R v Uittenbusch - [2012] QSC 89

[2012] QSC 89

SUPREME COURT OF QUEENSLAND

CRIMINAL JURISDICTION

ATKINSON J

Indictment No 849 of 2010
Indictment No 835 of 2011

THE QUEEN

SHANE ANTHONY UITTENBUSCH

BRISBANE

..DATE 29/03/2012

RULING

HER HONOUR: A matter has arisen for a pre-trial ruling with
regard to the evidence to be given by the two complainants in
this matter, Gavin Vincent Hyde and Mark Gregory Leeder. The
unusual circumstance has arisen that both complainants have
died subsequently to the events in question and before the trial for reasons unrelated to the alleged offences. Mr Hyde is the complainant in counts 2, 3 and 4 on the indictment: robbery with circumstances of aggravation, attempted murder and, alternatively, malicious act with intent. He died on
24 January 2010. Mr Leeder is the complainant in counts 1 and
5 on the indictment, burglary with circumstances of
aggravation and wounding. He died on 26 or 27 September 2010, I am informed, from a heroin overdose.

The prosecution submits that the requirements for admissibility of those statements under s 93B of the
Evidence Act 1977 (Qld) have been satisfied. Section 93B relevantly provides:

"(1) This section applies in a prescribed criminal proceeding if a person with personal knowledge of an asserted fact—
(a)made a representation about the asserted fact; and
(b)is unavailable to give evidence about the asserted fact because the person is dead...

(2)The hearsay rule does not apply to evidence of the representation given by a person who saw, heard or otherwise perceived the representation, if the representation was
(a)made when or shortly after the asserted fact happened and in circumstances making it unlikely the representation is a fabrication; or
(b)made in circumstances making it highly probable the representation is reliable; or
(c)at the time it was made, against the interests of the person who made it."

The relevant section for the admissibility in this case is
subsection (2)(a): that the representations which were given
as to the events that occurred on 6 October 2009, were made shortly after the asserted facts happened and in circumstances making it unlikely that the representations were a fabrication.

The prosecution, if necessary, also relies upon paragraph (b):
that the statements were made in circumstances making it
highly probable the representations are reliable, but the
subsections are in the alternative and, in my view, it is not
necessary to go on to consider subsection (b) because the
matters fall within subsection (a).

As to whether or not the representations were made shortly
after the asserted fact happened, the offences to which the
evidence relates occurred at approximately 1 a.m. on 6 October
2009. Mr Hyde was transported to the Princess Alexandra
Hospital from the scene shortly afterwards. Police obtained a
signed statement from him on 7 October 2009 while he was still
in the Princess Alexandra Hospital. Mr Leeder was transported to the same hospital where he was treated and he was then released when he returned to his unit, where he was located by
the police on 6 October…

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 Uittenbusch

Details

AGLC: R v Uittenbusch [2012] QSC 89
Case: [2012] QSC 89
Decision Date: 29/03/2012

CaseChat Overview and Summary

In the Supreme Court of Queensland, Atkinson J presided over a pre-trial ruling in the case of the Crown versus Shane Anthony Uittenbusch, concerning the admissibility of statements made by two deceased complainants, Gavin Vincent Hyde and Mark Gregory Leeder, who were allegedly victims of aggravated robbery and wounding. The central legal issue was whether the statements made by the deceased complainants, who were unavailable to testify due to their deaths, were admissible under section 93B of the Evidence Act 1977 (Qld). This section allows for the admission of hearsay evidence when the declarant is deceased and the statement was made shortly after the event and in circumstances making it unlikely the statement was fabricated.

The court considered the timing and circumstances of the statements. Mr Hyde's statement was obtained the day after the incident while he was still in hospital, and Mr Leeder's statement was made on the same day of the incident at the police station. Atkinson J concluded that both statements met the criteria under section 93B(2)(a) of the Evidence Act, as they were made shortly after the events in question and in circumstances that made it unlikely they were fabricated. The court rejected the defence's argument to exclude the statements under section 130 of the Evidence Act, which allows for the exclusion of evidence if it would be unfair to the accused. Atkinson J held that any concerns about the reliability of the statements could be addressed through appropriate jury directions under section 93C of the Act.

In conclusion, Atkinson J ruled that the statements of both Mr Hyde and Mr Leeder could be admitted as evidence under section 93B of the Evidence Act, subject to the necessary warnings being given to the jury regarding any factors that might affect the reliability of the statements.

Orders