R v Dickinson[2022] QDCPR 86

DISTRICT COURT OF QUEENSLAND

1. [1]
   By application filed, in amended form, on 10 November 2022, the defendant sought a ruling pursuant to s 590AA of the Criminal Code that some critical evidence sought to be relied upon by the prosecution is not admissible, or should not be admitted, against him.
2. [2]
   The order made upon the hearing of this application on 14 November 2022, was:

“The evidence of the text messages sent by the complainant on 23 June 2021 (allowing for conversion to EST) and the statement given by the complainant on 23 June 2021 are not to be admitted upon the trial of the defendant on indictment 194/22.”

What follows are the reasons for that conclusion.

3. [3]
   Some relevant circumstances are that on 11 July 2022 an indictment was presented charging the defendant, respectively in counts 1 through 4, with offences of assault occasioning bodily harm (on 10 June 2021), attempted suffocation in a domestic setting (on 16 June 2021), choking in a domestic setting (on 16 June 2021) and wilful damage (on 23 June 2021).  Each is averred to be a domestic violence offence and to have been committed against the same complainant.  The defendant had remained remanded in custody in relation to this matter.  His trial was listed for hearing in the week commencing 14 November 2022 but, on that day, this amended application was heard.
4. [4]
   The application put in issue the intention of prosecution to rely upon s 93B of the Evidence Act 1977 (“Evidence Act”), to have past assertions of the complainant in respect of these allegations admitted into evidence, in her absence as a testifying witness and to alternatively seek recourse to discretionary exclusion of any such evidence, pursuant to s 98 and/or s 130 of the Evidence Act.
5. [5]
   The catalyst for this application is the understanding that the prosecution of each indicted allegation is critically dependent upon the assertions of the complainant in support of each of them and that the prosecution relies upon evidence that she had, since 12 October 2022, been an impatient at the Sunshine Coast University Hospital, receiving palliative care for a diagnosis of advanced gastric cancer.  The position as stated in various reports provided by various doctors who have been involved in the complainant’s care and as confirmed in evidence given by Dr Neate, upon the hearing, is that she is, due to her condition and the medication of it, mentally and physically incapable of giving evidence as to those assertions, within the meaning of s 93B of the Evidence Act.  Indeed, her situation is described as being in terms of a life expectancy which is measured in terms of no more than weeks.
6. [6]
   Although this position was put in issue for the applicant, it was not in consequence of Dr Neate’s oral evidence (in the context of earlier similar reports as to the complainant’s situation and prognosis) understood to be pressed, in the context of further explanation that the evidence of this doctor might be also relevant to the applicant’s reliance upon discretion grounds for the exclusion of such evidence. In short, the effect of that evidence was that at the end of October 2022, the complainant was unable to eat and drink, physically weak and sleepy, had limited mobility due to severe weight loss and muscle wastage and without cognitive ability to give evidence particularly in the context of her medication for pain relief and nausea. This situation was not expected to improve.
7. [7]
   Accordingly and upon that basis, the prosecution seeks to utilise s 93B to rely upon the past assertion, by the complainant, of facts (which it may be accepted related to her personal knowledge) to others.  That is and as potentially permitted by s 93B(2), to overcome a fundamental rule of evidence regularly applied in proceedings of this kind, being the rule against hearsay evidence. That provision is:

“93B Admissibility of representation in prescribed criminal proceedings if person who made it is unavailable

3. (1)
   This section applies in a prescribed criminal proceeding if a person with personal knowledge of an asserted fact—

2. (a)
   made a representation about the asserted fact; and

2. (b)
   is unavailable to give evidence about the asserted fact because the person is dead or mentally or physically incapable of giving the evidence.

3. (2)
   The hearsay rule does not apply to evidence of the representation given by a person who saw, heard or otherwise perceived the representation, if the representation was—

1. (a)
   made when or shortly after the asserted fact happened and in circumstances making it unlikely the representation is a fabrication; or
2. (b)
   made in circumstances making it highly probable the representation is reliable; or
3. (c)
   at the time it was made, against the interests of the person who made it.

3. (3)
   If evidence given by a person of a representation about a matter has been adduced by a party and has been admitted under subsection (2), the hearsay rule does not apply to the following evidence adduced by another party to the proceeding—

1. (a)
   evidence of the representation given by another person who saw, heard or otherwise perceived the representation;
2. (b)
   evidence of another representation about the matter given by a person who saw, heard or otherwise perceived the other representation.

4. (4)
   To avoid any doubt, it is declared that subsections (2) and (3) only provide exceptions to the hearsay rule for particular evidence and do not otherwise affect the admissibility of the evidence.
5. (5)
   In this section— prescribed criminal proceeding means a criminal proceeding against a person for an offence defined in the Criminal Code, chapters 28 to 32. representation includes—

   1. an express or implied representation, whether oral or written; and
   2. a representation to be inferred from conduct; and
   3. a representation not intended by the person making it to be communicated to or seen by another person; and
   4. a representation that for any reason is not communicated.”

