Col v R

[2013] NSWCCA 302

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Col v R [2013] NSWCCA 302
Hearing dates:	29 August 2013
Decision date:	03 December 2013
Before:	Latham J at [1] Rothman J at [71] Davies J at [78]
Decision:	Appeal against conviction dismissed
Catchwords:	CRIMINAL LAW - appeal against conviction - offence of causing grievous bodily harm with intent to cause grievous bodily harm - appellant threw methylated spirits onto bed where victim lay and ignited bedclothes - victim retracted earlier statement to police - whether trial judge erred in admitting into evidence complainant's statement to police - whether use of victim's statement to police resulted in miscarriage of justice - whether use of evidence disclosing consciousness of guilt resulted in miscarriage of justice - whether Zoneff direction was required - whether verdict is unreasonable or cannot be supported having regard to evidence - appeal dismissed
Legislation Cited:	Crimes Act 1990 Evidence Act 1995 Evidence Amendment Act 2007
Cases Cited:	Adam v The Queen [2001] HCA 57 Baini v The Queen [2012] HCA 59 ; 246 CLR 469 Brendon Singh v R [2011] NSWCCA 100 Butera v DPP (Vic) (1987) 164 CLR 180 Driscoll v The Queen (1977) 137 CLR 517 Edwards v The Queen (1993) 178 CLR 193 Gateley v The Queen [2007] HCA 55 ; (2007) 232 CLR 208 Lee v R [2013] NSWCCA 68 Libke v The Queen [2007] HCA 30 ; 230 CLR 559 M v The Queen [1994] HCA 63 ; (1994) 181 CLR 487 MFA v The Queen [2002] HCA 53 ; (2002) 213 CLR 606 R v Aslett [2006] NSWCCA 49 R v Fletcher [2005] NSWCCA 338 R v Heyde (1990) 20 NSWLR 234 R v Michael Anthony Ryan (No.7) [2012] NSWSC 1160 ; 218 A Crim R 384. R v NZ [2005] NSWCCA 278 ; (2005) 63 NSWLR 628 R v XY [2013] NSWCCA 121 SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400 Zoneff v The Queen [2000] HCA 28 ; 200 CLR 234
Category:	Principal judgment
Parties:	Murat Col - (Appellant) Regina - (Crown Respondent)
Representation:	Counsel: T Gartelmann - (Appellant) S Herbert - (Crown Respondent) Solicitors: Hanby & Associates - (Appellant) Solicitor for Public Prosecutions - (Crown Respondent)
File Number(s):	2009/61584
Decision under appeal	Jurisdiction: 9101 Date of Decision: 2011-08-12 00:00:00 Before: Lakatos SC DCJ File Number(s): 2009/61584

Judgment

1. LATHAM J : The appellant, Murat Col, appeals against his conviction after a trial before Lakatos SC DCJ in August 2011 with respect to the offence of causing grievous bodily harm with intent to cause grievous bodily harm pursuant to s 33(1)(b) of the Crimes Act 1990. There is no appeal against sentence.

The Crown Case

1. At the time of the offence, the appellant was 40 years of age and lived with his de facto partner, Maryanne Scott, who was the victim of the offence. The circumstances of the offence summarised below derives substantially from a statement provided by the victim to police but retracted shortly before the appellant's trial.

1. On 7 August 2009, the appellant attended an evening barbeque. At around 8:30 pm the victim called the appellant on his mobile phone, becoming upset because she had expected the appellant to be home by that time. Later on, the appellant tried to call the victim several times but the victim did not answer the phone.

1. The appellant returned home at approximately 10 pm. The victim accused him of lying about the presence of women at the barbeque. The appellant became angry that the victim had not answered her phone. The victim went upstairs, put on her pyjamas and got into bed. The appellant came into the bedroom, told her she could not sleep, and dragged her from the bed by her pyjama pants, tearing the drawstring of her pyjama pants.

1. The appellant dragged the victim down the hallway and partially down the stairs. The victim told the appellant to stop as he was hurting her and he did so. She returned to the en suite bathroom in the bedroom and took off her pyjama pants.

1. The appellant followed her with her mobile phone in his hand and proceeded to smash it. He hit the victim in the face with the back of his hand and she went back to bed. The victim heard the appellant making noise downstairs in what sounded like the opening and closing of cupboards.

1. The appellant came upstairs and said to the victim that he would burn the bed or the house or "it all down". The victim felt liquid being splashed across her and the bed. She recognised the smell as being methylated spirits. The victim jumped up and knelt on the bed, facing the appellant and said to him, "What are you doing?" She heard him flicking a cigarette lighter a couple of times, causing the methylated spirits to ignite.

1. The victim saw flames all over her and heard the appellant say, "Oh, fuck". The victim ran into the spare bedroom whilst trying to remove her jumper. She threw the burning jumper onto the floor of the spare room and ran back towards the shower. The appellant grabbed her and carried her to the shower in the main bathroom where she stayed until the flames were extinguished. The victim cried for the appellant to get help.

