New South Wales Court of Criminal Appeal CITATION : Regina v Michael TAYLOR [2003] NSWCCA 194 HEARING DATE(S) : 7/7/03 JUDGMENT DATE : 7 November 2003 JUDGMENT OF : Spigelman CJ at 1; Bell J at 2; Miles AJ at 183 DECISION : Appeal against conviction dismissed; Grant leave to appeal against the sentence, but dismiss the appeal CATCHWORDS : EVIDENCE - unfavourable witness - whether leave should be granted pursuant to s 38 of the Evidence Act in a case in which the witness does not recall the circumstances of making a statement to the police. EVIDENCE - admissibility of solicitor's file note containing instructions from a client as a business record under s 69(2) of the Evidence Act - The exercise of the s 135 discretion to exclude evidence tendered on behalf of an accused in criminal proceedings. CRIMINAL LAW- when proceedings for an offence are instituted for the purposes of the Crimes Self-Defence Amendment Act 2001. Whether re-arraignment on an indictment in all material respects the same as an earlier indictment amounts to the substitution of an indictment for s 20 of the Criminal Procedure Act 1986 Crimes Act 1900 (NSW) Crimes Amendment Self-Defence Act 2001 (NSW) Criminal Appeal Rules 1952 LEGISLATION CITED : Criminal Legislation Amendment (Sentencing) Act 1999 (NSW) Criminal Procedure Act 1986 (NSW) Director of Public Prosecutions Act 1986 (NSW) Evidence Act 1995 (NSW) Adam v The Queen (2001) 207 CLR 96 M v The Queen (1984) 181 CLR 487 Mackay v The Queen (1977) 136 CLR 465 Papakosmas v the Queen (1999) 196 CLR 297 Power v The Queen (1973) 131 CLR 623 Regina v Esposito (1998) 45 NSWLR 442 Regina v Fowler [2000] NSWCCA 142 Regina v Glasby (2000) 115 A Crim R 465 CASES CITED : R v Howard (1992) 29 NSWLR 242 R v Lockyer (1996) 89 A Crim R 547 Regina v Kneebone [1999] 47 NSWLR 450 Regina v Lozano (unreported) NSWCCA, 10 June 1997 R v Sepulveda [2003] NSWCCA 131 Regina v Simpson [2001] NSWCCA 534 Regina v Souleyman (1996) 40 NSWLR 712 Regina v Yates [2002] NSWCCA 520 Zecevic v Director of Public Prosecutions (Vic) (1987) 162 CLR 645 PARTIES : Michael Taylor (Appellant) Regina (Respondent) FILE NUMBER(S) : CCA 60098/03 COUNSEL : G Nicholson QC (Appellant) R Hulme SC (Respondent) SOLICITORS : DJ Humphreys (Appellant) SE O'Connor (Respondent) LOWER COURT Supreme Court JURISDICTION : LOWER COURT 70074/01 FILE NUMBER(S) : LOWER COURT Whealy J JUDICIAL OFFICER : IN THE COURT OF CRIMINAL APPEAL 60098/03 SPIGELMAN CJ BELL J MILES AJ Friday 7 November 2003 REGINA v Michael James TAYLOR Judgment 1 SPIGELMAN CJ: I agree with Bell J. 2 BELL J: On 25 March 2002 the appellant was arraigned before Whealy J (the Judge) on an indictment that charged him with the murder of Adam Scott at Prospect on 25 July 2000. He pleaded that he was not guilty. A jury was empanelled and he stood trial. On 9 May 2002 the jury returned a verdict of guilty. 3 The proceedings were adjourned to allow the appellant to lead evidence on sentence. On 21 November 2002 the appellant was sentenced to a term of imprisonment for eighteen years. The sentence was backdated to 12 September 2001 to reflect a period of pre-sentence custody. The sentence will expire on 11 September 2019. A non-parole period of fourteen years was specified. The first date upon which the appellant will be eligible for consideration of release on parole is 11 September 2015. 4 The appellant appeals against his conviction and seeks leave to appeal against the severity of the sentence imposed upon him. 5 The grounds of challenge to the conviction include that the verdict was unreasonable and cannot be supported by the evidence. In light of this ground (and the ground that challenges the grant of leave to the Crown to question the witness, Rebecca Mills, as though cross-examining her) it is necessary to refer to the evidence in some detail. The evidence 6 At the time of the events the appellant was aged twenty-four years and living at his parents' home at 41 Lloyd Street, Blacktown. He had been involved in a romantic relationship with Rebecca Mills (Mills) for several years. It was common for him to stay overnight with her at her home at 13 Indigo Way, Prospect, where she lived with her four year old son, Jesse. 7 In March 2000 Mills was burned accidentally while attending a solarium. This incident appears to have had a significant impact on her. She became depressed and was placed on anti-depressant medication. She abused the medication taking amounts in excess of those prescribed. At this time she was also consuming prohibited drugs including amphetamines and ecstasy. 8 In mid 2000 Mills decided to end her relationship with the appellant. On 25 June 2000 she threw a number of his belongings onto the front lawn of the Indigo Way premises, telling him to leave. Despite this episode the two continued to have frequent contact in the days that followed. 9 About a week prior to the separation Mills received a telephone call from the deceased. They had been acquainted some years earlier. The appellant and a friend of hers, Melissah Harris, were present when she took the call. After the call Mills started seeing the deceased from time to time. This was a source of distress to the appellant. He believed that the deceased was a heroin user who was not a suitable person to be associating with Mills and Jesse. 10 Mills said in evidence that she and the appellant argued in the days following their separation. The appellant expressed his belief in the course of these arguments that she had broken off their relationship in order to be with the deceased. 11 The deceased was shot inside the premises at 13 Indigo Way at around 1:25 am on 25 July 2000. Mills telephoned the "000" emergency service at 1:26 am, telling the operator that the appellant (whom she described as her former boyfriend) had shot the deceased and that she was frightened that he might return. 12 At the trial Mills said that her memory for the events of the night was poor. She said that on the night of 24 July 2000 she had been at home and that the deceased telephoned her at about 7:30 or 8:00 pm. They talked for around an hour. She thought she heard something in her backyard. She looked outside and saw no one. She told the deceased about the noise and he said that he would come over. 13 The deceased parked his car near Woolworths, which was a little distance from Mills' home. Mills said that the deceased told her that he parked his car at the top of the street because people had told him he would die if he stayed at her house. She had let him into the home through the laundry door. They went to her bedroom and talked for about five minutes. During this time she saw a figure with long hair move past her bedroom window. The deceased told her that there was no one there and that she should go to sleep. She fell asleep and was awakened by the sound of loud knocking on the front door. She recognised the voice of the appellant. She got up and went to open the door, telling the deceased to stay in the bedroom. She turned on the lights on the front porch and the hall and opened the door, asking the appellant what he was doing there. He said that he wanted to talk. He was wearing a bulky jacket. As they stood in the hallway the deceased came out of the bedroom. The three of them went into the lounge room. 14 The appellant told the deceased to sit next to Mills. He referred to her as being the deceased's girlfriend. The deceased told the appellant that she was not his girlfriend. Mills was not able to recall precisely what was said but she remembered that their voices were loud. She had her eyes closed a lot of the time. The deceased was seated to her left and the appellant to her right. She remembered that the deceased smoked a cigarette. 15 Mills also recalled that a torch was next to the deceased. She had seen a gun on the floor in front of the appellant. She had seen the same gun in the appellant's bedroom a couple of years earlier. He kept it in a pillowcase under his bed. He had once asked her if he could keep the gun at her home, but she had never actually seen it in her house. 16 Mills said that she heard a loud bang and she saw the deceased on the floor with his face down. She was standing up and the appellant was in front of her. She did not see anything in the appellant's hands nor could she remember what he did. The next thing she recalled was shutting the front door and telephoning the emergency services. Mill's first statement 17 The Judge gave the Crown Prosecutor leave to question Mills as though cross-examining her on the contents of a statement made by her to the police in the early hours of 25 July 2000 (the first statement). Detective Senior Constable Gilbert attended the scene at 2:45 am. He commenced taking the first statement around 3:30am. 18 Mills did not have an independent recollection of the detail of the first statement. She had a vague recollection of some of the representations in it. She said that she had been in a state of shock at the time it was taken. Her memory was not revived by being reminded of many of the representations in it. The first statement was not in evidence. The video-recorded re-enactment of the shooting 19 On 26 July 2000 Mills took part in a video recorded re-enactment of the shooting. During the course of the re-enactment she was asked questions by Detective Senior Constable Parmeter. The leave given to the Crown Prosecutor to question Mills as though cross-examining her extended to questions about the things said by her during the re-enactment. Generally it was Mills' evidence that she had a vague recall of the re-enactment but that she was unable to remember many of the questions or the answers that she had given during it. Her memory was not revived by being shown the video recording because she had blocked out much of the night. The video recording of the re-enactment was in evidence. 20 In the course of the re-enactment Mils gave the following account: "Q. Now if you can just start by telling me basically what happened? A. Adam and I were asleep here and we would have been sleep probably since 10:30. The reason he got here, he came here calm to me, put me to sleep, cause I was worried cause I keep hearing things at the back and then I finally fell asleep. I have to get up at 20 past one. I heard banging on the door and the wall and window, out in the … outside and took me a while, and I, sort of got up and I said, I'll leave it, maybe he'll will go away. Then I heard him unlocking the door and I knew he didn't have any of my keys, he had it, so he had keys cut himself. And I went to the door and I told Adam to stay in my bedroom and I said, where did you get the keys from? He said, that doesn't matter now, I'll give them to you. I just want to talk. So, and he come in to the front door and Adam came into the hallway and then he said to us that he just wanted to talk like adults. Q. Okay. Where did that take place? A. In the hallway. Q. Can we just come down to the hallway and see if you can indicate where? A. Hhhmmm. Adam … Q. Just before you go on I'll just wait for the camera to come, operator to come out here. Can you just recommence what you're saying? A. Adam would have been standing near my door and I was standing at that door. Q. This door? A. Yep. And that's where Michael is unlocking the door. And he just said he wants to talk like adults. So he came in, and was standing there and I walk around to the lounge room and he saw that there was Adam, turn to Adam and said, we finally meet. Q. Where did he say that? A. There. He was standing there and Adam was still down in the hallway. He said, we've finally meet and he, oh, said hello, Adam said to Michael hello mate. And he said, alright we've got to talk and we all adjourned to the lounge room. Q. To the lounge room, we are just going to the lounge room now. Can you show us what happened in here? A. Adam was standing there, Michael was standing where you are and I sat down in the lounge and Michael kept telling Adam to sit next to his girlfriend, next to me. Q. Where were you? A. Sitting there. Q. Sitting there. And where in the room was Michael? A. Standing there. Q. Right here? Could be just where I am? Okay. A. And Adam would have been in front of the bullet hole. Q. And what happened after that? A. I noticed Michael had his jacket, where he has his gun in and I told him to take the gun out and Michael undid his jacket and took it out and I said, why you have that for? He said, to protect himself and he kept telling Adam to sit next to his girlfriend and Adam ask if he could light up a cigarette in the house. I said, and I was sitting down, I was getting nervous and I told them to both sit down. So both sa' down in there spots (sic), Michael sat there and Adam sat down over there. Michael kept saying he's sick of being lied to. And I said, well I both got you here, who's the one that's been coming around to my house, getting people to bang on my doors and call me slut and all that. And Michael turned around and said I'm not, I never lied to you, it wasn't me. And Adam had said, he had no reason to do it. And Michael just kept getting angrier and angrier and then he just sort of shot him. Stood up and shot him. Q. When you say stood up and shot him. Can I just ask you first of all, you said Michael was sitting down, was he sitting on a stool or on the ground, or ? A. On the ground. He had the gun sitting in his hands, straight down in front of him. Q. Okay, okay, and where was …? A. Would have been straight ahead of him and Adam, all he had was a Maglight sitting next to him. Q. He had a Maglight? A. Uuhhhmmm. Q. So when you're referring to Maglight, what are you talking about? A. Big torch? Q. Okay and what happened after that? A. He just shot him straight away. Q. Can you describe where they were in relation to each other when you said he shot him? A. It was straight in front of each other. Q. And can you describe to me how he did it? A. I wasn't really looking on the thing, I just seen him shoot 'im and then blood come out everywhere and Adam was looking straight at me. Q. In relation to each other, Michael and Adam, how close were they? A. Like close. What do you mean close? Q. When the … When the shot was fired where was er … where was Michael, what part of the room? A. He's still in the same part. It was more or less straight or curved a little bit. Q. So, would you agree that, that's from one side, from one wall essentially to the other wall? A. Uuhhmm. From a bit out. Q. What happened after that? A. I keep telling him, what are you doing? Stop this, and that and Adam was trying to move and he sort of like crawling like a snake, he couldn't even crawl, he was trying to get to the kitchen out of the way and Michael kept just looking at him, he reload the gun and went straight up to him and shot him, again. Q. When you say reloaded the gun, how did he do that? What was his physical action? A. He just got a bullet out of his jacket pocket, and I didn't see exactly how he did it. Q. Where was he standing when he? A. Up there. Q. Where? A. A bit further closer to the man up there. Yep. There. Q. Back here? In relation to … A. Adam hadn't move more … to where the guy where the camera is. Q. And where was er … where was Adam? A. He was lying down trying to get into the kitchen. Q. Okay, so in relation to where I'm standing … A. Mmm hmm. Q Where exactly would you say Adam was and what was his body position. A. He was sort of laying down … sort of laying down holding his … I don't know where he got shot but he was holding where he got shot, he was so in shock, he just kept staring down at it. Q. Okay. I'll just bring you over here. And can you tell me if you saw anything in this part of the room after he was crawling as you described? A. I dunno what he was trying to do, but I know he was trying to get out of the room. He looked so much in pain. And as soon as he reloaded and just walked up him and shot him again and turned to me and said, it's over now. Walked out the door. And he wasn't moving or breathing. And I went and slammed the door to make sure he couldn't get back in and I went and gone to the phone to the police. Q. How long between the first shot was fired and the second shot? A. I'm not sure, maybe, it felt like forever. I dunno, I dunno. It would have been under a minute, he did it so quickly." 21 During the course of the re-enactment Mills described the appellant as being a very jealous person. She said their relationship had reached the point where he considered he was the only person allowed to be near her. She said that he had made threats against, "Jason and Adam". Jason was her former husband and Adam was the deceased. 