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R v ZF[2021] QCHC 45

CHILDRENS COURT OF QUEENSLAND

CITATION:

R v ZF [2021] QChC 45

PARTIES:

THE QUEEN

(applicant)

v

ZF

(respondent/defendant)

FILE NO:

ID45/21

DIVISION:

Childrens Court

PROCEEDING:

Application

ORIGINATING COURT:

Childrens Court at Ipswich

DELIVERED ON:

30 November 2021

DELIVERED AT:

Ipswich

HEARING DATE:

19 November 2021

JUDGE:

Horneman-Wren SC, DCJ

ORDER:

The application is refused

CATCHWORDS:

CRIMINAL LAW PROCEDURE INFORMATION, INDICTMENT OR PRESENTMENT JOINDER – JOINT OR SEPARATE TRIAL – Where prosecution sought to have proceedings in Childrens Court removed to the District Court under section 110 of the Youth Justice Act 1992 – Whether an order for separate trials is unlikely to be granted – Whether court unlikely to make order for removal – Where application refused.

CRIMINAL LAW – TRIAL HAD BEFORE JUDGE WITHOUT JURY – Where if application is granted, child’s trial must proceed before a jury – Where trial before judge alone is a desirable outcome for a child – Where election of trial by judge alone is one of the special protections the Youth Justice Act 1992 provides.  

CRIMINAL LAW – EVIDENCE – GENERAL PRINCIPLES – FUNCTION OF JUDGE AND JURY – ADMISSIBILITY OF EVIDENCE – Where potential for defendants’ interview with police to be excluded – Where potential for photoboard interview to be excluded.

LEGISLATION:

Criminal Code ss 567, 568 

Youth Justice Act 1992 ss 110, 113

CASES:

Alexander v The Queen (1981) 145 CLR 395

Briginshaw v Briginshaw (1938) 60 CLR 336

R v Aboud [2003] QCA 499

R v ASM [2019] QChC 7

R v JE & XZ [2016] QChC 1

COUNSEL:

Ms A Stannard for the Crown

Mr D Edwards for ZF

SOLICITORS:

Office of the Director of Public Prosecutions for the Crown

Bradley Munt & Co for ZF

  1. [1]
    ZF is a child.  She is presently aged 15 years and 11 months.  She is charged on indictment presented in the Childrens Court of Queensland with one count of burglary in company and one count of arson.
  2. [2]
    Three adults, including a sister of ZF, are jointly charged with the same two offences on indictment in the District Court.  Their trial is listed as the number four trial in sittings commencing on Monday, 22 November 2021.  For that reason, there was a degree of urgency in determining this application in which the Crown sought to have the proceeding in the Childrens Court removed to the District Court to have ZF tried with those three co-accused.  Because of that urgency, on the day of the hearing I adjourned to consider the matter and later that day refused the application reserving my reasons.  The following are those reasons for refusal of the application.
  3. [3]
    Removal of the proceedings in the Childrens Court of Queensland is governed by s 110 of the Youth Justice Act 1992 it provides:

110 Removal to another jurisdiction for joint trial with another person

  1. (1)
    The prosecution may apply to a Childrens Court judge for the removal of a committed proceeding to a court of competent jurisdiction other than a Childrens Court judge for the purpose of having the child tried on indictment with another person.
  1. (2)
    If the judge is satisfied that—
  1. (a)
    the child may lawfully be charged in an indictment in which the other person will also be charged; and
  1. (b)
    if the child were so charged it is unlikely an application would be granted resulting in the child’s trial being had separately from the other person; and
  1. (c)
    in all the circumstances, including the relevant principles of this Act, the proceedings should be removed as requested;

the judge may grant the request and remove the proceeding as requested.

