- Notable Unreported Decision
SUPREME COURT OF QUEENSLAND
R v Sanchez  QSC 143
SANCHEZ, Nathan Alec Simmons
Indictment No 1066 of 2016
Application pursuant to s 590AA of the Criminal Code 1899 (Qld)
Supreme Court at Brisbane
30 June 2017
7 April 2017; 7 June 2017
Ruling pursuant to s 590AA of the Criminal Code 1899 (Qld) that the Crown may lead evidence of the field interview of Emma Jane Elizabeth Shawyer conducted by Senior Constable Helmut Krause between 4.50 pm and 5.10 pm on 16 September 2014 save for the portions of that interview highlighted on Exhibit 16, being a transcript of the interview received in evidence on the hearing of this application.
CRIMINAL LAW – EVIDENCE – HEARSAY – PARTICULAR MATTERS – MAKER OF STATEMENT NOT AVAILABLE – where the accused was charged on indictment with one count of murder and, in the alternative, one count of unlawful striking causing death – where a witness to the incident giving rise to the alleged offences was interviewed by police in the field shortly after the incident – where the witness also gave a written statement to police later that evening – where the witness asserted in the field interview that the accused started the fight by striking the first blow – where the witness subsequently died – where the Crown seeks to lead the field interview of the witness in evidence – where the defence objected to the parts of the field interview containing representations as to who started the fight – whether the representations are admissible pursuant to s 93B of the Evidence Act 1977 (Qld) – whether it is inexpedient in the interests of justice that the representations be admitted in evidence at the trial – whether the court should exercise its discretion to exclude the representations pursuant to s 98 of the Evidence Act
Criminal Code 1899 (Qld), s 590AA
Evidence Act 1977 (Qld), s 93B, s93B(1), s 93B(2), s 93B(5), s 98
R v Ambrosoli (2002) 55 NSWLR 603;  NSWCCA 386, followed
R v Knight & Ors  QCA 372, cited
R v Lester  QCA 354, cited
R v McGrane  QCA 173, cited
Sio v The Queen (2016) 90 ALJR 963;  HCA 32, followed
Walton v The Queen (1989) 166 CLR 283;  HCA 9, cited
R A East for the applicant
D Meredith for the respondent
Legal Aid Queensland for the applicant
Office of the Director of Public Prosecutions for the respondent
- Nathan Sanchez is charged on indictment with one count of murder and, in the alternative, one count of unlawful striking causing death.
- At the time of the incident giving rise to these alleged offences, the deceased (Kane Barry) together with his partner (Emma Shawyer) resided in a unit complex located in Southport. Mr Sanchez also resided in the same complex and, although he had never spoken with Mr Barry, they were known to each other in passing.
- On the afternoon of 16 September 2014, Mr Barry and Ms Shawyer were sitting outside their unit in a yard dedicated to that unit. Each was smoking a cigarette. At some time after 4.30 pm, Mr Sanchez walked past Mr Barry and Ms Shawyer and, as he was doing so, words were exchanged. Shortly afterwards, Mr Sanchez walked past again and, on this occasion, a heated argument developed between the two men. This quickly degenerated to a physical altercation with blows being exchanged and wrestling on the ground. At some point Ms Shawyer also became involved, although whether she attempted to separate the men or instead joined in the fight in order to assist her partner is in dispute. Be that as it may, it is accepted by the defence that Mr Sanchez applied a choke hold to Mr Barry during the altercation and that this caused him to lose consciousness and, ultimately, to go into cardiac arrest and die.
- Ms Shawyer was interviewed by police shortly after the incident. The interview was recorded digitally. She also gave a written statement to police later that evening.
- Sadly, Ms Shawyer died about a week or so after this incident. Although the Crown does not wish to adduce evidence of her written statement at the trial, they do wish to lead the field interview in evidence. To do so, the Crown seeks to rely on s 93B of the Evidence Act 1977 (Qld).
- After discussions between the parties, only parts of the field interview are objected to by the defence. Those parts contain assertions by Ms Shawyer to the effect that Mr Sanchez started the fight by landing the first blow. These have been highlighted on a copy of the transcript of the field interview that was supplied by the Crown (with the concurrence of the defence) subsequent to the hearing of the application. That document will be received in evidence – Exhibit 16.
- It is useful to give some context to the parts of the interview to which objection is taken.
