R v Adcock[2016] QCA 264

SUPREME COURT OF QUEENSLAND

1. GOTTERSON JA:  I agree with the order proposed by Morrison JA and with the reasons given by his Honour.
2. MORRISON JA:  On 7 August 2014 the complainant was held captive in a unit where she was tortured and assaulted over a period of about 19 hours.  Those carrying out the torture and assaults were a man, identified as the appellant, Mr Adcock, and a young woman, identified as Ms Martin.  The torture and assaults by the man included the complainant being punched, having her hands and legs taped, yelling and taunting, threats to kill her, threats to kill her family, and threats of sexual assault.
3. The torture and assaults by the young woman (Ms Martin)^[1] included punches to the face, using a taser, grabbing her by the throat, yelling and taunting, threats to kill her, threats to kill her family, dragging a syringe across her face, and twisting and tightening a cord around her throat.
4. A third co-offender, Mr Butler, was identified as being involved in the offence.  However, the complainant contends that Mr Butler did not physically strike her.
5. Mr Adcock was charged with three offences:

1. torture;
2. unlawful assault causing bodily harm; and being armed with a weapon (a taser) and in company with others; and
3. unlawfully detaining the complainant in a dwelling against her will.

6. At his trial there was no challenge to the fact that the complainant had been detained against her will, nor to any of the acts constituting the torture and assaults, nor to the fact that the complainant suffered bodily harm as a result.  The defence case was that it was all done by Ms Martin and another man (Alex Butler), but not Mr Adcock.
7. Mr Adcock appeals against his conviction on two grounds:

1. the verdict is unreasonable or cannot be supported having regard to the evidence; and
2. the learned trial judge erred in admitting the statement of a Mr Woodford into evidence, causing a miscarriage of justice.

The legal principles

8. Where it is contended that the verdict is unreasonable or cannot be supported having regard to the evidence, the applicable principles are clear.  SKA v The Queen^[2] requires that this Court perform an independent examination of the whole evidence to determine whether it was open to the jury to be satisfied of the guilt of the convicted person on all or any counts, beyond reasonable doubt.  It is also clear that in performing that exercise the Court must have proper regard for the pre-eminent position of the jury as the arbiter of fact.
9. In M v The Queen the High Court said:^[3]

“Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it 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. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.”

10. M v The Queen also held that:^[4]

“In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence.”

11. Recently the High Court has restated the pre-eminence of the jury.  In The Queen v Baden-Clay^[5] the Court said:

“[65]It is fundamental to our system of criminal justice in relation to allegations of serious crimes tried by jury that the jury is “the constitutional tribunal for deciding issues of fact.” Given the central place of the jury trial in the administration of criminal justice over the centuries, and the abiding importance of the role of the jury as representative of the community in that respect, the setting aside of a jury’s verdict on the ground that it is “unreasonable” within the meaning of s 668E(1) of the Criminal Code is a serious step, not to be taken without particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial. Further, the boundaries of reasonableness within which the jury’s function is to be performed should not be narrowed in a hard and fast way by the considerations expressed in the passages from the reasons of the Court of Appeal explaining its disposition of the appeal.

[66]With those considerations in mind, a court of criminal appeal is not to substitute trial by an appeal court for trial by jury. Where there is an appeal against conviction on the ground that the verdict was unreasonable, the ultimate question for the appeal court “must always be whether the [appeal] 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.””

Unreasonable verdict - the evidence

12. The main evidence came from the complainant.  The sole issue on appeal was put squarely as the identification of Mr Adcock by the complainant and by Mr Woodford.  Therefore, in reviewing the evidence it is not necessary to fully traverse the complainant’s detention or the acts of violence towards her, as none were challenged at the trial or on appeal.  Nor is it necessary to traverse the evidence of the complainant’s parents, whose involvement did not bring them into contact with her attackers.  The following review will therefore focus on that issue.  However, my review has gone beyond that, to the totality of the evidence before the jury.

The complainant’s evidence

13. The complainant was a 22 year-old mother of a five year-old boy.  She suffered from type 1 diabetes which required treatment with insulin several times a day.  If she could not get the insulin treatment she said would become “very unwell”.^[6]  She also suffered a hyperthyroid.
14. She gave the following evidence:

1. she knew Ms Martin well, as social acquaintances for about a year;^[7]

