Davey v Tasmania
[2024] TASCCA 11
•20 September 2024
[2024] TASCCA 11
COURT: SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)
CITATION: Davey v Tasmania [2024] TASCCA 11
PARTIES: | DAVEY, Matthew John |
| v | |
| STATE OF TASMANIA | |
FILE NO: | CCA 3120/2021 |
DELIVERED ON: | 20 September 2024 |
DELIVERED AT: | Hobart |
HEARING DATES: | 18 April, 30 May 2024 |
JUDGMENT OF: | Blow CJ, Jago J, Martin AJ |
CATCHWORDS:
Criminal Law – Evidence – Propensity, tendency and co-incidence – Admissibility and relevancy – Tendency and co-incidence evidence under uniform evidence law – Other cases – Attempted murder of partner – Evidence of tendencies during relationship.
Aust Dig Criminal Law [2782]
Criminal Law – Appeal and new trial – Verdict unreasonable or unsupportable having regard to evidence – Appeal dismissed – Attempted murder – Complainant covered in petrol and set on fire – Self-harm defence – Asserted weaknesses in complainant's evidence – Verdict unimpeachable. Aust Dig Criminal Law [3476]
Criminal Law – Appeal and new trial – Particular grounds of appeal -Conduct of prosecutor or prosecution –
Unfair cross-examination of accused – Minor issues – Appropriate directions by judge – No miscarriage of justice.
Aust Dig Criminal Law [3514]
Criminal Law – Appeal and new trial – Particular grounds of appeal – Conduct of defence counsel – Whether incompetent – Reasons for tactical decisions.
Aust Dig Criminal Law [3515]
Jury – Verdicts and findings – Majority verdict – Charge of attempting to commit murder – Not a "trial relating to treason or murder".
Aust Dig Jury [1021]
Legislation:
Juries Act 2003 (Tas), s 43
Cases cited:
Ali v The Queen [2005] HCA 8; 79 ALJR 662
AWK v State of Tasmania [2024] TASCCA 5
Black v R (1993) 179 CLR 44
Browne v Dunn (1893) 6 R 67
Crampton v The Queen [2000] HCA 60; 206 CLR 161
Braslin v Tasmania [2022] TASCCA 8
Diehm v DPP (Nauru) [2013] HCA 42, 303 ALR 42
Festa v The Queen [2001] HCA 72, 208 CLR 593
Hofer v The Queen [2021] HCA 36, 274 CLR 351 Hughes v The Queen [2017] HCA 20, 263 CLR 338 IMM v The Queen [2016] HCA 14, 257 CLR 300
Kanaan v The Queen [2006] NSWCCA 109
Liberato v The Queen (1985) 159 CLR 507
McPhillamy v The Queen [2018] HCA 52, 92 ALJR 1045 Mannah v Western Australia [2016] WASCA 19 Mickelberg v The Queen (1989) 167 CLR 259.
Randall v The Queen [2004] TASSC 42, 146 A Crim R 197 R v Apostilides (1984) 154 CLR 563 R v Birks (1990) 19 NSWLR 677
R v Bauer (a pseudonym) [2018] HCA 40, 266 CLR 56
R v Manunta (1989) 54 SASR 17
R v Szach (1980) 23 SASR 563
R v XY [2013] NSWCCA 121, 84 NSWLR 363
Tasmania v S [2004] TASSC 84
TL v The King [2022] HCA 35, 275 CLR 83
Tooheys Limited v Commissioner of Stamp Duties (NSW) (1961) 105 CLR 602
Whitehorn v The Queen (1983) 152 CLR, 657
REPRESENTATION:
Counsel:
Applicant:
F Cangelosi (Grounds 1-4)/In person
Respondent:
Solicitors:
L Mason SC, L Pennington Respondent:
The Cangelosi Firm
Director of Public Prosecutions
Judgment Number:
[2024] TASCCA 11
Number of paragraphs:
438
Serial No 11/2024
File No CCA 3120/2021
MATTHEW JOHN DAVEY v THE STATE OF TASMANIA REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
BLOW CJ
JAGO J
MARTIN AJ
20 September 2024
Orders of the Court:
Leave to appeal granted.
Appeal dismissed
Serial No 11/2024
File No CCA 3120/2021
MATTHEW JOHN DAVEY v THE STATE OF TASMANIA REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
BLOW CJ
20 September 2024
I have read the judgment of Jago J in draft form. I agree with the orders that she proposes. I agree with the entirety of her Honour's reasons. I would like to say a little about the history of these proceedings.
A hearing of the appeal commenced on 26 April 2023. It later became necessary to reconstitute the Court. In the beginning, a hearing commenced before Jago J, Marshall AJ and myself. The applicant had been granted legal aid for the purpose of arguing some of his grounds of appeal, but not all of them. An arrangement was made for the grounds for which he had legal aid to be fully argued before there was any argument relating to the other grounds. On 26 April 2023 Mr Cangelosi appeared as counsel for the applicant, and four grounds of appeal were fully argued.
At that stage the applicant did not have legal aid in relation to any grounds of appeal relating to the conduct of the defence case by his trial counsel, Mr Richardson. It became apparent that Mr Richardson would have to give evidence and be cross-examined in relation to those grounds. Mr Cangelosi advised the Court that he considered himself "professionally unable to cross-examine Mr Richardson". The Court made an order under s 410 of the Criminal Code requiring Tasmania Legal Aid to give the applicant legal assistance to the extent of providing representation during the giving of evidence by Mr Richardson. At the end of the day, Mr Cangelosi was given leave to withdraw.
The next day, 27 April 2023, the applicant appeared unrepresented and the remaining grounds of appeal, except for those relating to Mr Richardson, were fully argued.
The hearing resumed on 11 October 2023. The applicant was represented by counsel. Mr Richardson began to give evidence and the applicant's new counsel began to cross-examine him. The applicant became unhappy with his counsel's cross-examination, terminated her instructions, and completed the cross-examination himself. It did not finish until the following day. The hearing did not conclude at that point because the grounds of appeal had been amended by adding a ground relating to fresh evidence from a Mr Pickett.
On 16 November 2023 the hearing resumed. Evidence relating to the fresh evidence ground was given by the applicant, Mr Pickett, and a correctional officer. The Court reserved its decision.
At the end of February 2024 it became apparent that Marshall AJ would not be available to write a judgment. It was proposed that the Court be reconstituted, with Martin AJ replacing Marshall AJ. On 18 April 2024 that course was greed to by the applicant and the Director of Public Prosecutions. The Court was reconstituted. The applicant and the Director agreed that the Court, as reconstituted, could have regard to the transcript, the exhibits, and the audio-visual recordings from the hearing of the appeal before the Court as previously constituted. Finally, on 30 May 2024, the applicant and counsel for the State made final submissions and the Court reserved its decision.
File No CCA 3120/2021
MATTHEW JOHN DAVEY v THE STATE OF TASMANIA REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
JAGO J
20 September 2024
Introduction
On 24 April 2017, the complainant suffered serious burns to 68% of her body. The injuries were life threatening. The applicant was charged with attempting to commit murder. He was also charged with persistent family violence, contrary to s 170A of the Criminal Code. The crime of persistent family violence was alleged to have been committed between 9 March 2016 and 24 April 2017. On 2 August 2021, Brett J made an order severing the indictment and a trial proceeded in respect to the count of attempting to commit murder (and in the alternative to that crime, committing an unlawful act intended to cause bodily harm contrary to s 170 of the Criminal Code).
Evidence relating to the crime of persistent family violence was ruled as admissible on the trial of attempting to commit murder on the basis that it was relationship evidence and also tendency evidence. The applicant was found guilty of the crime of attempted murder by a majority jury verdict on 18 November 2022. He subsequently pleaded guilty to count 1 of the indictment, persistent family violence, on 9 December 2021.
The applicant now appeals against his conviction for the crime of attempting to commit murder on 21 various grounds. In respect to four of those grounds he is represented by counsel. In respect to the balance 17 grounds, the applicant appeared self-represented. There is some overlap between the grounds of the appeal where he is represented, and those where he is not. For convenience, I will deal with the grounds of appeal where he is represented before turning to those which the applicant argued without the assistance of Counsel.
The prosecution case at trial
The State's case against the applicant was that he committed the act of attempted murder on 24 April 2017 by deliberately setting fire to the complainant, with whom he had been in a tumultuous relationship, after dousing her in flammable liquid in a shed on the applicant's parents' property. The State argued the act of setting her on fire was intended to kill her in the context of the complainant having indicated to the applicant that the relationship was over. The act of setting fire to her caused burns to in excess of 60% of the complainant's body and resulted in critical and life threatening injuries. The State's case was that the act of setting fire to the complainant was the culmination of a course of family violence engaged in by the applicant and directed to the complainant during the life of their relationship.
The State's case was that the relationship between the applicant and complainant commenced in late November 2015 and within a short period of time, became a toxic and volatile relationship, characterised by frequent arguments and controlling, possessive and verbally abusive behaviour. The evidence at trial suggested that within about three months of the relationship commencing, the complainant moved in with the applicant and the applicant quickly became violent and controlling towards her. On the trial that State led a considerable body of evidence directed towards establishing the nature of the relationship and tendencies on behalf of the applicant to act in particular ways towards the complainant.
The tendencies relied upon by the State included:
•To exercise control over the relationship;
•To act violently (either verbally or physically) towards the complainant when he was losing control of the complainant or the relationship;
•To act violently (either verbally or physically) in the complainant's presence when he was losing control of the complainant or the relationship; and
•To use burning as a means to threaten, intimidate or harm the complainant.
The evidence relevant to proving the alleged tendencies came from the complainant, a number of other civilian witnesses who gave evidence of witnessing interactions between the complainant and the applicant and recorded evidence in the form of listening device material, surveillance material and recorded telephone calls. There was also evidence of electronic messages sent by the complainant to friends and a letter that the complainant wrote and stored away. To the extent it is relevant to the grounds of appeal, I shall set out a summary of that evidence. It is not practical, nor necessary to mention every piece of evidence given or tendered on the trial, but I record that I have read the trial transcript in full and I have listened to and viewed all of the recorded material that was tendered on the trial.
