R v ZAU[2018] QDCPR 37

DISTRICT COURT OF QUEENSLAND

Application

1. [1]
   ZAU is charged:

That on the fourteenth day of December 2009 at Albany Creek in the State of Queensland he raped CNV. 

2. [2]
   ZAU applies pursuant to s 590AA of the Code for pre-trial ruling that statements purportedly made by CNV be excluded from evidence at his trial. The applicant contends the statements are not admissible or alternatively should be excluded in the exercise of discretion.
3. [3]
   I have concluded the statements are not admissible upon the applicant’s trial on the charge of rape. These are my reasons.

Material

[4]  The following material was admitted for the purposes of the application and marked with the exhibit numbers as listed.

1. Application
2. Outline of submissions of applicant
3. Record of text messages
4. Family Law Court consent orders
5. Domestic violence order application documents
6. Statement of police officer Smart (and attachment)
7. Copy of affidavit of CNV (Justice Dept covering sheet)
8. Outline of submissions of respondent
9. Affidavit of Fritz sworn 27 March 2018
10. Application for protection order dated 9 November 2010

Prosecution case

5. [5]
   The complainant CNV is now deceased. It is said she died on 4 April 2016. It is accepted by the prosecution that CNV did not at any time make a complaint to police that she was raped by the applicant. The prosecution contends evidence the applicant raped CNV is contained within an affidavit apparently sworn by CNV on 21 January 2011 and filed in proceedings for application for a protection order. This is the only evidence relied upon by the prosecution as capable of proving the charge. The prosecution seeks to rely upon paragraphs 4, and 10-13 of that affidavit at the applicant’s trial on the charge of rape. It is submitted those portions of the affidavit are admissible pursuant to s 93B of the Evidence Act 1977.
6. [6]
   No formal evidence proving the document as the affidavit of CNV was led on the hearing of this application. For the purpose of the application, the applicant accepted the document contained representations made by CNV. A copy of the document relied upon is attachment (d) to the affidavit of Ms Fritz (Exhibit 9).
7. [7]
   The affidavit is headed “PINE RIVERS MAGISTATES COURT” and lists [CNV] as “Aggrieved” and [ZAU] as “Respondent”. The affidavit reads as follows:

8. [8]
   A signature as deponent of CNV and that of a solicitor witnessing the affidavit appear on each page.
9. [9]
   In addition, on the trial of the rape charge, the prosecution seeks to lead evidence from three witnesses of so called preliminary complaint. The prosecution expressly disavows seeking to have the statements made to these witnesses by CNV admitted pursuant to s 93B of the Evidence Act, and instead asserts these statements are admissible pursuant to s 4A of the Criminal Law (Sexual Offences) Act 1978.
10. [10]
    This evidence includes that of witness FRC who says that sometime after February 2011, CNV told her that her son IUH “was a result of rape from [ZAU]”. The prosecution also intends to lead evidence from CNV’s former husband GDL that CNV told him, sometime after December 2010, that her son IUH was conceived when the applicant raped her after he had “pushed and beaten her”. The prosecution also intends to lead evidence from CNV’s sister KXD, that sometime after CNV’s children stayed with KXD during 2012, CNV told her the applicant “forced his way into her home and raped her”.

11. [11]
    Statements of these and other witnesses provides evidence of CNV’s complaints that she and her children were subjected to domestic violence at the hands of the applicant over a period of time. I have not been asked to rule upon the admissibility on the trial of any of this evidence in determining the present application.

