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 QCA 34
SUPREME COURT OF QUEENSLAND
R v Etheridge  QCA 34
ETHERIDGE, Noa Ronnie
CA No 99 of 2019
SC No 17 of 2019
Court of Appeal
Appeal against Conviction
Supreme Court at Rockhampton – Date of Conviction: 19 March 2019 (Crow J)
3 March 2020
17 February 2020
Sofronoff P and Fraser and Morrison JJA
CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – EFFECT OF MISDIRECTION OR NON-DIRECTION – where the appellant was charged with 10 counts, including attempted murder, and in the alternative malicious act with intent or grievous bodily harm, as well as stealing and burglary – where the appellant was found guilty of attempted murder – where the appellant had entered the home of the complainant and struck her in the head with a hammer – where the appellant was addled with drugs and has no recollection of the offences – where the complainant had made a statement to the police while in hospital that she now does not recall – where this statement revealed that the appellant threatened the complainant with further violence when demanding the complainant’s wallet and keys – where this statement speaks to the appellant’s state of mind regarding their intention to rob with actual violence or to kill the complainant – where this statement was admitted as a prior inconsistent statement – where the trial judge directed the jury about the use of this out of court statement – where defence counsel had objected to this direction – whether the direction created a false issue for the jury to consider
Criminal Code (Qld), s 306, s 620
Evidence Act 1977 (Qld), s 18, s 19, s 101, s 102
Alford v Magee (1952) 85 CLR 437;  HCA 3, cited
Driscoll v The Queen (1977) 137 CLR 517;  HCA 43, cited
Morris v The Queen (1987) 163 CLR 454;  HCA 50, distinguished
R v Flynn  QCA 254, cited
R v Pearson  Qd R 471, cited
R v Perera  2 Qd R 431, distinguished
M J Copley QC for the appellant
J A Wooldridge for the respondent
Legal Aid Queensland for the appellant
Director of Public Prosecutions (Queensland) for the respondent
- SOFRONOFF P: On 9 January 2018 the appellant entered the home of Ms Kerry Gittins, struck her on the head with a hammer using “considerable” force, stole her wallet and car keys and then drove off in her car. As a result he was charged with 10 counts on an indictment. He pleaded guilty to seven of these counts. However, he pleaded not guilty to a charge of attempted murder and to the alternative charge of doing grievous bodily harm with intent. He entered a plea of guilty to doing unlawful grievous bodily harm to her but the Crown did not accept this plea. At the ensuing trial the only issue was whether the Crown had proved beyond a reasonable doubt that the appellant had intended to kill Ms Gittins or, alternatively, whether he intended to do grievous bodily harm to her. The jury found the appellant guilty of attempted murder, so they must have been satisfied that the appellant had intended to kill.
- None of the evidence relevant to this appeal was in contest. Ms Gittins’ recollection of the assault upon her was understandably patchy. However, it was clear enough that on the morning of 9 January 2018 the appellant came to Ms Gittins’ front door wearing shorts and was splattered with mud. He said that he had been fishing and that his son had hurt himself. He said that his son needed a drink of water. Ms Gittins went to the kitchen and brought back a small bottle of water. She then felt “immense pain”. She felt paralysed. In her evidence at the trial, her next recollection was being treated by doctors at the hospital.
- However, while she was at the hospital, Constable Brendan Keable spoke to her. At the trial Ms Gittins could not remember this. In cross-examination, the appellant’s counsel asked whether she could recall saying to Constable Keable that after the appellant had hit her several times with the hammer she sat on a couch and the appellant then threatened her “further with the hammer and [demanded]… her wallet and car keys”. Ms Gittins could not remember.
- Constable Keable gave evidence.
- In cross examination it was put to Constable Keable that his statement contained the following passage:
“Gittins stated to me that she had been home alone. She had heard a knock at the door and had answered it. She recalled the person at the door to be a man and that he had mud up his legs. Gittins stated this man had asked for a bottle of water for his child. She had walked to the fridge and on returning had observed him in the front doorway holding a hammer. Gittins then stated that she was struck several times before she sat on the couch. While she was on the couch the male threatened her further with a hammer, demanding her wallet and car keys. The male then decamped in her vehicle and she drove the ATV to her daughter, Lydia Withers’ residence.”