Evidence of the complainant as to the relationship with the applicant
The complainant gave evidence at a special hearing on 16 and 17 March 2020. It was recorded and played to the jury during the trial which commenced on 5 October 2021. The complainant gave evidence of the applicant constantly monitoring her whereabouts, including by conducting or making her believe that he was conducting electronic surveillance of her communications and movements. She also gave evidence of the applicant restricting her movements, both by demand and by sometimes disabling or damaging her motor vehicle preventing her use of it. She gave evidence that the applicant controlled her phone use, her social media, dictated with whom she could spend time and gave evidence of the applicant constantly telephoning her if she was away from him, and sometimes requiring her to video call so as to show him her surroundings to satisfy him she was alone.
The complainant gave evidence that the applicant would constantly tell her that she was being unfaithful to him and accuse her of cheating on him. She gave evidence of the applicant speaking "horribly" about her family saying that they were "nothing but drug addicts and as long as they had drugs, they wouldn't care about me". The complainant gave evidence of considerable verbal abuse within the relationship and described name calling and derogatory comments as commonplace within the relationship. She gave evidence of the applicant controlling who she could see and with whom she could spend time, including limiting time she could spend with her family.
The complainant gave evidence of the applicant threatening to kill her, particularly in the context of her endeavouring to leave the relationship. She gave evidence that he would tell her that if she left him, he would kill her. She said he told her that he would hang her and make it look like a suicide; that he would get her to write a letter beforehand, play music and set photos up around her.
The complainant described much physical violence and threatening behaviour within the relationship. She gave evidence of the following specific acts of violence:
(i)In early 2016, the complainant and applicant were at the house of a man named Tusson. The complainant wanted to leave. The applicant did not want her to leave so took her keys and locked her out of her car. The complainant smashed the car window in an endeavour to gain access to the car. She was unsuccessful in doing so and left the residence on foot. The applicant followed in the car yelling at her to get into it. The applicant got out of the car and there was a physical fight in which the applicant bit her hair and pulled some of it out and then head-butted her. She walked away and later met her mother at a shopping centre.
(ii)In around February 2016, the complainant challenged the applicant because he was speaking to an ex-girlfriend on the phone. When she became upset and left the property, the applicant followed her up the driveway and slapped her across the face.
(iii)In March 2016, the complainant and applicant were driving in a car near Colebrook. There had been arguments throughout the day with the applicant accusing the complainant of cheating on him. The applicant was driving the complainant's car in an erratic manner. The complainant tried to get out of it. The applicant stopped her by grabbing her to the arm. Eventually, the complainant exited the vehicle and walked along the side of the road. The applicant followed beside her in the vehicle, asking her to get back into it. An independent witness observed some of this interaction. She stopped to ask the complainant if she was okay. The complainant told her to go away as it would make things worse if she spoke to her and that the applicant would kill her.
There was evidence on the trial from this independent witness. She gave evidence of observing the applicant holding the complainant by the hair and neck and striking her with his hand. She confirmed that the complainant told her that she believed that the applicant would kill her.
After a period the complainant got back into the car as the driver. They were later pulled over by police. The complainant did not say anything to police as she did not want the applicant to think she was talking with police.
(iv)The complainant gave evidence of an incident which occurred on Main Road, Austins Ferry. The complainant was trying to leave in her vehicle. The applicant did not want her to leave. He got into her vehicle. She drove along Main Road. They were arguing. She parked the car and told him to get out. Because she refused to return to his house with him, he started to kick the driver's side door which caused damage. He picked up a large rock and gestured as though he was going to throw it through the windscreen. He grabbed a jumper belonging to the complainant from within the car and put the sleeve of it into the petrol tank and was trying to light the bottom of the jumper on fire.
(v)The complainant gave evidence of an incident when the applicant's cousin, Dillon Davey, was present. They were at the applicant's home. There was an argument about drug use. The complainant wanted to leave. The applicant told her she was not allowed to go anywhere and accused the complainant of recording him on her phone. There was a physical fight between them in which the applicant grabbed her bag from her shoulder. The applicant told Dillon Davey to get her phone. The complainant got away through the back door. The applicant followed her, grabbed her around her mouth and prevented her from screaming. The complainant ran through the gate in the back fence and through a paddock behind the applicant's house. The applicant chased her. The complainant hid until the applicant had gone.
(vi)Tendered on the trial were multiple intercepted telephone calls and text message exchanges between the complainant and applicant, as well as surveillance footage and listening device recordings. Many abusive and derogatory comments, as well as specific threats to kill and burn the complainant's house down can be heard being said by the applicant on such recordings. Also tendered were recordings where the complainant can be heard telling her mother that she believes she is going to be killed by the applicant.
(vii)The complainant gave evidence of an occasion when the applicant slapped her across the face following an argument about an ICE pipe. She gave evidence of the applicant throwing a mobile phone at her head and it striking her to the temple area. She gave evidence of the applicant throwing a drinking glass at her and it chipping the tiles in the kitchen. She gave evidence of an occasion when the applicant threw a small kitchen knife towards her and it lodged in the window sill.
(viii)The complainant gave evidence of an occasion where she was trying to leave her house and the applicant would not allow her to. She eventually left on foot with the applicant following. The applicant grabbed her from behind with his arm around her neck, causing a passer by to ask if the complainant was okay. Thereafter, the two of them continued to walk along a track towards the complainant's house. Whilst walking on the track, the applicant picked up a rock and threw it at her ankle causing it to bruise and become swollen.
(ix)The complainant gave evidence of an incident involving a Mr Kringle. Mr Kringle was a friend of the complainant. During a period of time when the applicant was in custody between April and November 2016 the complainant and Mr Kringle maintained their friendship. The applicant was jealous of the friendship and accused the complainant of cheating on him with Mr Kringle. Following the applicant's release from custody there was an occasion when Mr Kringle was due to come to the complainant's house. Prior to his arrival the complainant was applying makeup. The applicant threw a phone at her because he was upset she was applying makeup prior to Mr Kringle's arrival. When he arrived, the applicant made Mr Kringle go to the garage. The complainant was present, as was the complaint's mother and a man named David Eaton. The applicant questioned both the complainant and Mr Kringle about the alleged infidelity. The applicant arranged for Mr Eaton to assault Mr Kringle. The applicant then assaulted Mr Kringle. The applicant told the complainant she had to end her friendship with Mr Kringle.
The letter written by the complainant
The complainant gave evidence that during the time the applicant was remanded in custody between April and November 2016, she maintained her relationship with him, predominantly by way of telephone communications. Her evidence was that they spoke about their relationship continuing following his release including a discussion about marriage and having children. They spoke about filling out "marriage forms". The complainant also gave evidence that she was conflicted about the relationship and scared of the applicant. She expected "something to go wrong" so before the applicant was released from custody, she wrote a letter and hid it in her make-up case. Evidence established that her mother found this letter after the events of 24 April 2017, and the letter was tendered in evidence on the trial. In the letter the complainant expressed fears for her life and concerns that she could not escape the control of the applicant. The letter included the following:
"Would he do everything and anything to ruin my life? YES. And… would he kill me? Absolutely...Am I scared? Scared isn't the word…I don't have answers, I can't run, I can't hide, I can't escape, I can't get away… and I believe if I come to the end of my life it will be at the hands of MATTHEW JOHN DAVEY"
The complainant gave evidence that she did not wish to talk to anyone about the applicant's behaviour but wrote the letter in case "anything major" occurred.
The complainant gave evidence that after the applicant was released from custody the relationship worsened. The applicant accused her of being unfaithful whilst he was in custody. She described him as becoming "more paranoid, angry and untrusting". His controlling behaviour escalated. He would often take her car keys so she could not leave. She gave evidence of locating recording devices in her room. She gave evidence of occasions when she told the applicant she wanted to end the relationship, but he would respond by telling her "she wasn't going anywhere" and it would be "up to him" if the relationship ended. He told her that if he could not have her, no one else could and that if she ever left him, he would kill her. He told her that if she ran away he would find her by going to her family members and forcing them to tell him where she was. She gave evidence of the applicant making threats to burn out her father's garage and saying he could locate her if she left through her bank details.
Evidence of the complainant as to events of 24 April 2017
The complainant gave evidence that she worked night shift on 23 April concluding about 7am on 24 April. During the night there had been numerous Facebook communications between her and the applicant during which there was an argument which culminated in her telling the applicant that she wanted to end the relationship.
During the day on 24 April, the applicant arrived at the complainant's home. The complainant again told the applicant that the relationship was over. There was an argument. The applicant spat in her face and threw a can of Coke at her. He disturbed items in her bedroom, threw things about her room and caused damage in her bedroom, including by damaging the door handle of a cupboard. The complainant gave evidence that following this the applicant, her mother and she had a discussion about the status of their relationship. The complainant reiterated that she no longer wanted to be in a relationship with the applicant. The applicant and the complainant's mother left the house to obtain drugs. The complainant described taking a knife from the house and walking up the street. She later returned to the house and obtained some elastic exercise bands and tied them to an antenna in a loop. The complainant's evidence was that she was "not certain" what her intentions were, but it was a reasonable inference that her behaviours were reflective of suicidal ideation.
The complainant gave evidence that the applicant and her mother returned to the house and they were both affected by drugs. Later that evening, because the applicant was subject to a curfew and had no other way of getting home, she gave the applicant a lift to his house. The complainant gave evidence that she was of the view that the relationship had come to an end and was only dropping the applicant back to his residence to comply with his curfew and had no intention of staying there the night.
The complainant gave evidence that upon arrival at the applicant's residence, the applicant asked her to come into the shed for a cigarette. The complainant said the shed was where she and the applicant would go to "hang out and smoke cigarettes".
The complainant also gave evidence that the applicant would use the shed if he was working on something like a bike or a car and would, on occasion, solder in the shed. The complainant said no soldering occurred on the evening of 24 April.
