TFG v R[2021] QDC 345

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   This is an application by the applicant TFG, seeking a direction or ruling in respect of the exclusion of two pieces of evidence which are as follows:

3. (1)
   A pretext telephone conversation between CPD and the applicant on the 12th of November 2019 be excluded at the trial of the applicant; and

3. (2)
   The interview between Senior Constable Logan Ropati and the applicant on the 12th of November 2019 be excluded at the trial of the applicant. 

2. [2]
   I note that the applicant is currently indicted in respect of one charge of rape which reads:

“That on or about the 10th day of November 2019 at Brisbane in the State of Queensland, TFG raped CPD.”

3. [3]
   The application insofar as it relates to item 2 (the record of interview) has been (in my view, entirely appropriately) conceded by the Crown who have also very fairly conceded that the Crown will not rely upon the record of interview, given the circumstances in which it was conducted, unless requested to do so by the applicant.^[1]

4. [4]
   The issue of whether or not the applicant seeks to rely on the record of interview, of course, will be a tactical decision which need not be made at present, but will need to be made prior to the commencement of the trial.

5. [5]
   The sole issue then is the issue of the application for the exclusion of the pretext phone call on 12 November 2019.

6. [6]
   In respect of that pretext phone call, I have been provided with a copy of the transcript.^[2]

7. [7]
   Background

8. [8]
   The background to this matter is helpfully set out in a statement of facts exhibited to exhibit 2 as KAR-01 and it is useful for the context of this matter, to read that into the record, so that the remainder of this decision is appropriately placed contextually.

“Background

The defendant is TFG, aged 28 years at the time of the offending.  The complainant is CPD, aged 24 years at the time of the offending.

The defendant and complainant met around May 2019 through a mutual friend.  The defendant and the complainant were platonic friends and would regularly socialise together with other friends. 

The defendant’s girlfriend, BPL, was also friends with the complainant.

Offending:

On 9 November 2019, the complainant and her friend GRO, made arrangements to go to Johnny Ringo’s bar that night with a group of friends.

The complainant went to GRO’s apartment, to get ready.  GRO’s apartment was on Adelaide Street near the bar.

GRO told the complainant that their friends could sleep at her apartment after going to the bar, but that she would be sleeping in her bed with the complainant.

The complainant’s friend, NVP, arrived at the apartment at about 8.30 pm.  The defendant and BPL arrived at about 9.00 pm.

The group had drinks at the apartment for about two hours and discussed sleeping arrangements.  They decided that the defendant and BPL would sleep on an inflatable mattress in the living room, NVP could sleep on the couch in the living room, and the complainant and Archer would sleep on the bed in the bedroom. 

The group stayed at the bar from about 10.30 pm to 2.00 am.

3. (10)
   When they arrived home, the complainant was tired, so she changed into a nightie and underpants, and went to sleep in GRO’s bed.  She did not recall the defendant or BPL being in the bedroom. 

3. (11)
   Early the next morning, the complainant felt a warm sensation on her vagina and realised that it was a tongue on her vagina.  The complainant ‘half woke up’, opened her eyes and placed her hands towards her groin.  She felt the defendant’s head.

3. (12)
   The complainant looked down and saw BPL looking at her from the floor at foot of the bed.  The complainant recognised the defendant and said, ‘What the fuck!’.

3. (13)
   The defendant sat up and got off the bed. 

3. (14)
   The complainant said, ‘Don’t speak to me, don’t touch me…get the fuck away from me.  What is wrong with you?’

3. (15)
   BPL left the apartment and the complainant followed her.  When the complainant returned to the apartment, the defendant was in the living room.

3. (16)
   The complainant yelled at the defendant, ‘Get the fuck out’ and he replied, ‘You can’t say that you didn’t like it’, ‘You were pulling my head into your vagina’, and ‘You wanted it.’

3. (17)
   GRO started pushing the defendant out of the apartment.  The defendant swung the door open, damaging the doorframe and the adjacent fire door.

3. (18)
   When he was in the hallway, the defendant started pushing back against the door as GRO tried to close it.  Once the door was closed, the defendant started hitting the door from outside. 

Post-offence conduct:

3. (19)
   After the defendant left the apartment, the complainant asked GRO to contact the police.  Later that day, the complainant provided a statement and participated in a pretext phone call.

3. (20)
   The defendant told the complainant, ‘I’m still trying to figure it out myself, why I even did that’.  When the complainant said that she was asleep at the time, the defendant replied, ‘Well, I don’t know if you were or not…I really don’t know why it happened or how’. 

3. (21)
   The complainant said that she was on her period and did not know why the defendant ‘Thought it was okay to go there’.  The defendant replied, ‘That’s why I can’t work out why I did it, I honestly don’t, mate, I’m sorry I did that, I didn’t mean for it to happen.’

3. (22)
   On 12 November 2019, the defendant attended the Brisbane City Police Station. 

