Louise Bai v Chere Anne Hammond
[2013] ACTSC 275
•18 December 2013
ACT SUPREME COURT
Case Title: | Louise Bai v Chere Anne Hammond |
Medium Neutral Citation: | [2013] ACTSC 275 |
Hearing Dates: | 18 December 2013 |
DecisionDate: | 18 December 2013 |
Before: | Murrell CJ |
Decision: | (1) Unauthorised use of firearm – appeal against conviction allowed. Verdict of not guilty entered. (2) Unauthorised possession of firearm – appeal allowed in part. Sentence suspended from date of decision. |
Catchwords: | CRIMINAL LAW – Appeal and new trial – Appeal against conviction – whether finding of fact was open – whether conviction was unsafe and unsatisfactory – whether evidence of admissions was admissible CRIMINAL LAW – Appeal and new trial – Appeal against sentence – whether sentence manifestly excessive – whether erroneous consideration of matters relevant only to the more serious offence |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT) s 12 Evidence Act 2011 (ACT) ss 60, 81 Firearms Act 1996 (ACT) s 43 Australian Law Reform Commission, Uniform Evidence Law, Report No 102 (2006) |
Cases Cited: | Lee v The Queen (1988) 195 CLR 594 M v The Queen (1994) 181 CLR 487 |
Category: | PRINCIPAL JUDGMENT |
Decision Under Appeal: | On Appeal from the Magistrates Court of the Australian Capital Territory |
Parties: | Louise Bai (Appellant) Chere Anne Hammond (Respondent) |
Representation: | Counsel Mr A Hopkins (Appellant) Ms S Gul (Respondent) |
| Solicitors Bevan & Co Lawyers (Appellant) ACT Director of Public Prosecutions (Respondent) | |
File Number(s): | SCA 94 of 2013 |
JUDGMENT
The appellant appeals against her conviction for the offence of unlawful use of a firearm by intentionally discharging the firearm on 20 February 2013. The alleged offence is contrary to s 43(1)(a)(ii) of the Firearms Act 1996 (ACT) (Firearms Act).
In the amended notice of appeal, the appellant claims that:
(1)the Magistrate erred in finding that the evidence established beyond reasonable doubt that a firearm was used;
(2)the verdict was unsafe and unsatisfactory; and
(3)the Magistrate erred in admitting and relying upon evidence of admissions made by the appellant where the evidence was not first-hand evidence of the admissions.
As to the third contention, the Magistrate admitted two items of evidence of admissions. The first item is telephone calls made by the appellant to her sister, Ms Keyes, shortly after the incident in which the victim was shot. The appellant's sister informed the police that Ms Bai had told her, "I triggered a gun." Ms Keyes made a statement to a Detective Perkins, to that effect. Shortly before the hearing in the Magistrates Court, Ms Keyes resiled from that assertion, contending that she hadn’t used the word "triggered", or if she did use that expression then she hadn’t understood what it meant. In effect, she maintained that the word “triggered” had not been used by the appellant. At the Magistrates Court hearing, Ms Keyes was cross‑examined on this matter and her prior police statement was put to her. She maintained that Ms Bai had not told her, "I triggered a gun." Detective Perkins was called to give evidence as to what (according to him) Ms Keyes had told him. Detective Perkins confirmed that Ms Keyes told him that the appellant had said, "I triggered a gun."
The evidence of Detective Perkins can be categorised as second-hand hearsay; he gave evidence of what Ms Keyes said that the appellant had said. The Magistrate relied upon the evidence of Detective Perkins to find that Ms Keyes was an unreliable witness. In addition, relying upon the evidence of Detective Perkins, the Magistrate made an affirmative finding that the appellant had indeed said to Ms Keyes, "I triggered a gun."
There is no doubt that the evidence was admissible through Ms Keyes (as an admission against interest made by the appellant) or through Detective Perkins (for the purpose of attacking the credit of Ms Keyes). The Magistrate had good reasons for finding that, "[t]he circumstances surrounding the creation of the second statement [the exonerating statement of Ms Keyes] are dubious at best." Indeed, the Magistrate would have been on very firm ground in finding that Ms Keyes was a completely unreliable witness.
But to find that a witness is completely unreliable is not to find that the opposite of what the witness says is true. It is simply to dismiss her as a person whose evidence can reliably inform the outcome of proceedings.
