SUPREME COURT OF VICTORIA 
COURT OF APPEAL

S EAPCR 2019 0229

SHAUN BLOOMFIELD	Applicant	
		
v		
		
THE QUEEN	Respondent	

- and - 
S APCR 2019 0125

LUKE MERRYFULL	Applicant	
		
v		
		
THE QUEEN	Respondent	

---

JUDGES:	NIALL, T FORREST and WEINBERG JJA	
WHERE HELD:	MELBOURNE	
DATE OF HEARING:	8 September 2020	
DATE OF JUDGMENT:	17 September 2020	
MEDIUM NEUTRAL CITATION:	[2020] VSCA 241	
JUDGMENT APPEALED FROM:	[2019] VCC 509 (Judge Mullaly)	

---

CRIMINAL LAW – Appeal – Conviction – Application for leave to appeal against conviction – One accused convicted of two charges of rape and one charge of sexual assault – Another accused convicted of one charge of rape – Co-accused and complainant knew each other – Whether substantial miscarriage of justice because inadmissible and unfairly prejudicial evidence was placed before jury and judge did not give a proper direction – Whether substantial miscarriage of justice because fresh evidence giving rise to significant possibility jury might have acquitted if evidence available at trial – Mickelberg v The Queen (1989) 167 CLR 259; [1989] HCA 35 applied – Rodi v Western Australia (2018) 265 CLR 254; [2018] HCA 44 applied – Application for leave to appeal granted in relation to fresh evidence ground only – Appeal allowed.

---

APPEARANCES:	Counsel	Solicitors	
			
For the Applicant Bloomfield	Mr R Nathwani	SWD Legal	
			
For the Applicant Merryfull	Mr R F Edney	SWD Legal	
			
For the Respondent	Ms D Piekusis QC	Ms A Hogan, Solicitor for Public Prosecutions	

