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R v Andrew Mallard [2003] WASCA 296

[This version of the judgment has been prepared by: Dr Robert N Moles and Bibi Sangha Underlining where it occurs is for editorial emphasis]

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3 December 2003 - West Australia Supreme Court Appeal

External link to full text of R. v. Andrew Mallard - West Australia Supreme Court Appeal

Judgment of the court

History of the reference

On 23 May 1994 Pamela Suzanne Lawrence was killed at Mosman Park. On 2 November 1995 the petitioner's trial commenced, and he was convicted on 15 November 1995 of wilfully murdering Mrs Lawrence.

By notice of appeal dated 20 November 1995, apparently prepared by the petitioner himself, he appealed against conviction on the ground that the learned trial Judge erred in admitting into evidence certain oral conversations at the CIB police office on 10 and 17 June 1994. At the outset of the hearing of that appeal, application was made by his counsel for leave to amend the grounds by substituting five other grounds together with a ground 6, which referred to "new and fresh evidence" and asserted that particulars would be provided at or before the hearing of the appeal. No such particulars were ever provided, and on 11 September 1996 the Court of Criminal Appeal dismissed the appeal. There was no appeal against sentence.

On 8 July 2002 a petition for clemency was forwarded on behalf of the appellant pursuant to s 140 of the Sentencing Act 1995 (WA). The Hon Attorney General decided to refer the case to the Court of Criminal Appeal pursuant to s 140(1)(a) of the Sentencing Act, which relevantly provides:

"(1) a petition for the exercise of the Royal Prerogative of Mercy in relation to an offender convicted on indictment, ... may be referred by the Attorney General to the Court of Criminal Appeal either –

(a) for the whole case to be heard and determined as if it were an appeal by the offender against the conviction ... ."

It should also be noted that there was some controversy between counsel for Mr Mallard and counsel for the respondent, as to whether Mr Mallard was truly an appellant, or was rather to be referred to as an "applicant". We consider, consistently with authority, as a person whose petition has been referred to this Court by the Hon Attorney General pursuant to s 140(1)(a) of the Sentencing Act, he is properly to be described as "the petitioner".

Relevant legal principles

Leaving aside for the moment, issues surrounding polygraph evidence, there are four broad areas of legal principle which need to be considered, however briefly. There was not a significant difference, as to most of them, between the submissions put on behalf of the petitioner and on behalf of the respondent. However, it is desirable to set out what appear to be principles of significance for the determination of this appeal.

(i) Reference of the "whole case"

It was accepted on both sides that on reference the Court had a duty to consider the "whole case". The Court is required to consider the case in its entirety, subject only to the limitation that it is bound to act upon legal principles appropriate to an appeal.

However, there was at times a tendency for counsel for the petitioner to refer to this proposition as if it justified the hearing afresh of evidence at trial and evidence called on the appeal, without regard either to the verdict of the jury or to the previous decision of the Court of Criminal Appeal in this case. That was particularly noticeable in the petitioner's opening submissions, in which very detailed submissions were put as to discrepancies between the evidence of various witnesses as to the timing of certain events. Those matters were before the jury at the petitioner's trial, although of course they were not marshalled and emphasised in precisely the way in which the petitioner now seeks to marshal and emphasise them.

The respondent relied particularly upon Re Matthews & Ford [1973] VR 199 as authority for the proposition that on a reference the jurisdiction of the Court was confined to fresh material brought before the Court and that it could not adjudicate a ground of appeal already heard and disposed of. The petitioner relied upon a decision of this Court in Mickelberg v The Queen (1997). That decision is authority of the Court of Criminal Appeal of this State bearing directly upon the question of the way in which the Court ought to approach a decision of a previous Court of Criminal Appeal in relation to the subject matter of the reference. However, it is authority which supports the submission of the respondent. Malcolm CJ noted that the basic submission of the respondent in that case was that the reference to the court of "the whole case" contemplated that decisions on issues already heard, after full opportunities for argument have been offered to both parties, should not be re-opened and again heard and determined on the same grounds of appeal. His Honour canvassed the various cases in a number of jurisdictions which shed light upon that proposition, and observed as follows:

