R v Demos[2012] QCA 165

SUPREME COURT OF QUEENSLAND

[1] HOLMES JA: Section 671B(1) of the Criminal Code enables this court, if it thinks it necessary or expedient in the interests of justice, to order any person who would have been a compellable witness at a criminal trial to attend and be examined before the court or any judge or any other person appointed by it, and to order the production of any document or other thing connected with the proceedings.  The applicant was convicted, after a trial, of one count of rape.  He has appealed his conviction on the ground that the verdict of the jury was unreasonable.  He makes this application for an order that the complainant be examined in relation to “those matters referred to” in a victim impact statement given for the purposes of sentence and that she provide a list of all medical practitioners (with their practice addresses) she has consulted since 1 January 2008.  He brings the application, he says, in the hope of discovering fresh evidence, so that he can seek leave to add a further ground of appeal: that the unavailability of the evidence in question at the time of his trial entailed a miscarriage of justice.

The complainant’s account of the offence

[2] In March 2008, the applicant, who was 20 years old, and the complainant, who was 15, both had jobs working in a sushi bar.  On the complainant’s account, one Friday evening in March 2008, the applicant agreed to drive her home when their shift was finished.  They went first to his mother’s unit to enable him to shower and change, because he intended to go out for the evening immediately after dropping her home.  The applicant’s mother was in the unit downstairs watching television.  The complainant’s evidence was that she went upstairs to the applicant’s bedroom, where he raped her.

[3] In police interviews in October 2008 and April 2009, the complainant gave differing versions as to the sequence of events.  In the first, she said that she went straight away to the applicant’s bedroom and waited there while he showered.  Before dressing, he had sexual intercourse with her on his bed, against her will.  In the second interview, designed to elicit more detail of the applicant’s residence and his and her movements in it, she gave a different account, involving her waiting downstairs while the applicant showered and only going to his bedroom when he called her to help him to choose clothes.  In that interview, she described his bedroom and belongings in detail.  The case did not come to trial until January 2012, by which time the complainant was 19 years old.  She confirmed that the second of her accounts was correct; she had waited downstairs in the house for ten minutes before going up to the applicant’s bedroom.

[4] To support his argument that the complainant’s credibility was a critical issue in the case, the applicant pointed to those changes in her account together with other aspects of the evidence at trial.  One of the complainant’s close friends gave evidence that the complainant had told her of being raped by the applicant, but on a different occasion: after a staff Christmas party.  The applicant’s mother was called as a witness for the prosecution; the applicant and his sister gave evidence in the defence case.  The applicant’s mother and he gave evidence that when the complainant came to the unit, he went upstairs, showered and came back downstairs with his clothes changed; the complainant did not go upstairs at all.  The applicant’s mother, his sister and the applicant himself all gave evidence of the layout and furnishing of the bedrooms in the unit which was completely at odds with the complainant’s evidence about it.

The victim impact statement

[5] At the time she gave evidence, the complainant had indicated she did not wish to provide a victim impact statement.  However, while the jury was retired, a victim liaison officer with the office of the Director of Public Prosecutions contacted her again.  The complainant then said that she would provide a statement by email, and did so.  Its content was not known to anyone within the office of the Director of Public Prosecutions until the afternoon on which it was tendered in the course of the applicant’s sentencing.

[6] The statement is in the following terms:

“My name is..., I am currently 19 years of age and reside at...with my parents.

I played basketball 5 days a week for 3 years from the ages of 12-15 and was a happy, confident outgoing child always singing, and dancing.

After March 2008 my behaviour had changed due to certain incidents.  I found it difficult getting to sleep and when I was fortunate enough to fall to sleep I would almost always have dreams/nightmares and stay up til early hours of the morning til daylight, when I felt it would be safe to fall asleep.

I became concerned for my personal safety, and was very reluctant to invite any member of the opposite sex into my life.  Over the past almost 4 years I have found it difficult to function normally in society, I feel socially awkward a[n]d don’t know how to hold a conversation with someone which has made it hard for me obtain permanent employment.