niall ja
T forrest ja
WEINBERG JA:
1	The applicants were jointly presented on an indictment alleging four sexual offences against the same complainant (‘C’).  Shaun Bloomfield faced three charges, two of rape and one of sexual assault, and Luke Merryfull faced a single charge of rape.  On 8 February 2019, following a trial before Judge Mullaly and a jury, the applicants were found guilty of all charges and sentenced to terms of imprisonment.
2	The offending took place in the early hours of 3 April 2016, following a birthday party the previous evening.  The applicants and C were guests at the party and well known to each other.  It was not in dispute that the sexual activity which formed the basis of the charges took place; the issue was one of consent.  The main evidence was given by C, although the prosecution also adduced evidence from a number of witnesses to whom C had reported the offending in its immediate aftermath.  Two of those witnesses were ‘LH’ and her daughter, ‘RH’, who had been at the party and had collected C when she telephoned RH in distress.  The applicants gave evidence in the trial, which must have been rejected by the jury.
3	The applicants seek to leave to appeal on two essential bases.  First, they submit that inadmissible evidence was adduced at trial that Merryfull had ‘tried’ to have sex with C on earlier unidentified occasions but had been rebuffed.  The applicants submitted that the judge should have, but did not, direct the jury to ignore that evidence.
4	Second, they rely on fresh evidence from LH who now says that she withheld a critical piece of evidence on the question of whether or not C had consented to the sexual activity.  She says that in her conversation with C on the morning, she asked C whether she had consented, to which C replied: ‘Luke maybe, but not Shaun’.  LH revealed C’s response for the first time, immediately after the applicants had been sentenced, even though she had given a police statement, and gave evidence at the committal and trial, none of which mentioned this striking concession on the part of C.  The issue on this ground of appeal is whether the fresh evidence is sufficiently cogent, or credible, that its absence from the trial resulted in a substantial miscarriage of justice.
5	For the reasons that follow, we would refuse leave to appeal on the first ground.  We would grant leave to appeal to each applicant on the fresh evidence ground, and allow each appeal.
The offending 
6	On 3 April 2016, SM hosted her 21st birthday party at her parents’ property in rural Victoria.  Bloomfield, Merryfull and C were guests at the party.  They were well known to each other.  They had attended school together and had lived in the same, relatively small, rural town.
7	During the party there was dancing and a lot of alcohol consumed.  C had about five cups of strong alcoholic punch.  At about 3:00 am, as the party was winding down, C decided to go to bed.  She had originally planned to sleep in her swag, but SM made up a bed for C in a caravan on the property which would be warmer.  The two of them then went to the caravan to sleep.  SM was intoxicated and C described herself as ‘tipsy to drunk’.  At some stage they were joined in the caravan by a small group, including Bloomfield and Merryfull.
8	At one end of the caravan was a double bed, and at the other end a set of bunk beds.  Between the beds there was a cooking and dining area.  The double bed extended across the width of the rear of the caravan, very close to the eating area.
9	After about 15–20 minutes of ‘mucking around’, the others left and Bloomfield, Merryfull and C remained.  C was on the double bed, and at some point she was joined by the two applicants.  The three of them lay on the double bed with Merryfull positioned closest to the rear wall, Bloomfield on the side closest to the kitchen and C in between them.
10	C said in her evidence that Merryfull had suggested a threesome, and she said ‘no’.  In his evidence-in-chief, Merryfull accepted that he had mentioned a threesome but denied that C had said ‘no’.  Bloomfield in his evidence-in-chief said he did not hear any mention of a threesome, but in cross-examination he said that C had in fact suggested it.  C also gave evidence that she said ‘no’ at the start when the applicants started to touch her.
11	As they lay on the double bed, Merryfull put his hands under C’s top, touching her breasts, and, in response, C used her elbow to try to push his hands away.
12	At the same time, Bloomfield put his hand into C’s pants and rubbed his fingers over her vagina.  He began kissing C’s face and neck and penetrated C’s vagina with his finger.
13	Merryfull removed C’s pants and underwear and penetrated C’s vagina with his penis.  During intercourse with Merryfull, Bloomfield took C’s hand and placed it on his erect penis.  C tried to pull her hand away and said that she was trying to roll away from them.
14	Merryfull withdrew his penis from C’s vagina.  Merryfull said something to Bloomfield along the lines of ‘your turn’ or ‘she’s all yours now’ before leaving the caravan.  C was trying to get her arms back and roll into the blankets.  Bloomfield then penetrated C’s vagina with his penis.  While this was happening, C was trying to push Bloomfield off and roll into the blankets.  As C was pushing against Bloomfield’s chest, he got off and left the caravan shortly afterwards.
15	C’s telephone records demonstrated that from 4:25 am she attempted to contact a number of her friends.  C made a number of unanswered calls before her friend, RH, answered her call at 4:35 am.  RH  and her family had also attended the party but had left earlier.  RH returned to the property with LH, and collected C from the caravan.  LH then drove C back to LH’s home.
16	Both RH and LH gave a statement to police about their observations of C, and of what was said between them that morning.  They gave evidence at both committal and trial.  In this Court, the applicants seek to rely on a subsequent statement of LH, that records further, and important, detail of what C said on the morning that was not given in evidence at the trial.  The applicants contended that the new statement constitutes fresh evidence and that, having regard to its content, there has been a substantial miscarriage of justice.  The respondent submitted that the fresh evidence simply cannot be believed and there was no substantial miscarriage of justice.  We shall return to the evidence in some detail below when considering the second ground.
17	According to LH, once they had returned to LH’s home, C’s parents were called and they attended later that morning.  Before her parents arrived, C told LH that Bloomfield and Merryfull had raped her.  We note that although RH was present, in her evidence at trial she did not give any detail as to what C had said.  Following a discussion, the matter was reported to the police.  A forensic examination of C was conducted and Merryfull’s DNA was located on vaginal swabs.
18	Bloomfield and Merryfull both gave evidence at trial.  They each accepted that the conduct which formed the basis of the charges had occurred.  However, they said that C had consented to it, or at least they had reasonably believed at the time that she was consenting.
Appeal against conviction
19	Bloomfield relies on two proposed grounds of appeal and Merryfull relies on three.  They cover the same issues and can be summarised as follows:
(a)	Ground 1: A substantial miscarriage of justice has occurred because inadmissible and unfairly prejudicial evidence was placed before the jury and the trial judge failed to give the jury an appropriate direction in relation to that evidence at any stage during the trial.
(b)	Ground 2: A substantial miscarriage of justice has occurred because fresh evidence has become available and there is a significant possibility that the jury might have acquitted the applicants if that evidence had been available at trial.
Ground 1
20	In the course of adducing evidence from C concerning the lead-up to the offending, the following exchange took place between the prosecutor and C:
Now, you said that [Bloomfield] had got on to the bed where you were — ? — Yep.
— whilst everyone was there?  Did he remain there? — Yes.
When everyone left, apart from the three of you, where was [Merryfull] at that stage.  So, in other words, when [SM] and [WS] left, where was [Merryfull]? — Um, I’m not sure exactly but he at some point got onto my right-hand side.
Is that at the – if you like the rear of the caravan? — Yes.
So, once he got onto the bed there was [Merryfull] at the rear, you in the middle — ? — Yep.
— and then [Bloomfield], if you like, on the side of the bed, closest to the kitchen? — Yes.
