Regina v Grant

SPIGELMAN CJ SULLY J SMART AJ

3 SMART AJ: Dale Francis Grant appeals against his conviction at the Griffith District Court, consequent upon the verdict of a jury, of the offence that he between 3 and 4 October 1998 at Griffith in company with another person assaulted Kelly Jane Cummins and committed an act of indecency upon her. He was acquitted of the charge that at the place and on the dates mentioned he detained her with the intent to hold her for his advantage. Most of the evidence at the trial was directed to that charge.

4 The Crown case depended upon the contents of the written statement of Ms Cummins made on 26 October 1998 to the police. She died after the committal proceedings and prior to the trial. The statement of Ms Cummins formed part of the police brief for the committal proceedings. The committing magistrate refused an application by the appellant that Ms Cummins be given a direction requiring her to attend at those proceedings: s.48E of the Justices Act 1902. The appellant wished to cross-examine her. The Crown opposed the appellant's application.

5 After a voir dire, the trial judge over the objection of the appellant, held that the contents of the statement were admissible and allowed such contents to be read to the jury. Unless those small parts of the statement relating to the indecent assault charge were accepted beyond reasonable doubt the appellant had to be acquitted.

6 The first issue in this appeal is whether the judge erred in holding that the contents of her statement were admissible as to both charges and in allowing such contents to be read to the jury. If he did, the appellant is entitled to be acquitted as the remaining evidence is far from sufficient to support a conviction. The second issue is whether the jury's verdict was unreasonable and could not be supported having regard to the evidence.

7 On the voir dire the evidence comprised Ms Cummins' statement, the transcript of the committal proceedings, some brief oral evidence from Det Snr Const Kreuzer and some medical records from Griffith Base Hospital of 12 September 1997. The transcript contained statements of witnesses who gave evidence at the trial and the appellant's record of interview. The appellant called Mr A J. Luke to say that Ms Cummins had indicated to him that the appellant had intervened to stop Robert Hunt, the alleged offender, assaulting her. The judge was told that Hunt had died prior to the trial. At a later stage in the trial the jury were also told.

The Crown case appears from Ms Cummins' statement which may be summarised as follows: She worked as a bar steward at the Griffith Ex-Servicemen's Club and whilst working there met Robert Hunt with whom she talked over the ensuing weeks. After a period they started seeing each other away from work. They started a relationship and she stayed overnight at a flat in Bringan Street, Griffith, usually on a Friday, Saturday and Sunday nights. There she met the appellant, the lessee of the flat. The appellant had allowed Hunt to live there as his flatmate.

9 Ms Cummins stayed overnight on Friday 2 October 1998. When she got up on the morning of Saturday 3 October 1998 Hunt and the appellant were still asleep. She left them a note telling them that she had to go home, pay her rent and vote and that she would be back soon. She left the flat about 9.30 am, went home, showered and dressed, left and voted. She paid her rent and remembered talking to the girl in the Real Estate office.

10 The next thing she remembered was a rope being around her neck and being dragged from room to room by Hunt in the appellant's flat. However, the evidence of Mr T Formenti, who shared a flat with Ms Cummins was that about 4.30pm on 3 October 1998 she arrived at their flat with the appellant. They stayed for about five minutes before leaving.

11 Ms R Cousins said that when Ms Cummins came to her home about 7.30am on Sunday 4 October 1998 she said that the assault had started about 8pm the night before. There was thus a large gap in Ms Cummins' memory as to what she had done from about 11am to 8pm on 3 October 1998.

12 Ms Cummins said that the dragging to which she was subjected occurred at the flat of Hunt and the appellant. She continued: "I remember being in the kitchen and Robert tore my shirt off and cut my bra off with a knife. I don't know what sort of knife it was. Dale helped Robert pull my skirt and nickers off. I remember saying, 'Please don't, please don't, I've got my periods.' I can't remember if they said anything." She asserted that she was in fact having a period. The passage quoted formed the basis of the charge of aggravated indecent assault. The circumstance of aggravation was that the indecent assault was committed in company.

13 Ms Cummins said that she told the two men that she had to go to the toilet. She said that Hunt dragged her to the toilet by the rope which he had around her neck. Both men watched her using the toilet and laughed at her. She recalled getting a new sanitary pad but could not remember how. Her next memory was of being in the loungeroom and Hunt hitting her head against the wall. She did not know what the appellant was doing at this point. She next remembered being outside the back door of the flat, looking up into the sky. It was really dark. She did not have any clothes on. She started to inch her way around the flat. As she did so the two men grabbed her and threw her into the brick wall. She screamed and begged to be let go. They both threw her on to the ground and dragged her. The rope was back around her neck. They both dragged her along the ground by the rope around the side and front of the flat and through the front door. She was struggling to escape but to no avail as they were too strong for her. When they dragged her inside she bled on the carpet. The appellant backhanded her in the face, as a result of which there was blood everywhere. The appellant said "Not on me carpet" Hunt dragged her into the kitchen saying, "This floor's easier to clean". She said that Hunt poured beer all over her.

14 She said that at one point during the night Hunt threatened to cut her fingers off with a knife and take her rings. She also remembered Hunt saying "We should throw her over something and fuck the guts out of her."

15 She recalled that she went to the toilet a couple of times during the night. She was naked. She locked herself in. On one occasion Mr. Hunt threatened to break the toilet door in if she did not let him in. At one stage when she was covered in blood she asked him if she could wash it off. He told her that she was a disgusting mess and to clean herself up. She remembered begging and pleading with the appellant not to hurt her any more. The appellant threw her into the wall next to his bedroom door. The appellant then said to Hunt "No more knives, no more ropes, you've hurt her enough". The appellant then pushed her into his bedroom and shut the door.

16 She was not further attacked but she was not allowed to leave. Indeed the front and back doors were secured with ropes. The men fell asleep. She gathered some clothes from various parts of the house (including a T shirt belonging to the appellant, her knickers and her skirt) and dressed. With some difficulty she managed to ease her way out through the front door and the flyscreen door of the flat. She was able to get into her car and drive away. She went to the home of her friend Ms R Cousins and asked her to call the police. She remembered being in hospital but not being taken there

17 Ms Cousins said that when she answered the door about 7.30am on 4 October 1998 she did not recognize Ms Cummins at first. She had been beaten up. She had black eyes and could hardly stand up. One of her eyes was shut and the other was half open. Her hands were badly bruised, she had marks around her neck and she had a gash on her head. She was gasping for breath and holding her side.

18 Ms Cousins said that she was told by Ms Cummins that she had been held at a flat about four doors up in Bringan Street and had just escaped. She had had a piece of rope around her neck and had been dragged from wall to wall and room to room. It had started about 8pm the night before and they had dragged her, bashed her, beat her and cut her bra with a knife. They wouldn't even let her go to the toilet on her own. Ms Cummins mentioned two names, one of which was Grant. She asked her to call the police. Ms Cousins did so. Ms Cousins tried to hold Ms Cummins up. She was shaking so Ms Cousins took steps to keep Ms Cummins warm.

19 Snr Const W Demery attended at Ms Cousins' home about 8am. He saw that Ms Cummins was having difficulty breathing and had bleeding and bruising to her face. He called an ambulance. Prior to that arriving Ms Cummins appeared to lose consciousness. She was treated at Ms Cousins' house and taken to hospital.

20 When Dr Marion Reeves examined Ms Cummins two days later on 6 October she could not accurately remember the sequence of events or a lot of the detail. Her recollection was patchy and as related to Dr Reeves was as follows. Ms Cummins remembered voting in the election and paying her rent about 9am on the Saturday. She had stayed at Robert Hunt's place the previous night and left him a note saying she would be back. She did not remember the time frame of anything else that happened that day until she made her escape the next morning about 7 am.

21 Ms Cummins told Dr Reeves that at some stage that afternoon or evening she went back to Hunt's flat. She remembered Hunt putting a rope around her neck with a knot at the front. She was able to hold on to the rope around the knot to prevent it strangling her. She told the doctor that he dragged her around the house on the end of the rope and beat her with his fists repeatedly. He said to her "You're nothing but scum and bitch."

