The Queen v Soma

[8]

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".
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, 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.
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.
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.
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.
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.

[22]

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.
It is necessary to notice some other features of s 18 to which insufficient attention appears to have been given at the respondent's trial. First, s 18 applies only where a former statement made by the witness is inconsistent with the witness's testimony in court. That inconsistency must be demonstrated. In the present case, the respondent gave evidence in court that the complainant had not been crying outside the house and that he had not forced her to the ground. That was evidence inconsistent with what he had told the police. The prosecutor asked him whether he had told the police that the complainant had been crying, and whether he had told the police that he had pushed her onto the ground. To both questions the respondent said "no". Part of the tape recording of the interview was then played and only then did the respondent acknowledge that it was his voice on the tape. Only then did he admit that he had told police that the complainant had been crying.
The prosecutor then asked the respondent whether the complainant was crying because he had thrown her down on the ground and had held some cloth around her throat tightly. The respondent answered: "No, I not say that." He did not expressly acknowledge, by this or other answers in cross‑examination, that he had told police that he had pushed or thrown the complainant onto the ground. The prosecutor did not ask again about the cloth being held around the complainant's throat until after he had played to the respondent, and the jury, a further part of the tape recording in which the respondent told the police that he had put a T‑shirt around the complainant's mouth and neck.
Proof that a witness has made a prior inconsistent statement can be given only if the witness "does not distinctly admit that the witness has made such statement" and only if the former statement is inconsistent with "the present testimony of the witness". In the present case, before the tape recording was played, the respondent denied that the complainant had been crying, he denied that he had pushed her onto the ground and he denied that he had told the police that she had been crying or that he had pushed her onto the ground. What he had told the police was inconsistent with what he had said earlier in the course of the prosecutor's cross‑examination and thus was inconsistent with the present testimony of the witness. The circumstances of the prior statement "sufficient to designate the particular occasion" had been mentioned to the respondent. If attention is confined to s 18, as the appellant submitted it should be, the conditions specified in that section for the prosecutor, as cross‑examiner, to prove that the respondent had made the prior statements to the police admitting that the complainant had been crying, and that he had pushed her to the ground, were satisfied.
Again, confining attention to the provisions dealing with prior inconsistent statements, it was then open to the cross‑examiner to pursue alternative courses. The cross‑examiner could have handed the witness a transcript of the interview, asked him to read it to himself, and then asked whether the witness adhered to his earlier testimony. If an affirmative answer had been given, the cross‑examiner could then later seek to lead evidence of the making of the prior inconsistent statement. Alternatively, as occurred in this case, the cross‑examiner could have asked the witness questions designed to establish the authenticity of the record of the prior inconsistent statement and then, in the course of the cross‑examination, tender the tape in evidence[10]. (The New South Wales practice of delaying the tender until the opening or reopening of the cross‑examiner's case is not followed in other States[11].) In this case, the respondent's admission that his voice was heard on the tape rendered it unnecessary to adopt some other method of proving that he had made the earlier inconsistent statement. Once in evidence, the prior inconsistent statement was admissible as evidence of the facts stated in it[12].
Other considerations might have been said to arise in relation to the respondent's statement to police about the use of his T‑shirt. The respondent had not given evidence denying that he had put something around the complainant's throat. Although he had denied telling the police that he had done this, he had not given any "present testimony" about the underlying fact with which his prior statement to the police was inconsistent. But no objection was made to the course adopted by the prosecutor.
When the tape recording was played in court, the respondent admitted that it was his voice on the tape and that the recorded statements which the prosecutor attributed to him were his words. If, before the tape recording was played, the respondent had admitted making the statements which the prosecutor asked him about, there would have been no occasion for any other proof of his making those earlier statements. But once the respondent failed distinctly to admit that he had made the prior statements, the cross‑examiner could embark on proving them. The respondent's later admission to making the statements did not preclude their tender in evidence.
Attention cannot be confined, however, to the Evidence Act provisions dealing with prior inconsistent statements. Those provisions are to be given operation in the context of a trial, the practices and procedures governing which are found elsewhere than in the Evidence Act.

