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The Queen v KZE[2019] QCHC 30



R v KZE [2019] QChC 30











Pre-trial hearing


Childrens Court of Queensland


22 October 2019




1 October 2019




  1. The order is that the evidence of Constable Heldsinger, Justine Harders, and David Quittenden are excluded from evidence at his trial.
  2. The evidence of the Electronic Record of Interview with the applicant on 25 February 2017 is admissible at the trial.


CAPACITY – PRESUMED NOT CRIMINALLY RESPONSIBLE – PROBATIVE VALUE – where the applicant is charged with two counts of rape and one count of indecent treatment of a child under 16, under 12 – where the applicant was aged between 12 years and eight months and 13 years and two months – where the applicant seeks to exclude evidence sought to rebut the presumption that he is criminally responsible – whether the evidence has probative value – whether the prejudicial value outweighs the probative value.


C Lovel on behalf of the applicant

N Needham on behalf of the respondent


Legal Aid Queensland on behalf of the applicant

Office of the Director of Public Prosecutions on behalf of the respondent

  1. [1]
    The applicant seeks an order to exclude certain evidence at his trial.
  1. [2]
    The applicant is charged with one count of indecent treatment of a child under 16, under 12 and two counts of rape. The complainant in all the alleged offences is a child then aged five. The applicant was aged between 12 years and eight months and 13 years and two months at the time of the alleged offences. Due to his age at the time of the offences the applicant is presumed not to be criminally responsible.[1] 
  1. [3]
    The following evidence is sought to be led to rebut the presumption that he is not criminally responsible:
  1. Records from school including behavioural records and guidance reports assessing intellectual functioning.
  1. On 7 November 2017 the applicant was spoken to by a teacher for referring to a “threesome in class” and later apologised to the teacher stating he did not know what it meant.  Later, on the same day, the applicant asked a different teacher “Miss what’s a freesome”.  The teacher ultimately stated that he did not know the meaning of the word and why he had previously got into trouble then he would have to stay after class and have a conversation with his teacher.  The applicant responded “oh no it’s right”.  These school records are not the subject of the present application. 
  1. Evidence that on 27 February 2018 Constable Allan Heldsinger observed the applicant in a private area at the back of the Leichardt Hotel in Cloncurry with four other juveniles.  It became apparent that the juveniles were using the hotel’s Wi-Fi.  Constable Heldsinger said he then had a “general” conversation with the juveniles and informed them they were not allowed on the grounds without lawful reason.  He told the applicant that if the applicant returned to the location proceedings would be commenced for trespass and the applicant would “probably get into trouble”. 
  1. The prosecution seek to lead evidence from Ms Justine Harders who deposes that in November 2017 she explained to the applicant the dangers of setting fire especially in a dry environment.  She deposes that in 2018 she told the applicant twice to stop picking on another child after he had tripped that child over while playing “tiggy” in the front yard and in early April 2008 she observed the applicant playing with a ball aggressively while teasing another child for being a sook and that the applicant’s parents disciplined him by hitting a ball into his back. 
  1. The prosecution also said to lead evidence from the applicant’s former school guidance counsellor, David Quittenden, who deposes that between the start of 2018 and the end of October 2018 he counselled the applicant many times in relation to swearing and rough play while in the playground at school.
  1. An Electronic Record of Interview conducted on 25 February 2017.
  1. The prosecution argues that in rebutting the presumption the Crown is permitted to rely on evidence that ordinarily would be inadmissible.  Such evidence can include previous convictions, if probative of capacity.  Questioning of the child by police about prior offences and evidence of previous dealings with the police of the kind sought to be proved in this instance may be called to prove capacity.[2] 
  1. [4]
    Section 130 of the Evidence Act 1977 (Qld) states:

“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.”

  1. [5]
    The applicant argues that it would be unfair to lead three pieces of evidence at parts 2-5. Those pieces of evidence have some slight probative effect in respect of the capacity of the applicant in the instant charges but I am of the view that the evidence is very prejudicial, particularly in combination. The prosecution argue that a clear direction could be made to the jury not to use the evidence as indicating bad character making it more likely that he committed the relevant offences. However, I have come to the view that the prejudicial value far outweighs the probative value in respect of any of or all of those pieces of evidence. There is a real risk the jury will see him as a disruptive, lawless child who is more likely to offend in the way alleged rather than using the evidence to assess his capacity.
  1. [6]
    The final piece of evidence sought to be led to rebut the presumption is an Electronic Record of Interview with the applicant on 25 February 2017 in respect of his possession of a knife and attempted damage to car tyres. The applicant’s father was present as a support person and Senior Constable Moroney deposes that a legal representative was declined by the father. There is an argument that the confessional statement is not admissible against the applicant unless it can be shown to have been made voluntarily in the exercise of a free choice to speak or be silent the burden of proving voluntariness lies on the prosecution. The applicant further relies on the unfairness discretion citing the prejudicial effect.
  1. [7]
    I have already said that in order to prove capacity the prosecution is entitled to lead otherwise inadmissible evidence, but importantly, here the evidence is not sought to be led as adverse to interest in respect of the charges under consideration. The prosecution say the interview is led because it is a recorded conversation with the applicant child at a time relatively proximate to the offending period and that a jury may glean an understanding of his general level of intelligence, speech and demeanour from the interview. It is therefore relevant and probative generally. I am satisfied that the interview does have probative value if led for that single purpose. I do not believe that the prejudicial effect is likely to exceed the probative value if a clear direction is given that the interview is not being used to show bad character therefore making it more likely that he considered the instant offences but purely and simply for the jury to observe him and assess his apparent intellectual capacity and understanding and moral development. Accordingly, of those matters contested by the applicant the only piece of evidence which remains admissible is the Electronic Record of Interview. The school records are not contested.
  1. [8]
    The order is that the evidence of Constable Heldsinger, Justine Harders and David Quittenden are excluded from evidence at the trial. The evidence contained in an Electronic Record of Interview with the applicant on 25 February 2017 is admissible at the trial.


[1] Criminal Code 1899 (Qld), s 29(2).

[2] R v F; ex parte A-G [1999] 2 Qd R 157; RP v The Queen (2016) 340 ALR 2012.


Editorial Notes

  • Published Case Name:

    The Queen v KZE

  • Shortened Case Name:

    The Queen v KZE

  • MNC:

    [2019] QCHC 30

  • Court:


  • Judge(s):

    Dick DCJ

  • Date:

    22 Oct 2019

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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