Criminal law - Appeal against conviction - Appellant convicted after a trial in 2004 of two child sex offences - Fresh evidence - Whether a significant possibility that, on the basis of all of the admissible evidence including the fresh evidence, a jury acting reasonably would have acquitted the appellant

Criminal Appeals Act 2004 (WA), s 39, s 40

Criminal Code (WA), s 320(2), s 320(4), s 333, s 338B

Evidence Act 1906 (WA), s 21

Appellant's applications for leave to rely on additional evidence granted

State's application for leave to rely on additional evidence granted

Appellant's application for an extension of time to appeal dismissed

DPJB v The State of Western Australia [2010] WASCA 12

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

Goldsmith v Sandilands [2002] HCA 31; (2002) 76 ALJR 1024

Lawless v The Queen [1979] HCA 49; (1979) 142 CLR 659

Mickelberg v The Queen [1989] HCA 35; (1989) 167 CLR 259

Nicholls v The Queen [2005] HCA 1; (2005) 219 CLR 196

Rinaldi v The State of Western Australia [2007] WASCA 53

1 BUSS P: The appellant has applied for an extension of time to appeal and leave to appeal against conviction.

2 He was charged on indictment 54 of 2002 with four counts of sexual offending against a girl, LCH.

3 On 22 April 2004, after a trial in the District Court before Blaxell DCJ (the primary judge) and a jury, the appellant was convicted on counts 3 and 4 and acquitted on counts 1 and 2.

4 Count 3 alleged that on an unknown date between 25 December 1999 and 5 February 2000, at a Western Australian country town (the Town), the appellant indecently dealt with LCH, a child under the age of 13 years, by rubbing his body against her, contrary to s 320(4) of the Criminal Code (WA) (the Code).

5 Count 4 alleged that on another unknown date between 25 December 1999 and 5 February 2000, at the Town, the appellant sexually penetrated LCH, a child under the age of 13 years, by penetrating her vagina with his finger, contrary to s 320(2) of the Code.

6 On 16 August 2004, the primary judge sentenced the appellant as follows:

(a) count 3: a 12-month intensive supervision order with a programme requirement; and

(b) count 4: 2 years 6 months' imprisonment suspended for 18 months.

7 I would refuse to grant an extension of time to appeal and refuse to grant leave to appeal. The appeal must be dismissed. My reasons are as follows.

LCH's evidence at the trial of the charges in indictment 54 of 2002

8 On 15 August 2003, LCH gave pre-recorded evidence-in-chief in relation to the charged offences in indictment 54 of 2002 as follows:

(a) LCH travelled from Perth to the Town for the Christmas vacation, between finishing primary school and beginning high school, to spend time with her aunt (RIH) and her aunt's boyfriend (the appellant) (ts 36).

(b) Apart from herself, four people were living in RIH's/the appellant's house, namely RIH, the appellant, RIH's son (TS) and the appellant's son (TY) (ts 37).

(c) RIH worked 'a bit' during the day and the night (ts 37).

(d) Although she was unsure, LCH thought the appellant worked at night or in the early morning (ts 38).

(e) LCH was in RIH's room at the house. She was alone, sitting on the bed and watching television. The appellant came in, sat on the bed and playfully struck her arm. He grabbed her arm, pulled her towards him and kissed her on the lips. Next, the appellant lay on his back and pulled LCH on top of him. The appellant rubbed up against her with his hips and his penis. He moved her around on him. LCH was able to struggle and get away. She went to her room (ts 38 - 43).

(f) LCH was asked whether there was 'another occasion when something happened'. She replied that there was and it 'must have been a week later' (ts 44).

(g) LCH was in the lounge room at the house. The appellant came in and sat down. LCH stood up. The appellant grabbed her arm and pulled her onto his lap. He pushed her back by her shoulder so that her head was resting on the arm of the chair. The appellant placed his hand on her thigh. LCH tried to get up. The appellant attempted to kiss her but LCH moved her head. The appellant dragged both sides of her hips with his hands and pushed down. LCH told him to stop. The appellant walked out of the room (ts 45 - 48).

(h) The appellant demanded that LCH come into the kitchen. LCH obeyed. However, the appellant was not in the kitchen. He was in the dining room sitting on a chair. The appellant told her to 'come here'. LCH did so. The appellant grabbed her by the arm and pulled her on top of him. He made her sit so that her legs were on either side of the chair facing him. The appellant held LCH by the waist and hips and pushed her down onto him. LCH could feel his penis. The appellant was 'moaning and half laughing'. After the appellant 'finished what he was doing' LCH managed to get away. She went to her room (ts 48 - 51).

(i) LCH said there was another occasion when something happened (ts 51).

(j) LCH was in her bedroom alone at the house, getting ready to go out. The appellant came into her room and said 'if you tell anybody about this I'll come down to where you live and I'll make it worse' (ts 51 - 52). While he was in the room, the appellant grabbed LCH's arms and pulled her towards him. Her back was touching his chest. He held her arms behind her back with one of his hands. The appellant put his other hand on LCH's right thigh and moved it upwards to her vagina over her knickers. The appellant massaged her vagina over her knickers. He tried to push up with his finger. The appellant pushed her knickers up and put her knickers and his finger into her vagina about three or four times. LCH managed to break the appellant's grip. She ran to RIH's workplace (ts 53 - 56).

(k) About three or four days after that incident, LCH returned to her home in Perth (ts 56).

(l) LCH did not tell anyone what the appellant had done to her while she was at the Town (ts 56). LCH was worried that, if she told anyone, the appellant would come to her home in Perth and hurt her (ts 56).

9 On 15 August 2003, LCH said in her pre-recorded cross-examination:

(b) LCH had known the appellant since she was a little girl (ts 57).

(c) LCH's father had attempted to commit suicide and was admitted to hospital towards the end of her final year at primary school (ts 57).

(d) RIH had offered to pay for LCH to have a holiday at the Town (ts 58).

(g) LCH spent time with a girl about her own age while she was at the Town (ts 59).

(h) M, who was LCH's cousin, and M's son A, also lived at the Town (ts 59).

(i) RIH's/the appellant's house had a swimming pool (ts 59).

(j) TS had a room across from LCH's room at the house (ts 59).

(k) TS worked at night. He arrived home early in the morning (ts 59 - 60).

(l) RIH worked in the Town from about 4.30 pm to 8.00 pm (ts 62).

(m) LCH would often have dinner at RIH's workplace (ts 62).

(n) When LCH stayed at the Town it was very hot (ts 62).

(o) LCH would have dinner at RIH's workplace in the late afternoon, at about 5.30 pm, 6.00 pm (ts 62).

(p) LCH would walk to RIH's workplace (ts 62 - 63).

