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Lawless v R [1979] HCA 49; (1979) 142 CLR 659 (12 October 1979)

CATCHWORDS

* Section 584 of the Crimes Act 1958 (Vict.) provides: "Nothing in this Part shall affect the prerogative of mercy, but the Attorney-General on the consideration of any petition for the exercise of Her Majesty's mercy, having reference to the conviction of a person on indictment or to the sentence (other than sentence of death) passed on a person so convicted, may if he thinks fit, at any time either - (a) refer the whole case to the Full Court and the case shall then be heard and determined by that Court as in the case of an appeal by a person convicted; or (b) if he desires the assistance of the judges of the Supreme Court on any point arising in the case with a view to the determination of the petition, refer that point to such judges for their opinion thereon. . . . "

HEARING

DECISION

2. However, upon a petition under s. 584 (a) of the Crimes Act 1958 (Vict.), a reference was made pursuant to that section to the Court of Criminal Appeal. The basis of the petition was, principally, that there was fresh evidence bearing upon the question of the applicant's guilt. The Court of Criminal Appeal, upon hearing that reference, refused to order a new trial. The applicant now seeks the special leave of this Court to appeal against this decision of the Court of Criminal Appeal. (at p661)

3. A brief statement of the critical facts is necessary in order that the matter under discussion can be fully appreciated. (at p661)

4. The evidence against the applicant at his trial consisted of an eye-witness's account of the shooting by the applicant of a man named Christopher John Fitzgerald. The eye-witness was a young woman, Mrs. Joyce, who had been, and was at the time, living with the applicant. According to her evidence, the applicant on the evening of the shooting had been searching out Fitzgerald, looking for him in various places. He was ultimately found by the applicant at a place called Esray's Cafe. The applicant induced him to enter the car which the applicant was driving. Mrs. Joyce, was sitting in the front seat beside the driver. Fitzgerald entered the back of the car, which was then driven to Ambrie Crescent in the suburb of Noble Park, Melbourne. The car was drawn up practically outside the residence of a Mr. and Mrs. Telford. (at p661)

5. There then followed an altercation between the two men whilst sitting in the car. Fitzgerald at one stage got out of the car to relieve himself but returned to his place in the rear seat on the near side of the vehicle. Thereafter, the two men continued to quarrel. Ultimately, both got out of the car, Fitzgerald seemingly with the idea of having a fist fight with the applicant as a means of ending the argument between them, and the applicant evidently with the idea of shooting Fitzgerald, for shortly before he rose to get out of the car he produced but kept close beside him a short weapon. This surprised Mrs. Joyce as she had had no idea up till that time that the applicant had a weapon with him. When the two men faced each other outside and in front of the car, the applicant shot Fitzgerald once in the head and then, upon his falling to the ground, again in the body. The applicant thereupon re-entered the driver's seat in the car, backed the car away from the body on the ground, and drove off. (at p662)

6. Two residents of the street gave evidence at the trial. (at p662)

7. Mr. Goldsworthy lived in a house to the rear of the position of the applicant's car and on the other side of the road to that on which it was parked. He gave evidence of hearing shots fired and of seeing, as he thought, two men at the car. (at p662)

8. The other witness was Mr. Telford. He lived in the house approximately outside of which the applicant's car was parked. This witness said he had been wakened by the barking of his dog: that he heard three sounds of what he thought were crackers going off. He said he sat up, looked out his open window and saw a man enter the driving side of the car. He also said that he thought he saw another man about the car. The time these sounds were heard was fairly well fixed by Mr. Telford who, when he heard the noises of which he spoke in evidence, had inquired the time of his wife who was awake at the time. (at p662)

9. The applicant's defence at the trial was an alibi. He gave an account of driving around a district which was different to that described by Mrs. Joyce. He claimed to have spent the time when the shooting occurred at the home of acquaintances. The testimony of Mrs. Joyce was attacked through cross-examination at the trial and the possible presence of two men after the shooting had taken place, a possibility derived from Mr. Telford's and Mr. Goldworthy's evidence, was emphasized. (at p662)

10. A police officer obtained a signed statement from Mrs. Annie Mary Telford about 9.45 on the morning following the shooting. That statement is the fresh evidence principally relied upon by the applicant. I think it advisable to set it out in full:

"I am a housewife and I reside at No.13 Ambrie Crescent, Noble Park.
On Sunday the 24th of September, 1972 I awoke at 2.20 a.m., I know this

It was not a dark night in fact it was a full moon.
I would like to add that when the two passengers opened the doors and

Sgd. A. M. TELFORD
Statements taken and signature
witnessed by me at 13 Ambrie Crescent,
Noble Park 24/9/72 at 9.45 a.m.
PETER N. THOMPSON
Det. Sgt. 12188" (at p663)

11. This statement was with the papers furnished to the Coroner who did not call that witness. But it was also with the papers of the Crown Prosecutor who conducted the case against the applicant. It is quite plain from the evidence given before the Coroner and that given at the trial that the applicant and his counsel were at all times aware of Mrs. Telford's existence: and at least ought to have realized that she may have seen something of the events of the evening. But the Crown Prosecutor neither informed the applicant's counsel nor called his attention to Mrs. Telford's existence and he did not disclose that the Crown had a statement from her or give to the accused's counsel a copy of that statement. (at p663)

12. The applicant, by reason of events into the details of which it is unnecessary to go, subsequently learnt of the existence and content of the statement of Mrs. Telford to the police officer. But it is proper to record that it was through a public inquiry that the applicant obtained such knowledge, and that Mrs. Telford did not give evidence before that inquiry. But her statement is the principal foundation of the application for a new trial. There are supplementary matters pressed by counsel for the applicant. With these I will need to deal separately later. They are, first of all, that there was a breach of duty on the part of the Crown Prosecutor in not making the statement available to the applicant at or before his trial. Secondly, it is said that the Crown did not advise the applicant of the fact that Mrs. Joyce not only had been in a mental hospital, a fact of which he was aware, but had there been subjected to treatment because of delusions from which she was suffering, including delusions that she was under pressure by police officers. (at p664)

13. Mrs. Telford at no time pledged her oath to the contents of the statement. She made an affidavit which was used before the Court of Criminal Appeal which contains no more than the following:
"I, ANNIE MARY TELFORD of 13 Ambrie Crescent, Noble Park in the State of Victoria Housewife make oath and say as follows:-
1. THAT at about 9.45a.m., on the 24th day of September 1972 I made a statement in writing signed by me and witnessed by Peter N. Thompson, Detective Sergeant, a member of the Victoria Police Force, relating to events observed by me during the early hours of that day.
2. THAT annexed hereto and marked with the letter 'A' is a true copy of that signed statement." (at p664)