1. At 11:55 pm, the appellant called "000", telling the operator, "Methylated spirits, got ah, ignited and we got burnt". At midnight on 8 August 2009, the appellant called "000" again. The appellant is recorded as saying, "Don't tell them...Don't tell the cops please..." Later during the call, the victim is heard saying, "I won't say anything" to which the appellant replies, "Do not say what happened". The victim says to the appellant, "You're too good to me".

Circumstances Following the Offence

1. When the ambulance arrived, an ambulance officer, Kiri Muller, asked the victim what had happened. The victim claimed that there had been an accident.

1. A senior ambulance officer, Jacqueline Christian, treated the victim in the ambulance. Ms Christian asked the victim, "Did he do this to you?" The victim replied, "Yes". The victim said that she had been trying to get away from the male in the bed and he had poured "metho" on the bed and set it alight with a cigarette lighter.

1. Ms Muller was driving the ambulance back to the hospital when she heard Ms Christian say to the victim, "So he did this to you". Ms Muller did not hear the victim's reply but saw the victim nodding when she looked in the rear view mirror. As a result of this, Ms Muller decided to contact the police.

1. The victim underwent two surgical procedures and remained in the Intensive Care Unit at Concord Hospital. She later underwent a third procedure.

The Victim's Accounts to Family and Friends

1. The victim's sister, Leanne Scott, visited the victim on the night of 8 August 2009. The victim was unable to speak as there were breathing tubes going down her throat. She communicated with Ms Scott by writing on three pieces of A4 paper. The victim wrote, "We had a fight, he had a lighter, he flick it and my clothes went up". She also wrote "I'm not charging him" and "He didn't mean it".

1. The following day, the victim was able to speak. She told Ms Scott that she had been lying in bed when the appellant kicked and punched her, and the next minute he had flicked the lighter and she was on fire. On 10 August 2009, Ms Scott attended the police station and handed over the three A4 pages with handwriting. The A4 pages were dated and signed by Ms Scott on 10 August 2009.

1. A friend of the victim, Vicky Faulds, visited the victim on 9 August 2009. The victim told Ms Faulds that she had argued with the appellant about women being present at the barbeque, as the appellant had informed her that it was a male only event. She also told Ms Faulds that the appellant had been angry with her for refusing to answer the phone and that the appellant had taken her mobile phone and smashed it. The victim said that the appellant dragged her downstairs and pushed her against a wall and hit her. After the victim went back to bed, she said the appellant came into the bedroom and threw some "metho" at the quilt. The appellant had a lighter in his hand and when the methylated spirits ignited the victim ran out of the bedroom and ripped off her pyjama top. The victim said that she raced to the shower whilst the appellant was trying to put out the fire in a pile of clothes that had caught alight in the spare room when the victim had thrown her burning pyjama top onto it.

1. The victim asked Ms Faulds not to say anything about what she had told her. When Ms Faulds asked the victim whether the appellant had thrown the methylated spirits at her, the victim replied "no" and said it was thrown on the quilt and that he had not meant it. However, the victim said later that there had been a fight in which the appellant had thrown the methylated spirits at her and had teased her with the lighter while standing at the foot of the bed.

1. Another friend of the victim, Michelle Brown, first visited the victim on 8 August 2009, thereafter visiting her around 3 times a week. During one of her visits, the victim told Ms Brown that the appellant had caused her injuries, asking, "Why would he do this?" The victim told Ms Brown that there had been a fight during which the appellant had said that if the victim did not get out of bed he would douse her with "methyl" and that he was "flickering the light, and then it just went up". The victim also told Ms Brown that the appellant had told the victim to tell the ambulance officers that it had been an accident.

1. The victim's son, Ryan Coyne, first visited the victim on 8 August 2009, thereafter visiting her daily until 30 October 2009 when she was discharged. In a conversation that took place about two weeks after the first visit, the victim told Mr Coyne that the appellant had thrown methylated spirits on her and had set her on fire.

1. A friend of the victim, Leah Tasker, visited the victim on 9 August 2009. On that day, she entered the room on her own to find that the victim's sister Ms Scott was also in the room. The victim told Ms Tasker and Ms Scott that she and the appellant had been arguing, that he was punching her when she asked him to stop and that she had wanted to sleep.

The Victim's Statement to Police and its Retraction.

