DISTRICT COURT OF QUEENSLAND

1. [1]
   This is an application to stay the indictment permanently, or in the alternative to exclude two categories of evidence which the Crown proposes to lead at the trial. On 20 April 2006 an indictment was presented in this court against the applicant alleging one count of rape and one count of assault occasioning bodily harm, both alleged to have been committed on 15 February 2006 on the same complainant.

2. [2]
   The stay is sought on two grounds: first, that the applicant cannot receive a fair trial, and has not received a fair committal, because the principal witness for the prosecution, the complainant, cannot be cross-examined. Second, because the conduct of the prosecution has been oppressive. In relation to the evidence, the first category is evidence the Crown proposes to tender under s 93B of the Evidence Act 1997.  It was submitted on behalf of the applicant that the evidence was not admissible under s 93B, or in the alternative, if it was admissible under that section, it nevertheless should be excluded under s 98 or s 130 of the Evidence Act.  The second category is evidence of certain responses to questions put to the applicant by a police officer, which the applicant submitted was inadmissible under the Police Powers and Responsibilities Act 2000.

Stay – oppressive conduct

3. [3]
   The basis of this part of the application is that, in late 2003, at a point when the applicant’s committal proceeding ought otherwise to have continued, the prosecution withdrew the charges, and the applicant was discharged. Subsequently, in early 2004, the decision was made to proceed against him again, he was rearrested, and a further committal proceeding occurred.

4. [4]
   A complicating feature of the prosecution is that the complainant has now died, from causes independent of anything done by the applicant. At the time when the matter came on for committal, however, the complainant was still alive. The applicant was originally charged on 15 February 2003, and the first committal hearing was set to occur on 4 September 2003.  At that time the complainant was in hospital and very ill, and it was adjourned by consent.  However, it was set down for a further committal hearing, at the instance of the applicant, on 18 November 2003.  Again, the prosecution applied for an adjournment on the ground the complainant was seriously ill in hospital.  Indeed, at that stage, the complainant was not expected to last very long, and active treatment had just been withdrawn.  The application for an adjournment was opposed and refused.

5. [5]
   I have not been provided with reasons for that refusal of the adjournment, or a transcript of that part of the proceeding; I am told that a transcript is no longer available. Nevertheless, I have a transcript of proceedings that occurred that day in respect of two summary offences, where the applicant pleaded guilty and was sentenced. It was not suggested that this plea of guilty was in accordance with any arrangement with the prosecution as to what was to occur with the committal proceedings, nor indeed was there direct evidence that, but for the withdrawal of the committal proceedings, the applicant would not have pleaded guilty to the summary offences at all. I think it is a fair inference that the applicant would not have pleaded guilty to the summary offences at that time if the proceeding for the indictable offences had not been discontinued. Presumably, the summary offences did not depend on the evidence of the complainant.

6. [6]
   There had been some consideration prior to 18 November 2003 of using s 93B in relation to the evidence of the complainant, but evidently no detailed consideration.  I proceed on the basis that the application for the adjournment on 18 November was not expressly supported by reference to a desire to give further consideration to reliance on s 93B.  The position appears to have been simply that when the application for the adjournment was refused the legal officer handling the matter, when he could not produce the complainant for the committal proceeding on that day, withdrew the charges.  He may well have felt that he had no alternative course open to him.^[1]

7. [7]
   Whether to seek to proceed under s 93B was, however, considered further, and on 5 February 2004 a decision was taken to attempt to rely on that provision.  As a consequence, the police were informed, and on 1 May 2004 the applicant was rearrested.  In due course the matter came on for committal hearing, relying on evidence from the complainant under s 93B, and on 28 November 2005 the applicant was committed for trial.^[2]

8. [8]
   There is no doubt that this court has jurisdiction to stay the indictment. The approach to the exercise of that power was discussed by the High Court in Jago v District Court of New South Wales (1989) 168 CLR 23, and Walton v Gardiner (1993) 177 CLR 378.  In the former case, Mason CJ at 30 referred to a passage in the judgment of Richardson J in Moevao v Department of Labour [1980] 1 NZLR 464, who at 481 noted that it was relevant to consider two related aspects of the public interest:

“The public interest in the due administration of justice necessarily extends to ensuring that the court’s processes are used fairly by state and citizen alike…The second aspect of the public interest…is in the maintenance of public confidence in the administration of justice.  It is contrary to the public interest to allow that confidence to be eroded by a concern that the court’s processes may lend themselves to oppression and injustice.”