14. The Court of Criminal Appeal was prepared to consider and did consider the matter referred to that Court by the Attorney-General on the footing that Mrs. Telford was, as the Crown conceded at the hearing before that court, a credible person. The Court was prepared to act on the assumption that Mrs. Telford would give evidence precisely as stated in her statement to the police officer and perhaps, impliedly, that it would not be shaken at all by cross-examination. The court also dealt with the application before it upon the assumption, as I read their Honour's reasons for judgment, that the evidence of Mrs. Telford would satisfy the requirements of fresh evidence put forward as the basis for the grant of a new trial, i.e. that it was evidence of which the accused was unaware and of which he could not have become aware by the exercise of reasonable diligence in preparing his defence. The Court, however, was of opinion that such evidence lacked cogency such as is required for the grant of a new trial and said that the evidence in reality bore only on the credit of Mrs. Joyce. The Court thought that a jury would have found the means of accommodating what Mrs. Telford had to say with the acceptance of Mrs. Joyce and the evidence which she gave as an eye-witness of the shooting. (at p665)

15. Before this Court, however, the question arose as to whether there was in truth any fresh evidence in the circumstances. In the first place, it was pointed out by the Crown that it is not enough to say that evidence is credible. Indeed, the Crown did not accept that its concession before the Court of Criminal Appeal meant that the evidence was itself in its terms credible. The Crown contended that the concession was merely in substance that Mrs. Telford was an honest person and likely to endeavour to tell the truth so far as she was able. It was maintained that the concession did not bear upon her opportunity and capacity to observe or to describe. (at p665)

16. The Crown pointed to what this Court had to say in Ratten v. The Queen [1974] HCA 35; (1974) 131 CLR 510 as to the tests of fresh evidence for the purpose of setting aside a conviction and granting a new trial. In that case, the Court was at pains, first of all, to draw a sharp distinction between an application to quash a conviction unconditionally and an application for a new trial, whether or not as an alternative to an unqualified quashing of a conviction. The Court laid it down that, in the case of an application for a new trial on the ground of the discovery of fresh evidence, the Court should satisfy itself that the fresh evidence was likely to be believed by the jury and was likely, having regard to the other available evidence, to produce a different result from that which followed the former trial. This means, in my opinion, that in general, the Court of Criminal Appeal should itself hear the fresh evidence and have it tested before it, although there may be exceptional cases, of which the present may be one, in which the required conclusion may be reached or denied on an examination of the written material proffered as fresh evidence. (at p665)

17. In the present case, the Court of Criminal Appeal neither heard the evidence nor had the oath of Mrs. Telford to the material contained in the statement taken from her by the police officer. It seems to me that the concession made by the Crown that Mrs. Telford was credible in what she said to the police officer was no adequate substitute for the hearing of evidence by Mrs. Telford both in examination-in-chief and in cross-examination. As a result, this Court is not in a position, in my opinion, to form a conclusion as to whether her evidence is likely to be believed. (at p666)

18. The Court of Criminal Appeal concluded, however, in substance, that even if believed, the proposed evidence of Mrs. Telford would not be likely to lead to a different result on a new trial to that of the original trial. Being of this view, it is understandable that that Court felt no need in the particular circumstances to hear the witness. I agree with the Court of Criminal Appeal in thinking that a jury would be likely to find an acceptable accommodation between her evidence, if it conformed to her statement, and that of the witness Joyce. Having regard to the evidence from Mr. Telford and Mr. Goldsworthy which was before them, I cannot think that the evidence of Mrs. Telford would be likely to cause the jury to conclude that Mrs. Joyce was either lying or mistaken in what she described. (at p666)

19. But the proposed evidence, in my opinion, for a further reason does not in any event qualify as fresh evidence. The applicant and his advisers at his trial knew of Mrs. Telford's presence in the house, along with her husband, and that she was awake and, if they gave any thought to it, that she was at least possibly in a position to have seen something of what occurred in the street outside her residence. It is not an unduly strict application of the requirements of fresh evidence to say that the applicant could by reasonable diligence have ascertained what Mrs. Telford knew of the events of the evening. Of course, and so to say emphasizes the lack of merit in this application, the applicant had no interest to seek out Mrs. Telford and her recollection. He had little or no interest himself to prove what had occurred outside her house. It must be remembered that the applicant's defence was not that, thought he was present at the fatal scene, another man, and not he, fired the fatal shots. His defence was an alibi - that so far from not being there, he was elsewhere. Understandably, he was sought to profit by any uncertainties in the Crown case which might be thought to have emerged from the evidence of the witnesses. But it seems to me highly unlikely that he would have sought to call Mrs. Telford had he known what she had said she saw. (at p666)

20. Some point was sought to be made of the fact that the Crown Prosecutor was in possession of Mrs. Telford's statement to the police officer and that he failed to alert the defence to Mrs. Telford's relevant existence, let alone to the contents of her statement. But, even if the Crown Prosecutor was at fault in either respect, no ground would thereby be made for the grant of a new trial: this is particularly so having in mind what I have said as to the knowledge of the applicant and his advisers of Mrs. Telford's existence and of her possible opportunity to have observed something of what went on outside her residence. (at p667)

21. However, as much has been sought to be made of the Crown Prosecutor's conduct, I ought to say, first, that it was a matter for him to decide which witnesses he should call for the prosecution. I cannot see, for myself, any reason why he should have called Mrs. Telford particularly as the applicant's defence was an alibi and Mrs. Telford could not aid in establishing the applicant's presence at the scene. (at p667)

22. In the second place, I am of opinion that it would have been better for the Crown Prosecutor to have informed the defence that Mrs. Telford claimed to have seen something of the events of the evening. But I can quite understand, having regard to the nature of the eye-witnesses' evidence and of the applicant's defence that the Crown Prosecutor might properly conclude that Mrs. Telford's statement did not carry any further the Crown's case or that of the defence. It is good practice, in my opinion, in general for the prosecution to inform the defence of the identity of any witness from whom a statement in the possession of the prosecution has been obtained. But, clearly, in my opinion, there is no obligation of any kind resting on the prosecution to provide the defence with a copy of such a statement. (at p667)

23. There were several other matters raised by counsel for the applicant in support of his application for a new trial. None, in my opinion, have any substance. Criticisms were made as to the evidence of a finger-print of the applicant on a cigarette packet found at the scene of the shooting. I have no need to deal with these criticisms. At best they go only to the weight to be given to the evidence and were thus matters proper for the jury at the applicant's trial. (at p667)

24. Criticism was also made of the evidence of Rayma Eileen Joyce. None of these nor their totality lead me to think that the applicant's trial in any wise miscarried. There is no need for me to detail these criticisms all of which were reduced to writing and put before the Court in a written argument, the perusal of which I have indeed found very helpful in considering this application. Included in these criticsms is the circumstance that Mrs. Joyce had been the recipient of psychiatric treatment at some time between the time of the shooting and the trial of the applicant. This fact was known to the applicant but he did not know the full detail of her psychiatric difficulties during her treatment. But this furnishes no necessity for the grant of a new trial. (at p667)

