R v Schneiders[2009] QCA 149

SUPREME COURT OF QUEENSLAND 

HOLMES JA:  The applicant seeks an extension of time within which to appeal against his conviction of three counts of indecent treatment of a child under 16 years, with the aggravating circumstance that the child was under the age of 12 years.  He was acquitted of a fourth count of indecent treatment.

The application is brought on the basis that the complainant had received counselling by a psychologist between the date of her complaint to police and her cross-examination in a pre-recorded hearing.

The applicant contends that the prosecution was under an obligation to enquire “as to the nature, degree and circumstances surrounding the counselling sessions”, disclosing the information to the defence.  The failure to do so, it is said, deprived the applicant of the opportunity to discredit the complainant's evidence as given in cross-examination, or to seek exclusion of that part of the complainant's evidence given under cross-examination in the pre-recorded hearing.

The chronology of events is this.  The complainant spoke to her mother about the applicant's misconduct on 29 December 2004.  She took part in a record of interview with police on 31 December 2004.  That evidence was adduced as her evidence-in-chief pursuant to s 93A of the Evidence Act 1977 (Qld).

From 17 February 2005 until 1 March 2007, the complainant took part in 26 face to face and two telephone sessions with a counsellor.

On 14 July 2006, the complainant was cross-examined at a pre-recorded hearing.  In the course of that cross-examination, she admitted that she had discussed the matters of complaint with her mother and her counsellor.  It does not appear that the question was explored further in cross-examination.

On 14 March 2007, the applicant went to trial on the four counts of indecent treatment and was convicted.  On 27 June 2007, an appeal against conviction was allowed.  A retrial proceeded in June 2008 and on 18 June the applicant was convicted of three of the four counts.  In December 2008, the complainant made an application for criminal injuries compensation.  On 26 February 2009, the material in support of her application, which included the counsellor's report, was served on the applicant, and on 11 March 2009 the application for an extension of time was filed.

The applicant's argument is that the complainant's revelation in her cross-examination that she had discussed her evidence with a counsellor “imposed a duty on the prosecution to locate (sic) and make enquiries as to the reliability and credibility of the evidence given by the complainant under cross examination”.

The application seems also to complain of professional incompetence on the part of the applicant's former legal representatives who appeared for him at the time of the pre-recorded hearing in their failure to obtain disclosure, as it is put, of the communications made in the counselling session.

If there were anything remiss in that failure, I would not entertain any application based on it now.  The fact that the complainant had made the response and it had not been explored further was apparent at the time of the first trial, at the appeal which followed it, and at the second trial.  If there were any complaint to be made about the lack of follow-up or any other omissions in the way the pre-recorded hearing was conducted, it should have been made long ago.

All that is known as to the content of the counselling session appears in the report of the counsellor, Ms Botros.  She describes the purposes of the counselling as:

• Reduce trauma related symptoms;
• Support [the complainant] during (and after) court proceedings;
• Increase self acceptance and self esteem;
• Provide guidance, support and education in maintaining personal safety;
• Assist [the complainant] in acquiring coping strategies in relation to family dynamics. 

She says she used a combination of narrative, cognitive behavioural expression, relaxation and art therapies, through which the complainant learned to come to terms with the sexual abuse which she had experienced.

It appears that, as is not unusual, there were discrepancies between the complainant's account as given to the police officer in her initial interview and what she said under cross-examination 18 months later.  The relevant transcripts are not before the Court, but some assistance can be gained, as the applicant's solicitor points out, from the judgment on the applicant's previous appeal in R v Schneiders [2007] QCA 210.

As to the first count, the complainant had told the police that when she was seven or eight, the applicant had touched her on her private parts, rubbing his hand over her front on the outside of her jeans from neck to thigh, and asking her to lift her shirt up.  She ran away from him after he had touched her groin area.  In her pre-recorded evidence, she said that the applicant tried to lift her shirt up but stopped when her brother came into the area where they were and spoke to her.

