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- Unreported Judgment
- Appeal Determined (QCA)
R v SJB QDC 220
DISTRICT COURT OF QUEENSLAND
R v SJB  QDC 220
District Court at Beenleigh
Delivered ex tempore on 1 November 2018
1 November 2018
Porter QC DCJ
CRIMINAL LAW – PROCEDURE – GENERALLY – where complaint attended at a police station to make a complaint about offending – where details were taken by uniformed officer in an interview room – where uniformed officer recorded the interview – where recorded interview was never put into statement form or signed by the complaint – where complaint later gave signed statement to police officers – whether the recorded interview was a ‘formal witness statement’ – whether the evidence is admissible pursuant to s 4A Criminal Law (Sexual Offences) Act 1978 (Qld) – whether the tape recording should be available in the jury room.
Criminal Law (Sexual Offences) Act 1978 (Qld) s 4A
Evidence Act 1997 (Qld) s 93A
R v DBA  QCA 49
C Farnsworth for the prosecution
J Fraser for the defendant
Office of Director of Public Prosecutions for the prosecution
Fallu McMillan Lawyers for the defendant
- In this trial the prosecution has indicated an intention to call evidence from a Constable Weibel, as preliminary complaint evidence. The defence objects. Mr Fraser for the defendant submits that the evidence is inadmissible because it is not admissible as preliminary complaint evidence under section 4A of the Criminal Law (Sexual Offences) Act 1978 (Qld) and, I reasonably infer, not otherwise admissible. Ms Farnsworth for the Crown submits the evidence is admissible under section 4A. Issue is thus joined.
- The facts are these: the defendant is charged, relevantly, with raping his daughter on four occasions between 2000 and 2005, and also with three assaults over that period, including two of a sexual nature.
- The evidence given by Ms B, the complainant, is that, relevantly, in about 2013 she disclosed the offending to her then-boyfriend. Her then-boyfriend gave evidence that in the course of discussions about the alleged offending at around that time, Ms B said she was going to stab her father and he said that he urged her not to put herself in jail, but to put SJB in jail. Thereafter Ms B apparently took his advice and went to the police. To the extent there was any doubt about Ms B’s intention in going to the police, in cross-examination her then-boyfriend agreed that the plan was that she would make a formal complaint and SJB would be charged. Ms B then attended the Ipswich Police Station on the 5th of May 2013. Constable Weibel’s witness statement takes up the story as follows:
At approximately 1.30 pm [Ms B] attended the counter and informed me she wished to report a rape. I sat down in the front foyer interview room with [Ms B] and recorded her details and the defendant’s, [SJB’s] details, in my official police notebook. [Ms B] stated that he is her biological father. I contacted the CPIU and CIB officers rostered on at the time and was advised they could not attend due to another job. I then activated my electronic recorder and asked her to tell me what happened. I recorded notes of her version in my notebook at the same time.
I then entered the report on the QPS computer system and requested that it would be forwarded to CIB for further information. On the 29th of April 2014, I completed this statement and burnt three copies of the recording from my electronic recorder.
- The recording has been turned into a transcript, which has been marked for identification on this hearing. It covers just over eight pages. It relevantly states that Ms B was there, in effect, to make a complaint that would lead to charges against her father. Ms B was then asked questions by Constable Weibel about the offending. Ms B gave particulars of most, but not all, of the offences in the indictment. Ms B was told the officer was taking notes. I infer Ms B knew the officer was recording the interview, because at the end she says, “I’ll just terminate the tape”.
- It was recorded by a small physical device, which I infer was put on the table. In conference with Ms Farnsworth for the Crown, Officer Weibel told Ms Farnsworth, relevantly, that on the 5th of May she was rostered at Ipswich. Counter duties included taking complaints. Ms B attended the station and stated she wanted to make a complaint. Constable Weibel wrote down the complaint and the offender’s name. She tried to contact CIB to follow the matter up, however, no one was available and she was told to take a report and CIB would follow that up. She sat down with the complainant and took details necessary to furnish a report, such as dates and times. Constable Weibel stated this complaint was not intended to be a formal statement.