1. On three separate occasions on 24 and 27 August and 3 September 2009, a police officer, Plain Clothes Constable Heffernan, visited the victim for the purposes of obtaining a statement. Constable Heffernan brought with him the three A4 pages that the victim had written and that Ms Scott had brought in to the police station. Constable Heffernan also had pictures of a broken mobile phone. In the statement she provided to police, the victim gave a detailed account of the events of the night which was consistent with the accounts already provided to her family and friends, and confirmed that she recognised some of the writing on three A4 pages as being her handwriting. She also stated that three photos of a broken mobile phone shown to her were those of her phone that had been smashed on the night. The statement was dated 24 August 2009 and the bottom of each page was signed by the victim

1. On 28 July 2011, the victim faxed a handwritten statement to the Office of the Director of Public Prosecutions and to the legal representatives of the appellant. The victim claimed that she had been heavily sedated and not fully conscious at the hospital when her friends and family had "told [her] what they thought had happened on the night". She also wrote that her statement to police was "not the truth" and that she had no recollection of the events described upon reading it again.

1. During the trial the victim was cross-examined by the prosecution as an unfavourable witness pursuant to s 38 of the Evidence Act 1995. She maintained that the appellant did not douse her with methylated spirits and set her on fire and that the version in the police statement was not the truth even though she believed it was when she provided the statement. The victim was cross-examined on the contents of her statement and versions of events she had given to the ambulance officer, family and friends.

The Defence Case

1. The appellant's case at trial was that after returning home from the barbeque, he lit a cigar and went upstairs to smoke the cigar on the balcony. On reaching the balcony door, the appellant found that he could not open it and returned to the bedroom where the victim was sleeping. The appellant leant over the bed to give the victim a kiss before returning downstairs to finish the cigar. As the appellant walked back up the stairs, he smelt smoke coming from the bedroom and when he reached the bedroom he saw smoke coming out of the bed in which the victim was asleep. The appellant saw a bottle on the tallboy and thinking it was water, poured it on the bed. The methylated spirits caught alight and the appellant tried to pat the flame down, causing burns to his hand. He then grabbed the victim and put her in the shower. He accidentally stood on the mobile phone as he went to search for burning clothes in the spare room.

Grounds of Appeal

1. The appellant appeals on the following grounds:

(1)   The judge erred in admitting into evidence the victim's statement to investigating police

(2)   A miscarriage of justice occurred as a result of the use made of the victim's statement to investigating police

(3)   A miscarriage of justice occurred as a result of the use made of evidence disclosing a consciousness of guilt

(4)   The verdict is unreasonable or cannot be supported having regard to the evidence

Grounds One and Two - Error in Admitting into Evidence the Victim's Statement to Police and Miscarriage of Justice Arising from its Use.

1. It is convenient to deal with these two grounds together. Ground one complains of error in admitting the physical document as an exhibit. During the hearing of the appeal, contrary to what the appellant appeared to be submitting in writing, the appellant acknowledged that the contents of the statement were relevant and admissible in cross-examination as a prior inconsistent statement. However, it was submitted that the jury would have given disproportionate weight to the victim's statement in the circumstances of the trial and that a miscarriage of justice thereby arose (Ground two).

1. The handwritten notes compiled in the hospital were admitted (without objection) as Exhibit A. The victim's police statement and the victim's statement of retraction were tendered by the Crown and became Exhibits O and P respectively. The decision to admit the police statement over objection was made on the basis of the High Court's decision in Adam v The Queen [2001] HCA 57. Consideration was not given to the effect of the amendment of the Evidence Act 1995 (the Act) by the Evidence Amendment Act 2007.

1. At the time of the trial, s 101A of the Evidence Act relevantly provided :-

Credibility evidence, in relation to a witness or other person, is evidence relevant to the credibility of the witness or person that:

(a) is relevant only because it affects the assessment of the credibility of the witness or person, or

(b) is relevant:

(i) because it affects the assessment of the credibility of the witness or person, and

(ii) for some other purpose for which it is not admissible, or cannot be used, because of a provision of Parts 3.2 to 3.6.

1. The appellant submitted that the victim's police statement was 'credibility evidence' as defined in s 101A(b) of the Act because it affected the credibility of the victim and was relevant for an inadmissible purpose, namely a hearsay purpose. The appellant maintained that the statement did not fall within an exception to the hearsay rule. In particular, it did not fall within the exception where the maker of the representations was available to give evidence (s 66), because the representations were made for the purpose of indicating the evidence the person would be able to give: s 66(3).

1. The appellant conceded that the representations contained in the statement were admissible as an exception to the credibility rule, since the statement fell within the exception contained in s 103. It was adduced in cross-examination of the victim by the Crown Prosecutor pursuant to the leave granted under s 38. It could not be seriously contested that the evidence substantially affected the assessment of the credibility of the victim.

1. In addition, the contents of the statement were admissible pursuant to s 106 as a prior inconsistent statement. The Crown Prosecutor complied with the requirements of s 106(1) and the victim denied the substance of the evidence, that is, whilst agreeing that she had received burns after she had been doused with methylated spirits which was ignited, she denied any knowledge of how that occurred and that the conduct of the appellant was deliberate : see R v Michael Anthony Ryan (No.7) [2012] NSWSC 1160 ; 218 A Crim R 384.

