R v Martin - [2009] QDC 324

DISTRICT COURT OF QUEENSLAND

CITATION: R v. Martin [2009] QDC 324
PARTIES: THE QUEEN
(Respondent)
v
DAVID JOSHUA MARTIN
(Applicant)
FILE NO/S: 567 of 2007
DIVISION:
PROCEEDING: Application
ORIGINATING
COURT:
DELIVERED ON: 11 September 2009
DELIVERED AT: Cairns
HEARING DATE: 3 September 2009
JUDGE: Bradley DCJ
ORDER: Application dismissed.
The following evidence is admissible in the applicant’s trial:
1.          The initial complaint of rape made by the complainant to Lance Millward.
2.          The recording of the complaint made by the complainant to Lance Millward at the police officer’s home.
3.          Evidence from the arresting police officer Foy about disclosures the complainant made to him regarding the alleged offence.
4.          Evidence from Dr Stinson to whom the complainant made disclosures of the alleged offence.
5.          The written statement the complainant provided to police on 31 May 2006.

CATCHWORDS:

CRIMINAL LAW – EVIDENCE – JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE – where the applicant has pleaded not guilty to a charge of rape – where the complainant is now deceased – where the prosecution seeks to rely at the trial on particular evidence to substantiate the allegations the complainant made against the applicant – where the applicant seeks a ruling that the evidence of the various statements of the complainant is not admissible or alternatively that it ought to be excluded in the exercise of the Court’s discretion
Criminal Law (Sexual Offences) Act 1978 (Qld) s 4A
Evidence Act 1977 (Qld), s 93B, 93B(2)(a), 98, 98(1), 130
Justices Act 1886 (Qld), s 110A, 111
R v Ambrosoli (2002) 133 A Crim R 461
R v D (2003) 141 A Crim R 471
R v Higgins [2006] QDC 369
R v Lester [2003] QCA 354
R v McGrane [2002] QCA 173
COUNSEL: B Murray for the applicant
J Wooldridge for the respondent
SOLICITORS: Legal Aid Office Queensland for the applicant
Office of The Director of Public Prosecutions for the
respondent

The applicant has pleaded not guilty to a charge that on 30th day of May 2006 at Kowanyama he raped Colleen Desma Lawrence. Ms Lawrence is now deceased.
Allegations
At the time of the alleged offence the complainant was 40 years of age and the applicant 18. The applicant was involved in a relationship with the complainant’s daughter. The complainant told police that she attended the Kowanyama Canteen at about 3.30 pm on 30 May 2006 where she consumed about 12 cans of XXXX Gold beer. She left to go home at about 9.00 pm. At that point she described herself as “drunk”, “not falling over” but “walking crooked”.
As she walked towards her home the complainant saw a man approaching her and when he got closer she said “I know you David Martin”. The man grabbed her by the arm, then grabbed her by the hair and pulled her to the ground. He dragged her by the hair through a gate and into long grass and she noticed that he smelt of alcohol.
The complainant screamed for help. The man…

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 Martin

Details

AGLC: R v Martin [2009] QDC 324
Case: [2009] QDC 324
Decision Date: 11/09/2009

CaseChat Overview and Summary

The case of R v Martin involved a defendant who pleaded not guilty to a charge of rape. The complainant in the case had since passed away, and the prosecution sought to rely on various statements made by the complainant to substantiate the allegations against the defendant. The applicant sought a ruling that the evidence of the complainant's statements was inadmissible or alternatively, that it should be excluded under the court's discretion. The court was required to decide whether the statements made by the deceased complainant were admissible under Section 4A of the Criminal Law (Sexual Offences) Act 1978 and whether they should be excluded if deemed unfair to the defendant.

The court examined the provisions of Section 4A, which allowed for the admission of evidence of a preliminary complaint regardless of when it was made. The court also considered the argument that the statements could be admitted under Section 93B as representations made shortly after the alleged offence and in circumstances making it unlikely the representation is a fabrication. The prosecution referenced the case of R v Higgins, where similar statements were deemed admissible. The applicant argued that there was a delay between the alleged offence and the complainant's first complaint, which could cast doubt on the reliability of the statements.

After considering the arguments, the court found that the statements made by the complainant were admissible under Section 4A and Section 93B. The court held that the delay in making the first complaint did not render the statements inadmissible, as they were still made shortly after the alleged offence and under circumstances making it unlikely they were fabricated. The court also noted that the statements could not be led as the truth of the facts contained therein but could be used to corroborate other evidence.