2. she knew Jim (Mr Butler), as social acquaintances for about six months;^[8]
3. on 6 August she met Mr Butler, who was with a man he introduced as “Chris”; the description the complainant used for Chris was “[m]edium build, short dark hair, a goatee, tattoos, in his 30’s”;^[9]
4. on 7 August she met Mr Butler at his unit complex, at about lunch time; as she entered the unit she saw Mr Butler and his partner, Shayenne, Ms Martin and Chris;^[10] she drew a layout plan of the unit, Exhibit 2;
5. Chris followed her into the unit; Mr Butler was on the balcony and Ms Martin was sitting in the lounge; as she walked through the unit Ms Martin fell in behind her;^[11]
6. Ms Martin pushed her into a chair, punching her in the face multiple times; someone was taping her hands and legs, and yelling at her while she was crying; Ms Martin was in front of her and Chris was behind; Ms Martin pulled an instrument that looked like a torch out of her bag; it was a taser; she tasered the complainant on her chest, temples and body;^[12]
7. Mr Butler asked them to stop, untied her and told her to go and wash herself; before and after untying the complainant he had been questioning her about another person called McLeod; Ms Martin punched during that questioning;^[13]
8. Chris was yelling and taunting her; he hit her a couple of times towards the end of the questioning;^[14]
9. once back from the bathroom, the complainant asked for some water; a bowl was put on the floor and she was told to drink it like a dog, which she did, on her hands and knees;^[15]
10. the complainant said that she would do anything if they would stop, and Mr Butler said she had to “suck his dick”, indicating Chris; Chris motioned towards his pants, then said “I wouldn’t want that slut near me anyway”;^[16]
11. Chris, Ms Martin and Mr Butler all said she was going to die, they were going to put her in the boot or in an empty fridge; a friend called on the complainant’s phone, and Chris said that if she said anything was happening she would die;^[17]
12. Mr Butler left with Shayenne, and said he wanted the complainant alive when he got back; Chris responded that he could not promise anything; in Mr Butler’s absence Chris continued to tell the complainant that she was going to die, and so were her family; the complainant was hit in the face if she cried or made a noise; Chris punched her and Ms Martin grabbed her around the throat, holding on till the complainant choked;^[18]
13. the complainant said “I was in a lot of pain, and scared, and tired. Just physically and emotionally, it was traumatic”; at that time she had not had any insulin;^[19]
14. she was given some tablets for pain; they were given by a young man who she did not know, and who was only there for a short time and not otherwise involved in what was done to her; the others later said the young man was Chris’ brother;^[20]
15. the complainant was given some food, but Chris asked if she was enjoying her last meal; the threats to kill her continued;^[21]
16. Mr Butler came and went again, but when he eventually returned he brought some food; at that time there was another man there for a short time; he was called “Bruce Woodward … or something like that”; she had met him before;^[22]
17. sometime before midnight the complainant went to sleep; she was woken by Chris; he and Ms Martin questioned her about the contacts listed in her phone, and made the complainant write down the numbers and names as “it could be like an insurance and they might let me go”; Ms Martin was looking for “Close family contacts and people that had money or possessions … Valuable possessions”;^[23] and
18. at one point Ms Martin dragged a syringe, which she said contained OxyContin, down across the complainant’s face; “they were asking me if I wanted to be awake or asleep when they killed me”; Ms Martin also put a chord around the complainant’s neck, twisting and tightening it.^[24]

15. Eventually Chris and Ms Martin demanded the complainant’s car, money and drugs.  The complainant said her parents had money at home and she called her parents to come with some.  Arrangements were made to meet her parents.  The complainant waited outside for them, but did not try to escape because of the fear she had about the list of names from her phone.^[25]
16. When her parents arrived they did not have any money.  Instead they proposed to go to an ATM.^[26]  That was explained to Chris who responded:

“Chris started going off and saying … the list has already been sent off and no funny business – no police. I said that they hadn’t called the police – no police had been called.”

17. It was the parents’ intervention that resulted in the complainant being taken by the police.  The complainant was taken to hospital.  She was asked if she was experiencing any pain and responded:^[27]

“Everywhere, but I was numb as well, and I was in and out of consciousness because my – I hadn’t had any insulin. My triggering [indistinct] went through the roof and I was really sick, and my face was just puffed up and swollen. I could hardly see anything.”

18. The complainant was beaten so badly that it was three or four days before her eyes opened.^[28]

Cross-examination of the complainant

19. In cross-examination the complainant explained that if she missed her insulin treatment her blood sugar went up and she “can feel quite sick in the stomach, which results in vomiting and dehydration”.^[29]
20. Cross-examination also elicited the fact that the complainant was a methylamphetamine user who had taken some on 6 August, in the morning.  She was not addicted to it.  She said the drug “keeps you awake” for “a day or two”.  She used it every couple of weeks.^[30]  She did not take any on 7 August.^[31]
21. On 7 August Mr Butler came to the unit where the complainant was staying in order to inspect some methylamphetamine that was being sold by others in that unit.  The complainant took it downstairs so he could look at it.  Mr Butler and Chris smoked it in her car.  Mr Butler did not buy it.^[32]
22. When the complainant went to Mr Butler’s unit it was to discuss the purchase of drugs for a friend of the complainant.  The friend “wanted to buy some drugs, and that was facilitated through me”.^[33]
23. The complainant said she did not know Chris well.  She denied that a male called Alex was the person who hit her, and denied that he was Mr Butler’s brother:^[34]

“When the man was introduced to me as Chris, James had said that he was his brother and I assumed that he meant as a close friend.”

