R v M[2004] QDC 85

DISTRICT COURT OF QUEENSLAND

 The Application

1. [1]
   This is an application for a permanent stay of proceedings or, in the alternative, for the exercise of discretion to exclude the evidence of the complainant. The application is brought on the basis of the refusal by the complainant to answer certain questions in cross-examination.

The proceedings

2. [2]
   The proceedings are by way of a three count indictment charging the defendant with one count of indecent dealing with a child under 12 and two counts of indecent dealing with a child under 12 and under his care. The charges relate to the one complainant, who was eight years of age at the time of the alleged offences, nine years of age when interviewed by police and 10 years of age at the time of giving evidence by pre-recording. The first count concerned an alleged indecent dealing by the defendant while giving the complainant a piggyback ride. The second and third counts relate to subsequent incidents alleged to have taken place on one evening when the defendant and his de facto wife were minding the complainant. At the time of the alleged offences, the complainant lived with her family in Bundaberg, but they subsequently moved to Northern New South Wales.

The History

3. [3]
   The history is a troubled one, which highlights some of the difficulties which can be experienced with such matters concerning young children.

4. [4]
   The complainant was interviewed by police at the Gold Coast on 21 August 2002, a little more than eight months after the alleged incidents. I have had the benefit of viewing the recording of that interview and the transcript thereof. The tapes and transcript were admitted, pursuant to s. 93A of the Evidence Act, at the subsequent pre-recording on 23 January 2004.

5. [5]
   The interview with police was conducted by officer Vanessa Wiseman in an appropriate and sensitive way. There is no criticism of the manner in which the complainant’s version of events was elicited in the interview.

6. [6]
   During the interview, the complainant answered most questions promptly and without obvious substantial distress. When asked about the particular things the defendant had done on the night she was being minded at his house and which give rise to counts 2 and 3 offences however, she asked to write down her answer rather than say it aloud. The reason she gave for the request was that she was scared and felt embarrassed. The interview then proceeded on the basis of the complainant writing down her answer and having it read back to her for confirmation. She was then able to return to giving oral answers. Her answers contained details of her version of events, including details of the alleged conduct which has become the subject of the charges.

7. [7]
   The defendant was initially charged at a time before the Evidence (Protection of Children) Amendment Act 2003 came into effect.  Consequently, the complainant was required to give evidence at the committal in Bundaberg and be cross-examined.  Although I have not had the benefit of the detail of that evidence, I was informed by counsel that it was similar to the evidence which was ultimately given in the pre-recording.  Significantly, while the complainant was cross-examined and gave evidence freely about “peripheral” matters, she would not repeat the detail of what had allegedly been done to her.  I was informed that the alleged offending conduct had to be referred to in indirect terms such as the “things you told Vanessa about” in order for the cross-examination to proceed with respect to those matters.

8. [8]
   The matter first came to trial in Bundaberg in October, 2003. I was informed that, at that time, the complainant displayed distress and refused to enter the courtroom when called to give evidence. I was also informed that the child’s mother had been speaking in a loud and upset way on that occasion. As a result, the trial was adjourned to Brisbane to allow the then live video procedure to be used. In the meantime however, the new regime for pre-recording of evidence came into effect and it was decided, by agreement between the parties, to present a fresh indictment and to proceed to take evidence by pre-recording in Brisbane.

9. [9]
   The pre-recording occurred on 23 January 2004 before Judge Shanahan. Excluding the committal, this was the third time the complainant had been asked to recall the events in the more than two years which had passed since they allegedly occurred. Each of those three occasions involved different venues in different cities and different people asking questions of the complainant. The pre-recording was one of the first to be conducted. It had some undesirable features which caused Judge Shanahan to suggest a need for some guidelines on matters which are not germane to the issues which now fall for consideration.

