R v McGrane [2002] QCA 173

SUPREME COURT OF QUEENSLAND

CITATION: R v McGrane [2002] QCA 173

PARTIES: R / v / McGRANE, Michael / (appellant)

FILE NO/S: CA No 1 of 2002 / SC No 619 of 2000

DIVISION: Court of Appeal

PROCEEDING: Appeal against Conviction and Sentence

ORIGINATING COURT: Supreme Court at Brisbane

DELIVERED ON: 17 May 2002

DELIVERED AT: Brisbane

HEARING DATE: 1 May 2002

JUDGES: de Jersey CJ, McMurdo P and Atkinson J / Separate reasons for judgment of each member of the Court, each concurring as to the order made.

ORDER: The appeal should be dismissed

CATCHWORDS: CRIMINAL LAW – CRIMINAL LIABILITY AND CAPACITY – MENS REA - PROOF AND EVIDENCE – CIRCUMSTANTIAL EVIDENCE - where the character of the Crown case was circumstantial – where it was based on the contention that the appellant doctor killed the deceased, his patient, by injecting her with a very large dose of morphine – where his motivation was to avoid her pursuing a complaint against him of professional misconduct - where appellant knew of complaints by the victim accusing him of professional misconduct / CRIMINAL LAW - PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – HOMICIDE – MURDER – GENERALLY / CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – OBJECTIONS AND POINTS NOT RAISED IN THE COURT BELOW – IMPROPER ADMISSION OR REJECTION OF EVIDENCE / CRIMINAL LAW – EVIDENCE – JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE – GENERALLY – where similar fact evidence of the appellant’s sexual abuse of patients was admitted into evidence at trial – where that evidence established propensity of the appellant to drug and sexually assault female patients – whether that evidence should have been admitted or whether it was left to the jury on too broad a basis / EVIDENCE – ADMISSIBILITY AND RELEVANCY - HEARSAY – IN GENERAL – RELEVANT PRINCIPLES - where unidentified Asian female telephoned to complain about being drugged by the appellant - whether this evidence could be brought into evidence within the exceptions to the hearsay rule as involving a representation of the drugging of the victim by the appellant expressed by someone on behalf of the victim – whether representations include implied and inferred representations – whether it could be inferred that the deceased was present when the telephone call was made – where the admission of technically inadmissible evidence, not objected to for rational forensic reasons could result in the quashing of a conviction – where even if the evidence was considered inadmissible, there was no substantial miscarriage of justice such as to invalidate the conviction / CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONCITION – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – TESTS – WHETHER JURY WOULD HAVE RETURNED SAME VERDICT – IMPROPER ADMISSION OR REJECTION OF EVIDENCE / Criminal Code (Qld), s 592A, s 688E / Evidence Act 1977 (Qld), s 93B, s 93C / Evidence Act 1995 (NSW), s 65 / Evidence Act 1995 (Cth), s 65 / Conway v R (2000) 172 ALR 185, referred to / de Jesus v R (1997) 61 ALJR 1, applied / Festa v R (2001) 76 ALJR 29, referred to / M v The Queen (1994) 181 CLR 487, applied / Pfennig v R (1995) 182 CLR 461, applied / R v Mankotia [1998] NSWSC 295, 27 July 1998, referred to / R v McGrane: file no. s 619 of 2000, 10 May 2001 per Mullins J, referred to / R v McIntyre [2002] NSWCCA 29, referred to / R v O'Keeffe [2001] 1 QdR 564, applied / R v Serratore (1999) 48 NSWLR 101, referred to / Shepherd v R (1990) 170 CLR 573, applied / Suresh v R (1998) 72 ALJR 869, applied / Wilde v R (1988) 164 CLR 365, referred to

COUNSEL: A J Glynn SC, for the appellant / R G Martin SC, for the Crown

SOLICITORS: Robertson O'Gorman for the appellant / Queensland Director of Public Prosecutions for the Crown

de JERSEY CJ: The appellant was convicted of the murder of Yuen Ling Chan at Brisbane on a date between 24 January 1997 and 1 February 1997. The appellant was at the time a practising medical practitioner and Ms Chan was one of his patients.

The character of the Crown case was circumstantial, based on the contention that the appellant killed the deceased by injecting her with a very large dose of morphine. His motivation, affirmatively advanced by the Crown, was to avoid her pursuing, before the Health Rights Commission, a complaint against him of professional misconduct. The grounds of appeal, as pursued, are that the verdict is unsafe; that propensity evidence, from the witnesses Ms Pike and Ms Watkins, should not have been admitted, or alternatively, was left to the jury on too broad a basis; that evidence concerning a complaint by the deceased that the appellant had drugged her was inadmissible; and that evidence from Dr Kable about the history usually taken by a doctor from a pregnant patient was inadmissible. Before turning to those grounds, I will attempt to summarize the essentials of the evidence. The trial lasted approximately eight weeks, so that what follows is but a brief summary of a very large body of evidence.