- The beating that the appellant inflicted on Ms Gittins resulted in very serious injuries. The hammer had caused depressed fractures on both sides of her skull. That is to say, the hammer penetrated to the brain matter itself. On the left side of her head her cheekbone was fractured by way of multiple breaks in multiple places at different angles. She lost several teeth. Obviously, she underwent surgery. The neurosurgeon who attended to her said that the force used was “considerable”.
- The appellant gave evidence. He said he was suffering from a serious drug addiction at the time of the offences. On that day he had taken between eight and 12 Xanax pills, four LSD “tabs” and “eight points” of methamphetamines – all washed down with two cans of rum mixed drinks. He said that the effect of Xanax was to cause memory loss and to make him “feel good … blurs everything out … blurs your day out on it”. The LSD created visions of spiders on the ground and made “everything … blurry and moved”. The methamphetamine kept him “wide awake and on edge”. Having used methamphetamine for many days up to that point, the effect of this latest dose was to make him “feel like shitter really”. He said that he was trying to kill himself.
- He had no recollection of his encounter with Ms Gittins but in examination-in-chief he accepted that he had done all of the things revealed in the evidence. In cross-examination he asserted that he “had no intentions of hurting anybody”. He candidly admitted that, notwithstanding the drugs that he had taken, he was capable of forming an intention to do things on that morning and accepted that the drugs “did not prevent [him] forming the intention to kill Ms Gittins”.
- It is convenient to put to one side the evidence about the conversation between Constable Keable and Ms Gittins. The rest of the evidence amounted to a strong circumstantial case that the appellant intended to kill Ms Gittins when he hit her with the hammer or, at least, that he had intended to cause her grievous bodily harm. He had entered Ms Gittins’s home while armed with a hammer and had then hit her head and face at least twice, but probably more than twice, and had used “considerable” force in doing so. The effect of this savagery has already been described.
- The defence case was that the Crown had failed to exclude a reasonable hypothesis consistent with innocence, namely that the appellant had assaulted Ms Gittins with the intention of robbing her but with no intention of killing her. He attacked her to disable her so that he could steal what he wished to steal. As his counsel put it in his address to the jury:
“Now, the simple and clear rational hypothesis is that the [appellant] intended to rob the victim. To steal using violence, if necessary. And those consequences – those consequences, terrible though they are, were an incident of that significant crime. That is, the crime of robbery. The crime to steal holds an intent. But is a lesser intent than what the Crown urge upon you.
… the evidence assessed rationally, and without recourse to a purely emotional response, the evidence is solely consistent with that lesser intent. To steal and effect that steal.”
- By virtue of section 101 of the Evidence Act 1977 (Qld), a person’s prior inconsistent statement becomes admissible as evidence of any facts stated in it of which direct oral evidence by the person would be admissible. It follows that the evidence of Constable Keable about what Ms Gittins had related to him became evidence of the conversation between Ms Gittins and the appellant.
- In the usual kind of case in which a prior inconsistent statement is deployed, the purpose of that deployment is to attack the credit of the witness who made that statement. The aim is to destroy the reliability of the evidence given in court by demonstrating that the witness was prepared to give a different version of events on a prior occasion.
- In such cases there is a real contest between the parties as to whether one or the other of the two statements should be accepted. That was not so in the present case. Neither party suggested that there was any reason to doubt that Ms Gittins said the words attributed to her or the accuracy of that statement. It was common ground that her subsequent loss of memory about the conversation was real but that she had a clear recollection of what had happened when speaking to Constable Keable.
