DISTRICT COURT OF QUEENSLAND

1. [1]
   The applicant has pleaded not guilty to a charge that on 30th day of May 2006 at Kowanyama he raped Colleen Desma Lawrence. Ms Lawrence is now deceased.

Allegations

2. [2]
   At the time of the alleged offence the complainant was 40 years of age and the applicant 18. The applicant was involved in a relationship with the complainant’s daughter. The complainant told police that she attended the Kowanyama Canteen at about 3.30 pm on 30 May 2006 where she consumed about 12 cans of XXXX Gold beer. She left to go home at about 9.00 pm. At that point she described herself as “drunk”, “not falling over” but “walking crooked”.

3. [3]
   As she walked towards her home the complainant saw a man approaching her and when he got closer she said “I know you David Martin”. The man grabbed her by the arm, then grabbed her by the hair and pulled her to the ground. He dragged her by the hair through a gate and into long grass and she noticed that he smelt of alcohol.

4. [4]
   The complainant screamed for help. The man forced her to sit on the ground before pushing her back so that she lay on the grass. He then pulled off her pants and removed his pants. The man then pinned her to the ground by holding her shoulders down. He then lay on top of her and had intercourse. Her attempts to push him off were unsuccessful. He ejaculated inside her and then stood up and got dressed. He said, “I’m going to breed you up” and told her not to tell police. He then walked away.

5. [5]
   The complainant initially looked for community police and then went to the house where she knew police officer Millward and his wife lived and stood at the fence calling for help, saying that she “got raped”. Officer Millward came out and she told him what had happened to her. Millward taped this conversation on a micro cassette.

6. [6]
   Millward called Senior Constable Foy, who was on duty and when Foy arrived at Millward’s residence he saw the complainant sitting on the front steps and she told him that she had been raped. The complainant went with Foy and Constable Harvey in a police vehicle to the scene of the offence and pointed out certain things to Foy.

7. [7]
   Later that evening the police took the complainant to the Kowanyama clinic and, according to a very brief statement police have obtained from Dr Stinson, the complainant told the doctor, “She had been grabbed by the shoulders and hair and dragged beside a shed at the school and raped”.

8. [8]
   The next day a detective from Cairns took a formal statement from the complainant.

9. [9]
   The applicant was arrested, interviewed and charged by police on 31 May 2006 and in his interview admitted to having sexual intercourse with the complainant but denied that it was without consent.

10. [10]
    A high vaginal swab taken from the complainant by Dr Stinson confirmed the presence of spermatozoa. A mixed DNA profile was obtained from the sample and the DNA profile of the major contributor matched the DNA profile of the applicant. A similar result was obtained from the low vaginal and vulval swabs taken by Dr Stinson.

11. [11]
    On 23 April 2007, the matter proceeded by way of a full hand-up committal hearing without any witnesses being cross-examined. The complainant’s statement and the statements of Millward and Foy were admitted by consent, pursuant to s 110A of the Justices Act 1886.  The statement of Dr Stinson was tendered as an exhibit.  Section 111 of the Justices Act provides conditions under which the written statement of the complainant could be adduced by the prosecution as evidence at the applicant’s trial.

Contested evidence

12. [12]
    The prosecution seeks to rely at the trial on the following items of evidence to substantiate the allegations the complainant made against the applicant.

13. [13]
    The prosecution seeks to have the above evidence admitted at the trial pursuant to s 93B of the Evidence Act 1977.

14. [14]
    The prosecution submits that the statements of the complainant to officers Millward and Foy and to Dr Stinson are admissible as preliminary complaint evidence pursuant to s 4A of the Criminal Law Sexual Offences Act 1978.  The Crown also however contends that such statements are admissible as representations made by the complainant pursuant to 93B as truth of the facts therein contained.

15. [15]
    The applicant seeks a ruling that the evidence of the various statements of the complainant is not admissible or alternatively that it ought to be excluded in the exercise of the Court’s discretion pursuant to ss 98 and/or 130 of the Evidence Act. 