22 It was not suggested that the account Mills gave in the course of the re-enactment was inconsistent with the account she had given in the first statement. Mills' cross-examination 23 In the course of her cross-examination Mills said that two and a half weeks before the shooting the appellant had been at her house and that some people had come to the back of the house yelling abuse, calling her a slut and a thief. At the time she believed it was the deceased, but he later satisfied her that he had been at work at the time. 24 Mills said that at the time of her break-up with the appellant she was using speed every day, or every two days, and that she generally took ecstasy tablets on the weekends. She admitted to having hallucinations and to hearing voices over the twelve-month period prior to the shooting. Her drug use had increased following the shooting. She stopped using drugs about twelve months prior to giving evidence at the trial. 25 Mills agreed that on the afternoon of 24 July she had talked the appellant into buying her some "speed" from a man who distributed drugs near Woolworths. She had not expected him to return to her house later that night with the drugs. 26 Mills said that her memory as to the firing of the second shot was not refreshed by viewing the recording of the re-enactment. After hearing the first shot she said that she had no memory of seeing the appellant with the gun. Her only recall was of the appellant standing in front of her and of the sound of a loud bang. She said that she had not seen the appellant and the deceased struggling. She recalled that they had been arguing, but the argument had not become a physical one. The deceased had not struck the appellant on the forehead. After hearing the first shot Mills recalled that the deceased was holding himself and that there was blood on his chest and stomach. She heard another bang and remembered seeing the deceased near the kitchen door. 27 Mills said that she had not heard any sounds consistent with the presence of another person in the house. She denied that the appellant had stored the gun at her house. He had made an enquiry about leaving the gun there at the beginning of their relationship, but she had no recall of him actually bringing the gun into her house. She denied that the deceased had taken the gun from the roof prior to the shooting. She said that she had seen the deceased come from the bedroom into the lounge room and that he could not have gained access to the ceiling of the premises via the manhole. 28 Mills reiterated that she had opened the door to the appellant that night. She said that the screen door was open. She had heard the sound of keys rattling. She asked the appellant where he got the key and he threw a set of keys at her. She identified a set of keys that were later found near the lounge as the keys that the appellant had thrown. 29 Mills was cross-examined about accounts that she had given to Detective Parmeter some months after the shooting. She attended the police station on 20 December 2000 and 18 January 2001 and participated in interviews in which she retracted much of the account that she had given on 25 July and during the re-enactment. The interview on 18 January 2001 was conducted in the presence of her solicitor. It was recorded. Broadly, the version that Mills gave in the course of this interview was consistent with the case that the appellant made at trial. 30 In the interview held on 18 January 2001 Mills told the police about occasions prior to the shooting in which people had come to the Indigo Way premises and screamed at her. Both the appellant and the deceased had made threats towards each other in the month prior to the shooting. She said that the appellant did not bring the gun to her house on the night of the shooting. It had been stored at the Indigo Way premises for some months. On the night of 24 July the deceased had spoken to someone with long hair in the backyard of the house for some ten or fifteen minutes. He came back inside the house and told Mills not to worry. She subsequently saw the person with the long hair jump over the fence and walk away. This incident occurred before the appellant arrived at the premises. When the appellant knocked on the front door the deceased freaked out and asked her where the gun was. She told him that it was in the roof where it had always been. She went to the front door and the deceased went to get the gun (although she did not actually see him do so). She opened the front door for the appellant. He did not seem happy. This was because he had seen the deceased's car parked near Woolworths. She did not want to let him in to the house but he said that he wanted to talk. As he entered the house Mills saw the deceased walking back towards her bedroom. He had a torch in his hand. The appellant, the deceased and Mills went into the lounge room. The appellant and the deceased were talking about drugs and they ended up having a heated argument. The appellant told the deceased that if he had any drugs he should hand them over so that they could be disposed of. The appellant was handed something and he went to the sink and washed it away. The deceased smoked a cigarette. When the appellant returned to the lounge room he noticed that the deceased had his gun tucked under his jumper. He wanted it back. The deceased removed the gun from his jumper and held it in one hand with the Maglight in the other. The appellant approached the deceased and the two men started fighting over the gun. At some stage in the struggle Mills saw that the appellant had been hit and that he was holding his head. She did not want to watch the fight. She heard the gun go off but she did not see who was holding it. She blacked out and later heard a second shot. She heard the front screen door open and close and then she heard the backdoor open. It was after this that she heard a second gunshot. She saw the deceased lying in the vicinity of the kitchen door. The gun had disappeared. She telephoned the emergency services and while she was speaking to the operator she heard footsteps at the rear of her house. 31 Mills attended the police station in company with her father on 31 January 2001 and participated in a further interview. In the course of this interview she said that the gun had not been at her house at the time of the shooting. The appellant had removed it from her roof at an earlier time. In this statement she said that she had seen the appellant with the gun in his jacket shortly after he arrived at her house. She had seen the appellant and the deceased fighting and that then the appellant "got it and he used it on Adam and then I blacked out". 32 In the course of the interview on 31 January 2001 Mills asserted that she had previously told the police that the deceased had the gun in order to help the appellant. She gave an account that at one stage the appellant had left the lounge room for about five minutes and that on his return she observed that his jacket appeared to be bulky. After the deceased and the appellant fought she noticed the gun in the appellant's jacket. In this final interview Mills said that she had heard the first, but not the second, shot. 33 At the trial Mills said that she had no memory of the contents of the third or fourth interviews with the police conducted on 20 December 2000 and 18 January 2001. She said that she had been taking a greater quantity of drugs at the time of making them than she had been taking at the time of the shooting. 34 Mills said that the interview of 18 January 2001 contained lies that she had made up because she did not want to be called as a witness. She had wanted to forget about what had really happened. She said that she believed that if she appeared to be unreliable she would not be called to give evidence. 35 Mills said that she had no recollection of the final interview conducted on 31 January 2001, however she did recall making a statement so as to correct the things she had said to the police in the interviews on 20 December 2000 and 18 January 2001 in which she had told lies. Although she had intended to tell the truth in the interview conducted on 31 January 2001 the events of the night had been blocked out of her mind and she did not know why she had said the things she said. 36 In cross-examination it was suggested to Mills that she had been pressured by the police into reverting to the account that she had given in her first statement. She denied that this was the case. Mills' letters to the appellant 37 Mills agreed that she had written a letter to the appellant, following the committal proceedings, in which she expressed her regret for the things that she had said in her statements and at the committal hearing. In this letter she said that the police had threatened her with gaol and that this had caused her to change her statement. She wrote: "Because I don't know what happened when I made that statement I was on a cocktail of anti-depressants, speed and lollies and totally scared. I wanted it to be all over so I made you out to be a monster". She went on to say that she did not really know what happened or what was real. She said that the appellant was a good man and not a monster and that she did not want to go to trial on the basis of the first statement because it was untrue. 38 During the course of her cross-examination Mills said that she had not lied about the events of the shooting itself in the first statement. The reference in her letter to making the appellant out to be a monster was a reference made in the context of their relationship. 39 Mills was cross-examined about the contents of another letter written to the appellant in which she also asserted that she did not know what had happened at the time of the shooting. In this letter she said that the police had telephoned her father saying that she could go to gaol for seven years if she did not revert to her earlier statement. 40 Mills was asked if she had told a solicitor, whom she had retained in connection with a victims compensation claim, that the police had threatened her father, saying that if she did not return to the version given in her original statement that she would go to goal. She denied that she had made such an assertion in an interview with a solicitor named Michael Atkinson. 41 In re-examination Mills said that although she hated the appellant for what he had done she still loved him and that she had been visiting him while he was in custody. She denied having been pressured in connection with giving evidence. She said that she had not had hallucinations concerning the night of the shooting. The appellant's letters addressed to Mills 42 A number of letters written by the appellant to Mills during the course of their relationship were tendered in evidence. Generally, the appellant wrote of his love for Mills and of his wish to be with her at all times. He said that if anyone sought to destroy their relationship that person would regret it. He expressed his concern about Mills flirting and about her drug taking. He said that he was sorry for being overprotective, but that she was a person who needed protection from her "speed-abusing" friends. 43 One letter was identified by Mills as being a note that she had received from the appellant about a week prior to the shooting. In the note the appellant told Mills that she took the word of a junkie to tell her that he (the appellant) did not love her and that he did love her and that he wanted to be her husband forever (Ex "FF"). Mills' telephone conversation with the emergency services' operator 44 The tape recording of Mills' call to the emergency services was in evidence. The call commenced at 1:26:30. The transcript records the following: "RM: Please, can you come to my house. He shot him, he shot him in my house. 13 Indigo Way, Prospect. He's dead. 000: Slow down, give me your address quickly. RM: 13 Indigo Way, Prospect. Michael James Taylor shot him in my house he's dead. Sobbing 000: 13 Indigo Way, Prospect? RM: Yes. RM: Please officer, I'm so scared. I don't know what to do, my son's sleep. 000: What's your name? RM: Rebecca Mills. 000: What's your phone number there, Rebecca? RM: ... Please. He might come back, I don't know where he is, please. 000: Rebecca be quiet, please I can't get any information out of you, you're speaking too quick. Can you give me your phone number again slowly? RM: (number given) 000: And you claim that someone has been shot there, is that right? RM: He's dead in front of me. My god, there's blood all over the place. … 000: Rebecca, who is the person? RM: Who is the what? 000: Who is the person that's been shot? RM: Adam Scott, oh my god. Oh my god. 000: Who did it? RM: Michael Taylor … sobbing … I'm stranded, there's nobody else here … .(inaudible) …. Upstairs. He's got a gun. 000: OK, is he still there? RM: I think he's out the front … (sobbing … inaudible) … Adam …. (inaudible) 000: OK what's the situation with Adam? RM: He's dead on the floor. 000: What was used to shoot him? RM: I don't know, it was a big gun. 000: Was it a shotgun, rifle or handgun? RM: A gun … please send someone around … please when will you have somebody here? 000: What I'm doing Rebecca is I'm talking to the police at the same time that I'm talking to you, OK? I'm going to stay on the phone with you until the police arrive. RM: When will that be? 000: What caused this Rebecca? RM: He's my ex-boyfriend and he thought Adam was going to be with me, and he wasn't. So he's killed him. I'm scared he's going to come back in and get me and shoot me. (sobbing) 000: What was Adam's last name? RM: Scott. Are they coming? How long will they take? 000: Yes, there is one car on their way now. OK, there's two cars on the way now. RM: I can't face it. I'm too scared to go over. I can't look at the body. 000: Rebecca, Rebecca, stay where you are OK? Rebecca, Rebecca, stay where you are. (To someone in the background) Can you ring the ambos for me? Rebecca can you stay where you are please? Tell me, have you been hurt in any way? RM: No. 000: Rebecca. RM: Yes, I'm too scared. 000; Rebecca, Rebecca there is another police car on the way, that makes three. Can you tell me, have you been hurt at all? RM: No, I haven't. 000: You haven't, OK RM: He didn't want that. 00: OK … 000: Rebecca, they are coming there, they are going to be coming there with sirens screaming, they are going to be there as soon as they can. Because as I said, there are three police cars coming now. RM: No … (sobbing) I didn't want this to happen … I want my dad to come back here. 000: OK Rebecca, you said that there were kids in the house is that right? RM: Yes, my son is asleep in the house. 000: How old is he? RM: He's four. (Sobbing). I had a feeling he was going to do something dangerous. He hasn't moved. I feel so helpless. … RM: I don't want to answer the door, I'm too afraid. 000: OK, Rebecca what will happen, the police will come to the door and they will scream that it is the police. OK, Rebecca there's a police car stopped out the front now. OK? RM: He owns a four-wheel drive. … 000: OK. There's three cars out the front of your house now. I've passed the message on, they're gonna say it's the police from Blacktown. OK Then you go to the door and come back and tell me that the police have arrived, OK But you don't move from where you are until someone knocks on the door and says that it's the police from Blacktown, OK? OK, Rebecca? RM: Yes. 000: OK then, that's good. RM: I need for them to be here or he'll return. 000: OK what they're doing is there just making sure that everything is fine. They've just asked me is Michael Taylor still there and I've told them that he left shortly afterwards but you thought he was outside but you haven't heard him for a while. That's right isn't it? RM: Yes. 000: Good girl, Rebecca. Good. RM: I'm sorry, I can't hear anything. 000: They're just making sure that everything is fine outside. RM: Did they see his car or what? 000: I've just told the police that the only people inside are you and your son. RM: And Adam is dead on the floor … (inaudible) … 000: Do you know what colour the four-wheel drive that Michael … RM: It's white. 000: White was it? RM: White. White 000: They're just checking out cars in the area to make sure that he's not hiding in a car. 000: Do you know the rego number of his car? RM: Um … um 000: It doesn't matter if you don't. RM: No. The neighbour's evidence – two gunshots 45 A neighbour from Indigo way, Dee Spurway, gave evidence that at around 1:30 am on 25 July 2000 she heard two bangs, thirty to sixty seconds apart. The crime scene evidence 46 Senior Constable Grant and Inspector Williams were the first officers to attend the scene. They arrived at 1:34 am. After some time the door was opened by Mills who was in a distressed state. She told Senior Constable Grant that her son was the only person still in the house. 47 Detective Sergeant Grima, a ballistics specialist, examined a projectile found embedded in the external verandah wall at the Indigo Way premises (Ex "M") and a projectile that was removed from the deceased's body at the post mortem examination (Ex "P"). Both projectiles had been fired from a similar class of firearm, with eight lands and grooves with a left hand twist. There were insufficient markings on the projectiles to establish if they had been fired from the same firearm. The projectiles were consistent with having come from .375 calibre cartridges. Detective Sergeant Grima was aware of only three weapons that would fire a .375 calibre cartridge. Of these three weapons, only a Thomson Contender has eight lands and grooves. 