The complainant said that when she and the applicant entered the shed, the applicant closed the roller door and she believed he locked it. The complainant said there was a further verbal argument about the status of their relationship. The argument escalated to a physical one. They were both hitting each other and they both ended up on the ground and were "rolling around on top of one another, hitting each other". The complainant said that came to an end and they both stood up. There was a further verbal argument. The complainant told the applicant she wanted to leave and wanted to go home. The applicant told her she "wasn't going anywhere".
The complainant said she turned her back on the applicant and then felt a "splash go over her left side". The complainant said she knew from the smell of it that it was petrol. The complainant said her clothes were wet from the petrol. She turned around and observed the applicant putting a fuel container down. It was a large red fuel container. The complainant identified the relevant fuel container from photographs tendered on the trial.
The complainant's evidence was she said to the applicant "What the fuck are you doing?" There was a further verbal argument. There was then a further physical fight in which the complainant and applicant again rolled around on the floor, fighting with each other. During this altercation, the complainant hit the applicant over the head with an object. The complainant gave evidence the applicant then said to her "What are we doing? This is stupid" and apologised.
The complainant gave evidence that after the fight, the applicant was flicking a cigarette lighter at the carpet on the floor of the shed. It did not ignite (other evidence establishes there was a small scorch mark on the carpet).
The complainant said she wanted to go home and get changed. The applicant told her to get changed at his place and wear some of his clothes. She told him she wanted to go home and have a shower but the applicant continued to insist she could go inside his place and shower. Again the complainant said the discussions became heated.
The complainant gave evidence that she headed towards the door of the garage intending to walk outside and leave. The applicant was near the door. As she was approaching the applicant, and about half a metre from him, he extended his arm towards her and flicked his cigarette lighter. She immediately went up in flames. The complainant gave evidence of the applicant struggling to get the door to the shed open, of her running from the shed and then running around the backyard calling for help.
The complainant gave evidence of next recalling "waking up" to the applicant being next to her and the flames being put out. She recalled asking for a hose or to be put into the shower.
The complainant gave evidence of a conversation she had with the applicant whilst waiting for help. She said the applicant told her that he was going to go to gaol for a very long time unless she said it was a soldering accident. She agreed with him. She gave evidence of the applicant's father being on the phone to the ambulance. She gave evidence of the applicant holding the hose on her until the ambulance arrived.
The complainant gave evidence of the ambulance attendance, of having a limited memory of spending time in the Royal Hobart Hospital, of waking from a coma in the Alfred Hospital at Melbourne and being unable to talk because of a breathing tube in her throat. The complainant gave evidence of the extent of her injuries and the rehabilitation she undertook.
The complainant gave evidence of an occasion when she was on day release from her rehabilitation programme when her mother received a telephone call. Her mother gave her the phone. After a short time she recognised the voice of the caller as being the applicant. The applicant told her he loved her and said to her "Why are you doing this. Can you remember?" The applicant told her that she had "done it to herself".
The cross-examination of the complainant
During cross-examination it was suggested to the complainant that the relationship she shared with the applicant was a volatile one and that she too had perpetrated abusive behaviours – both physical and verbal – upon the applicant. The complainant accepted that "to an extent" she had demonstrated jealous, possessive and controlling behaviours towards the applicant. For example, she agreed that she would check his phone when she had been told about certain occurrences. She agreed that if she found messages between the applicant and other females, there would be arguments. She also agreed that on occasions she had made threatening comments to him. She agreed she had punched him "perhaps six or seven times". The complainant was cross-examined about the applicant's attitude towards her mother. She denied that the applicant had told her he did not want her spending time with her mother because of her mother's shop lifting and drug habits.
The complainant was cross-examined at length about her mental health history. She agreed she had been diagnosed with severe depression. She agreed there had been an occasion where she had been admitted to hospital after taking tablets but denied that it was a suicide attempt. She agreed that in 2015 she had seen a medical professional in respect to suicidal ideation and self-harm incidents. She agreed that she regularly became depressed about a friend, Paris, who had committed suicide.
The complainant denied having made two overdose attempts whilst in a relationship with the applicant. She also denied that she had spoken about suicide "all the time" whilst with the applicant. It was suggested to the complainant that on the afternoon on 24 April she had wanted to kill herself, hence she had hung the exercise bands from the antenna. The complaint did not deny hanging the bands but said she could not recall if she put the bands around her neck and was "not sure" of her intentions. When it was suggested to her that she had told police that she did these acts because she wanted to kill herself, she said she could not recall the words she used to police.
There was evidence on the trial, in the form of an Agreed Fact, that the applicant had been in prison between 27 April 2016 and 29 November 2016. The complainant was asked about her contact with the applicant during that time and agreed that she had spoken to him two to three times per day and had said things like "she could not live without him". She agreed that she had repeatedly told him how much she loved him. She also agreed that she had filled out Intention to Marry forms and that she and the applicant had opened a joint bank account together for the purpose of buying a home.
As to the incidents of family violence the complainant had described, it was suggested to her that she had greatly exaggerated her accounts. For example, in respect to the Colebrook incident it was suggested to her the applicant had simply grabbed hold of her to prevent her from leaving a moving vehicle. The complainant agreed the applicant had grabbed her arm to prevent her leaving the vehicle, although she was not sure as to whether the vehicle had stopped by then. It was suggested to the complainant that many of the incidents of family violence she described had not occurred or had occurred in response to the complainant punching or striking the applicant. The complainant generally disagreed.
The complainant was asked about an interview she participated in with police on 8 April 2016, in which she had told police that no incidents of violence had occurred between her and the applicant, that she was not scared of the applicant and that she did not fear for her safety. The complainant agreed she had said those things to police but stated they were lies. She agreed that when she told police those things the applicant was not present in the room with her.
As to the events of 24 April 2017, the complainant said she could not recall whether she had punched the applicant before he threw the Coke can at her. She agreed that at some point in the afternoon she had been laying on the bed crying. She said she could not recall whether she had taken a backpack/overnight bag with her to the applicant's house.
She agreed that on the way to the applicant's house, they had picked up a dog from his sister's residence, and taken it to the applicant's house. She agreed that at some point the dog was in the shed with her and the applicant and she were brushing the dog. She agreed that she and the applicant entered the shed at approximately the same time. She said she could not recall the locking mechanism on the shed but did not believe that it required a key.
She was asked about the location of personal papers belonging to the applicant. (Evidence established there were a number of personal papers found on the shed floor after the fire incident). She agreed the applicant kept personal papers in his bedroom or on the bench in the shed. She agreed that "if he was going out" he would sometimes have a backpack in which he kept his personal papers. She denied that it was the applicant's usual practice to keep personal papers in the backpack within the shed.
The complainant said she could not recall going inside the house and speaking with the applicant's father, Rickie Davey, before going into the shed. She did recall telling the applicant's father that the dog was there but denied going inside the house. She denied having a conversation with Rickie Davey at any point that night relating to a crayfish.
The complainant agreed she was emotional that evening and that she may have accused the applicant of being unfaithful. She agreed there had been an occasion when she had located a message from a woman named Kristy Graham on the applicant's iPad but did not believe it had been that evening.
The complainant denied that she had tipped the contents of the applicant's backpack out onto the floor. When shown items that were on the shed floor in a photo, the complainant said she did not recall how those items came to be there.
The complainant denied that whilst arguing with the applicant in the shed she had picked up a fuel drum and had flicked a lighter and said the words "Do you want to see me fucking burn?"
She denied she had used a cigarette lighter to set fire to a piece of paper from the backpack which had a female's name upon it and that that act had caused an area of carpet to ignite, which she and the applicant had to extinguish by stepping on it.
The complainant denied that what happened in the shed was, in effect, a threatened suicide attempt "gone wrong" in that she had splashed petrol on herself whilst holding the fuel drum and saying to the applicant "Do you want to see me fucking burn" and then subsequently ignited herself when her and the applicant had attempted to put out the fire which was burning on the carpet after she had lit the piece of paper.
The complainant agreed the applicant may have helped to extinguish flames on her once outside. She denied the applicant carried her from the shed. She said she believed she walked out.
The complainant denied that she had told Rickie Davey that the incident was an accident. She denied saying to the applicant that she did not want anyone thinking she was attempting suicide because she was embarrassed by such behaviour. She said she could not recall telling her own father that the applicant was not responsible for the burns she had suffered.
It was suggested to the complainant that her child had been fathered by Dillon Davey (the applicant's cousin). She denied this.
The complainant was cross-examined as to possible motives for suggesting the applicant was responsible for the burns she had suffered. She agreed a GoFundMe page had been opened for her benefit. The complainant was asked whether she believed people would contribute to a GoFundMe page if they realised that what happened was a "suicide threat gone wrong". The complainant responded "I don't know". The complainant was asked whether she or her family had received any financial benefit from television companies. She responded that "It's in the process of that … in the future". She was asked whether she thought there would be much interest in her story if it involved a suicide threat that had "gone badly wrong". The complainant responded "I don't know".
Additional evidence of the complainant: Video statement recorded in the Alfred Hospital on 29 June
2017
55This statement was tendered on the trial and played to the jury following a successful application to re-establish the credibility of the complainant during re-examination. In the video statement, which had been recorded whilst the complainant was still at the Alfred Hospital, the complainant described the incidents of 24 April 2017 in the following terms:
•Earlier in the day of the "day she was burnt", the complainant and applicant had been arguing.
The day had got "worse and worse". They were arguing even more at her house. He threw a Coke can at her head when she tried to break up with him. She did not want to be with him anymore. He would not accept that.
After he threw the Coke can, the applicant went for a drive with her mother. She went for a walk. She wanted to kill herself because she had "had enough". She came back to the house before the applicant did. There was a further conversation in which she told him she was "sick of him" and he was making her unhappy. He did not care. He was not listening to her.
•She took him home because he had a curfew and she was the only way he could get home. She thought she would take him home and leave. He made her drive up the driveway and park in front of the shed. She thought "Oh shit, I'm going to be staying here tonight". They went to the shed for a cigarette. He put the door down and locked it. They had a cigarette. They were not talking.
