1. The applicant was cross-examined as to the nature of the relationship he shared with the complainant. In general terms, he agreed that loyalty was very important to him and that there were rules within the relationship about with whom the complainant could talk. He also agreed that he would have impressed upon the complainant that she was not to speak to police. He agreed that he would question the complainant about her loyalty towards him and that he wanted to know where the complainant was during the course of the relationship. He agreed that he had tampered with the complainant's car "once or twice". In respect to the recordings of the various phone calls that were tendered on the trial, the applicant agreed it was him but suggested he could not recall the particular arguments or what they were about. He agreed he had told the complainant that he had her under surveillance. He said he wanted her to believe that but it was not, in fact, the case. The applicant denied that it was him who exerted the main of the control in the relationship. He said it went "both ways". He denied that he would act in ways that "forced the complainant" to stay in the relationship. He agreed it was possible that he told the complainant "If anyone was going to end it" it would be him.
2. As to the occasion when he slapped the complainant, he said he did it after she had punched him three times to the face. He said he apologised to her the following day. He agreed that he would frequently verbally abuse the complainant. He said, "That was my way of getting to her, verbally, every word I could think of". He agreed he had threatened to burn her house on 8 April 2016. He said it was a "figure of speech" and he did not intend to do it. He agreed that if the complainant challenged him about the nature of their relationship, he would "possibly threaten to kill her" but again, it was simply a "figure of speech".
3. He said after his release from custody he did not believe the arguments were as bad. He agreed that on one occasion he told the complainant that he would kill her if she left him but indicated it was a "figure of speech". He agreed that after his release from custody, it "was possible" that the complainant had indicated to him that she was distressed about the impact the relationship was having on her, but he denied that the complainant was forced to stay with him. He said he could not recall telling the complainant "if he couldn't have her, no one could" but did not deny he may have said it.
4. The applicant denied that the reason he did not like the complainant spending time with her mother was because the complainant would tell her mother about his behaviour and Ms Rodway would then challenge him about his behaviours.
5. The applicant was asked about his drug use. He agreed that on occasion when coming down from drugs he would become paranoid, he agreed that it was "possible" he would become irrational on drugs. He agreed the complainant may have raised with him that his behaviour was aggressive and irrational when he was on drugs. He said he believed he had control of his drug use.
6. As to the evening preceding 24 April, the applicant was challenged as to his evidence that the complainant had stayed the night with him. The Facebook messages were put to him. He accepted he used the Facebook account "Andrew Smith". He said he could not recall sending the messages, but agreed they sounded "like my words". When it was suggested the messages were sent overnight 23-24 April whilst the complainant was at work, the applicant queried the date on the document and queried whether the messages were from 2017. Ultimately, the applicant said he recalled the complainant coming to his house after nightshift and getting into bed for a couple of hours, before returning to Abbotsfield Road.
7. As to 24 April, the applicant admitted that during the argument at Abbotsfield Road he had spat in the complainant's face when she told him the relationship was over. He said it was a stupid reaction and he was ashamed of it. The applicant agreed the complainant was crying, but denied that she did not want to return to his house with him. He agreed the complainant may have told him the relationship was over but said that happened often, and it was just their "normal routine".
8. The applicant denied that he had locked the roller door, or pretended to do so, when he and the complainant entered the shed. He said he could not recall whether there were any papers on the shed floor when his father entered the shed.
9. The applicant was challenged as to why he had not removed the red fuel container from the complainant at an earlier point in time, such as when she was removing the lid or lifting it up. He was challenged about why if she had hold of a lighter and was flicking it, he had taken it and placed it on a nearby bench rather than out of her reach. The applicant's response to such critiques was to the effect that it was a fast moving event. He was also asked to demonstrate during cross-examination how he had removed the fuel container from the complainant. It was part of the State's case that the manner in which he demonstrated he removed it from her was inherently unlikely and unnatural and a contrived account to explain forensic evidence found on the red fuel container.
10. When challenged about why contents within the green backpack had stayed within it, despite his evidence that the complainant had vigorously shaken it, the applicant suggested that the contents of the backpack that were tendered on the trial were not the same contents as had been it in the shed. He suggested additional items had been placed into the green backpack following its collection from the scene. The applicant suggested that he could not recall specifically how he had picked the complainant up and carried her outside the shed. He also said he could not recall what parts of the complainant were alight.
11. As to the various versions of events he gave to others following the incident, the applicant said he did not recall much of what had occurred after the fire. He said he was "in a bad state".

Represented ground 1 - majority verdict of guilty of attempted murder not lawful

1. By this appeal ground the applicant contends that the trial judge was in error by accepting a majority verdict of guilty in respect to the charge of attempted murder.
2. Section 43 of the Juries Act 2003 provides:

"43 Failure to reach unanimous verdict in criminal trials

(1) If, after deliberating for at least 2 hours, a jury in a criminal trial, other than one relating to treason or murder, has not reached a unanimous verdict, the court is to take a majority verdict as the verdict of the jury.

(2) If, after deliberating for at least 6 hours, a jury in a criminal trial relating to treason or murder has not reached a unanimous verdict, the court is to take a majority verdict of not guilty as the verdict of the jury.

(3) A verdict that the accused is guilty of murder or treason is to be unanimous.

(4) If in a criminal trial, after deliberating for the period referred to in subsection (1) or (2) as appropriate, a jury has not reached a unanimous verdict and there is no majority verdict, the court may discharge the jury unless the court considers further deliberation is desirable.

(5) In a criminal trial, a majority verdict on an alternative crime may be taken as the verdict of the jury if -

(a) it is possible for the jury to return a verdict of not guilty of the crime charged but guilty of another crime with which the accused has not been charged; and

(b) the jury reaches a verdict, unanimously or by majority verdict, that the accused is not guilty of the crime charged; and

(c) the jury is unable to agree on its verdict on the alternative crime after a cumulative total of at least -

(i) 2 hours deliberation on both crimes in the case of a criminal trial referred to in subsection (1); or

(ii) 6 hours deliberation on both crimes in the case of a crime referred to in subsection (2)."

1. The applicant submits that a criminal trial in which an accused is charged with attempted murder is "a criminal trial relating to ... murder" and therefore s 43(1) of the Juries Act does not operate to permit the taking of a majority verdict.
2. The applicant contends the natural and ordinary meaning of the phrase "in a criminal trial relating to murder" must include trials in respect to charges of attempted murder, and if Parliament intended that majority verdicts operated in respect to the crime of attempting to commit murder then the exception provided for in that section could readily have been enunciated in very clear terms; for example by specifying "In a criminal trial where an accused is charged with the crime of treason or murder...". The applicant contends the broader interpretation he argues for is supported by the fact the crime of attempting to commit murder is charged contrary to s 299 and s 158 of the Criminal Code; s 158 being, of course, the section which creates the crime of murder.
3. The term "relating to" is an expression which has been described as "extremely wide but ... also vague and indefinite". In Tooheys Limited v Commissioner of Stamp Duties (NSW) [1961] HCA 35; (1961) 105 CLR 602, Kitto J at 618 noted:

"It is, I apprehend, in accordance with the general rule of construction in every case, that you are not only to look at the words, but you are to look at the context, the collocation, and the object of such words relating to such a matter, and interpret the meaning according to what would appear to be the meaning intended to by conveyed by the use of the words under such circumstances. The same words might mean a very different thing, when put in to impose a tax, from what they would mean when exempting from a tax".

"There can be no doubt that the expression 'relating to' can be extremely wide but it is also vague and indefinite. Clearly enough it predicates the existence of some kind of relationship but it leaves unspecified the plane upon which the relationship is to be sought and identified. That being so all that a court can do is to endeavour to seek some precision in the context in which the expression is used."

1. In circumstances where there is ambiguity in the interpretation of legislation, reference is often had as to the context of the legislation, including its legislative history. Section 8B of the Acts Interpretation Act 1931 (Tas) provides:

"8B Use of extrinsic material in interpretation

(1) Subject to subsection (2), in the interpretation of a provision of an Act, consideration may be given to extrinsic material capable of assisting in the interpretation -

(a) if the provision is ambiguous or obscure, to provide an interpretation of it; or

(b) if the ordinary meaning of the provision leads to a result that is manifestly absurd or is unreasonable, to provide an interpretation that avoids such a result; or

(c) in any other case, to confirm the interpretation conveyed by the ordinary meaning of the provision.

(2) In determining whether consideration should be given to extrinsic material, and in determining the weight to be given to extrinsic material, regard is to be given to -

(a) the desirability of a provision being interpreted as having its ordinary meaning; and

(b) the undesirability of prolonging legal or other proceedings without compensating advantage; and

extrinsic material in relation to a provision of an Act, means material not forming part of the Act, including -

(a) material that is set out in the document containing the text of the Act as printed by the Government Printer; and

(b) a relevant report of a Royal Commission, Law Reform Commission or Commissioner, board or committee of inquiry, or a similar body, that was laid before either House of Parliament before the provision concerned was enacted; and

(c) a relevant report of a committee of Parliament or of either House of Parliament that was made to Parliament or that House of Parliament before the provision was enacted; and

(d) a treaty or other international agreement that is mentioned in the Act; and

(e) any explanatory note, clause note or memorandum relating to the Bill that contained the provision, or any other relevant document, that was laid before, or given or otherwise made available to the members of, either House of Parliament by the member bringing in the Bill before the provision was enacted; and

(f) the speech made to a House of Parliament by a member of the House in moving a motion that the Bill be read a second time; and

(g) relevant material in the Votes and Proceedings of either House of Parliament or in any official record of debates in Parliament or either House of Parliament; and

(h) a document that is declared by an Act to be a relevant document for the purposes of this section;

ordinary meaning means the ordinary meaning conveyed by a provision having regard to its context in the Act and to the purpose or object of the Act."

1. The applicant contends this Court should not have regard to any extrinsic material because s 43 of the Juries Act contains no ambiguity or obscurity which warrants reference to such material. The words, the applicant contends are obvious on their face. In my view, the very argument the applicant contends for highlights the ambiguity. Do the words "a criminal trial relating to ... murder" mean only a criminal trial in which the accused is charged with the crime of murder, or do they extend to include criminal trials where the charge alleged has a connection to, or a relationship with, the crime of murder such as attempting to commit murder or being an accessory after the fact of murder? Moreover, if it is the later, why is s 43(3) of the Juries Act limited in its scope to two specific crimes - treason and murder. In my view, ambiguity exists and it is appropriate to have regard to extrinsic materials. Extrinsic material may include the speech made to a House of Parliament by a Member of the House in moving a motion that a Bill can be read a second time: 8B(3)(f) Acts Interpretation Act 1931.
2. The second reading speech of the Juries Bill 2003 occurred on 19 August 2003. The then Minister for Justice and Industrial Relations introduced the Bill and said:

"A majority verdict of ten may be given in all criminal trials except a trial for treason or murder. A verdict that an accused is guilty of treason or murder must be unanimous".

1. It is apparent from such comments that the intention was that a unanimous verdict was required in relation to treason or murder trials, but majority verdicts could be accepted in "all other criminal trials".
2. This interpretation is also consistent with s 43(3) of the Juries Act. If a verdict in respect to the crime of attempting to commit murder was also intended to be unanimous, one would expect it to have been included in this sub-section. Its absence from this section strongly supports the contention that a majority verdict can be accepted for the crime of attempting to commit murder, provided the other requirements pertaining to the passage of time are satisfied.
3. The legislative history of majority verdicts is also consistent with that interpretation.
4. Majority verdicts were introduced in Tasmania with effect from 10 August 1936 by the Statute Law Revision Act 1934. At that time, ss 56 and 151 of the Criminal Code required any person convicted of treason or murder to be sentenced to death, subject to an exception for persons under the age of 18 years pursuant to s 389. The 1934 Act amended the Jury Act 1899. It introduced a new s 48(2) which provided for majority verdicts of ten jurors "on the trial of any criminal issue, other than a charge of a crime punishable with death". It also introduced a new s 48(3), permitting majority verdicts of ten jurors after six hours to be accepted as verdicts that the accused was not guilty, or not guilty of murder but guilty of manslaughter, on the trial of any criminal issue on a charge of a crime punishable with death.
5. Those sub-sections were repealed and replaced by the Jury Act 1966, without affecting any substantial change. The new s 48(2) provided for majority verdicts of ten jurors after "a jury has remained in deliberation for the necessary period". However, the new s 48(3) provided as follows:

"Sub-section 2 of this section does not apply to a verdict that the accused is guilty of a crime punishable by death or any special finding upon which the accused would be convicted of such a crime".

1. The death penalty for treason and murder was abolished in Tasmania by the Criminal Code Act 1968. Sections 56 and 158 of the Criminal Code were amended to provide for mandatory sentences of life imprisonment. Section 48(3) of the Jury Act 1899 was amended to apply in relation to "a verdict that the accused is guilty of treason, murder, or of a crime punishable by death or any special finding upon which the accused would be convicted of such a crime".
2. Section 48 remained in that form until the Jury Act 1899 was repealed and replaced by the Juries Act 2003. There was nothing in the 1899 Act that could be interpreted as exempting a verdict on a charge of attempting to commit murder from the majority verdict provisions in s 48(2).
3. As already noted, the 2003 Act provides for majority verdicts in s 43. The words "relating to" in ss 43(1) and (2) were not used in any earlier Tasmanian legislation relating to majority verdicts. If it had been the intention of Parliament to extend the exception from the majority verdict legislation to charges of attempting to commit murder, or being an accessory after the fact to murder, under ss 299 or 300 of the Code, so that unanimity was always required for a guilty verdict on any such charge, one would expect that change to be mentioned in the relevant second reading speech. Nothing was said about any such intended change.
4. Indeed, Michael Hodgman, Member for Denison, said the following:

"I am raising it to reaffirm how absolutely vital it is that we retain the unanimous verdict in what used to be called capital crimes but today are referred to specifically as the crimes of murder and treason. It is very, very important that on conviction for murder or treason, which in the old days carried the death penalty, the verdict had to be unanimous".

1. The acceptance of majority verdicts in cases of attempting to commit murder is also consistent with the applicable sentencing regime. That is, where a crime carries a maximum penalty of life imprisonment, the Juries Act retains a requirement for a unanimous guilty verdict, but for all other crimes to which the maximum penalty of 21 years imprisonment applies, the Juries Act permits the return of a majority verdict of guilty.
2. In my view, this ground is without merit.

Represented ground 2 - the admission of tendency evidence

1. By this ground, the applicant contends the trial judge erred in admitting evidence of the applicant and complainant's previous relationship to prove tendencies on the part of the applicant. The applicant does not contend the evidence as to the nature of the relationship was entirely inadmissible on the trial. It is accepted that the State were entitled to adduce evidence of the nature of the relationship to provide context and background to the events of 24 April 2017, and that such evidence could be used by the jury in a circumstantial manner to consider the state of mind of the applicant at the relevant time. The error, the applicant contends, was to permit the jury to use the evidence as evidence which, if accepted, established that the applicant had a tendency to behave in particular ways towards the complainant, and within the relationship.
2. The State asserted, in a notice of tendency dated 23 July 2021, that the applicant had a tendency to assert control and dominance over the complainant and in particular he would:

(a) exercise control over the relationship;

(b) act violently (either verbally or physically) towards the complainant when he was losing control of the complainant or the relationship;

(c) act violently (either verbally or physically) in the complainant's presence when he was losing control of the complainant or the relationship; and

(d) use burning as a means to threaten, intimidate or harm the complainant.

1. Further, the State asserted the applicant would attempt to exercise control over the relationship by doing various things including:

(a) keeping her under surveillance by checking her whereabouts, taking and or checking her phone and by contacting her constantly;

(b) limiting the persons she could socialise with including members of her family, friends and associates;

(c) obstructing her ability to remove herself from him by disabling her car, physically restraining her, preventing her from leaving the room and/or her car;

(d) threatening to kill or harm her or her family if she left the relationship;

(e) directing verbal abuse towards her including making derogatory, belittling and/or demeaning comments towards the complainant and/or her family;

(f) directing physical violence towards her including striking her, and throwing objects at her;

(g) threatening to physically harm her in words or by gestures; and

(h) directing physical harm at property in her presence including her car and glassware.

1. The background to the admission of tendency evidence was that the applicant was originally charged on indictment with a first count alleging persistent family violence and a second count alleging attempting to commit murder, or in the alternative committing an unlawful act intended to cause bodily harm.
2. The applicant, through his counsel, applied for severance of count 1 from the balance of the indictment on the basis of s 311(2) of the Criminal Code. The trial judge severed count 1 but determined that "the general evidence of the relationship, evidence of the specific acts that were said to relate to Count 1 - violent acts, evidence of the recorded conversations that we heard during the pre-recorded evidence, I am satisfied that all of that evidence is relevant and logically probative in relation to the proof of Count 2".
3. Moreover, the learned trial judge was satisfied that the evidence was admissible as tendency evidence. He noted "all of the evidence of the history of the relationship that is identified in the tendency evidence notice ... including the historical description of relevant events by the complainant, including as to the specific acts which would have been relevant to Count 1 ... supports the proof of those tendencies": (AB Vol 2 Pt A pg 330-332).
4. Further, the learned trial judge noted "the second question, that is, the extent to which those tendencies, if established, may make more likely the facts in issue, they are particularly pertinent, in my view, to the question of whether it was he who threw the petrol, as alleged by the complainant, whether it was he who set it alight, and they also impact to some extent on his intent, although I think really the probative value is in relation to whether he has committed those acts ... demonstrating the tendencies will directly and significantly affect the assessment of the probability of the truth of the asserted facts in issue": (AB Vol 2 Pt A pg 330-332).
5. As to the question of unfair prejudice, the learned trial judge noted "In the circumstances of this case, I think that the prejudice arises, as Mr Richardson submitted, from the quite raw and relatively confronting evidence of the recorded conversations, the risk of, or the potential for, emotional reaction to that evidence by the jury and the risk that they will place too much weight on that emotional reaction and be diverted by that emotional reaction in relation to the consideration of the facts in issue ... I acknowledge that those risks exist. I am satisfied that the risk can be substantially obviated by appropriate directions. My judgment is that the probative value of the evidence is significant and high and does substantially outweigh the prejudicial effect of the evidence": (AB Vol 2 Pt A pg 330-332).

The principles relating to the admissibility of tendency evidence

1. Tendency evidence is governed by ss 97 and 101 of the Evidence Act. Such evidence is admissible only if the Court considers that the evidence, either by itself or having regard to other evidence, will have "significant probative value". The evidence is not admissible unless the probative value substantially outweighs any prejudicial effect upon the accused.
2. Determination of the admissibility of such evidence involves an evaluative judgment and therefore the question for any appeal court considering a ground of appeal of this nature is to determine whether any miscarriage of justice has been occasioned by the admission of the tendency evidence. The determination of whether the trial miscarried in consequence of the admission of the tendency evidence is concerned with the use made of the evidence at the trial irrespective of the trial judge's determination to admit it.
3. It is for this Court to determine for itself whether the evidence was of significant probative value, as opposed to deciding whether it was open to the trial judge to conclude that it was. In McPhillamy v The Queen [2018] HCA 52, 92 ALJR 1045 at [11], citing Bauer at [61], the Court said:

"Regardless of the reasons that informed the trial judge's decision to admit the tendency evidence, the determination of whether the trial miscarried in consequence of its admission is concerned with the use made of the evidence at the trial".

1. To be of significant probative value, evidence must assessed to make more likely, to a significant extent, a fact in issue in the proceedings: Hughes v The Queen [2017] HCA 20, 263 CLR 338 at [40]. More recently, in TL v The King [2022] HCA 35, 275 CLR 83, the High Court summarised the principles at [28]:

"28 Assessment of the probative value of evidence requires that the possible use to which the evidence might be put be taken at its highest. Taking evidence at its highest assumes that the evidence is reliable and credible. This assumption will only be displaced where the evidence could not be accepted by a rational jury. To be admissible under s 97(1)(b), the court must think that the evidence will have significant probative value, based on an assessment of the evidence both by itself and 'having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence'. For evidence to have 'significant probative value', it 'should make more likely, to a significant extent, the facts that make up the elements of the offence charged'; in other words, the evidence must be 'important' or 'of consequence' to the assessment of the probability of the existence of a fact in issue. It is sufficient if the disputed evidence together with other evidence makes significantly more likely any facts making up the elements of the offence charged." (Citations removed.)

1. In assessing the question of unfair prejudice, it must be borne in mind that evidence is not unfairly prejudicial because it strengthens the prosecution case. It is unfairly prejudicial only when the jury is likely to give the evidence more weight than it deserves, or when the nature or content of the evidence may improperly influence the jury or divert the jurors from their task: Festa V The Queen [2001] HCA 72; 208 CLR 593 at [51] per McHugh J. In determining whether a danger of unfair prejudice has been established it is appropriate to have regard to directions that can be given to circumvent any potential misuse of the evidence: R v XY [2013] NSWCCA 121; 84 NSWLR 363 at [192].
2. In applying those principles, and assessing the capacity of the evidence to be of importance to a rational assessment of a fact in issue, it is necessary to evaluate the evidence in the context of the whole circumstances of the case. Here, a fundamental fact in issue was how the complainant came to be set alight. The complainant's account was that earlier in the afternoon she had told the applicant the relationship was over and she did not intend to stay with him at the house. The act of the applicant splashing petrol on her occurred on her account after a verbal argument in which she told the applicant she wanted to leave and wanted to go home. The applicant told her she "wasn't going anywhere" and threw petrol on her. On the complainant's account, this was followed by the applicant telling her she should stay at his residence and have a shower and change into his clothes. It was upon her refusal to do so, and against her continued insistence that she was leaving, that the applicant, as the complainant walked towards the door to exit the shed, extended his arm and flicked the cigarette lighter causing her to be set alight. Her account, if accepted, suggested the applicant's behaviour was controlling in two distinct aspects. Firstly, the splashing of petrol upon her which provided the opportunity for the applicant to then encourage her to stay at his house; and secondly, when this endeavour appeared to be unsuccessful and the complainant insisted on leaving, a more extreme act of control was, arguably, embarked upon.
3. The applicant's version of events was that whilst in the shed the complainant was very emotional and fragile and displaying jealous behaviours. She had an extreme reaction to seeing a message on an iPad suggesting the applicant had been unfaithful. She splashed petrol over herself and threatened to ignite herself by flicking a cigarette lighter. Subsequently, upon finding a piece of paper with an email address on it she had another emotional and jealous reaction and set fire to the piece of paper which in turn set fire to a piece of carpet, and in the process of trying to stamp that fire out, she caught herself alight.
4. The issue of whether the complainant had been set alight as a consequence of controlling acts or an inadvertent error, against a background of emotional distress and jealous reaction, was central to the trial. Therefore, assessing the likelihood of the applicant engaging in such controlling behaviour, considering whether he had done so previously, and considering whether he had a tendency to engage in controlling behaviour generally, was highly relevant to the question of how the complainant was set on fire. The applicant contends that evidence of controlling behaviour simpliciter was of little probative value in considering whether the applicant committed the more extreme, potentially lethal act, of setting the complainant alight. The submission is made that whilst the evidence as to how the applicant behaved towards the complainant previously in the relationship may be capable of establishing "a tendency to try to control the complainant by way of violence of some form, by way of, for instance, screaming at the complainant, 'no you're going to stay here' ... But they would not have been significantly probative of the use of extreme and potentially lethal violence". I do not accept that submission. Firstly, the evidence was directed at establishing the applicant had a tendency to exert control and dominance over the complainant. The jury were entitled to consider that the mechanism by which he did that varied on occasions, and involved varying degrees of intensity. The evidence suggested that sometimes the applicant would be physically abusive, other times verbally abusive, sometimes threatening including serious threats to burn her and/or her property or kill her, sometimes deprive her of the means to leave, on occasions seek to control her behaviour by demonstrating he would cause harm to others if she did not comply, and sometimes he would be intimidating or seek to overawe the complainant by suggesting he was constantly watching her or had others doing it for him. The evidence, if accepted, suggested there was a myriad of ways in which the applicant would seek to dominate and control the complainant.
5. It was not necessary for the tendency evidence to be strikingly similar or have precisely the same characteristics to the nature of the fact in issue at trial; The Queen v Bauer (a pseudonym) [2018] HCA 40, 266 CLR 56 at [48]- [49]. The significant probative value of the tendency evidence was that it demonstrated a want to exercise control and dominance within the relationship and a preparedness to use various means to achieve that. If the jury was of the view that the applicant possessed a tendency to act in that way, that is, use various means of violence toward the complainant when he was losing control of her or the relationship, then it was highly probative of the question of how the complainant came to be set alight. Was it at the hands of the applicant in circumstances where the complainant was showing resistance to him and about to walk away, or was it reasonably possible that it was an inadvertent error committed when the complainant was highly emotional?
6. In my view, it was because the tendency evidence was so confronting, and suggestive of the applicant being a very controlling, cruel and unpleasant individual within the relationship, that it had such a high probative value. Throwing petrol on a person and subsequently setting a person alight are extreme acts. Logic and human experience would suggest that a person who is not prone to extreme behaviours may well not engage in such an act. If the tendency evidence had simply suggested that on occasion the applicant had called the complainant some abusive or derogatory names, then its probative value would have been far less. But the tendency evidence, if accepted, went far beyond that. Within the evidence there were examples of the applicant using fire and burning as a threat, including threatening to light the complainant's jumper by placing it in a fuel tank and threats to burn her car and her house. The fact of such threats, if accepted, made it inherently more likely that in the shed, in an endeavour to control the complainant's behaviour, the applicant threw fuel on her.
7. Moreover, the tendency evidence, if accepted, demonstrated a considerable power imbalance within the relationship; it was evidence of extreme threats - including threats to kill being made; it was evidence of the applicant seeking to control and dominate the complainant and compel loyalty by various means; it was evidence of very volatile, abusive, demeaning and derogatory behaviour of the applicant towards the complainant; it was evidence of the applicant being prepared to say and do quite extreme things to ensure he maintained control of the complainant and the relationship. So whilst I agree with the applicant's submission that it is difficult to listen to all the recorded evidence and not form the view that the applicant was a "really unpleasant" person in the context of the relationship, it is the offensive nature of the material that gives it such a high probative value. Absent the evidence of the volatile, cruel and abusive manner in which the applicant treated the complainant during the relationship, it may be difficult for a jury to accept that an individual could act in such a cruel and extreme way towards a person with whom he shared a relationship.
8. Beyond the value of the evidence in assessing the mechanism by which the complainant came to be set alight, the tendency evidence also had probative value in other important ways. The evidence suggested that the applicant had a tendency to demand loyalty from the complainant, and also suggested the complainant was fearful of leaving the relationship because of threats made by the applicant to her and family members. This was relevant to the jury assessing why the complainant went to the applicant's home on the evening of 24 April 2017, and in particular, whether she remained minded that the relationship was at an end. Her state of mind as to whether the relationship was at an end was relevant to the assessment of the applicant's claim that she was reacting jealously towards him and splashed the fuel on herself and threatened to burn herself.
9. The evidence was also relevant, although in my view to a lesser extent, to an assessment of the applicant's state of mind, if the jury were satisfied that the applicant was responsible for the physical act of setting the complainant alight. The tendency evidence included several examples of previous threats to kill in the context of the complainant wishing to end the relationship. The jury were entitled to consider that the complainant's behaviour in the shed strongly suggested she was definitively ending the relationship, and that the applicant's endeavours to dictate otherwise were, perhaps for the first time, proving unsuccessful. He had thrown petrol on her, he had told her to stay and shower at his house, but the complainant continued to insist she was leaving. When the complainant moved towards the door to leave, the applicant set fire to the complainant. They were entitled to consider whether at that point he had an intention to kill in the context of how he had behaved towards the complainant at previous times in the relationship when she had tried to end it.
10. As I have noted, I have listened to the recordings that were tendered on the trial. There is no question the recordings are confronting and capable of invoking an emotional response. There was also a considerable amount of tendency evidence introducing the risk that too much weight is placed upon it. It would be naive to consider that the material was not prejudicial to the applicant. But the question of admissibility rests upon an evaluation of the probative value of the evidence substantially outweighing the prejudicial effect. As I have indicated, the probative value of the evidence was very high. The prejudicial effect of the evidence existed but it was substantially ameliorated by the detailed directions the trial judge gave the jury as to the approach they should take to the evidence, and the manner in which they were permitted to use the evidence. No complaint is made by the applicant in respect of the directions.
11. The trail judge emphasised to the jury that they should take great care to ensure they did not allow any emotional reaction to influence their deliberations and to limit their use of the evidence to the specific purposes for which it had been admitted. The trial judge said:

