Terrence Tognolini v The Queen
[2015] VSCA 222
•24 August 2015
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2015 0124
| TERRENCE TOGNOLINI | Appellant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | MAXWELL P, REDLICH and BEACH JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 30 July 2015 |
| DATE OF JUDGMENT: | 24 August 2015 |
| MEDIUM NEUTRAL CITATION: | [2015] VSCA 222 |
| JUDGMENT APPEALED FROM: | R v Tognolini (Unreported, County Court of Victoria, Judge Pilgrim, 19 January 2010) |
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CRIMINAL LAW – Conviction – Petition for mercy – Petition for mercy submitted on the basis of fresh evidence – Fresh evidence – Appeal against conviction – Appellant previously convicted of multiple counts of arson and blackmail – Offence for which appellant convicted subsequently confessed to by another – Credibility of fresh evidence – Fresh evidence not credible – Appeal dismissed – Criminal Procedure Act 2009 s 327.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr M H Thomas | Grigor Lawyers |
| For the Crown | Ms D I Piekusis with Mr T Bourbon | Ms V Anscombe, Acting Solicitor for Public Prosecutions |
MAXWELL P
REDLICH JA
BEACH JA:
Introduction
On 6 October 2009, following a jury trial in the County Court, the appellant was convicted of nine counts of blackmail, three counts of arson, one count of threatening to damage property and one count of indecent assault. On 14 September 2009, prior to trial, the appellant had pleaded guilty to one count of assault. On 19 January 2010, the trial judge sentenced the appellant to a total effective sentence of 12 years’ imprisonment, and fixed a non-parole period of 8 years.[1]
[1]DPP v Tognolini (Unreported, County Court of Victoria, Judge Pilgrim, 19 January 2010).
Following sentencing, the appellant sought leave to appeal against conviction. On 30 November 2011, this Court refused the application for leave to appeal.[2]
[2]Tognolini v The Queen [2011] VSCA 394 (‘Tognolini’) (Nettle and Neave JJA and Judd AJA).
On 19 December 2014, the appellant submitted a petition for mercy to the Attorney-General pursuant to s 327 of the Criminal Procedure Act 2009. In the petition, the appellant alleged that there was fresh evidence which was not reasonably available to him at the time of his trial and subsequent application for leave to appeal.
The fresh evidence was said to be that, in 2013, one Rodney Charles Collins pleaded guilty to one of the counts of arson for which the appellant had been convicted at his trial. It was contended that the emergence of this fresh evidence gave rise to a miscarriage of justice in relation to all, or at least some, of his convictions — and specifically in relation to his conviction for the arson of which Collins had now also been convicted.
On 24 June 2015, pursuant to s 327(1)(a) of the Criminal Procedure Act 2009, the Attorney-General referred the appellant’s ‘whole case’ to this Court. In accordance with s 327(2), the Court was required to hear and determine the case ‘as if it were an appeal’ by the appellant.
The appellant’s trial
The appellant’s trial related to offences he was alleged to have committed against the operators of five hydroponics businesses, known respectively as Duralite Hydroponics, Grolite Hydroponics, Holland Forge Hydroponics, Secret Garden Hydroponics and Fastway Hydroponics.[3]
[3]Charges in relation to a sixth hydroponics business, Festive Delights Hydroponics, were severed and ordered by the trial judge to be tried separately. Subsequently a nolle prosequi was entered in relation to these charges.
The appellant was a member of the Hells Angels motorcycle club and operated a competing business known as Nefarious Hydroponics. The Crown alleged that the appellant used his position as a member of the Hells Angels club to threaten the operators of competing businesses, for the purpose of forcing them to deal with him and/or for the purpose of forcing them to cease competing with him. The threats included the possibility of fire. Fires in fact occurred at the premises of four out of the five businesses (Duralite, Grolite, Fastway and Secret Garden). With respect to Grolite, fires occurred at two premises occupied by it, one in Thomastown and one in Campbellfield.
The trial was conducted on the basis that the evidence in respect of all charges was cross-admissible. In summary, the Crown contended that the appellant had employed standover tactics, creating fear and apprehension in his victims by flaunting his membership in the Hells Angels, either to force the business owners to deal with him or to extinguish his competition. It was contended that the appellant’s object was to establish and maintain a foothold in the hydroponics industry. The appellant’s tactics were said to involve blackmail, threats, assaults and arson attacks. The Crown alleged a pattern of strongarm tactics and retribution directed to those who chose to stand up to the appellant.
