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- Unreported Judgment
DISTRICT COURT OF QUEENSLAND
R v HPF  QDCPR 73
Brisbane Childrens Court
7 November 2019 (delivered ex tempore)
7 November 2019
CRIMINAL LAW – EVIDENCE – JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE – EVIDENCE UNFAIR TO ADMIT OR IMPROPERLY OBTAINED – where the applicant was charged with one count of indecent treatment of a child under 16, under 12 – where the complainant was the applicant’s half-sister and aged four at the time of the alleged offending – where the complainant gave an Evidence Act 1977 (Qld) s 93A interview – where an expert opinion was sought to determine the complainant’s competency to give evidence – whether the complainant’s s 93A interview should be excluded on discretionary grounds
Evidence Act 1977 (Qld) s 9A, s 9B, s 9C, s 93A, s 98(1), s 130
R v D (2003) A Crim R 471
R v FAR  2 Qd R 49
T Zwoerner for the applicant
J Marxson for the respondent
Legal Aid Queensland for the applicant
Office of the Director of Public Prosecutions for the respondent
- HIS HONOUR: This is an application to exclude the Evidence Act 1977 (Qld) (‘Evidence Act’) s 93A interview of the complainant [RTM] in respect of one count of indecent treatment of a child under 16 years, under 12 years, alleged to have occurred at Ormiston on 23 September 2018. The background of the charge is helpfully set out in the applicant’s submissions at paragraphs 2-10:
“2. The applicant was 17 at the time of the alleged offending. He is currently 18 years’ old. The complainant is the applicant’s half-sister who was four at the time of the alleged incident and is now five. The applicant and complainant share a mother.
3. From the age of four, the applicant had been in the care of a friend of his mother’s (OJL). The applicant and his mother had limited contact in March and July 2018. In her statement to police, the applicant’s mother states the applicant was left in the custody of her friend due to her own drug problems when the applicant was younger.
4. The brief of evidence does not include a statement from [OJL].
5. It is alleged that the applicant was returned to his mother with three weeks’ notice. [OJL] had advised her the applicant would be placed in the care of the Department of Child Safety should his mother be unable to accommodate him.
6. The first night the applicant spent sleeping in his mother’s home, he, his two half-sisters, and his mother all slept in the same room. The applicant slept on a bed with the complainant. His mother and second half-sister slept on a mattress on the floor.
7. It is alleged the next morning the mother witnessed the applicant with his hand down the complainant’s nappy. His hand “…appeared to be resting there.”
8. The applicant’s mother forced him to leave the house with his possessions and phoned the police after sending a number of text messages to acquaintances.
9. After phoning police, the applicant’s mother spoke with the complainant and asked “something like”: “Do you remember little [HPF] cuddling you last night?”, “Do you know where his hand was, was it your belly or your bum?” and “Was it under your nappy?”
10. The complainant was interviewed by police on 23 September 2018. This interview is relied upon by the Crown as a statement under s 93A of the Evidence Act 1977 (Qld). The complainant was interviewed for just over 13 minutes.”
- Oral evidence was called from Dr Philip Trudinger, clinical psychologist, who also tendered a report. The s 93A interview with the complainant was played, and a copy of the transcript was tendered. Where appropriate, I made amendments to the transcript to reflect what I heard and observed on the video.
- The applicant seeks to exclude the complainant’s s 93A interview on discretionary grounds.
- Evidence Act s 9A (Competency to give evidence) provides: –
- (1)“This section applies, if in a particular case, an issue is raised, by a party to the proceeding or the court, about the competency of a person called as a witness in the proceeding to give evidence.
- (2)The person is competent to give evidence in the proceeding if, in the court’s opinion, the person is able to give an intelligible account of events which he or she has observed or experienced.
- (3)Subsection (2) applies even though the evidence is not given on oath.”
- Evidence Act s 9B (Competency to give sworn evidence) provides: –
- (1)“This section applies if, in a particular case, an issue is raised, by a party to the proceeding or the court, about the competency of a person called as a witness in the proceeding to give evidence on oath.
- (2)The person is competent to give evidence in the proceeding on oath if, in the court’s opinion, the person understands that –
- (a)the giving of evidence is a serious matter; and
- (b)in giving evidence, he or she has an obligation to tell the truth that is over and above the ordinary duty to tell the truth.
- (3)If the person is competent to give evidence in the proceeding but is not competent to give the evidence on oath, the court must explain to the person the duty of speaking the truth.”
- Evidence Act s 9C (Expert evidence about witness’s ability give evidence) provides:–
- (1)“This section applies to a proceeding if –
- (a)under section 9A, the court is deciding whether a person is able to give an intelligible account of events which he or she has observed or experienced; or
- (b)under section 9B, the court is deciding whether a person understands the matters mentioned in section 9B(2)(a) and (b); or
- (c)the evidence of a child under 12 years is admitted.
- (2)Expert evidence is admissible in the proceeding about a person’s or child’s level of intelligence, including the person’s or child’s powers of perception, memory and expression, or another matter relevant to the person’s or child’s competence to give evidence, competence to give evidence on oath, or ability to give reliable evidence.”