"The point I want to make at this time is any previous conduct is not the subject of the charges before you. You would not usually hear about such conduct or any other wrongdoing because the fact that somebody did something on another occasion or is a person of particular character or a person who engages in certain types of discreditable conduct is, as a matter of logic, not relevant to whether someone did a specific act on the occasion in question. I am sure that must be obvious to you.

In this case, that evidence has been admitted. It normally wouldn't be admitted. In this case it has been admitted and it has been admitted for a very specific purpose which I will discuss with you in a moment. You must take great care to use the evidence for those purposes. I'm emphasising this because it is a very significant feature of the case. You couldn't sit for weeks listening to all of that evidence without having some form of reaction to it. And the accused himself said that he was disgusted by what he had heard on the recording.

You have to be very careful with how you use the evidence that bears on the relevant and, I repeat, bear in mind that he's not charged with any crime except that arising from what happened in the shed. There can be a natural reaction to evidence you've heard. To simply say he is a terrible person whose acted wrongly or discreditably on other occasions, to say that because of what he's done or how's he appeared in respect of the relationship, a natural emotional reaction can be to want to punish him.

That of course would not be logical or correct and you must not use the evidence in that way. And particularly you must not use it to form a view about his character to reason that he is the kind of person who must have committed a crime of the nature of which he's charged. You must be careful to avoid any emotional reaction you may have to the evidence to colour your logical application of the evidence to the issues in this case. And I remind you to approach the proof of the alleged crimes in a dispassionate and logical way. ... In particular, finalising my warning, you must exercise great care to avoid and put to one side any desire to punish the accused for any other conduct of which you may disapprove. That's not what you are here to do." (Trial transcript 28-29.)

1. The trial judge went on to provide the jury with conventional directions in respect to the use of tendency evidence. There is no reason to consider the jury failed to comply with such directions. His Honour also took care to highlight to the jury the argument the defence advanced in respect of the tendency evidence. The trial judge said:

"Now of course the defence has a point about the relationship history as well. Mr Richardson is saying that this works both ways, and [the complainant] also has a tendency to act in a particular way in respect of this relationship. Mr Richardson has pointed to evidence that he says would establish - and it's a question for you as to whether you think the evidence does - or your assessment of the evidence around this question. But Mr Richardson would submit to you that the evidence would suggest that when emotional and confronted in the relationship, [the complainant] would engage in acts of self-harm or attempted self-harm. And of course that feeds directly into the accused's version of what he says happened in the shed. ... The other point the defence makes of course is that even if you think he had acted in a controlling and possessive and jealous way in the past, even if you think he had made threats of harm against [the complainant] in the past, he had not acted on them, at least in respect of by the use of conducts such as what's alleged in this case. In other words, the point is made that he didn't have - that his tendency was actually to be threatening, be controlling, be aggressive, but not to actually go through with all the threats that he was making."

1. In assessing how the tendency evidence was used at trial and determining whether the trial miscarried in consequence of its admission, it is relevant to consider the use made of the evidence by the applicant in the presentation of his case. As highlighted by the passage from the trial judge's summing-up, the defence relied upon aspects of the relationship and tendency evidence which suggested the complainant was prone to acts of self-harm or attempted self harm when confronted by difficulties within the relationship. The defence also pointed out evidence of her displaying jealous behaviour, such as controlling the applicant's Facebook account and blocking his contact with other females - behaviours which were consistent with what the applicant said had happened in the shed.
2. In my view, the evidence was of significant probative value and strongly supported the asserted tendencies. The existence of those tendencies, or otherwise, as at 24 April 2017 was highly probative of the truth of the evidence of the complainant that the applicant had set her alight. In my view, the risk of the jury improperly using the evidence, or giving the evidence disproportionate weight, was limited and satisfactorily ameliorated by the directions given by the trial judge. The evidence was properly admitted and the trial did not miscarry.

Represented ground 3 - admission of letter written by the complainant

1. By this ground the applicant contends the trial judge erred in admitting evidence of a letter written by the complainant on 16 October 2016. At trial, defence objected to the letter being tendered, and submitted it ought to be excluded in accordance with s 137 of the Evidence Act. The objection was subject to a ruling. The trial judge was satisfied the probative value of the evidence was outweighed by the danger of unfair prejudice.
2. The contents of the letter was as follows:

"My name is [name of complainant]. I am 19 years of age and I was born on 13 January 1997. My story over the past 12 months has done a complete 360 degrees. I used to be the happiest girl, my laugh and smile was infectious. I loved my life and I'd never complain or ask anything of anyone. I had friends from all walks of life. Criminals, lawyers, nurses, drug addicts, homeless people, teachers, aged carers and many more...I never judged anybody, I was happy to be friends with anybody and I unfortunately welcomed everybody into my life. I never wanted to give up on anyone and my weakness was believing everyone had a good side to them...No one really caused me great drama or trouble, I believed in doing good by people, being a loyal, honest, trustworthy person couldn't bring me too much drama and it didn't.

Until I met one person, one person I regret meeting, one person I wish never ever entered my life. But sadly he did. There was absolutely nothing I could do in my power to erase him from my life. Leaving him? No. Escaping? No. Running away? No. Where would I go, who would I tell, how would I live, where could I run, would he find me? Yes. Would he have people looking for me? Definitely. 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. This is a letter by me, [the complainant]. Expressing why my life would come to can end, in a horrible way much sooner than I've ever planned. To whoever finds this, if anyone does, I thank you from the bottom of my heart that this monster will be exposed. Thank you. 16/10/16"

1. Evidence on the trial established that the letter was written shortly before the accused was released from prison in November 2016. The trial judge assessed that the evidence had high probative value because it was relevant to the complainant's then state of mind and, in particular, her fear of the applicant and her reluctance and concern about leaving the relationship. Assessed in the context of the issues at trial, which fundamentally involved an assessment of whether the applicant flicked the lighter at the complainant as she was endeavouring to leave the shed, which on the State's case was an extension of the controlling, possessive and violent behaviour he had displayed throughout the course of the relationship, the letter was important, particularly given its timing.
2. The evidence established that whilst the applicant was in prison between April and November 2016 the complainant maintained regular telephone contact with the applicant, expressed her love for the applicant, discussed sharing finances and purchasing a house with the applicant and discussed marriage and children into the future, including by completing Intention to Marry forms. There was also evidence about the nature of the relationship before April 2016, and evidence which suggested the complainant was fearful of the applicant and had a desire to leave the relationship. Her genuine state of mind was an important consideration as it was relevant to an assessment of the veracity of much of the tendency evidence. That is, was the applicant someone who displayed violence to keep her in the relationship and to keep control of the relationship or was her account of his behaviours exaggerated, as suggested by the defence.
3. The trial judge recognised that when he said (AB vol 2 part A 622-624):

"I think that, provided the fact of fear and associated feelings is relevant to the facts in issue, then under the Evidence Act the evidence is admissible under s 66A and probably is also admissible under s 66 because the person who wrote the letter has been called as a witness. ....So the relevance of the complainant's state of mind at the time that the letter was written; it was written shortly after(sic) the accused was released from prison ...it's relevance, in my view, that is her fear and attitude to the relationship is relevant to the nature of that relationship and her attitude to it.

The letter, in particular, discusses her fears and supports contemporaneously her experience of the tendency that is asserted to control her. Which included, according to her evidence, threats of violence if she left the relationship. The letter is particularly pertinent, I think, in respect of that aspect of the asserted tendency. That aspect of tendency is particularly relevant to the jury's assessment of the probability of the accuracy of the complainant's version of events which directly surround the acts and presence - reasons for the presence of the parties and their actions in the shed immediately before and at the time of the complainant's clothing catching on fire.

...again, the question of prejudice is raised. ...the prejudice again arises from the risk of misuse, speculation by the jury, and I think in the case of the letter, to be fair, there is also asserted to be the potential for emotional reaction to the wording that is used in the letter and to the language which the complainant used. ...in my judgment, the risk of misuse of the letter is low, provided that there are appropriate directions. I think that the entire letter needs to go to the jury because I think they are entitled to assess the whole statement which was her contemporaneous statement at the time well before the alleged commission of this crime, and that it would be artificial and unnecessary to provide the jury with an edited version".

1. Section 137 of the Evidence Act provides the Court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant. Probative value is a defined expression. It means the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue: Evidence Act, s 3. The assessment of the probative value of the evidence must be made in the context of the issues at trial and all the other evidence adduced in the trial.
2. In IMM v The Queen [2016] HCA 14, 257 CLR 300 the majority explains the assessment of probative value as follows:

"42 As mentioned, the Dictionary definition of the 'probative value' of evidence describes evidence which is probative in the same terms as how relevant evidence is described in s 55, namely evidence which 'could rationally affect [...[33]] the assessment of the probability of the existence of a fact in issue'.

1. The enquiry for the purposes of s 55 is whether the evidence is capable of the effect described at all. The enquiry for the purposes of determining the probative value of evidence is as to the extent of that possible effect. But the point is that in both cases the enquiry is essentially the same; it is as to how the evidence might affect findings of fact. An assessment of the extent of the probative value of the evidence takes that enquiry further, but it remains an enquiry as to the probative nature of the evidence.
2. The assessment of 'the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue' requires that the possible use to which the evidence might be put, which is to say how it might be used, be taken at its highest. The definition must be read in the context of the provision to which it is applied. For the purposes of s 97(1)(b), the enquiry is whether the probative value of the evidence may be regarded as 'significant'.
3. The use of the term 'probative value' and the word 'extent' in its definition rest upon the premise that relevant evidence can rationally affect the assessment of the probability of the existence of a fact in issue to different degrees. Taken by itself, the evidence may, if accepted, support an inference to a high degree of probability that the fact in issue exists. On the other hand, it may only, as in the case of circumstantial evidence, strengthen that inference, when considered in conjunction with other evidence. The evidence, if accepted, may establish a sufficient condition for the existence of the fact in issue or only a necessary condition. The ways in which evidence, if accepted, could affect the assessment of the probability of the existence of a fact in issue are various."
4. As to the concept of unfair prejudice, it is well established that evidence is not unfairly prejudicial to a defendant merely because it makes it more likely that the defendant will be convicted. In R v Bauer (2018) 266 CLR 56 [2018] HCA 40, the High Court observed at [73]:

"Despite textual differences between the expressions 'prejudicial' effect in s 101, 'unfairly prejudicial' in s 735 and 'unfair prejudice' in s 137, each conveys essentially the same idea of harm to the interests of the accused by reason of a risk that the jury will use the evidence improperly in some unfair way. Again, in assessing any danger of unfair prejudice the Court must take into account other evidence that has been, or will be, admitted in the proceeding as well as any explanation or directions about the evidence that will be given to the jury. If there is no real possibility that the evidence will be used by the jury in an improper or unfair way, then no danger of unfair prejudice arises".

1. At trial the prosecution relied upon the evidence as being probative of the complainant's view of the relationship as at 16 October 2016, and as being corroborative of her evidence that up until that point in time, the relationship with the applicant had been characterised by violent and threatening behaviour. To that extent, the prosecution submitted the letter was corroborative of a considerable portion of the relationship and tendency evidence. Additionally, the prosecution submitted it was relevant to explain why N may have continued with the relationship after the applicant had been released from custody when, on the face of it, his remand in custody gave her an opportunity to leave the relationship. It was also relevant to the jury's assessment of the evidence which suggested the complainant was content and happy in the relationship and had a desire to marry the applicant - was this a genuinely held state of mind or was her behaviour directed at placating the applicant and protecting herself from adverse consequences if she did leave the relationship.
2. In my view, the letter was strongly probative for all these reasons. It spoke, in the complainant's own words, to the nature of the relationship and her feelings about the relationship as at 16 October 2016. It also provided the jury with a context to explain why the complainant may have acted in seemingly contradictory ways both up to, and after the time of the letter. It provided the jury, if accepted, with an understanding of why the complainant may have feared leaving the relationship, which fed directly into an aspect of the events of 24 April 2017, namely why she took the applicant back to his house on that evening and then entered the shed with him. The letter was probative of the jury assessing the complainant's response to the relationship and the conflict between her staying in the relationship in circumstances where the jury may consider she had the opportunity to leave it, whilst simultaneously harbouring fears about the applicant's controlling and violent behaviour.
3. On this appeal, the applicant concedes the letter had some probative value in that it was relevant to explain why the complainant may have stayed in the relationship with the applicant despite his controlling behaviours, but submits the risk of unfair prejudice outweighs the probative value. The unfair prejudice identified by the applicant is that the letter espouses a hypothetical theory that the applicant would ultimately kill the complainant, and in a trial where the very issue was whether the applicant intended to kill the complainant on 24 April 2017, there was a very real risk the jury may misuse the evidence and be swayed by its "apparent prediction". The applicant submits "the risk it presented...was that a jury would reason, 'She was in the relationship, she knew what he was like. She's the person best placed to judge his psychology and what he might do. And she's predicted it'. There is a natural human attraction to an early prediction of behaviour that is on the State's case, borne out to be true".
4. I do not accept the applicant's contentions. I do not consider that the jury would place any weight on the prediction espoused in the letter. There is no reason to consider the jury would not simply adopt a common sense, logical approach to the letter and reason the complainant had no capacity to foresee the future or predict future outcomes and the letter was nothing more than an expression of her thoughts and fears at the time. There was other evidence on the trial where the complainant had expressed a fear that the applicant would kill her. In one of the intercepted telephone calls she told her mother she feared the applicant would kill her. In a Facebook exchange with a friend, Shannon Jones, she expressed concern that the applicant may kill her. There is no reason to consider that the jury would elevate comments made by the complainant about her fear of the applicant to evidence that he in fact did something on the night of 24 April 2017 in the shed. To suggest the jury would somehow misuse the evidence and treat it as evidence that made it more likely that the applicant did an act or held a particular state of mind in the shed on 24 April, is to suggest the jury were incapable of exercising common sense and sound judgment. There is no basis upon which such a conclusion could be drawn.
5. In any event, the trial judge dealt with the concern raised by the applicant that the jury would attach additional weight to the evidence because of its predictive nature. He said this:

"However, you need to be careful about those letters because saying things like 'if I did, it would be at his hands', in a letter is something that could produce a dramatic reaction in a case like this where it is found the morning after the fire where she almost does die ... she was injured at the hands of the accused but what I would say to you as a matter of logic, no weight should be put on her prediction - the predictions contained particularly in that letter - when you are assessing what actually did happen on 24 April 2017. [The complainant] is no different to any of us. She has no predictive powers. It is simply something to express how she was feeling at the time, but it does not have any logical bearing on whether or not the accused did what is asserted against him on 24 April.....It doesn't prove what was in the accused's mind at the time of the fire. It is relevant of some evidence of how she was feeling at the time...and you should avoid any emotional or dramatic reaction to that evidence...In any event, the accused says to you, 'Well look, that letter does not truly reflect her state of mind about the relationship'. He offered you a theory as to why she might have written that letter. You do not have to decide that. But he says it is inconsistent with what she was actually saying to the accused in the telephone calls and you should put the letter to one side because of that reason. That is his argument to you." (Summing up pg 38-39)

1. To the extent there was any risk of the jury misusing the evidence, and in my view, that risk was minimal, the direction given to the jury ameliorated any potential risk even further. It was made clear to the jury that the evidence was to be used in assessing the complainant's state of mind and had no evidentiary value in terms of it being a prophecy or insight into any future intention of the applicant.
2. The probative value of the evidence, when assessed in the context of the issues to be determined by the jury, was high. The probative value was not outweighed by the risk of unfair prejudice. I do not consider there was any error in admitting the letter and no miscarriage of justice has been shown.

Represented ground of appeal 4 - unsafe and unsatisfactory

1. This ground of appeal reflects the terms of s 402(1) of the Criminal Code, which provides that the Court may allow an appeal if the verdict was unreasonable or was incapable of being supported by the evidence. The law as to an appeal ground of this nature was recently discussed by Wood J in AWK v State of Tasmania [2024] TASCCA 5 at 8:

"8 The first ground of appeal reflects the terms of s 402(1) of the Code which provide that the Court may allow an appeal if the verdict was unreasonable or was incapable of being supported by the evidence. In M v The Queen [1994] HCA 63, 181 CLR 487 at 493-495 the joint judgement of Mason CJ, Deane, Dawson and Toohey JJ authoritatively stated the approach that must be taken when courts of criminal appeal are considering an appeal on that ground.

1. The ultimate question is 'whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty': M v The Queen at 494-495.
2. The question is one of fact 'which the court must decide by making its own independent assessment of the evidence': M v The Queen at 492.
3. In answering the question, the 'court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses': M v The Queen at 493.
4. In deciding whether the jury ought to have entertained a reasonable doubt, the joint judgment explained at 494:

'In most cases a doubt experienced by the appellate court will be a doubt which the jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced.'

1. The passage in the judgment continued at 494 providing examples of evidence that may give rise to a conclusion that a reasonable jury ought to have experienced a reasonable doubt:

'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.'

1. In Dansie v The Queen [2022] HCA 25, 274 CLR 651, the High Court stated that the authoritative guidance to be gained from the joint judgment in M has not diminished with time. In Dansie, the High Court was considering a verdict of guilty after a trial by judge alone. It was said that the function to be performed by the Court of Criminal Appeal when determining an appeal on the unreasonable verdict ground is not to determine whether there was error in the factual findings on which the trial judge relied in ultimately finding the accused guilty of the offence tried. The judgment stated at [7] that:

'The function to be performed by the Court of Criminal Appeal is to determine for itself whether the evidence was sufficient in nature and quality to eliminate any reasonable doubt that the accused is guilty of that offence.'

1. In Dansie, it was noted by the court that the advantage that a trial judge (in a case of trial by judge alone) might have had over the court of criminal appeal by reason of having seen and heard the evidence at trial will vary from case to case depending on the form in which the evidence was adduced and on the nature of the issues that arose at the trial. In that instance, the prosecution case was circumstantial, the evidence adduced by the prosecution was largely uncontested, and the advantage was described as slight.
2. In Pell v The Queen [2020] HCA 12, 268 CLR 125 at [39] the High Court considered a case where the jury was required to make an assessment of the credibility of the witnesses, including the evidence of the complainant, and was dependent upon the evaluation of the witnesses in the witness box. In that case, there were inconsistencies with other unchallenged evidence. The judgment of Keifel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ described the assessment of the weight to be accorded to a witness' evidence by reference to the manner in which it was given by the witness as having always been, and which remains, the province of the jury as representative of the community: [37]-[38].
3. The judgment considered the function of the court of criminal appeal in such a case when determining a ground that contends that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence:

'[The court of criminal appeal] proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable. The court examines the record to see whether, notwithstanding that assessment - either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence - the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt.'"

1. It is necessary then to independently assess the nature and quality of the evidence to determine whether upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty, or whether the jury acting rationally ought to have entertained a reasonable doubt. This is a question to be determined, bearing in mind the jury has the benefit of hearing, seeing and evaluating the witnesses at trial.
2. Counsel for the applicant submits that when all of the evidence is considered as a whole, the jury should have entertained a reasonable doubt as to the applicant's guilt for the following reasons:
   • On an objective analysis of the evidence, the applicant's evidence as to the means of ignition was not capable of being excluded as a reasonably open possibility. The only evidence by which it was possible to exclude the hypothesis advanced in the defence case, was that of the complainant.
   • The complainant's evidence as to the events immediately approximate to ignition, including the journey to the applicant's home, the occurrence of arguments, her intention of staying overnight, her packing of an overnight bag and where she had left it prior to entering the shed, was unsatisfactory, either because it was vague and imprecise or objectively shown to be wrong.
   • The complainant's account of where the fuel landed on her was not consistent with the burn marks she suffered.
   • The complainant's inability to explain a burn mark on the carpet in the rear of the shed was a significant deficiency which raised doubt about her account.
   • The complainant was an essential Crown witness and it was not open for the jury to return a verdict of guilty unless it was satisfied as to her honesty and reliability. The testimony of the applicant need only have left an exculpatory hypothesis that was open as a matter of reasonable doubt for the jury to have been bound to acquit him, and it was not possible for the jury (and therefore not possible for this Court) to have been satisfied of the honesty and reliability of the complainant beyond reasonable doubt because the defence hypothesis was incapable of being excluded beyond reasonable doubt.
3. There is no question the complainant's evidence was crucial at the trial and the jury was directed that they should scrutinise her evidence with care, and that they would need to be satisfied beyond reasonable doubt that she had given a truthful and accurate version of the critical events leading up to her being set on fire. The jury was told that they would have to be satisfied beyond reasonable doubt on the basis of her evidence that the applicant had set her on fire. The jury were told that the verdict must "stand or fall on the basis of her evidence about that fact...that it was the accused who set her on fire". The jury were also told that if after appropriate and careful scrutiny, they were satisfied beyond reasonable doubt that N had given a truthful and accurate account of those events, then they were entitled to accept her evidence and act upon it.
4. The jury were also given a direction in accordance with Liberato v The Queen [1985] HCA 66; (1985) 159 CLR 507. The jury were told the following:

"Now, I have already made the point to you that its - all the supporting evidence is very important, but ultimately, it is going to come down to you being satisfied that N has given you an honest and accurate account of what happened in the shed. Now, there's conflict between her and the accused about that. It's very important that you bear in mind that the resolution of the case will not come down to simply choosing which witness you prefer because it's not weighing one up against the other. You have to be satisfied of guilt beyond reasonable doubt.