48 A spent .375 Winchester cartridge was located by the police in the lounge room of the Indigo Way premises (Ex "L"). 49 Mills' father, Patrick Mills, located a set of keys by the side of the lounge during a clean up of the premises on 30 July 2000. The keys fitted the front screen door and the front door. During the course of her evidence Mills identified these as the keys that had been thrown at her by the appellant when he walked into the house on 25 July 2000. 50 The police searched the appellant's bedroom at the family home on 25 July 2000. Constable Anne Bloomfield located two centre-fire .375 Winchester cartridges during the search. 51 Melissah Harris gave evidence that she and Mills had been friends since 1998. She had been present in the lounge room of the Indigo Way premises a few weeks prior to 25 July 2000 on an occasion when Mills and the appellant were arguing over Mills' contact with the deceased. She heard the appellant say to Mills that, "He's going to kill him. He said that he's dead". 52 A few days prior to 25 July 2000 Melissah Harris stayed overnight at the Indigo Way premises. The appellant was also staying with Mills that night. He was sleeping in Mils' bedroom. Harris was sleeping in the lounge room. The deceased telephoned at around 1:00 am or 2:00 am. Mills came into the lounge room and answered the phone. She told the deceased not to come over and not to ring back. He rang again about five or ten minutes later. On this occasion the appellant came to the phone and spoke to the deceased. He instructed him not to ring again and asserted that he, the appellant, was trying to sort things out with Mills. The telephone rang a third time. The appellant was sitting next to Harris in the lounge room at this time. Mills answered the phone and while she was speaking on the telephone the appellant called out, "You're dead. I'm going to kill you". Post-mortem examination 53 Dr Langlois conducted the post mortem examination. He described three wounds that were consistent with two shots having penetrated the deceased's body. A wound to the right front chest (A) extended to a further wound on the left side beneath the shoulder blade at the back of the chest (C). The projectile had entered the deceased's body and passed through it. The bleeding from this wound would have caused death within a minute. Wound (B) was to the right shoulder blade at the back of the chest. The track of this wound was upwards through the neck and the spine. A projectile associated with this wound was recovered from the pharynx. This wound would have prevented the deceased breathing. Dr Langlois considered that wound (B) was the second wound to be inflicted and that the deceased was still alive when he sustained it. This wound was consistent with having been inflicted at a time when the deceased was bent over or lying down, most likely lying on the floor. The projectile appeared to have been fired from behind. The appellant's arrest and statements to the police 54 The appellant was arrested by Detective Senior Constable Parker at around 7:30 am on 25 July 2000. At this time he had a lump above his left eyebrow. 55 In the course of a recorded conversation with police the appellant told Detective Senior Constable Parker that he knocked on Mills' door and that she opened the door. He walked into the premises and Mills turned off the light. He was pushed and struck on the head. He told the police that when he turned around, "There was a bloke with long hair …. the only thing I remember is my gun and I recognised it … we just struggled over it and it went off and I just saw blood and him laying there". The appellant said that he had run out to his car and driven away. He said that he may have dropped the gun as he was running, but that he had no idea where it was. The lump on his forehead was caused by the blow to his head. 56 In a conversation with Detective Senior Constable Gilbert the appellant said that he had been hit by a guy with a torch. He said that he did not know if he (the appellant) had left the gun at the premises or if he had taken it with him and thrown it away. 57 The police took photographs showing the lump on the appellant's forehead as it appeared on 25 July 2000. These were examined by Dr Anderson, of the Clinical Forensic Medicine Unit, Sydney Police Centre. Dr Anderson was also shown the Maglight torch that had been found in the hand of the deceased. Dr Anderson said that it appeared that there was swelling to the appellant's left forehead, above the eyebrow. He did not consider that it was likely that the Maglight torch had caused the wound because the wound had the appearance of being a recent abrasion caused by being struck with a fairly solid object with raised parallel ridges. The Maglight torch did not have raised parallel ridges. The appellant's case 58 The appellant gave evidence. He said that after the accident in the solarium Mills had started using drugs. He said that her drug use had been predominantly amphetamines and, occasionally, ecstasy and anti-depressants. They had argued about her drug taking. Once or twice he had agreed to pick up speed for her. At other times when he had seen speed in the house he would throw it away. 59 Following their break-up on 26 June 2000 the appellant said that he had continued to see Mills. They had agreed to remain friends and on occasions he had slept at her house following their separation. Mills had telephoned him from time to time, including at his work. 60 The appellant described an incident that took place after his break-up with Mills. The two of them had been out shopping. On their return to the Indigo Way premises he saw bags of drugs in a cupboard. One bag was filled with white powder and the other with pills. He flushed them down the toilet. When he told Mills what he had done she remonstrated with him telling him that the drugs belonged to the deceased. 61 The appellant said that he had been unhappy about Mills' association with the deceased because of his involvement in drugs. 62 About one week after the episode when he flushed the drugs away he had stayed overnight with Mills. They were both asleep when at around 1:00 am the telephone rang. Mills took the call in the bedroom and he heard her say, "I don't want to see you, keep away from me. Stop ringing". He went to the kitchen to get a drink and he saw Melissah Harris asleep on the lounge. As he was walking back to the bedroom the telephone rang again. He answered it and he heard a male voice say, "To give his shit back and he was going to kill me", the appellant responded saying, "Look, fuck off and leave us alone". He returned to the bedroom and told Mills that he had been threatened. 63 About one week after the incident involving the telephone calls the appellant was again at Mills' house. At around 1:00 a.m. a number of people turned up at the rear of the house. These people were yelling out calling Mills a slut and a thief and throwing bottles over the fence. Among the group were a woman and a man with a ponytail. Mills had thought that she recognised the voice of the deceased among the group. 64 The appellant bought a firearm that he believed to be a Thomson Contender in 1996 or 1997. He intended to use it for pig hunting. He kept the gun at a friend's house because his parents would not allow him to keep it at home. When his friend moved the appellant collected the gun and took it home for one night. He discussed the matter with Mills, explaining that he had nowhere to store the gun and asking if he could leave it at her house for a short time. She was hesitant but she agreed. He brought the gun over to the Indigo Way premises in late 1999 or early 2000 and stored it in the roof. Access was gained to the roof through a manhole located in the ceiling of the hallway just outside Mills' bedroom. 65 The gun was stored in a drawstring bag with two packets of .375 calibre Winchester ammunition. He removed two rounds of ammunition and kept them in his bedroom because he wanted to have samples to show a prospective purchaser. 66 On 24 July 2000 the appellant went to see Mills around 4:00 or 5:00 pm. He cut a rusted lock off her letterbox. They spoke outside her house for more than an hour and parted on good terms. She asked him if he could go and see her friend, Joe, and collect fifty dollars worth of speed. Although the appellant did not approve of Mills' use of speed he agreed to collect it for her since he knew that she would get hold of it from a source in any event. He told her that he would return late that evening, sometime after 11:00 pm. 67 The appellant left home around 10:30 pm. He did not have his firearm with him. He had not touched the two bullets in his bedroom. He went to visit a friend and afterwards he drove to Woolworths, Blacktown, to meet the man named Joe. He gave Joe fifty dollars of his own money and was given a small bag of white powder. He then drove to Mills' house. He did not see the deceased's car parked near Woolworths and was unaware that the deceased was at Mills' house. 68 When he arrived at the Indigo Way premises the appellant knocked on the front door. After a few minutes Mills opened it. As he walked into the hallway she turned off the lights. He was hit on the head. When he came to he was on the floor of the lounge room. A man with long hair, who appeared to be drug affected, was pointing his firearm at his head. Mills was sitting on the lounge. The appellant got to his feet fearing that he was going to be shot. He leaned forward and grabbed at the gun. He and the man struggled over it. They fell towards the window and the firearm went off. The appellant had his hands on the firearm at the time. He had no intention of firing the gun. After the first shot the appellant thought he had been hit. He was aching and his head was sore. He saw that the other man had blood on his stomach and coming out of his mouth. He thought the man was dead. He panicked, threw the gun next to the window and ran to the front door. As he was leaving he saw another man coming out of the room down the hallway with something in his hand. This man was tall with long hair. The appellant left the house, slamming the door behind him. He ran to his car and drove off. He did not hear a second shot. He recognised the Maglight torch found in the deceased's hand as a torch he had seen leaning against a wall inside the house. He had not seen the deceased with that torch. 69 The appellant denied that he had ever seen the set of keys that had been found by Mills' father in the lounge room on 30 July. The grounds of appeal Ground 1 70 The appellant challenges his conviction on five grounds. Ground 1 raises three, linked, complaints: Ground 1 His Honour erred in allowing the Crown Prosecutor to cross-examine the witness Rebecca Mills pursuant to s 38 of the Evidence Act 1995. Ground 1A His Honour erred in admitting evidence of representations made by the witness Rebecca Mills which were not recalled by her, or alternatively, in admitting them as evidence of the truth of the contents of them. Ground 1B His Honour erred in not limiting the use to which evidence obtained pursuant to s 38 of the Evidence Act could be put to the aspect of the credit of the witness Rebecca Mills. 71 The Crown Prosecutor applied for leave to question Mills as though cross-examining her pursuant to s 38(1) of the Evidence Act 1995 (the Act). At trial the Crown Prosecutor contended that leave should be granted pursuant to s 38(1)(a), (b) and (c). The first statement, the recording of the re-enactment and a transcript of the evidence given by Mills at the committal hearing were tendered in the course of a voir dire hearing. 72 The Crown Prosecutor identified two features of the evidence given by Mills as unfavourable for the purposes of s 38(1)(a). These were firstly that Mills had given no evidence of any threats made by the appellant towards the deceased and secondly that her evidence fell short of being an eye-witness account of the relevant events. At the point at which the leave was sought Mills had given evidence of observing the gun on the carpet in front of the appellant and of hearing a loud bang. She did not say that she had seen the shooting itself. 73 Mills gave evidence in the course of the voir dire hearing. She said that her evidence was the best recall that she had of the events. The Judge was not of the view that Mills was not making a genuine attempt to give evidence. The precondition for the grant of leave under s 38(1)(b) was not established. The Judge found that Mills' evidence was unfavourable within the meaning of s 38(1)(a) for the reasons that the Crown Prosecutor had advanced. In coming to this view his Honour had regard to the decision of this Court in Regina v Lozano (unreported) NSWCCA, 10 June 1997 and of Smart J in Regina v Souleyman (1996) 40 NSWLR 712. He was also satisfied that the representations in the first statement and in the re-enactment were prior inconsistent statements. Leave was granted to question Mills as though cross-examining her pursuant to s 38(1)(a) and (c). 74 In his written submissions Mr Nicholson QC, who appeared for the appellant, did not concede the meaning given to the word "unfavourable" for the purposes of s 32(1)(a) by Smart J in R v Souleyman to be correct. This Court has accepted the correctness of Smart J's analysis that unfavourable for the purposes of s 38(1)(a) means "not favourable" on a number of occasions; Lozano, Regina v Fowler [2000] NSWCCA 142 per Wood CJ at CL at [121], Regina v Glasby (2000) 115 A Crim R 465 per Stein JA, Hulme J and Greg James J. 75 In his written submissions Mr Nicholson placed reliance on the judgment of Greg James J in Regina v Kneebone (1999) 47 NSWLR 450 at [54] and [55]. In that case the Crown Prosecutor failed to call a material eyewitness because he was of the opinion that the witness would be unreliable. It was in this context that his Honour observed at [54]: "Nor is it necessary, since the Crown has not, even now, exposed the prosecutor's reasons, to consider whether the decision was based on some view he might have, even if mistakenly, considered that the Crown might be deprived of an appropriate opportunity to cross-examine the witness, since, in proper circumstances, resort might have been made to an application under s 38 of the Evidence Act . This observation is not to be taken as an indication by me as to whether such an application might properly be made or as to how any such application should be resolved. Section 38 of the Evidence Act refers to the concept of the witness being, 'unfavourable' in the context of a criminal trial, care may have to be given to the question of what 'unfavourable' to the Crown means. That concept will not necessarily be satisfied simply because the witness' potential testimony does not accord with some prosecutor's view of the appropriate 'camp' or some case theory which does not accord with all the otherwise reliable evidence". 76 Mr Nicholson did not develop his challenge to the grant of leave pursuant to s 38(1) by reference to a contention that his Honour erred in finding the witness to be unfavourable for the purposes of subparagraph (a). The judge's decision that the witness had given evidence that was "unfavourable" was, to my mind, one that was open to him. This is not a case in which the concern to which Greg James J directed attention in Kneebone arises. 77 The appellant did not submit that the Judge's finding, that the pre-condition for the grant of leave under s 38(1)(c) was established, was wrong. On the hearing of the appeal the focus of Mr Nicholson's challenge was on the exercise of the discretion to grant leave. 78 Mr Nicholson acknowledged that the Judge adverted, in terms, to the matters to which s 192 directs attention in considering the grant of leave under the Act. In his submission his Honour conflated the concept of "unfairness" to a party for the purposes of s 192(2)(b) with the "unfair prejudice" with which s 137 is concerned. In this respect Mr Nicholson drew attention to paragraph [44] of the Judge's reasons given on 9 April 2002: "It seems to me that in this particular matter, the question of the reliability and credibility of the witness is essentially a matter for the jury. All the matters relied on by Mr Scragg raise essentially a jury question. For that reason I agree with the submissions of the Crown that the accused is not placed in a position of unfairness so as to warrant my refusing leave. Essentially for the same reason, I do not think that there is a danger of unfair prejudice to the defendant. I acknowledge that if the jury accept Rebecca Mills' evidence as to what she may say she actually observed on 25 July 2000, that that may establish the Crown case but evidence that does tend to establish more effectively the Crown case is not prejudicial to an accused person in the relevant sense of the discretion under s 137 (See Lozano at page 11)." 