Advice on evidence in the matter of Pitt and the charge of Rape
The prosecution bears the burden of proving beyond reasonable doubt the elements of the offence of Rape as set out in s349 of the Criminal Code (QLD).
‘The fundamental rule governing the admissibility of evidence is that it be relevant. In every instance the proffered evidence must ultimately be brought to that touchstone’.
Statement by Munny Keo
Munny’s statement would be relevant because it supports a chain of events and provides circumstantial evidence of the offence. The statement would be admissible as documentary evidence under s 93A of the Evidence Act 1977 (Qld) as Munny is available to give evidence.
I will address the issues contained in Munny’s statement in the order that they appear.
1. Munny’s statement that he saw a suspicious person would be inadmissible to the extent that the truth contained in the words would be hearsay, however the statement may be admissible as Res Gestae if the statement was A) made at or close to the time of the event and B) was spontaneous.
It is unlikely that the statement would be admitted as Res Gestae because the statement does not appear to be spontaneous, in that there was no way that Munny could have known about the crime other than seeing it on TV. Therefore, the statement cannot have been made at or close to the time of the event.
2. Munny’s claims that he was walking to catch a bus could be corroborated by his friend therefore more reasonably supporting the evidence that he was close to the chemists at the time. At common law his evidence would be required to be corroborated by his friend because he is a child. Even if Munny’s friend was able to corroborate his statement it is likely that the judge would issue a corroboration warning to the jury under s93C of the EA.
3. Because Munny is under the age of 16 he will fall in the category of a Special Witness in s21A of the EA. Because of Munny’s status as a Special Witness the judge may make any one of a number of orders including approving a support person to be with Munny or that he give evidence in a room. Given that Munny moved to Australia before he was born and was educated in English speaking Australian schools it is unlikely that language will be determined as an issue however the court may have regard to his cultural background. Any cross examination of Munny must abide by s9B and s9E of the EA and treat him with compassion, dignity and respect, not intimidate him and limit any potential trauma when giving evidence.
4. Circumstantial evidence that Munny saw a person coming out of a chemist holding what appeared to be a substance that was allegedly used to drug the victim is problematic. No evidence has been provided that suggests any form of identification method applied to Munny’s identification of the drug. If the prosecution is unable to provide any evidence to corroborate that Munny correctly identified a drug then his eye-witness account becomes irrelevant as he merely identified a person coming out of a chemist holding something. Even if his identification evidence of the defendant is admissible and corroborated by the use of a photoboard the evidence has no relevance to the offence without the inclusion of the drug and is therefore inadmissible.
It is likely that the judge will give a judicial warning about the identification of the defendant because it is possible that Munny’s recollection might have been influenced by hearing the age and gender of the accused on TV. It is further possible that the judge might use judicial discretion to exclude the evidence on that basis with it being more prejudicial the probative in value.
5. Munny’s evidence about the identification of the White Honda Civic is likely to be excluded as opinion on the facts as presented. Despite his belief that he is somewhat of an expert Munny’s opinion is not derived from an accepted body of knowledge or established field of expertise and therefore could not classified as an expert. Furthermore, Munny does not have any relevant qualifications that might aid the identification of the car. He is currently training as an electrician and therefore cannot rely on relevant experience or observation over formal training. The fact he is only 15 goes a significant way in defending any submission that he might be an expert in any field.
Munny’s evidence identifying the car is unlikely to be admissible under the opinion of a lay-person as it is not something a person would acquire through the course of life.
It should be considered however that Munny’s evidence may be admissible if some evidence is lead that provides a degree of familiarity for Munny with the car, for example, if Munny’s parents owned a 2011 Honda Civic he might have enough familiarity with the item to be able to provide a reliable opinion. Alternatively his evidence might be admitted as identification evidence if it can be supported by some other means, such as selecting similar cars from a photoboard.
6. Whilst the admissibility of eyewitness identification evidence is undoubted, its notorious fallibility has meant that the common law has developed rules to ensure its quality. Identification evidence by way of photoboard can be admissible when there is a fair selection of photographs.
It is unreasonable to conclude that showing the witness five photos, one of which was the accused amounted to a fair selection of photographs and therefore the identification evidence is likely to be excluded.