The deceased was a woman of Chinese origin. At the time of her death she was about 30 weeks pregnant. Her husband lived in Hong Kong, and hoped to join her in Brisbane in early February 1997. She was by nature conservative, studious and religiously devout, and her friends and acquaintances who gave evidence rejected the possibility of her being involved in heroin use, or being suicidal. The circumstances in which her deceased body was found were inconsistent with death by suicide or the voluntary use of drugs. She was found in bed lying on her back, still wearing her glasses, with the bed covers pulled right up to her chin, and “tucked in” in a way she would have been unable to accomplish by herself. There was no sign of any struggle, or of the presence of any of the paraphernalia usually associated with the administration of heroin (or morphine). She was a security conscious woman, locking the door and using a chain and door guard. The landlord’s agent, who found the body, entered through the door, which was not then secured by the chain and guard, inconsistently with the habits of the deceased, and suggesting that the last person previously using the door had left by it. It was reasonable to infer that the deceased would have trusted only very few people to administer an injection to her, and that that small group would have included the appellant, her medical practitioner.

Analysis of the deceased’s body suggested that the amount of morphine administered to her was within the range of 202-222 milligrams, which was an enormous dose, seven to 20 times the therapeutic dose, and likely to have killed her quickly. The evidence showed that the appellant had access to such quantities of morphine. On 16 December 1996, he ordered the maximum amount available using the “doctor’s drug bag” book system, which was five ampoules, each containing 30 milligrams. He had not ordered morphine for years previously. In mid-January 1997, he again ordered the maximum quantity. The deceased’s husband was due to arrive in Australia on 4 February 1997. The deceased died over the weekend of 25 January 1997, from an overdose of morphine (or, theoretically possibly, heroin). The appellant did not order morphine again.

When the police searched the appellant’s surgery, they located three of the total of 10 ampoules obtained pursuant to those orders. The other seven ampoules would have contained a total of 210 milligrams of morphine which, if administered to the deceased, would have been consistent with the level of morphine found after death within her system. The appellant purported to explain the use of those seven ampoules by claiming that he had administered them to a series of other patients, as his patient notes and drug register appeared to confirm. But there was expert medical and handwriting evidence, which the jury must have accepted, from which they could reasonably have inferred that the appellant did not administer morphine to those other patients, and that he had deliberately falsified his records to suggest he had.

On 9 November 1996 the appellant undertook a home visit to the deceased. His notes indicate she presented with “abdo(minal) pain and vomiting”. In his interview with the police, he described her as writhing on the floor in pain. She was pregnant, and well advanced. He prescribed an injection of penicillin and Maxolon and left her with five milligram Valium tablets to be taken eight hourly. Evidence from Dr Kable suggested that approach was medically unusual. The appellant said he gave the deceased one injection containing both of the drugs referred to in his notes. In a letter to her husband the following day, the deceased said:

“I felt very bad and could not make my way to the doctor. I could only call the doctor and ask him to come and see me. He gave me two injections. I felt better, went to bed and slept intermittently for 15 hours. I was able to get up at 3.00am to eat something. In the afternoon I could hardly drink as whatever I drank I vomited.”

There was evidence that nothing given by the appellant, as he had recorded it, would have caused the deceased to sleep in that way. There was no explanation for the second injection, although in a letter to her husband a week later, on 19 November, the deceased spoke of “an” injection, in the singular.

On 22 November 1997 the deceased, or someone on her behalf, rang the Health Rights Commission. Whoever was speaking, it is clear from phone records that the call came from the deceased’s unit. The caller spoke to Ms Lee. The substance of the complaint was that the deceased felt she had been drugged during a doctor’s visit, and that the doctor was the appellant. She said she could not remember part of the time she was at the doctor’s surgery. (The Crown contended that the reference to the surgery was a mistake.) It is convenient to mention here one particular contention for the appellant, that her making such a complaint does not sit comfortably with the tone of her letters to her husband, which is not critical of the appellant; one even mentions purchasing a gift for him. This was very much a “jury question”: the significance of the appellant’s treatment of her may not have dawned on her until after she wrote the later letter.

That same day, 22 November, Ms Lee of the Health Rights Commission telephoned the appellant’s surgery intending to check the identity of the doctor involved, and spoke with Ms Hughes. The appellant was not there and his wife (and medical partner) would not speak to the caller. A note was however made and put into the practice’s diary indicating that the Health Rights Commission had rung. (Evidence of Ms Lee’s approach to Ms Hughes was, subject to the admissibility of Ms Lee’s evidence of the deceased’s complaint to her, admissible as original evidence of the interest at that time of the Health Rights Commission in the appellant, relevant to proof of the motive being advanced by the Crown).