25. Finally, having read the evidence at the applicant's trial and considered all that has been written and said on his behalf in support of this application, I am not persuaded that a miscarriage has occurred at his trial or that a new trial should be had if justice is to be done. (at p668)

26. I would dismiss the application. (at p668)

STEPHEN J. At the trial at which the present applicant for special leave was convicted of the murder of Christopher John Fitzgerald the Crown case was founded upon two pieces of evidence, that of an alleged eyewitness to the killing, Mrs. Joyce, and some fingerprint evidence. AMrs. Telford, who did not give evidence at the trial, had given to police an account of some of the events occurring immediately after the shooting of Fitzgerald outside her house which differed significantly from that given in evidence by Mrs. Joyce, but the defence knew nothing of this. (at p668)

2. The defence rested upon an alibi, the applicant said that he spent the night, in the company of Mrs. Joyce, in various places but at no time was near the street where the shooting took place. However Mrs. Joyce, while agreeing that she was with the applicant on the night of the murder, described the applicant as shooting Fitzgerald in the course of that night at the spot where his body was later found. (at p668)

3. On learning, long after the trial and a subsequent unsuccessful appeal, of Mrs. Telford's statement and of aspects of Mrs. Joyce's mental condition the applicant's resultant petition for mercy was referred to the Full Court of the Supreme Court of Victoria which dismissed the petition. That petition relied upon very many grounds but on the present application to this Court for special leave to appeal only three matters of substance were urged as grounds for the grant of that leave. Two of them concerned matters of evidence which failed to come before the trial jury. Of these the evidence of Mrs. Telford about events immediately after the shooting of Fitzgerald was the most important, but there was also the evidence of the mental state of Mrs. Joyce shortly before she gave her evidence at the applicant's trial. The third matter concerned the circumstances in which these two matters of evidence, in particular the evidence which Mrs. Telford might have given, being known to the Crown at and prior to the trial, were nevertheless not made available to the defence, which in consequence remained in ignorance of them until long after the applicant's conviction and unsuccessful appeal. (at p668)

4. Mrs. Telford's statement is not itself inconsistent with the applicant's guilt, she cannot identify any of the persons whom she saw outside her house immediately after the shooting. But to the extent to which her statement conflicts with parts of Mrs. Joyce's evidence it would, if preferred to that evidence, cast doubt upon Mrs. Joyce's description of at least some of the events of that night. The case for the Crown before the Full Court was presented upon the basis that the fingerprint evidence alone would not sustain the conviction. Hence the importance of Mrs. Joyce's evidence and in turn, so it is said, that of Mrs. Telford. (at p669)

5. Of Mrs. Telford's statement, the critical question is whether it qualifies as fresh evidence and is both credible and cogent. If it lacks any one of these qualities, no complaint can be made of the fate of this particular matter at the hands of the Full Court. (at p669)

6. The concept of fresh evidence, as evolved in the cases and in particular in Ratten v. The Queen [1974] HCA 35; (1974) 131 CLR 510 , a decision of this Court which was expressed as containing a definitive pronouncement of appropriate principle, (1974) 131 CLR, at p515 requires that the evidence in question, not being before the jury at the trial, was not then available to be called by the defence. If. on the contrary, the defence, knowing of that evidence, elected not to tender it, it will not be fresh evidence. Again, if it is evidence of which the accused "bearing in mind his circumstances as an accused,...could reasonably have been expected to have become aware and which he could have been able to produce at the trial" it will not be fresh evidence. However "great latitude must of course be extended to an accused in determining what evidence by reasonable diligence in his own interest he could have had available at his trial", it being "probably only in an exceptional case" that evidence not actually available to him is to be denied the quality of fresh evidence. So it is that it is evidence which is "actually or constructively available" to the accused but is not called by him that is spoken of as lacking the quality of fresh evidence. These passages all appear in the judgment of the Chief Justice in Ratten's Case (1974) 131 CLR, at p 517 , with whose judgment three other members of the Court concurred. (at p669)

7. A criminal trial, no less than a civil action, is of course an adversary proceeding in which each party "must bear the consequences of his own decision as to the calling and treatment of evidence at the trial" (1974) 131 CLR, at p 517 . But, if for want of knowledge of particular evidence, there has perforce been no making of a decision against adducing it, and if that want of knowledge is not so unexplained as to lead to the inference that it was the product of an intentional failure to make inquiries, it should, in my view, indeed be "only in an exceptional case" that evidence not called because not known to be available is denied its character of fresh evidence. (at p670)

8. There is no doubt but that in the present case the defence did not have actual knowledge of Mrs. Telford's evidence, nor has it been suggested that there was any intentional closing of the eyes to its existence. The most that can be said againt the defence is that it should have deduced from the evidence of Mr. Telford that his wife might have been able to give evidence the nature of which would merit investigation. The judgments in the Full Court devote some time to a consideration of this question of fresh evidence and each concludes that in all the circumstances Mrs. Telford's statement qualifies as fresh evidence. With this conclusion I would respectfully agree, there is nothing to make this the exceptional case spoke of in Ratten's Case [1974] HCA 35; [1974] HCA 35; (1974) 131 CLR 510 . (at p670)

9. Accepting, then, this evidence as fresh evidence, did its omission from the material which came before the jury result in a miscarriage? It will only have done so if, had it in fact been before the jury, it would, together with the other evidence, have been likely to have affected favourably to the accused the result to which the jury, in its absence, in fact came. This is the teaching of both Craig v. The King [1933] HCA 41; (1933) 49 CLR 429, at p 439 per Rich and Dixon JJ. and of Ratten v. The Queen. In the former it is said that
"The 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."
In Ratten the Chief Justice states the matter in more detail; he not only describes what must be the result of considering the fresh evidence, together with the original evidence, if the omission of the former from the evidence given at the trial is to be held to involve a miscarriage: he also describes the process involved in that consideration (1974) 131 CLR, at p 519 . However, his description of the result which the evidence must be likely to produce is no different; it must be such that "when the fresh evidence, if believed by the jury, is taken with the evidence given at the trial in that sense most favourable to the accused which reasonable men might properly accept it is likely that a verdict of guilty would not have been returned." Again (1974) 131 CLR, at p 520 his Honour speaks of fresh evidence as being such that, when viewed together with the general body of trial evidence, it will be "likely to produce a different verdict". The Chief Justice also points out (1974) 131 CLR, at p 519 that in considering whether the inclusion of particular fresh evidence would be likely to produce this result, "it is what a reasonable jury might reasonably make of this evidence which is the dominant consideration". (at p671)