Now, when [Merryfull] got onto the bed were you happy with that or unhappy?  What was the situation? — I was annoyed.  I didn’t want him there.
And why was that? — Um, previous occasions he’s tried to, like, sleep with me and I just wasn’t comfortable.
21	Counsel for Merryfull objected to the evidence, and the jury was sent out.  The prosecutor contended that the evidence was relevant as it went to Merryfull’s belief as to C’s consent — if C had indicated on previous occasions that she was not interested in Merryfull — ‘why would [Merryfull] assume that on this occasion, when she hasn't done anything to indicate that she's changed her mind, would he believe that she had changed her mind?’  Counsel for Merryfull submitted that the evidence was not relevant to the charge and that its admission posed a risk that the jury would rely on what C had said as propensity evidence, causing unfair prejudice to Merryfull.
22	The judge concluded that the evidence was relevant but that its prejudicial effect outweighed its probative value.  Therefore, the judge ruled the evidence inadmissible.  He said he would ‘try and deal with it on the transcript as it unfolds‘ and that he could ‘tell the jury to put it out of their mind.’
23	Counsel for Bloomfield made no submissions in relation to the evidence.
24	When the jury returned, the judge told them that the prosecutor would ‘move to another topic’.  He did not give the jury any direction in relation to the impugned evidence.
25	On the second day of the trial, during cross-examination of C, counsel for Merryfull put to her: ‘Merryfull denies trying to have slept with you on previous occasions but you disagree with that I take it?’  C disagreed.
26	Following the conclusion of C’s evidence, and the evidence of another witness, counsel for Merryfull returned to the issue in the absence of the jury.  Counsel explained to the judge that he thought he had been required to put his client’s denial about the earlier occasions in compliance with the rule in Browne v Dunn.  The judge was obviously surprised by counsel reintroducing the evidence in cross-examination, saying that he thought he had ‘kicked it to the gutter for your benefit’.
27	The judge noted that it was up to counsel to request a direction.  It is apparent that his Honour was cognisant that this was a forensic choice for counsel to make: ‘…it’s up to counsel because it’s absolutely clear on empirical evidence-based analysis of these things the giving of a direction might – this might [back] fire, it might raise it in their minds.’  The judge said he had planned to tell the jury to put the evidence out of their minds.  He said that he would give the jury a direction in those terms if counsel wanted him to do so, and that would be a matter for counsel.  The judge left the matter with counsel for Merryfull who said that he would ‘come back to [the judge] on that point.’
28	On day three of the trial the matter was again raised, in the context of a discussion on the directions that should be given to the jury, with the following exchange:
HIS HONOUR: … what do you want in respect of, if anything, following the evidence that you objected to, that something was said and then you addressed it a little late.
[COUNSEL FOR MERRYFULL]: Yes, I thought further about that, Your Honour.  I've got to confess, I'm still in two minds whether it even comes properly within the meaning of misconduct evidence in s 26. … But in any event, having spoken further and discussed that with my client, I don’t seek any direction —
HIS HONOUR: Nothing.  All right.
[COUNSEL FOR MERRYFULL]: We’ll just leave that alone.
HIS HONOUR: Would you prefer that it’s just left alone?  I don’t intend to raise it?  No one – he hasn’t asked any questions about it and —
[COUNSEL FOR MERRYFULL]: And that was a mutual position we reached at the Bar table, Your Honour, that —
HIS HONOUR: Yes.  All right.  I’ll leave it alone. 
[COUNSEL FOR MERRYFULL]: — we think we just leave it and they make —
HIS HONOUR: Yes.  Well you’ve got to request it.  The matters in s 14, together with 29(2) don’t given me any reason to consider that I should put to one side your considered decision not to ask for a direction, so one will not be given.
29	Notwithstanding the earlier discussion and agreement that no direction would be given, the judge unfortunately returned to the evidence albeit in a different context.  He used the cross-examination on the topic as an example to demonstrate to the jury that it is the answer, and not the question, that constitutes the evidence.  The judge addressed the evidence in his charge to the jury:
… the prosecutor, in cross-examining the accused, [put] propositions to them, which they rejected.  And again, the answer – it is the answer that is the evidence.  I think an example that may not trouble you for a moment, it was suggested that [Merryfull] had tried to have sex with [C] before.  His answer was that was just not true.  So there is no evidence from him about any of that, and in the end, just put all that matter of previous interactions out of your mind.
30	The judge’s statement was incorrect because C’s statement was not put to Merryfull during examination-in-chief or in cross-examination.  And, of course, C had given evidence of previously rebuffing Merryfull.
31	As the impugned evidence related to Merryfull, he took the carriage of the argument in this Court.  Bloomfield submitted that if there was a substantial miscarriage of justice by reason of the evidence, the same vice affected his trial.
32	Merryfull submitted that the judge should have told the jury — immediately after his counsel objected to C’s evidence about Merryfull’s earlier attempts to sleep with her — that the evidence was inadmissible, and should be disregarded.  Alternatively, his Honour should have given a clear direction in his charge to the jury to disregard that evidence.  He submitted that the failure to do either or both of those things amounted to a substantial miscarriage of justice.
33	In our view, for the reasons that follow, the ground must be rejected.
34	First, it appears from the discussion before the judge that the impugned evidence was contained in C’s statement.  The defence had not sought, before trial, to have it excluded.  Next, once it was adduced and objection taken, the judge ruled in favour of the objection and indicated that he would deal with it at a suitable time.  There was no single or correct time at which the judge might have addressed the jury about the evidence.  There was always the risk that whatever the judge said might highlight what C had said, especially if that were to occur during the course of her evidence.  There was no error in not immediately drawing the matter to the attention of the jury.
35	Next, and mistakenly, counsel for Merryfull had cross-examined C on the topic.  The mistake was inadvertent and of a kind that sometimes happens in a trial like this, which posed a number of forensic challenges.  Nevertheless, it made any intervention by the judge more problematic because there was a risk of drawing attention to the topic, highlighting defence counsel’s error.  Counsel, in the course of a considered forensic decision, elected not to ask the judge to say anything but reserved his ability to return to the issue in the context of the charge.
36	When the topic was again discussed, counsel was emphatic that no direction should be given.  Again, there was a sound forensic reason for doing so.  Additionally, ss 15 and 16 of the Jury Directions Act 2015 provided that the judge must not give the jury a direction that has not been requested under s 12 unless there are substantial and compelling reasons for doing so.
37	In the circumstances, there was no reason for the judge to give a direction to the jury to disregard the evidence, still less was there the occasion to give some instruction with regard to not using the evidence impermissibly.  To do so would have been to highlight the evidence, give it a prominence that it otherwise would not have had.  It would have introduced an unnecessary degree of complexity if the judge were to give an anti-propensity warning.
38	We accept that the judge was wrong to use the evidence to demonstrate the point that he was making in his charge to the jury.  The evidential difference between a question and an answer is an important one that juries are regularly instructed about.  However, the example he used was misconceived.
