R v Barker

Case [2023] QCA 117

SUPREME COURT OF QUEENSLAND

CITATION:

R v Barker [2023] QCA 117

PARTIES:

R
v
BARKER, Jason Norman
(appellant)

FILE NO/S:

CA No 337 of 2021
DC No 147 of 2020

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Ipswich – Date of Conviction: 29 November 2021 (Clare SC DCJ)

DELIVERED ON:

Date of Orders: 5 May 2023
Date of Publication of Reasons: 2 June 2023

DELIVERED AT:

Brisbane

HEARING DATE:

5 May 2023

JUDGES:

Bond and Flanagan and Boddice JJA

ORDERS:

Date of Orders: 5 May 2023

1.   Appeal allowed.

2.   Convictions set aside.

3.   Retrial ordered.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – GENERALLY – where the appellant was convicted of one count of wilfully and unlawfully exposing a child under 16 years to an indecent act and two counts of unlawfully and indecently dealing with a child under 16 years – where the appellant appeals against his convictions on the ground that the trial judge erred in law in directing the Crown prosecutor to read a portion of a witness’ statement to police in the presence of the jury – where the witness’ evidence-in-chief was not consistent with her statement previously given to police – where defence counsel cross-examined the witness in relation to the inconsistency – where the cross-examination clarified the inconsistency without the need to show the witness her statement – where defence counsel, at the direction of the trial judge, drew the witness’ attention to specific paragraphs of her statement to police – where the Crown prosecutor did not seek to re-examine the witness – where the trial judge engaged in further exchanges with counsel, both in the presence and absence of the jury, in relation to the witness’ evidence – where the trial judge, in the presence of the jury, suggested that defence counsel may have acted unfairly and elicited evidence out of context – where the Crown prosecutor, at the invitation of the trial judge, re-examined the witness by reading to her paragraphs of her statement to police – whether in the circumstances there was a miscarriage of justice

Evidence Act 1977 (Qld), s 18, s 19, s 101, s 102

Collins v The Queen (2018) 265 CLR 178; [2018] HCA 18, cited
Cook v The Queen (2016) A Crim R 454; [2016] VSCA 174, cited
Hofer v The Queen (2021) 95 ALJR 937; [2021] HCA 36, cited
R v Clancy[2022] QCA 162, followed
R v Collins [2018] 1 Qd R 364; [2017] QCA 113, followed

COUNSEL:

A M Hoare for the appellant
E L Kelso for the respondent

SOLICITORS:

Wallace O’Hagan Solicitors for the appellant
Director of Public Prosecutions (Queensland) for the respondent

  1. BOND JA:  For the reasons given by Flanagan JA, I joined in the making of the Court’s orders on 5 May 2023.

  2. FLANAGAN JA:  On 29 November 2021, following a three day trial in the District Court at Ipswich, the…

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AGLC
R v Barker [2023] QCA 117
Case
[2023] QCA 117
Decision Date

CaseChat Overview and Summary

In the case of R v Barker, the appellant was convicted of one count of wilfully and unlawfully exposing a child under 16 years to an indecent act and two counts of unlawfully and indecently dealing with a child under 16 years. The appellant appealed against his convictions, arguing that the trial judge erred in law when directing the Crown prosecutor to read a portion of a witness' statement to police in the presence of the jury. The witness' evidence-in-chief was inconsistent with her statement given to police, and the defence counsel cross-examined the witness in relation to the inconsistency. However, the trial judge directed the Crown prosecutor to read to the witness specific paragraphs of her statement to police, which the defence counsel objected to.

The legal issues before the court were whether the trial judge's direction to the Crown prosecutor to read to the witness specific paragraphs of her statement to police was permissible under the Evidence Act 1977 (Qld) and whether it resulted in a miscarriage of justice. The court considered the application of ss 18, 19, 101, and 102 of the Evidence Act and held that the reading of the paragraphs of the statement was not permitted by any relevant provision of the Act. The court further held that the adoption of such a procedure was impermissible and amounted to a miscarriage of justice, as it departed from the rules of procedure and evidence and prejudiced the accused. The court concluded that the convictions should be set aside, and a retrial ordered.

In summary, the court held that the trial judge's direction to the Crown prosecutor to read to the witness specific paragraphs of her statement to police was not permissible under the Evidence Act 1977 (Qld) and amounted to a miscarriage of justice. The convictions were set aside, and a retrial ordered. The court emphasised the importance of following the rules of procedure and evidence strictly to ensure that the accused receives a fair trial.

