R v Adcock

Here, the appellant, found guilty of one count of torture, one count of unlawful assault causing bodily harm and being armed with a weapon and in company with others, and one count of unlawfully detaining a person in a dwelling against their will, appealed against his conviction on two grounds:

1. the verdict was unreasonable or could not be supported having regard to the evidence; and
2. the learned trial judge erred in admitting the statement of a witness into evidence, causing a miscarriage of justice. [7].

The appellant had allegedly participated in an incident in which the complainant was held captive in a unit, tortured and assaulted over a period of 19 hours. The complainant was injured so extensively that it was some days before her eyes opened. [18]. There were three co-offenders, one of which the complainant identified as the appellant, albeit not in her initial police interview, but in her second police interview after prompting by a police officer. That was the basis for the first ground of appeal, with the appellant contending that the verdict was unreasonable because the complainant could not clearly identify him.

In relation to the second ground, a witness had provided a statement to the police after the offences occurred, but died prior to the trial commencing. [58]. As a consequence at trial, the appellant contended that the statement should not be admitted as evidence as it could not be tested in court, and nor was it reliable. The trial judge determined to admit the statement into evidence, with the appellant arguing that his discretion in allowing the statement to be admitted miscarried.

Ground one

In independently examining the identification evidence to determine whether it was open to the jury to be satisfied of the guilt of the convicted person on all or any counts, beyond reasonable doubt (see SKA v The Queen (2011) 243 CLR 400, at [20]–[22]), and Shepherd v The Queen (1990) 170 CLR 573) the contention that it was not open to the jury to be satisfied that the appellant was the assailant was rejected by the court.  [48]. Amongst other matters, the court relevantly noted that there was a considerable degree of consistency and particularity of the complainant’s evidence; [49] it was not only the complainant who offered evidence as to the identity of the assailant; [51] the complainant’s description of her male assailant reasonably matched the applicant; [52] and the jury was given “very strict” warnings against readily accepting the complainant’s identification evidence. [54].

Ground two

In addressing whether ground two was made out, the court provided the following useful guidelines with respect to exclusion on discretionary grounds under ss 98 or 130 of the Evidence Act:

1. “reliability” often will be the focus of consideration in deciding how to exercise the discretion, but it is not the only consideration;
2. “reliability” is used in its narrow sense to mean the reliability of the evidence to be admitted per se;
3. used in a broader sense, “reliability” refers to general issues affecting reliability;
4. section 98 goes beyond “reliability” and embraces exclusion in the interests of justice, and for reasons of unfairness or public policy; and
5. a statement, the content of which is manifestly unreliable in the narrow sense, may well be more safely and fairly left to a jury, than evidence the reliability of which is potentially affected by external factors less obvious and less capable of being explored. [70].

In circumstances where the “probative effect” and reliability of the statement were considered at trial, [73] the witness was not recounting a complicated or prolonged set of events but merely observations over a short period, [75] and lived at the particular unit where he identified the participants [83] the court took the view that the learned trial judge’s discretion did not miscarry. [72]. The court agreed that the correct approach was that the evidence in the statement should be left to the jury, with appropriate warnings as to the fact that cross-examination of the witness was not possible.  [84].

In the result the appeal was dismissed. [91].