Duralite Hydroponics (counts 1 and 2)
The Crown case in relation to Duralite Hydroponics was as follows. Duralite was owned by Mr David Francis, and operated from premises in Heatherton. On 7 November 1996, the appellant went to the premises with another and demanded that an employee of the business, Mr Graham Harrington, provide him with the nutrient formulae of the business. When Mr Harrington refused, the appellant became aggressive. He threatened violence and said that he would burn the business.
A few days later, the appellant met with Mr Francis and demanded his nutrient formulae. Mr Francis refused. The appellant said that a fire could be arranged and business would be made difficult. Mr Francis then agreed to supply some chemicals to the appellant, but in December 1996 he told the appellant that he would no longer deal with him. On 28 January 1997, the Duralite factory at Heatherton was damaged by fire. The fire had been deliberately lit using an accelerant and fire lighter.[4]
[4]Tognolini [2011] VSCA 394, [31].
At trial, Mr Francis and Mr Harrington gave evidence in conformity with the Crown case. The appellant was convicted on count 1 (blackmail), but acquitted of count 2 (arson).
Grolite Hydroponics (counts 3–5)
The Crown case in respect of Grolite was as follows. Mr Stephen Mustica operated Grolite. The company had factories in Thomastown and Campbellfield. In about May 1997, the appellant, wearing a Hells Angels jacket, approached Mr Mustica and demanded that he purchase and stock the appellant’s products for sale. When Mr Mustica refused, the appellant became aggressive and referred to recent fires in the industry. The appellant said that he had the backing of the Hells Angels.
On 26 June 1997, the Grolite premises at Thomastown were deliberately set on fire. On 23 July 1997, the Campbellfield shop, which had been opened in late June/early July 1997, was deliberately set on fire. Surveillance footage available at the Campbellfield shop showed an unidentified man smashing a hole in the window, pouring accelerant inside and then setting it alight. Soon after the Campbellfield fire, the appellant attended the Campbellfield shop with another male. There was a confrontation with Mr Mustica. The appellant mentioned the fires, but did not say that he was responsible.[5]
[5]Ibid [33].
At trial, Mr Mustica gave evidence in conformity with the Crown case. He said in evidence-in-chief that the appellant had mentioned the fires in the second meeting but, in cross-examination, he agreed that it was now impossible for him to recall this. The appellant was convicted on count 3 (blackmail), count 4 (arson at Thomastown) and count 5 (arson at Campbellfield).
Holland Forge Hydroponics (counts 6-8)
The Crown case in respect of Holland Forge Hydroponics was as follows. Mr Graham Plummer was the owner of Holland Forge. In June 1997, the appellant demanded that Mr Plummer stock the appellant’s products. When the appellant made this demand, he was wearing clothes indicating his membership of the Hells Angels. He demanded the donation of a $1000 for the Hells Angels ‘Right to Ride’ fund.
The appellant asked Mr Plummer if he was proposing to open a shop in Greensborough. When Mr Plummer responded in the affirmative, the appellant said words to the effect of, ‘That is not going to happen’. The appellant demanded that Mr Plummer carry the appellant’s range of products. At the time of his first meeting with Mr Plummer, the appellant demanded that he, Mr Plummer, produce his driver’s licence. Mr Plummer did so. The appellant then said that he now knew Mr Plummer’s home address. Following the demand for $1,000, Mr Plummer gave the appellant $500 cash and a gift voucher for $500. Mr Plummer commenced to do business with the appellant and, some time later, began to pay a ‘royalty’. No fire occurred at Holland Forge.[6]
[6]Ibid [35].
Mr Holland gave evidence at trial in conformity with the Crown case. The appellant was convicted on counts 6 and 7 (blackmail). He was acquitted by direction on count 8 (another count of blackmail) at the conclusion of the Crown case.
Secret Garden Hydroponics (counts 9 and 11)
The Crown case in respect of Secret Garden Hydroponics was as follows. Secret Garden was a business operated by Mr Mark Hughes and Ms Tani Zubervic. A few months after opening their shop in 1996, they were approached by the appellant who demanded that they stock his nutrients. The appellant was wearing clothing that bore a Hells Angels identification patch. Mr Hughes told the appellant that he would only take his product on consignment. The appellant initially rejected the proposal, although later placed some of his products with Secret Garden. The products failed to sell.