(q) LCH lived away from RIH's/the appellant's house, for about two or three weeks, while she was at the Town. During that period she stayed with M and M's boyfriend (ts 63).

(r) LCH stayed at M's house for two or three nights at a time (ts 63).

(s) LCH also stayed with S, who was RIH's son, and K. LCH stayed with them for four or five nights (ts 63 - 64).

(u) LCH arrived at the Town shortly before Christmas (ts 64 - 65).

(v) There was a strike in the Town by the employees of a company. RIH and the appellant were not working. The appellant spent a lot of time at the picket line (ts 65).

(w) There were a lot of 'comings and goings' from RIH's/the appellant's house. M and A would arrive unannounced (ts 66).

(y) A had a birthday party at RIH's/the appellant's house shortly before LCH returned to Perth (ts 68).

(aa) One night, TY went 'crazy'. LCH spent the night in RIH's/the appellant's room on a foldout bed. LCH and RIH spoke for most of the night (ts 68 - 69).

(bb) LCH was unsure about the order in which things happened (ts 69 - 70).

(cc) The night when TY went 'crazy' was the last thing to happen. The things which the appellant did to LCH occurred before then (ts 72).

(dd) LCH had undergone counselling in the months leading up to the trial and had thought a lot about everything (ts 74).

(ee) LCH was not exaggerating what happened with the appellant (ts 74).

(ff) After the first incident with the appellant, LCH spent a lot of time away from the house so she was not alone again in the house with the appellant (ts 75).

(gg) The appellant had told LCH that if she said anything to RIH about what had happened he would be angry (ts 75).

(hh) LCH did not go to RIH's workplace every day because she did not want RIH to suspect anything. LCH said 'if I told her then he would find out and I don't know what would happen. I didn't want her to suspect' (ts 75).

(ii) LCH said in her witness statement that during the kitchen incident she had to bite the appellant to get away. She did not give evidence to that effect. Her explanation for the inconsistency was that she 'didn't think' (ts 78).

(jj) LCH could no longer remember in which of the incidents she dragged her bed against the door (ts 79).

(kk) At one point RIH walked in while LCH and the appellant were together. RIH had a strange look on her face (ts 79 - 80).

(ll) LCH did not take much notice of who was in the house, even though she was scared of the appellant and did not want to be alone with him in the house (ts 81 - 82).

(mm) During the incident in LCH's room, the appellant blocked the doorway (ts 82).

(nn) RIH and the appellant had a video recorder. Videos were taken of some family events. LCH appeared in some of those videos (ts 85).

(oo) LCH was 'very scared' of the appellant (ts 86).

(pp) LCH wanted to stay at the Town for A's birthday (ts 86).

(qq) LCH endeavoured to ensure she did not go anywhere near the appellant. LCH endeavoured not to make it look suspicious that the appellant was doing something wrong (ts 86).

(rr) LCH did not deliberately position herself near the appellant (ts 86 - 87).

(ss) LCH accepted that it was possible she wrote letters to RIH and the appellant in which she said she had had a 'great holiday'. LCH did not think she would have written that she 'would like to come up there again for a holiday' (ts 87 - 88).

10 LCH did not give evidence of any sexual offences against her apart from those pleaded in indictment 54 of 2002.

11 LCH did not give any evidence to the effect that RIH or TY had been involved in any of the alleged sexual offences or had committed any other sexual offences against her.

The primary judge's findings of fact for the purposes of sentencing in relation to counts 3 and 4 in indictment 54 of 2002

12 On 16 August 2004, the primary judge made the following findings of fact for the purposes of sentencing on count 3 in indictment 54 of 2002:

The first offence occurred after you grabbed hold of [LCH] while you were sitting on a lounge chair. You made her sit on your lap and tried to kiss her. She resisted you doing that and then you got up and went to a dining room chair which was in a nearby room. You then ordered [LCH] to come to you and made her sit on your lap while facing you and when she was in this position you held her by the waist and hips and you moved her body so that she was grinding down onto your groin and while you were doing that, she could feel your erect penis through your clothing and you did that for about five minutes and then let her go (ts 233).

13 On 16 August 2004, his Honour made the following findings of fact for the purposes of sentencing on count 4 in indictment 54 of 2002:

The offence the subject of count 4 was a completely separate incident on another day which happened in [LCH's] bedroom or the bedroom of the house that she was using. You were in the bedroom with her. You grabbed her by both wrists behind her back. Using one of your hands to hold her wrists you then placed your other hand on her right hand and you moved up her dress and massaged her vagina on the outside of her underwear.

While doing this, you pushed your finger into her underwear into her vagina about three or four times and while this was happening [LCH] was squirming and struggling and she managed to break free and slip out of your grip and run out of the house, and it's in that way that the offence came to an end (ts 233).

The application for an extension of time to appeal

14 The last date for appealing against conviction was 6 September 2004. The appellant did not file his appeal notice until 29 October 2015. The application for an extension of time to appeal is supported by an affidavit of his lawyer, Mara Rita Barone, sworn 29 October 2015.

15 In her affidavit, Ms Barone deposes, relevantly:

1. The Appellant was convicted of counts 3 & 4 of Indictment ... 54 of 2002 on 22 April 2004.
2. I was neither counsel nor solicitor for the Appellant at his trial in 2004.
3. These convictions related to sexual offences committed against [LCH] during the period of 25 December 1999 and 5 February 2000.
4. On 22 March 2014, the Appellant was charged with multiple sexual offences, including offences relating to [LCH].
5. On 27 March 2015 the State signed Indictment 1744 of 2014 against [the appellant] alleging inter alia 20 sexual offences relating to [LCH] during the period of 30 November 1999 and 1 February 2000.
6. During the course of the disclosure process relating to the charges contained on Indictment 1744 of 2014 the Appellant was disclosed the following documents:

(a) Statement of [LCH] dated 1 January 2014; and

(b) Statement of [LCH] dated 24 October 2014.

1. The contents of these statements will be relied upon by the Appellant as supporting a fresh evidence ground of appeal.
2. The Appellant had no access to these statements prior to their disclosure by the State during the committal mention process in mid 2014.
3. Accordingly the Appellant was not able to file an appeal within time.
4. Upon receipt of the statements the Appellant sought legal advice regarding the filing an appeal. The provision of that legal advice was only able to be fully resolved after 27 October 2015 due to the progression of Indictment 1744 of 2014.

16 On 16 August 2016, Mazza JA referred the application for an extension of time to appeal to the hearing of the appeal.

17 It is convenient to consider the merits of the ground of appeal before deciding whether an extension of time to appeal should be granted.