[23]

Chapter 62 of the Criminal Code contains provisions regulating the trial of an accused person charged in Queensland with an indictable offence. So, for example, s 618 speaks of what is to happen "[a]t the close of the evidence for the prosecution" - the accused is to be asked whether he or she intends to adduce evidence. Section 619 regulates speeches by counsel; s 620 provides that the judge shall instruct the jury "as to the law applicable to the case". The provisions of Ch 62 assume the adoption of familiar accusatorial and adversarial procedures. Neither the Criminal Code, whether in Ch 62 or elsewhere, nor the Evidence Act, modifies the underlying principle of the accusatorial and adversarial system that it is for the prosecution to put its case both fully and fairly before the jury, before the accused is called on to announce the course that will be followed at trial.
That the prosecution must offer all its proof before an accused is called upon to make his or her defence is a general principle of long standing. There can be departures from that general rule and, as was said in the joint reasons in Shaw v The Queen[13], "[i]t seems ... unsafe to adopt a rigid formula [to define those exceptions] in view of the almost infinite variety of difficulties that may arise at a criminal trial". The rule is, as was pointed out in that case, a matter of practice and procedure, rather than substantive law.
Understanding the application of the general rule must take account of developments in the principles governing the role of the prosecution and the trial judge at a criminal trial. Thus, in Shaw, Fullagar J, who agreed in the orders proposed by the other members of the Court, said[14] that he could not "feel the slightest doubt" that the course taken by Cussen J in R v Collins[15], of himself calling a witness called by neither party but in whose evidence the jury expressed interest, was entirely correct and proper. That is a conclusion which may well be thought to be at odds with the principles since described in R v Apostilides[16]. Be that as it may, what is now clear is that it is for the prosecution to decide what witnesses will be called and "determine the course which will ensure a proper presentation of the Crown case conformably with the dictates of fairness to the accused"[17]. That power is not unconfined. In particular, if an accused objects to the course which the prosecution takes in presenting its case, the objection must be resolved by applying principles which include the general rule that the prosecution must offer all its proof before the accused is called on to make his or her defence.
In the present case, the prosecution had available to it evidence of statements made by the respondent to police. The prosecution called the interviewing police officer. In this Court it was accepted that the statements which the respondent made to police were adverse to his interests; they were not merely and exclusively self‑serving denials. If there were doubts about the admissibility of the record of interview, those doubts could have been resolved on a voir dire. If necessary, the record of interview could have been edited to exclude any objectionable parts. None of these steps was taken.
If the prosecution case was to be put fully and fairly, the prosecution had to adduce any admissible evidence of what the respondent had told police when interviewed about the accusation that had been made against him. To the extent to which those statements were admissible and incriminating, the prosecution, if it wished to rely on them at the respondent's trial, was bound to put them in evidence before the respondent was called upon to decide the course he would follow at his trial. To the extent that an otherwise incriminating statement contained exculpatory material, the prosecution, if it wished to rely on it at all, was bound to take the good with the bad and put it all before the jury[18]. And consistent with what is said in Richardson v The Queen[19] and Apostilides the prosecutor's obligation to put the case fairly would, on its face, require the prosecutor to put the interview in evidence unless there were some positive reason for not doing so. The only reason proffered for not doing so in this case was, as the Court of Appeal rightly found, not sufficient.
The use to which the prosecution put the interview at the respondent's trial was a matter for objection. That objection, if it were to be made, should have been taken when the prosecutor first asked the respondent questions designed to establish that he had been interviewed by police. In the present case, the respondent's admission that it was his voice that was heard on the tape played to the jury avoided any need for the prosecution to prove the tape by some other means. But that was not to be known when the prosecutor first embarked on the course of asking the respondent about his prior statements to police. At that point it could not be assumed that the prosecutor, were he to follow this path, would not have to seek leave to reopen his case and call the police officer to whom the alleged statement had been made.
But no objection was made. If objection had been made, there seems much to be said for the view that, consistent with what was said by this Court in Niven v The Queen[20], an objection to its use should have succeeded.
Niven concerned, most immediately, the operation of s 371(i) of the Criminal Code (Tas) which provided that in proceedings upon the trial of an indictment "[e]vidence in rebuttal may be called by the Crown if the judge is of opinion that in the circumstances of the particular case it should be allowed". The Criminal Code (Q) contains no equivalent provision. In Niven, the Court held[21] that the expression "evidence in rebuttal" should be understood as applying to all evidence sought to be adduced by the prosecution after the accused's defence was complete. It therefore extended to evidence given to prove a prior inconsistent statement by the accused. It was against the background of that conclusion that the Court said[22]:

[26]

Although what was said in Niven was directed to s 371(i) of the Criminal Code (Tas), the principles which it states apply equally to this case. Indeed, there is no reason to think that they do not apply generally to the trial of indictable crime in Australia, unless and until this aspect of the practice and procedure in such trials is explicitly modified by statute.
What was said in Niven reflected a stream of authority which, in this Court, may be thought to begin with the decision in Shaw but in fact is much older than that[24]. The stream of authority continues through this Court's decisions in Killick v The Queen[25], Lawrence v The Queen[26] and R v Chin[27], in each of which effect was given to the principle that, as a general rule, the prosecution must offer all its proofs during the progress of its case. The principle has been frequently applied by intermediate[28] courts and it has found daily application in trial courts throughout the country.
In the present matter, the appellant submitted that those provisions of the Evidence Act to which we have referred earlier, namely ss 18, 101 and 130, modified the principles which underpin what was said in Niven. Those provisions of the Evidence Act do not modify the general principle we have identified. Although there may be circumstances in which it would be within the discretion of a trial judge to permit the prosecution to make a case in rebuttal by tendering evidence to prove a prior inconsistent statement made by an accused relative to the subject matter of the proceeding, those circumstances will be rare. If objection is taken to the prosecution seeking to follow a course of the kind followed here, then, as was said in Niven, close attention would be necessary to whether to permit the course proposed would possibly cause prejudice to the accused and to whether any prejudice to the prosecution could have been avoided by tendering the evidence of that prior statement in the course of its case.
Counsel for the appellant submitted that if the decisions in Niven and Chin were inconsistent with the appellant's argument, those cases, and the decisions of intermediate courts applying them[29], should be overruled. That submission was not developed in any detail. No reason was offered for overruling such a well‑established and longstanding stream of authority beyond the contention that they did not give proper effect to the provisions of the Evidence Act. Once it is recognised that the Evidence Act does not deal exhaustively with the practice and procedures to be followed at criminal trials and that the relevant principle is rooted in the nature of such proceedings, the reason proffered by the appellant for overruling such cases is seen to fall away.
In Niven, reference was made to possible prejudice to the accused that may follow from permitting the prosecutor to cross‑examine on prior inconsistent statements which could and should have been proved as part of the prosecution case. The reference to possible prejudice to the accused is not precluded by s 130 of the Evidence Act. As that section says, nothing in the Act derogates from the power of the court to exclude evidence if satisfied that it would be unfair to the person charged. But s 130 is not to be read as an exhaustive statement of when evidence tendered at a criminal trial can be rejected. Section 130, as its terms suggest, is a legislative denial of intention to take away the power of a court (derived elsewhere than in the Act) to exclude evidence on the ground of unfairness. The principle which could have been engaged in the present case does not find its origin in s 130. It is a principle which governs the conduct of trials for indictable offences.
For these reasons, the principal arguments advanced by the appellant on the appeal to this Court should be rejected. The Court of Appeal was right to conclude that the prosecution had split its case.
It is necessary, however, to return to the fact that no objection was made at trial to the course pursued by the prosecution. Insufficient attention has been given to that fact. We do not know why no objection was made to the questions which the prosecutor asked or to the reception in evidence of the tape recording of the respondent's interview by police.
Because there was no objection, the trial judge was not required to rule on the course that was taken and there was, therefore, no wrong decision at trial on any point of law. The orders made by the Court of Appeal required the conclusion that, in terms of s 668E(1) of the Criminal Code, there was a miscarriage of justice.
Such a conclusion was not inevitable. If it were to be suggested that the trial judge should have intervened, of his own motion, either to restrict the prosecutor's cross‑examination of the respondent, or to reject the tape recording even though there was no objection to its tender, or in some other way to prevent the prosecutor following the course that was taken, then there may be a serious question as to when, and on what basis, the judge should have acted. Furthermore, if trial counsel, by objection or argument, had invited a ruling on the cross‑examination of the respondent, or the tender of the tape recording, there would have come into play discretionary considerations requiring attention, amongst other things, to the probative significance of the evidence. This point was made by Pincus JA in Burns[30], in a passage referred to by Cullinane J[31].
This aspect of the decision of the Court of Appeal was not challenged in the grounds of appeal before this Court. Perhaps the view was taken that, being so closely bound up with the facts and circumstances of the particular case, it was a point unlikely to have attracted a grant of special leave in a prosecution appeal. However that may be, in the grounds of appeal and the written submissions, the case for the appellant was based upon the questions of general principle dealt with earlier in these reasons, and those questions have been resolved adversely to the appellant.
The appeal should be dismissed.
McHUGH J. The principal issue in this appeal brought by the Crown is whether, in a criminal trial in Queensland, the Crown can tender an inconsistent statement of the accused only if it establishes exceptional or special circumstances. In my opinion, the Crown may tender an inconsistent statement upon proof of the matters set out in s 18 of the Evidence Act 1977 (Q). However, the tender is subject to the discretionary power of the judge to reject it on the ground of unfairness to the accused. It is not necessary for the Crown to prove exceptional or special circumstances. If the statement was admissible in the prosecution's case-in-chief, however, the unfairness discretion is unlikely to be exercised in favour of the prosecution.