Of course, if you positively believe the accused....then you will determine the case in accordance with that evidence and on that basis, he's not guilty of anything. However, even if you have difficulty accepting his evidence, if upon having considered all of the evidence, you cannot exclude as a reasonable possibility his version of events or his innocence generally, then you must determine the case on that basis and find him not guilty. Finally, even if you positively disbelieve him, even if you think he was lying to you in evidence, you do not, as a result, immediately assume guilt. You put his evidence to one side, you consider the evidence you do accept, and on that basis ask yourself the question am I satisfied of guilt beyond reasonable doubt".

1. I have already set out in these reasons the applicant's primary contentions at trial, and the complainant's contrary account. I shall turn to deal with the specific points raised by the applicant in this ground of appeal. Firstly, he submits the evidence which suggests the complainant had taken a backpack to the house and placed it in the applicant's bedroom was inconsistent with her account that she was not intending to stay the night at the applicant's home, considered the relationship to be at an end and was only dropping him off to meet his curfew obligations. Evidence, independent of the complainant or applicant, and relevant to the issue of the backpack came from Wendy Rodway, who said the complainant left Abbotsfield Road with a backpack, but also told her that she would be "back soon"; Rickie Davey who said the complainant entered the house, went to the applicant's bedroom and made hot drinks before going to the shed, and photographic evidence of a backpack identified as the complainant's, which was in the applicant's bedroom. The complainant said she could not recall whether she had taken a backpack with her to the applicant's home and could not recall taking it into the house. In my view, the fact the complainant was unable to recall whether she took a backpack or otherwise was hardly surprising. However it occurred, the complainant had endured a significantly traumatic event. Lapses in memory were readily explained by the stress of the situation and were not necessarily reflective of unreliability or fabrication. Moreover, in my view, even if the complainant had taken a backpack to the applicant's home it did not mean she intended to stay or that her evidence of her desire to end the relationship was untrue. There was a considerable body of evidence which suggested the complainant was very conflicted within the relationship - at times expressing to the applicant and others a desire to continue in the relationship whilst simultaneously expressing fear of the applicant and a wish to extricate herself from the relationship. Such a conflict in emotions is commonplace in complicated domestic relationships. The taking of the backpack may have reasonably been considered by the jury as a reflection of her confusion and uncertainty about what may occur that evening, or act as directed at appeasing the applicant. There had been a heated argument immediately prior to departure, taking the backpack may simply be a means to avoid further conflict with the applicant. On my assessment of the evidence, it is likely the complainant took the backpack with her, but there are logical reasons as to why she may have done so which do not detract from a finding that she was an honest and reliable witness in the critical aspects of her evidence.
2. The second area of evidence the applicant contends must raise a reasonable doubt is the evidence the complainant gave as to where the fuel was splashed upon her, and the evidence as to the burn pattern she sustained. Counsel made the submission that the "fuel was splashed on what she (the complainant) called the back left". The evidence-in-chief of the complainant as to where the fuel landed on her was as follows:

"So then what happened?...And then we had - yep, just kept talking to one another. I turned my back to Matthew, and I felt a splash go over mostly my left side of what I knew was petrol because of the smell.

Okay. And when you said it splashed, was it just a little drop of petrol, or a lot of petrol, or what's the situation?...No, it was a fair amount.

And what did it do to your clothes?...My clothes were wet from being covered in petrol.

And where - when you say your clothes, how much of your clothes were wet from being covered in petrol?...Majority of it because all of the petrol had fallen downwards.

And when this happened did you see Matthew Davey at all ?...I had my back to him but when I turned around he was putting the fuel can down."

In cross-examination the following exchange occurred:

"Again, my note is that you felt, rather than saw, fuel splashed from behind and to the left, is that your evidence, or was that your evidence?......Yeah"

1. The evidence of where the burns on the complainant were situated came from Dr Castley. His evidence was as follows (AB vol 2 part B 1306-1307):

"You've indicated - perhaps if you can illustrate to the jury and - if - if it assists in explaining it to them, can you indicate to the jury where the greater in - burn injury was over [the complainant's] body, and - that is, the greater area of thick burning or full-thickness burning?........So the areas that are more severely burnt is sort of the front and the left, so her left upper limb was severely burnt, as was her left flank left/left thigh and her abdomen. There's less significant burns on her right buttock and lateral aspect of her right thigh, so it's like the burn injury and the flame injury has started on the left-hand side and then come up and across to the right, and so you're seeing the burns to her right arm, from the flames going that way, but they're - and there's more on the front than on the back.

I want to assume, for present purposes, that an accelerant was introduced to [the complainant's] body. It doesn't matter how, for these purposes, or - but - would you - were the burns that you've just described, are they more consistent with an accelerant being applied to the left-hand side, as opposed to any other area ?.....Correct.

Why is that?...Because that is the side where you've got the greatest degree of burns and the most intense injury.

You indicated earlier that the burns to the face are consistent with the heat move - moving up - or funnelling up - and you've described the burn pattern moving from left to right and up and - trajectory upwards. Is that, in your experience, how you often see burn pattern injury that is going from a lower source upwards?...It depends on the mechanism of the injury to be brutally honest. With - a lot of accelerant-type injuries tend to be accidental, young men working on their cars or in the workplace get a little bit of methylated spirits or something onto their shirt and then everything ignites. So you get a specific distribution of, like, the T-shirt pattern. With - what I'm happy to say in this case is that most of the burn has been on that left side and it's - that's where the intensity has been.

And, obviously, there has to be an ignition source for the burn event to occur. Are you able to provide an opinion as to the most likely location of that ignition source?....It is difficult to say. The - if it was introduced at the level of her lower flank, that would be consistent with a burn pattern that we see, just to do with the intensity of the flame in that area. The surrounding areas, such as the left lower leg, seems to be more radiant heat rather than it coming up from below, but I can't exclude that that's what happened also.

So is there a more likely scenario to you or what are you able to say, in your opinion? Is it - ?.......In my opinion, I think it's more likely that it was introduced at the midriff area, but I can't be certain in that regard."

In cross-examination the following exchange occurred (AB vol 2 part B 1313):

"Could you go to par 6 of the opinions expressed, and I'll simply ask you whether the opinion that you formed and reported about on the 30th of May 2017 can be expressed in these terms: The burn patterns noted were consistent with clothing catching alight with more intense heat anteriorly and on the left side of her body. ?...Correct.

1. The applicant submits it is very difficult to reconcile the evidence of Dr Castley with the account given by the complainant. I do not accept that submission. The complainant's evidence was that the fuel had been thrown on her from behind but had landed "mostly on my left side". After the fuel had been thrown her clothing was wet. She moved about the shed and was involved in a further altercation with the applicant which saw her rolling around on the floor. It is reasonable to infer such movement may have resulted in the original deposit of fuel being transferred to other parts of the complainant's clothing. The evidence of Dr Manthey is also important in this respect. His evidence was that after fuel lands on clothing it is absorbed, but then begins to evaporate. The rate of evaporation can be affected by many things including the type of clothing, the ambient temperature, the amount of movement, the amount of fuel deposited and the type of fuel deposited. He also gave evidence that it is the vapour of the fuel that ignites and not the liquid itself (AB vol 2 part B 1522-1523). The applicant's submission rested upon the proposition that the fuel must have landed upon the complainant's back because it was thrown from behind her, and the burning would inevitably occur at the exact location where the fuel landed. Such a proposition is not supported by the evidence.
2. In considering whether the evidence contains "discrepancies, displays inadequacies, is tainted or otherwise lacks probative force" it is important to consider the evidence in the context of all of the evidence adduced at trial. When one looks at the whole of the evidence there is nothing so inherently inconsistent about the complainant's account and Dr Castley's evidence to suggest there is a "significant possibility that an innocent person has been convicted". Indeed, in the main the forensic, scientific and medical evidence was more consistent with the complainant's account than it was with the applicant's account. For example, the fire investigator's evidence that the only evidence of a fire event was at the front of the shed; there was no evidence of a fire event involving papers or carpet catching alight such that it would need stamping out. Anna Flonta's evidence as to the blood trail was also consistent with the fire event having occurred at the front of the shed near the door. Dr Manthey's evidence that there was a 4mm x 4mm heat affected area of carpet was more consistent with the complainant's account of the applicant holding a lighter to the carpet "pretending" he was going to set fire to the shed than it was with the applicant's claim that the carpet caught fire to the extent both he and the complainant had to try to stamp it out. There was no DNA or forensic evidence linking the complainant to the 20 litre fuel drum (which contained the mix of petrol and diesel which was found on the complainant's clothing); and the evidence of Dr Castley was that the main of the complainant's burns were on the left hand side which was where she said she felt "most of the fuel" land. His opinion that the ignition point had most likely been introduced at the midriff area was also consistent with the complainant's account. Dr Castley also gave evidence of the injuries to the applicant (par [98] above) and opined that he did not consider the injuries to be consistent with the applicant having carried the complainant from the shed, again evidence consistent with the complainant's account and inconsistent with the applicant's account.
3. The third area of evidence which the applicant contends raises doubt as to guilt is the complainant's evidence that the roller door was down when the fire event occurred. The evidence of the fire investigator, Mark O'Donnell was to the effect that in his opinion the fire event occurred near the door of the shed but the patterning of the soot deposits was not consistent with the roller door being down at the time (AB vol 2 part B 736). The first point to be made is that in re-examination on 7 September 2021, after having been cross-examined about inconsistent statements she had previously made about the state of the roller door, the complainant said she did not have a clear memory as to the state of the roller door. I have already commented that the complainant being unable to recall certain aspects of the event given the injuries she sustained is unsurprising. Beyond the conflict in the complainant's evidence about the state of the roller door there was other conflicting evidence. Rickie Davey said when he went to the shed to tell the applicant about the crayfish the roller door was partly down, and he had to "duck under it". Mr O'Donnell was not asked whether the soot deposit patterning was consistent or otherwise with the roller door being partly down. In my view, given the state of the evidence it is difficult to conclude with certainty what the state of the roller door was, but it is not a matter which a reasonable jury should have regarded as reflecting adversely on the nature and quality of the complainant's evidence when viewed as a whole.
4. There was nothing inherently implausible or illogical in the complainant's account. The jury, after carefully scrutinising it, were entitled to act upon it. There was considerable evidence admitted on the trial that was supportive of the complainant's credibility. Her accounts of earlier incidents of family violence were supported by independent evidence, including evidence of other witnesses and the telephone intercept and listening device material.
5. Discrepancies within the complainant's accounts, such as whether she had taken an overnight bag to the applicant's home, the state of the roller door, whether she could recall how papers came to be on the shed floor were properly assessed as relatively insignificant inconsistencies or lapses in memory, particularly given the dramatic events of 24 April and the horrific nature of her injuries and subsequent prolonged medical treatment.
6. The relationship and tendency evidence was compelling. As I have already noted, the tendency evidence was highly probative and entirely consistent with the complainant's version of events. That is, when she indicated a want to depart the shed, bringing to an end the relationship with the applicant, he firstly tried to scare her into compliance by throwing fuel on her. When that did not work and she became angry and fought back, he escalated his possessive and controlling behaviours by setting her on fire. Whilst the jury were required to draw an inference as to the appellant's state of mind at the time, the very nature of the physical acts of the crime, that is, igniting a cigarette lighter in very close proximity to a person one had just doused in fuel, was highly probative of the applicant's intent to kill. This state of mind was also supported by the tendency evidence, in particular, the evidence that in the past the applicant had made threats to kill the complainant when she had threatened to leave the relationship.
7. The evidence of the applicant's post offence lies and conduct was also telling. The jury were entitled to regard the various accounts the applicant gave to the fire, ambulance and medical personnel, as to how the fire started, as evidence of a consciousness of guilt relevant to having tried to kill the complainant and not some lesser act, particularly given the applicant's evidence, which if the jury could not reject, would have been exculpatory. The telling of lies as to the cause of the fire, and contacting the complainant whilst she was in hospital, in a manner in which the jury could reasonably have found was directed at trying to dissuade her from implicating him, was strong evidence that he was conscious the truth would reveal his guilt for the crime of attempted murder.
8. The applicant argues the evidence that he tried to persuade the complainant to change her clothes and shower once the fuel was on her, and tried to help her once outside the shed by patting flames out, putting the hose on her and directing his father to call for the ambulance was all evidence that was inconsistent with an intent to kill. Again, in my view, such submissions are without merit. The jury only needed to be satisfied beyond reasonable doubt the applicant intended to kill the complainant at the point he ignited the cigarette lighter as she walked towards him, having been splashed with fuel. It was never the State's case that he had an intent to kill her when he splashed the fuel on her. Indeed, the State argued this was an act of trying to scare and control her. His act of trying to persuade her to change clothes and shower, at his place, was again directed at keeping her there, controlling the situation and preventing her from leaving the relationship. It was most reasonable for the jury to consider this evidence in this light. As to the behaviour of the applicant after the complainant had left the shed, a reasonable jury may well have regarded this evidence as indicative of regret for a stupid and callous act, without it detracting from satisfaction beyond reasonable doubt that at the point he ignited the cigarette lighter, he had an intent to kill the complainant.
9. The jury were entitled to reject the applicant's evidence and assess his account as inherently unlikely. As noted, to a large extent it was not supported by the forensic evidence. The jury had the benefit of seeing and hearing the applicant give evidence. Issues of credibility were important on the trial. The jury were entitled to reject his evidence, and they were entitled to accept the complainant's evidence beyond reasonable doubt. I have carefully reviewed all of the evidence presented at trial. I do not consider that any of the points raised by the applicant are indicative of the complainant's account being improbable. Indeed, to the contrary. In my view, the cogency of the tendency evidence and the link between the gravity of the behaviour the applicant demonstrated towards the complainant throughout the relationship (as evidenced by the telephone and listening device recordings) and the extreme nature of the act itself; the forensic evidence; the evidence of the post offence lies and the cogency of the complainant's account, left me with no reasonable doubt as to the complainant's honesty and reliability in all critical aspects.

1. The applicant has argued 17 grounds of appeal self-represented and without the assistance of counsel. These grounds of appeal fall into four broad categories. Firstly, he alleges that there has been a miscarriage of justice due to the incompetence of his trial counsel. Secondly, he alleges errors on the part of the learned trial judge, which led to evidence being admitted erroneously and/or the jury not being discharged in circumstances where it was warranted. Thirdly, he alleges that there has been a miscarriage of justice as a consequence of the misconduct of the Crown prosecutor at trial. The fourth broad ground arises from a contention that there is fresh evidence which gives rise to his conviction being a miscarriage of justice. There is some overlap in the various grounds of appeal, and overlap with the grounds argued by counsel on his behalf. In an endeavour to avoid too much repetition where the point raised has already been dealt with in my reasons, I shall not repeat my conclusions in any detail.

1. The principles to be applied to a ground of appeal of this nature are well understood. In Braslin v Tasmania [2022] TASCCA 8, I noted them as follows:

"10 The proper approach to cases in which a miscarriage of justice is alleged to have arisen from the incompetence of counsel involves an objective inquiry (Nudd v The Queen [2006] HCA 9, 80 ALJR 614 per Gummow and Hayne JJ at [27]). The inquiry must be directed to whether there was a miscarriage of justice as referred to in s 402(1) of the Criminal Code. It is for the applicant to establish that the course taken by counsel was not the result of an informed and deliberate decision. The question is whether the course taken by counsel was capable of rational justification or explanation (TKWJ v The Queen [2002] HCA 46, 212 CLR 124).

1. The principles relevant to an appeal such as the present were recently summarised by Porter AJ in JAGD v Tasmania [2021] TASCCA 16 at [63] and [64]:

'[63] The proper approach to cases in which a miscarriage of justice is alleged to have arisen from the incompetence of counsel has been explained by the High Court in TKWJ v The Queen [2002] HCA 46, 212 CLR 124 and in Nudd v The Queen [2006] HCA 9, 80 ALJR 614.

• Incompetence of counsel is not of itself a ground of appeal, the relevant ground is whether there was a miscarriage of justice as referred to in s 402(1) of the Criminal Code: Nudd per Gleeson CJ at [2].
• The concept of a miscarriage of justice has two relevant aspects; outcome and process - different but related in the sense that due process is to secure a just result. A failure of process that departs from the essential requirements of a fair trial is a miscarriage of justice: TKWJ per McHugh J at [76]; Nudd at [3]-[7] per Gleeson CJ.
• If there has not been a fair trial according to law, that will give rise to a miscarriage of justice without regard to whether counsel's conduct might have affected the outcome: TKWJ per McHugh J at [76]; Nudd at [3]-[7] per Gleeson CJ.
• In other cases - perhaps the majority - irregular conduct of counsel will not deprive a person of a fair trial. In such circumstances, the ultimate question of whether a miscarriage of justice has occurred raises two issues; did counsel's conduct result in a material irregularity in the trial, and is there a significant possibility the irregularity affected the outcome?: TKWJ per McHugh J at [79]; Nudd per Gummow and Hayne JJ at [24].
• In a case of that kind, the enquiry is an objective one; the question is whether so viewed, the course taken by counsel was capable of rational justification or explanation: TKWJ per Gleeson CJ at [16], Gaudron J at [26]-[27], McHugh J at [95], Hayne J at [107]; Nudd per Gleeson CJ at [9], [16], per Callinan and Heydon JJ at [158].
• Where an applicant contends that the conduct of counsel has caused a criminal trial to miscarry, he or she carries a heavy burden: TKWJ per McHugh J at [74]. As a general rule, counsels' decisions bind the client; the party is held to the way in which counsel presented the case: TKWJ per McHugh J at [79]; Nudd per Gleeson CJ at [9]. This is so even if decisions were made without or contrary to instructions, or involve errors of judgment or even negligence: TKWJ per McHugh J at [79].
• Describing trial counsel's conduct as "incompetent" - with or without some emphatic term like "flagrantly" - must not distract attention from the question of whether there was a miscarriage of justice. That requires a consideration of what did or did not occur at the trial, not why that situation came about. The question does not turn on adjectival classifications of competence. TKWJ per Gaudron J at [31], per McHugh J at [75], per Hayne J (with whom Gummow J agreed) at [103]; Nudd per Gleeson CJ at [8], per Gummow and Hayne JJ at [24]-[27].
• Sometimes however, a decision about whether a miscarriage of justice has occurred requires an understanding of the circumstances; this may involve an understanding about why something happened: Nudd per Gleeson CJ at [9].' (Footnotes omitted).

1. It can be seen then that the focus must remain on what was done or not done without emphasis upon a consideration of why that situation came about. It involves an objective enquiry. It is for the applicant to demonstrate that the course taken by counsel was not the result of an informed and deliberate decision, and that the consequence of the course taken was the loss of a significant possibility of acquittal."
2. The process involves an objective enquiry directed at determining the ultimate issue, of whether there has been a miscarriage of justice. It is not a matter of engaging in a minute examination of every decision made by trial counsel and the thought processes behind such decision. If decisions can be viewed objectively as having been made for a proper forensic purpose, then no miscarriage of justice arises. As was noted by Gleeson CJ in Ali v The Queen [2005] HCA 8; 79 ALJR 662 at [6]:

"It is not a mark of competent advocacy to pursue at trial every line or argument that can be imagined, regardless of its consistency with other arguments, and regardless of its prospects of success. On the contrary, such an approach is the hallmark of incompetence."

1. Therefore, if it can be objectively concluded that counsel made a legitimate, rational and understandable forensic decision, then absent it being shown that the course adopted at trial has resulted in the applicant being deprived of a chance of acquittal that was fairly open to him, the applicant will be bound by the conduct of their counsel (see Crampton v The Queen [2000] HCA 60; 206 CLR 161 at [18]).
2. The applicant contends his trial counsel was incompetent for a number of reasons, including:-
   • He failed to adduce evidence;
   • He failed to cross-examine the complainant about specific matters;
   • He failed to object to the omission of evidence or limit the use to which such evidence could be put;
   • He failed to object to inappropriate and unfair attacks on himself during his giving of evidence;
   • He failed to object to inappropriate and unfair attacks made upon the witness, Rickie Davey;
   • He failed to make submissions in closing argument about particular pieces of evidence;
   • He failed to seek directions from the trial judge about the use which could be made of particular pieces of evidence; and
   • He cross-examined contrary to instructions and he signed Agreed Facts contrary to instructions.
3. I will deal with each asserted aspect of incompetency by reference to the unrepresented grounds of appeal.

Unrepresented grounds of appeal 2 and 16 - cross-examination of the complainant

1. As I understand the applicant's contentions, he asserts that:

(i) his trial counsel failed to fully and properly cross-examine the complainant by failing to cross-examine her as to a "substantial amount of inconsistencies in her different versions of accounts";

(ii) failed to act on instructions given to him by the applicant as to the manner in which the complainant should be cross-examined;

(iii) failed to "object to limit the use under s 136 of a prejudicial police interview of the complainant, dated 29 June 2017. Such interview having been admitted pursuant to s 108 of the Evidence Act as a prior consistent statement".

1. The applicant contends that he gave his trial counsel a detailed affidavit of the evidence that he would give in trial and additionally referred his trial counsel to a number of inconsistencies, which he asserted existed within the different accounts that had been given by the complainant. He submits that he instructed his counsel that he wished to discredit the complainant by reference to the inconsistencies within her different accounts. He submits that trial counsel failed to elicit these inconsistencies during cross-examination. He submits this failure was critical given prosecution's case relied predominately upon the evidence of the complainant.
2. Inconsistencies that the applicant contended existed included:
   • in a statement provided to police at the Alfred Hospital on 29 June 2017, the complainant said that after they had entered the shed at the applicant's home there was an argument and she sought to leave. That she tried "a few times to walk around him and get out the shed door and he would block me off every time". That he grabbed her by the face and said "You're not going anywhere. You're staying here"; "the argument went on for a while and then he picked up the petrol tank and threw it on me... I was getting annoyed because I wanted another cigarette and I wasn't going to light it. I was so stressed out. It was all over me and it stunk and I was just angry. I then wanted to go out again and this is when he set me on fire near the roller door... I'm not sure but I think Matthew had a bit of trouble getting the roller door open 'cos he locked it and he may have forgotten he'd locked it and he was trying to get it open".
   • in a video recorded statement to police on 10 July 2017, so some 11 days later, the complainant said this:

"So I went to the shed...we had a cigarette...we started arguing. I wanted to go. I wasn't allowed to go anywhere and every time I tried he pulled the roller door down and locked it...every time I walked towards the door he would block me and lead me back up ... he actually grabbed me on my face and was checking it, squeezing it ... we wrestled on the ground ... I sat back in the chair, he didn't actually tie me in the chair, that was like when I was like no, I'm leaving and the roller door was open and I walked back into the shed. I don't remember if I was (inaudible) or something and he splashed me with petrol from behind. That's when I walked off, well tried to walk off and I was near the entry of the shed and he was standing in front of me and it all happened really quickly and he flicked his lighter and I went up in a ball of flames and then I ran outside and I just started screaming for help."