18 Indictment 1744 of 2014 is dated 23 October 2015 and contains 31 counts.

19 The indictment alleges sexual offending by the appellant against LCH, two other girls (MES and AKC) and a boy (IDC).

20 The indictment also alleges sexual offending by the appellant's partner, RIH.

(a) Count 7: on an unknown date between 30 November 1999 and 1 February 2000, at the Town, the appellant indecently dealt with LCH, a child under the age of 13 years, by masturbating in her presence, contrary to s 320(4) of the Code.

(b) Count 8: on another unknown date between 30 November 1999 and 1 February 2000, at the Town, the appellant and RIH indecently dealt with LCH, a child under the age of 13 years, by the appellant touching her vagina, contrary to s 320(4) of the Code.

(c) Count 9: on the same date and at the same place as count 8, the appellant and RIH sexually penetrated LCH, a child under the age of 13 years, by the appellant penetrating her vagina with his finger, contrary to s 320(2) of the Code.

(d) Count 10: on the same date and at the same place as count 8, RIH indecently dealt with LCH, a child under the age of 13 years, by masturbating in her presence, contrary to s 320(4) of the Code.

(e) Count 11: on the same date and at the same place as count 8, the appellant indecently dealt with LCH, a child under the age of 13 years, by licking her vagina, contrary to s 320(4) of the Code.

(f) Count 12: on the same date and at the same place as count 8, the appellant and RIH sexually penetrated LCH, a child under the age of 13 years, by the appellant penetrating her vagina with his penis, contrary to s 320(2) of the Code.

(g) Count 13: on another unknown date between 30 November 1999 and 1 February 2000, at the Town, the appellant and RIH indecently dealt with LCH, a child under the age of 13 years, by RIH touching LCH's vagina, contrary to s 320(4) of the Code.

(h) Count 14: on the same date and at the same place as count 13, the appellant and RIH sexually penetrated LCH, a child under the age of 13 years, by RIH penetrating LCH's vagina with her finger, contrary to s 320(2) of the Code.

(i) Count 15: on the same date and at the same place as count 13, the appellant sexually penetrated LCH, a child under the age of 13 years, by introducing his penis into her mouth, contrary to s 320(2) of the Code.

(j) Count 16: on the same date and at the same place as count 13, RIH indecently dealt with LCH, a child under the age of 13 years, by masturbating in her presence, contrary to s 320(4) of the Code.

(k) Count 17: on the same date and at the same place as count 13, the appellant and RIH sexually penetrated LCH, a child under the age of 13 years, by the appellant penetrating her vagina with his penis, contrary to s 320(2) of the Code.

(l) Count 18: on the same date and at the same place as count 13, the appellant sexually penetrated LCH, a child under the age of 13 years, by the appellant penetrating her anus with his penis, contrary to s 320(2) of the Code.

(m) Count 19: on another unknown date between 30 November 1999 and 1 February 2000, at the Town, the appellant unlawfully detained LCH, contrary to s 333 of the Code.

(n) Count 20: on the same date and at the same place as count 19, the appellant made a threat to unlawfully kill LCH, contrary to s 338B(a) of the Code.

(o) Count 21: on another unknown date between 30 November 1999 and 1 February 2000, at the Town, the appellant sexually penetrated LCH, a child under the age of 13 years, by introducing his penis into her mouth, contrary to s 320(2) of the Code.

(p) Count 22: on another unknown date between 30 November 1999 and 1 February 2000, at the Town, the appellant sexually penetrated LCH, a child under the age of 13 years, by penetrating her vagina with his penis, contrary to s 320(2) of the Code.

(q) Count 23: on another unknown date between 30 November 1999 and 1 February 2000, at the Town, the appellant sexually penetrated LCH, a child under the age of 13 years, by introducing his penis into her mouth, contrary to s 320(2) of the Code.

(r) Count 24: on the same date and at the same place as count 23, the appellant sexually penetrated LCH, a child under the age of 13 years, by penetrating her vagina with his finger, contrary to s 320(2) of the Code.

(s) Count 25: on the same date and at the same place as count 23, RIH sexually penetrated LCH, a child under the age of 13 years, by penetrating LCH's vagina with her finger, contrary to s 320(2) of the Code.

(t) Count 26: on the same date and at the same place as count 23, the appellant sexually penetrated LCH, a child under the age of 13 years, by penetrating her anus with his finger, contrary to s 320(2) of the Code.

(u) Count 27: on the same date and at the same place as count 23, RIH sexually penetrated LCH, a child under the age of 13 years, by penetrating LCH's anus with her finger, contrary to s 320(2) of the Code.

(v) Count 28: on the same date and at the same place as count 23, the appellant indecently dealt with LCH, a child under the age of 13 years, by licking her vagina, contrary to s 320(4) of the Code.

(w) Count 29: on the same date and at the same place as count 23, the appellant sexually penetrated LCH, a child under the age of 13 years, by penetrating her vagina with his penis, contrary to s 320(2) of the Code.

(x) Count 30: on the same date and at the same place as count 23, the appellant sexually penetrated LCH, a child under the age of 13 years, by penetrating her anus with his penis, contrary to s 320(2) of the Code.

(y) Count 31: on another unknown date between 30 November 1999 and 1 February 2000, at the Town, the appellant and RIH made a threat to unlawfully kill LCH, contrary to s 338B(a) of the Code.

The appellant's applications in the appeal for leave to adduce additional evidence

22 On 24 March 2016, the appellant filed an application for leave to adduce additional evidence in the appeal. The application is supported by an affidavit of Ms Barone sworn 24 March 2016. The additional evidence comprises a written statement dated 1 January 2014 made by LCH and a handwritten document dated 24 October 2014 made by LCH. Those documents were disclosed by the State to the appellant in the course of the disclosure process relating to the charges in indictment 1744 of 2014. On 7 July 2016, Mazza JA referred the application to the hearing of the appeal.

23 On 17 June 2016, the appellant filed another application for leave to adduce additional evidence in the appeal. The application is supported by an affidavit of Ms Barone sworn 17 June 2016. The additional evidence comprises a written report dated 17 June 2016 of Richard Byron Collins, a consultant forensic pathologist, and Dr Collins' curriculum vitae. On 7 July 2016, Mazza JA referred the application to the hearing of the appeal.

24 On 8 September 2016, the appellant filed a further application for leave to adduce additional evidence in the appeal. The application is supported by an affidavit of Ms Barone sworn 8 September 2016. The additional evidence comprises, relevantly, Bureau of Meteorology data, three Google maps and three Google images given to Dr Collins and a copy of a page from the State's brief of evidence containing two pictures of LCH.