10. [10]
    During the pre-recording, which I have viewed and read a transcript of, the complainant confirmed, in evidence in chief, that what she had told Vanessa in the s. 93A interview was the truth. She was then cross-examined for some time. The cross-examination is recorded in some 24 pages of transcript. The Court was adjourned briefly on one occasion to give the complainant a break after she asked “is it nearly over”. In cross-examination, the complainant gave direct answers to a range of questions on a range of topics concerning the circumstances surrounding the events the subject of the charges.

11. [11]
    In the course of cross-examination about the piggyback incident she denied the suggestion that nothing bad had happened to her. She denied the suggestion that all the defendant had done was give her a piggyback ride while running around the yard and then put her down. She said that while he had done that, he had also done some “bad things” which “felt gross”. She said that the bad thing was that which she had explained earlier, but she refused to repeat the detail of it in cross-examination.

12. [12]
    The cross examination with respect to the alleged incidents while she was being minded at the defendant’s home followed a similar pattern. Again she denied that nothing bad had happened but she refused to say directly what that was because she said that she was scared. She did say however, that they were the things which she had spoken to Vanessa about and also to her mother. It was at that point that the complainant asked ‘is it nearly over’ and was given a brief break. After the break she continued to answer questions about the circumstances surrounding the incident and about answers she had given at the committal hearing. She again refuted the suggestion that nothing bad had happened.

13. [13]
    It is those refusals to restate the details of the alleged offending conduct, other than by reference to what she had previously said, which forms the basis of the subject application. The issue was raised by Judge Shanahan at the pre-recording and was subject to later submissions to the Department of Public Prosecutions which has indicated a desire to proceed with the prosecution.

The Principles

14. [14]
    The application is, on its face, one for a permanent stay of proceedings. The authorities, to which I was referred, state that such an order will only be made in exceptional or extreme cases. It is a power which, it has been said, should be used sparingly and with the utmost caution.

15. [15]
    In Drozd (1993) A Crim R 112 Pincus and Davies JJA said at 114-115:

“It is clear that a stay will not be granted simply because some difficulty in according perfect justice to the accused is apprehended.

In Jago v District Court (NSW) (1989) 168 CLR 23; A Crim R 307, there was a long delay in bringing an accused to trial, but a stay sought on that ground was refused.  Mason CJ saw the power to stay in cases where a fair trial was said to be unavailable as being one to be used only in the most exceptional circumstances” (at 31; 312), and his Honour referred with approval (at 34; 314) to the statement of Wilson J in Barton (1980) 147 CLR 75 at 111.  We shall quote more of it than did Mason CJ; Wilson J said:

“… in my opinion the concept of abuse of process carries with it, the inference of a trial which if allowed to proceed must necessarily be unfair to the accused.  It is a fundamental defect which goes to the root of the trial, of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences.”

Brennan J pointed out that interests other than those of the parties are involved in such an application.  His Honour remarked at 49-50; 326);

“If it be said that judicial measures cannot always secure perfect justice to an accused, we should ask whether the ideal of perfect justice has not sounded in rhetoric rather than in law and whether the legal right of an accused, truly stated, is a right to a trial as fair as the courts can make it.

… interests other than those of the litigants are involved in litigation, especially criminal litigation.  The community has an immediate interest in the administration of criminal justice to guarantee peace and order in society.  The victims of crime who are not ordinarily parties to prosecutions on indictment and whose interests have generally gone unacknowledged until recent times, mist be able to see that justice is done if they are not to be driven to self-help to rectify their grievances.”

His Honour referred to these principles again in Glennon (1992) 173 CLR 592; 60 A Crim R 18.  In that case, after quoting from the reasons given by Crockett J for refusing a stay, his Honour went on (at 616,  35 );

“In my respectful opinion, his Honour’s conclusion was clearly right either on the ground that the present case is not an ‘extreme case’ or on the ground – which, in my respectful opinion, is a ground better founded on principle and more realistic in practice – that the trial of the applicant, provided it was as fair as the Court could make it, would produce no miscarriage of justice.”

Dawson J agreed with the reasons of Brennan J.