- Ms Gittins’ description of events to Constable Keable was one of the circumstances in a circumstantial case. The defence placed heavy reliance upon it. It was put to the jury that the appellant’s demand to Ms Gittins to hand over her wallet and car keys, at the same time threatening her “further with the hammer” constituted evidence of intention only to rob Ms Gittins. The argument was put as follows:
“You see, [it is the] prosecution which must exclude that hypothesis beyond reasonable doubt. It must exclude that circumstantial evidence that is consistent with that lesser alternative intent and exclude that beyond reasonable doubt.
So what do I ask you to consider when considering the central issue? What evidence is there, as to what was going through his mind? There’s his actions, certainly. But what you do have, as a window into his intent at the time, is a demand made to the complainant, and we have that through Officer Keable.”
- Counsel then recited Constable Keable’s evidence about his conversation with Ms Gittins and continued:
“So we have a point where there’s an assault and a demand, where the defendant had the means, if he had murderous intent to kill Ms Gittins. He does not. At that point, after the demand, and her compliance, you would think, he must know she was still alive. And he desists.
That defeats the Crown assertion that he had an intent to kill.”
- On the defence case, the attack followed immediately by a demand to hand over her property was inconsistent with an intention to kill and was consistent only with an intention to rob with actual violence.
- Therefore, the conversation between the appellant and Ms Gittins was an important part of that defence case. In the absence of that piece of evidence the jury would be left to consider only what could be inferred about intention from the other evidence. None of that other evidence was helpful.
- The Crown submitted that this other evidence showed that the appellant was capable of conceiving a lie in order to persuade Ms Gittins to engage with him. When he left the scene he was able to drive Ms Gittins’ car. Indeed, he pulled into a service station where he asked for cigarettes and a lighter and then left without paying. The prosecutor pointed to the absence from the appellant’s evidence on recollection about his actual intention. Finally, there was the evidence that he came with a hammer, intending to use it, and evidence about the force of the attack, involving multiple blows, which was apt to kill.
- The Crown submitted that the fact that the appellant did not persist in his attack in order to kill Ms Gittins was only because he must have thought that he had disabled her sufficiently.
- This was a case that was capable of displacing the hypothesis urged upon the jury by the defence, but particularly if the evidence about the conversation was not accepted.
- The learned trial judge, Crow J, furnished the parties with a draft of his proposed summing up in which his Honour dealt with the evidence of Constable Keable as follows:
“The defence relies on a statement by Mrs [Gittins] to Police constable Keable at the Rockhampton Base Hospital on the morning of 9 January 2019 that Mrs [Gittins] said:
‘Gittins stated to me that she had been home alone. She had heard a knock at the door and had answered it. She recalled the person at the door to be a man and that he had mud up his legs. Gittins stated this man had asked for a bottle of water for his child. She had walked to the fridge and on returning had observed him in the front doorway holding a hammer. Gittins then stated that she was struck several times before she sat on the couch. While she was on the couch the male threatened her further with a hammer, demanding her wallet and car keys. The male then decamped in her vehicle and she drove the ATV to her daughter, Lydia Withers’ residence.’
Mrs [Gittins] gave evidence on oath before you that she had no recall at of the statement being made. This is understandable given her injury.
The previous statement made by Mrs [Gittins] is evidence of any fact stated in it. It is a question for you whether you accept the evidence and, if so, what weight you attach to it.
In estimating the weight that can be attached to the statement, have regard to all the circumstances from which an inference can reasonably be drawn as to its accuracy or otherwise.
You should consider whether the statement was made around about the same time was the occurrence of the facts to which it relates.
Bear in mind both that the statement was not given on oath and that you did not have the advantage of seeing and hearing the witness make the statement, as you do have when witnesses give their evidence before you.
In dealing with a statement such as this - made out of court - greater care is needed. The statement is not in the same category as sworn evidence before you. It is a matter for you as to how much weight you put on the statement.”
- Mr Hoare of counsel, who appeared for the appellant at the trial, objected to this direction. He submitted that the previous statement made by Ms Gittins was evidence of the facts stated in it and that nothing further needed to be said about it. He submitted:
“The protections in the direction are normally for the defendant.”
