The Queen v BLK[2010] QDC 482

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The applicant is the defendant to Indictment No 1501/10 presented in the District Court on 20 July 2010. The only concern in these applications brought pursuant to s 590AA(2)(a) of The Criminal Code is with Counts 1 and 2.  Those counts charge that, between the first day of January 2009 and the thirtieth day of July 2009 at Brisbane or elsewhere in the State of Queensland, the defendant unlawfully assaulted her son, Owen, and did him bodily harm.

2. [2]
   The applications are expressed in the alternative. First, an application is made to quash Indictment No 1501 of 2010 on the bases that: Counts 1 and 2 do not disclose an offence; and the defendant was not properly committed with respect to those counts. Secondly, an application is made for a permanent stay of proceedings in respect of Indictment No 1501 of 2010 on the basis that the particulars provided by the Crown for Counts 1 and 2 are inadequate and are not capable of being cured.

3. [3]
   The genesis for the present application lies in the remarks made by Reid DCJ in an earlier application in this same case, in which the decision was delivered on 15 November 2010. In the Reasons there given, reference was made to Counts 1 and 2 and to the fact that, at that stage, there was no application to quash the indictment with respect to Counts 1 and 2, but that, in the Court’s view, the Crown needed to give significant consideration to the question of amending the indictment with respect to those counts and, or alternatively, obtaining from the child, Letitia (who has given a s 93A Statement), further evidence to enable the Crown to properly particularize the offences of assault: at [34].

4. [4]
   After giving both the defendant and the Crown an opportunity to file written submissions – which they did – the hearing of these applications proceeded before me on 8 December 2010.

Background facts

5. [5]
   In the written Outline of Submissions on behalf of the Crown, filed 6 December 2010, it is stated that the particulars provided by the Crown for Counts 1 and 2 are:

“On a date unknown between 1 January and 30 July 2009 the defendant pulled the complainant Owen…by the hair causing hair to be removed from the right crown region of the scalp and right occipital region of the scalp.”

6. [6]
   It is common ground that the relevant evidence given by Owen’s sister, Letitia, as to when such pulling occurred is that the defendant did pull Owen’s hair, that it did happen “constantly”, and that “sometimes it happened at least like 4 times a day”.

7. [7]
   With respect to further evidence that Detective Senior Constable Ford observed on the floor of the dwelling house at 48 Miller Street, Chermside (being hair “of some length”), it was conceded by the Crown that the evidence of such observations could be properly excluded “as it cannot be linked to” Owen. To my mind, that is a significant concession, because it leaves the primary evidence of the actual events and their consequences to that given by Letitia (insofar as Counts 1 and 2 are concerned).

8. [8]
   What is also important is that the qualified medical practitioner (registered to practice in the State of Queensland), Dr Phillips, who is relied upon by the Crown to give expert evidence about the removal of Owen’s hair, in a statement signed on 27 November 2009, deposed that:

• on examination, Owen had two roughly circular patches of hair loss, one in the region of the right crown approximately 2 centimetres in diameter and the other in the right occipital region 1 to 1.5 centimetres in diameter, with this hair loss being incomplete in the patches of scalp affected, with shorter hairs (less than 1 centimetre) of varying lengths being present in these areas, giving an appearance of broken hairs;
• on examination, there was no obvious crusting or irregularity of the scalp skin, and it was not abnormally smooth, the hair follicles appearing to be present in normal numbers in the affected areas of the scalp;
• as for potential causes, her opinion was that, while “not diagnostic”, the appearance of those patches “would be consistent with hair loss resulting from either excessive or repetitive traction applied to the hair i.e. pulling, either by the child, another person or an implement”; and
• as to the effect of any hair loss resulting from excessive traction, her opinion was that it “would have been expected to cause moderate pain and discomfort at the time of the injury”.

9. [9]
   It can be seen from that medical opinion that there were two alternative causes open as to how the hair was removed from the scalp. On the opinion given, each alternative cause was not expressed to be more likely than the other.

10. [10]
    The medical opinion, thus, leads to the Crown case relying on the cause of the removal of hair from Owen’s scalp in each of the specifically identified regions as resulting from either “excessive traction” or “repetitive traction”. At the end of oral submissions made in this application, it was clear that it was common ground between the Crown and the defendant that the facts to be relied on for each of Counts 1 and 2 would need to be in the nature of this alternative, with the Crown indicating that it was content to expand the particulars to make them referable to “a date or dates unknown”.