"Counsel for the Crown rightly contended that s 21(a) of the Criminal Code and s 140(1)(a) of the Sentencing Act 1995 do not contemplate that the whole case should be retried on appeal. It was submitted that the provisions contemplated confining the jurisdiction of the Court to fresh material and do not contemplate that any matter, which had been previously dealt with at a trial and disposed of on an appeal which had already been heard and determined, should be re-opened in the absence of cogent fresh evidence. This submission is correct, subject to the qualification regarding new evidence in the last sentence in the passage quoted from Ratten above referring to the passage in Ratten v The Queen (1974) 131 CLR 510, at which Barwick CJ said that if by reason of new evidence which is not fresh the court is either satisfied of innocence or entertains such a doubt that the verdict of guilty cannot stand, the court will quash the conviction."

Of course, as counsel for the petitioner pointed out, the court in the Mickelberg decision to which we have referred did not grant the Crown's application to strike out certain grounds of appeal as attempting to raise issues already determined against the appellants. However, that application was not dismissed because the principle for which the Crown contended was unsound, but because of the difficulty, in a proceeding by way of preliminary objection, of evaluating the way in which matters which were either fresh or new in the relevant sense would interact with issues already determined.

(ii) New evidence / fresh evidence

Subject to questions of non-disclosure, which will be dealt with shortly, evidence which has not been produced at trial falls into two broad categories. One is evidence which was available at the trial or which could, with reasonable diligence, have then been discovered. The other consists of evidence which either did not exist at the time of trial or which could not then with reasonable diligence have been discovered. Only the second category comprises "fresh" evidence. The first category is frequently described as "new" evidence.

It has been suggested on a number of occasions that the distinction between fresh evidence and new evidence is of minor, or of decreasing, significance in the context of criminal appeals, a proposition which is supported to a degree by observations in some decisions of this Court (eg Nolan v The Queen (1997. The distinction is nevertheless one which continues to be recognised. It was a distinction reasserted as recently as this year in a decision of this Court (Easterday v The Queen [2003] WASCA 69). It has been repeatedly recognised in decisions of the High Court. In Mickelberg v The Queen (1989) 167 CLR 259, for example, Toohey and Gaudron JJ explained that the underlying rationale for a Court of Criminal Appeal 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; see also Gallagher v The Queen (1986) 160 CLR 392). However, in respect of new evidence, their Honours in Mickelberg went on to say, at the same page:

"There is no miscarriage of justice in the failure to call evidence at trial if that evidence was then available, or, with reasonable diligence, could have been available: see Ratten v The Queen (1974) 131 CLR 510, noting however, that there may be somewhat greater latitude in the case of criminal trials than in the case of civil trials."

Not only is the distinction between fresh and new evidence one which is well-established in the criminal law, but, as has been explained on a number of occasions, the distinction is one soundly based in principle. That principle was adverted to in the passage from Mickelberg already quoted. It was explained in somewhat more detail by Mason J in Lawless v The Queen (1979) 142 CLR:

"However, it is not permissible for a court of criminal appeal to set aside a conviction if the newly adduced evidence, not being fresh evidence strictly so called, reveals no more than a likelihood that the jury would have returned a verdict of not guilty. Two considerations operate to bring about this result. The first is that in a criminal trial the accused is entitled to decide how his case will be conducted, in particular, what evidence he will call. He makes this decision in the light of the knowledge that he is tried but once, unless error or miscarriage of justice results in a successful appeal. He cannot therefore conduct his defence by keeping certain evidence back in the expectation that, if he is convicted, the existence of the uncalled evidence will provide a ground for a second trial at which a different or refurbished defence may be presented. Accordingly, an accused person, if convicted, generally cannot complain of a miscarriage of justice if he deliberately chooses not to call material evidence, it being actually available to him at the time of the trial, or if he fails to exercise reasonable diligence in seeking out material evidence.

The second consideration is that there must be powerful reasons for disturbing a conviction obtained after a trial which has been regularly conducted. ... If the evidence newly adduced falls short of establishing that the accused should not have been convicted, there is no overwhelming reason why the conviction, regularly obtained after a fair trial should not be allowed to stand."