24. The complainant was confronted with the fact that when she had an interview with the police on Friday 8 August, in hospital, she named the male assailant as Alex, and said that Alex was Mr Butler’s brother.  She said she had heard the recording and accepted it was her voice, but she had no memory of having the interview.^[35]  She accepted that during the interview she did not use the name Chris.^[36]
25. Then on 15 August she made a typed statement with the police.^[37]  In that statement she used the name Chris, and explained the reason why:^[38]

“Now, … could I suggest this to you: the reason that you refer to the male offender as Chris in this statement is because the police officer prompted you that was his name?---That is correct.

Was that Detective Cashin?---Yes, it was.

What did she say to you?---We were typing it up and … I couldn’t think of his name and I was … stumbling on his name and she said you mean Chris Adcock.”

26. She reiterated that the night before the incident she had been introduced to him as Chris.  He had tattoos on his neck and arms, but she could not remember the specifics of them.^[39]  In re-examination she returned to this aspect:^[40]

“He was introduced to you as Chris?---Yes.

Was the name Chris ever referred to during the incident where you were in James’ unit?---Yes.

What can you say about that?---Chris and James were sitting on the bed directly in front of me and James put his arm around Chris and said this is my brother, Chris.”

27. She rejected suggestions that she did not look at the faces of her attackers, and that she was mostly looking down.^[41]  She was confronted with the fact that in her written statement she had named Mr Butler as having punched her, but that in a recent addendum she said that he did not assault or lay a hand on her.  She explained:^[42]

“The first statement, when it was written, … it was jumbled, and I had referred to all of them together … most of the time. So when we went through and I re-read it and sorted out the details, I corrected some of the wording.”

28. In re-examination the complainant explained her condition when she was interviewed:^[43]

“Are you able to say how you were feeling at that point?---Tired, sick, hurt. It was … was horrible. I - - -

Were you on any pain medication?---Yeah. They’d given me heaps of morphine and endone for my face and my injuries.”

Police evidence

29. One of the first response police officers said that when she saw the complainant she had substantial facial injuries, and was in such pain and discomfort that the officer called triple zero for an ambulance.^[44]  That officer interviewed the complainant, in the course of which she referred to the male attacker as Alex.  The officer said that the complainant was “somewhat incoherent and confused”.^[45]
30. A second officer, Detective Rutherford, spoke to the complainant at hospital.  He said “she wasn’t really … in a … well condition and was severely traumatised”.^[46]  He attended at the unit on 8 August and saw Mr Adcock standing at the front door.^[47]  When the search warrant was executed on 9 August Mr Adcock and Ms Martin were at the unit, as well as Mr Butler, Sheyenne and their children.^[48]  Later that day the officer interviewed the complainant in hospital.  He described her as being “still very distressed, severely injured, and was in [indistinct] sleepiness, I’d say due to her medication.”^[49]
31. The second officer said that they knew Mr Adcock was living at the unit occupied by Mr Butler.^[50]  In cross-examination he agreed that in his notes he referred to the person in the doorway of the unit as Gary Adcock.  He explained that was because he believed that was his name.  He denied that there was a person known as Gary Adcock but accepted that there was an Adcock family in Caloundra and it was possible that one of the sons was called Gary.^[51]  He confirmed that a photoboard identification was not done.
32. Two other officers gave evidence of their involvement in the execution of the search warrant and the location of Mr Adcock.

Medical evidence

33. A doctor was called to give evidence as to the injuries sustained by the complainant.  The main ones were:^[52]

1. bruising to periorbital regions, and swelling of the eyelids causing closure of both eyes;

2. bruising to the left lower mandible;
3. bruising to the area behind the left ear; bleeding behind the left eardrum, which could be seen on examining the ear;
4. bruising over the outer aspect of the upper arm; and
5. fracture of the right eye socket.

34. There was acidosis which may have been from the diabetes, resulting in an intravenous infusion of insulin to counteract the acidosis.  The doctor explained that acidosis can make the patient extremely ill, but the levels of acid in the blood were fairly mild.
35. A second doctor gave evidence about the onset of acidosis induced by failure to get insulin:^[53]

“When someone doesn’t get adequate insulin … their body goes into what we call a ketotic state.  So basically a starvation state where it can’t metabolise sugars appropriately.  And so the sugar level goes high and then, as a result of that, the cells in the body can’t utilise that sugar, and then that ends up in a vicious spiral where … their blood becomes acidotic.  So more … acids then (sic) is usual, and that can cause complications in many different organs.”