- His Honour directed Mr Hoare’s attention to section 101 and section 102 of the Evidence Act 1977 (Qld). Section 102 provides as follows:
“102 Weight to be attached to evidence
In estimating the weight (if any) to be attached to a statement rendered admissible as evidence by this part, regard shall be had to all the circumstances from which an inference can reasonably be drawn as to the accuracy or otherwise of the statement, including—
- (a)the question whether or not the statement was made, or the information recorded in it was supplied, contemporaneously with the occurrence or existence of the facts to which the statement or information relates; and
- (b)the question whether or not the maker of the statement, or the supplier of the information recorded in it, had any incentive to conceal or misrepresent the facts.”
- His Honour observed that section 102 refers to the tribunal of fact “estimating the weight” to be attached to a prior statement. His Honour expressed a concern about leaving that prior statement for the jury’s consideration without saying that its acceptance was a matter they had to decide.
- The prosecutor’s response was to submit that although he was “indifferent” as to the content of the directions on this point, section 102 “does lend statutory support to the notion that somebody working out how to use this evidence might have regard to the matters that your Honour has mentioned”. That submission was incorrect. Section 102 speaks about matters relevant to the question of weight. It says nothing about the significance of such a statement. That will depend upon the circumstances of the case in which it is tendered.
- His Honour’s understanding of Mr Hoare’s final position was:
“HIS HONOUR: So your view is – your submission is, rather, it’s simply [not] necessary to include that?
DEFENCE COUNSEL: Yes.”
- In this appeal the respondent submitted that defence counsel withdrew his objection to the proposed direction. That submission must be rejected. Counsel showed courteous diffidence to several of his Honour’s remarks but he never resiled from his position that the direction should not be given.
- The learned trial judge directed the jury in accordance with the draft he had furnished to counsel. But, in accordance with a submission by Mr Hoare, his Honour added the following:
“You can consider other items as well with respect to the content of the statement. That is, [the appellant] did in fact have mud upon him, that his – there was in fact blood on the couch. The appearance of Ms Gittins in the ATV vehicle is consistent with the statement, as is the fact that [the appellant] did decamp in her vehicle, and you will recall that Mrs Gittins’ wallet was found in that vehicle.”
- The appellant relies upon a single ground of appeal, namely that the learned trial judge erred in directing the jury about the use of evidence of the prior statement. In his written outline of submissions the appellant directed attention to his Honour’s direction that when “dealing with a statement such as this made out of court, greater care is needed”. He submits that direction wrongly detracted from the weight that the jury might otherwise have been prepared to give the statement when considering the appellant’s state of mind.
- This was a trial which presented the jury with a single issue for its determination. That issue was the appellant’s state of mind when he attacked Ms Gittins. By the conclusion of the evidence, it was apparent that the defence challenged none of the Crown evidence. This meant that the question for the jury came down to whether it could be satisfied beyond a reasonable doubt that the only rational inference to be drawn from the unchallenged and uncontested evidence was that the appellant had murderous intent or, at least, an intent to do grievous bodily harm.
- Alford v Magee has often been cited and should really constitute the preface to the Benchbook. The relevant statement from that case is as follows:
“And it may be recalled that the late Sir Leo Cussen insisted always most strongly that it was of little use to explain the law to the jury in general terms and then leave it to them to apply the law to the case before them. He held that the law should be given to the jury not merely with reference to the facts of the particular case but with an explanation of how it applied to the facts of the particular case. He held that the only law which it was necessary for them to know was so much as must guide them to a decision on the real issue or issues in the case, and that the judge was charged with, and bound to accept, the responsibility of deciding what are the real issues in the particular case, and of telling the jury, in the light of the law, what those issues are. If the case were a criminal case, and the charge were of larceny, and the only real issue were as to the asportavit, probably no judge would dream of instructing the jury on the general law of larceny. He would simply tell them that if the accused did a particular act, he was guilty of larceny, and that, if he did not do that particular act, he was not guilty of larceny. It may be that the issues in a civil case tend, generally speaking, to be more complex than in a criminal case. But the same principle is applicable, and looking at the matter from a practical point of view, the real issues will generally narrow themselves down to an area readily dealt with in accordance with Sir Leo Cussen’s great guiding rule.”