  1. (3)
    In removing the proceeding, the judge may exercise power as if the proceeding had been brought before the wrong court.”
  1. [4]
    The express consequence of an order of removal, if granted, is stated in s 113.  It is that the provisions of the Youth Justice Act permitting a trial for a judge sitting without a jury do not apply to the removed proceeding.  If removal is granted, ZF’s trial must proceed before a jury.
  2. [5]
    By reference to ss 567 and 568 of the Criminal Code, the Crown submits that joinder of ZF in an indictment in which the three adult co-accused will also be charged is lawful.  I accept that submission and am thus satisfied of the requirement of s 110(2)(a).
  3. [6]
    The Crown further submits that “there are no prospects of success should any application for severance be made”.[1]  The Crown’s written submissions did not further develop that submission.  Indeed, the submissions proceeded on almost an assumed basis that the court would be satisfied that any application by ZF for a trial separate from the other co-accused would be unlikely to be granted.  The written submissions were, essentially, only addressed to why the court would, in terms of s 110(2)(c), be satisfied that in all the circumstances the proceedings should be removed.
  4. [7]
    In oral submissions it became apparent that central to the Crown’s contention that the granting of any application by ZF for a separate trial is unlikely to be granted is the identification evidence which would be adduced in the prosecution case.  In order to consider whether such an application would be granted is unlikely, it is necessary to set out what is known of the evidence in the prosecution case and the court’s understanding of the likely issues at trial.
  5. [8]
    Attached to the Crown’s written submissions is a schedule of the facts alleged.  It sets out the following:

Facts

At approximately 6.00 pm on 20 April 2020, the defendants, in the company of other unknown young people, attended the address of Lightbody Street, Goodna.  [A male] was the first to enter the house, followed by the other offenders (Count 1).  Whilst inside the house, the group started to break things.  A neighbour, [Ms X], saw all of them ‘rip the house apart’.

[The male] walked out holding a box which he carried to the park across the road.  He was followed by the youthful offenders and [female 1].  He emptied the box near a tree, the clothes fell from the box.  The group returned to the offence address and went inside.  [The male] cut the box up into small pieces.

ZF approached [Ms X] and her aunt in a neighbouring property and demanded a lighter from them.  They told her they didn’t have one and she walked away.  ZF returned minutes later with a small, serrated kitchen knife and said, ‘Give me a fuckin lighter, I’m going to stab you!’.  [The male] intervened and said he would get one himself.  After a short time, he returned holding a BBQ lighter.  He handed the lighter to ZF and she picked up a shirt from a pile gathered in the lounge room which she lit on fire using the lighter.  She put the shirt back in the pile and they waited for the pile to erupt in flames (Count 2).

[The male] and ZF jumped out of a window and the remaining occupants including [female 1] and [ZF’s sister] ran out of the back door.  Ms Bangoura immediately contacted emergency services at 6.48 pm.  Rogers told the girls they had done a good job before returning to his house with [female 1] where he turned off all the lights.  [ZF’s sister] and ZF walked in the direction of Stuart Street, Goodna.

Emergency services arrived at the scene at 6.57 pm by which time the house was completely engulfed in flames and ultimately destroyed.  A retrospective market valuation was conducted, and the house was determined to have been valued in the range of $215,000 to $235,000.

Arrest

[Ms X] identified ZF and [ZF’s sister], who was standing in the street, to police attending the scene.  She also told them she had seen Rogers, who was known to her, and his girlfriend, inside the house and involved in the arson.  She later participated in a photoboard interview with police where she immediately recognised both ZF and [ZF’s sister] as being the people involved in this incident, specifically that ZF had lit the fire.  No photoboard interview was conducted in relation to any other offenders.

A secondary crime scene was declared at 6 Lightbody Street, Goodna, at the conclusion of which [the male] and [female 1] were arrested.  [ZF’s sister] and ZF were arrested at the scene.  [Female 1], [ZF’s sister] and ZF all participated in an interview with police where they each denied any involvement in, or knowledge of, the commission of the offences.  They were subsequently charged.”