Defence evidence

36. There was no evidence called by the defence.

Discussion – unreasonable verdict

37. The contentions on this issue were essentially that the complainant’s evidence of identification of Mr Adcock was such that the jury could not have been satisfied beyond reasonable doubt that the person called “Chris” was Mr Adcock.^[54]  For that purpose the submission relied upon the whole effect of several factors about the complainant’s evidence:

1. she met Chris for the first time on 6 August;

2. she had never positively identified him as “Chris”; there was no identification process, and she was not asked to identify him in court;
3. she told the first and second officer that it was “Alex”, and that he had neck tattoos;
4. she only referred to him as Chris when prompted to do so by a police officer on 15 August;
5. she had taken methylamphetamines on 6 August;
6. she was deprived of her insulin;
7. she had been viciously assaulted by Ms Martin, and both eyes were swollen; and
8. she referred to Alex as “Jimbo’s brother”, i.e. Mr Butler’s brother.

38. All of those matters were specifically raised with the jury in the summing up, about which there was no complaint on the appeal.
39. The learned trial judge gave directions and warnings to the jury as to the way they should treat the evidence of the complainant.  His Honour reminded the jury about the fact that the honesty of the witnesses had not been challenged, and that the issue was the reliability of the identification of Mr Adcock as Chris.  Then his Honour referred to the following matters as relevant to their consideration of the reliability of the complainant’s evidence.
40. First, the fact that the complainant was a type 1 diabetic, and the problems of insulin deprivation and acidosis, and the experience the jury may have had with the efforts of intoxicated people who the try to recall facts.^[55]
41. Secondly, the inability to test Mr Woodford’s evidence, and the need for caution in accepting it: see paragraphs [85] to [87] below for the full wording of the direction.
42. Thirdly, the evidence that the complainant referred to “Alex” and not “Chris” at a time when she was injured, suffering pain, psychologically traumatised and on medication such that she could not remember the interview.^[56]
43. Fourthly, whilst it was a matter for the jury, they could conclude that, because it was not really challenged, her account of what was done to her was, generally speaking, an accurate one.^[57]  His Honour put it this way:^[58]

“Mr Wilson made it clear in his address that he was not attacking the complainant’s honesty. Given the unchallenged evidence of her parents and the doctors, and the recovery of items such as the taser and the notes which are in the evidence, by the police on the Saturday, you will probably accept that she was generally truthful in her account of what occurred to her, and that is of being punched, taunted, threatened and assaulted in various ways from a time soon after she entered the unit some time after lunch on the Thursday and with various breaks continuing right up until just before her parents located her around about 7 o’clock on Morton Avenue.”

44. Fifthly, it was a circumstantial case, with no direct evidence from anyone that it was Mr Adcock, except from Mr Woodford.  That meant that the jury had to exclude, beyond reasonable doubt, any hypothesis consistent with innocence, such as the complainant making a mistake, or being unreliable in her evidence, as to identity.^[59]
45. The learned trial judge outlined for the jury the factors that potentially weakened her evidence on identification:^[60]

1. she did not know this person and had only met him the day before;

2. she had used methylamphetamines the day before; she said it kept her awake for a day or two;
3. she was viciously assaulted by Ms Martin and was in a state of fear and panic throughout, thinking she was going to die, with her life and that of her family being threatened;
4. she could not take insulin for a lengthy period;
5. her ability to see from quite an early stage might have been severely compromised by the swelling to her eyes;
6. in her first two interviews, when she was undoubtedly suffering both psychologically and physically from what had occurred, and also from the effects of her diabetes, she described the male attacker as Alex; and
7. she only adopted the name Chris when prompted by the police officer taking the statement.

46. The learned trial judge then gave this direction and warning:^[61]

“So for these reasons I warn you that it would be dangerous for you to convict the defendant on the basis of the identification evidence placed before you unless, after considering all the evidence, and taking into account this warning, you are, indeed, satisfied beyond a reasonable doubt that the man described as Chris by the complainant woman now is the defendant. As I have said on a number of occasions, this would mean that you would have to conclude beyond a reasonable doubt that that conclusion was the only rational inference to be drawn from the evidence by you and that would require you to exclude beyond a reasonable doubt any reasonable hypothesis consistent with innocence.

As Mr Wilson said correctly in his submission, particularly when he was referring to his client not giving evidence, it would not be sufficient for you to convict him on the basis that you probably thought he was the person, or that he might have been the person or there was a real possibility. It is only if you are satisfied beyond a reasonable doubt that the person she described as Chris is the defendant, that you could then proceed to convict him.”