1. Once the contents of the statement were admissible for a non hearsay purpose, the representations constituted evidence of the facts : s 60.

1. Counsel at trial invoked s 137 of the Evidence Act to justify the exclusion of the victim's police statement, essentially on the same basis as that advanced on the hearing of the appeal, namely, that the jury would apportion too much weight to the statement. How that consideration constituted a danger of unfair prejudice was not entirely made clear, given that it was never submitted that there was a risk that the jury would misuse the contents of the statement and the exercise required by s 137 is not concerned with the attribution of weight by the tribunal of fact : R v XY [2013] NSWCCA 121 at [66], [68], [163] - [168]. The contents of the statement were clear and unambiguous. There was no room for competing inferences arising out of the contents of the statement. The only conceivable use of the statement was to cast doubt on the reliability of the victim or to prove the commission of the offence. In either case, it was not relevantly prejudicial.

1. The probative value of the statement was considerable if accepted by the jury as a truthful version of events. It included material that was wholly consistent with forensic evidence at the scene. Significant material included:

(1)   The victim described being dragged from the bed by the appellant holding onto the waist of her pyjama pants, and tearing them in the process. A torn pyjama drawstring was found close to the bed. The victim could offer no explanation when initially asked about the torn drawstring. She agreed that she could not have been given this information by her family or friends.

(2)   After the appellant had ripped her pyjama pants the victim got into bed wearing only underpants and a top, which she removed once she was alight. When the ambulance arrived she was only wearing a pair of underpants, consistent with the bottoms being removed at an earlier point in time.

(3)   The victim described her mobile phone being broken with the flip part being completely broken off, the battery and back cover separated and the sim card missing. This is an accurate description of the mobile phone as shown in the photographs taken at the scene. In evidence, the victim could offer no explanation as to how her telephone came to be broken and in the position as described in her statement.

(4)   In the statement the victim identified the liquid that was spilt on her as being methylated spirits. In her handwritten statement she only described the appellant as spilling liquid on her and at trial she denied that she had smelt methylated spirits. According to the appellant it would have been quite dark in the bedroom when the appellant entered and poured the methylated spirits on the victim. The victim would not have had the opportunity to see the bottle yet she was able to identify the substance as methylated spirits in her statement.

(5)   The victim stated that she could hear the sound of a cigarette lighter being operated as she heard the flint contacting the wheel of the light. This is consistent with the sound of a Bic lighter, which was found in the bedroom. According to the appellant, the lighter was in his pocket until after the victim was set alight and only fell from his pocket when he removed his mobile phone to call "000". On the victim's evidence and the appellant's version, there was no way that the victim could have been aware that he had taken the lighter from the kitchen to the bedroom.

(6)   The victim stated that she ran into the spare bedroom and threw the burning pyjama top onto a pile of clothes. This is consistent with the fire damage to the spare room.

1. A submission that the judge erred in admitting the statement must be determined on the basis of the material available at the time of the decision and the reasons that were advanced against its admission, not by a retrospective analysis of what use was made of it and what prominence it may have assumed. If the evidence was correctly admitted at the time of the ruling, the only remaining question is whether a miscarriage of justice arose from its admission, having regard to other evidence adduced at trial : R v Fletcher [2005] NSWCCA 338, [36] - [42] per Simpson J (McCllelan CJ at CL agreeing).

1. No submission was advanced at trial that s 43(2) of the Evidence Act precluded the admission of the statement, on the basis that the victim admitted that she had made a prior inconsistent statement. That submission was advanced on the hearing of the appeal. In so far as the victim acknowledged that she had made the statement, but that she was merely relying upon what others had told her, it may be accepted that she was acknowledging that her police statement was inconsistent with her evidence at trial. However, that does not of itself render the statement inadmissible. As Barr J explained in R v Aslett [2006] NSWCCA 49 (Spigelman CJ and Howie J agreeing) at [76] :-

[Under the Evidence Act] there is a purpose in tendering such statements beyond any attack on credibility, namely proof of the facts asserted: s60. Nothing in s43 is directed to the admissibility of any prior inconsistent statement to prove the truth of its assertions. All subs(2) does is ensure that a witness who is about to be attacked on credit is fairly dealt with. Nothing in s43 purports to limit the effect of ss38, 103 or 60.

1. In my view, there was no error in admitting the statement. It had very substantial probative value and there was no risk of unfair prejudice.

1. The appellant next submitted that admission of the victim's statement as an exhibit gave rise to a risk that it would be given undue weight (Driscoll v The Queen (1977) 137 CLR 517 at 542; Butera v DPP (Vic) (1987) 164 CLR 180 at 189 -190). It was submitted that the risk was heightened by the formal nature as well as the comprehensive and detailed content of the statement.