Statutory provisions

16. [16]
    Section 93B of the Evidence Act provides relevantly as follows:-

“93B Admissibility of representation in prescribed criminal proceedings if person who made it is unavailable

1. (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. (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; or

3. (c)
   at the time it was made, against the interests of the person who made it.

…

3. (3)
   To avoid any doubt, it is declared that subsections (2) and (3) only provide exceptions to the hearsay rule for particular evidence and do not otherwise affect the admissibility of the evidence.”

It is conceded that the trial of the applicant would be a “prescribed criminal proceeding”.

17. [17]
    Section 98 (1) of the Evidence Act provides that –

“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.”

18. [18]
    Section 130 of the Evidence Act states:-

“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.”

19. [19]
    Section 4A of the Criminal Law (Sexual Offences) Act 1978 provides relevantly as follows:-

“4A. Evidence of complaint generally admissible

1. (1)
   This section applies in relation to an examination of witnesses, or a trial, in relation to a sexual offence.
2. (2)
   Evidence of how and when any preliminary complaint was made by the complainant about the alleged commission of the offence by the defendant is admissible in evidence, regardless of when the preliminary complaint was made.
3. (3)
   Nothing in subsection (2) derogates from the power of the court in a criminal proceeding to exclude evidence if the court is satisfied it would be unfair to the defendant to admit the evidence.”

20. [20]
    In that section ‘preliminary complaint’ is said to mean –

“any complaint other than –

1. (a)
   the complainant’s first formal witness statement to a police officer given in, or in anticipation of, a criminal proceeding in relation to the alleged offence; or

2. (b)
   a complaint made after the complaint mentioned in paragraph (a).”

Prosecution’s argument

21. [21]
    The prosecution submits that the statements of the complainant to Millward and Foy and to Dr Stinson are admissible as preliminary complaint evidence and that remains the case whether or not the complainant is alive. As such, however, the representations to those witnesses could not be led as truth of the facts therein contained. Plainly, that is correct.

22. [22]
    The prosecution however contends that such statements are also admissible as representations made by the complainant pursuant to s 93B as truth of the facts therein contained.

23. [23]
    In relation to each of the five representations of the complainant sought to be led by the prosecution, it is argued that they were made “shortly after the asserted fact happened” (s 93B(2)(a)). The offence is alleged to have been committed some time after the canteen closed at 9.00 pm and prior to the complainant speaking to Millward on tape at 9.35 pm. The representation which was made last in time is the written statement of the complainant made (according to the statement of the police officer who took it), sometime between 11.40 am and 1.40 pm on 31 May 2006, the day after the alleged rape.

24. [24]
    Although the applicant points out that there was some delay between the alleged rape and the complainant making her first complaint to Millward it is not seriously argued that the complainant’s representations were not made “shortly after” the alleged offence was committed.

25. [25]
    With respect to the second requirement under s 93B(2)(a), that the representation be made “in circumstances making it unlikely the representation is a fabrication”, it is submitted on behalf of the prosecution that the following supports a conclusion in its favour:

26. [26]
    It seems that the provisions of s 93B have not been considered in this context at appeal level. However, Ms Wooldridge for the prosecution referred me to the unreported decision of McGill DCJ in the R v Higgins^[1]. In that case the defendant was facing charges of rape and assault occasioning bodily harm arising out of the one incident involving a complainant who subsequently died.  In Higgins police were called by others to the premises where the offences were alleged to have been committed. The evidence which McGill DCJ found to be admissible pursuant to s 93B consisted of evidence of what the complainant said to police upon their arrival, representations made by the complainant to an examining doctor later the same day and representations made to a police officer who took her formal statement the following day.

Applicant’s argument

27. [27]
    The applicant argues that the fact that the representations were made to a police officer of itself cannot be sufficient to satisfy s 93B(2)(a) and that it is relevant that the first complaints were made at a time when the complainant was intoxicated.

28. [28]
    The applicant submits that the court should adopt the test outlined in the New South Wales Court of Appeal in R v Ambrosoli^[2] and adopted by the Queensland Court of Appeal in R v Lester^[3]:-

“(a) The statutory test is not whether, in all the circumstances, there is a probability [Qld s 93B(2)(a)] or a high probability [Qld s 93B(2)(b)] of reliability, but whether the circumstances in which the representation “was … made” determine that there is such a probability.

