Ridgeway v R

1. [1]

   THE COURT: On 8 February 2022, the applicant, Lily Ridgeway, was convicted of manslaughter contrary to s 18(1)(b) of the Crimes Act 1900 (NSW). On 27 May 2022 she was sentenced to 7 years and 7 months imprisonment, to date from 29 November 2020 and expiring on 28 June 2028 with a non-parole period of 5 years expiring on 28 November 2025: R v Ridgeway [2022] NSWSC 684. A finding of special circumstances was made and the ratio of the non-parole period to the head sentence was 65.9%. The applicant sought to appeal against both conviction and sentence on the following grounds:

2. [2]

   The applicant sought the following orders:

3. [3]

   To the extent that the applicant’s sole ground of appeal against her conviction did not involve a question of law alone, she required leave to appeal. She also required leave to appeal against her sentence: Criminal Appeal Act 1912 (NSW), s 5(1). She required an extension of time for filing her notice of appeal and application for leave to appeal: Criminal Appeal Act, s 10. Given the strength of the applicant’s first ground of appeal against her sentence, an extension of time and leave to appeal was granted. As the appeal against conviction was upheld, it was unnecessary to consider the proposed appeal against sentence.

4. [4]

   Further, as no objection was taken at trial to the admissibility or use for a hearsay purpose of the evidence relied upon in ground 1 of the notice of appeal, the applicant required leave to rely upon that ground of appeal under r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) (“Rule 4.15”). Given that the Court was satisfied that the matters raised in ground 1 of the notice of appeal constituted a miscarriage of justice, leave under Rule 4.15 was granted: see eg Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [24] (Bathurst CJ, Leeming JA, R A Hulme, Hamill and N Adams JJ agreeing).

5. [5]

   At the conclusion of the hearing of this appeal on 3 May 2024 this Court made the following orders:

6. [6]

   Later that same day after a hearing on the bail application this Court granted the applicant bail on conditions.

The key issue on the appeal against conviction

1. [7]

   By way of background, it is uncontroversial that at about 5:20am on 29 February 2020 the applicant stabbed Jason Adams (the “deceased”) in the left chest. The stabbing occurred just outside the house where Nikita Hanson, who was present in the house at the time of the stabbing, was living. The applicant did not give evidence at trial. Her defence at trial was twofold. First, that the stabbing was accidental, and it occurred when the deceased advanced towards her when she was holding a knife. Second, in the alternative, she relied upon self-defence and defence of Ms Hanson.

2. [8]

   The key matter relied upon in ground 1 of the notice of appeal was the admission at trial, without any limitation or direction from the trial judge as to use, of evidence that in a statement made to police on 10 March 2020, Ms Hanson said that very shortly after the stabbing the applicant had said the words:

3. [9]

   For convenience, in this judgment we will sometimes describe Ms Hanson’s evidence that the applicant said these words as the “10 March 2020 Statement”.

4. [10]

   As set out below, at trial, Ms Hanson accepted that on 10 March 2020 she had told police that the applicant had said those words, but she denied that the applicant had in fact said those words shortly after the stabbing or at all.

5. [11]

   There was no dispute on appeal that the 10 March 2020 Statement was admissible on the issue of Ms Hanson’s credibility, as a prior inconsistent statement. However, as accepted by the Crown on appeal, if objection had been taken, the 10 March 2020 Statement would not have been admissible for a hearsay purpose (subject to one contention which the Crown made in its written submissions relying upon s 81(2) of the Evidence Act 1995 (NSW), discussed below).

6. [12]

   At trial counsel for the applicant, Ms McLaughlin, did not object to the 10 March 2020 Statement being admitted for a hearsay purpose. Nor did she seek any direction from the trial judge limiting its use by the jury. In an affidavit affirmed on 12 February 2024 she explained this on the basis of mere inadvertence:

7. [13]

   As set out below, there is an issue as to the admissibility of that affidavit on the issue of miscarriage of justice, as opposed to on the question whether leave should be granted under Rule 4.15. That issue is discussed below.