22 Ms Cummins further told Dr Reeves that she did not remember when the appellant arrived but that he was there when she was dragged into the kitchen and forced to sit on a kitchen chair while Hunt threatened to cut her with a kitchen knife. He tore off her shirt, cut off her bra with the knife and took off her skirt. She begged him to leave her knickers on as she was having her periods. She said that every time she went to the toilet Hunt or the appellant would go with her although after the first time when they watched her, they stood outside the door.

23 She did not remember whether she had been sexually assaulted but remembered the appellant saying "We should throw her on the table and fuck her." She did not recall anything after this until she made her escape the next morning.

24 Dr Reeves found that Ms Cummins had multiple bruises, abrasions and burns. She had bruising around both eyes extending down to her cheekbones, over the top of her lip and over her right bottom lip. She had a piece of skin removed from her scalp and multiple abrasions. There was a bruise under her chin. She also had sub-conjunctival haemorrhages to both eyes and haemorrhages to the inside of her cheek. She had a burn around her neck, multiple scratches on her left breast and left anterior chest, scratches to her right lower chest and front of the hip. She had a bruise over her left hip bone, multiple scratches low in her abdomen, a tennis ball sized bruise over her left hip and a scratch and abrasion over her left buttock. She had bruises, abrasions and scratches to her arms and legs. A genital examination revealed a normal state of affairs. The doctor thought that Ms Cummins' injuries were consistent with the assault described. There were no positive findings as to sexual assault.

25 The terms of Ms Cummins complaint to Ms Cousins conveyed the essence of what had happened to her and that the appellant was involved, including the incident when her bra was cut with a knife. Not surprisingly in view of Ms Cummins' condition, not a lot of detail was given or sought. There were differences between what Ms Cummins told the police and Dr Reeves. With both she was unable to recall what happened on Saturday afternoon and the early evening. Other evidence has filled in that gap. The various differences and the gap are not of consequence. Ms Cummins had suffered a prolonged, serious and degrading assault resulting in extensive injuries, shock and humiliation. In view of the treatment she had received a detailed recollection of all events is not to be expected.

26 Having first spoken to Ms Cummins at Griffith Base Hospital, the police at 3.30pm on 4 October 1998 attended at the flat of the appellant and Hunt with a search warrant. The unit was neat and tidy and appeared to have been recently cleaned. Both the appellant and Hunt were present. When Hunt was searched a bunny pocket knife was found upon him. Det Sgt Pheeney asked, "What happened here last night?" Hunt replied, "Nobody assaulted anybody. She was pissed and just fell over." Det Sgt Pheeney said "We've seen Kelly in hospital and there is no way that she received the injuries she has got by falling over."

27 During the search of the flat a gold earring was found in the appellant's bedroom. The appellant said "I think it is Kelly's." The appellant agreed that there appeared to be blood on the white doona on his bed and said that it could be his or Kelly's, adding "She's had her periods." The appellant said that he had fallen over the previous night. He had an abrasion and some small cuts on his right elbow and some abrasions on his left elbow and arm.

28 In Hunt's bedroom there were two pieces of rope, apparent splashes of blood on the floor, a belt with a cigarette lighter and knife attached to it, a camera with used film and another piece of rope with a tassel and knot. Some samples were taken of blood found on the lounge. Inside a large Sulo garbage bin at the front of the flat was a green garbage bag containing a woman's bra, a pair of men's underpants, a woman's belt and a white and green top as well as a number of tickets with printing "Griffith Ex Servicemen's Club bundy Cummins" and a number of Melbourne Bitter stubbies.

29 In his recorded police interview the appellant stated that he went to Ms Cummins flat with her about 3pm on 3 October 1998 as she wanted to show him her flat. After that he went to the top town TAB, Ms Cummins having dropped him off there. He did not stay long; he just collected a ticket. He went home and started drinking beer. No one else was there. About an hour or so later Ms Cummins arrived. She had a drink and they listened to some music. About 8pm or something like that Hunt arrived at the flat. They listened to music, watched television and drank.

30 The appellant said that he did not touch Ms Cummins. He thought that Hunt was roughing her up. They had an argument about money. "She owed him money or she ripped him off or something like that." By "roughing her up" he meant "pushing her, pushing her around, just rough handling her." The appellant said that Hunt was screaming at her. He was yelling and swearing at her and calling her names, e.g., "a thieving bitch." The appellant said that he was in the loungeroom watching television and told them to "keep it down and that". He said that he saw Hunt hit her a few times in the face with his fists. The appellant said that he told them not to do it and to calm down. Hunt went quiet.

31 The appellant said that Hunt went crazy. He dragged her across the loungeroom by a rope which was around her neck. He identified the rope which Hunt had used and which belonged to Hunt. The appellant said that he got up and told Hunt to cut it out. Ms Cummins was screaming. The appellant said that Hunt pushed him away.

32 The appellant recalled that there was some blood on the carpet. The appellant stated that he did not see Hunt tear her top from her body. Nor did he see Hunt cut her brassiere from her body by using a knife. He denied that either he or Hunt respectively stated that he was going to rape her (or words to that effect). The appellant agreed that it was his underpants which ended up in the garbage bag in the bin. He did not know how they got there. He agreed that the top found in the garbage bin was that of Ms Cummins. He did not know how it became ripped and torn. He did not know when he last saw Ms Cummins wearing that top but estimated that it was about 11pm to midnight.

33 The appellant said that he thought that at one stage Hunt threw Ms Cummins into a wall in the flat. The appellant insisted that he never did likewise.

34 The appellant said that he was not aware of the injuries suffered by Ms Cummins. When told of her injuries the appellant stated that it was no part of his doing. The appellant said that when he went to bed about 1.00am, Ms Cummins was on the couch sleeping. She had a blanket over her. He did not see what she was wearing. She was reasonably drunk and did not look too good in the face; there were bruises underneath her eyes.

35 When asked about the injuries he had received the appellant said around 8pm, just when it was getting dark he went to see a friend, Andrew, who lived in Flat 2, about a video. The appellant thought that Hunt and Ms Cummins were at the flat. The appellant said that he "tripped over a hose out the front … Just where my nature strip is."

36 The police confirmed with the appellant that earlier that day when they first went to his flat and explained that Ms Cummins had been assaulted he had told them that she must have fallen over against a car or something. The appellant replied "She did". This passage appears: "Q 249 What, when, what was she doing outside

A: I don't know what she was doin'. She tripped, where the front is, where her car was parked, it was concrete and I saw her trip." After the police had asked whether it was the occasion that Ms Cummins tried to run out of the flat and the appellant negatived that, the appellant said that he could not recall the time when she tripped over.

37 All the material which I have earlier summarised would, in substance, have been before the judge when he ruled that the statement of Ms Cummins was admissible. However, in view of the challenge to the verdict as being unreasonable it is necessary to set out a summary of the appellant's evidence.

38 The appellant said that a few weeks prior to early October 1998 Hunt had moved into his flat. In the weeks that Hunt was there Ms Cummins had stayed overnight on occasions. On the morning of 3 October 1998 he went into town to vote at the Federal election and put on a few bets at the TAB. He went to the Griffith Hotel about lunchtime and stayed there for about an hour and a half. He played the poker machines and had three or four schooners of full strength beer. He went home about 2pm.

39 The appellant said that about a few hours later Ms Cummins arrived in her car and asked to see Hunt. The appellant said he had not seen Hunt all day and asked her to drive him to the TAB. The appellant said that before he left his flat with her to go to Griffith she appeared slightly intoxicated. He collected his winnings from the TAB and purchased a carton of Melbourne Bitter stubbies. They went to her flat, met her flatmate and stayed for a few minutes. The appellant and Ms Cummins travelled back to his flat where they consumed more alcohol.

40 The appellant commented upon her frequent use of the toilet. She replied "It's not me bladder, it's something you guys don't get once a month". She took Hunt's guitar from his room and began playing it. At one stage she lost her balance and either trod on or fell on a CD rack and a classical CD was damaged. When Hunt arrived home he became very upset about Ms Cummins playing his guitar and abused her. He snatched it from her and put it back in his room. He accused her of stealing some of his money. Hunt was angry and upset. Eventually he started hitting her in the face with his fists and called her a "thieving bitch". The appellant said that he approached Hunt who insisted that she was the one who stole his money. They quietened down a bit. The appellant said that he thought that at that stage Ms Cummins wanted to go outside to her car to get something and that was when she tripped over the actual front porch or hose or something and she "just kind of went face first" into her car. When she came to the flat that afternoon she had no marks on her face but after her trip outside she had her hand up to her face.

