Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: ALS v R [2013] NSWCCA 63 Hearing dates: 13 February 2013 Decision date: 25 March 2013 Before: Hoeben JA at [1] Adams J at [2] Beech-Jones J at [3] Decision: Appeal allowed. New trial ordered. Catchwords: Conviction appeal - Appellant convicted of carnal knowledge of victim under ten years of age - former s 67 of the Crimes Act 1900 - Judge sitting alone - whether unfairness arising from findings of trial judge in another trial of same accused - fresh evidence - unreasonable verdict - appropriate order - new trial or acquittal. Legislation Cited: - Crimes Act 1900 - s 67 - Criminal Appeal Act 1912 - s 5(1)(a), s 6(1), s 6(2), s 8(1) - Criminal Procedure Act 1986 - s 132 Cases Cited: - Director of Public Prosecutions (Nauru) v Fowler [1984] HCA 48; 154 CLR 627 - Gallagher v R [1986] HCA 26; 160 CLR 392 - Gilham v R [2012] NSWCCA 131 - Jiminez v R [1992] HCA 14; 173 CLR 572 - Keir v R [2007] NSWCCA 149 - M v R [1994] HCA 63; 181 CLR 487 - Mickelberg v R [1989] HCA 35; 167 CLR 259 - Morris v R [1987] HCA 50; 163 CLR 454 - MRW v R [2011] NSWCCA 260 - Ratten v R [1974] HCA 35; 131 CLR 510 - R v Ion (1996) 89 A Crim R 81 - R v Saleam (1989) 16 NSWLR 14 - R v Thomas (No 3) [2006] VSCA 300; 181 A Crim R 323 - SKA v R [2011] HCA 13; 243 CLR 400 - Spies v R [2000] HCA 43; 201 CLR 603 - Steadman v R (No 1) [2013] NSWCCA 55 Category: Principal judgment Parties: ALS (Applicant) Crown (Respondent) Representation: Counsel: P.D. Rosser QC, M. Preece (Applicant) Ms J.R. Dwyer (Crown) Solicitors: John Anthony Solicitors (Applicant) Director of Public Prosecutions (Crown) File Number(s): 2011/082752 Publication restriction: Nil, but note that there are non-publication orders in respect of the identity of the complainant and the appellant. Decision under appeal Date of Decision: 2011-11-17 00:00:00 Before: Acting Judge Graham File Number(s): 2011/082752 Judgment 1HOEBEN JA: I agree with Beech-Jones J. 2ADAMS J: I agree with Beech-Jones J. 3BEECH-JONES J: On 16 November 2011 the appellant, ALS, was arraigned in the District Court. The indictment charged that between 22 April 1974 and 21 April 1975 at Merewether in the State of New South Wales he did carnally know TW, a girl under the age of ten years, contrary to the then s 67 of the Crimes Act 1900. He pleaded not guilty. 4In accordance with s 132 of the Criminal Procedure Act 1986, the trial proceeded before a judge sitting without a jury. On 17 November 2011 the appellant was convicted. 5On 22 February 2012 the appellant was sentenced to an overall term of imprisonment of four years and six months, comprising a non-parole period of two years commencing on 22 February 2012 and expiring on 21 February 2014, with a balance of term of two years and six months commencing on 22 February 2014 and expiring on 21 August 2016. 6He now appeals, and to the extent necessary seeks leave to appeal against his conviction. He relies on three grounds, expressed as follows: "1. In the particular circumstances of the trial, the findings of the trial judge adverse to the credit of the [appellant] occasioned an unfair trial. 2. A miscarriage of justice has been occasioned in that there is now available to the [appellant] fresh evidence which, in combination with the evidence given at the trial, gives rise to a significant possibility that the [appellant] would have been acquitted had it been available at the trial. 3. In all the circumstances His Honour's verdict is unreasonable and cannot be supported, having regard to the evidence, and has been productive of a miscarriage of justice." 7As formulated, none of these grounds of appeal involve a "question of law alone" (cf s 5(1)(a) of the Criminal Appeal Act 1912). Accordingly, it is necessary for the applicant to seek leave to appeal. I propose that leave be granted in relation to all three grounds. 8In light of these grounds of appeal, especially the third ground, it is necessary to describe the Crown case and the evidence said to support it in some detail. However at the outset it should be noted that immediately prior to the trial at which at the appellant was convicted (the "second trial") he stood trial before the same judge on a similar charge (the "first trial"). The complainant in the first trial, "K", was the sister of the complainant in the second trial, TW. Both were stepdaughters of the appellant. At the conclusion of the first trial the trial judge delivered his judgment (the "first judgment"). His Honour acquitted the appellant. He commenced the second trial involving TW the next day. Neither the Crown nor the appellant made any objection to his Honour doing so. 9The Crown's submissions indicated that there is in existence a non-publication order in respect of the identity of the appellant and the complainant. Presumably such an order was made concerning the appellant to avoid the identification of the complainant. Chronology of events 10Except where it is expressly stated, the following events were not disputed at the second trial. 11TW was born in April 1965. The appellant formed a relationship with TW's mother sometime in the late 1960s. Initially he lived with TW's mother, TW and her two sisters, K and J, at their grandparents' house in Cardiff. When TW was four she, her mother, her sisters and the appellant moved to a house in Adamstown Heights. In 1972 the appellant and TW's mother had a daughter, A, being TW's half-sister. 12When TW was six they moved to a house in Merewether. It was at this house that the events the subject of the charge were said by TW to have occurred, although TW gave evidence of other uncharged acts by the appellant which were said to have placed the offence in context (see Steadman v R (No 1) [2013] NSWCCA 55 at [7] to [11] per Macfarlan JA). They were all denied by the appellant. 13In the late 1970s the family moved to Lambton Heights. Sometime around 1982 when TW was aged seventeen she left home. Around the age of nineteen she left the Newcastle area. It appears to have been common ground that she had little contact with the appellant or her mother until the mid-1990s although certain letters and postcards were sent by her which I refer to below. TW's half-sister, A, married in February 1995. TW attended the wedding. 14In June 1995 TW's maternal grandmother passed away. This touched off a dispute which the appellant claimed, and TW denied, was of significance to her in making the allegations against him (the "will dispute"). The will dispute had its origins in 1962 when TW's mother transferred her entitlement under the estate of her late father to her mother, which included a home. In 1967 TW's grandmother made a will leaving all of her estate in equal portions to her grandchildren once they had reached 21 years of age. However their interests were subject to a life tenancy over her home granted to her de facto partner. When she died in 1995 the terms of the will became known and the life tenancy commenced. TW and her sisters were due to receive the remainder of the estate upon the tenant's death. Apparently from that time TW's mother began pressing her children to return some of the remainder of the estate to her. On 22 June 2009 the life tenant died and the contingent interests of the grandchildren crystallised. On 27 May 2010 Letters of Administration were granted. On 21 November 2010 TW's mother commenced proceedings. On 21 March 2011 those proceedings were settled in accordance with a deed. Under the deed TW's mother received $75,000.00 and each of her four daughters received $29,230.07. 15On 26 September 2008 TW provided a statement to the police. On 4 June 2010 TW telephoned the appellant. Pursuant to a warrant granted by this Court the conversation was recorded. In the conversation TW confronted him with accusations which he denied. 