• in a supplemental proof filed before trial, the complainant said the following:

"When we got there that night Matthew shut the roller door. I think I had a cigarette. ... He started on again about me wanting to leave him. We ended up getting into a verbal fight. We were right in each other's face screaming at each other. I wanted to leave and he wasn't allowing me to leave and I was saying I had to go, to get out of the way. He was saying I couldn't go, you're not going anywhere ... I was walking towards the door and he kept walking in front of me, pushing me back. I got close to the roller door, just not close enough to lift it up and walk out before he pushed me backwards ... I turned my back on Matthew and at that time he splashed petrol on me ... I could smell it ... it went mostly on my back. ... as I turned around after Matthew had thrown the petrol I was abusing him saying 'Are you fucking serious, are you crazy', then we had a physical fight ... I remember rolling around on the ground ... at the end of the fight I remember having Matthew in a headlock ... we both stood up and he said 'What are we doing [name of the complainant]. I'm sorry'. I said this is fucked up, I need to go home ... he was telling me no ... he wouldn't reason with me so I just said just let me go inside and let me have a shower. I started to walk towards the door, towards Matthew, and that's when he lit me on fire. I saw him with the lighter near his chest ... I was towards the back of the shed walking towards him. He was standing at the roller door facing me. I think the roller door was still closed. As I walked towards Matthew his hand went from his chest to being extended, he flicked his lighter. ... I felt like I couldn't get out of the shed."

1. The applicant's contention is that there is considerable inconsistency in these various versions of events which were not appropriately attacked during cross-examination. The first point to be noted is that the inconsistencies, to the extent they exist, are not so marked as to be fatal to the complainant's credibility and, any inconsistencies in her account are readily explained by the trauma of the event and the significant medical procedures the complainant endured before making a number of these statements. It is true there were inconsistencies about such things as the placement of the roller door (which I have already addressed) but in the main the complainant's version remained consistent as to the critical events. The second point is that counsel cross-examined upon the inconsistencies, and cross-examined generally in a manner that raised issues as to the accuracy of the complainant's memory of the events of 24 April 2017. For example, she was challenged about her behaviour on the afternoon of 24 April which involved attempts at self-harm, her recall of collecting the dog from the sister's place, taking the backpack and going into the house and speaking with Rickie Davey, whether the roller door was up or down and whether she had observed the applicant lock it. It was, in my view, clearly suggested to the complainant that she did not have a clear recall of the events in the shed and the complainant conceded that as a consequence of what she had experienced, there were aspects of the evening that she could not clearly recall. The complainant was also challenged as to a number of inconsistencies between her evidence on trial and previous representation she had made to authorities. For example, the following cross-examination occurred:

"And you'll recall your evidence yesterday was to the effect you couldn't remember what you were thinking or why you even put the exercise rope over a beam, remember saying that yesterday?.....Yep. Okay, and that's the truth, is it?.....Yeah.

Okay. Do you recall speaking with police on the 29th June 2017 whilst you were still under medical treatment in Melbourne?.....Yep.

Did you, in relation to this event...did you say of that event, this: I went for a walk, I honestly wanted to kill myself that night 'cause I'd had enough. Did you say that to police?.....I can't recall what words I used.

Okay, that's fine. So you don't admit it because you can't remember, is that -......Yep. Thank you, that's all I need.

You'll recall there was a second occasion when police interviewed you whilst still in Victoria and that occasion was the 10th July 2017, do you recall that?.....Yep.

On that occasion did you say of these events: I went outside and there was a beam with an aerial out 5 on the roof. And there's some questioning then about what the aerial did, but that's irrelevant. 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 that didn't work. Did you say those words to police of these events when you were interviewed in July of 2017?.....I don't recall.

"Is it the case that the reason you told police that - I'll put the exact words, sorry - you tried to hang yourself but your feet still touched the ground, so that didn't work. But you now say you didn't actually do anything like that; you didn't attempt to hang yourself at all. Is it because you're embarrassed by the fact that there was a suicide attempt on this day?...No.

Well, if you - if there had been you would be embarrassed, I guess?......No.

No? Okay, right-o. So, whatever you told the police your current memory is that there was no attempt at suicide on that day? Or you just don't know one way or the other whether there was or there wasn't?...I just don't recall.

"Um in the version you gave on the 29th of June 2017 you said we went - of the - the night that this incident occurred: We went into the shed like we always did to have a cigarette and we went in there and he rolled down the door and locked it.

Do you recall speaking with police on 10th July 2017? So about 11 to 12 days after the interview I've just asked you about?...I can't recall the exact dates but I remember speaking to them again.

Okay. What I want to suggest to you is that on that occasion you made this statement to police: He And I interpose the words Mr Davey grabbed white rug and went to tie me and I think it was a bit of a scare tactic but he didn't actually tie me in the chair and that was when I was like, 'No, I'm leaving' and the roller door was open and I walked back into the shed. I don't remember something. He splashed me with petrol from behind. Is that the description you gave of the circumstances immediately 10 before petrol somehow getting on your clothing when you spoke to police or were questioned by police a second time - whatever day it was?.....Yeah, I believe so. Yes."

1. It is not correct to say counsel did not challenge the complainant about inconsistencies in various statements. Many of the challenges were met with an answer that the complainant could not recall. There was no forensic purpose in counsel repeating large portions of her previous statements only to be met with the same answer, particularly in circumstances where the complainant's statement to police of 29 June 2017 was tendered in evidence and the jury could embark upon their own analysis of any inconsistencies - again something counsel invited the jury to do during closing submissions. There could be no doubt that the import of the cross-examination as a whole was to cast doubt upon the veracity of the complainant and raise doubt as to the reliability of her account. During his closing address counsel very firmly put to the jury that they should not accept the complainant as an honest or reliable witness.
2. A further aspect of the applicant's complaint is that trial counsel cross-examined in a manner which gave rise to the recorded statement the complainant participated in with police at the Alfred Hospital on 29 June 2017 being admitted as a prior consistent statement. This arose in circumstances whereby the cross-examiner was pursuing cross-examination which highlighted the essence of the defence case, namely that the complainant had poured the petrol on herself and threatened self harm and then set herself on fire when she lit a piece of paper which ignited carpet which she stamped out catching herself on fire. The thrust of the defence case was that the complainant was "covering up" what had actually happened, and was falsely blaming the applicant, because she was embarrassed about her own behaviour and/or wanted to guard against persons not contributing to a GoFundMe page and/or she was looking to preserve future financial benefits she may obtain by selling her story to the media by covering up the fact it was her own actions which caused her injuries.
3. It was the cross-examination about the GoFundMe page and the possible future earnings from telling her story that triggered the application to re-establish credit pursuant to s 108 of the Evidence Act. Trial counsel gave evidence on the appeal about his decision to pursue this line of cross-examination. He said he had turned his mind to the risk that cross-examining as to a motive for a false account may lead to an application to re-establish credibility, but he was not particularly concerned about it because the applicant had assured him that he would produce a witness that could be called on the defence case, that would say the complainant had made a statement to her father, at a point earlier than the 29 June statement, to the effect that the applicant was not responsible for the injuries she sustained. Counsel said he was confident he could counter any attempt to re-establish credibility through the use of the 29 June statement by establishing the existence of an earlier inconsistent statement. Ultimately, the promised witness was never produced by the applicant. Forensic decisions taken by counsel have to be evaluated in the context of the unfolding trial. Hindsight reasoning is of little assistance. Counsel had instructions that this witness would be produced and made a considered forensic decision in light of that. No criticism can be properly levelled against counsel for that decision because different circumstances ultimately arose.
4. I also note counsel advanced a legal argument to the trial judge following the granting of the application to re-establish creditability which resulted in him being given leave to further cross-examine the complainant about the content of the 29 June statement. This additional cross-examination exposed a number of further inconsistencies and anomalies in the complainant's evidence that counsel then relied upon during closing argument.
5. The very nature of the applicant's case involved an attack on the complainant's credit and reliability. It was a reasonable forensic decision for the attack on credit to extend to suggesting a motive for a false account. Counsel was confronted with a considerable body of evidence consistent with the guilt of the applicant. Challenging the complainant as to issues of reliability alone was likely to have limited success in terms of creating a reasonable doubt as any apparent unreliability or absence of memory or recall was easily answered by the enormity of the trauma that she had suffered. In endeavouring to foster a reasonable doubt in the jury's mind, it was a reasonable forensic decision to elect to attack the complainant's credibility by suggesting a motive to fabricate. It was going to be difficult to advance an argument that the complainant, for no apparent reason, had falsely accused the applicant of committing this act when there was a very strong body of evidence to suggest that when the applicant had previously been violent towards the complainant she had not complained about it or gone to the police. Endeavouring to highlight there was a particular reason why the complainant may have behaved differently on this occasion was a valid forensic approach. Any cross-examination of a witness's credit carries with it a risk of re-establishing credit. Counsel was faced with a delicate balancing act, and given he was of the understanding that he had a witness available to him that would counter the re-establishment of credit, his approach could not be said, when viewed objectively, to be forensically unsound or improper and it did not occasion a miscarriage of justice.
6. The applicant further submits there was a failure on the part of his trial Counsel to limit the extent of the statement of 29 June 2017 that went before the jury. That submission is without merit. The probative value of the evidence rested in the jury being able to assess it as a whole. The re-establishment of the complainant's credit, from the prosecution's perspective, depended upon the jury being able to assess the manner in which the complainant was answering questions, the manner in which she presented, assess her recall of the incident, and assess generally the veracity of her account. The very point was that the document had been admitted to re-establish her credibility, and allow the jury to assess and evaluate the challenge made to her credibility during cross-examination. In determining the s 108 application, the trial judge took into account the probative value of the evidence and weighed it against the prejudicial effect. The trial judge was conscious of the potential prejudicial impact upon the applicant, and hence allowed further cross-examination of the complainant, in an endeavour to minimise it. There is nothing raised in the applicant's submissions which suggests that if his trial counsel had endeavoured to limit the use of the evidence, pursuant to s 136 of the Evidence Act, that there was any prospect of him being successful. Indeed, my evaluation of the 29 June statement is that it was necessary for the whole of the statement to be before the jury so they could assess its consistency, or otherwise, with other aspects of the complainant's evidence to fairly and properly evaluate the attack made in cross-examination.
7. In determining that no miscarriage of justice arises from the admissibility of the statement of 29 June 2017, and the way in which trial Counsel managed its admissibility, it is relevant to bear in mind the trial judge gave the jury clear directions as to what use they could make of this evidence. The trial judge also gave the jury very firm directions that they must not allow any emotional response to this evidence to, in any way, colour their deliberations (the complainant was in a hospital bed and tubes and bandages were visible when the recording was taken). There is no reason to consider the jury would not have complied with same.
8. A further aspect relevant to the "GoFundMe" cross-examination, that the applicant raises on his appeal, is an assertion that he did not instruct his counsel to cross-examine as to this subject matter, and given counsel did so without instruction, and it gave rise to the application to re-establish credibility and the tendering of the 29 June statement, it is reflective of incompetent conduct which has resulted in a material irregularity in his trial. This assertion is easily answered. I do not accept the applicant's claim that he did not instruct his counsel about this. Counsel gave evidence about this on the appeal. He said:

"There were many arguments. The GoFundMe one was one that went on and on and on. Because I didn't think it was a good idea, and you thought it was a very good idea. And I warned you about - in fact my concern was about it being seen as an attack on character and opening up your character and I remember explaining that to you and telling you what the risks were ... Re-establishing credibility was not a major concern to me because you assured me that there was a witness, whose name was Fowler, who was coming to Court, who had spoken with Mr Evans in the days after [the complainant] had been taken to hospital, and that Mr Evans had told her - Mr Evans' senior had told her - that you were innocent, it was an accident, that kind of thing. So I wasn't concerned about re-establishing credibility because you had instructed me there was a witness who was coming to Court .... Therefore, you couldn't re-establish credibility with that second or third statement, if that was the first. As it turned out, I think you'll recall, despite repeated assurances ... she never turned up, if she existed. That was s 108. As I said, my major concern about the GoFundMe page was that it might be seen as an attack on character ... I thought there was a real risk that the State would see that as an attack on character, which might open up an application to attack your character. I had your prior convictions, and I didn't think it was in anyone's, on our side of the tables - best interest to have them flashed in front of the jury ... in the end, it was compromised because I said to you 'I'll tell you what I'll do. I will start asking questions about it. There is a practice that if the prosecution think you've overstepped the mark on character evidence, in my experience they usually stand up and say 'I warn my learned friend if he goes any further with this, there will be an application' and everyone goes, right, we won't go any further. And I recall saying to you 'The moment the prosecutor stands up and says something like that, that's the end of it. I'm not going any further'. It turns out, they didn't ..."

1. Without hesitation, I accept trial counsel's evidence that he was instructed to purse the "GoFundMe" line of cross-examination. The detailed analysis he gave as to his considerations of the potential impact of the cross-examination, is indicative that this was an area of cross-examination that he was not particularly comfortable in pursuing, but did so because of the applicant's instructions. The applicant cannot now complain because, with the benefit of hindsight, he regrets his instructions. There is no merit in this submission.
2. A further aspect of the applicant's argument that counsel failed to conduct a proper cross-examination of the complainant, relates to an asserted failure to put aspects of the applicant's evidence-in-chief to her during cross-examination. The applicant contends that he provided trial counsel with a "word for word" narration of what evidence he would give on his trial prior to Counsel cross-examining the complainant. The applicant contends that two particular matters were not raised in the cross-examination of the complainant with the effect that it adversely affected his credit. Those two aspects were:

(i) that the applicant and the complainant had fallen over in the shed, before falling outside; and

(ii) that during the relationship the applicant had intervened when the complainant attempted to hang herself.

1. The applicant contends that these instructions were provided to his trial counsel in a proof of evidence, dated 17 July 2017. The applicant gave evidence about the provision of this document to his counsel on the appeal. Having had the benefit of observing the applicant give this evidence and be cross-examined as to the contents of the document, it is highly unlikely, in my view, that the document was created by 17 July 2017. It references material that was disclosed to the applicant after this date and most pertinently, references the particular family violence incidents that were relied upon by the State as part of the tendency evidence, something that could not have been known by the applicant as at 17 July 2017 as it had not yet been particularised by the State. I find it highly unlikely that the applicant would accurately predict the incidents of family violence that the State would particularise and rely upon as part of the tendency evidence, particularly in light of his evidence that many of these incidents simply did not occur.
2. Counsel gave evidence about his receipt of this document on the appeal. He said the document was provided to him personally by the applicant and that it was provided to him during the trial, before the applicant gave evidence but after the complainant had given her evidence on the special hearing. Whilst he could not recall the specific date he received the document, the contents of the document satisfied him that it was provided to him after the complainant had given evidence, because the document speaks of some of the evidence that she had given during her pre-recorded evidence. I accept counsel's evidence about that. It is the only logical conclusion that can be drawn given the contents of the document.
3. In any event, irrespective of when the document was created, there is no miscarriage of justice that arises from the lack of cross-examination on these two specific areas. The applicant argues the fall in the shed, before the fall outside of the shed, is relevant because it explains the blood pattern evidence given by Ms Flonta and therefore detracts from the argument that the only fire event occurred near the front door of the shed. Counsel for the applicant emphasised during his closing address that the complainant conceded she could not remember how she got out of the shed. She had said in evidence in chief that she believed she had walked out of the shed, but conceded in cross-examination she could not clearly remember. Therefore suggesting to the complainant a more detailed proposition about the manner in which she exited the shed, would have only invited the same response, and achieved little forensically. Moreover, counsel for the applicant emphasised in closing argument that the complainant's account did not explain the blood patterning evidence. Her account offered no explanation as to why she may have been bleeding at the entry to the shed whereas the applicant's did. The applicant's account also explained the presence of his hat on the shed floor. All of these points were strongly argued during closing. It is true that the prosecutor made comment about the fact the applicant's claim of falling over in the shed appeared to be a convenient attempt to explain forensic evidence, that had not been put to the complainant in cross-examination, but in the context of the whole of the trial, little turned on this point. The prosecutor attacked much of the applicant's evidence on this basis - that is, that his evidence appeared to "conveniently" explain the forensic evidence, and the jury should not consider his evidence as indicative of the truth, but rather a reconstruction. Equally, the applicant's counsel submitted to the jury that the complainant's account could not objectively explain the forensic evidence and therefore must be rejected by them. It was a matter for the jury what they made of such arguments, but I cannot identify any basis upon which the failure to put the first fall in the shed to the complainant gave rise to any realistic possibility that the outcome of the trial may have been impacted.
4. I make a similar comment about the failure to raise with the complainant the suggestion the applicant had intervened when she had attempted to hang herself. As discussed in respect to unrepresented ground 13 below, the evidence of the complainant's mental health and previous mental health difficulties, including her previous periods of hospitalisation, her diagnosis of depression, previous suicidal ideation and suicide attempts, including on the day of 24 April, was before the jury in considerable detail. The cross-examination of the complainant very clearly raised her history of self-harm and suicidal ideation and laid the foundation for the argument advanced in closing that such a mindset led to the events of 24 April 2017. It was clearly put to the complainant during cross-examination that she had self-harmed during the life of the relationship with the applicant. She accepted that she had. The State did not suggest the complainant had not experienced considerable mental health difficulties. The applicant's counsel submitted to the jury her history of mental health difficulties, and particularly her mental health difficulties on 24 April, made it very likely that she had behaved as the applicant suggested in the shed - that is, splashed fuel on herself then threatened to burn herself in an emotional crisis. The impact of the complainant's mental health difficulties on what happened in the shed was squarely before the jury. Adding one other possible example of a mental health difficulty was of minimal consequence in my view. The failure to raise this with the complainant was of no consequence in the context of the trial, and did not in my view detract from the applicant's case.
5. To the extent the applicant suggests that cross-examining him about intervening in the complainant's attempt at self-harm may have given rise to the jury accepting him as someone who wanted to help, rather than harm the complainant, in my view there is little merit in such a submission. There had been considerable cross-examination about positive things that had occurred during the relationship and the complainant had accepted that parts of the relationship with the applicant were loving and caring, and it was "not all bad". In particular, there was cross-examination about the endeavours the applicant had made to assist the complainant after the fire event and the complainant accepted much of this. Further cross-examination about the applicant intervening in another alleged suicide attempt was unlikely to result in any additional forensic advantage. Moreover, in my view, counsel had to walk a careful line as to how much emphasis to place upon alleged suicide attempts during the course of the relationship. Whilst the cross-examination had revealed a number of difficulties the complainant had experienced prior to the relationship, there was also a strong body of evidence to suggest the relationship itself, and the applicant's behaviour towards her, was a cause of mental distress. Evidence of suicide attempts within the life of the relationship may also have reflected adversely upon the applicant and be seen by the jury as reflective of the level of harm he caused to the complainant throughout the relationship.
6. In summary then, as to this aspect of this ground of appeal, I accept trial counsel did not receive the applicant's "proof of evidence" document until after he had cross-examined the complainant. But in any event, I do not consider the omission to raise the two identified areas in cross-examination had any impact on the outcome of the trial. The subject matter of the two identified areas were fully agitated before the jury. Given the issues on the trial, no miscarriage of justice is identified. Indeed, my overall assessment of trial counsel's cross-examination of the complainant was that it was thorough and robust and provided the basis for counsel to advance a number of arguments during his closing address adverse to the prosecution case.

Unrepresented ground of appeal 7 - the demonstration

1. As I understand the complaint raised by this ground, the applicant asserts his counsel was incompetent because he failed to allow him to fully demonstrate, during his evidence-in-chief, how the complainant picked up the 20 litre fuel drum and shook it so that fuel spilt on her, and then failed to highlight during his closing address the intricacies of this demonstration and how it was consistent with "expert evidence and the burning pattern on the complainant". The applicant submits his demonstration "fits like a glove" with the expert evidence and should have been highlighted to the jury by his counsel.
2. As noted, I have viewed the demonstration the applicant undertook during his evidence-in-chief. In that demonstration he clearly describes and shows how the complainant picked up the 20 litre fuel drum, having already removed the cap, by placing her right hand on the top handle and her left hand on the bottom of the container. He demonstrated how she raised it to about waist height and shook it, allowing fuel to come out of the drum and onto the front of her, and fall down onto her left arm which was lower than her right arm. Later, in cross-examination he was asked to demonstrate how he had taken the fuel drum off her and he demonstrated that he had taken hold of the handle with one hand, placed his second hand underneath the container, pulled it from her and sat it back on the ground.
3. The applicant contends the evidence of the demonstration was important as it explained how fuel came to be on the front of her, consistent with burn pattern evidence and inconsistent with the complainant's account that she had her back to the applicant when she felt the fuel splash on her. It was also relevant to explain why the applicant's DNA and fingerprints were on the 20 litre fuel drum.
4. I must say to my mind, this latter point is of minimal significance. There was no contest that the fuel drum belonged to the applicant and was in his shed. The fuel drum having his DNA and fingerprints on it could hardly be surprising. There was no evidence capable of identifying when or in what circumstances any DNA or fingerprints may have been deposited upon the item. The presence of his DNA and fingerprints on an item that belonged to him and was used by him, was hardly a matter of great significance in the context of the overall trial. Similarly, the absence of a DNA profile consistent with the complainant being found on the 20 litre fuel drum was not of critical import. The DNA evidence established that it was not inevitable that a person would leave a DNA deposit that was capable of being analysed even if they had picked up the container. Counsel dealt with this in his closing submission. He said:

"The first area of the prosecution case that I wanted to comment on...relates to - I'm going to do it together - DNA and fingerprints. Now, they are areas of evidence which I suggest play very little importance in this trial. There are trials where a fingerprint, or the finding of some DNA, it is like CSI, that solves the whole case. But this isn't one of them. The prosecution have not relied to any great amount on the fingerprint or DNA evidence, and that's not a criticism, neither they should. Because his fingerprints are found on the handle of the petrol drum, as he said it would be. There's an unidentified print on that handle, and we don't know whose it is, and one thing we do know is, it was never compared with [the complainant], with great sadness, as a result of the fact that, with the burns, there's no fingerprint that they could work with. The same could be said in many ways for the DNA. There's DNA about where you'd expect it to be. There's his DNA on the handle of the red drum, and he demonstrated it to you in the witness box, under oath, how he picked it up, and you'll remember the attendant went up and held it, I think it was when the prosecutor was cross-examining, so he could show how he took it. So he showed you exactly how it is... But if you think back and try and re-live what he did there, you'll find where he went was basically where fingerprints and DNA have been found, and there's - where the DNA was found near the handle, there is other DNA. We don't know whose it is... simply because, as a matter of fact, there was not enough of it to be able to properly identify it, but there's enough to say somebody else touched it, and I think in one case three or four people touched an area... The point is the fact that there was no identified fingerprint or DNA from [the complainant] does not mean that [the complainant] didn't touch it, simply because there are fingerprints there that were not identified or not unidentifiable, and there is DNA of which there was not enough to say whose it was. Again, I am not overstating that, I hope. I'm not saying that means it's hers, I'm saying that doesn't exclude the possibility of it being hers."

1. There was little more that could have been said about the DNA or fingerprint evidence. The demonstration the applicant conducted in the witness stand was consistent with the placement of the DNA and fingerprint evidence and Counsel highlighted this. A more extensive demonstration would not have advanced this argument any further or resulted in any additional forensic advantage.
2. The more pertinent point was that the applicant's demonstration of how the complainant handled the fuel drum and how the fuel came to be deposited on the front of her, was more consistent with the burn patterning evidence than the complainant's account. As I have already discussed, the medical evidence of Dr Castley suggested the main of the burns, and the deeper of the burns, were found on the front, left hand side of the complainant.
3. Defence counsel made this point very strongly during his closing address. He referred the jury to the evidence of Dr Castley and made the point that if the complainant had her back to the applicant when she felt the petrol land on her, you would expect the burns to be to the back of her, yet Dr Castley's evidence was that her burns were concentrated to the front left: (AB Vol 2 Pt B 2144). He emphasised that this evidence was consistent with the demonstration given by the applicant in his evidence. It is difficult to see what further forensic advantage could have been obtained from a more detailed demonstration, or what further use Counsel could have made of the demonstration during closing argument. The consistency of the demonstration with the forensic and medical evidence was highlighted on several occasions.
4. As I understand the applicant's contention he suggests that if he had been able to perform a more detailed demonstration, he would have highlighted how the complainant's right hand and forearm were on the handle above the pouring spout, but the left hand and forearm were under the drum and therefore below the pouring spout, thus the way in which she held the fuel drum was consistent with her having minimal burns to the right hand and forearm but extensive burns to the left hand and forearm. In my view the demonstration, if accepted by the jury, achieved this. The applicant clearly demonstrated the complainant held the drum with her right hand on the top handle of the drum, with the left hand under the bottom of the drum, supporting the weight of the drum. When the fuel was shaken from the container it was a reasonable inference, and consistent with common sense, that the fuel would fall downward and contact predominately the left arm. The argument the applicant submits a more detailed demonstration would have allowed him to advance, was available on the evidence that he gave to the jury. It was a matter for the jury as to whether they accepted that evidence.
5. I add that too detailed a demonstration which sought to explain every aspect of the forensic and medical evidence would have exposed the applicant to a critique that his evidence was contrived and reconstructed. Whatever happened in the shed on 24 April happened quickly and in circumstances of heightened emotions. The jury may well consider it quite unrealistic that the applicant would recall with pinpoint precision the positioning of things like the applicant's hands and forearms, the directionality of the fuel spout and what part of the complainant's body the fuel initially landed on. The demonstration that was conducted well explained the applicant's version of events and was referred to by counsel several times throughout his closing address. There is nothing I can identify which suggests the approach taken by counsel to this evidence was attended by any error or in any way resulted in a miscarriage of justice.