[27]

The respondent was convicted of rape by a jury in the District Court of Queensland sitting at Bowen. The Court of Appeal of the Supreme Court of Queensland[32] quashed his conviction on the ground that the trial judge had wrongly admitted into evidence a tape recording which purported to contain statements inconsistent with the evidence which the respondent (the accused) had given.
At the trial, the complainant alleged the accused had raped her. She testified that before the rape the accused had forced her to the ground outside the house in which the offence was committed. She said that, in the course of doing so, a necklace she was wearing was broken. Later, a broken necklace was found in the area. Although the accused had made a tape-recorded interview with an investigating police officer that contained damaging admissions, the recording was not tendered in the prosecution's case. The reason given by the Crown for not tendering the recording was that the accused's counsel had said he would object to its admission. The objection was apparently on the ground that the interview took place while the accused was in custody and without him being given any warning that he need not make a statement or that any statement made could be used in evidence against him.
In evidence at his trial, the accused agreed that he had sexual intercourse with the complainant but asserted that it was by consent and, indeed, initiated by the complainant. At a very early stage of his cross-examination, counsel for the Crown put to him that he had forced the complainant to the ground outside the house. The accused denied it. He also denied that in a conversation at Townsville with Detective Sergeant Inmon he had informed Inmon that he had pushed the complainant onto the ground and that she was crying. Without objection, counsel for the prosecution played parts of a tape recording of the conversation between the accused and Inmon in the presence of the jury and used it to cross-examine the accused. Upon a fair reading of his evidence, I think that he finally admitted that he had made every statement to Detective Sergeant Inmon that the Crown prosecutor put to him. The Court of Appeal held, correctly in my opinion, that "[h]e acknowledged that it was his voice on the tape and that he had made these statements"[33]. However, the accused claimed that he was confused and that he had problems with English - which was his second language. He also asserted that the statements did not record accurately what happened. He said:

[44]