16On 17 June 2010 the appellant was arrested. He was taken to the police station and participated in an Electronically Recorded Interview with a Suspected Person ("ERISP"). The allegations concerning TW (as well as her sisters) were put to him and denied. The Evidence at the Second Trial 17At the second trial the Crown called two witnesses: TW and one of the investigating Detectives, Senior Constable Evans. Senior Constable Evans confirmed the dates noted in [15] and [16]. He also stated that an approach was made to the principal of Lambton High School to ascertain if the school had any records concerning TW (see [30]), but was advised that records were destroyed after eight years. He also made an inquiry in relation to a particular school counsellor, but no records were available concerning her either (see [31]). 18The Crown tendered a recording of the ERISP, a transcript of the ERISP that edited out references to the accusations of K and J, as well as a recording and transcript of the telephone call between TW and the appellant on 4 June 2010. There were also agreed facts concerning the will dispute. TW's evidence in chief - background and context evidence 19TW gave evidence of her personal background consistent with [11] to [12] above. She recalled that when she lived with her grandmother before she was four years old the appellant hit her with a belt or his hand on her bottom outside her clothes. 20TW recounted an incident after they moved to the house in Adamstown Heights in which the appellant made her and her sister sit on the double bed in her mother's bedroom. Both girls were naked and the appellant made them touch each other's genitals and kiss each other while he masturbated by rubbing his penis up and down. TW could not remember how she came to be naked in the room. The incident lasted for about five minutes, during which she did not say anything. No one was at home at the time and TW did not say anything afterwards because she was scared of the appellant as he had hit her previously. 21TW stated that the appellant used to come into the room which she shared with her sister at night. She said that about two to three times a week he would wake her up, place his hands underneath the covers and touch her on the genitals both outside of and inside her underpants. Sometimes he would put his finger inside her. He told her to be quiet and she remained so because she was too scared to say anything. She prepared a sketch of the layout of the house at Adamstown Heights which was tendered, depicting her and her sister's bedroom. 22TW stated that sometimes the appellant hit her with a belt, leaving big swollen lumps across her bottom and lower back. She was sent to her grandmother's place to recover. She said that the appellant also hit her very hard across her ear and head and she suffered partial hearing loss in her left ear as a result. 23TW stated that after they moved to the house in Merewether, the appellant continued to come into the room that she shared with her two sisters at night and touch her genitals. He told her to be quiet and she listened because she was terrified. She said that the appellant also frequently hit her with his hand and belt, which was doubled over a couple of times. He made her pull her underwear down and bend over one of the beds before hitting her with the belt. 24Often when the appellant came home from work he was drunk and bashed TW's mother, who as a result suffered bruises around her neck, face and wrists. TW said she was scared that the appellant would kill her mother. From the age of seven years she would sometimes punch him to help her mother. On one occasion the appellant responded by picking TW up and throwing her against a wall. On another occasion the appellant was bashing her mother and she ran next door and asked the neighbours to call the police. The police attended the house and the appellant stood at the front door with his arm up so that the police could not enter, and he told them that everything was all right. He would not let TW's mother speak and the children were told to go to their bedrooms. TW's evidence in chief - the offence 25TW stated that when she was nine years old the appellant's father came to live with them at the house in Merewether. Sometime in the warmer months but before the Christmas holidays TW, her sisters and mother planned a shopping trip. Before they left, the appellant said "[TW] can stay home with me and help in the garden and do some, like, work". TW said she was very upset that the appellant had told her she was not allowed to go on the shopping trip. She cried and then went out the back to play. The appellant's father was still at home and watching the television with the sound blaring. 26The appellant told TW to come inside. He led her into her parents' bedroom and made her lay on the bed. He removed her underwear and shorts but left her top on. He removed his own shorts and underwear. He started to touch her and his penis was erect. He said to her "[w]hen I put this in you, I'm going to split you in half". When he said this, TW heard the television blaring and told him "I think I hear granddad". The appellant did not respond. He put his penis inside her vagina and moved it in and out. He had her legs spread and he was on his knees in front of her. TW said that she clenched her fists, held her arms up to her chest, turned away and closed her eyes. After a few minutes, the appellant removed his penis and told her that she could go. 27TW said she put on her underwear and shorts and went to the outside toilet, where she sat and cried until her mother and sister returned home. She waited until her mother went to the outside toilet, knocked at the door and asked if she could go in to speak to her. TW went inside the toilet and told her mother that the appellant "had stuck his thing in me" and said to her that "he was going to split me in two". 28TW could not recall what her mother said. She said her mother went inside the house and confronted the appellant. There was an argument and the appellant said that TW had made it all up. TW protested. The appellant took TW into her room, pulled down her pants and shorts, made her bend over and struck her six or seven times with his belt. TW suffered welts to her body as result. Later that day TW's grandmother took her away. She said that she did not tell her grandmother what the appellant had done because she was too scared. 29When TW returned the next day, she was surprised to learn that her mother had asked the appellant to leave. He left, but moved back into the house after about two weeks. TW's mother and the appellant did not discuss what had happened after this time. TW said that the appellant did not touch her in a sexual way again. However she thought that the appellant was treating her worse than before the incident. She said she was grounded all the time, had to do extra work and was not allowed to go out when her sisters were. TW's evidence in chief - complaint and post-offence relations 30When TW was thirteen years old the family moved to Lambton Heights and she attended Lambton High School. Once, when she was fourteen years old, she became ill at school. An ambulance officer was called and she was sent home after being treated. Her mother took her to the hospital but when the doctors asked if something was troubling her, she felt that she could not reply because her mother and the appellant were in the room. 31In her evidence TW said that she had realised at school after a personal development class that what the appellant had done to her constituted sexual intercourse. TW told her school counsellor that the appellant had molested her from a young age and had sex with her when she was nine. She recalled that the counsellor left the room and when she returned said that she had spoken to her parents. The counsellor told her that her parents said that she had made it all up and that she would be in trouble when she got home. When TW arrived at home the appellant yelled at her and gave her a "belting". She said that as a result she was too scared to tell anyone else about what happened and did not think anyone could help her. 32TW left school after Year 10 but continued to live at home until she was seventeen years old. After moving out she did not have much contact with her mother as the appellant had told her not to see her mother or contact the florist shop they operated together. Nevertheless they maintained some contact, but when TW was nineteen she had an argument with her mother and decided not to have further contact with her. 33She moved away from Newcastle. She agreed that she did not "have much contact with [her] family" after she moved away. The next contact she recounted was being advised in 1995 that her grandmother had died and attending the funeral in Newcastle. 