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Narkle v The State of Western Australia [2006] WASCA 113

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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Steytler P, Wheeler JA and Mclure JA

23 June 2006

Counsel T F Percy QC

Judgment of the Court

In April 1993 the appellant was convicted in the Supreme Court, by a jury, of the offences of unlawfully detaining the complainant and sexually penetrating her without her consent. He was sentenced to a total period of 5 years imprisonment. He appealed against his conviction. On 23 June 1993 his appeal was dismissed by the Court of Criminal Appeal: Narkle v The Queen, unreported; CCA SCt of WA; Library No 930353; 23 June 1993. An application to the High Court for special leave to appeal was dismissed.

On 14 June 1998 a complaint was made on the appellant's behalf to the Internal Affairs Unit of the WA Police Service. As a result of the ensuing investigation, material evidence, not previously available or disclosed to the appellant, was discovered. This led the appellant to petition the Attorney-General for "the exercise of the Royal Prerogative of Mercy". Pursuant to the terms of s 140(1)(a) of the Sentencing Act 1995 (WA), the Attorney-General, on 29 December 2004, referred the petition to the Court of Criminal Appeal "for the whole case to be heard and determined as if it were an appeal by the offender against the conviction". The Court of Appeal having, on 1 February 2005, been constituted pursuant to the Acts Amendment (Court of Appeal) Act 2004 (WA), the appeal was, pursuant to s 38(1)(b) of that Act, taken to have been commenced and to be pending before this Court.

The principles applicable to a reference of this kind have been set out in Ratten v The Queen (1974) 131 CLR 510; Mickelberg v The Queen(1989) 167 CLR 259; Beamish v The Queen [2005] WASCA 62 and Mallard v the Queen (2005) 80 ALJR 160. It is unnecessary to restate them. In a case in which fresh evidence is relied upon, the test appears to be that of whether the appellant has established that there is a significant possibility that, in the light of all of the admissible evidence (including that given at the trial), a jury, acting reasonably, would have acquitted him or her:  see Beamish, above, at [14] and the cases there referred to. It is not in dispute that the evidence relied upon in this case is fresh evidence. It has been held, in a case of non-disclosure of material evidence, that there will have been a substantial miscarriage of justice if the appellant has, as a consequence, lost a fair chance of acquittal: Grey v The Queen (2001) 75 ALJR 1708 at [23], [24] and [27] per Gleeson CJ, Gummow and Callinan JJ.

Before turning to that evidence, it is necessary to refer, briefly, to the evidence which led to the appellant's conviction. On 28 April 1992, at a house in Middle Swan, the complainant was sexually assaulted by two young Aboriginal males and deprived of her liberty. At the time of the offences there were several young Aboriginal males at the house. The appellant was one of these. The complainant identified him as having been one of the offenders. She had not met him, or his co-accused, prior to the day of the assault. Her evidence was that she first identified him and his co-accused (who was acquitted at the trial) as her assailants when shown photo identity boards by Senior Detective Steven Potter, then attached to the Midland CIB, on 26 May 1992. At no time during her evidence did she say that, before being shown the photo boards by Detective Potter, she had identified the appellant as one of the offenders or that she had seen a photograph of him.

Detective Potter and another police officer, Detective Denise Grant, also attached to the Midland CIB, gave evidence at the trial. Their evidence was to the effect that, on 26 May 1992, they had gone to an address in Midvale with photo boards and that the complainant had identified the appellant, from the photo boards, as one of the offenders. Detective Potter said that he had first spoken to the complainant on the morning of 29 April 1992 and that his recollection was that he did not again speak to her until 26 May 1992 (trial transcript pages 123, 126 and 127).  Neither of the two Detectives said anything as regards any prior identification by the complainant of the appellant. Evidence was also led of a confessional statement that had been made by the appellant to the police.

The appellant's defence at his trial was that, although he had been present at the house in Middle Swan when the offences were committed, he was not one of the offenders and the complainant had mistakenly identified him. He said that he had been forced by the police to sign the confessional statement. He testified that he was hit in the ribs, that he was generally intimidated and that words were put in his mouth.

The appellant contended, in the subsequent appeal to the Court of Criminal Appeal, that the complainant's identification of him had been so unreliable as not to be capable of constituting corroboration of the police evidence concerning the confessional statement and that a direction of the kind discussed in McKinney v The Queen (1991) 171 CLR 468 should have been, but was not, given by the trial Judge. This contention was rejected by the Court of Criminal Appeal, which found that the evidence of the complainant had not been so inherently unreliable as not to amount to corroboration or sustain a safe verdict.

In the course of the subsequent investigation conducted by the Internal Affairs Unit, an official police journal that had been kept by Detective Potter in 1992 was located. It contained an entry for 29 April 1992 (the day after the commission of the offences) as follows: "To Tuohy Gardens and again speak to comp. shown series of photo's [sic]."

A second entry for the same date read as follows: "Inquiries reveal Vincent NARKLE suspect. GI'd."

Thereafter, on 25 November 1998, the officer conducting the inquiry, Sergeant Andrew Henderson, interviewed the complainant. She told him that, a couple of days after the assault, Detectives Potter and Grant (then Farrell) had come to see her and that she had told them who "the offender" was. She was asked why she had not told the police this on the night of the assault. She responded by saying:

"Because I was - at the moment I wasn't quite sure - I couldn't really hear it [the offender's name] that night[.] I had to think about who that name was. They showed me the photos at the park to see - they took - had about three files of photos and asked me to pick out the person that you identify and I picked - and I identified the photos at the Midland park and they come a few times with photos up to my place too and showed me to make sure that I was correct that the right person to make sure that was him."

The police journal was not disclosed to the appellant, or to the prosecution, at any time prior to its discovery by Sergeant Henderson. By ground 1 of his grounds of appeal, the appellant contends that, had this evidence been available to him, the inference might have been drawn that, on 29 April 1992, Detectives Potter and Grant went to a public park in Midvale named Tuohy Gardens where they spoke to the complainant and showed her a series of photographs, one of which was of the appellant. It would also have been apparent to the jury, that the appellant was first considered to be a suspect on 29 April 1992. The appellant also contends that, had this evidence been available, the complainant would have been cross-examined in respect of it, as would the two police officers. He contends that, if these steps had been taken, the utility of the evidence of the later photo board identification would have been significantly diminished, so much so that the trial Judge might have been required to find the identification evidence inadmissible or, at least, to give a specific warning to the jury as regards its unreliability. This is said, in turn, to have resulted in the verdict of the jury being unsafe or unsatisfactory.

The respondent conceded that the appeal should be allowed on this ground. Its counsel acknowledged that, had the evidence to which we have referred been available at the trial, an issue may have arisen concerning the admissibility of the subsequent formal identification of the appellant and the trial Judge would, at least, have been obliged to draw the jury's attention to the initial identification from a photograph, in accordance with the decision of the High Court in Domican v The Queen (1992) 173 CLR 555.

The respondent also concedes that, in light of the non-disclosure of the evidence to which I have referred, the appellant's convictions for deprivation of liberty and sexual penetration without consent should be quashed. As the appellant has already served the term of 5 years' imprisonment imposed upon him, the respondent does not submit that there ought to be a retrial.

It seemed to us that the concessions that were made by the respondent were properly made and that the non-disclosure has led to a miscarriage of justice, in that the appellant has, as a result of it, lost a fair chance of acquittal. We consequently allowed the appeal and ordered that the convictions be set aside and that, in lieu, there be a judgment of acquittal in respect of each charge. There should be no re-trial.

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