The Queen v Soma [2003] HCA 13

HIGH COURT OF AUSTRALIA

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.

Evidence Act 1977 (Q), ss 18, 101, 130.

1. 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". 2. 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. 3. The respondent's reference to his pulling at the complainant's hair was of some significance. The complainant alleged that, before taking her inside, the respondent had forced her to the ground outside the house in which intercourse occurred and had pinned her to the ground. A broken necklace which the complainant said was hers was later found outside that house. 4. The police officer who had interviewed the respondent was called by the prosecution to give evidence. The prosecutor asked him no question about interviewing the respondent. Nor did the respondent's counsel. The tape was not tendered. The prosecution closed its case. 5. The respondent chose to give evidence in his defence. The account he gave in his evidence‑in‑chief was, in many respects, consistent with what he had told police but it did not deal with every matter to which reference was made in the interview. He did say that he had broken the complainant's necklace. In cross‑examination, the prosecutor asked the respondent whether the complainant had been crying outside the house and whether he had pushed her onto the ground. The respondent denied both suggestions. The prosecutor then put to him that, in speaking to police on 19 May 2000, he had told police both that the complainant had been crying outside the house, and that he had pushed her onto the ground. The respondent denied saying these things to police. The prosecutor then played that part of the tape recording of the respondent's interview with police in which he admitted that the complainant had been crying outside the house, and that he had pushed her onto the ground. The respondent admitted that it was his voice on the tape. The respondent sought to explain what he had told police by saying, in effect, that he was scared and confused when interviewed. 6. The prosecutor then put to the respondent that he had thrown the complainant to the ground and "had held some cloth around her throat tightly". The respondent's answer was "No, I not say that". The prosecutor did not pursue this answer further, even though it was not directly responsive to the question which had been asked. He continued to cross‑examine the respondent about whether the complainant had been crying and about why he had told police that she had been. The prosecutor then played a further part of the tape‑recorded interview. In the further part that was played, the interviewing officer asked the respondent whether he had put a T-shirt around the complainant's mouth, and the respondent agreed that he had. Although the respondent had been asked whether he had put something around the complainant's throat he had not denied that he had done so; he had said only that he had not told police that he had done so. 7. There was no objection made to the playing of either part of the tape recording. There was no objection to the questions the prosecutor asked the respondent about his police interview. Those parts of the tape‑recorded interview which were played were tendered in evidence. Counsel for the respondent foreshadowed the possibility of objecting to their reception on the basis that the tape recording was too indistinct to be useful. That objection was not pressed and no other objection made to the reception in evidence of the two parts of the tape that had been played to the jury.