Quashing of indictment

11. [11]
    The quashing of an indictment is the subject of s 596 of the The Criminal Code.  As is clear both from the terms of the provision itself and from relevant authority (see R v Pugh [1971] Qd R 249), the application must be made before a defendant pleads to the indictment.  The grounds specified are that the indictment is calculated to prejudice or embarrass the person in the person’s defence to the charge, or that it is formally defective. 

12. [12]
    Where, as here, reliance is not placed upon any formal defect, or even that the indictment is defective on its face, it is open, but only in certain very limited circumstances, to consider the evidence in the depositions.

13. [13]
    The authorities relied upon by the defendant in this application show that reliance can be placed on such depositions only when no such offence is disclosed by the depositions and there has been no committal for trial of that offence:  see R v Jones & Ors (1974) 59 Cr App R 120 at 126 per James LJ; and its adoption in Queensland by R v Crawford [1989] 2 Qd R 443 at 445-446, per Matthews J.  In Crawford, as Matthews J acknowledged, what was also considered there was the issue of a joinder under s 568 of The Criminal Code.  Thus, any reference to R v Assim [1966] 2 QB 249 was for the purposes of a consideration of joinder, it being noted by Matthews J that other authority to which he referred “makes it plain that on a motion to quash one looks only, apart from the exceptional cases mentioned, at the face of the indictment”: at 446-447.  As further explained by Thomas J, an objection under s 568 is not a motion to quash: at 449-450. 

14. [14]
    In an attempt to overcome that particular identified difficulty, counsel for the defendant submitted that an accused is not precluded from bringing an application to quash in circumstances where the evidence available to the court at the time is the same as the evidence on the committal proceeding (and is the same evidence which will be led at trial) and where that evidence is clearly not sufficient to disclose an offence: at paragraph 32 of the defendant’s Outline. No authority is identified for that proposition other than reliance upon an “exceptional case”. The only exception case identified is that already referred to – and it does not apply in this case. And, for reasons to be considered in the stay application, it is clear that an offence is disclosed. Thus, even if there were to be a further refinement to the principle, it could not be applicable here.

15. [15]
    Consequently, I conclude that it is not open to this court to quash the indictment where, as here, it is valid on its face and no recognised exception applies. This particular application was asserted to be supported by submissions made by counsel for the defendant which necessarily relied upon, amongst other things, the inadequacy of the “particulars” given. The fact that “particulars” were relied upon demonstrates the difficulty of satisfying any relevant ground of an “exceptional case” for obtaining a quashing of the indictment, particularly where the child, Letitia, has not yet been cross-examined and the possibility still exists – even if an application to do so were to be opposed – for the giving of further evidence pursuant to s 21AN, or even a further statement (before cross-examination) under s 93A, of the Evidence Act 1977. 

16. [16]
    That conclusion applies not only to the ground that there was not “a proper committal” but also to the ground that, owing to the statutory provisions with respect to children giving evidence in criminal trials, it is unnecessarily, and even absurdly, restrictive to preclude the court examining the depositions. The latter does not, in principle or in logic, extend the ambit of cases capable of embracing quashing of the indictment, especially where there is no statutory basis for the defendant being required to be arraigned and to enter a plea before the taking and video-taping proceeds for such a child: see R v WAH [2009] QCA 263 at [24]. 

Stay

17. [17]
    The seminal case is obviously Jago v District Court (NSW) (1989) 168 CLR 23.  Subsequent to that, the High Court handed down its decision in Williams v Spautz (1992) 174 CLR 509.  That led the High Court to consider both of those decisions in Walton v Gardiner (1992-1993) 177 CLR 378.  In Walton, in express reliance upon Jago, Mason CJ, Deane and Dawson JJ, in majority, held that the question whether a criminal proceeding should be permanently stayed on “abuse of process” grounds fell to be determined by a weighing process involving a subjective balancing of a variety of factors and considerations, among which are: the requirements of fairness to the accused; the legitimate public interest in the disposition of charges of serious offences and in the conviction of those guilty of a crime; and the need to maintain public confidence in the administration of the justice: at 395-396.

18. [18]
    As properly conceded by counsel for the defendant, the circumstances in which a court will exercise jurisdiction to permanently stay proceedings will be exceptional and rare, being a power that is used sparingly and with great caution: at paragraph 38 of the defendant’s Outline.