39	Nevertheless, we are not persuaded that there was any substantial miscarriage of justice.  We do not consider that the judge’s reference to the evidence, in the example that he gave, would have drawn the jury’s attention to that matter, nor that there was a risk that the evidence would have resulted in impermissible reasoning on the part of the jury.  The judge was clear that members of the jury were to put previous interactions out of their minds.  That was a simple, easily understood, direction.  There is no reason to doubt that it was effective.  Counsel did not apply for a further direction or for a discharge of the jury despite the fact that the evidence was discussed with the judge on a number of occasions during the trial.
40	In the scheme of the trial, the evidence, and the judge’s statement to the jury, would have had no discernible bearing on the verdicts.
41	We refuse leave on ground 1.
Ground 2
42	In order to understand the arguments it is necessary to recount the history of the accounts given by LH to police, at the committal and at the trial.
The police statement: April 2016
43	As mentioned, the party was held on 2 April 2016 and the events in question took place on the morning of 3 April 2016.  On 8 April 2016, LH made a statement to police over the telephone.  For that purpose she spoke with the informant, Leading Detective Senior Constable Alison Manniche-Brown.  The typed statement is two pages in length.  LH says that at about 4:30 am on the morning of Sunday 3 April 2016: ‘my daughter [RH] came and woke me up and she said we have to go and pick up [C] something terrible has happened.  I asked her what that was, she said, I don’t know she is just very upset.’
44	When they arrived, RH went to collect C.  When RH and C returned to the car, RH put C in the front seat and LH said that C looked ‘visibly upset, crying.’  LH says that she recalls RH saying to her that she found C naked from the waist down.  When asked by LH what was wrong, C said: ‘I’m not a slut, I didn’t want this to happen, I’m not a slut [LH].’
45	Once they had returned to LH’s home, LH put some blankets over C, who was still ‘visibly upset.’  The statement continues:
… She said, ‘I’ve been raped’.  I can’t remember exactly what was said, but she told me that it was Luke Merryfull and Shaun Bloomfield.  I asked her to tell me what had happened.  She said, ‘That it was all a bit blurry’.  She said that she remembered [DT], Luke Shaun and [SM] being in the caravan.  They were just talking and mucking around.  I got the impression that it was all amiable, they are all friends.  I know all of these people that she spoke about.  She said, [SM]’s boyfriend [WS] came and got [SM] and took her into the house and [DT] left as well.  So my understanding that there was then only Luke, Shaun and [C] left in the van.  Then she said they came and jumped on the bed with her and then she didn’t really go much further than that she became really upset.  She just said, ‘I didn’t want it to happen, I didn’t want it to happen’.  I asked her did she say ‘no’, she said, ‘She couldn't remember’.  I then talked about contacting her parents.  I explained to her that she may need them.  I didn’t talk to her anymore about detail.  Both [RH] and I were in shock as I was challenged by the thought that an non-consensual event had occurred.
46	In her statement LH said that she had seen C twice since that day but had not discussed with her what had happened.  LH also said that she had had contact with Bloomfield ‘who was quite upset but spoke with him on a general basis.’  She concludes her statement by saying that she ‘was there to support all three of the young people.’
47	On 15 May 2016, LH signed her statement.
The committal: August 2017
48	On 22 August 2017, LH gave evidence at the committal.  At the committal, she was asked to identify the statement she had made to police, and she adopted its contents as true.  She was not asked whether there was anything that she wished to add to or alter in that statement.
49	LH was cross-examined by counsel for Bloomfield.  The questioning was brief, extending for about two and a half pages of transcript.  The questions largely involved taking the witness to sentences in her statement and for the purpose of confirming that C had actually used the words attributed to her.
The trial: February 2019
50	The trial commenced on 4 February 2019, roughly 17 months after the committal.  LH gave evidence on 6 February 2019.
51	LH gave evidence immediately after RH had given her evidence.  It is necessary to say something about the course of RH’s evidence.  In her statement to police, RH had said that when she went to collect C she found her sobbing uncontrollably and had said that ‘they wouldn’t leave’.  In her evidence-in-chief, RH did not say that C was crying but accepted that over the phone C sounded upset.  RH stated that she did not remember C saying something to the effect of ‘they wouldn’t get out’, although she added: ‘I think it is in my statement so it must have happened.’  The prosecutor did not then ask for the witness to be given an opportunity to revive her memory nor was an application made under s 38 of the Evidence Act 2008 (the ‘Evidence Act’) on the basis that the witness had departed from her statement.
52	RH went on to say that her mother had also tried to get answers from C as to what had happened ‘but we never got a straight answer’.
53	RH was only cross-examined by counsel for Merryfull who asked her one question — whether she thought C’s non-responsiveness was due to her distress, her having difficulty speaking or for some other reason.  RH responded: ‘It was definitely — it was for some other reason.’
54	In advance of re-examination, in the absence of the jury, the prosecutor applied for leave to cross-examine RH under s 38 of the Evidence Act.  That leave was refused essentially on the basis that it was too late and would be unfair given the forensic decisions made by defence counsel to refrain from cross-examination or to conduct a confined cross-examination.
55	LH then gave evidence.  Very early in her evidence-in-chief, she was asked what RH had said to her when RH had woken her.  The prosecutor asked directly whether RH had told her that ‘something terrible had happened’ to which LH answered: ‘she alluded to that’.  In the absence of the jury, the prosecutor asked for leave to permit LH to revive her memory by reading her statement in accordance with s 32 of the Evidence Act.  Counsel for Bloomfield said he was content with that course, saying: ‘I think we’re all mindful of what just happened previously.’  That was no doubt a reference to RH’s evidence.  Counsel for Merryfull did not object.  Leave was given.  LH was shown her statement, and then asked some questions, in the absence of the jury, about what RH had said when she had woken LH.
56	Before the jury, the prosecutor took LH to the time when RH had woken her up and told her that something terrible had happened.  LH said that RH did not know what had happened but they needed to go and pick up C.  The prosecutor then put a series of propositions, drawn directly from the statement, to LH, which she adopted as correct.  The prosecutor asked whether C was crying when she got into the car to which LH replied: ‘She wasn’t crying at the time.  She was upset.’
57	The prosecutor then asked LH whether she had told the police when she made her statement that C was crying.  LH replied: ‘She appeared as though she had been crying I believe it says in my statement.’  The judge again permitted the witness to read her statement.
58	LH then gave evidence about the conversation in the kitchen once they had returned to LH’s home, including the following:
And did you have a conversation with her? — Yes.
And do you recall that conversation? — Um, I was asking, just really asking her questions about what had occurred, trying to establish what had gone on here.
And what did she tell you? — Well, she – she said that she had been raped.  I can’t remember exactly what she said but the impression that I got was that there may have been a non-consensual event occur.  But there was, you know, it was all a bit blurry, she said, when I asked her specific questions, she would just say it was all a bit blurry and she didn't want to answer my questions that were directed to her.
Did you sense whether or not she was comfortable or uncomfortable talking to you? — Look, I mean, I'm the mother of her good friend.  I am – we were very good friends with her parents.  We holidayed together, so, you know, and [C]’s grown up with our children over the past ten years, so, you know, I’d consider it a reasonably close relationship, um, but she wasn't comfortable just – she wasn't comfortable discussing what had occurred and I respected that and my assessment was that I just needed to get her parents, to call her parents and I didn’t know what had gone on but it really needed to be dealt with by not us.  If that makes sense.
She said it was a bit blurry but did she at least tell you that she was in a caravan with [SM] — ? — Yes, yep.