79 Mr Nicholson submitted that the unfairness to the party with which s 192(2)(b) was concerned was the inability to test the out of court assertions made by Mills. She did not recall the circumstances in which the first statement was made. The version contained in the first statement was essential to the Crown case. (It was Mr Nicholson's submission that Mills' evidence in combination with the other evidence in the case was insufficient to sustain a conviction.) Mr Nicholson complained that the effect of the grant of leave was to place before the jury the representations contained in the proof of evidence taken by the police on 25 July 2000. The police officers who took the first statement were said to be trained interrogators. There was the risk that a statement taken by them may give coherence to a narrative that would otherwise have been jumbled and uncertain. There was no record of the questions asked of Mills. It may be that the account recorded in the first statement emerged as the result of a series of leading questions. There was no way of exploring this with her. 80 Mr Nicholson relied on the observations of Adams J in R v Esposito (1998) 45 NSWLR 442 at 483 - 484, commenting on the Australian Law Reform Commission's Interim Report on Evidence, Report 26, at [694] with respect to the exclusion of proofs of evidence. In Esposito the Court was concerned with the proof of representations made by a witness (himself a suspect) to police as to the evidence that he would be able to give as first-hand hearsay by reference to s 66(3) of the Act. Wood CJ at CL (with whom James J agreed) observed at 450: "I do not regard s 66(3) as having the effect of precluding examination or re-examination of a witness in the position of Mr Ross upon any prior statement, including the relevant representation, if ground is properly laid, under s 38 or s 108 of the Evidence Act , for leave to do so; or of preventing that witness from reviving his memory by reference to such a statement under s 32 of the Evidence Act , again where ground is shown for the grant of leave to do so." 81 The appellant's written submissions were posited on the assumption that the first statement was in evidence. This was not the case. Mills was cross-examined at some length on the representations contained in the first statement. She had a vague recall of saying some of the things contained in it to the police. Generally her memory was not revived by being taken to it. The first statement was not tendered nor were the representations contained in it proved in oral evidence through the police officers who took it. Nonetheless Mr Nicholson's challenge remained as to the grant of leave to cross-examine Mills on the representations contained in it. 82 Mr Nicholson accepted that his challenge had somewhat less force when addressed to the representations made by the witness during the re-enactment. There could be no question about the form of the questions asked of her during that interview or the quality of her responses. In the course of the re-enactment the witness gave a coherent and apparently unprompted account of the events. Mr Nicholson conceded as much. His point was that this account came after the making of the first statement. It remained the case that the appellant was not able to challenge the circumstances in which Mills' original statement came to be made. 83 The Judge observed in the course of his reasons given on 9 April 2002, at [34]: "The principal matter which has been argued by Mr Scragg on behalf of the accused is the issue of unfairness. This matter is the matter to which s 192(2)(b) is directed and requires the Court to take into account the extent to which to allow the questioning would be unfair to a party or to a witness. In addition, as I have said, it is necessary in this context to have regard as well to s 135 which is the general discretion to exclude evidence and, in particular, s 137 which requires the Court to refuse to admit evidence in criminal proceedings where that evidence is sought to be adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant, that is the accused in this case." His Honour summarised trial counsel's submissions on the question of fairness as follows: "[39] First, the evidence on the voir dire shows or may show that the witness was directly affected by a cocktail of drugs a the time she made her first statement. Either the drugs were directly affecting her or she was withdrawing from those drugs and the effect may have conceivably gone to the reliability of what it is she said she could recall. [40] Secondly, the witness is a person who has agreed she has a history of hearing voices; she has had hallucinations; she has had a long history of drug abuse. In relation to her statement of 31 January 2001, she conceded she was, at that time, addicted to illicit drugs. [41] Thirdly, in relation to her general demeanour in the witness box, Mr Scragg submits that the witness will come across as a very poor witness, very emotional, very unreliable. He made specific reference to a letter she had written apparently after committal where she conceded she had very little memory of what had happened back in July 2000 and in which she also cast doubt on the accuracy of what she had told the police at that time. [42] Fourthly, he pointed to the fact that she said in her evidence today on the voir dire that she is presently 'blocking out' certain things that happened on 25 July 2000. Mr Scragg submits that all of these matters, taken together, lead to a situation where it would be unfair to the accused to allow this questioning to occur." 84 The Judge's reasons reflect the way the matter was argued before him. The question of the unfairness to the appellant was argued predominantly by reference to the reliability of Mill's statements made at a time when she was said to have been affected by drugs. His Honour was not persuaded that those considerations created unfairness to the appellant for the purposes of s 192(2)(b). 85 In the joint judgment in Adam v The Queen [2001] HCA 57; 207 CLR 96, Gleeson CJ, McHugh, Kirby and Hayne JJ at [29] observed: "[29] The appellant contended that the judge was wrong to conclude, as he did, that there would be no unfairness in allowing the evidence to be led as evidence of the truth of what had been said to police. This was because, so the argument went, it was very hard for the defence to challenge the version of events Thaier Sako gave to police. Reduced to its essentials, the complaint was that the defence would be left to rely on the jury accepting the witness when he said, as he did, that he simply reported to police what others had told him. The defence could not, as an alternative attack on the witness, challenge the detail of what he had said to police. [30] It is right to say that the defence could not readily mount the second kind of attack on the witness's evidence without accepting at least the possibility that he had given a first-hand account of events to police. But as counsel for the appellant accepted in argument, it was no part of the defence case to put to this witness (or any other witness) some alternative version of the appellant's participation in the events that happened. The appellant could readily have sought to support the witness's contention that he had no first-hand memory of the events by cross-examining him as to his motive to give an account which exculpated the witness and his brother, Thamir. It could have cross-examined him by suggesting that he had been too affected by drink or his wounds to give a proper account. In these circumstances there was no unfairness. The judge was right to conclude that the defence could test the evidence which was to be led." 86 The Judge concluded in this case that it was open to the appellant to test Mills about her drug taking around the time she made the statements of 25 and 26 July 2000 with a view to casting doubt on the reliability of the representations that she had made in them. The submissions advanced by trial counsel summarised at [83] above, were matters that went to an assessment of the credibility and reliability of the witness. It is apparent that the Judge considered the jury to be well placed to evaluate these matters. 87 The Judge gave detailed reasons for deciding to grant leave which addressed the submissions that were put on the appellant's behalf. I reject the submission that the Judge erred in his approach to the question of whether the grant of leave would be unfair to the appellant within the meaning of s 192(2)(b) of the Act. The passage in his reasons that I have extracted at [83] above lends no support to the submission that his Honour conflated the question of unfairness to a finding for the purposes of s 192(2)(b) with the exercise of the discretion under s 137 of the Act. The matter that was to the forefront of Mr Nicholson's submissions, that the appellant did not have the opportunity to test the circumstances in which Mills' first statement was made, was not a consideration pressed at trial. 88 It is to be observed that Detective Gilbert commenced taking the first statement within four hours of the shooting. He arrived at the Indigo Way premises at around 2.45am. He was introduced to Mills who appeared to be extremely upset. He drove her and her father to the Blacktown Police Station. He said that it had taken an hour to an hour and a half to take the statement. It was not suggested that the taking of the statement was protracted. I am not persuaded that the Judge erred in granting the leave that was sought. 89 Mr Nicholson next challenged the admission of those representations made by Mills in the first statement and the re-enactment that did not operate to revive her memory. Alternatively, he challenged the reception of these representations as evidence of the facts. No oral submissions were advanced in support of ground 1A. In written submissions it was put that: "It was not evidence of its truth, because the hearsay rule applied to it (section 59(1)). Neither section 65 or 66 provided a basis for the non-application of that rule in this case. Indeed, section 66(3) specifically excludes the application of that rule to the representations concerned. Further, the exception to the hearsay rule provided by section 60 would not apply to these unremembered prior representations, since there was no valid alternate basis for them being admitted within the terms of that section. In the absence of a grant of leave under section 38(3) to question the witness about matters relevant only to her credit, section 102 would render the representations concerned inadmissible on the issue of her credit. Non-recall representations could hardly provide a basis for any finding that an exception to the credibility rule existed under section 103. In the result, the evidence referred to was inadmissible as evidence either of the truth of the representations or as bearing on the credit of the witness, and was therefore not relevant within the terms of section 55." 90 As I have observed, the appellant's submissions were framed as if the representations made in the first statement were in evidence. The recording of the re-enactment was in evidence and it is appropriate to deal with Mr Nicholson's submissions by reference to it. I do not consider that there is any substance to this ground of challenge. The appellant's written submissions did not refer to the decision of the High Court in Adam. For the reasons explained in Adam, because the evidence of Mills' previous representations made in the course of the re-enactment was relevant to more than an assessment of her credibility (that is, its relevance was not confined only to credibility) the credibility rule stated in s 102 of the Act did not apply. The evidence was relevant for a purpose that included the assessment of the credibility of Mills and thus fell within the exception to the hearsay rule provided by s 60. In light of the appellant's submissions it is appropriate to set out a passage from the joint judgment in Adam at 109: "[37] The operation of the Act on the appellant's example is correctly stated but the result that is obtained is not, as the appellant contended, odd or unexpected. It is true, of course, that the result differs from what would be the result at common law, the difference being that, by s 60 of the Act, the prior statements would be admitted as evidence of the truth of their contents. But that difference brought about by s 60 was one of the significant alterations in the rules of evidence that the Act was intended to effect. No longer were tribunals of fact to be asked to treat evidence of prior inconsistent statements as evidence that showed no more than that the witness may not be reliable. The prior inconsistent statements were to be taken as evidence of their truth. Thus far from the result being, as the appellant asserted, bizarre or unintended, it is the intended operation of the Act." (Australian Law Reform Commission Evidence , Report No. 38 (1987), p 79 [144]; see also Australian Law Reform Commission, Evidence , Interim Report No. 26 (1985), vol 1, pp 170-173 [334], pp 375-376 [685]." 91 In written submissions in support of Ground 1B Mr Nicholson contended that the Judge ought to have limited the use which could be made of Mill's previous representations to the question of her credibility and that to have allowed the evidence to be admitted as evidence of the facts was unfairly prejudicial to the appellant. It was submitted that, "s 38(3) itself provides for questioning to be limited to the issue of credit". This latter submission was not pressed in the course of oral argument. It seems to me to have been misconceived. Section 38(3) makes provision for the court to extend the leave granted to a party (to question the party's own witness as though cross-examining) to questions about matters relevant only to the witness' credibility. 92 The unfair prejudice with which the court is concerned in the exercise of the discretions contained in ss 135 - 137 was discussed by this Court in Regina v Yates [2002] NSWCCA 520 at [252] per Wood CJ at CL, Hulme and Buddin JJ: "[252] On the other side of the comparison is 'unfair prejudice', or the danger thereof arising from the evidence. All evidence incriminatory of an accused which has a probative value, necessarily causes prejudice, but this is not the prejudice of which sections 135 to 137 (or for that matter s 192) speak. Prejudice argues for the exclusion only if there is a real risk of danger of it being unfair: R v Lisoff [1999] NSWCCA 364. This may arise in a variety of ways, a typical example being where it may lead a jury to adopt an illegitimate form of reasoning, or to give the evidence undue weight. However, in so far as any prejudice flows from the legitimate use of evidence it provides no ground for the exercise of the duty or discretion arising under sections 135-137." In Festa v the Queen [2001] HCA 72; 208 CLR 593 Gleeson CJ explained the concept of unfair prejudice at 603 [22]: "Where evidence is relevant and of some probative value, prejudice might arise because of a danger that a jury may use the evidence in some manner that goes beyond the probative value it may properly be given. If there is relevant prejudice of that kind, it lies in the risk of improper use of the evidence, not in the inculpatory consequences of its proper use ( Papakosmas v the Queen (1999) 196 CLR 297 at 325-327 [91]-[97], per McHugh J). If it were otherwise, probative value would itself be prejudice. All admissible evidence which supports a prosecution case is prejudicial to an accused in a colloquial sense; but that is not the sense in which the term is used in the context of admissibility." Mills' previous representations recorded during the re-enactment constituted a coherent narrative given shortly after the event of what she had seen and heard. Mr Nicholson did not identify the unfair prejudice to which the admission of the evidence as first hand hearsay was said to give rise save for the inability to test Mills on the circumstances in which she had come to make the first statement. 93 In Papakosmas v the Queen [1999] HCA 37; 196 CLR 297 the High Court considered evidence of complaint in sexual cases under the provisions of the Act. Gleeson CJ and Hayne J rejected the submission that as a general rule evidence of complaint should be limited so that it is not used for a hearsay purpose. Their honours said of these submissions (at 310 [39]): "The submissions must be rejected. They amount to an unacceptable attempt to constrain the legislative policy underlying the statute by reference to common law rules, and distinctions, which the legislature has discarded." McHugh J in the same case expressed the view that even in cases where the evidence has been admitted under s 108(3)(b) directions under s 136 should not be made as a matter of course (at 326 [94]). 