•She told him she was going to leave. He said "No you're not, you're not going anywhere". She tried to walk around him. He blocked her. He grabbed her by the face a few times and said "You're not going anywhere". The argument continued.
•He picked up the petrol tank and threw it at her. She laughed it off. She thought it was just another way he was trying to make her scared. It was all over her and it stunk and she was angry.
•She wanted to go out, she was near the roller door. That is when he set her on fire. He did it with a lighter. She started screaming for help.
•She thought the applicant had trouble getting the roller door open. She got outside. He put her out.
•She remembered the applicant's father speaking on the phone. The applicant was telling her to say it was a soldering accident and she was agreeing with him. She was screaming "look at me". The applicant was sitting next to her the whole time. The applicant demanded that he come in the ambulance with her. He was saying he loved her.
•She did not recall anything from the hospital.
•The fuel container the applicant used was a large one. He picked it up and splashed it on her and it was all on the ground. He tried to light the ground also. That happened just before he lit her.
•The applicant knelt on the floor and was flicking the lighter, trying to set the floor on fire. He did not set the carpet on fire. He was bending down to do this. This made her feel scared of being stuck in the shed and going up in flames.
•She thought the lighter the applicant used to light her on fire was white. He had it in his right hand.
•In the recorded statement, she also described the relationship generally. She said that if she had her way, he would have been "long gone" before the fire. His behaviour was controlling. She kept excusing his behaviour. She would have to tell him everything she did during the day. When he was in gaol, he told her that he had people watching her.
•Before he threw the Coke can at her on 24 April, she had told him that "we're over, we're done". He had said "No, we're not". He had spat in her face. She did not think the Coke can hit her.
•She described violence before the evening of the fire, including an occasion where the applicant had headbutted the windscreen of her car and thrown a phone towards her. She described another occasion when she was on the phone to another girl and was leaving and the applicant followed her up the driveway and hit her, causing her to fall to the ground. She described the incident in which Jarrod Kringle was assaulted.
She said in the shed there was a rope and chairs and the applicant had pretended that he was going to tie her to the chair but did not do it, he just gave her that impression. She could not recall if that occurred before or after he had thrown petrol.
Further evidence on the trial relevant to the grounds of appeal Wendy Rodway
Wendy Rodway, the complainant's mother, gave evidence. Ms Rodway gave evidence that there had been an occasion when the complainant was a teenager, when she had taken a quantity of Panadol. This was as a consequence of Ms Rodway's then partner behaving inappropriately towards the complainant. Ms Rodway had taken the complainant to a GP and then she was taken to hospital for observation. Ms Rodway confirmed the complainant had become depressed over the death of a friend and Ms Rodway had taken her to the doctor. Ms Rodway said she had never witnessed the complainant self-harming.
Ms Rodway gave evidence that she witnessed arguments between the complainant and applicant, including occasions when the applicant had taken the complainant's phone or laptop. She had heard "two sided bickering and arguing" between them. She had heard the complainant calling the applicant names. She said she had not heard the complainant speak in that manner before she was in the relationship with the applicant.
She had witnessed the applicant verbally threatening the complainant, telling her "I'll put you in the meat factory". She heard the applicant threaten to harm the complainant's father and his dogs, and also threaten to harm the complainant's boss. She heard the applicant call the complainant a number of abusive and derogatory names.
She described an incident in which the applicant assaulted her son, Jack. She said the complainant and Jack were in the house. The applicant turned up "making a scene". Ms Rodway said she heard a scuffle. She heard the complainant screaming at the applicant during the altercation and heard items being knocked around. She called police. When she returned inside, she observed Jack to have three lumps on his forehead. Police came. She was standing in the driveway with them when she received a text message from the applicant which said "Don't be stupid now Wendy".
Ms Rodway described a number of occasions when the complainant told her about incidents which had occurred between her and the applicant, and other occasions when she had observed injury to the complainant. She recalled an occasion when the complainant told her the applicant had damaged her motor vehicle. She recalled an occasion when she observed the complainant with hair missing from her head and lumps on her forehead. She recalled an occasion when the complainant had attended her residence and she observed damage to her vehicle and injuries to the complainant.
Ms Rodway gave evidence that the complainant told her about a number of incidents of family violence, including the following:
•An occasion when the applicant tried to put her jumper into the fuel tank of her car and had thrown a rock at the car.
•Occasions when the applicant had disabled the complainant's car and the complainant would call and request her mother collect her.
•An occasion when the applicant had bitten the complainant's hair and pulled it out. Ms Rodway subsequently met with the complainant and observed a chunk of her hair missing.
An occasion when Ms Rodway collected the complainant from Main Road, Austins Ferry. The complainant was running from the house, wearing only a top and underpants and had no shoes. She was very distressed.
Ms Rodway gave evidence of discussions she had with the complainant in which the complainant would tell her she could not leave the relationship with the applicant because of threats he had made against her and her family. She said the complainant told her before the 24 April 2017 that she wanted to leave the relationship and was "sick and tired of feeling worthless, threatened and scared".
Ms Rodway gave evidence that after the applicant was released from gaol, the relationship between the complainant and applicant became worse, and the arguments appeared more frequent and more serious. The complainant became withdrawn and ceased her studies. Ms Rodway observed the applicant to take the complainant's phone and laptop.
Ms Rodway gave evidence of hearing the applicant make comments about knowing the whereabouts and movements of the complainant and Ms Rodway. Ms Rodway also gave evidence of the applicant expressing a belief that the complainant had been unfaithful to him with Jarrod Kringle. She described the incident involving Mr Kringle. She said that the applicant referred to that day as "judgment day". She said prior to Mr Kringle arriving and whilst the complainant was doing her hair and makeup, the applicant threw a phone at the complainant. The phone hit the complainant to the head. Ms Rodway said after Mr Kringle arrived, the applicant questioned him and the complainant and then directed Mr Eaton to assault Mr Kringle. The applicant then assaulted Mr Kringle. She said the applicant prevented the complainant from leaving the shed whilst this was occurring and told her she needed to watch what was occurring.
As to the events of 24 April 2017, Ms Rodway said at one point she heard arguing and scuffling noises coming from the complainant's bedroom. She entered and found the applicant standing over the complainant. She observed a hole in the wall. The complainant's hair was in disarray and she appeared flustered. The complainant tried to push the applicant from the room. He threw a can of Coke and it sprayed over the bedroom. The can of Coke hit the complainant near the temple. The applicant and Ms Rodway left the home and went to a house in Chigwell, and then to the applicant's parent's home. They then returned to her home. The complainant was on her bed crying. She told Ms Rodway she wanted the relationship with the applicant to be over. She heard the complainant tell the applicant that she did not love him anymore, and for him to "let her go". The applicant responded by saying it was not over, "It will be over when I say it's over".
When the complainant and applicant left the residence, the complainant had a backpack with her. She said "I'm going to pay dearly for this". She also said that she would be back soon. Before they left, the applicant said they were going to make a video with his dog on it because "that was the only loyal thing". He said he was going to show the complainant the video because he had "plans for her".
Ms Rodway also gave evidence of police attending her house after the complainant had been burnt. She gave evidence about finding the letter the complainant had written. She gave evidence of receiving a phone call on 8 August 2017 and passing the phone to the complainant. After receiving the phone call she heard the complainant say "Why are doing this? I'm going to breach you". The complainant was visibly upset and shaking after the call.
Cross-examination of Ms Rodway
The following matters were canvassed in cross-examination:
•The complainant's contact with other witnesses after she had been burnt and whilst she was in hospital and Ms Rodway's knowledge of any such communications.
The complainant's mental health prior to her relationship with the applicant. Ms Rodway agreed she had sought medical advice and assistance in respect to the complainant's mental health. She denied she had told the applicant that the complainant had tried to hang herself on 24 April 2017 and to "be careful, she's very fragile".
•The nature of the relationship between the complainant and applicant. Ms Rodway accepted that the complainant was also controlling of the applicant and had expressed jealousy about other females and had accused the applicant of infidelity.
•Ms Rodway gave evidence of marriage forms being filled out by the applicant and complainant.
•Ms Rodway was cross-examined about her shoplifting clothing items and stealing meat items to support a drug addiction. She admitted she had done so. She agreed that on occasion the complainant had delivered stolen meat for her, but denied the complainant had ever collected drugs for her. Ms Rodway did not agree that the applicant had regularly complained to her about these habits and her exposure of the complainant to these behaviours.
•Ms Rodway agreed that she and others had taken items of jewellery and other personal possessions belonging to the applicant. She disagreed, however, that the taking of those items had led to the incident involving Mr Kringle.
•Ms Rodway said she did not hear the name Kristy Graham (or Dee) mentioned as part of the argument she had overhead between the applicant and complainant on 24 April 2017.
Evidence relevant to the nature of the relationship and proof of the alleged tendencies
Evidence relating to the nature of the relationship between the applicant and complainant, and some specific incidents of family violence, were led at the trial by way of evidence of intercepted telephone calls and messages (P2); listening device material (P11) and surveillance recordings from 2016 (P10). Additionally, there were Arunta calls (calls recorded via the Risdon Prison telephone system) between the applicant and complainant, between April and November 2016 (P20). This evidence was largely supportive of the evidence of the complainant as to the nature of the relationship. It was also relevant to establish the asserted tendencies of the applicant to act in a particular way towards the complainant.
There was evidence of an independent witness, Jayne McLean, pertaining to the driving incident near Colebrook. This witness described driving past the vehicle driven by the applicant and observing the applicant holding the complainant by the hair and neck and striking her with his hand. She later saw the complainant out of the vehicle and spoke with her. She appeared very distressed and said "I can't talk to you … you have to go … he can't see you talking to me …he's crazy and he will fucking kill me". Ms McLean phoned police and reported her observations. A police officer, Angela Lang, subsequently intercepted the vehicle. She spoke to the complainant. She appeared to have been crying. She removed the complainant from the vehicle so she could speak privately with her. The complainant expressed concern that the applicant could not hear their conversation and asked Ms Lang to show the applicant what she had recorded in her police notebook.
