R v M

[2002] QCA 486

SUPREME COURT OF QUEENSLAND

CITATION:

R v M [2002] QCA 486

PARTIES:

R
v
M
(appellant)

FILE NO/S:

CA No 264 of 2002
DC No 269 of 2002

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against conviction

ORIGINATING COURT:

District Court at Maroochydore

DELIVERED EXTEMPORE  ON:

7 November 2002

DELIVERED AT:

Brisbane

HEARING DATE:

7 November 2002

JUDGES:

de Jersey CJ, Davies JA and Mullins J
Separate reasons for judgment of each member of the court, each concurring as to the order made

ORDER:

The appeal is dismissed

CATCHWORDS:

EVIDENCE – ADMISSIBILITY AND RELEVANCY – IN GENERAL – OBJECTIONS – where appellant convicted of 6 counts of indecent dealing with a child under 12 years of age and in his care – where part of the evidence led by the Prosecution was a recording of a phone call between the appellant and complainant where the appellant admitted the offences – where complainant rang the appellant from a police station – whether the learned trial Judge should have exercised his discretion by excluding the tape because of the circumstances in which the conversation occurred – consideration of R v Swaffield; Pavic v R (1997) 192 CLR 159 as to whether the tape was admissible

R v Broyles [1991] 3 SCR 595, followed
R vBurt [2000] 1 Qd R 28, considered
R v Swaffield; Pavic v R (1997) 192 CLR 159, followed

COUNSEL:

J Farrell for the appellant
B G Campbell for the respondent

SOLICITORS:

Mountfords for the appellant
Director of Public Prosecution (Queensland) for the respondent

THE CHIEF JUSTICE:  The appellant was convicted in the District Court on six counts of indecently dealing with a child under 12 years of age in his care, and acquitted on one count of rape.  The appellant was the complainant's step grandfather.  At the time the complainant was six or seven years old.  When she gave evidence at the trial she was 16 years old.

Part of the evidence at the trial was a tape-recording of a telephone call between the complainant, who was then 15 years old, and the appellant.  The learned trial Judge admitted the tape into evidence over the objection of the offence.  The objection arose from the circumstances in which the conversation occurred.

It was the complainant who telephoned the appellant and she did so from a police station.  The learned Judge dealt with the issue on the basis that the complainant telephoned the appellant at the instance of the police for the purpose of possibly obtaining relevant admissions from the appellant.  That is indeed what eventuated.

The admission on which the Crown concentrated was contained in this passage:

"Complainant:  I just want to know why you did it.  Appellant:  I did - I don't know why.  Why, why, why, what - why.  Complainant:  You did all this stuff to me.  I just want to know why you did it.  Oh Pa, just tell me why please.  You know you did it.  Just why did you do it?  Appellant:…