  1. [9]
    In addition to the facts set out in the schedule, the learned Crown Prosecutor in her oral submissions made reference to evidence contained in records of interviews conducted by police with each of ZF and her co-accused sister.  The records of those interviews were tendered.[2]  I shall return to discuss them in due course.
  2. [10]
    The Crown identified a number of public policy reasons as to why the court would be satisfied, in terms of s 110(2)(c), that in all the circumstances the proceeding against ZF should be removed.  Those public policy reasons included that there were some 26 witnesses to be called in the Crown case who would have to give evidence twice if the proceeding was not removed and that the estimated length of the trial would be four to five days.  In this context, the Crown also stressed the undesirability in the interests of justice that there be inconsistent verdicts.  I accept that each of those matters, while more directly bearing upon the consideration of whether in all the circumstances the proceeding should be removed, also bear upon, although more indirectly, the consideration of whether a severance application would be unlikely to be granted.
  3. [11]
    In respect of the potential for inconsistent verdicts, particularly where the co-accused may point the finger of blame at each other, the Crown submitted that should ZF be tried separately the evidence of her sister’s interview with police would not be before the tribunal of fact, whereas a jury in a joint trial would hear the evidence contained in each sister’s interview. The submissions were said to be made with the acknowledgment that the evidence in the interviews of each sister is only admissible as against the maker of the statement and that the jury would have to be directed accordingly.  However, the submissions included that, “if ZF’s trial is on her own, the judge would not hear [her sister’s] interview” and that “[her sister] has already given evidence in her own record of interview of what she says happened that day which is in direct opposition to what ZF herself says”.
  4. [12]
    Despite the apparent acknowledgment that her sister’s interview is not admissible evidence as against ZF [and vice versa] those submissions either wrongly suggest that the jury should consider the sister’s evidence in the case against ZF or, at least, acknowledge that the jury might impermissibly consider the evidence in that way notwithstanding directions given by the trial judge.  The potential for misuse of that evidence in that way rather supports a case for, not against, separate trials.
  5. [13]
    The Crown contends that not only is ZF’s evidence in her interview with police inconsistent with that in her sister’s interview, but that it is also internally inconsistent; ZF giving different accounts of how certain events occurred on the day of the alleged offending. 
  6. [14]
    As was raised by me with the learned Crown Prosecutor during the course of argument, there would appear to be an issue concerning the admissibility of ZF’s interview in the case against her.  There is no application before the court for the exclusion of that evidence, so it would be inappropriate to express any firm, let alone concluded, view on the issue.  However, because the nature and extent of the evidence against ZF is relevant to a consideration both of whether an application by her for a separate trial is unlikely to be granted and of whether in all the circumstances the proceeding should be removed, some observations should be made about the potential for exclusion of her interview with police.
  7. [15]
    From the statement of facts, it is apparent that the fire occurred in the early evening of 20 April 2020 with emergency services arriving at about 7.00 pm.  From the transcript of the recorded interview, it is apparent: that it occurred at Springfield Police Station later the same evening; that it commenced at 9.12 pm; and that it was of 31 minutes duration.  ZF was aged approximately 14 years and four months at the time.  She was interviewed in the presence of her “big sister” who was aged 23.[3]
  8. [16]
    Two officers, a female constable and a male senior constable, conducted the interview.  At the commencement of the interview, the constable states that the reason for ZF being at the police station was that: “You’ve been arrested in relation to a house fire that occurred on Lightbody Street in Goodna on today’s date about 7.30 pm roughly”.  Having informed ZF of her right to remain silent and her right to telephone a lawyer to arrange to have them present, ZF says: “I want a lawyer”.  To that clear statement by a 14-year-old child being held under arrest at a police station the constable responds: “You want a lawyer?  Okay.  So I just said I called the legal hotline for you and you said, Nah, I don’t wanna talk to anyone”.  That conversation said to have occurred between the police officer and the child is not recorded.
  9. [17]
    The child continues: “I don’t want like a, another like Legal Aid or something like that.  Like I reckon it’s better though if I have a lawyer, you reckon they’ll help me with something?”.
  10. [18]
    The Constable responds: “I can’t give you legal advice, but that’s what I said about the phone call, I can get them on the phone for you and you can talk to them”.  The following exchange then occurred:

“ZF: Yeah – –

Constable: You wanna – -

ZF: I do.

Constable: Do that?

ZF: Yeah, but not today.”