Unrepresented ground of appeal 2 - alternate limb - failure to adduce interview of complainant with police, dated 8 April 2016

1. The applicant further contends as part of his complaint as to the conduct of his trial by his counsel that counsel failed to adduce evidence of a recorded witness statement the complainant participated in with police on 8 April 2016. As noted, there was evidence led on the trial about a number of violent incidents that had allegedly occurred between the complainant and the applicant, both prior to and after 8 April 2016, and up until the time the applicant went into custody on 25 April 2016.
2. Evidence was led from Sergeant Hossack. He gave evidence of having conducted an electronic witness statement with the complainant on 8 April 2016. He agreed that during that witness statement the complainant had denied that there had been any family violence perpetrated upon her by the applicant as at that date. Sergeant Hossack gave evidence that he nevertheless, on 9 April 2016, made an application for a Family Violence Order to protect the complainant from the applicant.
3. Obviously, the complainant's assertion to police during this recorded statement was in direct contrast to the evidence she gave on trial. She was cross-examined about what she had said to police. She admitted that she had resisted the making of the Family Violence Order. She agreed that she had told police that no incidents of family violence had occurred. She said that she had lied when telling police that: (AB vol 2 Part A 96-97).
4. The cross-examination elicited the substance of the recorded statement - namely that the complainant had told police there had been no episodes of family violence between her and the applicant and she did not want a family violence order. The cross-examination achieved the forensic purpose of highlighting a substantial inconsistency in the complainant's account, and demonstrating that the complainant, on her account, had a preparedness to lie to police. It had the capacity to affect the complainant's credit in a substantial way. It had the capacity to raise doubt in the jury's mind as to whether the violence which she claimed in her evidence had occurred prior to 8 April 2016 had, in fact, occurred. Indeed, it had the capacity to raise doubt in the jury's mind as to the whole of the complainant's evidence at trial. This line of cross-examination therefore achieved considerable forensic advantage for the defence. What the jury made of it was a matter for them.
5. The applicant submits, however, that his counsel should have gone further and adduced the interview on the defence case. There are some very obvious forensic disadvantages to counsel having done so. Firstly, it would have allowed the jury to hear and see the police officer set out a number of allegations about the applicant's behaviour on 8 April 2016 which were consistent with evidence given by other witnesses on the trial as to his behaviour on 8 April 2016. Secondly, it would have given the jury a greater ability to assess the demeanour and presentation of the complainant during this interview, potentially in a manner that was adverse to the applicant's case. I have read the transcript of the witness statement between Acting Sergeant Hossack and the complainant. She presents as providing guarded answers. She does not give a free narrative of events, but answers very specific questions in a minimalistic way. It may well be from watching the witness statement, the jury were left with the impression that the complainant had indeed lied to police when she said there had been no incidents of family violence between her and the applicant. Further, there were times in the recorded witness statement where police officers firmly expressed opinions that the complainant was in danger. For example, at one point the Acting Sergeant said "By all the reports I've got from officers and from the independent witnesses in relation to the incident this evening, I believe that you're in danger [name of the complainant]. I believe that if I don't do anything about it, that you are going to, in the long run, suffer for it, okay, and it's my duty as a police officer to protect you to the best of my ability, okay."
6. Such an opinion from a police officer going before a jury on a trial where it was alleged that the applicant had, in fact, placed the complainant in a position of grave danger, obviously had the capacity to impact the jury adversely to the applicant's interest. If the applicant sought to adduce it on his own case, he could hardly then make complaint about it. Finally, had defence counsel adduced the evidence, because of the operation of s 371 Criminal Code, it would have resulted in the loss of defence counsel's right of last address to the jury, which in the context of a trial where credit was a significant issue, was a valuable position to retain.
7. In my view, there was nothing to be gained, but much to be lost, by adducing the interview of the complainant with Garth Hossack. No criticism can be made of trial counsel for the approach taken. This ground of appeal is without merit.

Unrepresented ground 3 - failure of counsel to object to the admissibility of record of interview dated 26 April 2016

1. This ground of appeal alleges trial counsel failed to object to this interview being admitted. That is incorrect. Trial counsel raised objection to the admission of this interview on 12 October 2021 and argued that it should be excluded pursuant to s 137 of the Evidence Act (AB vol 2 Part B 368). The trial judge ruled the evidence was admissible. This ground of appeal as particularised is without foundation. However, I will treat it as a complaint that the trial judge erred by admitting the record of interview.
2. The record of interview was conducted with the applicant at a time when he was in custody. It involved allegations he had committed crimes of dishonesty and allegations he had committed acts of family violence. The interview was tendered in a heavily edited form and contained only his answers to some questions about family violence. In the main his answers were to the effect of "no comment" and when police asked him why the complainant may have alleged certain things he said "you'll have to ask her".
3. The prosecution relied upon this evidence to demonstrate the applicant had a state of mind in which he believed he had control in the relationship and that the complainant would not turn against him or be disloyal to him. The prosecution argued that it could be inferred from the applicant's responses that he had confidence the complainant would not implicate him in any alleged breaches of the Interim Family Violence Order because she was compliant with his expectations. The State submitted the evidence was relevant to place the relationship into context and, in particular, to demonstrate his belief that irrespective of the existence of the Interim Family Violence Order, and his physical absence from the complainant because of his incarceration, he still remained in control of the relationship and retained the complainant's support and loyalty.
4. The State submitted the evidence was capable of being used by the jury to answer the inevitable question that arose namely, why the complainant would remain in the relationship with the applicant even when he was in custody. It was relevant, the State said, to the applicant's state of mind and the jury's assessment of whether they were satisfied the applicant had any of the tendencies asserted by the prosecution, and therefore did not offend s 89 of the Evidence Act, as it had a use beyond the drawing of an inference unfavourable to the applicant because he had refused to answer questions.
5. Defence counsel submitted the evidence did offend s 89 as it had no additional use. He submitted the evidence was of minimal probative value. He submitted it was not evidence reflective of the applicant's state of mind, but rather confirmation of a factual scenario that had been established by other evidence, namely that on 8 April, the complainant told police that no family violence had been perpetrated upon her by the applicant (the Acting Sergeant Hossack interview). Defence counsel argued that what was said by the applicant in the interview was so far removed from the issue to be determined by the jury - namely whether the applicant did an act in the shed intending to cause the death of the complainant - as to carry minimal probative value.
6. Defence further submitted that the prejudicial effect of the evidence was to create an impression in the jury's mind that the applicant was not co-operating with police because of the series of "no comment". It was submitted that because the prosecution were only seeking to rely upon a small portion of the record of interview, there was a potential risk that the jury may be left with an incomplete understanding that all the applicant was doing was exercising his right to silence.
7. The trial judge ruled the evidence admissible. In doing so, he said: (AB vol 2 Part B 370)

"I agree that there is some danger of misuse by the jury, which will have to be addressed by directions, and I won't - I won't attempt to formulate now but I think it also has probative value, in the sense that it is another step, a link in the course of events that the jury have been hearing about, that I've already ruled is admissible. It - it may well be it doesn't influence the jury to any considerable extent, that's a factual submission that can be put to the jury by defence counsel in closing - closing argument. But the prosecution assert that it has another use that it's not a use for a hearsay purpose, it's a use that is relevant to give context or complete the context of the course of conduct and to illuminate the dynamics of the relationship and the accused's state of mind in respect of those dynamics.

I think it's capable of affecting the assessment by the jury of the probability of the existence of the dynamics and the nature of the relationship that will be asserted by the prosecution. I think it has the capacity to do that to some extent, and I don't think - well I've already said there is a danger of misuse. I don't think it's a significant danger and I think it can be easily obviated by appropriate directions. So I intend to admit the interview but with the variation that I've - I've indicated."

1. The trial judge gave directions to the jury as to the use they could make of this evidence. He said: (Summing up pp 35-36):

"Now, I need to say some things to you about that interview. Usually a record of interview of police is admitted because it contains admissions made by an accused with respect to charges which are before the Court. It is admitted for that purpose to prove the truth of those admissions. In this case, it's not admitted for that purpose.

The accused admitted nothing in that interview. It's basically a no comment interview. He was perfectly within his rights not to comment to the police. He's not required to answer questions from the police, and in particular when they're interviewing you after giving you a caution, you're not required to answer their questions. That's in fact what the caution says. You're cautioned about that. So he was completely within his rights to give a no comment interview.

In any event, he's not charged in this case, as I've already mentioned, with the matters he was being interviewed about, and you should not draw an inference that he's guilty of those matters simply because he refused to answer police questions. Why that evidence is before you is because the prosecution say that it's relevant for you to assess the accused's demeanour and attitude in the interview when you're assessing the relationship, or the nature of the relationship, and his approach to the relationship with [the complainant].

The prosecution say that his demeanour and attitude in that interview will reveal to you his confidence that [the complainant] would not dob him in, would provide loyalty to him, and would back him up in respect of his dealings with the police. The prosecution argues that this evidence supports their assertion that he was exercising control over the relationship and was comfortable with that control because he was expecting loyalty from [the complainant]. They say that that's relevant to your assessment of whether he had the tendencies that they then say bear on what happened in the shed. It's a matter for you what you make of that argument, what you make of the evidence, the weight you apply to it. But that's how the prosecution say you can use it and you should only use the interview for that purpose and for no other purpose.

Of course, Mr Richardson says, 'Well, that interview proves nothing.' He was entitled to refuse to answer questions. [The complainant] was free to act as she decided in respect of her dealings with police and, in fact, it establishes that this was a - their relationship was a two-way street. She engaged in as much of the type of conduct the prosecution are complaining about as he did. Mr Richardson would say you should use the interview in that way."

1. I can identify no error in the approach taken by the trial judge. The evidence had a use beyond the drawing of an adverse inference because of a refusal to answer questions. It was potentially reflective of the applicant's state of mind as to his level of confidence that the complainant would not tell the police about the true nature of their relationship. That evidence went directly to one aspect of the asserted tendencies, namely his tendency to exercise control over the relationship. This aspect of the tendency evidence was of considerable import in my view, particularly given the evidence that as at 8 April 2016 the complainant had asserted there had been no incidents of family violence between her and the applicant, and the evidence on the trial that during his incarceration the complainant had maintained her relationship with the applicant to the extent of discussing marriage and a future with him, whilst simultaneously expressing to others her fear of the applicant. Evidence reflective of the applicant's state of mind and his confidence in the relationship was relevant to the jury's assessment of the veracity of such conflicting evidence.
2. Whilst there was potential for prejudice, given all of the other evidence led on the trial, the risk of misuse was, in my assessment, minimal. Given the volume and nature of much of the evidence adduced on the trial, this evidence was unlikely to be of great moment, and it is difficult to envisage the jury misusing this evidence given the clear directions given by the trial judge.

Unrepresented ground 4 - counsel's failure to exclude a listening device recording dated 23 April 2016

1. This ground alleges that trial counsel failed to object to the admissibility of a listening device recording dated 23 April 2016. In summary, this listening device recording depicts an argument between the applicant, the complainant and another witness on the trial, Dillon Davey. On the recording the applicant can be heard verbally abusing the complainant, and the content of the recording is also consistent with him being involved in a physical altercation with the complainant. As I have already noted, I have listened to this recording. It was admitted as part of the tendency evidence. It is therefore simply not correct to assert that trial counsel did not seek to exclude this evidence. As discussed earlier in these reasons, on 30 July 2021, counsel sought the severance of the persistent family violence charge from the attempted murder charge and the alternative of commit an unlawful act intended to cause bodily harm. The learned trial judge severed count 1 from counts 2 and 3 on the Indictment, but nevertheless ruled that the general evidence of the relationship and the alleged family violence was admissible on the attempted murder charge.
2. I have already addressed the admissibility of the tendency evidence in earlier grounds of appeal and there is nothing additional raised in this ground of appeal, relevant to the admissibility of the tendency evidence, which requires comment or a determination.
3. To the extent this ground of appeal asserts trial counsel did not seek to have this evidence excluded, it must fail, as he did but the trial judge ruled against the objection and admitted it.
4. The applicant also complains in respect to this ground of appeal that his counsel should not have admitted this listening device recording by way of an agreed fact. Once the trial judge had ruled the evidence admissible, it was perfectly proper for counsel to agree to admit it via an agreed fact. There was no forensic disadvantage to the applicant in that approach. Indeed, forcing the prosecution to call a witness in order to admit this evidence would have potentially served the purpose of highlighting it, which would not have been in the applicant's interest. There was nothing to be gained by cross-examining the police officer who inserted or retrieved the listening device material. The recording spoke for itself.
5. I also note that in assessing whether any miscarriage of justice was occasioned as a consequence of the admission of this listening device recording, the applicant gave evidence about the incident. In that evidence he accepted it was his voice on the recording and the recording depicted an occasion where he, the complainant and Dillion Davey had been present at his residence. The applicant gave a version of events as to what he said had happened on that occasion. It was a matter for the jury as to whether they accepted his account as to that.

Unrepresented ground 15 - counsel's failure to object to prejudicial evidence

1. By this ground, the applicant submits his trial counsel failed to object to a body of "highly prejudicial material that was irrelevant" and thereby a miscarriage of justice has occurred.
2. In particular, the applicant claims counsel failed to object to evidence pertaining to the following subjects:

(a) his use of drugs;

(b) expert evidence about the effects of methyl amphetamine upon an individual;

(c) a listening device recording, dated 8 April 2016, tendered as part of the tendency evidence. This recording was from inside the applicant's home. In it, the applicant can be heard speaking aggressively to the complainant, including by threatening to kill her, threatening to burn the house down and saying "You're dead" to the complainant;

(d) intercepted phone messages demonstrating general violence and disregard for the law, tendered as part of the tendency evidence;

(e) the assault on Jarrod Kringle;

(f) the assault on Jack Evans;

(g) evidence of the applicant's incarceration in periods other than April to November 2016.

1. The evidence referred to in sub-paragraphs (c), (d), (e) and (f) above all relate to tendency evidence. I have discussed at length the admissibility of that evidence. The submissions made by the applicant relevant to ground 15 raises no additional aspect relevant to either counsel's alleged incompetent conduct of the trial, or error on behalf of the trial judge, which requires addressing.
2. As to sub-paragraph (a) and (b) and the applicant's use of drugs, evidence was given by the complainant that shortly before the fire event on 24 April 2017, she observed the applicant to be affected by drugs. Her evidence was that after the "Coke can incident", at her residence, the applicant and her mother left and when they later returned, she observed them to be affected by drugs. The evidence as to the applicant's consumption of drugs was relevant to the jury assessing how he may have behaved thereafter, including when he was in the shed with the complainant.
3. The act that was alleged to have been committed by the applicant was an extreme one. It involved him, on the State's case, displaying paranoid, aggressive, violent and impulsive behaviours. The evidence relating to his drug consumption and the expert evidence relating to the effects of methyl amphetamine on an individual was relevant to the assessment of whether it was objectively more likely that the applicant behaved in the manner alleged by the complainant.
4. It is noteworthy that in the applicant's evidence he admitted consuming methyl amphetamine on 24 April 2017, although said he had done so in the morning but not at the point in time when he and Wendy Rodway left the complainant's home after the "Coke incident".
5. Expert evidence was given by Neil McLachlan-Troup of Forensic Science Service Tasmania. He gave evidence that the applicant's blood, which had been taken following his arrest, was subject to toxicology testing. The results showed concentrations of amphetamine, methyl amphetamine and THC in the applicant's blood. Mr McLachlan-Troup's evidence was to the effect that ingestion, injection or inhalation of methyl amphetamine, may have various effects upon an individual including euphoria, extreme confidence and increased energy. Other effects may include agitation, paranoia and, in some instances, psychosis. He also gave evidence that when withdrawing from methyl amphetamine, individuals can behave unpredictably and possibly violently. His evidence was that in his opinion, the use of cannabis did not "cancel out" the effects of methyl amphetamine (AB vol 2 part B 1299-1302).
6. Mr McLachlan-Troup was cross-examined. He agreed the impacts and effects of methyl amphetamine vary between individuals and the effects and impacts of the consumption of methyl amphetamine may also vary, depending upon the manner in which the drug was consumed. Relevant to this, the applicant gave evidence that he had smoked but not injected methyl amphetamine.
7. The evidence about the applicant's use of drugs generally, and specifically on 24 April 2017, was relevant to the assessment of the nature of the relationship the applicant shared with the complainant and, in particular, was relevant to the assessment of the likelihood of the applicant behaving as alleged in the shed on 24 April 2017. Whilst no objection was taken to the admissibility of the specific evidence, no miscarriage of justice arises because the evidence was clearly admissible. It was probative of the likelihood of the applicant having behaved in violent and aggressive ways during the relationship and specifically on 24 April. The trial judge gave directions to the jury as to the care they should take in their assessment and use of this evidence. He said:

"You've also heard other conduct, which is not necessarily directly relevant to the relationship, but was part of the narrative, the context, and impossible to exclude, which may reveal other conduct which you might find discreditable or which reveals, or may reveal, wrongdoing, lawbreaking or other discreditable features. For example, reference to the use of illicit drugs; the use of by the accused - violence against other people; the fact that he was held in custody for a period of time and the fact that he was the subject of a Family Violence Order and from time to time was subject to bail conditions which included curfew conditions.

The point I want to make at this time is any previous conduct is not the subject of the charges before you. You would not usually hear about such conduct or any wrongdoing because the fact that somebody did something on another occasion or is a person of particular character or a person who engages in certain types of discreditable conduct is, as a matter of logic, not relevant to whether someone did a specific act on the occasion in question. I am sure that must be obvious to you.

In this case, that evidence has been admitted. ... It has been admitted for very specific purposes which I will discuss with you in a moment. You must take great care to only use the evidence for those purposes. I am emphasising this because it is a very significant feature of the case. ... You have to be very careful with how you use the evidence that bears on the relevant and, I repeat, bear in mind that he is not charged with any crime except that arising from what happened in the shed. There can be a natural reaction to evidence you have heard. To simply say he is a terrible person who's acted wrongly or discreditably on other occasions, to say that because of what he has done or how he's appeared in respect of the relationship, a natural, emotional reaction can be to want to punish him. That, of course, would not be logical or correct and you must not use the evidence in that way and particularly you must not use it to form a view about his character to reason that he is the kind of person who must have committed a crime of the nature of which he is charged. You must be careful to avoid any emotional reaction you may have to the evidence to colour your logical application of the evidence to the issues in this case. And I remind you to approach the proof of the alleged crimes in a dispassionate and logical way". (Summing up page 28-29).

1. In addition to these directions the trial judge gave an expert evidence direction, emphasising to the jury that ultimately it was a matter for their assessment as to what they made of the expert's opinion, bearing in mind that it had not been challenged to any significant degree.
2. The directions given by the trial judge as to the use the jury could make of this evidence appropriately guarded against its misuse. I note no further directions were requested by counsel at the time of the summing up. There is no merit in the assertion that the admission of the evidence pertaining to the applicant's drug use or the expert evidence as to the effect of the consumption of methyl amphetamine on individuals, caused a miscarriage of justice.
3. The other aspect of the evidence relevant to the applicant's association with drugs arose during his cross-examination. During his evidence-in-chief, the applicant gave an explanation for his dislike of the complainant's mother, which was directed at addressing the State's allegation that he sought to limit the complainant's time with her mother, as part of his endeavour to keep control over the complainant and the relationship. The applicant gave evidence to the effect that he did not want the complainant spending time with Ms Rodway because Ms Rodway involved the complainant in her shoplifting; he believed Ms Rodway was working as a prostitute and he believed the complainant would attend houses of drug dealers on behalf of her mother: (AB vol 2 part B 1784).
4. In cross-examination the applicant was challenged about this evidence. It was suggested to him that the reason he did not approve of the complainant spending time with her mother is because she was aware of episodes of family violence that he had perpetrated upon the complainant and would "take him to task" about it. The applicant denied this. Leave was granted to cross-examine the applicant about supplying drugs to Wendy Rodway. He agreed he had, on occasions, given Ms Rodway drugs, but denied it was in exchange for stolen goods. The applicant was cross-examined about his use of methyl amphetamine and it being a source of angst in the relationship and his willingness to have other persons who would smoke methyl amphetamine at his residence: (AB vol 2 part B 1888-1890). The relevance of this line of cross-examination was to allow the jury to assess the validity of his explanation that the reason he sought to limit the time the complainant spent with her mother was because of her mother's characteristics and habits, as opposed to it being part of his tendency to control the complainant and the relationship, and also to assess the legitimacy of aspects of the complainant's evidence where she had indicated the applicant's use of methyl amphetamine had been a source of contention in the relationship and had led to arguments.
5. The evidence had a specific relevance given the State's case was that one of the ways in which the applicant had attempted to exert control of the relationship was by limiting the persons, including members of her family, with whom the complainant was permitted to socialise. It was for the jury to assess whether there was an inherent unbelievability in the applicant's claim that he did not want the complainant spending time with her mother because she was, amongst other things, a drug user whilst at the same time being a person who, on occasions, supplied drugs to Ms Rodway, and regularly used drugs himself.
6. There was no unfairness associated with this line of cross-examination. It arose because of the evidence the applicant had given. Any risk of misuse was negligible given the other issues on the trial and the directions given by the trial judge.
7. As to evidence of the applicant's custodial status, the jury were well aware the applicant was in custody between April and November 2016. This fact was relevant to both the prosecution and defence cases. From the prosecution perspective, they submitted there was evidence within this time of the applicant continuing to assert influence and control over the complainant and the relationship, and the complainant being conflicted about the relationship, expressing a desire to continue with it to the applicant but telling others she was scared of him and wanted to end the relationship. From the defence perspective, there was evidence that despite the complainant having an opportunity to withdraw from the relationship whilst the applicant was in custody, she continued with it by maintaining regular contact with the applicant and making plans for the future with him. The applicant does not submit evidence which revealed this period of time in custody was inadmissible. He complains however that two other periods of time were revealed by the evidence and his Counsel failed to object to such evidence being led. It is of course relevant, in assessing whether any miscarriage of justice arises, that the jury were well aware the applicant had spent time in custody and the trial judge gave clear directions as to the approach the jury should take to such evidence (see para 289 above).
8. There was evidence on the trial of two additional periods of time the applicant was in custody. The first was that during cross-examination of Rickie Davey by the State, following leave being given pursuant to s 38 of the Evidence Act. It was put to him that he had visited the applicant in custody, the day prior to preliminary proceedings in 2018. This was relevant to the jury's assessment of the credibility of Rickie Davey and, in particular, the State's argument that Mr Davey had changed his evidence in order to assist his son.
9. The second piece of evidence was of an Arunta call made by the applicant to the complainant in August 2017, when the applicant was in custody. The evidence of the Arunta call was led from Joshua Cumberland, who was a custodial officer at the relevant time. The evidence was to the effect that Mr Cumberland had reviewed CCTV footage of the phone call being made. The phone call had been commenced by another inmate who then provided the phone to the applicant. The phone call was in evidence. During the call the applicant could be heard speaking with the complainant. He said to the complainant, "I love you, I want to know what's going on". The complainant responded, "I'm breaching you for this" (At the time the applicant was subject to a Family Violence Order preventing him from contacting the complainant. This evidence was before the jury by way of an agreed fact). The applicant replied, "No, you're not babe". The applicant then said to the complainant, "Can you just tell the truth?" The complainant replied, "What about". The applicant said, "How it happened ... babe, I did not do that". The complainant replied, "What do you mean you didn't". Following further discussion, the applicant said, "Why do you say I did it though". The complainant responded, "Because you did. Why are you saying you didn't"?
10. There was also evidence from the complainant's father, Richard Evans, that he was present with the complainant when she received this phone call and that she was visibly upset, shaking and crying after the call. The complainant told him it was the applicant on the phone.
11. This evidence was relied upon by the State as post offence conduct. The State argued it was reasonable to infer from the content of that phone call that the applicant was putting pressure on the complainant to not tell the truth about what had occurred in the shed because he knew the truth would implicate him. The evidence of Mr Cumberland was also relevant to the jury's assessment of the length the applicant was prepared to go to, to make contact with the complainant, and convey his message. This evidence had a nexus with other evidence the State relied upon as to the applicant's behaviour immediately after the fire event. It was part of the State's case that the applicant asked the complainant to lie to others about how the fire had started and told her, that if she did not say it was an accident, he would go to prison for a very long time. The State alleged that the applicant told a number of lies to emergency services personnel, police officers and a doctor that the fire had been caused by an accident. Evidence of the making, and contents, of the telephone call in August 2017 was relevant to the jury's assessment of whether this was an example of the applicant endeavouring to exert pressure upon the complainant and call upon her loyalty to avoid the truth of him having deliberately set the complainant on fire being revealed.
12. Given the import of this evidence, its probative value clearly exceeded any prejudice associated with the evidence disclosing the applicant's custody status. Both the evidence of Rickie Davey and Mr Cumberland related to periods of time which were well after the fire event. It would come as no surprise to the jury that the applicant was remanded in custody following an event of this nature.
13. No legitimate criticism can be levelled against trial counsel for not objecting to this evidence. Had any objection been taken, it was inevitably doomed to fail given the probative value of the evidence. Whilst not specifically asserted as an aspect of this ground of appeal, I also note for the sake of completeness, that I can identify no error associated with the admission of this evidence. As noted, both aspects of this evidence had significant probative value and given the timing of when the applicant was in custody, and the fact the jury were aware he had spent time in custody in April to November 2016, the prejudicial effect was in my assessment virtually non-existent. There is no merit in this ground of appeal.