8. [14]

   The applicant contended that a miscarriage of justice arose in the circumstances on two, alternative bases. First, that the failure of the applicant’s counsel at trial to object to a hearsay use of the 10 March 2020 Statement or to seek a direction limiting the use of that evidence led to a miscarriage of justice. Second, notwithstanding that failure, that the trial judge nonetheless had an obligation to ensure that the applicant had a fair trial, which required her Honour to make enquiry of defence counsel to see if a direction should be given and perhaps in any event to consider giving a hearsay warning. The failure of the trial judge to take any such step resulted in a miscarriage of justice. Implicit in this second basis upon which it was alleged a miscarriage occurred was that counsel for the applicant at trial would, had enquiry been made, have either objected to a hearsay use of the 10 March 2020 Statement or sought a direction limiting its use.

9. [15]

   In either case, the applicant contended that the unrestricted use which the jury was able to make of the 10 March 2020 Statement was an irregularity which was “prejudicial in the sense that there was a ‘real chance’ that it affected the jury’s verdict … or ‘realistically [could] have affected the verdict of guilt’ … or ‘had the capacity for practical injustice’ or was ‘capable of affecting the result of the trial’”: Zhou v R [2021] NSWCCA 278 at [22] (Beech-Jones CJ at CL, Davies and Wilson JJ agreeing) affirmed in HCF v The Queen [2023] HCA 35; (2023) 97 ALJR 978 at [2] (Gageler CJ, Gleeson and Jagot JJ).

10. [16]

    It is convenient to deal with two matters at the outset.

11. [17]

    First, in our judgment, there is no question that the second-hand hearsay evidence in the 10 March 2020 Statement is highly prejudicial evidence which was likely to have had a significant impact upon the jury’s assessment of the applicant’s guilt. We are entirely satisfied that the failure to object or seek a direction limiting the use of that evidence was capable of affecting the result at trial.

12. [18]

    Second, there is also no question that, objectively assessed, there was no rational forensic basis for the applicant’s counsel at trial not to object to the use of the 10 March 2020 Statement for a hearsay purpose, or to seek a direction from the trial judge limiting the use that could be made of it. The evidence was plainly significant and, as is clear from the matters set out below, was treated as such at trial. Ms Hanson was cross-examined at some length as to whether or not she was being truthful when she said the applicant did not in fact say those words to her. Moreover, prior to closing addresses, the jury asked two questions relating to the 10 March 2020 Statement, including a specific question asking what use could be made of this evidence. It was then given some prominence in the Crown’s closing address. Thus, this is not a situation where, objectively, a failure to object or to seek a direction could be explicable on the basis of a forensic decision not to draw attention to the evidence. In any event, it is so prejudicial that we are satisfied that, objectively, counsel could not have determined that that was a forensic advantage to be gained, or a forensic disadvantage to be avoided, by not objecting to the admissibility or use of the 10 March 2020 Statement for a hearsay purpose or seeking a direction limiting its use. We are also satisfied that, if enquiry had been made by the trial judge, counsel would have objected to the use of the 10 March 2020 Statement for a hearsay purpose or have sought a direction limiting its use.

13. [19]

    Thus, irrespective of what Ms McLaughlin said in her affidavit affirmed on 12 February 2024, this is a case where objectively there was no forensic basis not to object to the use of the evidence as hearsay or to have asked for a direction limiting its use: TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46 at [27] (Gaudron J, Gummow J agreeing) at [107] (Hayne J, Gummow J agreeing); Ali v The Queen [2005] HCA 8; (2005) 79 ALJR 662 at [25] (Hayne J, McHugh J agreeing); Nudd v The Queen [2006] HCA 9; (2006) 80 ALJR 614 at [9]-[10] (Gleeson CJ) at [27] (Gummow and Hayne JJ). This was not a matter upon which competent counsel could have had differing views: TKWJ v The Queen at [81] (McHugh J).