34TW said that sometime in 1995 or the year after she received a phone call from her mother and the appellant threatening that her mother would contest her grandmother's will if she did not sign over her 25% stake in her grandmother's house. TW said the phone call became heated and she said "[how] dare youse ring me up after all these years and threaten me?" She asked the appellant "[w]ho are you molesting now?", and said "people like you just don't stop doing this". She said that TW's mother and the appellant hung up the phone on the complainant. The complainant rang them back and asked the appellant again "[w]ho are you molesting now?" They hung up on her again. TW said that was the last contact she had with them. 35As I have said, TW made a statement to police on 26 September 2008. She said that prior to making that statement she kept notes on her experiences for around three months after speaking to a sexual assault counsellor. She said that she was motivated to do so by her depression and the effect of what had happened to her when she was a child. In addition, she said that she had just discovered the bodies of the family members of a friend, and had become a witness in that matter. TW's cross-examination 36Consistent with the defence case, it was put to TW that all of the events of abuse and violence that she said she suffered did not happen. She also confirmed that, after the argument with her mother when she was nineteen (see [32]), she resolved not to see her mother again. 37In cross-examination TW was shown a bundle of documents which were tendered. One of those documents was a photograph taken at A's wedding in 1995. As I explain below, she identified herself as the woman with her hand on the appellant's torso in what appears to be a friendly gesture towards him. 38TW was shown a postcard written by her to her mother and the appellant from North Queensland. She said that she thought the card had been written when she was 20 or 21 years old. She agreed that she wrote "Dear Mum and Dad" and signed off "All my love, [TW]". She said that she had never stopped loving her mother despite what happened. 39TW was shown another postcard from the Gold Coast and two postcards stapled together from Cape Tribulation which TW said had been sent in a three to four month period when she was travelling with someone her mother and the appellant did not like. She agreed that the postcard started with "Dear Dad and Mum" and was signed off "Love [TW]" "PS please write". 40She was also shown a three page letter written by her which included a reference to "Dad" (ie the appellant). She agreed that in it she wrote "I wish I could come home to say hello at Christmas", "I miss you all very much now and am always thinking of you", and on the last page "[w]ell I love you all very much" and "PS Mum don't work to [sic] hard". The complainant disagreed that the content of these items was inconsistent with what she had alleged in the proceedings. 41In cross-examination the complainant denied that her entire motivation was her anger at the prospect of being deprived of her share in her grandmother's estate. She denied that she timed her statement so that it would coincide almost exactly with the death of her grandmother's surviving de facto partner on 22 June 2009 and the end of his life tenancy of the estate. She said that she knew he suffered from lung cancer but not that it was "that bad". She also denied that she had in effect carried out her threat to cause trouble if her mother challenged the will. It was put to her that during the conversation referred to in [34] she said "[y]ou deprive me of my money and I'll cause you trouble". She said "I don't remember that". TW's re-examination 42In re-examination TW stated that she wrote the postcards and the letter in an effort to "keep the peace with mum and, like, because [I] tried to let her know just where I was to make, like, say I was all right too". She also said that she had not seen any family members prior to attending her half-sister's wedding and that at the wedding she spoke to her sisters but not the appellant. The Appellant's ERISP 43I note five matters about the appellant's ERISP. First the appellant denied each and every allegation that he was either violent or sexually abusive towards TW. 44Second, while the appellant stated that he used to drink "no more than anyone else", he did admit to assaulting his wife in the past but said that he had not done so for forty years. 45Third, the appellant said that when the family lived at the houses in Adamstown Heights and Merewether he would not go into the girls' room unless he needed to get them for something. However, he said he did go into their room to kiss them goodnight on the cheek, and sometimes he would go in there after he had been to the hotel to say "goodnight". 46Fourth, in relation to the alleged offence against TW, the appellant said that only rarely would his wife leave the girls at home. He said that it was possible that he had been alone in the house with TW, but he denied any sexual misconduct or any of the events following the assault that she alleged occurred. 47Fifth, the appellant stated that TW's account of events was fabricated and motivated by the will dispute. Other matters 48At the commencement of the second trial the trial advocate appearing for the Crown announced that, having regard to certain credit findings made by his Honour in the first judgment, he would not call the appellant's wife (TW's mother). No issue was taken with this by the appellant, either before his Honour or this Court. At no stage has the appellant suggested that the Crown should call any other witness. His Honour's judgment 49I will only briefly summarise his Honour's judgment following the second trial (the "second judgment"), as its relevant parts are addressed in relation to each ground of appeal. No complaint is made concerning the formulation of his Honour's directions. His Honour correctly recognised that the Crown's case "rest[ed] almost entirely on the evidence of [TW]" which carried with it an obligation to "carefully scrutinise" her evidence. His Honour also recognised that no onus was cast upon the appellant to disprove the allegations, and that it was necessary to consider and evaluate his denials in the ERISP even though they were not given under oath. 50His Honour carefully evaluated TW's evidence over some 22 pages of the judgment, addressing the various points made on behalf of the appellant. His Honour then addressed and expressed reservations about the appellant's denials in his ERISP before concluding that he accepted TW's account. I have extracted the critical conclusion of his Honour at [52] below in addressing ground 1 of the appeal. Ground 1 - adverse finding to the credit of the applicant occasioning unfair trial 51Ground 1 of the appeal contends that his Honour's rejection in the second judgment of the appellant's denials in his ERISP was unfair because his Honour had made an assessment of the answers he gave in his ERISP in the first trial which was not adverse to the appellant, and there was said to be no justification for the differing assessments. 