R v Malcolm[2023] QDCPR 105

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The Crown, hereafter referred to as 'the applicant', makes an application for a ruling pursuant to s 590AA of the Criminal Code 1899 (Qld) that:

Pursuant to s 110A(13) of the Justices Act 1886 (Qld) the written statements of MIH ('the complainant'), dated 11 March 2019 and 22 March 2021, are admissible and are to be read in the trial of Daniel Jock Malcolm ('the defendant').

2. [2]
   It is relevant here to set out the procedural history of this matter. On 2 March 2023, the defendant, hereafter referred to as 'the respondent', was committed for trial, by way of registry committal, to the District Court at Townsville. On 2 April 2023, the complainant deceased. On 10 July 2023, an indictment was presented in the District Court at Townsville, charging the respondent with the following offences:

Count 1: Indecent treatment of a child under 16 (indecent film etc), under 12

Counts 2,3,5 & 6: Indecent treatment of a child under 16 (procure to commit), under 12 [x 4]

Count 4: Indecent treatment of a child under 16, under 12

Count 7: Indecent treatment of a child under 16 (expose), under 12.

3. [3]
   The totality of the charges are particularised as having occurred on dates unknown between 11 July 1998 and 7 December 1999.On 14 July 2023 the respondent entered pleas of not guilty to all seven counts on the indictment.

The alleged offending

4. [4]
   The applicant provided a statement of facts as well as a summary of the offending in the written outline tendered at the hearing. The offending can be summarised as follows:

   1. The offending occurred on a single occasion on a date unknown between 11 July 1998 and 7 December 1999.
   2. The respondent was aged 15-17 during the charged period. I pause to note here that there is some contest, relevant to this application, regarding the age of the respondent at the time of offending, but I will come to that later in these reasons.
   3. The complainant was aged between 6-7 years during the charged period.
   4. The respondent and complainant were step-cousins.
   5. The complainant and her brother were being 'babysat' by the respondent and his step-sister.
   6. The complainant and her brother were in the respondent's bedroom, the respondent showed them pictures contained in a pornographic magazine (Count 1). The respondent then directed the complainant's brother to leave the room and locked the door.
   7. The respondent then pulled down his pants so that he was naked, exposing his penis. He removed the complainant's nightgown. He put his hand on the back of the complainant's head, pushed her head down and made her suck his penis (count 2).
   8. The complainant told the respondent she didn't like it; he told her that she could use her hand instead, which she did (count 3).
   9. The respondent then directed the complainant to lay down on his bed, before performing oral sex on her (count 4). The respondent then directed the complainant to masturbate his penis (count 5).
   10. They moved to the floor, where the respondent asked the complainant to again perform oral sex on him. She said she did not like it. The respondent told her she could use her hand, which she did (count 6).
   11. The respondent then ejaculated on the pornographic magazine in front of her (count 7). The respondent then asked the complainant to taste the ejaculate, which she refused to do.
   12. The respondent's step-sister knocked on the door. The respondent pulled his pants up and put the nightie back on the complainant. The step-sister knocked again and asked "hey what are you doing" to which the respondent replied that he was showing the complainant his bottle collection.
   13. Sometime after this the complainant was told by the respondent that what happened was a secret and not to tell anyone as "that's just what cousins do to play".
5. [5]
   The offending came to the attention of the complainant's mother the day after the complainant returned home, when whilst having a bath, the complainant asked her "Mum, what's that white stuff that comes out of boys doodles?".
6. [6]
   On the 25th of February 2019 the complainant disclosed the offending to Victoria Police. She provided a formal statement on 11th March 2019.
7. [7]
   Proof of the particulars of the offending relies on the complainant's statement. There is evidence capable of corroborating various aspects of the complainant's account, but, as is conceded by the Crown, the case against the respondent relies substantially on the evidence of the complainant. The complainant's statement is the only evidence capable of sustaining the particulars of each of the offences, with perhaps, it was suggested, the exception of count 7. Accordingly, the complainant’s statement is highly probative in the case against the respondent.

Legislative scheme governing the application

8. [8]
   The applicant applies for a ruling under s 590AA of the Criminal Code 1899 (Qld) that, pursuant to s 110A(13) Justices Act 1886 (Qld), the written statements of the complainant are admissible and are to be read in the trial of the respondent. That section is in these terms:

110A Use of tendered statements in lieu of oral testimony in committal proceedings

(13) A written statement admitted in accordance with this section may, when the defendant has been committed by justices to be tried for an indictable offence, without further proof be read as evidence on the trial of the defendant, whether for the offence for which the defendant has been committed for trial or for any other offence for which an indictment shall be presented, arising out of the same transaction or set of circumstances as the offence for which the defendant has been committed for trial, and whether or not combined with other circumstances, if—

1. the written statement purports to be signed in the manner prescribed by the person making it and by the justices before whom it purports to have been tendered as evidence; and

2. the condition mentioned in section 111 (3)(a), read with the words ‘written statement’ substituted for the word ‘deposition’ where twice occurring, is satisfied.

9. [9]
   The conditions for the admission of a written statement under s 110A(13) were considered by Clare DCJ in R v Wallis [2011] QDC 25. In that decision, her Honour set out the requirements for satisfaction of the test in s 110A by proving the following circumstances, set out at paragraph [25], to be:

   1. the charge on indictment arises out of the same transaction or set of circumstances as the offence for which the accused was committed for trial;
   2. the statement is in writing;
   3. it was admitted at the committal proceeding in accordance with section 110A;
   4. the trial is for an offence arising out of the same set of circumstances as the offences for which the defendant was committed for trial;
   5. the statement is signed by the witness and the magistrate; and
   6. either: the defence has given the prescribed notice that the witness is not required, or it is proved, by credible sworn evidence, that the witness is so ill that he is unable to travel or is indisposed in other specified ways.
10. [10]
    Additionally, her Honour referred to the procedural requirement, pursuant to s 111(3)(a) of the Act that the death of the witness be proved 'at the trial'.^[1] At the hearing, both parties agreed that there was evidence before the court that the complainant is this matter was deceased and that the application could proceed on that basis.
11. [11]
    Section 111(3) is in these terms:

111 Depositions of persons dead, absent etc.

3. The conditions mentioned in subsections (1) and (2) are the following—

(a) the deposition or the transcription of the record of evidence must be the deposition or the transcription of the record of evidence either of a witness whose attendance at the trial is not required by the accused person, in accordance with the provisions of the Criminal Law Amendment Act 1892, section 4 and which accused person has duly signed the statement in the manner provided by the said section 4 and the schedule to that Act, or of a witness who is proved at the trial by the oath of a credible witness to be dead or insane, or so ill as not to be able to travel, or to be kept out of the way by means of the procurement of the accused or on the accused’s behalf;

(b) it must be proved at the trial, either by a certificate purporting to be signed by the justices before whom the deposition purports to have been taken or before whom the evidence or statement was given or made or by the clerk of the court or any person acting as such, or by the oath of a credible witness, that the deposition was taken or the evidence or statement was given or made in the presence of the accused unless the accused was excluded from the proceeding whereat such deposition was taken or such evidence or statement was given or made pursuant to the provisions of section 40 or, where the deposition, evidence or statement was taken, given or made in a case where and at a time when the accused was not required to be present in person, that the same was taken, given or made in the presence of the accused’s lawyer and that the accused or the accused’s lawyer had the full opportunity of cross-examining the witness;

(c) the deposition must purport to be signed by the justices before whom it purports to have been taken.

