R v G[1997] QCA 115

[1997] QCA 115

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 532 of 1996

Brisbane

THE QUEEN

v

G

Appellant

Macrossan CJ

Derrington J

Byrne J

Judgment delivered 13 May 1997.

Joint reasons for judgment of the Chief Justice and Derrington J. Separate reasons of Byrne J, dissenting in part.

APPEAL AGAINST CONVICTION DISMISSED. LEAVE TO APPEAL AGAINST SENTENCE GRANTED. APPEAL AGAINST SENTENCE ALLOWED. SET ASIDE THE SENTENCE AND IN LIEU THEREOF ORDER THAT THE APPELLANT BE SENTENCED TO IMPRISONMENT FOR SIX MONTHS, WITH THE FIVE DAYS SPENT IN CUSTODY TO BE IMPRISONMENT SERVED UNDER THIS SENTENCE.

JOINT REASONS FOR JUDGMENT THE CHIEF JUSTICE AND DERRINGTON J

Judgment delivered 13 May 1997

We have read the reasons prepared by Byrne J and agree with his conclusion that the appeal against conviction should be dismissed.  The appeal was solely concerned with the legal admissibility of the matters stated by the complainant child to police constable McLean after the videotaped formal police interview had been concluded.  Those matters were subsequently recorded by her in her notebook and became a statement tendered at the trial.  The statement was admitted into evidence as Exhibit 2 pursuant to the provisions of  s. 93A of the Evidence Act 1977. 

The argument on appeal was that the statement did not meet the requirements of s. 93A and should have been excluded.   No question of judicial discretion was argued.

We agree with the reasons stated by Byrne J for rejecting the argument based on admissibility under s. 93A but we wish to add observations of our own on the question.  In doing this we adopt Byrne J's statement of the relevant facts and statutory provisions.

Although counsel for the appellant asserted that the statement, Exhibit 2, was inadmissible the underlying basis for that contention was not always stated clearly or expressed in a way that enabled the precise limits of the supporting argument to be identified.   No objection was made to the admissibility of the earlier videotaped statement made by the child, Exhibit 1, yet it was said that Exhibit 2, the handwritten record, was inadmissible.  The argument seemed to be that s. 93A only allowed into evidence recorded statements when they were in a form that permitted an accurate assessment of the manner in which the child's complaint was originally expressed. The effect, it was submitted, was to limit admissibility to video recordings and perhaps, although more doubtfully, audio taped recordings.  Not the least difficulty confronting this argument, quite apart from the fact that it introduced awkward matters of degree into decisions on admissibility, is the fact that none of it finds any support in the words of s. 93A or the statutory provisions found elsewhere in the Act and incorporated in the section.

It is quite obvious that the legislature, if it had chosen to do so, could, under the statute, have limited the admissibility of young children's hearsay statements to those formally recorded under circumstances which would come as close as possible to guaranteeing accuracy of recording as well as providing the greatest insight into the terms and style in which the statements were made.  This could have been done by prescribing, say, video recording as the only available mode but the legislature has not done this.  It is quite possible to suppose that in the interests of accuracy and fairness in the trial process the legislature might, in the future, make some move to introduce restrictions of that kind but this has not been done to date.  The legislature has in fact established the wider category of admissibility that s. 93A in its current form provides for.

Section 93A(3) accepts the clear distinction that might exist between a child who has made a statement that is recorded and a further person who has performed the task of recording it.   The presumption is that a recorder of the statement may have no "personal" knowledge of the matters dealt with by the statement other than what he gathers from the words of the child:  see e.g. s. 93A(1)(a).  But in other cases, a child still under the nominated age of twelve, may himself bring the documentary record into existence as by writing it out.  In that case the maker of the statement and the recorder of it will be one and the same. 

It is not only the words of  s. 93A(3) which point clearly to the fact that there may be more than one person involved in the production of the documentary statement.  Section 92(4) which applies to situations arising under s. 93A refers in subs. (a) to a statement made by a person who dictates it and in subs. (1)(b) to one made by a person who knows that it is being recorded.  In the case of the s. 93A category of complaints made by children under twelve it can be expected that in the usual situation there will be another or others involved in the production of the statement in documentary form.   A wide definition of "document" is given in s. 3 and although it can include discs, tapes and films (see (e) and (f) of the definition) it need not do so and the opening words indicate it can simply be "a document in writing".

In the end it is necessary to come back to the indication given by s. 92(4)(a) that for the purposes of s. 93A as well as other provisions a documentary statement simply is to be regarded as "made" by the person who in fact has made it and that may not be the person who has recorded it.  Also, although other forms such as tapes and films are possible vehicles for the statement they are not exclusive possibilities and simple statements made by a child and later recorded in writing by a person to whom it is addressed are not excluded.