52As I have stated, at the second trial the appellant did not give evidence but his ERISP was tendered, with the references to allegations by K (and J) deleted. In the second judgment his Honour addressed the appellant's denials in his ERISP in the following passage: "As to the interview with the accused, it should be noted that, as in the telephone conversation, he denied all allegations of impropriety, generally and in detail in relation to the specifics that were put to him. Overall, his responses were made freely, volubly and in disregard of the knowledge that, if he needed to, he could contact the solicitor whose name he already had. He does, however, leave an impression that his responses were less than convincing and directed to establishing that he was a person who had a chequered past in some respects but was not a person who would have committed offences of this type. That is not altogether surprising, given that he was already aware of some allegations, given the telephone conversation on 4 June, but the denials, whilst obviously emphatic and perhaps indignant, do not entirely convince as necessarily having the ring of truth about them. On the other hand, despite all of the matters which are properly put in issue about the account given by [TW], I found her to be a compelling, forthright and candid witness. I observed her carefully, albeit that her evidence was given by closed-circuit television. She was not histrionic in her evidence, but carefully tried to answer the questions that were asked of her and to give a relatively unvarnished account of the events. ... Her evidence had the ring of truth about it and, notwithstanding the submissions that had been put and the denials made by the accused, in the end, conscious of the care which must be taken with a witness who is the sole witness in a prosecution case, in the end I am satisfied that she can be believed beyond reasonable doubt on that central allegation." 53In his written submissions, the appellant conceded that, subject to considering ground 3, there was "nothing objectionable" about his Honour's assessment of the answers given by the appellant in the ERISP, and that they were "matters entirely within his province as the trier of fact". 54In the first trial, a modified version of the appellant's ERISP was also tendered to his Honour. The modifications were the reverse of those made in the second trial, namely the inclusion of complaints specifically relating to K and the exclusion of questions and answers specifically relating to TW and her sister, J. Of course other aspects of the evidence in the first trial were different. As I have stated, the Crown called the appellant's wife (the mother of TW and K) in the first trial but not in the second trial. 55Most significantly, a different complainant gave evidence in the first trial, namely K. It was his Honour's doubts about her honesty and reliability that led to the appellant's acquittal at the first trial. Thus, in the first judgment his Honour noted: "The court is left, in other words, with a number of features of the case which, cumulatively, would raise a doubt as to the reliability of the account given by [K]." 56In the first judgment his Honour dealt with the denials of K's allegations by the appellant in his ERISP as follows: "The only measure of corroboration in the case, strangely enough, comes from the accused himself. He took part in an extensive electronically recorded interview with the police after he was arrested at his workplace on 17 June 2010. He had a solicitor, presumably in relation to the will or probate matter, which was pending at around this time, but declined his services and was prepared to participate in an interview. That interview, of course, was not on oath and not subject to cross-examination. But it is, I think, fair to say that he answered every question and that his response to the principal allegations against him was by way of spontaneous and indignant denials, as his Counsel put it. He was forthright, perhaps too voluble on some occasions, and his account of events needs to be, of course, considered with some caution in the circumstances. Nonetheless, he did deny those principal allegations, and very promptly raised the will dispute as motivating the complaints against him." (emphasis added) 57The appellant complains that in the second judgment his Honour characterised his responses as "less than convincing" having regard to those parts of the interview in which he had apparently sought to establish that he was a person who had a "chequered past in some respects but was not a person who would have committed offences of this type". He contends that an unfairness was occasioned in that those parts of the ERISP which were said to be relevant to this characterisation were also to be found in the ERISP tendered at the first trial. 58The essence of the appellant's complaint is that his Honour's approach to the ERISP in the two judgments was inconsistent, and that this inconsistency gave rise to unfairness. While it may be accepted that those parts of the ERISP which his Honour referred to in the second judgment were also included in the version of the ERISP tendered at the first trial, in my view both the complaint of inconsistency and of unfairness have no substance. 59There was no inconsistency in the manner in which his Honour dealt with the ERISP in the first and second judgments. In the first judgment, his Honour acquitted the appellant because he was not satisfied beyond reasonable doubt of the honesty and reliability of K's evidence. Although his Honour noted the appellant's denials in the appellant's ERISP, it was his Honour's assessment of K's evidence that led him to conclude there was a reasonable doubt. His Honour expressly noted that the appellant's denials in the ERISP needed to be "considered with some caution in the circumstances". However, in light of his assessment of K's evidence, it was not necessary for his Honour to consider the ERISP any further. 60In contrast, in the second judgment his Honour was impressed by TW's evidence. His Honour considered it both honest and reliable. This assessment of her evidence necessitated a fuller consideration of the appellant's ERISP, which his Honour undertook. In the end result, while his Honour noted the strenuous denials of the appellant, his Honour was nevertheless satisfied that they should be put aside in favour of the evidence given by TW. The approach that his Honour took to the evidence of the complainant in the second trial necessitated that his Honour scrutinise the appellant's denials in the ERISP to a greater extent than his Honour did so in the first judgment. 61Accordingly, even if it is legitimate to compare and contrast the first and second judgments in relation to the treatment of the ERISP, there was no relevant inconsistency and no relevant unfairness occasioned to the appellant. 62In any event, this analysis reinforces my doubts as to whether, in the absence of any allegation of apprehended or actual bias, it is appropriate to complain about differences in the analysis of the same or similar factual material by the same trial judge hearing two different trials. At the foundation of the submission is an assumption that the appellant had some entitlement or expectation at the commencement of the second trial that his Honour would adopt the same view of similar factual material as he adopted in the first trial. Thus the appellant submitted: "Had the defence been aware that His Honour regarded the material the he had already considered as a basis for an adverse view of the credit of [the appellant], it is inconceivable the defence would have acquiesced, without objection, in His Honour's hearing the second trial." 63This submission contains an assertion that, at the beginning of the second trial, his Honour "already considered" that the material in the first trial was the basis for an adverse view of the appellant's credit. If that proposition were made good, then it might have been the basis for an allegation of apprehended bias, but no such allegation was made before this Court and, if it was, it would have no substance. 64In any event the above submission is misconceived. The only entitlement that the appellant had at the commencement of the second trial was that his Honour would act impartially. This required his Honour to consider any material that was tendered before him in that trial afresh, and assess it against the remainder of the evidence tendered in that trial. It follows that, as the second trial involved a different body of evidence to that admitted in the first trial, the appellant could not have had any reasonable expectation that his Honour would take the same view of the ERISP in the second trial that he did in the first or that he would be warned that his Honour was considering taking a different view. The appellant, via his legal representatives, is taken to be aware of the potential for a different view to be taken from his actual or imputed knowledge of his Honour's true function. 