14. [20]

    In these circumstances, it is unnecessary to determine whether the affidavit of Ms McLaughlin was admissible on the question of miscarriage. It is sufficient to observe that the Crown accepted that it was admissible on the question of leave under Rule 4.15: Keen v R (2020) 102 NSWLR 178; [2020] NSWCCA 59 at [85]-[95] (McCallum JA, Wilson and Cavanagh JJ agreeing).

15. [21]

    It is thus necessary to address only two matters in this judgment. First, whether there was a material irregularity at trial such that a miscarriage of justice occurred. As to this, Senior Counsel for the Crown conceded at the hearing of the appeal that if the Court found, objectively, that “this was an omission and an oversight” then, provided that the Court found the 10 March 2020 Statement to be “significant based on the closing addresses and the summing-up, then we would be into the proviso”. In the light of this concession, it is only necessary to address the question of material irregularity briefly.

16. [22]

    Second, did the proviso in s 6(1) of the Criminal Appeal Act apply such that the appeal should have been dismissed. The Crown contended that this was a case in which the applicant’s defence at trial was glaringly improbable such that the proviso was engaged and the appeal should have been dismissed.

Factual background

1. [23]

   Before turning to these matters, it is necessary to set out some of the factual background. The following is not intended as a comprehensive summary of the evidence at trial. Rather, it is intended as an overview of matters of particular significance given the issues on appeal.

2. [24]

   Ms Hanson had allowed the deceased to use her address for the purposes of bail and on 26 February 2020 he was granted bail with conditions that required him to reside at her home. The relationship between Ms Hanson and the deceased then deteriorated and on the evening of 28 February 2020, Ms Hanson evicted the deceased from the house with the assistance of the applicant, the applicant’s relative Mark Russell and Adam Garvey. On at least one occasion later that evening the deceased returned to the house and collected some of his possessions, without any altercation. There were a large number of acrimonious SMS messages between Ms Hanson and the deceased throughout the night. These became increasingly heated. At 4:52am, the deceased texted Ms Hanson:

3. [25]

   Then, following some acrimonious responses from Ms Hanson, at 4:53am the deceased texted Ms Hanson:

4. [26]

   Then, following further acrimonious exchange at 5:19am, the deceased messaged Ms Hanson:

5. [27]

   The deceased was then seen approaching the house. The applicant exited the house armed with a black knife that was approximately 15 centimetres long. Mr Russell, also exited the house but Ms Hanson remained in the house (although as discussed below there was some conflicting evidence as to whether Ms Hanson was outside). The applicant and the deceased were then at the front of the house together, with Mr Russell also somewhere in the vicinity. The applicant stabbed the deceased once. The knife penetrated the deceased’s heart causing his death.

6. [28]

   The deceased was not armed during the altercation that culminated in the stabbing.

7. [29]

   The Crown case was that the applicant deliberately stabbed the deceased in the chest and that this act was from hostility and not from any perception of danger. As set out above, the applicant’s case was that the stabbing was accidental, or alternatively that she acted in self-defence or in defence of Ms Hanson.

8. [30]

   The applicant did not give evidence at trial, but the transcript of her interview with police on 2 March 2020 was admitted into evidence. She told police during that interview that she was aware of messages sent by the deceased in the early hours of 29 February 2020, that these were threatening messages and that she then heard the deceased yelling from the front lawn.