- While that might have been Constable Weibel’s intention, what is not established on the evidence is that Ms B was told that the interview was not intended to be a formal statement, whatever Constable Weibel’s intention was.
- Thereafter, Ms B was interviewed and produced a signed witness statement dated 12 August 2013. In her pre-recorded evidence, she was extensively cross-examined about her 5 May statement given to Constable Weibel and about matters omitted from it.
- I now turn to consider the statutory provision. Section 4A Criminal Law Sexual Offenders Act 1978 (Qld) deals with preliminary complaints. Relevantly for present purposes, subsection (6) defines “preliminary complaint” by exclusion. A preliminary complaint is any complaint other than:
- (a)the complainant’s first formal witness statement to a police officer giving in, or in anticipation of, a criminal proceeding in relation to the alleged offence; or
- (b)a complaint made after the complaint mentioned in paragraph (a).
- The subsection is then followed by the following extensive example:
Soon after the alleged commission of a sexual offence, the complainant discloses the alleged commission of the offence to a parent (complaint 1). Many years later, the complainant makes a complaint to a secondary school teacher and a school guidance officer (complaints 2 and 3). The complainant visits the local police station and makes a complaint to the police officer at the front desk (complaint 4). The complainant subsequently attends an appointment with a police officer and gives a formal witness statement to the police officer in anticipation of a criminal proceeding in relation to the alleged offence (complaint 5). After a criminal proceeding is begun, the complainant gives a further formal witness statement (complaint 6). Each of complaints 1 to 4 is a preliminary complaint. Complaints 5 and 6 are not preliminary complaints.
- I first observe that the example is not very helpful, particularly in respect of complaints 4 and 5 where this particular circumstance falls. As noted, complaint 4 is described as where the complainant visits the local police station and makes a complaint to the police officer at the front desk. Well, on the evidence, that is what occurred on this occasion if “at the front desk” is to refer to the police officer complained to and not where the complaint is made. The next example, (complaint 5) posits where the complainant subsequently attends an appointment, which did not occur in this case, with a police officer and gives a formal witness statement. The rest of that example merely picks up the words of the statute, which does not make it a very helpful example.
- What can be extracted from that, however, is that, perhaps somewhat ambiguously, it appears to communicate that a complaint made to the police officer at the front desk, whether that is a complaint being made there, or to the police officer who is there, is intended not to fall foul of the exclusory subsection, whereas attending at an appointment with a police officer and then giving a statement is said to meet the exclusory provision (underlining added). As can be seen, what happened in this case falls right in the middle in some respects. Both Prosecution and Defence accept that Ms B’s complaint, to try to use a neutral term, was given in anticipation of a criminal proceeding in relation to the offences.
- I note here that R v DBA  QCA 49 dictates that the complaint in (6) is in relation to the offence complained about, not other offences not referred to. Further, as to anticipation of a criminal proceeding, it might be an interesting question for another day to identify whose anticipation is the relevant one, the complainant or the police, and how to judge the question of anticipation is to be resolved: by subjective intention, or objectively, or in some other combination of those circumstances.
- However, as I have said, both parties agree the complaint was in anticipation of criminal proceedings in relation to the offences complained about. That seems to be correct, given Ms B’s intention as developed with Ms Hans and communicated to Constable Weibel.
- There is no question the complaint was given to a police officer.