65I reject ground 1 of the appeal. Ground 2 - fresh evidence 66Ground 2 of the appeal contends that the appellant's conviction should be set aside on the basis that "fresh evidence" has become available. The fresh evidence relied on consists of a letter written by TW to the appellant some time around 1985 or 1986 after she left home, and a video recording of the complainant attending her half-sister A's wedding on 18 February 1995. 67In MRW v R [2011] NSWCCA 260 at [46] Bathurst CJ identified the three questions that need to be considered where a conviction is sought to be quashed and a new trial ordered on the basis of fresh evidence, namely: "First, is the evidence fresh evidence in the sense that it was not available to the appellant at the time of trial: see Ratten v R [1974] HCA 35; 131 CLR 510 at 512; second, was it credible or capable of belief and third, was there a significant possibility that the jury acting reasonably would have acquitted the appellant." 68In relation to the first question, where the material in question is evidence that was in existence as at the time of the trial, the relevant issue is whether that material could not with reasonable care have been discovered previously (R v Saleam (1989) 16 NSWLR 14 at 21 per Hunt J), or "could not then have been available to the appellant by the exercise on his part of reasonable diligence in the preparation of his case" (Ratten at 516 per Barwick CJ). 69The circumstances in which the letter from TW to the appellant was discovered were explained in an affidavit from the appellant's wife, TW's mother, which was read on the appeal. She states that in February 2012 she was cleaning material out of her spare room and found the letter. She says that she recognised the handwriting in the letter as that of her daughter. She stated that it appears to date from the year 1985 or 1986 when her daughter was living in North Queensland. An affidavit from the appellant's solicitor was also read on the appeal. She said that, in conducting the trial, she was not aware of the possibility of either the existence of correspondence from TW additional to that which was tendered (see [37] to [40]), or of a video recording of the wedding. 70I accept that the letter was not available to the appellant at the time of his second trial in the sense discussed in the authorities noted above. In so finding it is important to bear in mind the extraordinarily long period that spans the events the subject of the offence, the time at which the letter was sent and the conduct of the trial. I do not consider that the exercise of reasonable diligence prior to the trial required the appellant (or his wife) to turn his house upside down in the off chance of finding correspondence nearly thirty years old. 71The circumstances in which the video came into the appellant's possession are described in an affidavit from the appellant's daughter, A, which was also read on the appeal. As I have stated (at [37]), tendered at the trial was a family photo taken at A's wedding in February 1995 which included TW standing behind the appellant. I refer below to the use that was made of this photo at trial. In her affidavit, A stated that it was her previous belief that the photograph that was tendered was the only photographic record of her wedding. It appears that some time prior to the trial she had divorced. She destroyed all of the photographs and a video recording of the wedding and the reception. A stated that, on the day after the appellant's sentencing on 22 February 2012, she was visited by a friend who had been her matron of honour at the wedding. She explained to her friend the fate of her father. Her friend advised her that she had retained a video of her wedding and provided it to her. The recording occupies two hours, nine minutes and twenty-five seconds. An excerpt from the video was tendered as an exhibit on this appeal. 72There was no challenge made to A's evidence. In my view, it clearly demonstrates that the video was relevantly "not available to the appellant" at the time of his trial. 73The second question noted by Bathurst CJ in MRW at [46] concerned whether the alleged fresh evidence was "credible or capable of belief". There is no contest as to TW's authorship of the further letter or the authenticity of the video. 74The third question is whether there was a significant possibility that the admission of the fresh evidence would have resulted in the acquittal of the appellant. In MRW at [53] Bathurst CJ noted that this Court has adopted the approach of Toohey and Gaudron JJ in Mickelberg v R [1989] HCA 35; 167 CLR 259 at 301, to the effect that there is no practical difference between the various formulations of the test enunciated in Gallagher v R [1986] HCA 26; 160 CLR 392. Those formulations ask variously whether, when the fresh evidence is viewed in combination with the evidence given at the trial, a jury would have been likely to entertain a reasonable doubt (Gallagher at 410 per Brennan J), or whether that there is "a significant possibility that the jury, acting reasonably, would have acquitted the appellant" (Gallagher at 399 per Gibbs CJ). 75These statements of principle were all enunciated in the context of a trial by jury, so that the appellants in those cases did not have the benefit of having reasons for their conviction. In this case the Court has the benefit of considering the actual reasons of the trial judge that led to the finding of guilt. A potential issue of principle arises as to whether, in considering what the trier of fact would or might have concluded having regard to the evidence at the original trial and the additional evidence, any regard should be had to the reasons given for the existing conviction and, if so, to what extent. In both R v Ion (1996) 89 A Crim R 81 at 95 (per Hunt CJ at CL) and Keir v R [2007] NSWCCA 149 at [106] to [112] (per Johnson J) consideration was given to the trial judge's reasons for convicting the appellant in a judge alone trial when assessing the potential effect of fresh evidence. No submissions were directed to this issue. Although I will refer to aspects of the trial judge's reasons the conclusions that I have reached do not require this issue to be resolved. 76I have referred above at [37] to [40] to the postcards and letter that were shown to TW during her cross-examination. The three page letter does not identify an addressee, but it appears to have been written to "Mum" and "Dad", which is a reference to the appellant. The postcards were addressed either to the "Family", "Mum and Dad and family" or to "Dad and Mum". It was suggested to the appellant in cross-examination that her sending these documents in that form was inconsistent with that part of her evidence in which she stated that she resolved not to have any further contact with her mother after she left the Newcastle area. It was also submitted that it was inconsistent with her evidence about the conduct of the appellant when she was much younger. TW denied that there was any such inconsistency. She explained that she sent the letters as she wanted to let her mother know where she was, she still loved her mother and she was "hoping that [the appellant and her mother] would accept me and my partner". 77The appellant's counsel referred to this correspondence in his closing address. His Honour addressed it in the second judgment in some detail. His Honour noted that they were sent over a short period and in circumstances where TW had left home at an early age, had "separated herself in many ways from her family", and thus wanted to maintain some contact with her mother while being "reluctant to raise the spectres of the past ... by pointedly excluding her stepfather from these communications". Ultimately his Honour did not consider that the correspondence was "grossly inconsistent with the allegations now made [by TW] as to seriously cast doubt upon them". 