8. [8]
   On this application, the prosecution recognised that there could not be reliance upon s 93B in respect of the allegation in Count 4, of wilful damage on 23 June 2021, as it is not an allegation of a prescribed offence, as defined.  Accordingly, the application proceeded upon the basis of the stated intention of the prosecution to enter nolle prosequi in respect of Count 4 and also Count 1, leaving only the allegations in Counts 2 and 3, as the acts of the defendant on 16 June 2021 and respectively charged as attempted suffocation and choking, in a domestic setting in each instance.
9. [9]
   However, the prosecution nevertheless sought the admission of all of the assertions made by the complainant in a written statement made by her on 23 June 2021 and therefore more immediately consequent to the allegation which had been the subject of Count 4.  Relevantly, the statement referred to the events of 23 June 2021, only in the following passage:

“22. I haven’t told anyone about these things other than my friend Melissa and my ex-fiancée.

23. But on Wednesday 23 June David lost it again.  He threw a bicycle through the front window of my house, smashing it.  I went out the back and called Police and when they came David had already left.
24. I went to Caloundra Police Station with them where I gave them this statement.”

10. [10]
    Other than those assertions relating to the proof of Counts 2 and 3, it was contended that the other assertions relating to the allegations which had been charged as Counts 1 and 4, nevertheless remained otherwise admissible pursuant to s 132B of the Evidence Act, as relevant evidence of the history of the domestic relationship between the defendant and the complainant.

11. [11]
    In respect of the intention to prosecute Counts 2 and 3, it was contended that reliance upon s 93B(2)(b), permitted the admission of the entirety of the written statement given by the complainant on 23 June 2021 and also her assertion by way of text message to a friend (as retrieved from the complainant’s mobile telephone): “Help he suffocate me other day”, in the context of records indicating telephone calls between the two of them on the morning of 23 June 2021 and the immediate context of the following text messages sent by the complainant:

8.52.13 Oh fuck Dave here fuckn going off n trashing place again nearly moved out I need help

8.52.41ASAP can u call help cops to remove him ???

8.55.28Help he suffocate me other day

8.55.42He’s mental n violent as fuck

9.00.42I’m locked in bathroom, he’s fucked up manic, scatters, peaceful he been out for 2days but fuck I just started clean up b4 again he’s taken all my Val n painkillers ect after u left n been physic since n Roxy fuckn scared as fuck he’s fkn horrid!”^[1]

12. [12]
    In the context of reference to the review of authority undertaken and conclusions reached, in R v JAI^[2] and particularly in reference to R v Robertson^[3] and Sio v The Queen,^[4] the prosecution approach sought to place much reliance upon what was contended to be an evident sense of spontaneity of the assertion in the text message:

“Help he suffocate me other day”.  However, it is necessary to understand that the prosecution reliance was upon this as the springboard to the admission of the written statement, given in obviously different circumstances later that day, as it is the reliance upon this statement which provides the necessary elaboration and evidence as to each of the elements of Counts 2 and 3, particularly as to the allegation of the separate acts referable to each charge and also the additional evidence to be relied upon pursuant to s 132B of the Evidence Act.  In other words, the prosecution approach was an all or nothing approach and did not seek to separately contend for the admission of the evidence as to the text message without the necessary evidence to be obtained from the later written statement.

13. [13]
    It may therefore be seen that the prosecution approach is appropriately directed at what was observed in Robertson to be the narrower approach and as confirmed in Sio as the appropriate approach to a cognate provision in the Evidence Act 1995 (NSW).^[5]  That is, in identification of focus upon the circumstances of or in which an assertion is made, rather than upon what might be gleaned as to any apparent reliability in the sense of truthfulness of what is asserted.  As explained in Sio:

“[69] In R v Ambrosoli, Mason P, with whom Hulme and Simpson JJ agreed, while discussing s 65(2)(c) of the Evidence Act, said that the provision seeks to focus attention upon the circumstances of the making of the representation to determine the likelihood of its reliability, but that:

“evidence of events other than those of the making of the previous representation [can] throw light upon the circumstances of the making of that representation and its reliability as affected thereby.”

[70]That observation may be accepted. The focus of attention of a trial judge tasked with ruling upon the admissibility of a representation is directed by s 65(2)(d)(ii), not to the apparent truthfulness of the person making it, but to the objective circumstances in which it was made. The issue is whether the trial judge is affirmatively satisfied that, notwithstanding the hearsay character of the evidence, it is likely to be reliable evidence of the fact asserted.