The appellant brought more stock to the shop, and left an invoice demanding payment. During a visit by the appellant in September 1997, the appellant showed Ms Zubervic what appeared to be the butt of a gun tucked into his trousers. He proceeded to stack shelves with his goods and told her that she had 30 days to pay for the stock. In October 1997 the appellant demanded payment from Mr Hughes. Mr Hughes refused, saying that he had not ordered the stock. The appellant became angry and demanded the return of his goods. The good were returned by courier. On 16 January 1998, Secret Garden’s premises at Greensborough were damaged by a deliberately lit fire.[7]
[7]Ibid [37].
Mr Hughes and Ms Zubervic gave evidence in accordance with the Crown case. The appellant was convicted on count 9 (blackmail) and count 11 (arson).
Fastway Hydroponics (counts 10 and 12–19)
The Crown case in relation to Fastway Hydroponics was as follows. Fastway was owned by Antonio and Manuela Ribeiro. In early 1998, the appellant approached Mr Ribeiro, identifying himself as a member of the Hells Angels and demanding that Fastway stock his products. The appellant was told by Mr Ribeiro that he did not need the appellant’s products and would not pay for them. Mr Ribeiro did, however, agree to take products on consignment. The products did not sell, but the appellant demanded money. Mr Ribeiro said that he would not pay because he had not sold the products. The appellant was invited to, but did not, collect his goods. Mr Ribeiro disposed of the goods by dumping them. He did, however, pay one invoice sent by the appellant.
In 2001, Fastway commenced to manufacture hydroponic tubs and sold them at its store and through other stores. The appellant also made tubs, and in mid-2002 told Mr Ribeiro to stop selling these products. When Mr Ribeiro refused, the appellant became angry. Shortly afterwards, on 14 July 2002, the Footscray factory of Fastway was completely destroyed by fire.
About six months after the fire at Footscray, Fastway opened another business in Geelong Road. The appellant visited Mr Ribeiro and demanded $20,000, and that Fastway stock his products. During 2003, Mr Ribeiro was visited by a number of different men on behalf of the appellant, demanding payment and making threats. In December 2003, the appellant went to the Fastway business premises and demanded payment. He placed Mr Ribeiro in a headlock and sprayed him with a fluid from a spray pack. He also struck Mr Ribeiro, and threatened to burn the premises and Mr Ribeiro. In addition, the appellant demanded possession of a fish tank. The visit during which all of this occurred was captured on security video, and a spray pack of the type used to spray Mr Ribeiro was later found at the appellant’s business premises in Coburg. (The assault on Mr Ribeiro gave rise to the assault charge to which the appellant pleaded guilty before trial.)
Also in December 2003, an employee of Fastway, Drew Colosimo, offered to mediate the issues between the appellant and Mr Ribeiro. The Crown case was that Mr Colosimo had been recruited by the appellant to help obtain money from Mr Ribeiro. The arrangement between Mr Colosimo and the appellant was established through telephone intercepts. Mr and Mrs Ribeiro had sought the assistance of the police, who arranged the intercepts.
On 23 December 2003, the Ribeiros and Mr Colosimo went to the Hells Angels’ clubhouse in Thomastown where they paid the appellant $10,000. A further $10,000 was paid to the appellant through Mr Colosimo. While at the clubhouse, the Ribeiros were searched for listening devices. During the course of the search of Mrs Ribeiro, the appellant rubbed Mrs Ribeiro’s breasts (count 18, indecent assault). Subsequently, the Ribeiros traded with the appellant, paying a further $10,000 and supplying the fish tank that had been demanded.
At trial, Mr and Mrs Ribeiro gave evidence in conformity with the Crown case. The appellant was convicted of counts 13, 16, 17 and 19 (blackmail), count 15 (threatening to damage property) and count 18 (indecent assault of Mrs Ribeiro). The appellant was acquitted of one count of blackmail by direction at the conclusion of the Crown case (count 10). Additionally, the appellant was acquitted in respect of the arson charge relating to the July 2002 Footscray factory fire.
The fresh evidence
The appellant tendered the following documents in support of his application:
·the letter to the Attorney-General dated 19 December 2014, submitting the petition for mercy;
·a transcript of the record of interview of Rodney Collins dated 19 April 2013;
·the plea summary for the charges against Collins dated 19 April 2013, as heard at the Melbourne Magistrates’ Court on 8 August 2013; and
·an extract of orders of the Melbourne Magistrates’ Court dated 8 August 2013.