78The additional letter which is said to satisfy the test for fresh evidence warranting a new trial appears to have been sent at around the same time as the postcards and the other letter that were tendered at the second trial. The appellant emphasised that it is headed "Dear Dad" and submitted that it is addressed solely to the appellant and not jointly to her mother and the appellant as was the other correspondence. The letter commences by asking "How are you[?] Hope you are well". The letter informs the appellant of TW's life in Queensland and requests that he "please write a letter to me and tell me what's happening down there". It includes a request to have the appellant "get Mum to write to me", and concludes "all my love, [TW]". 79At the hearing of the appeal, an affidavit was read from a solicitor from the Office of the Director of Public Prosecutions annexing a statement taken from TW addressing both the additional letter and the video footage of the wedding. Leaving aside its hearsay status, the adducing of such evidence was endorsed by Barwick CJ in Ratten at 518, even in a case where this Court is only considering whether a new trial should be ordered. However, in such a case the approach of the Court is that (at 519): "The Court in this instance will not be directly acting upon its own view of the evidence but rather upon that view most favourable to an appellant, which in the court's view a jury of reasonable [people] may properly take." 80Given that the credibility of TW was at the very heart of the trial and is still at the heart of the appeal, there is a difficulty in affording much weight in the analysis at this point to her response to this additional material, especially as she was not examined or cross-examined before us. Nevertheless, her response still warrants consideration. 81In relation to the letter addressing the appellant "Dear Dad", TW confirms that it was written in her handwriting and states that it was likely sent in around 1985 or 1986. She is able to identify that date because it refers to her half-sister (A) having started high school. TW says she wrote the letter because her mother told her to write it to "please [the appellant] and maybe allow [TW] to have contact with the family again". This explanation is consistent with the trial judge's analysis. 82In any event and leaving aside TW's response to this letter and the trial judge's reasons, I am not able to conclude that there is a significant possibility that the appellant would have been acquitted if the letter had been admitted. As I have said, at the trial TW explained that the correspondence she was shown was sent by her at a time when she had left home but wished to establish or maintain some family contact as she still loved her mother. The fact that this letter is addressed to the appellant does not contradict or undermine the explanations she gave for sending the correspondence that was shown to her. Although this letter is addressed to the appellant personally, in my view in substance it is no different to the other correspondence. They all contemplate both the appellant and TW's mother reading them. This additional letter does not demonstrate any matter beyond the written communications that were already in evidence and shown to her in cross-examination. I have reached this conclusion without the benefit of TW's explanation for the letter, but that explanation and the trial judge's reasons concerning the correspondence that was shown to her in cross-examination are consistent with what I have found. 83In relation to the video, I have already described how a photo was tendered at the trial of the attendance by TW at A's wedding in February 1995. The photo depicts the appellant and his wife sitting down with the appellant's daughter standing directly behind him. TW is standing to A's right and over the appellant's right shoulder. She has placed her arm over the appellant's shoulder and her hand is on the middle of his chest. During the second trial TW was asked and answered the following questions in relation to the photo: "Q - Now that photo shows a very happy family gathering doesn't it? A - I was very nervous on this occasion because it was the first time that I'd seen like [the appellant and his wife] in a lot of years and I felt very uneasy being at [A's] wedding. Q - Why did you go? A - Because I was invited to my sister's wedding. Q - The reason you went, ma'am, I suggest to you is that there was absolutely no problem between you and anyone else in the family and I suggest to you that it's very evident from that photo that that's the case. A - Well there was - well that's wrong." 84In his submissions to the trial judge, Counsel for the appellant suggested that the photo was "an indication of affection and familiarity" and represented an image that was "[q]uite contrary to the evidence [TW] gave about her dislike of him generally". Beyond that, the photo did not feature prominently in his submissions and only represented a brief part of the cross-examination of TW. 85His Honour only addressed the photograph briefly in the second judgment, referring to it in the same context as the postcards and letters. His Honour noted that they were all "suggestive of [TW having] a warm or positive attitude towards him". His Honour downplayed their significance having regard to the passage of time between the alleged sexual assault and the communications. Further, his Honour added: "In any event, by the time these communications took place, the complainant says she was trying to maintain some contact with her mother. She remained affectionate towards her mother." This reasoning has no relevance to the attendance by TW at A's wedding in 1995 as opposed to the period around 1985 when the letters and postcards were sent. 86The exhibit tendered at the appeal consisted of three segments taken from the video of the wedding. The first segment runs for one minute and nineteen seconds. The camera operator is focused on the bride and groom as they listen to a speech in honour of the parents of the bride, being the appellant and TW's mother. After 31 seconds the camera pans to the left to view the speaker and then the remainder of the guests who are seated to the left. At this point TW comes into view. She is seated two rows away from the appellant. After 55 seconds there is a view of the appellant from behind. He is sitting down. At this point the speaker proposes a toast to him and his wife, and invites the assembled guests to stand up. TW can be seen to stand with the rest of the guests, except for the appellant and his wife. As the toast is being proposed TW appears to be looking at the appellant, or at least in his direction, and smiling. It is a brief shot and the quality of the recording is not high. All the guests then clap as the camera pans back to the right to view the speaker and then the wedding party. 87The second segment runs for one minute and 36 seconds. It shows a group of people assembling for a photograph. The group appears to be the bride's family along with the bride and groom. TW positions herself on the right hand side of the group from the perspective of the photographer and the video camera operator. After 22 seconds, the video pans to the left to include a rear shot of the appellant who is standing to the left. After 30 seconds the photographer can be seen to approach the appellant and TW's mother and beckon them to move to the right side near TW. After 52 seconds the appellant is seen standing next to TW. They are separated by about half a metre. In what appears to be a spontaneous gesture, TW raises her left arm and briefly rubs or pats the upper part of his back just behind his shoulder. The balance of the video segment shows them standing next to each other for the taking of the photograph. TW can be seen to be talking to the person to her right. 