  1. [19]
    From this, the Constable continues: “Okay.  So do you wanna talk to me today, and give me your version of what happened, or?”.
  2. [20]
    The child does not directly answer that question but says: “What, what happened today?  Just then?”.
  3. [21]
    The child’s sister says: “Yes” and the Constable says: “As in like what happened tonight?”.
  4. [22]
    The child’s sister then says, in an apparent reference to the female constable, “She’s gonna ask you questions what happened to – early tonight”.
  5. [23]
    The child then says: “About [indistinct], yeah.  So this is what happened today”.
  6. [24]
    The interview then continues.
  7. [25]
    The child’s earlier clear expression of her desire to have a lawyer present is not further considered or acted upon.  The interview appears to proceed on an understanding by police that the child wanted to speak with them that night in the absence of a lawyer, but that she wanted a lawyer on another day, rather than her having indicated a willingness to speak with police on another day in the presence of a lawyer. If that is the understanding of police which the interview continued, it may be doubted to have been a correct understanding.
  8. [26]
    It may be that no application is brought to exclude the interview.  If an application is brought, it may be refused.  However, for present purposes I am not prepared to proceed on the basis that the child’s interview will certainly form part of the evidence in the case against her. 
  9. [27]
    If her interview was excluded the potential for the jury to misuse her sister’s evidence as evidence against ZF is not diminished and may be significantly increased.  In the absence of a police interview with ZF in which she places herself at the scene, the jury hearing an interview with ZF’s sister in which she places ZF at the scene, although inadmissible against ZF, is significantly more likely to be impermissibly misused by the jury not withstanding judicial directions.
  10. [28]
    In R v Aboud,[4] Mackenzie J (McPherson JA and Wilson JA agreeing) said:

“The categories of cases where it is appropriate to order separate trials are not closed. When making the decision at trial, typically, cases where separate trials are allowed are ones where one case is significantly weaker than the other, where there is a real risk that the weaker prosecution case will be made immeasurably stronger by reason of prejudicial material in the case of the other accused and where the degree of prejudice from evidence admissible only in the case of one accused to the case of the other is so great as to make it unfair to try the accused together.”

  1. [29]
    The potential misuse by the jury of ZF’s sister’s interview which I have identified, particularly if ZF’s own interview is excluded, raises the real possibility that this is a case of the kind identified by his Honour in which separate trial may be ordered.
  2. [30]
    Again, this is a matter which would support a case for, not against, separate trials.
  3. [31]
    To consider further the Crown’s submission that central to the unlikelihood of a separate trial being granted is not the interviews of each of the sisters but the identification evidence, some further examination of that evidence is necessary.
  4. [32]
    In examining that evidence, it should be observed that the extent of the court’s knowledge of the identification evidence is limited.  Essentially, it is limited to what appears in the statement of facts.  No statements provided by any identification witnesses to police are in evidence on the application.  No statement of police concerning how the photoboard identification was undertaken, or indeed why it was undertaken, are in evidence.
  1. [33]
    In addition to what is set out in the statement of facts about identification, the prosecutor gave the following account in submissions:

“But the evidence of identification which comes from, first of all, a neighbour who sees the sisters together, who sees the interaction between the defendant – the male defendant and the sisters, who was confronted by the child defendant and who demands a lighter and then the male defendant says to her ‘don’t worry, I’ll get it’.  Sees him go to his house, sees he’s come back later, the house is then set on fire.  Sees the commission of Count 1, all four of them together in the house destroying the house.  It’s the identification evidence of that witness who knows [the male], the male defendant, because she lives across the street from him but identifies, through a description and then later a photoboard procedure, the two sisters.  That, we say, joins the four together.”

  1. [34]
    That account may differ slightly from that which appears in the statement of facts in so far as it may suggest that ZF and her sister were only identified by the eyewitness from the photoboard procedure.  However, that is clearly inconsistent with the statement of facts which states that the eyewitness

“identified ZF and [her sister] who were standing in the street, to police attending the scene…she later participated in a photoboard interview with police where she immediately recognised both ZF and [her sister] as being the people involved in this incident, specifically that ZF had lit the fire.”