The court dismissed the application, allowing the prosecution to rely on the complainant's statements as evidence in the trial. The court found that the evidence was admissible and did not warrant exclusion under the exercise of judicial discretion.

Orders

Orders of the court

Application dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Section 4A of the Criminal Law (Sexual Offences) Act 1978 provides relevantly as follows:- “4A. Evidence of complaint generally admissible (1) This section applies in relation to an examination of witnesses, or a trial, in relation to a sexual offence. (2) Evidence of how and when any preliminary complaint was made by the complainant about the alleged commission of the offence by the defendant is admissible in evidence, regardless of when the preliminary complaint was made. (3) Nothing in subsection (2) derogates from the power of the court in a criminal proceeding to exclude evidence if the court is satisfied it would be unfair to the defendant to admit the evidence.” In that section ‘preliminary complaint’ is said to mean – “any complaint other than – The prosecution submits that the statements of the complainant to Millward and Foy and to Dr Stinson are admissible as preliminary complaint evidence and that remains the case whether or not the complainant is alive. As such, however, the representations to those witnesses could not be led as truth of the facts therein contained. Plainly, that is correct. The prosecution however contends that such statements are also admissible as representations made by the complainant pursuant to s 93B as truth of the facts therein contained. In relation to each of the five representations of the complainant sought to be led by the prosecution, it is argued that they were made “shortly after the asserted fact happened” (s 93B(2)(a)). The offence is alleged to have been committed some time after the canteen closed at 9.00 pm and prior to the complainant speaking to Millward on tape at 9.35 pm. The representation which was made last in time is the written statement of the complainant made (according to the statement of the police officer who took it), sometime between 11.40 am and 1.40 pm on 31 May 2006, the day after the alleged rape. Although the applicant points out that there was some delay between the alleged rape and the complainant making her first complaint to Millward it is not seriously argued that the complainant’s representations were not made “shortly after” the alleged offence was committed. With respect to the second requirement under s 93B(2)(a), that the representation be made “in circumstances making it unlikely the representation is a fabrication”, it is submitted on behalf of the prosecution that the following supports a conclusion in its favour: It seems that the provisions of s 93B have not been considered in this context at appeal level. However, Ms Wooldridge for the prosecution referred me to the unreported decision of McGill DCJ in the R v Higgins[1]. In that case the defendant was facing charges of rape and assault occasioning bodily harm arising out of the one incident involving a complainant who subsequently died. In Higgins police were called by others to the premises where the offences were alleged to have been committed. The evidence which McGill DCJ found to be admissible pursuant to s 93B consisted of evidence of what the complainant said to police upon their arrival, representations made by the complainant to an examining doctor later the same day and representations made to a police officer who took her formal statement the following day. [1] [2006] QDC 369 Applicant’s argument

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v. Martin [2009] QDC 324
PARTIES:	THE QUEEN (Respondent) v DAVID JOSHUA MARTIN (Applicant)
FILE NO/S:	567 of 2007
DIVISION:
PROCEEDING:	Application
ORIGINATING COURT:
DELIVERED ON:	11 September 2009
DELIVERED AT:	Cairns
HEARING DATE:	3 September 2009
JUDGE:	Bradley DCJ
ORDER:	Application dismissed.
The following evidence is admissible in the applicant’s trial:

CATCHWORDS:	CRIMINAL LAW – EVIDENCE – JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE – where the applicant has pleaded not guilty to a charge of rape – where the complainant is now deceased – where the prosecution seeks to rely at the trial on particular evidence to substantiate the allegations the complainant made against the applicant – where the applicant seeks a ruling that the evidence of the various statements of the complainant is not admissible or alternatively that it ought to be excluded in the exercise of the Court’s discretion
Criminal Law (Sexual Offences) Act 1978 (Qld) s 4A Evidence Act 1977 (Qld), s 93B, 93B(2)(a), 98, 98(1), 130 Justices Act 1886 (Qld), s 110A, 111
R v Ambrosoli (2002) 133 A Crim R 461 R v D (2003) 141 A Crim R 471 R v Higgins [2006] QDC 369 R v Lester [2003] QCA 354 R v McGrane [2002] QCA 173
COUNSEL:	B Murray for the applicant J Wooldridge for the respondent
SOLICITORS:	Legal Aid Office Queensland for the applicant Office of The Director of Public Prosecutions for the respondent