The State's application in the appeal for leave to adduce additional evidence

25 On 15 August 2016, the State filed an application for leave to adduce additional evidence in the appeal. The application is supported by an affidavit of Maria-Noel Mattocks, a prosecutor with the Office of the Director of Public Prosecutions (WA), sworn 15 August 2016. The additional evidence comprises indictment 1744 of 2014; a witness statement dated 28 May 2014 of MES; a witness statement dated 17 December 2013 of AKC; a witness statement dated 15 May 2014 of IDC; a Google map showing the distance between the Town and another town; and another Google map showing the distance between the Town and another town. On 17 August 2016, I referred the application to the hearing of the appeal.

26 The sole ground of appeal relied on by the appellant alleges:

Fresh evidence has emerged that establishes that there is a significant possibility that, in light of all the admissible evidence (that is, the fresh evidence and the evidence given at the trial) a jury, acting reasonably, would have acquitted the appellant, resulting in a miscarriage of justice.

27 On 8 July 2016, Mazza JA referred the application for leave to appeal to the hearing of the appeal.

28 LCH was aged 26 when she made the statement dated 1 January 2014. She was aged 27 when she made the statement dated 24 October 2014.

29 In her statement dated 1 January 2014, LCH deposes:

(a) LCH reported to the police in 2001 various incidents involving the appellant. Those incidents occurred when she was aged 12 [5].

(c) LCH recalls an incident with the appellant which occurred when she was aged about 3 [12] - [34]. The appellant touched her on the outside of her clothes 'around [her] vagina and around [her] backside' [27]. In and before 2004 she did not mention the incident.

(d) LCH alleges that RIH was involved in the offences committed by the appellant when LCH visited the Town in 1999/2000. RIH knew what was going on [42].

(e) LCH gives an explanation as to why she did not report in 2001, 2002, 2003 or 2004 the full extent of the appellant's alleged offending against her or the offences she now alleges were committed by RIH:

I have previously disclosed to Police part of what occurred. I am aware that [the appellant] was charged and has been convicted for what happened, but I never told the full story because I was too young and I was scared. I was also threatened by [RIH] and [the appellant].

It started with inappropriate touching by [the appellant] when [RIH] was at work ...

It involved touching my breasts, kissing me and fondling my vagina. It would have occurred on about four or five occasions and that was what I reported to Police in 2001 and what [the appellant] has been convicted for already.

At the time of reporting those incidents, I was too young and I got scared from the threats that [RIH] and [the appellant] made when they were abusing me, so I didn't disclose anything further. The fact is that it was a lot worse and there was a lot more involved. I am now older and now that I am an adult, I want to disclose the full facts so I can deal with what happened to me.

All of what I reported last time did happen and it all occurred within the first two days of my arrival at their house. In addition to those incidents, I now wish to disclose the following [43] - [47].

(f) LCH claims that the appellant beat and kicked her while sexually assaulting her [52], [53], [58], [74], [120].

(g) LCH claims that the appellant committed numerous sexual offences against her, which she did not mention in or before 2004, including penile penetration of her mouth, vagina and anus.

(h) LCH claims that RIH aided the appellant in some of his offending and, also, that RIH sexually penetrated LCH and indecently dealt with her.

(i) LCH claims that, as a result of the appellant penetrating her vagina with his penis, she suffered bleeding from her vagina [88]. In and before 2004 LCH did not mention any injuries.

(j) LCH claims that the appellant penetrated her anus with his penis. The penetration was painful and caused her to cry hysterically. She suffered heavy bleeding [110] - [112]. In and before 2004 LCH did not mention any of those events.

(k) LCH claims that the appellant tied her to a tree in the bush, some distance from the Town, and left her there for five or six days, without food or water. For example, LCH asserts:

[The appellant] left me there all day and night on my own. I was fully dressed. I think I still had my pyjamas on. I don't recall getting changed before he dragged me from the house.

It was very hot and he left me there like that for about five or six days. There was no way of measuring time and with the heat I lost track of time.

[The appellant] had put a blanket under me to sit on and the tree provided some shade. He came back intermittently several times a day and squirted water down my throat and made me eat.

Every single time that he visited me [the appellant] would insert his penis into my mouth and make me give him oral sex. This was before he gave me any food or drink and he told me that if I didn't do what he wanted then he wouldn't give me anything. I just did what he wanted.

This happened a lot of times. Sometimes when he was there for a couple of hours it would happen several times in the same visit [126] - [130].

(l) LCH claims that TY sexually penetrated her while RIH and the appellant watched [188]. In and before 2004 LCH did not give evidence of any sexual offences involving TY.

30 LCH did not give oral evidence at the hearing of the appeal. Counsel for the appellant decided, properly, that it would be inappropriate, in view of the pending trial of the counts in indictment 1744 of 2014, to seek to cross-examine LCH (appeal ts 64).

31 Counsel for the appellant did not apply to have the hearing of the appeal adjourned until after the trial of the counts in indictment 1744 of 2014. That was a rational forensic decision. The State proposes to rely on the evidence which supported the appellant's conviction on counts 3 and 4 in indictment 54 of 2002 as propensity or relationship evidence at the trial of the counts in indictment 1744 of 2014. Hence, the appellant's belated challenge to his conviction on counts 3 and 4 (appeal ts 64 - 65).

32 Dr Collins is a very experienced and well qualified consultant forensic pathologist.

33 The appellant's lawyers retained Dr Collins to make an assessment as to the likely medical effects on LCH of the circumstances described in her statement dated 1 January 2014. The information provided to Dr Collins by the appellant's lawyers included LCH's statements dated 1 January 2014 and 24 October 2014 and data from the Bureau of Meteorology as to the weather in two places between 30 November 1999 and 1 February 2000.

34 In a report dated 17 June 2016, Dr Collins set out his 'initial views' on the issue referred to him for his assessment:

1. It is my present understanding from examination of [LCH's] statement (1/1/2014) that, inter alia, she was placed seated against a tree, with her arms tied behind her around the tree, her feet were also tied and a rope was across the chest holding her against the tree.
2. It appears that the tree afforded her little shade, with at least her face, neck, shoulders, hands and feet being exposed to the sun. She was intermittently given food and water.
3. On removal from the abovementioned position, she complained of the following conditions:
   1. vomiting,
   2. bites from insects and ants,
   3. bad sunburn and blistering,
   4. leg weakness.
4. Whilst it would have to be conceded, that there are a number of unknown and presently unquantified variables which would be involved in the production and severity of any medical conditions resulting from exposure (days) to the sun, lack of proper nutrition, inadequate fluid intake and abnormal body position, as described by [LCH], it is my considered opinion, that it would be entirely reasonable to expect clinical signs and symptoms of a greater extent and diversity, than those of which she complained.
5. If she were exposed to solar radiation (sunshine) possibly in the temperature range of the mid to high 30s (degrees Celsius), for up to almost a week, then my view is that she is likely to be at least severely sunburnt, markedly dehydrated - partly as a consequence of vomiting and sweating and, as such, there would have been poor tissue turgor with associated sunken eyes. In addition, electrolyte depletion, especially potassium and sodium could be expected, with these deficiencies coupled with fluid loss requiring intravenous replacement therapy.
6. In addition to the insect/ant injuries, if [LCH] had been tightly bound by the rope, then it is likely she would have rope burns (abrasions) in the various sites where she was bound.