88The third segment runs for 38 seconds. For the first 21 seconds the complainant poses for photographs with the bride and two other women. The balance of the segment is footage of the events leading to the taking of the photograph that was tendered at the second trial. After 22 seconds the segment shows the appellant sitting down, with A standing immediately behind him. TW is standing immediately to her right and is against the rear right shoulder of the appellant. By this time TW has placed her right arm over his shoulder, with her right hand on his right chest. It stays there for some seconds. She then moves her hand and grabs his excess neck skin in an affectionate manner while facing the photographer. Both she and the appellant are smiling. She then says something to the photographer and moves her hand to a lower part of his chest, where it remains for the photographer to take the photo. 89In her statement that was tendered on the appeal, TW states that she was invited to go to the wedding at the last minute. She states that she did not speak to the appellant and predominantly spoke to her own sisters, J and K. She stated that she was not sure why in the second segment the appellant was placed next to her in the "big family shot". In relation to the third segment, she states "I remember the photographer telling me to put my hand on [the appellant's] chest and it made me feel uncomfortable; you can even see me jokingly trying to strangle him and I had to smile because it was [A's wedding] day". 90In my view, the material depicted on the video that was tendered to the Court was such that, had it been available at the second trial and considered in combination with the other evidence that was admitted, it is likely that a reasonable doubt would have been entertained about the appellant's guilt. Taken in combination, the second and third segments were clearly capable of demonstrating that, as at the time of the wedding, TW harboured no ill will or resentment towards the appellant. To the contrary they depict spontaneous gestures by her towards him which are capable of suggesting a degree of affection towards him. They are capable of warranting an adverse assessment of her credibility and the reliability of her account so far as it concerns events in the 1970s, and her ongoing feelings towards the appellant. 91It is important to note that the time at which this video footage was taken is critical to the appellant's case. In his ERISP, the appellant accused TW of being the instigator of the allegations against him and attributed her conduct to the will dispute. He said: "... it's mainly I think [TW] is the instigator cause [sic] it's all about the dollars, about the money. They, their mother, without making a long story on this, but their mother's signed her inheritance over years ago to her mother ...". This allegation was taken up with TW by the cross-examiner at the second trial. 92As I have stated, the wedding occurred in February 1995. TW's grand-mother died in June 1995 and her death gave rise to the will dispute. The fact that TW appears on the video to be favourably disposed towards the complainant in February 1995 is capable of providing significant support for the contention that the origins of the allegations against him arose after the wedding and out of that dispute. 93Nothing that I have stated should be taken as a rejection of the explanation given by TW for the video footage. However, three matters should be noted about that explanation. 94First, in her statement TW does not address the gesture in the second segment which appears to indicate a friendliness or at least a lack of hostility towards the appellant. This may have been an oversight, as it is not a matter that is immediately apparent upon viewing the segment. 95Second, TW's explanation that she was uncomfortable during the photograph session depicted in the third segment appears difficult to reconcile with the footage. Her conduct in that footage sits uneasily with the explanation she gave at the trial in relation to the photograph (see [83]). 96Third, as I have explained, it is not the function of this Court in dealing with this ground of appeal at this point to determine whether TW's explanation of the video footage should be accepted or not, or ultimately whether or not her evidence should be accepted as honest and reliable. It certainly could not do so in the absence of her being examined and cross-examined before us. Instead, this analysis represents an application of the principle stated by Barwick CJ in Ratten, noted above at [79]. 97I adverted at [75] to a potential issue of principle in a case such as this about the relevance of the trial judge's actual reasons for finding the offence proved. This issue does not arise in relation to the assessment of the potentially exculpatory effect of the video evidence. There is little in the trial judge's reasons concerning the photograph of TW's attendance at A's wedding which addresses or reflects upon the evidential effect of the additional video footage. Instead the trial judge's reasons reflect the reality that there was no body of independent evidence confirming or undermining TW's evidence about the events the subject of the indictment. A trier of fact acting reasonably in considering all the evidence at the second trial and this video evidence must be taken to place significant weight on any independent evidence that is available which is either confirmatory of or inconsistent with TW's version. Within the limits of the constraint noted in [79], I consider that such a trier of fact would be likely to regard the material depicted in the video as inconsistent with TW's version of events. 98It follows that I would uphold ground 2. Ground 3 - Verdict was unreasonable and cannot be supported having regard to the evidence 99Ground 3 asserts that the appellant's verdict of guilty was "unreasonable, or cannot be supported, having regard to the evidence" (Criminal Appeal Act 1912, s 6(1)). 100Both parties accepted that the appropriate approach for this Court was to "ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty" (M v R [1994] HCA 63; 181 CLR 487 at 493). In doing so this Court must undertake its own "independent assessment of the evidence, both as to its sufficiency and its quality" (Morris v R [1987] HCA 50; 163 CLR 454 at 473). It must consider any competing evidence to that presented by the Crown and weigh the conflicting evidence (SKA v R [2011] HCA 13; 243 CLR 400 at [24] per French CJ, Gummow and Kiefel JJ). 101In relation to the advantages enjoyed by the jury in hearing and observing witnesses compared to this Court, in SKA at [13] French CJ, Gummow and Kiefel JJ stated: "The starting point in the application of s 6(1) is that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, and the jury has had the benefit of having seen and heard the witnesses. However, the joint judgment in M at [494] went on to say: 'In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred'." 102The submissions made in support of this ground by the appellant did not seek to rely on the fresh evidence as a basis upon which the Court could be satisfied of the appellant's innocence, or the existence of an appropriate doubt. If they had, it would have required this Court to assess the response of TW to that evidence and her credit generally (see Ratten at 518 to 520 per Barwick CJ). 103The appellant accepted that the findings of the trial judge rested principally upon his Honour's assessment of the credibility and reliability of TW, and that the assessment of such matters is quintessentially the role of the trier of fact. In terms of this ground of appeal, it represented an "advantage in seeing and hearing the evidence" not enjoyed by this Court (M at [494]). Nevertheless, the appellant identified a number of matters that he contended either individually or collectively warranted a conclusion that this Court should have the requisite doubt about his guilt so as to warrant the entry of an acquittal. In identifying those matters, the appellant's submissions also addressed that part of his Honour's reasons which touched upon the matters complained of. I will address those submissions, but in the context that this ground of appeal is directed to establishing the existence of a reasonable doubt before this Court, and not to establishing any erroneous reasoning or misdirection per se on the part of the trial judge. 