10. In my view this is all clear enough. The Court of Criminal Appeal looks at the whole body of evidence including the fresh evidence; it bears in mind that the jury did convict the appellant and from that may gain some insight into the view which, in the absence of the fresh evidence, the jury in fact took of certain of the original evidence; it then considers what effect the introduction of fresh evidence would, in all the circumstances of the case, have upon the mind of a jury having regard to its relevance, to its credibility and to what may be described as its cogency, weight or power of persuasion. Relevance will no doubt be a relatively clear-cut issue; credibility (or plausibility, as it was called by their Honours in Craig v. The King [1933] HCA 41; [1933] HCA 41; (1933) 49 CLR 429 ) and cogency will often be very much matters of degree. For example, credibility will not simply be a question of the subjective truthfulness of the witness who gives the fresh evidence (assuming it to be oral evidence); it will also depend upon that witness's accuracy of recollection, keenness of powers of observation and recall, ability to express with precision that which is recalled, and so on; in short, it involves all those factors which go to determine the degree of acceptance of a witness's evidence. Then, again, any conflict which exists between the fresh evidence and the original evidence will have to be weighed in determining credibility. These are, of course, no more than some of the more obvious of those considerations which commonly arise in the daily judicial task of assessing evidence. I mention them only to stress the many factors that will intrude between a first identification of particular evidence as fresh evidence and the ultimate conclusion as to whether or not it is of such a kind that its omission from the trial process has resulted in a miscarriage. (at p671)

11. In the present case the Full Court did not hear evidence from Mrs. Telford. As O'Bryan J. put it "No question arose requiring the Court to hear Mrs. Telford examined and cross-examined on her statement". The facts in her statement, which she identified as such in an affidavit sworn by her, were described by his Honour as not being required by the Crown to be verified by her under oath; the Crown did not, apparently, contest that her statement constituted credible evidence, but, as Lush J. observes, the Crown's concession that her evidence was credible was confined to its honesty, the Crown maintaining that her evidence might not necessarily be believed. (at p672)

12. Whether in these circumstances it would have been of much avail for the Full Court to have heard Mrs. Telford being examined and cross-examined is open to doubt. A Court of Criminal Appeal like the Full Court in the present case, will usually have before it no more than a transcript of the original evidence, together with the charge to the jury and what may be deduced from the jury's verdict concerning the acceptability of that evidence in the eyes of the jury. Where the fresh evidence of a new witness is in factual conflict with original evidence, which was not the case in Ratten [1974] HCA 35; ; (1974) 131 CLR 510 , the hearing of that witness, without the equal opportunity of hearing the witnesses with whose evidence it is in conflict, may not much assist the Court in deciding whether a reasonable jury would, on the whole of the evidence, believe the fresh evidence. In such circumstances, a Court can no doubt determine whether fresh evidence is such as is capable, in the abstract, of being believed: it may not be able to progress very far with an inquiry whether it is likely to be believed by a reasonable jury which has also heard all the witnesses who gave evidence given at the trial, witnesses whom the Court will never hear. In any event it is, in my view, the ultimate conclusion of the Court that is of importance, not the various steps leading to it, steps which, as I have endeavoured to show, may be both numerous and complex although they are the accepted commonplace of the judicial task. That ultimate conclusion must be whether or not it is likely, had the fresh evidence been before the jury, that a verdict of guilty would not have been returned. (at p672)

13. The Full Court was not, in the outcome, much troubled in accepting that the fresh evidence possessed the requisite credibility but they concluded that the appellant failed upon the question of cogency. In his reasons for judgment, with which the Chief Justice also expressed agreement, Lush J. gave weighty reasons why the cogency of any evidence which Mrs. Telford might give was such that it did not lead him to conclude that it was likely, had it been given at the trial, that a different verdict would have ensued. With those reasons I am in full agreement. It was urged on behalf of the applicant that this conclusion was vitiated because the fresh evidence was viewed as merely collateral, going only to the credit of Mrs. Joyce. As I read the judgment of Lush J., this element did not enter into his consideration of cogency. To the extent to which this element was relied upon by O'Bryan J. it does not appear to me to diminish the significance of the reasoning which led his Honour, like Lush J., to regard Mrs. Telford's statement as wanting in the necessary degree of cogency. Since I detect no error on the part of the Full Court it follows that this matter of the fresh evidence of Mrs. Telford can constitute no ground for special leave. (at p673)

14. The second matter of allegedly fresh evidence, that relating to the mental state of Mrs. Joyce shortly before the trial, may be dealt with quite shortly. In the course of argument it became apparent that the evidence in question was in truth additional rather than fresh evidence, that is, it was evidence not called at the trial but of the existence of which the defence was aware, although it did not know of its precise nature, and was evidence which it could have obtained on subpoena had it thought fit to do so. This is sufficient in my view to dispose of this ground for special leave; however I may add that I have had the advantage of reading, and agree with, the further observations of Mason J. on this aspect of the present application. (at p673)

15. There remains the third general ground for special leave, the conduct of the prosecution in not informing the defence either that a statement had been obtained from Mrs. Telford which was at variance with the evidence of Mrs. Joyce or of the circumstances concerning Mrs. Joyce's period at Larundel Mental Hospital, in particular of diagnosis of her mental condition shortly before she gave evidence at the trial at which the applicant was convicted. I have hitherto in the interests of brevity, referred to that trial as if it were the only trial; there was in fact an earlier trial of the applicant which miscarried and in the course of which Mrs. Joyce also gave evidence. Some of the criticism of the conduct of the prosecution was more properly applicable to that earlier trial than to the second trial which resulted in conviction. The Full Court has expressed its general views concerning that conduct and of them I need, on this application for special leave, do no more than express my agreement. (at p673)

16. As to specific conduct affecting the second trial, it is clear that the prosecutor had in his possession at the second trial, as a part of the police brief, Mrs. Telford's statement and that he failed to make its existence known to the defence. However, I am not satisfied that his failure to do so was a conscious act designed to prejudice the defence, still less that it constituted an impropriety or any misconduct such as to give rise to any miscarriage of justice. The immediate purpose for which Mrs. Telford's evidence might have been used by the defence, to suggest that Mrs. Joyce's description of events immediately after the shooting was incorrect, was in part achieved by the cross-examination of other Crown witnesses and this was much relied upon by the defence at the trial. Thus Mrs. Telford's evidence would not have disclosed any new fact or circumstance but would only have added weight to matter already in evidence and upon which the defence relied. Mrs. Telford's evidence, while in part of assistance to the defence, was in part adverse to it. Because it covered ground already dealt with by other Crown witnesses it may well have been regarded by the prosecutor as mere surplusage. Although it would certainly have been better had its existence been disclosed to the defence, the failure to do so may well have been no more than an oversight and, having regard to the foregoing and in particular to what I have said earlier as to the cogency of this evidence, what occurred cannot be regarded as involving any miscarriage of justice. (at p674)