As at that time, the appellant (who gave evidence at the trial) knew that complaints about his professional conduct had been made to the Health Rights Commission by Ms Pike and Ms Watkins. Each of those women gave evidence, ruled admissible on 1 October 2001 upon a pre-trial application before Ambrose J under section 592A of the Criminal Code. The learned trial Judge (Holmes J) did not depart from that ruling in so far as it concerned the evidence of Ms Pike and Ms Watkins, although she did not allow other evidence to be given which had been the subject of the ruling on 1 October. The basis of the admissibility of the evidence of Ms Pike and Ms Watkins was the propensity of the appellant to drug and then sexually assault female patients.

Ms Pike attended at the appellant’s surgery on 5 October 1995 complaining of back pain. There was discussion of the possibility of spinal manipulation, which Ms Pike refused. The appellant offered to inject her with Valium, to which she agreed. He advised she would pass out for maybe half an hour and then wake up and the pain would be gone. Having been injected, she passed out almost immediately. She recalled some return to consciousness. She felt her hand moving up and down, and was able to open her eyes for a couple of seconds, and saw the appellant had her hand on his erect penis, moving it up and down. She said the penis was covered by a condom. She then passed out again. She recalled waking up later in a different room, scared and panicky. She stumbled out of the surgery, on the way noting from a clock that she had been there an hour and a half. She returned to work, only to pass out when she arrived. As put by the Crown, “the appellant gave Ms Pike an injection which compromised her consciousness and he then took advantage of that to molest her sexually. Ms Pike complained to the Health Rights Commission, and the appellant was aware of that complaint at the time of the death of the deceased.”

The other witness, Ms Watkins, attended at the surgery in April 1996 complaining of an intense headache. She was on a break from work. The appellant listened to her chest with a stethoscope placed directly over her nipple or nipples (outside her clothing) which was, on expertly based evidence, unnecessary. The appellant told Ms Watkins she had a sinus infection and that he would give her an injection of penicillin. Although she had experienced no relevant symptom, she accepted his authority. He left and returned with an injection, saying he would give her Maxolon to help her headache. She asked would the injection make her drowsy. The appellant said she might feel woozy for a couple of minutes but then would be fine. She blacked out once given the injection. Regaining consciousness, she felt the appellant’s hand under her shift dress at the top of her thigh. The appellant apparently noticed her open her eyes and said in a surprised manner, “oh you are awake”, and as he removed his hand, his fingers brushed against her vagina. He then went behind his desk and told her she could go. She later discovered that the tampon she had been wearing when she went to the surgery was gone. She realised she had been unconscious for about 40 minutes. After regaining consciousness she with some effort returned to work. That night she went to a hospital, where blood was taken showing up the presence of Valium of which she had been unaware. Although the appellant’s notes make reference to Valium, there was evidence that the quantity he recorded in his notes was less than the amount with which she must have been injected, on the basis of the blood concentrations discovered at the hospital. Ms Watkins complained to the Health Rights Commission, and the appellant was, again, aware of her complaint as at the time of the death of the deceased.

Looking globally at the Crown case, one sees it comprised these major elements:

Evidence of the deceased’s habits and lifestyle: she was conservative, studious and devout, not given to unlawful drug taking and hardly likely to commit suicide.

She was security conscious, and the circumstances in which the dead body was found also suggested that her death was caused by another.

The likely cause of her death – a massive overdose of morphine – raised the possible significance of the availability of such a quantity to the appellant, in circumstances where he implausibly advanced other explanations for its use, and where she would probably have trusted him, of very few, to administer any injection.

On 9 November 1996, the deceased drugged the appellant during a home visit. He is likely on about 22 November 1996 to have become aware of an approach to his surgery by the Health Rights Commission.

The appellant had previously been subject to complaints by two female patients to the Health Rights Commission, concerning sexual interference with them while they were drugged, so that the further approach on 22 November 1996 – following about two weeks after the visit on 9 November 1996 – may well have prompted concern on the appellant’s part.

Thereafter, in mid-December 1996 and mid-January 1997, the appellant ordered the maximum amounts of morphine available to him through the “doctor’s drug bag” system. He had not previously, over some years, ordered morphine, and did not subsequently. The deceased died on about 25 January 1997, with her husband due to return to Brisbane from Hong Kong on 4 February 1997. There was a basis from which the jury might reasonably have been satisfied that the appellant knew of the deceased’s husband’s intention to return to Brisbane at that time to rejoin his wife.