Mason CJ and Toohey J referred in Glennon to the remarks of Wilson J mentioned above as authority for the view that “a permanent stay will only be only be ordered in an extreme case” and there must be a fundamental defect “of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences” (at 605; 27).

16. [16]
    In R v W ex parte AG [2002] QCA 329; ACL Rep 130 Qld 218, MacKenzie J said at para 16:

“The power to grant a permanent stay is to be used only in the most exceptional circumstances.  The case must be an extreme one to warrant a stay.  There is a strong public interest in the prosecution of serious offences and the conviction of offenders, subject to the public interest in ensuring that judicial proceedings are not abused, that accused persons’ trials are fair to them, that innocent persons are not convicted, and public confidence in the administration of justice is maintained.  (Jago v District Court (New South Wales) (1989) 168 CLR 23; Walton v Gardiner (1993) 177 CLR 378, 395-6.)

17. [17]
    In recognition of the high hurdle faced by applicants for a stay, counsel for the defendant relied in argument more upon the Court’s discretion to exclude otherwise admissible evidence.

18. [18]
    In so far as the s. 93A interview is concerned s. 98 of the Evidence Act gives the Court a discretion to reject a statement notwithstanding that the requirements as to its admissibility are met if for any reason it appears inexpedient in the interests of justice that the statement should be admitted.  Counsel for the defendant however invited me to exercise the discretion to exclude the complainant’s evidence, both with respect to the s.93A interview and the pre-recording on the basis of that it would be unfair to the defendant to admit the evidence within the meaning of s.130 of the Evidence Act and the common law principles I will later return to some of the cases to which I was referred in relation to the discretionary exclusion of evidence.

19. [19]
    I was also referred to some cases which decided whether a conviction was unsafe and unsatisfactory, however the assistance which I can obtain from those cases is limited since, as was said in R v Morris ex parte AG [1996] 2 Qd R 68 at 75:

“ As to the second ground for exclusion, namely that a conviction based upon the complainant’s evidence would be unsafe and unsatisfactory, the High Court, in Doney v. The Queen (1990) 171 C.L.R. 207 at 214 and the Court of Criminal appeal, in R. v. Sutton [1986] 2 Qd.R. 72 at 78-79 have made it clear that the prospect of an unsafe and/or unsatisfactory conviction is not a matter of concern for a trial judge, although an appellate court may quash such a conviction.  It is not open to a trial judge to take a case away from a jury simply because a verdict of “guilty” would be unsafe and unsatisfactory.  It would therefore be curious if such a view of the case were a basis for the exclusion of evidence.”

 Application of Principle

20. [20]
    While the written submissions of counsel did not distinguish between the consideration of the application with respect to the various counts, I consider that it is appropriate to deal with the charges relating to the alleged incidents while the complainant was being minded (counts 2 and 3), separately from the charge relating to the alleged piggyback incident (count 1).

1. (i)
   Counts 2 and 3

21. [21]
    The complainant’s evidence in the s. 93A interview relating to counts 2 and 3 alleges that, on the night in question, she was being minded at the home of the defendant and his wife. The alleged incidents took place in the lounge room where the defendant, his de facto wife and children, as well as the complainant, had been watching TV. The complainant fell asleep on a mattress watching TV and woke up again. At some point the defendant, it is alleged, started annoying the complainant by “poking me and stuff”. The complainant went on to give evidence to the effect that the defendant put his hands up her skirt, pulled down her underwear, touched her vagina and then proceeded to lick her vagina before going to the toilet. At the time she was allegedly touched the complainant had a blanket on her and she said that no one else was there except for another child, who was sleeping on the lounge. After going to the toilet the defendant is alleged to have returned and indecently dealt with the complainant in a similar way before returning to the toilet again.

22. [22]
    The defence, I was informed, will be that none of the acts constituting the alleged indecent dealing occurred and such conduct was unlikely given the circumstances, including those who were present. Counsel for the defendant was able to put matters of relevance to that defence to the complainant. As I have noted, she denied that nothing bad happened, referred to what she had told Vanessa in the s 93A interview and answered questions about the circumstances surrounding the incidents, including the identity of those who were present. When asked about answers she had given at the committal to the effect that the defendant’s de facto wife was on the lounge, the complainant said that she was there for a little while when the bad things happened and then went to bed. She was not pressed for further detail about that.

