DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   ABV is charged with three counts of indecently dealing with his daughter, C. The principal evidence against him is a long recorded interview between his daughter C and a police officer^[1].  In a pre-trial application the defence asked me to exclude the recorded interview on discretionary grounds.

2. [2]
   The police questioned the child for about 70 minutes^[2].  For the first 30 to 40 minutes, the child maintained any vaginal touching by her father was both momentary and accidental.  After being told of her statements to her mother, however, she affirmed her father had touched her on the vagina.

The issue

3. [3]
   The issue before me is whether the prolonged questioning of the child, which involved the use of repetition, admonitions to think very carefully, and leading questions, should result in the exclusion of the interview as a whole in exercise of the statutory discretion to reject the statement if it appears to the court to be inexpedient in the interests of justice to admit it at the trial^[3].

Background

4. [4]
   The relevant background may be briefly stated. At the time ABV, his wife and their children C and D lived together. C was about six and a half years. The comment by C, which triggered the mother’s contact with the police, occurred during a casual mother/daughter conversation in the bathroom.

5. [5]
   C was lying in the bath. She said she liked the feel of the tap water falling on to her genital area. The mother/daughter conversation flowed on to a reminder by the mother about the privacy of her genital area. At that point in the conversation C said her father had touched her genital area when they cuddled in bed^[4].  That conversation occurred on a Monday evening^[5].  Later that same night, when confronted by his wife, ABV denied touching his daughter inappropriately.

6. [6]
   On the following Friday^[6] C was taken to police headquarters at Roma Street by her mother.  Until that time, C’s mother had not spoken to her about her comment.  Before entering the police station, the two had another conversation.  The mother told C that if the police asked her whether anyone had touched her genitals, she should tell them the truth.  The mother said at that point C looked like she didn’t want to talk any more.  She thinks it was at that point C volunteered that:

“Daddy was only rubbing me on the tummy and accidentally touched me there.”

7. [7]
   At the police station the police officer and an employee from the Department of Child Safety spoke to C in the mother’s presence before formally conducting a recorded interview in the absence of the mother for the purposes of the Evidence Act (s 93A).  As a result of the child’s statements during the formal recorded interview, ABV was, later that same day, charged with indecently dealing with his daughter C.

Discussion of the s 93A out of court statement

8. [8]
   The ability of prosecuting authorities to obtain an out of court statement from a child complainant at an early time in the proceedings, and to use that statement as proof in the trial, is one of the early measures introduced to alleviate some of the problems posed by taking evidence from children in proof of sexual offences. The procedure is widely used in Queensland. The main advantages for the prosecution are the preservation of evidence^[7] and the opportunity to obtain a cogent account of the offence alleged from the child.

9. [9]
   One danger in the use of out of court statements recognised in the literature^[8] is that young children can be led to make statements about and believe in events which have not happened.  In a number of highly publicised decisions, US courts have overturned convictions on the basis a complainant child’s testimony was tainted by the interviewing techniques used^[9].  In New Jersey the courts have developed a procedure which allows the defence in an appropriate case to obtain an order for a taint hearing^[10].  At the taint hearing the prosecution carries the onus of establishing the reliability of the child’s testimony.  In other States the same inquiry is conducted as a competency hearing^[11].

10. [10]
    In the Queensland legislation the court has a discretionary power to reject the out of court statement if, for any reason, “it appears to the court to be inexpedient in the interests of justice” to admit the statement. Unlike the US taint procedure where the onus of persuasion rests on the prosecution, the onus under the Queensland section is on the defence.

11. [11]
    Mr Fraser, who appeared for the defence, treated the issue as one involving the right to a fair trial. Mr Vasta submitted the issue turned upon the reliability of the out of court statement.

12. [12]
    An out of court statement which complies with the section may be excluded either because it is “inexpedient in the interests of justice” to admit the statement (s 98) or because of unfairness to the accused (s 130). The questions in this case, in my opinion, are whether the interrogation of the child compromised the reliability of the interview as a whole, and whether, in the circumstances, the admission of the interview is inexpedient in the interests of justice. The second question may also be analysed in terms of procedural fairness^[12].  The difficulty with a procedural fairness analysis, however, is the difficulty in identifying a procedural right.