17. As to Mrs. Joyce's period at Larundel, whatever may have been the position in the context of the first trial, and of this the Full Court has spoken, the defence was, at the time of the second trial, well aware of the Larundel episode and might have made what it could of her mental condition on and prior to discharge but did not choose to do so. It seems that by the time of her release from Larundel Mrs. Joyce was reported upon as suffering from "absolutely no evidence of residual psychosis". There was in my view no effective concealment of material facts from the defence nor is any ground for special leave disclosed. In the case of this ground, as in that of the second ground, I may add that I agree with the views expressed by my brother Mason. (at p674)

18. I would dismiss this application. (at p674)

MASON J. I agree with the Chief Justice that this application for special leave to appeal should be refused. (at p674)

2. In Ratten v. The Queen [1974] HCA 35; (1974) 131 CLR 510 this Court recently considered the duties of a court of criminal appeal in dealing with an appeal against a conviction on the ground that a miscarriage of justice has occurred based on the discovery of material evidence not given at the trial. There the Chief Justice (with whom McTiernan, Stephen and Jacobs JJ. concurred) stated the principles which are to be applied. His Honour observed that when the evidence not called at the trial, whether or not it be fresh evidence in the strict sense of that expression, when taken in conjunction with the other evidence tendered at the trial, shows the accused to be innocent or when it raises a reasonable doubt as to his guilt, the conviction must be set aside outright. The Chief Justice went on to point out that when the evidence not called at the trial, though it fails to show that the accused is innocent or fails to raise a doubt as to his guilt, none the less shows that it is likely that a verdict of not guilty would have been returned by the jury had it had the benefit of the fresh evidence, the court should set aside the conviction and order a new trial, if and only if the evidence in question is fresh evidence properly so called, that is if it is evidence of which the accused was unaware at the time of his trial and it is evidence which he could not have discovered with reasonable diligence (1974) 131 CLR, at pp 516-519 . (at p675)

3. In both these cases the newly adduced evidence, considered in conjunction with the evidence tendered at the trial, reveals a miscarriage of justice showing, as it does, that it would be unsound or unsatisfactory to allow the conviction to stand, in the one case because the appellant should be acquitted, and in the other because there is a likelihood that the accused would be acquitted on a re-trial based on the fresh evidence. The quashing of the conviction by a court of criminal appeal in these cases is based, not on the existence of any irregularity in the conduct of the trial, but on the perceived injustice or unfairness in allowing the conviction to stand when it is viewed against the totality of the evidence including the newly adduced evidence. (at p675)

4. 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. (at p675)

5. The second consideration is that there must be powerful reasons for disturbing a conviction obtained after a trial which has been regularly conducted. No such reason for disturbing a conviction presents itself if all that emerges is that the accused has deliberately chosen not to call evidence or that he has failed to search out evidence with reasonable diligence, unless the evidence not called at the trial demonstrates that the accused should not have been convicted of the offence charged. 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. After all, in a criminal appeal uncomplicated by the existence of newly adduced evidence it is not a ground for the setting aside of a conviction and the ordering of a new trial that the appellate court itself considers that it was unlikely on the evidence that the jury would have convicted. If there was evidence on which the jury could reasonably convict, the verdict must stand, for in such a case there is no miscarriage of justice. So it is when evidence not called at the trial, not being fresh evidence when considered with the evidence given at the trial, leads to the conclusion that the jury could reasonably convict, though it appears to the appellate court that it would be unlikely to do so. There is then no miscarriage of justice because the jury has arrived at a verdict which is unimpeachable and the new evidence produced on the appeal falls short of establishing that the accused should not have been convicted, it being the fault of the accused that the new evidence was unavailable at the trial. (at p676)

6. It has been suggested that before a court of criminal appeal will set aside a conviction and order a new trial for fresh evidence it must not only be satisfied that the evidence shows that there is a likelihood that the jury would not have returned a verdict of guilty, but that the fresh evidence is such that it is likely to be believed. No doubt there are many cases in which fresh evidence will not satisfy the appellate court that there is a likelihood that the accused would not have been convicted unless that evidence is of such a character that it is likely to be believed. But I cannot think that this is always the case. There may well be circumstances in which the fresh evidence is sufficiently cogent and plausible to justify the conclusion that the jury would be unlikely to convict, though it is impossible to say that the jury would necessarily have preferred it to Crown evidence with which it is inconsistent. (at p676)

7. In Craig v. The King (1933) 49 CLR, at p 439 Rich and Dixon JJ. said:
"It cannot be said that a miscarriage has occurred unless the fresh evidence has cogency and plausibility as well as relevancy. The 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. But in judging of the weight of the fresh testimony the probative force and the nature of the evidence already adduced at the trial must be a matter of great importance." (at p677)

8. Their Honours did not suggest that, in order to succeed, the appellant had to show that the fresh evidence was likely to be believed as well as showing it was likely that the jury would return a verdict of not guilty. What their Honours said in the passage which I have quoted supports the view that what the accused has to show is a likelihood that the jury would have returned a verdict of not guilty had it heard the fresh evidence and that the accused will not succeed in this endeavour unless the fresh evidence on which he relies is cogent and plausible. (at p677)

9. I agree with the Chief Justice in thinking that the evidence that Mrs. Telford can give, assuming it to reflect what is contained in her signed statement, is not fresh evidence and that it does not show that there is a likelihood that the jury would have returned a verdict of not guilty had the evidence been led at the trial. So much, then, for the applicant's first point in support of the application for a grant of special leave. (at p677)

10. The applicant's second point was that a miscarriage of justice had occurred because the Crown had failed to alert the defence to the fact that Mrs. Telford was capable of giving evidence as to events connected with the murder in circumstances where Mrs. Telford was a credible witness, her account was at variance in significant respects with that of the principal Crown witness, Rayma Joyce, and the reliability of Joyce's evidence was being attacked by counsel for the applicant on matters to which Mrs. Telford could testify. At its most critical, the submission was that the Crown had deliberately concealed from the defence the very existence of Mrs. Telford's statement. (at p677)

11. It has not been demonstrated that the Crown engaged in a course of conduct designed to conceal from the applicant and his counsel Mrs. Telford's ability to give material evidence. On the contrary, I am inclined to the view that the prosecutor did not even consider the possibility that Mrs. Telford's evidence might have been of some assistance to the applicant's case. After all, Mrs. Telford's statement added little, if anything, to the case advanced against the applicant by the Crown and the defence put forward by the applicant was one of alibi, a defence which Mrs. Telford's evidence did not establish and which it did not necessarily support. I do not accept that the Crown had some ulterior motive when it failed to inform the defence of the existence of Mrs. Telford's statement. (at p678)

