"Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations." (citations omitted)
97 At 494 their Honours referred to previous cases that had discussed whether the appropriate test for setting aside a verdict on the ground that it is unsafe or unsatisfactory is whether there is reasonable doubt in the mind of the court, or whether it is for the court to decide whether there is a doubt that a reasonable jury ought to entertain. Their Honours said:
"In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence." (citations omitted)
98 That test was reiterated in MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606 at [25] per Gleeson CJ, Hayne and Callinan JJ, and at [59] per McHugh, Gummow and Kirby JJ.
99 Mr Odgers seeks to deploy Mr Cavaleri's evidence to ground a submission that, given Mr Matheson's evidence that he had stopped at a red light (which would happen for cars travelling in the northbound direction only during C or D phases) and that it was 14 seconds after the green light for northbound traffic came on at the start of A phase, until a green arrow was shown to northbound traffic in B phase, it was inconceivable that he would have been sitting there for 14 seconds, facing a green light, and with no one behind beeping him to move. As Mr Matheson saw the collision, it would follow, Mr Odgers submits, that Ms Dodd turned on a green circle, not on a green arrow.
100 Considering the matter without Mr Cavaleri's evidence, in my view it was well open to the jury to take the view that Mr Matheson was mistaken in his evidence about the lights facing him being red, and that he stopped.
101 It should first be recognised that there is some evidence that is consistent with Mr Matheson's evidence that he stopped at a red light. The only circumstance in which the lights facing him would be red was if there was a green light for traffic approaching the intersection in either Copeland Road or Eaton Road. The evidence of both Ms Oito and Mr Hampson was to the effect that there was a green light for traffic in Copeland just before they arrived at the intersection, so Mr Matheson's evidence about stopping at a red circle light is consistent with that evidence. As well, the evidence of Mr O'Neill is a coherent account of observations of the changes in the lights that would follow one another if he had arrived in the northbound turning lane during the D phase, when there was both a red arrow and a red circle facing the northbound traffic, then of there being a green circle facing northbound traffic (the A phase), and then of there being a green arrow facing the northbound traffic (the B phase). That evidence is consistent with it having been possible that Mr Matheson arrived at the intersection during the D phase and for that reason needing to stop even though he, unlike Mr O'Neill, was seeking to go straight ahead rather than turn right. Further, Ms Oito's evidence of thinking that she saw the red car pulled up when she (Ms Oito) pulled up at the intersection is consistent with there having been a D-A sequence, and to that extent consistent with Mr Matheson's evidence of having pulled up at a red light.
102 However the sequence of lights that Mr Matheson said he saw facing the northbound traffic in Pennant Hills Road, namely a red circle light followed by a green arrow, never occurs - the only time the green arrow occurs is in the B phase, and if the B phase happens at all it happens immediately after the A phase, in which a green circle is displayed to northbound traffic. The tenor of his evidence was that there was a red circle followed immediately by a green arrow - it was not (as would be necessary if Mr Odgers' submissions were correct) that he stopped at a red circle, failed to notice for 14 seconds that the light facing him had turned to a green circle, and then saw a green circle facing him, and no green arrow. It was comfortably open to jury to regard this objective evidence about the light sequence, which directly contradicted Mr Matheson's evidence, as being far more significant than any inferential support for Mr Matheson's evidence that might be derived from the matters I have referred to in the previous paragraph. A fatal weakness in seeking to derive inferential support from the matters in the previous paragraph is that there is no evidence that relates the time that Mr Matheson arrived at the intersection to the time that Ms Oito, Mr Hampson and Mr O'Neill respectively arrived at the intersection. If they arrived before Mr Matheson, their evidence would not support him. For evidence to be consistent with some state of affairs means only that the evidence could be true in that state of affairs. That falls short of the evidence justifying, or supporting, an inference that that state of affairs actually exists.
103 As well, there was considerable evidence of Ms Dodd turning on a green arrow - from Mr Conway, Mr Lawes, Mr Matheson himself, and Mr O'Neill. There was evidence of northbound traffic having a green light from Mr Conway, Mr Lawes, Mr Davidson (direct evidence), and Ms Bianchini (evidence of northbound through traffic moving through the intersection). For the jury to accept that Mr Matheson's evidence provides a basis for having a reasonable doubt about whether Ms Dodd turned on a green arrow would involve the jury in not being sufficiently persuaded by the evidence about her turning on a green arrow. The jury would have been entitled to take the view that an unattractive feature of reasoning that Mr Matheson's evidence about stopping on a red circle raised a doubt about whether Ms Dodd had turned on a green arrow, is that reasoning in that way is contrary to Mr Matheson's own evidence that she turned on a green arrow.
