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Ibbs v The Queen [2001] WASCA 129 (22 March 2001)

Last Updated: 2 May 2001


JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : COURT OF CRIMINAL APPEAL

CITATION : IBBS -v- THE QUEEN [2001] WASCA 129

CORAM : MALCOLM CJ
WALLWORK J
WHEELER J

HEARD : 22 MARCH 2001

DELIVERED : 22 MARCH 2001

PUBLISHED : 24 APRIL 2001

FILE NO/S : CCA 212 of 2000

BETWEEN : KEVIN NEIL IBBS
Appellant

AND

THE QUEEN
Respondent




Catchwords:
Appeal and new trial - Appeal by way of Attorney General's Reference - Many years after appellant convicted of rape complainant and witness at trial convicted of conspirary to pervert course of justice - False allegation of rape to be made - Conviction quashed and verdict and judgment of acquittal entered
Legislation:
Sentencing Act 1995 (WA) s 140(1)(a)
Result:
Appeal allowed, conviction quashed, verdict and judgment of acquittal entered

Representation:
Counsel:
Appellant : Mr A O Karstaedt & Mr S R C Senaratne
Respondent : Mr R E Cock QC
Solicitors:
Appellant : Legal Aid of Western Australia
Respondent : State Director of Public Prosecutions


Case(s) referred to in judgment(s):


Case(s) also cited:

Andrews v The Queen [1968] HCA 84; (1968) 126 CLR 198
BRS v The Queen [1997] HCA 47; (1997) 191 CLR 275
Clemesha v The Queen [1978] WAR 193
Director of Public Prosecutions (Nauru) v Fowler [1984] HCA 48; (1984) 154 CLR 627
Gerakiteys v The Queen [1984] HCA 8; (1984) 153 CLR 317
Longman [1989] HCA 60; (1989) 168 CLR 79
M v The Queen [1994] HCA 63; (1994) 181 CLR 487
Peacock v The King [1911] HCA 66; (1911) 13 CLR 619
R v Wilkes (1948) 77 CLR 571
Reid v The Queen [1980] AC 343

1 MALCOLM CJ: At the conclusion of the argument on this appeal on 22 March 2001 the Court ordered that the appeal be allowed, the conviction of the appellant be quashed and a judgment and verdict of acquittal entered. It was then indicated that the Court would publish detailed reasons for that conclusion later. These are my reasons for joining in the making of those orders.

2 This appeal comes before the Court by way of a reference to the Court of Criminal Appeal by the former Attorney General, the Honourable Peter Foss QC MLC, pursuant to s 140(1)(a) of the Sentencing Act 1995 (WA). The reference is dated 4 October 2000 and was accompanied by a proposed notice of appeal which set out the following grounds:

"1. Subsequent to the conviction of the applicant of this offence, the complainant Christine Elizabeth Watson also known at the time as Christine Elizabeth Wardle and Katrina Ann Carter also known at the time as Katrina Ann Ibbs were convicted on their own pleas of guilty by the District Court at Perth on 14 February 1997 of conspiring with each other on a date unknown between 1st day of November 1986 and the 30th day of November 1986 to pervert the course of justice upon Kevin Neil Ibbs by agreeing that Christine Elizabeth Watson would make false complaint to the police that she had been sexually assaulted by Kevin Neil Ibbs in order to have Kevin Neil Ibbs charged with the offence of sexual assault, which evidence, had it been available at the time of the Applicant's trial to be placed before the Jury, would most likely have resulted in a verdict of 'not guilty' thus rendering the conviction unsafe occasioning a miscarriage of justice.

2. The Applicant's first appeal to this Honourable Court against the conviction and the sentence (Court of Criminal Appeal Nos 40 & 48 of 1987 refers) had reasonable prospects of success had the evidence of the conspiracy been available to the Applicant at the hearing of the appeal."

3 At the hearing of the appeal on 22 March 2001 the appellant was granted leave to amend the grounds of appeal by substituting the following single ground:

"1. A miscarriage of justice has occurred, in that there is fresh evidence which was not available at the trial of the Appellant, and there is a significant possibility or a reasonable possibility that the jury, acting reasonably, would have acquitted the Appellant if the fresh evidence had been before it at the trial.