(b) Evidence tending only to prove the asserted fact may not be considered.

(c) Prior or later statements or conduct of the person making the previous representation may be considered to the extent that they touch upon the reliability of the circumstances of the making of the previous representation – but not if they do no more than tend to address the asserted fact or ultimate issue.”

29. [29]
    It was accepted by both parties that the onus is on the prosecution to show in a positive way that it is unlikely that the representation was fabricated and that the standard of proof is on the balance of probabilities.

30. [30]
    The applicant argues that there is little known about the circumstances in which the various statements were given and that apart from the consistency of the various representations, there is nothing in the circumstances in which the statements were given which points decisively to a conclusion that a particular statement is unlikely to be a fabrication or that it is highly likely to be reliable. As the applicant argues, “consistency can be an indicator of reliability, but it may mean no more than an untrue or unreliable statement has been uttered more than once”.

31. [31]
    The applicant argues that in the circumstances that are currently before the court it is not possible to assess whether there is a probability or high probability of reliability.

32. [32]
    So far as the representations the complainant made to others are concerned, the applicant argues that permitting that evidence to be admitted as evidence of the truth of the facts alleged effectively elevates what would be simply preliminary complaint evidence had the complainant lived into evidence of the truth in the present circumstances. Mr Murray argues that “the real thrust of 93B is to put the Crown in the position that they would’ve been in, as much as it can, had the witness not died. It’s really not designed to improve their position by making it admissible as truth of the contents of a statement, evidence which would not otherwise have been admissible for that purpose.”

33. [33]
    Mr Murray submits “the relaxation of the hearsay rule in section 93B does not go so far as to convert evidence that went only to credit into evidence admissible as proof of the truth of its contents.” The prosecution’s response to this argument is that the section does more than allow it to lead evidence it otherwise could not due to the death of the witness, and that the applicant’s suggested interpretation acts to unnecessarily restrict the application of s 93B in a manner which is clearly not in accordance with the intention of the legislature. S 93B (2) provides specifically that “the hearsay rule does not apply to evidence of the representation given …”.

34. [34]
    Ms Wooldridge further argues that the fact that prior to the death of the complainant there was another (more limited) basis for admissibility (as preliminary complaint going to credit only) cannot in the event of the death of the complainant, prevent the prosecution from having reliance upon s 93B. Ms Wooldridge points out that such a course would mean that complaints of serious violence could be admitted pursuant to s 93B but complaints of sexual offending not, simply because they would ordinarily be admissible as preliminary complaint. Additionally, representations by a complainant about sexual offending made prior to a formal complaint to police, being preliminary complaint would not be admissible as truth of the asserted facts under s 93B, but those made after, and therefore no longer admissible as preliminary complaint, would be.

Anaysis

35. [35]
    The circumstances (as they are presently known) in which the representations were made by the complainant in this case include the immediacy of the complainant’s various representations, particularly the ones to Millward, her apparent distressed condition at the time and the persons to whom she made the representations, they being in positions of authority. The complainant would have known that the purpose of the medical examination was to locate evidence to support her allegations.

36. [36]
    The formal statement the complainant gave to police the following day was apparently signed by her in the presence of the female detective and included her signed acknowledgment pursuant to the Justices Act that her statement “is true to the best of [her] knowledge and belief” and knowing that she “may be liable to prosecution for stating anything [she knows] is false”. The final paragraph of the complainant’s statement reads: “This is a true story. The police told me that I have to tell the truth and that if I tell a lie I can get in trouble for that. I have read this statement and it is all true”.

37. [37]
    The complainant’s state of intoxication, of which there is little evidence other than the complainant’s own assertions, cannot, in the circumstances of this case, lead to a conclusion that her representations are likely to be fabrications.

38. [38]
    A consideration of the circumstances in which each of the representations were made, particularly the immediacy of them, the consistency of each of the complaints made, and the formal nature of the complainant’s written statement, do make it more probable than not that each of the representations are unlikely to be fabrications.