The appellant also produced an affidavit from his solicitor, exhibiting certain newspaper articles. Notably, however, the appellant has not produced an affidavit from Collins.
The following facts are derived from this material. On 22 May 2010, Rodney Collins was sentenced to life imprisonment for two counts of murder. A non-parole period of 32 years was fixed. On 30 July 2012, Collins’ appeals against conviction and sentence were dismissed by this Court.[8]
[8]Collins v The Queen [2012] VSCA 163 (Warren CJ, Redlich and Hansen JJA).
On 3 April 2013, Detective Senior Sergeant Boris Buick of Victoria Police was contacted by a solicitor acting for Collins, who said that Collins wished to see him. On 5 April 2013, Senior Sergeant Buick attended Barwon Prison and spoke with Collins. Collins said that he wanted to confess to a 1997 arson on a Campbellfield hydroponic shop and that, when that matter was dealt with, he wanted to confess to a number of armed robberies and murders.
A record of interview was subsequently conducted with Collins, during which he was asked and answered the following question:
Q11.Okay. Rod, I intend to ask you some questions in relation to an arson that occurred in July 1997, 23 July 1997, at a premises in Mahoneys Road in Campbellfield, at 550 Mahoneys Road in Campbellfield where there was some damage caused to that property by a fire being lit. Can you tell me anything about this?
AYeah. I was the person responsible. I went there, I don’t know, approximately between 12 and 12.30, one o’clock it could have been, I am not too sure of that. I had been smoking a bit of dope so I was a bit stoned. I attended the premises by myself. I smashed a hole in the door and I poured some fuel in there, some petrol, and dropped a match in there and lit it down the bottom where it sort of fucking leaked and I put a little bit down the bottom too where it sort of fucking leaked, and that just set it on fire. The reason why I did it was I brought about 1200 bucks worth of lights and that from there. Anyway later on I found that half of them were faulty. So I went back and seen the bloke. I don’t remember now who the bloke was, I wouldn’t have a fucking clue. Anyway I had a bit of an argument with him and all that business. He didn’t want to refund my money back. I said, ‘Yeah, that’s all right, mate. Yeah, that’s sweet.’ And I left. Then I was going to come back later. I thought I will just let it go for a while, a couple of months, and I will go back and I will fucking rob him when he is leaving or I will burn his fucking shop down, one of the two, either — either one, it didn’t really matter to me, and that the whole — the whole thing — the whole thing was that I was a customer and I wasn’t fucking satisfied, simple as that. As far as I’m concerned a customer should be satisfied with any products that they buy from the shops, so I just ‘fuck you’ and that’s what I did. It wasn’t anything that was well planned or anything like that, it was just something that happened that night on the spur of the moment, even though I thought fucking that — yeah, I will come back and I will fucking rob you one night or something like that when you’re leaving, take your money off you, or fucking burn your shop down, one of the two. So that is what I did. No one else was involved, I did it by myself. How I got there, I drove there.
On a number of occasions during the record of interview, Collins was asked to state when had he purchased the defective goods from the Campbellfield shop. On each occasion, Collins answered that it would have been in February, March or April 1997 and/or that it was ‘three or four months’ before the fire. Asked why he had lit the fire, Collins said:
Because the cunt fucking robbed me … he robbed me. He didn’t want to give me money back, well, fuck you, alright, that’s fair enough as far as I’m concerned.
This explanation for lighting the fire does not sit comfortably with the answer which Collins had given to an earlier question. When asked what had prompted him to confess, he said, ‘I just want to clear my conscience of a few things and I’m starting here’.
Collins was charged with arson in relation to the Campbellfield fire. On 8 August 2013, he pleaded guilty to that charge and was sentenced to two years’ imprisonment, to be served concurrently with the sentence he was then serving (the current life sentence with a non-parole period of 32 years).
Collins has an extensive criminal record, including being sentenced to a term of imprisonment in March 2012 for giving false evidence at an examination. Additionally, he has a significant number of prior convictions for offences of dishonesty. Collins’ prior convictions date from as far back as 1962. His criminal record contains multiple court appearances from that time to the present.