The appellant took me to s 81(1) of the Evidence Act 2011 (ACT) (Evidence Act), which provides:
The hearsay rule and opinion rule do not apply to evidence of an admission.
In the dictionary to the Evidence Act, "admission" is defined as follows:
admission means a previous representation that is—
(a)made by a person who is or becomes a party to a proceeding (including a defendant in a criminal proceeding); and
(b)adverse to the person’s interest in the outcome of the proceeding.
If Ms Keyes had given evidence in the proceedings that the appellant had said something against interest, such as, "I trigged a gun," that evidence would have been admissible as an admission pursuant to s 81 of the Evidence Act. However, Ms Keyes did not give that evidence.
Section 60 of the Evidence Act, provides:
(1)The hearsay rule does not apply to evidence of a previous representation that is admitted because it is relevant for a purpose other than proof of an asserted fact.
(2)This section applies whether or not the person who made the representation had personal knowledge of the asserted fact (within the meaning of section 62 (2) (Restriction to first-hand hearsay)).
(3)However, this section does not apply in a criminal proceeding to evidence of an admission.
This provision means that evidence of a previous representation may be admitted for a purpose other than proving an asserted fact. Relevantly, in this case, the evidence of Detective Perkins was admissible for the purpose of establishing that Ms Keyes was an unreliable witness; a witness who lacked credibility and whose evidence should not be accepted. Subsection (3) prevents evidence that comes in via a legitimate route, for example, because it is relevant to credit, from being used as evidence of an admission where it is not otherwise admissible on that basis.
Section 60(3) was inserted in the context of the High Court decision in Lee v The Queen (1988) 195 CLR 594 (Lee). Counsel for the appellant took me to that decision and the related recommendation of the Australian Law Reform Commission in its report entitled, Uniform Evidence Law, Report No 102 (2006), for the purpose of submitting that s 60(3) was intended to make clear that evidence of an admission constituted by a statement which is more remote than first‑hand hearsay should be excluded from the ambit of s 60. He submitted that s 60(3), in effect, preserves the outcome of the decision in Lee with respect to admissions. I accept those submissions.
Counsel for the appellant, set out the relevant series of representations in the Lee case. Those representations followed the same path as did the representation in the present case. In other words, the alleged offender made a statement to a witness that could be construed as an admission against interest. The witness told police about the admission. But when the witness gave evidence in court, the witness' memory failed and they did not give evidence of the admission. The prosecutor then called the police officer to whom the witness had made the representation that the alleged offender had made an admission.
That is the course of events that occurred in the present case. For the reasons given by the High Court in Lee and entrenched in s 60(3), the evidence of the "admission" allegedly made by the appellant to her sister was admissible if the sister gave that evidence in court, but not if evidence about the admission was given by a police officer. If the evidence was led from a police officer it would be second‑hand hearsay.
On the issue directly affecting the guilt of the appellant, the Magistrate should have excluded the evidence of the police officer regarding what Ms Keyes said to him. The only matter to which that evidence was relevant was the credit of the witness, Ms Keyes.
The second item of evidence of "admission" to which I was taken is in a different category. It arose in the evidence of Mr Davis, a friend of the appellant, whom the appellant telephoned shortly after the incident. The evidence of Mr Davis was that he received a telephone call from the appellant who, to the best of his recollection, said:
You must come here now. You've got to come here now. Immediately. You must come here now. You've got to come here. Something terrible has happened.
Mr Davis said:
What's the matter? What's happened? Why, what's the matter? Has there been an accident or something?
She said:
Yes, you've got to come here immediately.
Mr Davis gave evidence as follows:
Now, I think she said, "I shot my boyfriend." I think she said that but I could be wrong. It could have been something like, "He's been shot. It's my boyfriend." Or something like that. I said, in my written submission I said she said, "I shot my boyfriend." But I cannot be 100% sure of that. As I said, it was a screaming conversation and we were more or less talking over each other all the way through it, shouting over each other, I should say.
And then a line or two later:
well, she was obviously in a state of terror. I would say, panic and terror. And she starting babbling something about whether she would be punished or in some kind of trouble in Australia. And I didn't know what she was talking about because as far as I knew her boyfriend was in China, so I said to her, "Look, stop talking nonsense. You're not making any sense. Your boyfriend is in China..." And then she said, "I stole your gun." I said, "What? You stole my gun?" And that was the end of the conversation because Louise [the appellant] hung up on me.
