R v Higgins

[2006] QDC 369

DISTRICT COURT OF QUEENSLAND

CITATION:	R v Higgins [2006] QDC 369
PARTIES:	THE QUEEN V PAUL ANTHONY HIGGINS
FILE NO/S:	Ind 1107/06
DIVISION:
PROCEEDING:	Application under s 590AA
ORIGINATING  COURT:	District Court, Brisbane
DELIVERED ON:	8 September 2006
DELIVERED AT:	Brisbane
HEARING DATE:	4 August 2006
JUDGE:	McGill DCJ
ORDER:	Rule that the evidence of the statements made by the applicant during the questioning of him by Sergeant Wildman on 15 February 2003 is not admissible because of the Police Powers and Responsibilities Act 2000; application otherwise dismissed.
CATCHWORDS:	EVIDENCE – Statements out of court – complainant deceased – whether statements by her admissible – whether to be excluded.
EVIDENCE – Confessions and admissions – defendant questioned – statutory requirements not complied with – evidence excluded.
CRIMINAL LAW – Stay of proceedings – complainant deceased – charges withdrawn then renewed – stay refused.
Evidence Act 1977 s 93B.
Police Powers and Responsibilities Act 2000 ss 264, 266.
Conway v The Queen (2000) 98 FCR 204 – considered. Director of Public Prosecutions v Wentworth [1996] QCA 333, BC9604423 – distinguished. Jago v District Court of New South Wales (1989) 168 CLR 23 – applied. R v Ambrosoli (2002) 55 NSWLR 603 – applied. R v Butler & Ors [2003] QDC 160 – considered. R v Crump [2004] QCA 176 – considered. R v D [2003] QCA 151 – applied. R v Harris [2005] NSWCCA 432 – considered. Williams (2002) 119 A Crim R 490 – considered. Williamson v Trainor [1992] 2 Qd R 572 – considered.
COUNSEL:	P. Clohessy for the Crown M. C. Chowdhury for the defendant
SOLICITORS:	Director of Public Prosecutions for the Crown Ryan and Bosscher for the defendant

1. This is an application to stay the indictment permanently, or in the alternative to exclude two categories of evidence which the Crown proposes to lead at the trial. On 20 April 2006 an indictment was presented in this court against the applicant alleging one count of rape and one count of assault occasioning bodily harm, both alleged to have been committed on 15 February 2006 on the same complainant.

2. The stay is sought on two grounds: first, that the applicant cannot receive a fair trial, and has not received a fair committal, because the principal witness for the prosecution, the complainant, cannot be cross-examined. Second, because the conduct of the prosecution has been oppressive. In relation to the evidence, the first category is evidence the Crown proposes to tender under s 93B of the Evidence Act 1997. It was submitted on behalf of the applicant that the evidence was not admissible under s 93B, or in the alternative, if it was admissible under that section, it nevertheless should be excluded under s 98 or s 130 of the Evidence Act. The second category is evidence of certain responses to questions put to the applicant by a police officer, which the applicant submitted was inadmissible under the Police Powers and Responsibilities Act 2000.

Stay – oppressive conduct

1. The basis…