19. [19]
    In a consideration by the Queensland Court of Appeal of this issue in R v Johannsen and Chambers (1996) 87 A Crim R 126, Fitzgerald P, as part of the majority, noted that, among the generally accepted bases for staying criminal proceedings as an abuse of process, are: that the prosecution can be clearly seen to be foredoomed to fail; and that there is no possibility of a fair hearing (whatever steps are taken by the trial judge to avoid unfairness): at 132.  Further, after noting that there is a strong predisposition towards permitting prosecutions to proceed, with procedural and other rulings and directions moulded to achieve a fair trial so producing a result free of the taint of risk of a miscarriage of justice, he held that a stay should not be granted if the prosecution can proceed, uninfluenced by improper purpose, without unfairness to the accused, with a legitimate prospect of success and, in the event of conviction, no significant risk that, because of delay or other fault on the part of the prosecution, an innocent person will have been convicted: at 135. 

20. [20]
    The function of particularisation of an offence was considered recently by the High Court in Kirk v Industrial Court of New South Wales & Anor (2010) 239 CLR 531.  In the majority decision of French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ, it was acknowledged that, while an application for particulars might yield a more extensive obtaining of relevant facts, in more recent times, the rationale of the requirement that the defendant is entitled to be told not only of the legal nature of the offence with which he or she is charged, but also with a particular act, matter or thing alleged as the foundation of the charge, has been seen as lying in the necessity of informing the court of the identity of the offence with which it is required to deal and in providing the accused with the substance of the charge which he or she is called upon to meet: at 557 [26].  After reference to Johnson v Miller (1937) 59 CLR 467, particularly to the decision of Dixon J (as he then was), it was held that the statement of the offences in the case in question as particularized did not identify the act or omission which constituted the relevant contravention: at 558 [28].  This led the majority to conclude that the relevant defendants “could not have known” what measures were required to run their defence: also at 558 [28].

21. [21]
    As for the issue of “latent ambiguity”, in R v Morrow and Flynn [1991] 2 Qd R 309, Connolly J, speaking for the court, after noting that the nature of the Crown case was never made clear (whether by particulars or otherwise, in the sense of identifying what precise offence was charged, or, if it was sought to have the indictment understood not in its natural sense but as charging several acts by each of the accused, what those acts were), held that it followed that what really happened was that the jury was faced with evidence of some seven offences where only one was charged and they were left to decide for themselves of which offence, if any, they were prepared to convict: at 313.  The case was therefore one in which there was latent ambiguity in the indictment. 

22. [22]
    So identified, I conclude that there is no relevant latent ambiguity here. It may well have been different if the Crown had charged the relevant two counts in the indictment in terms of, for instance, common assault, relying upon the mere pulling of the hair. But where, as here, the separate acts of pulling of hair could well be accepted by a properly instructed jury to constitute those necessary elements in the chain of causation which led to the hair being actually removed from the identified region, or regions, of the scalp, it is not latent ambiguity which is revealed.

23. [23]
    Some assistance in the resolution of this question can be obtained from a consideration of those cases that deal with the facts of singular offences which have occured over time.

24. [24]
    The New Zealand Court of Appeal in R v Ryder [1995] 2 NZLR 271 held, in a case where the accused, a strongly built man, engaged in a continual beating, extending over two days, of a slightly built boy aged 10, that the prosecution was not bound to assign a particular kick or blow as causative of death, since it was enough to point to a range of possibilities and for the jury to be entitled to elect between them: at 272, per Cooke P (on behalf of the court).

25. [25]
    The Queensland Court of Appeal in R v Leivers and Ballinger [1999] 1 Qd R 649 had occasion to consider Ryder.  Fitzgerald P and Moynihan J, after noting that, as common sense dictates, the law does not require individual jurors to agree about everything and that there was obviously no requirement in the case in question for each juror to agree with every other juror on the actual sequence and specific details of the events of which evidence was given, stated that Ryder was an “obvious example” of the proposition that unanimity on every matter is not essential: at 656.  Pincus JA concurred, although on different grounds.  While clearly approving of Ryder (noting that it was a case in which there was “uncertainty as to which of a series of assaults caused death”), he was of the view that the earlier decision of R v Chignell [1991] 2 NZLR 257 may not have been right when deciding that unanimity of time and place was required in circumstances where it could be open to some jurors to accept that the victim had been murdered in one place and others to accept that he had been murdered in another place (where the evidence against each accused relating to each place was different), wondering whether there could be a guilty, or indeed any, verdict if Chignell was right: at 667.  See, also, R v PL (2009) 261 ALR 365 at [48] per Spigelman CJ. 