9. [9]
   It was submitted that it was unjust for the prosecution to be able to continue the matter after it had been withdrawn in November 2003. The prosecution had simply changed its mind about seeking to rely on s 93B.  There is evidence that there was some consideration given to the section, and that well before 18 November 2003 it was apparent not merely that the complainant was incapable of attending court to give evidence, but that that situation was not going to change.  In these circumstances, the prosecution had a reasonable opportunity to decide prior to 18 November 2003 whether it would seek to rely on s 93B, and it ought not to be permitted to change its mind in relation to that matter after the charges had been withdrawn.  In effect, it was submitted that the decision to withdraw the charges in November 2003 amounted to an election not to seek to rely on s 93B in respect of evidence from the complainant.

10. [10]
    Reliance was placed on the decision of the Court of Appeal in Director of Public Prosecutions v Wentworth [1996] QCA 333, BC9604423.  In that case the respondent had been charged with a number of offences.  Shortly before they were due to come to trial there was an agreement between him and the Crown Prosecutor who was then handling the matter that he would plead guilty to two of the counts and the others would be dropped.  He duly did plead guilty, and a nolle prosequi was entered in respect of the others.  Subsequently, however, a further indictment was presented in relation to those other counts, but that indictment was stayed and an appeal against the stay was dismissed.  It is apparent, however, from the reasons of the court, and in any case obvious enough, that the stay turned on the fact that the defendant had in that case changed his position to his detriment by pleading guilty to two of the counts pursuant to the agreement, so that it would be unfair for the defendant who had given up his opportunity to be tried and possibly acquitted in respect of those two counts to be put in the same position as if no agreement had been made.  That case is easily distinguishable, in my opinion.  Mr Chowdhury for the applicant went as far as he properly could go in relation to the plea of guilty to the summary offences, but the crucial feature which was present in Wentworth was that the defendant had acted to his detriment in reliance on an agreement with the Crown not to proceed on the other charges.^[3]

11. [11]
    The position in the present case is different. There is no evidence that the defendant acted to his detriment in reliance on the proposition that the charges had been withdrawn. It was submitted that once the charges were withdrawn he had a legitimate expectation that the matters were indeed finalised. But that can only arise in the case of criminal proceedings when the person has been tried and acquitted. Where charges are withdrawn, or, after an indictment is presented, a nolle prosequi is entered, it is always open for the charges to be brought again.  There is no res judicata, and in principle the charges can always be brought again subject to the discretion to stay.^[4]  In my opinion, the applicant had no legitimate expectation that the matter would not proceed further simply because the charges were on one occasion withdrawn.

12. [12]
    It could also be said that the effect of the actions of the prosecution was to interfere with the control by the magistrates court over its own process, because the practical effect of what has occurred is the same as if the committal proceeding had been adjourned on 18 November 2003; indeed, if anything, there has been a good deal more delay than would otherwise have been the case.  There might be some force in this,^[5] but it may also stand as a basis for suggesting that perhaps the decision of the magistrate to refuse the adjournment was inappropriate.  Be that as it may, in my opinion it is clear that the mere fact that a proceeding is withdrawn does not stand as a bar to further proceedings, and that position cannot be overcome or avoided by any claim of legitimate expectation.

13. [13]
    In addition, there is some indication that the prosecuting authority is seeking to use this as a test case in relation to the application of s 93B.  The position is not entirely straightforward, as indeed will appear when I come to discuss the questions arising in relation to that provision, and I think it is unreasonable to hold the prosecuting authority to a decision made, apparently on the spur of the moment, by a particular legal officer when confronted with a refusal of his application for an adjournment, at least in circumstances where there is no evidence that the applicant has in fact acted to his detriment in reliance on the withdrawal of the charges.  The use of s 93B in this way is at least unusual in Queensland, and there was no great delay between the decision to withdraw and the further decision to proceed again, and in those circumstances in my opinion it was not unfair for the prosecuting authority to have changed its mind in this case.  I would therefore not stay the indictment on this ground.

14. [14]
    As to the other ground on which a stay is sought, that depends on the proposition that the evidence sought to be led under s 93B is admissible and will not be excluded.  It is therefore convenient to consider that question, and also whether to exclude the other evidence, before deciding on the question of the stay.

Section 93B

15. [15]
    The Evidence Act 1997 provides in s 93B, so far as is relevant:

“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.

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.”