35 Dr Collins concluded his report with the following summary:

I am of the opinion that the constellation of medical conditions described by [LCH] is not consistent with having resulted from the circumstances as she has presently described them. Such a collection of complications should have been of greater severity even to the extent of development of heat stroke and, therefore, unlikely to have resolved without medical intervention and to be unnoticed on her return home.

36 Dr Collins gave oral evidence at the hearing of the appeal. He was cross-examined.

37 Counsel for the State's cross-examination focused on the following passages in Dr Collins' report:

(a) Dr Collins' statement that 'in [his] opinion the constellation of medical conditions described by [LCH] is not consistent with having resulted from the circumstances as she has presently described them'; and

(b) Dr Collins' statement that 'it is [his] considered opinion, [that] it would be entirely reasonable to expect clinical signs and symptoms of a greater extent and diversity, than those of which [LCH] complained'.

38 Counsel for the State referred Dr Collins to par 136 of LCH's statement dated 1 January 2014, where LCH said:

The flies were really bad. I also got really badly sunburned and had blisters on my face and shoulders.

39 Dr Collins said that, in his opinion, there should have been 'more than reddening and blistering'. In other words, 'getting towards the spectrum of third degree burns rather than either first or second degree'. However, Dr Collins agreed with counsel for the State that it was 'difficult to interpret exactly what' LCH meant in par 136. Dr Collins also agreed that, to some extent, his view involved 'splitting words' and was dependent on 'what one interprets' the expression 'badly sunburned' to mean (appeal ts 47 - 48).

40 Counsel for the State then referred Dr Collins to the passage in his report where he stated that if LCH had been detained, in the circumstances she described, LCH was likely to have been 'markedly dehydrated'. Dr Collins accepted that if LCH was given water in 'sufficient quantity' she may not have been dehydrated. However, Dr Collins stressed that the operative word was 'sufficient'. He explained that the sufficiency of the water that LCH was given 'would be governed by initially how long and how severe [her] exposure was'. However, 'in theory, if her bodily fluids were replenished by external fluid administration' there may have been no dehydration. Dr Collins accepted that he had no idea how much water LCH was given. That was 'the very reason why [he had] said in the initial part of [his] report that these [were his] initial comments and [he] would be prepared to provide [a] further report if more documentation were available'. The information he had been provided when he wrote the report was 'sketchy' (appeal ts 48).

41 Next, counsel for the State referred Dr Collins to:

(a) par 136 of LCH's statement dated 1 January 2014, where LCH said she had 'vomit all down [her] front'; and

(b) the passage in Dr Collins' report where he stated that LCH was likely to have been 'markedly dehydrated - partly as a consequence of vomiting'.

42 Dr Collins said he did not have any information about how often LCH had vomited. He accepted that it 'could have just been a simple isolated occasion that produced [the] vomit' described by LCH (appeal ts 49).

43 Counsel for the State then asked Dr Collins about the statement in his report as to the development of heat stroke. Dr Collins said he did not 'exactly know' what the temperature was to which LCH was exposed, but his understanding was that it was in 'the mid to high 30s at some stages'. However, he did not know 'for how long [she was exposed to] that temperature' and he did not know 'what the night temperatures were'. He was provided with the temperatures at the material time at a place that was about 230 km from the Town and at another place that was about 450 km from the Town. Dr Collins was not a meteorologist and he had no knowledge of microclimates in Western Australia. A relevant factor in the possible development of heat stroke is not merely exposure to radiant heat, but also the degree of shade offered by trees. Dr Collins did not know the canopy structure at the material time in LCH's vicinity and 'that [structure] would be most important'. Dr Collins said the susceptibility of a person to heat stroke would depend on the length of time the person was in the environment described by LCH (appeal ts 49 - 50).

44 Next, counsel for the State referred Dr Collins to the passage in his report where he stated that 'electrolyte depletion, especially potassium and sodium could be expected'. Dr Collins said LCH's risk of electrolyte depletion would depend on what she ate and, also, on the extent to which she sweated. Dr Collins did not know what food LCH ate during the period in question (appeal ts 51 - 52).

45 Counsel for the appellant then referred Dr Collins to the passage in his report where he stated that if LCH had been 'tightly bound by the rope then it is likely she would have rope burns in the various sites where she was bound'. Dr Collins said that if LCH had been 'loosely bound and she made no movement against the restriction of the binding', it would be reasonable to expect that she would not suffer rope burns. However, if LCH had 'struggled against the loosely bound rope', she could have sustained abrasions. So, it depended on her movements during the period in question. It also depended on the nature of the rope, for example, whether it was coarse or smooth (appeal ts 52).

The additional evidence of MES, AKC and IDC

(a) two alleged offences of indecent dealing, between 24 April 1986 and 25 April 1992 by the appellant against his step-daughter, MES, who was then a child under the age of 13 years;

(b) one alleged offence of indecent dealing and one alleged offence of sexual penetration, between 10 January 1988 and 11 January 1990, by the appellant against his niece, AKC, who was then a child under the age of 13 years; and

(c) two alleged offences of indecent dealing, between 8 December 1991 and 1 August 1992, by the appellant against his nephew, IDC, who was then a child under the age of 13 years.

47 Those alleged offences are referred to in the witness statements of MES, AKC and IDC, which comprise the additional evidence sought to be relied on by the State in the appeal.

48 The evidence of MES, AKC and IDC was not available at or before the trial in 2004.

49 MES, AKC and IDC did not give oral evidence at the hearing of the appeal. Counsel for the appellant decided, properly, that it would be inappropriate, in view of the pending trial of the counts in indictment 1744 of 2014, to seek to cross-examine them.

50 As I have mentioned, counsel for the appellant made a rational forensic decision not to apply to have the hearing of the appeal adjourned until after the trial of the counts in indictment 1744 of 2014.

Counsel for the appellant's submissions on the ground of appeal

51 Counsel for the appellant submitted that LCH's statements dated 1 January 2014 and 24 October 2014 were fresh evidence in that they did not exist when the appellant was tried in 2004.

52 It was argued that LCH's statements contained evidence that is relevant, credible and cogent in relation to the appellant's conviction on counts 3 and 4.