47. The jury retired at 10.44 am on day three of the trial.  At 12.01 pm they asked for Mr Woodford’s statement to be read again, retiring again at 12.06 pm.  At 2.16 pm they returned with a verdict.
48. In my view, the contention that it was not open to the jury to be satisfied beyond reasonable doubt that Mr Adcock was the assailant, should be rejected.  There are a number of reasons for that conclusion.
49. First, the jury were entitled to conclude that the complainant was an honest witness, and that there was a considerable degree of consistency, and particularity, to her evidence.  There was no contest that she had been detained, tortured and assaulted as she said.  The physical injuries, the parents’ evidence as to her state, the medical evidence, and the items located on the search of the unit, all support that.  Especially is that so with the note and taser found in a woman’s handbag.^[62]  The note was as described by the complainant and contained both her and Ms Martin’s handwriting.
50. Therefore the jury could well have accepted that the complainant was truthful when she said that her assailant was introduced as Chris, and that Mr Butler said that again whilst in the unit.  If they reached that view, they could also conclude that the complainant’s reference to her assailant as Alex was the product of her psychological trauma, injuries, deprivation of insulin leading to acidosis, and medication.
51. Secondly, it was not only the complainant who offered evidence as to the identity of the assailant.  Mr Woodford’s statement placed Mr Adcock in the unit at the time, and in the presence of the injured complainant.  I have dealt with the probative value of Mr Woodford’s statement below.  The weight to be given to it was a matter for the jury.  Further, Detective Rutherford testified that he saw Mr Adcock at the front door of the unit the day after.  Mr Adcock was at the unit when it was searched.  Detective Rutherford gave evidence that Mr Adcock lived at the same unit.
52. Thirdly, the description given by the complainant of her male assailant was one that reasonably matched Mr Adcock.  It was “Medium build, short dark hair, a goatee, tattoos, in his 30’s.”  Reference to Exhibit 10 shows the way in which the jury could have concluded that the complainant was, in truth, identifying Mr Adcock, particularly as to the short dark hair, goatee and tattoos.  If the jury concluded, as they could, that the complainant was detained, tortured and assaulted by a man with short dark hair, a goatee, and tattoos on his arms, they might well have wondered at the chances of there being two such men at the same place and time.
53. Fourthly, Exhibit 10, the photograph of Mr Adcock sitting beside Ms Martin on the lounge in the very unit where the torture and assaults occurred, itself provided evidence that linked Mr Adcock to the other offenders, particularly Ms Martin who was an undoubted participant in the whole of the offending conduct.
54. Fifthly, the jury were given very strict warnings against ready acceptance of the complainant’s evidence of identification.  It should be assumed that the jury would have followed the directions they were given.^[63]
55. Recognising that the case was circumstantial, the jury’s conclusion on the question of identification was one of inference drawn from the evidence otherwise.  In Festa v The Queen^[64] McHugh J said, referring to a circumstantial identification case:

“[56]Unfortunately, another class of evidence is sometimes called “circumstantial identification evidence”. It is evidence that asserts that the general appearance or some characteristic or propensity of the accused is similar to that of the person who committed the crime. It may be evidence of age, race, stature, colour or voice or of a distinctive mark or gait. It differs from positive-identification evidence in that the witness does not claim to recognise the accused as the person who committed the crime or was present in circumstances from which it can be inferred that the accused committed the crime. Although such evidence does not directly implicate the accused in the crime or as being present in incriminating circumstances, it is admissible evidence. It is proof of a circumstance - usually, but not always, weak - that with other evidence may point to the accused as the person who committed the crime. It will be weak evidence, for example, when it merely proves that the perpetrator and the accused are persons of the same ethnic background. It may be nearly conclusive evidence of identity when it proves that the accused and the perpetrator have used a unique modus operandi which is admissible in accordance with the principles concerning the admission of similar fact evidence.”

56. Taking the evidence on identification as a whole,^[65] it was open to the jury to be satisfied beyond reasonable doubt that Mr Adcock was the person who detained, tortured and assaulted the complainant.
57. This ground of the appeal fails.

Failure to exclude Mr Woodford’s statement

58. Mr Woodford gave a statement to the police on 19 August 2014, some 12 days after the offences.  He died before the trial commenced.
59. Mr Woodford’s statement^[66] recorded that he resided at Unit 2/41 Moreton Parade, Caloundra.  On 7 August 2014 he went to an hotel at 1.30 pm, and stayed drinking with friends.  He arrived home about 8 pm.  Then he said:

“I got home Jim, CC, and their kids were in their bedroom watching telly. Chris ADCOCK and Molly were in the lounge room with a young girl. I walked in and said Gday to everyone. I said Wow is she alright. Her head was all swollen and she had dark under eyes and it was all swollen. I think Molly or Chris said she was alright, she got bashed. I was half pissed and I thought they were looking after her.”