16. [16]
    This provision is only a small and tentative movement away from the rigors of the rule against hearsay which otherwise applies in the criminal jurisdiction, in contrast to the more rational approach in the civil jurisdiction under, for example, s 92 of the Act.  It is based on a similar provision in the New South Wales Evidence Act, which in turn is based on the Commonwealth Evidence Act.  That was essentially an exercise in codifying the law of evidence^[6], although there were some reforms, or at least modifications, including in this provision.  Views differ about the Commonwealth legislation. 

17. [17]
    Section 93B was introduced following a recommendation of the task force on women and the Criminal Code.^[7]  The task force specifically considered the Court of Appeal decision in R v Babsek [1998] QCA 116, where it was held that certain statements by a deceased person were inadmissible hearsay, and what was seen, at least in some quarters, as the injustice of the outcome in that matter.  Section 93C, which was introduced at the same time, requires the trial judge to give certain warnings to the jury about evidence admitted under s 93B.  It has been authoritatively stated in Queensland that s 93B should be strictly construed.^[8]

18. [18]
    The two offences charged both fall within the part of the Criminal Code identified in the definition of “prescribed criminal proceeding” in subsection (5), so it is satisfied for this proceeding.  Although at the time when the legislation which introduced this provision into the Evidence Act was being debated there was some emphasis on the position of a victim of crime whose evidence was unavailable because of the crime charged, the definition of “prescribed criminal proceeding” clearly indicates that the legislature contemplated that the legislation would not be restricted to cases where the victim was unavailable to give evidence as a result of the unlawful act of the accused.  There is nothing in the authorities which have considered this provision, or similar provisions in the Commonwealth or New South Wales legislation, to support such a restriction, and there have been examples of cases in the past where the provision has been considered^[9] or applied^[10] where that has not been the case, without any comment to support such a restriction.  In my opinion, there is no reason to imply any such restriction into the words of the statute.

19. [19]
    The exception now included in s 93B(2)(a) is based on an exception to the rule against hearsay which was recognised at common law, allowing evidence to be given of statements made as part of the res gestae.  It has been said that the statutes take up the views expressed as to the scope of the common law test by Lord Wilberforce in Ratten v The Queen [1972] AC 378 at 391.^[11]  On the other hand, it has also been said that this provision involved a significant departure from traditional doctrine by extending the scope of the exception to include statements made “shortly after” the asserted fact happened.^[12]

20. [20]
    The term “shortly after” is necessarily vague, and there has been some judicial disagreement as to the considerations relevant when deciding whether it is satisfied in a particular case. Some have looked to the question of whether the represented facts would still be fresh in the mind of the person making the representation,^[13] while others have approached the matter by reference to the analysis of the common law test in Rattan, from which it was said that term should be confined to circumstances where the statement was made “under the proximate pressure of the occurrence of the asserted fact”.^[14]  In the present case, it was not submitted by counsel for the applicant that the statements sought to be put in evidence were not made shortly after the occurrence of the material fact.^[15]  Police were called to the premises where the offences were alleged to have occurred as a result of noise being made by, presumably, the complainant and the defendant, so that evidence of what the complainant said to the police at that stage occurred quite soon after any offence took place.^[16]  The second set of representations were made by the complainant to a doctor who was examining her later the same day.  The third set of representations were made to a police officer who took a formal statement the following day.^[17]  In the light of the approach in the cases I have looked at, that concession was properly made.

21. [21]
    Although the Crown relied on both paragraphs (a) and (b) of subsection (2), the test under paragraph (b) is much more stringent than the balance of the test under paragraph (a).  The latter is concerned only with fabrication, that is deliberate falsehood; whether the representor was honestly mistaken, or even innocently reconstructing, is irrelevant.^[18]  If it is not possible to say in a particular case that the circumstances made it unlikely that a representation was a fabrication, it necessarily could not be said that the circumstances made it highly probable the representation was reliable.

22. [22]
    Paragraphs (a) and (b) use the expression “made in circumstances making it ... ”.  Because of that form of words, it has been determined authoritatively in both the New South Wales and the federal jurisdictions that the focus must be upon the circumstances of the making of the representation to determine whether it was unlikely that the representation was a fabrication, or highly probable that the representation was reliable, as the case may be.^[19]  As a result, it has been said that evidence tending only to prove the asserted fact is not a matter for consideration when determining the admissibility of evidence under these provisions.^[20]  Logically, the same would apply to evidence tending to disprove the asserted fact.

