, that the three prisoners Slater, TM and MDC, were all at Casuarina Prison between 1 May 2003 and 24 May 2003; that Slater and MDC shared a cell between 24 May and 10 July 2003 and that TM, MDC and Slater were in the same prison unit between 9 May and 24 May 2003. These records suggest that any meeting between the three must have occurred between 1 and 24 May 2003 rather than in April as asserted by the appellant but nothing turns on this.

102 According to the appellant, in a conversation between himself, TM and MDC, TM mentioned that he knew a girl from the Gosnells area named "N" [stating her full Christian name]. He asked TM for her surname and was told that is was "S" [again giving the full surname] and Slater's reply included the remark that "she's the little bitch that put me in here". TM then told the appellant that he had lived with "N" for a period throughout 2002 and that she had told him "I put a bloke in jail for raping me, but he didn't do it. My mum thought we could get money out of him". Upon learning of this the appellant took steps to obtain legal advice, and legal aid which led to his solicitor obtaining an affidavit from TM. Slater had not known TM before meeting him in Casuarina Prison and, before that, had no way of knowing about any conversation between NMS and TM concerning him, or about the circumstances leading to his conviction.

103 In the affidavit which the appellant's solicitors obtained from TM (Exhibit 1 in this appeal sworn on 9 July 2003) he deposes to being in prison to cut out fines between 16 April and 24 May 2003, initially at Hakea Prison and then at Casuarina Prison. He explains meeting the appellant at Casuarina on his second day there. His affidavit goes on as follows:

"4. About a week after that, I was talking to another prisoner by the name of [MDC] who I knew vaguely from around the Gosnells/Maddington area. We were talking about people that we knew. After a while, I went back to my cell, then I went to Ivan Slater's cell where he and [M] were continuing the conversation about people they knew around that area. The conversation also turned to what we were in jail for and I remember that Ivan said words to the effect 'Some little bitch put me up on trumped-up charges'.

5. The next day I went to Ivan Slater's cell and we were talking again about some people that we knew. [MDC] had gone out with a friend of mine by the name of [JD] who was also known as [B]. [JD] is a good friend of [NMS] so I asked Ivan if he knew a girl called [NMS]. He seemed to cringe when I mentioned the name and asked me what her last name was. I said [S]. He said 'You mean [K]?' [K is another surname once used by NMS] I said 'no, [S]'. Then Ivan said 'Yeah, that's the little bitch that put me in here'.

6. I then told Ivan what I knew about [NMS]. She moved in with me at my place at ... Maddington. I can't recall exactly when she moved in, but it was late 2001/early 2002. She was there for a couple of months before she actually had her name on the lease and she stayed until towards the end of 2002.

7. One day towards the start of 2002, [NMS] and I were watching the news after having smoked some cannabis. There was a story about a man being charged with or sentenced for raping someone. [NMS] was laughing and she said 'I put a bloke in jail for raping me, but he didn't do it. My mum put me up to it because she thought we could get money out of him.' I remember at the time she said that the bloke was in jail.

8. The only other time I spoke to her about it was late in 2002 and she told me she had been to court to give evidence. She was laughing when she said that. I didn't speak to her much about what she said because I thought what she was doing was wrong.

9. When I told Ivan Slater what [NMS] had said, he asked me to contact his lawyer about it. On 22 May 2003, I telephoned his lawyer Robert Young and explained what had happened."

104 At the hearing of this appeal, on the application for a new trial on the grounds of the discovery of fresh evidence, TM and NMS was each called, gave evidence and was cross-examined about these allegations. The evidence of NMS was taken by video link connection.

105 The evidence of TM established satisfactorily that the person NMS of whom he was speaking was the same person as the NMS referred to in the indictment and who had given evidence at the appellant's trial. TM testified about his earlier conversation with NMS, saying:

"Basically what she'd told me how she'd put a man in gaol for rape that hadn't done it and basically that she was - her mum put her up to it and wanted to try and get money out of him."

TM then explained how NMS had moved into an address at Maddington with him in early to mid-2002, staying for roughly six months. His evidence about a conversation with her at that address about putting a man in prison was as follows:

"You told us what you told Mr Slater about NMS telling you about putting a bloke in gaol?---Yes.

