GLEESON CJ, McHUGH, GUMMOW, KIRBY, HAYNE AND CALLINAN JJ
THE QUEEN APPELLANT
AND
SIPAI SOMA RESPONDENT
The Queen v Soma [2003] HCA 13
13 March 2003 B23/2002
ORDER
Appeal dismissed.
On appeal from the Supreme Court of Queensland
Representation:
L J Clare for the appellant (instructed by Director of Public Prosecutions (Queensland))
R V Hanson QC with A W Moynihan for the respondent (instructed by Legal Aid Queensland)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
The Queen v Soma
Criminal law – Evidence – Admissibility – Prior inconsistent statement of accused – Whether prosecution can adduce evidence of prior inconsistent statement in cross-examination of accused – Whether sound recording of applicant's interview wrongly admitted into evidence.
Criminal law – Evidence – Complaints – Failure to object to cross-examination – Whether trial judge required to rule where failure to object.
Criminal law – Procedure – Prosecution case closed – Whether tender of prior inconsistent statement of accused evidence in rebuttal – Prosecution not permitted to split its case.
Evidence – Criminal trial – Prior inconsistent statement of accused – Whether sound recording wrongly admitted into evidence in rebuttal of prosecution case – Whether tender of sound recording impermissible attempt to split prosecution case – Complaints – Failure to object to cross-examination – Whether trial judge required to rule despite failure to object.
GLEESON CJ, GUMMOW, KIRBY AND HAYNE JJ. The respondent was charged with rape. At his trial in the District Court of Queensland, immediately before the prosecution closed its case, he formally admitted, pursuant to s 644 of the Criminal Code (Q), that on the date alleged in the indictment, he had carnal knowledge of the complainant. The only live issue for the jury was whether the prosecution had proved beyond reasonable doubt that the respondent acted without the complainant's consent[1]. The jury returned the verdict "guilty".
[1]Criminal Code (Q), s 349(2)(a).
The offence was alleged to have occurred in a house in Bowen, on or about 6 May 2000. On 19 May 2000, police interviewed the respondent. The interview was tape recorded. In that interview the respondent gave an account of what had happened between him and the complainant on the night of the alleged rape. The answers he gave reflected the fact that English was not his first language. In the course of a long and disjointed answer the respondent said that he had accused the complainant of taking his wallet. While the complainant was sitting in front of the house where the rape was alleged to have occurred, he asked her to give his wallet back and pulled at her hair. He went on to give an account consistent with them then having had consensual sexual intercourse inside the house.
The respondent's reference to his pulling at the complainant's hair was of some significance. The complainant alleged that,…
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.
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AGLC
R v Soma [2003] HCA 13
Case
[2003] HCA 13
Decision Date
CaseChat Overview and Summary
The case of *R v Soma* concerned an appeal to the High Court of Australia following the respondent's conviction for rape. The dispute centred on the admissibility of evidence of a prior inconsistent statement made by the respondent during a police interview, which the prosecution sought to introduce after the respondent had given evidence at his trial.
The legal issues before the High Court included whether the prosecution could adduce evidence of a prior inconsistent statement made by an accused person during cross-examination, and whether a sound recording of the respondent's interview was wrongly admitted into evidence. The Court also considered whether the trial judge was required to rule on the admissibility of evidence despite a failure by the defence to object to cross-examination, and whether the tender of the prior inconsistent statement constituted an impermissible attempt by the prosecution to split its case.
The High Court reasoned that the provisions of the *Evidence Act 1977* (Qld) did not preclude the prosecution from adducing evidence of a prior inconsistent statement made by an accused person who gives evidence. Specifically, section 18 of the Act, which governs the proof of prior inconsistent statements, applies to all witnesses, including accused persons. The Court held that if the requirements of section 18 are met, and the statement is relevant to the subject matter of the proceeding, the prosecution is entitled to tender it in evidence as proof of its contents. The Court also noted that section 130 of the Act provides a general power to exclude evidence if its admission would be unfair to the accused.
The appeal was dismissed.
Orders
Orders of the court
Appeal dismissed.