Unrepresented ground of appeal 8 - counsel's failure to seek a s 165 of the Evidence Act direction

1. By this ground, the applicant argues that a direction pursuant to s 165 of the Evidence Act should have been sought by his trial counsel, and given by the trial judge, in respect to the evidence of the complainant. The basis of this submission is that the complainant admitted in cross-examination that she had lied to police when she gave the witness statement to Acting Sergeant Hossack on 8 April 2016 in which she denied any family violence had been perpetrated upon her by the applicant. The applicant contends that this made the complainant's evidence so inherently unreliable that a s 165 warning was warranted.
2. Section 165 of the Evidence Act provides:

(1) This section applies to evidence of a kind that may be unreliable, including the following kinds of evidence:

(a) evidence in relation to which Part 2 of Chapter 3 or Part 4 of Chapter 3 applies;

(c) evidence the reliability of which may be affected by age, ill health, whether physical or mental, injury or the like;

(d) evidence given in a criminal proceeding by a witness who may reasonably be supposed to be criminally concerned in the events giving rise to the proceeding;

(e) evidence given in a criminal proceeding by a witness who is a prison informer;

(f) oral evidence of questioning by an investigating official of a defendant that is questioning recorded in writing that has not been signed or otherwise acknowledged by the defendant;

(g) in a proceeding against the estate of a deceased person, evidence adduced by or on behalf of a person seeking relief in the proceeding that is evidence about a matter about which the deceased person could have given evidence if he or she were alive.

(2) If there is a jury and a party so requests, the judge is to -

(a) warn the jury that the evidence may be unreliable; and

(b) inform the jury of matters that may cause it to be unreliable; and

(c) warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it.

(3) The judge need not comply with subsection (2) if there are good reasons for not doing so.

(4) It is not necessary that a particular form of words be used in giving the warning or information.

(5) This section does not affect any other power of the judge to give a warning to, or to inform, the jury.

(6) Subsection (2) does not permit a judge to warn or inform a jury in proceedings before it in which a child gives evidence that the reliability of the child's evidence may be affected by the age of the child. Any such warning or information may be given only in accordance with section 165A(2) and (3)."

312 Whilst, of course, the list provided for in subs (1) is by no means exhaustive, none of those categories apply to the evidence of the complainant. Moreover, it could not be said that the complainant's evidence generally falls within a non-specified category that might be described broadly as "evidence of the kind that may be unreliable". There was simply no basis upon which trial counsel could have sought a direction pursuant to s 165 of the Evidence Act, and he cannot be criticised for failing to seek a direction when there was no proper basis upon which to do so. Indeed, it would have been remiss of him to do so.

1. The complainant's evidence stood to be assessed in accordance with a principal Crown witness direction, which was given, but it did not fall within the type of evidence that attracts a s 165 direction. There is no merit in this ground of appeal.
2. In summary, in respect to all of the grounds of appeal which raise a complaint in respect to the manner in which counsel conducted the applicant's defence, I conclude there is no merit. Objectively, I can identify no decision or action taken by counsel that is not capable of rational justification or explanation. It has not been demonstrated that counsel's conduct resulted in any material irregularity that gives rise to any significant possibility that the outcome of the trial may have been affected. Indeed, on my assessment the applicant was provided with a vigorous, thorough and forensically valid defence.

Grounds of appeal asserting error by the trial judge

Unrepresented ground of appeal 1 - admission of Facebook message to Shannon Jones

1. This ground of appeal asserts the trial judge erred by allowing, in re-examination, the tendering of a Facebook message the complainant had sent to a friend, Shannon Jones, on 28 April 2016. This occurred during the pre-recording of the complainant's evidence in March 2020. Objection was taken at the time of the re-examination, but it was not ruled upon until 30 September 2021, because there was an understanding that the pre-recorded evidence would be concluded and the trial judge would rule upon the objection in due course and, subject to that ruling, appropriate edits could be made to the pre-recorded evidence. The trial judge ruled that the Facebook message was admissible. This ruling was made after the trial judge had dealt with the severance application and determined that evidence relevant to the relationship generally, and the tendency evidence was admissible on the attempted murder trial.
2. As I have already explained, the relationship and tendency evidence was significant in the context of the trial. It was an integral part of the State's case that the applicant had been violent, dominant and controlling in the relationship, the complainant had felt conflicted and was fearful of leaving the relationship, but by time the complainant went to the applicant's shed on 24 April 2017, she was firmly of the view the relationship was over. She had conveyed that to the applicant the night before and during that day; during the argument in the shed she had reiterated that and had expressed a strong desire to not only leave the shed, but the relationship which led to the applicant's actions in throwing petrol over her in an attempt to regain control and then ultimately flicking a lighter towards her and setting her on fire when it was apparent he had lost control.
3. By contrast, the applicant's case was premised on an assertion that the complainant had overstated the controlling and violent nature of the relationship. He relied heavily on evidence which demonstrated that during a period of time when he had been in custody she had remained in a relationship with him and went so far as preparing documents with an intention to marry the applicant; that she had been prepared to act contrary to family violence orders directed at protecting her and contact the applicant whilst he was in custody under an assumed name; that she had made a joint application to amend the terms of the family violence order so that she could continue to contact the applicant whilst in custody; and that she had told police that the applicant had never been violent towards her and that she did not want a family violence order.
4. The true nature of the relationship and how the complainant and applicant genuinely felt about the relationship were significant issues on the trial.
5. The Facebook message was sent to Shannon Jones on 28 April 2016, at a time when the applicant was in custody. The content of the Facebook message included the following:

"im so sorry ive been so ignorant these last few weeks! ive been in the biggest domestic violence relationship and kicked out of home but im finally free ... im sorry shan i really am. and i hope i can see you soon and talk in person! i need to be around good people like you. ive survived death 3 times but he is finally in gaol for a long time xxx"

1. The trial judge determined the Facebook communication was admissible pursuant to both s 66 and s 108 of the Evidence Act. He said this:

"I'm satisfied that the piece of evidence in question is properly admitted through s 66 and s 108 as already discussed. It's permitted in relation to - it's relevant because it goes to the question of the - it goes through a chain of reasoning - it's relevant to the complainant's attitude to the relationship, which is capable of supporting and asserting the relationship was as she has described it in her evidence. Of course, it also goes to rebut any suggestion that arises from the nature of the cross-examination, that she has either fabricated or overstated the nature of the relationship ... I think the probative value of this evidence is high. It's the complainant's own words. It's a contemporaneous document in the sense that it was written well before the alleged events which constitute the crime. It was written at about the time of the events which are relevant to the relationship evidence. I think that the jury would - it would be capable of affecting the jury's assessment of those questions to a considerable degree." (AB Volume 2, Part A, Page 623).

1. Part of the applicant's submission is that the evidence was not admissible in re-examination, as the decision to allow it to be tendered at that point deprived the applicant of being able to cross-examine as to the contents of the Facebook message.
2. In R v Szach (1980) 23 SASR 563, King CJ said at 568-9:

"Re-examination is permitted for the purpose of explaining matters arising out of the cross-examination. It is to be permitted 'whenever an answer or answers given by a witness in cross-examination would, unless supplemented or explained in the manner proposed by the re-examiner, leave the Court with an impression of the facts, derived from the witness, that is capable of being construed unfavourably to the side responsible for calling the witness, and that represents a distortion, or an incomplete account, of the truth as the witness is able to present it': Reg. v. Lavery5, per Wells J. at p. 451. In re-examination a party may in many cases 'adduce evidence which would otherwise be inadmissible, for the purpose of explaining away or qualifying matters which have emerged in cross-examination and from which inferences adverse to that party's case could otherwise be drawn.' Reg. v. Clune (No. 1). It is probably impossible to devise a formula which would set the bounds of re-examination for every case. The variety of circumstances in which re-examination may be legitimate is too great. The fundamental requirement is that re-examination must in some way arise out of the cross-examination. Commonly re-examination is allowed to clear up ambiguities in answers given in cross-examination, to enable a witness to give his version fully of a topic which has been touched upon but left incomplete by the cross-examiner, and to re-establish the credit of a witness where answers given in cross-examination could be used to affect adversely the Court's view of the truthfulness or reliability of the witness."

1. Section 108 of the Evidence Act provides a prior consistent statement of a witness will not be excluded by the credibility rule in s 102 of the Evidence Act if:

"(1) it is or will be suggested, either expressly or by implication, that evidence given by the witness:

(b) has been reconstructed, whether deliberately or otherwise; or

(2) the court gives leave to adduce the evidence of the prior consistent statement."

1. Clearly, in cross-examination it had been suggested to the complainant that she was fabricating her account of the nature of the relationship she shared with the applicant. It had been clearly put to her that she was over-stating and exaggerating the controlling and violent nature of the relationship and that her behaviour of being willing to remain in a relationship with the applicant whilst he had been in custody, and participating in an application to amend the terms of the Family Violence Order to allow ongoing contact between her and the applicant, was inconsistent with her asserted claims that she was fearful of the applicant and felt controlled and dominated by him.
2. Inherent in the trial judge's ruling was a conclusion that the evidence of the Facebook communication was relevant to the jury's assessment of the complainant's state of mind in respect to the relationship, at a point in time shortly after the applicant had been placed in custody, and well before the events of 24 April 2017. It was evidence that had the ability to assist the jury in assessing the nature of the relationship at that point in time, and was therefore relevant to the jury making an assessment as to whether the relationship was more likely to be of the nature that was described by the complainant in her evidence, or of a nature more akin to that suggested by the applicant in cross-examination, or, indeed, a complicated merging of the two. The evidence of the Facebook communication had the quality of enabling the jury to make an assessment of the complainant's state of mind and was also capable of being seen as consistent with the complainant's claims of violent and intimidating conduct on behalf of the applicant prior to his remand in custody. Admitting the evidence of the Facebook communication was permissible pursuant to s 108. It was therefore proper that it be admitted during re-examination. The trial judge's determination was not tainted by error.
3. The applicant further contends in this ground of appeal that the trial judge should have excluded the evidence pursuant to s 137 of the Evidence Act. I have already referenced the trial judge's assessment of the probative value of the evidence. I agree with that assessment. The evidence had a high probative value for the reasons already discussed. A substantial issue on the trial was the true nature of the relationship; was the applicant violent, controlling and dominant or was the complainant exaggerating her account? Was the evidence of her staying in the relationship whilst he was in custody more consistent with the tumultuous but loving relationship suggested by the applicant? Consideration of such issues were fundamental to an assessment of what was objectively more likely to have occurred in the shed on 24 April. In admitting the Facebook communication, the trial judge was also minded to the prejudicial effect, but he determined any unfair prejudice that may arise from the language used in the message, or the possibility that the jury might speculate about other incidents about which they had not heard evidence, could be ameliorated with appropriate directions.
4. In my assessment, the probative value of the evidence was high. The evidence of the Facebook communication was evidence that was capable of being used by the jury in assessing the complainant's fear of the applicant, and the treatment she received at the hands of the applicant, at a point in time well before the incident on 24 April 2017. It was also relevant to an assessment of the degree of control the applicant had over the relationship and the complainant and therefore of potential assistance to the jury in contextualising the conflicted response displayed by the complainant by, on the one hand, staying in the relationship, whilst simultaneously harbouring fears about the violence the applicant was perpetrating upon her. The risk of unfair prejudice was minimal. There was nothing overly emotive about the words of the communication, particularly when considered in the context of other evidence on the trial. The message did reference "I survived death 3 times" there was no specific detail associated with that comment and in the context of the other relationship and tendency evidence that had been admitted on the trial was unlikely to have attracted undue weight or been misused by the jury. A clear direction was given in respect to the use the jury could make of this evidence and the care that needed to be taken. The trial judge said:

"There's also a Facebook message which [the complainant] had sent to a friend which contains assertions by her of fears for her safety. Both documents contain fears for her safety at the hands of the accused. Now, those documents are admitted - again, they're out of court statements. But they're admitted because they're relevant to - and they provide some evidence, according to your assessment, but they provide some evidence of [the complainant's] state of mind at the time she wrote them. That's what the prosecution say. The prosecution submit that those documents are consistent with [the complainant] being in fear of the accused and consistent with her claims that she now makes in evidence, of his treatment of her at that time. It's also consistent with the prosecution's assertion that the accused had control of the relationship, and the mixed response that produced in [the complainant]. Loyalty and staying in the relationship on one hand, and private, secret fears and doubts about the relationship on the other. Now that evidence can be used for you to assess those submissions and for that purpose. How you - what weight you place on them, what inferences you draw from them are a matter for you, but you need to take some care in respect of your use of that evidence. They are in the same category as hearsay or an out of court representation of fact. They can prove that what she said in the letter - that she was in fear, et cetera - is true. But it is not on oath. She wasn't being cross-examined at the time she wrote the letter, for example. But it's some evidence that can be used to support her evidence to you in court. However, you need to be careful about those letters because saying things like, "If I did it will be at his hands," in a letter, is obviously something that could produce a dramatic in a case like this... It doesn't prove what was in the accused's mind at the time of the fire. It's relevant of some evidence of how she was feeling at the time. Whether that is consistent with what she now says was happening in the relationship at that time and nothing more. And you should avoid any emotional or dramatic reaction to that evidence." (Summing up 38-39)

1. The direction appropriately guarded against misuse of the evidence by the jury. In my assessment the probative value substantially outweighed any risk of unfair prejudice and the evidence was properly admitted.

Unrepresented ground of appeal 10 - asserted errors in respect to the evidence of Jarrod Kringle and Rickie Davey

1. The applicant contends that the trial judge erred by granting leave pursuant to s 38 of the Evidence Act for prosecuting counsel to cross-examine Rickie Davey and Jarrod Kringle, and secondly erred by allowing the tendering of prior inconsistent statements made by those witnesses.

1. Jarrod Kringle was called as a witness by the State. His evidence was that in 2016 and 2017, he was a close friend of the complainant and would regularly visit at her house at Abbotsfield Road. When asked as to specific occasions he had interacted with the complainant, Mr Kringle claimed that he had no memory of any interactions because of his on-going drug use. He was questioned as to a statement he had made to police. Again, he claimed no memory of the contents of the statement.
2. Leave was granted to cross-examine Mr Kringle on the basis that his evidence was unfavourable to the State because of his claimed lack of recall and on the basis that he had made a prior inconsistent statement.
3. Evidence of his statement was tendered on the trial through Detective Senior Constable Jennifer Wood. In that statement he referenced an incident on 2 April 2017 in which he was present at the complainant's home and was questioned by the applicant about the nature of his relationship with the complainant and then assaulted by the applicant and David Eaton, all of which occurred in the complainant's presence. His description of this incident was consistent with evidence given by the complainant and Ms Rodway.
4. Additionally, his statement to police referenced conversations with the complainant about her relationship with the applicant, including that she wished to end the relationship but could not, and his knowledge of the letter that had been written by the complainant.

1. Mr Davey's evidence has already been discussed but in brief, and relevant to this appeal ground, Mr Davey gave evidence at trial that on 24 April 2017 he was at home at 49 Karanga Drive. He said at about 8.50pm he saw a car come up the driveway. Thereafter, the complainant came inside the house and told him that the applicant was in the shed. She took a bag to the bedroom, put the kettle on and made hot drinks. She took the hot drinks to the shed. After that he attended to some domestic chores, then went to the shed to tell the applicant and complainant there was a crayfish in the back fridge for them. At that point the roller door was about a third of the way down. Five or ten minutes later he heard a crashing sound, looked up and saw the applicant carrying the complainant in his arms, out of the shed. They fell over near the barbecue and the applicant was rolling the complainant on the ground. The applicant screamed, "Help. Get the hose. Ring triple zero". He raced outside and got the hose and provided it to the applicant. He went back inside and rang triple zero. At some point, he went into the shed to get the dog because there were "flames on the floor, papers and that". The flames were six to eight inches high. He said he could not be clear as to which order he did things but thought it most likely he went into the shed first because there were no flames in the shed by the time he called 000. He said he recalled speaking to the triple 0 operator and was asked whether there was any fire. He replied, "No, I've stamped it out with my feet". At one point, he said he screamed at the applicant and complainant, "Tell me what the fuck just happened here" and the complainant replied, "No, no, Rick, it was an accident" and kept repeating herself.
2. Leave was granted to cross-examine Mr Davey on the basis that his evidence was unfavourable to the State (his evidence of having seen flames in the shed and the complainant having told him it was an accident was inconsistent with the State's case) and on the basis that he had made a number of prior inconsistent statements. Leave was also granted pursuant to s 38(3) to cross examine as to credibility generally.
3. During such cross-examination it was put to Mr Davey that he had changed his evidence between the date of the fire event and the date of the trial, and that his motivation for changing his evidence was to assist the applicant. It was suggested to Mr Davey that he had not told the triple 0 operator that he had seen a fire in the shed. It was suggested to him that he had not claimed in the statutory declaration that he made with police on the evening of 24 April 2017, that he had seen a fire in the shed. Mr Davey was also cross-examined about the fact he had not told the triple 0 operator, nor the police officer who took his statutory declaration on 24 April 2017, that the complainant had told him that the fire was an accident. He was cross-examined about evidence he gave at preliminary proceedings, whereby he corrected some aspects of his statutory declaration, but did not correct other aspects he subsequently claimed in his evidence at trial.
4. The statutory declaration taken from Mr Davey on 24 April 2017 was tendered through Constable Melanie Long. The original statement was tendered as P88. A second copy of that statutory declaration was also tendered as P89. This document showed some amendments Mr Davey had made to his original statutory declaration at the time of the preliminary proceedings. Also tendered as a prior inconsistent statement was Mr Davey's evidence at preliminary proceedings. The evidence he gave at preliminary proceedings was played to the jury during the trial. During that evidence Mr Davey did not make mention of seeing flames inside the shed on the evening of 24 April 2017.
5. The State relied upon the prior inconsistent statements to support their argument that Mr Davey had changed his version of events considerably to support the account given by the applicant. It should be noted that the defence sought that additional aspects of the evidence given by Rickie Davey at preliminary proceedings be put before the jury so that "the whole picture" could be assessed by the jury.
6. As to the admissibility of the various prior inconsistent statements of Rickie Davey, the trial judge said:

"I think omission is potentially inconsistency. I think the jury are quite capable of finding that this is a very inconsistent statement with what he gave in evidence, and I will say now, I think he's a critical witness in this case. Absolutely critical. ... He is not an eye witness to the actual act, but he is as close as we're going to get and he is critical. And I think these aspects of inconsistency are critical to the jury's assessment, so I think this is all highly probative. I think everything has been done under the evidence - section 43 is a gateway to admissibility. I think the gateway has been satisfied. I think the evidence is admissible under - as an exception to the credibility rule, but I also agree that the jury have to hear about, and more than just what was put in cross-examination, they have to hear about what happened at the preliminary proceedings. ... I think as a matter of fairness that evidence has to go in as well. ... I have already made it clear that they should be getting some evidence about what happened then - about how he changed his statement, or about the different evidence he gave at the time".

"Firstly, I'm satisfied that for the purposes of determining whether or not the correction of the statement in evidence given at preliminary proceedings about it is capable of amounting to an inconsistency within the meaning of section 43 and section 106. The answer is yes, I mean that's basically a matter of judgment, perhaps even a question of fact for the judge but clearly it's capable of amounting to an inconsistency if - in a circumstance where a witness has made a police statement, at preliminary proceedings purports to correct and add to that police statement in order - on the implications available, it was done in order to comprehensively insure that the statement is given an accurate account of what occurred, but doesn't include things at that point that are subsequently given in his evidence at trial, that's an inconsistency in my view.

The basis of the admissibility of a prior inconsistent statement is not section 43, it's section 106. Section 43 is a procedural requirement that must be complied with if it's applicable before the statement will become admissible under section 106, and as I said this morning, there are consequences if the statement is admitted for credibility purpose. ... Section 106 deals with rebutting denials by other evidence and the other evidence is the proof of the prior statements by means other than from the answers of the witness. Section 106, sub-section 1 says 'The credibility rule does not apply to evidence that is relevant to a witness's credibility and that is adduced otherwise and from the witness'. ... Under section 108, the credibility rule does not apply to evidence of a prior consistent statement of a witness if the evidence of a prior inconsistent statement has been admitted, which is/has been - this is the first statutory declaration or it is, or will be suggested that the evidence has been fabricated, re-constructed etc. So the evidence would be admissible in order to re-establish Mr Davey's credibility to the extent that it does so. Whether it does so, of course, is a matter for the jury but it's admissible for that reason, but of course then there is the aspect of fairness that comes into that and that is that obviously the defence don't want to be put in the position of having to adduce this evidence and the procedural implications of doing so. What it seems to me is happening is the prosecution is agreeing to put this in the prosecution case, but saying that if it does so, all of the evidence should go in, including the cross-examination. I agree with that position. If this is to go in as what is effectively a prior consistent statement, that is the defence want it in, then I think all of the evidence should go in and that includes the examination and cross-examination of Mr Davey at the preliminary proceedings and I think that should occur simply as a matter of fairness, because the jury need to hear all of that evidence to be able to assess whether or not it does actually re-establish credibility." (AB Vol 2 Part B 1715-1717).

1. It should be noted then that whilst the trial judge admitted the original statutory declaration as a prior inconsistent statement, the evidence of Rickie Davey that was given at preliminary proceedings was admitted at the defence request. Complaint cannot now be made as to it being admitted. To the extent the applicant complains about the admission of the evidence given at preliminary proceedings in his written submissions, there is no merit.
2. As to leave being granted to cross-examine Mr Kringle and Rickie Davey, in my assessment it was properly granted.
3. Section 38 of the Evidence Act was intended to affect a significant change to previously existing common law principles. The provision permits cross-examination by the party calling the witness in a number of circumstances, including if the witness gives "unfavourable" evidence, or has made a prior statement which is inconsistent with his court testimony. Whilst the term "unfavourable" is not defined in the Evidence Act, it has been the subject of considerable judicial commentary. "Unfavourable" does not mean adverse. It simply means "not favourable" (see Kanaan v The Queen [2006] NSWCCA 109 at [83]). It is evidence that to some extent, detracts from the case of the party calling the witness. An inability to recall due to loss of memory is sufficient to invoke the provision (see Tasmania v S [2004] TASSC 84 at [36]).
4. In Randall v The Queen [2004] TASSC 42, 146 A Crim R 197 the Court of Criminal Appeal considered the application of s 38. At [14] Cox CJ said as follows:

"14 The Act, s 38, represents a clear departure from the common law which restrained parties from cross-examining their own witnesses save in circumstances where they were shown to be hostile. It has been the subject of many observations by the Supreme Court of New South Wales where the section has been in operation for nearly a decade longer than in this jurisdiction. In R v Kneebone [1999] NSWCCA 279, (1999) 47 NSWLR 450, a case where a crucial eye witness was not called, Greg James J, with whom Spigelman CJ agreed, made a passing reference to the section at p 461-462, where he said:

'In the context of a criminal case, care may have to be given to the question of what 'unfavourable' to the Crown means. That concept will not necessarily be satisfied simply because the witness' potential testimony does not accord with some prosecutor's view of the appropriate 'camp' or some case theory which does not accord with all the otherwise reliable evidence.