23. [23]
    I have not found any discussion of principle in any Queensland appellate decision in relation to these matters. The application of the section was considered by the Court of Appeal in R v Crump [2004] QCA 176, where the evidence which had been admitted under s 93B was of a statement by the victim in an offence of homicide to someone else containing a complaint of earlier violence to her.  The court held that the statement was not admissible because of an absence of evidence of visible signs of injury on the deceased at the time when she made the representation, and because the incident could not be related to any other particular proven act of violence by the appellant against the deceased.

24. [24]
    I suppose it might be said that the fact that a statement was being made by a person carrying particular injuries, such as bruising, was one of the circumstances in which the statement was made, but it seems to me more naturally to fit the description of other evidence tending to show that the representation was true. Certainly, the evidence identified in paragraph [14] as potentially justifying the reception of the evidence under s 93B was evidence tending only to prove the asserted fact, and therefore would not have been considered in New South Wales or in the federal jurisdiction.  There was, however, no discussion of principle in this area in Crump, and no reference to those cases, and in all the circumstances I do not think that that decision should be regarded as an authoritative rejection of the approach adopted in New South Wales and the federal jurisdiction on this point.  I therefore propose to approach the matter according to the test laid down in Ambrosoli.

25. [25]
    In Ambrosoli, Mason P, with whom the other members of the court agreed, said at p 615 that other evidence throwing light upon the circumstance of the making of the representation might be admissible, including subsequent statements by the person who made the representation, such as an express retraction, or evidence indicating that the maker of the representation was incapable of having heard or seen the facts represented.  However, at p 616 he emphasised that prior or later statements or conduct of the person making the representation were only to be considered to the extent that they touched on the reliability of the circumstances of the making of that representation.

26. [26]
    As to the circumstances in which these representations were made, the first was a representation made to a person known to be a police officer, who had come to the scene very soon after the relevant events occurred. The complainant may not have been aware that the police officer was tape recording the conversation, but she would certainly have been aware that the police officer was listening to it. There was, in my opinion, in relation to this conversation in particular, significant pressure from the immediacy of the events, which suggests that it was unlikely that the statements were fabricated. So far as they go, the statements made to the police officer on this occasion are consistent with the later statements.^[21]  The complainant was at the time in some apparent distress.  It was submitted on behalf of the applicant that this was a factor which told against the reliability of the representation.  It may be that, for the purpose of considering whether a representation was reliable under paragraph (b), it would be relevant to consider whether the representor was at the relevant time suffering any physical or emotional distress.  But in my opinion her physical, and perhaps also emotional, distress are factors which tend against fabrication.

27. [27]
    At about 1 pm the complainant was seen by a doctor at the sexual assault service at the Royal Women’s Hospital.  The doctor was given a brief account of events by the complainant in connection with the examination.  The complainant at the time would have known that she was a medical practitioner, and would have known that the examination was to locate evidence of injuries associated with her complaints to the police.  I suspect she would have appreciated that the doctor was not a treating doctor, and in so far as that factor would have tended to make fabrication unlikely it is not present.^[22]  The third statement was a formal statement made to police, and included the usual acknowledgement under the Justices Act that the maker of the statement was exposed to criminal proceedings for making a false statement.^[23]

28. [28]
    It was submitted on behalf of the applicant that the complainant was a chronic alcoholic, and that there was no way of knowing to what extent she was affected by alcohol at the time of any of these statements.^[24]  It was also submitted that there was no way of knowing whether the complainant was affected by illicit drugs at the relevant time, or by medication; the doctor had also said the complainant was suffering from chronic liver disease and had hepatitis C.^[25]  It may well be that these would be matters relevant to the question of whether the representations were reliable, but it does not seem to me that they throw any light on the question of whether the representations were a fabrication.  There is no evidence that the complainant’s medical condition or any medication that might have been taken for it would be likely to lead to fabrication, which involves telling deliberate lies, and in my opinion this submission is essentially speculative.  I think the same really applies in relation to alcoholism, and indeed the potential for illicit drugs; the assertion that on this basis there was some reason to think the statement fabricated really depends on speculation.

