Louise Bai v Chere Anne Hammond

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

1. 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).

1. 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.

1. 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…