The registry committal process

12. [12]
    Registry committals are governed by the provisions contained within Division 7A of the Justices Act. The requirements of s 110A(13) require reference to Division 7A, and in particular, sections 114 and 116.
13. [13]
    Section 116 provides for the limited application of Divisions 5 to 7 for registry committals. It is in these terms:

116 Limited application of div 5 to 7 for registry committals

(1) If there is a registry committal, subject to subsection (2), it takes the place of the procedures relating to committal for trial or sentence that would otherwise apply, or would otherwise continue to apply, under divisions 5,6 and 7 .

(2) Section 110A(12) to (15), and any other provision of this or another Act directly or indirectly referred to in section 110A(12) to (15), have effect for a registry committal, to the greatest practicable extent, as if a reference to a written statement admitted in accordance with section 110A were a reference to a written statement given in evidence for the registry committal (other than the evidence of any affected child under the Evidence Act 1977, part 2, division 4A, given under the requirements of that division).

14. [14]
    In R v Alberto Masiano Aoese,^[2] Lynham DCJ considered the registry committal process's impact on the application of s 110A(13), and made the following salient points:^[3]

    1. The requirements of s 110A(13) must be read in light of the provisions of Division 7A Justices Act;
    2. Where a defendant is committed to the District Court via a registry committal, then, as is obvious from s 114, no justice will preside over the committal and therefore the requirement contained within s 110A(13) that a written statement also be signed by the justice before whom it purports to have been tendered could never be satisfied;
    3. The effect of s 116 is to deem a written statement given in evidence for a registry committal as being the same as a written statement admitted in accordance with s 110A. The inclusion of this provision was clearly directed at addressing the requirement in s 110A(13) that a written statement signed by the justices before the committal was conducted where for a registry committal that requirement could never be satisfied.
15. [15]
    At the hearing, and as detailed in the written outlines provided, both the applicant and respondent accepted this construction to be correct and applicable to this matter.
16. [16]
    I accept that, and find that the conditions set out in s 110A(13), when read with ss 111(3)(a) and 116, are satisfied and accordingly, that the written statements of the complainant are, prima facie, admissible.

Issues for determination

17. [17]
    Notwithstanding a finding that the complainant's statements are admissible under s 110A(13) of the Justices Act, the Court retains discretion to exclude the statements pursuant to s 130 of the Evidence Act 1977 (Qld), which is in these terms:

130 Rejection of evidence in criminal proceedings

Nothing in this Act derogates from the power of the court in a criminal proceeding to exclude evidence if the court is satisfied that it would be unfair to the person charged to admit that evidence.

18. [18]
    The respondent emphasised that in addition to, or in support of, the discretion available under s 130, the Court would find that to admit the complainant’s statements would deprive the respondent of his right to cross-examine the complainant, a right which is now contained within the Human Rights Act 2019 (Qld) (‘HRA’).^[4]  It is the contravention of this right which is a factor that was said to go to the issue of fairness, and is squarely relevant to the exercising of the discretion to exclude or admit evidence under s 130.
19. [19]
    There is no authority or jurisprudence on this section of the relatively new human rights legislation, and it was the interpretation of this right and how it applies to my discretion that occupied much of the submissions at the hearing. As will become clear in my reasons, the construction of the HRA provision requires consideration of the function of the discretion under s 130, and accordingly, I intend to deal with it in the course of my analysis of the provision, rather than by dealing with it separately. It will, I hope, become clear, that I consider that the HRA provision is directly relevant to the fairness discretion, and can be dealt with harmoniously in considering the particular issues arising with respect to the HRA in this matter.

Relevance of the HRA to the Court’s function under s 130 of the Evidence Act

20. [20]
    The respondent contends that, in exercising the Court's discretion under s 130 of the Evidence Act, s 5(2)(a) of the Human Rights Act requires the court to apply or enforce rights, particularly, s 32(2)(g), which relate to the proceedings.
21. [21]
    In undertaking an analysis of whether, in fact, this section does require the court to apply or enforce the right, I must consider two points:

    1. Does s 5(2)(a) apply in regards to s 32(2)(g), the right to examine, or have examined, a witness?
    2. If it does apply, is the effect to bind the Court to act compatibly with the right, or rather, to consider it as part of the proper exercise of its discretion under s 130 of the Evidence Act?^[5]

Does the Human Rights Act apply?

22. [22]
    I will first consider whether s 5(2)(a) of the HRA applies. It is in these terms:

5 Act binds all persons

2.  This Act applies to—

(a) a court or tribunal, to the extent the court or tribunal has functions under part 2 and part 3, division 3;

23. [23]
    The right to examine, or have examined a witness, as contained within the HRA, is in these terms:

32 Rights in criminal proceedings

2.  A person charged with a criminal offence is entitled without discrimination to the following minimum guarantees—

(g) to examine, or have examined, witnesses against the person

24. [24]
    In Attorney-General v Grant (No 2) [2022] QSC 252, Applegarth J considered s 5(2)(a) of the Act and the extent of its application in court proceedings; that is, whether a Court is bound to act compatibly with the right, or alternatively, whether the Court simply considers the right as part of the proper exercise of its discretion.^[6]
25. [25]
    In making that determination, his Honour first considered the 'functions' of the Court under part 2 of the Act as they relate to the application of s 5(2)(a). It was contended by the intervenor^[7] in that matter that the provision did not require all human rights to be directly applied by the Court, and instead, with reference to the 'intermediate interpretation' of the provision, only those rights which relate to court and tribunal proceedings are directly applicable.^[8]
26. [26]
    Although there are numerous human rights contained in part 2, with reference to the reasoning of courts in Victoria and in this State about the effect of s 5(2)(a) (or of the equivalent provision in Victoria [s 6(2)(b)] of the Charter of Human Rights and Responsibilities Act 2006 (Vic)), Applegarth J held that the functions referred to in s 5(2)(a) are the functions of applying or enforcing only those human rights that relate to court proceedings.^[9] It was explained that, to adopt a broad interpretation of s 5(2)(a), and apply all those rights contained within Part 2 to the functions of a court would be unsustainable.^[10]
27. [27]
    In consideration of his Honour's preference for an 'intermediate interpretation’ of s 5(2)(a) (as opposed to a 'narrow construction'), Applegarth J found that the HRA was enacted against a background of authorities that adopt the intermediate construction of the identical Victorian provision, and that those authorities should be followed unless there is a compelling reason not to do so.^[11]  His Honour went on to say:^[12]