What were the circumstances in which that conversation came about?---There were---

I'm sorry. The conversation with NMS, that is, not with Mr Slater?---We were sitting back at 95 Attfield Street. We just finished smoking a bit of pot and there on the news there was - I can't remember what. There was something about a man in there for rape and then she started to tell me.

What did she say to you? That she'd put a man in gaol for rape who hadn't done it and that her mum had put her up to it and I just thought it was sick, so I didn't listen.

Did you have any further conversations with NMS about that issue and the person that she had charged with rape?---She tried bringing it up with basically everyone knew that came around to the house and I just got sick of hearing it over and over, so I just stopped listening." (Appeal transcript p 58.)

106 Under cross-examination TM admitted to drinking heavily in mid-2002 when NMS had moved into his place. He was also using marijuana and speed in significant quantities. He confirmed that NMS had told him about putting someone in gaol for rape before she had moved into the house at Attfield Street. He denied that he was affected by liquor or drugs at the time when he had the conversation with NMS about her putting a man in gaol who had not done it - this being the occasion when the conversation was prompted by the content of the television programme. He said that NMS was sober on the occasion and he went on to say that he had heard her speak about this on a number of other occasions. Despite an extensive cross-examination, TM maintained his testimony that NMS had told him, on several occasions, that she had put a man in gaol for raping her who had not done it and that she had been put up to that by her mother.

107 NMS was then called by counsel for the respondent. She admitted that she knew TM, having met him first in 2001. She admitted to moving in with him in Maddington, in about September or October 2002 and staying there for a few months, leaving before December. Two other young men moved in there as well some time in November. She said that she left the house in Maddington, because of a disagreement with TM when she started using drugs because of the loss of her foster mother. They parted on bad terms, she having paid the rent/bond for the premises and having the liability for the telephone and electric power in her name. She said that during the time when she was living in Maddington TM was using speed and cannabis and was an alcoholic drinking heavily every day. She specifically denied saying that the person charged with raping her had not done it, or words to that effect. Her evidence-in-chief in this regard went as follows:

"He [TM] has given evidence that on at least one occasion you have told him things to the effect that you had put someone in gaol for raping you but it never happened. What do you have to say about that?---Why would I say that?

Well, did you say that?---Well, I don't understand why someone would go through everything I've gone through just to deny it.

The things that you have said Mr Slater did to you - did they happen?---Yes.

As you've described in court?---Yes.

During the time that you were living at [the Maddington property] did you speak about that topic?---I can't exactly recall but I saw [T] as a big brother sort of thing so I might've just briefly told him a little bit about it.

What parts of it?---Just what I was in the process of, like, going through it-just talking, you know. I have nightmares about it, you know.

Did you ever say to him that the person that you have alleged had raped you never did it?---No.

Did you ever say to him, 'I put a bloke in gaol'?---No.

Was in fact Mr Slater in gaol while you were living in Attfield Street?---No, no. To my knowledge, he hadn't been sent into gaol." (Appeal transcript p 84.)

She further denied that her mother had put her up to making a false accusation against the appellant and said that she had not made any claim for criminal injuries compensation in respect of the events of July 1999 because she had not felt emotionally stable to do so. In cross-examination she admitted using drugs from December 2002 onwards but maintained her denial that she had ever made any false accusations against the appellant or that she had ever said to TM or anyone else that she had done so.

108 In the submissions at the hearing of this appeal, and in its written submissions, the respondent accepts that the evidence relied upon by the appellant in this regard is fresh, in the sense that it was not available to the appellant at the date of trial and could not have been obtained by him then even with the exercise of reasonable diligence. Moreover the respondent submits that this evidence is not sufficiently credible or cogent to justify an order for a retrial.

109 The tests to be applied when considering whether this Court should set aside a conviction and order a new trial on the grounds of the discovery of fresh evidence were comprehensibly reviewed in Button v The Queen [2002] WASCA 35; (2002) 25 WAR 382. In that case Malcolm CJ, with whom Wallwork and Owen JJ agreed, explained that the central issue is whether, having regard to all of the material on which the appellant relies, there was a miscarriage of justice at the trial. At [58] Malcolm CJ explained that in the case of fresh evidence there is a three-stage test. First, it must be shown that the evidence relied upon could not, with reasonable diligence, have been produced by the accused at trial (although this is not a universal and inflexible requirement). Secondly, the evidence must be capable of belief. Thirdly, there must be a significant possibility that the jury, acting reasonably, would have acquitted the appellant had the fresh evidence been before it at the trial.

