The Queen v SZL[2018] QDCPR 46

DISTRICT COURT OF QUEENSLAND

Application

1. [1]
   SZL is charged before the District Court of Queensland with the following offences:

2. [2]
   The prosecution applies pursuant to s 590AA of the Code for pre-trial ruling that a statement made by the complainant and dated 14 January 2015 be admitted on the trial of SZL on the above charges.
3. [3]
   I have concluded the statement is not admissible upon the applicant’s trial on these charges. These are my reasons.

Material

[4] The following material was admitted on the hearing of the application.

[5]  In addition, Dr Stella Lin gave oral evidence and was cross-examined.

Prosecution case

6. [6]
   At the time of the alleged offences, the complainant and respondent both lived in the same street at Minden. The complainant was then aged 71 years and the respondent was aged 31 years. It is alleged the complainant and respondent had been at a neighbour’s house celebrating the neighbour’s birthday and the respondent offered to escort the complainant the short distance to her home. It is alleged the respondent walked with the complainant to her house and followed her into her bedroom. It is alleged the respondent pushed the complainant onto the bed, forcefully removed her underpants, and had sexual intercourse with her without consent.  

7. [7]
   The prosecution case relies upon admission of the account of the complainant contained in her witness statement dated 14 January 2015, in which these events are described. The statement was audio recorded. The complainant has since been diagnosed as suffering from Alzheimer’s dementia. The prosecution argues the complainant is mentally incapable of giving evidence and the statement is therefore admissible.

8. [8]
   The prosecution case also includes evidence of a police interview with the respondent. The respondent admitted walking the complainant home on the occasion in question but denied the allegations. He told police in effect the complainant was intoxicated and fell over but he did not enter her residence or rape her.

9. [9]
   Other evidence includes an account from the complainant’s grandson who later saw bruising on her legs. The grandson says the complainant first told him she got the bruises from being in the garden, but later said the respondent offered to walk her home from the party because she was intoxicated, followed her into her bedroom and raped her, and the bruises resulted from that incident. The account of the grandson describes seeing bruises on the complainant’s “legs and thighs”. However, he also says he does not recall where the bruises were but that he thinks there was one on the inside and one on the outside of her thigh. He could not recall which thigh. He also described the bruises as being about the “size of a palm print” and “black and purple in colour”. He claims to have seen these bruises either the day after the birthday party or the day after that.

10. [10]
    Further preliminary complaint evidence is given by neighbours XRB and DGP.  XRB says the complainant told her, about a week after the party, the respondent raped her. The description given to XRB by the complainant included that the respondent threw her onto the bed, held his hand over her mouth, and used his other hand to hold her hands behind her back. XRB says during the conversation she urged the complainant to go to the police because the respondent had two female children. XRB says the complainant responded, “Oh no, they’re such a happy family, I don’t want to upset them.” XRB says she also asked the complainant where her dog was at the time and the complainant told her the dog was in the lounge room when she was attacked. XRB also says the complainant showed her a bruise on her hip which was about the “size of a fist” and which XRB described as being “dark brown in the middle [and] green and yellow on the outside”. XRB says the complainant was wearing shorts and a singlet at the time of this conversation and she did not see any other bruising or injury on her body.

11. [11]
    DGP says on the night in question the complainant was “totally inebriated”. DGP recalls the respondent left to escort the complainant to her home and describes hearing the respondent re-enter his yard, about five to seven minutes later. DGP says about two weeks after the party, the complainant told her she had been raped. DGP says the description of the complainant included that she was showing the respondent the billiard table and he followed her into her bedroom. DGP says the complainant said the respondent got her on the bed, had his hand or arm around her neck, and forced himself upon her. DGP asked her where her dog was when this occurred and says the complainant replied she did not know. DGP also asked the complainant why she had not complained to them at the time and she replied, “I just didn’t want to upset anybody.” DGP also says the complainant told her she had a bruise as a result of the incident but DGP did not see any bruises.

12. [12]
    The applicant acknowledges proof of either charge is dependent upon acceptance of the account of the complainant contained within her witness statement. 