41 The appellant said that sometime later the argument between Ms Cummins and Hunt flared up again. The appellant went to the flat of Andrew Luke to obtain a video. As he was going outside he tripped over a hose and landed on his elbow and grazed his knee. He got up and went and spoke to Mr Luke. The appellant thought that he was with Mr Luke for 45 minutes to an hour. The appellant said that as he returned to his flat he heard Ms Cummins yelling and screaming as she came down the sideway. Hunt was behind her. She had a rope around her neck. Hunt tightened the rope and tried to pull her towards the front door and back into the flat by pulling on the rope. The appellant tried to intervene but Hunt told him not to interfere as it was their business.

42 Hunt dragged her across the carpet inside the flat. She was holding and supporting the rope (to avoid being strangled) and gasping. The appellant said that he "kind of intervened again". Hunt took the rope off her. He went to the kitchen area "and got a beer or something like that and she was sitting down on the actual carpet". The appellant said that as he had a few grazes and cuts and that all over him from tripping over the hose he had a shower.

43 After that he went back to the kitchen area. Hunt and Ms Cummins were sitting there. She said she was going to have a shower. Both of them went into Hunt's bedroom and stayed there for a period. She emerged in a dressing gown or robe and went to the shower. After her shower she returned to the bedroom. When she came out she and Hunt started arguing again. He started to push her and rough-handle her. He was becoming aggressive again. The appellant said that he said to cut it out. They went back to the kitchen and simmered down a bit and talked very loudly to each other. They were still arguing.

44 The appellant said that he went back to the lounge and watched some more television. Not long afterwards Hunt started on her again. She called out "Stop it Robert" and "I've had enough of this". They continued to argue and moved from the kitchen to the loungeroom. The appellant thought that Hunt hit her with his fists and "he could have laid in a few boots and what not". The appellant thought that at that stage Hunt got a knife from the kitchen and made several threats to her and chased her through the lounge area. The appellant then told Hunt "Look Rob, no more - there'll be no more ropes and no more knives this is enough …". The appellant said that he grabbed Ms Cummins and steered her into his room, shut the door and stood behind it so that Hunt would not come in. Hunt was in a violent rage, very intoxicated and out of control. The appellant said that although he was drunk, he was pretty well aware of things.

45 Ms Cummins sat down on the carpet. Some time later she went to the toilet. This happened on a number of occasions. The appellant walked out and saw that Hunt was not around and that his bedroom door was shut. The appellant believed that he put his doona on the floor for her to lie down on it. After a period he went to the toilet. She had moved on to the couch and had a blanket over her. He went back to his bedroom and went to sleep. This was about 1am or a little later.

46 The appellant said that he got up about 1.00pm on Sunday, 4 October 1998. There were no stubbies or other items around. The appellant thought that Hunt had got up a lot earlier than him and cleaned up the flat. The appellant said that he was a messy person who left clothes all around the place. When he got up he did not see any of his clothes in the loungeroom.

47 The appellant said that when the police arrived and searched his flat they found an earring in his bedroom. He confirmed that the ropes which the police had shown him at the police station belonged to Hunt and were the ones which he had seen Hunt use the night before.

48 The appellant asserted that at no stage did he assault Ms Cummins, push her into a wall, backhand her or clean any blood off the carpet. He never held her down or removed any garments from her or saw any garment actually removed. The appellant denied that he went to the toilet once when Ms Cummins was tethered by the rope. The appellant said that the only occasion he went to the toilet area with Ms Cummins was when she left his bedroom to go there. He stood by the toilet door. The appellant denied that he was responsible for tying up the front or rear door. The appellant said that he did not keep Ms Cummins at his flat. He also denied saying words such as "We should throw her over something and fuck her".

49 The appellant denied indecently assaulting Ms Cummins. He denied removing part of her clothing.

50 In cross-examination the Crown Prosecutor highlighted the differences between what the appellant said to the police in his record of interview and what he said in evidence. They include: (a) In his evidence the appellant said he guided Ms Cummins into his bedroom and acted as her protector. To the police he said that he did not think she went to his bedroom

(b) When asked by the police about traces of blood on the doona he replied that "she must have been in his room if she came in my room. I know she was having her period." In his evidence he said that he put the doona down on the carpet in his bedroom for her. (c) He gave the wrong answer to the police when he told them that Ms Cummins arrived back at his place about an hour or so after he did. She, in fact, gave him a lift there and they arrived there together. (d) He did not tell the police about the incident of Hunt dragging Ms Cummins by a rope along by the side of the flat which he said he saw when he got back to the front door. He conveyed the impression to the police that he spent the evening watching television and drinking. (e) When asked by the police how many times Hunt hit Ms Cummins he said a few times in the face. He conceded in his evidence it was "a whole lot more than two times." (f) He agreed that he had left the bedroom incident out of the version of events which he gave the police.

51 The appellant agreed that Ms Cummins' shirt was torn and ripped. He did not see it being taken off. He said that he did not see her bra being removed nor Hunt using a knife. The appellant said that her shirt (or top) would have been torn in an earlier scuffle between Hunt and her at the kitchen table. He said that this happened "Roughly after 8 or - yeah 9". The appellant did not recall Ms Cummins being naked in the flat. He denied that she was stripped naked in the kitchen or at all. He was not there in the kitchen. He denied that he helped Hunt remove her dress (skirt), and her knickers.

52 The Crown Prosecutor put each of the serious allegations of misconduct against the appellant made in Ms Cummins' statement and he denied each of them (see T146-7, 150). He agreed that it was only towards the end of the evening that he intervened decisively and put an end to Hunt's conduct.

53 During the cross-examination the Crown challenged the appellant's truthfulness and put to him that he had tailored his evidence and altered certain aspects of his story to meet her statement. The appellant denied this.

54 The effect of the cross-examination as a whole was to emphasise that the appellant had been untruthful in his statements to the police and raise serious doubts about the credibility of the appellant.

Appeal Ground 1 reads: "… the Trial Judge erred in admitting the complainant's statement into evidence in circumstances where the complainant was deceased and therefore could not be cross-examined by the appellant."

55 The basis for admitting Ms Cummins' statement is to be found in Part 4, Division 5 of the Criminal Procedure Act 1986. Section 116 provides:

"116 (1) This section applies to:- (a) a written statement the whole or any part of which has been admitted under section 48A of the Justices Act 1902, including any part of the statement that has been rejected under section 48F of that Act,

(b) a written statement the whole or any part of which has been tendered as evidence under section 51A of the Justices Act 1902. referred to in this section as a prescribed written statement.

(2) Except in so far as the court otherwise orders, a prescribed written statement may be admitted as evidence for the prosecution at the trial of the accused person on proof on oath that the person who made the statement: (a) is dead, or so ill as not to be able to travel or to give evidence without a risk of endangering the person's life, or

(3) If the accused person so requires, a prescribed written statement may be admitted as evidence in the accused person's defence at the trial of the accused person whenever:

(i) is dead, or so ill as not to be able to travel or to give evidence without risk of endangering the person's life, or

(b) the committing justice has certified, before committing the person for trial, that in the opinion of the justice:

(i) the evidence of the person who made the statement is material, and

(ii) the person is willing to attend the trial, but is unable to bear the expense of attendance.

(4) A statement may not be admitted as evidence on the ground referred to in subsection (3)(b) if the person who made the statement has, in due time before the trial, been subpoenaed by the Crown.

(5) A prescribed written statement made in respect of an indictable offence may be admitted as evidence on the trial of the accused person for any other offence, whether of the same or of a different kind, if it would be admissible on his or her trial for the offence of which it was made.

(6) If at a trial it appears to the court that the whole or any part of a prescribed written statement is inadmissible, the court may reject the statement or that part, as the case may be, as evidence." 56 Section 116 is in substantially the same terms as s.409 (7)-(11) of the Crimes Act, 1900. Those sub-sections were inserted into the Crimes Act, 1900 by the Crimes (Procedure) Amendment Act 1983, No 170 when provision was made for written statements in committal proceedings and paper committals by the Justices (Procedure) Further Amendment Act 1983 which inserted Subdivision 7A into Part 4 of the Justice Act 1902. The cases on s.409 (7)-(11) have drawn heavily upon the earlier provisions of s.409 and the decided cases on them. For many years s.409 has provided for the admission of depositions. For example, s.409(1) provided: "A deposition of a witness may be read as evidence in the prosecution at the trial of the accused upon proof -

(a) on oath that the witness is dead or so ill as not to be able to travel or to give evidence, or is absent from Australia and …"

There follows the formal requirements of a written deposition and due authentication coupled with the accused having a full opportunity of cross-examining the witness.