The interview

13. [13]
    The police officers who interview child complainants undergo training in appropriate interview techniques. The literature suggests an interviewer should ask open ended questions and encourage the child to provide a free narrative. Pressure and coercion, leading questions and suggestive reinforcement of responses should be avoided. During argument counsel were not able to point me to any protocol or guidelines in force or use in Queensland^[13].  Nor was any expert evidence placed before me on the appropriateness of the questioning challenged in this hearing.

14. [14]
    Relevant features of the interrogation are:

1. (a)
   C was six and a half years of age at the time of the interview.  The principal interviewer was a relatively senior male police officer.  Young children are sensitive to the status and power of interviewers^[14].  This carries with it a risk the child may defer to the challenges of a high status interviewer.

2. (b)
   C was asked repeatedly to relate what she told her mother while bathing on the Monday.  These questions were sometimes accompanied by admonitions to think very carefully^[15].  She was asked repeatedly about the occasion she said her father’s hand accidentally made contact with her genital area while tickling her tummy.  The literature suggests that repeated questions should not be used since this tells the child the previous answers were not acceptable.

3. (c)
   One interpretation of the child’s comment to her mother immediately before the formal police interview is that the claim of accident was advanced to protect her father.  I formed the impression the purpose of the repetition, and the admonitions to think more carefully was to secure an acknowledgement of sexual abuse.  In other words, the impression which came through the questioning was that the interviewer believed C had been sexually abused and the purpose of the questioning was to secure an acknowledgement of sexual abuse.  The literature suggests that children are quick to pick up on the emotional tone of an interview and may answer in ways that are responsive to the emotional tone of the interview^[16].

4. (d)
   The use of a leading question to secure the acknowledgment of sexual abuse.  The leading question was asked at a point when the other techniques utilised had not been successful.  Set out below are the relevant questions and answers:

“Okay. Right. All right. C, mummy’s told us, okay, that when you were having a bath and you were talking to her-----?—Mmm.

Remember, when you were talking to her?-- Yes.

All right.  Mummy told me that when you were – when mummy was talking about the water running over your private parts-----?-- Mmm.

-----and it feeling good, that you said to mummy that, ‘Daddy’s been touching me there when I cuddle him in bed in the morning.’”?-- Oh, yeah, I forget that bit.  He was touching there in the morning.  I forget that bit.  But now I remember that he was doing that.

Okay.  Can you tell me about that?-- Well, in the morning I was cuddling with him and he keeps on touching the private bit.

All right?-- But then he stopped.”

Analysis and conclusion

15. [15]
    Reliability in this context is not confined to reliability in fact, but may include the use of interrogation techniques which are associated with unreliable statements. In my opinion, it is inexpedient in the interests of justice to admit an out of court statement produced by a questionable process of interrogation.

16. [16]
    In the present case, although the interviewers may have been motivated by a desire to protect the child from possible sexual abuse, the methods employed were coercive when applied to a six and a half year old child. For an extended period of time (30 to 40 minutes) the child was repeatedly questioned about her conversation with her mother, and the details of an occasion when she said her father accidentally touched her vagina. The repeated questioning was accompanied by admonitions to think very carefully because it was “really important”. The question which secured the acknowledgement of sexual abuse was a leading question. The child’s explanation that she “forgot” about the allegation does not seem credible to me in light of her volunteered comment to her mother before the interview that the only touching which occurred was accidental.

17. [17]
    Mr Vasta tendered an interview between the police and ABV in order to prove ABV told C that any touching was accidental. On this basis, Mr Vasta submitted the child’s claim of an accidental touching was intended to protect the father.  I assume the real argument is that the methods of interrogation were justified to reach the truth.  The argument, however, is circular, as it is dependent on an assumption of guilt; and inadequate, as it ignores the risk of suggestion in the means employed by the interviewer.

18. [18]
    In all the circumstances I exercise the discretion conferred on the court by s 98 Evidence Act to exclude from the trial evidence the recorded statement of the complainant child taken on 11 February 2005.