Particulars of fresh evidence
(a) On 14 February 1997 and subsequent to the trial of the Appellant, the complainant CHRISTINE ELIZABETH WATSON also known as CHRISTINE ELIZABETH WARDLE and the Appellant's ex-wife KATRINA ANN CARTER also known as KATRINA ANN GIBBS [sic] were convicted on their own pleas of guilty by the District Court at Perth of conspiring with each other on a date between 1 November 1986 and 30 November 1986 to pervert the course of justice upon the Appellant by agreeing that CHRISTINE ELIZABETH WATSON would make a false complaint to the police that she had been sexually assaulted by the Appellant in order to have the Appellant charged with the offence of sexual assault.

(b) Further, on 22 November 2000 KATRINA ANN CARTER made and signed a written statement, witnessed by Detective Sergeant Paul Alexander ZOHN of the Queensland Police, Maroochydore CI Branch, relating to the said conspiracy."

4 On 26 March 1987 the appellant was convicted after trial on 25 - 26 March 1987 on an indictment which alleged that on 29 November 1986 (a Saturday) at Langford the appellant sexually penetrated one Christine Elizabeth Wardle (the complainant) without her consent. On 22 April 1987 the appellant was sentenced to imprisonment for a term of four years with a minimum term of 18 months. On 16 July 1987 this Court constituted by Burt CJ, Brinsden and Smith JJ unanimously dismissed the appeal against conviction and by a majority, Brinsden J dissenting, refused the appellant leave to appeal against sentence: Ibbs v The Queen [1988] WAR 91. In his dissenting judgment in relation to the sentence at 104, Brinsden J would have granted leave to appeal, allowed the appeal, quashed the sentence of four years' imprisonment imposed by the learned trial Judge and substituted a sentence of imprisonment for six months.

5 The appellant then made an application to the High Court of Australia for special leave to appeal against the sentence imposed which was successful with the result that the judgment of the Court of Criminal Appeal was set aside and the sentence imposed by the trial Judge quashed and, in lieu thereof, a sentence of imprisonment for six months was imposed commencing on 22 April 1987: Ibbs v The Queen [1987] HCA 46; (1987) 163 CLR 447.

6 The offence of which the appellant was charged was created by s 324D of the Criminal Code (WA), being one of the provisions of Ch XXXIA of the Criminal Code which was inserted by the Acts Amendment (Sexual Assaults) Act 1985 (WA). The relevant chapter is headed "Sexual Assaults". The new provisions substantially altered the previous Code provisions relating to sexual offences. The offence of rape was deleted, but the conduct which would have constituted rape was made the subject of a new s 324D which provided that:

"Any person who sexually penetrates another person without the consent of that person is guilty of a crime and is liable to imprisonment for 14 years."

7 As the joint judgment of Mason CJ, Wilson, Brennan, Toohey and Gaudron JJ in Ibbs v The Queen, supra, at 448 - 449, it was said that the conduct proscribed by s 324D included certain conduct which would not have constituted rape. Section 324F gave an extended meaning to the phrase "to sexually penetrate", which was defined as follows:

"(a) to penetrate the vagina of any person or the anus of any person with -
(i) any part of the body of another person; or

(ii) an object manipulated by another person,
except where the penetration is carried out for proper medical purposes;

(b) to manipulate any part of the body of another person so as to cause penetration of the vagina or anus of the offender by part of the other person's body;

(c) to introduce any part of the penis of a person into the mouth of another person;

(d) to engage in cunnilingus; or

(e) to continue sexual penetration as defined in paragraph (a), (b), (c) or (d)."

8 Section 324G defined "consent" to mean a "consent freely and voluntarily given". A maximum penalty of imprisonment for 14 years was prescribed for the offence of sexual penetration without consent. Section 324E created an offence of sexual penetration without consent in circumstances of aggravation for which the maximum penalty was imprisonment for 20 years.