9. [31]

   As to the stabbing itself, the applicant’s evidence in that interview was that the deceased “spotted” her on the veranda and said “you slut”, “You took my woman” and “You want to bring it on? You want to bring it on? You want to be a mad cunt? Then come on, bring it on”. He then came “up the stairs of the house of the veranda”. She could see a phone in one hand and something else in his other hand. She said that the deceased kept calling her a “slut”. She said she “walked down the stairs” and “met him halfway” and said “Just fuck off bud, you know, you’ve fucking been coming here causing arguments all night. Just give us a fucking rest.” She said he “stepped up at me and, like he grabbed, he, he stood up at me because I was above him on the stairs” she said he grabbed her and she “remembered pushing him” and then she “black[ed] out”. She later said when he grabbed her she could see “the phone there” and “the shine off something in his other hand”. She said in one hand the deceased had “the fucking shiny thing in it”, that his “Right hand is on the shiny thing” and she thought it was a knife. The applicant said that he grabbed her with his left hand which was holding the phone. She said she “blacked out when he touched me” and went into “survival mode” because of everything her ex-partner had put her through and because “every day was a matter of life and death”. She said:

10. [32]

    The following exchange occurred between the applicant and her police interviewer:

11. [33]

    The applicant said she grabbed the knife “to stand the door with” and that she “didn’t have intentions of going out there killing anyone or fucking stabbing anyone. I just held it there because, you know, there’s two women in the fucking house and I’m worried. There’s a man outside going off his cunt”, that she just had it “to protect myself”, and that she “didn’t know what was going to go on when I walked out the door. I didn’t know, have any intentions of hurting him unless he hurt me, you know, like, to protect myself and that’s, yeah, it was just an accident”. When asked “when you’re saying an accident…What’s happened exactly” she said “I couldn’t tell you, I blacked out. I just, I don’t remember anything from when he grabbed me”.

12. [34]

    The applicant said she regained her memory when she saw “he was bleeding” “in the street” and she was “in the street not far from him”. She then ran from the scene. Ms Hanson called a taxi for her. The applicant hid in bushland, discarding the knife and her jacket. She called her mother who picked her up and took her to a hotel. She was arrested there two days later.

13. [35]

    It was an agreed fact at trial that in 2018 the applicant had been in a relationship with Mr Colin Glass during which she was subject to a very serious assault by him on 2 April 2018, leading to a conviction of Mr Glass for assault occasioning actual bodily harm. This followed incidents in which the police had been called, the applicant had admitted to having an extreme fear of Mr Glass, and two ADVOs had been made for the protection of the applicant from Mr Glass. It was also an agreed fact that in 2020, the applicant was in a domestic relationship with Mr Damon Howard and on 28 January 2020 (approximately one month before the stabbing of Mr Adams) she was subject to two serious assaults by Mr Howard, for which he was convicted.

14. [36]

    Ms Hanson’s evidence at trial, when asked what movements she saw, was:

15. [37]

    When asked whether she saw any movement in relation to the applicant’s arm and the knife, Ms Hanson’s evidence was:

16. [38]

    There was evidence at trial from Dr Cala, a forensic pathologist. He said that it was possible for the deceased to have walked onto the knife, but that he favoured some forward thrusting would also have had to have occurred for the knife to enter the deceased’s body in the way that it did.

17. [39]

    There was evidence at trial that the applicant did not mention that she thought that the deceased may have had a knife in accounts she gave to Haylee Ridgeway and James Carmody on 29 February and 1 March 2020. There was also evidence from neighbours that the male voice they heard in the street around the time of the stabbing was not yelling and was not as loud as the female voice, or was calm, although one neighbour, Naomi Green, gave evidence that she heard an argument and another, Skye Dendle, said that she heard the voices of two males, and heard a male swearing.

18. [40]

    A statement from Mr Russell was also read to the jury. Mr Russell was with the applicant and Ms Hanson in the period leading up to the stabbing. There were significant aspects of that statement that were inconsistent with accounts of the applicant and Ms Hanson. His evidence was that both the applicant and Ms Hanson were outside with the deceased at the time of the stabbing. Mr Russell said that he saw the deceased move towards both women and:

19. [41]

    No objection was taken to the admission of this evidence on the basis that it was hearsay.