Of course, as was noted in Ratten, the accused person in the case of a criminal trial is afforded considerable latitude, because of the difficulty of the accused's position and the discrepancy between the resources perceived to be available to the Crown and to the accused. Evidence not actually available to an accused will often be treated as fresh evidence, notwithstanding that it could on a narrow view have been discovered by diligent enquiry. That is something which falls to be evaluated having regard to the circumstances of each case.

If the evidence is new but not fresh evidence, the Court of Criminal Appeal will quash a verdict of guilty only if that material either shows the appellant to be innocent or "raises such a doubt about his guilt in the mind of the court that the verdict should not be allowed to stand":  Ratten v The Queen. If there is fresh evidence, a number of authorities have explored the way in which such evidence may demonstrate that a miscarriage of justice occurred. In Lawless, (1979) 142 CLR 659, Aickin J explained the task of the Court of Criminal Appeal by reference to Craig v The King (1933) 49 CLR 429:

"The Court of Criminal Appeal has thrown upon it some responsibility of examining the probative value of the fresh evidence. It cannot be said that a miscarriage has occurred unless the fresh evidence has cogency and a plausibility as well as relevancy. Fresh evidence must, we think, be of such a character that, if considered in combination with the evidence already given upon the trial, the result ought in the minds of reasonable men to be affected. Such evidence should be calculated at least to remove the certainty of the prisoner's guilt which the former evidence produced."

The same passage was quoted in Ratten, and in Gallagher v The Queen (1986) 160 CLR 392. In Gallagher, Mason and Deane JJ expressed the test in terms of a "significant possibility of a jury bringing a different verdict". Gibbs CJ emphasised that:

" ... no form of words should be regarded as an incantation that will resolve the difficulties of every case. No test can detract from the force of the fundamental principle that the appeal must be allowed if a miscarriage of justice is shown to have occurred. It is only a practical guide to the application of that principle to say that the court will grant a new trial if, having approached the matter with the caution that is always demanded when fresh evidence is produced in a criminal case, and having weighed the credibility of the fresh evidence and considered its cogency in the light of the evidence given at the trial, it considers that a jury might reasonably have reached a different verdict if the evidence had been available at the trial."

Dawson J expressed tests similar stating that the court would need to conclude that "a jury might entertain a reasonable doubt about the guilt of the appellant".

"In Mickelberg v The Queen (1989) 167 CLR 259 Mason CJ followed the test endorsed in Gallagher v The Queen by four of the five justices and expressly approved the remarks of Dawson J which we have quoted. . Brennan J expressed his preference for a test expressed in terms of 'likely' and not 'might'. Deane J adopted the 'significant possibility' test. Toohey and Gaudron JJ said:

'In essence, the fresh evidence must be such that, when viewed in combination with the evidence given at the trial, it can be said that the jury would have been likely to entertain a reasonable doubt about the guilt of the accused if all the other evidence had been before it ... or, if there be a practical difference, that there is "a significant possibility that the jury, acting reasonably, would have acquitted the [accused] ...". For ease of expression we proceed by reference to the formulation that the jury is likely to have entertained reasonable doubt had all the evidence been before it, noting, in that context, that it is necessary that the fresh evidence be credible in the sense that a reasonable jury could accept it as true, but it is not necessary that the court should think it likely that a reasonable jury would believe it.' "

o the extent that evidence is properly regarded as "fresh", we propose to apply the test as formulated laid down by the majority in Gallagher v The Queen and Mickelberg v The Queen, namely, whether the petitioner has established that there is a significant possibility that, in the light of all the admissible evidence (including that given at the trial), a jury, acting reasonably, would have acquitted him.

Although the ultimate question concerns the court's opinion as to the effect of the fresh or new evidence on a jury, it is inevitable that, in the process of answering that question, the court will form its own assessment of the credibility of the witnesses. Regard will be had to the fact that, as pointed out in Mickelberg v The Queen:

" 'a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced'. Regard, however, will also be had to the possibility that, in some instances, a witness regarded by the court as credible beyond reasonable doubt, may be seen by a jury in a different light, and that a jury might have a different view of a witness, regarded by the court as not being capable of belief."

