R v BDI

The main issue in this case was whether a recording made by the police officer of the details of the complaint made by the complainant on the first occasion she attended the police station was admissible as preliminary complaint evidence. Justice Brown concluded that, although the disclosure in this case was the subject of a recording where the Officer also asked questions and took notes, that did not mean the recording had sufficient formality to constitute a “formal witness statement” within the meaning of s 4A Criminal Law (Sexual Offences) Act 1978. Accordingly, the recording was admissible as preliminary complaint evidence.

Boddice and Jackson and Brown JJ

18 February 2020

The appellant was convicted after trial in the District Court at Beenleigh of seven sexual offences. [3]. He appealed those convictions on three grounds including that a recording was wrongly admitted as preliminary complaint evidence but also that the Crown prosecutor’s closing address was inappropriate and intemperate. [4]. Her Honour Justice Brown wrote the leading judgment (with whom Boddice and Jackson JJ agreed) and dismissed the appeal.

The first ground was that a recording made by a Police officer when the complainant first attended the Ipswich Police Station was wrongly admitted by the trial judge as preliminary complaint evidence. [8]–[10]. It was not in contention that the recording was made in anticipation of criminal proceedings and when detectives were unavailable to take a statement. The argument turned on the definition of a ‘formal witness statement’ within the meaning of s 4A Criminal Law (Sexual Offences) Act 1978. [19]. The appellant contended that the level of detail in the statement and its exploratory aspects gave it the relevant formality. [17]. The respondent sought to characterise the recording as more akin to a disclosure and as informal inasmuch as it could not be proved as a formal statement in Court. [18]. Her Honour was ultimately of the view that the recording was, because of the factual circumstances, correctly characterised as preliminary complaint evidence and therefore correctly admitted. [33]–[35].

In ground 3 the appellant complained that the Prosecutor’s closing address made reference to the complainant as a victim, effectively reversing the onus of proof and also that it included inappropriate criticisms of defence counsel. [69]. The argument was put on the basis that alone the conduct did not amount to a miscarriage of justice but that it bolstered, in combination, the other grounds relied upon. Her Honour was of the view that the comments of the Crown prosecutor were not appropriate, should not be repeated and that they went further than contextualising the complainant’s demeanour in evidence. [74]. However, at first instance, defence counsel made submissions in response, the trial judge gave relevant directions as to the address, further the jury returned a not guilty verdict in relation to one count. In those circumstances Brown J was not satisfied that the remarks wrongly influenced the verdict. [81].

J Feely of Counsel