The parties’ contentions
- The issue here is whether the complaint to Constable Weibel was a “formal witness statement”. Mr Fraser submitted it was. He submitted it was not necessary for a formal witness statement to be signed. He pointed in that regard to section 93A Evidence Act interviews which were not put in writing or signed, when, at least, they involve interviews with children of the kind this Court is familiar with seeing tendered in evidence. He submitted further that this case involves sufficient objective circumstances of formality to meet the statutory phrase first formal witness statement. He relied on Ms B being taken to an interview room, the fact that she stated she was intending to cause criminal proceedings to follow, the fact that considerable detail was obtained by the constable, and the fact that the constable entered the complainant in the QPS system. He also submitted that if in doubt I should read the statute down, rather than give it a broader scope for reasons which are probably obvious.
- Ms Farnsworth contended there was insufficient indicia of formality to bring the matter within the statutory phrase “formal witness statement”. She also adopted some observations I made in argument to which I now refer.
- First, as to section 93A, it is difficult properly in my view to construe section 4A(6) by reference to section 93A. Further, it is not surprising that a section 93A statement of the kind contemplated by formal interviews recorded on screen with children might properly fall within the exclusory provision. A section 93A statement taken in this way is a well-known process for taking evidence for use at trial. It is carried out in a situation of gravity, if not formality, because a child witness is involved with video recording of the evidence. It will usually occur in circumstances where there has been a complaint already and deliberate preparations are made for the interview.
- Of course, not all section 93A statements will be taken in that formal way. Section 93A(1) might apply to a situation with no formality at all. It might not necessarily comprise a formal witness statement. I do not find section 93A of much assistance, except to the extent that I accept it is not as a matter of construction a necessary condition for a formal witness statement that it is in writing and signed, although I observe that would be a circumstances one would ordinarily expect to see. Second, I do not find the argument I should read down the phrase very persuasive. That is because no alternative constructions of the phrase were put before me. Rather, the parties contend that on the facts this either was or was not a formal witness statement.
- In my view, the phrase “formal witness statement” must be seen to distinguish between the statement intended to be referred to and other statements or complaints. The use of the adjective “formal” indicates that it is not just anything which can be characterised as a witness statement which is caught by the provision. The ordinary meaning of “formal” is an act done in accordance with convention or etiquette, or officially sanctioned or recognised. It is to be contrasted with a witness statement which is informal in character. Unfortunately, no authority of assistance was found by counsel despite efforts, and the lack of internet resources meant that at this important stage in this trial I was not able to properly research the issue.
- Uninstructed by authority, therefore, I consider that the complaint to Constable Weibel was not a formal witness statement. That is because the statement was taken without particular formality. It was recorded on a device put on the table. It was made the subject of notes. There was no suggestion in evidence before me, at least, that it was going to be typed up, or that any provision for an opportunity for it to be read or confirmed as accurate. Further, while there was no evidence Ms B was told to return to give a more fulsome statement, the fact is this is what occurred later, presumably after an appointment was made for that to occur, consistent with the one helpful proposition contained in the example relating to the posited complaint 5. Further, it’s relevant, in my view, to some degree that Constable Weibel was the officer who met Ms B at the desk and took her details in a room and didn’t appear to be held out as an investigating officer who was going to be responsible for conducting the matter.
- In my view, although the matter is finely balanced, the correct characterisation on the facts of what occurred before me, adopting an objective approach to the identification in all the circumstances as to whether something is sufficiently formal to amount to a formal witness statement, is that Constable Weibel took extensive details of a complaint, but in all the circumstances that did not amount to a formal witness statement. Therefore, to the extent the evidence in the tape recording comprises evidence of preliminary complaint, I intend to admit it into evidence at this trial.
- Mr Fraser also sought a direction that the tape recording, though an exhibit in the trial, not be available in the jury room. Consistent with the approach that I’m informed is taken with pre-recorded evidence generally, I am content to make that order to avoid any unfairness to SJB by excessive weight being given to just this piece of evidence by it being played over and over again in the jury room. They can ask to hear it again if they wish and then it can be dealt with in open court to ensure that it’s dealt with fairly.
- Published Case Name:
R v SJB
- Shortened Case Name:
R v SJB
 QDC 220
01 Nov 2018