Orders

Orders of the court

Date of Orders: 5 May 2023

1. Appeal allowed.

2. Convictions set aside.

3. Retrial ordered.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

When the complainant returned to her home, she disclosed the offending to AK and subsequently disclosed the offending to her mother and two of her mother’s friends, one of whom was the mother of AK who subsequently provided a statement to police. The ground of appeal concerns the learned trial judge directing the Crown prosecutor to read a portion of this statement to the jury. In order to consider the ground of appeal, it is necessary to set out in detail the evidence of the mother of AK and the exchanges between the trial judge and defence counsel.The evidence of the mother of AKEvidence-in-chief The mother of AK gave the following evidence-in-chief:[2][2]RB 129 ll17 – 45.“---in person. Okay. So when you spoke to [AK] on the phone, did you speak to [the complainant] at all? --- Yes.Okay. And what did [the complainant] tell you?---Well, excuse me. It was both of them at the same time, it wasn’t like individual, it was on speaker when they phoned me, yes.All right. And during that phone that was on speaker, what did [the complainant] talk to you about?---[The complainant] spoke to me about the situation that happened.Okay. And what was that situation - - -HER HONOUR: Sorry. What did she say?MR McINTYRE: Yes?---She said that Jason had inappropriately touched her.Are those the precise words she used?---Jason had – “Jason touched me” is what she said to me.Now, did she go into any more detail than that?---Not at that particular time, but when I got home, like, that’s when she spoke to me, like detailed.Okay. And where did that discussion take place?---At my house.All right. And when you say she spoke to you in detail, what were those details that she told you?---She just told me how she went up to my house when I was out to see the children, my kids. And then, that Jason had offered to take them to the NightOwl; because he had a ute, they went one by one. And then how Jason had touched her, her breasts, and then exposed himself also. And that he offered them $20 to not say anything.” The evidence-in-chief of the mother of AK was not consistent with her statement previously given to police. In that statement, her recollection of what the complainant said to her was as follows:[3]“He also tried to touch my boob, and I brushed it off.”[3]RB 133 l5.Cross-examination As there was an apparent inconsistency between the mother of AK’s evidence-in-chief and her police statement, defence counsel cross-examined in relation to this inconsistency. As is revealed in the excerpt below, defence counsel first attempted to address this inconsistency without reference to the witness’ statement:[4][4]RB 131 l23 – RB 132 l14.“But could it have been [AK] that said Jason had touched [the complainant]?---I’m pretty sure they somewhat said it at the same time, like – initially – I don’t know who, initially, said it to me within the conversation. Like, they were both on the phone at the same time to myself.All right. When you were speaking with [the complainant] and when [the complainant] was speaking, I should say?---Yep.Did she say to you words to the effect “He also tried to touch my boob, and I brushed it off”?---I’m not sure word for word what was exactly said, but, yes, it was something very similar.HER HONOUR: That she – did she tell you that he didn’t touch her but he tried?---No. No, she didn’t say he didn’t touch her.MR MORGANS: Okay. Do you accept that [the complainant] may have said, “He also tried to touch my boob, and I brushed it off”; do you remember that as being something that may have been said by [the complainant]?---Can you repeat that, sorry?“He also tried to touch my boob, and I brushed it off”?---I’m not – I don’t know how to answer that, because it sounds like the same question you just asked.I’m asking you whether or not you can recall [the complainant] saying that sentence or words to that effect, “He also tried to touch my boob, and I brushed it off”?---Yeah. So she said something similar to those words, yes.Okay. Could it have been those words?---It could have been, yes.HER HONOUR: So, Mr Morgans, are you suggesting that the girls did not say that he had touched her, and if you are saying that, then I think that you need to put it to the witness so that she can answer that, and there’s no confusion about the meaning of the answers.MR MORGANS: I perhaps can’t put that, because the defendant - - -HER HONOUR: Well, if you’re not suggesting that, then don’t put it, but I’m just – I just want to be clear at this point so that there is no difference of interpretation about the state of the evidence.MR MORGANS: Thank you. I’ll, perhaps, deal with it slightly differently.”

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

The trial judge correctly directed the jury that the preliminary complaint evidence could only be used in assessing the complainant’s credibility. Her Honour continued:[11]“It is not a test, however, of word-for-word exactness or repetition. It does not hinge on exactly the same recall every time words are spoken.… Unless you found the witness’ memory of what [the complainant] told them to be reliable their evidence of a largely consistent or inconsistent account would not help in relation to [the complainant’s] credit. If the witness’ memory is reliable about what – if you find that the witness’ memory – of what was said – is reliable, the next question is is it consistent or inconsistent with what [the complainant] has said on the tapes? If there is an inconsistency? Is there a true inconsistency or is it a matter of expression, a difference of expression?”[11]RB 42 l21 – RB 43 l31.Consideration In Hofer v The Queen [2021] HCA 36 at [41] Kiefel CJ, Keane and Gleeson JJ, in considering what constitutes a miscarriage of justice, observed:“A miscarriage of justice to which s 6(1) of the Criminal Appeal Act refers includes any departure from a trial according to law to the prejudice of the accused. This accords with the long tradition of criminal law that a person is entitled to a trial where rules of procedure and evidence are strictly followed.” In the present case the rules of procedure and evidence were not strictly followed. It was not permissible for the Crown prosecutor, at the invitation of the trial judge, to re-examine the witness by reading to her paragraphs of her statement. The adoption of such a procedure was impermissible for a number of reasons. First, the reading of the paragraphs of the statement was not permitted by the application of any relevant provision of the Evidence Act 1977 (Qld). The application of ss 18, 19, 101 and 102 of the Evidence Act was considered by this Court in R v Collins [2017] QCA 113. Burns J (with whom Gotterson and Morrison JJA agreed) considered the operation of s 18 of the Evidence Act. Section 18 provides:“18 Proof of previous inconsistent statement of witness (1) If a witness upon cross-examination as to a former statement made by the witness relative to the subject matter of the proceeding and inconsistent with the present testimony of the witness does not distinctly admit that the witness has made such statement, proof may be given that the witness did in fact make it.(2)However, before such proof can be given, the circumstances of the supposed statements sufficient to designate the particular occasion must be mentioned to the witness and the witness must be asked whether or not the witness has made such statement.” Burns J observed at [43]:“It follows that, where the making of the previous inconsistent statement is admitted by the witness – and regardless of whether the witness goes further to admit that it’s contents are true – the statement cannot be proved under s 18. Indeed, to the point of this appeal, it will only be where the prior statement was in writing or reduced to writing and it is intended to contradict the witness by that writing pursuant to s 19(1A) that it can be proved and then received into evidence. But, s 19(1A) aside, where the witness distinctly admits the making of the statement, it will not be admissible under s 18 or, indeed, at common law unless the witness is a party, in which event the statement may amount to an admission.”(original emphasis)