- As Fraser JA said in R v Flynn:
“[Section 102] therefore forms one aspect of the law applicable in the trial which the trial judge must bear in mind, to the extent that it is relevant in the particular case, when formulating directions to the jury. The trial judge’s fundamental obligation in that respect, expressed in s 620(1) of the Criminal Code, is “to instruct the jury as to the law applicable to the case, with such observations upon the evidence as the court thinks fit to make.” Fulfilment of that obligation requires trial judges to identify the real issues in the case and the relevant law and explain to the jury how that law applies to the facts which are relevant to the issues.”
- The direction given in this case was based upon draft Direction No 46.1 in the Benchbook which is headed “Prior Inconsistent Statements”. A footnote to this title states that it is a direction that deals with “statements admitted under s 17(1) (hostile witness)”. The footnote goes on to say that the draft direction can be “adapted for prior inconsistent statements admitted under ss 18 and 19”.
- One of the directions that the learned trial judge gave was:
“In estimating the weight that can be attached to the statement, have regard to all the circumstances from which an inference can reasonably be drawn as to its accuracy.”
- That direction is based upon the third paragraph of draft Direction No 46.1. A footnote to that draft paragraph states that it “takes up the matters referred to in R v Perera  2 Qd R 431”.
- R v Perera was one such case which concerned a contested prior inconsistent statement. The Crown case depended in part upon admissions allegedly made by the appellant to police. His solicitor gave evidence that when he attended the police station after his client’s arrest a police officer told him that the appellant had made no admissions. At the trial the same police officer denied making that statement. Consequently, this was a case in which a witness, the police officer, was said to have made a prior statement inconsistent with his evidence. It was in that context that ss 18, 101 and 102 of the Evidence Act became relevant. In the course of dealing with the directions given by the trial judge in that case, Williams J said:
“It may be right to inform [the jury] that acceptance of the inconsistent statement may be used to discredit the witness who has made the inconsistent statements in question, and where relevant the jury should be given directions which conform to the provisions of ss. 101 and 102 of the Evidence Act…
It is correct that evidence made admissible by s. 101 is not conclusive or irrefutable, and it is probably desirable to make that clear to the jury. Finally on this topic it should be noted that s. 102 itself implies that in many (perhaps even most) situations evidence of the type in question may be regarded as having lesser weight or significance than other evidence. Provided the jury are directed as to the appropriate factors to be considered in determining weight, there is no harm in my view in telling them that they may conclude that a statement admitted pursuant to s. 101 has less significance than other evidence relevant to the fact in issue.”
- That case and the draft directions to which it gave rise have nothing to do with the circumstances of the present case. In Perera whether the prior inconsistent statement was made was a hotly contested issue. Its truth was also put in issue. The jury had to consider both of those matters before it could rely upon the statement. That is not this case. In the present case the making of the statement and its truth were not in issue. In accordance with what was said in Alford, it was unnecessary to give the jury any directions of the kind that were given in Perera. In this case the giving of the direction created a false issue.
- Moreover, it is often the Crown that wishes to have the jury accept the fact that a prior inconsistent statement was made and that its contents were true. R v Pearson was such a case. Morris v The Queen was another such case. In Morris, in his original statement and in his evidence at the committal proceedings the witness said that he had seen the appellant do the act that constituted the offence. In his evidence at the trial he said he saw nothing. The Crown sought to rely upon the prior inconsistent statement as evidence of the truth of the facts contained in it. The onus was upon the Crown to prove the appellant’s guilt. The Crown therefore had to satisfy the jury that the prior statement was true. In that context it is obvious that the jury had to be told to be careful about whether or not to accept the truth of the out of court statement. In Morris, Deane, Toohey and Gaudron JJ referred to an earlier dictum of Gibbs J in Driscoll v The Queen that “[i]n some cases the circumstances might be such that it would be highly desirable, if not necessary, for the judge to warn the jury against accepting the evidence of the witness”. In that context, Deane, Toohey and Gaudron JJ said that the receipt into evidence of a prior inconsistent statement as evidence of the facts contained in it “poses particular problems in a criminal trial, especially where the prior inconsistent statement is more damaging to an accused person than is the testimony of the witness”.