104 In deciding whether Mr Matheson's evidence about stopping on a red circle raises a reasonable doubt, it is important, in my view, that the observation evidence of the witnesses in the present case is a type of evidence concerning which a jury who actually sees the witnesses giving evidence has a considerable advantage over an appellate court reading a transcript. The evidence that a jury accepts concerning matters of observation can be very much affected by matters that do not readily show on the transcript, like whether one witness gave evidence in a confident and clear manner, while another appeared dithery or uncertain. In assessing the evidence, a reasonable jury would be entitled to take into account that the eyewitnesses were all independent of the Appellant, independent of Ms Dodd, and independent of each other. Here, the weight of evidence on the transcript favours the view that Ms Dodd turned on a green arrow, and the persuasiveness of evidence that is directly to the contrary (Mr Davidson, and the Appellant), or that is to the contrary if one prefers an inference open from part of it to a direct statement in another part of it (Mr Matheson) could be affected by the jury's impression of the witnesses.
105 It will be recalled that both Mr Lawes and Mr Matheson were heading north in lane three, and both were in a position to see the accident when it happened. The accounts that they give of the manner in which the traffic lights changed are quite different. Seeing the witnesses could be a real help to a jury in resolving that difference.
106 Mr Odgers had placed reliance in his written submissions on the unacceptability of Mr Lawes' testimony that the northbound traffic had a red arrow followed by a green arrow. Mr Arnott SC, counsel for the Crown, submitted that the evidence showed that a possible sequence of lights facing northbound traffic in Pennant Hills Road was that there was first a red circle and a red arrow, then a green circle and a red arrow, then a green circle, then a green circle and a green arrow. That followed, he submitted, both from the evidence of Mr Paul about sequencing (set out at para [24] above) and from the way that the operation of the pedestrian lights across Copeland Road could trigger a right turn red arrow being displayed to northbound traffic in Pennant Hills Road. Mr Odgers accepted, on the appeal, that this submission of Mr Arnott about the sequencing of the lights was correct. When that sequence of lights is possible, Mr Lawes' evidence about his observations first as he approached the intersection, then as he got close to it (set out at para [44]-[45] above) is not one that is impossible in light of the objective evidence about the sequencing of the lights.
107 As it is only during the B phase of the lights that a green right turn arrow is displayed to traffic heading north on Pennant Hills Road, and the B phase involves a red light being displayed to southbound traffic on Pennant Hills Road, evidence about whether southbound traffic was stopped on Pennant Hills Road is directly relevant to whether the lights were in B phase. The witnesses who said there was a truck (of some sort) and another vehicle stopped at the southbound lights were Mr Conway, Mr Lawes, Mr O'Neill, and Ms Bianchini. While Ms Oito saw the vehicles stopped there, she first saw them stopped only after the accident. At least on paper, she does not present the appearance of being an attentive and careful witness, and in particular, from the fact that it was only from the movement of her car caused by passing traffic that she knew that there was southbound traffic, there is a basis on which a jury might have been concerned about whether she was looking outside the car at all. Mr Hampson did not notice anything stopped there, but neither did he deny that there was anything stopped there. (His rather uncertain evidence in cross-examination was "there seemed to be a period where cars slowed down or weren't going through, so, from the corner of my eyes I started watching for the light to change and at that time the black car came through".) While Ms Rice says that there were no southbound vehicles other than herself and the Appellant, it was open to a jury to reject her evidence on that point.
108 A distinct category of evidence supportive of the Appellant having gone through a red light, was Mr Conway's unchallenged evidence concerning how, immediately after the accident, he emphatically contradicted the Appellant's statement that he had had a green light.
109 Clearly, there were some aspects of evidence of some of the Crown witnesses that could not be accepted. Mr Conway's evidence about there being another car stopped in front of Ms Dodd's car is out of line with all the other witnesses. Mr Conway's dramatic account of how the BMW moved after the collision is inconsistent both with other eyewitnesses and with the expert testimony. There was some diversity of evidence about the type of truck that was stopped in lane three southbound. The evidence about the precise sequence of lights that was displayed to northbound traffic in Pennant Hills Road was not all consistent. Mr Lawes' evidence that he had never seen the lights at the intersection change in any other way than from a red arrow to a green arrow does not sit well with Mr Paul's evidence about the sequencing. The objective evidence about where the rear wheel of Ms Dodd's car was at the point of impact raises a possibility that the Appellant's vehicle was at least partly in the prolongation of lane two into the intersection at the instant of collision, which would be consistent with the evidence from some of the Crown witnesses about a car being stopped at the lights in lane two only if the Appellant had moved somewhat to the right while driving through the intersection.