There have been various views taken in the court as to the meaning of 'unfavourable' in s 38 of the Evidence Act (see R v Milat (Hunt CJ at CL., 23 April 1996, unreported); R v Lozano (Court of Criminal Appeal, 10 June 1997, unreported); R v Souleyman (1996) 40 NSWLR 712; R v Pantoja (Court of Criminal Appeal, 5 November 1998, unreported); R v GAC (Court of Criminal Appeal, 1 April 1997, unreported); R v Adam and Adam (Wood CJ at CL, 24 November 1998, 3 December 1998, 11 December 1998, unreported); on appeal R v Adam and Adam (Court of Criminal Appeal, 23 July 1999, unreported); R v Patsalis and Spathis (No 10) (Kirby J, 10 August 1999, unreported). Those views properly reflect the object of s38 of the Evidence Act to provide a wider entitlement than s53 of the Evidence Act 1898, its predecessor. That provision dealt with the circumstance of a witness proving 'adverse'. However, the full width of any entitlement under s38 and the criteria for the proper exercise of discretion to permit cross-examination remain to be settled. Other questions remain as to the appropriateness of calling witnesses known or expected to give unfavourable evidence and the eliciting or refraining from eliciting particular testimony against the interest of or not to the advantage of the party calling the witness. There is much about the application of the section still to be resolved'."

"24 The granting of leave under s38(1)(a) in no way depends upon some objective assessment by the trial judge when the application is made of the truthfulness of the evidence, the subject of the application for leave to cross-examine on. Indeed, it is only at the conclusion of all the evidence that any proper assessment of the truth can be made by the Court. As the Crown's concern should always be to place the truth before the jury, where there is a reasonable basis for presenting a particular version consistent with the guilt of the accused, there is much to be said for the proposition that a material witness such as an eye-witness to the actus reus should be subjected to testing if he or she advances evidence quite inconsistent with that version. In my view, the evidence of both Touber and Davies was unfavourable to the Crown which had called them as witnesses and that opened the way to the learned trial judge to permit their cross-examination under s38(1)(a). Furthermore, it was clear from a previous aborted trial that if the Crown did not test the evidence of these witnesses, it would not be contested by the defence and might assume an unwarranted probative value because it was led by the Crown."

1. A review of the authorities suggests that where evidence of a witness unhelpfully conflicts with other evidence that has been or is to be led by the State, and the evidence relates to a material issue, or is of importance or of consequence, then it is "unfavourable" within the meaning of s 38(1)(A) of the Evidence Act. In considering whether there ought to be a grant of leave, emphasis is placed on the importance of the fact-finder having the opportunity for the evidence to be appropriately tested. Thus in circumstances where it is unlikely the defence will challenge or test the unhelpful evidence, a grant of leave may be warranted.
2. Clearly, the evidence of Mr Kringle and Mr Davey fell into this category. Mr Kringle's evidence was "unfavourable" in the sense his lack of memory was unhelpful to the State's case and he had made a prior statement inconsistent with his Court testimony about matters of relevance. Rickie Davey's evidence was inconsistent with the State's case in two very significant aspects and he too had made prior statements inconsistent with his Court testimony. The in-court testimony was favourable to the applicant and therefore unlikely to be challenged or tested by him. There was no error in the trial judge granting leave and allowing cross-examination of either witness.
3. Similarly, I can identify no error in the trial judge allowing the prior inconsistent statements of either witness to go before the jury to enable the jury to fully and properly consider the value of the evidence. Without the prior statement of Mr Kringle, his evidence that he could remember nothing, would have been of no use to the jury, yet the account he provided to police in his statutory declaration was relevant to the jury's assessment of a number of facts in issue. It was important that the jury were able to hear and consider each of Rickie Davey's prior versions of events so as to make a full, proper and fair evaluation of his credibility, and the suggestion that his evidence had evolved and changed to support the applicant. Rickie Davey was an important witness on the trial and the full ambit of the various versions of events given by Mr Davey was necessary to enable the jury to fully assess how his narrative had unfolded and what impact, if any, that had upon the jury's evaluation of his credibility. It was in the interests of justice that the jury have the opportunity to fully consider the truthfulness of Rickie Davey's evidence and this was only possible if the evidence was appropriately tested and placed into the context of all that he had previously said about the subject matter.
4. There is no merit in this ground of appeal.

Unrepresented ground of appeal 5 - admission of the letter written by the complainant

1. By this ground of appeal, the applicant raises the same complaint as is raised by represented ground of appeal 3. The issues have been fully canvassed in respect to that appeal ground. Nothing new has been raised by the applicant in this unrepresented ground of appeal. For the same reasons as I expressed in respect to represented ground of appeal 3, this ground of appeal must fail.

Unrepresented ground of appeal 9 - admission of relationship and tendency evidence

1. By this ground of appeal, the applicant raises the same complaint as is raised by represented ground of appeal 2. The issues have been fully canvassed in respect to that appeal ground. In terms of the contention that the trial judge erred by admitting this evidence, nothing new has been raised by the applicant in this unrepresented ground of appeal, and for the same reasons as I expressed in respect to represented ground of appeal 2, this ground of appeal must fail.
2. To the extent, the applicant appears to contend in his written submissions, that because of the admission of this evidence on his trial for attempting to commit murder, and his subsequent plea of guilty and sentence for the crime of persistent family violence, he had been punished twice for the same criminal conduct, I simply note the applicant has not filed an appeal against his sentence. In any event, the applicant has not been punished twice. The relationship and tendency evidence was available for the jury's consideration in determining whether they were satisfied beyond reasonable doubt that his guilt had been proved in respect to the crime of attempting to commit murder. Following the jury's verdict, he entered a plea of guilty to the crime of persistent family violence, which had been the count that had been severed from the indictment prior to the commencement of the trial. He received a global sentence for the crimes of attempting to commit murder and persistent family violence of 18 years imprisonment with a non-parole period of 12 years. The Comments on Passing Sentence of the trial judge make very clear that principles of totality and proportionality were applied. There is no ground of appeal which alleges an error in the sentencing exercise.

Grounds of appeal asserting misconduct on the part of the Prosecutor

Unrepresented ground of appeal 6 - unfairness in cross-examination - suggestion of recent invention; counsel's failure to object to such cross-examination and/or re-establish credibility in re-examination.

1. By way of this ground, the applicant complains that a miscarriage of justice occurred as a consequence of the prosecutor engaging in an unfair line of cross-examination by suggesting aspects of his evidence were the consequence of recent intervention, and further contends that his trial counsel failed to object to such cross-examination. Additionally, the applicant contends his counsel should have re-examined him to rebut the suggestion of recent invention by leading from the applicant evidence to confirm he gave the particular version of events to his counsel prior to the trial.
2. As noted in the summary of the evidence given by the applicant at trial, he gave evidence of an occasion in his sister's shed when he said the complainant tied a broken strap from a handbag around her neck and he was compelled to untie it. He said it was a case of "either I untied it, or she was going to die". He described this occasion as "just another threat of self-harm": (AB vol 2 Part B 1923).
3. During cross-examination, prosecuting counsel put to the applicant that this alleged incident had never been suggested to the complainant during cross-examination and thus she was never given the opportunity to respond to that proposition. The applicant agreed the topic had not been mentioned or raised until he gave evidence but he denied a suggestion by prosecuting counsel that he was "making up" the incident: (AB vol 2 Part B 1924).
4. The second area of cross-examination concerned the applicant's evidence that whilst inside the shed, after the carpet had caught fire and both he and the complainant had tried to stamp it, he tried to drag the complainant's cardigan, which was on fire, from her and they both fell over inside the shed, before he picked her up and carried her outside. The applicant identified a position where he and the complainant landed inside the shed which appeared to coincide with evidence as to the presence of blood staining. The clear implication of the questioning was that the applicant had fabricated this evidence to explain the existence of the forensic blood patterning evidence.
5. The following exchange occurred in cross-examination (AB vol 2 Part B 1903):

"I suggest that you, at no stage, suggested to [the complainant], when she was cross-examined, that you fell over in the shed with her...Sorry? What are you -

Isn't it the case, Mr Davey, that -... What are you -

You are adding evidence -... I didn't cross-examine [the complainant].

You're adding evidence as you go along to meet the Crown case...No, that's not the case, Ms Mason. It's the same story I gave my lawyer before - before any pre-recording was done, before we knew any evidence.

I suggest that -... Same story I gave my previous lawyer.

As to the aspect of falling inside the shed, you didn't put it to - through your lawyer to [the complainant] because you've recently made it up to meet the Crown case?........I can tell you now, this is what I told my lawyer.

MS MASON SC: (Resuming) Now after you say that you -...That's what I told my lawyer.

Fell, you say - you now carried her outside, is it your evidence that you didn't fall anywhere near the car.... I don't recall falling near the car, no. Out of the shed, to the right, fell near the barbecue area on the grass.

Can you recall [name of the complainant] - it had been put to [the complainant] that the two of you fell in the area between the shed and your car, where your car was parked....I can't recall.

It's certainly -... My instructions I gave my lawyer was I fell inside that shed where my hat was.

If I suggest to you that when you - when [the complainant] was cross-examined, it was never put to her that she - she and you fell over twice between leaving the shed and - and where she arrived in the backyard......I can't even recall the cross- examine - the cross - the cross-examination was done, what, 12 months ago? On a video that was later enhanced and edited? Not face-to-face in a court like I'm doing today."

1. Counsel for the applicant did not object to either section of cross-examination. The first section was not accompanied by any suggestion of recent invention. However, the second section plainly linked the failure to cross-examine the complainant about particular issues with the suggestion that the failure to cross-examine led to a conclusion that the applicant had recently made up his evidence about the fall within the shed to answer some of the forensic evidence on the State's case. The applicant clearly and strongly responded to the assertion by saying he had told this to his counsel, and a previous lawyer, at a time prior to trial. The applicant was not re-examined on this point and no evidence was called to support his credit in that regard.
2. The two sections of cross-examination occurred on 10 and 11 November 2021. Unbeknown to the trial judge and counsel, on 10 November 2021 the High Court delivered the decision in Hofer v The Queen [2021] HCA 36, 274 CLR 351. The court was concerned with convictions for sexual assaults on two complainants. The issue at trial centred on whether the appellant believed the complainants were consenting.
3. In the majority judgment of Kiefel CJ, Keane and Gleeson JJ, the observation was made that the credibility of the appellant was "important". Their honours summarised the effect of the cross-examination of the appellant [3]:

"3 During the course of the appellant's evidence, more particularly his cross‑examination, it became apparent that certain of his evidence which was inconsistent with or contradicted that of C1 and C2 had not been put to them by defence counsel for comment. On each occasion when this arose the Crown prosecutor required the appellant to acknowledge the omission, which, for the most part, he did. He unsuccessfully attempted on some occasions to say that his counsel should have done so and on one tried to identify notes that he had provided to counsel. Towards the end of these areas of cross‑examination the prosecutor put to the appellant that two aspects of his evidence which had not been put to C1 or C2 were, in effect, of recent invention. Defence counsel did not pursue objections to these suggestions of recent invention and the trial judge did not give the jury directions as to the use which could be made of this evidence."

1. The majority judgment considered the rule in Browne v Dunn (1893) 6 R 67 and contrasted the application of the rule in criminal cases as opposed to civil cases. After observing that an omission to cross-examine on particular matters may often be corrected by recalling the witness, the majority noted that in New South Wales the course "sometimes taken" by the prosecution was to cross-examine the accused about the omissions, such cross-examination extending on occasions to the reason for the omission with a view to impugning the credit of the accused by suggesting recent invention [31]. Their Honours noted the observation of Gleeson CJ in R v Birks (1990) 19 NSWLR 677 at 690 that it is "one thing for the cross-examiner to point to the unfairness to a witness who has not had the opportunity to comment, it is quite another to suggest that the result of a failure to observe the rule of practice is that a person should not be believed" [31]. Such a course "assumes that the reason for the omission is that counsel were unaware of the matter and that counsel was unaware because the accused had not given an account of it in his or her instructions." [32].
2. The majority referred to the decision of King CJ in R v Manunta [1989] SASC 1628; (1989) 54 SASR 17 at 23 in which his Honour described the course of cross-examining on the basis of only one reason existing for a failure to cross-examine as "fraught with peril". The majority noted King CJ's observation that many explanations may exist for an omission to cross-examine which do not reflect upon the credibility of the accused.

"34 Where there remains a number of possible explanations as to why a matter was not put to a witness, there is no proper basis for a line of questioning directed to impugning the credit of an accused. Except in the clearest of cases, where there are clear indications of recent invention, an accused person should not be subjected to this kind of questioning. The potential for prejudice to an accused is obvious.

1. Proceeding on the basis of a mere assumption as to lack of instructions is likely to be productive of further unfairness in the course of the cross‑examination. The assumption will inevitably lead to impermissible questions of the accused, put expressly or arising implicitly, as to the actual instructions he or she gave. An accused person faced with questioning of this kind is likely to feel obliged to attempt to explain by reference to the instructions he or she in fact gave when in reality the accused carries no such onus. Questioning of this kind may result in the need for counsel or the solicitor for the defence having to disclose those instructions. This is a circumstance which should not arise.
2. In most cases, the cross‑examination will have a dual purpose. It will be concerned with identifying unfairness to a Crown witness as well as seeking to have the accused's evidence disbelieved. Where it has the sole purpose of impugning the credit of the accused it will be necessary for leave to be sought from the trial judge. The discussion which will inevitably take place on such an application will point up the risks associated with the course proposed.
3. A trial judge should be alert to the problems associated with cross‑examination. They should be raised with counsel at an early point. Where the cross‑examination has occurred, it will be necessary for the trial judge to warn the jury about any assumption made by the cross‑examiner, to draw attention to the possible reasons why the matter has not been put and to direct the jury as to whether any inferences are available." (Footnotes omitted.)
4. Although the majority ultimately applied the proviso and found that no substantial miscarriage of justice had occurred in circumstances described by the majority as "extraordinary", their Honours summarised their reasons for finding that there had been a "departure from a trial according to law to the prejudice of the accused":

"41 A miscarriage of justice to which s 6(1) of the Criminal Appeal Act refers includes any departure from a trial according to law to the prejudice of the accused. This accords with the long tradition of criminal law that a person is entitled to a trial where rules of procedure and evidence are strictly followed. The larger and different question raised by the proviso, which is reserved to an appellate court, of whether there has notwithstanding that departure been no substantial miscarriage of justice, focuses upon whether the nature and effect of the error which has occurred prevents the appellate court from undertaking its assessment as to whether guilt has been proved to the requisite standard.

1. The questioning undertaken by the prosecution of the appellant departed from the standards of a trial to which an accused is entitled and the standards of fairness which must attend it. The questioning was such as to imply that the appellant was obliged to provide an explanation as to why matters had not been put to C1 or C2. This suggested he possessed information which he had not given counsel by way of instructions. The unfairness in this regard was compounded when the appellant was not permitted by the trial judge to provide an answer and by defence counsel not informing the court that he had those instructions. The attack upon the appellant's credit by assertions of recent invention was based upon an assumption which was not warranted. All of these matters were highly prejudicial to the appellant." (Footnotes omitted.)
2. At the heart of the circumstances in Hofer was an "unfounded assumption" that the omission to cross-examine arose because the appellant had not previously given appropriate instructions to his counsel and, therefore, the appellant's relevant evidence was a recent invention. After observing that the matter under consideration was not the first occasion upon which cross-examination of this nature had caused a miscarriage of justice, the majority addressed the failure of the trial judge to give appropriate directions:

"47 The prejudice to the appellant was not addressed by the trial judge, as it should have been. It was necessary that the trial judge put the omissions in perspective, discount any assumption as to why they occurred by reference to other possibilities and warn the jury about drawing any inference on the basis of a mere assumption. Absent such directions there was a real chance that the jury may have assumed that the reason for the omission was that the appellant had changed or more recently made up his story." (Footnotes omitted.)

1. Gordon J dissented finding that the court could not reasonably conclude that "no substantial miscarriage of justice has actually occurred" [125]. Her Honour summarised her view with respect to the unfairness caused to the appellant:

"126 I agree with Kiefel CJ, Keane and Gleeson JJ that questions asked of the appellant in cross‑examination by the prosecutor departed from the standards of a trial to which the appellant was entitled. The unfairness to the appellant in being asked these questions was emphasised when he was not permitted to explain why he thought matters had not been put to the complainants and other Crown witnesses. The unfairness was compounded by defence counsel saying as little as he did about those matters and by the trial judge not intervening to prevent the questioning, not seeking to remedy the error when it first arose and not telling the jury that there may be many reasons why a matter was not raised in cross‑examination of a witness."

1. Hofer having been delivered on 10 November 2021, and the cross-examination having occurred on 10 and 11 November 2021, the trial judge raised the issue of the decision in Hofer on 15 November 2021. Counsel for the applicant was asked whether he saw any difficulty with the first section of cross-examination concerning the strap around the neck of the complainant and responded "no, your Honour, I don't" (AB Vol 2 Part B 2024).
2. As to the second section of cross-examination, counsel for the applicant informed the trial judge that in saying "you'd better be very careful" during the cross-examination in question, he had in mind informing the prosecutor that if the cross-examination continued he would withdraw from the case and give evidence. Having thought better of such a statement in front of the jury, counsel decided not to pursue the matter.
3. Counsel for the applicant indicated to the trial judge that a general direction would suffice in terms similar to directions given that an accused person does not have to explain why a complainant told a lie or made up a story. After discussion with counsel for the State, the trial judge indicated the view that prosecuting counsel "had not crossed the line" and a direction to the jury was appropriate.
4. The ultimate direction given by the trial judge followed firm directions as to the burden of proof, and directions emphasising that the applicant was not obliged to give evidence and the jury was required to approach his evidence in the same way as they approached the evidence of other witnesses. His Honour also emphasised that, bearing in mind the conflict between the evidence of the complainant and the evidence of the applicant, it was "very important" that the jury "bear in mind that the resolution of the case will not come down simply to choosing which witness you prefer, because it's not weighing up one against the other; you have to be satisfied of guilt beyond reasonable doubt". Immediately following those directions, the trial judge indicated he was nearing the end of his summing up and gave the following directions concerning the issue under consideration (Summing-up p 71):

"Firstly, this point: during cross‑examination of the accused by the prosecutor, he was asked about whether his lawyer had put to the complainant various - in cross‑examination - various aspects of his version of events, including those in the shed, concerning the fire and the reaction to it.

In cross‑examining, prosecuting counsel was getting at a rule of legal practice that lawyers understand concerning how opposing counsel should cross-examine a witness. The rule in general terms, it's just a rule of fairness, it requires a party who intends to challenge a witness's testimony on a point to put a contrary position to the witness, so that the witness has a chance to answer it.

An example of this is the accused's evidence that after [the complainant] caught on fire, they both fell outside the shed near the hat that can be seen in the photos. Counsel suggested this had not been put to [the complainant] during cross‑examination. If you think this or something else was not put to [the complainant], then you can take that into account when assessing the credibility and reliability of [the complainant's] version; that is, you might take into account that she was not given an opportunity to respond to such a suggestion when you're assessing her evidence.

But I warn you very clearly of this, so I direct you of this: you should not draw any inference from questions asked by the accused's lawyer which bear on the credibility of the accused. In particular, you should not infer from the failure by counsel to put a matter in cross‑examination, or by putting something different to what the accused might have said, that the accused had or had not given his lawyer any particular version of events.

The law provides for conversations between a lawyer and a client to be confidential, and we simply do not know and cannot speculate about what might have passed between the accused and his lawyer. There can be many reasons why counsel asked or did not ask certain questions, many of which have nothing to do with what the lawyer was told by the client. And of course the accused said in answer to that cross‑examination that he had told his lawyers about these things. It would be dangerous and wrong to speculate about this or to draw anything from it, and you should not do so." (My emphasis.)

1. In my view, although ideally the cross-examination in the first section should not have occurred, very little turned on it. In the context of all of the evidence about the complainant's mental health at trial, and the manner in which both counsel for the State and counsel for the applicant dealt with it during their respective closing addresses, which is discussed at length in respect to unrepresented appeal ground 13, I am of the view that very little would have turned upon this line of cross-examination. Importantly, counsel for the applicant was not concerned about it and obviously considered in the environment of the trial and given all of the evidence, it was not a point of significance.
2. The second section of cross-examination was far more pointed, and potentially more damaging to the applicant. It should not have occurred, and in particular, counsel for the State should not have put to the applicant that he had "recently made it up to meet the Crown case". This line of cross-examination was objectionable. Counsel for the applicant raised his concern with counsel for the State when he said "You'd better be very careful", although elected not to object. He should have, but his failure to do so is not in the category where it could be suggested a miscarriage of justice arises. Counsel made a forensic decision to deal with it otherwise.
3. Had he objected, the issue of whether the complainant ought to be recalled to enable cross-examination in this area would have arisen. Although, in theory, the complainant could have been recalled to enable cross-examination to occur, such a recall was not a practical proposition. The complainant had given evidence at a special hearing prior to the trial and her evidence was presented in a pre-recorded form. In such circumstances, it would not have been appropriate for the complainant to be re-called solely for the purpose of being cross-examined about events which occurred immediately prior to the departure from the shed, particularly when the evidence she had given made it clear that her recall of the finer details of this time frame was impaired, but also made it clear that she did not accept the applicant's version of events.
4. There was no occasion for re-examination. The applicant made it clear in his evidence that he had told his counsel about these particular matters. There was little to be gained from having him repeat this evidence, and indeed, such may have led the jury to consider it was a point the defence were concerned about, and lead to the jury reflecting further upon the suggestion of recent invention. It was open to counsel for the applicant to form the view that the matter was best left with the trial judge giving the appropriate direction. This is not a case of incompetency of counsel leading to a miscarriage of justice.
5. Although the cross-examination should not have occurred, the directions toward the end of the summing up were firm and clear. In particular, the jury was told that they could not draw any inference from the failure to cross-examine, that the accused had not given his version of events to his counsel. The jury was explicitly directed that there could be many reasons why counsel did or did not ask particular questions and were reminded that the accused said in answer to the cross-examination that he had told his counsel about these matters. There is no reason to doubt that the jury would have understood and complied with the clear and firm directions.
6. The cross-examination concerning these topics was not protracted and occurred during a lengthy cross-examination of the appellant. Counsel for the State did not return to the issue of recent invention in her closing address. The issue quickly fell by the wayside.
7. In light of the directions ultimately given to the jury by the trial judge, no miscarriage of justice arises, and this ground of appeal must fail.

Unrepresented ground of appeal 11 - length of jury deliberations

1. By this ground, the applicant contends that the trial judge erred by not enquiring of the jury after four hours of deliberations whether they were "deadlocked"; not informing the jury that they were entitled to not return a verdict and not bringing the jury back "within the six hour time limit".
2. The starting point is that the Juries Act 2003 provides no time limits with respect to the length of jury deliberations, beyond the requirement in s 43 that a jury must deliberate for at least two hours before a majority verdict can be returned.
3. The case before the jury had taken approximately six weeks to be heard. It was a complicated matter with a great volume of evidence. A number of directions had been given to the jury which required conscientious application. It was to be anticipated that the jury would be deliberating for a relatively extended period of time. The trial judge appropriately told the jury that how long their deliberations took was entirely a matter for them. The jury went out at 1.23pm on 17 November 2021 to commence their deliberations. They were sworn out for the night at 4.33pm and resumed their deliberations at 9.37 am on 18 November 2021. At 12.05pm that day, the trial judge brought the jury back into Court and provided them with a majority direction. This occurred after the jury had been deliberating for more than five hours, so well past the two-hour minimum required for a majority verdict. It was appropriate given the complexity of the trial and the volume of evidence that the majority verdict direction was not given at an earlier point in time. The jury returned its verdict at 1.21 pm.
4. At no point during the jury deliberations were there any issues raised by the jury which suggested they were having difficulty in reaching a verdict. Neither counsel for the State or counsel for the applicant suggested at any point that there were appropriate grounds for a Black direction to be given (Black v R [1993] HCA 71; (1993) 179 CLR 44).
5. Moreover, it was not appropriate for the trial judge to enquire about the status or progress of the jury's deliberations. A jury must be free to deliberate without any form of pressure being imposed upon them and without any sense of time pressure.
6. I must confess to not understanding what the applicant means by "the six hour time limit". There is no reference in his written submissions to any provision of the Juries Act which references a six hour time limit.
7. In any event, my assessment is there was no error in the manner in which the trial judge provided the majority verdict direction to the jury, and no error associated with the passages of time that passed during the jury deliberation.
8. It was not appropriate for the trial judge to advise the jury that he could discharge them without the return of a verdict in circumstances where there had been no indication that the jury were having any difficulty in reaching a verdict of ten or more of them. In delivering the majority verdict direction, the trial judge made it clear that each individual juror must still act in accordance with his or her individual oath or affirmation, and in accordance with his or her individual conscience and that no individual juror should join in on a verdict that he or she believed to be incorrect. No error attaches to any directions associated with the jury's deliberations.