57 Section 409(2), which is complementary, provides: "The deposition of any witness called and examined before a Justice or coroner by and on behalf of the accused may, if the accused so require be read as evidence in his defence at the trial whenever

(a) the witness is dead or so ill as not to be able to travel or to give evidence or is absent from Australia, or

58 In R v Lynch [1979] 2 NSWLR 775, Street CJ at 778 said: "… the opening portion of s.409(1) is cast in terms appropriate to confer upon the Crown the right to read a deposition as evidence, if the ingredients set out in the ensuing portion of the subsection are found to be established … equally … s.409(2) confers the right on the accused to read as evidence in his defence a deposition falling within the requirements of the latter subsection."

59 After considering the decision in Attorney General of New South Wales v Jackson (1906) 3 CLR 731 at 743 et seq and R v Hendy (Earle J) 1850 4 Cox CC 243 at 244, 245, Street CJ said at 780: "There is no room to be found within the approach adopted by the High Court for any ultimate residual discretion remaining with the trial judge apart, of course, from the ordinary principle governing admissibility, where it is contended that the undue prejudicial significance of the proffered evidence outweighs its probative value."

60 Reynolds JA expressed the principle a little more broadly at 784: "… s.409 is concerned with the admissibility of evidence and the conditions precedent with which the trial judge has to be satisfied before the material becomes admissible. Once these conditions are satisfied and the material does become admissible, provided it is relevant, the only discretions are those which always reside in the presiding judge as to evidence presented in any form, such as the overriding discretion in criminal cases as to prejudice and probative value. There is no additional general discretion imposed upon, or granted to, the judge under s.409. The admissibility of evidence does not, in general depend upon the discretion of the judge, for otherwise the preparation of trials would become extremely hazardous. The use of the word 'may' in its context is not directed to the judge, but invests the prosecutor with a right, just as s.409(2) gives a similar right to the accused to tender depositions in his favour, if he so desires and requires. So much is inherent, if not specific, in the decision of the High Court, to which the learned Chief Justice has made reference, of the Attorney-General of New South Wales v. Jackson (1906) 3 CLR 731), and cases which state the contrary ought not to be followed, in particular, the case of R v Linley which is noted in (1959 ) Criminal. L. Rev., at p.123."

Nagle CJ at CL agreed with both Street CJ and Reynolds JA.

61 I do not overlook that the introductory words of s.116(2) "Except in so far as the court otherwise orders" which are also found in its predecessor, s.409(7) substituting the words "the Judge" for the words "the court" are not to be found in s.409(1) and (2). I will deal with this later.

62 The Justices (Procedure) Further Amendment Act 1983, which provided for the use of written statements in committal procedures in certain circumstances and the Crimes (Procedure) Amendment Act 1983 which inserted s.409(7)-(11) into the Crimes Act 1940 were cognate legislative enactments. They were dealt with together by Parliament.

63 In the Second Reading Speech of the Attorney General and Minister of Justice (Hansard 1 Dec 1983 4196 & 4197), it was explained that the principal Bill was the Justices (Procedure) Further Amendment Bill and that the object of both Bills was to allow under certain conditions the use of a written statement as evidence in committal proceedings. He said: "The amendments to section 409 are consequential and extend the existing provisions of the section, which now deal with depositions, to statements."

Statements to the same effect appear in the Second Reading Speech of the responsible Minister in the Legislative Assembly (Hansard, 1 Dec 1983 at 4269 and 4270).

64 In the Explanatory Note it is stated that the objects of the Crimes (Procedure) Amendment Bill 1983 are to amend the Crimes Act, 1900, so as -

"(a) to permit, in certain circumstances, a written statement admitted in evidence in committal proceedings to be admitted at the trial (Schedule 1(1)(b); …"

While it is useful to have these statements in general terms of the objects of s.409(7)-(11), the present case requires the Court to pay attention to the introductory words "Except in so far as the court otherwise orders" in s.116(2) and their counterpart in s.409(7).

65 The cases on s.409(7) have drawn heavily on the approach taken to s.409(1) and (2) and dealt with the significance of the introductory words of s.409(7) which are also in s.116(2).

66 In R v Brotherton (1992) 29 NSWLR 95, Hunt CJ at CL, with whom the other members of the Court agreed, pointed out the differences between s.409(1), s.409(7) and s.409(8). Section 409(1) dealt with the admission of depositions taken at committal proceedings where, inter alia, the accused has had the opportunity to cross-examine the witness who is dead or ill, or absent from Australia. Hunt CJ at CL said at 100: "Section 409(1) permits the evidence given by a witness at the committal hearing to be read as evidence for the prosecution at the trial upon proof upon oath of the same matters to which s 409(7) refers, with one difference. Whereas subs (7) gives to the judge a general discretion to reject the s 48A statement ('Except in so far as the judge otherwise orders'), subs (1) requires proof that the accused, or his counsel or attorney, had a full opportunity of cross-examining the witness. Once that fact is established, and subject only to the usual overriding discretion in criminal cases to exclude evidence in certain circumstances, there remains no general discretion under subs (1) to reject the evidence given at the committal hearing: ( R v Lynch [1979] 2 NSWLR 775 at 781, 784 ; R v Farquhar Court of Criminal Appeal, 29 May 1985, unreported) at 25-26.)"

67 In R v Stackelroth (1996) 86 A Crim R 438 the Court was concerned with the admission of a prescribed statement by a major witness, the police officer in charge of the investigation, to whom the accused had allegedly made some damaging admissions which went a long way towards proving the Crown case. He was cross-examined at the committal proceedings but died prior to the trial. His statement and agreed portions of his cross-examination were admitted in the Crown case at the accused's trial.

68 In Stackelroth detailed consideration was given to the terms of s.409 of the Crimes Act, 1900. Hunt CJ at CL held that there were two areas of discretion to exclude evidence which needed to be considered, namely, a residual discretion and the general discretion. Allen J referred to the general discretionary principle and the discretion under s.409(7). The Court agreed that the general discretion which a trial judge has in any criminal trial to exclude otherwise admissible evidence where that is necessary to ensure a fair trial remains applicable to any evidence or statement otherwise admissible pursuant to s.409. It will be necessary later to take into account the Evidence Act 1995. That did not arise in Stackelroth.

69 At 439-440 Hunt CJ at CL said: (439-440) "That general discretion covers not only the case where the prejudicial effect of the evidence outweighs its probative value, but also where the use of the evidence would result in an unfair trial for the accused or where the evidence was unlawfully or improperly obtained. That all three areas of that general discretion remain applicable notwithstanding the admissibility otherwise of the evidence pursuant to s 409 has always been understood to be the case. However, something more than the mere fact that the witness is unavailable for cross-examination at the trial would have to be shown in relation to each of those areas of the general discretion, for the prejudice flowing from such an unavailability has necessarily been accepted by the legislature itself as appropriate in the circumstances to which s 409 is applicable. The only area of general discretion suggested as being relevant in the present case was the first. I agree with Allen J that, for the purposes of the exercise of this particular discretion, the unavailability of the witness for cross-examination at the trial may be relevant to a consideration of the probative value of the evidence, although I repeat that that fact alone is insufficient. And I agree with Allen J that there was nothing relevantly prejudicial about this evidence in the present case. All that it did was that it proved the Crown case; there was nothing relevantly prejudicial in the sense of introducing material which, although not itself probative (or only slightly probative) of guilt, was also probative of some other matter which may wrongly have been regarded by the jury as probative (or strongly probative) of guilt, such as propensity. It would not have been appropriate in this case for the statement to have been excluded on that basis".