29. [29]
    It was also submitted that aspects of the statements made to the doctor and to police the following day were shown to be false because they were inconsistent with the results of the medical examination. But this, I think, turns on the issue of whether the represented fact was true, not the circumstances of the making of the representation. It is in the category of evidence which was said to be excluded by the Court of Appeal in Ambrosoli.^[26]  In any case, the true characterisation of the evidentiary position was not that the statements were shown to be false by medical evidence, but that the physical examination conducted by the doctor did not provide independent confirmation of the truth of those statements.  Obviously, whether bites produce injuries which are later visible is going to depend on, among other things, the force with which the person was bitten, but it seems to me entirely plausible that a person can be subjected to something which feels like a bite but leaves no mark visible on a medical examination later that day.

30. [30]
    On the other hand, it can be said that the fact that the examination did not reveal medical evidence to support some of the detailed allegations of mistreatment given by the complainant in the course of the representations suggests that the representations were not tailored by the complainant to accord with the visible signs, or the result of the examination, to the extent that she was aware of it. One would expect that a witness seeking to fabricate a story would make claims which were supported by the available evidence known to the witness, rather than making what seem to have been otherwise surplus allegations which were not supported by it. That is a factor which suggests that the representations were not fabricated.

31. [31]
    Reference was also made to the complainant’s having at some time in the past seen a psychiatrist. Hence, there was the possibility of her suffering from a psychiatric or psychological condition which could affect her general credibility, but again it seems to me that that is more relevant under paragraph (b) than under paragraph (a).  It would be no more than speculation to say that the applicant may have had some psychiatric condition which might have affected the likelihood of her fabricating representations of this nature.

32. [32]
    One other matter mentioned during submissions was the fact that the complainant had a previous conviction for making a false statement. I was told during the hearing by the Crown prosecutor that this related to an offence in connection with the payment of Social Security. There is nothing in Ambrosoli to indicate clearly whether something of this nature is or is not regarded as a circumstance in which the representation was made.  As I read that provision, this is not such a circumstance, but I suppose the relevant circumstances could include factors relating to the personal characteristics and therefore criminal history of the person making the representations.  Assuming that this is potentially a relevant circumstance, it is not a circumstance which I would regard as having any significant weight against the proposition that it was unlikely that the representations were fabricated.

33. [33]
    Although the first conversation was tape-recorded, counsel for the applicant submitted that the recording was very hard to decipher. That may be so, and indeed ultimately the recording may be of little use to the jury; however, the effect of s 93B is that the police officer can give evidence of what was said by the complainant, if necessary refreshing her memory from the tape-recording.  The position is not like the situation under s 93A, where what is admissible is the statement of the complainant; and if the recording of the statement of the complainant is unintelligible, the police officer who took it cannot give oral evidence as to what the complainant said.

34. [34]
    In R v Butler and Ors [2003] QDC 160, Hoath DCJ held that evidence of a statement made to police by a complainant who had subsequently died was not admissible under s 93B.  The application of paragraph (a) was excluded on the basis that the statement was not shortly after the occurrence of the relevant events, so it was unnecessary to consider whether it was unlikely to be fabricated, but in determining whether it was highly probable that the representations were reliable he took into account, among other things, that the complainant was found with injuries which suggested that he had been subjected to violence by one or more of the persons present^[27] so that “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.”^[28]  This consideration in my opinion requires careful handling.

35. [35]
    If the only reason to think that a person making the representations would or might have animosity towards the accused would be if the accused had done the particular thing which the person making the representations said the accused had done, in my opinion such animosity would not provide a rational basis for suggesting a likelihood of fabrication. Otherwise, the court should be inferring animosity on the assumption that the representations were true, and then using that inference as an indication of a likelihood that the representations were fabricated, and hence not true. In Butler, of course, the situation was different, because the question was reliability rather than fabrication, and because there was a lengthy course of conduct on the part of the accused persons alleged by the complainant, whereas all that was inferred was that one or more of them had inflicted some injuries on the complainant, and the likelihood of animosity was inferred not on the basis of what the complainant had said, but on the basis of the presence of the injuries.

36. [36]
    In the present case, of course, there were two separate kinds of wrongdoing alleged by the complainant in the statements sought to be made admissible in this way: assault and rape. There were injuries on the complainant consistent with her in fact having been assaulted, and she and the applicant were found together by the police, so that apart from anything she said, there is an inference available from other evidence that there had been some ill‑treatment of her by the applicant.  That in the present case does provide a rational basis for suspecting fabrication, a basis which is of perhaps greater significance in the case of the later statement when the applicant had had more time to put together a story which involved at least some elements of fabrication.  Accordingly, I think this is a consideration which should be recognised as having some weight in the present case.