12. In Richardson v. The Queen [1974] HCA 19; (1974) 131 CLR 116 this Court had occasion to consider the responsibilities of the Crown in the conduct of a criminal prosecution. The issue there concerned the prosecutor's omission to call a particular witness, not a failure by the Crown to inform the defence of the existence of a material witness or of the nature of the evidence which the witness might be able to provide. Nevertheless, the principles which the Court enunciated apply to the question now under consideration. It was pointed out that, while the prosecutor should attempt to ensure that the Crown case is presented with fairness to the accused, he also has a responsibility to ensure that the Crown case is properly presented and he has, therefore, a discretion as to what witnesses will be called for the prosecution. This discretion is not a discretionary power which is subject to, or capable of, judicial review. It follows, as the Court observed, that "the decision of the prosecutor not to call a particular witness can only constitute a ground for setting aside a conviction and granting a new trial if it constitutes misconduct which, when viewed against the conduct of the trial taken as a whole, gives rise to a miscarriage of justice" (1974) 131 CLR, at pp 121-122 . (at p678)

13. In the present case, I do not condone the failure of the Crown to give the defence any information about Mrs. Telford's statement. But just as in Richardson's Case it was recognized that there is no rule of law requiring a Crown prosecutor to call particular witnesses, so it must be acknowledged in the present case that there is no rule of law which compels the Crown to provide the defence with statements made by persons whom it does not propose to call as witnesses. Thus, the Crown's omission to inform the applicant about Mrs. Telford's statement could not without more constitute a miscarriage of justice. To establish a miscarriage it would be necessary to show that the effect or consequence of the omission resulted in a miscarriage. (at p678)

14. In my opinion, the consequences of the Crown's failure to alert the defence to the existence of Mrs. Telford's statement do not justify the conclusion that the applicant's conviction is unsound or unsatisfactory. It was argued that the Crown's failure should not be excused when the reliability of Joyce's account of the murder was under attack at the second trial on matters to which Mrs. Telford could testify, that attack having been mounted at both the inquest and the first abortive trial. However, at best Mrs. Telford's evidence would only have provided further ammunition for this attack since it did not, as such, establish the applicant's alibi. In any event, the conclusion that Mrs. Telford's statement does not amount to fresh evidence and the reasons for that conclusion indicate that the applicant has not been so prejudiced in the conduct of the defence case that a miscarriage of justice can be said to have occurred. As I have said, the applicant could have discovered Mrs. Telford's evidence through the exercise of reasonable diligence in the preparation of his case. (at p679)

15. There is likewise no substance in the applicant's further submission that a miscarriage of justice has resulted from the Crown's failure to inform the defence about the nature of a psychiatric condition for which Rayma Joyce had been treated at Larundel Psychiatric Hospital between 27th February 1973 and 17th April 1973. This condition was diagnosed as "stress induced paranoid psychosis" and, according to the hospital's records, it involved a delusion that there was a plot by the police, the Government and the hospital to "get her out of the way". However, at the time of Joyce's discharge from the hospital on 17th April 1973, there was, again according to the records, "absolutely no evidence of residual psychosis". The applicant's second trial commenced on 1st May 1973 and Joyce began to give her evidence at the trial on 3rd May 1973. (at p679)

16. It was correctly conceded that the contents of the hospital's records relating to Rayma Joyce do not amount to fresh evidence. At the second trial the defence was clearly aware that Joyce was suffering from a nervous or psychiatric condition and that she had undergone treatment for this condition at Larundel Psychiatric Hospital. Yet the accused did not subpoena the hospital records, a course which was open to him. That the hospital's records do not constitute fresh evidence is an important and, in the circumstances of this case, a decisive consideration telling against the applicant. (at p679)

17. This apart, it is, I think, highly unlikely that the Crown prosecutor knew of the character of Joyce's illness or of the delusions which were associated with that illness. But, on the assumption that he did have this information, it was not incumbent upon him to alert the defence to it. The psychosis had been dispelled by the time of the second trial and there was nothing to indicate that Joyce's evidence was unreliable by reason of some mental condition from which she had suffered. In any event, the fact that the defence was aware that Joyce had undergone treatment for a psychiatric condition at the hospital and therefore had the opportunity of issuing a subpoena for the hospital records demonstrates that any failure on the part of the prosecutor did not prejudice the defence in the conduct of the case. (at p680)

18. For these reasons I would dismiss the application for special leave to appeal. (at p680)

MURPHY J. This application for special leave to appeal from the Victorian Full Court's dismissal of a petition of mercy following the applicant's conviction for murder at his second trial is based on the prosecution's suppression of evidence (or the discovery of fresh or new evidence). (at p680)

2. The applicant's first trial aborted. At the second trial, the prosecution case depended principally upon Mrs. Joyce's evidence that on 24th September 1972 she was a passenger in a car driven by the applicant who picked up the deceased at a cafe, took him to Noble Park and stopped outside Mr. Telford's home where, after both men got out of the car, the applicant shot the deceased and then returned to the car and drove Mrs. Joyce away; she had stayed "ducked down" in the car while the applicant and the deceased were outside it. Mr. Telford's evidence was that he was wakened by his dog barking at about 2.30 a.m.; he heard two sounds resembling crackers; he sat up, looked through his open window, saw a man enter the driver's side of a car and thought he saw another man near it. Mr. Goldsworthy, who lived opposite Mr. Telford, stated he heard shots and saw a man at the car. There was also evidence that an empty Winfield cigarette packet which bore the applicant's fingerprint was found at the murder scene. (at p680)

3. The applicant claimed that the prosecution was framing him, that Mrs. Joyce was giving false evidence under police pressure, and that the fingerprint evidence was concocted. He sought to show that Mrs. Joyce's account was false by cross-examination of Mr. Telford and Mr. Goldsworthy. He elicited that each of them thought he observed another person on the passenger side of the car. The prosecutor re-examined them to show that (apart from the deceased) only one person was outside the car and they admitted that they were in doubt whether they did see another person. In his address to the jury, the applicant referred to this evidence. The trial judge, Dunn J., referred to the applicant's comments and said:
"The accused man relies on that part of the evidence of Mr. Telford and Mr. Goldsworthy which suggests that they saw a shadow of a second figure outside this car as being inconsistent if there was a second person there with Mrs. Joyce's account of what happened and also as indicating that there were two people who were both out of the car and Mrs. Joyce's account does not permit of that occurring. The argument that the Crown would put to you on the other hand is that neither of them are positive about this matter that having regard to the lighting conditions and the circumstances and the way they gave their evidence about it is quite apparent that neither of them are confident that what they saw represented in fact another person." (at p681)

4. During the trial, the prosecutor had Mrs. Telford's statement in his brief. She had given a signed statement to a police officer on the same morning as the shooting which stated that after the shots she saw "two men run from the front of the car, one to either side as they opened the car doors, the lights went on inside, and then the person on the passenger side looked around . . . They slammed the doors . . . and then drove off." She had the impression that there was some other person already in the car. At the time of making the statement, she orally, and later in writing (22nd March 1977), corrected it by stating that there were "two people", not "two men". The statement became known to the applicant only because of the Beach Inquiry, a Board with the powers of a Royal Commission, which reported:
"During the course of its lengthy inquiry into the Lawless matter however, the Board did uncover certain matters of the gravest moment so far as Lawless is concerned, matters not involving the behaviour of Police Officers but the behaviour of others at his trial and the evidence called or, indeed more accurately, withheld at it." (at p681)