Was there a miscarriage of justice

1. [42]

   As set out above, the applicant relied upon two matters in support of her contention that there was a miscarriage of justice. First, the inadvertent failure of her counsel at trial to object to the use of the evidence for a hearsay purpose or to seek a direction from the trial judge limiting the use that the jury could make of that evidence. Second, the applicant contended that in any event, it remained incumbent upon the trial judge to ensure that her trial was fair, and that this obligation required the trial judge to take some step in circumstances where it was second-hand hearsay of an admission which would not have been admissible for a hearsay purpose had objection been taken.

2. [43]

   Ms Hanson was called by the Crown at trial, having been interviewed on 29 February 2020 and having provided two statements to police, on 4 and 10 March 2020. During her evidence in chief, the Crown applied for, and was granted, leave under s 32 of the Evidence Act for Ms Hanson to refresh her memory by reference to the statement she gave to police on 10 March 2020 and then leave to cross-examine Ms Hanson as an unfavourable witness under s 38 of the Evidence Act. The Crown then elicited from Ms Hanson the fact that in paragraphs [5]-[6] of the statement that she gave to police on 10 March 2020, it was recorded that:

3. [44]

   In her oral evidence, Ms Hanson disagreed that it was true that the applicant said the words “It felt so good”:

4. [45]

   Ms Hanson then repeatedly denied that the applicant said those words:

5. [46]

   Ms Hanson later repeated that denial:

6. [47]

   By way of context, Detective Senior Constable Geelan’s evidence was that Ms Hanson initiated the making of the 10 March 2020 Statement and provided the directly quoted speech in that statement.

7. [48]

   On 3 February 2022, after evidence had concluded, the trial judge received a note from the jury asking two questions.

8. [49]

   The first was:

9. [50]

   This was plainly a reference to ss 32 and 38 of the Evidence Act, which had been raised during the oral evidence of Ms Hanson, as set out at [43] above.

10. [51]

    The second was:

11. [52]

    It is plain from these questions that the jury were concerned about what use they could make of this evidence. During discussion with counsel (in the absence of the jury), the trial judge proposed telling the jury that:

12. [53]

    Counsel for the applicant at trial responded that:

13. [54]

    As is clear, counsel for the applicant did not suggest that the evidence was not admissible as hearsay, or as an admission, or that any direction would be required in respect of that evidence.

14. [55]

    The trial judge then told the jury:

15. [56]

    As is clear, the jury were not told that they were not permitted to rely upon the words “It felt so good” to prove the applicant’s state of mind at the time of the stabbing or in any other way adverse to the interests of the applicant.

16. [57]

    The Crown made submissions as to the words recorded in the 10 March 2020 Statement in his closing address:

17. [58]

    The Crown then addressed the jury in relation to four topics. First, in relation to the applicant’s ERISP and why the jury would reject her account of blacking out. Second, as to why the jury would place no significant weight on the statement of Mr Russell. Third, as to how the evidence of the local neighbours, as well as Ms Hanson “and some of the other evidence” could be used to “establish a reliable narrative of what happened out on 3 Payton Street”. Finally, concluding submissions on why the jury would find the charge of manslaughter proved.

18. [59]

    In the course of his submissions as to the third of these matters, the Crown submitted:

19. [60]

    The Crown, having referred to the 10 March 2020 Statement, including where it was recorded that the applicant said “It felt so good”, and to Ms Hanson’s denial in oral evidence that this was said by the applicant, submitted:

20. [61]

    After doing so, the Crown put to the jury:

21. [62]

    The Crown then addressed the jury on why it would find the applicant was not acting in self-defence and put to the jury that:

22. [63]

    In relation to self-defence, the Crown submitted:

23. [64]

    The Crown then went on to submit that, in establishing that the applicant was not acting in self-defence, it could establish one of two things, the first of those things being that the applicant “did not believe that what she did was necessary … to protect herself or protect Ms Hanson”. In relation to that, the Crown submitted:

24. [65]

    The Crown accepts on appeal that in these passages they invited the jury to accept that the words “It felt so good” had in fact been said by the applicant. As to this, the applicant’s submission is that the Crown used the evidence as an admission by the applicant as it:

25. [66]

    Counsel for the applicant, in her closing address, did not dissent from the position that the words “It felt so good” could be relied upon by the jury in a manner adverse to the applicant if the jury was satisfied that the 10 March 2020 Statement was reliable in this regard. Rather, her submission was that the jury should reject the evidence as unreliable:

26. [67]

    In summing up, the trial judge gave the following directions to the jury regarding the words “It felt so good”:

27. [68]

    The trial judge later summarised the position of both the Crown and the defence as to the evidence that the applicant said “It felt so good”:

28. [69]

    As is apparent, read as a whole, in the summing up the jury were told that, subject to their conclusions as to reliability, they could rely upon the evidence as to what Ms Hanson said in the 10 March 2020 Statement in their conclusions on the facts. It was implicit in this that they could rely upon that evidence against the applicant, since it was not suggested by anyone at trial that this evidence could in any way assist the applicant. The jury would have understood that the evidence could be relied upon to prove the applicant’s state of mind at the time of the stabbing or in its immediate aftermath, or otherwise as conduct consistent with the Crown’s case at trial that the stabbing was a deliberate act or that the applicant’s account that she “blacked out” should not be accepted.

29. [70]

    There was no dispute on appeal that the 10 March 2020 Statement was relevant evidence, and thus prima facie admissible under s 56 of the Evidence Act. There was also no dispute that the evidence of what Ms Hanson told the police on 10 March 2020 was admissible when questioning Ms Hanson as an unfavourable witness under s 38 of the Evidence Act.

30. [71]

    However, as set out above, the Crown accepted on appeal that, had objection been taken to the evidence, “the evidence of Ms Hanson that she told the police on 10 March 2020 that the applicant said ‘It felt so good’ could not be used to prove those words were in fact said by the applicant. In those circumstances, the evidence would only have been admissible as a prior inconsistent statement”. Whilst the Crown, in its written submissions, contended that the 10 March 2020 Statement could “theoretically have been pressed (if objection had been made) under s 81(2)” of the Evidence Act, given the position taken by Senior Counsel for the Crown at the hearing of the appeal, set out at [21] above, it is apparent that this submission was not ultimately pressed on appeal.

31. [72]

    The miscarriage of justice arose in this case because the 10 March 2020 Statement was an admission as defined in the Evidence Act:

32. [73]

    Had objection been taken, it would thus not have been admissible under s 60 of the Evidence Act:

33. [74]

    Nor, as the evidence was not given by Ms Hanson, would it have been admissible under ss 81(1) and 82 of the Evidence Act:

34. [75]

    In Kaddour v R [2019] NSWCCA 90, this Court considered the interplay between these provisions in a context where significant evidence relied upon at trial were admissions made by the accused to a witness. The Court held, at [72]:

35. [76]

    The Court, at [73], held that this was “made clear” in Lee v The Queen (1998) 195 CLR 594; [1998] HCA 60 at [28], where the High Court stated:

36. [77]

    However, the failure of the applicant’s counsel at trial to object to the admission of the 10 March 2020 Statement for a hearsay purpose had the consequence that the hearsay rule in s 59 of the Evidence Act did not make the evidence inadmissible. The prevailing view in New South Wales is that “the hearsay rule only applies to evidence to which objection is taken”: Van Gestel v R [2023] NSWCCA 263 at [26] (Leeming JA, Davies and Wilson JJ agreeing); see also Perish v R (2016) 92 NSWLR 161; [2016] NSWCCA 89 at [261]-[273] (Bathurst CJ, Hoeben CJ at CL, Bellew J) (“Perish”). Whilst the applicant “does not accept the correctness of that authority”, she did accept that it must be followed in this Court.