39. [39]
    In R v McGrane^[4] McMurdo P gave the following background to s 93B:

“The Criminal Law Amendment Act 2000 (Qld) amended the Evidence Act 1977 (Qld) in accordance with the recommendations of the Taskforce on Women and the Criminal Code by adding ss 93B and 93C. Comparable provisions exist in the Evidence Act 1995 (Cth) and the Evidence Act 1995 (NSW). Section 93B Evidence Act 1977 (Qld) which exceptionally allows for hearsay evidence to be received in criminal trials in the circumstances there set out, should be strictly construed, subject to adopting an interpretation that will best achieve the purpose of the legislation.”

40. [40]
    The effect of s 93B on the status of otherwise preliminary complaint evidence has not, it seems, been considered on appeal. There does not, on the face of the statutory provisions, however appear to be any reason why the interpretation contended for by the prosecution should not be adopted. Such an interpretation would be in accordance with the purpose of the legislation.

41. [41]
    As McGill DCJ at paragraph 16 of Higgins said of s 93B:

“This provision is only a small and tentative movement away from the rigours 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.”

And further at paragraph 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.”

General discretion to exclude

42. [42]
    It is argued on behalf of the applicant that “it is difficult to imagine a trial being regarded as fair, in which the accused cannot test the reliability and accuracy of the evidence to be led against him”. Reference is made to the Queensland Court of Appeal decision of R v D^[5].  In that and other cases involving pre-recorded evidence (usually of children) under s 93A of the Evidence Act the unreliability of the evidence is the usual basis for its exclusion under s 98 or s 130. The applicant in this case cannot point to any particular factor which reflects adversely on the reliability of the complainant’s representations, other than perhaps, her state of intoxication. That is a factor disclosed in her own statement and possibly in the recording of her conversation with Millward and will be a factor the jury can take into account.

43. [43]
    At paragraph 42 of Higgins McGill DCJ observed that “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”. I agree with this opinion.

44. [44]
    In this case the most significant representation sought to be relied upon by the prosecution is the written statement made by the complainant on 31 May 2006 and therefore a visual and/or audio presentation of the complainant and her demeanour at the time of making the statement is not part of the evidence. It is argued that the applicant is further disadvantaged in those circumstances.

45. [45]
    Mr Murray argues that the raising of the status of the evidence of the representations by the complainant to others to that of evidence of proof of the facts in issue, has a multiplying effect and adds to unfairness of the trial. In my opinion the fact that certain evidence would only be evidence which could be used to support the complainant’s consistency had the trial been conducted with a live complainant, but which becomes evidence of the facts in issue in the event of the complainant’s death when the provisions of s 93B are applied, cannot be a ground for enlivening a general discretion to exclude such evidence.

46. [46]
    The prosecution argues that it is not apparent in the present case that it would be “inexpedient in the interests of justice that this statement should be admitted”. It is noted that the police officers and witnesses who can give evidence of the representations made by the complainant are available for cross-examination and the fact that the complainant is unavailable, is precisely the circumstance addressed by s 93B and a necessary consequence of the operation of that section. It is argued that the effect of s 93B cannot be nullified by an application of s 93 or s 130.

47. [47]
    It is noted by both parties that a warning will be given to the jury in the terms of s 93C which would include warnings that the hearsay evidence may be unreliable, the matters which may cause the hearsay evidence to be unreliable and the need for caution in deciding whether to accept the hearsay evidence and the weight to be given to it.

48. [48]
    In this case there are no grounds upon which I should exercise a general discretion to exclude any of the evidence sought to be led by the prosecution.

The application is dismissed.

The following evidence is admissible in the applicant’s trial:

1. The initial complaint of rape made by the complainant to Lance Millward.

2. The recording of the complaint made by the complainant to Lance Millward at the police officer’s home.

3. Evidence from the arresting police officer Foy about disclosures the complainant made to him regarding the alleged offence.

4. Evidence from Dr Stinson to whom the complainant made disclosures of the alleged offence.

5. The written statement the complainant provided to police on 31 May 2006.