Evidence of Ms Lee

Logically, the first issue falling for determination is the admissibility of the evidence concerning the complaint by Ms Lee to the Health Rights Commission – logically because it comprises an important “thread” in the circumstantial case which will later have to be assessed in its admissible entirety. The Crown suggested this claim that the deceased had been drugged by the appellant put her into a situation comparable with those of Ms Pike and Ms Watkins, albeit that she did not directly allege sexual interference. This evidence also helped to explain, of course, why the appellant would have been concerned to learn of the interest of the Health Rights Commission, about a fortnight after his home visit to the deceased, thereby going to establish motive.

Especially because no objection was taken on appeal to any aspect of the summing up, it is convenient to set out what Holmes J then said of this evidence:

“On 21 November, the telephone records show a call to the McGranes’ practice at Ladhope on Wickham Terrace and Mr McGrane says that was an Asian lady ringing on Ms Chan’s behalf to make an appointment. On 22 November 1996, Sharon Lee, the investigator with the Health Rights Commission, received a complaint by way of two telephone calls from someone with a foreign accent, apparently ringing on behalf of someone named Yuen, which you will remember was Ms Chan’s Chinese name, of Rialto Street, Coorparoo. Ms Lee said the complaint was that she felt she had been drugged during a doctor’s visit and the doctor in question was Mr McGrane.

Now when she initially gave her evidence, Ms Lee referred to the drugging occurring during a doctor’s visit but later the way she expressed it was that Ms Chan didn’t remember part of the time she was at the doctor’s surgery. You will remember that Mr Macgroarty says about that, that that suggests it had nothing to do with home visits by Mr McGrane.

Ms Lee says the caller was hesitant about the prospect of lodging a written complaint. The calls, by the way, correspond with the phone records which show two calls from the Commission from Ms Chan’s service, one at 10.20 and one at 1.49.

Now, you will recall I told you earlier that one form of hearsay evidence that was allowed was something said by a person who is now dead. In this case the evidence seems to be that Ms Chan was not the person who actually spoke to Ms Lee but it seems clear enough in context that whoever the speaker was, it was coming from Ms Chan.”

The learned trial Judge thereby presented the evidence to the jury as involving a representation to Ms Lee – of the drugging of the deceased by the appellant – expressed probably by someone on behalf of the deceased: “it was coming from Ms Chan”.

It is not immediately easy to bring this evidence, given by Ms Lee, and not by the person speaking on behalf of the deceased, within the scope of s 93B of the Evidence Act 1997. s 93B is in these terms:

“Admissibility of representation in prescribed criminal proceedings if person who made it is unavailable

93B.(1) This section applies in a prescribed criminal proceeding if a person with personal knowledge of an asserted fact–

made a representation about the asserted fact; and

is unavailable to give evidence about the asserted fact because the person is dead or mentally or physically incapable of giving the evidence.

(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–

made when or shortly after the asserted fact happened and in circumstances making it unlikely the representation is a fabrication; or

made in circumstances making it highly probable the representation is reliable; or

at the time it was made, against the interests of the person who made it.

(3) If evidence given by a person of a representation about a matter has been adduced by a party and has been admitted under subsection (2), the hearsay rule does not apply to the following evidence adduced by another party to the proceedings–

evidence of the representation given by another person who saw, heard or otherwise perceived the representation;

evidence of another representation about the matter given by a person who saw, heard or otherwise perceived the other representation.

(4) To avoid any doubt, it is declared that subsections (2) and (3) only provide exceptions to the hearsay rule for particular evidence and do not otherwise affect the admissibility of the evidence.

(5)In this section–

“prescribed criminal proceedings” means a criminal proceeding against a person for an offence defined in the Criminal Code, chapters 28 to 31.

“representation” incudes–

an express or implied representation, whether oral or written; and

a representation to be inferred from conduct; and

a representation not intended by the person making it to be communicated to or seen by another person; and

a representation that for any reason is not communicated.

The subject of the representation for the purpose of that section, that is, the drugging of the deceased, was relevantly “known” to the deceased, and she obviously fell within s 93B (1)(b). But for sub-s (2) to apply, the evidence of the representation, to avoid the application of the rule against hearsay, would prima facie have to be given not by Ms Lee, but by the person who, on the deceased’s behalf, spoke to Ms Lee.

Mr Martin, who appeared for the Crown, relied however on the confirmation in sub-s (5) that “representation” includes implied and inferred representations, submitting that because the deceased would have been present when the caller telephoned Ms Lee, the deceased should – for her apparent want of objection to what was said – be taken to have supported, impliedly or inferentially, what was said, thereby by conduct representing its truth. While during argument I suggested this approach to the section was somewhat contrived, on further consideration I accept that if such a representation could reasonably be implied or inferred from the circumstances, sub-s (1) may operate.