- The field interview was conducted by Senior Constable Krause of the Queensland Police Service. Ms Shawyer was asked whether she saw “what happened”, and said that she did. She added that she was “trying to break up the fight”. Ms Shawyer told SC Krause that, after the fight commenced, she “tried to get in the middle of the punch on”. She said that she “came running out ‘cause they started full punching at each other”. She was asked by SC Krause to be “very specific about what happened” and to “go through it … in very minute detail”. She said that, after the first exchange, she “heard the yelling and … come racing”. This occurred about ten minutes after the first exchange.
- Ms Shawyer was then asked a series of questions about which of the two men struck the first blow. The relevant exchange is reproduced below (with the portions emboldened being those to which objection is taken by the defence):
“SHAWYER: [Mr Sanchez] ended up walking back in and then he came back out with a garbage bag and that’s when it all happened. He --
SHAWYER: Made the first hit.
KRAUSE: Okay, So were you here when he came back the second time?
SHAWYER: Yes, I was.
KRAUSE: And you were sitting here with Kane?
SHAWYER: No, I heard th-, the yelling and I come running out and that’s when the fight started --
SHAWYER: And I tried to get in the middle.
KRAUSE: What did you hear the yelling? What yelling did you hear? What you just told me then?
SHAWYER: I just heard them yelling.
KRAUSE: Okay. Alright.
SHAWYER: And then I.
KRAUSE: ‘Cause you said he walked back with a garbage bag?
SHAWYER: Yeah, he did. He had a white garbage bag.
KRAUSE: If you were inside, how did you see that?
SHAWYER: Because I come out as he was holding it.
SHAWYER: And then --
KRAUSE: And --
SHAWYER: Those two.
KRAUSE: They were standing right here?
SHAWYER: Yes. And then they just started punching on.
KRAUSE: Right. Okay. Now, they’re punching on, who hit who first?
SHAWYER: The dark fella hit first.
KRAUSE: Right. Okay. And .
SHAWYER: ‘Cause I tried to get in the middle to stop it. Like, he just pu-, full started pushing me
KRAUSE: So, let's get back to the fight. Did you --
KRAUSE: See, did you see --
SHAWYER: I saw --
KRAUSE: The fight --
SHAWYER: The whole --
SHAWYER: Thing. Yes.
KRAUSE: You saw the whole thing?
SHAWYER: I saw --
SHAWYER: The whole thing.
KRAUSE: Alright. So, who hit who first?
SHAWYER: The dark fella hit Kane first.
KRAUSE: Alright. Just before that happened, what words can you recall hearing? You said you heard shouting, you came out..
SHAWYER: He ca-, came back out with the garbage bag, because when Kane, when h-, the dark fella walked back in, he said, yeah, he did have a problem. And then that’s when it started right in front of our house.
KRAUSE: Alright. But what I want you to, want, what, what I want you to tell me, if you can, and you’re doing really well at this stage, okay? Is, when you walked out here --
KRAUSE: What words did you hear when you first --
SHAWYER: There was --
KRAUSE: Walked out the second --
SHAWYER: Just --
SHAWYER: Yelling. I d-, I don’t know. I couldn’t make it out.
SHAWYER: I just heard the f-, they were just punching.
KRAUSE: So, when you walked out, they were punching on?
KRAUSE: Okay. Alright. So, you don 't know who threw the first punch?
SHAWYER: I know the dark fella hit the first punch because Kane said, if he hits him first on our yard, then he has the right to hit back.
KRAUSE: Alright. But you didn’t see him hit him first, did you?
SHAWYER: I did. I saw him hit him first right out there.
KRAUSE: Alright. But hang on, you said you walked out and you saw ‘em, they were --
SHAWYER: I heard --
KRAUSE: Punching on --
SHAWYER: The yelling --
SHAWYER: First --
SHAWYER: And then I come out and that’s when the fighting started.
KRAUSE: Just then?
KRAUSE: They hadn’t been fighting before?
KRAUSE: How soon after you walked out did you see the fighting start?
SHAWYER: Straight away.
KRAUSE: Alright. So can you categorically tell me for sure --
KRAUSE: If that fighting hadn’t already started earlier?
SHAWYER: It --
SHAWYER: Didn’t start earlier.
KRAUSE: Okay. Y-, but do you know that for sure?
SHAWYER: I know for sure.
KRAUSE: How do you know for sure --
SHAWYER: Because I was --
KRAUSE: If you were inside?
SHAWYER: Right in the garbage and I can --
SHAWYER: Hear everything from out there.
KRAUSE: Okay. Alright.