I had become angry towards any person I trusted, and would rarely leave the house.  I lost contact with all my childhood friends, as I dropped out of school and left to be with my (at the time) boyfriend because he moved away and I did not feel safe without him around.  My father stopped talking to me for 2 years while I was away as he never knew or understood why.

I don’t drink, or go to any social function as I fear anyone intoxicated, or under the influence of alcohol.  Which has [not] enabled me to make any new friends.  I currently spend my weekends in the gym, trying to become strong and build muscle so that if anything was to happen to me I could defend myself and feel confident enough to do so.

I have been visiting a psychologist for the past 2 years and have been diagnosed with Body Dysmorphic Disorder, along side with Depression and Anxiety.  Doctors have been concerned to medicate me for both depression and anxiety as I am so young, but I have been on medication for both since the age of 18 as I struggle to pull myself out of bed in the morning.

I find it...hard to finish any tasks I set out to complete, I recently had to defer my study to become a personal trainer, because due to depression I sat in my room for 4 days and could not complete components of my course.

I constantly argue with my current boyfriend due to never wanting to go to dinner, or out with him in public.  Our relationship has never been stable, due to the lack of affection I feel I’m able to give him as I find it hard to relax and be comfortable even after 12 months of spending [the] majority of our time together.

I feel like I’ve never had the chance to have a childhood, and that I missed so much of school, parties, friendships and have never made mistakes to learn for myself as I never took the chance to go out and do anything. ”

[7] The applicant said that his solicitors, had they been aware of the contents of the document, would have subpoenaed the complainant’s psychologist and treating doctors to obtain the material they held.  He placed particular emphasis on the paragraph which refers to the complainant’s having seen a psychologist over the past two years and having been diagnosed with body dysmorphic disorder, depression and anxiety.  The applicant disclaimed any intention to cross-examine the complainant generally on her victim impact statement, notwithstanding the terms of his application; all that was sought, his counsel said, was to obtain from the complainant details of the practitioners she had seen.  Counsel acknowledged also that s 671B(1) contained no power which would enable the court to order the complainant to bring into existence a record of her medical practitioners when one did not presently exist, and that such a record could not, in any event, be described as a “document...or other thing connected with the proceedings”.

[8] In written submissions, the applicant contended that the contents of the victim impact statement went to credit, because the complainant did not disclose the complained-of effects of the offence to investigating police or the prosecutor; because her unwillingness to provide a victim impact statement earlier than she did was inexplicable, given the severity of the consequences; and because the delay between the offence and  her obtaining treatment for its consequences might have cast doubt on her credibility.

[9] I do not think that any of those contentions is of substance.  The complainant was not receiving the psychological treatment in question at the time she was interviewed by the police, and it is not obvious why she would have thought it necessary to contact them when she commenced it two years later.  There is no reason to suppose she could have thought it particularly relevant to her account of the offence, either to the police or to the prosecutor.  The fact that there was a delay between the offence and her seeking treatment three years later when she was 18 says nothing about her credit.  Her hesitation, initially, in providing a victim impact statement hardly leads to the suggested inference, that she must somehow be being untruthful about the sequelae.

[10] A further possibility was raised in the applicant’s written submissions, although, not surprisingly, it was not mentioned in oral argument: that if a mental disability were disclosed by the material, a Bromley[1] direction might have been called for.  Given the nature of the conditions from which the complainant was said to suffer, this seems simply fanciful; there is not a hint of any justification for thinking that they might have made her evidence unreliable.  And there was nothing at all in the way the complainant gave her evidence to suggest even any slight degree of disordered thinking.

[11] In oral submissions, it was argued, faintly, that if what the complainant said about being treated by a psychologist for the claimed disorders or their relationship to the rape proved to be untrue, that would go to her credit.  And, it was said with more conviction, it was probable that the complainant had given those treating her account of the rape; if there were statements by her which were inconsistent with the interviews or the evidence she gave at trial, she could be questioned about them on a re-trial.