The “asserted fact” (sub-s (1)) is the drugging, a matter within the deceased’s personal knowledge, and she, impliedly or inferentially (sub-s (5)) “made a representation about the asserted fact” (sub-s (1)(a)) if she should reasonably be seen as having permitted the caller to repeat that assertion to Ms Lee without her (the deceased’s) intervening; and of course her death prevented her giving evidence about it (sub-s (1)(b)).

Could it reasonably have been inferred that the deceased was present when the call was made, and that she overheard and did not cavil with it? It was clear that the call came from the deceased’s unit. The deceased was the only occupant of that unit. She was a conservative, security conscious person. I accept Mr Martin’s contention that it might reasonably have been inferred that the deceased was present at the time and at least acquiesced in what was said, and reject the counter submission from Mr Glynn SC that to approach the matter in that way would be to engage in impermissible speculation. I would regard those matters as not “intermediate facts which constitute indispensable links in a chain of reasoning towards an inference of guilt” (Shepherd v R (1990) 170 CLR 573, 579 per Dawson J.) I am particularly influenced, in relation to the factual issue, by what Holmes J said in the summing up, acknowledging that Her Honour was no doubt acutely alive to the flavour of the evidence, in context, given in the course of a very long trial: “…it seems clear enough in context that whoever the speaker was, it was coming from Ms Chan.” The track to these conclusions was not explored in the summing up. That is explained by the withdrawal of objection to the evidence, covered in the next paragraph of these reasons. The learned Judge did fully instruct the jury on the question of the reliability of Ms Lee’s evidence.

The admissibility of Ms Lee’s evidence had been raised at an early pre-trial directions hearing before Mullins J. On 10 May 2001, Her Honour stood over further consideration of the point pending her being given further submissions she requested. No further submissions were advanced. At the trial before Holmes J, counsel for the appellant, counsel of considerable experience in the criminal court, not only failed to object to the evidence of Ms Lee, but actually withdrew any unresolved objection to its being given. It is not for this court to speculate about any particular reason for that. At the hearing of the appeal, Mr Glynn SC (who was not defence counsel at the trial) offered a particular explanation, but he subsequently withdrew it – and offered to provide another. I do not consider we should go into that. One may safely infer the position taken by experienced defence counsel at the trial was tactically motivated. While before us Mr Glynn described the withdrawal of the objection as mistaken, it would in my view be wrong to permit the defence to sustain a contrary position on appeal, where this position was presumably with deliberation taken at the trial.

I am indebted to Atkinson J for the reference to Suresh v R (1998) 72 ALJR 69, where at p 774, McHugh J said:

“It would undermine the system of adversarial criminal justice if the admission of technically inadmissible evidence, not objected to for rational forensic reasons, could result in the quashing of a conviction because the forensic tactics had failed to bring about the accused’s acquittal.”

See also p 781, per Hayne J, and de Jesus v R (1997) 61 ALJR 1, 3 per Gibbs CJ.

I should add that even were the evidence to be considered inadmissible, its admission did not in my view produce a “substantial miscarriage of justice” such as to invalidate the conviction: there would have been strong grounds for resort to the proviso set up by s 668E(1A) of the Criminal Code. That is because a reasonable jury, properly instructed would inevitably have convicted the appellant even had the evidence of Ms Lee (and Ms Hughes) not been led (Festa v R (2001) 76 ALJR 291, 312-3).

The residual case against the appellant was powerful, even after allowing for the appellant’s denials. The appellant had access to the deceased, as her medical practitioner. He visited her at her home on 9 November 1996 and, as one reasonably infers from her letter and the expert medical evidence, drugged her without sufficient medical justification. He had previously drugged and sexually assaulted female patients, provoking complaints to the Health Rights Commission, of which he was aware. He probably knew of the deceased’s husband’s intended return in early February. In December and January he secured large amounts of morphine, contrary to his past and subsequent practice. There was substantial, objectively based evidence that he falsely claimed to have administered a quantity of the morphine to other patients. That quantity effectively “matched” the amount found in the deceased’s body, and which caused her death. I consider a properly instructed jury would inevitably have convicted the appellant on that evidence.

It is however my primary view that the evidence of Ms Lee was properly admitted at the trial.