SHAWYER: I mean, you can see, I come running out the gar-, like, ah --
SHAWYER: Literally, the garage door inside, it was ripped off ‘cause --
SHAWYER: I ran out here.
KRAUSE: Yep, okay alright. …”
- Section 93B of the Evidence Act is in these terms:
“93BAdmissibility of representation in prescribed criminal proceedings if person who made it is unavailable
- This section applies in a prescribed criminal proceeding if a person with personal knowledge of an asserted fact—
- made a representation about the asserted fact; and
- is unavailable to give evidence about the asserted fact because the person is dead or mentally or physically incapable of giving the evidence.
- The hearsay rule does not apply to evidence of the representation given by a person who saw, heard or otherwise perceived the representation, if the representation was—
- made when or shortly after the asserted fact happened and in circumstances making it unlikely the representation is a fabrication; or
- made in circumstances making it highly probable the representation is reliable; or
- at the time it was made, against the interests of the person who made it.
- If evidence given by a person of a representation about a matter has been adduced by a party and has been admitted under subsection (2), the hearsay rule does not apply to the following evidence adduced by another party to the proceeding—
- evidence of the representation given by another person who saw, heard or otherwise perceived the representation;
- evidence of another representation about the matter given by a person who saw, heard or otherwise perceived the other representation.
- To avoid any doubt, it is declared that subsections (2) and (3) only provide exceptions to the hearsay rule for particular evidence and do not otherwise affect the admissibility of the evidence.
- In this section –
prescribed criminal proceeding means a criminal proceeding against a person for an offence defined in the Criminal Code, chapters 28 to 32.
- an express or implied representation, whether oral or written; and
- a representation to be inferred from conduct; and
- a representation not intended by the person making it to be communicated to or seen by another person; and
- a representation that for any reason is not communicated.”
- The requirements of s 93B must be strictly made out before the hearsay rule will be trumped by that provision. The representation in question will only be admissible if that would have been the case if the original maker of the representation had been called as a witness. In determining whether a representation of an asserted fact is admissible, the focus is not on whether, in all the circumstances, there is a “probability” or a “high probability” of reliability. Rather, it is on whether the circumstances in which the representation was made determine that there is such a probability. As to this, evidence “tending only to prove the asserted fact may not be considered” and prior or later statements or conduct of the maker of the representation may be considered “to the extent that they touch upon the reliability of the circumstances of the making of the representation – but not if they do no more than tend to address the asserted fact or ultimate issue”. However, such prior or later statements or conduct may be relevant to the exercise of the court’s discretion to exclude evidence that is otherwise admissible under s 93B: s 98.
- It follows that, when a court is deciding whether to admit evidence of a representation under s 93B, it is necessary to identify with precision the particular representation sought to be adduced in evidence as proof of the asserted fact. The circumstances in which that representation was made must then be considered in order to determine whether the conditions of admissibility are met. Importantly, the question of reliability of the representation is not “to be approached on a compendious basis whereby an overall impression [is] formed of the general reliability of” the representation. That would be the wrong approach because the section operates on the footing that the circumstances in which the representation was made may be seen to be such that “the dangers which the rule seeks to prevent are not present or are negligible in the circumstances”. Put another way, s 93B is not aimed at the apparent truthfulness of the person making the representation; it is instead concerned with the objective circumstances in which the representation was made. However that is not to say that the representation in question should be considered in isolation from other representations which form part of the context in which the relevant representation was made. As was observed in Sio v The Queen:
“A representation may be demonstrably unreliable because it is followed by a specific retraction of the assertion of the relevant fact. Statements made by the representor that are demonstrably or inherently incredible, fanciful or preposterous may be circumstances forming part of the context in which a relevant representation is made which tend against a positive evaluation of the likely reliability of that representation.”
