R v Butler[2003] QDC 160

DISTRICT COURT OF QUEENSLAND

1. [1]
   The accused, David Butler, Theresa Dziopa and Daniel Randall are each charged with one count of torture, one count of assault occasioning bodily harm in company, and four counts of sexual assault in company.

2. [2]
   The Crown alleges that the complainant in each of those counts, C, was abducted on Friday 11 May 2001 and the offences were committed whilst he was forcibly detained before he was able to escape on Monday 14 May 2001.

3. [3]
   The Crown case is that the three accused were known to the complainant as a result of drug dealings. It is alleged that the complainant owed money for drugs to Butler and Randall, and his abduction, detention and torture was directed to enforcing payment of the debt.

4. [4]
   The accused, Randall, and a female, Naomi Dyer, came to C’s home on the morning of May 11 and demanded payment of the money owing. In an endeavour to obtain payment they travelled with the complainant in Randall’s car to the Coorparoo Post Office to see if there was a cheque there for C.

5. [5]
   When the cheque wasn’t there they travelled to the car park of Sizzler’s at Annerley. There they met the accused Butler and Dziopa. At the car park C was repeatedly punched and kneed by Butler. From there the five of them drove to Randall’s home at Willawong. It is alleged that the complainant was further assaulted whilst at Randall’s home. The complainant was then taken to the Salisbury Hotel by the accused. He spent Friday night detained in a room at the Salisbury Hotel. Whilst in that room it is alleged that he was stripped naked, assaulted, burnt with cigarettes, urinated on and subjected to various sexual indignities.

6. [6]
   The next morning, that is 12 May 2001, he was taken by Butler and Dziopa to a hotel in Darra where he was detained until about midday on Monday 14 May when he was driven back to Annerley and forced to draw money from his bank account. Later that day when the vehicle he was travelling in slowed down he jumped from the vehicle and escaped.

7. [7]
   After hiding for several hours he told an elderly lady to contact the police. Police attended at an address in Annerley and found C in an hysterical state. He informed the police that he had been abducted, bashed and that people were trying to kill him.

8. [8]
   C was then taken to the Princess Alexandra Hospital where it was noted that he was suffering from multiple bruises, abrasions and cigarette burns. At the hospital he was interviewed by the police. That interview which was tape recorded occurred at approximately 11.45 p.m. on Monday 14 May. The next day he was again interviewed and a type written statement was signed by him and acknowledged to be true before a Justice of the Peace.

9. [9]
   The summary of the allegations that I have just outlined is taken from C’s type written statement. There is independent evidence capable of corroborating various aspects of C’s account, but the case against each accused relies substantially on the evidence of C.

10. [10]
    Naomi Dyer made admissions to the police as to her involvement in the incidents related by C and has pleaded guilty to charges similar to those faced by the accused. In a voir dire she has claimed that she now has no recollection of the events. The crown may seek to have her declared hostile and her statement tendered in evidence. At best it would seem that her evidence could go before the court as the prior inconsistent statement of an accomplice.

11. [11]
    At the time of this incident C was 24 years of age. He was a drug addict. Seven days after he was first interviewed by police about this matter he died of an overdose of heroin.

12. [12]
    On the trial of the three accused, the Crown seeks to lead evidence of the statements that C made to the police on 14 and 15 May. C’s account of the incident given by him to the police when related by them is obviously hearsay. The Crown relies on s. 93B of the Evidence Act recently introduced in 2000 to have C’s statements admitted into evidence in the trial.

13. [13]
    Section 93B provides:

“93B(1) This section applies in a prescribed criminal proceeding if a person with personal knowledge of an asserted fact –

1. (a)
   made a representation about the asserted fact;  and
2. (b)
   is unavailable to give evidence about the asserted fact because the person is dead or mentally or physically incapable of giving the evidence. 

1. (2)
   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  -

1. (a)
   made when or shortly after the asserted fact happened and in circumstances making it unlikely the representation is a fabrication;  or
2. (b)
   made in circumstances making it highly probable the representation is reliable.”

14. [14]
    In this case the Crown says, and it is not disputed by the defence, that the statements made by C are representations of asserted facts that he would have had personal knowledge of: s. 93B(1)(a), and as he is deceased he is incapable of giving the evidence: s. 93B(1)(b).

15. [15]
    The Crown contends that those representations are admissible under both s. 93B(2)(a) and s. 93B2(b).

16. [16]
    The first statement made to the police by C about the incident was made some four hours after he escaped from the car. The subsequent representations sought to be led by the Crown relate to asserted facts which are in the main alleged to have occurred three days previously.

17. [17]
    To be admissible under s. 93B(2)(a) the representation must be “made when or shortly after the asserted fact happened”.  The word “when”  encompasses the notion of strict contemporanity.  See R v. Conway (2000) 172 ALR 185 at 218.  Churchill’s representations were clearly not made “when” the asserted fact happened.

18. [18]
    The expression “shortly after” introduces greater temporal latitude.  There is some conflict on the authorities as to whether the latitude should relate to the actual time that has elapsed or whether it should relate to the nature of the event and how long such an event is likely to remain clear in a person’s memory. 