7. The judge is likely to consider the effect of the police telling Munny that he had correctly identified the accused as prejudicial. It might be that a judge will apply their discretion in s98 and s130 of the EA to exclude all of Munny’s evidence on the basis that the statement was made in such unsatisfactory circumstances that it would be unfair on the accused for it to be admitted. The effect of the police telling Munny that he had correctly identified the accused from a very small selection of photographs means that a more satisfactory identification parade cannot be undertaken because Munny has had the accused identified to him.
8. The trial judge may consider a ‘voir dire’ to determine the admissibility of Munny’s evidence. It is important to note the distinction that the court only needs to be satisfied on the balance of probabilities to admit the evidence. The issue is likely to be resolved before the trial commences.
9. The question of weight requires careful consideration for Munny’s evidence as it plays an important role in establishing circumstantial evidence but is burdened by the fact he is a minor. It may be that Munny’s evidence is not given much weight but that will depend on his credibility as a witness when cross-examined.
Notes of police interview with Riva Keller
The issue of unsigned notes purporting to set out a police interview has been discussed at length, most notably in Driscoll v The Queen, and more recently in Aytugrul v The Queen. Where a document is tendered its admission might be evidence of truth of the matters contained in it, therefore Barwick CJ and Gibbs J suggested that undue weight might be given to that evidence by a jury. If undue weight is given to evidence Barwick CJ considered whether it was more appropriate to exclude it in the interests of justice.
Whilst the document might not be admitted the officer could still give oral evidence about the confession and could use the document, if they had prepared it, to refresh their memory in or before a court appearance but that in itself would not render the statement admissible.
The issue of credibility then arises from cross-examination of the police officer so that the jury might determine the truth of their oral evidence and attach the appropriate weight to that evidence instead of the documentary evidence.
It should be noted however that Barwick CJ suggested in Wright’s case that the decision in Driscoll did not mean that all unsigned notes implied a lack of credibility on all officers making them. Furthermore, the matter of Boyson and Gray suggested that not all unsigned records should be rejected and went on to set out four propositions that should be considered on whether to admit the document. It is particularly relevant whether the contents of the document are adopted by the accused either by signature or conduct. If the contents of the record have been adopted by the accused then the document can be admitted.
Because Ms Keller qualified her statement by the words “I would have to check” it is unlikely that cross-examination will establish a prior-inconsistent statement under s92 of the EA as she could rely on that assertion to argue that the accused was not with her when she did have chance to check. It is therefore also unlikely that she would be deemed a hostile witness simply because she relied on that assertion.
At all times however s98 and s130 allow the judge to consider the prejudicial and probative value of the evidence and make a determination on whether to admit of exclude the evidence.
The weight given to the evidence provided by the police officer will depend on their credibility as a witness. It will be very relevant to consider the credibility of Riva if she gives evidence that conflicts with the police officers version of events. If more weight is given to Riva’s evidence then the only possible outcome may be that the accused is acquitted.
Red light camera photo
The photograph would be real evidence and would be admissible subject to the discretion to reject when the prejudice to the accused exceeds the probative value. It would be relevant as circumstantial evidence admissible under Res Gestae due to being evidence that reveals a consciousness of guilt by depicting an inference that the accused had removed the number plates from his car so as to evade detection and important in the chain of events that flow that make up the ‘transaction’. It might also be relevant that the same vehicle was breaking the road rules in a hurry to escape the crime scene.
The level of distortion in the grainy picture would need to be assessed and might require an expert to provide evidence. A suitable expert with the relevant qualifications and or experience would be required to give evidence as to the make, model and year of the vehicle.
If a suitable expert does not match the vehicle with the accused’s car then the evidence will not be relevant and will be inadmissible. The weight attached to the red light camera photo will depend on the expert evidence that supports it.
The police notebook would be inadmissible under the hearsay rule as it purports to contain the truth of the matters in it. Officer Novak would however be able to use the notebook to refresh her memory before or during the trial.
It is likely that the prosecution will attempt to rely on the expert evidence of Mr Winter to demonstrate a sufficient foundation of relevance that connects the cushion cover with the stain to the defendant and the offence. If the prosecution is unable to prove a sufficient connection of the item to the defendant and the offence then the item simply becomes a cushion cover with a stain on it and is likely to be irrelevant and inadmissible.
It is therefore appropriate to consider whether the requirements are met for the admissibility of the expert witnesses report, particularly in relation to s95A(2) of the Evidence Act 1977 (Qld) (“EA”). If the requirements are not met then the expert’s evidence may become inadmissible as it would run foul of the hearsay rule , thereby rendering the cushion irrelevant as no connection could be established meaning that it was also inadmissible.