3. (23)
   While the defendant declined to participate in a formal interview, he told police that he had consumed ‘a lot of drinks’ on the night of the offending and that ‘it felt like I was having a dream’. 

3. (24)
   The defendant said, ‘Next thing I know, I was down on her and that was it, I woke up’.  When police asked the defendant if he had known what he was doing, he replied, ‘I did but I didn’t’ and that ‘It wasn’t forced’.

3. (25)
   The defendant told police that the complainant lifted her leg to allow the defendant to move under her leg, that she pushed his head towards her and that she was moaning.

3. (26)
   The defendant was charged and released on bail.”

9. [9]
   I note that the pretext phone call, although not identified in terms of dates, specifically, occurred on 12 November 2019, between 9.30 and 9.40 am.

10. [10]
    I note also that the references to the defendant’s conversations with police – the conversations that are contained in the record of interview which the Crown concedes is not admissible, although potentially for tactical reasons, the defendant has the option, as the Crown has indicated, of seeking to have it played at the trial if the pretext phone call is not excluded.

11. [11]
    The pretext phone call was relatively quick but the essential elements of it which are capable of being inculpatory have been highlighted in the statement of facts prepared by the Crown which I have just read into the record.

The Law

12. [12]
    The application seeks to exclude the pretext phone call on the basis of section 130 of the Evidence Act 1977 (Qld) which reads:

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 charge to admit that evidence.

Discussion

13. [13]
    The applicant identifies the unfairness from a combination of the following factors:-

1. (a)
   During the pretext call, the complainant makes misleading statements to the applicant;

2. (b)
   During the pretext call, the complainant makes no attempt to identify the offending subject to the rape count;

3. (c)
   Officer Ropati remains in the room with the complainant during the pretext call.^[3] 

14. [14]
    The applicant’s argument is helpfully articulated in his counsel’s written submissions, and it is useful to read those into the record to identify the argument for the applicant. The applicant submits: –

3. “(12)
   It is submitted that the complainant makes a number of misleading statements to the applicant during the pretext call, which results in the applicant giving unreliable answers.

3. (13)
   In her statement, the complainant states ‘…I thought that I was dreaming and was still half asleep, but it felt like a tongue on my clitoris…’.^[4]  Accordingly, it appears that she was in some state of consciousness and awareness during the alleged offending act.

3. (14)
   However, during the pretext call, the complainant misleadingly tells the applicant that she was ‘dead asleep’ and ‘Yes, because I was asleep’.^[5]  Accordingly, there is a significant difference in relation to the complainant’s state of consciousness;  it’s an important difference because she also gives evidence that, ‘TFG [applicant] shouted back to me words to the effect of, “You can’t say that you didn’t like it!  You were pulling my head into your vagina”’.^[6]  But not only this, the complainant makes accusations that the applicant was thrown out of the pub because of his aggressive behaviour.

3. (15)
   The problem lies in the unreliability of the applicant’s statements after the complainant’s misleading and uncorroborated allegations.  He says, “I’m sorry about it, that that happened”;  “I, I didn’t mean it to happen”.  Towards the end of the pretext call, the complainant asserts, “Yes, because I was asleep and I did not ask for it, I did not want it, nothing”.  To which the applicant replies, “I didn’t say that you did.”” (at page 5 of pretext transcript annexed as exhibit KAR-02 to affidavit of Kelly Roggenkamp).

15. [15]
    No reference to the actual offending:

3. “(16)
   At no time during the pretext call does the complainant even attempt to refer to the actual act the subject of the rape.  On the evening in question there are several incidents that the Applicant could be referring to, including that:

1. (a)
   He didn’t sleep on the inflatable mattress with the girlfriend in the lounge but slept on the same bed as the complainant and her friend, while his girlfriend slept on the bedroom floor.

2. (b)
   He damaged the front door for which he has been charged with wilful damage.

Officer Ropati’s Conduct:

3. (17)
   It is respectfully submitted that Officer Ropati’s conduct during the pretext call is suspicious.  The problem lies in the fact that Officer Ropati makes no attempt to leave the room during the pretext call.  Although it appears that Officer Ropati gives the complainant an option of whether he can be present or return at the end of the telephone call, she is not given any opportunity to respond before he makes the decision to stay.  The QPS policy in relation to pretext conversations states that, “Officers are not to be involved in the actual conduct of the pretext conversation.”  It is submitted that Officer Ropati’s conduct in not leaving the room is “actual conduct”.”^[7] 

16. [16]
    The argument is that the jury may think that the evidence is more relevant than it is, and accordingly the prejudicial effect of the pretext phone call would outweigh its probative value. The applicant relies on R v Morris [1996] 2 Qd R 68.^[8] 

17. [17]
    In particular, the applicant relies on the complainant’s failure to identify the actual offending the subject of the rape count and, it is submitted, is susceptible to a number of interpretations given the combined factors of the misleading statements in respect of the complainant’s sleep state, her uncorroborated accusations of his aggressive behaviour, the lack of any reference to the actual offending act and the conduct of Officer Ropati.