5. Mrs. Telford's statement significantly conflicts with Mrs. Joyce's and tends to support the defence contention that there were two people outside the car after the shooting, not one as Mrs. Joyce stated. Mrs. Telford's evidence was considered by the Full Court on the hearing of the petition of mercy. The prosecution conceded that Mrs. Telford's evidence was credible (but not that it would necessarily be accepted by a jury). The Court concluded that it qualified as fresh evidence because "reasonable diligence on the part of Lawless and his legal advisers would not have discovered the evidence before the second trial was concluded". I agree. They also held that Mrs. Telford's evidence was "inconsistent", "impossible to reconcile", with Mrs. Joyce's evidence concerning the number of persons present at the scene. I agree. Mrs. Telford's evidence goes to the issue of Mrs. Joyce's credibility (as the Full Court held) but it is not restricted to that. The question whether there were two men outside the car to that. The question whether there are two men outside the car after the shooting (as stated by Mrs. Telford) or one (as stated by Mrs. Joyce) goes directly to the circumstances of the murder. Mrs. Telford was an eye-witness to events immediately after the murder. If there were two people outside the car after the shots were fired, then, in a very material respect, Mrs. Joyce's account of the circumstances of the murder was false. (at p682)

6. The applicant contended that the prosecution caused a miscarriage of justice by suppression of credible material favourable to the applicant on a critical issue in the trial. Those prosecuting on behalf of the community are not entitled to act as if they were representing private interests in civil litigation. The prosecution's suppression of credible evidence tending to contradict evidence of guilt militates against the basic element of fairness in a criminal trial. Even if the prosecution could be excused for not making Mrs. Telford's statement available to the applicant earlier, it could not be excused for failing to do so after the applicant had attempted to show from Mr. Telford and Mr. Goldsworthy that another person was present. (at p682)

7. In my opinion, the verdict of guilty was brought about by conduct which departed from the standard required of those prosecuting on behalf of the community. (at p682)

8. The outcome might well have been affected if the jury knew not only the suppressed evidence but also the fact that the prosecution was suppressing it, especially because the applicant claimed he was being framed. Evidence of suppression would have strengthened what otherwise may have seemed fantastic claims - that Mrs. Joyce was lying under police pressure, and that the fingerprint evidence was concocted. (at p682)

9. The applicant also contended that fresh evidence of Mrs. Joyce's mental condition was available. On 27th February 1973, according to her general practitioner, Dr. Irinyi, she "exhibited paranoid ideas. Her neuroses spilled over . . . into a psychotic episode. She lost touch with reality and lost insight to a great extent and developed rather pronounced paranoid ideas, ideas of persecution, but still she retained sufficient insight" to accept his suggestion that she needed hospital treatment and specialist care, and was voluntarily admitted on the same day to Larundel Psychiatric Hospital. Dr. Irinyi did not see her again until 11th June 1973. The hospital records disclose that on admmission she alleged a plot between the Government, the police and later the hospital to get her out of the way. She was continually trying to come to a bargain with the interviewer that she was prepared to go along with the plot so long as her children did not suffer as a result of the plot - a description of a general paranoid psychosis according to the admitting doctor. The prosecution concealed Mrs. Joyce's presence in Larundel from the court and from the applicant on a bail application, at a pre-trial hearing and at the first trial. She was discharged on 17th April 1973. Dr. Irinyi said that on 11th June 1973 she was significantly better, with no psychosis. (at p683)

10. At the second trial, the defence was aware that Mrs. Joyce had been in Larundel but was not made aware (and did not try to discover) precisely what her condition was at various times. It may be thought that the defence was negligently conducted in failing to obtain accurate information and evaluation by a defence expert of the witness's mental history and condition. This overlooks the practical difficulties under which an accused in custody and his representatives operate, particularly in the light of the prosecution's concealment of Mrs. Joyce's period in hospital from the accused, as well as the courts. Even if the history of Mrs. Joyce's mental state does not meet the test of fresh evidence (because it could have been discovered by reasonable diligence) it is a material circumstance in considering whether the conviction should stand. (at p683)

11. There were other disturbing features of this case. One of these was the fingerprint evidence. A police cadet claimed that he found an empty Winfield cigarette packet at the murder scene. The applicant claims that it was not dealt with according to normal procedures; that it was not shown on the photographs taken of the scene; that he was not arrested because of his fingerprint: his fingerprints were on police record but the fingerprint on the packet was not compared with those until after his arrest. The applicant claims (and it was agreed by the prosecution) that on being questioned at the police station on 26th-27th September 1972, he accepted an offered cigarette, was handed and handed back to the police a packet of Winfield cigarettes. He claims that the police framed him by introducing the packet he handled at the police station as having been found at the murder scene. The respondent conceded that the applicant's conviction was unsafe if it depended only on the fingerprint evidence. (at p683)

12. The Supreme Court (Menhennitt J.) directed the prosecution to hand over to the applicant copies of all statements by witnesses. The prosecution disobeyed this direction by failing to hand over Mrs. Boland's statement. This could have been useful to the applicant on a subsidiary issue. In the way the trial ran, the Supreme Court considered that the applicant suffered no real disadvantage. (at p683)

13. In my opinion, there was a miscarriage of justice because of the suppression of Mrs. Telford's evidence. I am not satisfied that "no substantial miscarriage of justice has actually occurred" (see s.568 of the Crimes Act 1958 (Vict.)). (at p684)

14. Special leave should be granted in order to allow the appeal and quash the conviction. (at p684)

AICKIN J. The principal facts upon which this application for special leave turns are set out in the judgment of the Chief Justice and I do not repeat them here. (at p684)

2. This Court in Ratten v. The Queen [1974] HCA 35; (1974) 131 CLR 510 dealt with the circumstances in which a Court of Criminal Appeal should quash a conviction or order a new trial in cases where new evidence or fresh evidence is relied upon. The Chief Justice, in whose judgment McTiernan J., Stephen J. and Jacobs J. agreed, sets out the relevant principles and the task which an appellate court must face in the application of those principles (1974) 131 CLR, at pp 518-520 . Menzies J. in a separate concurring judgment deals with the relevant principles and their application (1974) 131 CLR, at pp 525-528 . I do not set out those passages again but they constitute the basis upon which this application must be considered. (at p684)