110 In Gallagher v The Queen [1986] HCA 26; (1986) 160 CLR 392 Gibbs CJ, Mason and Deane JJ held that an appellate court will conclude that the unavailability of fresh evidence at the time of the trial involved a miscarriage of justice only if it considers that there is a significant possibility that the jury, acting reasonably, would have acquitted the accused of the charge if that evidence had been before it. In that case Dawson J, in a separate judgment agreeing with the decision of the court to dismiss the application for special leave to appeal, said that a miscarriage of justice will occur if upon the whole of the evidence consisting of the evidence of the trial together with the fresh evidence, a Court of Criminal Appeal reaches the conclusion that a jury might entertain a reasonable doubt about the guilt of the appellant.

111 In Milton v The Queen [2000] WASCA 25 this test was applied by Murray J with whom Malcolm CJ and Wallwork J agreed, when his Honour said (at [23]):

"Such evidence will then be held to have produced a miscarriage of justice so as to result in the convictions being quashed and, in this case, a new trial being ordered, if the court is of the view that Ms Sebo's evidence is of such a character that its reception at trial, having regard to the other evidence then before the jury, would make it likely that the conviction would not have occurred, at least in the sense that there may be seen to be a significant possibility that the jury acting reasonably would not have convicted if they had Ms Sebo's evidence before them."

112 As already observed, the decision to convict the appellant on each of the three charges depended entirely upon the jury being satisfied, beyond reasonable doubt, that the version of events which NMS alone had described was true. This was a case which turned directly upon the jury's assessment of the credibility and reliability of her as a witness. The other circumstantial evidence in the case was principally, if not entirely, directed towards factors which, if accepted, might be regarded as confirming or enhancing her reliability as a witness or diminishing the credibility of the version of events given by the appellant in the videotaped interview with the police and the account of events given at the trial by his niece YBF.

113 The examination of the witnesses in relation to the application to quash the convictions on the basis of fresh evidence reveals that there are a number of features in the character and conduct both of TM and of NMS which might well cause one to doubt the veracity of their evidence and to question their credibility. However, each remained unshaken and it is clear that TM did know NMS, lived in the same house as her for several months and had ample opportunity to converse with her. His disclosure of the alleged statement by her that she had put a man in gaol for raping her when he had not done it was spontaneous and unsolicited and there had been no previous relationship between him and the appellant. It is not easy to find a motive which would account for him making a false statement in this regard to the appellant, or to the appellant's solicitors or to this Court. While he and NMS may have parted on bad terms because of an argument relating to the terms of occupation of the house at Maddington, it is not obvious that any animosity arising from that incident would prompt such a disclosure to the appellant at Casuarina Prison or that TM would have anything to gain by giving false testimony about this issue in this Court.

114 It is true that NMS was unshaken in her denial that anything of the kind alleged by TM had transpired in conversation between those two, but I cannot escape the conclusion that evidence of this kind, if led at trial as directed to the credibility of NMS, may well have caused a jury, acting properly, to entertain a reasonable doubt about the reliability of her testimony. It was and remains ultimately a jury question as to whether or not, in the face of this new evidence, a jury would conclude beyond reasonable doubt that the commission of these three offences had been proved. This is but another way of saying that the absence of this evidence at the trial meant that a significant issue concerning the credibility of the principal witness for the prosecution escaped attention and there was, therefore, a loss of a reasonable chance of the appellant to have been acquitted, and hence, a miscarriage of justice. Accordingly, I would also uphold the appeal on the grounds of the discovery of this fresh evidence.

115 In the result, I am satisfied that the appellant has made out each of his three grounds of appeal and that, consequently, the three convictions of the appellant should be quashed and that there should be a new trial on those charges.

• Background
• The Trial
• Objections to the Admissibility of Evidence
• Appeal - Admissibility of Evidence
• The Videotaped Record of Interview
• Fresh Evidence