Circumstances in which representations made

13. [13]
    On 14 January 2015, the complainant attended the Ipswich Police Station and provided a witness statement to Plain Clothes Constable Gilchrist. The taking of the statement was audio recorded. The process commenced at 8.44pm and concluded at 10.34pm. Present were two of the complainant’s daughters. I have listened to the recording. The statement was typed by PCC Gilchrist who asked questions which were answered by the complainant. Officer Gilchrist formulated the information into a first-person narrative. At the conclusion the complainant read and signed the statement.

14. [14]
    The statement commences with a description of the complainant, her age and address (para 1). It says (para 2), “I recall a series of events which occurred sometime in November 2014. I do not recall what the exact date was.” The statement then details the reason for the complainant going to her neighbour’s residence; i.e. for DGP birthday (para 3). The statement describes the complainant’s prior relationship with her neighbours (para 4). The statement then provides a narrative of events at the party, commencing with the complainant drinking a bottle of wine during the course of the night which she mixed with tonic water and ice (para 5). The statement says (para 6) “I don’t recall being intoxicated as a result of the wine.” The statement identifies six other adults as being present (para 7); these are DGP, XRB, the respondent and his wife, and two other females. With respect to the respondent, the statement describes the complainant had met him twice previously at DGP place (para 8), and describes speaking to the respondent and his wife about their children’s swimming lessons (para 8). The statement describes (para 9) the respondent as “quite a nice, friendly kind of guy” and gives a physical description of him and where he lives, relative to the complainant’s house.

15. [15]
    The statement describes that eventually at about 8.00-8.30pm, when the complainant decided to go home, the respondent said he would take her home. The statement describes the complainant finishing her drink whilst the respondent took his family home and then returned (paras 10-11). The statement then describes the respondent walking with the complainant towards her residence. The statement says that when they passed the respondent’s house, the complainant told him she could walk the rest of the way herself but the respondent said “No, no, I said I’d take you home.” (para 12). The statement says when they got to the front of the complainant’s house, she opened the front door, went inside and played with the dog, and the respondent followed her inside (para 15). The statement says the respondent spoke about the pool table, that she had a big house and asked where her bedroom was (para 15). The statement describes the complainant thinking she would not tell the respondent where her bedroom was and asking him to close the door behind him (para 15). The statement describes the complainant wanting to use the bathroom and being tired, walking into her bedroom towards the ensuite, trying to remove her dress and realising the respondent was in her bedroom (paras 16-17).

16. [16]
    The statement then describes the respondent raping the complainant (paras 18-29). The description includes that the respondent knocked the complainant into a set of drawers so that she hit her left hip and bottom which caused bruising to her bottom. The statement describes the respondent pushed the complainant onto the bed and then moved her further onto the bed. The description includes that the complainant was feeling scared and thinking about not making the respondent angry. Also described is that the respondent asked the complainant to remove her underpants, she refused, the respondent did so, the respondent instructed she open her legs, she refused, and the respondent forced her legs apart with his knee, which hurt her. The description includes that the respondent had his forearm against the complainant’s chest and throat and held her down which caused pain to her chest and throat. The description continues of the respondent inserting his penis into the complainant’s vagina and ejaculating inside her.

17. [17]
    The statement describes that afterwards, the respondent was looking for his shorts before leaving (paras 30-31), and that the complainant was “stunned and scared” and lay still for a period (paras 30-32). The statement then describes the complainant’s grandson arriving home, that she got up, changed the bedding, and had a shower (para 33). The statement describes the complainant had soreness to her chest but no bruising there, and a bruise on her bottom for about a week (para 34). The statement says about a week later the complainant told her neighbour, XRB, what happened and showed her the bruise (para 35). The statement says in early January 2015, the complainant told one of her daughters what happened (para 36), on 13 January 2015 told another daughter (para 37), and on 14 January 2015 told other neighbours (para 38). The statement says the complainant did not give any permission to the respondent to assault her (para 39). The statement says the complainant did not have any contact with the respondent afterwards but saw him drive past her house (para 40) and also describes attending the police station to provide the statement (para 41).
18. [18]
    The recording of the complainant providing the statement shows she apparently understood what was then happening. She was able to understand and respond appropriately to the questions asked of her. The account she provided included significant detail and explanation of the circumstances and events. The complainant read and signed the statement, including the declaration under the Justices Act that “This written statement by me dated 14/01/2015 and contained in the pages numbered 1 to 5 is true to the best of my knowledge and belief” and “I make this statement knowing that, if it were admitted as evidence, I may be liable to prosecution for stating in it anything I know to be false.” The complainant’s signature was witnessed by officer Gilchrist.