 — and that [WS] came and got her — ? — Yes, correct.
That’s, came and got [SM]? — Yep.
She was left in the caravan with the two – with Luke Merryfull and Shaun Bloomfield? — Correct.
And that they jumped on the bed? — Correct. 
Now, after that, when she got that far, was she able to tell you anything more? — She just became really uncomfortable and I could tell that she – she just didn’t want to discuss it with me.
And how would you describe her emotional state at that stage? — Um, you know, I remember, you know, just that body language, that, you know, um, as she sort of stated when she got to the car, ‘I’m not a slut [LH], I’m not a slut’, and I think, you know, there was obviously a lot of I don’t know what was going on in terms of her thought processes as to what my perception, being a mother, or being the mother of her good friend would mean in terms of discussing what may or may not have gone on.
…
59	A little later in her evidence, the following exchange occurred:
… Now, did you ask her whether she said, ‘No’? — Ah yes, I did.
And what was her response? — Ah it was all a bit blurry.
Did she say she couldn’t remember? — Couldn't remember. Sorry.
60	Bloomfield’s counsel briefly cross-examined the witness.  During cross-examination LH restated that C was ‘not comfortable’ and said that the event itself was ‘very confusing’ for LH.  LH agreed that at the time C said she could not remember if she had said ‘no’ to the applicants,  LH decided not to pursue the issue as she did not know what was ‘going on here’.
61	Counsel for Merryfull did not cross-examine LH.  She was then re-examined by the prosecutor.
The fresh evidence
62	On 11 April 2019, the day after Bloomfield and Merryfull were sentenced, LH prepared a document, in the form of a statement, which forms the basis for this proposed ground of appeal.
63	The statement of 11 April 2019 is as follows:
…
I was requested by police to make a statement regarding an alleged incident that occurred at a … residence … in April 2016 involving [C], Luke Merryfull and Shaun Bloomfield.  I drove to the residence that night and collected [C] in my car with my daughter [RH].
When I was providing the statement the police representative Alison Manniche-Brown advised me to keep to the actual events of the night.  Stick to the facts of what happened.  I found the process of giving the statement and appearance in court in Geelong to be very confronting.  I have never been called to provide a statement for a criminal case or be a witness before and have no previous legal experience or court attendance exposure.
I write this today as I feel that I did not contribute all that I could and there were some elements of omission from my statement.  I offer this information for consideration in case its omission may have resulted in an unjust outcome for any party.  I sincerely apologise.  Alison Manniche-Brown was very supportive at the time, it was my understanding of what I should have included.
I have known all three parties to this case since they were young.  I have been called to their asthma attacks in the middle of the night, removed fish hooks and managed their tonsillitis.  They all grew up going to school with my children and all of their parents are well known to me.  I consider I had a strong and open relationship with all three young people involved.
I ask that consideration be given to the following points:
1.	In my statement I said when we picked [C] up from the party … she was saying ‘I’m not a slut [LH], I’m not a slut’.  I was concerned at the time there was an element of affirmation and [C] was very mindful of how the situation appeared.
2.	In my experience (over 30 years of rural remote nursing) I would concur that people do respond differently to traumatic events.  Whilst [C] was upset, and I stated this in court and in my statement, I witnessed no level of distress that warranted immediate intervention, other than to call her mother and have her manage the situation and care for her daughter.  I do not believe I expressed this clearly.  I felt there was an implication that there was an extremely traumatised victim that would have required high level support.  This was not my observation or assessment at the time.
3.	When sitting in my kitchen I questioned [C] about what had occurred.  I asked her ‘did you consent to this?’ (meaning consensual  sexual activity) she folded her arms across herself, put her head down and in a low voice said ‘Luke maybe, but not Shaun’ and shuddered her shoulders as if it would be seen as a disgusting thing to willingly have sex with Shaun Bloomfield.
4.	When I asked her did she say no?  She shrugged again and said ‘I can’t remember it’s all a bit blurry’.  Her body language again was arms folded across her body head down, seemingly embarrassed and sullen.
5.	I questioned in my head if [C] was seeking to present information to save face and take control of an embarrassing situation.  I felt bad thinking it at the time as my primary actions and concern was ensuring she was cared for.  I was also very affronted by the alleged disrespectful behaviour of the boys.
6.	I was negotiating with her to allow me to contact her mother, which she did not want to do.  When I suggested she do so, she clearly said no.  I kept looking over at my daughter [RH] with a questioning look, asking her via hand gestures ‘what had gone on’?  [RH] gesticulated back with hands raised and facial expression that indicated she had no idea.
I write this concerned there is an element of doubt as to [C]’s denial of consent and believe this should be considered.
64	It may be noted that, for present purposes, the critical part of the statement is found in paragraph 3, in which C is recorded as saying on the question of whether she had consented to the sexual activity: ‘Luke maybe, but not Shaun’.
65	In addition to tendering that statement, both applicants adduced viva vice evidence from LH in this Court and she was cross-examined by the respondent.
66	By way of summary, her evidence in this Court was to the effect that she had provided only a basic outline of events to police in her statement, believing that in the future she would be given an opportunity to provide detail, but that opportunity was never afforded to her.  The police never asked her for additional information and at the committal she was asked direct questions about her statement with no opportunity to expand on or vary what she had said.  LH said that she felt overwhelmed and badgered at the trial and was in effect obligated to follow the terms of the statement with which she had been provided.  She had understood that she would be asked later about the events — and was waiting to be asked — an understanding which she described as ‘naïve’.  This was the first time she had been involved in a court process as a witness.
67	In her evidence, LH said that when she spoke with the informant on the telephone for the purpose of making her statement, she was told to just stick to what happened and she understood the purpose was to provide a basic or overview statement of the facts and that she would be questioned further.  LH said that the conversation with the informant took about 15 to 20 minutes.  In that conversation, she was covering the episode when C was at LH’s home.  LH estimated that C was in her kitchen for an extended period of time and that there was a lot of conversation and not every detail was documented in her initial statement.  LH could not recall being told before she signed her statement or at the time of signing it that she could amend or clarify anything contained in it.  She said that she would have read the statement but would not have looked at it in detail.
68	LH said that the informant had told her not to talk to any witnesses or anyone involved in the case.  She said that complying with that instruction presented stressful ethical issues because she did not know who those people were but she knew the families of those concerned and, as the local area nurse, needed to deliver care to concerned parties, including the mothers of both applicants, who were her patients.  As a result, she was very conscious of ‘disengaging’ from the legal process and focusing on the welfare, healthcare and community support side of the process.
69	LH described the period as a particularly busy and stressful one — there was illness in her family, including her mother who had cancer — and she was balancing caregiving responsibilities with fulltime work.  She said that the only times she focused on the case were around the committal and the trial because she had socially disengaged from it in order to carry out her professional role in the community.