53 According to counsel for the appellant, the fresh evidence is 'of such a character that when considered in combination with the evidence already given at trial, there is a significant possibility that a reasonable jury would have acquitted [the appellant]'. Counsel submitted, in particular, that:

(a) The fresh evidence is significantly inconsistent with LCH's pre-recorded evidence that was admitted at the trial in 2004.

(b) LCH's honesty, credibility and reliability were the primary issues at the trial. The fresh evidence is significantly detrimental to LCH's honesty and credibility.

(c) If the jury had been aware of the whole of the allegations now made by LCH, especially those involving RIH and TY and the allegation that LCH was tied to a tree for five or six days, there is a significant possibility that the jury would have formed a different overall impression (adverse to the State's case) about the importance of other evidence adduced at the trial. The other evidence included:

(ii) the home video footage of A's birthday party and LCH's actions and demeanour in the footage; and

(iii) LCH's movements at the Town, notably the persons with whom she spent time (for example, M, K and S).

54 Section 39(1) of the Criminal Appeals Act 2004 (WA) provides that an appeal court must decide an appeal on the evidence and material that were before the lower court. By s 39(3), however, s 39(1) does not affect the power of an appeal court to admit evidence pursuant to s 40 of the Criminal Appeals Act. Section 40(1) provides, relevantly:

For the purposes of dealing with an appeal, an appeal court may do any or all of the following -

(a) order the production of any record or thing, whether or not an exhibit, that is or may be relevant to the appeal;

(b) order a witness who would have been compellable at the trial in the lower court, whether or not called at the trial, to attend and be examined before the appeal court;

...

(d) subject to the Evidence Act 1906 section 9, admit the evidence of a witness, including a convicted appellant, who is a competent but not compellable witness;

(e) admit any other evidence.

55 In Rinaldi v The State of Western Australia [2007] WASCA 53, Steytler P said, in relation to s 40(1)(a), (b), (d) and (e):

While these provisions afford the Court a discretion, which is not expressed to be limited in any way, to do any of the things provided for, it is most improbable that the legislature intended that they 'should be construed in a way that would have the practical effect of obliterating the distinction between original and appellate jurisdiction': CDJ v VAJ (1998) 197 CLR 172 at [111] per McHugh, Gummow and Callinan JJ (dealing with the provisions of s 93A(2) of the Family Law Act 1975 (Cth)) and see also De La Espriella-Velasco [[2006] WASCA 31; [2006] WASCA 31; (2006) 31 WAR 291] at [150] per Pullin JA. The common law principles have, of course, been developed over many years in order to meet the ends of justice and the considerations giving rise to them will plainly be material to the exercise of the statutory discretion, which must be exercised judicially. While the common law principles touching upon the distinction between new and fresh evidence are not necessarily determinative of the manner of exercise of the statutory discretion, the considerations giving rise to those principles will ordinarily be weighty, so much so that it will be a rare case in which an exercise of the statutory discretion produces a different outcome to that produced by application of the common law principles [84].

56 Where an accused has been convicted, an appellate court will not allow an appeal, on the basis of new as distinct from fresh evidence, unless the new evidence establishes that the appellant is innocent or the new evidence raises such a doubt that the court is satisfied that the appellant should not have been convicted. See Lawless v The Queen [1979] HCA 49; (1979) 142 CLR 659, 675 - 676 (Mason J); DPJB v The State of Western Australia [2010] WASCA 12 [66] (Owen JA, McLure P relevantly agreeing).

57 Where an accused has been convicted, an appellate court will not allow an appeal, on the basis of fresh as distinct from new evidence, unless there is a significant possibility that, on the basis of all of the admissible evidence (that is, the fresh evidence and the evidence given at trial) a fact finding tribunal, acting reasonably, would have acquitted the accused. See Gallagher v The Queen [1986] HCA 26; (1986) 160 CLR 392, 399 (Gibbs CJ), 402 (Mason & Deane JJ); Mickelberg v The Queen [1989] HCA 35; (1989) 167 CLR 259, 273 (Mason CJ), 301 - 302 (Toohey & Gaudron JJ).

58 The underlying rationale for an appellate court setting aside a conviction on the ground of fresh evidence is that the absence of that evidence from the trial was, in effect, a miscarriage of justice. See Gallagher (395, 402, 410); Mickelberg (301).

59 In the present case, the additional evidence sought to be adduced by the appellant and the State is fresh, as distinct from new, evidence.

60 I am not satisfied that there is a significant possibility that, on the basis of all of the admissible evidence (that is, LCH's and Dr Collins' additional evidence and the evidence given at trial), a fact-finding tribunal, acting reasonably, would have acquitted the appellant on counts 3 and 4 or either of them. The appellant has not established that the absence of LCH's and Dr Collins' additional evidence from the trial was, in effect, a miscarriage of justice. My reasons are as follows.

61 First, there is no doubt that some of LCH's additional evidence is materially inconsistent with some of her evidence at the trial in 2004. However, the material inconsistencies do not concern the specific conduct of the appellant which constituted the offence of indecent dealing, as alleged in count 3, or the offence of sexual penetration, as alleged in count 4. LCH was not a recanting witness in relation to counts 3 and 4.

62 Secondly, some of LCH's additional evidence reveals, at least potentially, some lack of credit in relation to some of her evidence at the trial in 2004. The potential lack of credit arises from her decision at that time not to reveal the full extent of the appellant's alleged offending against her or RIH's alleged involvement in that offending. However, LCH has given explanations as to why she did not disclose the full extent of the alleged offending against her. LCH was aged 12 at the material time in 1999 and 2000. It is not extraordinary, in the context of intra-familial child sexual abuse, for victims to feel shame, conflict and confusion and, consequently, not to disclose some aspects of the offending until later in their lives.

63 Thirdly, as I have mentioned, LCH did not give oral evidence at the hearing of the appeal. Accordingly, her explanations as to why she did not disclose, at or before the trial in 2004, the full extent of the alleged offending against her, and her additional evidence generally in the context of her evidence at the trial, have not been tested by cross-examination. It is not possible, in those circumstances, to evaluate reliably LCH's overall honesty, credibility and reliability as a witness.

64 Fourthly, Dr Collins was an honest, credible and reliable witness. However, as Dr Collins acknowledged in cross-examination, the information on which he based some aspects of his report was deficient. Also, as Dr Collins noted in his report, the report merely set out his 'initial views' on the issue referred to him. It is not possible, having regard to the deficiencies in Dr Collins' instructions and in the absence of LCH's explanations (and LCH's additional evidence generally in the context of her evidence at the trial) being tested by cross-examination, to evaluate reliably whether (and, if so, to what extent) Dr Collins' opinions undermine LCH's overall honesty, credibility and reliability as a witness.