- Section 98(1) of the Evidence Act provides: –
“The court may in its discretion reject any statement or representation notwithstanding that the requirements of this part are satisfied with respect thereto, if for any reason it appears to it to be inexpedient in the interests of justice that the statement should be admitted.”
- Evidence Act s 130 provides: –
“Nothing in this Act derogates from the power of the court in a criminal proceeding to exclude evidence if the court is satisfied that it would be unfair to the person charged to admit that evidence.”
- Relevantly, in R v FAR  2 Qd R 49 at 61, Davies JA stated:
“The question whether the discretion under ss 98 or 130 of the Evidence Act 1977 should be exercised to exclude a statement otherwise satisfying the requirements of s 93A will almost always turn on its reliability; and there may be many factors, including in some cases an inability to test the reliability of the statement by cross-examination, which may affect that question.
Nothing said by his Honour should, in my view, obscure the importance of the reliability of the statement and the possibility that factors other than an inability to cross-examine upon it may affect that question, or overemphasise the importance of one of many possible factors affecting that question.”
- In R v D (2003) A Crim R 471, , Jerrard JA stated:
“That construction of s 9A [a reference to what his Honour said at ] would allow the court to receive expert evidence about the ability of a particular child to make statements, either videotaped or otherwise, about the matters in issue which are reliable; that is, which can safely and justly be relied upon. Where the court finds an inability to do that, or where a real risk of unreliability is shown to exist, a court is empowered to make discretionary orders under s 98 or s 130. The matters establishing the unreliability upon which the discretion given by those two sections can properly be exercised might often be proven by evidence led under s 9A(2), and that construction of s 9A(2) is congruent with the authoritative interpretations of s 98 and 130 in FAR, Morris, and Cumner.”
- Dr Trudinger met the complainant on five occasions between 25 March and 29 April 2019, when she was aged between four years eight months and four years nine months. He was briefed with copies of the Evidence Act ss 9A & 9B.
- Relevantly, Dr Trudinger concluded: –
“20. …[RTM] is capable of giving an intelligible account of events; I believe [RTM] would understand the importance of, and that she “has to” tell the truth; I do not believe [RTM] would understand such a concept as to the importance of “an obligation” to tell the truth “that is over and above the ordinary duty to tell the truth”. She would not, in the same way that the majority, if not all children, not have the appreciations of the obligation and an “over and above” need to tell the truth. [RTM] has the ability to provide reliable information.
21. It is my opinion that [RTM] possesses sufficient intelligence and cognitive ability that she could be able to provide information to court. [RTM] is able to understand appropriately framed questions. [RTM] has a good appreciation for the notion of “the truth”, “a lie”, and the construct of a promise, and in my opinion is able to talk about those issues in an age appropriate manner. She is able to demonstrate an ability to provide and [sic] intelligent and intelligible response to questions. [RTM] can be talkative. She is able to talk about activities and events that she has been involved in spontaneously, and she responds to questions about her comments. She has good verbal confidence and usage for a child her age.” (Exhibit 3 paragraphs 20-21).
- In cross-examination, Dr Trudinger confirmed that the complainant’s full scale IQ was within the average range. When asked why there was no comment in the report about the complainant’s capacity to recall things, Dr Trudinger said, “I wasn’t asked to”. He expressed the view that the complainant, “Would be capable of giving an indication of experienced events”.
- Mr Zwoerner on behalf of the applicant submits that Dr Trudinger’s report was flawed, in that he did not assess the complainant’s competency to give evidence. As indicated, Dr Trudinger was asked to assess the complainant in the terms of Evidence Act s 9A and s 9B (relevantly, competency to give sworn evidence).
- Dr Trudinger’s opinion is clear that the complainant has an average IQ, and, “is capable of giving an intelligible account of events”.
- There is no evidence before me that would persuade me, in the exercise of my discretion, to exclude the complainant’s s 93A interview for unreliability, pursuant to either Evidence Act s 98 or s 130. It follows, therefore, that the application must fail.
- I should note, however, that the complainant’s s 93A interview has significant issues, including: an equivocal recitation of the events (she appears to indicate the touching occurred while she was asleep); issues in respect of where she says that she was touched, in contrast to the eyewitness’s version of the touching; and issues in respect of her evidence possibly being tainted after discussions with her mother (who is also the eyewitness). The Crown should consider these matters carefully in assessing its obligation to decide whether it is in the public interest to proceed against this juvenile defendant in these circumstances.
- I therefore make the following orders:
- Application dismissed.
 Outline of Submissions on behalf of the Applicant, dated 4 November 2019, -.
 Psychology Report by Dr Philip Trudinger, Clinical Psychologist, dated 1 July 2019 (Exhibit 3).
 See Item marked ‘A’ for identification.
 Psychology Report by Dr Philip Trudinger, Clinical Psychologist, dated 1 July 2019, -.
 Tr 1-11, l 23.
 Tr 1-12, ll 41-42; Tr 1-14, ll 32-36.
 Tr 1-15, ll 1-2.
- Published Case Name:
R v HPF
- Shortened Case Name:
R v HPF
 QDCPR 73
07 Nov 2019