70	LH said that after attending the committal and the trial she spoke to the families of Bloomfield and Merryfull and said that she was happy to provide more information, if required, and was waiting to be approached.  However, she did not provide those families with the detail because she did not think it was appropriate to discuss it with the families.  LH said that she was not aware that she could provide a second or supplementary statement.  It was her understanding that she had to follow due process and the only opportunity that she would have to submit anything was in the appeal process.  LH said that if she had been aware that she could have made a second or subsequent statement to police, she would have done so.
71	On 11 April 2019, LH prepared the further statement which is the subject of this ground of appeal.  LH forwarded that statement to the applicants’ lawyer, Andrew Tweedly, whom she knew personally.
72	In cross-examination, LH accepted that as a nurse she knew the importance of keeping notes and the importance of accuracy.  She accepted that the course of time would have had some impact on her memory but said she was very clear on some elements.
73	LH denied that she had ample opportunity to provide the evidence.  She said that she did not understand the criminal justice system.  She felt that at the committal she had expected that the conversation with C would be flushed out but that she left the committal feeling that she had not contributed all that she could have.
74	LH accepted that, looking back, there was an opportunity at the trial to give further detail of what C had said, but that was not how it appeared to her at trial where she was very stressed and answering the questions that were being asked.
75	In answer to a question from the Court, LH acknowledged that she understood the importance of the additional matters contained in her statement, but said that when C said she had been raped ‘that was a full stop for [LH].’
Parties’ submissions on ground 2
76	The applicants submit that the fresh evidence had about it ‘the ring of truth’, and that this Court should accept that it was credible and cogent evidence on the crucial issue of consent.  Merryfull submitted that the evidence of LH established that she believed her police statement was a basic account of what had occurred on the morning, and that she would be asked at a later point specific questions designed to elicit further information.  However, that never transpired.
77	Although it was acknowledged that LH is an intelligent person, it was submitted that she was unfamiliar with the criminal justice process and could not be assumed to have had an understanding of what she could, and could not, say in the trial process.  Bloomfield submitted that her account of having felt constrained from providing additional information was consistent with what the transcripts of her evidence reveal.  At the committal, the prosecutor did not ask LH if she wanted to amend her statement and cross-examined her in a very controlled manner.  At the trial, LH’s deviation from her police statement had caused the jury to be sent out, and her having been instructed as to how she was to answer questions meant that she was wary of deviating in any way from specific answers to specific questions.
78	In the respondent’s written case, it was submitted that it was improbable that LH remembered, one day after the applicants were sentenced, that she had asked C if she had consented, and received the reply: ‘Luke maybe, but not Shaun’.  That was said to be implausible given that she had made a police statement, had been twice cross-examined specifically about her conversation with C, and asked to refresh her memory by reference to her police statement without ever having previously mentioned what is now said to be fresh evidence.
79	Further, the respondent submitted that the new account was not consistent with the evidence given by RH that C did not tell her what had occurred and that she could not get a straight answer to her questions.  The respondent submitted that no adequate explanation had been provided as to how this new evidence only emerged after the applicants had been sentenced.
80	In light of LH’s evidence in this Court, the respondent further submitted that it is implausible that LH had always recalled the conversation, but had not told anyone about it merely because there was no opportunity to do so.  It was submitted that LH had ample opportunity to tell someone and her account was simply not credible.
81	In those circumstances, the respondent submitted that the evidence lacked probative force.  It would not have led the jury, acting reasonably, to have acquitted Merryfull in particular and would not have assisted Bloomfield at all had this evidence been led at trial.
Conclusion
82	The principles that apply to the receipt of fresh evidence on an application for leave to appeal a conviction are well established.
83	In Hague v The Queen, this Court adopted the following summary:
In a criminal matter, a party may seek to lead what is sometimes described as ‘fresh evidence’, and at other times ‘new’ or ‘additional’ evidence if certain threshold conditions are met.
The law regarding fresh evidence on appeal, in this State, is that evidence will meet that threshold if this Court concludes that a jury, acting reasonably, might accept the evidence, and act upon it.
More specifically, in R v Nguyen, this Court adopted the following statement of principle governing fresh evidence:
An appellate court cannot set aside a verdict on a ‘fresh evidence’ ground unless it is satisfied that there has been a miscarriage of justice because the fresh evidence was not put before the jury at the trial … If this ground is made out, the verdict of guilty will be quashed and, depending on the evidence considered as a whole, the appellate court may direct a retrial or discharge the appellant ... Ordinarily a court will not be satisfied that the ‘fresh evidence’ ground is made out unless:
a.	the evidence was not available, or could not with reasonable diligence have become available, at the trial;
b.	the evidence is relevant and otherwise admissible;
c.	the evidence is apparently credible (or at least capable of belief); and
d.	there is a significant possibility (or maybe a likelihood) that the evidence, if believed, would have led the jury, acting reasonably, to acquit the applicant if the evidence had been before it at the trial ... If there is any practical difference between a test expressed in terms of ‘a significant possibility’ and a test expressed in terms of ‘a likelihood’, none has thus far been suggested; for it has been said that ‘likelihood’ is no more than ‘a substantial — a ‘real and not remote’ — chance regardless of whether it is less or more than 50 per cent’ ... 
84	We would add the following to the matters set out in paragraphs (c) and (d).  First, the formulation of ‘a significant possibility’ has been adopted by the High Court a number of times.
85	In Gallagher v The Queen, four of the five justices posed the test as whether the court considers that there is a significant possibility that the jury, acting reasonably, would have acquitted the appellant had the fresh evidence been before it at the trial.  Justice Dawson tied the issue back to the ultimate question, observing that the court would need to conclude ‘that a jury might entertain a reasonable doubt about the guilt of the appellant’.  However, this did not involve a different standard to that embodied within the significant possibility test.
86	 Secondly, the requirement that the assessment of the possibility of an acquittal occur on the hypothesis that the evidence is believed needs some qualification.  The credibility of the fresh evidence and the possibly that a jury would have acquitted an accused are obviously interrelated.  In some cases, if the fresh evidence is believed an acquittal may have been inevitable.  In others, fresh evidence that is obviously true may nevertheless have little or no bearing on the outcome.  Within that spectrum, it will be necessary to assess both the credibility and potency of the evidence.
87	Further, a jury acting reasonably might, in the face of the additional evidence, acquit an accused on the basis that the fresh evidence gives rise to a reasonable doubt notwithstanding that it could not be affirmatively satisfied as to the truth of that evidence.
88	In R v AHK, President Winneke discussed the three general considerations that should guide the court in assessing whether there has been a miscarriage of justice as follows:
The first of these, although it is not an inflexible rule, is that the conviction will not usually be set aside if the evidence relied on could, with reasonable diligence, have been produced by the accused at his trial.  The second and third considerations, which are inter-related, are that the ’fresh evidence’ is apparently credible or plausible or, at least, capable of belief and, in the view of the Court, is sufficiently relevant and cogent in the sense that, if considered in combination with the evidence already given at the trial, the Court considers that there is ‘a significant possibility that the jury, acting reasonably, would have acquitted the applicant of the charge if the new evidence had been before it in the trial’.
89	In Mickelberg v The Queen, Toohey and Gaudron JJ observed that:
The underlying rationale for a court of criminal appeal setting aside a conviction on the ground of fresh evidence is that the absence of that evidence from the trial was, in effect, a miscarriage of justice.  There is no miscarriage of justice in the failure to call evidence at trial if that evidence was then available, or, with reasonable diligence, could have been available.
90	Addressing the quality of the evidence, their Honours continued:
There is no very precise formulation of the quality which must attach to fresh evidence before it will ground a successful appeal.  It has been said that it must be ‘credible’, ‘cogent’, ‘relevant’, ‘plausible’.  In essence, the fresh evidence must be such that, when viewed in combination with the evidence given at trial, it can be said that the jury would have been likely to entertain a reasonable doubt about the guilt of the accused if all the evidence had been before it or, if there be a practical difference, that there is ‘a significant possibility that the jury, acting reasonably, would have acquitted the [accused]’.  If there is a difference it is not material to the outcome of the present applications.  For ease of expression we proceed by reference to the formulation that the jury is likely to have entertained reasonable doubt had all the evidence been before it, noting, in that context, that it is necessary that the fresh evidence be credible in the sense that a reasonable jury could accept it as true, but it is not necessary that the court should think it likely that a reasonable jury would believe it.
91	In Rodi v Western Australia, the High Court explained that the credibility or cogency of the fresh evidence, which impugns the verdict at trial, is not to be decided by whether the appellate court ‘acting upon its own view’ accepts the evidence as true, but ‘rather upon that view most favourable to an appellant, which in the court’s view a jury of reasonable men may properly take’.
92	It follows that the credibility or plausibility of the evidence is to be assessed by this Court asking whether it is capable of belief by a jury, acting reasonably.  If the evidence is not capable of such belief there will be no substantial miscarriage of justice in it not having been before the jury.  However, that factor is not always a separate or discrete question that must be posed, and answered, before the Court comes to the ultimate issue.  Rather, the Court’s assessment of the credibility or plausibility of the evidence is part of the overall analysis of whether, had the evidence been available at trial, in the context of the evidence as a whole, there is a significant possibility that there would have been an acquittal.
93	In light of those principles, the first question is whether the evidence contained in LH’s April 2019 statement is ‘fresh evidence’.  In its written case, the respondent proceeded on the basis that this was so, and no issue was taken on that score before this Court.  We shall proceed on that basis.  That is, that the respondent accepts that the applicants could not have obtained the evidence prior to the trial by the exercise of reasonable diligence.  They cannot be blamed, nor held responsible for, the fact that the evidence emerged after their convictions.  
94	The hypothetical question of how the jury might have viewed the fresh evidence had it been given at the trial is complicated in this case.
95	First, LH’s substantive evidence as to what C said to her is not, in itself, implausible.  Although the respondent submitted that the evidence is inconsistent with the account given by LH to police in her statement, we are not persuaded that this is so.  The respondent submitted that the police statement is emphatic in recording C saying that she had been raped.  In that statement, LH states of the rape: ‘… she told me it was Luke Merryfull and Shaun Bloomfield.’  Plainly, adding that when asked whether she had consented, C had ‘folded her arms … put her head down and in a low voice said “Luke maybe, but not Shaun”’, the tenor of the statement is altered quite fundamentally.
96	However, read as a whole, the fresh evidence would not necessarily render the statement internally contradictory in an entirely implausible way.  Rather, it could simply reflect the emerging account given by C over the course of the conversation that LH said occurred within a window of ‘a good hour and a half’, when C was in the kitchen and before her parents arrived.
97	The problem with the new evidence is not that it cannot sit with the evidence that LH had given previously.  Nor does the new evidence require LH to recant her earlier evidence.  The main reason why its cogency may now be called into question is because the account was not given earlier.  In addition, it is to be noted that RH, who was also present when her mother spoke with C, did not give a similar account in her evidence at trial.  Nor, for that matter, did RH give evidence in this Court in support of the present application.  The respondent submitted that the new evidence is nothing more than recent invention, conjured up by LH to help Merryfull after he had been convicted and sentenced.
98	Of course, the trial was the third formal occasion on which LH was asked about her interactions with C on the morning in question; the police interview and the committal providing the two earlier opportunities.  Had LH given this evidence at the trial, the prosecution could have cross-examined her, under s 38 of the Evidence Act, on the basis that it was recent invention, however, the force of the prosecution’s attack on the cogency of the new evidence would have been blunted, perhaps to a significant degree.  Because its frailty lies in the fact that it was not given at trial, it is difficult to apply the conventional approach of asking what the jury would have made of it had it in fact been adduced.  For that reason, it would be artificial to ask what would have happened had this evidence been led at the trial.  Equally, it does not accord with the task of this Court to ask itself how the evidence of LH might be viewed by a potential jury, if another trial were to be held in the future.
99	Bearing in mind the real issue is whether there has been a substantial miscarriage of justice, it seems to us that the only way we can determine that question is to consider how the jury would have viewed LH’s evidence, with all of its obvious infirmities that have been exposed.
100	Before explaining our conclusion on that point, it is to be remembered that the critical evidence that impugns the jury’s verdict is what C told LH about consent.  However, the credibility of that account appears to us to be inextricably bound up with the credibility of LH’s evidence as to why she had not revealed this critical concession on the part of C earlier.  In other words, if the jury did not believe her reasons for not having brought forward her new account at an earlier stage, it seems difficult to see how the jury could accept the substantive evidence itself.
101	Of course, in assessing the credibility of a witness there is no necessary order for a jury to adopt.  In assessing whether the jury believes the account of why the fresh evidence was withheld, the jury will inevitably consider the fresh evidence itself.  The content of that evidence may bear upon the general credibility of the witness.  However, there does not appear to be a pathway reasonably open to the jury to determine to accept the substantive evidence without first assessing whether it believed LH’s explanation for not having spoken up at an earlier stage.
102	In theory, there might be a number of other reasons why LH had not told anyone of what C had said at an earlier time.  She may have been reluctant to enter the fray, and to be seen taking sides in a small country town where, her evidence suggested, there was understandable friction and anxiety.  Further, on its face, the new evidence seems to exculpate Merryfull, but to provide no comfort to Bloomfield.  However, none of these reasons, or indeed any others, were advanced by LH.  They were not put to her in cross-examination.  In those circumstances, we consider that there is no proper basis for a jury, acting reasonably, to accept a different, unarticulated reason for LH having chosen to remain silent.