94 In light of the reasoning of the High Court in Adam I consider the contention that the Judge erred in not limiting the use to be made of the evidence to the assessment of Mill's credibility to be a difficult one to make good. The representations made in the course of the re-enactment were relevant to a fact in issue. There was no reason to fear that the jury would rely on this evidence on a basis that was logically unconnected to the issues in the case: R v Lockyer (1996) 89 A Crim R 547 per Hunt CJ at CL at 460; and Yates at [252]. 95 I am not persuaded that the Judge erred in failing to limit the use of the evidence to the assessment of Mills' credibility. I would reject grounds 1, 1A and 1B. 96 Before moving to ground 2 it is appropriate to deal with ground 5 because in written submissions it was said that ground 5 was to be argued in the context of ground 1. Ground 5 His Honour erred in giving directions which were capable of misleading the jury as to the application of the onus and standard of proof. 97 In written submissions the appellant supported ground 5 in this way: "This ground is to be argued in the context of ground 1. The prosecutor was allowed to put to the jury that it should accept that of the various out of court statements made by the witness Mills to police, they would accept the statements made on 25 & 26 July 2000. It was further put that those statements reflected the true facts of what happened. This involved a suggestion of choice between competing versions by the witness Mills. It also implied an onus of proof resting on the defence." 98 In his written submissions Mr Nicholson did not identify the passage or passages in the summing up that were the subject of the complaint made in this ground. In the course of oral submissions Mr Nicholson referred to a passage at SU 65. It is appropriate to put the passage complained of in its proper context: "Members of the jury, it is in fact common ground between the Crown and the accused that if you accept as a reasonable possibility that the death of the deceased occurred in the circumstances described by the accused, then the accused is entitled to be acquitted on the charge of murder brought against him. I must warn you however that you should not consider that the accused could be acquitted only if you do accept the version of the incident which he has given in evidence before you. The fact that the accused has – as he was entitled to do – given evidence in this trial, and placed before you a version of what he says happened, does not mean that the accused has accepted some onus of establishing that he is innocent. The accused bears no onus at all in these proceedings. The onus remains on the Crown at all times of satisfying you beyond reasonable doubt that the accused is guilty of the crime charged. The version of the incident given by the accused in his evidence is one matter you must consider in coming to your decision on this central issue. Even were you to disbelieve what he has said regarding the shooting, that disbelief does not of itself amount to material upon which you can be satisfied by the Crown that the accused was guilty of the crime, although such disbelief of the accused, if you took that view of his evidence, might assist you in deciding whether to accept more readily the conclusions which are otherwise available from the evidence led by the Crown. The point I am making is that you do not have to determine whether the accused is telling the truth. You may not accept his version of the incident, and yet still find him not guilty. The question that you have to determine is not whether the accused is guilty, but rather whether the Crown has satisfied you that the accused is guilty. If the Crown has so satisfied you and has done so beyond reasonable doubt, then you are entitled to convict the accused of the charge of murder. In coming to that decision as to whether or not you are so satisfied, you must take into account the version he has given you; and you must ask yourselves whether that version operates to cast a reasonable doubt upon the case that the Crown seeks to make out. Putting it another way, if you are satisfied that there is a reasonable possibility that the death of the deceased occurred in the manner described by the accused then you will be obliged to acquit the accused of the charge of murder . (Emphasis added.) That will be because there will be a reasonable doubt upon the case that the Crown has sought to make out. That is, a reasonable doubt about each of the essential ingredients I have identified for you in the summary sheet under paragraph (b) and (c). They are, as I have said, the critical issues which the parties have contested during this trial." (SU 64-65). 99 The direction the subject of complaint is contained in the penultimate paragraph above in bold. Mr Nicholson submitted that by this direction the Judge reversed the onus of proof. 100 At the commencement of the summing up his Honour directed the jury in these terms: "The first thing I want to speak to you about are the legal principles relating to the onus of proof and the standard of proof. Both counsel have mentioned this to you already. It is important that I make clear what those principles are. There are two principles of the law which are fundamental to our criminal justice system. The first is that every accused person is presumed innocent unless and until they are found guilty. The accused in this trial has the benefit of that presumption of innocence. That means that he is entitled to have you return a verdict of not guilty unless you find the Crown has proved that he is guilty as charged. At no stage of the trial is there any onus or obligation on the accused to prove that he is innocent. At no stage is there any onus or obligation on him to disprove any part of the Crown case. Nor indeed does he have an obligation to prove anything at all. From the start of the trial to its finish the onus rests on the Crown to prove every matter necessary to establish against the accused that he is guilty. The second fundamental principle is this: Whatever the Crown has to establish in order to prove the offence must be proved to your satisfaction beyond reasonable doubt. In respect of every offence known to the law the law defines particular matters which the Crown has to prove before an accused person can be found guilty of the offence. Those matters are usually referred to as the elements or the essential ingredients of the charge. … At this stage however, I want to emphasise to you that a person may not be convicted of any offence unless each of the elements or essential ingredients of the charge is proved and proved beyond reasonable doubt. Now that does not mean the Crown is required to prove the truth of every piece of evidence that has been placed before you. What it means is the accused must not be convicted unless you have been satisfied, having regard to the whole of the evidence, that the essential elements, the essential ingredients of the charge are proved beyond reasonable doubt. There is another way of stating this principle and it is this: A person may not be convicted of an offence if there is a reasonable possibility that he or she is not guilty as charged. You will hear me use those expressions interchangeably throughout this summing up. Just to repeat: To convict you must be satisfied of all the elements or essential ingredients of the particular charge beyond reasonable doubt. You must not convict if there is a reasonable possibility that any of the elements or essential ingredients of the charge is absent. I would like to say something to you about the situation that arises where an accused person chooses to give evidence in a trial. The accused has given evidence in this trial. You will understand that an accused person may give evidence at his or her trial but he or she is under no obligation to do so. As I pointed out to you, the Crown bears the onus of satisfying you beyond reasonable doubt that the accused is guilty of the offence with which he is charged. He bears no onus. He is presumed to be innocent unless you are satisfied by the evidence that he is guilty. The accused was entitled to elect to say nothing in this trial and to put the Crown to proof of his guilt if that could be proved. Just as an accused person has a right to remain silent when questioned by police, a matter I told you about earlier – an entitlement which the accused quite properly exercised in this case – so an accused person retains that right to remain silent when on trial. However, the accused has given evidence in this trial. By choosing to give evidence the accused submitted himself to cross-examination in the same manner as any other witness. His choice to give evidence does not mean of course that the evidence he gave before you was necessarily true. His evidence is to be evaluated by you in the same way as the evidence of other witnesses who took an oath and who subjected themselves to cross-examination during the trial. When he went into the witness box the accused made himself voluntarily a witness in the same way as did all other witnesses. The point I wish to make is that exactly the same principles apply in evaluating his truthfulness and his reliability as apply to all other witnesses. I will say a little more about this matter of evaluating credibility and reliability at a later time in the summing up. The point I wish to stress at the moment is that by giving evidence the accused in no way altered the fundamental principle as to where the onus of proof lies. It is never for the accused to satisfy you of his innocence. It is for the Crown to satisfy you of the accused's guilt irrespective of whether the accused has given evidence or has not given evidence" (SU 3-5). 101 The complaint that the Judge wrongly directed the jury in the passage set out at paragraph [98] by the use of the words "if you are satisfied" (rather than "if you considered") is to my mind without substance when the summing up is read as a whole. The Judge's directions to the jury as to the onus and standard of proof were extensive, clear and emphatic. I consider the passage complained of when read in context could not fairly be said to have left the jury with the impression that any onus lay upon the accused in the course of the trial. 102 In oral submissions Mr Nicholson took us to a further passage in the summing up in support of his challenge that the Judge's directions concerning the onus of proof were misleading. At SU 93 his Honour said: "In any event, if you were satisfied beyond reasonable doubt that the accused, contrary to his own version, fired a shot because he was afraid that he might be killed, then you would have to consider the issue of self-defence. Of course, if you were satisfied beyond reasonable doubt that the accused, again contrary to his own version, deliberately fired the second shot into the back of the deceased while the deceased was lying on the ground near death, you might well consider that no issue of self-defence could arise at all. So it depends on the facts you find." 103 Mr Nicholson complained that the Judge by these directions cast the onus on the appellant on the issue of self-defence and compounded this error by directing that the standard of proof was beyond reasonable doubt. Mr Nicholson also submitted that his Honour wrongly imposed a test that the jury be satisfied that the accused was in fear of his life before considering self-defence. This latter suggested error was said to have been repeated at SU 95 where the Judge again referred to the question of the accused's fear for his life. 104 In this passage of the summing up the Judge was dealing with the circumstance that on the appellant's case the discharge of the firearm was accidental. It was the appellant's case he did not deliberately fire the weapon on any occasion. The Judge's directions emphasised that it was incumbent on the Crown to prove beyond reasonable doubt that the appellant had deliberately fired the gun before any question of self-defence arose. It is appropriate to set out the remainder of the directions that his Honour gave on the topic of self-defence: "If you find that self-defence arises in the way I have suggested, then that is a matter that the Crown has to confront. The Crown has to leave you satisfied beyond reasonable doubt that the accused was not acting in self-defence. Unless the Crown satisfies you that the accused was not acting in self-defence, then it fails to prove that the death of the deceased was an unlawful act. It will then have failed to have proved one of the essential ingredients in the charge of murder. On the other hand, if on the facts you find there is no reasonable possibility that self-defence arises, then the Crown will have eliminated self-defence. It is necessary for me to say this about self-defence; I am sure as a matter of common sense that you would appreciate that a person who believes that he has been attacked, or is about to be attacked, is entitled to defend himself against attack. You would, I am sure, not expect the law to be so foolish as to expect that a person who is facing the risk of attack has to stand passively by and allow the attack to take place and suffer personal harm before responding to it. The law says in such a situation that a person is entitled to defend himself or herself, although that is subject to some very important requirements of the law. Generally it is unlawful for a citizen to injure another without the others consent, whether that is done by using a weapon or otherwise. The only way in which the accused's act could have been lawful – if you are satisfied it was his deliberate act which inflicted the wound that led to the deceased's death - would be if he were acting in self-defence. That is the issue that I am raising with you here. The first thing that I should tell you about self-defence is that it is not a defence at all. The accused does not have to establish that he was acting in self-defence. As I have said, the Crown must prove that the accused did not act in self-defence when he killed the deceased, if you find that is what he did. The Crown must satisfy you about this beyond reasonable doubt before you could find the accused guilty. What the Crown must establish is that the accused did not believe, on reasonable grounds, that it was necessary in self-defence to do what he did. If a person believes on reasonable grounds that he is being attacked or about to be attacked he is entitled to defend himself. You will see the common sense in that I think. A person under attack is not obliged to stand by and simply allow his attacker to harm him. However the law recognises limits to what a person may do in self-defence. It is for that reason in law that a person may only do what he believes on reasonable grounds is necessary to defend himself. If an accused person forms such a belief on reasonable grounds, he cannot be found to have committed murder. As I said to you earlier, in order to prove that the act of the accused was unlawful, the Crown must prove either of two things. They are the two matters set out in your summary sheet at page 2 (a) or (b). In the present case in relation to the first matter, ie, 'the accused did not believe that what he did to the deceased was necessary to protect himself', the accused of course has said nothing about that belief in the present case. He has not said anything. In fact, he said he did not deliberately do the act or acts which caused the death. Nevertheless, if you were to accept that aspect of the evidence of Rebecca Mills which I have drawn your attention to, and if you were to infer from that evidence that in some way the accused got hold of this gun in circumstances where he had been struck and was in fear of his life, then you would need to ask yourself whether the Crown has established that the accused did not believe that it was necessary in self-defence to do the act causing death. The second way in which the Crown may eliminate self-defence, is to show that the accused had no reasonable grounds for believing that it was necessary in self-defence to do the act causing death. Again the Crown case is that the accused deliberately and intentionally shot the deceased in circumstances where he had come to the house with the intention of doing him really serious physical harm. The Crown says no threat was posed at all to the accused by the deceased. Further, the Crown says that the deceased was slain by two shots fired by the accused, the second of which was a shot to his back when the deceased was lying face down on the ground. The Crown suggests that it has – if you come to consider self-defence – satisfied you beyond reasonable doubt that it has eliminated that matter of self-defence. If the Crown does satisfy you about either of those matters, it does not have to prove them both, it will have proved that the accused's act was unlawful because it will have proved that he was not acting in self-defence. On the other hand, if the Crown fails to satisfy you of those matters beyond reasonable doubt, then you must acquit the accused