3. The Chief Justice points out in Ratten's Case (1974) 131 CLR, at p 518 that in considering the question of fresh evidence and new evidence
". . . the court may see and hear the witnesses of the new evidence, both Crown and appellant being entitled to examine and cross-examine as the case may be. Further, the court will be entitled to receive evidence which tends to support, contradict or weaken the new evidence or the inferences which might be drawn therefrom".
I do not read that passage as requiring that a court of criminal appeal must hear the alleged new or fresh evidence, but to require only that it may do so if it thinks it necessary or desirable. In Ratten's Case the Court of Criminal Appeal of Victoria took that course. No doubt in a case where the principal application is that the conviction should be quashed, rather than that there should be an order for a new trial, it would be seldom that a court of criminal appeal would quash a conviction without having heard the fresh or new evidence and having provided an opportunity for it to be tested by cross-examination. However, in the case where the primary application is for a new trial whether or not accompanied by an application for the quashing of the conviction, it does not seem to me that the same necessity exists for the court of criminal appeal itself to hear and have tested the proposed fresh or new evidence. It must always depend upon the circumstances which course should be adopted. (at p685)

4. In the present case the proposed new witness, Mrs. Telford, was not called to give evidence before the Court of Criminal Appeal, but in that Court the Crown conceded that she was a credible person, though in this Court that concession was somewhat modified. I think, however, it is proper to deal with the matter upon the basis of the concession as made to the Court of Criminal Appeal. (at p685)

5. I do not consider that the proposed evidence of Mrs. Telford is to be regarded merely as going to the credit of the witness Mrs. Joyce, who was the principal witness for the Crown and whose evidence was to the effect that she saw the applicant shoot Fitzgerald. However, Mrs. Telford's evidence would not go directly to the question of identification of the person who shot the deceased, nor directly to the truth of the alibi upon which the applicant relied. Her evidence deals with part of the incident which involved the shooting of Fitzgerald and the departure from the scene of whoever did shoot him. She gives a version of the events immediately following the actual shooting and before the departure of the car which differs from that given by Mrs. Joyce in that she says that, after she heard the noises which must have been the firing of the shots, she saw two persons get into the car, one by the driver's door and the other by the front door on the other side. Mrs. Joyce's version was that there was only one person, namely, Lawless, who got into the car after the shooting and that there was no third person present. Mr. Telford had given evidence that he had thought there was or might have been a third person present, but he was not sure. In one sense it may be said that if the jury were to believe Mrs. Telford they must to that extent disbelieve Mrs. Joyce and it is only in that special sense that it can be described as going to the credit of Mrs. Joyce. If Mrs. Joyce were disbelieved about one part of the critical incident it might affect the jury's view of the balance of her evidence. Mrs. Telford's evidence however is more properly described as an account which differs from that of Mrs. Joyce in relation to one part of that critical incident. However, Mrs. Telford confirms Mrs. Joyce's evidence as to the colour of the car involved. (at p685)

6. It does not seem to me that in these circumstances a decision by the Court of Criminal Appeal, after hearing Mrs. Telford's evidence, that it believes her evidence or that it is likely a jury would believe her evidence would assist in resolving the question. The Full Court however could not embark on a hearing of the evidence of both Mrs. Telford and of Mrs. Joyce in order to determine which should be believed. If there were a new trial the question would be whether the jury believed Mrs. Telford's version, rather than Mrs. Joyce's version and what effect on their minds that would have in relation to their consideration of the balance of Mrs. Joyce's evidence, it being conceded that in the absence of Mrs. Joyce's acceptance there was not sufficient evidence to sustain a verdict of guilty. The test to be applied in the particular circumstances of the present case is conveniently stated in the passage of the joint judgment of Rich and Dixon JJ. in Craig v. The King (1933) 49 CLR, at p 439 quoted by Menzies J. in Ratten's Case (1974) 131 CLR, at p 526 . It is as follows:
"A 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 plausibility as well as relevancy. The 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."
To the same effect is the following passage from the judgment of Barwick C.J. in Ratten's Case (1974) 131 CLR, at p 520 :
"To sum up, if the new material, whether or not it is fresh evidence, convinces the court upon its own view of that material that there has been a miscarriage in the sense that a verdict of guilty could not be allowed to stand, the verdict will be quashed without more. But if the new material does not so convince the court, and the only basis put forward for a new trial is the production of new material, no miscarriage will be found if that new material is not fresh evidence. But if there is fresh evidence which in the court's view is properly capable of acceptance and likely to be accepted by a jury, and which is so cogent in the opinion of the court that, being believed, it is likely to produce a different verdict, a new trial will be ordered as a remedy for the miscarriage which has occurred because of the absence at the trial of the fresh evidence." (at p686)

7. On the basis that Mrs. Telford's evidence is to be considered as fresh evidence, the question is whether, assuming it to be properly capable of acceptance and likely to be accepted by the jury, that is to say that it has cogency and plausibility as well as relevance, it is likely to produce a different verdict, i.e., to raise a reasonable doubt or to remove the "certainty" of the prisoner's guilt which the former evidence produced in the jury's mind. (at p686)

8. The possible presence of a third person at the scene of the crime was emphasized on behalf of the defence at the trial. It does not seem to me, however, that acceptance of the evidence that there was a third person present would necessarily affect the jury's view of the whole of Mrs. Joyce's evidence. Leaving aside for present purposes the possibility that the jury might form the view that Mrs. Telford, though honest and trustworthy, might have been mistaken, the jury might well take the view that the third person was someone who Mrs. Joyce wished to protect and that would be entirely consistent with the view that the applicant had fired the shots. The fact that there was another accessory, as well as Mrs. Joyce herself, would not require the jury to disbelieve the critical parts of Mrs. Joyce's evidence, namely, that it was the deceased who fired the shots. It is no doubt possible that the jury would be affected in its belief of Mrs. Joyce so as to feel insufficiently satisfied as to the whole of her story to be able to say that they accepted her version beyond reasonable doubt, which at the trial they must have done, but the cases show that that is not enough to warrant an order for a new trial. The evidence must be such that it ought to result in a verdict of not guilty, that is, it must be such that it would at least raise a reasonable doubt. If it is only possible that it might raise such a doubt the test is not satisfied. (at p687)

9. I do not consider that the evidence of Mrs. Telford is such that it ought to result in a verdict of not guilty, though it is possible that it might do so. The presence of a third person is, in my opinion, not so inconsistent with the critical part of Mrs. Joyce's evidence that preferring Mrs. Telford to Mrs. Joyce on that point only would necessarily lead to the jury entertaining a reasonable doubt as to the identity of the person who fired the shot, bearing in mind that the applicant's defence was that neither he nor Mrs. Joyce were present at the scene at all. In those circumstances I do not consider that the test laid down in Ratten's Case [1974] HCA 35; (1974) 131 CLR 510 has been satisfied. (at p687)

10. In relation to the other grounds on which special leave was sought I do not need to add to what is said in the judgments of the Chief Justice and Mason J. I therefore agree that special leave should be refused. (at p687)

ORDER