1. The appellant argued that the risk of undue weight had to be assessed in the light of the emphasis given to the exhibit in the Crown Prosecutor's closing address and in the absence of any warning from the judge not to attribute disproportionate weight to the statement. These factors in combination were said to create a real risk that it would be given disproportionate weight relative to other evidence in the trial (R v NZ [2005] NSWCCA 278 ; (2005) 63 NSWLR 628 at [11]; Gateley v The Queen (2007) 232 CLR 208 at [95]).

1. In my view, this argument is misconceived. The victim's statement was not the basis of the evidence she gave at trial. It was not a record of her evidence given at trial. By admitting the statement as an exhibit, the jury were not given access to a reiteration of her evidence. To the contrary, the jury were given an entirely different account to that advanced by the victim at trial. The authorities of NZ and Gately are distinguishable on that basis alone.

1. There was no dispute as to the authenticity of the statement : cf Driscoll. The victim agreed that she had signed the document after reading it in order to acknowledge the truth of what had been written. In Butera, at 198, Dawson J referred to this aspect of Driscoll (that the accused claimed that the record of interview was a fabrication) in determining that the transcript of audio recordings did not attract the same considerations as a document, the veracity of which was disputed.

1. The submission that there is a reasonable possibility that the use made of the victim's statement may have affected the jury's verdict, causing a miscarriage of justice ought be rejected. The discussion in Baini v The Queen [2012] HCA 59 ; 246 CLR 469 at [53]-[56] and in Lee v R [2013] NSWCCA 68 at [29]-[34] demonstrates that, for the appellant to succeed on ground two, he must establish a causal connection between the admission of the statement and the verdict, in the sense that, but for the admission of the statement, the appellant might have been acquitted. The principal impediment to success on this ground is that there was no error in admitting the statement and there was other copious evidence originating from the victim of the appellant's deliberate conduct leading to the ignition of the bedclothes. Exhibit A fell into that category. In addition, the jury had the advantage of weighing the police statement against the victim's retraction.

1. The trial judge gave appropriate directions, including :-

This case is a little different from many criminal prosecutions brought in these courts. In most cases but certainly not all, an alleged victim of crime provides a police statement, giving his or her version of the offence and will give evidence in the trial, supportive of that version. In the present case, there has been much focus by both parties on the original police statement provided by Ms Scott, by reason of the fact that she has not adhered to that version, in the trial itself. Accordingly the parties have spent a significant part of the trial examining the circumstances in which the initial police statement by Ms Scott was made. The police statement which is exhibit O has been admitted into evidence and you will have it available to you in the course of your considerations. It contains a version of events provided by Ms Scott to police in the 3 to 4 weeks after she suffered injuries. It is a matter for you to assess whether the version then supplied by her is the correct version of events and is reliable. If you consider it to be so, it is open to you to use the contents of that statement as part of the evidence. Perhaps you may think an important part of the evidence, upon which you will determine whether the Crown has proved its case beyond a reasonable doubt. In considering whether you accept that the police statement is correct and reliable, you will no doubt have regard to the relevant circumstances in which that statement was made. These include the physical and mental state of Ms Scott when she made the police statement on those three days. The effects of the medication which she had taken on her ability to accurately provide a version of events. Whether or not any of her visitors provided information to her about the alleged events and thus influenced her in her recollection. Whether or not the facts in the police statement were consistent with other accounts she provided to paramedics who attended her and she provided to her family and friends shortly afterwards. The contemporaneous statement she made, those statements at the time about her affection and loyalty towards Mr Col the accused. As well as whether the facts in those statements are consistent with the objective evidence found at the scene. Ladies and gentlemen, these are matters which I suggest you might look at. How you deal with them is a matter for you. Whether you think they are of use is a matter for you but in assessing whether or not you give weight to the statements made by Ms Scott, leading up to her police statement and including it, I suggest that you will need to look and examine those particular issues.

It will also be necessary for you to consider the subsequent statement, exhibit P in which Ms Scott provided a version of events suggestive of accident rather than any criminal conduct by the accused. You will of course consider the evidence given in these proceedings and make your own judgements about the accuracy and reliability of the evidence.

1. Defence counsel did not request any further directions at the end of the Summing Up. The absence of a warning from the trial judge against attributing too much weight to the statement was not necessary and was not sought. Rule 4 applies.

1. Disregarding the victim's statement, the accounts given by the victim to medical personnel, members of her family and friends, Exhibit A and the objective evidence in combination amounted to a strong Crown case. The retraction by the victim only four days before the commencement of the trial and the victim's evidence at trial did very little to undermine it.

1. I would dismiss grounds one and two.

Ground Three : Miscarriage of Justice Arising from Consciousness of Guilt Evidence.

1. This ground is focussed upon two pieces of evidence in the trial, namely, the appellant's attempts to dissuade the victim from telling the ambulance personnel and police "what happened" and the appellant's account of how he came to move the bottle of methylated spirits onto the rear of the upper shelf of the walk in wardrobe, after the ambulance arrived.