“Adopting the intermediate construction of s 5(2)(a) means that the “functions” of courts and tribunals are the functions of applying or enforcing those human rights in Part 2 that relate to that proceeding. " (emphasis added)

28. [28]
    His Honour referred to this ‘intermediate interpretation’ as having been adopted by the superior courts in Queensland,^[13] which focuses the exercise on the function the court is performing with reference to the rights which relate to the function.^[14] With reference to support for that approach in the Victorian and Queensland authorities, I consider that the intermediate approach is correct and preferrable to the 'narrow construction' and I adopt it in my analysis of the application of the provision to this matter.
29. [29]
    For the purposes of this limb of the test, it seems uncontroversial that the right contained within s 32(2)(g), the right to examine a witness, is a right which relates to court proceedings. Cross-examination is an integral feature of the testing of evidence in adversarial system of criminal justice^[15] and this can be accepted as a general proposition for the purpose of this determination. Accordingly, the application of the right is engaged in these proceedings.  I move then, to what I propose as the second limb of this test.

Does the HRA bind the Court in the exercise of its discretion?

30. [30]
    The uncertainty on whether the court would be required to consider a right as opposed to enforce a right, it was said, comes from a difference in approach in two Victorian decisions. Neither of those decisions have comparable factual circumstances to the matters in consideration here, however, regard to the principles emerging from those cases assist in understanding the divergence in approach.
31. [31]
    In Victoria Police Toll Enforcement v Taha [2013] VSCA 37, the Victorian Court of Appeal held that, by reason of the comparable Victorian provision,^[16] the magistrate was under an obligation to give effect to the right to a fair hearing, and in failing to do so, acted "incompatibly with the Charter".
32. [32]
    In Cemino v Cannan [2018] VSC 535, Ginnane J of the Victorian Supreme Court held that the magistrate was required to consider certain Charter rights in exercising a specific discretionary power (the power to transfer proceedings to the Koori Court).
33. [33]
    Although it was said that these decisions represent a distinguishable approach to interpretation of the comparable provision, his Honour Justice Applegarth said of the difference, at [103]:^[17]

"I regard the suggested differences between these approaches as more apparent than real. The application of a particular right depends on the function being performed, the relevant right and the issue in the particular proceedings. In some contexts, an act or omission by a court may simply be incompatible with a right, such as the right to a fair hearing. In the circumstances, the relevant right may explicitly or implicitly require the court to enforce the right by acting in a certain way".

34. [34]
    The difference in approach, therefore, can be taken to be determined entirely by the nature of the right, how the right interacts with the relevant proceedings, and the factual circumstances of the case.
35. [35]
    It was then explained that the 'functional approach' to the issues should be taken, in considering the function the Court is performing and identifying the rights that relate to that function.^[18] This approach, it was said, may require consideration of rights that relate to the substance of the function the court is exercising, not simply the court’s process.^[19]
36. [36]
    In determining whether the court must act compatibly with the right to examine a witness, or rather, take the right into account in exercising its discretion, I will adopt the considerations set out by his Honour in AG v Grant.^[20] With regard to the relevant considerations by his Honour in that decision, I have deduced the following relevant steps for determining the actual engagement or application of a right contained within Part 2 for courts to be:

1. A consideration of the function the Court is performing;
2. A determination of whether the relevant right relates to that function; and
3. A consideration of the scope of the right in the issues in the proceeding, and any countervailing features which arise.

The relevant function

37. [37]
    In these proceedings, the function of the Court relates to a discretion to exclude or admit evidence for the purpose of a criminal trial under s 130 of the Evidence Act 1977 (Qld). Accordingly, the function is a specific discretionary power like that considered in Cemino v Cannon (2018) 56 VR 480.
38. [38]
    In AG v Grant, Applegarth J, at [104] and with reference to Cemino, said:

“In other contexts, like Cemino, the function is the exercise of a specific discretionary power. The relevant right is one matter to be taken into account in the exercise of a discretion. Other matters may warrant consideration having regard to the terms and purpose of the power that creates the discretion. To say in that context that the Court must act “compatibly” with the relevant Part 2 right may be awkward or ambiguous. If it is taken to mean apply or enforce the right by considering it along with other matters, then it simply means that the right should be taken into account in performing the Court’s function of exercising the discretion. To say, however, that it means the Court must make a decision so as to give effect to the right to the exclusion of other considerations may be inconsistent with the nature, scope and purpose of the power, and therefore incorrect." (emphasis added)

39. [39]
    This issue, his Honour said, highlights the need to have regard to the specific function the court is performing, the relevant right, and the circumstances of the case in applying the functional approach. With reference to a specific discretionary power, such as the s 130 discretion I am tasked with exercising, his Honour said:^[21]

"The specific legal and factual context may require the Court to enforce a right or it may require the Court to apply the relevant Part 2 right, along with other rights and considerations in exercising the discretion. Countervailing rights and considerations may be matters that justify a limitation on the relevant Part 2 right…"

40. [40]
    Applying the 'functional approach' to the facts and circumstances of this matter, the 'function' the court is tasked with in exercising the discretion under s 130 is to either:

(a) permit the written statements to be read at trial; or

(b) exclude the written statements on the basis that it would be unfair to the respondent to admit the statement.

41. [41]
    The respondent argues that the right contained within s 32(2)(g) of the HRA is a right which relates to the function being performed by the Court; that is, whether to exclude or admit the written statements in consideration of fairness to the respondent. My analysis of the interaction of this right in the exercise of this discretion, therefore, necessitates a consideration of the discretion conferred by s 130.

The fairness discretion

42. [42]
    The discretion under s 130 gives the Court power to exclude evidence if the Court is satisfied that it would be unfair to the person charged to admit that evidence. Of the ‘unfairness’ referred to within the statute, it has been said: ^[22]

"Unfairness then relates to the right of an accused to a fair trial; in that situation the unfairness discretion overlaps with the power or discretion to reject evidence, which is more prejudicial than probative, each looking to the risk that an accused may be improperly convicted.”