60. The reference to “Jim” was to James Butler, and “CC” was Shayenne Peterson, Jim’s partner.^[67]
61. The statement went on: after doing some household chores, Mr Woodford left to stay with his mother for a few days.  He added what occurred when he got back home:

“I got back on Monday afternoon. I saw that Chris and Molly were gone and asked what happened. Jim and Cheyenne (sic) told me that they had got raided and that Chris and Molly had been taken away by the police.”

62. Before the trial Mr Adcock applied to exclude the statement from evidence.  It was accepted that it was technically admissible under s 93B of the Evidence Act 1977 (Qld).  However, it was contended, it should be excluded on discretionary grounds under s 98 or s 130 of the Evidence Act.  Section 98 provides:

“(1)The court may in its discretion reject any statement or representation notwithstanding that the requirements of this part are satisfied with respect thereto, if for any reason it appears to it to be inexpedient in the interests of justice that the statement should be admitted.”

63. Section 130 provides:

“Nothing in this Act derogates from the power of the court in a criminal proceeding to exclude evidence if the court is satisfied that it would be unfair to the person charged to admit that evidence.”

64. Exclusion was warranted, it was contended below and on appeal,^[68] because the statement did not disclose:

1. how Mr Woodford was able to identify Mr Adcock;

2. whether he had previously met him;
3. how long he had Mr Adcock under observation that night;
4. the distance he was from Mr Adcock; and
5. the lighting in the room.

65. The contention was not advanced on the basis that there was any reason to doubt Mr Woodford’s ability to accurately identify Molly Martin.
66. The test to be applied when considering the application of s 98 has been the subject of authority in this Court.  In R v D^[69] Davies JA said:

“[18]In my opinion it would be a rare case in which a court will exclude a statement, otherwise admissible pursuant to s 93A, pursuant to either the discretion conferred by s 98 or that conferred by s 130. It is most unlikely that it will ever be excluded on the basis that its prejudicial effect exceeds its probative value because in almost all cases the probative value of such a statement is very high. And the mere fact that, as may have been the case here, the witness, though available to give evidence in the trial, is unable, for one reason or another, to be effectively cross-examined, will not, without more, ordinarily be sufficient to attract the exercise of that discretion.”

67. In the same case Jerrard JA had the following to say:

“[61]In R v FAR [1996] 2 Qd R 49 Davies JA, (at page 61) with whom Pincus JA agreed on this point, wrote that the question whether the discretion under s 98 (or s 130) should be exercised to exclude a statement otherwise satisfying the requirements of s 93A would almost always turn on its reliability. He added that there would be many factors which might affect that question. In R v Morris [1996] Qd R 68 Dowsett J, whose judgment was that of the court, wrote (at page 75) that:

“I do not imply that inherent unreliability may not be a basis for the exercise of the discretion under s 98. Circumstances may arise in which the statement itself appears to be so unreliable, either because of its contents or because of the way in which it was obtained, that it ought not to be received for reasons directly related to the interest of justice.”

[62]With respect to s 130, the unfairness invoking the exercise of the statutory discretion would be the variety discussed in R v Swaffield (1997-1998) 192 CLR 159, and particularly at 189; namely a concern with not jeopardising an accused person’s right to receive a fair trial. As the joint judgment of Toohey, Gaudron, and Gummow JJ records, unreliability is regarded as a touchstone of unfairness.”

68. This Court considered the test subsequently in R v FQ,^[70] where, having referred to Morris, FAR and R v D, Holmes JA^[71] said:

“[33]The comments set out above from Morris, FAR and D say no more than that reliability often will be the focus of consideration in deciding how to exercise the discretion; they do not suggest that it is the only consideration. Some care must be taken, too, with the word “reliability” itself; it may be used in a narrow sense, in reference to the reliability of the evidence to be admitted per se, or more broadly, in reference to general issues affecting reliability. As to the first sense, a statement or statements whose content is manifestly unreliable may well, it seems to me, be more safely and fairly left to a jury than evidence whose reliability is potentially affected by external factors less obvious and less capable of being explored. Hayne J observed in Gately v The Queen that s 93A made a

“special rule for children and intellectually impaired persons … for the evident purpose of preserving the integrity of the evidence of such persons, by allowing evidence of an account of relevant events that was made before, sometimes well before, the trial of the relevant proceeding.”

That preservation of the integrity of the evidence, in the sense of maintaining it as a whole, may work for or against an accused; it may, for example, make inconsistencies apparent in a way that selective presentation would not.