If it is demonstrated that there have been mistakes in the preparation of the report then that may affect the witnesses credibility and reduce the weight attached to their evidence.
Critical to the prosecution’s case is the item marked ‘cushion from lounge’. The prosecution will need to establish continuity evidence to demonstrate that the cushion cover and stain tendered are the same as that was found at the scene. If they are unable to prove the continuity of evidence then the item may be inadmissible.
The labelling of the reference samples is objectionable on the basis that it is documentary evidence and therefore subject to the Heresay Rule and should be excluded. The use of the defendants and victims name on the reference samples implies that the contents of the samples are from those persons indicated.
It might very well be argued that the judge should use their discretion to exclude the reference samples from evidence because the labels render them more prejudicial than probative.
Photographs of the Scene
The photographs of the scene may be relevant and admissible as real evidence if the prosecution can attach the defendant to the victim and the offence with the cushion cover. If the cushion cover, reference samples or the DNA report become inadmissible then the photos might merely depict a room with a cushion with a stain on it and therefore be irrelevant.
Conclusion: A Circumstantial Case
The matter appears to be made up of largely circumstantial evidence. Where a case consists of wholly circumstantial evidence it must be established that the only reasonable conclusion by connecting the evidence is that the guilty inference of the accused. The test to be considered in a circumstantial case is that of Shepherd v The Queen. That is to say that all the evidence should be considered as a whole and not piecemeal.
It should be noted that the more circumstantial evidence that is merely probable increases the risk of mistake and therefore the possibilities of error at all points must be combined and assessed together.
There are two analogies that might apply to a circumstantial case. The first is the ‘rope’ analogy whereby the evidence is seen to be strands of the rope, and the failure of one strand does not necessarily break the remaining might still support a conviction. The second is the ‘links in a chain’ analogy whereby the failure of just one link means that the accused must be acquitted.
This case appears prima facie to be one where the circumstantial evidence follows the ‘strands in a rope analogy’. That is to say that the failure of one piece of evidence does not necessarily defeat the quest for a conviction however it might lessen its strength.
However, if it were to be established that the accused was with Riva Keller at the time of the offence and the oral evidence provided by the police officer is false it will be a fatal break in the chain that will mean the only conclusion is a not guilty verdict.
The key issue to note is that it is for the prosecution to prove the elements of the offence beyond a reasonable doubt.
It will be important to consider the likely assessment of credibility of the witnesses before trial to form a view of the likely weight that will be attached to their evidence so that you might understand the prospects of success.
A Articles / Books / Reports
David Field, Queensland Evidence Law, (2nd ed, LexisNexis, 2011).
JRS Forbes, Evidence Law in Queensland, (8th edition, Thomson Reuteurs, 2010).
Loftus and Doyle, Eye Witness Testimony: Civil and Criminal (3rd ed, Butterworths, 1997).
Jeremy Gains and Andrew Palmer, Uniform Evidence, (2nd ed, Oxford University Press, 2014).
Aytugrul v The Queen (2012) 247 CLR 170.
Boyson and Gray Unreported, NSW Court of Criminal Appeal, 28 September 1979.
Clark v Ryan (1960) 103 CLR 486.
Commissioner for Railways (NSW) v Young (1962) 106 CLR 535.
Domican v The Queen (1992) 173 CLR 555 at 561.
DPP v Hester  AC 296.
Driscoll v The Queen (1977) 137 CLR 517.
Duke v Duke (1975) 12 SASR 106.
F (1995) 83 A Crim R 502.
Kelleher v R (1974) 131 CLR 534.
Morrison v Jenkins (1949) 80 CLR 626.
Murdoch v The Queen (2007) 167 A Crim R 329.
O’Leary v R (1946) 73 CLR at 577..
Plomb v The Queen (1963) 110 CLR 234.
R v Ames [1964-5] NSWR 1489.
R v Baden-Clay  QCA 265.
R v Exail (1866) 4 F & F 922.
R v Jung  NSWSC 658.
R v Ratten  AC 378.
Ramsay v Watson (1961) 108 CLR 462.
Shepherd v The Queen (1990) 170 CLR 573.
Weal v Bottom (1966) 40 ALJR 436.
Wendo v R (1963) 109 CLR 559.
Wilson v The Queen (1970) 123 CLR 334 at 337 per Barwick CJ.
Criminal Code Act 1899 (Qld)
Evidence Act 1977 (Qld)