Circumstances in which affidavit created

12. [12]
    The affidavit has the appearance of having been prepared by a lawyer and, on the face of it was witnessed by a solicitor. However, no evidence of the creation of the document is before me.
13. [13]
    The following materials, said to have relevance to the circumstances in which the affidavit was created, were relied upon at the hearing.
14. [14]
    Text messages sent by CNV to the applicant between 9/4/2010 and 24/5/2011 were provided. These messages are said to have been produced from the message log on the applicant’s phone (Exhibit 3). The messages show the wildly fluctuating attitude of CNV towards the applicant over a lengthy period. Between 9-13/4/2010 the text messages are affectionate and loving. On 16/4/2010 the tone changes to being abusive. On 18/4/2010 there is a break up message. On 29/4/2010 the message includes the threat of legal action.  On 1/5/2010 the message asks the applicant to delete intimate photographs. On 2/5/2010 the message forbids any direct contact. On 7/5/2010 the message says “I hate how you suxed me into have kids with you. I have been such a stupid fool.” The message concludes with abuse. On 13/5/2010 messages indicate a willingness to have sex with the applicant. On 16/5/2010 the message asserts the applicant’s child contact will be restricted and subject to mediation. On 29/5/2010 the message indicates a willingness to reconcile. On 6/6/2010 the message includes “… I didn’t have kids with u so that u could play happy families with someone else… If I find out u r there’ll be hell to pay for!” On 29/7/2010 the message includes “Funny how your only interest in us when I have my legs open.” There are no messages sent after 12.20pm on 7/11/2010 until 12/11/2010 (the period when the application for a protection order is made).  From 12/11/2010 to 30/11/2010 there are fifteen messages which indicate ongoing contact between CNV and the applicant, but do not show overt animosity. No reference is made in any message to the application for a protection order. Nor is there any allegation of rape. An incident alleged to have occurred on 7/11/2010 (where the applicant is alleged to have assaulted the complainant’s three children) is referred to in a text message on 14/11/2010, where it is suggested an apology alone will not be sufficient. On 3/5/2011, a message refers to the applicant having to apologise to one of the complainant’s children in writing in order to be permitted to see his children.

15. [15]
    Also produced were records of an incident that occurred on  25 April 2010, when police were called to the complainant’s residence after a dispute between her and the applicant. The police records indicate CNV told police the applicant became aggressive when she told him to leave her residence and pushed her, causing her to fall on the floor. CNV told police she then hit the applicant with a baseball bat, causing a cut above his left eye, and the applicant took the bat from her and left the house to await police. The applicant’s account to police was that he was attempting to leave when CNV struck him with the bat. Police recorded that CNV’s “version states history of verbal abuse with both parties residing together for several years.” Police also recorded the applicant’s “version states relationship did not exist for as long and they have not resided together for 1.5 years.” Further, police noted that when the version of each of CNV and the applicant was put to the other, the respective accounts changed such that police were unable to determine which of the accounts was accurate or reliable. No police action ensued.

16. [16]
    Also produced was the application by CNV for a domestic violence protection order. It is apparent the affidavit by CNV in which she alleges the applicant raped her, was filed in those proceedings. The application, in “Form DV1”, is completed in handwriting and appears to be signed CNV and sworn before a JP. It is dated 9 November 2011. In section 19A of this document, which is headed “most recent incident”, there is a description of an event of 7 October 2010 in which it is alleged the applicant assaulted CNV’s children; by punching one in the chest, twisting the arm of another and elbowing the other in the ribs. (It is likely the date is an error and this event occurred on 7 November 2010.) 

17. [17]
    In section 19B of the form, which is headed “history of domestic violence”, there is a description of an event “about 7 months ago I asked [ZAU] to leave and move out”. This is evidently the same incident described in the police records of 25 April 2010. Of significance, in this version CNV denies actually striking the applicant with the baseball bat and says he injured himself when he hit his head on the stairs. This version also describes CNV being pushed and shoved, grabbed and thrown to the floor, hit and kicked. It is also claimed the applicant threw the bat at one of CNV’s sons. Also in the application is description of an incident two years before when the applicant called CNV names and punched her arm over twenty times.  Further, the document contains the following: “Over the 6 years that [ZAU] & I have known each other he has verbally abused me, physically abused me and on a few occasions forced me to have sex with him.”