Evidence of Ms Pike and Ms Watkins

In R v O'Keefe (2000) 1 Qd R 564, 573, Thomas JA, with the agreement of Pincus JA and Davies JA, expressed the view that Pfennig v R (1994-5) 182 CLR 461 obliges a trial judge to address two issues in relation to such evidence:

“(a)Is the propensity evidence of such calibre that there is no reasonable view of it other than as supporting an inference that the accused is guilty of the offence charged?…

(b)If the propensity evidence is admitted, is the evidence as a whole reasonably capable of excluding all innocent hypotheses?”

In his pre-trial ruling on 1 October 2001, Ambrose J, dealing with those issues, said this:

“The propensity evidence (ie the activities of the accused with female patients other than the deceased) in the context of the nature and time of those activities is capable of excluding all reasonable hypotheses of the activities of the accused with the deceased on 9 November 1996, other than that he administered a stupefying drug or drugs to her with intent to indecently assault her. One must assume of course that the propensity evidence in issue is accurate and truthful. If satisfied of that fact, a jury might then consider that fact as a circumstance, which with all the other circumstances to which I have referred excludes all hypotheses inconsistent with the accused intentionally killing the deceased as charged…”

Mr Glynn first submitted that His Honour did not answer the correct question, which he submitted required the Judge to be satisfied of the exclusion of all other such hypotheses. Mr Glynn criticized His Honour’s references to what “a jury might then consider”, and his satisfaction that the evidence was “capable of” excluding other reasonable hypotheses. But as said in O'Keefe (para 24):

“The relevant ruling of a trial judge must surely be on the basis of what the evidence is reasonably capable of showing, or in the present context, of what it is reasonably capable of excluding. This differs from the jury function of deciding what the evidence actually proves.”

A separate point taken for the appellant was that such propensity evidence could not constitute “a step in the proof of the case of murder”, whatever be the position as to its admissibility on a charge of sexual assault. Significantly for the argument, of course, neither Ms Pike nor Ms Watkins was killed. But as convincingly explained in O'Keefe, where the case is circumstantial, propensity evidence may be admitted, provided it supports an inference that the accused is guilty, and so long as that is the only way in which it can reasonably be viewed.

Propensity evidence, being a species of circumstantial evidence, cannot directly prove an element of an offence, as the appellant would seem to contend is necessary. Here, the Crown affirmatively advanced a particular motive as an important part of its proof of murder. This propensity evidence was critical to the Crown’s establishing that motive.

In my view, Ambrose J was right to conclude, with the subsequent support of Holmes J in respect of this evidence, that applying Pfennig, as explained in O'Keefe, the evidence was admissible: there was no reasonable view of it other than as supporting an inference, by means of proof of motive, that the appellant was guilty of murder, and the evidence as a whole was consequently rendered reasonably capable of excluding all innocent hypotheses.

By separate grounds of appeal, the appellant complains that the learned trial Judge erred in not ruling that the jury could not use the evidence of Ms Pike and Ms Watkins to determine the question whether the appellant sexually assaulted the deceased; and that she wrongly permitted the jury to speculate about that. Neither of those grounds was the subject of elaboration orally or in writing. Having considered the summing up, I am satisfied that Her Honour properly – and comprehensively – instructed the jury as to the relevant issue, and the relevance to that issue of that evidence, and that she appropriately cautioned the jury against speculating.

Dr Kable’s evidence

Dr Kable, a general practitioner, gave evidence that it was good practice for a doctor to obtain from a pregnant patient information about the father of the child. It would follow that if the appellant adopted that practice, the appellant may well have ascertained the date of the expected return of the deceased’s husband to Brisbane. That date was 4 February 1997, and the deceased died on about 26 January 1997. This was but one comparatively small piece of evidence in a very comprehensive circumstantial case. The objection understandably was not pursued with any great vigour at the hearing of the appeal. The evidence was in my view admissible.

Unsafe verdict

Finally, I confirm my conclusion that the ground that the verdict is unsafe (M v The Queen (1994) 181 CLR 487) was not sustained. For reasons already sufficiently expressed, it was a powerfully incriminating case upon which a reasonable jury should properly have convicted the appellant.

Order

The appeal should be dismissed.

McMURDO P: I have read the reasons for judgment of the Chief Justice in which the facts and issues are set out.

The first issue is whether the evidence of Ms Sharon Lee, an investigator for the Health Rights Commission, was properly admitted. She gave evidence that in late 1996 a caller with a foreign accent made a complaint to her in two telephone calls. Ms Lee's recollection was that the caller said she was speaking on behalf of somebody else who felt she was drugged during a doctor's visit. Ms Lee recalled that the victim of the complaint was "Yuen" (the first name of the deceased) of "Rialto Street, Coorparoo" (the street in which the deceased lived). The complaint concerned a male doctor, Dr McGrane. Ms Lee made notes of the conversation but did not have access to these notes at the trial as she no longer worked for the Health Rights Commission. It was common ground that access to those notes was legislatively prohibited.