43. [43]
    It is relevant here to set out the issues which are said to affect the discretion. There were extensive submissions made regarding specific features of the evidence and how they give rise to unfairness. I have deduced the below summary of the issues which are submitted by the respondent, in both written and oral submissions, to affect the discretion in giving rise to 'profound unfairness and an incurable forensic disadvantage':

    1. The complainant provides the only direct evidence of the alleged offending, and a formal statement was not provided until 19 years after the alleged offending;
    2. Where there are significant discrepancies in the disclosures made by the complainant to others, cross-examination of the complainant would be crucial to testing the evidence of the offences;
    3. An inability to cross-examine the complainant prevents the respondent from testing the veracity of each version of events disclosed to various preliminary complaint witnesses, and the effect of the passage of time on the complainant's memory must be considered;
    4. The evidence of the other witnesses gives rise to significant doubts about the complainant's reliability;
    5. A suggestion arises from the evidence that the complainant had "serious mental health issues" and “possible drug addiction”, and the impact of those mental health issues on her reliability cannot be determined in the absence of cross-examination;
    6. The absence of video footage (such as a 93A recording) means that a jury will not have the benefit of assessing the complainant's demeanour at the time of giving her evidence;
    7. Uncertainty around the date of the alleged offending would give rise to potential issues of doli incapax, making cross-examination of the complainant crucial to explore whether the doli incapax presumption applies;
    8. The respondent was 'misinformed' at the time of the committal process with regards to the brief of evidence, and thus lost the opportunity to cross-examine both the complainant and key preliminary complaint witnesses;
    9. Evidence of alleged admissions by the respondent creates a risk of flawed reasoning by a jury in the absence of the complainant, where the jury is only left with the account contained within the Facebook messages.
44. [44]
    To the contrary, the applicant outlined the issues which were said to support the admission of the complainant's statements under s 130. I have again attempted to summarise extensive submissions made in both written and oral submissions. My impression of the features that would support admission of the statements, as submitted by the applicant, were:

    1. The complainant sets out the offending directly in the statements provided, there is nothing, on its face, which makes the complainant's account fanciful, remarkable, inherently unplausible, or objectively unlikely;
    2. Preliminary complaint witnesses, particularly a witness present at the time of the alleged offending provide important support for the complainant's account;
    3. Any inconsistencies in preliminary complaint witnesses and the complainant's statement can be explained by the expected variation in accounts over the years;
    4. The preliminary complaint evidence broadly supports the complainant's account of offending;
    5. The respondent has made concessions that are capable of amounting to admissions going directly to counts 1 and 7, and tend to establish his sexual interest in the complainant;
    6. The complainant made descriptions of ejaculate as a juvenile, which is powerful in support of the complainant's credibility, particularly given the respondent's subsequent admissions to the complainant's mother;
    7. The respondent did not deny the allegations of the offending put to him by the complainant's mother in a Facebook message in 2010, and amount to statements against interest which tend to support the veracity and reliability of the complainant's statements;
    8. Several of the preliminary complaint witnesses have made direct comments about issues connected to their memory in their statements, making it a feature which a jury can consider going to credibility and reliability;
    9. The timely preliminary complaint to the complainant's mother operate as a buttress against the argument that the time between the commission of the offences and the formal complaint impacts the complainant's reliability.
45. [45]
    In order to reconcile the disparity in the parties submissions regarding the issues of unfairness, with a particular focus on reliability, it is important to set out the features of the evidence which are at the centre of this matter.
46. [46]
    I pause to note here, with reference to the test set out in R v Adcock [2016] QCA 264 to which I will detail below, that this exercise will seek to resolve whether the issues of reliability are to be perceived in the narrow sense, or to the contrary, in the broader sense. It is this determination which, having regard to the earlier authorities, will lead to an assessment as to whether the reliability issues are better left to the jury or instead, are issues which are less capable of being explored in a trial setting.
47. [47]
    From the material provided I have set out below the features of the evidence which was emphasised as being relevant to the exercise of the discretion under s 130.

Laura Walton

48. [48]
    The offending was said to be interrupted by Laura Walton when she tried to come into the locked room and called out about was happening in the room. In her statement, Ms Walton recalls babysitting the complainant, finding the respondent's door locked, trying to unlock the door with a knife and the complainant eventually "running out" and sitting with her on the couch, "holding my arm tightly, shaking and seeming very unsettled".^[23]
49. [49]
    The applicant, in oral submissions,  emphasised the weight of Ms Walton's evidence in the context of corroborating the likelihood of the offending occurring in regards to the complainant emerging from the room in a distressed condition. They said that it was powerful evidence in providing evidence of opportunity and of the complainant's condition immediately after the offending was said to have occurred.
50. [50]
    The respondent highlighted that Ms Walton, in her statement stated "I have no other facts pertaining to that day", despite the complainant, in her statement, attesting that she told Ms Walton "the whole story".^[24] Ms Walton does not detail any account of the actual offending as disclosed to her by the complainant, which is inconsistent with the complainant's statement. Additionally, Ms Walton thought that there was no-one else in the house, whereas the complainant's account is that her brother was there.

JIH

51. [51]
    The complainant's mother recounts that the day after the alleged offending, the complainant said words to the effect of "what's that white stuff that comes out of boys doodles?". Upon enquiry by JIH, the complainant disclosed that the respondent had shown her "pictures of bums and naked women and all the white stuff came out of his doodle".  She also disclosed that he had touched her, kissed her on the belly, and wanted her to "participate in what he was doing" and touch his penis.^[25]
52. [52]
    The complainant's mother subsequently confronted the respondent with respect to what had been disclosed to her. At paragraph 10 of her statement she says:

"I actually picked Daniel up and took him for a drive and I asked him what had happened. He never told me the full story but he told me that he just showed her the books. He denied the majority of it in the beginning but I told him there was no way MIH would know about come coming out of a boys doodle. He basically admitted that he was showing her the magazines and that they were mucking around and that's what the kissing was about. He said they were just playing and being silly. He said he was trying to get her to look at the book and he admitted to coming in front of her. He told me he played with himself. I asked him directly if he ever put his fingers in her or anything else and he said that he didn't."

53. [53]
    The applicant submitted that the respondent’s comments are capable of amounting to admissions going directly to counts 1 and 7, and that they tend to establish his sexual interest in the complainant. The applicant further emphasised that the complainant's juvenile description of ejaculate is powerful, notwithstanding that it is only available to support the complainant's credibility, particularly given the respondent's subsequent admissions to that conduct in conversation with the complainant's mother.
54. [54]
    JIH also exchanged a series of messages with the respondent in 2010 which form part of the brief of evidence. The applicant submitted that the following could be said about that exchange:

    1. The conversation related to sexual misconduct on the respondent's part in relation to the complainant;
    2. The misconduct had occurred more than 10 years before the messages were exchanged in 2010;
    3. The respondent did not deny the allegations levelled against him;
    4. The respondent's conduct on that occasion was such that, to his mind, an apology was warranted.
55. [55]
    The message exchange concludes with the following message from the respondent:

I won't try to contact her again unless she wants me to. If you think it might help for me to carefully explain. Let her know. It has been over a decade now and this is not for me. It's all about her. Closure and possibly understanding, but definately [sic] an apology.

56. [56]
    The applicant submitted that the messages exchanged are capable of amounting to a statement against interest and tend to support the veracity of the complainant's mother's statement about what the respondent said to her when she initially confronted him (soon after the offending). 
57. [57]
    The respondent submitted that the message is consistent only with something having happened of a sexual nature between the complainant and the respondent when they were both very young. However, they emphasised that they provide nothing of any more precision than that, and of course, that it is the actual acts which the prosecution must prove. They also conceded that the alleged admission by the respondent to the complainant’s mother, soon after the event, on its face amounts to an admission to the conduct in count 7. However, they emphasised that in the absence of the cross-examination of the complainant about her recollection of detail of certain events may lead a jury to accept the complainant's account in her statement.
58. [58]
    The applicant rebuffed this proposition by pointing to the fact that the more appropriate witness to cross-examine about these admissions is that to whom the admissions were made, the complainant's mother, who is available for cross-examination.