[71]When one focuses upon the particular representation which conveys the asserted relevant fact, it can be seen that the circumstances in which that representation was made may include other representations which form part of the context in which the relevant representation was made. A representation may be demonstrably unreliable because it is followed by a specific retraction of the assertion of the  relevant fact. Statements made by the representor that are demonstrably or inherently incredible, fanciful or preposterous may be circumstances forming part of the context in which a relevant representation is made which tend against a positive evaluation of the likely reliability of that representation. But it is unnecessary to gloss further the statutory language. In particular, it is not profitable to seek to multiply examples of other circumstances which assist the trial judge to conclude that a representation is unlikely to be reliable. It is to risk being distracted from the task set by s 65(2)(d)(ii) to be overly concerned with what circumstances may properly be taken into account to determine the unreliability of a representation. The true concern of the provision is with the identification of circumstances which of themselves warrant the conclusion that the representation is reliable notwithstanding its hearsay character.

[72]Section 65(2)(d)(ii) requires the making of an evaluation by the trial judge which positively satisfies the trial judge that the representation is likely to be reliable by reason of the circumstances in which it was made. As was noted in IMM v R, ss 65(2)(c), (d) and 85 provide “[t]he only occasion for a trial judge to consider the reliability of evidence, in connection with the admissibility of evidence”. It is desirable to emphasise, however, that the whole point of s 65(2)(d)(ii) is that, where the circumstances in which the statement is made are likely to ensure, as a practical matter, that the asserted fact truly occurred, the fairness of the trial does not require a positive judgment by the tribunal of fact about the reliability of the maker of the statement. Attention is directed by the language of s 65(2)(d) to an assessment of the circumstances in which the statement was made to establish its likely reliability, rather than to a general assessment of whether or not it is likely that the representor is a reliable witness. This is precisely because the representor will not be a witness at the trial.” (citations omitted and emphasis added by underlining)

14. [14]
    It may be noted that in Sio, those observations were in respect of the application of s 65(d)(ii) of the NSW Evidence Act, which provided for the admission of representations as hearsay, if the representation:

1. “(d)
   was:

….

1. (ii)
   made in circumstances that make it likely that the representation is reliable.”

It should also be noted that, in the application of the provision in s 93B(2)(b), what confronts the prosecution here is the even higher requirement for a conclusion as to the relevant circumstances “making it highly probable the representation is true”.

15. [15]
    Although it may be acknowledged that, in contrast to s 93B(2)(a), sub-paragraph (b) does not expressly contain limitation of application in terms of any sense of contemporaneity, it is to be observed that in terms of reliance upon both the text message and the representations in the written statement, there is no such connection to the events of 16 June 2021, as charged in Counts 2 and 3. However and irrespective of what may be made of the circumstances of the making of the representations in the text messages, it is necessary to apply s 93(2)(b) to each of the representations sought to be admitted. The written statement, whilst made in related circumstances, necessarily contains representations made in quite different and essentially testimonial circumstances. As noted in the respect of the review of authority undertaken in JAI,^[6] there is both an absence of authoritative support and principled support for the application of this provision to representations made in a testimonial sense. 
16. [16]
    As has been noted, it was the written statement which was necessarily the real interest of the prosecution and like the conclusion reached in JAI,^[7] again in adaption of the words of the High Court in Sio, it is not open to be positively satisfied that the circumstances of the making of that written statement were such as to make it highly probable that any representation contained in it is reliable.
17. [17]
    As to the various alternative contentions made for the applicant as to grounds for discretionary exclusion of this evidence, there was difficulty in discerning any ground which was wholly separated from considerations related to the proposed use of the evidence in the absence of ability to cross-examine the maker of the representations, including anything particularly pressed as arising out of the medical evidence and as to any considerations arising as to the conduct of this case by the prosecution. 
18. [18]
    There would be necessity to consider the application of the more specifically applicable provision in s 98 of the Evidence Act, as well as attempting to discern whether any basis is demonstrated for engagement of any of the identified bases for  exclusion on the grounds of unfairness, as contemplated by s 130 of the Evidence Act,^[8] and perhaps beyond what might be engaged pursuant to s 98 in terms of it appearing “to be inexpedient in the interests of justice” that the representation should be admitted. And further necessary to understand that such considerations would necessarily arise in respect of evidence which had both been determined to have been made in circumstances making it highly probable that the representation is reliable and where it is implicit that the maker of the representation is unavailable to be crossexamined upon it.

19. [19]
    For two particular reasons, it is both unnecessary and undesirable to attempt any further discussion of the alternative contentions:

    1. (a)
       first, upon the ruling, which has noted above, being made on 14 November 2022, the prosecutor discontinued the prosecution of all four counts on the indictment by entry of nolle prosequi; and
    2. (b)
       secondly and in the absence of any identified circumstances giving rise to the necessary conclusion of high probability of reliability, it is essentially a meaningless and inutile exercise to attempt to consider such contentions.