There was a body of evidence by way of surveillance footage and listening device recordings relevant to 8 April 2017, which was the date the incident at Nick Tusson's house and an incident at Main Road, Austins Ferry were alleged to have occurred. On these recordings the applicant can be heard threatening to kill the complainant and burn her house down; video surveillance footage shows the applicant going backwards and forwards to the complainant's car and appearing to disable it; telephone calls between the complainant and her mother record the complainant saying "I've been told I'm going to die today" and "he pulled the plugs out of my car"; surveillance footage shows the complainant leaving her vehicle on foot and being followed by the applicant; a telephone call between the
complainant and her mother in which she tells her mother the applicant chased her, bit her hair out, poked her in the eye and threatened to kill her; surveillance footage showing the complainant's car parked outside 175 Main Road, Austins Ferry and the applicant can be seen kicking and pushing the outside of the driver's door before opening it and leaning in.
Two witnesses also gave evidence of seeing this incident, including observing the applicant kick the driver's door of the complainant's vehicle. They stopped and checked on the complainant. They described her as appearing scared and said that she kept her head down and would not look at them.
Additionally, there was listening device material relevant to the incident on 23 April 2016 involving Dillon Davey. On that recording, the applicant can be heard demanding the complainant's bag, and telling Dillon Davey to take the phone from her. The complainant can be heard screaming "Let me fucking go". The applicant responds that she is "a hostage now". He comments that if police attend, the complainant was "fucked". Surveillance footage shows a small figure, consistent with the complainant, running out the back gate of 175 Main Road Austins Ferry, followed by a larger figure. A telephone call between the complainant and her mother records the complainant sounding distressed and asking her mother to pick her up.
Dillon Davey also gave evidence about this incident. He said he was at the applicant's home, in the shed, and they were consuming methyl amphetamine. He said the applicant left the shed and then returned and said "This dog is fucking recording us. Get up here now". He went into the house. The applicant accused the complainant of recording them, she appeared scared, and the applicant manoeuvred the complainant up the hallway of the house. The applicant told him to take the complainant's bag and "check it". He did that then went back to the shed. He later heard a woman's scream. He said afterwards the applicant told him "She bashed me so I slapped her".
Evidence was given by Alan Gough, the employer of the complainant. He gave evidence of the complainant being late for work and telling him it was because her car was "unusable" because of things the applicant had done to it. Evidence was also given by Daniel Hill, the neighbour of Wendy Rodway and the complainant. He gave evidence of an occasion when the applicant approached him and told him he was not to talk to the complainant. He also gave evidence of hearing a male voice at Ms Rodway's "yelling and swearing".
Evidence was given by Sergeant Garth Hossak. He said he received information relating to the complainant and applicant which warranted investigation so he spoke to the complainant on 8 April 2016. He recorded that statement. During the statement the complainant denied there had been any occurrences of family violence between her and the applicant and said she was not scared of the applicant. He nevertheless made application for a family violence order.
An edited copy of a record of interview the applicant participated in with police on 25 April 2016 was tendered on the trial. During that interview the applicant was asked about incidents of family violence that had allegedly occurred between him and the complainant. The applicant generally denied any violence and when asked about specific incidents responded by telling police they would "need to ask the complainant" what had occurred. During the interview the applicant said the complainant had not wanted the Interim Family Violence Order. When played portions of listening device recordings from 23 April 2016, the applicant indicated he had no memory of the incident and could not recognise any of the voices. He suggested police would need to speak to the complainant about whether she was at his house in breach of the interim family violence order.
The interview was tendered on the State's case, over an objection from defence and following legal argument, to support the argument that the applicant believed he was in control of the relationship and that the complainant would remain loyal to him and not report any incidents of family violence that had occurred.
There was also evidence tendered on the trial of Facebook communications said to be between the complainant and applicant on 23 and 24 April 2017. There was evidence that the applicant used a Facebook account in the name of "Andrew Smith". A police officer gave evidence of the complainant providing her with her Facebook account details and locating these messages. The messages demonstrated an argument between the complainant and applicant overnight on 23 April whilst the complainant was at work.
Further evidence relevant to the fire incident on 24 April 2017 000 call – Rickie Davey
Tendered on the trial was a 000 recording of a call made by Rickie Davey, the father of the applicant, at 9.44pm on 24 April 2017.
In that call Mr Davey indicated, inter alia –
•A woman has been "caught alight or something… I think a drum of something caught alight".
•Mr Davey was asked whether anything was still burning and he said no.
•In response to a question as to whether the petrol had caught on fire and burnt the complainant, Mr Davey said "I was inside and heard the scream". In the background of the call the applicant could be heard to say, "There was a drum of petrol on the ground".
•When asked about the presence of animals Mr Davey said, "I've got the dog tied up here".
•When asked whether anything else was on fire Mr Davey said no. At no point did Mr Davey suggest he had seen or put out a fire within the shed.
•At one point during the call Mr Davey could be heard to mutter "You fucking dickhead".
Rickie Davey's evidence at trial
The evidence from Mr Davey at trial was that he lived at 49 Corranga Drive, Chigwell. There was a large shed on that property. It was visible from his kitchen and a side bedroom of the house. He kept items pertaining to his employment as a floor sander in the shed. The shed was messy as at 24 April 2017.
As of that date the applicant was living at his house. He had a 9pm curfew.
On the evening of 24 April 2017 he was at his residence. A car pulled up the driveway at approximately 8.50pm. The complainant then came inside. She poked her head in the doorway and spoke to him. She said the applicant was in the shed and they had the dog with them. She took a bag to the bedroom, put the kettle on and made hot drinks. She took the hot drinks to the shed. She appeared "quite normal".
Shortly after, Mr Davey went to the shed. The roller door was about a third of the way down. He ducked underneath it. He told the applicant and complainant that there was a crayfish in the back fridge to be eaten. The complainant was sitting in a chair, about 50cm to a metre inside the door, brushing the dog. There were papers on the floor where she was sitting.
Five or ten minutes later he heard a crash. He looked up and saw the applicant carrying the complainant out of the shed in his arms. They fell over near the barbecue. The applicant was rolling the complainant on the ground. He heard yelling and screaming. The applicant was screaming "Help. Get the hose. Ring triple zero". He raced outside and got the hose. It got caught. He turned it on and
then took it over to the applicant and the complainant. He went back inside and rang triple zero. At some point, he went into the shed because there were "flames on the floor, papers and that" and the dog was hooked on the chair and was barking. Initially, he said could not remember whether he went into the shed first or went to get the phone first, but later said there was "no fire" by the time he called the triple 0 operator.
The flames he saw in the shed were six or eight inches in height. The papers were "half burnt". They were on fire "right at the bottom of the chair where [the complainant] was sitting previously". He could smell dog hair smouldering. He told the triple zero operator that he had stamped the fire in the shed out with his feet.
At one point, he screamed at the applicant and the complainant to tell him what had happened. The complainant said "No, no Rick, it was an accident".
Mr Davey agreed when cross-examined by the Prosecution pursuant to a grant of leave under s 38 of the Evidence Act 2001 that he had not told police about going into the shed and putting a fire out when he initially spoke to them. He said he did not think he had been asked the question.
He also agreed he did not tell police or the triple zero operator that the complainant had indicated to him that the fire was an accident.
Mr Davey denied completing a statutory declaration on 24 April 2017 when police attended. He agreed he spoke with police but said police officers only took notes on an iPad but no formal statutory declaration was completed.
Constable Melanie Long gave evidence of having taken a handwritten statutory declaration from Rickie Davey on 24 April 2017 at his home. That statement was tendered on the trial and published to the jury. The statement made no mention of a fire in the shed. It did not suggest the complainant had said the fire was an accident.
Also tendered on the trial was the evidence Mr Davey gave during a preliminary proceedings hearing. That evidence demonstrated that Mr Davey had not, despite making other corrections to his statutory declaration dated 24 April 2017 before it was tendered, made any mention of seeing any fire inside the shed on 24 April 2017 during his evidence.
There were, therefore, a number of sources of Mr Davey's evidence available for the jury's consideration: the triple zero call, the statutory declaration made on 24 April 2017, the evidence given by Mr Davey at preliminary proceedings and his evidence on the trial.
It was open for the jury to conclude there were a number of variations and/or inconsistencies within those accounts. The prosecution argued this reflected adversely on the reliability and credibility of Rickie Davey. The defence suggested given the trauma of the evening and the enormity of the situation which confronted Rickie Davey, such inconsistencies were understandable, and with the benefit of calm reflection it was entirely viable that Rickie Davey had come to recall further detail.
Forensic evidence/crime scene investigation
Relevant aspects of the forensic examination included that there was a red brown drip staining pattern on the floor of the shed. This contained human blood with a DNA profile consistent with it having come from the complainant. Further red brown staining was found on the complainant's car bonnet, which again was human blood with a DNA profile consistent with the complainant.
Ana Flonta of Forensic Science, Service Tasmania identified the red brown drip staining pattern near the door as having a directionality which travelled from within the shed to outside of the shed. Her evidence was that the blood stains present on the car bonnet depicted an expirated pattern, consistent
with blood having accumulated in the airways and then been coughed or sneezed out. Her evidence was that, in her opinion, the expirated event most likely followed the drip stain event.
Evidence of Dr Manthey established there was fuel present on the complainant's clothing. This fuel was a mixture of petrol and diesel. This was compared to samples taken from various fuel containers within the shed. Fuel that was within a 20 litre red fuel container found in the shed matched the fuel mix found on the complainant's clothes. This 20 litre red fuel container was subject to fingerprinting and DNA analysis. This fuel container was tendered on the trial (P63) and was the fuel container the applicant used to conduct a demonstration during his evidence.
DNA testing of this fuel container showed a DNA profile consistent with that of the applicant on the following areas:
•On the yellow cap and cap strap; • On the handle; and
•On an area of possible fingerprint smudges on the upper bevelled corner of the container.
•There was no DNA matching the complainant found on this fuel container.
The evidence of Dr Rita Westbury was that DNA, being water soluble, would not be damaged by the presence of petrol on an item.