  1. [35]
    I proceed on the basis that the version of events contained in the statement of facts is probably the more accurate: first, simply because it has been included in the statement of facts in those terms; and, secondly, because it is more consistent with ZF and her sister being arrested by police at the scene.
  2. [36]
    To consider the strength of the identification evidence which the Crown contends is central to an unlikelihood of any application of a separate trial being granted to ZF, the admissibility of the photoboard evidence should be considered.  As with the police interview with ZF, there is no application before the court to exclude that photoboard evidence, so it is equally inappropriate to express any firm view on the issue.  However, for the same reasons expressed earlier concerning the interview, some observations should be made about the potential for its exclusion also in order properly to consider the nature and extent of the identification evidence against ZF.
  3. [37]
    It is completely unexplained why a photoboard interview would be conducted by police with an eyewitness after the eyewitness had identified ZF and her sister to police at the scene, and police acting on that identification had arrested each of them. 
  4. [38]
    Also unexplained is the process undertaken by police to compile the photoboard and show it to the eyewitness.  What can be deduced is that the process must have involved police including within the selection of photographs one of each of ZF and her sister.  That is, police must have included photographs of the very people previously identified by the eyewitness.  One can only conclude that the inclusion of photographs of ZF and her sister was for the very reason that the eyewitness had already identified them. 
  5. [39]
    It is difficult to understand how such a process of identification could in any way add to the evidentiary case against either.  The subsequent identification would be inevitable, but in an evidentiary sense, meaningless. All it would seem to do is increase the potential for misuse of that evidence by a jury through a misunderstanding that it somehow bolstered the identification case.  I say increase the potential for misuse because the courts have long recognized the particular difficulties and vices associated with photoboard evidence and its potential for misuse. 
  6. [40]
    Those matters were explained in considerable detail by Stephen J in Alexander v The Queen.[5]  His Honour’s explanations warrant setting out here.
  7. [41]
    Stephen J observed:

“[Photo identification] may be used in at least two ways: first, in the detection process, by helping the police to know whom they should arrest and charge; secondly in the evidentiary process, to provide proof in court that the accused is in fact the offender.  With its use in the detection process a court has no direct concern until that use of it intrudes, as it frequently will, upon its use in the evidentiary process.  With its use in the evidentiary process courts will always be concerned.

The use of the photo identification in the evidentiary process involves three further factors of a quite different kind which apply only to its use in that process.  Unlike the case of an identification parade, an accused whose identity as the offender is sought to be proved at his trial by evidence of previous photo identification is likely to know nothing at first hand of the way in which the identifying witness earlier identified his photograph as that of the offender.  He must rely upon cross-examination of prosecution witnesses for knowledge of the conditions of identification and of what safeguards were taken against error on the part of the identifying witness.  Again, by what may be called the “rogues gallery” effect, evidence that the police had in their possession and showed to the identifying witness photographs of the accused may often strongly suggest to a jury that the accused has a criminal record, perhaps even a propensity to commit a crime of the kind with which he is charged.  Their production in evidence, or even reference to their existence, may then be highly prejudicial to an accused.  Lastly, there is the ‘displacement’ effect.  Having been shown a photograph, the memory of it may be more clearly retained than the memory of the single sighting of the offender and may, accordingly, displace that original memory.  Any subsequent face to face identification, in court or in an identification parade, may, on the identifying witness’s part, in truth involve a matching of the man so identified with the remembered photograph, which has displaced in his memory his recollection of the original sighting.

For the purposes of the police in the detection process, where these three factors do not operate, the use of photo identification is of obvious value, despite its inherent defects.  It offers to them a quick and convenient means, often the only readily available means, of having an eyewitness pick out the alleged offender from what may be a very large number of possible suspects.  To deny its use to the police in the detection process, where it serves a useful, perhaps even an essential, purpose, would be to prejudice the attainment of one of the ends of justice, the detection and bringing to trial of offenders.