1. The recording of the "000" call was Exhibit L at trial. The terms of the recorded conversation that are the subject of this ground are set out at [9] above.

1. In the course of examination in chief, the appellant said that he did not remember what he said during the "000" call. In cross-examination, the text of the recorded statements was put to the appellant and he continued to claim that he had no memory of those words. He did not deny saying them. The Crown Prosecutor put to the appellant that he was "concerned that [he] had done something very wrong [and] concerned that [the victim not] say anything to the police about what [he] had done to cause that situation." The appellant refuted those suggestions.

1. In the course of the Crown Prosecutor's closing address, he said :-

If ... this was some inadvertent accident where there hadn't been any sort of domestic fighting beforehand, there hadn't been any dragging down the stairs or anything like that, and he simply came to the rescue or the aid of Ms Scott, why on earth would he be saying, "don't tell the cops please". He would have a perfectly reasonable explanation as to him having made a mistake in terms of tipping - it is a matter for you whether it is a reasonable explanation - as to tipping methylated spirits over her thinking it was water. I ask you to examine that, members of the jury, that whole scenario. Does it ring true to you members of the jury, this suggestion and the accused's evidence that he grabbed this bottle thinking it was a bottle of water and then poured it on the already ignited it seems, Mary Anne Scott or the bed.

...........................................................................

If the accused had done nothing wrong, why is she not going to say anything, and why is he saying, "don't say what happened".

1. In the closing address of the appellant's counsel, it was submitted that the appellant's entreaty to the victim not to "tell the cops" was explicable by the fact that the appellant had made a terrible mistake throwing methylated spirits on the victim and that "he was afraid about how it might look."

1. Exhibit K at trial consisted of four photographs, three of which depicted the empty bottle of methylated spirits at the rear of an upper shelf in the walk-in wardrobe of the bedroom occupied by the appellant and Ms Scott. The fourth photograph was a close-up view of the label on the bottle of methylated spirits. The exhibit was tendered during the Crown's cross-examination of the victim. The victim identified the bottle in the photograph as the relevant bottle of methylated spirits and denied any knowledge of how it came to be in that position in the wardrobe.

1. During cross-examination of the appellant, he was asked if he had placed the bottle on the upper shelf of the wardrobe. The appellant claimed that after the ambulance had arrived at the property, he returned inside the house because he did not have his keys or wallet, that he found his keys but not his wallet and so he returned upstairs, came across the bottle as he did so, picked it up, "didn't really think much of it and ... just tossed it."

1. The appellant further acknowledged in cross-examination that he had looked at the label and read "methylated spirits" before throwing the bottle into the wardrobe and at the time that he did so, he had already come to the realisation that it was methylated spirits that he had poured on to the victim. The Crown Prosecutor put the allegation to the appellant that he had deliberately poured methylated spirits onto the bed clothes and set the bed alight, after an argument with the victim. The Crown Prosecutor then suggested to the appellant that "the reason why the methylated spirits bottle was in the upper shelf of the walk-in wardrobe area was because you realised that that was implicating you in having done precisely what I've just been putting to you?" The appellant denied that suggestion.

1. During the Crown's closing address, the Crown Prosecutor suggested that the appellant was "trying to hide the evidence by putting [the bottle] where he did." After the address, the submission made to the jury with respect to the methylated spirits bottle was clarified between the Crown Prosecutor, the appellant's counsel and the trial judge. The Crown maintained that it was available to the jury to draw the inference that the appellant consciously attempted to hide the methylated spirits bottle. The appellant's counsel agreed that the inference was available and did not require any correction, beyond a request that the trial judge read the questions and answers to the jury. Ultimately, that was what the trial judge did. In addition, the trial judge said :-

I should say at this point that Mr Crown in his submissions made the submission that the reason that the accused threw the bottle away was that he was hiding evidence. It is certainly true that no such specific proposition was put to Mr Col to allow him to answer it. The Crown as I apprehended, intended that to be a submission as an inference that you could draw from the facts and the evidence that he would rely upon, as I understand it, is the passage I have just read to you.

1. In short, the principal use which was made of the "000" call and the appellant's conduct with respect to the methylated spirits bottle was to rebut the alternative explanation advanced by the defence, namely that of accident, in response to a circumstantial Crown case. The judge confirmed the basis of the Crown case in the summing up. After giving an unexceptional direction to the jury about the drawing of inferences and the importance of excluding other reasonable alternatives, the judge said :-

How does that apply in the present case? In the present case the Crown asks you to draw an inference that given the presence, the location and condition of various physical exhibits, the second written statement of Ms Scott, the handwritten one, the evidence of the accused cannot be the true position. He points to the presence of the methylated spirits bottle in the bedroom. He points to the presence of the cap of that bottle on the bed, to the presence of the mobile phone in a broken state near the bed, the unexplained absence of the SIM card to that phone, of the ultimate and unexplained location of the metho bottle in the wardrobe, why it got there, and as to the presence of the torn pyjama cord near the bed where Ms Scott was originally lying.