18. [18]
    Officer Ropati gave brief oral evidence at the hearing before me this morning and the exhibit 5 (pretext conversation explanation) and exhibit 6 (extract of the Operational Police Manual) are relevant to the conduct of this particular pretext conversation.

19. [19]
    The point was made that the officer on the recording appears not to have waited for any significant period before remaining in the room while the pretext phone call takes place. However, the OPM does not indicate that the officer is not permitted to remain in the room. It states:

20. [20]
    Officers are not to be involved in the actual conduct of the pretext conversation.

21. [21]
    The cross-examination of Officer Ropati indicates that he was present in the room, that the complainant had her back to him, that there was no “hand signals or eye contact” nor was there any conversation with her during the course of the phone call, which she conducted. In that context, although it may well have been preferable that he was outside rather than inside, it is not at all made out in my view that he has in any way been involved in “the actual conduct of the pretext conversation” and accordingly that aspect of the unfairness submission has not been demonstrated.

22. [22]
    Again, it may well have been preferable that her decision whether she wanted him in or out was recorded orally but that in my view is of only minor relevance to these proceedings.

23. [23]
    Perhaps of more relevance is the issue that the applicant raises in respect of the content of the pretext phone call, in particular what the complainant identifies as the event that she was effectively challenging the applicant about.

24. [24]
    In my very clear view, there can be no doubt that the event which was the subject of the challenge effectively in the pretext phone call was some form of sexual encounter between the complainant and the applicant. That, at the very least, is obvious from the complainant’s statement that:-^[9]

“I was also on my period so I don’t know why you would even have thought that it was okay to even go there.”

25. [25]
    Which is of course followed by a passage which is substantially indistinct, but which contains what appears to be capable of being an inculpatory statement. It is, with respect, a situation where clearly the complainant is challenging the applicant in respect of a sexual encounter of which there was only one in the history of their relationship, and it was clearly a reference to what had occurred during the events which were the subject of the indictment alleged to have occurred on or about the 10th of November and whether or not the complainant parsed her challenge in terms of being asleep and then something happening, or being half asleep (as she says in her statement) is in my view entirely irrelevant. Very clearly the complainant has challenged the applicant by identifying the sexual encounter (which, by way of an aside, may or may not be sufficient evidence to sustain the indicted offence of rape, which is fundamentally a very subtle issue in this case of whether there’s been penetration sufficiently proved to indict that offence), but the non-consensual sexual nature of the contact is very clearly and obviously flagged, and the applicant’s response is, in my view, clearly and obviously responsive to the sexual nature of that contact.

26. [26]
    In my view, there can be nothing misleading about those aspects of the exchange between the complainant and the applicant.

27. [27]
    What a jury actually makes of the content of the pretext phone call, and for that matter, of the complainant’s evidence is, as always, a matter that they will have to work through, based of course entirely on the evidence of the complainant at the trial, how that evidence stands up to cross-examination, and then considered in the context of the pretext phone call, which may reveal more to the jury than some of the passages of indistinct transcription in exhibit KAR-02, and also of course, depending on the tactical decisions by the applicant, whether or not the record of interview is played and further, whether the defendant chooses, as is his right, to give or not give evidence.

28. [28]
    In my view, the complainant’s statements were not misleading, there was a reference to the sexual encounter which, however parsed, constitutes the actual offending (whether indicted or left to the jury as an alternative count of sexual assault), and as I have already identified, Officer Ropati’s conduct does not add in any practical sense to any unfairness in this particular matter. It may well have been different of course if he was, for example, to admit that he was facing the complainant and giving hand signals or in some other way seeking to be involved in the conduct of the phone call, but that is not the evidence before me.

29. [29]
    It follows that the evidence in the pretext phone call is clearly probative, but its value to the Crown very much depends on how that pretext phone call sits with the evidence of the complainant as it actually comes out during the course of the trial once it has been tested by cross-examination. Those issues are classically matters that a jury are entirely appropriately equipped to deal with, and in my view, there is no unfairness in this matter that would justify the rejection of the evidence, pursuant to Evidence Act 1977 (Qld) s 130. 

30. [30]
    Accordingly, the application should be refused.

Order

31. [31]
    The application to exclude the pretext telephone conversation between CPD and the applicant on 12th November 2019 is refused.

32. [32]
    I note for the record that it is unnecessary to make any order in respect of the record of interview, given the Crown’s agreement that it will not play the record of interview unless the applicant’s legal representatives request that it be played at his trial. It would therefore be inappropriate to make any order in respect of that aspect of the application in this matter. I leave that to the parties to sort out appropriately at the trial.