19. [19]
    In the statement of XRB, she says she did not believe the complainant’s claim of being raped because she also said the dog was in the lounge at the time. XRB says, “I know the dog follows her everywhere and I think he even sleeps in her bedroom.” XRB describes the dog as “vicious”. In addition, XRB says the complainant had, a few years earlier, accused the respondent of tapping on her window at about 1.00am, at a time after he would have gone to work.

20. [20]
    DGP describes that she has known the complainant since 2005. DGP says the complainant’s memory deteriorated over time, particularly from about 2011. DGP says the complainant would at times be unable to finish sentences and would get easily confused, especially when she consumed alcohol. She says she formed the view the complainant was suffering from early stages of dementia or Alzheimer’s or similar, and told the complainant and the complainant’s daughter she should seek assistance. DGP says that, prior to the death of the complainant’s husband (in June 2014), the complainant would make patently false allegations of her husband having sex with someone else in her house. DGP describes the complainant’s dog as being very attached to the complainant and following her everywhere. DGP expressed the opinion the complainant’s dog would have reacted to protect the complainant if she were distressed or attacked.

21. [21]
    On the hearing of the application, the applicant relied upon a report dated 15 November 2017, by specialist geriatrician Dr Stella Lin, as to the complainant’s capacity to give evidence. In that report, Dr Lin says the complainant “was diagnosed with Alzheimer’s dementia since November 2016 and she has suffered symptoms from dementia for approximately two years prior to the diagnosis.” The report continues:

Currently her dementia is of a moderate severity with a Mini Mental Status Examination (MMSE) score of 14/30. The cognitive domains affected are predominantly in memory, recall and expressive language difficulties, where she has poverty of words, difficulty naming and difficulty with constructing sentences, and to a lesser degree executive dysfunction. She had no paranoid delusions. During today’s assessment, she had much difficulty expressing herself, using gestures and body language frequently when she could not come up with the words. She described that she knew in her head what she wanted to say, however she could not use the right words to say these things. She appeared to struggle with comprehension occasionally, not understanding the questions asked. 

…

In my opinion, it is highly probable that [the complainant] lacks capacity to be a witness at a court hearing secondary to her cognitive impairment and language difficulty from Alzheimer’s dementia. Her ability to recall details of the event and to express herself is impaired due to the dementing illness. Furthermore, her language impairment is very likely to worsen when she is under stress, such as speaking in a court hearing facing her offender. As dementia is a neurodegenerative illness, her memory and recall would have been better three years ago when her dementia was in the early stage. Her statement of witness soon after the incident would be a better reflection of the event than what she is able to describe now.

22. [22]
    Dr Lin also gave evidence on the hearing of the application. Dr Lin said the complainant was initially referred to the memory clinic by her GP in 2016. Dr Lin said the complainant then suffered symptoms of short term memory loss; including difficulty remembering names, losing things, getting lost when driving, and being unable to use money. These symptoms were reported by the complainant and her family members. Dr Lin said these reports suggested a rapid decline after a number of events during 2014 which included the death of the complainant’s husband, the alleged rape, and the death of her dog. Dr Lin personally saw the complainant in May and November 2017 and expressed the opinion she was mentally incapable of giving evidence. Dr Lin based that conclusion on the complainant being unable, in November 2017, to give an intelligible account of the alleged rape. Dr Lin acknowledged a possible symptom affecting dementia patients is hallucinations, although she was unaware of the complainant exhibiting that symptom. Dr Lin said the MMSE score of 14/30 is an indication of the complainant’s functional ability and severity of her disease. Dr Lin acknowledged the complainant’s score had remained relatively stable since diagnosis in 2016.

23. [23]
    Dr Lin was asked about the complainant’s state at the time she provided the police statement; i.e. January 2015. Dr Lin confirmed there had been no assessment of the complainant prior to November 2016. Dr Lin said that in 2016 the complainant did not have the same degree of impairment of her ability to communicate as existed in 2017. In that context, Dr Lin said the complainant was not as impaired in 2016 as now. Dr Lin was unable to say when the complainant’s dementia commenced or when it became severe. Although Dr Lin said her opinion would be that the complainant was less impaired in January 2015, Dr Lin repeated she could not be definite as to that because the complainant had not been assessed earlier. Dr Lin said she had read the witness statement provided by the complainant but had not listened to the recording of that process. Dr Lin said she would not feel comfortable making an accurate assessment of the severity of the complainant’s dementia based on listening to the recording. 