Once used in the detection process, photo identification tends inexorably to intrude upon the trial evidence.  This occurs most commonly in the following way: the eyewitness who in the detection process has, by the use of photo identification, put a name to a previously unidentified offender is very likely to be an identifying witness, perhaps the only available one, at the ensuing trial.  Yet in that role his earlier association with photo identification will tend to infect his evidence.  Its displacement effect will operate to a greater or lesser extent upon any later identification which he makes in court or of which he gives evidence.  To attack his evidence of identification the defence will wish to expose this effect.  But cross-examination which reveals the earlier photo identification will be likely to subject the accused to the rogue’s gallery effect.  That effect will be introduced even more directly should the prosecution itself to be permitted to lead evidence of the photo identification so as to support the evidence the witness gives of the identity of the accused as the offender.  In the evidentiary process, then, photo identification has serious disadvantages, in addition to that of its inherent unreliability.

However, the unacceptable price of avoiding the intrusion of photo identification and all its consequences into the trial would be the abandonment of its use in the detection process, the police foregoing all photo identification in their detection of crime lest it disqualify a potential identifier from giving essential evidence of identity at a subsequent trial.  There is a solution to the problem, based upon a compromise.  Courts may discourage its use by police after the detection process has come to an end by treating that use as likely to disqualify a witness from giving evidence of the accused’s identity; they may at the same time tolerate its intrusion into the trial evidence so long as its earlier use has been in the actual detection of crime.

It is just such a solution that the courts have applied, attempting to reconcile the interests of the accused with those of the community by differentiating between the detection and the evidentiary process.  Photo identification thus remains available as an effective aid to the detection of crime, but will tend to be excluded from the trial evidence unless its intrusion be justified by its earlier use having occurred in the detection process.

The need to distinguish between the use of photo identification in the detection process and its use in the evidentiary process was early recognised, as was its necessary intrusion into the trial evidence if originally employed at the stage of detection.  R v Palmer; R v Maleny; R v Dwyer and Ferguson; R v Wainwright and R v Hinds were all cases where the use of photo identification occurred in the detection process.  In all but Palmer the earliest in time, the distinction arising between use in the detection process and use in the evidentiary process was regarded as quite critical.  On the other hand, in Goss, in Seiga and, at least as the Court of Criminal Appeal believed at the time of initially delivering judgment, in Haslam, the use of photo identification did not occur until the evidentiary process, after the accused was in custody.  It had played no part in his detection.  In these latter cases the court stigmatised its use, describing it as ‘not a proper one’ – Goss; as ‘indefensible’ – Haslam and as ‘unsatisfactory’ conduct, of which the court ‘disapproves’ – Seiga. …

This survey of the cases discloses that when photo identification is used after the detection process is over, that will in itself be a strong ground for excluding from the trial all evidence of identification by a witness who has been involved in that photo identification.  The police will in such a case already know, at the time of the photo identification, the identity of the ‘wanted man’.  Accordingly, the particular advantages which photo identification offers as a means of supplying that information will no longer apply.  Instead, it will possess only its character of a second-best mode of identification, particularly prone to error and also productive of those well-recognised consequences so likely to be prejudicial to an accused.

When, on the other hand, it is in the detection process that photo identification was used, the witness’s evidence of identification may be admitted in evidence unless an application of the familiar exclusory discretion, dependent upon the weighing of prejudicial effect against probative value, should require its exclusion.

One further general observation is called for.  Where the photo identification was employed in the detection process or only after it ended will not depend upon whether at the time the accused was already in the hands of the police.  No doubt, if he was, his availability for identification at a line-up may suggest the drawing of the distinction at that point.  But it is the need of the police to know who is the wanted man which justifies both the use of photo identification in the detection process and its intrusion into evidence.  It will be the existence of that same need which will determine the point at which the distinction is to be drawn between the detection and the evidentiary processes.  Once the police know who they are seeking, photo identification loses its peculiar virtue while retaining in full its particular vices.  And of course, police knowledge of the identity of the wanted man is not the same as police custody of him.  It is the former, once acquired, that should for this purpose mark the end of the process of detection.”