9 Both the circumstances out of which the charge against the appellant arose and the circumstances of the alleged offence itself were unusual. The complainant, who was the mother of four children, had been living with a man near the house occupied by the appellant and his wife. Two of the complainant's children, who were both young, lived with her. The complainant was befriended by Mrs Ibbs and, when the man with whom the complainant had been living required her to leave their house, she and the two children went to live with the appellant and Mrs Ibbs.

10 The appellant was attracted to the complainant and Mrs Ibbs, at the appellant's request, asked her to have sexual intercourse with him. Prior to the night of 29 November 1986, the complainant twice had sexual intercourse with the appellant. On that night the appellant again approached the complainant to have sexual intercourse.

11 In their evidence, the complainant and the appellant agreed on the sequence of events during the evening, although their evidence differed in some respects. After the appellant first effected penetration, the complainant objected that it was not right and that Mrs Ibbs was her best friend. The appellant then withdrew and asked Mrs Ibbs to speak to the complainant, which she did. These events may have been repeated. Finally, after speaking with Mrs Ibbs, the complainant said: "Well, let's get it over with". The appellant again effected penetration. The complainant became upset during intercourse, saying, "It's not right". Nevertheless, the appellant continued to ejaculation. The complainant tried to push him away, but the appellant said that this had occurred "right at the last minute". The learned trial Judge gave the jury directions which were appropriate to their consideration of guilt either by reason of the final act of actual penetration or by reason of the continuing of the intercourse.

12 After the jury had been considering their verdict for nearly five hours they sought a redirection from the trial Judge on two questions:

"1. If consent was given or assumed and the act began, then consent was withdrawn, at what point can consent be withdrawn? When is the act of intercourse terminated?

2. We wish to hear the transcript of both parties relevant to the last act of intercourse and particularly the reference to pushing on the chest. This includes questions to both parties by both the defence counsel and prosecution."

13 Following a redirection by the learned trial Judge the jury ultimately returned a verdict of guilty.

14 In sentencing the appellant, the learned trial Judge said:

"From the questions asked by the jury I proceed upon the basis that you are not criminally liable for the last act of initial penetration ... Your criminal responsibility results from the continuation of penetration either after she had withdrawn her consent or after any mistake on your part had ceased to be honest and reasonable. On the evidence I find it difficult to identify the period of the continuation after the critical moment. It is however enough to say that it was an appreciable time, perhaps up to 30 seconds after she commenced to try to push you away from her. There can be no doubt whatever as to the genuineness of the complainant's distress after the event although I equally have no doubt that her distress resulted from a combination of factors, your conduct being the culmination of those factors."

15 Nearly 10 years later on 14 February 1997, the former Mrs Ibbs, who had become Ms Carter, and the complainant, who had become Ms Watson, both pleaded guilty in the District Court to an offence of conspiring to pervert the course of justice in that, between 1 November 1986 and 30 November 1986 they conspired together to pervert the course of justice upon the appellant by agreeing that the complainant would make a false complaint to the police that she had been sexually assaulted by the appellant in order to have him charged with the offence of sexual assault. The facts as stated to the court and found by the learned sentencing Judge who dealt with Ms Carter and the complainant were as follows:

"... in November of 1986 Mr Ibbs and his wife at the time, the offender Mrs Carter, resided in their marital home as [sic] 18 Myerick Way in Langford. In late 1986 after leaving her partner Mrs Watson and her two children moved into the Ibbs's home.

Mrs Watson and Mrs Carter became close friends and on a couple of occasions, prior to 29 November 1986, Mr Ibbs and Mrs Wardle, as she was then known - that's Mrs Watson - had sexual intercourse with the full knowledge of Mrs Carter. On 29 November 1986 Mrs Watson and Mr Ibbs again had sexual intercourse. Mrs Carter was in the house at the time and was aware of the sexual activities of both Mr Ibbs and Mrs Watson. On this occasion Mrs Watson alleged she was raped, claiming that she withdrew her consent during intercourse. On that evening Mrs Watson rang the police and made a complaint that Kevin Ibbs had sexual [sic] assaulted her without her consent.