(iii) Material Non-Disclosure by the Crown

The respondent formulated its submissions of law in respect of these issues in terms which appear to us to be generous to the petitioner. So far as the duty of disclosure is concerned, the respondent asserts that the prosecution had a duty to disclose:

"That which can be seen on sensible appraisal by the prosecution:

(1) to be relevant or potentially relevant to an issue in the case;

(2) to raise or possibly raise a new issue whose existence is not apparent from the evidence the prosecution proposes to use;

(3) to hold out a real (as opposed to fanciful) prospect of providing a lead on evidence which goes to (1) or (2)."

In support of that proposition, the respondent cites R v Brown (Winston) [1994] 1 WLR 1599, Bradshaw v The Queen unreported 1997 and Easterday v The Queen [2003] WASCA 69.

While the respondent's concession represents, it seems to us, an accurate statement of the current law concerning the prosecution's duty of disclosure, the question whether it precisely reflects the law applicable at the time of the investigation of Mrs Lawrence's death is one which might be open to argument. The principles enunciated in R v Brown (Winston) are, for example, different from the summary of the prosecution's duties arrived at after a detailed consideration of the then currently understood position in In Re Van Beelen (1974) 9 SASR 163. They also appear not to be entirely consistent with the views expressed in Lawless v The Queen, a decision of the High Court delivered in 1979, which we propose to consider shortly.

Given that the respondent has conceded that its duties at the time of the petitioner's trial fall to be considered in this case against the standards set out in R v Brown (Winston) and the other cases to which we have referred, we propose to accept that concession and to apply that standard. However, it is worth noting that there has been an apparent broadening, to some degree, of the view taken of the prosecution's duties over the course of the last 20 years or so. That change, in either the substance or the emphasis of the law, illustrates the difficulty, in a reference such as the present, in appreciating and giving due regard to the atmosphere of a trial conducted some considerable time ago, at a time when the law may, in principle or in practical application, have been perceived somewhat differently. Accepting the prosecution's concession in this respect gives the petitioner the benefit of the most generous view which can be taken towards his appeal.

(iv) Effect of Non-Disclosure

Similar comments can be made in respect of the concession by the respondent that cases of material non-disclosure by the Crown fall to be considered somewhat differently from the way in which evidence not available at trial (whether new or fresh) is generally to be considered. The respondent concedes that where there is found to be a departure from the requirements of a properly conducted trial, by reason of non-disclosure by the Crown, it cannot be said that there has been no substantial miscarriage of justice if the petitioner has lost "a chance fairly open to him of being acquitted". In that respect, the respondent cites Grey v The Queen [2001] HCA 85.

The respondent's submission in this case builds a concession upon a concession, since it appears that in Grey's case the respondent had conceded that the case was not to be determined by reference to the principles relating to fresh evidence but by reference to the principles governing the obligation of the Crown to make disclosure in criminal cases. It appears that the court regarded that concession as well made.

What is not apparent from the report of Grey is whether the court had cited to it Lawless v The Queen (1979) 142 CLR 659, a decision in which, save for Murphy J in dissent, all Justices of the High Court apparently considered that, where the prosecution had failed to disclose to the defence the contents of a statement made by an eye witness to a part of the relevant events, an important question for the court's consideration was whether the evidence was to be treated as relevantly "fresh". All Justices seem to have been of the view that it would have been preferable for the prosecutor to have disclosed the material, with the strongest view being taken by Mason J who observed that although there was no rule of law requiring the prosecution to produce that material he did "not condone" the failure to do so. Different views were expressed as to whether the evidence was. All four of the Justices in the majority took the view that even if the evidence were fresh it would not have been likely to have led to a different result on a new trial.

Certain observations tend to suggest that non-disclosure might result in a miscarriage of justice, even where the evidence was not fresh, if deliberate concealment or misconduct on the part of the prosecution were involved. The court later held, in R v Apostilides (1984) 154 CLR 563 that misconduct of the prosecutor is not an essential condition precedent to a miscarriage of justice. However, that was in a somewhat different context of a case in which there was a failure on the part of the Crown to call a witness, copies of whose statements were made available to defence counsel. So far as we can ascertain, Lawless has not been overruled, nor its correctness doubted, save to the extent that the decision in Grey may be seen as inconsistent with it.

Again, as in the case of the prosecution's duty of disclosure, the respondent has accepted a view of the law which is most favourable to the petitioner. For the purpose of this appeal, we propose to accept that concession as rightly made.

[Ed: The balance of the report has not been summarised here]

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