The accused argues as against those that there are other reasonable explanations for those matters which are not consistent with the guilt of the accused. His counsel contends that the damage to the phone could equally have been caused, as the accused said in evidence, by his stepping on the phone in the aftermath of the fire, that the other damage to the pyjama cord and the like could have occurred in the subsequent chaos when the fire went out of control, that the metho bottle and its presence in the bedroom had a perfectly rational explanation, namely it had been used the night before for the purpose of assisting the accused administer steroids, that the lighter and its presence in the bedroom was explained by the fact that it had been in the accused's pocket and dropped out of his pocket as he reached in to use the phone to call 000 and that the initial fire in the bed may have been caused by his dropping parts of a lit cigar onto the bed.

So ladies and gentlemen, when you consider what inferences you draw from the physical facts, you will weigh up all of those and you will say to yourself "well, is the conclusion that the Crown asks me to draw the only rational and reasonable conclusion or is what the accused says and his counsel on his behalf argued, a reasonable alternative."

1. The appellant submits that, to the extent that the cross-examination of the appellant and the Crown Prosecutor's submissions suggested that the appellant's words and conduct amounted to a consciousness of guilt, a direction such as that discussed in Zoneff v The Queen [2000] HCA 28 ; 200 CLR 234 ought to have been given.

1. In Zoneff, the accused was cross-examined by the Crown Prosecutor in terms that suggested he told a number of lies both in and out of court, but because the accused was self represented, there was no Crown address. An incomplete and unsatisfactory Edwards direction (Edwards v The Queen (1993) 178 CLR 193) was given by the trial judge, in circumstances where the issue of lies could only have gone to the credit of the accused. It was against that background that the High Court suggested the following direction :-

You have heard a lot of questions, which attribute lies to the accused. You will make up your own mind about whether he was telling lies and if he was, whether he was doing so deliberately. It is for you to decide what significance those suggested lies have in relation to the issues in the case but I give you this warning: do not follow a process of reasoning to the effect that just because a person is shown to have told a lie about something, that is evidence of guilt.

1. There are three limbs to the direction. The first is that it is a matter of fact for the jury to determine whether deliberate lies were told. The second is it is a matter for the jury what significance they attach to those lies. The third is a warning not to reason directly from an adverse finding on the credibility of the accused to guilt of the offence.

1. In this case, it was not directly alleged that the appellant had told lies or was telling lies in the course of his evidence. It may be accepted that the appellant's credibility was in issue to the extent that the Crown case was that his account of the accidental ignition of the bedclothes was not worthy of belief. However, there could be no risk that the jury would reason directly towards guilt from an acceptance that the appellant tried to silence the victim or that he had tried to hide incriminating evidence. The jury were instructed that they could not be satisfied beyond reasonable doubt of the appellant's guilt unless they were able to reject the appellant's explanation as a reasonably available one, and only after the appellant's conduct (which was not disputed) was taken together with all the other evidence on which the Crown relied.

1. A Zoneff direction was neither required nor desirable in the circumstances of this case. There was no risk of a misunderstanding on the jury's part as to the use to which they might put the appellant's conduct. It was not submitted at trial or on the hearing of the appeal that the appellant's conduct was incapable of supporting an inference of guilt. More importantly, the directions of the judge conformed to the spirit of what was said in R v Heyde (1990) NSWLR 234 at 244, namely, provided that it is open to the jury to rationally draw an inference that consciousness of guilt motivated the relevant conduct on the part of the accused, the jury should be directed that such an inference cannot be drawn unless other reasonable explanations for the conduct inconsistent with a consciousness of guilt have been excluded.

1. Rule 4 applies to this ground. I would refuse leave to rely upon it.

Ground Four : Unreasonable Verdict

1. The appellant submits that on the whole of the evidence at trial, there remains the reasonable possibility that the appellant did not deliberately set the victim alight and that, in all of the circumstances, it was not open to the jury to be satisfied beyond reasonable doubt that the appellant caused grievous bodily harm with intent to do so.

1. On the hearing of the appeal, the appellant acknowledged that it was open to the jury to reject the appellant's account in evidence at trial, as well as his prior accounts to treating medical practitioners and the evidence of the victim at trial, to the effect that the incident was in the nature of an accident. The appellant also acknowledges that his explanation for the incident, which was effectively adopted by the victim, was inconsistent with objectively reliable evidence and inconsistent with his representations before trial.