Mr Ibbs was subsequently charged by the police on the complaint of Mrs Watson and evidence provided in a statement from Mrs Carter. Mr Ibbs was convicted of sexually assaulting Mrs Wardle as she was then known, now Mrs Watson, on 26 March 1987 in the Supreme Court before his Honour Kennedy J and a jury. Mrs Carter never appeared to give evidence for the crown during the trial. During November 1986 both Mrs Carter and Mrs Watson conspired together to set up Mr Ibbs by Mrs Watson agreeing to have sexual intercourse with Mr Ibbs and that after the act for the matter to be falsely reported to the police as rape.

The reason for the conspiracy to bring a false charge of sexual assault against Mr Ibbs was that Mrs Carter wanted her husband removed from the house because he continually assaulted her. Mrs Watson was interviewed by New South Wales Campbelltown detectives on 28 May 1996 during which she made admissions that there were discussions with Mrs Carter to set up Mr Ibbs on or about 29 November 1986. Mrs Carter was interviewed by detectives from the sexual offences squad in Queensland on 20 August 1996 and denied any part of the alleged offence. Mrs Carter devised the plan and Watson agreed to be part of the plan.

Mrs Watson was arrested at Ambervale in New South Wales on 30 October 1996 and she was released on bail. Mrs Carter was arrested in Queensland and brought before a Court of Petty Sessions in Queensland. On instructions from the DPP an application was made to have her extradited from Queensland to Western Australia on bail. The magistrate, however, remanded Mrs Carter and extradited her in custody and accordingly she spent a few days from the date of her court appearance, 31 October 1996, until 2 November 1997 when she was bailed without objection from the DPP from the East Perth Court of Petty Sessions. So she spent a couple of days in custody as a result of that.

Your Honour, Mr Ibbs has made a victim impact statement in the matter and I understand that has been directed provided to the court and copies have gone to the crown and my two learned friends. If I can make it clear at the outset, in relation to this matter the crown's asking you to sentence on the basis as alleged in the indictment, that is that Mrs Carter and Mrs Watson agreed together to pervert the course of justice by agreeing that Mrs Watson would make the false complaint to the police that she had been sexually assaulted by Ibbs in order to have him charged with the offence of sexual assault and that indictment reflects the facts to which both have pleaded guilty."

16 At the time the former Mrs Ibbs and the complainant were dealt with for the conspiracy to pervert the course of justice, the Director of Public Prosecutions had referred the matter to the Attorney General through the Solicitor General to enable consideration to be given to what executive intervention, if any, was required in relation to the appellant's case and whether the Attorney General wished to exercise the power contained in s 140 of the Sentencing Act to refer the case to this Court.

17 It has now been conceded by the Director of Public Prosecutions on behalf of the Crown that, in the circumstances, the appellant has lost the opportunity of an acquittal which might fairly have been open to him if he had known of the fresh evidence referred to in the ground of appeal and that, in such circumstances, the conviction should be set aside. It follows that the appeal should be allowed and the conviction quashed.

18 That leaves only the question whether the Court should exercise its discretion to direct a judgment and verdict of acquittal or set aside the conviction and order a retrial. The relevant discretion is conferred on this Court by s 689(2) of the Criminal Code as follows:

"Subject to the appeal provisions of this chapter the Court of Criminal Appeal shall, if they allow an appeal against conviction, quash the conviction and either direct a judgment and verdict of acquittal to be entered or order a new trial."

19 In written submissions to the Court it was submitted by the Director of Public Prosecutions that this Court should be reluctant to enter a verdict of acquittal where in truth the matters for determination relevant to the question of a new trial rest more with the Director of Public Prosecutions than with the Court. In support of this submission reliance was placed on Crofts v The Queen [1996] HCA 22; (1996) 186 CLR 427 per Toohey, Gaudron, Gummow and Kirby JJ at 482; Graham v The Queen [1998] HCA 61; (1998) 195 CLR 606 per Callinan J, with whom Gleeson CJ, Gaudron, Gummow and Hayne JJ agreed at [47]; and Bull v The Queen [2000] HCA 24; (2000) 79 ALAJR 837.

