R v Burke - [2009] QDC 334

DISTRICT COURT OF QUEENSLAND

CITATION: R v Burke [2009] QDC 334
PARTIES: R v SEAN MURRAY BURKE
FILE NO/S: 668 of 2008
DIVISION: Trial
PROCEEDING: Application
ORIGINATING
COURT:
DELIVERED ON: 4 November 2009
DELIVERED AT: Cairns
HEARING DATE: 30 October 2009
JUDGE: Bradley DCJ
ORDER: The application is dismissed.
CATCHWORDS: CRIMINAL LAW – EVIDENCE – JUDICIAL
DISCRETION TO ADMIT OR EXCLUDE EVIDENCE –
where the applicant has been charged with two counts of
rape, two counts of assault occasioning bodily harm and one
count of indecent assault arising from an incident which took
place on the evening of 11 November 2007 – where the
complainant is now deceased – where the complainant gave
full evidence in chief and was cross-examined by the
applicant’s solicitor at committal– where the prosecution
argues that particular evidence is admissible pursuant to s
93B of the Evidence Act 1977 as evidence of the facts
asserted – where the applicant argues he cannot have a fair
trial if the complainant cannot be produced to the court
Criminal Law Amendment Act 2000 (Qld)
Evidence Act 1977 (Qld), s 93B, s 93C, 130
Justices Act 1886 (Qld), s 111
R v Collins [1986] VR 37
R v Higgins [2006] QDC 369
R v Martin [2009] QDC 324
R v McGrane [2002] QCA 173
Rozenes & Anor v Beljajev & Ors [1995] 1 VR 533
COUNSEL: K McCreanor of Counsel for the applicant
A Loudon of Counsel for the respondent
SOLICITORS: Ryan & Bosscher Lawyers for the applicant
Office of Director of Public Prosecutions Cairns for the
respondent

The applicant has been charged with two counts of rape, two counts of assault occasioning bodily harm and one count of indecent assault arising out of an incident which took place at Trinity Park Beach on the evening of 11 November 2007.
The complainant in relation to all five counts is Gillian George who died on 13 March 2009.
The complainant was aged 43 at the time of the events and the applicant 25. On 11 November 2007 the applicant met the complainant at the Railway Hotel in Cairns and ultimately they left the hotel together in the applicant’s vehicle. The complainant gave the applicant money for fuel and at his suggestion, they drove to Yorkey’s Knob where he suggested they go fishing. At Yorkey’s Knob alcohol and meat was purchased, again with the complainant’s money.
The applicant drove to the yacht club launch ramp at Yorkey’s Knob to use the barbeques, but he said there were too many people there so instead they went to Trinity Park Beach. At the beach the applicant started a fire on which to cook the meat and the complainant consumed some wine.
The applicant started pressuring the complainant for sex but she refused him, telling him she had a medical condition. The applicant became aggressive with the complainant and punched her on the right side of her face causing her to fall onto her side. Whilst the complainant was on the ground the applicant…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Burke

Details

AGLC: R v Burke [2009] QDC 334
Case: [2009] QDC 334
Decision Date: 4/11/2009

CaseChat Overview and Summary

In the case of R v Burke, the applicant argued that the trial judge's refusal to admit the complainant’s prior inconsistent statement constituted a miscarriage of justice. The core issue before the court was whether the exclusion of the complainant’s prior inconsistent statement violated the applicant's right to a fair trial. The applicant contended that without the opportunity to cross-examine the complainant, the jury could not adequately assess her credibility, which was pivotal to the case.

The court examined the discretionary powers conferred by Section 130 of the Evidence Act, which allows for the exclusion of evidence if it would be unfair to the accused. The applicant cited previous Victorian cases to argue that the inability to cross-examine the complainant rendered the trial unfair. However, the court noted that these cases did not consider the specific legislative intent behind provisions such as Section 93B of the Queensland Evidence Act 1997. The court held that such provisions must be strictly construed to achieve the legislative purpose, which in this case was to protect complainants in sexual offence cases from unnecessary trauma.

The court concluded that the trial judge did not err in excluding the complainant’s prior inconsistent statement. The decision was consistent with the statutory framework and did not prejudice the applicant’s right to a fair trial. The application to admit the prior inconsistent statement was dismissed.

ORDERS:
The application is dismissed.