- None of these issues arose in the present case and none of these kinds of directions were called for.
- The content of Ms Gittins’ statement to Constable Keable constituted one of the few facts proved by the evidence which was capable of giving rise to an inference consistent with innocence. The effect of the direction was to present to the jury the option of rejecting that evidence although (for good reasons) neither party had suggested any doubt about its truth.
- A reasonable jury, properly directed, could have been satisfied that the appellant had intended to kill Ms Gittins. However, that outcome was hardly certain. Although the appellant’s capacity to form an intention was not really in doubt because of his own evidence, there was force in the defence submissions that this man, who was addled by the drugs he had taken, had beaten Ms Gittins only to disable her. His threatening her with the hammer when he made his demands to her (rather than killing her) was some evidence of a lack of intention to kill.
- The direction that was given to the jury might well have resulted in the jury putting aside that statement, leaving for consideration only the remaining uncontested evidence, which was unhelpful to the appellant.
- The jury appears not to have found this to be an easy case to decide. After retiring to consider its verdict at 3.45 pm on Monday 18 March 2019, the jury resumed its deliberations on the following day. At 12.40 pm on that day the jury delivered a note to the learned trial judge stating that it was deadlocked and also:
“Need clarification on difference between GBH and attempted murder.”
- Crow J then directed about the elements of the two offences. His Honour reminded the jury that intention can be inferred from the circumstances and from the conduct of the defendant before, at the time of, or after he did the specific act which caused the injuries. His Honour said:
“The concept of attempted murder is really in a nutshell that someone unlawfully attacks another person intending to kill them and using a means capable of doing so but fails.”
- His Honour then reminded the jury of the prosecution case:
“The case against the [appellant] is that intending to kill Mrs Gittins, [the appellant] struck Mrs Gittins’ head with a hammer at least twice. You must bear in mind there is evidence suggesting the attack was wider than just two blows to the temple. That is, there was the [fracture] of the cheekbone and loss of four teeth, as well as other injuries.”
- His Honour did not remind the jury about the defence case. Nor did his Honour refer to the significance to the defence case of Ms Gittins’ statement to Constable Keable.
- The jury retired again at 12.57 pm and returned with a verdict at 2.52 pm that day.
- It is not possible to conclude that, had the jury not been directed in the way it was, it must have convicted anyway.
- For these reasons the verdict of guilty on Count 5 should be set aside and a new trial is ordered for Counts 5 and 6.
- FRASER JA: I agree with the reasons for judgment of Sofronoff P and the orders proposed by his Honour.
- MORRISON JA: I have read the reasons of Sofronoff P and agree with those reasons and the orders his Honour proposes.
 (1952) 85 CLR 437 at 466 per Dixon, Williams, Webb, Fullagar and Kitto JJ; see also Fingleton v The Queen (2005) 227 CLR 166 at 196-197.
  QCA 254 at .
 Alford v Magee supra at 466; Fingleton v The Queen, supra.
 R v Perera  2 Qd R 431 at 437-438.
  Qd R 471.
 (1987) 163 CLR 454.
 (1977) 137 CLR 517 at 536.
 supra at 468-469.
|Event||Citation or File||Date||Notes|
|Primary Judgment||SC17/19 (No Citation)||19 Mar 2019||Date of Conviction (Crow J).|
|Appeal Determined (QCA)|| QCA 34||03 Mar 2020||Appeal against conviction allowed; verdict on count 5 set aside and retrial on counts 5 and 6 ordered: Sofronoff P and Fraser and Morrison JJA.|