Further evidence about this matter was given in cross‑examination. At that point, Mr Davis confirmed that he had told police that the appellant said to him, "I shot my boyfriend," and he also stated that he didn't tell police the whole conversation because he was never asked about the whole conversation. He stated:
I was not at all certain what she was saying. It was a screaming.
He further stated:
I was under the impression that it was an – you know, an accident or something, you know.
He agreed that the appellant said, "I shot my boyfriend," or "[s]omething like that, but I can't swear to that."
The net result was that Mr Davis recalled that the appellant did say, "I shot my boyfriend," but he could not be certain about that for a number of reasons. One reason was that, in the course of the relevant conversation, he was operating on the assumption that the shooting was an accident. He was also engaged in a “shouting match” during which the appellant was very upset and rather irrational, and he himself was rather shocked. The evidence of Mr Davis was, in effect, that, as far as he recalls, the appellant said, "I shot my boyfriend," but she may have said something that was similar but critically different.
The evidence of Mr Davis to that effect is admissible. It is evidence that the appellant made a statement that could be construed as an admission.
Even if the appellant did say, "I shot my boyfriend," that does not necessarily amount to a concession that "I intentionally shot my boyfriend." There is no dispute that the appellant was armed with the firearm at the time of the incident. There is no dispute that, at the time of the discharge of the firearm, the appellant had hold of it, and her finger was on or near the trigger. There is no doubt that the firearm discharged. There is no doubt that the bullet hit the appellant's then boyfriend. In those circumstances, to say "I shot my boyfriend," is not a clear admission of an intentional shooting of one's boyfriend. Even if the appellant did say, "I shot my boyfriend," that statement is equivocal in terms of intent. That difficulty was not acknowledged by the Magistrate. Nevertheless, the evidence stands as a possible admission to be taken into account with the other evidence.
Apart from the evidence of “admissions”, the case is circumstantial. The victim, Mr Gao, the appellant’s former boyfriend, has left the jurisdiction and returned to China. Consequently, there is no direct evidence as to what occurred.
The first task in a circumstantial evidence case is to identify the relevant circumstances. Apart from the "admission" to Mr Davis (which is not a circumstance, but direct evidence), the evidence is that:
(1)The appellant stole the firearm within 8 days of the incident. She also stole bullets. At the time that she stole the firearm, it was unloaded.
(2)About a month prior to the incident, the appellant was instructed by Mr Davis on the use of the firearm. She knew how to load and use the firearm as at the date of the incident.
(3)For the firearm to have discharged, it must have been loaded and cocked. Inferentially, the appellant loaded and cocked it.
(4)The firearm was pointed in the direction of the victim at the time that it discharged. The firearm was discharged from the area of the door to the bathroom and it travelled with an upward trajectory, passing through the shoulder of the victim, who was standing inside the bathroom. The bullet impacted with the bathroom windows.
(5)The firearm could only have discharged accidentally if the appellant had her finger on the trigger and the victim pulled the rifle towards himself with a reasonably substantial degree of force, a force of 1.9 kilograms, while the appellant's finger remained stationary. On that scenario, the firearm itself could have moved, causing the trigger to become depressed and the firearm to discharge.
(6)There was physical evidence consistent with a struggle in the laundry. There was a broken window. The laundry is in a different part of the house to the bathroom.
(7)The appellant told police that she and the victim had struggled, and that she did not know whose finger was on the firearm when it discharged.
The issue is whether there was no reasonable possibility that the hypothesis in (5) above was true. To put it in another way, having regard to that hypothesis, is the only rational inference that the appellant was guilty in that she intentionally pulled the trigger?
The Crown referred to statements made by the appellant in her record of interview and submitted that the statements lacked credibility. However, neither in the Magistrates Court nor in this Court, did the prosecution invite the court to find that the appellant had told lies, evidencing a consciousness of guilt. The satisfaction of such a test is quite difficult, so perhaps that is not surprising. If the appellant did tell lies, that would go nowhere in relation to proof of the prosecution case. It would simply mean that matters such as the hypothesis proposed by the appellant may be less believable. As the evidence has not been admitted as evidence of consciousness of guilt, then it cannot, in a positive way, assist in establishing that the appellant committed the offence.