Submissions

18. [18]
    The applicant submits that, since the respondent is the party seeking to have the evidence admitted, the respondent bears the onus of showing the evidence complies with the terms of s 93B. The applicant does not dispute the complainant is now deceased, the assertions in the affidavit amount to representations of fact, and these are prescribed criminal proceedings. However, the applicant submits the requirements of s 93B(2)(b) are not satisfied.
19. [19]
    The applicant contends the deceased’s statements to police on 25 April 2010, contradict the allegation of rape. On that occasion, it is submitted, the complainant told police the couple had lived together for years and her only complaint was prior verbal abuse by the applicant.  The statement concerning them living together is also submitted to contradict the account of the alleged rape in the affidavit, since that version describes the applicant requesting sex “for old time’s sake”. The applicant also submits the text messages show the complainant’s attitude towards the applicant after the alleged rape. These messages do not accuse the applicant of rape but instead reveal expressions of love and a sexual interest in the applicant. The messages also reveal the complainant’s attitude to the applicant would change depending upon whether she thought he was unfaithful to her. The applicant also submits the application for a protection order, dated 9 November 2010, contradicts the rape allegation. It is submitted this does not detail the alleged rape as a prior example of violence in the history of the relationship. In addition, it is submitted the application details the incident of 25 April 2010 and significantly contradicts the account given to police that day.
20. [20]
    The applicant also submits the circumstances show the allegation of rape was made, not for the purpose of having the applicant charged with that offence, but in the context of proceedings for a protection order and at a time of ongoing Family Law dispute concerning children’s care and living arrangements. It is submitted those circumstances are notorious for making of false claims and allegations. The applicant submits the representations do not meet the requirements of s 93B(2) and should not be admitted. Alternatively, the applicant submits the statements should be excluded as unfair pursuant to s 130 of the Evidence Act or as inexpedient in the interests of justice pursuant to s 98.
21. [21]
    The respondent submits the applicant’s trial on a charge of rape is a prescribed criminal proceeding as, required by s 93B(1) and (5), since the offence of rape is contained within chapter 32 of the Criminal Code and the complainant is now deceased. The respondent also submits the proposed evidence, detailing an occasion the complainant was raped by the applicant, are representations about an asserted fact in written form. The respondent relies only upon s 93B(2)(b) as the basis upon which the evidence should be admitted.
22. [22]
    The respondent submits the “circumstances” in which the representations were made show they are highly probable to be reliable. The respondent contends the relevant circumstances of the making of the representation include:

    • the representations were made more than 12 months after the asserted fact;
    • the representations were made in writing in a document apparently witnessed and filed in court proceedings;
    • at the time the representations were made the complainant was not then in a relationship with the applicant;
    • at the time the representations were made the complainant was not subject to violence by the applicant;
    • the complainant made a complaint to police concerning an incident on 7/11/2010 (alleged assault upon her children by the applicant);
    • the representations were made in the course of the complainant seeking a domestic violence protection order because of the alleged incident of 7/11/2010;
    • there was a history of domestic violence by the applicant towards the complainant and her children;
    • the complainant did not have any motive to make a false claim against the applicant;
    • other evidence existed upon which the complainant might have relied in seeking a protection order;
    • the affidavit containing the representations was filed after a temporary protection order had been made;
    • the representations are consistent with statements allegedly made by the complainant to others.
23. [23]
    The respondent submits the fact the representations were made in a document to be relied upon in court in the context of a domestic dispute is not a circumstance that weighs in favour of, or against, the reliability of the assertions. The respondent also submits the fact the complainant continued to associate and/or correspond with the applicant after the alleged rape is not determinative of the reliability of the representations. The respondent submits the reliability of the representations is in any event not the issue, but rather whether the representations were made in circumstances making it highly probable they are reliable. The respondent submits the circumstances, including the text messages and police reports of other incidents, suggest the complainant held great affection for the applicant despite his violence, so that this is a complaint made “against a loved one” and therefore more likely reliable. The respondent also submits other evidence corroborates the complainant’s account of the alleged assaults by the applicant on 7 November 2010.
24. [24]
    The respondent submits the representations are admissible and should not be excluded on discretionary grounds.