As to the second count, the complainant had said that the applicant put her hand down his pants to force her to touch his penis.  She said that the incident ended when she pulled her hand out of his pants and went for a walk.  In her pre-recorded evidence, she gave the additional detail that she had gone to the applicant's shed to cook his breakfast, but she was not then sure whether she had stayed in the shed after the incident.

As to count 3, the complainant had told the police that the applicant simulated masturbation in her presence, shaking his penis, or moving his hand up and down for about five minutes, whereas in the pre-recorded evidence she said that she saw only a little of his pulling his penis out of his pants, and quickly hid her head behind a banana leaf.

As to count 4, the complainant had said that the applicant put an eggplant on his jeans near his penis and moved his hand over the eggplant before placing one end of it in his mouth and sucking it.  He then began to remove his penis from his pants and the complainant ran away.  In the pre-recorded evidence, she said she could not remember anything other than the applicant putting the eggplant where his private parts were and sucking it.

The applicant argues that the Crown was obliged to disclose to the applicant information as to what the counselling sessions involved, pursuant to s 590AB(2) of the Criminal Code, which requires disclosure of “all things in possession of the prosecution … that would tend to help the case for an accused person”.  As to the obvious question of how it could be said that the information was in the possession of the prosecution, the applicant points to s 590AE, which, inter alia, says that a thing is in the possession of the prosecution if “the arresting officer or a person appearing for the prosecution – (i) is aware of the existence of the thing; and (ii) is, or would be, able to locate the thing without unreasonable effort”.

The argument is that the Crown knew that there had been counselling sessions; that the prosecuting office and the counsellor were both in the same country town; and that there would have been no difficulty in locating “the thing” without unreasonable effort.

That submission blithely ignores the fact that the relevant records of the counselling sessions were in the possession of a third person, the counsellor, who was under no obligation to provide access to them.  It was not merely a question of the prosecution “locating” the documents; they could only have been obtained by search warrant or subpoena and there were certainly no grounds for the former.  The records were in no sense in the possession of the Crown and they were as accessible to the applicant, by means of subpoena, as they were to the prosecution.

In any event, there is nothing in the report of Ms Botros now before the Court which supports a view that the content of the counselling session would have had any relevance in discrediting or explaining discrepancies in the complainant's evidence.  The report does not suggest that she made any statement to the counsellor inconsistent with her evidence.  Insofar as it might be suggested that the sessions had any coaching effect, there seems to have been no improvement in the quality of her evidence after, let alone as a result of, the counselling sessions to the date of the pre-recorded hearing; to the contrary.

There was nothing in the report which could have suggested any basis for its exclusion and for the exclusion of the evidence given under cross-examination as tainted.  Even if there were some such basis, it is difficult to see how exclusion of the answers under cross-examination could in the least have assisted the applicant, since then there would have been no discrepancies at all in the complainant's evidence to which he could have pointed.Finally, I should mention a remaining point made by the applicant: that a factor to be taken into account is that the complainant would not be exposed to cross-examination or examination if a retrial were to occur.  That seems to disregard the fact that the only relevance of evidence from the counselling sessions could be in establishing either that what the complainant said later under cross-examination was the product of coaching, or that it was inconsistent with something she had said in the counselling sessions.  Neither, as I have already pointed out, is made out by the evidence which has been put before the Court in the form of the counsellor's report.  But, in any event, it is difficult to see how it could have been used for that purpose without those propositions being put to the complainant.

The applicant has demonstrated no basis for supposing that information as to the content of the complainant's counselling sessions would have made any difference if it were known at trial, or that the failure to obtain that information is attributable to any breach of obligation by the Crown.

The interests of justice do not require an extension of time to allow an appeal based on those arguments.

I would dismiss the application.

MUIR JA:  I agree.

McMURDO J:  I agree.

HOLMES JA:  The application for an extension of time is dismissed.