70 The Chief Judge next turned to the "residual discretion". By that he meant "some form of discretion to reject evidence otherwise admissible pursuant to s.409 apart from that general discretion in the various areas" previously mentioned. Hunt CJ at CL followed the remarks of Street CJ in Lynch that s.409 does not confer any power on the Court but confers a right on the Crown or the accused as the case may be. After discussing s.409(1) and (2) and their effect, the Chief Judge focussed on s.409(7). At 442 he said "The words 'Except in so far as the judge otherwise orders' in s 409(7) are not in s 409(8). Nor are they in either s 409(1) or s 409(2). These words, in my view, do give the court a discretion to exclude a prescribed statement - or parts of a prescribed statement - notwithstanding that it is otherwise admissible pursuant to s 409(7). I so described them in Brotherton (at 101, 307), although I pointed out that it was unnecessary in that case to consider the width of that discretion. It has become necessary to do so in the present case.

71 Hunt CJ at CL said of s.409(7) at 443 "… it gives to the trial judge a residual discretion to reject the reading of a prescribed statement as evidence for the Crown, but not its reading in the accused's defence, notwithstanding that it is otherwise admissible pursuant to s.409."

72 The Chief Judge continued at 443: "The distinction thereby drawn between s 409(1) and s 409(7) is a sensible one. Different factors may have effect one way or the other upon the exercise of that residual discretion to exclude the whole or part of the particular material where it is a prescribed statement, rather than the oral evidence, of a witness which is being read as evidence for the Crown. The unavailability of the witness for cross-examination at the trial may well have a greater prejudice in the particular case where - as will usually be the case under s 409(7) - there was no full opportunity of cross-examining the witness at the committal. It may well be different in some circumstances if there was a deliberate decision not to cross-examine the witness at the committal proceeding; it is unnecessary to explore those circumstances in the present case. On the other hand, the exercise of the discretion could more readily be enlivened in the case where cross-examination of the alleged victim of a crime of violence was restricted at the committal by s 48EA of the Justices Act . What may also be relevant to the exercise of that residual discretion would, of course, be the fact that the accused - who was under no obligation to put his case to that witness at the committal Birks (1990) 19 NSWLR 677 at 689) - would have the advantage of putting his case to the jury without the Crown being able to refute it from the mouth of the witness who is unable to give evidence at the trial. (This is often referred to as the 'free kick' advantage). Another matter which may also be relevant is the effect of the jury warning which is required whenever material is read as evidence in the trial pursuant to s 409 - that, in evaluating the weight to be given to such evidence, the jury must take into account the fact that they have not had the benefit of seeing the witness give the evidence or being cross-examined - and the obligation of the trial judge in the appropriate case to develop this warning by pointing to particular features of the evidence which conflict with other evidence and which could have been explored in cross-examination. That is not intended to be an exhaustive list of the factors which may be relevant to the exercise of the residual discretion.

He rejected the challenge to the admissibility of the statement. Dunford J agreed with him.

73 Allen J said at 453: "It is not the law that a general discretionary principle of exclusion of evidence is to be applied, in respect of evidence which s 409 provides may be admitted, as if the evidence was being given orally before the jury and was subject to cross-examination before it. The probative value of the evidence is affected by the lack of opportunity for the maker of the statement (or the deponent) to be tested before the jury. That can be a consideration relevant to the exercise of discretion."

74 Allen J continued at 454: "In substance the refraining of the judge from so otherwise ordering is a condition of a statement being read - just as a full opportunity of cross-examining the witness at the committal is a condition of a deposition being read. The conditions, however, are not identical. Section 409(7) affords a degree of flexibility not available under s 409(1). I agree with Hunt CJ at CL that this distinction is a 'sensible one'. The provisions relating to cross-examination in paper committals are incomplete and are, in any event, procedurally clumsy in comparison with a straightforward choice of whether or not to cross-examine a witness who has given evidence orally and accordingly is subject to cross-examination in the ordinary way. Further, opportunity for cross-examination might be lost through procedural oversight or error. It is appropriate that the condition of admissibility be expressed in terms of a discretion. The discretion is given in general terms. But it is not a carte blanche. In the exercise of discretion under s 409(7) a trial judge must take into count that it is manifest that the legislature considered that as a matter of policy it should be highly pertinent to whether material at committal should be read at trial that there was, if it be the case, a full opportunity, in a realistic and practical sense, of cross-examination at the committal. If a statement is to be excluded there must be good cause for doing so. To adapt the observation of the Privy Council in Sang , the mere fact that the maker of the statement will not be available for cross-examination at the trial is an insufficient ground for excluding it - because that is a feature of every statement with which s 409(7) deals".

75 He was at pains to distinguish between the admissibility of such evidence and its weight. Allen J was influenced by the decision of the Privy Council (Lords Bridge, Griffith, Ackner, Goff and Lowry) in Scott & Anor v The Queen 1989 AC 1242. Their Lordships were dealing with the admissibility of sworn depositions where two witnesses who gave evidence at preliminary examinations before a magistrate died prior to the trials. There was some cross-examination of each of the witnesses at the preliminary examination. In each case each witness went to the crucial issue of identification of the accused, there being no other evidence of identification. Each of the accused claimed that he was either not present at the shooting or had an alibi. In each case without the evidence in the depositions there was insufficient evidence to put any of the accused on trial. Section 34 of the Justices of the Peace Jurisdiction Act (Jamaica) was based on corresponding provisions contained in English statute and common law. It is similar to s.409(1) of the Crimes Act, 1900 and s.112 of the Criminal Procedure Act 1986.

76 Their Lordships held that s.34 of the Jamaican Act bestowed no statutory discretion upon the judge to exclude a deposition if a witness was dead or too ill to attend Court. Their Lordships also held that a judge has a discretion in a criminal trial to exclude admissible evidence if it is necessary in order to secure a fair trial for the accused.

77 After a review of many authorities their Lordships said at 1258-1259: "In the light of these authorities their Lordships are satisfied that the discretion of a judge to ensure a fair trial includes a power to exclude the admission of a deposition. It is, however, a power that should be exercised with great restraint. The mere fact that the deponent will not be available for cross-examination is obviously an insufficient ground for excluding the deposition for that is a feature common to the admission of all depositions which must have been contemplated and accepted by the legislature when it gave statutory sanction to their admission in evidence. If the courts are too ready to exclude the deposition of a deceased witness it may well place the lives of witnesses at risk particularly in a case where only one witness has been courageous enough to give evidence against the accused or only one witness has had the opportunity to identify the accused. It will of course be necessary in every case to warn the jury that they have not had the benefit of hearing the evidence of the deponent tested in cross-examination and to take that into consideration. No doubt in many cases it will be appropriate for a judge to develop this warning by pointing out particular features of the evidence in the deposition which conflict with other evidence and which could have been explored in cross-examination; but no rules can usefully be laid down to control the detail to which a judge should descend in the individual case. In an identification case it will in addition be necessary to give the appropriate warning of the danger of identification evidence. The deposition must of course be scrutinised by the judge to ensure that it does not contain inadmissible matters such as hearsay or matter that is prejudicial rather than probative and any such material should be excluded from the deposition before it is read to the jury. Provided these precautions are taken it is only in rare circumstances that it would be right to exercise the discretion to exclude the deposition. Those circumstance will arise when the judge is satisfied that it will be unsafe for the jury to rely upon the evidence in the deposition. It will be unwise to attempt to define or forecast in more particular terms the nature of such circumstances. This much however can be said that neither the inability to cross-examine, nor the fact that the deposition contains the only evidence against the accused, nor the fact that it is identification evidence will of itself be sufficient to justify the exercise of the discretion.

It is the quality of the evidence in the deposition that is the crucial factor that should determine the exercise of the discretion."

78 The reasoning in Scott is powerful and contains a timely warning against being too ready to exclude the challenged evidence. However, in Scott there had been some cross-examination of the deponent at the preliminary examination and s.34 of the Jamaican Act did not contain the introductory words found in s.116(2), "Except in so far as the court otherwise orders."

79 While in the exercise of the discretion under s.409(7) (now s.116(2) Hunt CJ at CL and Allen J attached weight to the inability of the accused to cross-examine the deceased, he regarded the mere fact that the maker of the statement will not be available for cross-examination at the trial as an insufficient ground for excluding it because that is a feature of every statement with which s.409(7) (now s.116(2)) deals. The Privy Council emphasised in Scott that it is the quality of the evidence in the deposition (statement in the present case) that is the crucial factor that should determine the exercise of the discretion. I agree that the quality of the evidence in the statement is a major factor but there may be other important factors. I would not wish to exclude these.