JAH

59. [59]
    The offending is said to have commenced with the respondent taking both the complainant and her brother into his room, where they were shown a pornographic magazine (count 1). At the time, JAH was around 4 years old and he says he does not recall the date in question. Accordingly, his evidence relates only to a complaint made to him when he was 17 years old, 13 years after the offending.  He says the complainant told her that the respondent "sexually abused her", masturbated in front of her, tried to force her to give him oral sex and eventually put his penis in her mouth. The respondent, in their written submissions, indicated that these represented "obvious differences" between the complainant's account of the offending and her disclosures to her brother.

Various other witness inconsistencies

60. [60]
    The respondent also set out a number of preliminary complaint witnesses' statements, and they argued that significant inconsistencies arose between those and the statements of the complainant. These inconsistencies related to there being incomplete disclosures of the totality of the offending, a lack of specifics regarding the identity of respondent, the time of day the offending occurred, and the generalised nature of complaints. The respondent also emphasised, in oral submissions, the statement of Sam Siam stating that she was told that the offending was "sustained for several years" of her childhood.^[26]
61. [61]
    The respondent submitted that these inconsistencies represented 'significant discrepancies' and gave rise to 'significant doubt about the complainant's reliability'. Ultimately, they argued, the inability to cross examine the complainant prevents the testing of the veracity of each version events and the effect of the passage of time on the complainant's memory. Additionally, the evidence of Sam Siam, for example, was said to be so significant that it would ordinarily warrant an application to cross-examine at committal, had it been known at the time, and the opportunity has now been lost due to an incomplete brief being provided by the Crown. This, in additional to an inability to cross-examine the complainant, gives rise to significant issues of unfairness, in the respondent's submission.

Would admission of the statements cause unfairness to the defendant?

62. [62]
    I turn then to the ultimate question to be answered in this matter, that is, whether the admission of the complainant's statements in the trial would be unfair to the defendant.
63. [63]
    The factors relevant to that determination, as submitted by the applicant, are the reliability of the complainant's statements, the incapacity to cross-examine her, and the other evidence available in satisfaction of the charges.
64. [64]
    I pause here to note, that as cautioned by Sofronoff P in R v Allen (a pseudonym) [2020] QCA 233, the test is to be found in the text of the statutory provisions and not in judicial statements concerning the application of the provisions to particular circumstances. That being appropriate, I nonetheless take guidance from the authorities detailed below, but will ultimately draw a conclusion from the application of the statute to the specific circumstances of this case.
65. [65]
    With regard to the discretion I am tasked with exercising, the unfairness was discussed in R v Swaffield (1998) 151 ALR 98, where Toohey, Gaudron and Gummow JJ said:^[27]

"Unfairness then relates to the right of an accused to a fair trial; in that situation the unfairness discretion overlaps with the power or discretion to reject evidence, which is more prejudicial than probative, each looking to the risk that an accused may be improperly convicted. While unreliability may be a touchstone of unfairness, it has been said not to be the sole touchstone.”

66. [66]
    Although unreliability is not the only consideration, this judgment certainly remains authority for the proposition that it is relevant to the exercise of discretion. The test to be applied when exercising the discretion has, more recently, been the subject of authority in the Court of Appeal, where the authorities which had previously considered the application of s 130 were summarised.^[28]
67. [67]
    In R v D [2003] QCA 151, Davies JA said:^[29]

"In my opinion it would be a rare case in which a court will exclude a statement, otherwise admissible pursuant to s 93A , pursuant to either the discretion conferred by s 98 or that conferred by s 130. It is most unlikely that it will ever be excluded on the basis that its prejudicial effect exceeds it probative value because in almost all cases the probative value of such a statement is very high. And the mere fact that, as may have been the case here, the witness, though available to give evidence in the trial, is unable, for one reason or another, to be effectively cross-examined, will not, without more, ordinarily be sufficient to attract the exercise of that discretion."

68. [68]
    Jerrard JA, in the same case, said:^[30]

"With respect to s 130, the unfairness invoking the exercise of the statutory discretion would be the variety discussed in R v Swaffield (1997-1998) 192 CLR 159, and particularly at 189; namely a concern with not jeopardising an accused person’s right to receive a fair trial. As the joint judgment of Toohey, Gaudron, and Gummow JJ records, unreliability is regarded as a touchstone of unfairness."

69. [69]
    The test was considered subsequently in R v FQ [2008] QCA 68 where at [33] Holmes JA said:

"The comments set out above from Morris, FAR and D say no more than that reliability often will be the focus of consideration in deciding how to exercise the discretion; they do not suggest that it is the only consideration. Some care must be taken, too, with the word "reliability" itself; it may be used in a narrow sense, in reference to the reliability of the evidence to be admitted per se, or more broadly, in reference to general issues affecting reliability. As to the first sense, a statement or statements whose content is manifestly unreliable may well, it seems to me, be more safely and fairly left to a jury than evidence whose reliability is potentially affected by external factors less obvious and less capable of being explored. Hayne J observed in Gately v The Queen that s 93A made a "special rule for children and intellectually impaired persons … for the evident purpose of preserving the integrity of the evidence of such persons, by allowing evidence of an account of relevant events that was made before, sometimes well before, the trial of the relevant proceeding". That reservation of the integrity of the evidence, in the sense of maintaining it as a whole, may work for or against an accused; it may, for example, make inconsistencies apparent in a way that selective presentation would not."

70. [70]
    After having considered those authorities,  Morrison JA held in R v Adcock^[31] that the test to be applied in exercising the discretion to reject or exclude evidence is as follows:^[32]

    1. "reliability" often will be the focus of consideration in deciding how to exercise the discretion, but it is not the only consideration;
    2. "reliability" is used in its narrow sense to mean the reliability of the evidence to be admitted per se;
    3. used in a broader sense, "reliability" refers to general issues affecting reliability;
    4. s 98 goes beyond "reliability" and embraces exclusion in the interests of justice, and for the reasons of unfairness or public policy; and
    5. a statement, the content of which is manifestly unreliable in the narrow sense, may well be more safely and fairly left to a jury, than reliability of which is potentially affected by external factors less obvious and less capable of being explored.
71. [71]
    More recently, in R v Allen (a pseudonym) [2020] QCA 233, President Sofronoff, as his Honour then was, considered the discretion. At [15], his Honour said:

“It must be a rare case in which evidence would be excluded pursuant to ss 98 or 130 merely because it is said to be unreliable. If evidence is unreliable, it will be given no weight and, in a particular case, such unreliability would lead to a reasonable doubt. Sometimes the unreliability of evidence is demonstrated by cross-examination after it has been admitted and sometimes it is demonstrated by evidence tendered afterwards that falsifies the earlier evidence. That does not render the impugned evidence inadmissible; it renders it of no weight." [emphasis added]

72. [72]
    This sentiment echoes that formerly made by Davies JA in R v D, ^[33] with respect to the inability to cross-examine: His Honour said:^[34]

“In my opinion it would be a rare case in which a court will exclude a statement, otherwise admissible pursuant to s 93A, pursuant to either the discretion conferred by s 98 or that conferred by s 130. It is most unlikely that it will ever be excluded on the basis that its prejudicial effect exceeds its probative value because in almost all cases the probative value of such a statement is very high. And the mere fact that, as may have been the case here, the witness, though available to give evidence in the trial, is unable, for one reason or another, to be effectively cross-examined, will not, without more, ordinarily be sufficient to attract the exercise of that discretion."