Orders

Orders of the court

The application is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Section 130 of the Evidence Act reads as follows:- “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.” Simply put, it is argued that as the central issue in the trial will be the credibility of the complainant (this is conceded by the prosecution) the accused cannot have a fair trial if the complainant cannot be produced to the court. In particular, the applicant argues that he cannot have a fair trial if the jury is asked to make an assessment of the complainant’s credibility: Mr McCreanor for the applicant referred to the Victorian cases of Rozenes & Anor v Beljajev & Ors[1] and R v Collins[2]. In Collins Hampel J ruled that the use of a deceased witness’ deposition from an inquest in a murder trial “without the jury having an opportunity to assess this witness is so unsafe as to produce a real risk of an unfair trial”. In that case however, the deceased had previously made two statements to police which were inconsistent with each other. It appears to have been issues about the unreliability of the deceased’s evidence which caused Hampel J’s concern. [1] [1995] 1 VR 533 [2] [1986] VR 37 In Rozenes at page 557 the Victorian Court of Appeal noted the principle that “evidence might be excluded because its reception might place the accused at risk of being improperly convicted ‘either because its weight and credibility cannot be effectively tested or because it has more prejudicial than probative value and so may be misused by the jury’”.[3] In reference to the example of admissible statements by deceased makers, the court said “[such] is not an example of the discretionary rejection of evidence on the ground of its unreliability, for there is no greater than usual danger that the statement is inaccurate. It is the inability to cross-examine that may in all the circumstances of a given case cause the statement to be excluded in the interests of a fair trial.” [3] The court here made reference to a passage in the judgment of Gaudron J in Dietrich v R (1992) 177 CLR 292 It should be noted that in both Victorian decisions there was a recognition that a court must decide such issues in light of the circumstances of the particular case before it and that the court retains a discretion to admit or exclude such evidence. There was no reference in either case to the clear legislative intent of provisions such as s 93B of the Queensland Evidence Act 1997. As I noted in my decision in R v Martin,[4] in R v McGrane[5] McMurdo P gave the following background to s 93B:- “The Criminal Law Amendment Act 2000 (Qld) amended the Evidence Act 1977 (Qld) in accordance with the recommendations of the Task Force on Women and the Criminal Code by adding ss 93B and 93C. Comparable provisions exist in the Evidence Act 1995 (Cth) and the Evidence Act 1995 (NSW). Section 93B Evidence Act 1977 (Qld) which exceptionally allows for hearsay evidence to be received in criminal trials in the circumstances there set out, should be strictly construed, subject to adopting an interpretation that will best achieve the purpose of the legislation.” [4] [2009] QDC 324 [5] [2002] QCA 173

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Burke [2009] QDC 334
PARTIES:	R v SEAN MURRAY BURKE
FILE NO/S:	668 of 2008
DIVISION:	Trial
PROCEEDING:	Application
ORIGINATING COURT:
DELIVERED ON:	4 November 2009
DELIVERED AT:	Cairns
HEARING DATE:	30 October 2009
JUDGE:	Bradley DCJ
ORDER:	The application is dismissed.
CATCHWORDS:	CRIMINAL LAW – EVIDENCE – JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE – where the applicant has been charged with two counts of rape, two counts of assault occasioning bodily harm and one count of indecent assault arising from an incident which took place on the evening of 11 November 2007 – where the complainant is now deceased – where the complainant gave full evidence in chief and was cross-examined by the applicant’s solicitor at committal– where the prosecution argues that particular evidence is admissible pursuant to s 93B of the Evidence Act 1977 as evidence of the facts asserted – where the applicant argues he cannot have a fair trial if the complainant cannot be produced to the court
Criminal Law Amendment Act 2000 (Qld) Evidence Act 1977 (Qld), s 93B, s 93C, 130 Justices Act 1886 (Qld), s 111
R v Collins [1986] VR 37 R v Higgins [2006] QDC 369 R v Martin [2009] QDC 324 R v McGrane [2002] QCA 173 Rozenes & Anor v Beljajev & Ors [1995] 1 VR 533
COUNSEL:	K McCreanor of Counsel for the applicant A Loudon of Counsel for the respondent
SOLICITORS:	Ryan & Bosscher Lawyers for the applicant Office of Director of Public Prosecutions Cairns for the respondent