[34]But s 98 uses a breadth of expression which goes well beyond questions of reliability, extending to exclusion where it appears to the court “inexpedient in the interest of justice” to admit the material. It would embrace exclusion for reasons of unfairness (which may still, of course, have some bearing on reliability) or public policy. For example, a deliberate choice by investigating police officers not to use available recording facilities in order to impede examination of their interviewing techniques might well provide a basis for exclusion in the interests of justice.”

69. McMurdo P referred to the particular statement in question in FQ, namely a statement from a child under s 93A of the Evidence Act, and said:

“[6]It is not unusual for statements taken under s 93A from children and intellectually impaired people to be inconsistent, either internally, when compared with their other evidence or when contrasted to independent evidence. Whether such inconsistencies mean that a statement of the child or intellectually impaired person cannot safely be relied upon is often a difficult issue and one with which juries must routinely grapple. The question of reliability is generally best left for the jury to determine after receiving appropriate judicial directions. That said, there may be occasions when a s 93A statement is so patently unreliable that it is appropriate to exercise the discretion given under the Act to exclude it from being given as evidence at trial.”

70. From those authorities the following relevant principles can be extracted in relation to the exercise of the discretion under s 98 or s 130:

1. “reliability” often will be the focus of consideration in deciding how to exercise the discretion, but it is not the only consideration;

2. “reliability” is used in its narrow sense to mean the reliability of the evidence to be admitted per se;
3. used in a broader sense, “reliability” refers to general issues affecting reliability;
4. s 98 goes beyond “reliability” and embraces exclusion in the interests of justice, and for reasons of unfairness or public policy; and
5. a statement, the content of which is manifestly unreliable in the narrow sense, may well be more safely and fairly left to a jury, than evidence the reliability of which is potentially affected by external factors less obvious and less capable of being explored.

71. The learned trial judge ruled against exclusion, saying:^[72]

“I think it’s most significant probative effect is in relation to the sort of slight support it gives or the support it gives the credibility of the complainant: about him being there at the time. So for that reason, I think … I can craft warnings to the jury … I mean obviously they’ll take into account the man’s own evidence that he was half-pissed or … he’d been drinking.”

Discussion

72. The learned trial judge was referred to the relevant authorities for the applicable test.  There are a number of reasons why I conclude that the learned trial judge’s discretion did not miscarry.
73. First, by referring to the “probative effect” of the statement, and the need to allow for the lack of Mr Woodford’s sobriety, his Honour was addressing its reliability.  In the passage referred to above at paragraph [71] the learned trial judge plainly considered that the probative value was that it supported the complainant’s evidence that Mr Adcock was there at the time of the assaults.  It is evident that his Honour started to say “slight support” but corrected himself to say “support”.  For the reasons that follow the learned trial judge correctly concluded that the statement had sufficient reliability to refuse its exclusion, and leave the jury to determine its weight.
74. Secondly, acceptance that the statement was admissible under s 98B of the Evidence Act contains the implicit acceptance that the identification of Mr Adcock was: (i) by someone with personal knowledge of that asserted fact: s 93B(1); and (ii) that it was made shortly after the identification happened and in circumstances making it unlikely the statement about that is a fabrication: s 93B(2)(a); or (iii) made in circumstances making it highly probable the statement about that is reliable: s 93B(2)(b).  In those circumstances one might expect that the statement would only be excluded if the lack of reliability was manifest.
75. Thirdly, Mr Woodford was not recounting a complicated or prolonged set of events.  His evidence was of observations in a short period, and conversation over a very short span of time.
76. Fourthly, in the statement Mr Woodford attributes an identity to both people.  There was no suggestion that he could not reliably identify Molly Martin.
77. Fifthly, Mr Woodford returned to the unit where he had been living for a month.  It is apparent from the statement that the couple who owned or rented the unit were Jim and CC: Mr Woodford had been living there “on and off for about a month or so”, and when he got back three days later, Jim and CC said they had been raided by the police.  That means that when he got to the unit on 7 August, he knew the people in the bedroom watching television, i.e. Jim, CC and their kids.  His statement said nothing to the effect that there were two strangers in the living room, or a stranger with someone he knew (Molly Martin).  He greeted the people he called Chris Adcock and Molly, and asked questions, which they answered.  The jury could infer that he knew Mr Adcock enough to identify him.
78. Sixthly, the statement was not tendered until after the complainant had finished her evidence on the second day of the trial.  There was no renewal of the application to exclude the statement.  In her evidence she identified the persons who assaulted her as Mr Adcock and Molly Martin.  She knew Molly Martin well.^[73]  She described Mr Adcock as “Medium build, short dark hair, a goatee, tattoos, in his 30’s”.^[74]  In cross-examination she said the tattoos were on his neck and arms.^[75]
79. That description fairly describes Mr Adcock who is seen in the photograph, Exhibit 10.  In cross-examination it was established that she did not know Mr Adcock well,^[76] but there was no suggestion that she did not know him well enough to identify him.  What was put was that the male who hit her was Alex Butler, the brother of Jim.  She denied that, saying that Jim had introduced the other person as Chris.^[77]
80. Seventhly, the complainant’s evidence also put Jim and CC in the unit at the same time as Mr Adcock.^[78]
81. Eighthly, the complainant’s evidence also identified that Jim and CC were together with Mr Adcock and Molly Martin, on the night of 7 August, when a man called Bruce was present.  His name was “Bruce Woodward, Woodward, or something like that”.^[79]  She said he “stayed there occasionally”, referring to the unit occupied by Jim and CC.^[80]  He only came in very briefly.^[81]
82. Ninthly, as Exhibit 10 reveals,^[82] on Saturday 9 August the police searched the unit and Mr Adcock was there, along with Molly Martin.  Police knew that Mr Adcock lived there as well.^[83]  According to the statement of Mr Woodford, Jim and CC told him that the persons taken away were Mr Adcock and Molly Martin.
83. In my view, the statement cannot be shown to have that lack of reliability per se that compels its exclusion.  Mr Woodford lived at the particular unit where he identified those he lived with (Jim and CC) and two others (Mr Adcock and Molly Martin), who he did not suggest were strangers to him.  By the time the statement was tendered the complainant had given evidence identifying Mr Adcock: (i) on the basis that he was introduced as “Chris” by Jim; and (ii) by a physical description which, as Exhibit 10 later showed, reasonably matched the photographic image of a male who was in the company of Molly Martin, at the same unit, a day later.
84. I respectfully agree with the conclusion reached by the learned trial judge, that the evidence in the statement should be left to the jury, with appropriate warnings as to the fact that cross-examination of the witness was not possible.  That conclusion received support from the evidence that followed the tendering of the statement.  Evidence from the police established that Mr Adcock was at the unit a day later, and that he lived at that unit.  That provided all the more reason to think that Mr Woodford knew him.
85. When the statement was tendered the learned trial judge mentioned the limitations posed by the fact that Mr Woodford had died:^[84]