[12] The applicant did not explain how, if the complainant maintained under cross‑examination that she had been treated for the identified disorders arising out of the rape, he could permissibly adduce evidence to contradict her.  More problematically, the prospect that what she said would turn out to be untrue, as with the prospect that inconsistent statements would be found in the records of any treating doctors, was entirely speculative.  Challenged about whether what was contemplated was a fishing exercise, the applicant relied on R v Spizzirri.[2]

[13] Spizzirri was a case in which the trial judge had ruled that defence counsel could not look at subpoenaed material: records of the Department of Corrective Services concerning the complainant, who was serving a sentence of imprisonment.  The information, the trial judge said, was irrelevant to proving or disproving the charge, except to the extent that it could be used to embarrass or discredit the complainant.[3]After considering decisions from other jurisdictions on the right to inspect subpoenaed documents, Pincus JA drew these conclusions:

“It appears to me to emerge from the authorities that inspection of subpoenaed documents by the defence should be permitted, where that is required for some legitimate forensic purpose, which purpose must be sufficiently disclosed.  The purpose may be or include the obtaining of information, in particular for use in cross-examination as to credit.  Further, courts should be careful not to deprive the defence of documents which could be of assistance to the accused.”[4]

The documents sought were, Pincus JA observed,

“of such a character as to be likely to contain information about the principal Crown witness, which might have been of use in cross-examination of him”.[5]

The court took the view that inspection of the subpoenaed documents should have been permitted: their use in an attempt to discredit the witness was a legitimate forensic purpose.

[14] The applicant referred also to five cases involving victim impact statements.  The first was R v HAU.[6]  In that case, the complainant gave an account of one instance of indecent treatment of her by the appellant and six of unlawful carnal knowledge.  At the trial the prosecution was in possession of a letter from her doctor and of a victim impact statement which gave an account of the events the subject of the charges, suggesting rape rather than consensual intercourse.  Neither was provided to the defence, in contravention of the Crown’s obligation of disclosure.[7]  The prosecutor had specifically addressed on the basis that if the complainant had been embroidering her story, she might have invented allegations of violence; precisely the kind of assertion which was contained in the victim impact statement.  This court took the view that the defence should have been given the opportunity to raise with the complainant the differences in her account of events.  The loss of the opportunity because of the prosecution’s failure to meet its obligations of disclosure went to “the root of the fairness of the trial”;[8] the appeal was upheld.

[15] In R v Cornwell,[9]  the victim impact statement, which had been in the possession of the Director of Public Prosecutions for four months, was disclosed to the appellant only after the jury had retired to consider its verdict.  It contained assertions by the complainant about the assault with which the appellant was charged, which had not featured in his evidence.  It was possible, this court concluded, that the statement, with or without further inquiry, might have caused the jury to take an adverse view of the complainant’s character and reliability.  The appellant had been denied an opportunity to conduct his case in a way which could have made a difference to the verdict.  The appeal was allowed.

[16] In R v BBU,[10] the appellant had been convicted of two counts of rape.  The victim impact statement was not sought until after the complainant’s evidence had been given at trial, but before the end of the prosecution case.  It was not disclosed until just prior to the sentencing process.  It contained some information suggesting the complainant’s hostility to the appellant’s daughter.  McMurdo P pointed out in her judgment (with which the other members of the court agreed) that the case was to be distinguished from HAU and Cornwell, because nothing in the document amounted to an inconsistent statement or raised a concern about the complainant’s truthfulness or reliability in giving evidence.  It was relevant only to the effect of the offence on the victim, not the commission of the offence.  If there had been a failure by the prosecutor to comply with the statutory obligation of disclosure, there was no suggestion it was deliberate.  The appellant had not demonstrated the loss of any forensic advantage through the late disclosure of the victim impact statement.  The appeal was dismissed.