80 The approach of Hunt CJ at CL was to have regard to all the circumstances. In a case such as this, where the application to cross-examine the alleged victim was refused, s.48E(1) and (2) of the Justices Act 1902 should be considered. Section 48E(1) enables the Justices or Justice to give a direction requiring the attendance at the proceedings of a person who has made a written statement. Section 48(2) provides:

(2) The Justice or Justices may give the direction only if

(a) in the case of a witness in proceedings that relate to an offence involving violence who is the alleged victim of the offence - the Justice or Justices are of the opinion that there are special reasons why, in the interests of justice, the witness should attend to give oral evidence or

81 In any other case substantial reasons have to exist before a direction is given. This is a lesser test. The legislature is seeking to protect victims of violence from having to give evidence in committal proceedings. It is a recognition of the traumatic effect of the attack and of giving evidence relating to a violent attack upon oneself. That has a compounding effect.

82 The correct approach is to have regard to all the circumstances including: "(a) the inability to cross-examine at the trial and the jury not being able to see and hear the witness giving evidence.

(b) the refusal of the application to have the alleged victim of the violence attend at the committal hearing.

(c) the protection afforded by s.48E(2) of the Justices Act to victims of violence

(d) Section 116(2) contemplates that the statement may be admitted as evidence without the opportunity to cross-examine the maker subject to the proviso that the court may otherwise order

(f) (i) the accused was not obliged to put his case to the alleged victim at committal (ii) the accused would be able to put his case to the jury without the Crown being able to rebut it from the mouth of the witness who is dead. (This is often referred to as the "free kick" advantage) (g) the effect of the warning to the jury that: (i) they have not had the advantage of seeing the witness give the evidence or being cross-examined and the disadvantage suffered by the accused in not being able to test the evidence given by the deceased witness. (ii) the development of that warning by the judge by pointing to particular features of the evidence which conflict with other evidence and to particular gaps and defects, all of which could have been explored in cross-examination. (h) whether there is any supporting evidence."

83 In Scott the Privy Council delivered a salutary reminder that if the courts are too ready to exclude the statement of a deceased witness it may well place the lives of witnesses at risk particularly in a case where only one witness has been courageous enough to provide evidence against the accused or where the evidence of one witness is vital to the Crown's case. This raises a question of public interest.

84 In Stackelroth the Evidence Act 1995 did not fall to be considered. Part 3.11 of the Act deals with Discretions to exclude evidence. Section 137 (probative value outweighed by danger of unfair prejudice to defendant - mandatory exclusion), s.135 (probative value substantially outweighed by the danger that evidence might be misleading or confusing or cause or result in undue waste of time) and s.138(1) (evidence obtained improperly or in contravention of an Australian law or in consequence thereof) cover much of the ground covered by the general discretion at common law. There are exclusionary discretions such as those contained in Part 3.4 relating to admissions.

85 The question remains whether the Court still retains the discretion to exclude otherwise admissible evidence where that is necessary to ensure a fair trial, if the discretions conferred by the Act do not cover the position which has arisen. As I am of the opinion that the use of the evidence in question (the prescribed statement) would not result in an unfair trial for the appellant the question need not be answered and it would be best left to a case where the Court receives full argument on the Evidence Act 1995 and authorities such as McDermott (1948) 76 CLR 501 at 506-507, 513-515; Lee (1950) 82 CLR 133 at 150-151; Macpherson (1981) 147 CLR 512 at 519-520; Cleland (1982) 151 CLR 1 at 18, 31, 34; Phillips (1985) 159 CLR 45 at 51. I would be reluctant to see such a discretion disappear as it is an important aspect of a court's ability to ensure a fair trial. Experience has shown that it is necessary. It enables the Court to deal with new and unforeseen situations.

86 While the opportunity to cross-examine fully is traditionally seen as a valuable right, the accused is able to give evidence and call evidence in his defence. The value of a full opportunity to cross-examine should not be overstated or understated. In some cases it may be possible to assess the value of that opportunity. The gaps in Ms Cummins' memory are apparent from her statement and Dr Reeves evidence. Any cross-examination is unlikely to travel far in that area. Not much can usually be done in cross-examination with a witness who has no recollection of a particular period. The injuries inflicted appear beyond dispute. It appears from her statement that Hunt was the principal offender and that the appellant's role was a minor one. The materials suggest that late in the evening he gave her some protection. The cross-examiner would try to develop these aspects and go the step further and endeavour to establish with her that Hunt was the offender and that the appellant was merely present. The cross-examiner would also try to establish that the appellant urged Hunt to stop and eventually managed to stop him. However, in view of the terms of her statement it would be unlikely that she would agree that the appellant played no part.

87 In his reasons admitting the statement the judge, after briefly summarising the facts, said: "There is no discretion on my part to reject the statement once the Crown has proved that the witness's statement was tendered in a proper manner and that the witness is now dead. There is, however, an undoubted residual discretion to refuse to admit the statement into evidence if it can be shown that the trial of the accused would become an unfair one. Mr Hood has cross-examined a Detective Kreuzer in relation to certain gaps that appear in the statement and as to what the man Hunt, who is also now deceased, said about the state of intoxication of the victim. There is also apparently some discrepancies between what she told the police in her statement of 26 October and what she told a doctor at an earlier stage.

It would be my view that what she told the doctor at an earlier stage would become admissible because it was said shortly after the occasion took place. It would become admissible under the Evidence Act hearsay rules. There was also evidence given by a Mr Luke who says that the complainant came to speak to him approximately three weeks after the events and approximately again two weeks later, when she said that the accused, Mr Grant, had intervened when she was being beaten up by the man Robert and had saved her life. That information was not passed on to Mr Grant until some seven or eight months later. In my view, a fair trial could be had. It was said that the jury may be prejudiced because of the serious injuries suffered by the complainant. I have no reason to believe that juries do not take notice of the warnings that are given to them by the trial judge, and certainly warnings will be given to them. The issue in this case apparently will be as to whether the accused was part of the detaining of the complainant and that would include of course some assaults upon her and whether he was a part of an assault with an act of indecency. I am of the view that the statement should be admitted into evidence with the appropriate warnings. The jury will be told that she is not available for cross-examination and they should obviously therefore be very careful as to how they approach the whole matter."

88 I doubt if the judge is using the phrase "residual discretion" in the sense used by Hunt CJ at CL in Stackelroth.

89 The judge was mistaken when he said he had no discretion to reject the statement once the Crown had proved that the witness' statement was tendered in a proper manner and the witness was dead. Section 116(2) gave him a discretion to exercise in all the circumstances of the case. The passage quoted from the judge's reasons indicates the matters which he took into account in deciding whether, if the statement was admitted, the trial would become an unfair one.

90 Adopting the terminology used by Hunt CJ at CL, the appellant submitted that the exercise of the "general discretion" and the "residual discretion" involved different considerations. The appellant submitted that the exercise of the general discretion involved the three considerations outlined by Hunt CJ at CL in Stackelroth (and quoted earlier). The appellant submitted that the exercise of the "residual discretion" (the one in s.116(2) of the Criminal Procedure Act, 1986) involved different factors and adopted the non-exhaustive list propounded by Hunt CJ at CL in Stackelroth at 443 (and quoted earlier). While the discretions differ there may be a degree of overlap and some factors will be common to the exercise of both discretions. The primary ground for rejecting a prescribed statement is that its admission would result in the accused's trial becoming unfair, that is, the accused would be placed at a great disadvantage which cannot be adequately counterbalanced. I would not accept that the consideration of an unfair trial was not relevant to the exercise of the "residual discretion".

91 The discretion under s.116(2) may be exercised to determine that the statement is not admissible. The "general discretion" is exercised after it is determined that the Court should not otherwise order under s.116(2), the court further deciding that it should be rejected for one of the three reasons mentioned by Hunt CJ at CL, or perhaps more correctly pursuant to one of the discretions in the Evidence Act 1995. The appellant submitted that the prescribed statement should have been excluded for the following reasons: (1) The significant gap in Ms Cummins statement that is from about 11am on 3 October 1998 when she paid the rent to about 8pm that day or early evening when Robert Hunt arrived back at the appellant's flat. That gap reflects the gap in her memory in respect of that period.