Relevant provisions and principles

25. [25]
    The Evidence Act 1977, relevantly provides:

26. [26]
    In R v Lester,^[1] Fraser JA considered the application of s 93B. His Honour set out the trial judge’s interpretation of the term “circumstances” in s 93B(2) as follows:

27. [27]
    In R v Robertson & Ors,^[4] the Court of Appeal (per Holmes JA, Morrison JA and Atkinson J agreeing) endorsed this interpretation. Holmes JA said:

In Ambrosoli, the New South Wales Court of Criminal Appeal reviewed apparently conflicting authorities as to the scope of the word “circumstances” in the equivalent provisions of the Evidence Act 1995 (NSW). The narrower view was represented by a ruling which Sperling J had given in R v Mankotia, in which he had construed the term as limited to the circumstances of the factual setting in which a representation was made, to the exclusion of events subsequent to the representation or other representations made by the same person at other times. At the other extreme were decisions which suggested that anything which confirmed the accuracy of what was said could be taken into account as a circumstance. Somewhere along the spectrum between the two approaches was Conway v The Queen, in which the Full Federal Court considered it legitimate for a trial judge to have regard to evidence of what the maker of the representation had said at other times in determining whether it was highly probable that a particular representation was reliable. (Citations removed.)

The court endorsed Sperling J’s approach of treating the provision as directed at the circumstances in which the representation was made, but considered that events subsequent to the representation might nonetheless throw light on the circumstances of its making. Examples were an express retraction by its maker or evidence indicating that he or she could not have heard or seen the relevant matter. Prior or later statements or conduct of the person making the previous representation could be considered if they bore on the reliability of the circumstances of its making, but not if they merely went to the asserted fact.

There is no doubt that the use of a term as general as “circumstances” makes the provision capable of being given a broader or narrower compass. But I would not depart from the Ambrosoli approach, as implicitly accepted in Lester, for two reasons. Firstly, and obviously, one would not lightly disagree with a decision of another intermediate appellate court, let alone overturn a decision of this Court. There is, with respect, nothing in the reasoning in Ambrosoli which would make me think that the construction given to the cognate provision must be wrong. Secondly, and unusually, some assistance can be gained as to the meaning of the provision from the Explanatory Notes for the Criminal Law Amendment Bill 2000, part of which concerned the amendment of the Evidence Act to introduce the s 93B exceptions to the hearsay rule. …

…

My conclusion, then, is that this court should adhere to the Ambrosoli approach.^[5]

Consideration

28. [28]
    This application turns upon the potential operation of s 93B of the Evidence Act. Since the charge of rape is defined within chapter 32 of the Criminal Code, the applicant’s trial on that charge is a prescribed criminal proceeding. On the hearing of the application, it was accepted the complainant is now deceased.
29. [29]
    Section 93B provides an exception to the rule against hearsay. This provision does not render admissible evidence that would otherwise not be. Relevantly, the section applies where a person with personal knowledge of asserted facts made representations about the asserted facts, but is now not available to give evidence of those asserted facts because they are dead. In the present case, the asserted facts are to the effect that the complainant was raped by the applicant in about December 2009. Evidence is admissible provided it is relevant.^[6] If the complainant were available to give evidence of the asserted facts, there can be no doubt that would be admissible as direct evidence capable of proving a fact in issue, namely whether she was raped by the applicant. It follows that s 93B may provide an exception to the rule against hearsay in respect of the complainant’s representations about those asserted facts.

