Grounds One and Two - Error in Admitting into Evidence the Victim's Statement to Police and Miscarriage of Justice Arising from its Use.
26It is convenient to deal with these two grounds together. Ground one complains of error in admitting the physical document as an exhibit. During the hearing of the appeal, contrary to what the appellant appeared to be submitting in writing, the appellant acknowledged that the contents of the statement were relevant and admissible in cross-examination as a prior inconsistent statement. However, it was submitted that the jury would have given disproportionate weight to the victim's statement in the circumstances of the trial and that a miscarriage of justice thereby arose (Ground two).
27The handwritten notes compiled in the hospital were admitted (without objection) as Exhibit A. The victim's police statement and the victim's statement of retraction were tendered by the Crown and became Exhibits O and P respectively. The decision to admit the police statement over objection was made on the basis of the High Court's decision in Adam v The Queen [2001] HCA 57. Consideration was not given to the effect of the amendment of the Evidence Act 1995 (the Act) by the Evidence Amendment Act 2007.
28At the time of the trial, s 101A of the Evidence Act relevantly provided :-
Credibility evidence, in relation to a witness or other person, is evidence relevant to the credibility of the witness or person that:
(a) is relevant only because it affects the assessment of the credibility of the witness or person, or
(b) is relevant:
(i) because it affects the assessment of the credibility of the witness or person, and
(ii) for some other purpose for which it is not admissible, or cannot be used, because of a provision of Parts 3.2 to 3.6.
29The appellant submitted that the victim's police statement was 'credibility evidence' as defined in s 101A(b) of the Act because it affected the credibility of the victim and was relevant for an inadmissible purpose, namely a hearsay purpose. The appellant maintained that the statement did not fall within an exception to the hearsay rule. In particular, it did not fall within the exception where the maker of the representations was available to give evidence (s 66), because the representations were made for the purpose of indicating the evidence the person would be able to give: s 66(3).
30The appellant conceded that the representations contained in the statement were admissible as an exception to the credibility rule, since the statement fell within the exception contained in s 103. It was adduced in cross-examination of the victim by the Crown Prosecutor pursuant to the leave granted under s 38. It could not be seriously contested that the evidence substantially affected the assessment of the credibility of the victim.
31In addition, the contents of the statement were admissible pursuant to s 106 as a prior inconsistent statement. The Crown Prosecutor complied with the requirements of s 106(1) and the victim denied the substance of the evidence, that is, whilst agreeing that she had received burns after she had been doused with methylated spirits which was ignited, she denied any knowledge of how that occurred and that the conduct of the appellant was deliberate : see R v Michael Anthony Ryan (No.7) [2012] NSWSC 1160 ; 218 A Crim R 384.
32Once the contents of the statement were admissible for a non hearsay purpose, the representations constituted evidence of the facts : s 60.
33Counsel at trial invoked s 137 of the Evidence Act to justify the exclusion of the victim's police statement, essentially on the same basis as that advanced on the hearing of the appeal, namely, that the jury would apportion too much weight to the statement. How that consideration constituted a danger of unfair prejudice was not entirely made clear, given that it was never submitted that there was a risk that the jury would misuse the contents of the statement and the exercise required by s 137 is not concerned with the attribution of weight by the tribunal of fact : R v XY [2013] NSWCCA 121 at [66], [68], [163] - [168]. The contents of the statement were clear and unambiguous. There was no room for competing inferences arising out of the contents of the statement. The only conceivable use of the statement was to cast doubt on the reliability of the victim or to prove the commission of the offence. In either case, it was not relevantly prejudicial.
34The probative value of the statement was considerable if accepted by the jury as a truthful version of events. It included material that was wholly consistent with forensic evidence at the scene. Significant material included:
(1)The victim described being dragged from the bed by the appellant holding onto the waist of her pyjama pants, and tearing them in the process. A torn pyjama drawstring was found close to the bed. The victim could offer no explanation when initially asked about the torn drawstring. She agreed that she could not have been given this information by her family or friends.