Unrepresented ground of appeal 12 - re-examination of Dillon Davey

1. By this ground, the applicant contends that the trial judge should not have permitted re-examination of Dillon Davey to explain the context of a text message he had been cross-examined about.
2. In cross-examination of Dillon Davey, it had been suggested to him that he was the father of the complainant's child, that child having been born after the fire event of 24 April 2017 but before the trial. The same suggestion had been put to the complainant during cross-examination. The import of the cross-examination of Dillon Davey and the complainant was to suggest, by inference at least, that they had a close relationship and therefore a motive to concoct a version of events as to what had occurred in the house on 23 April 2016. There was evidence from a listening device recording, as referred to in unrepresented ground 4, that both Mr Dillon Davey and the complainant had given evidence about. The purpose of the cross-examination was to suggest that because of the close relationship between the complainant and Dillon Davey, there was a motive for Mr Davey to explain what had occurred on 23 April 2016 in a way that was supportive of the complainant but adverse to the applicant.
3. During cross-examination of Dillon Davey he was asked the following:

"Have you ever sent this message or a similarly worded message to anybody:

'LOL me and Mason just got back from Melb seen [the complainant] and my new baby. So fuck of, yeah, she did have a kid to me, I was good at hiding it too ay - sucked in'"

Mr Dillon Davey admitted sending the message but said he could not recall to whom he had sent the message. He admitted during cross-examination that he sent the message intending to cause emotional upset to the person to whom he was sending it. He agreed that by sending the message he was wishing to assert that he was the father of the complainant's baby. In re-examination he was asked to whom the message was intended to cause "emotional upset" and he responded "Matthew". He was asked "Why was that?" and he responded "Threats from Matthew's family members". The applicant argues that this evidence was unfairly prejudicial because the jury may speculate that members of the applicant's family, including Rickie Davey, were one of the persons who had threatened Dillon Davey. The credibility of Dillon Davey had clearly been attacked by the line of cross-examination. The prosecutor was entitled to re-establish credibility in re-examination (s 108 of the Evidence Act) without an explanation as to why Mr Dillon Davey may have sent the false message. The jury would not have a context in which to evaluate his assertion that the information contained within the message was false and he was not the father of the complainant's child. This was relevant to an assessment of whether, in fact, there was any realistic likelihood of Dillon Davey tailoring his evidence to assist the complainant because of an intimate relationship with her.

1. It had not been suggested to Rickie Davey during cross-examination by the State as to credibility issues, that he had sent any threats to Dillon Davey. There was no realistic prospect, in my view, that the jury would consider that in any way likely. The evidence established that at the time the message was sent, when the complainant was in Melbourne in hospital in around June or July 2017, the applicant was in custody. Thus, again, it is unlikely the jury would have considered he was directly responsible for the making of any threats to Dillon Davey. In the context of the trial, the evidence given in re-examination was unlikely to attract much significance in the jury's deliberations. The defence were seeking to use the message sent by Dillon Davey as evidence of a prior inconsistent statement that impacted upon his credibility but also to prove the truth of the asserted fact. That is, that Mr Dillon Davey was the father of the complainant's child, to support the assertion that he had a motive to tailor his evidence in a manner that was favourable to the complainant. The jury were entitled to assess the likelihood of whether the message was a lie or otherwise. The prejudicial effect of the comment that he had received threats from members of the Davey family was minimal. In my view, there was no error in the trial judge permitting this line of re-examination.

Unrepresented ground of appeal 14 - unfairness in cross-examination - Facebook exchange and backpack

1. By this ground, the applicant complains that the prosecution unfairly cross-examined him about some Facebook messages. The complainant had given evidence that on 23 and 24 April 2017, so in the 48 hours leading up to the fire incident, she had an exchange with the applicant via Facebook Messenger. She also gave evidence that the applicant had a Facebook account in the name of "Andrew Smith". There was no challenge to the complainant's evidence about these matters and the applicant conceded in cross-examination he had a Facebook account in the name of Andrew Smith.
2. The State also tendered (P26) some Facebook messages that had been obtained from the complainant's Facebook account after the fire incident. Those Facebook messages purported to be between the complainant's account and the account Andrew Smith. They were dated 23 and 24 April, although the year was not apparent from the message exchange. The content of the messages, however was consistent with the exchange being in the lead up to the fire incident, and was consistent with the complainant's account of being at work and having an exchange with the applicant about their relationship and her desire to end it. For example, one of the messages indicates the complainant intends to "drop all your [the applicant's] stuff off tomorrow and all you'll need do is get your car". The content of the messages was predominately about the participants accusing each other of infidelity and highlighting issues in their relationship. Both participants to the conversation are accusatory and abusive.
3. As I understand the applicant's contention in this ground of appeal he submits it was unfair that he was cross-examined on the basis that these Facebook messages were exchanged between he and the complainant in 2017, when there was no evidence on the documents themselves to establish that they were sent in 2017 as opposed to some other year.
4. Firstly, if the applicant did not accept that the messages were sent between him and the complainant in 2017, he was perfectly entitled to say so in answer to the questions. Similarly, if the applicant could not remember when they were sent he was entitled to say so. Secondly, there had been no suggestion in the cross-examination of the complainant that the exchange had not occurred on the relevant dates in 2017. Thirdly, the content of the messages were consistent with the year being 2017. Fourthly, the State called a witness, Karen Clark, who gave evidence of accessing the messages from the complainant's Facebook account in 2017 whilst the complainant was in hospital. There was no challenge to this evidence. Fifthly, the messages were disclosed to the applicant and his counsel well before the trial commenced. They were disclosed as part of a bundle of messages from the Facebook accounts that were dated February to April 2017. If the applicant wanted to challenge the assertion the message exchange had occurred on 23 and 24 April 2017, he had ample opportunity to do so. There was simply nothing inappropriate, improper or unfair about him being cross-examined on the basis that the Facebook messages had been exchanged in 2017, in the 48 hours leading up to the fire incident. It was a matter for the jury to assess, given the content of the messages, whether they were of the view they had been sent at this time or otherwise.
5. The applicant also complains that he was unfairly cross-examined about the green backpack that was tendered in evidence at the trial. Constable Dean Walker gave evidence that he had collected a black and green backpack containing assorted electrical items from the floor of the shed at 49 Karanga Drive. The backpack and electrical items were tendered as a single exhibit (P43). There was no cross-examination of Constable Walker to suggest the backpack had not be found in the form, and containing the contents, in which it was produced and tendered.
6. The applicant had referred to the green and black backpack in his evidence as being the one which the complainant had picked up and shaken the contents of onto the floor. It contained the piece of paper with the female's details on it that she ignited, causing the carpet to catch fire and, in turn, her.
7. During cross-examination, the applicant was challenged as to how he said the complainant had been able to shake the papers from the backpack, yet none of the electrical items had fallen out onto the floor. The applicant's answer was that not all of the electrical items were in the backpack at the time. The following exchanges occurred during cross-examination:

"So, despite being covered in fuel, she goes and picks another backpack up?... Yes

Undoes the zip, tips it out, backwardly tips it out, shakes it like that. Picked it up and shakes it vigorously .... Yep, shook it around the room, yep

Is it your evidence that the backpack that was the green and black backpack that the paperwork that you see in the photograph Mr Coad took of the contents of that bag, or came from that bag ...I can't say exactly, no. Not by looking at the photos.

Isn't it the case, Mr Davey that what was in the backpack was a whole heap of electrical items were also in there...Yes

What, and you're saying that only the - despite vigorously shaking the bag, only the paperwork fell out...No, I'm not saying that. I can't say what fell out. I'm saying what's on the ground was in the backpack.

Are you saying now that the items you see associated with that bag were not in it...No, all that stuff wasn't in the backpack. All that stuff wasn't in it - some of it maybe, but not all of it...some of it, most of it, some of it, I don't know, a lot of it was on the bench, all over the place.

I suggest, Mr Davey, that the backpack had nothing to do with what happened that night and at no stage did she empty the contents of that backpack onto the ground ...Okay Ms Mason

Because the backpack had items in it that would have fallen on the ground at the same time...It had a lot of items in it. Okay then, so how did the items that you see in the photo- how did that get on the ground Ms Mason?": (AB vol 2 Part B 1967 -1969).

1. There was nothing unfair about this line of cross-examination. It was a legitimate area of challenge with forensic purpose. To the extent this ground of appeal also suggests trial counsel failed in his duty by not cross-examining Constable Dean Walker about the contents of the backpack, there is simply no merit. Counsel for the applicant dealt with the backpack issue in his closing address by pointing out that the backpack had more than one compartment in it and it was entirely feasible that the electrical items may have been in one compartment and the papers that the applicant said fell onto the ground in a separate compartment, and the complainant may have only opened one zip.
2. There was photographic evidence indicating papers on the floor of the shed. Whilst how they came to be there was a point of contention, the state of the backpack was unlikely to have been a point of great import in the context of the trial. The applicant's counsel validly answered the critique made in cross-examination during cross-examination. There is no merit in this aspect of the ground of appeal either as to the fairness of the cross-examination or the manner in which counsel dealt with this evidence.
3. Similarly, to the extent the applicant's ground of appeal alleges that the prosecution acted in an unfair manner by "arranging" for electrical items to be placed in the same exhibit bag as the backpack, there is no merit in this submission. I can identify no evidentiary basis from which this assertion can be established. The exhibit packaging was marked for identification on the trial. It was available for defence to assess should there be any legitimate concern with what had been seized from the scene. Property seizure records were disclosed as part of the Crown papers. If the applicant genuinely held this concern in advance of giving his evidence, he had ample opportunity to cross-examine the various police officers who attended at the scene and collected forensic exhibits. There is no merit in this ground of appeal.

Unrepresented ground of appeal 13 - Prosecution failure to call witness Matthew Poxon

1. At the conclusion of the State's case, the applicant's counsel asked the trial judge to consider inviting the prosecution to call the witness Dr Matthew Poxon on the State's case, and alternatively submitted the trial judge might consider calling the witness himself. The submission was made in accordance with the rationale enunciated in R v Apostilides [1984] HCA 38; (1984) 154 CLR 563. In that case, the court said at [97]-[98]:

"We have come to the conclusion that the following general propositions are applicable to the conduct of criminal trials in Australia:

1. The Crown prosecutor alone bears the responsibility of deciding whether a person will be called as a witness for the Crown.
2. The trial judge may but is not obliged to question the prosecutor in order to discover the reasons which lead the prosecutor to decline to call a particular person. He is not called upon to adjudicate the sufficiency of those reasons.
3. Whilst at the close of the Crown case the trial judge may properly invite the prosecutor to reconsider such a decision and to have regard to the implications as then appear to the judge at that stage of the proceedings, he cannot direct the prosecutor to call a particular witness.
4. When charging the jury, the trial judge may make such comment as he then thinks to be appropriate with respect to the effect which the failure of the prosecutor to call a particular person as a witness would appear to have had on the course of the trial. No doubt that comment, if any, will be affected by such information as to the prosecutor's reasons for his decision as the prosecutor thinks it proper to divulge.
5. Save in the most exceptional circumstances, the trial judge should not himself call a person to give evidence.
6. A decision of the prosecutor not to call a particular person as a witness will only constitute a ground for setting aside a conviction if, when viewed against the conduct of the trial taken as a whole, it is seen to give rise to a miscarriage of justice."
7. These principles were affirmed by the High Court in Diehm v DPP (Nauru) [2013] HCA 42, 303 ALR 42. As to the type of exceptional circumstance that might warrant a trial judge's intervention in the calling of a witness, the Court noted such circumstances would be rare and would require more than the trial judge considering the prosecutor's reasons for not calling a witness were unsatisfactory.
8. The application of those principles as they relate to an appeal court were discussed in Whitehorn v The Queen [1983] HCA 42; (1983) 152 CLR, 657 per Dean J at [663] and [664]:

"663 Prosecuting counsel in a criminal trial represents the State. The accused, the court and the community are entitled to expect that, in performing his function of presenting the case against an accused, he will act with fairness and detachment and always with the objectives of establishing the whole truth in accordance with the procedures and standards which the law requires to be observed and of helping to ensure that the accused's trial is a fair one.

1. The consequence of a failure to observe the standards of fairness to be expected of the Crown may be insignificant in the context of an overall trial. Where that is so, departure from those standards, however regrettable, will not warrant the interference of an appellate court with a conviction. On occasion however, the consequences of such a failure may so affect or permeate a trial as to warrant the conclusion that the accused has actually been denied his fundamental right to a fair trial. As a general proposition, that will, of itself, mean that there has been a serious miscarriage of justice with the consequence that any conviction of the accused should be quashed and, where appropriate, a new trial ordered."
2. Dr Poxon was a medical practitioner who had seen both the complainant and her mother, Wendy Rodway. A statutory declaration from Dr Poxon had been filed as part of the Crown papers. The declaration included the following:

"On 10 April 2015, [the complainant] came to see me in the company of her mother. [the complainant] presented, again, with suicidal ideations, indicating that she was considering self harm."

1. The complainant was cross-examined about the visit to Dr Poxon on 10 April 2015. The following exchange occurred:

"On 10 April 2015, did you consult any medical practitioner in relation to suicidal ideation and consideration of self harm? ...I can't remember the date, but I did in that year."

1. There was a further entry in Dr Poxon's proof of evidence which related to a visit on 10 January 2017, from Wendy Rodway, the complainant's mother. It read:

"Wendy told me that she was concerned as her daughter had marks on her neck and had yoga rope out, attempted self hanging."

1. Wendy Rodway was asked about this in cross-examination and the following was said (AB vol 2 Part B 834):

"Did you go to a Dr Poxon and suggest to him that you were concerned [the complainant] had marks on her neck and had a yoga rope out and attempted self hanging? ...No, that's misconstrued.

The answer is 'no', you never said that to Dr Poxon? (objection) Did you say to Dr Poxon you were concerned because you daughter had marks on her neck and a yoga rope out? Attempted self hanging? ...I never suggested - said that she attempted self hanging. She did have, I believe, marks on her neck. It may have been a yoga rope but never have I thought or even suggested, and nor has [the complainant] made any suggestion to me, that she was going to self harm by hanging."

1. Defence sought the calling of Dr Poxon so they might establish that Wendy Rodway had, in fact, told Dr Poxon what was recorded in his statutory declaration and thereby establish a prior inconsistent statement relevant to the credit of Wendy Rodway.
2. The trial judge acknowledged that as a matter of fairness, it would be preferable for the State to call the witness, Dr Poxon, to enable the defence to illicit the evidence from him but declined to call the witness himself. He ruled that the evidence was not of sufficient significance to amount to exceptional circumstances as discussed in Apostilides. His Honour invited the prosecution to consider whether or not Dr Poxon should be made available for cross-examination (AB vol 2 Part B 1774-1775).
3. In determining that exceptional circumstances were not made out, the trial judge noted that at its highest the evidence was admissible as a prior inconsistent statement relevant to the credit of Wendy Rodway. There was no suggestion in Dr Poxon's statutory declaration that the complainant was present when Ms Rodway made the comments to Dr Poxon. The trial judge also noted it was unclear from the statutory declaration whether the notation "attempted self hanging" was something that had, in fact, been said by Ms Rodway, or was a conclusion Dr Poxon drew from the information he had been given, which was relevant to the extent of any asserted inconsistency. The trial judge also commented that if defence considered the evidence to be of sufficient significance, they were entitled to call the witness themselves. It was a forensic decision to determine whether the loss of the right of last address was warranted when compared to the significance of the evidence.
4. The State declined to call Dr Poxon. Their explanation for declining to do so was that the evidence he could give was limited to proof of a prior inconsistent statement in respect to the witness Wendy Rodway. Beyond that, general evidence he could give as to the nature of consultations between he and the complainant had largely been conceded by the complainant in her evidence. That is, the complainant had accepted she had experienced previous episodes of suicidal ideation and various mental health challenges, including accepting that on the day of the fire incident, she had experienced mental health difficulties.
5. In my view, the State should have called Dr Poxon. Evidence of the complainant's mental health was an important part of the trial. Fundamentally, the defence case involved the proposition that immediately prior to the fire incident, the complainant was experiencing mental health difficulties, had splashed herself with fuel and threatened to burn herself. It was also part of the defence case that both the complainant and Ms Rodway had downplayed the severity of the complainant's mental health difficulties in the lead-up to the fire incident. Wendy Rodway was the complainant's mother and therefore someone whom the jury might reasonably consider had an intimate understanding of the extent of the complainant's difficulties and how they may have manifested. Evidence that Wendy Rodway had told Dr Poxon of "an attempted self- hanging" - if that is what the notation recorded by Dr Poxon turned out to be - in January 2017, only three months before the fire event, may well have been of use to the jury in evaluating whether Ms Rodway was being forthright in her evidence relevant to the complainant's mental health in the months leading up to 24 April 2017. There was no suggestion the evidence of Dr Poxon lacked credibility, it would have been relatively brief and there is no indication that there would have been an undue delay associated with him being called. As a matter of fairness, he should have been called on the State's case to allow the defence the opportunity to explore what he had been told by Wendy Rodway and why that notation had been recorded. That is particularly so, considering Wendy Rodway's evidence that she had never suggested to Dr Poxon the complainant had attempted to hang herself and the complainant had never expressed to her that she had attempted to do so.
6. Having formed that view it is necessary to consider the consequences of the failure of the State to call Dr Poxon. In my assessment, in the context of the overall trial, the failure to call Dr Poxon was relatively insignificant. During closing arguments, counsel for the State essentially conceded that the complainant had experienced mental health difficulties, including episodes of suicidal ideation. They did not challenge the evidence which established the complainant had experienced mental health difficulties on 24 April 2017. Counsel for the State said this in closing address:

"Well let's just look firstly at those mental health issues that the complainant brought to the relationship, if I can say. You might think that the complainant had her fair share of challenges in her early life. You've heard evidence about the death of her friend. You've heard evidence - evidence about unwanted advances from her mother's partner and you might think that she dealt with them as best as she could in the circumstances. She accepted that there were times in her life when she had contemplated self harm, when she had self harmed in response to the external stressors. You've heard her account of that in her evidence, specifically under cross-examination, but you also heard she sought help from her GP, from her mother, and apart from these stressors that would impact on her, she was someone who embraced life. You've heard evidence about that.": (AB vol2 Part B 2032).

"You've heard that she expressed this distress about the impact the relationship was having upon her to her mother at various times during the course of the relationship, and also to the accused. As difficult as it was to listen and to read some of the text exchanges, and the communications between the complainant and the accused, you'll see, if you go back to that particular exhibit number, that there are many occasions where she expresses to the accused the emotional distress that he was causing her. On 18 April 2016, there is an expression where she says,

'You've taken my spirit. You've turned me crazy. You've turned me into someone I don't know. Someone I don't want to be, and some days, I don't want to be here, and every day I question myself'.

The State are saying you can accept she was - she had enormous challenges that were impacting on her mental health. We don't disavow that at all. There was an occasion at 4.00am in the morning you might recall on 23 April, she sends her mother a text, 'I don't want to be alive no more'. This is just before the accused was first remanded in custody. .... Littered through the evidence you have is a recognition of, firstly, her history of challenges to her mental health and, more particularly, the challenges the relationship gave her, as far as her metal health was concerned: (AB vol 2 Part B 2036).

'But ultimately, it's accepted by the State that the complainant had expressed a number of times that she was unhappy, that she hated the person she'd become, that she didn't want to be there anymore. And on the afternoon of the fire event, that she had contemplated self harm. The State don't disavow that, that is something for you to consider.'"

1. It is apparent then from the submissions made by counsel for the State during the closing argument that they conceded there was a significant body of evidence which supported a conclusion that the complainant had suffered mental health difficulties for a number of years, including episodes of suicidal ideation, and such an incident most likely occurred on the afternoon of 24 April 2017.
2. Defence counsel was also able to make thorough submissions as to the role he argued the mental health of the complainant played in the event. He said in his closing address:

"So they are asserting, both of them [the complainant and Wendy Rodway] that prior to Mr Davey coming into her life, her life was great. Happy, outgoing, friends - all the rest of it. Well let's have a look at the true history of - and can I say this no criticism of [the complainant]. I'm sorry that she's had such a horrible life. But if this is an example of a typical female teenager, God forbid where we are heading in the world. She was sexually abused by her stepfather, who committed suicide as a result of it. You will find that at page 790. She had a relationship with this John Voe when she was aged 15. Let's have a look at what she said about that. It was put to her that there had been an issue of ongoing violence between - by Mr Voe upon her - you will find that at page 797, line nine of the transcript, between the ages of 14 and 18. The answer is no. This is what Ms Rodway says, no. But listen to the absolute nonsense she offers as to what the problem was:

'No, no, it was one issue that I'm aware of with John Voe that ended the relationship.'

'I'm asking you what she told you, she reported to you. This is it.'

'That is was agreement of some form or another between her and John and I believe he - they shared a vehicle together in which he - you couldn't close the front driver's door. And [the complainant] being so young didn't understand why it was that you couldn't close the door.'

So they broke up. Are we living in the real world or it's just some kind of fantasy world while he was doing what he was doing. ... So despite the assertion of both of them that prior to Matthew Davey coming into her life, life had been one happy life full of friendships and happy teenage years, you've got the sexual abuse, the problems with John Voe ... She was taken to hospital by ambulance after some form of overdoes. You'll find that at page 798. Her best friend, Paris, committed suicide, you'll find that at page 798 ... The mother talked about marks on her neck to Dr Poxon at 799. Neither of them concede any of this, and in fact, under cross-examination, [the complainant] concedes that she had been diagnosed with severe depression as well as many other things that had happened. Now, I'm not trying to be cruel to [the complainant] by doing this. I'm saying this to you: why do the two of them feel the need to keep from the open air of a court the truth of her history? What is about the reporting of suicidal ideation - what is it they are trying to hide? Why are they not telling us that?"

1. As to the events of 24 April 2017, defence counsel submitted this:

"We got to a point where she had the fight and the Coke had been sprayed around the room and her mother and Mr Davey left to go and get drugs. She's saying after that:

'What did you do when they left ... I had actually grabbed the knife from the kitchen, I don't know what for and I went for a walk.

Where did you get the knife? ...I had gone for a walk up my street and sat up there for a while. Then I wanted to be home when Matthew came home so he didn't carry on and I wasn't there. So I went home. Started just walking around the house. I had gone outside, had a couple of cigarettes and I grabbed some elastic exercise bands. I'm not sure what my intentions were, but tied them up. I went outside with them, out the back, tied them to the antennae outside in a loop. I don't know what I was trying to get out - or I can't remember exactly what I did. I don't know. I don't know what I was doing with them to be honest.'

So she concedes that she had a knife, she could hardly deny it, she had already told the police. She had a knife, and she got some elastic bands. But she doesn't know what she was doing with them. Well, what do you think she was doing with them? And what do you think is the reason that she's not telling us that upfront? Because it leads straight into, was there a suicide gesture in a shed only two hours later? Is that the frame of mind she was in? That's why it's essential."

1. Defence counsel also referred the jury to the interview between the complainant and police at the hospital on 29 June 2017 and noted this:

"I keep going back to the interview on 29 June 2017, it was a different version: 'I went for a walk. I honestly wanted to kill myself that night. I'd had enough'. You heard what she told Detective Wood. You'll find it at page 1565. Detective Wood was asked in cross-examination:

'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 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).

1. 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.
2. 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.

1. 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] HCA 35; (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.
2. 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."

1. In his evidence before the Appeal Court, Mr Pickett said the contents of his statement were true and correct.
2. 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.
3. 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.
4. 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? ...

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".

1. 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.

1. 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.

1. 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.
2. 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.
3. 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.
4. 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."

"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?"

"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."

1. 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."

"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."

1. 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.

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.

1. Where necessary, I would grant leave to appeal, but for the reasons expressed I would dismiss the appeal.

1. I agree the appeal should be dismissed for the reasons given by Jago J.