20 Crofts v The Queen was an appeal from a decision of the Court of Criminal Appeal in Victoria which dealt with a question relating to when it was appropriate for a trial Judge to give a warning to a jury in a context of a delay by the complainant in making a complaint in a sexual assault case. Their Honours said at 452:

"On 14 August 1996, the Court pronounced the orders stated at the outset of these reasons. The appellant has already served a significant part of the custodial sentence imposed upon him. It is appropriate to repeat McHugh J's closing comment in Longman: [(1989) [1989] HCA 60; 168 CLR 79 at 109]
'In all the circumstances of the case, it is arguable that the interests of the public, the complainant, and the applicant are best served if the expense and psychological trauma of a new trial are avoided but that is a matter for the Crown to decide.' "

21 Graham v The Queen was a decision on appeal from the Court of Criminal Appeal of New South Wales. The appeal concerned the admissibility of the evidence of a complaint made some six years after the last of the acts against the accused. It was held that the admissibility of the evidence under the Evidence Act 1995 (NSW) was not inevitable and the appellant may have lost a significant chance of an acquittal. Callinan J said at par [46] and par [47]:

"There were accordingly a number of errors in the conduct of the trial. So too, the construction of s 66 of the Evidence Act by the Court of Criminal Appeal does not accord with the construction intended for it and which should be adopted by jurisdictions in Australia in which this Act is in force. Because of the failure therefore to apply and construe correctly the provisions of s 66 of the Evidence Act, the appellant may well have lost a significant chance of an acquittal at trial which should have led to the upholding of his appeal to the Court of Criminal Appeal (M v The Queen [1994] HCA 63; (1994) 181 CLR 487; BRS v The Queen [1997] HCA 47; (1997) 191 CLR 275). It is unnecessary to decide therefore whether the other errors to which reference has been made, either singly or cumulatively, would otherwise justify the allowing of this appeal.

I would uphold the appeal, quash the verdicts of guilty and order a new trial. Whether such a trial should take place in view of the term of imprisonment served by the appellant will be a matter for the Director of Public Prosecutions."

22 Bull v The Queen, supra, concerned the admissibility of evidence on cross-examination of the complainant in a sexual assault case about a conversation which, it was contended, tended to prove that the complainant had come to the house where the incident took place for the express purpose of having sexual intercourse. It was held that the evidence was admissible. McHugh, Gummow and Hayne JJ at [131] agreed that the appeals in this case should be allowed, the conviction quashed and a new trial ordered. Their Honours went on to say:

"However, nothing in the materials before this Court makes it an appropriate case to enter an acquittal in favour of the appellants. The ground of appeal which the appellants have made out entitles them to a new trial, not an acquittal. Whether or not they should be re-tried is a matter for the Executive government of Western Australia, which may well take the view that the acquittal of the appellants on so many charges makes it practically, although not legally, impossible to try the appellants fairly."

23 Gleeson CJ at [28] and Kirby J at [151] agreed with the orders proposed. That case can be explained on the basis that there were public interest and tactical considerations which were relevant to the question whether a new trial should take place which the Executive was best placed to consider.

24 These decisions have been applied in this Court where there are public interest issues which the Director of Public Prosecutions is best placed to decide whether or not to proceed with a new trial. For such cases it may be appropriate to order a new trial, leaving it to the Director to decide whether to proceed: cf Middleton v The Queen [2000] WASCA 200; and Miles v The Queen [2000] WASCA 364.

25 In my opinion, it does not follow from these decisions that, in a proper case, this Court should not proceed to order that a verdict and judgment of acquittal should be entered. While this Court will naturally be guided by decisions of the High Court on the proper construction and application of provisions of the Criminal Code, this is not an appropriate occasion upon which to express any definitive opinion in relation to the question whether, and in what circumstances, this Court, having decided to quash a conviction, should exercise its discretion in relation to directing the entry of a verdict and judgment of acquittal or ordering a retrial. For example, in McGrath v The Queen (1916) 18 WALR 124 this Court held that, in a case where the conviction had been obtained on the basis of perjured evidence by a witness for the prosecution, a new trial would not be justified. This is a case of that kind. In the result, the Director of Public Prosecutions conceded that this was not a case in which it would be appropriate for there to be a new trial. In my opinion, that concession was rightly made. It was for this reason that the Court in this case not only ordered that the conviction be quashed but directed that a verdict and judgment of acquittal be entered.