of the charge of murder. May I put it another way. If there is a reasonable possibility that the accused believed on reasonable grounds, that it was necessary to fire off the first shot in self-defence, and there is a reasonable possibility that he had no involvement with the second shot, then the Crown's case would fail in relation to the charge of murder. In those circumstances, you would acquit the accused of the charge of murder. … At the end of the day, this is like so many questions you have to consider, a matter of commonsense. Bear in mind there is no rule that there has to be an absolute proportion between the threat and the response. Normally an accused person faced with a sudden danger or a threat, face or faced with an aggressive act does not have much opportunity for reflection or calm deliberation. … You should also take into account, depending on the nature of the facts you find, the nature of any threat. It is common sense that the more serious the threat in the eyes of the person under attack, the more serious the response might be. A person faced, for example, with a deadly weapon such as a firearm, might more readily believe that it is necessary in self-defence to offer a high degree of force in response. It might be said that he or she may well have reasonable grounds for having that belief. Finally on this point may I say that matters that I have dealt with may be expressed in short form as follows. Did the accused believe on reasonable grounds that it was necessary to do what he did in defence of his person? If he had that belief and had reasonable grounds for it, then the accused is entitled to an acquittal on the charge of murder. The onus is on the Crown to prove that he did not have that belief on reasonable grounds. If the Crown has failed to eliminate as a reasonable possibility that the accused had that belief on reasonable grounds, then the Crown will not have proved this essential ingredient in the charge of murder." (SU 93-97) 105 The Judge distributed to the jury written directions setting out the ingredients of the offence. The fourth ingredient of the offence set out at 1(d) on page 1 of those written directions was "The death of the deceased was an unlawful act (ie not an act done in self-defence) see section 2. " Section 2. Self Defence In order to establish that the act was unlawful the Crown must prove beyond reasonable doubt that the act of the accused which caused the death of the deceased was NOT done in self defence. It would do that by proving beyond reasonable doubt EITHER that: (a) The accused did not believe that what he did to the deceased (and which brought about his death) was necessary, to protect himself or (b) if he did have that belief, then he did not have reasonable grounds for holding that belief Note : The accused does not have any onus to show that he acted in self defence – the Crown must prove that he was NOT acting in self defence. If you are left with a reasonable doubt as to whether the act of the accused which killed the relevant deceased was not done in self defence, then you must acquit him of ANY offence, and return a verdict of NOT GUILTY . Note: (i) If the Crown has satisfied you beyond reasonable doubt of the essential ingredients of murder, 1(a), 1(b), 1(c) and 9d) set out on page 1, you go to consider the final ingredient provocation see section 3" 106 I do not consider that there is substance to the contention that, in the context of the directions as a whole the passage complained of served to mislead the jury or to convey that the appellant bore the onus of proving that he acted in self-defence. The Judge on more than one occasion directed the jury in accordance with the law as stated by the High Court in Zecevic v Director of Public Prosecutions (Vic)(1987) 162 CLR 645. He explained that proportionality of the response to the perceived threat was only one matter to be taken into account. Viewed as a whole the directions did not confine the jury to a consideration of self-defence only in the event that they considered that the appellant was in fear of his life. It is necessary to assess Mr Nicholson's complaint in the light of the issues as they were put to the jury at the trial. This was a case in which the appellant gave evidence that he was subject to an unprovoked attack in which he was knocked unconscious and that when he regained consciousness he was confronted by a man pointing a gun at him. He feared that he was going to be shot. I consider that the Judge's references to the appellant's fears for his life in the context of the issues in the trial to have been unexceptional. 107 No complaint was made by trial counsel that the directions in any respect served to reverse the onus of proof. No complaint was made as to the adequacy of the directions on self-defence. 108 I would refuse leave to the appellant to rely on ground 5 pursuant to r 4 of the Criminal Appeal Rules 1952. I would, in any event, have rejected this ground for the reasons that I have given. Ground 2 His Honour erred in refusing to allow the tender by defence counsel of a file note. 109 Documents were produced on subpoena by a firm of solicitors that had been retained by Mills in connection with claims made by her in the Victims' Compensation Tribunal. The first paragraph of a file note, MFI "31" stated: "Police threatened our client's father saying that if she did not revert to original statement then threatened her with jail. Our client has gone back to original statement". 110 It appeared that the file note was made on 25 February 2002. 111 Mills was cross-examined concerning representations made by her to her solicitor on 25 February 2002. She said that on that date she attended at the firm but did not see her solicitor. She had seen another solicitor named Michael Atkinson. She had told Mr Atkinson that she did not wish to proceed with her Victims' Compensation claim. She denied telling Mr Atkinson that the police had told her father that if she did not return to her original statement she would go to goal. She had not spoken to Mr Atkinson about her police statements. He had nothing to do with that matter. Mr Atkinson was concerned with a personal injury matter. Mills said that she did not think she had mentioned that matter (of returning to the original statement) to the other solicitor (T661-662) 112 Trial counsel tendered the first paragraph of MFI "31". The Crown objected to the tender on the basis that the representation contained in it was not admissible and, in the alternative, that it should be excluded in the exercise of the discretion conferred by s 135(1) of the Act. Trial counsel submitted that the file note was a prior inconsistent statement made by Mills which it was open to the appellant to prove under s 43 of the Act. He submitted that the file note was admissible under s 69(1) as a business record. 113 The Judge rejected the tender of the document. In the course of his reasons for making that ruling the Judge said this at paragraph [13] and following: "It is necessary to consider further whether the material which is sought to be tendered is relevant; whether it is evidence of a prior inconsistent statement, and whether it is admissible without more as a business record. All of these questions, in my opinion, are subsumed in a consideration of what it is exactly that the first paragraph in MFI 31 means; and further what the entry in fact represents. On its face, it does not appear to be the direct report of a representation made by the witness Miss Mills. Of course, it may be that, but it does not possess that intrinsic character by virtue of the manner in which it is expressed. It may be, for example, and I simply do not know, a statement, conclusion or supposition by whoever it is who was the author of the file note. Again, I do not know who that author was; whether it was Mr Atkinson, Mr Hargen or someone else. Nor do I know what the circumstances were that led to the writing of the matter in that paragraph. It is, of course, possible, as I have already said, that it may have simply been something stated to a solicitor in the office by Miss Mills, although she has denied that that is so. It is quite apparent that, without a considerable deal of addition evidence, it is not possible to say that it has that character. It may, for example, have been the view of the person who wrote the note as a consequence of something he was told by somebody else in the firm who had examined the file; or it may be something that he or she concluded from an examination of the file; or it may have been a conclusion reached after discussion with a person or persons other than Miss Mills. The file note does contain other statements consistent with the giving of instructions by Miss Mills but it cannot be conclusively assumed, without more, that the opening paragraph bears that character. While it may be accepted that MFI 31 is, in general terms, properly described as a business record admissible under s 69, I am not certain or satisfied that, without more, the first paragraph is admissible on that basis. By that, I mean to ascertain whether it is relevant and whether it is evidence of a prior inconsistent statement and whether it is, in fact, a recitation of a representation made by Miss Mills to some person in the office of the solicitors, it would be necessary, I consider, for evidence to be called to establish that was so. While I accept that generally the page might be described as a business record, counsel for the accused is really only concerned to put in evidence that opening paragraph. That is essentially the matter he wants to place before the jury. Because of the hesitation I have about whether the relevant passage of the document may be properly admissible as a business record or, more precisely, whether the first paragraph falls into that category, without further evidence, it is necessary for me, I think, to consider, as the Crown has urged me to do, the provisions of s 135". 114 The Judge went on to deal with the Crown's submission that the document should be rejected in the exercise of discretion. His Honour noted that as a general rule a court should exercise caution in refusing to admit evidence led in the case of an accused at a criminal trial. A matter that the Judge took into account in determining that it was appropriate to exclude the evidence in this case was the fact that there was in evidence a letter written by Mills to the appellant, Ex "3", in which she stated: "That's when the detective rang my father and threatened to lock me up for up to seven years. Me in jail away from my son. Could they have done that? Well, it freaked my father out so I went back and did as they said and changed the statement back." 115 The Judge approached the matter on the basis that Ex "3" contained a representation that was unquestionably made by Mills of the matter that was sought to be proved by the tender of MFI "31". It was not possible to say whether MFI "31" was a record of a representation made by Mills or by some other person. In the Judge's view a significant amount of investigation and further evidence might be undertaken in order to identify the maker of the representation. His Honour observed (judgment 17 April, 2002 at [20]): "When I turn to consider what will need to be done or what, in my view, arguably might need to be done as a consequence of either the tender of the document or the need for the investigation of the true circumstances of the recording of the first paragraph in the file note MFI 31, it is apparent that the entire exercise might properly be described as a collateral side wind which may, at the very highest, result in a situation where what emerges is in fact a representation made by the witness to the same or similar effect as that contained in her direct statement in Ex "3"; or it may not, and it seems to me the better view is that it is quite likely that it will not get to the point that it has the force of the statement in Ex "3"." 116 The appellant submitted that the file note had significance in addition to any representation that Mills had made in a letter addressed to him. The jury might reason that Mills had her own agenda for making a representation of this sort to the appellant given the history of their relationship. There was said to be no motive for her to repeat the assertion in the course of an interview with her solicitor if it were not the fact. In the context of dealing with these submissions the Judge noted that Mills had agreed in cross-examination that she had been told by some person, she was unable to remember whether it was a police officer or her lawyer, that there was a possibility that she might go to gaol for a number of years for making a false statement. She acknowledged that this was a matter of concern to her. 117 The Judge concluded that the admission of the file note into evidence was likely to cause the trial to be lengthened. This was against a background of what had already been a lengthy cross-examination of Mills. Taking into account that Ex "3" was in evidence, the Judge considered that the probative value of the evidence was substantially outweighed by the danger that its admission might result in undue waste of time. 118 Following the determination made on 17 April 2002 rejecting the tender of the file note, trial counsel renewed the tender after two further documents came to light (i) an authority addressed to the firm of solicitors dated 25 February 2002 apparently signed by Mills and containing written confirmation of her instructions not to proceed with her claim for compensation relating to a sexual assault upon her on 22 July 2000 and (ii) a letter from the solicitors addressed to Mills stating: "We confirm your attendance at this office on 25 February 2002, and note your instructions that you do not wish to proceed with your claim as a secondary victim regarding your witnessing of the shooting of Adam, nor do you wish to continue with your application for compensation regarding the sexual assault upon you." The file copy of the letter was unsigned, but it appeared to originate from either Oliver Hargen or Judy Howard. Mr Hargen was the solicitor who attended the police station with the witness, Mills, on 18 January 2001 when she participated in a further interview with Detective Parmeter. 119 Trial counsel submitted that the additional documents made it clear that the file note dated 25 February 2002 was a contemporaneous record of a conference with Mills. The Judge accepted that on 25 February 2002 Mills instructed her solicitors that she did not wish to proceed with the two claims she had lodged under the victims' compensation legislation. In reasons published on 22 April 2002 his Honour found that it remained a matter of speculation as to who was the author of the file note. It was not clear that the opening paragraph of the file note was a record made by Mr Hargen of something said by Mills. His Honour said this: "In my view there would need to be evidence to support or justify the tender. Alternatively if the tender were allowed, without additional evidence, there would more than likely be the prospect that the Crown would seek to call evidence to explain and clarify the provenance of the opening paragraph of MFI 31. Miss Mills would undoubtedly have to be cross-examined further, and perhaps re-examined in relation to the topic." 120 His Honour considered that the additional material did not provide a basis for departing from the conclusion expressed in his earlier decision. 121 In written submissions Mr Nicholson contended that the Judge had applied an unduly restrictive test in determining whether the document was admissible. He directed attention to the Judge's remarks that I have extracted at [113] above and, in particular, to the observation that, "It cannot be conclusively assumed, without more, that the opening paragraph bears that character". 122 Mr Nicholson also submitted that the Judge erred in giving the weight that he did to Ex "3" as a basis for his conclusion that the probative value of the evidence was substantially outweighed by the danger that it might cause or result in undue waste of time. Finally, Mr Nicholson submitted that the Judge erred in holding that he was not satisfied, without more, that the file note was admissible under s 69 of the Act. 123 Section 69 relevantly provides: (1) This section applies to a document that: (a) either: (i) is or forms part of the records belonging to or kept by a person, body or organisation in the course of, or for the purposes of, a business, or (ii) at any time was or formed part of such a record, and (b) contains a previous representation made or recorded in the document in the course of, or for the purposes of, the business. (2) The hearsay rule does not apply to the document (so far as it contains the representation) if the representation was made: (a) by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact, or (b) on the basis of information directly or indirectly supplied by a person who had or might be reasonably be supposed to have had personal knowledge of the asserted facts. (3) Subsection (2) does not apply if the representation: (a) was prepared or obtained for the purpose of conducting, or for or in contemplation of or in connection with, an Australian or overseas proceeding, or (b) was made in connection with an investigation relating or leading to a criminal proceeding. … (5) For the purposes of this section, a person is taken to have had personal knowledge of a fact if the person's knowledge of the fact was or might reasonably be supposed to have been based on what the person saw, heard or otherwise perceived (other than a previous representation made by a person about the fact)." 