Enquiries made by Detective Senior Sergeant Buick revealed an indirect connection between the appellant and Collins. On 30 April 2013, some 10 or so days after Collins was charged with arson, a Barwon prisoner named Daniel Warwick sent a card to the appellant in which he made reference to ‘a fireman being charged with a fire back in the ‘90s’. From September 2012 to April 2013, Collins and Warwick were incarcerated in the same unit at Barwon Prison. In August 2012, Warwick and Collins had contact by mail. In December 2012, Warwick and the appellant had contact by mail. However, Mr Buick has been unable to obtain copies of any of this mail.
Fresh evidence: principles to be applied
This Court recently reviewed the principles to be applied in a case where it is contended that there has been a miscarriage of justice because fresh evidence has been discovered which, if admitted, might have led to an acquittal. In Werden v The Queen,[9] Osborn JA (with whom Ashley and Priest JJA agreed) said:
[9][2015] VSCA 72 (‘Werden’) (Ashley, Osborn and Priest JJA).
A distinction is generally drawn between ‘fresh’ evidence, that is, evidence which was not available or could not have been relied upon at trial by an accused acting with reasonable diligence, on the one hand, and ‘new’ evidence on the other, that is evidence which could have been called at trial but was not.
A miscarriage of justice will not be as readily established with respect to the second category as the first.
In Gallagher v The Queen, Gibbs CJ said:
The authorities disclose three main considerations which will guide a Court of Criminal Appeal in deciding whether a miscarriage of justice has occurred because evidence now available was not led at the trial. The first of these, that the conviction will not usually be set aside if the evidence relied on could with reasonable diligence have been produced by the accused at the trial, is satisfied in the present case, and need not be discussed, although it should be noted that this is not a universal and inflexible requirement: the strength of the fresh evidence may in some cases be such as to justify interference with the verdict, even though that evidence might have been discovered before the trial. Two other matters that should be taken into consideration are whether the evidence is apparently credible (or at least capable of belief) and whether, if believed, the evidence might reasonably have led the jury to return a different verdict. Although I have stated the matters in that way, it will be seen that there has been some difference of expression, if not of opinion, in the judicial discussion of these questions. The combined effect of the two considerations was stated by Rich and Dixon JJ in Craig v The King, as follows:
A Court of Criminal Appeal has thrown upon it some responsibility of examining the probative value of the fresh evidence. It cannot be said that a miscarriage has occurred unless the fresh evidence has cogency and plausibility as well as relevancy. The fresh evidence must, we think, be of such a character that, if considered in combination with the evidence already given upon the trial the result ought in the minds of reasonable men to be affected. Such evidence should be calculated at least to remove the certainty of the prisoner’s guilt which the former evidence produced. But in judging of the weight of the fresh testimony the probative force and the nature of the evidence already adduced at the trial must be a matter of great importance.
Perhaps no more elaborate statement of the position can usefully be made.
In Mickelberg v The Queen, Toohey and Gaudron JJ said:
There is no very precise formulation of the quality which must attach to fresh evidence before it will ground a successful appeal. It has been said that it must be ‘credible’, ‘cogent’, ‘relevant’, ‘plausible’. In essence, the fresh evidence must be such that, when viewed in combination with the evidence given at trial, it can be said that the jury would have been likely to entertain a reasonable doubt about the guilt of the accused if all the evidence had been before it or, if there be a practical difference, that there is ‘a significant possibility that the jury, acting reasonably, would have acquitted the [accused]’.
In summary, in R v Nguyen Kenny JA said that ordinarily a Court would not be satisfied that a fresh evidence ground was made out unless:
(a)the evidence was not available, or could not with reasonable diligence have become available, at the trial;
(b) the evidence is relevant and otherwise admissible;
(c) the evidence is apparently credible (or at least capable of belief); and
(d)there is a significant possibility (or maybe a likelihood) that the evidence, if believed, would have led the jury, acting reasonably, to acquit the applicant if the evidence had been before it at the trial. (If there is any practical difference between a test expressed in terms of ‘a significant possibility’ and a test expressed in terms of ‘a likelihood’, none has thus far been suggested; for it has been said that ‘likelihood’ is no more than ‘a substantial — a ”real and not remote” — chance regardless of whether it is less or more than 50 per cent’.[10]
[10]Werden [2015] VSCA 72, [67]–[71] (citations omitted).