“Of course, necessarily, because the evidence has been placed before you in that way, Mr Wilson has no opportunity to cross-examine him and test the evidence, and I’ll have something to say about that at the end of the case.”

86. In the course of the summing up the learned trial judge referred to the statement:^[85]

“In this case there is the absent Mr Woodford who is deceased and his statement was read to you and the Prosecution rely on his evidence as supporting her reliability that the defendant was present, although she never identifies the defendant as the second male, but he said in his own statement he was “fairly pissed” or “half pissed”, he used a number of different expressions, and I think he said he had been at the pub since 1.30 in the afternoon and this was about 8 o’clock at night.

So, as I will say in a few moments, the Defence here are at a real disadvantage with his evidence because they cannot test (a) the extent to which he knew Mr Adcock. He just says in his statement he saw Chris Adcock and Molly Martin there with a young girl who was obviously injured; and (b) Mr Wilson had no opportunity to test the reliability of his evidence on the basis of his intoxication, and other factors that we may not know about, and I will come to that in a few moments. That is an example of how you can bring to bear your own experience.”

87. The learned trial judge directed the jury as to the approach they should take when considering the statement:^[86]

“As I told you when that statement was tendered, it is in evidence before you in that form because Mr Woodford has since died. It follows that the Defence are placed in a position of disadvantage in that Mr Woodford cannot now be tested as to his evidence, for example, as to how he knew Chris Adcock and how well he knew him. He says, himself, in his statement that he was “half pissed” or “fairly pissed” and, again, Mr Wilson has had no opportunity to test that, which, as I have indicated, as a matter of common sense could affect his reliability.

The Prosecution say that you can regard it as reliable as it supports what the complainant says about Bruce coming to the unit. For the reasons I have stated, you should approach this particular piece of evidence with some caution. Keep in mind that you can only find the defendant guilty if you are satisfied beyond a reasonable doubt that he was either a principal or a party to the three offences and this, in large part, will depend on you being satisfied beyond a reasonable doubt that the person she says now was Chris is, indeed, the defendant.”

88. In my view it cannot be shown that the discretion miscarried, or that there was such unfairness to Mr Adcock that a miscarriage of justice occurred.
89. This ground of appeal fails.

Conclusion

90. For the reasons expressed above, I would dismiss the appeal.
91. I propose the following order:
    1. The appeal is dismissed.
92. NORTH J:  I have read the reasons for judgment of Morrison JA and gratefully adopt his Honour’s review of the evidence.
93. For the reasons given by Morrison JA I agree with the order he proposes.