This passage does not suggest that the Court thought that the Shaw principle of "exceptional circumstances" was decisive in exercising the discretion. Rather, it suggests that the matters constituting the rationale of Shaw are relevant in determining questions of prejudice to the prosecution and to the accused, and how the discretion should be exercised. In Queensland, the discretion of the trial judge under s 130 of the Evidence Act is certainly no narrower than that of a trial judge in Tasmania[56].
In any event, the Shaw principle is only relevant if the evidence was admissible in the prosecution's case-in-chief. If an inconsistent statement of the accused is not admissible in chief as part of the prosecution case, it can only be tendered after the accused has given evidence. In that situation, Shaw has no application. According to the practice in some jurisdictions, if I understand it correctly, this means that the prosecution has to apply for leave to re-open its case. Why these jurisdictions require the re-opening of the case-in-chief and do not permit the statement to be tendered in a prosecution case-in-reply is something I have never understood. In principle, there is no reason why the prosecution cannot have a case-in-reply. The fundamental rule is that the prosecution cannot split its case - it cannot, apart from exceptional cases, adduce evidence that should have been led in its case-in-chief. But if the defence raises a new legal or factual issue, there is no reason, in principle, why the prosecution cannot have a case-in-reply.
In New South Wales, the jurisdiction with which I am most familiar, a prosecution case-in-reply or rebuttal is a common event. Where the accused raises a defence by way of confession and avoidance such as insanity, for example, logically the prosecution can deal with the matter only by way of a case-in-reply. The rebuttal evidence does not go to any issue in the prosecution case. Similarly, when the accused raises new matters such as character evidence, the prosecution can only rebut the evidence by a case-in-reply[57]. Likewise, when the accused raises fresh factual material, such as an alibi, the prosecution is entitled to a case-in-reply on that issue unless legislation has required the accused to give notice of the alibi. So, also, the prosecution is entitled to a case-in-reply where the prosecution alleges bias on the part of a defence witness, or that the witness has a general reputation for untruthfulness or has refused to admit a prior conviction. And the same principle must apply in the case of a statement that is admissible as an inconsistent statement. In Shaw[58], Dixon, McTiernan, Webb and Kitto JJ said:

[59]

By the late 17th century[71], an accused person was permitted to call witnesses in his or her defence. But the accused was an incompetent witness in criminal proceedings in England until 1898 when s 1 of the Criminal Evidence Act 1898 (UK) provided that "[e]very person charged with an offence … shall be a competent witness ... at every stage of the proceedings". While the accused was declared competent, "from a well-grounded sense of fair play he could not be compelled to testify by the other side"[72].
Thus, when s 4 of the Criminal Procedure Act 1865 (UK) was enacted, it related to witnesses for the prosecution and to witnesses called by the defence. It had no application to an accused person giving evidence. And since, ex hypothesi, the inconsistent statement of a defence witness was not admissible in the prosecution's case, it could only be tendered after the accused had closed his or her case. Thus, until the close of the 19th century, the only time that the prosecution could tender an inconsistent statement was after the close of its case.
The principle for which Shaw stands has been recognised by the common law for almost as long as the principle that an inconsistent statement is admissible to rebut a sworn statement made in curial proceedings[73]. I have not seen any suggestion in the early cases that it is only in "exceptional circumstances" that an inconsistent statement is admissible in a criminal trial after the close of the prosecution case. Until legislative reforms - such as that contained in s 101 of the Evidence Act - made inconsistent statements "admissible as evidence of any fact stated therein", the only effect of the tender was to neutralise the witness's inconsistent evidence and provide grounds for an inference of general unreliability.
It is true that an accused person can now give evidence and that s 18, and its analogues, make an accused person's inconsistent statements admissible. It is also true that under s 101 the inconsistent statement is evidence of the facts that it contains. But, as long as the statement was not admissible in proof of the prosecution case, these legislative reforms cannot affect the proposition that the Shaw principle is inapplicable.

[60]

