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- Unreported Judgment
R v Lloyd QDCPR 1
DISTRICT COURT OF QUEENSLAND
R v Lloyd  QDCPR 1
Stephen James LLOYD
Application under s 590AA of the Criminal Code
District Court of Queensland, Brisbane
3 February 2022
31 January 2022
Loury QC DCJ
CRIMINAL LAW – EVIDENCE – CONFESSIONS AND ADMISSIONS – GENERALLY – whether apology in message sent by applicant is reasonably capable of amounting to an admission to rape – whether apology proffered immediately after the complainant accused the applicant of rape is ambiguous and equivocal – where applicant’s statement was in response to a dual proposition – whether probative value of message exchanges is slight compared to its prejudicial effect of it – whether admission of messages would result in an unfair trial.
Criminal Code 1899 (Qld) s 590AA.
R v Caulfield  QCA 204.
R v Hasanov  QDC 342.
R v PV ex parte Attorney-General (Qld)  2 Qd R 325.
R v SJRC  NSWCCA 142.
V Adams for the respondent
T Ryan for the applicant
Office of the Director of Public Prosecutions for the respondent
Ide Lawyers for the applicant
- The applicant is charged with one count of rape. He met the complainant through a social networking application in August or September 2009. He was then 20 years of age and the complainant 17. They arranged to meet in October or November 2009. The applicant attended at the complainant’s house. She alleges that they lay on a mattress in front of the television intending to watch a movie together. The applicant tried to kiss her and removed her shorts. She said to him repeatedly “no stop, I don’t want to” as he removed her shorts. He penetrated her vagina with his penis whilst she repeatedly told him “no, stop”. She says that she was crying and tried to push him off her. After two or three minutes the applicant stopped and left her house.
- It was not until around one year later that the applicant again attempted to contact the complainant by messaging her. She did not engage with him and had no further contact until 14 November 2019 when he sent her a private message on Instagram. She engaged in conversation with him over two days which initially was about her tattoos. Of significance to this application are the following messages:
“Far out… you probably don’t remember me …but you can’t be 28…did you get any before 18? I thought they literally banned it no matter. Used to be above like 12 with parents okay I think…any idea?”
“I’m 28 on Saturday”
“I was 18 when I got mine and yes I do remember you or lucky I’m even replying”
“Because I want to say I am sorry.”
“I mean it.”
“I know it might mean shit to you.”
“But I hope it doesn’t”
“I mean it. Words don’t show shit but. So if I can do anything for you. Help you get something or do something. Please ask.”
“I’ll even go as far as. I’m sure you’re skeptical. So I’ll do something far away from you. That you can see and be told.”
“To help prove trust/seriousness”
“Up to you. If you want to block me. Last thing I wanna say is thankyou for the tattoo advice and recommendations. I am serious about getting one and do admire yours. My offer is always there. And so is my apologies.”
- A few days later, on 24 November 2019 the applicant again messaged the complainant on Instagram. The exchange between them included:
“Hey you! How has your weekend been?”
“Stop messaging me I want nothing to do with you”
“I understand you feel that way. And like I always will be, i am sorry. I hoped you could find something good in the fact that I am trying. For no reason than I really am and want to show that.”
“But telling me to stop doesn’t get you an outcome that could be great for you.”
“Worst case, it bugs you. Nothing more”
“Best case, you actually need something. You can’t even think of now. But one day you might”
“But it’s up to you”
“If you really don’t want me to keep trying”
“Delete me. It’s the last thing I want.”
“Look you fucked up my life and I have all the prof to go to the police if I want the best out come for myself..”
“The best outcome could be anything”
“But if you mean it.”
“Delete me. But I beg you don’t.”
“If you do.”
“I am sorry. Always will be.”
“You can’t buy anything to make up for what you did”
“Just leave me alone”
“Kate, it doesn’t have to be a item. Or thing.”
“You are not even friends with me on here”
“Just leave me alon”
“Why do you want me to not speak to you?”
“Because you fucked my life and I want nothing to do with you”
“Just leave me the fuck alone”
“Then why reply?”
- The applicant applies for exclusion of the message exchanges between himself and the complainant on the basis that they are not reasonably capable of amounting to an admission to rape. Alternatively, it is argued that if admissible, nonetheless the message exchanges ought to be excluded because it would be unfair to admit the evidence or alternatively that the prejudicial effect of the evidence far exceeds the probative value of it.
- The applicant contends that the apology proffered immediately after the complainant accused the applicant of “pretty much raping someone” is ambiguous and equivocal. Viewed in context, it is argued that the applicant was attempting to ingratiate himself with the complainant. His statement “So in my eyes I do but it’s what you say that matters” indicates that he was attempting to placate her by agreeing with her even though he saw things differently.