Telephone records establish that two calls were made from the deceased's telephone to the Health Rights Commission at 10:20am and 1:49pm on 22 November 1996.

It seems the police investigation did not locate any person who made these phone calls on the deceased's behalf.

As a result of those telephone calls, Ms Lee phoned Dr McGrane's surgery and spoke to someone (a female, she thought) to ascertain if she had the correct name of the doctor mentioned in the complaint and whether the complainant was a patient at that surgery. She could not remember whether she mentioned the doctor's name or any details of that conversation.

Ms Hughes was a receptionist at the appellant's medical practice in 1996 and she attended work on the afternoon of Friday, 22 November 1996. Although she could not recall receiving a call from Ms Lee, the patient booking diary for that day contained the following entry in her handwriting as to a 2.00pm phone call:

" 'Sharon' from Health Rights Commission rang wanting to speak to Catherine.¹ I informed her communication over the telephone was not possible. Instead I offered her our fax number and also P O box number and that she was welcome to communicate via these avenues. 'Sharon' declined both these offers.

'Sharon' was unsure as to the doctor's actual surname and insisted I tell it to her. Lina Hughes"

Ms Hughes' evidence was admissible as evidence that the appellant's practice received this communication from the Health Rights Commission on 22 November 1996, eleven days after the appellant drugged the deceased during a home visit. This was a circumstantial fact relevant to the motive of the appellant in killing the deceased.

The prosecution contends that the hearsay evidence of Ms Lee is admissible under s 93B Evidence Act 1977 (Qld).

"93B (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 or mentally or physically incapable of giving the evidence.

(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.

(3) If evidence given by a person of a representation about a matter has been adduced by a party and has been admitted under subsection (2), the hearsay rule does not apply to the following evidence adduced by another party to the proceeding –

(a)evidence of the representation given by another person who saw, heard or otherwise perceived the representation;

(b)evidence of another representation about the matter given by a person who saw, heard or otherwise perceived the other representation.

(4) To avoid any doubt, it is declared that subsections (2) and (3) only provide exceptions to the hearsay rule for particular evidence and do not otherwise affect the admissibility of the evidence.

(5) In this section –

prescribed criminal proceeding means a criminal proceeding against a person for an offence defined in the Criminal Code, chapters 28 to 32.

representation includes –

(a)an express or implied representation, whether oral or written; and

(b)a representation to be inferred from conduct; and

(c)a representation not intended by the person making it to be communicated to or seen by another person; and

(d)a representation that for any reason is not communicated."

The Criminal Law Amendment Act 2000 (Qld)² amended the Evidence Act 1977 (Qld) in accordance with the recommendations of the Taskforce on Women and the Criminal Code³ by adding ss 93B and 93C. Comparable provisions exist in the Evidence Act 1995 (Cth)⁴ and the Evidence Act 1995 (NSW).⁵ Section 93B Evidence Act 1977 (Qld) which exceptionally allows for hearsay evidence to be received in criminal trials in the circumstances there set out, should be strictly construed, subject to adopting an interpretation that will best achieve the purpose of the legislation.⁶

There are a number of cases where hearsay evidence has been received in trials under comparable provisions to s 93B Evidence Act 1977 (Qld),⁷ but none that I have found where, as here, the representation may have been made by another on behalf of the unobserved principal representor.

In this case, the deceased had personal knowledge of the representation of the asserted fact that the appellant had drugged her during a doctor's visit.⁸ Plainly, she was unavailable to give evidence.⁹ It is not contended that the representation was outside either s 93B(2)(a) or (b). Ms Lee gave evidence that she heard or perceived¹⁰ the representation. The offence of murder is a "prescribed criminal proceeding."¹¹

It is not suggested that the judge failed to appropriately warn the jury of the dangers of hearsay evidence as required by s 93C Evidence Act 1977 (Qld).

The admissibility of Ms Lee's evidence turns on whether the representation, that Dr McGrane drugged the deceased during a doctor's visit, was made by the deceased.¹² A "representation" may be an implied oral representation or a representation inferred from conduct.¹³

It could reasonably be inferred from the evidence that the complaint to Ms Lee was made by the deceased herself, claiming to be phoning on another's behalf either to avoid embarrassment or because this was how she expressed herself in her second language, English. A second alternative open inference was that the phone calls were made by an agent of the deceased in the deceased's presence so that the agent's express representation was also the deceased's implied¹⁴ representation. If that were so, there is no evidence as to the deceased's conduct; this is not, therefore, a case where it is possible to infer a representation from conduct.¹⁵ The fact that a caller made a doctor's appointment on behalf of the deceased at the appellant's surgery the day before these phone calls supports either inference. A third, but less likely, alternative is that someone made the calls from the deceased's home in her absence.