26 I do not consider that the recent decisions of the High Court to the effect that, in these cases it was appropriate to leave to the Executive questions whether it is in the public interest for there to be a retrial, necessarily affect the jurisdiction of this Court as set out in the Criminal Code. As Griffiths CJ said in Peacock v The King [1911] HCA 66; (1911) 13 CLR 619 at 641:

"I do not think it was intended that a new trial should be granted as of course in every case where there has been an irregularity. I think the proper rule is that where there was evidence to go to the jury and the error was of such a nature that, if it had not been committed, the verdict would probably have been the same, a new trial may be granted. On the other hand, if, on the whole case, it is reasonably probable that, but for the error complained of, the verdict would or might have been different, a new trial should not be granted."

27 Those principles were applied in the decision of this Court in Rabey v R [1980] WAR 84 at 96 - 97 per Wickham J with whom Burt CJ at 86 and Lavan SBJ at 88 agreed with the result that a judgment and verdict of acquittal was entered pursuant to s 689(2) of the Criminal Code. Rabey was applied in Kaighin v The Queen (1990) 1 WAR 390 at 398 - 401 per Malcolm CJ, Walsh and Ipp JJ; Lau v The Queen (1991) 6 WAR 30 at 39 per Seaman J; Murray J at 49 - 50; and Owen J at 66 - 67; Carden v The Queen (1992) 8 WAR 296 at 327 - 328 per Ipp J (with whom Rowland and Seaman JJ agreed); and Boxer v The Queen (1995) 14 WAR 505 at 540 - 541 per Malcolm CJ (with whom Franklyn and Owen JJ agreed). In the latter case, in particular, it was concluded in the judgment in which all of the members of the Court were agreed that a new trial in that case would give the prosecution an opportunity to supplement what was a defective case as originally presented. The circumstances relating to the individual accused, the fact that they had already spent a significant period in prison and had to mount the appeal, combined with the likelihood that, on the evidence presented at the original trial the prosecution case should have failed to establish the offence charged, suggested that a new trial should not be ordered. It was for those reasons held not to be a case in which the inconvenience and expense of a new trial would be justified.

28 The various statutes in Australia relating to the disposition of successful appeals against conviction differ. For example, under s 8(1) of the Criminal Appeal Act 1912 (NSW) a new trial should only be ordered where it will more adequately remedy the miscarriage of justice than any other order the Court is empowered to make. In King v The Queen [1986] HCA 59; (1986) 161 CLR 423, Dawson J (with whom Wilson and Brennan JJ agreed) said at 433:

"The section itself lays down the condition for its own application. The miscarriage of justice to which it refers must be such that it can be more adequately remedied by an order for a new trial than by any other order which the court is empowered to make. But the section nevertheless confers a broad discretion. Matters relevant to the exercise of that discretion have been discussed in the cases: Peacock v The King ((1911) [1911] HCA 66; 13 CLR 619 at 641, 675); Andrews v The Queen ((1968) [1968] HCA 84; 126 CLR 198 at 211); Gerakiteys v The Queen ((1984) [1984] HCA 8; 153 CLR 317 at 321); Director of Public Prosecutions (Nauru) v Fowler ((1984) [1984] HCA 48; 154 CLR 627 at 630 - 631); Reid v The Queen ([1980] AC 343 at 348 - 349). However, in this case the sole reason why it was said that a new trial was inappropriate was that, upon the Crown case as it was presented, the verdict brought in against King was unsafe, being inconsistent with the acquittal of Matthews, and that to order a new trial would be to allow the Crown to remedy the deficiency by presenting a new case against King - that of being an accessory before the fact to the murder of the deceased by some person other than Matthews.

It is well established that the discretion to order a new trial should not be exercised when the evidence in the court below was not sufficiently cogent to justify a conviction or to allow the Crown to supplement a case which has proved to be defective. In particular, the Crown should not be given an opportunity to make a new case which was not made at the first trial, R v Wilkes ((1948) [1948] HCA 22; 77 CLR 511 at 518)."

