The Queen v BSJH[2006] QDC 282

[2006] QDC 282

DISTRICT COURT

CRIMINAL JURISDICTION

JUDGE ROBIN QC

Indictment No 3658 of 2005

THE QUEEN

v.

BSJH

BRISBANE

DATE 31/07/2006

ORDER

CATCHWORDS: Evidence Act 1997 s 21AN - order for further pre-recording of child complainant's evidence regarding continuing post-complaint contacts with alleged offender both before and since the pre-recording of her evidence - contacts may suggest inconsistency in the complainant's behaviour and expressed and actual attitude to the defendant.

HIS HONOUR:  There is an application before the Court by the accused under section 21AN of the Evidence Act 1997 seeking further prerecording of evidence of a 13 year old complainant.  That prerecording took place on 16 March 2006 when Mr McInnes, counsel for the defendant today, was also representing him.  He has frankly acknowledged that a change has occurred in the way he appreciated the significance of things.  The complainant's section 93A statement was recorded on 13 December 2004 which was extremely close in time to the alleged offence which took place on 13 December 2004.  The general policy of the legislation is clear: the s 93A and pre-recording tapes should constitute the evidence of an affected child witness, and not be supplemented by further questioning of her.

The subject for further cross-examination is contacts that, on Mr McInnes's instructions, occurred between his client and the complainant in the period leading up to the pre-recording.  It is contended today that there have been further such contacts and perhaps more significant ones since the date of the pre-recording.  Those are said to include occasions when the complainant was voluntarily alone with the defendant.

They may be inconsistent with or (more correctly) they may reveal inconsistency in the complainant's behaviour when tested against the sentiment in the statement,

"Pop's touched me.  I don't want to see him anymore."

which the complainant's mother attributed to her on 13 December 2004.  Mr McInnes has a proper forensic concern not to be faced at trial with any assertion based on Browne v. Dunn (1893) 6 R 67 and his failure to canvass matters with the complainant.

At the pre-recording Mr McInnes was content to rely on the mother's statement of recent complaint.  He asked the complainant no questions about what she had said, nor did the Prosecutor.  The mother's statement is the only evidence of what she said.  It is unknown whether the complainant's evidence would be the same or whether, assuming she did make that statement, she harboured reservations of any kind about it from the point of view of what her actual intentions might have been.

Even if the mother's version of the statement is accurate and it accurately represented the complainant's then intentions, those intentions may well have changed for all manner of reasons.  She may have revised her approach to the defendant, even on the assumption that her complaint was true. 

Section 21AN (2) authorises the application which is being made that the child give further evidence.  Subsection (3) imposes restrictions in terms of the ability of the complainant to be recalled and its being in the interest of justice to make the order sought.  Subsection (4) contains a statutory preference for any further evidence of a child to be taken at a further preliminary hearing rather than at the trial, presumably from a remote location. 

The trial is set for tomorrow.  As it happens it is convenient to have a further preliminary hearing for pre-recording of further evidence.  The mother will be a witness at the trial.  The family situation means that she will be coming to Brisbane for the purpose of giving her evidence accompanied by her children, including the complainant and a younger sister who has given a section 93A statement and pre-recorded evidence on a basis of being a person present at the time of the alleged offence.  The Court is given the impression by counsel that that younger child has not been able to contribute anything useful. 

In my opinion, the interests of justice here do point to the order's being made.  There is obviously potential for situations like the present arising where the evidence of the crucial witness is taken in advance of the trial, particularly where there is a change in legal representation.

Different views might be taken about the significance of the topics to be pursued.  There is also the circumstance here that on Mr McInnes's instructions, as related to the Court, there have been further contacts between the protagonists, which he suggests are more significant, since the pre-recording.

I think it is only necessary to state that situation to reach a state of persuasion of what the interests of the justice require.  It crossed my mind that it might be appropriate to require evidence from the defendant or someone else on a voir dire about these supposed contacts.  The Prosecutor's outline of argument complains that notwithstanding promises of particulars of them none have been forthcoming.  That situation has been remedied today. 

Mr McInnes's reply outline gives a certain amount of particularity.  There would remain a question of whether or not evidence should be required as opposed to assertions on instructions from the Bar table.  It has not seemed necessary given the degree of particularity to look into some possibly difficult questions about forcing a defendant to give evidence on a voir dire; there could be prejudicial consequences of various kinds which were canvassed in the argument today. 

Mr McInnes recalled an instance of a successful application by him similar to today's, he not having been counsel at the pre-recording in the matter of Sean Patrick - is it McCaskie?

MR McINNES:  McCasker, your Honour. 

HIS HONOUR:  McCasker, on the 18th of October 2005.  There his Honour made an order under section 21AN on the basis that at the original pre-recording it had not been put to the complainant that the events described did not take place; that is a technical omission but potentially one of importance.  Ms Woolridge acknowledged that there were various occasions when pre-recordings boded to be disrupted because of the late emergence of possibilities of new information emerging, for example, from searching Family Court files which might indicate appropriate subjects for cross-examination. 

The high importance placed on not discomforting child witnesses by "pulling the plug" on pre-recordings at the last minute has led to a practice of concessions by the prosecution that if something does turn up there can be further pre-recording.  I had an instance of that situation occurring in Townsville very recently where what might have turned up was a statement by the complainant to police in an investigation involving another complainant and another suspect to the effect she had never been the victim of "bad touching". 

As it turned out, special efforts were embarked upon which apprised counsel on both sides of the contents of the (till then) missing statement, so that the pre-recording could proceed in the ordinary way.  The Court of Appeal has had occasion to consider the refusal of a Judge in this Court to make an order in HZ [2005] QCA 468 which seems to me a very different situation from the present.  The Court of Appeal assessed the circumstances as ones in which the alleged error of the primary Judge tended to favour the accused.

There has been a good deal of discussion about whether the complainant, assuming there is to be further questioning of her, should be asked for her version of the words she used to her mother and perhaps other questions about her attitude.  Mr McInnes is not keen to do that and for obvious reasons the answers might not support the case of inconsistency in the complainant's conduct to the same extent as if the words which will emerge in the mother's evidence represented exactly what was said. 

The other authority referred to today of MAP [2006] QCA 220, particular reference being made to paragraph [55], relates to this issue of exploring the statement that was made by way of fresh complaint.  I would be reluctant to direct defence counsel to ask questions on particular issues as the price of an order under section 21AN, the point of which would be to explore rather different issues.

I think that, given that the basis of the further preliminary recording is to explore apparent inconsistency in the complainant's behaviour, the starting point really ought to be some kind of acknowledgment by her that her mother has got the statement right, or roughly right. I think the prosecution ought to be allowed, and with a certain amount of leeway if necessary, to explore that question and, with that indication, I have left it to the parties to attempt to reach some common ground as to how to proceed on the further preliminary hearing for pre-recording of evidence which will happen early tomorrow morning.  I agree with Mr McInnes that, if the prosecution are to canvas the issue, that should occur before he cross-examines.

It is the common view that it is preferable to proceed by way of pre-recoding tomorrow rather than, as would also be a possibility under section 21AN, proceeding with the complainant giving further evidence live from a remote location.  The pre-recording process offers safeguards against something coming out before the jury which ought not to.

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