- Further, it is argued that the response “Well we are on the same page then, I am sorry, whatever you ask I’m yours” was in response to a dual accusation including that he had “started shit with her” at a much later time which caused problems in her then relationship. It is contended that the complainant did not explain what she meant by “pretty much raped someone” and further that there is no evidence as to what the applicant understood by those words. The words “pretty much” raped her is consistent with a suggestion that consent had come reluctantly or that there had not been penetration.
- In R v Caulfield Muir JA (with whom the Chief Justice and White JA agreed said:
“R v PV is not authority for the proposition that an alleged admission is not admissible unless it is unambiguous and unequivocal in its terms. If words spoken by an accused are reasonably capable of being construed as an admission by the accused, they are admissible. It is for the jury to determine whether or not the words amount to an admission and what weight, if any, the admissions should be given….There is ample authority supporting the proposition that it is for the jury to determine whether a statement, whether oral or written, viewed as a whole and in context constitutes an admission.”
- The statement made by the applicant was in response to a dual proposition however his response needs to be considered in its full context. The applicant was proffering his apology from very early on in the conversation. He was wishing to make amends by doing “whatever it takes”. In the course of the conversation the complainant states that she hasn’t forgiven him for the “shit [he] did” and that it was a bit hard to forgive what he had done. When she asks if he remembers what he did he responds that it is what the complainant says that matters, it is then that she alleges that he “pretty much raped” her. Whilst that accusation is part of a dual proposition at no time after she levels that very serious accusation at the applicant does he query what she means or ask for clarification. He also never explains that his apology relates to something other than that very serious allegation. He continues to want to make amends and continues to apologise to the complainant. Even when the complainant indicates that the defendant has ruined her life and that she has sufficient evidence to make a complaint to police does the applicant ask for clarification of her allegation or proffer an explanation for his apology. Indeed, again the defendant states “I am sorry. Always will be”.
- The interpretation that the respondent places on the applicant’s messages is that they are capable of being read as an admission or confession to the allegation of rape made by the complainant. The applicant argues that there are other interpretations open. The applicant might have been apologising for having left the complainant so abruptly after sexual intercourse occurred; or for his communications to her twelve months later, which caused a rift in her then relationship with her boyfriend.
- In its full context the apology proffered by the applicant to the complainant’s dual allegation and the continued apologies thereafter are in my view, capable of being construed as an unambiguous and unequivocal apology for raping the complainant. That an argument can be mounted that there is another interpretation open does not detract from the admissibility of the evidence. It is for the jury, as part of their fact-finding function to determine whether the apology can be construed in the way contended for by the prosecution.
- In R v SJRC, an appeal to the New South Wales Court of Criminal Appeal, the court considered the admissibility of text messages sent by the defendant to the complainant, from which competing inferences could be drawn namely; that they disclosed sexual conduct between the defendant and complainant or alternatively that they referred to an absence of sexual conduct on the preceding Friday when acts of indecent assault and of sexual intercourse without consent were alleged to have occurred. James J said:
“38 It not infrequently happens that evidence sought to be relied on by the Crown in a criminal trial is open to more than one interpretation or is capable of giving rise to more than one inference. However, provided that the evidence is capable of bearing the interpretation or of giving rise to the interference contended for by the Crown, the fact that the defence can suggest some other interpretation or inference which would be consistent with the innocence of the accused does not, of itself, show that any probative value the evidence has is outweighed by the danger of unfair prejudice.
39 It is part of the function of the jury as the judges of the facts to determine what interpretation should be given to evidence they accept and to determine what inferences should be drawn from evidence they accept. It is frequently part of the function of the jury to determine which, if any, of a number of competing inferences should be drawn.
40 Some remarks made by McPherson J of the Queensland Court of Criminal Appeal in R v Berrill  Qd R 508, which were quoted with approval by the New South Wales Court of Criminal Appeal in R v Kalajzich (1989) 39 A Crim R 415 at 430 were directed to evidence relied on by the Crown as corroboration but are of general application. McPherson J said in part:- “Whether it (the evidence in question) in fact bears the interpretation placed upon it by the prosecution is a matter of inference, and as such, a matter of fact for the jury to whose decision it should ordinarily be left…For the judge to withdraw it from the jury simply because some possible alternative inference is open involves a usurpation of the jury’s function…”
- As I have determined that the message exchanges are capable of carrying the interpretation contended for by the prosecution, they are admissible.
- The applicant, in the alternative, applies for exclusion of the message exchanges on the basis that the probative value of the evidence is slight compared to the prejudicial effect of it or that the admission of the evidence would result in an unfair trial.