23. [23]
    While counsel for the defendant was able to put his client’s case to the complainant and cross-examine her on the circumstances surrounding the incidents, he submits that the refusal to recount the details of the “bad things” in cross-examination deprived his client of the ability to test the consistency of the complainant’s current recollection, to explore inconsistencies (if any) and to effectively cross-examine on the details of what was alleged in the s. 93A interview. He submits that it also deprived him of the opportunity of effectively pursuing how much of the indecent dealing was alleged to have taken place while the defendant’s de facto wife was present. He submits that the evidence of the complainant, which is otherwise uncorroborated in respect of the detail, should be excluded on the ground of unfairness because of its unreliability.

24. [24]
    While s.93A requires the complainant to be called as a witness, it does not guarantee that the person will be able to be cross-examined effectively on the detail in the statement (R v Cowie ex parte Attorney-General [1994] 1 Qd R 326).

25. [25]
    I was referred to R v Clark (unreported; Court of Appeal 4 August 1995) in which the Court said:

“Evidence given in a trial may raise such serious doubts about the reliability of a statement otherwise admissible under s. 93A as to make its admission inexpedient in the interests of justice or unfair to the accused.  But we find it difficult to imagine a case where, there being no reason to doubt the reliability of such a statement, a court would exclude it under either of the above provisions.  Moreover the inability of the witness, in giving evidence at trial, to depose to some of the facts stated in the statement would not, without more, ordinarily make its admission inexpedient or unfair, for that would defeat the purpose of s. 93A.  The joint judgment of the President and Demack J. in R v Cumner should not be construed as authority for the proposition that, whenever a child who has given a statement pursuant to s. 93A does not repeat that statement in evidence at the trial, the statement should ordinarily be excluded. That would be inconsistent with the purpose of s.93A and with the decision of the Court of Criminal Appeal in R v Cowie: ex parte Attorney-General [1994] 1 Qd.R. 326.

26. [26]
    I was also referred to the joint reasons of Fitzgerald P. and Helman J. in R v Webster (unreported; Court of Appeal, 23 July 1996), a case on whether a verdict was unsafe and unsatisfactory where it was said: 

“a line of cases in the Court of Criminal Appeal and this Court establish that proof that statements admitted under s. 93A were made can support a conviction irrespective of the unreliability of the complainant’s testimony at trial, notwithstanding that a person against whom allegations are made by a child which is admitted under s. 93A is neither present when the allegations are made nor able to ask questions of the child at the time, and even, on one view, if effective cross-examination in the course of a criminal proceeding brought on the basis of such allegations is impossible:  see R v Cowie ex parte Attorney-General [1994] Qd R 326; in Re:  Aaron Shane Morris v Reference by Attorney-General under s 669A of Criminal Code (CA No 390 of 1994), judgment delivered 15 March 1995); R v Whybrow (CA No 46 of 1992), judgment delivered 20 July 1992; R v Cumner (CA No 108 of 1994, judgment delivered 28 July 1994); R v Robinson (CA No. 1 of 1995), judgment delivered 4 August 1995); R v Clark (1995) 78 A Crim R 226.  Of course, it does not follow that a jury is required to act on, or accord special weight to, statements admitted under s. 93A; the “weight” if any, accorded to such statements is to be estimated in accordance with s. 10.”

27. [27]
    I was also referred to the more recent decision of the Court of Appeal in R v D [2003] QCA 151 where Davies JA said at para 18:

“In my opinion it would be a rare case in which a court will exclude a statement otherwise admissible pursuant to s 93A, pursuant to either the discretion conferred by s 98 or that conferred by s 130.  it is most unlikely that it will ever be excluded on the basis that its prejudicial effect exceeds it(s) probative value because in almost all case the probative value of such a statement is very high.  And the mere fact that, as may have been the case here, the witness, though available to give evidence in the trial, is unable, for one reason or another, to be effectively cross-examined, will not, without more ordinarily be sufficient to attract the exercise of that discretion. 