37. [78]

    We readily accepted the applicant’s submission that in the circumstances set out above both the failure of counsel to object to the admissibility or use of the 10 March 2020 Statement for a hearsay purpose, and the failure of the trial judge to give the jury a direction limiting the use of that evidence, were material irregularities which, for the reasons set out above, led to a miscarriage of justice.

38. [79]

    As to the former, we have already explained that, objectively, there is no rational forensic explanation for the failure of counsel to have objected to the admission or use of the 10 March 2020 Statement for a hearsay purpose or to have sought a direction limiting its use. Had an objection been made, the evidence would not have been admissible for a hearsay purpose. Given how prejudicial this evidence was, and our finding as to the significance of the evidence, the omission of counsel was a material irregularity resulting in a miscarriage of justice.

39. [80]

    As to the latter, in Perish this Court in finding that the words “not admissible” in s 59 of the Evidence Act mean “not admissible over objection” also held at [272]:

40. [81]

    Consistent with that authority, notwithstanding that counsel for the applicant did not object to the admissibility or use of the 10 March 2020 Statement and did not seek a direction from the trial judge limiting the use that could be made of the evidence, this was a case in which it was incumbent upon the trial judge to take steps to ensure the fairness of the trial. This is so even though, objection not having been taken, the evidence would not been inadmissible as such. The evidence was second-hand hearsay evidence of an admission by the applicant, was highly prejudicial to the applicant, and objectively there was no forensic explanation for the failure of counsel to object. In these unusual circumstances, fairness required that a direction be given to the jury by the trial judge limiting the use that they could make of the 10 March 2020 Statement. We thus found, on this basis also, that a miscarriage of justice occurred.

The proviso

1. [82]

   As held by Kiefel CJ, Keane and Gleeson JJ in Hofer v The Queen (2021) 274 CLR 351; [2021] HCA 36, the task of an appellate court when considering the proviso is to determine whether it is itself satisfied of the appellant’s guilt beyond reasonable doubt, notwithstanding error, recognising that there may be some cases where the error which has occurred at trial is “such as to prevent the appellate court from making that assessment”: at [58]-[60]. Their Honour’s held that where it is apparent to the appellate court that the evidence of a witness is “glaringly improbable”, the appellate court is not usurping the function of the jury in rejecting the evidence: at [61]. Their Honours continued, at [71]:

2. [83]

   Having regard to the evidence in the applicant’s trial, relevant parts of which are summarised above, we were not satisfied beyond reasonable doubt as to the applicant’s guilt. We did not accept the Crown’s submission that the applicant gave a glaringly improbable version of events that was incapable of acceptance. As accepted by Senior Counsel for the Crown, Dr Cala’s evidence is neutral as to whether or not the applicant was acting in self-defence. The applicant gave evidence that she thought that she saw something shiny which could have been a knife in the deceased’s hand in circumstances in which he was moving towards her and grabbed her, that she thought that she had to protect herself and that she acted in self-defence. The applicant’s account of going into “survival mode” was not glaringly improbable given her history of being subjected to domestic violence, including being the victim of a then recent serious and violent assault. Whilst there were obvious issues as to reliability with Mr Russell’s evidence in general, that evidence provided some limited corroboration of the applicant’s account that the deceased grabbed her. We were not satisfied beyond reasonable doubt that the applicant did not believe that she had to act as she did in her own defence or that her response was not a reasonable response in the circumstances as she perceived them to be.

3. [84]

   Accordingly, we rejected the Crown’s submission that no substantial miscarriage of justice occurred and that the proviso was engaged.

Ground 2: Application for leave to appeal against sentence

1. [85]

   Given that the appeal against conviction was allowed, it was unnecessary to consider ground 2 of the applicant’s notice of appeal.

Conclusion

1. [86]

   It is for the reasons set out above, that we determined that the Court should make the orders which it did on 3 May 2024.