110 However, the fact about which the jury had to be satisfied beyond reasonable doubt before it could convict was that the Appellant had gone through a red light. On the evidence, if Ms Dodd had turned on a right hand green arrow, not on a green circle, it was inevitable that the Appellant had gone through a red light. I am not persuaded that it would not have been open to a properly instructed jury to be satisfied beyond reasonable doubt that Ms Dodd had turned on a green arrow. I say that even bearing in mind Mr Davidson's evidence that Ms Dodd had turned when the lights facing her were a green circle only.
111 What difference might Mr Cavaleri's evidence have made to this? The jury already had evidence before them that the only time there was a red light facing northbound traffic in Pennant Hills Road was when the lights were in either C or D phase, and that the lights always returned to A phase before the B phase was triggered. It had evidence that the B phase was triggered only after a car had stood on the sensor in the right-hand turning lane for a "preset period of time" without moving off, and that even when the call was made to run the B phase it was only "at an appropriate time between the signal cycle determined by the computer" that the southbound traffic in Pennant Hills Road would face an orange signal, and six seconds after that orange light had come on the green right turn arrow would be displayed to traffic in the turning lane. Thus, the jury already had evidence that it was at least something more than six seconds after the call was registered that the green arrow was displayed. What Mr Cavaleri's evidence did was to tell them what that "something more" was, as it related to the start of the A cycle.
112 There is no occasion on the present appeal to enter into the difficulties discussed by Giles JA in Bikic at paras [241]-[283] concerning whether it is properly part of the task of a court of criminal appeal to decide for itself whether to accept the new evidence. That is because in the present case the additional material sought to be deployed in evidence has been treated by all concerned as a simple matter of fact, concerning which no question of credibility arises for decision. It is, however, necessary to observe the distinction that Giles JA drew between the ways in which additional evidence sought to be admitted on appeal is treated depending on whether it shows either (1) that the accused is innocent, or else that there is a reasonable doubt about his guilt such that it would be a miscarriage of justice to allow the guilty verdict to stand, or (2) that the accused has not had a fair trial, such that it would be a miscarriage of justice to allow a verdict arrived at through such an unfair process to stand. To decide whether the additional evidence shows that this is a type (1) case, Giles JA said in Bikic at [283]:
"I must decide whether I believe the evidence and, acting on that belief and my own view of the evidence at the trial, whether I am satisfied that the appellant was innocent or whether there is such doubt as to his guilt that the verdict of guilty cannot stand."
113 Accepting Mr Cavaleri's evidence as fact, I am neither satisfied that the appellant was innocent, nor in a situation where there is such doubt about his guilt that the verdict of guilty cannot stand. The reasons I have previously given at paras [101]-[107] why it was well open to a jury to take the view that Mr Matheson was mistaken in his evidence about the lights facing him being red, and that he stopped, are, to the extent that they are not ones relating to the advantage that a jury would have over me, reasons that lead me to not accept his evidence in those respects.
114 Turning to whether this is a type (2) case, and assuming for the moment that Mr Cavaleri's evidence counts as fresh evidence, the test to apply is:
"whether the appellant has established that there is a significant possibility (or that it is likely) that, in the light of all of the admissible evidence, including the evidence at the trial, a jury acting reasonably would have acquitted the appellant." ( Katsidis at [3] per McMurdo P, and see per Jerrard JA (with whom White J agreed) at [18]-[19] to similar effect.)
115 I do not accept that if Mr Cavaleri's evidence was accepted by the jury (as there was every reason for it to be) it was likely to lead to an acquittal, or that there was a significant possibility of an acquittal. The jury had ample ground to reject Mr Matheson's evidence that he had stopped at a red light and then seen a green arrow, and Mr Cavaleri's evidence in no way qualifies or lessens that ground.
116 It follows that, even if the evidence of Mr Cavaleri were to be allowed on the appeal, ground 1 would not be upheld.
117 In that circumstance it is unnecessary to consider whether Mr Cavaleri's evidence surmounted the hurdle of being evidence not available to the Appellant at the time of his trial.
118 I would hold Mr Cavaleri's evidence not admissible, and reject grounds 1 and 3.