37. [37]
    I accept that it is necessary for the Crown to show in a positive way that it is unlikely that the presentation was fabricated, so that it is not just a question of whether there is an absence of any basis or any substantial basis for thinking that the representation was fabricated. On the other hand, in my opinion, the test of whether it is unlikely the representation is a fabrication is to be decided on the balance of probabilities. I am not aware of any direct authority on this point, but that is in my opinion the natural reading of paragraph (a), and contrasts with the obviously much higher standard in paragraph (b).^[29]  In other words, the question is whether it is more likely than not that the representation is not a fabrication, rather than that there is no significant likelihood that the representation is a fabrication, a test which would be too close to the test in paragraph (b) to sit well with the different language used.  I think it unlikely the legislature would have chosen such a difference in expression if the intention was to produce only a fairly subtle difference in the tests to be applied.

38. [38]
    Approaching the matter on that basis, in my opinion on balance the circumstances in which the representations were made make it unlikely in each case that the representation was a fabrication. The first representations were made quite soon after the relevant facts, and at a time when it would seem to me there had been, really, little opportunity to fabricate. The second set of representations were made soon after that to a medical practitioner who was examining the complainant in circumstances where the complainant must have expected that the examination would be directed to the consistency or otherwise of the physical state of the complainant’s body with the representations. The representations made in the formal police statement again followed not that long after, and involved a degree of seriousness and formality, and potentially exposed the complainant to criminal sanctions if representations in the statement were fabricated. Insofar as the representations cover the same ground, they were generally consistent; no particular inconsistency was identified in the course of argument. For these reasons, and taking into account also the other factors relevant to the determination referred to earlier, on balance I find that in each case the representations were made in circumstances making it unlikely the representations were a fabrication. They are therefore admissible under s 93B of the Evidence Act.

Exclusion on discretionary grounds

39. [39]
    Evidence admissible under s 93B is nevertheless subject to exclusion if for any reason it is inexpedient in the interests of justice that the evidence be admitted, pursuant to s 98, or if it would be unfair to the applicant to admit that evidence, under s 130.^[30]  There was some discussion of the approach to these sections in the judgment of Jerrard JA in R v D [2003] QCA 151.  Jerrard JA referred to dictionary definitions of “inexpedient” and said that it would be inexpedient to admit statements under s 93A “where there is a reason for concluding the truth will not be ascertained if evidence is received in that manner.”  He went on to note authorities which referred to the exclusion of evidence under s 98 on the grounds of unreliability.  In relation to s 130, he referred to Swaffield (1998) 192 CLR 159 as supporting the proposition that unreliability was the touchstone of unfairness.^[31]  This judgment was actually a dissenting judgment, but on the whole the decision is certainly authority for the proposition that unreliability is relevant to the exercise of the discretion under both sections.

40. [40]
    In the same case, however, Davies JA said at [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. … 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.”

His Honour went on to note that an apparently contrary view expressed by Fitzgerald P in R v Cumner [1994] QCA 270 had been rejected by a majority of the Court of Appeal in R v FAR [1996] 2 Qd R 49.   The third member of the court, Mackenzie J, also referred to authorities establishing that unreliability was at least a ground for exclusion under both sections.

41. [41]
    Counsel for the applicant relied in particular on the inability to cross-examine the complainant as a ground for excluding the evidence under either of these provisions. He referred to various cases emphasising the importance of cross-examination as an integral part of the adversarial system of criminal justice,^[32] including cross-examination at committal,^[33] and these can of course be accepted as general propositions.

42. [42]
    Nevertheless, in my opinion the mere fact that the person making the representations cannot be cross‑examined, and indeed could not be cross‑examined at committal, could not in itself be a sufficient reason for excluding evidence admissible under s 93B under either of these provisions.  To do so, either generally or ordinarily, would in my opinion have the effect of subverting the clear legislative intention that evidence should be received pursuant to s 93B notwithstanding an inability to cross‑examine, including at committal.^[34]  It is clear from the parliamentary materials that the legislature contemplated that it would operate in cases of homicide, and in such cases the victim will necessarily not be available at committal as well as at trial.  In addition, there was already a legislative provision to deal with the case where a witness died between committal and trial.^[35]  In these circumstances, in my opinion it would be wrong to exclude evidence admissible under s 93B just because of an inability to cross-examine, and the fact that the witness was not cross‑examined at committal.

