R v Burke[2009] QDC 334

DISTRICT COURT OF QUEENSLAND

1. [1]
   The applicant has been charged with two counts of rape, two counts of assault occasioning bodily harm and one count of indecent assault arising out of an incident which took place at Trinity Park Beach on the evening of 11 November 2007.

2. [2]
   The complainant in relation to all five counts is Gillian George who died on 13 March 2009.

3. [3]
   The complainant was aged 43 at the time of the events and the applicant 25. On 11 November 2007 the applicant met the complainant at the Railway Hotel in Cairns and ultimately they left the hotel together in the applicant’s vehicle. The complainant gave the applicant money for fuel and at his suggestion, they drove to Yorkey’s Knob where he suggested they go fishing. At Yorkey’s Knob alcohol and meat was purchased, again with the complainant’s money.

4. [4]
   The applicant drove to the yacht club launch ramp at Yorkey’s Knob to use the barbeques, but he said there were too many people there so instead they went to Trinity Park Beach. At the beach the applicant started a fire on which to cook the meat and the complainant consumed some wine.

5. [5]
   The applicant started pressuring the complainant for sex but she refused him, telling him she had a medical condition. The applicant became aggressive with the complainant and punched her on the right side of her face causing her to fall onto her side. Whilst the complainant was on the ground the applicant removed her pants and vaginally raped her with his penis. He then took his penis out and anally raped her. The applicant eventually stopped, stood up and kicked the complainant in her groin.

6. [6]
   The applicant told the complainant to help him pack the car and as she did so he came up to her and tried to pull her pants down again. When the complainant objected the applicant grabbed her by the arm and threw her to the ground. The applicant then got into his car and drove off leaving the complainant behind.

7. [7]
   The complainant made her way to a house where she gained the attention of Tara Sauer and told her she had been raped by “Sean Murray”. The complainant described being “ripped up the arse” and described the applicant’s car. She asked Sauer to call the police and an ambulance and told Sauer that the applicant had stolen her clothes. Sauer called 000 for the complainant.

8. [8]
   Constable Lauder was the first police officer to arrive at the scene and the complainant told him that she had been raped and that she was bleeding. She said, “He fucked me in the arse and everywhere”. The complainant gave Constable Lauder information as to what she and the applicant had been doing and where the incident occurred.

9. [9]
   The complainant was taken by police to the Cairns Base Hospital where she was examined by Dr Baden Bennett. The examination took place from the evening of 11 November into the early hours of 12 November 2007 and the complainant gave Dr Bennett an account of what had happened to her.

10. [10]
    The investigating police officer in this matter is Detective Senior Constable Skerke, who attended the Cairns Base Hospital when the complainant was waiting to be examined by Dr Bennett. The complainant gave an account of what had happened to Detective Skerke whilst they were at the hospital.

11. [11]
    The complainant’s written police statement was prepared by Detective Skerke and signed by the complainant on 12 November 2007.

12. [12]
    On 17 November 2007, Detective Skerke took the complainant to the scene at Trinity Park Beach and the complainant pointed out where the various events constituting the incident had taken place.

13. [13]
    On 24 June 2008, a committal hearing was heard in the Cairns Magistrates Court during which the complainant gave full evidence in chief and was cross-examined by the applicant’s solicitor. Those proceedings were audio-recorded.

14. [14]
    At the applicant’s trial the prosecution argues that the following evidence is admissible pursuant to s 93B of the Evidence Act 1977 as evidence of the facts asserted therein –

1. The evidence of representations made by the complainant to Tara Sauer at Trinity Park on 11 November 2007.

2. The evidence of representations made by the complainant to Constable Lauder at Trinity Park on 11 November 2007.

3. The evidence of representations made by the complainant to Dr Bennett at Cairns Base Hospital on 11-12 November 2007.

4. The evidence of representations made by the complainant to Detective Skerke at the Cairns Base Hospital on 11 November 2007.