(See also the footnote for a discussion of an apparently contrary a view expressed by Fitzgerald P in R v F.A.R. [1996] 2 Qd R 49.)

28. [28]
    Counsel for the defendant conceded that, if it were a case of the complainant being unable to give evidence by reason of failing memory, then the weight of authority would be against his application, at least in the context of the regime which applied prior to the (Evidence (Protection of Children) Amendment Act 2003.  He submits however, that it is relevant that the present case is one of unwillingness to answer rather than inability because of failed memory.  He also submits that the new pre-recording regime raises public policy considerations.

29. [29]
    I will deal firstly with the public policy considerations, which counsel put forward as a supporting submission rather than a consideration which, of itself, would warrant an exercise of the discretion.

30. [30]
    The submission was to the effect that it is now more important for a child witness to participate in the cross-examination process to the fullest extent they are able, given that the legislature has required the evidence to be pre-recorded in a more child friendly environment, to the possible tactical detriment of the accused. If notwithstanding those measures, a child witness is permitted to refuse to answer questions, the appearance of fairness of the trial process is brought into question. He endeavoured to bolster this submission by reference to other defence advantages which had been affected by legislative reform in the area of absence of fresh complaint and warnings as to conviction on uncorroborated evidence. He submitted that these made the ability to fully test the child’s evidence more important.

31. [31]
    I do not think that it would be appropriate to characterise legislative reform in this area as directed at disadvantaging defendants. The reforms are directed to rectifying past practices which were wrong or which worked injustices to victims. The stated purpose of s.21AA of the Evidence Act relates, inter alia, to requiring the child’s evidence to be taken in an environment that limits, to the greatest extent practicable, the distress and trauma which the child might otherwise experience in giving evidence. The explanatory notes record that it is of vital importance that children are treated with dignity, respect, care and humanity by the criminal justice system so they will continue to report abuse and participate as witnesses in the court process.

32. [32]
    The explanatory notes go on to refer to the report of the Queensland Law Reform Commission which examined whether the pre-recording process infringed the right of an accused to confront the witness. The conclusion was that use of the facilities was seen to be fair to both the accused and the witness in those jurisdictions where it had been implemented.

33. [33]
    While the new regime is designed to encourage, to a greater degree, full participation by child witnesses in the court process, I do not consider that, as a matter of public policy, there should be correspondingly higher duties or expectations on child witnesses.

34. [34]
    I note that, in this case, the complainant did not get the full benefit of the new regime notwithstanding that her evidence was pre-recorded. Had the proceedings been entirely under the new regime then she would likely not have been subjected to cross-examination at her committal and would not have been required to attend the first aborted trial in Bundaberg. While I am not critical (and would not wish to be understood to be critical) of any of the individuals involved in the process it seems to me to be undesirable that the child was asked to attend on four occasions to give evidence and that on the three occasions when she did participate (i.e. excluding the aborted trial) she was in different premises in different cities and in the hands of different people on each occasion.

35. [35]
    I also note defence counsel’s concession that, in this case, his client was not prejudiced by the adoption of the pre-recording process, which was done by agreement.

36. [36]
    I do not consider that the new regime for pre-recording of evidence raises any new public policy issues dictating that the evidence of a complainant be necessarily excluded if they do not participate to the fullest extent that their recollection would permit. That does not mean that a witness is free to be completely unco-operative without the possibility of intervention by the court, but whether the circumstances call for a stay of proceedings or the exclusion of evidence should, in my view, be determined having regard to the circumstances of the particular case.