43. [43]
    It did occur to me in the course of the submissions that a distinction may be drawn between those cases where the evidence admissible under s 93B is the only evidence, or the most important evidence, in respect of one or more of the elements of the offence and those where it is part of a wider case.  In this respect, the position of the two counts is different.  There is a good deal of evidence available apart from the complainant in relation to the offence of assault occasioning bodily harm, including the evidence of the admissions made to police by the applicant.^[36]  In relation to the charge of rape, the applicant admitted to sexual intercourse, but claimed that the intercourse was consensual.  Accordingly, in relation to the count of rape, the matters particularly contentious at a trial would be whether there was an absence of consent, and whether an honest and reasonable mistaken belief as to consent had been excluded.  These are matters in respect of which the complainant’s evidence would be crucial.

44. [44]
    There is no medical evidence particularly suggesting an absence of consent. Although there is evidence from another person in the house at the time, and from the neighbours, of raised voices, which provide some support for the account of the complainant, there is little or no evidence which is specific to the count of rape rather than the count of assault. It occurs to me that if the complainant had been available to give evidence, evidence of the initial statements to the police, and evidence of the statements to the doctor, would have been admissible anyway as evidence of preliminary complaints by her, which would have been potentially capable of bolstering her credibility, though in those circumstances they would not have been evidence of the truth of what was said. The fact that under s 93B they become evidence of the truth of what was said does not, I think, detract from their potential significance as preliminary complaints.

45. [45]
    It also follows that it would be necessary to give the warnings required by s 93C in respect of the evidence essentially relied on to establish these two elements.  That is a matter of some significance, but it is not the only situation where it is appropriate for strong warnings to be given in respect of the only, or only significant, evidence available against the defendant; an obvious example is a case where a Longman^[37] direction is appropriate, and the warnings required by s 93C, although significant, are hardly stronger than a Longman direction.  Yet, the fact that it is appropriate to give a Longman direction in relation to particular evidence has not been regarded as a matter which in itself justifies the exclusion of that evidence under s 98 or s 130.

46. [46]
    I accept that it is also relevant to consider for these purposes other factors which would not be relevant to the risk of fabrication, but may affect the reliability of the evidence of the complainant. I have referred to a number of these above. The difficulty here is that it seems to me that the submissions in relation to these matters were largely speculative. They were based to some extent on the proposition that various potentially fruitful lines of cross‑examination were necessarily closed off by an inability to cross-examine, rather than on evidence showing the presence of a particular problem.  There is no reason to believe that either the complainant’s medical condition or any medication she was taking in respect of that would be likely to render her statements unreliable, matters which ought to be capable of exploration in the absence of the complainant by appropriate expert evidence and by reference to the medical records of the complainant.  I do not know that there is any particular reason for me to conclude that an alcoholic is significantly more likely to be unreliable about matters such as assault and rape than anyone else; it seems to me that it would be more appropriate for a jury to be asked to consider such a factor.  In so far as there are reasons to be concerned about the reliability of the complainant, they are all reasons which would be readily apparent to a jury.  In all the circumstances, I do not consider that it is inexpedient in the interests of justice for the evidence to be admitted, or that it would be unfair to the accused to admit it.  Accordingly, I will not exclude the evidence on discretionary grounds.

Unrecorded conversation with a police officer

47. [47]
    When police were called to the unit on 15 February 2003, while one officer was speaking with the complainant, another officer spoke to the accused in another room.  In a statement put in evidence at the committal proceedings, the police officer gave details of that conversation, including some statements by the applicant on which the Crown would seek to rely as admissions.  That conversation was not tape recorded, and notes of the conversation were not made at the time, although at the committal proceedings the police officer said that he made notes some hours later.  He conceded that those notes were not shown to the accused nor were they read to him.  At some time after the conversation there was a recorded interview with the accused; however, it does not appear that the content of this initial conversation was put to the accused during that interview.  The officer who had the conversation had some contact himself with the accused later in the day, but did not at that time comply with the statutory provisions in relation to notes of unrecorded answers to questions.^[38]

48. [48]
    It was conceded on behalf of the Crown that there had been a failure to comply with s 264 of the Police Powers and Responsibilities Act 2000.  It was submitted that that failure did not automatically render the admissions inadmissible, but it seems to me to follow from the terms of s 266 that where the questioning was not electronically recorded and there was a failure to comply with s 264, evidence as to the questioning and the defendant’s responses is not admissible unless the test in subsection (2) is satisfied.