24. [24]
    Dr Lin acknowledged delusions can be a symptom of dementia, more commonly seen in patients with moderate to severe dementia. Dr Lin accepted however, that delusions were possible even in early stage dementia. Dr Lin agreed there was no evidence against which to assess whether the alleged rape was an actual memory as opposed to a delusion. Dr Lin was asked about the observations of DGP, i.e. the complainant’s decline in memory and exhibiting confusion commencing from as early as 2011. Dr Lin said that was inconsistent with reports from family and the complainant. Dr Lin accepted in some cases, neighbours may be in a position to observe symptoms of dementia more closely than family members. Dr Lin also accepted dementia sufferers can manage their symptoms to avoid them being detected by others. Dr Lin acknowledged the complainant’s false claims about her husband having sex is apparently delusional. Dr Lin accepted that a delusion is the maintenance of a fixed belief in a false state of affairs. Dr Lin acknowledged the complainant’s claim about the respondent being at her window might also be delusional. Dr Lin accepted there was a degree of speculation in attempting to work out whether the complainant was delusional at some earlier time but acknowledged it was possible. Dr Lin accepted persons with dementia can sometimes confabulate to compensate for their memory deficits and it was also possible they could use some actual events as a basis for a false narrative. 

Submissions

25. [25]
    The applicant contends all of the conditions of s 93B of the Evidence Act are met such that the witness statement of the complainant is admissible. The applicant submits the charge of rape, found within chapter 32 of the Code, is a prescribed criminal proceeding so that s 93B is enlivened. The applicant also submits the consequences of the complainant’s diagnosis of Alzheimer’s dementia are such that the complainant is mentally incapable of giving evidence. In particular, the applicant submits the complainant is not able to give an intelligible account of the alleged events because of her memory deficits and inability to express herself. The applicant relies upon the evidence of Dr Lin who expressed this opinion.

26. [26]
    The applicant also submits the witness statement of the complainant, describing the alleged offence, was made about two months after that occurred. It is submitted the representations in the statement were therefore made shortly after the happening of the asserted facts as required under s 93B(2)(a).

27. [27]
    The applicant contends the circumstances in which the statement was made demonstrate it is unlikely to be a fabrication or is highly probable to be reliable. In particular, those circumstances include: that it was made to a police officer for the purpose of pursuing a criminal prosecution, contains significant detail, includes a declaration that the contents are true and correct, and was made about two months after the alleged events. The applicant submits the evidence of Dr Lin is to the effect the complainant was significantly less impaired in her functioning in January 2015 than when diagnosed in November 2016. It is submitted there is no evidence of the complainant being affected by hallucinations or delusions such as to cast doubt upon the reliability of her complaint of rape. The applicant submits the requirements of s 93B having been met, the statement is admissible. The applicant further submits the apparent reliability of the complainant’s account are features which tell against discretionary exclusion pursuant to ss 98 or 130 of the Evidence Act. The applicant submits the statement should be admitted on the respondent’s trial.

28. [28]
    The respondent opposes admission of the statement into evidence. No real issue was taken that the complainant was unavailable because she is mentally incapable of giving evidence. The respondent instead submits the pre-conditions of s 93B(2)(a) and (b) have not been met.

29. [29]
    The respondent submits the representations were not made shortly after the asserted facts as required under s 93B(2)(a). Reliance was placed on statements in Williams^[1] in support of the conclusion that the present time period of two months is excessive. In particular, the respondent submits, it is the time period rather than whether the alleged event is memorable that is paramount. As a consequence, the respondent submits paragraph (a) cannot apply. Therefore, the respondent contends, the prosecution has the burden of showing the statement was made in compliance with paragraph (b); i.e. made in circumstances making it highly probable it was reliable. 