Background
Background to the litigation
This appeal is concerned with the law governing the adducing by the Crown of evidence of out of court statements.Facts and previous proceedings The respondent was accused of rape. The complainant said that the respondent, on the evening of 5 May 2000, had forced and pinned her to the ground outside the house where the offence was shortly afterwards committed. The respondent was interviewed by Detective Sergeant Inmon in Townsville on 19 May 2000. He told the officer that he had pushed the complainant to the ground and that she had been crying. It is necessary to set out some material parts of the transcript of the interview which was recorded."SOMA[indistinct] yep. Because sometimes I'll come sleep at my Aunty's placeINMONMmmSOMA[indistinct] everything like that, and I will open the windows because the air come in because this smell no good. Sometimes no air go in.INMONSo you went to your Aunty's place and you opened the windows up to let the air come in except for the smells no good sometimes?SOMAYeah. Yep. And I go inside of the house [indistinct] is outside. Just sitting in front of the house. And I come out. Said please give my wallet [indistinct]. And he tried get up … maybe feel that I do something for her. And that's why I pulled at the hair and said no I won't do something for you. I want my wallet back and will leave you alone. And [indistinct]. Yep. For that time I hold down the … the hair. I turned away, turned around and go inside the house and he follow me. He follow me he said please please Michael I don't have your wallet … I said please I want my wallet you take my wallet [indistinct] I know you take my wallet. Said look I lost my stuff [indistinct]. He lost my stuff [indistinct]. I said what's your stuff. He said he lost my marijuana. I said [indistinct] he said he wanted to come with me go find it. Said Nah-ah. I not smoke marijuana. I don't like it at all. But if you want to go find it give my wallet and you go find it … and get inside house … I go back inside house [indistinct] and he [indistinct] up inside and he cried and cried I said don't be cry I'm gonna do something for you. And he said please I don't know your wallet … I don't know anything. I said he tell me he lost your stuff he lost your marijuana and when … when you said [indistinct]. And after that … uh … after that he's coming in and said this is for [indistinct] your wallet. Said what [indistinct] my wallet. I said … and open … he open her clothes. I not open. I not do anything. He open her clothes. Put down [indistinct] and he lay down her bed. And … yep. I said [indistinct] please please Michael I don't know anything [indistinct] for your wallet. Yeah and do that and after that I said you want to go shower, and said yeah said go for shower [indistinct] go shower I go bring a towel [indistinct] and [indistinct] everything like that. I said if you want change your clothes anything like that … I do. Said nah I'm all right. And I said what do you want … I said you want to sleep here you all right … If you want to go home, I pay the taxi for you. And he said please I want to go home because of my dad, he go … he go to work, go somewhere like that. I said all right, what can I do. I want to ring up a taxi. Said yep all right for [indistinct] you ring up taxi and he … he'll ring up the taxi and after that [indistinct] … he say to me [indistinct] go stay in front of the house or wait for the taxi. I say yeah I do, and I [indistinct] money to pay the taxi. Said only five dollar. I said here because the change fall out [indistinct] my put it inside my wallet he put inside … [indistinct] uh what do you call this [indistinct] …INMONPocket?SOMAPocket. And I'm go outside and said here this is a ten dollar for paying your taxi. And taxi come and he … he … he still hold on me … give a big hug … give a kiss for me and taxi comes [indistinct] here … I said all right you go and said yeah make sure you ring up me next day because he'd give to me the phone number. I said all right. [indistinct]. He go. That's all.INMONShe ... how come her beads have broken … around her neck?SOMARight. That's what time I go hold down the … the hair and I go down togetherINMONYou hold the beads and the hair together?SOMAYeah … hold together for the … for the … the … that oneINMONBehind the head? You're holding … you're … you're actually putting your hand here, uh just on where your collar is … underneath your collar at the back of your hairsSOMAYeahINMONBack of your neck … so … is that where you grabbed hold of this girl?SOMAThat's … that's where I hold [indistinct]INMON Did you push her on the ground?SOMAYeah. That was down on the groundINMONDid you put anything around her mouth? A t-shirt?SOMAThe … yeah. Yeah. Because he … he … crying for tell everyone I rape and for that time I not rape … I'm angry for because I want my wallet back. I want to go to sleep with my girlfriend or I want to go to sleep inside my house. And he [indistinct]. And he … he … he tell … he say with me everything. I said I don't want you tell me your story, I want my wallet back, and I don't know why you jump on inside the taxi and come home.INMONWell what … what where were you going … what."
Evidence
Evidence Before The Court
The central submission made by the prosecution on its appeal in this Court was that questions of evidence in rebuttal, or of the prosecution splitting its case, do not arise when a prior inconsistent statement is put to an accused person giving evidence. It was submitted that, if the requirements of s 18 of the Evidence Act are met, the prosecutor cross‑examining an accused giving evidence is entitled to put a prior inconsistent statement to the accused and then, pursuant to s 101(1) of the Act, tender it in evidence as evidence of the truth of its contents. It was submitted that the only limitation on pursuing this course is to be found in s 130 of the Act and its provision that:"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."The Evidence Act 1977 Before considering s 18 of the Evidence Act, it is necessary to put that section in its context, by noticing some other provisions of the Act which were engaged when the respondent gave evidence at his trial. Section 8(1) makes a person charged with an offence competent, but not compellable, to give evidence on behalf of the defence in a criminal proceeding. Section 10(2) provides that, where a person charged gives evidence in a criminal proceeding, "the person's liability to answer any such question shall be governed by section 15". Section 15(1) of the Act provides, in a form evidently based on the Criminal Evidence Act 1898 (UK), that a person charged, who gives evidence in a criminal proceeding, is not entitled to refuse to answer a question, or produce a document or thing, on the ground that to do so would tend to prove the commission by the person of the offence charged. Section 15(2) regulates the circumstances in which an accused person giving evidence in a criminal proceeding may be asked questions tending to show that that person has committed, been convicted of, or been charged with, any offence other than that with which he or she is charged in the proceeding, or is of bad character. The questions asked of the respondent at his trial were not of that kind; the questions asked in cross‑examination were directed to demonstrating his guilt of the offence for which he was standing trial. Section 18 of the Evidence Act provides that:"(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 statement 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." It may be observed that s 18 is a provision which, on its face, applies to all witnesses, including accused persons who give evidence at their trial. It is also to be noticed that s 18 deals with former statements made by a witness "relative to the subject matter of the proceeding". It follows that there is no evident basis (textual or otherwise) for concluding that the section can have no application to a prior inconsistent statement made by an accused which may tend to incriminate the accused for the offence which is the subject of the trial.