124 "Business" is defined in cl 1 of Pt 2 of the Dictionary to the Act to include a reference to a profession. The file note was produced on subpoena and it formed part of the records of a firm of solicitors. 125 No consideration was directed in the course of the proceedings before the trial judge to any contention that the exclusion of the hearsay rule under s 69(2) did not apply by reason that the representation was prepared or obtained for the purpose of conducting, or for or in contemplation of or in connection with, an Australian proceeding within the meaning of s 69(3)(a). For present purposes I assume that it was not. 126 It is not clear whether his Honour came to a view as to whether the document was admissible as a business record pursuant to s 69(2)(b) of the Act. I think that it was. It formed part of the records of a business and contained a previous representation recorded in the course of, or for the purposes of, the business. The contents of it are consistent with it being an attendance note. The evidence established that Mills attended the solicitors' office on 25 February 2002. His Honour found the balance of the file note to be consistent with being Mills' instructions. It seems to me that the representation that was sought to be proved, that Mills asserted that the police had told her father that she would go to gaol if she did not return to her original statement (not that the police had made such a threat to Patrick Mills), would come within s 69(2)(b) of the Act. 127 Ultimately, the Judge refused to admit the evidence not because of a finding that it was inadmissible but in the exercise of the discretion conferred by s 135 of the Act. 128 The Judge took into account that this was a criminal trial and that it was the appellant who was seeking to get the evidence in. Notwithstanding these considerations his Honour concluded that the evidence should be rejected. In coming to this view he had regard to the availability of other evidence to prove the same matter and the likelihood that the admission of the document would both prolong the already lengthy cross-examination of Mills and lead to further evidence being called as to the circumstances in which the note came to be made. 129 The question for this Court is not whether it would have exercised the discretion in the way that the Judge did but rather whether his Honour's discretion has been shown to have miscarried. Mr Nicholson in his written submissions did not seek to contend that it was not open to the Judge to have regard to the availability of Ex "3" as a reason for concluding that the probative value of the evidence was outweighed by the danger that its admission may result in undue waste of time. Rather he submitted that the Judge had erred in giving the prominence that he did to this consideration when the circumstances of writing a letter to the appellant and of making the same assertions to her solicitor were distinct. 130 I consider that the occasions on which the exercise of the discretion under s 135 to reject evidence tendered by an accused in the course of criminal proceedings will be few. However, I am not persuaded that it was not open to the Judge in the exercise of discretion to have made the determination that he did. If I am wrong in coming to this view, I would nonetheless conclude that the rejection of the first paragraph of MFI "31" did not occasion a substantial miscarriage of justice. There was an abundance of evidence before the jury to demonstrate that Mills, a person with a history of drug abuse and mental problems, had made inconsistent statements on occasions when she was aware of the need to tell the truth. There was evidence that she had told the appellant that she had been pressured by the police to revert to the earlier version that she had given under threat of imprisonment and her acknowledgment in cross examination that either a police officer or a lawyer had drawn to her attention the risk of imprisonment should she make a false statement. I do not consider that it can be said that the appellant lost a chance fairly open to him of being acquitted because the jury did not have the benefit of the first paragraph of MFI "31" in assessing Mills' credibility. 131 I would reject ground 2. Ground 3 His Honour erred in determining that the Crimes Amendment Self-Defence Act 2001 had no application to the trial. 132 The Judge decided that self-defence should be left to the jury. His Honour raised with counsel the question of whether the Crimes Amendment Self-Defence Act 2001, which inserted Div 3 Pt 11 into the Crimes Act 1900 dealing with self-defence, applied to the trial. When the matter was first raised both the Crown and trial counsel were in agreement that the Act did not apply and that the jury should be directed on the issue of self-defence in accordance with the common law. After further discussion trial counsel sought instructions and submitted that the provisions of Div 3 Pt 11 of the Crimes Act applied. His Honour determined that the Crimes Act did not apply and directed the jury in conformity with the law as stated by the High Court in Zecevic. 133 The history of the proceedings is set out in his Honour's judgment of 30 April 2002. 134 On 5 October 2001 the appellant was arraigned before Justice Kirby on an indictment that charged him with the murder of Adam Scott. The indictment was dated 26 September 2001 and signed by Mr Peter Dare on behalf of the Director of Public Prosecutions. The appellant entered a plea of not guilty and the trial was fixed for hearing on 11 March 2002. For reasons that it is not necessary to go into the trial did not commence until 25 March 2002. On that date the appellant was called for trial and the Crown presented an indictment. The indictment was not the indictment that had been presented before Kirby J at the arraignment hearing. It differed in two respects. It was dated 25 March 2002 and it was signed by Mr Hoyle SC as the Crown Prosecutor on behalf of the Director of Public Prosecutions. In all other respects it was in the same terms as the indictment that had been presented before Kirby J and which remained on the Court's file. 135 A jury was empanelled on 25 March 2002. Shortly thereafter the jury was discharged and the proceedings were stood over to the following day. On 26 March 2002 when the appellant was called for trial the Crown Prosecutor handed up a new indictment that was in all respects the same as the indictment on which the appellant had been arraigned on the previous day (and as that on which he had been arraigned before Kirby J) save that it was dated 26 March 2002. The appellant was arraigned and entered a plea of not guilty and a jury was empanelled and the trial proceeded. 136 Between the date of his arraignment before Kirby J and the date the trial commenced the Crimes Amendment Self-Defence Act introduced Div 3 of Pt 11 into the Crimes Act. The Division came into effect on 22 February 2002. 137 The provisions of Div 3 Pt 11 of the Crimes Act effect significant alteration to the law of self-defence. Importantly, s 421 provides in the case of excessive self-defence that the crime of murder is reduced to manslaughter. In this respect the statutory regime is more favourable to an accused person on trial for the offence of murder than the common law. 138 Section 423 provides: "423(1) This Division applies to offences committed before or after the commencement of this Division, except as provided by this section. (2) This Division does not apply to an offence if proceedings for the offence (other than committal proceedings) were instituted before the commencement of this Division." 139 The Judge concluded that the proceedings for the offence of the murder of Adam Scott had been instituted for the purposes of s 423 no later than the occasion on which the appellant was arraigned before Kirby J. 140 Section 423 extends the operation of the statutory regime governing self-defence to proceedings for offences that have been commenced but that have not reached the stage of committal for trial. This recognises that the magistrate committing an accused person for trial is not determining any issue of self-defence. 141 Mr Nicholson submitted that proceedings for the offence were instituted within the meaning of s 423 when the appellant entered his plea upon his arraignment on the indictment that was presented in the presence of the jury panel before Whealy J on 26 March 2002 . 142 Section 130(2) of the Criminal Procedure Act 1986 provides: "130(1) In this section, court means the Supreme Court or District Court. (2) The court has jurisdiction with respect to the conduct of proceedings on indictment as soon as the indictment is presented and the accused person is arraigned, and any orders that may be made by the court for the purposes of the trial in the absence of a jury may be made before a jury is empanelled for the trial. (3) If proceedings are held for the purpose of making such orders after the indictment is presented to commence the trial and before the jury is empanelled: (a) the proceedings are part of the trial of the accused person, and (b) the accused person is to be arraigned again on the indictment when the jury is empanelled for the continuation of the trial. (4) Nothing in this section requires a jury to be empanelled if the accused person pleads guilty to an offence during proceedings to which this section applies. (5) This section applies to proceedings in respect of indictments presented after the commencement of this section. 143 Section 5 of the Criminal Procedure Act provides that an offence must be dealt with on indictment unless it is an offence that is permitted or required to be dealt with summarily. The offence of murder is one that must be dealt with on indictment. 144 Section 129 of the Criminal Procedure Act makes provision for an indictment to be presented within four weeks after the committal of the accused person for trial, except as provided by the section. Provision is made for the time within which the indictment is to be presented to be extended pursuant to s 129(3). 145 Section 154 of the Criminal Procedure Act provides that if an accused person arraigned on an indictment enters a plea of not guilty he is taken to have put himself on the country for trial and the court is to order a jury for trial accordingly. This provision was inserted into the Criminal Procedure Act by the Crimes Legislation Amendment (Sentencing) Act 1999. A provision in identical times was previously contained in s 395 of the Crimes Act 1900. To put oneself on the country for trial is to submit to trial by jury. In England in early times the accused was required to consent to trial by jury. After entering a plea of not guilty upon arraignment he was asked "how will you be tried?" to which the required response was "by God and my country", which signified consent to the trial: Stephen, History of the Criminal Law of England, (London: Macmillan and Co, 1883) vol 1 at 297-298. Stephen observes (at 275), "the pleadings in a criminal trial have always consisted, and still consist, of an indictment engrossed on parchment, and a plea given by the accused person orally in open court, of guilty or not guilty." The accused by his plea of not guilty joins issue with the Crown. The Court is to order a jury to try the issue. It has the power to adjourn the proceedings. 146 What is the significance of the fact that following his arraignment before Kirby J the appellant was re-arraigned before Whealy J on a new indictment albeit one that charged him with the same offence in identical terms? 147 In R v Howard (1992) 29 NSWLR 242 at 247 the Court considered that proceedings for an offence on indictment may be brought to a conclusion in one of three ways: trial, plea of guilty or the entry of a nolle prosequi. The latter is to-day effected by direction given pursuant to s 7(2)(b) of the Director of Public Prosecutions Act 1986 that there be no further proceedings. In Howard the Court found that the Director of Public Prosecutions' determination that there be no further proceedings on an indictment charging the appellant with manslaughter was taken to have been communicated to the Court by the presentation of an indictment against the appellant charging him with murder. Howard was decided before the introduction of s 20 of the Criminal Procedure Act, which requires the leave of the court, or the consent of the accused, to an amendment of the indictment. 148 The presentation of an indictment charging the appellant in the same terms, but signed by a different Crown Prosecutor, did not amount to the communication to the Court of a determination by the Director of Public Prosecutions that there be no further proceedings upon the indictment charging the appellant with the murder of Adam Scott. The indictment upon which the appellant was arraigned before Kirby J was not brought to a conclusion in any of the ways identified in Howard. 149 Section 20 provides that an indictment may not be amended after it is presented, except by the prosecuting authority with the leave of the court or with the consent of the accused. In cases in which an indictment is amended a note of the order for amendment is to be endorsed on it: s 22 of the Criminal Procedure Act. For the purposes of s 20 an amendment of an indictment includes the substitution of an indictment: s 20(3). No application was made to amend or to substitute the indictment that had been presented before Kirby J. 150 In the course of the hearing of the appeal the Crown Prosecutor submitted that the handing up of an indictment that in all material respects was the same as the indictment presented upon the earlier arraignment did not amount to the substitution of the indictment within the meaning of s 20 of the Criminal Procedure Act. He said that it was a common practice for the Crown Prosecutor to hand up a fresh indictment framed in the same terms as the indictment upon which the accused had earlier been arraigned. The justification for the practice was that the jury, in a case in which a copy of the indictment was handed to it, would not be troubled by writing on it made by the judge's associate recording events that had occurred prior to empanelment. The suggested difficulty does not seem to me to be of great moment. It is common for copies of the first page of the indictment setting out the details of the charge to be distributed to each member of the jury in cases involving multiple counts. The associate's notations do not appear on the first page of the indictment. In any event, regardless of convenience, the indictment is the originating process in criminal proceedings in the District Court and the Supreme Court and once presented may only be amended or substituted in accordance with the provisions of the Criminal Procedure Act. 151 I am not persuaded that to present an indictment charging an offence in the same terms as an indictment on which the accused has previously been arraigned, signed by a different Crown Prosecutor or bearing a different date, is not the substitution of that indictment for the previous one within the meaning of s 20 of the Criminal Procedure Act. The Macquarie Dictionary defines the noun "substitute" as "a person or thing acting or serving in place of another". It seems to me that the plain meaning of the words of s 20 are against the Crown's contention: see, too, the discussion in R v Sepulveda [2003] NSWCCA 131 at [58] and [59]. 152 Mr Nicholson submitted that proceedings on the indictment dated 26 September 2001 had not been kept on foot by the Crown. The Crown had elected to commence fresh proceedings by the presentation of the new indictment on 25 March 2002 and it had commenced further fresh proceedings by the presentation of the indictment dated 26 March 2002 on that date. In the course of oral submissions he put it this way: "If it is sought, however, to vary in any way existing proceedings after they have been commenced on indictment, then those proceedings may be continued, those proceedings by either amendment or substitution in each case with leave. If they are not continued, then the presenter of the later indictment is not operating within the Criminal Procedure Act linking the earlier proceedings and is rather a foundation document for jurisdiction which is then heard for new and separate proceedings….if it is desired that existing proceedings be continued, there is a legislative scheme which provides for how they are to be continued by amendment or substitution by leave. If the Crown chooses to start a new set of proceedings by presenting an indictment so be it. There is no substitution, there is no amendment, they can have the power to present it and the Court entertain it and a trial was had upon it" (T 17). 