104First, the primary complaint made on behalf of the appellant was that TW's account was implausible. This was principally said to be so because, according to TW's version of events, the appellant's conduct was so brazen that he assumed a dangerously high risk of discovery. He pointed to the layout of the house in Merewether and the absence of doors from its doorways, noting that the offence was said to have occurred directly opposite the door-less opening of the appellant's bedroom. It was also said to have occurred within three to four metres of the appellant's aging father. 105The trial judge noted that TW's evidence was that the appellant's father's line of vision would have been directed towards the television set, in circumstances which would have made it less likely that he was able to see what was happening in the bedroom. Nevertheless, the trial judge accepted that there were "elements of implausibility" about TW's account, in that it appears to have involved brazen acts by the appellant. The trial judge then continued: "On the other hand, the Crown submits that the court would ask why details of that sort would be included in the complainant's account, if she had fabricated an account of events. Why would she fabricate it in a way which would place a potential witness so close to the events, in a house which had no internal doors? It seems to me that this is a significant submission which needs to be placed alongside those submissions relating to implausibility. The accused had, on his own account, over some time, been in the habit of assaulting his wife when drunk. Those were assaults which the complainant had observed, let alone the beatings which she herself says she had received. On her account, there had been other instances of fairly brazen episodes of contacts of a sexual nature with her. On her account, there is some internal consistency in [TW] and the accused reaching a stage where he would be emboldened, not only to have full sexual intercourse with her, but to do so with a careless disregard for the risk of discovery." 106The appellant's submissions are critical of the first paragraph of this extract, submitting that the credibility of TW's account "is not enhanced simply because it can be pointed out that an even better story could have been told". In my view, this overstates the position. All that his Honour was pointing out was that, in circumstances where the appellant's case was that TW was an outright liar, it might be thought that she would be more likely to fabricate a story which was not capable of being confirmed or undermined by the presence of a witness such as the appellant's father. 107Otherwise, the balance of the above passage involves his Honour assessing the relative strengths and weaknesses of the proposition that the appellant would not have engaged in such a brazen episode of sexual assault of TW. His Honour noted that that contention was undermined to an extent by the fact that the appellant had committed brazen assaults upon his wife. His Honour also noted that TW's account considered in its totality revealed that his conduct had generally become emboldened over time. The appellant was critical of that reasoning, submitting that it contains an element of circularity. I do not agree. His Honour's analysis was to the effect that there was no necessary inconsistency or implausibility in the totality of TW's account. 108Ultimately my assessment of the appellant's contention that TW's account was inherently implausible is the same as the trial judge's. Her account did involve the appellant engaging in a serious crime with a high risk of exposure but, in context, it was not necessarily implausible. 109The second matter relied on by the appellant was the will dispute. The appellant submits that it was a "consideration to which due weight was entitled to be given". His Honour gave it significant weight, and discussed it in detail in the second judgment. Ultimately in my view, a consideration of whether TW was or might have been motivated to make such a serious allegation by a falling out over her entitlement to an inheritance would require a careful consideration of her presentation in a trial context. Leaving aside the video material, the material available to me concerning the will dispute does not cause me to conclude that it was not open to a trier of fact to be satisfied beyond reasonable doubt that the appellant was guilty. 110Third, the appellant's submissions point to the forthright denials by the appellant in the telephone conversation with TW which was recorded without his knowledge (see [15]). The appellant was consistent in maintaining his denial of ever having sexually assaulted TW. However this only reinforces the need to assess the honesty and reliability of the TW's evidence when considered against the objective evidence, as well as those denials. 111Fourth, the appellant complains about the trial judge's assessment of the appellant's presentation in the ERISP. I have already addressed that above. For the purposes of this Court's assessment of whether there exists the requisite doubt, the forthright denials in the ERISP are to be considered with the denials in the telephone conversation and the remainder of the evidence. 112In the end result, none of the matters pointed to by the appellant, taken individually or collectively, lead me to conclude that it was not open upon the whole of the evidence for his Honour to be satisfied beyond reasonable doubt of the appellant's guilt. To the extent that these matters are capable of raising a reasonable doubt before this Court as to the appellant's guilt, and I do not accept that they do, it is only a doubt of the kind that was capable of being resolved by the advantage conferred on the trial judge in "seeing and hearing the evidence" of TW (cf M at [494]). 113I reject ground 3 of the appeal. Appropriate Order 114The remaining issue is whether it is appropriate to exercise the power conferred by s 6(2) of the Criminal Appeal Act and enter an acquittal or order a new trial pursuant to s 8(1). It follows from the above that I consider that the evidence presented at the trial was sufficiently cogent to justify a conviction (cf Director of Public Prosecutions (Nauru) v Fowler [1984] HCA 48; 154 CLR 627 at 630). Unless the "interests of justice" require an acquittal, this Court should ordinarily order a new trial (Spies v R [2000] HCA 43; 201 CLR 603 at [104] per Gaudron, McHugh, Gummow and Hayne JJ). 115The appellant submitted that the interests of justice warranted the entry of an acquittal and pointed to the length of time since the events in question and the fact that the appellant has served more than half of the custodial part of his sentence (Jiminez v R [1992] HCA 14; 173 CLR 572 at 590 per McHugh J). I acknowledge the force of those factors, however they do not justify the taking of the significant step of entering an acquittal, bearing in mind the basis upon which the appeal has succeeded. The case against the appellant rested upon the evidence of a complainant whom the trial judge found to be honest and reliable. The appeal has only succeeded because of the emergence of fresh evidence that TW has not yet been fully examined upon. Further, there is no suggestion of any fault on the part of the respondent in the conduct of the prosecution or that a retrial would involve it recasting its case in some new manner or in some way that would otherwise cause unfairness (cf Gilham v R [2012] NSWCCA 131 at [671] per Fullerton J, and [700] to [701] per Garling J). 116Merely because this Court orders a new trial does not mean that the respondent must proceed with one. Whether or not it will do so will no doubt depend on a careful assessment by it of various factors. However, I do not consider that its assessment should be foreclosed by an order made by this Court (see R v Thomas (No 3) [2006] VSCA 300; 181 A Crim R 323 at [27]). 117Accordingly the orders I propose are: (1) Leave to appeal be granted. (2) The Appeal be allowed (3) The Appellant's conviction be quashed. (4) A new trial be ordered. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 25 March 2013