65 Fifthly, the potential impact on LCH's honesty, credibility and reliability of the material inconsistencies between some of her evidence at the trial, on the one hand, and some of her additional evidence, on the other, cannot be evaluated reliably without having regard to the additional evidence as to the appellant's alleged sexual offending against MES, AKC and IDC. The evidence of the appellant's alleged offending against those complainants is capable of establishing that the appellant had a sexual interest in children, particularly children with whom he had a familial relationship, and a willingness to act on that interest for his own sexual gratification. Their evidence is capable of reinforcing the plausibility of LCH's account of the appellant's offending against her including the offending in counts 3 and 4. However, as I have mentioned, MES, AKC and IDC did not give oral evidence at the hearing of the appeal. Accordingly, their evidence has not been tested by cross-examination.

66 Sixthly, it is true that if LCH's additional evidence had been available at or before the trial in 2004, defence counsel could, in theory, have cross-examined LCH on the material inconsistencies between some of her evidence at the trial, on the one hand, and some of her additional evidence, on the other. If LCH did not accept the inconsistences, defence counsel could, in theory, have proved the fact of the inconsistencies as prior inconsistent statements in accordance with s 21 of the Evidence Act 1906 (WA) and as an exception to the collateral evidence rule. However, in my opinion, there is no reasonable prospect that that scenario would have occurred. The offences charged in counts 3 and 4 were relatively minor. My characterisation of that offending is reflected in the sentencing outcome. By contrast, the offending alleged against the appellant in indictment 1744 of 2014 is significantly more serious. A competent and experienced defence counsel would have been most unlikely to have cross-examined LCH on the material inconsistencies because of the very real risk that LCH would have sought to explain the inconsistencies by referring to the significantly more serious offending and its impact on her personally, while, at the same time, reaffirming her evidence as to the occurrence of counts 3 and 4. It would have been a dangerous strategy for defence counsel to have sought to cross-examine LCH on the material inconsistencies. It could have had a serious adverse effect on the appellant's case, not only in relation to counts 3 and 4 but also counts 1 and 2.

67 Seventhly, this appeal, and counsel for the appellant's submissions in support of it, have a distinct air of practical unreality. If LCH's additional evidence had been available at or before the trial in 2004, the appellant would undoubtedly have been charged, at that time, with the counts relating to LCH in indictment 1744 of 2014, in addition to those in indictment 54 of 2002. On that basis, the appellant would have been tried in or about 2004 on all of those counts.

69 I would grant the appellant's applications for leave to rely on additional evidence in the appeal. Also, I would grant the State's application for leave to rely on additional evidence in the appeal.

70 The ground of appeal did not have a reasonable prospect of success. I would therefore refuse to grant an extension of time to appeal and refuse to grant leave to appeal. The appeal must be dismissed.

72 MITCHELL JA: For the following reasons, I agree with the orders proposed by Buss P.

73 Buss P's reasons summarise the background to, and evidence led in, this appeal. As Buss P explains, the critical issue in this appeal is whether a miscarriage of justice resulted from the unavailability of LCH's 2014 statements and the evidence of Dr Collins at the 2004 trial. It is clear that this is fresh, as opposed to new, evidence. In considering whether there was a miscarriage of justice, it is necessary to consider whether there is a significant possibility that, on the basis of all admissible evidence, the jury would have acquitted the appellant of counts 3 and 4 in indictment 54 of 2002. What follows are my reasons for concluding that the unavailability of the fresh evidence does not give rise to a miscarriage of justice.

Use proposed by the appellant for LCH's 2014 statements

74 In assessing that question, it is important to begin by identifying the use to which the additional material could reasonably have been put in the 2004 trial, had it hypothetically been available.

75 The appellant does not advance LCH's 2014 statements as evidence of the truth of their contents. LCH has not been called as a witness in this

appeal. The 2014 statements affirm the appellant's guilt of the offences of which he was convicted in 2004, and allege much more serious offending which is said to have occurred subsequent to the offences of which he has already been convicted. They do not assist the appellant's case in that sense.

76 The use which the appellant proposes for the 2014 statements is rather to impugn the credibility of LCH, so as to cast doubt on the reliability of the evidence she gave in the 2004 trial. There are two principal means by which the appellant suggests that this could be achieved.

Alleged implausibility of the 2014 Statements

77 First, the appellant's appeal counsel, Ms Barone, in effect submits that LCH's new allegations, particularly those concerning being tied to a tree, are so inherently implausible that they can be rejected as untrue and no one could reasonably rely upon them. On the appellant's case, the fact that LCH made statements which were so lacking in credit in 2014 counts against the reliability of her evidence given in 2003, which was received in the 2004 trial.

78 To establish the lack of credit of the 2014 statements, Ms Barone relies on:

1. what is said to be the inherent implausibility of the statements;
2. the failure of LCH to make any mention of the events in 2003, when her evidence in the 2004 trial was pre-recorded;
3. video evidence of LCH's appearance during the period she stayed with the appellant and RIH; and
4. the evidence of Dr Collins.

79 Ms Barone submits that this court can conclude that the 2014 statements are wholly lacking in credit without hearing any evidence from LCH who, for obvious and proper reasons, she did not seek to call or cross-examine in the appeal. Ms Barone accepted that, if this court was not able to draw such a conclusion from the available material, the appeal fails (appeal ts 64).

80 I do not accept that this court is in any position to reach a conclusion as to the credibility of LCH's 2014 statements without hearing any evidence from her. The matters on which Ms Barone relies do not, considered either in isolation or combination, compel a conclusion that the new allegations made in LCH's 2014 statements are untrue.

81 I do not regard the new allegations as inherently implausible. The conduct now described involved gross and sustained depravity of the most serious kind. Sadly, the experience of the courts is that depravity of this kind can occur. The fact that the 2014 statements describe such terrible abuse is not itself a reason for rejecting the allegations without even hearing from the witness who makes them. Even if there were reasons to doubt some details of the account given in the 2014 statements, it does not follow that the court should reject its substance. For example, even if LCH were wrong about being tied to a tree for 'about five to six days' (par 127 of her January 2014 statement), the event may still have occurred. LCH says in the same passage of her statement that '[t]here was no way of measuring time and with the heat I lost track of time.' A jury might well accept the tenor of LCH's evidence while concluding that what seemed like 5 - 6 days to a frightened and traumatised 12-year-old girl was actually a much shorter period of time.

