Citation: Col v R [2013] NSWCCA 302
Court: NSW Court of Criminal Appeal
Date: 3 December 2013
Judge(s): Latham J (primary judgment), Rothman J, Davies J
Background
The appellant was convicted after a District Court trial of causing grievous bodily harm with intent, contrary to s 33(1)(b) of the Crimes Act 1990. The offence arose from an incident on 7 August 2009 in which the appellant, following a domestic argument, poured methylated spirits onto the bed where his de facto partner lay and ignited it with a cigarette lighter. The victim sustained serious burns requiring multiple surgeries and a prolonged intensive care admission.
The victim had provided a detailed statement to police over three sessions in August and September 2009, consistent with accounts she gave to family members and friends in the days following the incident. Shortly before the trial in July 2011, she retracted that statement and instead gave evidence at trial that the fire had been an accident, attributing the ignition to the appellant accidentally lighting his cigarette near the methylated spirits.
The Crown relied heavily on the victim's earlier out-of-court statements, the evidence of family, friends, and ambulance officers to whom she had spoken in the aftermath, as well as the content of triple-zero calls in which the appellant urged the victim not to tell police what had happened.
Legal Issues
- Whether the trial judge erred in admitting the victim's police statement into evidence, given its subsequent retraction
- Whether the use of that prior inconsistent statement resulted in a miscarriage of justice
- Whether evidence of the appellant's conduct said to demonstrate consciousness of guilt (including statements on the triple-zero calls) was wrongly admitted or used
- Whether a so-called "Zoneff direction" was required, directing the jury on how to use consciousness-of-guilt evidence
- Whether the verdict was unreasonable or unsupported by the evidence
Decision
Admission of the police statement: The Court held that the trial judge did not err in admitting the victim's police statement. The statement had been made over three sessions, was detailed and internally consistent, and was corroborated by independent evidence including the A4 pages the victim wrote from her hospital bed, the accounts she gave to multiple friends and family members, and the ambulance officers' evidence. The Court found no basis to exclude it.
Miscarriage of justice from use of the statement: The Court rejected this ground. The prior statements were not only admissible but were the central evidence against the appellant. Their use was appropriate given the volume of consistent corroborating material. The jury was entitled to accept those earlier accounts over the victim's trial evidence.
Consciousness-of-guilt evidence and the Zoneff direction: The triple-zero calls contained statements by the appellant urging the victim not to tell police what had happened. The Court considered whether a Zoneff direction, which cautions a jury against treating consciousness-of-guilt evidence as conclusive or disproportionately significant, was required. The Court found no substantial miscarriage of justice arose from its absence in the circumstances, given the strength of the other evidence.
Unreasonable verdict: The Court applied the test from M v The Queen and its progeny, requiring the appellate court to examine the evidence and determine whether a reasonable jury could be satisfied of guilt beyond reasonable doubt. Rothman J, writing separately, noted that the earlier out-of-court statements were mutually consistent and consistent with independent evidence, and that the alternative innocent account was in significant respects inconsistent with that evidence. All three judges concluded the verdict was not unreasonable, and the appeal was dismissed.
Orders Made
• The appeal against conviction be dismissed
Key Takeaways
- In dismissing the appeal, the Court of Criminal Appeal confirmed that a prior inconsistent statement made to police by a complainant who later retracts can properly form the basis of a conviction, particularly where it is corroborated by multiple independent accounts.
- A Zoneff direction, cautioning the jury on consciousness-of-guilt evidence, is not automatically required whenever such evidence is led; its absence will not constitute a miscarriage of justice where the overall evidence strongly supports the verdict.
- Where a complainant in a domestic violence matter retracts at trial, the totality of their earlier communications, including written notes, verbal accounts to family and friends, and statements to emergency responders, may collectively satisfy a jury of guilt to the required standard.
- The test for an unreasonable verdict requires the appellate court to assess whether any reasonable jury could have reached the same conclusion, while giving appropriate weight to the jury's advantage in seeing and hearing witnesses firsthand.
- Conduct after an offence, such as urging a victim not to speak to police during an emergency call, is capable of constituting consciousness-of-guilt evidence properly placed before a jury.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1990 (NSW), s 33(1)(b)
- Evidence Act 1995 (NSW)
- Evidence Amendment Act 2007 (NSW)
Cases:
- Zoneff v The Queen [2000] HCA 28; 200 CLR 234
- M v The Queen [1994] HCA 63; 181 CLR 487
- Adam v The Queen [2001] HCA 57
- Baini v The Queen [2012] HCA 59; 246 CLR 469
- SKA v The Queen [2011] HCA 13; 243 CLR 400
- MFA v The Queen [2002] HCA 53; 213 CLR 606
- Libke v The Queen [2007] HCA 30; 230 CLR 559
- Gateley v The Queen [2007] HCA 55; 232 CLR 208
- Edwards v The Queen (1993) 178 CLR 193
- Brendon Singh v R [2011] NSWCCA 100
- R v NZ [2005] NSWCCA 278; 63 NSWLR 628
- R v XY [2013] NSWCCA 121
- Lee v R [2013] NSWCCA 68
- Butera v DPP (Vic) (1987) 164 CLR 180
- Driscoll v The Queen (1977) 137 CLR 517
- R v Heyde (1990) 20 NSWLR 234
- R v Aslett [2006] NSWCCA 49
- R v Fletcher [2005] NSWCCA 338
- R v Michael Anthony Ryan (No.7) [2012] NSWSC 1160; 218 A Crim R 384