30. [30]
    The respondent argues the significant feature of the present case telling against such reliability is the circumstance that, at the date of making the statement in January 2015, the complainant suffered from dementia. The respondent relies upon the opinion of Dr Lin, expressed in her report, that the complainant suffered from that condition for approximately two years prior to her diagnosis in November 2016. The respondent points to the concessions by Dr Lin that delusions can be a symptom of that illness. The respondent relies upon the observations of witnesses DGP and XRB as to a much earlier deterioration in the complainant’s memory and functioning, her patently false claims about her now deceased husband, and her earlier apparently false allegation about the respondent being at her window, as being basis enough to raise real possibility of this allegation being delusional. 

31. [31]
    In addition, the respondent submits the inconsistent accounts of the complainant concerning the alleged rape are relevant to determining whether the statement was given in circumstances making it highly probable to be reliable. These include: her first account to her grandson that she suffered the bruise in the garden, her inconsistent account to XRB as to the respondent covering her mouth and holding her hands behind her back, and inconsistent statements to DGP, XRB and her grandson about where she had bruising resulting from the alleged rape. The respondent also contends the fact the statement was made to a police officer and was signed and declared to be true, is not of itself a compelling reason to conclude the representations were made in circumstances making it highly probable to be reliable. The respondent contends that where the representations may be the product of delusion and the complainant genuinely believed them to be true, the form in which they are made is no indicator of reliability. The respondent similarly contends the manner of the statement being made may also be a product of delusional thinking. Accordingly, describing the complainant as being “lucid” or “responsive” at the time she provided the statement assumes the reliability of her claims at face value rather than looking to whether the circumstances suggest reliability.   

32. [32]
    Alternatively, the respondent submits the statements should be excluded in exercise of the discretion provided under ss 98 and 130 of the Evidence Act; i.e. either as inexpedient in the interests of justice or due to unfairness. In either case, the respondent submits, the suspect reliability of the complaint is the telling feature which would lead to discretionary exclusion. 

33. [33]
    The respondent submits the representations are not admissible or alternatively should be excluded on discretionary grounds.

Relevant provisions

34. [34]
    The Evidence Act 1977, relevantly provides:

35. [35]
    In R v McGrane,^[2] McMurdo P said:

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.^[3]

36. [36]
    A pre-condition for application of s 93B(2)(a) is that the representation is made “when or shortly after the asserted fact happened”. In R v Mankotia,^[4] Sperling J considered the equivalent New South Wales provision as follows:

The legislature has chosen not to specify a time. That implies that a normative judgment is to be made dependent on the circumstances of the case. For a judgment to be made, considerations of some kind or other have to be taken into account but - as in the case of normative judgments generally - it may be difficult or impossible to articulate in a precise way what they are. I think the predominant factor in the phrase "shortly after" must be the actual time that has elapsed and whether that fits the ordinary usage of the expression "shortly after" in the circumstances of the case. The judgment should, however, be influenced by the policy behind the provision. That is to put a brake on evidence being given of a recollection which may have faded in its accuracy with the passage of time. The judgment may therefore be influenced by the subject matter of the event and by how long the memory of such an event is likely to have remained clear in the mind.

37. [37]
    This passage was cited with approval by the Full Court of the Federal Court, when considering the equivalent Commonwealth provision, in Conway v The Queen.^[5] In Williams,^[6] the Full Federal Court, after quoting from Conway, concluded:

For these reasons, it would be a mistake, in determining whether a statement has been made ‘shortly after’, to over-emphasise such matters as whether the events in question were ‘fresh’ in the memory of the person making the statement.  The rationale for the exception to the hearsay rule contained in s 65(2)(b) is not based only upon the necessity to ensure that the events in question may be easily recalled.  Rather that provision is, as a whole, intended to allow evidence that is unlikely to be a fabrication.  One condition of this is that the statements be made spontaneously during (when) or under the proximate pressure of (shortly after) the occurrence of the asserted fact. In Conway the statement in question was made by a murder victim who said, while observed to be looking "terrible", that she had been drugged and had been "off her face for about three or four hours". The comments of the Court in Conway regarding the meaning of "shortly after" should be understood accordingly. The approach taken in Conway to s 65(2)(b) as a whole is consistent with such a reading of that case.