153 Mr Nicholson's submission needs to be considered in the context of the scheme of the Criminal Procedure Act relating to the trial of offences on indictment including s 130 that is set out at paragraph [142] above and s 20. It is appropriate to set out the terms of the latter in full: "20(1) An indictment may not be amended after it is presented, except by the prosecuting authority: (a) with the leave of the court, (b) with the consent of the accused. (2) This section does not affect the powers of the court under section 64. (3) For the purposes of this section, an amendment of an indictment includes the substitution of an indictment." Section 130 confers jurisdiction on the Court with respect to the conduct of proceedings on indictment. Section 20 precludes the Crown from amending an indictment after its presentation without the leave of the Court or the consent of the accused. On Mr Nicholson's analysis proceedings for the offence are continued where the Crown obtains the consent of the accused or the leave of the court to the substitution of an indictment. There is no obstacle to the Crown electing to substitute an indictment without the leave of the court or the consent of the accused. In such a case the proceedings on the substituted indictment are fresh proceedings for the offence. As I under stand the submission, the proceedings for the offence instituted by the presentation of the earlier indictment remain in abeyance subject, perhaps, to merging in the judgment entered on the jury's verdict in the later proceedings. On this analysis s 20 of the Criminal Procedure Act would seem to be redundant. 154 Mr Nicholson emphasised that the provisions of Div 3 Pt 11 of the Crimes Act are beneficial and he submitted that the Court should construe s 423 liberally in the event of any ambiguity so as to favour enlargement of the application of the statutory regime. Accepting this to be the proper approach to the construction of the provision, I am not able to accept Mr Nicholson's principal contention. Section 423 is directed to the institution of "proceedings for the offence" (other than committal proceedings). The institution and conduct of proceedings on indictment in this Court is governed by the provisions of the Criminal Procedure Act and the common law to the extent that the latter is not altered by the former. It seems to me that proceedings for the offence of the murder of Adam Scott were instituted in this Court on a date no later than 5 October 2002 when the appellant entered his plea upon his arraignment before Kirby J. It was then that the appellant was deemed to have put himself on the country for trial in respect of the charge that he had murdered Adam Scott. 155 In my opinion the presentation of the indictment on 26 March 2002 was a step in proceedings for the offence that had been instituted at an earlier time. It may be that the appellant's consent to the substitution of the new indictment is to be implied for the purposes of s 20(1) of the Criminal Procedure Act given the absence of objection by him to that course: Sepulveda at [33] If the appellant's consent is not to be implied, then the substitution of the new indictment upon which he was arraigned on 26 March 2002 was not authorised by the Criminal Procedure Act. The appellant was not prejudiced by the presentation of an indictment charging him in identical terms to that upon which he had earlier been arraigned. It was not submitted, and I do not consider, that a procedural irregularity of this character vitiated the trial: Mackay v The Queen (1977) 136 CLR 465. 156 I consider the trial judge was correct to hold that the provisions of Div 3 Pt 11 of the Crimes Act had no application to the conduct of this trial since proceedings for the offence of the murder of Adam Scott had been instituted prior to 22 February 2002 when the Division commenced. I would reject this ground of appeal. Ground 4 157 The trial miscarried for the following reasons: (a) The combined effect of the errors referred to in the earlier ground. (b) The verdict was unreasonable and could not be supported by the evidence. 158 For the reasons that I have set out above I am not persuaded that the trial miscarried by reason of the matters the subject of grounds 1, 1A, 1B, 2, 3, or 5. 159 The submission in support of ground 4B was put shortly by Mr Nicholson in written submissions as follows: "Further, such was the unreliability of the evidence of the principal witness, Rebecca Mills, who was the sole eye witness to the incident, the jury ought to have had a reasonable doubt and acquitted the appellant: Morris v The Queen (1987) 163 CLR 454." 160 The question to be determined by a ground that challenges the verdict as unreasonable is that posed by the High Court in M v The Queen (1984) 181 CLR 487 at 494-495: "Whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty". In arriving at this determination the court must pay full respect to the circumstance that the jury is the body entrusted with the primary responsibility of determining the question of guilt and that it had the benefit of seeing and hearing the witnesses; M v The Queen at 493. 161 Central to Mr Nicholson's submissions is the contention that Mills was an unsatisfactory witness who had made a number of inconsistent statements on occasions when she was under an obligation to give a truthful account. So much may be acknowledged. 162 The Judge gave the jury a warning concerning the reliability of the evidence of Mills. He drew attention to the circumstance that at the time she made the first statement and participated in the re-enactment she may have been suffering from some form of mental difficulty as the result of drug use. He reminded them of her evidence that she had experienced episodes of drug-induced psychosis including hallucinations and hearing voices. In the context of the reliability warning the Judge reminded the jury that Exhibits "2" and "3" included an account given by Mills that she had been high on a cocktail of drugs at the time of the fatal events. 163 There was no issue at the trial but that the accused was present in the premises at the time the first shot was fired. At that time it is common ground that the deceased, Mills and the appellant were present in the lounge room. It was the appellant's case that as he ran from the premises (having discharged one shot accidentally in the course of a struggle in which the deceased was the attacker and not him) he saw the figure of another person in the hallway of the premises. This left open a view that there was a fourth adult person inside the premises at that evening and that this unknown person fired the second shot. 164 It was common ground that the gun that was used to shoot the deceased belonged to the appellant. He was uncertain about what had happened to the gun after the first shot was fired. It was not located in the premises when the police arrived shortly after the events. In her first interview and in the re-enactment Mills said that the only adult persons present in the premises were the deceased, the appellant and herself. It was open to the jury to consider the contents of the phone call to the emergency services provided strong support for the accuracy of Mills' account in this respect. 165 I have viewed the video recorded re-enactment. I have already noted Mr Nicholson's submission that, while it appears to be a coherent account of the events, one is not to know that it is not merely a recitation of an account that had been put together as the result of leading questions asked of Mills during the first interview. In my view it was open to the jury to reject such a contention having regard to the quality of Mills' answers and her general appearance and demeanour throughout that video recorded interview. In the course of the re-enactment Mills appeared to be in a state of distress as she described the circumstances of the second shooting: "I dunno what he was trying to do, but I know he was trying to get out of the room. He looked so much in pain. And as he reloaded and just walked up to him and shot him again turned to me and said, 'it's over now.' Walked out the door. And he wasn't moving or breathing. And I went and slammed the door to make sure he couldn't get in and I went and gone to the phone to the police. Q 39. OK How long between the first shot was fired and the second shot? A. I'm not sure, maybe, it's felt like forever. It would have been under a minute, he did it so quickly." 166 The account that Mills gave in the course of the re-enactment was supported by other evidence including the evidence of Melissah Harris as to the appellant's threats directed to the deceased, the evidence of Dee Spurway as to the interval between the two shots, the finding of the keys by the lounge and Dr Langlois' evidence as to the second wound. 167 I have listened to the recording of Mills' telephone call to the emergency services' operator, which lasted around ten minutes. During the whole of this time Mills' presentation was consistent with her being distressed and frightened. In that call, made within a minute or two of the second shot (at a time when she had not been spoken to by any police officers) Mills said that the appellant, whom she described as her ex boyfriend, thought that she was going to be with the deceased and so he killed him. The fear that Mills voiced throughout the call was that the appellant might come back to the premises. 168 I have reviewed the evidence. Notwithstanding that Mills' was an unreliable witness, I consider that the Crown case was a cogent one and that it was open to the jury to convict. I would reject this ground. Sentence 169 The appellant seeks leave to appeal against the severity of the sentence imposed on him. 170 No error was identified in the Judge's reasons for sentence. Rather, Mr Nicholson submitted that having regard to the appellant's relative youth and good character and to the circumstance that the killing occurred in a context of emotional turmoil, the Judge must be taken to have erred, both in fixing a sentence of eighteen years and in declining to find special circumstances so as to depart from the statutory proportion between the head sentence and the non-parole period. 171 The Judge found that the break-up of the appellant's relationship with Mills and his concerns about her association with the deceased created a potentially explosive emotional mix. His Honour was satisfied beyond reasonable doubt that prior to 25 July the appellant had made threats directed at the deceased. He rejected as inherently improbable the account given by the appellant in his evidence. He found that when the appellant went to see the man, Joe, at the Woolworths' car park he had become aware of the deceased's car in the car park. The appellant returned to his home at 41 Lloyd Street, Blacktown and collected the weapon from under his bed and put it in his holster. The Judge found that the appellant went to the Indigo Way premises intending to confront Mills and the deceased. 172 The Judge was satisfied that the appellant was deeply angered and distressed by the fact that it appeared the deceased was spending the night at Mills' home. He sentenced the appellant upon an acceptance of the version of events given by Mills in the first interview and the re-enactment. 173 The Judge approached the matter upon the basis that the appellant was in a state of emotional disturbance, but that he knew exactly what he was doing when he fired two shots at close range into the deceased intending to kill him. His Honour accepted that the appellant's troubled frame of mind at the time of the killing included his genuine concern and affection for Mills and her son however he found beyond reasonable doubt, that the predominant emotions were anger, a sense of rejection, resentment, jealousy and a desire for revenge. 174 Although satisfied that the appellant armed himself with the Thomson Contender firearm and ammunition before going to the premises the Judge was not satisfied beyond reasonable doubt that he had formed an intention to kill the deceased at that time. He was not satisfied of the formation of such an intention prior to the confrontation in the home. Thus his Honour did not approach the sentence upon the basis that this was a planned, premeditated execution. The decision to kill the deceased occurred in the lounge room of the Indigo Way premises in the context of an escalating tide of emotion. While not premeditated his Honour concluded the circumstances of the killing revealed it to be an objectively serious offence. The appellant had taken a weapon with him into an emotionally charged situation where it was likely that it may be used. No conduct on the part of the deceased had in any sense provoked the appellant. 175 The Judge reviewed the subjective material called in the prisoner's case on sentence at length. There is no complaint that he failed to take into account any matter in this respect. He carefully evaluated the evidence of the psychologist, Ms Barrier, and the psychiatrist, Dr Skinner. Dr Skinner was of the opinion, given the absence of a previous history of aggression or violence, that the appellant was probably in a disturbed mental state at the time of the killing. In this context his Honour also commented on the character references from a number of friends, co-workers and family members. In general each of the authors described the appellant as a passive and non-violent person. 176 The case that the appellant made was that his behaviour on this occasion was an aberration entirely out of character. The Judge concluded that the appellant was, for the most part, a quiet, unassertive and non-violent person. There had been one previous incident in which, in the context of the break up of a relationship, the appellant had engaged in aggressive behaviour involving the use of a firearm. The Judge was satisfied of this fact beyond reasonable doubt. This did not serve to increase the penalty imposed in respect of the offence, but as the Judge explained it was relevant to the question of whether he would accept without qualification the submission that the events of 25 July 2000 were an aberration that was completely out of character. His Honour concluded that the appellant was generally a non-assertive and non-violent person, but that he had the capacity for aggression in circumstances involving his rejection in the context of a relationship. 177 His Honour did not find that considerations of future dangerousness were relevant to the exercise of the sentencing discretion. 178 The appellant did not give evidence on sentence. The Judge found that there was little evidence of remorse and contrition. He considered that the appellant had failed to take responsibility for his actions. 179 The Judge accepted that the appellant was a young man with no relevant criminal history. 180 The Judge rejected the submission that special circumstances had been made out such as to justify a departure from the proportion provided by s 44(2) of the Sentencing Procedure Act (as it then stood). In coming to this view his Honour expressed himself satisfied that the length of the parole period that he proposed would be sufficient for the appellant's rehabilitation. He took into account pre-sentence custody and backdated the sentence in order to give full credit for it. He noted that the statutory proportion between the sentence and the non-parole period would produce a non-parole period of thirteen years and six months. A non-parole period of fourteen years was specified. His Honour was of the view that fourteen years was the minimum period of imprisonment that the appellant should serve in custody because the crime committed called for detention of that length; Power v The Queen (1973) 131 CLR 623 at 628; Regina v Simpson (2001) 53 NSWLR 704 per Spigelman CJ at 717, [57] – [59]. 181 I do not consider that his Honour has been shown to have erred in his determination that the non-parole period should exceed by a modest amount the term that the statutory proportion would produce. Notwithstanding the appellant's good character and the generally positive case advanced on sentence I consider that it was well within the range of the exercise of the Judge's discretion to impose a head sentence of eighteen years and to determine that the non-parole period should be fourteen years. 182 For these reasons the orders that I propose are: 1. Dismiss the appeal against conviction. 2. Grant leave to appeal against the sentence, but dismiss the appeal. 183 MILES AJ: I agree with Bell J. ********** Last Modified: 11/10/2003 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.