73. [73]
    It is clear from the authorities that I have set out above, an inability to cross-examine the complainant will not, on its own, be cause for admissible evidence to be excluded. I turn then, to an assessment of whether the issues affected by reliability are those which fall within the 'narrow' or the 'broad' categories to which I have earlier referred, having regard to the authorities.
74. [74]
    Although the respondent counsel did not address me directly on the test set out in Adcock, as to an assessment of reliability issues in the narrow or broad sense, they emphasised, in both written and oral submissions, the differences in accounts given by various preliminary complainant witnesses, and how this goes towards issues of the complainant's reliability and highlights the unfairness arising out of an inability to cross-examine her in order to resolve any distinctions in those witnesses' account. 
75. [75]
    For example, the respondent referred to the evidence of Sam Siam, who indicated that the complainant disclosed that she had been sexually assaulted when she was a child by an older cousin, and that it was sustained for several years of her childhood. Another example referred to was that the respondent "touched her in the night”, that the offending was "by someone in her family" or that it was unclear "whether it happened more than once".
76. [76]
    Other examples highlighted that key features of the offending, including that the respondent masturbated and ejaculated in front of the complainant were disclosed, but that these narratives “misses much of what is now alleged”, or that disclosures were of a broad character, for example that the respondent "did something sexual to the complainant". These difficulties were said to extend, more generally, to the capacity of witnesses to accurately recall what the complainant told them about the alleged offending, and the possibility that their recollection has been distorted as a result of impacts on their memory.
77. [77]
    It is clear from the evidence that the complainant made disclosures to a significant number of family members and friends, ranging from those made in close proximity to the offending (the soonest being the following day, to her mother), up to a number of years after the offending (for example, 13 years later to her brother). The respondent referred to distinctions in 13 different witness accounts of disclosures,^[35] and emphasised that these distinctions could not be resolved, where they might otherwise be, by way of cross-examination of the complainant in the circumstances faced here.
78. [78]
    The applicant, however, submitted that these are issues of reliability per se, to be classed in the narrow sense, and that those features of the evidence which are said by the respondent to be unreliable are capable of clear identification by a jury. It is these inconsistencies in accounts, it was submitted, that would rationally be able to be scrutinised in reconciling differences, to determine whether or not the complainant's account should be accepted as reliable or otherwise. The applicant says that this 'class' of reliability is that which Sofronoff P in R v Allen^[36] specifically cautioned against excluding, and could be contrasted with reliability in the broader sense, which is affected by external factors that are far more subtle, insidious and less capable of demonstration.
79. [79]
    In my view, the statements cannot be shown to have that lack of reliability per se that compels its exclusion. The complainant made multiple disclosures, that were of the same character in recounting a single account of sexual assault by her older male cousin, which involved masturbation, oral sex, and ejaculation. An important rebuff against the emphasised delay in the formal complainant is those disclosures made by the complainant to her mother the day after the alleged offending, and the subsequent conversation the complainant's mother had with the respondent immediately following the disclosure, which was said to involve admissions by the respondent. That evidence is particularly important in the Crown case, and will rely on the evidence given by the complainant's mother, and her cross-examination in relation to those issues. Clarification of those matters are not something that can be answered by the complainant, even if she were available for cross-examination.
80. [80]
    In terms of the inconsistencies in accounts by the various witnesses, I do not consider that the discrepancies are of such a character that they make the complainant's statement manifestly unreliable. To the contrary, they are relatively consistent, which in my view, would tend to provide support for the account of the complainant. Moreover, the inconsistencies cannot be said categorically to reflect on the complainant's reliability, as it would, on my view, be more likely to reflect on the witnesses' own memory of the disclosures, as opposed to a difference in account by the complainant herself.
81. [81]
    The discrepancy in details is what would be expected having regard to the passage of time, and the offending having occurred when the complainant was a very young child. These are not issues with which the District Court is unfamiliar, and are issues which a trial jury must regularly face in the context of a trial that involves assessing whether child sexual offences occurred at all. It is in these circumstances that the potential value of cross-examination is reduced, particularly where more complex issues which one sees arising in adult sexual prosecutions, such as mistake of fact or consent, are not present.
82. [82]
    The issue for the jury will be whether the offences occurred or did not occur. On my view, the evidence of the preliminary complaint witnesses’ are capable of supporting the complainant's account of the offences having occurred and accordingly, lend support for the statements’ reliability. 
83. [83]
    Regardless of where the inconsistency is borne out, it is my view that the issues of reliability that arise in this particular matter are those which are which will be readily apparent to a jury whom, when properly equipped with the appropriate warnings and directions, can make an assessment of whether to reject or accept the complainant's account.
84. [84]
    In R v Higgins [2006] QDC 369, his Honour McGill DCJ discussed that there will or should be a distinction drawn between cases where the evidence which is admissible is the only, or most important, evidence in respect of one or more of the elements of the offence.^[37] This distinction was also emphasised as a matter of principle in the case of Al-Khawaja and Tahery v The United Kingdom [2011] ECHR 2127, to which I will come to a little later in these reasons. In this matter, there is evidence that the respondent made statements which would amount to admissions, or in the least, statements against interest. This evidence was set out earlier in my reasons. In my view, this evidence is so probative, that it would move this case out of the category of that to which McGill DCJ referred, in which the complainant's statement is the only or most important evidence in respect of the offending.
85. [85]
    The applicant submitted that the admissions alone could be viewed as capable of supporting count 7, and, in a broader sense, the respondent's admissions support the reliability of the complainant’s statements in a significant way. Ultimately, it is this evidence which is said to operate as a countervailing feature to any unfairness to the respondent arising out of an inability to cross-examine the complainant. Additionally, the content and specifics of these admissions can only be spoken to by the complainant's mother, whom the respondent will have the opportunity to cross-examine. The complainant would not assist in respect of this particularly probative evidence.
86. [86]
    The respondent also referred to evidence suggesting that the complainant suffered from significant mental health issues, including a possible drug addiction. They submitted that “this may affect her reliability, however it is not possible to assess without cross-examination”. There was no suggestion that the complainant was affected by drugs at the time of making her statement, and to make any inferences to that effect would be purely speculative. The respondent did not draw those inferences, however, it was suggested that it could go to her reliability more generally. In my view, any assertion on this basis does depend on speculation, and is not supported by any evidence. Accordingly, I do not take it into account in the exercise of my discretion.
87. [87]
    I would conclude that the issues to which I have referred above, particularly those issues which concern reliability, are those which are affected in the ‘narrow’ sense and will be readily identifiable by the jury. It is those issues then, which will become a matter of weight, and will accordingly not require exclusion on the basis that it would be unfair to admit the statements. It may be, in the circumstances, that the issues of unreliability give rise to reasonable doubt of the kind that was referred to in Adcock, but again, this goes to weight, which is more safely and fairly left to the jury. 
88. [88]
    My assessment of the evidence is that the probative effect of the statements, the evidence available in support of them, and the witnesses available for cross-examination to resolve specific issues of discrepancies, is such that there are significant countervailing features operating in favour of their admission, outweighing any unfairness to the respondent.  
89. [89]
    I was also addressed by both parties on issues with regards to the specific feature of delay going to unfairness, and additionally, whether the issue of doli incapax arises due to uncertainty regarding when the offending occurred. I do not intend to traverse either of those issues in any great detail. However, in regards to the feature of delay in so far as it affects fairness for the purposes of this application, my view is that this is an obvious case for the use of the Longman direction. The need for the use of a Longman direction is not, in my view, a matter which by itself justifies the exclusion of the statements. With regards to the issue of doli incapax, this too is an issue which could be addressed with appropriate warnings and directions that if the jury cannot be satisfied that the offending did occur within the charged period, then they must acquit. I do not consider that these issues give rise to unfairness to the respondent which would require exclusion of the statements.