(2)After the appellant had ripped her pyjama pants the victim got into bed wearing only underpants and a top, which she removed once she was alight. When the ambulance arrived she was only wearing a pair of underpants, consistent with the bottoms being removed at an earlier point in time.
(3)The victim described her mobile phone being broken with the flip part being completely broken off, the battery and back cover separated and the sim card missing. This is an accurate description of the mobile phone as shown in the photographs taken at the scene. In evidence, the victim could offer no explanation as to how her telephone came to be broken and in the position as described in her statement.
(4)In the statement the victim identified the liquid that was spilt on her as being methylated spirits. In her handwritten statement she only described the appellant as spilling liquid on her and at trial she denied that she had smelt methylated spirits. According to the appellant it would have been quite dark in the bedroom when the appellant entered and poured the methylated spirits on the victim. The victim would not have had the opportunity to see the bottle yet she was able to identify the substance as methylated spirits in her statement.
(5)The victim stated that she could hear the sound of a cigarette lighter being operated as she heard the flint contacting the wheel of the light. This is consistent with the sound of a Bic lighter, which was found in the bedroom. According to the appellant, the lighter was in his pocket until after the victim was set alight and only fell from his pocket when he removed his mobile phone to call "000". On the victim's evidence and the appellant's version, there was no way that the victim could have been aware that he had taken the lighter from the kitchen to the bedroom.
(6)The victim stated that she ran into the spare bedroom and threw the burning pyjama top onto a pile of clothes. This is consistent with the fire damage to the spare room.
35A submission that the judge erred in admitting the statement must be determined on the basis of the material available at the time of the decision and the reasons that were advanced against its admission, not by a retrospective analysis of what use was made of it and what prominence it may have assumed. If the evidence was correctly admitted at the time of the ruling, the only remaining question is whether a miscarriage of justice arose from its admission, having regard to other evidence adduced at trial : R v Fletcher [2005] NSWCCA 338, [36] - [42] per Simpson J (McCllelan CJ at CL agreeing).
36No submission was advanced at trial that s 43(2) of the Evidence Act precluded the admission of the statement, on the basis that the victim admitted that she had made a prior inconsistent statement. That submission was advanced on the hearing of the appeal. In so far as the victim acknowledged that she had made the statement, but that she was merely relying upon what others had told her, it may be accepted that she was acknowledging that her police statement was inconsistent with her evidence at trial. However, that does not of itself render the statement inadmissible. As Barr J explained in R v Aslett [2006] NSWCCA 49 (Spigelman CJ and Howie J agreeing) at [76] :-
[Under the Evidence Act] there is a purpose in tendering such statements beyond any attack on credibility, namely proof of the facts asserted: s60. Nothing in s43 is directed to the admissibility of any prior inconsistent statement to prove the truth of its assertions. All subs(2) does is ensure that a witness who is about to be attacked on credit is fairly dealt with. Nothing in s43 purports to limit the effect of ss38, 103 or 60.
37In my view, there was no error in admitting the statement. It had very substantial probative value and there was no risk of unfair prejudice.
38The appellant next submitted that admission of the victim's statement as an exhibit gave rise to a risk that it would be given undue weight (Driscoll v The Queen (1977) 137 CLR 517 at 542; Butera v DPP (Vic) (1987) 164 CLR 180 at 189 -190). It was submitted that the risk was heightened by the formal nature as well as the comprehensive and detailed content of the statement.
39The appellant argued that the risk of undue weight had to be assessed in the light of the emphasis given to the exhibit in the Crown Prosecutor's closing address and in the absence of any warning from the judge not to attribute disproportionate weight to the statement. These factors in combination were said to create a real risk that it would be given disproportionate weight relative to other evidence in the trial (R v NZ [2005] NSWCCA 278 ; (2005) 63 NSWLR 628 at [11]; Gateley v The Queen (2007) 232 CLR 208 at [95]).