19. [19]
    That conflict was address in Williams v. R. (2000) 119 Aust.Crim. R. 490 at 502”

“It would be a mistake, in determining whether a statement has been made shortly after, to overemphasise such matters as whether the events in question were fresh in the memory of the person making the statement.  The rationale for the exception to the hearsay rule contained in s.65(2)(b) is not based only upon the necessity to ensure the events in question may be easily recalled.  Rather, that provision is, as a whole, intended to allow evidence that is unlikely to be a fabrication.  One condition of this is that the statements be made spontaneously during (when) or under the proximate pressure of (shortly after) the occurrence of the asserted fact.”

20. [20]
    In my view, despite the fact that on C’s account he was not able to escape his captors until only several hours before he first made a representation to the police, the three days that had elapsed between the asserted fact and the representation being made to the police takes the representation outside the requirement of being made “shortly after” and inadmissible under s 93B(2)(a).

21. [21]
    That then leaves the issue as to whether the representations can satisfy the requirement of s. 93B(2)(b) as being “made in circumstances making it highly probable the representation is reliable”. 

22. [22]
    In dealing with representations sought to be admitted under s. 93B(2)(b) it is necessary to determine whether when considering the expression “made in circumstances making it highly probable the representation is reliable”, regard should be had to all circumstances, including for example, other representations made by the person or evidence which corroborates the facts asserted in the representation, in determining the reliability of the representation or only to the factual circumstances in which the representation was made. 

23. [23]
    The only two Queensland Court of Appeal decisions where s. 93B has been considered do not address this issue, and decisions from other jurisdictions dealing with analogous New South Wales and Federal legislation reveal conflicting authority.

24. [24]
    The most recent decision is the New South Wales Court of Criminal Appeal decision of R v. Ambrosili (2002) 55 NSWLR 603.  In that case in the judgment of Mason P, with whom the other members of the court agreed, Mason P, after analysing most of the previous decisions  relating to “made in circumstances” stated:

“It would therefore appear that Mankotia, Conway and Williams are at one in focusing upon the circumstances of the making of the previous representation to determine whether it is unlikely that the representation was a fabrication or highly probable that the representation was reliable and excluding evidence tending only to prove the asserted fact.

In my view, this is a correct approach to s.65(2).  To the extent that Dean and Lock decide otherwise they should not be followed.

The point of disagreement between Mankotia on the one hand and Conway / Williams on the other is the legitimacy of resort to inconsistent or consistent statements of the maker of the previous representation or other circumstances (whenever occurring) directly touching on the credibility of the maker of the representation at the time of making the representation” (c.f. the victim in Bedingfield).

…

I would, however, emphasis that prior or later statements or conduct of the person making the previous representation are only to be considered to the extent that they touch the reliability of the circumstances of the making of that previous representation.  If they do no more than tend to address the asserted fact or ultimate issue they have no bearing on the issues presented by s.65(2).”

25. [25]
    With the reservation that I have difficulty accepting that other consistent statements of the maker can be taken into account in considering the reliability of the representation, I consider that the interpretation advanced by Mason P should, for the reasons stated by him in that judgement, be adopted.

26. [26]
    Accordingly, in determining reliability, I can have regard to the factual setting in which the representations were made, and to other representations made by the maker. Other evidence which is only corroborative of an asserted fact must however be disregarded when considering the issue.

27. [27]
    For the purpose of s. 93B(2)(b) the onus is on the prosecution to point to circumstances that significantly increase the probability of reliability. That is an onerous requirement.

28. [28]
    As was said in R v. Conway (2000) 172 ALR 185 at 222:

“The requirement in s.65(2)(c) of the Act that it be “highly probable” that a representations be “reliable” in order to be admissible is an onerous one.  It is easy to see why that should be so.  Section 65(2)(c) has the potential to operate unfairly against an accused person.  This particular exemption to the hearsay rule was not recommended by either the Australian Law Reform Commission or the New South Wales Law Reform Commission.  Treating “reliability” alone is the basis for admissibility, represents a radical departure from the principle that hearsay evidence, no matter how reliable it may appear to be, is inadmissible unless it falls within a recognised exception to the hearsay rule.

It is true that in Pollitt v. The Queen (1992) 174 CLR 558 Mason CJ favoured the development of an exception to the hearsay rule based solely upon “reliability”.  However, the High Court eschewed that approach in Bannon v. The Queen (1995) 185 CLR 1, and there are plainly dangers associated with it.”

29. [29]
    In this case at the time C made the representations he was a drug addict. Shortly before the representations were made he had been found in an hysterical condition. He was a person with a criminal history for offences of dishonesty.

30. [30]
    The injuries to the complainant C’s body indicate that he had been subjected to violence. Accepting that the violence had been inflicted by one or more of the present accused, he would obviously bear animosity to one or more of them.

31. [31]
    The representations made by the complainant cover a series of assaults relating to incidents involving several persons over a period of time when C would have been under stress. The complainant’s ability to reliably recall the events in detail in those circumstances must be questionable.

32. [32]
    Whilst it is unlikely that every representation made by the complainant as to violence is fabricated, it is another step to conclude that it is highly probable that all the representations are reliable.

33. [33]
    As a result of the combination of the factors I have referred to in the previous four paragraphs, I am not satisfied that the representations were made in circumstances making it highly probable they were reliable.