37. [37]
    Turning to the issue of unreliability, I accept the submission that a refusal to answer (even if it is due to fear and embarrassment) raises somewhat different considerations to inability to answer by reason of failing memory. The effect of a refusal to answer can however, be the subject of warnings to the jury . This is the usual way of dealing with issues of unreliability: (Sparkes (1996) 88 A Crim.R. 194 at 205).  I was referred, in this context, to R v. McLennan (unreported, Court of Appeal 20 June 1997) which concerned a refusal by the complainant to answer questions apparently by reason of upset and embarrassment.  The direction given to the jury in that case was summarised in the reasons of Davies JA as follows:

“His Honour directed the jury that ‘it is a significant matter that she was not able to be cross-examined, that her account of what occurred, sparse as that may be, was not tested at all.  She was not able to be because she would not answer the questions by Mr. Fellows about the account of what happened’.

…

On later occasions his Honour referred to the fact that ‘defence counsel was not able to challenge it or test it, or generally question her about her version’, that ‘her evidence … was not able to be tested in cross-examination’;  that the possibility that she consented to start with an then may have changed her mind ‘would certainly be an area that would be worth testing, in cross-examination, just to find out what in fact was the position so far as she is concerned but she would not allow herself to be tested;  and that they must be satisfied ‘beyond reasonable doubt that her evidence untested by cross-examination is nevertheless a satisfactory vehicle for conviction’.  He also said that defence counsel ‘could not suggest things to her because she would not answer’.  Finally he reminded them that ‘it is a very important part of our criminal justice system that the evidence of witnesses be able to be tested and that a thorough opportunity, a full and complete opportunity, be given to any accused person through his counsel to test to the absolute degree the evidence of an accuser and that is a very significant matter in our system’.  But in the end, he told them, it was for them to decide why the complainant would not say more; whether it was because she did not want to be tested, as the appellant’s counsel had suggested, or whether it was because she was frightened of reliving the experience or, indeed whether it was some other reason.”

38. [38]
    The prosecutor accepted that, if the trial were to proceed, then a direction along those lines would be appropriate. It would also be open to make comment on the fact that the evidence affected by those directions was not corroborated: (s. 632(3) of the Criminal Code).

39. [39]
    While, in urging me to exercise my discretion, counsel for the defendant submitted that a jury is less likely to appreciate the significance of a compromised cross-examination, even with appropriate warnings, then the value of a cross-examination which proceeded to a conclusion, he ultimately conceded that:

“The position I contend for is, I concede, the more legally adventurous and in addition no–one could criticise an exercise of the discretion that came down in favour of admission of the evidence combined with warnings …”

40. [40]
    While the matters put by defence counsel are of some force and I have given them much thought, I am satisfied, in the circumstances and in view of the ability to give appropriate warnings, that it would not be unfair to admit the evidence and that his client can be afforded a fair trial. I have decided not to exercise my discretion to stay the proceedings or to exclude the evidence of the complainant with respect to counts 2 and 3.

2. (ii)
   Count 1

41. [41]
    The case for the exercise of discretion with respect to Count 1 was, as defence counsel conceded, weaker.

42. [42]
    The evidence given by the complainant in the s.93A interview was that while she was being given a piggyback ride, the defendant put his hand up her pants and stuck his finger up her vagina for a couple of minutes. She knew he did so because she could feel it.

43. [43]
    The defence is, I was informed, that the indecent dealing did not happen and it was extremely unlikely to have happened given the context in which it was alleged to have occurred including the other people who were present, the clothes the complainant was wearing and what was otherwise occurring during the piggyback ride.

44. [44]
    As already noted, the complainant in cross-examination denied that nothing bad had happened and gave evidence about the circumstances surrounding the alleged incident.

45. [45]
    In this case the more detailed evidence which might have been given by the complainant would have been restricted to what she felt. The evidence would have been in relatively short compass. Further, the same considerations about the defendant’s de facto wife’s presence for part of the conduct the subject of the other counts, do not arise with respect to this count.

46. [46]
    The case for exercise of the discretion is weaker with respect to this count. I am satisfied that it would not be unfair to admit the evidence and that the accused can be afforded a fair trial. I propose to dismiss the application with respect to this count also.

47. [47]
    The application is dismissed.