In this case, the statements were not made during the events in question, and, we think, could not be said to have been made "shortly after". Despite being made within a time in which Mr Stewart may be considered to have retained a good recollection of events generally, the lapse of five days takes the representations outside the likely temporal realm of statements that may be considered to be reliable because made spontaneously during, or under the proximate pressure of, events. This time lapse, therefore, takes the representations outside the exception contained within s 65(2)(b). Indeed, it would seem to be an unusual case in which a representation made five days after the occurrence of the asserted fact might be regarded as having been made "soon after" it.^[7]

38. [38]
    In R v Lester,^[8] the Queensland Court of Appeal considered what the “circumstances” referred to in s 93B(2)(a) and (b) might include. In that case the trial judge accepted the approach of the New South Wales Court of Criminal Appeal in R v Ambrosoli.^[9] In Lester, Fraser JA said: 

Justice Fraser (Mackenzie AJA and Douglas J agreeing), followed the trial judge’s approach; i.e. adopting the interpretation from Ambrosoli.^[11]

39. [39]
    In R v Robertson & Ors,^[12] 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.^[13] 

[40] In R v Adcock^[14] Morrison JA (Gotterson JA and North J agreeing), adopted the approach of Holmes JA in R v FQ^[15] as to discretionary exclusion under ss 98 and 130 of the Evidence Act. In Adcock, Morrison JA said:

Consideration

41. [41]
    Section 93B of the Evidence Act provides an exception to the rule against hearsay in criminal proceedings. However, s 93B(1) expressly restricts the application of the provision only to prescribed criminal proceedings; i.e. proceedings for an offence defined within chapters 28-32 of the Criminal Code. In this case, count 1 (the charge of burglary), is defined within chapter 39, whereas count 2, (the charge of rape), is defined within chapter 32. It follows the section potentially applies only in respect of count 2.

42. [42]
    Sub-section (1) further specifies the circumstances in which the exception may apply.  In the present case, this is if the complainant had personal knowledge of asserted facts, made representations about the asserted facts, and is now not available to give evidence of those asserted facts because she is mentally incapable of giving the evidence. The asserted facts said to be within the complainant’s personal knowledge and about which she made representations, are that she was raped by the respondent in her house. As is plain from s 93B(4), evidence that would not be admissible, even if given in person, is not rendered admissible by this exception to the rule against hearsay. In order to be admissible, evidence must be relevant; i.e. “it could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceeding”.^[17] Here, there is no doubt if the complainant were available to give evidence of the asserted facts, that account would be admissible as direct evidence capable of proving she was raped by the respondent. It follows, the complainant’s representations describing her alleged rape may be subject to the exception to the rule against hearsay provided by s 93B.

43. [43]
    In this case it was not disputed the complainant is now not capable of giving evidence at a trial, due to her mental state. The evidence of Dr Lin was that, when she spoke with her in November 2017, the complainant was unable to give an intelligible account of the alleged rape. The complainant’s memory and recall are impaired as well as her ability to express herself. In Dr Lin’s opinion, this inability was directly due to the complainant’s diagnosed Alzheimer’s dementia. I am satisfied on the evidence the complainant is unavailable to give evidence because she is mentally incapable of doing so.

44. [44]
    Pursuant to s 93B(2), the type of representations that might come within the exception is further restricted. In this case the prosecution does not rely upon the representations as coming within paragraph (c); instead it is argued the representations come within paragraphs (a) and/or (b). To be captured by paragraph (a), the representation must be made “shortly after the asserted fact happened”. Consistent with the decisions referred to above, determination whether the representation was made shortly after the asserted fact happened principally requires consideration of the actual time lapse between the two events. Here, the alleged rape occurred on the night of the party held to celebrate the birthday of DGP. On the account of the witness DGP this was a few days before her actual birthday on 18 November 2014. The account of XRB also is that the party was held around the time of DGP’s birthday on 18 November 2014, however she could not say whether it was before or after that date. And, according to the representations of the complainant, the event was sometime in November 2014. It is not disputed the representations in question were made on 14 January 2015. The relevant time period therefore is about two months. In those circumstances, no temporal spontaneity exists in the making of the representations which of itself might be an indicator of reliability. Although the nature of the asserted facts are such as likely to be remembered, even after a period of about two months, that is hardly a time frame of any immediacy. It cannot be said the representations were made under the proximate pressure of events. I conclude in this case the representations were not made shortly after the asserted fact happened. Accordingly, paragraph (a) of s 93B(2) has no application. 