The present case is complicated by the fact that the taped statement was admissible as part of the prosecution case, subject to the judge exercising his discretion to reject it on the ground that the accused had not been warned that anything that he said might be used in evidence. However, the prosecution did not seek to tender the tape in its case-in-chief. For all we know the trial judge may have admitted the evidence. If he had, the present argument could not have arisen. The accused could not have complained of any prejudice or breach of the law of evidence. However, there is a significant chance that the judge may have rejected the tape in the prosecution's case-in-chief. Because that is so, it would not be fair to the accused to decide the case on the basis that the tape was admissible in the prosecution's case-in-chief and that the accused has suffered no real prejudice by its admission.
If the prosecution had tendered the tape in its case-in-chief and the trial judge had rejected it on discretionary grounds, questions would have arisen as to whether it could or ought to be admitted in rebuttal as an inconsistent statement. In my view, the tape was admissible in rebuttal as an inconsistent statement. But its admissibility was subject to the unfairness discretion conferred by s 130 of the Act. If the tape had been rejected in the prosecution's case-in-chief on discretionary grounds, there must have been a strong chance that the judge would have exercised the s 130 "unfairness" discretion in favour of the prosecution. On the other hand, the judge may have exercised his discretion in favour of the accused. But at no stage did the accused object to the admission of the tape, and, as I have mentioned, the prosecution did not attempt to tender the evidence in chief, as it should have.
These failures of the prosecution and the accused to take the steps that each should have taken make it difficult to dispose of the case in a way that gives effect to the law and justice. That difficulty is increased because the appellant does not allege, as it might have done, that the tender of the tape did not constitute a miscarriage of justice within the meaning of s 668E(1) of the Criminal Code (Q). Under that sub-section, the Court of Appeal is relevantly empowered to set aside a conviction "on the ground of the wrong decision of any question of law, or that on any ground whatsoever there was a miscarriage of justice". Because the accused did not object to the tender of the tape, the trial judge did not make a wrong decision on any question of law in admitting it. In allowing the accused's appeal, the Court of Appeal must have found that the admission of the tape constituted a "miscarriage of justice". The Court did not explain how it did. Not only did the accused not object to the tender of the tape, but he had already admitted that he made the statements on the tape, which had been played to the jury during his cross-examination. In these circumstances, I am not convinced that there was a "miscarriage of justice" within the meaning of s 668E(1) of the Code. But the appellant's notice of appeal does not raise this point.
The notice of appeal raises two grounds of appeal. First, the Court of Appeal erred in holding that the tape "was wrongly admitted into evidence in spite of that Court's determination that the requirements of section 18 of the Evidence Act 1977 (Qld) were satisfied". It is true that the Court so held and that its reasons for doing so were erroneous. But this error does not entitle the appellant to an order restoring the accused's conviction. For reasons that I have already given, the tape should not have been admitted in any event. Quite apart from those reasons, even if the tape was admissible as a matter of law, the unfairness discretion under s 130 had to be exercised. Complying with the conditions of s 18 is not an automatic passport to admissibility. The error identified in the first ground of appeal does not entitle the appellant to have the accused's conviction restored.
The second ground of appeal alleges that the Court "erred in finding that the tender of the tape ... amounted to evidence in rebuttal". This ground fails for the reason that, tendered as an inconsistent statement, it was evidence in rebuttal or, at all events, evidence, properly admitted, in a case-in-reply.
The two grounds in the notice of appeal do not require the conviction of the accused to be restored. It follows that, because the Crown's grounds of appeal in this Court do not contend that the Court of Appeal erred in impliedly finding that there had been a miscarriage of justice within the meaning of s 668E(1), the appeal must be dismissed.

[66]

SOMA Yeah. 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] …

[76]

The complainant's evidence at the trial was that she had never met the respondent before the night of the alleged rape. She said that when she had left an hotel in Bowen at about 1 am she was "pretty intoxicated". It was her intention to attend a party nearby. She became lost and was attacked in the street outside the respondent's aunt's house by the respondent. The complainant said that the respondent pushed her to the ground. He pinned her down, and, as she yelled for help, muzzled her by tightening something soft, which she thought was a shirt, around her mouth and neck. She later realized that a shell necklace that she had been wearing was broken in the struggle. She said she was forced into the house, raped, made to shower and to write down her telephone number. No one else was in the house at the time.
The defence case, as put to the complainant, was that she had left the hotel with the respondent and had lured him into having consensual sexual relations with her.
The appellant led evidence in support of the complainant's account: of the presence of fragments of shell, and the thread of the complainant's necklace on the driveway outside the house, and of another piece of shell, similar to, or the same as the shell in the necklace, under the bed where the rape was alleged to have occurred. There were other objective pieces of evidence: vegetable matter was found on the bedspread where the rape was alleged to have occurred. Marks were observed on the complainant's back consistent with her version. A neighbour had heard a scream for help. And an envelope was found in the house with a false name and telephone number on it which the complainant said she had given to the respondent when he demanded that information to enable him to contact her in the future.
The Crown closed its case without attempting to lead evidence of the recorded interview with the respondent. The appellant told the Court of Appeal that "the prosecutor did not lead the evidence in the prosecution case ... because it was anticipated that objection might be taken to it because the interview took place whilst the [respondent] was in custody and without any warning having been administered to him."[74]
The respondent gave evidence on his own behalf at the trial. He admitted intercourse but alleged that it was consensual following the complainant's seduction of him. His explanation for the broken necklace was that the complainant had stolen his wallet. He had clutched at her to stop her leaving and it was then that the necklace broke. He said that he had apologized, and that she had followed him into the house. At the beginning of his cross-examination the respondent denied that the complainant had cried, or that the respondent had forced her to the ground. It is important to notice exactly what the respondent was asked and his responses:

[112]

The power of the court in a criminal case from which the Act must not derogate could only have been, before the enactment of s 130, such power as existed under other provisions of the Act, other statutes, or at common law, but the section in my opinion confers an even more ample discretion on the court in a criminal case to exclude evidence which, although perhaps not within a currently recognized head of exclusion at common law, it would be unfair to an accused to admit. In short the test became one simply of unfairness, and not necessarily of unfairness according to contemporary common law principles.
I return now to this case. In my opinion, the contents of the interview and the recording of it were admissible and could have been tendered by the prosecutor in the Crown case. Any doubts that the prosecutor might have had as to their admissibility could and should have been resolved following argument in the absence of the jury. It is the responsibility of the Crown to call all relevant available evidence, both favourable and unfavourable to an accused[113]. If an inculpatory statement by an accused also contains self‑serving or exculpatory matter then the Crown must take the exculpatory with the inculpatory, and tender the whole statement. This is the course which should have been followed here. So too, the respondent could have insisted that the whole of the recording be tendered if he wished. To that extent the trial miscarried.
It also probably miscarried in another respect which was not touched upon in argument in this Court although it was in the Court of Appeal. It is important that the requirements of s 18 be carefully and fully satisfied. Any prior statement which a party wishes to adduce must clearly and substantially be put to its maker before the evidence of it is adduced. That did not happen here in at least one respect: as to the complainant's hair being pulled by the respondent. A cross-examiner is not obliged to put all of the statements in the same sequence as they were originally made, or to abstain from questioning about other matters including the actual issues themselves, in the course of putting the prior statements, but a full and proper opportunity to admit distinctly each statement must be given to the witness before any attempt is made to prove the earlier inconsistent statement. And further, it must be kept in mind that if the witness does distinctly admit to the making of a statement, that is the end of the matter. The occasion for other proof of the making of the statement simply does not arise.
The question is, the trial having miscarried, in the two respects to which I have referred, should this Court hold that the Court of Appeal ought not to have intervened as it did.
The appellant relies on the respondent's failure to object to the reception of the recording at the trial. It was also submitted that the prosecution case was a strong one. Furthermore, the second respect in which the trial miscarried was not the subject of argument in this Court.
These are relevant matters. I do not think however that the third matter requires that the appeal be upheld. It is a matter that is closely related to the unsatisfactory way generally in which the recording was dealt with at the trial. The facts surrounding it appear fully from the transcript and are beyond dispute. The first of the matters might be decisive if the other error, of not putting properly and sequentially before proving each of them, the prior statements, had not occurred.
I have in the result formed the opinion that this Court should not interfere with the decision of the Court of Appeal for these reasons.
The prosecution should have sought to tender the statement, both the inculpatory and the exculpatory parts of it in the prosecution case. Each prior statement was not properly and fully put as it should have been in cross-examination of the respondent before it was proved. This was an appeal by the prosecution. The respondent has had a success in the Court of Appeal. To uphold the prosecution appeal to this Court would not be to place the respondent in double jeopardy as that expression is commonly understood[114], but it would be to place him in a position in some respects not unlike it, as a casualty of an appeal by the prosecution. As this is not a convicted person's appeal, I do not think that I should review the evidence as it would need to be reviewed in deciding as it would be, on an accused's appeal, whether a substantial miscarriage of justice has actually occurred so that the proviso should be applied within the meaning of s 668E(1A) of the Criminal Code (Q). In any event, as the Court of Appeal did not apply that provision, I too would not do so. In the circumstances I am not prepared to differ from what I take to be the basis of the decision in the Court of Appeal, that there has been a miscarriage of justice within the meaning of s 668E(1) of the Criminal Code.
I would accordingly dismiss the appeal.

The Queen v Soma - [2003] HCA 13 - HCA 2003 case summary — Zoe

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