103	LH’s account is that she was waiting for the opportunity to provide a fuller description of her conversation with C.  And, from her perspective, that opportunity never came.  We start with the observation that the infirmities in that account are very real, and there is good reason to have considerable scepticism about what LH now has to say.
104	In her statement to police, LH said that she had asked C whether she had said ‘no’.  That can only relate to the issue of consent both from the perspective of C and from the perspective of the applicants.  Given that the topic had been raised, it is odd that LH did not then volunteer that she had also asked C directly whether she had consented.
105	In this respect, it is notable that LH is a nurse in a regional town.  She must have had extensive experience of stressful environments, and understood the need to convey important matters clearly and accurately.  Moreover, as she conceded in response to questioning from the Court, she was aware, at the time, of the central importance of what C had said to her to the matters being investigated by the police.
106	Similarly, both the committal and the trial provided an opportunity for LH to give a more detailed account of what C had said to her that morning.
107	Most importantly perhaps, at the trial, the prosecutor asked LH about the conversation LH had with C on the morning in question.  Having directed LH’s attention to that specific topic, the prosecutor asked, in an open-ended way: ‘And what did she tell you?’  LH’s reply bears repeating:
Well, she – she said that she had been raped.  I can’t remember exactly what she said but the impression that I got was that there may have been a non-consensual event occur.  But there was, you know, it was all a bit blurry, she said, when I asked her specific questions, she would just say it was all a bit blurry and she didn't want to answer my questions that were directed to her.
108	That answer directly covers what C had said in answer to LH’s ‘specific questions’, and her concern about what may have been a ‘non-consensual event’.  LH’s evidence in this Court that she did not believe she had a proper opportunity to reveal the critical information contained in her new statement demands careful scrutiny, and must be approached with some degree of cynicism.
109	However, there are other factors in the balance.
110	First, LH’s account that the initial police interview over the phone occupied only 15 to 20 minutes, and that she was asked to focus on the facts might be thought to support her view that she considered, at the time, that she would have a further opportunity to provide more detail.
111	At the committal, LH was not asked whether she wished to alter her statement or add anything to it.  That, of itself, was unusual, since such a question is almost routine when a witness is called, and invited to adopt a previous statement.  The focus of the process, from the perspective of the applicants, was to tie LH down to her account as to what C had said.  There was no forensic reason for them to explore with her whether there might be more detail that she had left out.  There was no reason why the prosecution would seek to do so either.
112	A fair reading of LH’s evidence at trial, understood against the background of the course of evidence of RH (whose evidence had immediately preceded that of LH), lends some credence to LH’s protestation that she had felt very constrained in what she could say in Court.  Almost immediately after LH was called, the jury was asked to leave the Court, and LH shown her statement.  It is not inconceivable that she might have felt that she had done something wrong, or was unsure about what was happening.  Indeed, LH’s evidence in this Court was that she did not understand what was going on.
113	Further, when LH’s evidence resumed in the presence of the jury, the prosecutor, in effect, cross-examined her on her statement.  He sought to elicit its contents in full, but without elaboration or qualification.  No criticism can be levelled at him on that account.  There was no reason for him to have any inkling that the witness had some critical, but hitherto unarticulated, evidence to give in addition to what she had previously stated.
114	Notwithstanding the open-ended question asked by the prosecutor, to tell the jury what C had told her, LH’s evidence that she felt constrained from doing so is, in our view, capable of being accepted.  Whether the level of constraint was such as to prevent her from revealing evidence that she knew to be of vital importance is another question.  We have strong reservations about accepting that account, and we have thought long and hard about whether it meets the test of being capable of belief.
115	However, we must also take into account that it is a very serious step for someone in LH’s position to come forward, and give perjured evidence.  There is nothing to suggest that she is anything other than a deeply conscientious person, of unblemished record.  Further, the evidence is that she knew all of the families involved, and was close to both the Bloomfield and Merryfull families.  Her account of what C said to her on the morning is in some respects equivocal.  It is accompanied by a description of C’s manner that appears natural, rather than contrived.  It is perhaps striking that LH would lie about C’s account in order to assist Merryfull, but at the same time craft a lie that might harm Bloomfield’s interests.
116	Ultimately, we are satisfied that a jury, acting reasonably, could accept LH’s new evidence, when her account is considered as a whole.  As the High Court has made clear, whether or not this Court accepts her evidence as truthful is not the test that we must apply.
117	If a jury accepted that C had said what is now attributed to her, or found that there was a real possibility that she had done so, then in our view there is a significant possibility that Merryfull might have been acquitted.  This was a statement by C that went to the only critical issue in the trial, made shortly after the alleged events, and at a time when C would have had no reason to lie.
118	Bloomfield submitted that the vice in Merryfull’s trial also impacted upon his trial.  It is true that the fresh evidence seems wholly adverse to Bloomfield.  However, as will often be the case where the impugned conduct of each accused is so closely related in both time and nature, were Merryfull to be granted a retrial on the basis of its emergence, and Bloomfield not, there is a danger that inconsistent verdicts would result.  A new jury may reasonably decide that, on the basis of LH’s complete evidence, the first act of penetration, between C and Merryfull, was consensual.  That finding might reasonably impact upon a jury’s assessment of the crucial issue of consent in respect to the charges against Bloomfield.  The prosecution case against Bloomfield was that he was present when Merryfull raped C.  At trial, the jury may have reasoned that it was inherently most unlikely that C, having been raped by Merryfull, then consented to sex with Bloomfield immediately thereafter (or that he believed she was consenting).  On the other hand, if the jury found that the initial sexual acts with Merryfull were consensual and in Bloomfield’s presence, then this path of reasoning would not be open.  That is, an acquittal in Merryfull’s case — the possibility of which we have already found this new evidence introduces — also makes an acquittal in Bloomfield’s case a significant possibility.
119	Further, if, given the benefit of LH’s complete account of her exchanges with C, a jury prefers Merryfull’s version of events to C’s, such a finding could bear upon the credibility of C.  The same jury, having found that C gave an inaccurate account of what took place between her and Merryfull, might very reasonably view her account of the events concerning Bloomfield quite differently — and more favourably to Bloomfield — than they would without the benefit of the fresh evidence.
120	Both of these considerations — the bearing that the fresh evidence might reasonably have upon the central question of consent and the credibility of C — suggest strongly that fairness requires that both applicants’ cases be decided by a jury in possession of the same evidence.
121	We are persuaded that by reason of the fresh evidence there was a substantial miscarriage of justice in respect of both applications.
122	We will grant leave to appeal on ground 3 in Merryfull’s application, and ground 2 in that of Bloomfield.  We will allow each appeal.  Both applicants must be retried.
–––