30. [30]
    Subsection (2) however, operates to restrict the relaxation of the rule against hearsay only to representations made in specified circumstances. Here, it is accepted paragraphs (a) and (c) of s 93B(2) do not apply. The issue then, in accordance with paragraph (b), is whether these representations about asserted facts can be said to have been made in circumstances making it highly probable they are reliable. As is made plain in the decisions referred to above, the issue in determining whether this precondition of paragraph (b) is satisfied, is not whether the representations are true or are likely to be true, but rather whether they have been shown to have been made in circumstances making it highly probable they are true. In examining the circumstances in order to answer that question, the court cannot take account of evidence tending only to prove the asserted facts. However, the court can have regard to other statements or conduct of the maker of the representations, but only in so far as might expose the reliability of the circumstances of the making of the representations. Other statements or conduct cannot be considered “if they do no more than tend to address the asserted fact or ultimate issue”.
31. [31]
    The representations here are in written form, contained in an affidavit apparently signed by the complainant and dated 21 January 2011. The document purports to have been witnessed by a solicitor. No evidence has been provided as to the creation or witnessing of the affidavit. It is apparent the affidavit was filed in proceedings in the Pine Rivers Magistrates Court wherein the complainant was applying for a protection order under the Domestic and Family Violence Protection Act 2012. It is accepted the complainant did not at any time make a complaint to police that she was raped by the applicant.
32. [32]
    The affidavit is set out in full above at [7]. The document details a history of the relationship between the complainant and the applicant. In particular, it describes (at paragraph 7) the complainant stopped living with the applicant in January 2009. This account also asserts that, although there was ongoing contact with the applicant after separation, this was for the purpose of child contact only. The description in the affidavit is to the effect that whilst the applicant made repeated efforts to continue the relationship, the complainant always rejected those attempts (see paragraphs 8, 9, 10, and 16). The detail of the alleged rape is contained within paragraphs 10 and 11. This account asserts the applicant visited her residence around 14 December 2009. The description includes on that occasion the applicant repeatedly asked the complainant for sex, followed her into the bedroom, again asked for sex, when she refused pushed her onto the bed, forcefully removed her pants, “forced himself inside” her, the complainant begged the applicant to stop and after a brief struggle submitted. The account also includes that the complainant later discovered she was pregnant as a result of being raped. Of relevance, the account also describes the applicant regularly pressured the complainant to have sex, but she consistently refused.
33. [33]
    As is clear, the representations were not made because the complainant was seeking to have the applicant prosecuted for rape, but rather in the context of her application for a protection order. The alleged rape is said to have occurred more than 12 months prior. It is also clear the alleged rape was not the event that precipitated that application, nor was it the primary complaint. Also, the application for the protection order did not detail the more serious allegations but referred to them in general terms. The affidavit detailing this allegation therefore has the appearance of an effort to provide further grounds for the existing claim that a protection order was necessary. 
34. [34]
    The affidavit also seeks to reinforce the description of the relationship set out in the application document. That is, to the effect that the complainant had long regarded the relationship as over and had made that plain to the applicant, but that he refused to accept the position and continued to pursue her without encouragement. Such a circumstance would be a relevant consideration as to whether a protection order should be made.^[7] There can be no doubt the text messages sent by the complainant show the nature of the relationship in an entirely different light. That material shows the complainant’s attitude changed according to circumstances; at times expressing her love for the applicant, including seeking to pursue him sexually, and at other times expressing she wanted no more to do with him. The messages also show the complainant, depending upon the circumstances, made threats to the applicant to attempt to get what she wanted. I am satisfied the text messages assist in understanding the circumstances in which the representations were made. They show that, when it suited the complainant’s purpose, i.e. when attempting to convince a court to make the protection order, her account as to the state of the relationship favoured the result she was seeking.
35. [35]
    An integral facet of the allegation of rape is that the complainant fell pregnant as a result. Paragraphs 13 and 14 of the affidavit describe the complainant agonising over that fact. The text messages make no claim of rape, but twice refer to the complainant’s decision to have children with the applicant. Those messages seem to me inconsistent with the claim the youngest child was conceived as a result of rape. It would seem nonsensical for the complainant to pretend to the applicant that she agreed to have children with him if the applicant must have known that was not the true position. These messages show the complainant’s account changed when communicating privately with the applicant compared to the representations in the affidavit, which were made at the time she was pursuing her own agenda, namely seeking a protection order. In that way I also regard these statements as reflecting the circumstances in which the affidavit was made.
36. [36]
    The statements by the complainant to police on 25 April 2010 should also be viewed in this way. On that occasion the complainant told police her relationship with the applicant had been ongoing, including that they had been residing together. Her only complaint about the prior conduct of the applicant was of verbal abuse. These are prior statements of the complainant contradictory to the asserted facts. These statements are therefore also relevant in assessing the circumstances in which the representations were made.
37. [37]
    In the application for the protection order, the complainant described the incident said to have occurred on 25 April 2010. In this account, the detail of the allegations changed significantly compared to that given to police. This version attributed actual violence to the applicant whereas previously it was said only that he acted aggressively. The account also minimised the conduct of the complainant herself by removing the assertion she had struck the applicant with a baseball bat. This was something she admitted to police who attended the scene. This is of course an account given close in time to that contained in the affidavit. I find these contrary statements also indicate the complainant was then seeking to embellish events in order to obtain the protection order. Therefore, these statements also assist in understanding the circumstances in which the affidavit was made.