The relevant right

90. [90]
    I return now to the reasoning in AG v Grant in which Applegarth J set out the approach to determining whether the court is bound to apply the relevant right, or rather, consider it in the exercise of its discretion (here, under s 130).
91. [91]
    Having dealt with the function the court is performing, I turn then to how that function interacts with the relevant right being considered in the circumstances of the case. To admit the evidence would deprive the respondent of his right to examine, or have examined, a witness against him, the right contained in s 32(2)(g). This right is engaged in the exercise of my discretion under s 130,  because it arises as an issue of fairness. For this reason, my analysis of how the right operates will largely rely on my conclusions in regard to the fairness discretion.
92. [92]
    Having already concluded that s 5(2)(a) of the Act applies in respect of this right (because it is a right that relates to the proceeding), I still must determine whether the effect is to bind the Court to act compatibly with the right, or instead to consider it as part of the proper exercise of its discretion. To make such a determination, I must consider the construction of the right and how it applies in the circumstances of this case.
93. [93]
    Section 32(2)(g) of the HRA is not the subject of any jurisprudence, and, as was emphasised by the respondent at the hearing, the consideration of similarly modelled provisions in other jurisdictions, both nationally and internationally, have not been considered in the same factual circumstances as are presented here.
94. [94]
    Section 32(2)(g) of the HRA is modelled on Art 14(3)(e) of the International Covenant on Civil and Political Rights (ICCPR) which is in the following terms:

"In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality: To examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him".

95. [95]
    The respondent detailed, in their written submissions, the qualifications on the comparable right as contained within the Victorian Charter. This qualification, which affects the equivalent right contained within the Victorian charter, is in the following terms:

"A person charged with a criminal offence is entitled without discrimination to the following minimum guarantees: to examine or have examined, witnesses against that person, unless otherwise provided for by law" (emphasis added).

96. [96]
    The respondent submitted that no such qualification was contained within the equivalent provision of the Human Rights Act (Qld). For the reasons that follow, I do not agree with that interpretation. However, I pause to note here, that in taking the 'functional approach' to determining whether a right be enforced, or alternatively, considered, the following analysis is not decisive in my ultimate determination, but I will come to that later. However, given the question of whether a qualification on the right was raised in submissions, I intend to address it in my reasons.

Is the right subject to a qualification?

97. [97]
    With respect to the proper construction of s 32(2)(g), I have had regard to the Explanatory Notes to the Human Rights Bill 2018 (Qld) ('the Bill'), which explains the policy objectives and reasons for them in respect of the Bill. Relevantly, one such objective is to establish and consolidate statutory protections for certain human rights, in circumstances whereby legal obligations under those treaties Australia has ratified only arise where individual rights and obligations are directly incorporated into domestic legislation. The aim of Bill is to:

"consolidate and establish statutory protections for certain human rights recognised under international law including those drawn from the ICCPR…"

98. [98]
    As I have already referred to earlier in these reasons, s 32(2)(g) is modelled on Article 14 contained within the ICCPR, concerning procedural guarantees in criminal trials. Section 31, which immediately precedes s 32, is also modelled off Article 14, which is said to "reflect the common law tradition of the 'due process of the law'".^[38]
99. [99]
    Importantly, as is explained in the explanatory notes for the Bill, s32 (which contains s 32(2)(g)) is modelled on the ICCPR article, "but on those provisions regarding the right to certain minimal procedural guarantees in criminal trials…".^[39] The explanatory notes go on to detail those ICCPR provisions which were included within the provision, and those which were “intentionally not reflected in this clause” due to inconsistencies that would be created with other clauses contained within the HRA.
100. [100]
     Accordingly, I take the view that the caveat detailed within the explanatory notes as it affects s 32, and particularly the wording 'minimal guarantees' is included not with the intention of dictating that such a right would be guaranteed by a court conducting a relevant proceeding, but rather, to reflect that those rights contained within the clause reflect common law traditions and 'due process of the law', (i.e 'minimal guarantees') as they relate to criminal proceedings, without extending to further provisions under the equivalent provision of the ICCPR (which, for example, provides for compensation for wrongful convictions).
101. [101]
     The respondent, in both written and oral submissions, emphasised that s 32 represented 'minimum guarantees', with the impact of those submissions intended to urge the Court to find that it is obliged to give effect to the right to cross examine; that it must be guaranteed, at a minimum, to be afforded to a defendant in criminal proceedings.
102. [102]
     For the reasons I have just explained, I do not find that that was the intention of the statute, having had regard to the extrinsic material and the preceding provisions of the legislation.
103. [103]
     In addition, I refer to section 13 of the Act, which provides:

13  Human rights may be limited

1. A human right may be subject under law only to reasonable limits that can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom.

2. In deciding whether a limit on a human right is reasonable and justifiable as mentioned in subsection (1), the following factors may be relevant—

1. the nature of the human right;

2. the nature of the purpose of the limitation, including whether it is consistent with a free and democratic society based on human dignity, equality and freedom;

3. the relationship between the limitation and its purpose, including whether the limitation helps to achieve the purpose;

4. whether there are any less restrictive and reasonably available ways to achieve the purpose;

5. the importance of the purpose of the limitation;

6. the importance of preserving the human right, taking into account the nature and extent of the limitation on the human right;

7. the balance between the matters mentioned in paragraphs (e) and (f).