- The applicant argues that his response to the complainant’s allegations is so ambiguous that it cannot amount to a reliable confession that he raped her. Reliance is placed on the decision of McGill DCJ in R v Hasanov in which he excluded evidence of an apology proffered in text messages in the exercise of his discretion. He considered that the issue of the reliability of the evidence was best tested by asking whether, if the essential facts constituting the charge had not occurred, the defendant nevertheless might well, in such a situation, have made the statements relied on as an admission. The circumstances in which the confessional statements were made in that case were after the complainant had said to the defendant “I am not going to the police, I just want you to admit what you did and apologise for what you did”. McGill DCJ considered that the defendant’s background being in a foreign country, studying with the support of his government so that a complaint to the police could well have more significant problems for him than for someone else, that a statement of this nature could well prompt an admission and apology for conduct which had in fact not occurred. There were other features which cast doubt on the reliability of the admissions made. McGill DCJ found that there was a real possibility that the defendant might have made an admission that digital penetration was possible even if that had not occurred as that might have been seen as a means of deflecting the accusation of penile penetration or that the admissions might have been prompted by a desire to persuade the complainant not to go to the police about the matter.
- Ultimately McGill DCJ, whilst considering the statements admissible, excluded some of them in the exercise of his discretion on the basis that they were unreliable and because he considered that a jury could attribute more significance to the evidence than was appropriate.
- Whilst it might have been a useful way for McGill DCJ to assess the reliability of the statements against interest in Hasanov, there is no authority cited before me to the effect that the test to be applied is whether the statement might still have been made if the alleged rape had not occurred. McGill DCJ was not referred to the decisions of R v PV ex parte Attorney General (Qld) or R v Caulfield or R v SJRC. I do not consider it helpful to assess the message exchanges in this case in the manner in which McGill DCJ did in Hasanov.
- Evidence ought to be excluded when it is of relatively slight probative value and the prejudicial effect of its admission would be substantial. The term “prejudice” used in this context refers to a danger that a jury might use the evidence improperly or in a way which goes beyond its probative value or give it more weight than it deserves or where the nature of the evidence might divert the jury from their task. Prejudice does not arise simply from the tendency of the admissible evidence to inculpate an accused. It is “unfair prejudice” which is in question.
- It is contended by the applicant that a prejudice arises because in looking for evidence supportive of the complainant, a jury could give the statements of the applicant greater weight than they deserve regardless of the directions given them by the trial judge. Further, the evidence requires the jury to engage in speculation.
- As stated, there is a clear and plain inference open that the apology relied upon by the respondent is an admission to having raped the complainant. The fact that there is another interpretation open consistent with the innocence of the applicant does not of itself mean that the probative value of the evidence is outweighed by the prejudicial effect of it. It is unfair prejudice which is to be guarded against. As the evidence is open to the interpretation contended for by the prosecution it is for a jury, properly directed, to determine the meaning behind and the weight to be attributed to, the applicant’s statements. The only prejudice which arises is from the tendency of the evidence to inculpate the applicant.
- The trial judge will necessarily have to direct the jury with respect to the alternative arguments advanced in relation to the message exchanges. If a jury upon a consideration of the whole of the evidence which may include an explanation from the applicant, is not satisfied that the message exchanges can be characterised as an apology for raping the complainant, then in the context of the trial, the evidence would carry very little, if any, weight in a consideration of the real issue being whether the evidence of the complainant as to what occurred can be accepted beyond reasonable doubt as honest and reliable. I do not consider that a jury would give the evidence greater weight than it deserves.
- Lastly the applicant relies on the residual discretion to exclude a confession if the reception of it would lead to an unfair trial. It is argued that the complainant’s dual propositions and the ambiguity which therefore attends the applicant’s response, when considered against the background that the event which gives rise to the charge occurred some 10 years earlier and the real risk that the complainant and applicant were speaking at cross-purposes, means that the applicant’s trial would be unfair.
- As indicated I do not consider the applicant’s apologies ambiguous. They are plainly open to the interpretation for which the prosecution contends, that is, that they are an admission to having raped the complainant. It is for a jury to determine therefore whether the apology contained in the exchange amounts to an admission to having raped the complainant having regard to the trial judge’s directions; and the alternative arguments advanced, including the possibility of ambiguity; and, any evidence that the appellant might give explaining the exchange. I do not consider that the reception of this evidence will produce an unfair trial.
- The application is refused.
- Published Case Name:
R v Lloyd
- Shortened Case Name:
R v Lloyd
 QDCPR 1
Loury QC DCJ
03 Feb 2022