No argument was addressed to us suggesting that there must be some level of formality in the circumstances of the uttering of a remark by one person, which is then or later transposed to documentary form by another, before it can be said that the former has made a statement that is contained in a document.  There are some indications in s. 92(4) that there may be limits upon the informality that will be accepted for bringing into existence a documentary statement that will qualify for the purpose of the provisions under consideration.  The casual utterer of something overheard and recorded by a stranger to whom it is not addressed may not qualify as being a maker of a relevant statement.   Under s. 92(4), for example, some sense of solemnity or formality may be understood as being present to the mind of the utterer or at least some consciousness of the fact that his remark will be attended to by a particular listener to whom he directs it being one who, if he is not contemporaneously recording it, may later take steps to preserve it.   These may be features which, on another occasion, may require consideration.  It may be that potential restrictions are pointed to by the references to matters being recorded "with the person's knowledge" and "dictated" which, if taken by themselves, seem to exclude non-deliberate and informal situations.  In the present case there was an obvious degree of formality attending the conversation with Constable McLean because it occurred at a police station and a formal recording session had already taken place.  The matter need not be further pursued because in the present case no argument requiring its consideration was raised.

Another matter which might have been adverted to but did not attract attention in the appellant's argument was the fact that the constable having quite properly commenced the interview by video recording it terminated that mode of proceeding and continued the conversation and spoke to the child about highly relevant matters without recommencing the video recording.  It would be undesirable if in other cases police officers were to feel encouraged to proceed in similar fashion.

It is desirable to add that in support of the ground that was argued, no authorities were referred to which cast any direct illumination on the issue which the court is called on to decide. 

It should be held that the appeal against conviction fails.

This leaves for consideration the application for leave to appeal against sentence.

Features relevant to the sentencing process included these.   The appellant was a member of the household occupying a place equivalent to a parent and he had been provoked and obviously with some loss of control over himself was attempting to restrain and discipline a child who, in the course of the episode, kicked him in the face.  However, the applicant went too far.  At law, he had a right to discipline by the use of physical force (see s. 280 of the Criminal Code) but the jury have by their verdict found that the appellant used greater force than was reasonable under the circumstances.

The appellant chose an extremely unconventional mode of inflicting punishment, namely a hand-operated generator which administered an electric shock.  No doubt that played a part in the jury's finding that he had used more force than was reasonable.  The use of the device would have been alarming and indeed terrifying for the child although it had no aftermath.  It is true that apart from any memories of it that lingered in the mind of the child the episode was immediately over with no broken limbs, welts or bruises left in its wake such as beating with a fist, rod or strap might have left.

The mood of society has turned substantially against approval of heavy forms of physical discipline but not all administerings of physical punishment by a parent have been made criminal offences.  That will be the result undoubtedly when a parent goes too far and exceeds the bounds of what is reasonable as the jury, quite understandably, has found was the position here.  The question for this court, however, is whether the sentence imposed in this case in consequence of the conviction was excessive. 

On the findings of the jury there was only one incident involved and that occurred in the course of an attempt to administer domestic discipline to a child.  The discipline was not shown to have been carried out in a vindictive fashion but rather it appears to have been done on impulse and ended with expressions of affection and kisses and a statement to the child by the appellant that he had been obliged to do it.   The appellant had no previous convictions of a similar kind, nor for anything involving the use of force or physical violence in any connection.  It is not to be taken that society takes no interest in the form of the parental punishment administered as distinct from the level of it.  The form of punishment adopted was something quite properly taken into consideration by the judge in imposing sentence.  At the centre of civilised living there is a need for regulation and control and those in the position of parents are not to be regarded as having a totally free hand to adopt and administer whatever form of unusual or eccentric punishment they might choose.  Concepts similar to those which might be adopted from another context like the notion of "cruel and unusual punishment" can be appealed to amongst other relevant factors in determining a proper penalty.  The need for deterrence against the tendency of persons to act in any similar fashion on other occasions is a relevant consideration.  Everything considered it cannot be said that the imposition of some term of imprisonment upon the appellant exceeded proper limits.

However, especially when it is remembered that the appellant had no previous convictions for violence, that his actions occurred in a context when in however misguided a fashion he was in a position equivalent to a parent administering discipline, there was only one occasion involved and, so far as the court was informed, the episode passed without after effects, we consider that the imposition of the maximum permissible term of imprisonment for assault such as occurred in this case was excessive.