- Here the asserted fact is that Mr Sanchez struck the first blow. The circumstances in which that representation was made were these:
- Ms Shawyer had been in a relationship with Mr Barry, they lived together and were engaged to be married;
- Ms Shawyer was involved in some capacity in the altercation. If she joined in an assault on Mr Sanchez, she might be regarded as an accomplice;
- After Mr Barry lost consciousness, Ms Shawyer called “000”. That call was made at 4.39 pm. She then performed CPR until an ambulance arrived;
- The ambulance arrived three minutes later (4.42 pm);
- Mr Barry was given treatment at the scene and then loaded by stretcher into the ambulance at 4.57 pm, before being conveyed to the Gold Coast University Hospital;
- According to the transcript, the field interview commenced at 4.50 pm. By that time, as SC Krause remarked during the field interview, Mr Barry was in the ambulance;
- Ms Shawyer was understandably distressed at the time of the interview and may very well have been in shock. She must be taken to have known that Mr Barry had been very seriously injured and was in a bad way;
- Ms Shawyer may have been affected to some degree by medication she had been prescribed;
- In one respect at least, what Ms Shawyer otherwise told SC Krause in the interview cannot be relied on as accurate. This concerned her account to the effect that, when wrestling, she saw Mr Sanchez repeatedly “smash” Mr Barry’s head into a concrete surface;
- In her written statement, Ms Shawyer stated several things that tended to suggest that aspects of the account she gave in the field interview were not entirely accurate.
- This is a “prescribed criminal proceeding” within the meaning of s 93B(1) of the Evidence Act and, on the face of things at least, Ms Shawyer had “personal knowledge of [the] asserted fact”. She also “saw, heard or otherwise perceived the representation” in question, or at least said she did: s 93B(2). Those matters established, it should be appreciated that the three paths to admissibility prescribed by s 93B(2) are expressed in the alternative. As such, Ms Shawyer’s representations about the asserted fact (that Mr Sanchez struck the first blow) will be admissible if they were: (a) made when or shortly after the asserted fact happened and in circumstances making it unlikely the representations are a fabrication; or (b) in circumstances making it highly probable that the representations are reliable; or (c) at the time they were made, they were against Ms Shawyer’s interests. For the reasons that follow, I am persuaded that the representations in question satisfy category (a).
- There can be no question about the contemporaneity of the representations; the field interview was conducted only a short time after the police first arrived on the scene and that was only about 10 or 15 minutes after Mr Barry lost consciousness. The real issue is whether the circumstances in which the representations were made were such as to make it unlikely that the representations were a fabrication.
- In this regard, it is true that Ms Shawyer was not an independent witness to the incident. She was in a relationship with Mr Barry and engaged to be married. She may have also joined in an assault on Mr Sanchez but the evidence before the court does not rise to the level necessary to conclude that she was an accomplice to any assault on Mr Sanchez. Nor is it possible on the evidence to conclude anything one way of the other about whether Ms Shawyer was affected by prescribed medication at the time of the interview. On the other hand, it cannot be doubted that she was highly agitated and distressed when speaking to SC Krause, and well aware that her partner had been very seriously injured in consequence of the altercation, but those circumstances do not without more supply a reason to fabricate part of her account. It is also the case that part of the account she gave (about her having seen Mr Sanchez “smash” her partner’s head into the ground) is gainsaid by the distinct absence of the type of injuries one would expect Mr Barry to have sustained if that account was reliable, although that is not to say that she was doing other than giving her honest recollection of her perception of what occurred. Similarly, differences between what Ms Shawyer said during the field interview and what she stated in her written statement may be explicable on bases other than that she was prepared to give a false account of the relevant events.
- To my mind, Ms Shawyer gave a relatively spontaneous account of what she could recall, and she did that at a time of great distress. She was being asked serious questions about a serious event by a person in authority. The proposition that she gathered the presence of mind to advance a deliberately false version so as to present a version of the relevant events more favourable to her partner than to Mr Sanchez assumes far too much. I am positively satisfied that the representations in question were made in circumstances such as to make it unlikely that they were fabricated.
- It follows that, in the circumstances revealed by the evidence before the court, the field interview is admissible.
- The position is however different when it comes to a consideration of the discretion to exclude such evidence under s 98 of the Evidence Act. By that provision, the court may reject any statement or representation notwithstanding that the statement or representation is otherwise admissible if “for any reason it appears to it to be inexpedient in the interests of justice” that the statement or representation should be admitted. In my opinion, the court should act under that section to reject the representations in question.
- It is apparent from the field interview that SC Krause was less than accepting of what Ms Shawyer said about having seen the start of the fight. There was good reason for his scepticism. Although Ms Shawyer maintained throughout the interview that she had seen Mr Sanchez throw the first punch, her statements about where she was when the fight began and how she was able to see the start of the fight vary throughout her account. Furthermore, Ms Shawyer arrived at the conclusion that Mr Sanchez threw the first punch by a process of deduction. In this regard, it is telling that, although she stated that “the dark fella hit Kane first”, when pressed by SC Krause about the sequence of events leading up to the physical altercation she stated, “I know the dark fella hit the first punch because Kane said, if he hits him first on our yard, then he has the right to hit back.” Subsequent questioning resulted in answers affirming that conclusion but, despite the unqualified way in which Ms Shawyer maintained in those answers that Mr Sanchez struck the first blow, the basis for those answers was entirely deductive.