29 In Ilich v The Queen [1987] HCA 1; (1987) 162 CLR 110 on an appeal to the High Court from a decision of this Court, it was held, reversing the decision of this Court, that a conviction for stealing under s 311 of the Criminal Code (WA) should be quashed. Gibbs CJ held that there were serious misdirections given to the jury so that the conviction should not be allowed to stand. However, since there was evidence on which the applicant could have been convicted, the Chief Justice said:

"... I consider that a new trial should be ordered although it will be a matter for those concerned to consider whether a new trial is warranted having regard to all the circumstances."

30 Wilson and Dawson JJ at 129 - 130 considered that the circumstances that an overpayment had been made by mistake of which the applicant was unaware, so that there was neither a fraudulent taking within the meaning of s 371 of the Code, nor a subsequent conversion when the applicant realised that a mistake had been made. The applicant obtained title to the money subject to an obligation to repay the overpayment. The applicant was entitled to rely on s 24 of the Code. The directions given to the jury were clearly defective, so that the conviction should be quashed. Their Honours went on to say at 130:

"It remains to consider whether the applicant should be exposed to a new trial. His story is not inherently improbable and, had the jury been adequately directed, it is likely that he would have been acquitted. It is not an invariable rule that a new trial should be ordered where there is evidence upon which a jury could have convicted on an adequate direction: see Clemesha v The Queen ([1978] WAR 193, at p201), per Wickham J. Justice having once miscarried in this case, we think that it would be better served in the end if there were no order for a retrial. We would grant special leave, allow the appeal, quash the conviction and direct a verdict and judgment of acquittal be entered."

31 Brennan J reached the same conclusion regarding the misdirection so that the appeal should be allowed. His Honour then said at 142:

"We were invited not to order a retrial. The jury's request for redirection suggests that they were satisfied that an overpayment had been made, but they convicted because they were directed that the existence of a guilty intention required a verdict of guilty of stealing. If the proper direction had been given to the jury, it is reasonable to surmise that a verdict of acquittal would have been returned. I would therefore grant special leave, allow the appeal, quash the conviction and sentence and, declining to order a retrial, order that a verdict and judgment of acquittal be entered."

32 Deane J at 143 generally agreed with Wilson and Dawson JJ. On the question of a new trial his Honour concluded that a request by the jury for a further direction to "reclarify the point of law regarding the definition of stealing as it pertains to the payment of money" indicated that some or all of the jury had a reasonable doubt about the applicant's account. Deane J went on to say at 143:

"The persistence of such a reasonable doubt would, if the jury had been properly directed, have resulted in the applicant's acquittal. In these circumstances and in a situation where the trial judge's view was that the appropriate sentence upon conviction was a fine, it appears to me that considerations of justice strongly militate against an order that the applicant be subjected to a further trial."

33 At 144 his Honour agreed that the conviction should be quashed and a verdict of acquittal entered.

34 The present case is also one in which, in my opinion, had the jury been aware of the fresh evidence which has been put before this Court, it was almost inevitable that, at the least, the jury would have entertained a reasonable doubt of his guilt so that the appellant would have been acquitted. That is sufficient ground for this Court to order that a judgment and verdict of acquittal should be entered, so that there would be no new trial.

35 In these circumstances, it is not necessary to consider the comments of McMurdo P in Main [1999] QCA 148; (1999) 105 A Crim R 412 at 415 - 416 regarding the distinction between "likelihood" and "significant possibility" of a different verdict if the fresh evidence had been given at the trial. I am bound to say, however, that I prefer the approach adopted by Pincus JA at 417 - 418 and White J at 418 - 420.

36 WALLWORK J: I agree with the reasons for judgment of Malcolm CJ which encompass my reasons for agreeing to the orders which were made by this Court on 22 March 2001.

37 There is nothing I wish to add.

38 WHEELER J: I have read in draft the reasons of his Honour the Chief Justice. I agree with those reasons, save that I would refrain from expressing a view on the issues raised by the judgments in Main [1999] QCA 148; (1999) 105 A Crim R 412.


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