  1. [42]
    When one applies those observations to the photoboard exercise in this case the following points can be made.  Plainly, the photoboard identification was not used in the detection process, but in the evidentiary process.  It was conducted only after ZF had been arrested in respect of the fire, she having been identified at the scene.  It was conducted after ZF and her sister had been formally interviewed by police at a police station on the night of the fire following their arrest.[6]
  2. [43]
    Secondly, the potential displacement effect in the process adopted is manifest.  Not only is the eyewitness asked to identify from photographs the offenders who she has already identified, there is a real risk that rather than identifying the two persons she believed she saw committing the crime, she is in fact simply identifying the two people she has previously told police were those who she saw commit the crime.  That is, she is not selecting photographs of persons she saw in the house lighting the fire; she is selecting photographs of persons she saw on the street watching the fire.
  3. [44]
    As with ZF’s police interview, it may be that no application will be brought to exclude the photoboard evidence.  If brought, such an application may be refused.  However, again, for present purposes I am not prepared to consider the unlikelihood of an application for a separate trial by ZF being granted resting on the identification case against her, and which the Crown submits is central to that unlikelihood, on the basis that the photoboard evidence will certainly form part of that identification evidence against her.
  4. [45]
    In Briginshaw v Briginshaw,[7] Dixon J observes:

“The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found…Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made…or the gravity of the consequences flowing from a particular finding, are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences.”

  1. [46]
    Although made in the context of fact finding, those observations are, in my opinion, apposite to consideration of whether the Court is satisfied of those matters set out in s 110(2). The consequences of being satisfied of those matters are significant, most particularly the child’s loss of the right of trial by judge alone.
  2. [47]
    The principles set out in the Charter of Youth Justice Principles in Schedule 1 of the Youth Justice Act underlie the operation of the Act.[8] Principle 4 provides:

“Because a child tends to be vulnerable in dealings with a person in authority, a child should be given the special protection allowed by this Act during an investigation or proceeding in relation to an offence committed, or allegedly committed, by the child.”

  1. [48]
    Election of trial by judge alone is one of the special protections the Act provides. This Court has previously observed that a judge only trial by a Childrens Court judge is often a desirable outcome for a child.  Children’s Court judges are experienced in dealing with children in the courts and having a trial before a judge alone, as compared to a trial before a judge and jury, may be less intimidating.[9]
  2. [49]
    With the potential diminishment of the Crown case against ZF by the possible exclusion of those two pieces of evidence, and with only a description of other evidence in the case against ZF and her co-accused as opposed to statements of the relevant witnesses, I am unable to reach the requisite state of satisfaction as to either it being unlikely that an application for a separate trial for ZF would be granted or that, in all the circumstances, the proceedings should be removed. 
  3. [50]
    In the absence of the statements by the eyewitnesses, I am unable to assess the strength of the identification evidence by her.  The inability to assess the strength of that evidence means that I am unable to assess the extent to which the statement of ZF’s sister, inadmissible against ZF, may be used impermissibly by the jury in identifying ZF notwithstanding directions given by the trial judge. 
  4. [51]
    If unsatisfied of those matters, the court’s discretion to remove the proceeding does not arise.
  5. [52]
    It is for these reasons that the Crown’s application to remove the proceedings from the Childrens Court of Queensland to the District Court of Queensland had to be refused.

Footnotes

[1]Applicant’s written outline, para 19.

[2]Exhibits 1 and 2.

[3]Not the sister alleged to be a co-offender.

[4][2003] QCA 499 at [35].

[5](1981) 145 CLR 395 at 408–418.

[6]ZF’s sister was also interviewed at Springfield Police Station on 20 April 2020.  Her interview was conducted by two different officers between 11.00 pm and 11.26 pm.

[7](1938) 60 CLR 336 at 361-362.

[8]Section 3 Youth Justice Act 1992.

[9]R v JE and XZ [2016] QChC at [21] pr Smith DCJA and R v ASM [2019] QChC 7 at [16] per Fantin DCJ.

Close

Editorial Notes

  • Published Case Name:

    R v ZF

  • Shortened Case Name:

    R v ZF

  • MNC:

    [2021] QCHC 45

  • Court:

    QChC

  • Judge(s):

    Horneman-Wren SC, DCJ

  • Date:

    30 Nov 2021

Appeal Status

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