82 The fact that LCH did not mention the new allegations at the time of recording her evidence in 2003 or the appellant's trial in 2004 is a factor which the jury in the appellant's forthcoming trial will doubtlessly be told to consider when assessing the veracity of LCH's evidence. However, the fact that LCH did not describe the conduct in 2003 and 2004, and at that time gave an inconsistent account of her time in Newman, does not necessarily require a rejection of the allegations. It is significant that LCH gives an explanation for the delay in coming forward with the new allegations. She refers to her fear of adults in general and the appellant in particular, her mental state and maturity at the time and the effects of the extraordinary psychological trauma to which she was subjected by the appellant. It will be important for the jury at the appellant's forthcoming trial to consider whether they accept LCH's explanation for not mentioning the new allegations in 2003 and 2004. I am not able to make that decision without hearing any evidence from LCH. If the allegations are true, LCH would not be the first victim of serious child sexual abuse to have found the strength to give a full account of what occurred many years into adulthood.

83 I have watched the video from which exhibit 5 at trial is said by the appellant to have been taken, and which shows LCH and others at family gatherings. There are no obvious outward signs of abuse evident from the video, but that is not necessarily inconsistent with the abuse having occurred. LCH has not yet been given the opportunity of explaining why there are no outward appearances of her time tied to a tree on the occasions shown in the video.

84 The evidence of Dr Collins is, for the reasons explained by Buss P, equivocal.

85 In addition, Dr Collins' evidence would not have been admissible at the 2004 trial to attempt to prove the falsity of the 2014 statements (on the hypothesis that they were available at trial). LCH did not give evidence-in-chief about being tied to a tree in the 2004 trial, and that event is said to have occurred after the conduct which was the subject of counts 3 and 4 in indictment 54 of 2002. The occasion for calling Dr Collins would only have arisen at the 2004 trial if:

1. the appellant's trial counsel had adduced evidence of LCH making statements to police about being tied to a tree, through cross-examination of LCH or otherwise; and
2. in cross-examination, LCH had denied the falsity of those statements.

86 In my view the issue of the truth of a statement made by LCH to police about being tied to a tree would have been collateral to the matters at issue in the 2004 trial, and been relevant to LCH's credit only. In that necessarily hypothetical scenario, the trial judge would not properly have permitted the appellant to adduce the evidence of Dr Collins to seek to establish that LCH's statements to police about being tied to a tree were false.

87 The collateral evidence rule was described by McHugh J, in Nicholls v The Queen,[1] in the following terms:

The collateral evidence rule declares that answers given by a witness to questions put to him or her in cross-examination concerning collateral matters are final. Those answers cannot be contradicted or rebutted by other evidence. Hence, the rule is often referred to as the 'finality' rule. Collateral facts are 'facts not constituting the matters directly in dispute between the parties' or 'facts that are not facts in issue or facts relevant to a fact in issue'. In most cases, a fact that affects the credibility of a witness is a collateral fact. Hence, an answer given by a witness to a matter that relates to credibility alone - in other words, a collateral matter - is final and cannot be rebutted. [38] (citations omitted)

88 McHugh J thought that the collateral evidence rule should be seen as a case management rule that is not confined by categories, rather than a rule of law. While other members of the court in Nicholls declined an invitation to adopt that view, McHugh J's above-quoted statement of the common law rule remains accurate.

89 As Gummow and Callinan JJ noted in Nicholls, the dividing line between collateral evidence and directly probative evidence is often a very difficult one to draw.[2] Gleeson CJ made a similar point in Goldsmith v Sandilands.[3] He stated the general rule in the following terms:

As a general rule, itself subject to exceptions, a cross-examiner is bound by the answer to a question that goes only to credit. The cross-examiner is bound in the sense that he or she will not be permitted to lead evidence to contradict the answer of the witness.

Questions of degree arise, both as to relevance, and as to whether a fact is collateral.

90 The truth of LCH's statement to police that the appellant had tied her to a tree, in the 2004 trial where she had not given evidence of that occurrence, would have been a collateral fact. LCH did not say that she was tied to a tree at or before the time at which the conduct the subject of counts 3 and 4 in Indictment 54 of 2002 was alleged to have occurred. The truth or falsity of her statements to police about what happened subsequently went only to LCH's credit. The appellant could not have otherwise adduced evidence that LCH was not tied to a tree on an occasion after the offences alleged in the 2004 trial. That fact could not rationally effect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceedings (principally whether the preceding indecent dealing and sexual penetration had occurred) except by the impact of LCH having made false statements to police and her credibility generally.

91 Ms Barone did not contend that any of the exceptions to the collateral evidence rule would apply. Assuming that the appellant's trial counsel had been permitted to, and chose to, cross-examine LCH as to whether she had made the statements and whether they were true, she would not have been permitted to call evidence from Dr Collins to rebut an affirmative answer to the latter question.

Conclusion as to credibility of the 2014 Statements

92 For these reasons, the material available to this court, combined with the evidence led at trial, does not enable this court to conclude that LCH's 2014 statements are wholly lacking in credit. The appellant has not established that the fact that LCH made the 2014 statements calls into doubt the veracity of her evidence led at trial in relation to the offences of which the appellant was convicted in 2004.

Inconsistencies between statements and evidence

93 Secondly, Ms Barone points to various inconsistencies between the account given in LCH's 2014 statements and that given in her evidence pre-recorded in 2003. She also relies on the following passage of LCH's handwritten 2014 statement as indicating a preparedness, in 2003, to tailor her evidence to make it more believable:

I recall thinking that I [mustn't] say [anything] in court that wasn't already documented in my statement. I did [not] know if I could add anything on the day of giving my evidence. I did not feel at that time that I could give new evidence or if I was even allowed to. Even if I wanted to, I wouldn't have felt that I would have been believed.

94 The use of these aspects of the 2014 statements to impugn the reliability of LCH's evidence in the 2004 trial would have required that they be put to LCH in cross-examination. Doing so would have run the significant risk that LCH would give evidence of much more serious sexual offending than that described in her evidence-in-chief, to the considerable prejudice of the defence case. In my view there is no prospect that the appellant's trial counsel would have sought to adduce evidence of the contents of the 2014 statements if she had them in her possession at the time of trial.

95 Ms Barone accepted that this aspect of her argument turns on whether the material is so unbelievable and lacking in credit, and so likely to be rejected by a jury, that a defence counsel might, in a 'high risk move', make a reasonable forensic choice to adduce evidence of the 2014 statements (appeal ts 61). This explains why Ms Barone, correctly in my view, accepted that the appeal should fail if the court did not accept her primary submission as to the incredibility of LCH's 2014 statements. My rejection of the primary submission therefore leads me to the conclusion that the appeal must be dismissed. For the reasons I have explained, there was no significant possibility that, on the basis of all admissible evidence, the jury would have acquitted the appellant of counts 3 and 4 in indictment 54 of 2002 if the fresh evidence had been available at the time of the 2004 trial.

[1] Nicholls v The Queen [2005] HCA 1; (2005) 219 CLR 196.

[3] Goldsmith v Sandilands [2002] HCA 31; (2002) 76 ALJR 1024 [3].