In the present case, as the Crown accepts, the evidence of Collins’ police interview and plea of guilty was not available to the appellant at trial. The Crown submits, however, that
(a) Collins’ admissions are not credible;
(b) in any event, his proposed evidence does not diminish the Crown case, which was not that the appellant lit the fires himself but that he had organised for, or ordered, others to do so; and
(c) the evidence against the appellant at trial was overwhelming, such that the evidence of Collins, even if believed, would not have affected the outcome of the trial.
Analysis
The critical issue in this proceeding is the credibility of Collins’ evidence. As Gibbs CJ said in Gallagher v The Queen:
There can be no doubt that the Court of Criminal Appeal is required to form some view as to the credibility of the fresh evidence. In some cases the Court of Criminal Appeal will be able to reach a firm conclusion as to whether the evidence is trustworthy or unreliable, but in many cases it will be able to do no more than decide whether or not the evidence is apparently credible, or capable of being believed.[11]
At one level it might be said that almost any account or story is ‘capable of being believed’. That, however, is not the test.
[11]Gallagher v The Queen (1986) 160 CLR 392, 397. See further, Rich v The Queen (2014) 312 ALR 429, 459 [143]–[144] (Nettle, Neave and Osborn JJA).
In the present case, we do not accept that Collins’ evidence is credible. First, in both his original interview with police and in his record of interview, Collins asserts that the products he purchased from the hydroponics shop in Campbellfield were purchased in February, March or April of 1997. While there is a lack of precision as to when the Campbellfield shop opened, it is plain on the evidence that it was some time between the date of the Thomastown fire (26 June 1997) and the date of the Campbellfield fire (23 July 1997). It necessarily follows that Collins could not have made the purchase in question at the time claimed by him. Quite simply, there was no Campbellfield shop in existence at that time.
Secondly, Collins has many prior convictions for dishonesty — including a relatively recent prior conviction for giving false evidence. His confession must, on that account alone, be viewed with scepticism. Thirdly, this is not a case where an admission of criminal conduct is made by a person who risks punishment as a result. Given the lengthy sentence he was serving, Collins’ admissions were made in circumstances which carried no risk at all that he might receive additional punishment. Ordinarily, the self-incriminating nature of a confession will be sufficient assurance of its probable truth, but no such inference is available in these circumstances.
Fourthly, while Collins claimed that he wanted to clear his conscience by confessing to a number of crimes including murder, Collins has not in fact confessed to any other crimes. Fifthly, as noted earlier, his professed reason for confessing to the Campbellfield arson (‘I just want to clear my conscience of a few things’) contradicted what he said at the end of his record of interview — namely, that he still thought it was ‘fair enough’ for him to have lit the fire, as he was not given his money back.
Fifthly, it does not assist the appellant to contend that some of the detail given by Collins in his record of interview (in relation to the way in which he says he committed the arson) gives verisimilitude to Collins’ account. As already noted, the evidence obtained by Detective Senior Sergeant Buick discloses a relevant and significant link — albeit indirect — between the appellant and Collins via the prisoner Warwick.
What has occurred in the present proceeding is importantly different from what might be expected in a fresh evidence case. Ordinarily, an applicant or an appellant in a case such as the present would be expected to produce an affidavit from the person from whom it was proposed to call the fresh evidence. In that way, the Crown (if it chose to) could seek to cross-examine the relevant witness, and the Court would have the opportunity to see and hear the witness, in order to determine whether his or her evidence was sufficiently credible to justify setting aside a conviction and ordering a retrial. The appellant did not take that course in the present case, and this Court is left to determine credibility issues on the basis only of the documents tendered.
It is not even known whether Collins is prepared to give evidence in accordance with his record of interview. The possibility therefore exists that Collins might have to be subpoenaed to give evidence at any retrial, and might then refuse to answer questions or might give evidence inconsistent with his record of interview. The appellant acknowledges these possibilities, but submits that Collins could have his record of interview put to him, and tendered as proof of the truth of its contents.[12] In the circumstances of this case, where the credibility of Collins’ account is critical, that cannot be a sufficient answer.
[12]See generally, Evidence Act 2008 ss 38, 43 and 60.
Finally, and for the sake of completeness, it should be noted that mere proof that Collins has been convicted of the Campbellfield arson would not, in any event, assist the appellant. As already pointed out, the Crown case was not that the appellant had lit the relevant fires himself but rather that they were lit at his behest.
Conclusion
The appeal must be dismissed.
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