The 20 litre red fuel container was also subject to a fingerprint analysis. Four areas of possible fingerprints were located. Only one was suitable for analysis. Ian Fleming gave evidence that a fingerprint lifted from the base of the fuel container was a match to the right ring finger of the applicant.
Mark O'Donnell from Tasmania Fire Service conducted a fire scene examination of the shed. He did not locate any signs of fire, flame or heat damage in the shed aside from a mark on a piece of carpet in the rear of the shed. This piece of carpet was examined by Dr Manthey. His examination disclosed the mark was comprised of two different types of melted plastic and the carpet fibres underneath the surface were heat affected.
Mark O'Donnell gave evidence that there was no other evidence of a fire event in the region of this piece of carpet. He gave evidence that in his opinion the fire event had commenced at the entrance to the shed.
There was toxicology testing undertaken in respect to the applicant's blood, which was taken following his arrest. That testing showed concentrations of methyl amphetamine, amphetamine and THC in the applicant's blood. Mr McLachlan-Troop gave evidence as to the range of effects the ingestion of methyl amphetamine can have upon an individual, including extreme confidence and increased energy through to paranoia and unpredictable and violent behaviour. He accepted that the impact of the consumption of methyl amphetamine can vary considerably between individuals, and may also be affected by the manner in which the drug is consumed.
Evidence of injuries to the complainant
The complainant suffered burns to 68% of her total body surface. She was most severely burnt on her front and left side. Dr Andrew Castley, Director of Tasmanian Burns Services at the Royal Hobart Hospital, gave evidence that in his opinion the burn injury started on the complainant's left hand side and travelled up and across to the right. He was of the view that the burns were consistent with accelerant being applied to the complainant's left hand side. He considered it more likely, based on the injuries, that the ignition source was introduced at the mid-rift area. He indicated that if the ignition source had come from below that point, he would have expected the injuries to the complainant's lower
legs to have been deeper and more severe upon presentation. He noted a circumferential burn on the complainant's right ankle and considered that was consistent with the complainant wearing an anklet or the top of a sock being wet with accelerant and catching fire.
Dr Castley also gave evidence that partial thickness burns to each of the applicant's hands were consistent with him having patted out flames on the complainant. He was of the opinion that if the applicant had carried the complainant from the shed, he would have anticipated more burn injuries to the applicant, for example, to his forearms and face.
Post offence conduct and lies
The State relied upon a number of statements made by the applicant following the incident on 24 April 2017 to suggest that the applicant was not telling the truth as to what had occurred. In particular, the State relied upon what the applicant could be heard saying in the background of the triple 0 call, namely that a drum of petrol had caught alight. Further, the State relied upon a number of statements the applicant made to Tasmania Fire Service personnel when they arrived at the scene. Andrew Lem gave evidence that he asked the applicant whether the drum of fuel was still on fire. The applicant told him he was not sure and then appeared to leave in the direction of the shed. Mr Lem subsequently heard the applicant tell his mother that he was doing some soldering in the shed above some fuel drums and there was an explosion.
Jamie Gordon from Tasmania Fire Service gave evidence that he asked the applicant what had happened and he told him that he was soldering at the workshop bench above some fuel drums when they exploded. He also said the applicant told him his father had put them both out with a hose, and if it wasn't for him "they would both be dead".
William Coad from Tasmania Fire Service gave evidence that the applicant showed him where he was soldering and pointed out a container which "caused the explosion". Mr Coad gave evidence that the applicant retrieved a fuel container (a smaller red and yellow canister tendered as P62) and suggested that was the container which had caused the fire. Mr Coad inspected the container and saw no signs of explosion or fire.
Ambulance officers attending the scene gave evidence that the applicant had been very determined to travel in the back of the ambulance with the complainant. He was not permitted to do so and was directed to sit in the front. At the hospital, the applicant was determined to go with the complainant, and became agitated when he was not permitted to do so. He was permitted to say goodbye to her. The State relied upon this evidence as reflective of the applicant's desire to be with the complainant so that he could control what she might say. The defence legitimately noted the behaviour was equally consistent with the applicant being genuinely concerned for the complainant's well-being.
Ambulance officer Aimee Turner gave evidence that whilst in the ambulance on the way to the hospital, she asked the applicant what had happened. The applicant told her that they were "in the shed together, that he was using a soldering iron next to an open, but empty, petrol barrel. The soldering iron sparked, a spark went into the petrol barrel and created the flame that then burnt the complainant".
A doctor working at the Royal Hobart Hospital, Dr Losch, gave evidence that when she was treating the applicant in the early hours on 25 April 2017, he told her that he had been "working in his shop that evening blowing glass…that a spark then hit the ground which was near an open fuel cannister. He kicked the fuel cannister to get it out of the shed and by doing that, the long sweater of his partner caught alight and the burns on his hands were from trying to take the sweater off". The doctor described that the applicant had circumferential injuries to his hands but she observed no other injuries to him. A police officer also gave evidence that he heard the applicant say this to the Doctor.
Senior Constable Paul Smith arrested the applicant at the Royal Hobart Hospital. The applicant said to him "You're fucking joking. If it wasn't for me, she'd be dead. I saved her life … I was in the shed welding a motor bike ignition at the time and there was an explosion".
Senior Constable Smith also gave evidence that the applicant's clothing smelt strongly of fuel when he collected it.
Also tendered on the trial was a recording of a telephone call made by the applicant to the complainant whilst he was in custody on 6 August 2017. The phone call was made via the prison Arunta system which records all calls. In that call, the applicant, inter alia, said to the complainant "Can you just tell the truth". The complainant said "About what?" The applicant said "How it happened … Babe, I did not do that". The complainant replied "What do you mean you didn't do it?" There was further discussion. The applicant then said "Why do you say I did it though?" to which the complainant responded "Because you did, why are you saying you didn't?"
The applicant's evidence at trial
The applicant gave evidence as to the nature of the relationship between him and the complainant. He said from the night after they met, he and the complainant began staying together. He said the relationship was very good to begin with but after a period of time, deteriorated. He described it as "controlling, possessive, jealousy both ways". He suggested the complainant tried to control his Facebook profile by deleting and blocking female contacts. He said there were lots of verbal arguments in the relationship. He said both he and the complainant were verbally abusive to each other. He said he had slapped the complainant once, but had never hit her with a closed fist. He said the complainant had struck him "many times". He said there were many breakups within the relationship but they would quickly "make-up" again. As to the suggestion he endeavoured to limit the time the complainant spent with her mother, he agreed he did not wish for the complainant to spend time with Ms Rodway because he considered Ms Rodway exposed the complainant to criminal activity.
The applicant gave evidence as to the complainant's mental health during the relationship. He said the complainant often spoke to him about her mental health and difficulties she was having. She spoke about how the death of her friend, and sexual abuse at the hands of family members had negatively impacted her. He said the complainant tried to self-harm many times during their relationship. He gave examples of the complainant trying to self-harm in his sister's shed with a handbag strap. He also gave evidence of an occasion she had tried to self-harm by taking pills and him having observed an empty pill bottle.
He said that during the time he was in custody, he and the complainant would have daily contact and that they were both intent on the relationship continuing. They had filled out Intention to Marry forms.
In response to a number of the telephone calls that were recorded, and tendered on the trial, he acknowledged they were "disgusting, appalling". He said, however, that the calls which had been tendered were only a small portion of their communications and there were many loving phone calls that had not been played in Court.
He said after his release from custody in November 2016 he and the complainant immediately resumed their relationship. She stayed with him every night save for a single night in March 2017 when she stayed away. That night they had a video call. At 6.00am the following morning, when his curfew ended, he had his father take him to the complainant's home. He observed a car in the driveway that he did not recognise. When he saw the complainant, she tried to rush him out of the house in a panic saying she was late for work. She dropped him back at his mother's house. A few days later he was told by Jarrod Kringle that he had been at the house that morning and had been there regularly whilst the applicant had been in prison.
In respect to the specific incidents of family violence, which allegedly occurred prior to April 2017, the applicant said there was an occasion where he and the complainant were driving in the Colebrook area. The complainant tried to jump from the car when it was moving at 60 to 80 kilometres per hour. He reacted by "scruffing her" by the arm to prevent her jumping out. He subsequently pulled over and she exited the car. He threw her bag out whilst she was walking past the shop. He followed the complainant slowly in the car, trying to encourage her to get back into it. He saw a lady pull up but did not hear what was said. The complainant told him the only way she would get back into the car was if she drove. She did this and drove away. He fell asleep. He woke to police at the window.
He denied ever having thrown a glass at her which chipped kitchen tiles at Abbotsfield Road. As to the argument on the bike track, he said there had been an argument in which he had locked the complainant out of the car. The complainant had punched the window of the car whilst he was in the driver's seat and then walked off. He had followed her, telling her to get into the vehicle. She had refused to do so. He then drove the car to his parents' house. He met the complainant near the Chigwell shop. They walked off together, arguing. He denied a head butt. He did not dispute biting her hair, but said he could not recall it.
He said there was an occasion where he had picked up a rock and made out as if he was going to throw it at her in the vehicle. This was when they were having an argument at the front of his sister's residence. He did not throw the rock. She drove off and left. He did not put her jumper in the fuel tank.
As to the incident where Dillon Davey was present, the applicant said that he had a verbal argument with the complainant and "a bit of a wrestle" in the bedroom. He did accuse her of recording him on her phone. He agreed the banging that could be heard in the recording was the bedroom door and maybe some things being thrown around. He did not recall details of the incident beyond that.
As to the incident involving Jarrod Kringle, he said Mr Kringle had "offered to come to the house". He and Mr Kringle spent time talking in the shed. The complainant came to the shed. He asked questions of both the complainant and Mr Kringle whilst they sat on chairs in the shed. There was a discussion about jewellery. The applicant knew some of his jewellery had gone missing and had been told Mr Kringle had taken it and sold it. He agreed Mr Kringle was assaulted that day by both him and Davis Eaton. Later that same day the applicant went to Mr Kringle's house and apologised and thanked Mr Kringle for "owning up to it".