(2) Inconsistencies between the prescribed statement made to the police and her statement to Dr Reeves. Particular reliance was placed on her statement in which she attributed to Hunt the words "We should throw her over something and fuck the guts out of her". She would appear to have confused whether it was Hunt or the appellant who uttered the statement. This assumes that Dr Reeves correctly understood what Ms Cummins said. She made references to both the appellant and Hunt. Perhaps there was a slip of the tongue.

(3) There was evidence that she was intoxicated. This was based on Hunt stating to Det Snr Con Kreuzer that earlier on 3 October 1998 Ms Cummins had been at the Griffith Ex-Servicemen's Club and had there drunk to excess and also on the appellant's record of interview.

(4) The appellant had no opportunity to cross-examine Ms Cummins at the committal proceedings and failed in his application to do so.

(5) The evidence of Ms Cummins was the only evidence upon which the appellant could be convicted and the judge made no reference to this in his reasons. 92 The appellant submitted that therefore the judge had failed to exercise his discretion under s.116(2) properly and that a proper exercise of the discretion would have resulted in her statement being excluded under that provision. The appellant further submitted that the combination of the five factors mentioned where there was only one eye witness to the incident and where the issue of her credibility was crucial, meant that the admission of her statement resulted in the appellant's trial being unfair and resulted in a miscarriage of justice.

93 While there is a gap in the Ms Cummins' recollection as to what took place between about 11am and 8pm on 3 October 1998 this does not seem to be a matter of importance. Ms Cummins complained of what happened to her after Hunt returned to the appellant's flat. In his record of interview the appellant refers to he and her having some drinks at the flat, as might be expected. When he last saw her on the couch he thought that she was reasonably drunk. The appellant also supplied details as to the movements of Ms Cummins on the afternoon of 3 October 1998 from about 3pm onwards, albeit not all her movements. He did not suggest that she was drunk during that period nor did her flatmate, but he saw her briefly. The lack of any opportunity to cross-examine and her evidence being essential to and forming the core of the Crown case are sound and important points.

94 The Crown submitted that it mattered not whether the judge had used the correct nomenclature. The Crown pointed out that the judge's reasons focus on whether the appellant's trial will be fair if the prescribed statement is admitted. That seems to have been the issue raised and argued by the defence. The transcript records this brief summary of the appellant's contention before the judge: "Application by [counsel] that complainant's statement not be admitted on the basis it would be extremely prejudicial as complainant is deceased and therefore cannot be cross-examined."

95 The Crown further submitted that the judge did not need to consider the exercise of his discretion under s.116(2) because of the way the application to reject the evidence appears to have been based.

96 The Crown pointed out that one of the factors which the judge took into account was that an appropriate warning would be given. An appropriate warning was given to the jury immediately before Ms Cummins' statement was read to them, reminding them that Ms Cummins was deceased, that she had never been examined or cross-examined; she had not been cross-examined before the magistrate and could not be examined before them. In his summing-up the judge stressed that the appellant was at a considerable disadvantage in not being able to cross-examine Ms Cummins. The judge pointed out that normally a witness had to be present and give evidence in the witness box and be subject to the full test of cross-examination. The judge said as to her statement (SU 6-7 of 24/7/00): "But you should be very careful in dealing with that because it is not subject to any cross-examination at all, and I will give you a direction in relation to that document that what she says in that statement may be unreliable for a number of reasons. It may be unreliable because there was some evidence of drink in this particular case, not only as far as the accused is concerned, but also as far as she was concerned. That evidence comes from the record of interview of this accused - that what he told the police - and there is evidence from the accused today that she had been drinking. But in any event, there is material in that document alone of which there are a number of gaps. There was no explanation for those gaps. Obviously people who are seriously assaulted - and there is no doubt about that, this woman was very seriously assaulted on that particular night, and that can have an effect on the memory, although the memory may be of matters which took place after the assault, but there are considerable gaps in relation to this document of what she said and what was read to you concerning what took place before."

97 The judge stated (SU 8 of 24/7/00): "There is quite a considerable gap from paying her rent at the real estate office to her remembering Robert bashing her. She has no recollection of what she did after that, although it certainly seems to be perfectly clear that at one stage she was with the accused, Mr Grant, then she went back to her place and spoke to Mr Formenti and he gave evidence about that. But she apparently had no recollection of it. She said, 'The next thing I remember is a rope being around my neck and being dragged from room to room.' Now I am just giving you that particular warning in relation to that because she is not here to be cross-examined, and I have already told you that has placed the accused at a very considerable disadvantage."

98 On resuming his summing-up on the following morning the judge reminded the jury (SU 1 of 25/7/00): "I gave you directions in relation to the fact that the complainant is now dead, so consequently she could not be called, and the disadvantage. That meant that the accused was not in a position to be able to cross-examine her. I gave you directions as to the fact that that what is in that statement, the evidence of the complainant may be unreliable because of certain things. I put to you, you might recall, all those things …".

99 The judge was right to take into account the warnings which he proposed to give. They were strong and effective,

100 The Crown also relied on Ms Cummins being unable to refute any version of events which the appellant may give. It pointed out that this was a potent consideration by reference to the appellant's evidence which differed in significant respects from what he told the police.

101 The judge did not have the benefit of the detailed argument which was addressed to this Court. The argument before the judge was centered on whether the appellant's trial would be unfair if the statement was admitted. The appellant's case involves the contention that the judge erred because he did not take into account a point that was not argued before him.

102 On the materials before the judge when he gave his ruling there was no doubt that Ms Cummins was seriously assaulted during the evening of 3 October 1998 and possibly extending into the early morning of 4 October 1998 and that Hunt and the appellant were in the appellant's flat for most, if not all, of that time. The assault extended over a substantial period of time. At an early stage of the assault her clothing was cut and torn and she was stripped naked. The evidence of Ms Cousins, the police officers, Mr Formenti, and Dr Reeves was cogent. Ms Cummins complained at the first opportunity. The appellant's record of interview exonerated him from any responsibility and attributed responsibility to Hunt.

103 There was a major issue whether the appellant participated in the assault upon Ms Cummins and a further major issue whether he assisted in detaining her. Was Hunt the sole malefactor?

104 The admission of the prescribed statement now only bears upon the alternative charge of aggravated indecent assault. There was substantial evidence that the crime of indecent assault had occurred There was an issue whether it was committed in company and whether the appellant was a participant. Ms Cummins' statement answered these issues in the affirmative.

105 The discretion of the Court to otherwise order is that of the trial judge. It is not one to be exercised by this Court. If a mistake is made in the course of exercising the discretion that does not necessarily mean that the decision is wrong. The decision may still be correct. There may be no miscarriage of justice. Despite the mistake it may be a case where the judge has considered all the relevant factors of importance. The findings he has made may point to or lead to the decision made.

106 In the particular circumstances of the present case, while the judge made the mistake previously identified he does seem to have considered the relevant factors of importance. He decided the issues which the parties fought and ruled that a fair trial could still be had notwithstanding that Ms Cummins could not be cross-examined and the jury would not see her giving her evidence. The judge also took into account the gaps in her statement, the inconsistencies between what she told Dr Reeves and what she said to the police, her intoxication and the possibility of the appellant being prejudiced by the very serious injuries which she received and the warnings he proposed to give.

107 There were counterbalancing considerations. The gaps in her statement were not significant. What mattered was what happened after Hunt arrived at the flat. On the charge of aggravated indecent assault it matters little which of the two men said that she should be raped as this was not the subject of that charge. Both were present. Such discrepancies as exist as to what she told Dr Reeves and what she told the police are of little consequence.

108 While the appellant denied his involvement in either offence there is support in the appellant's record of interview for some of Ms Cummins' allegations and in the other materials available to the judge when he exercised what he described as his residual discretion. There was no issue that Ms Cummins was dragged by the rope around her neck and thrown into a wall. The appellant said Ms Cummins had been in his flat for some time prior to Hunt's arrival around 8pm and that Hunt roughed her up. There was the blood on the doona and the carpet and the reference to her having a period. There was her earring found in the appellant's room, the torn ladies top of Ms Cummins and the cut brassiere found in the garbage bin. She ended up asleep on the couch.

