Here, the sole issue on appeal turned on the trial judge’s directions to the jury in relation to evidence of a police officer as to a conversation he had with the complainant about a conversation between the complainant and the appellant. That statement was admitted into evidence as a prior inconsistent statement. The content of the statement was one of few facts consistent with the appellant’s innocence. The trial judge directed the jury to consider the weight and accuracy of the statement. In setting aside the conviction the Court of Appeal concluded that the direction was not properly given as it gave the jury the option of rejecting the statement when its truth had not been called into question by either party.
Sofronoff P and Fraser and Morrison JJA
17 February 2020
The appellant was charged with 10 counts before the Supreme Court at Rockhampton and a trial proceeded in respect of a count of attempted murder alternatively doing grievous bodily harm with intent. The appellant was convicted of attempted murder and appealed his conviction on the sole basis of a misdirection in respect of a prior statement of the complainant. President Sofronoff wrote the leading judgment (with whom Fraser and Morrison JJA agreed) and allowed the appeal ordering a retrial in respect of the count of attempted murder and its alternative.
The appellant was accused of invading the complainant’s home and striking her in the head with a hammer. The Crown case was that the appellant had formed an intention to kill her at that time and the defence argued that the reasonable hypothesis consistent with innocence, namely an intention to rob the complainant and not kill her had not been excluded by the Crown. –.
The piece of evidence which the appeal concerned was a statement by the complainant made to a Police officer while she was in hospital, that after being struck by the appellant, property had been demanded of her. . The appellant stated in evidence that he had no recollection of making those statements and neither did the complainant in evidence and as such they were admitted into evidence as prior inconsistent statements. . Unusually, the contents of the statements of the complainant were relied on by defence not to attack her credit but to found the rational hypothesis consistent with innocence.
President Sofronoff was of the view that the direction made in respect of those statements was not sufficiently tailored to the circumstances of the case in that it presented to the jury the option of rejecting the particular inconsistent statements where their truth had not been called into question by either party. –. The appellant had therefore lost a fair chance of acquittal in relation to the count of attempted murder.
J Feely of Counsel