We would grant the application, allow the appeal, set aside the sentence imposed below and order in lieu that the appellant be sentenced to imprisonment for six months with the five days previously served taken to be imprisonment served under this sentence.

REASONS FOR JUDGMENT - BYRNE J

Judgment delivered 13 May 1997

The appellant was tried in a District Court in November last year on charges of assault and deprivation of liberty relating to a 5 year old boy. One charge was of unlawful assault in late 1994.  The other two related to incidents alleged to have occurred on 19 February 1995.  The appellant was convicted on the first charge and acquitted of the others.

The appeal against conviction concerns the admissibility of notes of a conversation with the boy in which the boy made allegations against the appellant. Before discussing the issue, the surrounding circumstances should be mentioned.

In 1994 and early 1995 the appellant lived with the boy's mother.  The two of them were friends with Mr and Mrs Nespoli.  Mr Nespoli was an electrical fitter. He owned a hand-cranked, hand-held generator, which he used for testing circuits.  In late 1994 Mr Nespoli lent the device to the appellant to test a night scope.  The appellant also used it to punish the boy.

Mr and Mrs Nespoli testified to events at their house in late November 1994.  According to Mrs Nespoli, a few people were there at the time, including the boy, the appellant and at least two other adults. The boy misbehaved, and the appellant attempted to control him. As he tried to grab the boy, the boy kicked him in the face, which made the appellant "really angry". He sat on the boy's back and put tape around the child's hands and arms to restrain him.  The appellant then placed two wires which led from the device onto the boy's legs, before turning the handle to administer an electric shock. The boy screamed and promised to be good. The appellant stopped winding the device. Then he kissed the boy and told him that the ordeal was for the child's "own good". Mr Nespoli gave a similar account, although his recollection was that the boy's legs were taped together and that the shock was administered to the feet.

The appellant's use of the device against the boy came to the notice of the police on 19 February 1995 when Mrs Nespoli reported that she had seen the appellant about to punish the child that morning. At the trial, Mrs Nespoli gave evidence that she went to the appellant's house on that day to find the boy lying on a bed with the appellant yelling at him and fixing wires from the device to the boy's toes. Mrs Nespoli spoke to the boy's mother, who was in the house at the time, and retrieved the device.

A video-taped interview took place with the boy within hours of the incident. During the interview the boy said that tape had occasionally been placed over his mouth by the appellant. He maintained, however, that Mrs Nespoli had not been at the house, and he denied that the appellant had done anything to him that morning.  The boy was asked, in reference to the device, "What about the zapper?"  He replied that the appellant "zaps us", and that he "screamed really loud" when he was "zapped". Towards the end of the interview, he again asserted that Mrs Nespoli had not been at the house that morning and that he had not that day been "zapped".

Shortly after the interview finished, the officer spoke to the boy in the presence of a social worker. He said he was scared of the appellant, that he had not told the truth in his interview, and that Mrs Nespoli was at the house that morning while the appellant was "zapping" him. The officer recorded the conversation in her notebook. The prosecution relied on these entries as tending to prove that the device was used in late November at the Nespoli residence as well as on 19 February at the appellant's house.

The boy testified that Mr Nespoli had "zapped" him but that the appellant had never done so. Evidence of alibi was given in relation to the incident which Mrs Nespoli claimed to have witnessed at the appellant's house.

The sole ground of appeal against the conviction is a contention that the notebook entries were inadmissible. It is said that the requirements of s. 93A of the Evidence Act 1977 were not satisfied. By s. 93A,

It was not disputed that the requirements of s. 93A were satisfied if the section is to be accorded the interpretation naturally suggested by the ordinary meaning of its words and by the definitions ("document" and "made") the section imports.  However, it was submitted that, except possibly where an older child has personally written out a statement, the section should be construed to deny admissibility to a statement unless it is recorded in a form that allows it to be reproduced at trial. Such an interpretation would restrict the ambit of operation of s. 93A to recordings on film, by video or on some other medium which preserved sufficient of the circumstances surrounding the narration as would enable the jury to appreciate the demeanour of the child at the time and the environment in which the statement was made.

No doubt film or video recordings would afford a better opportunity to assess the reliability of stated facts than the contents of a police notebook accompanied by the officer's description of the surrounding circumstances.  And a construction of the section which confined it to a record that reproduces the statement in its original form has less potential to intrude upon conventional safeguards of an accused person's right to be tried fairly: cf R. v. F.A.R. [1996] 2 Qd R 49. But nothing in the language of s. 93A indicates that the Parliament intended such a limited scope for the provision. To the contrary, the section contains distinct indications of an intention that it comprehend another person's contemporaneously written record of things said by a child. The highly restrictive interpretation suggested for the appellant cannot be reconciled with the legislative intent as it emerges from the words used in s. 93A.