109 There were some curious features of his statement to the police, namely, he was not aware of the injuries suffered by her, his later statement that she did not look too good in the face and his statement at the flat to the police and later confirmed that she must have fallen over against a car or something and his amplification, "She tripped where the front is, where her car was parked, it was concrete and I saw her trip." The doctor's description of the injuries suffered as well as those of the lay witnesses made that an improbable story. Similarly, his explanation of his own injuries on his elbows and left arm, namely, that he tripped over a hose out the front where his nature strip was, was less than convincing. Despite the appellant being the lessee of the flat and despite the conduct of Hunt, the appellant took no decisive action until late in the evening. Mere presence does not, of course, make a person criminally liable. Further, the appellant insisted that he told or asked Hunt to stop.

110 The evidence in the prescribed statement as to the charge of indecent assault, although brief, is clear. Hunt tore off her shirt (or top) and cut her brassiere off with a knife. The appellant helped Hunt pull her skirt and knickers off. While possible, it is not easy to envisage Hunt alone being able to strip her naked, when she was resisting.

111 The decision of the judge to admit the statement was correct. The appellant's statements to the police reveal that as the police enquiries and questions continued the appellant adjusted his version of what had occurred. There was supporting evidence of the version of events given by Ms Cummins although not of the appellant's involvement in the offences. The appellant had his witness, Mr A J Luke available to give evidence. The appellant was aware as from 4 October 1998 what allegations were being made against him and he was well placed to meet them. With her death he enjoyed the "free kick" advantage.

112 Appeal Ground 2 reads: "The Jury's verdict was unreasonable and cannot be supported having regard to the evidence."

Before turning to the submissions of the parties it is necessary to examine how the issues were left to the jury. This was governed by the terms of the indictment. Count 1 alleged that the appellant detained Ms Cummins with intent to hold her for his advantage. Count 2 alleged the assault in company and at that time the commission of an act of indecency upon her.

113 The judge told the jury not to think about common enterprise and to concentrate on what the Crown had proved that the appellant did. The judge pointed out that there was no dispute that the appellant was present. Further, he denied any part in either offence. The judge told the jury: "But what the Crown has to satisfy you beyond reasonable doubt is that she was detained by the accused and it was done with an intent to hold her for an advantage to himself. Now to detain a person means to prevent that person leaving should they wish to do so. It would be sufficient that the person was detained for only a very short time. Well in this case it would appear that she was detained for some hours. The Crown says here that the detention here was constituted by the acts of the accused, that is, at least on one occasion - if you accept the evidence of the complainant in the statement - that he dragged her into the house with the other man, that he was a part of that, and earlier she had said that he had dragged her around the house with a rope around her neck and had committed a number of assaults upon her himself. Now the Crown has to prove that the accused did actually do things which would amount to preventing that person from leaving. The Crown also relies upon the fact that he took her into his room and she stayed there, according to the Crown, the way they put it, or that she had to ask permission to go to the toilet and then he went and accompanied her and then back to the bedroom again. It was on the last occasion which the complainant said that she went again and this time the accused must have been asleep and she then made her escape. If you are not satisfied that the accused did actually detain her himself, you must acquit him, but if you are satisfied beyond reasonable doubt that she was detained by the accused, you have to be satisfied that he intended to hold her for an advantage to himself. Now it is sufficient, as far as advantage is concerned, if the person who had the intention of achieving some advantage to himself by detaining that person. The advantage sought need not be financial. It is sufficient if it is the nature of a psychological gratification, and my understanding of the way the Crown has put this is that there was a deliberate course of conduct, which the Crown said the only inference which you could draw was to humiliate and debase that woman. That is my understanding of the way the Crown puts its case, and if the Crown has proved that beyond reasonable doubt, well then that would be sufficient to say that he had the intention of holding her for his advantage. Members of the jury, the question then becomes a question of intent. The Crown must prove that he intended that beyond reasonable doubt, and in this particular case, there was evidence of alcohol being consumed not only by the complainant - I refer to the victim as the complainant - but by the accused himself. The accused has given evidence that he, on that morning, had gone to the TAB and placed some bets, then he went to the Griffith Hotel where he drank, I think he said, about three or four schooners. He then said he purchased - I would call it a carton of stubbies which I understand contains twenty-four bottles, I think if we accept that, and he said that he consumed approximately half - about half himself, so that would be twelve stubbies over a period of time on top of the three or four drinks that he had at that particular time. Well members of the jury, one of the matters that you will have to consider on the question of the intention to hold this lady for his advantage is the effect upon the accused of the alcohol which he said he has consumed. As a matter of law, evidence of self-induced intoxication by drink is relevant in determining whether the accused had formed the requisite intent to detain her for his advantage. It is for the Crown to satisfy you beyond reasonable doubt that the accused had the intention to detain her for his advantage, notwithstanding the evidence relating to the ingestion by the accused of the alcohol. If the Crown has failed to satisfy you, then the accused must be acquitted of that particular charge. In certain circumstances, an intoxicated man may act without forming any intention at all. On the other hand, a man may be considerably affected by alcohol and yet still be able to act intentionally. The fact that a man's judgment was affected so that he acts in a different way from the way he would normally act if he were sober does not necessarily mean that he was not acting intentionally. For example, if a man took a gun from his pocket and pointed it at a bank teller and demanded money, the fact that he was intoxicated at the time may not cause you to doubt that he was acting intentionally. But here of course, on the whole of the evidence, you will consider all the evidence on the point about what the accused said of the ingestion of alcohol, and there was certainly a number of stubbies which were found in the Sulo bin. There is the evidence of the accused as to how much he drank. There is evidence that he drank earlier in the day. So members of the jury, that is a matter which the Crown has to satisfy you beyond reasonable doubt, that he was acting intentionally, notwithstanding the ingestion of the alcohol."

114 The summing-up reveals that there were significant issues as to whether Ms Cummins was detained for the appellant's advantage and the appellant's intention. It was not easy to see what advantage the appellant was going to obtain by detaining Ms Cummins. She was or had been Hunt's girl friend.

115As to the second count the judge explained to the jury the elements of that charge in conventional and unobjectionable terms. He isolated the issues as depending upon this evidence of Ms Cummins "He [the appellant] helped Robert [Hunt] pull her skirt and knickers off." The judge reminded the jury of the appellant's denial in his record of interview and in his evidence of this allegation and the appellant's further denial that he had ever seen Ms Cummins naked. The judge also directed the jury that "mere presence by a person when another person is committing a crime is not sufficient to constitute taking part in that particular crime." The judge added "it is not the law that the person present should do something to stop it happening."

116 The judge reviewed the evidence at some length, being careful to refer to those sections which favoured the appellant. The judge reminded the jury of the occasions on which the appellant had told Hunt to stop and calm down and when Hunt pushed the appellant away, or told him to stay out of the struggle between them (Hunt and Ms Cummins). The judge also referred to the appellant's decisive intervention at a later stage in the evening when he told Hunt that there was to be no more ropes and no more knives and took Ms Cummins to his room.

117 Although the appellant's credit was challenged in cross-examination no direction was given as to lies.

118 The appellant submitted that for him to be acquitted of the charge of detaining her with intent to hold her for his advantage, the jury must have rejected her evidence on that issue. It was submitted that no rational distinction could be drawn as to the acceptability of the evidence on the aggravated indecent assault count and the first count. Accordingly, a verdict of acquittal should be entered on the aggravated indecent assault count. I am unable to agree with these submissions.

119 It does not follow that the jury rejected the evidence which Ms Cummins gave on the first count. It was far from clear what advantage the appellant, as distinct from Hunt, hoped to gain from detaining Ms Cummins. The jury were instructed that they had to be satisfied beyond reasonable doubt that the appellant intended to detain her for his own advantage. The jury were told that the advantage alleged by the Crown was a deliberate course of conduct to humiliate and debase Ms Cummins. The jury may well have thought that the Crown case on Count 1 was nebulous and that it did not apply to the appellant. They may well not have been satisfied that there was an advantage to the appellant. They may well have also attached weight to the appellant's state of intoxication. The verdict of not guilty on Count 1 did not mean necessarily that the jury rejected the evidence of Ms Cummins. Having regard to the way the matter was left to the jury it is more likely that they were not satisfied that the appellant intended to detain her for his advantage. It is not to the point that the count could have been framed differently and the matter left to the jury differently.

120The appellant did not advance any other argument in support of this ground of appeal. Nevertheless, I have examined the evidentiary materials. On these it was open to the jury, acting reasonably, to convict the appellant on the second count.

121 I propose that the appeal against conviction be dismissed.

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