5. The complainant’s statement to police dated 12 November 2007.

6. The evidence of representations made by the complainant to Detective Skerke at Trinity Park on 17 November 2007.

7. The audio-recording of the committal evidence of the complainant given on 24 June 2008.

15. [15]
    The applicant concedes that the items of evidence numbered 1 – 6 above are admissible pursuant to s 93B and that the audio-recording of the committal evidence is admissible pursuant to s 111 of the Justices Act 1886.  However, the applicant argues that I should nevertheless exercise my discretion to exclude all of the items of evidence numbered 1 – 7 pursuant to s 130 of the Evidence Act. 

16. [16]
    Section 130 of the Evidence Act reads as follows:-

“130.  Rejection of evidence in criminal proceedings

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.”

17. [17]
    Simply put, it is argued that as the central issue in the trial will be the credibility of the complainant (this is conceded by the prosecution) the accused cannot have a fair trial if the complainant cannot be produced to the court.

18. [18]
    In particular, the applicant argues that he cannot have a fair trial if the jury is asked to make an assessment of the complainant’s credibility:

1. without seeing her;

2. without being able to gauge her demeanour; 

3. without seeing her cross-examined.

19. [19]
    Mr McCreanor for the applicant referred to the Victorian cases of Rozenes & Anor v Beljajev & Ors^[1] and R v Collins^[2].  In Collins Hampel J ruled that the use of a deceased witness’ deposition from an inquest in a murder trial “without the jury having an opportunity to assess this witness is so unsafe as to produce a real risk of an unfair trial”.  In that case however, the deceased had previously made two statements to police which were inconsistent with each other.  It appears to have been issues about the unreliability of the deceased’s evidence which caused Hampel J’s concern.

20. [20]
    In Rozenes at page 557 the Victorian Court of Appeal noted the principle that “evidence might be excluded because its reception might place the accused at risk of being improperly convicted ‘either because its weight and credibility cannot be effectively tested or because it has more prejudicial than probative value and so may be misused by the jury’”.^[3]  In reference to the example of admissible statements by deceased makers, the court said “[such] is not an example of the discretionary rejection of evidence on the ground of its unreliability, for there is no greater than usual danger that the statement is inaccurate.  It is the inability to cross-examine that may in all the circumstances of a given case cause the statement to be excluded in the interests of a fair trial.”

21. [21]
    It should be noted that in both Victorian decisions there was a recognition that a court must decide such issues in light of the circumstances of the particular case before it and that the court retains a discretion to admit or exclude such evidence. There was no reference in either case to the clear legislative intent of provisions such as s 93B of the Queensland Evidence Act 1997.

22. [22]
    As I noted in my decision in R v Martin,^[4] in R v McGrane^[5] 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 Task Force 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.”

23. [23]
    The Criminal Law Amendment Act 2000 did not amend or restrict in any way the general discretion to exclude evidence pursuant to s 130 of the Evidence Act.  However, in exercising a discretion pursuant to that section, a court must nevertheless consider the provisions and purpose of other provisions in the Act.

24. [24]
    The reliability of the complainant’s representations is not challenged by the applicant. It is not argued that the various representations are unreliable or that they are not generally consistent. As McGill DCJ said at paragraph [42] in R v Higgins^[6]:-

“…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 [s 130].  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.”

In this case of course, the applicant did have the opportunity to cross-examine the complainant at committal and in fact did so.

25. [25]
    When considering exercise of a discretion to exclude evidence on the basis of unfairness to an accused, a court must also consider fairness to the prosecution and the public interest in having those accused of committing serious offences brought to trial. This is a case where there is evidence which is capable of corroborating the complainant’s allegations.

26. [26]
    The applicant is undoubtedly disadvantaged by not having the complainant physically give evidence before the jury and by not being able to cross-examine her at his trial. But equally, the prosecution will labour under a disadvantage with an absent complainant, notwithstanding the benefits of s 93B. The warnings envisaged by s 93C of the Evidence Act 1977 will have to be given to the jury.

27. [27]
    After a consideration of the circumstances of this case I am not satisfied that I should exercise my discretion to exclude the items of evidence sought to be led by the prosecution at the applicant’s trial. On balance, I am not satisfied that it would be unfair to the applicant to admit the evidence. The application is dismissed.