It was a question for the jury as to which of those inferences they drew. Only if they excluded the last inference could they use the evidence of Ms Lee as evidence against the appellant.

These questions were not explored in evidence by the prosecution or the defence and nor were they dealt with by the learned primary judge in her careful and thorough summing up. This was because they were not issues in the trial. The appellant objected to the admissibility of the evidence of Ms Lee at a pre-trial hearing before Mullins J under s 592A Criminal Code.¹⁶ Her Honour reserved her ruling on the admissibility of that evidence pending further submissions from the parties as to the effect of Ms Lee's evidence. Those submissions were never made to her Honour and no further ruling was requested or given. During legal argument on the first day of the trial, the learned Crown Prosecutor, Mr Martin, who also appears for the respondent in this appeal, identified Ms Lee's evidence as "a very important point in the trial".¹⁷ On the seventh day of the 35 day trial, the prosecutor told the judge, in the presence of defence counsel, that defence counsel was no longer objecting to the evidence of Ms Lee. Ms Lee's evidence was given on the 14th day of the trial without objection.

In these circumstances it must be assumed that the decision to allow Ms Lee's evidence to be admitted without objection was made by the very experienced defence legal team after careful consideration as to how best conduct their case. Mr Martin informs us that defence counsel in his address emphasised that it was unlikely the deceased would allow the appellant to give her the injection which led to her death without, as the evidence establishes, any sign of struggle or resistance, when she had complained a few months earlier to the Health Rights Commission that he had improperly injected her with drugs. This provides a rational explanation as to why the defence was content to admit Ms Lee's evidence. An alternative explanation is that the admission only of Ms Hughes’ evidence and the record of the telephone calls from the deceased’s phone to the Health Rights Commission would be more damaging to the appellant than if Ms Lee’s evidence of those phone calls was also given. The evidence was admissible because the inference was open to the jury that the deceased either made the representation personally or made an implied representation in the presence of and through her agent. As defence counsel did not suggest that a contrary inference be drawn, the trial judge did not need to give any directions beyond those given in accordance with s 93C Evidence Act 1977 (Qld). Even if Ms Lee's evidence were inadmissible, it would be unjust to now quash the conviction because those tactics were unsuccessful.¹⁸

I agree with the Chief Justice that, for the reasons he has given, even if Ms Lee's evidence was wrongly admitted despite defence counsel's concession, there has been no substantial miscarriage of justice¹⁹ because a reasonable jury properly instructed would inevitably have convicted the appellant without that evidence.²⁰

The evidence of Ms Pike and Ms Watkins was, for the reasons given by the Chief Justice, admissible consistent with Pfennig v R²¹ as explained in R v O'Keeffe.²² The only reasonable view of their evidence, when combined with the other evidence in the trial, supported an inference that the appellant had improperly drugged the deceased and sexually abused her whilst she was under the influence of those drugs and that he killed her by massive morphine overdose to stop any investigation into his treatment of her. The evidence as a whole was reasonably capable of excluding all innocent hypotheses.²³

I agree with the Chief Justice's reasons for dismissing the remaining grounds of appeal.

The appeal should be dismissed.

ATKINSON J: For the reasons given by the Chief Justice and the President, I agree that the appeal should be dismissed.

Footnotes

1. Dr Catherine McGrane, then the appellant's wife and partner in the medical practice. ↩

2. Acts Interpretation Act 1954, s 14B; Explanatory Notes, Criminal Law Amendment Bill 2000, 1. ↩

3. See Taskforce on Women and the Criminal Code, Recommendation 53 "That legislation provide an exception to the hearsay rule, where there are factors making it highly probable that the hearsay statement is reliable, and with directions to juries warning of the need for caution before the evidence is accepted or relied on." See also ALRC, 38, Ch 10, 128. ↩

4. Section 65. ↩

5. Section 65. ↩

6. Section 14A, Acts Interpretation Act 1954 (Qld). ↩

7. See R v Serratore (1999) 48 NSWLR 101, [27]; R v Mankotia [1998] NSWSC 295, 27 July 1998; Conway v R (2000) 172 ALR 185, [142]-[144], R v McIntyre [2002] NSWCCA 29, [30]-[32]. ↩

8. Section 93B(1). ↩

9. Section 93B(1)(b). ↩

10. Section 93B(2); To "perceive" is "1. to gain knowledge of through one of the senses; discover by seeing, hearing, etc. 2. to apprehend with the mind; understand", Macquarie Dictionary, Federation edition, The Macquarie Library Pty Ltd, 2001. ↩