1. It is not suggested that an outright acquittal is appropriate, rather that the Court should enter a substituted verdict for the alternative offence of recklessly inflict grievous bodily harm. Whilst acknowledging that it was open to the jury to find that the appellant deliberately threw a volatile liquid onto the bed, in the knowledge that the victim was in the bed, and that the act of flicking the lighter was deliberate, the appellant nonetheless maintained that it was equally open as an inference that the appellant either did not deliberately light the fire or, if he deliberately lit the fire, that he did not intend to set the victim alight. In other words, accepting that the appellant had been violent towards the victim, that she had retreated to the bedroom, that he said "you are not sleeping in the bed tonight", that he went downstairs, retrieved the lighter and methylated spirits from the kitchen cupboard, returned to the bedroom, doused the bed with methylated spirits, uttered the threat that he would burn the bed or the house down, then deliberately flicked the lighter (one or more times from the foot of the bed), it was nonetheless a reasonably available inference that the appellant intended no more than to tease or taunt the victim.

1. Having examined the whole of the evidence at trial, I am of the view that it was open to the jury to be satisfied beyond reasonable doubt that the appellant intentionally caused grievous bodily harm to the victim. In coming to that conclusion, I have not disregarded the fact that the victim told a number of her friends whilst in hospital that the appellant "did not mean it", that the appellant said "Oh fuck" when the fire took hold on the bedclothes and that the appellant immediately grabbed the victim and took her into the shower. Nor have I disregarded the obvious distress on the part of the appellant in the course of the "000" calls and statements to the effect that he did not mean to harm the victim.

1. The test for an unreasonable verdict or one that cannot be supported having regard to the evidence is not satisfied by demonstrating that the jury might have entertained a doubt about the appellant's guilt : Libke v The Queen [2007] HCA 30 ; 230 CLR 559 at [113] ; Lee v The Queen [2013] NSWCCA 68 at [200] - [202]. The evidence "did not require the conclusion that the jury should necessarily have entertained a doubt about the appellant's guilt" : Libke at [113].

1. The evidence that the appellant expressed his intention to "burn it all down" shortly before dousing the bed with methylated spirits, and that he deliberately flicked the lighter, after the victim had knelt in the bed and asked him what he was doing, provided a compelling basis for the jury's verdict, notwithstanding any expressions of regret that followed upon the appellant's realisation of what he had done. There was no necessary inconsistency, in my view, between the appellant taunting the victim and then making good the threat. The jury was required to infer from the appellant's words and conduct that he intended to cause grievous bodily harm to the victim, at the time that he deliberately flicked the lighter. Even if that intention was of a transitory nature, it was sufficient for the purposes of the offence. It was open to the jury to conclude that that was the only reasonably available inference.

1. I would dismiss this ground.

1. I propose that the appeal against conviction be dismissed.

1. ROTHMAN J : I have had the advantage of reading in draft the reasons for judgment of Latham J and the orders she proposes. I agree with those reasons and with the orders proposed. I wish to add some short further comment on the ground of appeal based on an "unreasonable verdict".

1. The test for an unreasonable verdict is whether, on the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt of the guilt of the accused: M v The Queen [1994] HCA 63; (1994) 181 CLR 487, at 493; MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606; SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400, at [14]. The Court is required to make an "independent assessment of the evidence, both as to its sufficiency and its quality".

1. In accordance with that requirement, I have read the evidence and independently assessed whether a reasonable doubt exists. It is always theoretically possible that someone or something that sounds plausible and believable is inaccurate or wrong. It is theoretically possible that a person, who sounds truthful, is in fact being untruthful or inaccurate. It is for that reason that the High Court, in stating the test to be applied, remarked that the Court "must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses": M v The Queen, at 493.

1. Essentially, the Crown case depends on the truth of accounts given by the victim, otherwise than in evidence, to a range of persons, and inferences arising therefrom. Those earlier extra-curial statements are believable, generally consistent with each other such statement, and also consistent with the independent evidence.

1. Further, as is clear from the analysis of Latham J, the alternative view is in some significant respects inconsistent with all of the earlier statements, and with the independent evidence. The jury were in a better position than are we to assess the demeanour of the witnesses. Nevertheless, the whole of the evidence does not, in my view, raise a doubt of the requisite kind and, to the extent one can rely on transcript for this purpose, is consistent with the truth of the earlier extra-curial statements by the victim.

1. I have no reasonable doubt as to the guilt of the appellant. Many cases depend on the jury accepting one version of events and rejecting another; sometimes from one witness. There was a proper basis on which the jury could reject the innocent explanation, and a proper basis for accepting, to the requisite standard, that version, which established guilt.

1. The circumstance that one version in evidence "is accepted and another ... rejected, of itself, and without independent evidence or some other factor affecting that assessment, cannot be a basis upon which a jury verdict is necessarily rendered unreasonable": Brendon Singh v R [2011] NSWCCA 100 at [132]. In this case, I agree with the jury's assessment. At the very least, the "jury's advantage in seeing and hearing the evidence is capable of resolving ... [any] ... doubt" that might otherwise be experienced (M v The Queen, at 494-495). There has been no miscarriage of justice.

1. DAVIES J : I agree with Latham J.

Decision last updated: 03 December 2013