104. [104]
     I refer here to the explanatory notes, which, when detailing circumstances where 'human rights are not absolute', provides the following:

The Bill acknowledges that human rights are not absolute and may be subject under law to reasonable limits that can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom (clause 13).

105. [105]
     Clause 13 (the general limitations clause) sets out the factors that may be relevant in deciding whether a limit on a human right is reasonable and justifiable. While these factors are only a guide they are intended to align generally with the principle of proportionality, a test applied by courts in many other jurisdictions to determine whether a limit on a right is justifiable.^[40]
106. [106]
     Although s 13 is usually utilised in the context of making a compatibility declaration when introducing new legislation, s 8 indicates that such a compatibility declaration is relevant for the purposes of an "act, decision, or provision". Accordingly, and as indicated by the explanatory notes (above) reference to Clause 13 is appropriate in the circumstances of this determination. Clause 13's purpose is to "allow for limitations on human rights that are reasonable and demonstrably justifiable". 
107. [107]
     Following my analysis of both the statute and extrinsic material, my determination is that the right, specifically s 32(2)(g) is not an unqualified right, nor is it intended to be 'guaranteed' for the purpose of criminal proceedings as the respondent submitted. With reference to the aim of s 13, my interpretation would be that any right contained within the Act is in fact subject to a qualification where a reasonable and justifiable limitation is occasioned and necessarily explained.
108. [108]
     In addition, I pause here to comment that to interpret the right in the way in which the respondent submitted, that is; to be enforced by the Court as a guarantee, without qualification, would be unsustainable in the context of the criminal justice system. To give effect to the right to examine, or have examined any witness against a person, in every case as a matter of guarantee, would mean that in any instance a complainant or any witness is unavailable requires proceedings to be abandoned. Such a proposition is unconscionable and cannot have been the intention of parliament. That proposition must be dispensed with.

Is the court bound to consider or enforce the right?

109. [109]
     Having regard to my earlier analysis of the fairness discretion, and its application in this matter, I consider that the right to examine (or cross-examine) arises as a matter of fairness, and for the reasons detailed above, I have determined that the inability to cross-examine the complainant does not warrant the exclusion of the statements. It is for those same reasons, that I make the determination that the limit on this right is justifiable when regard is had to the function the court is performing, and the circumstances of this case. I have considered it as part of the proper exercise of my discretion under s 130.
110. [110]
     I therefore find that while although I must consider the right in the function I am performing under s 130, I am not bound to give effect to the right. The right is necessarily engaged as it is one which relates to a court proceeding and arises as an issue impacting fairness, which is at the centre of this determination. Having already considered the issues of fairness that arise as a consequence of an inability to cross-examine the complainant under s 130, and the associated countervailing features and procedural safeguards available,  I am not satisfied that the impact of the right is one which would warrant exclusion of the statements.
111. [111]
     The parties also drew my attention to a decision of the Grand Chamber of the European Court of Human Rights.^[41] It was submitted by both parties that the principles enunciated in that decision would assist me, particularly in respect of the Chamber’s consideration of the equivalent provision of s 32(2)(g) within the European Convention of Human Rights.^[42] Both parties conceded that the matters discussed in that decision did not bear any similarity to the factual issues arising in this matter, and accordingly I do not intend to traverse in any great detail the specific facts. However, I accept that the principles arising out of that decision are relevant for my purposes of applying the HRA in this determination, and I make the following observations.
112. [112]
     The decision of the Grand Chamber considered two separate applications, unrelated from one another, but each considering the application of Article 6(3)(d) of the European Convention on Human Rights. It is in these terms:

Article 6 Right to a fair trial

(3) Everyone charged with a criminal offence has the following

minimum rights:

(d)   to examine or have examined witnesses against him and

to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him

113. [113]
     It is plain to see that the provision is couched in the same terms as s 32(2)(g) of the Queensland legislation, which I am considering. 
114. [114]
     Both matters considered by the Chamber concerned admitted evidence which was decisive in the cases against the defendants in the context of the right contained within art 6(3)(d).  I consider that the following principles emerged in the Grand Chamber’s determination of how the right operated in the context of the function the Courts were performing:

     1. The rights in article 6(3)(d) are specific aspects of the right to a fair hearing and must be taken into account in any assessment of the fairness of proceedings^[43];
     2. The Court’s primary concern under that provision is to evaluate the overall fairness of the criminal proceedings;^[44]
     3. In making that assessment the Court will have regard to the rights of the defence but also to the interests of the public and the victims that crime is properly prosecuted;^[45]
     4. There must be good reason for the non-attendance of a witness;
     5. Where conviction is based solely or to a decisive degree on the evidence of a person, where there has been no opportunity to cross-examine that person, the rights of a defendant may be restricted to an extent that is incompatible to the rights provided for in Article 6;^[46]
     6. Notwithstanding that, the admission of such a statement is not conclusive as to the unfairness of the trial, but it will be a significant factor to be placed in the balance alongside any countervailing features and procedural safeguards available;^[47]
     7. Corroborative evidence of other witnesses who are available for cross-examination will operate as a counterbalancing feature;
     8. Directions about the use of evidence, such as that of the complainant in this matter, will also operate as a counterbalancing feature which make it possible for a jury to make a fair and proper assessment of such evidence;
     9. Where decisive evidence is admitted in the absence of significant counterbalancing features, such as strong corroborative evidence, thus leaving the evidence completely untested, will leave a jury unable to properly and fairly determine the case.^[48]

115. [115]
     Having regard to the principles emerging from that decision, as I am required to by the HRA,^[49] I consider that the features for consideration are ultimately consistent with the exercise I have undertaken in respect of my application of the right in the context of the function I perform under s 130. Those features which affected the Court’s determination in regards to the Tahery case are not present here as, for reasons I have detailed above, there is important probative evidence capable of supporting the complainant’s account. The principles enunciated by the Grand Chamber are broadly consistent with the features I am required to consider as part of the exercise of my discretion pursuant to s 130, and its operation in the context of the HRA (Qld). Accordingly, that jurisprudence does not alter, and rather, supports my findings in relation to this determination.

Conclusion

116. [116]
     The issues in this matter are unique in the sense that I have considered the operation of a human rights provision not previously considered by this Court, or any other court in Queensland. Notwithstanding the issues faced by the respondent as a consequence of an inability to cross-examine the complainant, and the other issues of reliability and fairness that were discussed, I am satisfied that those issues will be readily apparent to a jury properly equipped with the relevant directions and warnings. Furthermore, to deprive the respondent of his right as contained within s 32(2)(g) is justified in the circumstances of this case and having regard to the function the court is performing in applying the right, and the counterbalancing features present.
117. [117]
     Accordingly, the order of the Court is that the written statements of the complainant are admissible and are to be read in the trial of the respondent.