[17] In R v GAL,[11] there was no breach of the Crown’s obligation of disclosure.  The appellant had been convicted of two counts of rape and one count of indecent dealing.  The complainant had provided a victim impact statement which was given to the solicitors acting for the defence.  They emailed it to defence counsel, who did not receive it and was not made aware of it until after the jury had retired at the trial.  The only inconsistency between the victim impact statement and the complainant’s evidence at trial was that in the latter she said that she was crying at the time of one of the offences, but in her evidence she had not mentioned that detail.  The statement also listed practitioners and institutions from whom the complainant had received counselling and psychiatric treatment.  The defence asserted that had it had the victim impact statement earlier, it would have subpoenaed relevant records.  This court rejected that argument, pointing out firstly, that the solicitors did have the statement and secondly, that the appellant bore the onus of proof of demonstrating a miscarriage of justice.  He had not subpoenaed the material before the appeal and could not, accordingly, say that he would have been forensically advantaged by anything obtained.

[18] A fifth case, R v Evans; R v Pearce[12] involved, not any failure to disclose a victim impact statement, but a submission that the sentencing judge had put too much weight on it, and, in particular, on an assertion by the complainant that a named psychologist had diagnosed post-traumatic stress disorder.  The statement said that the victim had been given reports by a doctor and the psychologist.  Fryberg J observed that, given the prosecution was relying on the diagnosis, the defence was entitled, if it wished, to see the reports in order to decide whether to challenge the diagnosis or symptomatology, but in the event no request for them had been made.  Counsel here placed particular emphasis on that observation.

[19] GAL does not suggest that a victim impact statement should identify practitioners from whom treatment has been received so as to enable subpoenas to be issued; the point there was simply that the defence had nothing to complain of, since it had made no attempt at obtaining the records, although the practitioners were in fact identified.  In Evans and Pearce reports existed and could have been sought for the purpose of challenging the diagnosis at sentence; but it was not suggested that such reports had to be provided for the purposes of the trial, let alone be solicited if they did not already exist.

[20] In the present case, no breach of the Crown’s obligation of disclosure was alleged.  Unlike those in HAU and Cornwell, this victim impact statement discloses nothing of relevance to the commission of the offence.  In its lack of relevant content it is closer to that in R v BBU.  The material is sought, not because the depression, anxiety and body dysmorphic disorder referred to in the victim impact statement have any relevance to the issues in the trial, but because it is hoped that the complainant might have given an account in which inconsistencies can be found.  That, in itself, requires a number of assumptions: that the complainant did give an account of the events to her treating doctors and psychologist; that any such account was recorded in a form which allows the complainant’s statements to be discerned; and that any such statements will prove to be inconsistent in some material way.  At best, what is offered by way of suggested forensic advantage is speculation as to what might be contained in the complainant’s medical records.

[21] The case is very different from Spizzirri, for two reasons: firstly, a Corrective Services file on an inmate is apt to contain something of discredit to him (and, as the trial judge’s comment revealed, that file did) whereas no such inference can be drawn in relation to medical records.  Secondly, and more importantly, that was an application made for access to records which were before the court.  Here, the applicant asks the court to order the examination of the complainant under s 671B(1) so that he can obtain information to enable the issue of subpoenas to obtain evidence on the chance that it will reveal something which will assist him.

[22] No similar mechanism for obtaining the information would have been available to the applicant for the purposes of the trial.  Had the information in the victim impact statement been known to him prior to trial, there was no means by which he could have compelled the complainant to provide the details of those treating her.  Questions about who the complainant’s treating doctors were would not have been permissible in cross-examination; they would not have had any relevance to the issues in the trial.  Any questioning of the complainant on that topic could only have been as part of the sentencing process.

[23] What the applicant now asks the court to do is order the examination of the complainant in a way not available at trial, on nothing more than the possibility that something useful might emerge from whatever records prove to exist.  I do not consider it necessary or expedient in the interests of justice for the court to exercise its power under s 671B so as to permit a fishing expedition of that kind.  The application should be refused.

[24] GOTTERSON JA: I agree with the order proposed by Holmes JA and with the reasons given by her Honour. 

[25] MARTIN J:  I agree, for the reasons given by Holmes JA, that the application should be refused.