In general terms, the applicant agreed the relationship with the complainant was volatile and that they both spoke to each other in a verbally abusive and derogatory manner at times, but he denied any significant episodes of physical violence.
As to 24 April 2017, he said the complainant stayed with him the preceding night and "woke in a bad mood". Throughout the day, there were arguments about the applicant cheating on the complainant with another female by the name of Kristy Graham, also known as Dee. The complainant wanted him to be tested for sexually transmitted diseases. He agreed to do so and an appointment was arranged at the Aboriginal Health Centre. He undertook blood and urine tests. Later that afternoon they went shopping. The complainant asked him when the test results would be available. He had been told it would be at around 4.30/5.00pm. When they returned home to Abbotsfield Road, he made a call to the health centre. He put the call on speaker. The complainant was present. The results were negative. The complainant continued to accuse him of sleeping with Kristy Graham.
There was an argument. He was in the doorway of the bedroom and she was in the room, folding clothes. The complainant rushed at him and punched him to the head two or three times. Wendy Rodway screamed at her to stop. The applicant had a can of Coke in his hand and he shook the contents around the room, squashed the can and threw it onto the bed. He did not throw the can at the complainant.
Wendy took him out of the house saying, "Time to cool down". They went to a house in Chigwell and obtained drugs. He did not consume any drugs at that point but had consumed methyl amphetamine earlier that morning. He then went to his parents' house to do a "small soldering job".
He returned to Abbotsfield Road. He found the complainant in her room, lying on the bed, face down and crying, with a knife beside her. He removed the knife and laid with her for about half an hour. They cuddled and spoke and sorted out the argument.
The complainant went to have a shower and get ready to go to his house. He went outside to the shed area. Whilst he was outside, Wendy Rodway came to talk to him and she told him that whilst they had been out for the afternoon, the complainant had gone to a nearby construction site and tried to hang herself and had also tried to hang herself out the back of the house by tying a yoga rope around an aerial pole. Wendy Rodway told him that the complainant was very fragile. He and the complainant left the home. They went to his sister's house to collect the dog. He was going to make a video with the dog to send to his children on social media.
When they arrived at his house, the complainant went inside the house with her bag. He took the dog to the shed and made a dog run with some white rope. He then retrieved his soldering equipment and took it into the shed. He soldered a bike ignition. The complainant came into the shed with an iPad and a cup of tea. The complainant was sitting on a chair, brushing the dog and flicking through the iPad. His backpack was on the back of the chair and the complainant began to go through the backpack.
'During the course of the interview which was conducted on the 10th July 2017, did [the complainant] give you a description of events that occurred in the late afternoon or early evening of the 24th April …Yes, she did.
Did she say that she had, at a time after Mr Davey had left home with her mother, had gone somewhere for a walk …She did say that, yes.
And that she returned back to her home?...Yes.
And she said this, her words 'I went outside and there was a beam with an aerial out on the roof'…She said that, yes, she did.
And then she told you that the pole she was talking about, or the beam that supported the aerial …Yes
And then she said: 'This is it, this is it, can't remember what I was doing with those bands. I don't know, but I don't want anyone to think that I was going to commit suicide because I was going to commit suicide at about five or six o'clock. I might have been threatening to do it again at nine o'clock. I actually tried it at five or six o'clock or seven, or whatever time it was, but I actually certainly wasn't trying it at nine, and I had these elastic exercise bands and I went and got them out of the cupboard and tried to hang myself, but my feet still touched the ground so it didn't work'.
Suicide attempt, by pure coincidence, on the same day, only a couple of hours earlier than he says she was threatening suicide in the shed of his parents' home. Wow, that's a coincidence, ladies and gentlemen. … A highly emotional young woman threatening suicide, or at least making some gesture to make it look like she was threatening suicide. Absolutely no doubt about it at all.
So you've got a long standing history of mental health issues and depression, you have previous attempts of suicide, one at least – or they may have been attention seeking. Most importantly you lie about it. Why not just say yeah, I did, but that was different. Why is, why she says, 'I don't know what I was going to do' when she was in Court when she's already conceded that she was attempting to hang herself. ….Maybe she was feeling desperate. Maybe she couldn't see a way out. I don't know what she was thinking or feeling because I wasn't in her shoes, but you have to ask yourself why she didn't tell the whole truth about what had happened only a couple of hours before when it is clear that she had made a gesture, a suicide attempt, why would it then not be easy to understand that that's exactly what she was doing when she became emotional with him because she found some woman's email address or something in his bag? It's so stark that you can't ignore it." (AB vol 2 part B 2031-2035).
As is apparent from the extracts from the respective closing submissions, the issue of the complainant's previous mental health difficulties and episodes of suicidal ideation, including on 24 April 2017, were fully agitated by counsel based on evidence that was before the jury. The additional prior inconsistent statement that may (or may not) have been obtained from Dr Poxon being called on the
trial, is not likely, in my view, to have added significantly to the respective arguments. It could not be said that the failure to call Dr Poxon deprived the applicant of being able to agitate a material issue upon the trial, or deprived him of the opportunity to establish an evidentiary foundation from which to advance arguments pertinent to his case. In my assessment, the consequence of the failure to call Dr Poxon was not significant in the context of the overall trial.
Whilst I am of the view that it was an error of prosecutorial judgement to not call Dr Poxon, given the other evidence that was available for the jury's consideration in respect to the issue of the complainant's mental health, I do not consider that there has been a miscarriage of justice as a consequence. This ground of appeal must fail.
Unrepresented ground 17 – fresh evidence
By this ground the applicant appeals against his conviction on the basis that, due to fresh evidence, his conviction is a miscarriage of justice. The basis upon which fresh evidence may ground a successful appeal has been stated many times. If it is credible, or at least capable of belief, and if it raises a significant possibility that the jury, acting reasonably, would have acquitted if the fresh evidence had been before it at the trial, then a miscarriage of justice has occurred and the conviction should be set aside. Mickelberg v The Queen (1989) 167 CLR 259. It is necessary therefore to embark upon an assessment of three critical steps. First, the evidence must meet the requirements necessary to be accepted as fresh evidence. Second, the evidence must be sufficiently cogent, plausible and relevant as to be capable of being accepted as true by a jury; and thirdly, when the fresh evidence is viewed in the light of all of the available evidence at trial, it must be apparent that there has been a miscarriage of justice in that it is a significant possibility that the applicant would have been acquitted if the fresh evidence had been before the jury at trial.
The fresh evidence the applicant seeks to rely upon is from a witness, Brett Corey Pickett. Mr Pickett was called to give evidence at the hearing of the appeal. Mr Pickett's evidence was as follows. In April 2017, he was renting a commercial property in Hull Street, Glenorchy. In part of the property, he had set up accommodation. In April 2017, he was in a sexual relationship with Wendy Rodway and he and Ms Rodway would stay at the Hull Street property. There was an occasion in April 2017 when Wendy Rodway asked him to do a favour by repairing the driver's side window of her daughter's (the complainant's) car. Mr Pickett agreed to do so and the complainant brought her car to his workshop at the property. When she arrived, the complainant parked her vehicle in front of the sliding door of the workshop. Whilst Mr Pickett was looking at the car, Ms Rodway and the complainant went into the shed and were standing down near an office area at the back, left hand corner of the shed. Mr Pickett said that from where he was standing, he could see the complainant and Ms Rodway. At that point of his evidence before the Appeal Court, the applicant tendered a statement written by Mr Pickett. In that statement, Mr Pickett said as follows:
"I received a call from Wendy. She asked if I could have a look at the driver's side window of [the complainant's] car as it wouldn't wind up and it was jammed. I said I would. Soon after, Wendy and [the complainant] turned up and parked at the front sliding door of the workshop. I started to have a look at the door to see if I could see the problem. Wendy and [the complainant] were hanging out inside the workshop. I presumed Wendy was consuming her daily dose of drugs as she would most times when she came to the workshop. From the car I could see inside the shed partly as the steel door was partly open. After a little while I could hear the girls arguing. I heard [the complainant] scream at Wendy and say I fucking knew he was cheating. I just caught him out. This went on for a while. At one point I could see them both at my workbench in each other's face. [The complainant] looked like she was crying. On my workbench I had a small tray with a small amount of petrol in it that I had drained from the petrol tank of my bike that I was painting at the time. From the front seat of [the complainant's] car I saw [the complainant] pick up the tray of petrol and gesture like she was going to throw the petrol over Wendy but then she splashed it over herself. I'm not sure how much of the petrol went on her maybe a litre or so as most of it was on the floor and [the complainant] had a lighter in her hand and was threatening Wendy that she was going to light it. So I ran in and said what's going on. They both went quiet as if nothing had happened and they were all good. Then [the complainant] said to Wendy are you staying or coming? Then they left. I didn't get a chance to fix the window. Before they left I pulled Wendy aside and said don't get into the car while they had petrol on them, I'm sure I've got a change of clothes that would fit her and she said we've only got to go home which is about a five minute drive from my workshop.
The very next day after this I got a call from Wendy saying [the complainant] was in hospital badly burnt and said Matthew was in gaol for it. Straight away I said to Wendy was that from yesterday where she splashed the petrol over herself? She said she wasn't sure as [the complainant] was in a coma, so going off that call from Wendy it must have been the day before that they were at my workshop.
I do know Matthew and we do talk when we see each other. I'd seen him on the outside with [the complainant] sometimes. Since 2017 when he went into custody I've not had the chance to talk to him about any of it face to face. Recently only last week Matthew raised something about his trial and that's when I told him exactly what had happened at my workshop (exactly what I've wrote here). Matthew was shocked and rang his lawyer straight away and then asked me if I'd be willing to say this in court and I said I would. He then asked me to write in my own words exactly what I saw and heard that day.
All this content I swear is true and correct. Wrote (sic) by Brett Pickett dated 13 September 2023."
In his evidence before the Appeal Court, Mr Pickett said the contents of his statement were true and correct.