Section 93A requires that the statement be in a "document".  "Document" is defined for this purpose to include, "in addition to a document in writing", any "tape ... or other device in which sounds ... are embodied so as to be capable ... of being reproduced", and "any film ... or other device in which ... visual images are embodied so as to be capable ... of being reproduced ...": see paras (e) and (f) of the s. 3 definition. The records admissible under s. 93A could have been restricted to such tapes, films and other devices. They were not. Instead, the legislature chose to permit the reception into evidence of all those writings and other records which fall within the expansive definition of "document". Plainly, a written record is admissible if it satisfies the prescribed conditions. And the admissible records include documents containing words written down by someone other than the child. By s. 92(4), for the purposes of the part of the Act which contains s. 93A, a "statement contained in a document is made by a person if - (a) it was ... dictated or otherwise produced by the person; or (b) it was recorded with the person's knowledge ... ".

Child witnesses present special problems.  Section 93A, and the discretions which ss. 98 and 130 of the Act repose in the trial judge to exclude a statement that conforms with the conditions s.93A prescribes, constitute the balance the legislature has struck in weighing two important, in some respects competing, concerns: the effective prosecution of those who prey on children; and the need to secure a fair trial for an accused person.  The artificially narrow construction of the section suggested for the appellant would deprive it of part of its intended operation. In the present connection at any rate, s. 93A should be accorded the meaning its words naturally suggest. The appeal must therefore be dismissed.

Leave is also sought to appeal against the sentence of one year's imprisonment, which is the maximum prescribed by s. 335 of the Criminal Code.

When the appellant visited Mr and Mrs Nespoli at their house, he took the device with him, apparently intending to deter the child from misbehaviour or else to punish him.  The boy had behavioural problems.  According to his mother, he was given to tantrums, was very difficult, and suffered from an attention deficit disorder.  Unruly he may have been; but the frustrations of coping with him scarcely excuse the cruel, eccentric punishment meted out. The appellant subjected a defenceless child in his care to sustained electric shocks of perhaps 600 volts. This premeditated, frightening misconduct deserved condign punishment. To protect the boy and other children from repetition of the offence by the appellant, to mark the community's disapproval, and to deter others who might be tempted to harm children, a custodial sentence was called for. The question is whether the imposition of the maximum sentence was beyond the range of a sound sentencing discretion.

Despite the child's ordeal, it was submitted that the assault should not be seen as being in the worst category of such offences.  The offence was said for the appellant to be in the nature of a misguided form of domestic discipline administered in the presence of the child's mother and adult friends. This may be, although at the trial the appellant did not suggest that error of judgment accounts for the offence.  Nor was there any remorse. The appellant testified, denying that he had ever used the device. More importantly, the offence was not a spontaneous reaction to an especially stressful event; and the appellant did not much ameliorate his cruelty by immediately afterwards kissing the boy and telling him that the punishment was for his own good.

However, the child was not injured. Nor was there evidence indicating that his mental health had been adversely affected, which presumably explains why the appellant was not charged with assault occasioning bodily harm. It must also be accepted that the offence occurred only once. Although the evidence revealed that the appellant had punished the boy with the device on occasions other than that at the Nespoli residence, he was not convicted of another offence. He therefore fell to be sentenced only for that November 1994 assault: R. v. D [1996] 1 Qd R 363, 403-404.

Considerable publicity attended the trial. As a result, the judge recommended protective custody. This may mean a somewhat more than usually difficult incarceration.  The boy's mother was also the mother of a very young child of the appellant, whose relationship with the mother has ended.  It seems that the separation from her and the child distresses the appellant. Otherwise, the appellant's personal circumstances do not make out a case for leniency. He was 26 when the offence occurred. In 1987 he had been awarded 12 months probation for breaking, entering and stealing, and other offences.  He was sentenced to three years' imprisonment in 1988 for multiple offences of breaking, entering and stealing.  In 1993 fines were imposed for drug offences.  In May 1995 he received a suspended sentence of two years' imprisonment for an offence in relation to a motor vehicle.

The imposition of the maximum sentence is a substantial punishment. However, we were not referred to any case which suggests that the sentence was too severe.  In all the circumstances, it was, in my opinion, open to the judge to have concluded that the offence was in the worst category of contraventions of s. 335 of the Code and to have imposed the one year sentence.

The application for leave to appeal against the sentence should be refused.