- After considering her account in context, I very much doubt that Ms Shawyer actually saw which of the two men threw the first punch. Instead, I think it more likely that she was in the garage attached to her unit at the time the fight commenced. As she told SC Krause, she “heard the yelling and … come racing”. By the time she was in a position to see what was taking place, the fight must have already been in progress. Based on a prior conversation with the deceased about what would happen if he came into conflict with Mr Sanchez, Ms Shawyer assumed Mr Sanchez must have struck the first blow. Where, as here, Ms Shawyer cannot be cross-examined about that assumption and there are good reasons to doubt the reliability of her account in this respect, it will not serve the interests of justice to allow the representations in question to go to the jury.
- It follows that the Crown may lead evidence of the field interview of Ms Shawyer conducted by Senior Constable Krause on 16 September 2014 save for the portions of that interview highlighted on Exhibit 16.
 Precisely what provoked this exchange is not clear. It may be that Mr Sanchez did so by staring at Mr Barry and Ms Shawyer or by spitting on the ground in front of their yard or both. It is also possible that Mr Sanchez did nothing to provoke Mr Barry.
 Ms Shawyer maintained when interviewed that she was attempting to separate the men but there is evidence from a witness to the incident, Benjamin Edwards, to the effect that she joined in on the “attack”. This witness has intellectual difficulties; an interview of Mr Edwards conducted by the police on the following day is proposed to be led in evidence by the Crown at the trial pursuant to s 93A of the Evidence Act. He did not say which of the two men struck the first blow.
 Exhibit 2 (Outline of Argument on behalf of Mr Sanchez).
 Although the application before the court was brought on behalf of Mr Sanchez, this was done to bring to a head discussions between the parties about the admissibility of various categories of evidence proposed to be led in the Crown case, including the field interview of Ms Shawyer. In any event, as the propounder of the evidence, the Crown bears the onus of persuading the court that the evidence is admissible or, expressed another way, that the requirements of s 93B of the Evidence Act are satisfied. The parties have reached agreement on all other categories of evidence that had been under discussion.
 Exhibit 16, p 2.
 Ibid pp 2, 4.
 Ibid p 6.
 Ibid p 7.
 The portions emboldened are the same as those highlighted on Exhibit 16.
 A reference to Mr Sanchez.
 Exhibit 16 pp 9-13.
 R v McGrane  QCA 173 at  per McMurdo P; Sio v The Queen (2016) 90 ALJR 963 at .
 R v Knight & Ors  QCA 372 at  per McMurdo P. This of course also assumes that the representation in question is a “representation” within the meaning of the provision and that the proceeding is a “prescribed criminal proceeding” and, here, both are satisfied: s 93B(5). It also assumes that the maker of the representation is either “dead or mentally or physically incapable of giving the evidence”: s 93B(1)(b).
 Section 93B(2)(a).
 Section 93B(2)(b).
 R v Lester  QCA 354 at  and  per Fraser JA (with whom Mackenzie AJA and Douglas J agreed), adopting the test laid down in R v Ambrosoli (2002) 55 NSWLR 603 at 616 per Mason P.
 R v Ambrosoli (2002) 55 NSWLR 603 at 616 per Mason P.
 Sio v The Queen (2016) 90 ALJR 963 at .
 Ibid .
 Walton v The Queen (1989) 166 CLR 283 at 293 per Mason CJ; Sio v The Queen (2016) 90 ALJR 963 at .
 Sio v The Queen (2016) 90 ALJR 963 at ; R v Ambrosoli (2002) 55 NSWLR 603 at 615.
 (2016) 90 ALJR 963.
 At .
 As to which, in Sio v The Queen (2016) 90 ALJR 963, it was observed (at ) that statements “by an accomplice afford a classic example of a case where a ‘plan of falsification’ may be expected to be formed, given the obvious interest of one co-offender to shift blame onto his or her accomplice”.
 Exhibit 5 (Ambulance Report Form).
 Exhibit 16.
 An observation that SC Krause made during the field interview: Exhibit 16 p 7.
- Published Case Name:
R v Sanchez
- Shortened Case Name:
R v Sanchez
 QSC 143
30 Jun 2017
- White Star Case:
No Litigation History