Mr Pickett was cross-examined on the appeal. He admitted he had a history of committing offences of dishonesty, including by forging documents and producing them in order to dishonestly acquire a financial advantage, providing false information to an airline carrier, presenting a stolen credit card and forging the signature in order to receive goods, and presenting a stolen credit card and forging the signature in order to receive accommodation. He agreed that he had travelled on a false airline ticket in order to enter the State because he knew there was an existing parole warrant out for him and he did not wish to be detected. He was also cross-examined about prior convictions he had for trafficking and aggravated armed robbery. The record of prior convictions of Mr Pickett was tendered.
Mr Pickett was cross-examined about his interactions with the applicant. He agreed that in 2017 he had provided his mobile phone number to the applicant whilst the applicant was in custody so he could communicate with him. He agreed that in 2017, when the applicant was in custody and he was in the community, he was in regular contact with him "for the first couple of months after Matthew got locked up". He agreed that throughout 2016 he and the applicant had spent time together in custody and that they knew each other. He described them as associates rather than friends. He said the applicant was "more friends with Adrian than me". Adrian is Mr Pickett's brother.
As to his relationship with Ms Rodway, he said that he had known her for "probably eight weeks" before the incident he was describing and had met the complainant through Wendy, at about the same time as he met Ms Rodway. He was asked whether he considered the incident that he witnessed between the complainant and Wendy as being something that was extraordinary. He said, "Well no, not really because to you maybe, but at that time, at that time and in that place it probably wasn't, it wasn't out of the ordinary. That sort of stuff happened every day so." He was asked:
"At the time this event you say occurred, was it a surprise to you and did you consider it to be unusual for a young girl to pour petrol over herself? …
No, no."
He was asked whether he had previously seen a person pour petrol on themselves and he said, "No". He said:
"This was the worst thing that happened but it wasn't out of the ordinary for them to come there and fight and argue, all day, every day."
He agreed that what he had observed was a sufficiently significant incident to cause him to intervene. He said he intervened "every other time as well".
Mr Pickett was asked as to whether he, in fact, saw the complainant pour petrol over herself. He said:
"Actually, I didn't actually see her pour the petrol over herself. I seen a gesture as if she was, so I didn't actually see her pour petrol over herself. I seen a gesture as if she was."
He was challenged as to whether that was a different account than that which he had recorded in his statement. He denied there was a difference. Mr Pickett agreed that he offered alternate clothing for the complainant to change into before she departed. He was cross-examined as to whether the applicant had suggested that he include a reference to offering a change of clothes in his statement (given the applicant's evidence at trial was that he suggested to the complainant she change clothes after she had poured petrol upon herself in the shed). Mr Pickett denied the applicant made this suggestion to him and denied that he had any knowledge of the evidence the applicant had given at his trial. Mr Pickett said that he had never spoken to the applicant about his version of what had happened in the shed on 24 April 2017.
Mr Pickett was asked as to when he recalled witnessing this incident and when he told the applicant about it. He said:
"Well, Matthew was talking about his appeal in the yard and then, yeah, and then I hadn't said anything about it before, as I said I was worried about me parole. It still had four and a half years left on me parole and, yeah, it was just, and it was brought up and I assumed that Matthew knew about this. I didn't know that he didn't know about it and then when he, as soon as I told him, he was shocked. I assumed that he knew about it." He said that conversation occurred in September 2023.
He said that was the first time he had discussed what he had witnessed with the applicant. He claimed the applicant had never spoken to him about the events of 24 April 2017. He said he deliberately chose not to tell the applicant about what he had witnessed because he was worried about himself and his parole conditions.
He agreed that after 24 April 2017 he maintained regular contact with Wendy Rodway. He denied relaying information that he received from Wendy Rodway about the complainant to the applicant.
He agreed that after 24 April 2017 he was in contact with the applicant whilst he was in custody. He agreed Wendy Rodway had sold him the applicant's tools and a Skyline car. He agreed that he had told the applicant that he had his tools and car. He agreed that in July 2017 he had a conversation with the applicant in which the applicant asked him to sell the Skyline car for him.
Some audio recordings of telephone calls were played to Mr Pickett during cross-examination. He agreed the calls were between him and the applicant. He agreed that, in part at least, the subject matter of the calls included telling the applicant about photographs he had received from Wendy Rodway which depicted the complainant in hospital. He agreed that he had passed on information to the applicant about the fact Wendy Rodway had "done a deal" with 60 Minutes. He also agreed that
during telephone calls with the applicant he had discussed the media attention the applicant was receiving.
Mr Pickett agreed that he knew the applicant had been charged with causing the injuries to the complainant when he had these telephone conversations with him. In response to questioning as to why he did not convey the information as to what he had allegedly seen in his workshop, he said:
"Because I knew that the phone call was recorded and I knew that – it says on the start of the phone calls recording and I wasn't going to incriminate myself. I wasn't even allowed to associate with Matthew."
He was asked:
"So, at that point in time you knew there was some important information that you'd like to tell him, but you couldn't because of the Arunta call?"
His answer was:
"No, not really. I just didn't think that much into it. Like I said, I told ya, it's like I said to ya, I probably thought about it, but I was too worried about myself and my parole."
Mr Pickett was cross-examined about occasions he had been in custody with the applicant after July 2017. He agreed they had been in custody together but said they were not housed in the same place within the prison very often. He was asked about occasions in December 2017 when he and the applicant were housed together. He agreed that during that time he had the opportunity to speak with the applicant but said he did not ever speak with him about the case. In response to a suggestion that Mr Pickett had numerous opportunities to tell the applicant what he had seen if, in fact, it was true, Mr Pickett said:
"I chose not to until me parole was finished and then once me parole was finished, the first opportunity that I got to speak to Matthew after me parole was finished was this time."
At another point Mr Pickett said:
"Until my parole was finished, I chose not to tell him … If I'd wanted to, I probably could've spoken to him but I hadn't."
Also relevant to this ground of appeal was a witness, Josh Cumberland. Mr Cumberland was employed with Tasmania Prison Service. Through him, a table that indicated dates and locations in which the applicant and Mr Brett Pickett were housed together within various areas of Risdon Prison throughout 2016, was tendered. In summary that table indicated that between April and November 2016, the applicant and Mr Pickett were housed together in the medium security section for 205 days. A second table was provided relevant to a period between 2017 and 2023. In summary, that table revealed that the applicant and Mr Pickett had been housed together in the same unit for a period of 216 days during that time. Mr Cumberland agreed that, in respect to some of the housing units, the ability for two prisoners to be able to communicate with each other would depend upon the proximity of their cells, and whether were in the same "walk groups"; but in other units, the capacity to communicate between prisoners was much easier. He said that he had observed Mr Pickett and the applicant interacting with one another. He was unable to say with any specificity as to how often or when those interactions had occurred.
Fresh evidence – the principles
As noted, where an appeal is brought on the basis of fresh evidence, a miscarriage of justice will be established if the Appeal Court considers that there is a significant possibility that the jury, acting reasonably, would have acquitted the appellant if the fresh evidence had been before it at trial. The
focus, therefore, is on the question of whether, in the case at hand, the fresh evidence is such as to satisfy the Appeal Court that there has been a miscarriage of justice. The Appeal Court has the responsibility of examining the fresh evidence in order to satisfy itself whether the evidence is relevant, credible and cogent (see Mannah v Western Australia [2016] WASCA 19). If the evidence is not credible and cogent it may be rejected. The role of the Court of Appeal on a fresh evidence application is to determine whether the evidence is capable of being accepted as true by a reasonable jury. This necessitates an assessment of the fresh evidence in the context of the whole of the evidence given at the trial.
Evidence is fresh if it did not exist at the time of the trial or could not with reasonable diligence have been discovered. I am satisfied this evidence is fresh in the sense that it did not exist at the time of trial because it had not at that point yet been fabricated. Having observed Mr Pickett give his evidence I do not accept that he witnessed the events he claimed on 23 April 2017. I am in no doubt that his account is a fabrication directed at assisting the applicant. Mr Pickett was not a credible witness and his evidence was neither cogent nor plausible. It tests credulity to accept that Mr Pickett would have seen an incident in his shed, whereby the complainant allegedly splashed petrol on herself and then, despite having many opportunities to do so, did not convey that information to the applicant despite knowing that he was in custody because he had allegedly caused significant injuries to the complainant as a consequence of a fire event. Moreover, aspects of Mr Pickett's account, such as suggesting the complainant change her clothes after splashing petrol on herself almost mirrored the evidence the applicant gave at his trial. I do not consider this to be a coincidence, but is strongly suggestive of Mr Pickett's evidence being tailored.
Mr Pickett's explanation that he felt he could not convey the information to the applicant because of his parole status was not plausible. If the events genuinely occurred then all Mr Pickett would be doing was telling the truth about an incident of significance given the events of 24 April 2017. It is difficult to see how this might jeopardise his parole. To put it bluntly, I found Mr Pickett's evidence inherently implausible and unbelievable.
In assessing the credibility of Mr Pickett's evidence, it is relevant to take into account his character. He has a long history of behaving dishonestly. I have no hesitation in concluding that Mr Pickett gave a dishonest account when he claimed he observed the complainant splash petrol on herself in his shed on 23 April 2017. In my view, no reasonable jury would accept his evidence.
If I am in error as to that, this ground can nevertheless not succeed unless the fresh evidence, when considered in the context of all of the available evidence, leads to a conclusion that a miscarriage of justice had occurred. A miscarriage of justice will not be established unless the fresh evidence is capable of removing the certainty of the applicant's guilt that was established by the evidence at trial. For the reasons I discussed in respect to the unsafe and unsatisfactory ground, in my view, the evidence at trial against the applicant was very strong. The evidence of Mr Pickett is not capable of diminishing its strength. I can identify no basis upon which it can reasonably be suggested that a miscarriage of justice has occurred. This ground of appeal must fail. Disposition
Where necessary, I would grant leave to appeal, but for the reasons expressed I would dismiss the appeal.
File No CCA 3120/2021
MATTHEW JOHN DAVEY v THE STATE OF TASMANIA REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
MARTIN AJ
20 September 2024
I agree the appeal should be dismissed for the reasons given by Jago J.
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