40In my view, this argument is misconceived. The victim's statement was not the basis of the evidence she gave at trial. It was not a record of her evidence given at trial. By admitting the statement as an exhibit, the jury were not given access to a reiteration of her evidence. To the contrary, the jury were given an entirely different account to that advanced by the victim at trial. The authorities of NZ and Gately are distinguishable on that basis alone.
41There was no dispute as to the authenticity of the statement : cf Driscoll. The victim agreed that she had signed the document after reading it in order to acknowledge the truth of what had been written. In Butera, at 198, Dawson J referred to this aspect of Driscoll (that the accused claimed that the record of interview was a fabrication) in determining that the transcript of audio recordings did not attract the same considerations as a document, the veracity of which was disputed.
42The submission that there is a reasonable possibility that the use made of the victim's statement may have affected the jury's verdict, causing a miscarriage of justice ought be rejected. The discussion in Baini v The Queen [2012] HCA 59 ; 246 CLR 469 at [53]-[56] and in Lee v R [2013] NSWCCA 68 at [29]-[34] demonstrates that, for the appellant to succeed on ground two, he must establish a causal connection between the admission of the statement and the verdict, in the sense that, but for the admission of the statement, the appellant might have been acquitted. The principal impediment to success on this ground is that there was no error in admitting the statement and there was other copious evidence originating from the victim of the appellant's deliberate conduct leading to the ignition of the bedclothes. Exhibit A fell into that category. In addition, the jury had the advantage of weighing the police statement against the victim's retraction.
43The trial judge gave appropriate directions, including :-
This case is a little different from many criminal prosecutions brought in these courts. In most cases but certainly not all, an alleged victim of crime provides a police statement, giving his or her version of the offence and will give evidence in the trial, supportive of that version. In the present case, there has been much focus by both parties on the original police statement provided by Ms Scott, by reason of the fact that she has not adhered to that version, in the trial itself. Accordingly the parties have spent a significant part of the trial examining the circumstances in which the initial police statement by Ms Scott was made. The police statement which is exhibit O has been admitted into evidence and you will have it available to you in the course of your considerations. It contains a version of events provided by Ms Scott to police in the 3 to 4 weeks after she suffered injuries. It is a matter for you to assess whether the version then supplied by her is the correct version of events and is reliable. If you consider it to be so, it is open to you to use the contents of that statement as part of the evidence. Perhaps you may think an important part of the evidence, upon which you will determine whether the Crown has proved its case beyond a reasonable doubt. In considering whether you accept that the police statement is correct and reliable, you will no doubt have regard to the relevant circumstances in which that statement was made. These include the physical and mental state of Ms Scott when she made the police statement on those three days. The effects of the medication which she had taken on her ability to accurately provide a version of events. Whether or not any of her visitors provided information to her about the alleged events and thus influenced her in her recollection. Whether or not the facts in the police statement were consistent with other accounts she provided to paramedics who attended her and she provided to her family and friends shortly afterwards. The contemporaneous statement she made, those statements at the time about her affection and loyalty towards Mr Col the accused. As well as whether the facts in those statements are consistent with the objective evidence found at the scene. Ladies and gentlemen, these are matters which I suggest you might look at. How you deal with them is a matter for you. Whether you think they are of use is a matter for you but in assessing whether or not you give weight to the statements made by Ms Scott, leading up to her police statement and including it, I suggest that you will need to look and examine those particular issues.
It will also be necessary for you to consider the subsequent statement, exhibit P in which Ms Scott provided a version of events suggestive of accident rather than any criminal conduct by the accused. You will of course consider the evidence given in these proceedings and make your own judgements about the accuracy and reliability of the evidence.
44Defence counsel did not request any further directions at the end of the Summing Up. The absence of a warning from the trial judge against attributing too much weight to the statement was not necessary and was not sought. Rule 4 applies.
45Disregarding the victim's statement, the accounts given by the victim to medical personnel, members of her family and friends, Exhibit A and the objective evidence in combination amounted to a strong Crown case. The retraction by the victim only four days before the commencement of the trial and the victim's evidence at trial did very little to undermine it.
46 I would dismiss grounds one and two.