49. [49]
    The only matters sought to be relied on by way of special circumstances for the purpose of that test were that there was not a deliberate omission to record the questioning electronically, and that other officers were then involved in the recorded interview with the defendant later that day. Two police officers had gone to the unit and come upon the complainant and the defendant, and had separated them, with the result that one spoke to the complainant in one room and the other spoke to the defendant in another room. That is understandable, and although the police officer with the complainant had a recorder activated, it is understandable that in the heat of the moment there was a failure to record electronically the conversation with the defendant. However, those considerations do not apply to the failure to comply with the requirements of s 264.  There seem to me to be no circumstances excusing that failure, or any special circumstances in relation to that, and it is therefore not appropriate to exercise the discretion under s 266(2).  Accordingly, evidence of the admissions made by the defendant at the unit to the police officer must be excluded.

Stay – alternative grounds

50. [50]
    It is therefore necessary to consider the alternative ground advanced in support of the application for a stay, that the applicant would be denied a fair trial because of the inability to cross‑examine the plaintiff.  It was submitted that if the evidence of the complainant was admissible under s 93B, then it will be crucial to the case against the applicant, particularly on the count of rape, and that, because of the inability to cross‑examine the complainant, both at the trial and at committal, the appropriate response was to stay the indictment permanently.  It was conceded that a permanent stay is an exceptional remedy which should be sparingly used, and reference was made to Jago v District Court of New South Wales (1989) 168 CLR 23.  I have already referred to this and other relevant authorities in relation to a stay.

51. [51]
    The difficulty with this ground is that essentially it seems to me that it turns on the same issues relied on for seeking to have the evidence under s 93B excluded under s 98 or s 130.  If evidence is not to be excluded on that basis, it seems to me difficult to say that the admission of that evidence as part of the Crown case would nevertheless make it appropriate to stay the indictment permanently.  The situation is different in relation to the two counts, because there is other evidence to support the Crown case in relation to the assault charge, but the evidence of an absence of consent in relation to rape comes only from the complainant’s evidence under s 93B.  I assume^[39] that it is open to stay one count on an indictment but not the whole indictment.  The s 93A evidence is therefore more important in relation to Count 2, so that if anything is to be stayed it should be that count.

52. [52]
    The applicant’s submissions were that the complainant’s evidence was for various reasons likely to be unreliable, and that the inability to cross‑examine had prevented and will prevent the applicant from exposing other problems, or potential problems, with the reliability of that evidence.  There is I think some force in that, but on the other hand these are matters which can be put before a jury, and the reliability of the complainant’s evidence in these circumstances is a matter which can be assessed by the jury.

53. [53]
    There is perhaps some analogy with a charge of an offence that occurred a long time ago. In such circumstances, it is well known that there are particular difficulties facing the accused, and it is appropriate to give strong warnings to a jury when considering such a case, but ordinarily the mere fact that there has been a long delay in the matter coming to trial is not a ground for staying the indictment.^[40]  There is also the consideration that if, at the close of the Crown case, an application were made for a determination that there was no case to answer, applying the approach in Doney v The Queen (1990) 171 CLR 207, the application would have to fail.  Insofar as the argument is based on unreliability or potential unreliability of the complainant’s evidence in my opinion the outcome should not be any different if the application made is one for a stay.

54. [54]
    Of course, a stay can be granted on the ground of unfairness notwithstanding that there is evidence, perhaps even strong evidence, to support the prosecution case. However, I have already concluded that the way in which the proceeding was conducted does not give rise to any unfairness, and it seems to me that it would be inconsistent with the legislative policy behind s 93B for an indictment or a count to be stayed on the basis that the evidence in support of the count comes from, or even principally from, evidence admissible under s 93B.

55. [55]
    I also consider that there is no abuse of process on the basis that the Crown was seeking to use s 93B for a purpose for which it was not intended, namely in a situation where the absence of the witness was not due to the acts of the defendant.  Such a case may well be in political terms the most persuasive argument in favour of the existence of such provision, but the provision has expressly a wider operation, and there is no reason to characterise as an abuse of process any use of the provision which is within its terms, in the absence of any indication of a collateral purpose.

56. [56]
    Overall, in all the circumstances, I am not persuaded that this is a case where it is appropriate to stay either the whole indictment or Count 2 on the indictment.  Accordingly, I rule that the evidence of the statements made by the applicant during the questioning of him by Sergeant Wildman on 15 February 2003 is not admissible because of the Police Powers and Responsibilities Act 2000; the application is otherwise dismissed.