45. [45]
    Paragraph (b) requires the representations must be “made in circumstances making it highly probable the representation is reliable”. In this context it is necessary to examine the relevant circumstances to determine if they were such that the representations are highly probable to be reliable. Consistent with the Ambrosoli approach, the issue in determining whether this precondition is satisfied, is not whether the representations are true or are likely to be true, but whether they have been shown to have been made in circumstances making it highly probable they are true. To answer that question, the court cannot take account of evidence tending only to prove the truth or otherwise of the representations. It is legitimate to have regard to other statements or conduct of the maker of the representations so far as might expose the reliability of the circumstances of the making of the representations. However, other statements or conduct cannot be considered “if they do no more than tend to address the asserted fact or ultimate issue”.

46. [46]
    The representations relied upon are those contained within the witness statement of the complainant provided on 14 January 2015. The statement was provided to a police officer at a police station and in the presence of the complainant’s daughters. The statement was prepared by the officer, based on answers given by the complainant to questions asked of her. The complainant was responsive to questions asked of her and appeared to understand the process and its purpose. The complainant read and signed the document as being a truthful account. 

47. [47]
    The summary of the relevant asserted facts contained in the statement are set out above. The events described are said to have occurred about two months prior. The statement provides a narrative of events over a period of time and appears to show a reasonable level of recall of detail. The statement includes a description of the respondent accompanying the complainant home, following her into her house and bedroom, pushing her onto the bed, and having sexual intercourse with her without her consent. The account makes it clear the alleged rape occurred when the complainant was lying on her back on the bed. The account alleges the respondent pushed the complainant into a set of drawers which ultimately caused a bruise to her bottom; this being the only bruise caused in the incident. The account also alleges the respondent held his forearm against the complainant’s chest and throat. The account does not include any allegation the respondent held his hand over the complainant’s mouth, or that he used his other hand to hold the complainant’s hands behind her back. The account does not suggest the respondent had his hand or arm around the complainant’s throat.

48. [48]
    As is clear, the complainant was diagnosed, in November 2016, as suffering from Alzheimer’s dementia. The evidence of Dr Lin is that the complainant was suffering from this condition at the time she provided the statement containing the asserted facts. Dr Lin was unable to say definitively what the severity of that condition was in January 2015, because no assessment was made of the complainant prior to November 2016. Dr Lin was confident that the complainant’s capacity to communicate had been better in November 2016, than when she saw her in November 2017. However, Dr Lin was reluctant to express any firm view as to the severity of the complainant’s dementia in January 2015. Although Dr Lin said the conclusion the complainant’s dementia deteriorated sharply after the alleged rape was based on observations of family members, Dr Lin accepted the possibility that other evidence might show an earlier onset of the condition. Dr Lin also acknowledged that dementia sufferers may hide their symptoms from others. Dr Lin acknowledged that confabulation and delusion were features of dementia, and that here no means of excluding those possibilities as explanations was available. Dr Lin accepted a delusion is a fixed belief that persists. Dr Lin admitted the earlier observations by neighbours may demonstrate delusional beliefs held by the complainant.

49. [49]
    Obviously, understanding the method and manner in which the statement was provided by the complainant is relevant to assessment of whether the statement was made in circumstances reflecting reliability. I am satisfied the evidence of the complainant’s diagnosis of Alzheimer’s dementia is also relevant to consideration of those circumstances. That diagnosis is fundamental to understanding the capacity of the complainant to give an honest and reliable account of events. Although no examination of the complainant was made in January 2015, the evidence shows she was then suffering from this progressive neurodegenerative illness. Real difficulty exists in establishing to what extent the complainant was then affected. Although family members were then unaware of symptoms, on the evidence of Dr Lin they undoubtedly existed. Dr Lin expressed reluctance to come to a concluded view as to this question. Dr Lin acknowledged the possibility of delusion or confabulation by the complainant without being able to offer any opinion as to whether these allegations are a product of either. Dr Lin acknowledged the observations of others might show the illness was affecting the complainant at a much earlier time and might themselves be evidence of delusional thinking.

50. [50]
    The possibility of delusion and confabulation present difficulty in relying upon the statement as itself evidencing circumstances promoting reliability. If the allegation of rape is a product of either delusion or confabulation, the complainant genuinely, but wrongly, believed it to be true. In that case, her manner of responding, ready understanding, apparent coherence, and detailed version are of no assistance in establishing reliability. 