38. [38]
    In my view, the earlier statements and conduct of the complainant do assist in understanding the circumstances in which the claim of rape was made. All of these matters show the context in which the affidavit alleging rape was added to the application for a protection order. Because of the way in which the affidavit was produced, and in light of the contrary statements concerning the very issues the subject of the representations, I conclude real likelihood existed for making a false claim or claims to achieve the immediate goal of having a protection order made. In reaching that view, I have not regarded the fact of the representations being made in the course of a dispute concerning children’s matters as reason alone to conclude the statements are suspect or dubious. I have reached my conclusions taking account of all the matters identified above as relevant. In the end, I am not satisfied the representations contained in the affidavit were made in circumstances making it highly probable they are reliable. To the contrary, I have reached the view they were made in circumstances making it unlikely they were reliable. In that case the prosecution has not discharged the evidentiary burden of satisfying the precondition for the operation of s 93B(2)(b). It follows, the hearsay rule applies to the representations contained in the affidavit and those statements are not admissible.
39. [39]
    The respondent submitted evidence of complaints by CNV to others was relevant to showing the reliability of the circumstances of the making of the representations due to consistency. I note that if admitted at a trial on the charge of rape, the jury would be directed the only use they could make of that evidence is as to the reliability of the representations by reason of consistency, and that those statements could not amount to evidence of the truth of the allegations. This submission seems to me to invite the use of these statements in a way inconsistent with the decisions set out above. The preliminary complaint evidence goes only to the truth or otherwise of the asserted facts.
40. [40]
    If I am wrong as to the satisfaction of s 93B(2)(b), so that the hearsay rule does not apply to theses representations, I would in any event exclude the evidence on discretionary grounds. It is submitted the representations should be excluded if it is “inexpedient in the interests of justice that the statement should be admitted” (s 98), or “unfair to the person charged to admit that evidence” (s 130).
41. [41]
    The discretion provided under s 98 requires focus upon the reliability of the evidence but also broader questions concerning the interests of justice, such as unfairness and public policy. Reliability is to be considered both in the sense of the apparent reliability of the evidence, as well as whether general circumstances exist which might affect reliability.^[8] The discretion provided under s 130 refers to an accused person’s right to a fair trial.^[9] Reliability is a fundamental consideration in considering unfairness, although it is not necessarily determinative.^[10]
42. [42]
    As identified above, the circumstances of the making of the representations contained in the affidavit include that the complainant was seeking a protection order. She was not seeking to make a complaint to police that she was raped. The identified earlier statements and conduct of the complainant suggest the account therein may have been tailored to suit that purpose. The statements to police in April 2010 complain only of prior verbal abuse. In addition, the content of the text messages demonstrates consensual sexual conduct occurred well after the alleged rape. Messages also suggest the complainant agreed to have children with the applicant. The detail in the application for the protection order significantly embellishes the description of earlier events; exaggerating the applicant’s behaviour whilst minimising the complainant’s conduct. There is therefore reason to doubt the reliability of the representations, both as to whether they are true and because of the circumstances in which they were made.
43. [43]
    The essential allegations of the commission of the offence are contained within two paragraphs in the affidavit. It is hardly a detailed account. That version does not on its own describe sexual intercourse; that is to be inferred from the complainant’s further statements that the act resulted in pregnancy. The jury would hear the complainant is deceased and the affidavit was created for the purpose of her obtaining a protection order against the applicant. Since no other evidence is capable of proving the charge, the trial will inevitably become a contest as to credit. In that case the complainant’s account will be supported by evidence of preliminary complaint and other alleged violence by the applicant.
44. [44]
    Assuming the representations are admitted in evidence, the jury must be warned of the potential unreliability of them (s 93C). I accept the fact of the representations being admitted without opportunity to cross-examine the maker is not a basis alone to conclude the trial will be unfair. Obviously, such a conclusion would subvert the purpose of the legislation.
45. [45]
    However, in light of the significant questions regarding the reliability of the representations, as well as the limited scope available to the applicant to challenge them, I conclude the admission of them would be inexpedient in the interests of justice and unfair. Accordingly, I would exclude the representations in the exercise of discretion.

Order

[46] The order of the court is:

1. Representations made in the affidavit of CNV are excluded from evidence on the trial of ZAU on a charge of rape.