On the appeal, the Court was taken to the relevant authorities as to the circumstances in which an appellant court will intervene to set aside a verdict as unsafe and unsatisfactory. In particular, the Court was taken to M v The Queen (1994) 181 CLR 487 at 494-495 (citations omitted). There, the court referred to a jury’s advantage in seeing and hearing the evidence, an advantage not enjoyed by the appellant court, and the court went on to state:
If the evidence upon the record itself contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence.
In this case, there is no significant respect in which the Magistrate enjoyed an advantage over this Court. The case does not turn on whether witnesses are believed or disbelieved. The evidence of Ms Keyes was quite unreliable. The evidence of Mr Davis was accepted by the Magistrate as reasonably reliable. That approach is not contentious.
The only respect in which the Crown alleged that the Magistrate enjoyed a specific advantage is that he had an opportunity to observe the firearm itself. It was a very substantial item which would have required considerable force to wield. I have the evidence, which is not contentious, that considerable force would have been required, 1.9 kilograms. I do not believe that a significant advantage was enjoyed by the Magistrate.
The Magistrate erred in his approach to the evidence of Ms Keyes because he treated the evidence of Detective Perkins about what Ms Keyes said to him as evidence of an admission by Ms Bai. That “admission” should not have been taken into account on the question of the appellant’s guilt. I have examined the evidence of Mr Davis and found that, while his evidence contains material that may amount to an admission, the material is ambiguous. Therefore, the case is a circumstantial evidence case. That is not the basis upon which the Magistrate approached it.
Looking at the matter afresh as a circumstantial evidence case, it is my view that the accidental discharge hypothesis is inherently improbable. There is a very high likelihood that the firearm was deliberately discharged. However, the onus is on the prosecution to prove the case. The prosecution must prove the case beyond reasonable doubt. One of the elements to be proved by the prosecution beyond reasonable doubt is intentional discharge. The accidental discharge hypothesis is one that, in my view, is a rational hypothesis consistent with innocence. I am not satisfied that there is no reasonable possibility that the hypothesis is true. Consequently, the prosecution has not discharged the onus.
I allow the appeal and I enter a verdict of not guilty.
In relation to the sentence imposed for the offence of unlawful possession of a firearm, the appellant claims that the sentence was too severe and the Magistrate erred in taking into account matters relevant only to a more serious offence. The appellant argued that the reasons of the Magistrate demonstrate error in relation to an exercise of the sentencing discretion.
The Magistrate was very much focused on the more serious matter of use of the firearm. He did not assess the objective seriousness of the unlawful possession matter in isolation. He took a practical approach to sentencing, and imposed a concurrent sentence for the possession offence. That is quite understandable. Nevertheless, error has been demonstrated.
I need to consider whether I should exercise my discretion.
I accept the submission for the Crown that the possession offence is an objectively very serious example of such an offence. The appellant stole the firearm, she had it in her possession for a period of days, she stole the associated ammunition, and she transported the firearm insecurely in her vehicle to her premises where she stored it without any security in the vicinity of ammunition. On 20 February she loaded it and she had in her direct possession a loaded firearm. It was in her immediate possession when it discharged, injuring the victim. The appellant conducted herself in a dangerous fashion. The Firearms Act proscribes the possession of firearms because of the risks inherent in possession; the very type of risk that materialised in this case.
On the other hand, the appellant is a woman in her fifties with no prior criminal history. She relied upon character evidence that demonstrates that she is a person of otherwise excellent character.
In my view, what is called for is a small adjustment to the point from which the sentence should be suspended. The appellant has been in custody since 18 November 2013. Prior to being sentenced by the Magistrate, she had spent about three weeks in custody. That period was taken into account when the Magistrate sentenced the appellant. The Magistrate considered that a sentence of five months was appropriate. In my view, it was an appropriate sentence. However, the point at which the sentence should be suspended should be modified slightly.
The appeal is allowed. The sentence of five months’ imprisonment is confirmed. The sentence is to commence on 18 November 2013. The orders of the Magistrate in relation to suspension of the sentence are varied. Pursuant to s 12 of the Crimes (Sentencing) Act 2005 (ACT), I make a suspended sentence order suspending the remainder of the appellant's sentence of imprisonment, a period of four months, upon the appellant entering into a good behaviour order for a period of 12 months from today.
I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of her Honour, Chief Justice Murrell.
Associate: Anneke Bossard
Date: 17 April 2014
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