51. [51]
    Other statements by the complainant are relevant to consideration of the circumstances in which the statement was made. The first version given by the complainant to her grandson was that the bruise on her leg occurred in her garden. The account to XRB included that the respondent held one hand over her mouth while using the other hand to hold her hands behind her back. The account to DGP was that the respondent had a hand or arm around her throat. All of these versions preceded the account to police in January 2015. They each contradict an aspect of the description given on that occasion in a material way. The account to the grandson is in effect that no rape occurred. The account to XRB suggests the rape occurred whilst the complainant was face down. The account to DGP has the respondent’s arm or hand used in a different way to hold her. These statements suggest an evolving story rather than a single recollection of an actual event. They may indicate the development of a delusional or confabulated belief to compensate for the memory deficits produced by the complainant’s dementia. In that way, I conclude these earlier statements to others are relevant to understanding the circumstances in which the representations were made. 

52. [52]
    In the circumstances identified above, I conclude that at the time the statement was provided, there is a real possibility the complainant’s dementia may have influenced the account she then gave. I find the circumstances at the time of making of the representations were such that a delusional or confabulated account was entirely possible. It follows I am not satisfied the representations contained in the statement provided to police were made in circumstances making it highly probable they are reliable. That precondition for the operation of s 93B(2)(b) having not been met, the hearsay rule applies to those representations. I conclude the representations contained in the statement of the complainant provided on 14 January 2015 are not admissible.

53. [53]
    If my conclusion that the representations contained in the statement are not admissible is wrong, I would nevertheless exclude the statement in exercise of discretion under ss 98 or 130 of the Evidence Act. As is clear from the decision of Adcock and the cases referred to therein, these provisions require consideration of the reliability of the statement in question. Reliability in this context includes the apparent actual reliability of the statement as well as broader considerations which might affect reliability. The discretion created under s 98 (inexpedient in the interests of justice) also raises questions of unfairness and public policy. The discretion created under s 130 (unfairness), focuses upon the fairness to the defendant in admitting the evidence at his trial, although reliability alone is not necessarily determinative.^[18]
54. [54]
    In the present case the reliability of the claim of rape as described in the statement is questionable. As identified above, at the time of making the statement the complainant was suffering from a neurodegenerative illness, namely Alzheimer’s dementia. A potential symptom or product of that illness is delusion and confabulation. The expert evidence offered no definitive opinion as to the real impact of that illness upon the complainant at the time the statement was provided. The expert conceded the possibility of confabulation and delusion affecting the complainant at that time. The expert also accepted that earlier observations of the complainant’s behaviour were consistent with the illness affecting the complainant at a much earlier time and were consistent with delusions. Therefore, I cannot exclude the possibility that the reliability of this version is significantly compromised.
55. [55]
    In addition, there are fundamental inconsistencies in the accounts given by the complainant to others prior to making the statement to police. The account to the complainant’s grandson is to the effect that no rape occurred. In addition, the description provided to XRB is fundamentally different to the version given to police. Other concerns about the detail of the account in the statement exist; e.g. in relation to bruising.
56. [56]
    On the face of it, the version contained in the police statement might be thought to be a logical and detailed narrative of an occurrence, suggestive of an actual memory of those events. However, where the possibility exists that account is produced as a result of delusion or confabulation, the manner and form of it loses that persuasive force. In the circumstances here it is possible the version provided to police was one the complainant genuinely but wrongly believed to be true. Yet beyond comparison with the version given to others, its veracity may be comparatively difficult to challenge. That is a matter going to the fairness of the trial if the statement were admitted. However, I accept that the inability to cross-examine the complainant is not itself a reason to exclude the statement, since that would undermine the purpose of section 93B.
57. [57]
    In the end, I conclude significant questions remain concerning the reliability of the account contained in the statement provided to police and the respondent is left with limited means of challenging it. In my view, admission of the statement would be inexpedient in the interests of justice and unfair. It follows I would exclude the representations contained in the statement in exercise of discretion.

Order

[58] The order of the court is:

1. Representations made by RHV in the statement dated 14 January 2015 are excluded from evidence on the trial of SZL.