26. [26]
    The assistance to be gained from those cases is that there would appear to be no logical distinction - rather than difference - between a series of acts which happened over two days and a series of acts which happened, as here, over a far longer period. The difference is clearly in the time frames: but that does not, in my view, distinguish the approaches.

27. [27]
    I am reassured in the conclusion that the ability to have a fair hearing is the appropriate conclusion in this case by reason of the concession by counsel for the Crown that any perceived unfairness could be removed by a direction from the judge at trial to the jury to the effect that the jury would need to be satisfied beyond reasonable doubt of each incident of hair pulling identified by Letitia if they were to conclude that a circumstantial case had been established. This is consistent with the approach in Shepherd v The Queen (1990) 170 CLR 573 in which it was held that, where the relevant facts were “indispensable intermediate” steps in the process of reasoning to the inference of guilt, such facts, relied upon as a circumstance pointing to guilt, had to be proved beyond reasonable doubt.  See the recent consideration by the Queensland Court of Appeal of the issue in R v Crothers & Ors [2010] QCA 334: at [94] – [96]. 

28. [28]
    It is acknowledged that concluding that a stay should not be granted at this stage does mean that the defendant is left in the position of potentially cross-examining on all the facts concerning the pulling of Owen’s hair because individual members of the eventual jury, if empanelled, might accept as the relevant facts proved beyond reasonable doubt all indispensable intermediate steps in the evidence already canvassed of Letitia over the period of time (identified as some seven months).  Given the actual evidence of Letitia, it is not a significant concern that the counts on the indictment refer to events happening at Brisbane “or elsewhere”; but the fact of a difficult outcome is an inevitable outcome where it is considered that the case is an appropriate one for a jury to consider the alternative routes by which the verdict might be reached which could satisfy the two counts on indictment: at least at this stage (i.e. before even pleading to the indictment). 

29. [29]
    Since this is a case in which it cannot be held that the prosecution is clearly seen to be foredoomed to fail, the only possible basis from those identified in Johannsen is that there is no possibility of a fair hearing whatever steps are taken by the trial judge to avoid unfairness.  For the reasons that I have outlined, including the concession as to the proper direction concerning a circumstantial case made by the Crown, and paying due attention to all aspects of this basis, I do not conclude that there is no possibility of a fair hearing. 

30. [30]
    In which case, there are no grounds presently identified which would support the case for a permanent stay. Because I have concluded that the issues next dealt with (which were asserted to be part of a proper consideration of a stay) are of minor or no concern in that determination, I have dealt with them as separate issues.

Relationship evidence

31. [31]
    Among the complaints made by the defendant in the written Outline is that the Crown has refused to provide particulars of the uncharged acts on which the Crown relies. While it was part of the case presented by the defendant with respect to the stay, the Crown, in response, addressed it more directly by submitting that the uncharged acts, based on the evidence of Letitia, are admissible since they are sought to be adduced as evidence of the domestic relationship between the defendant and the complainant Owen. This is pursuant to s 132B of the Evidence Act 1977. 

32. [32]
    As pointed out by the Crown during oral submissions, in the Reasons given by Reid DCJ on 15 November 2010, he held that evidence of “other acts of violence” said to have been committed by the defendant on the complainants is admissible evidence of the history of a domestic relationship since it showed the real and full relationship existing between the defendant and her children, noting that there still remained a discretion to exclude it if its probative value is outweighed by its prejudicial effect. Having then considered each of the individual passages objected to in that light, he held that certain identified passages of the s 93A statement of Letitia were properly admissible for this purpose because the probative value of such evidence is not outweighed by its prejudicial effect: at [44] – [46]. As observed in R v Lester [2008] QCA 354, that provision leaves open for decision in each case – here by Reid DCJ - whether particular evidence of that general kind is relevant: at [39]. 

33. [33]
    Consequently, it is unnecessary for me to address this evidence any further; but should it be considered that some new argument has been raised in the applications before me, I, also, conclude that the relevant evidence of uncharged acts is that it is admissible in the edited way determined by Reid DCJ as evidence of domestic violence, pursuant to s 132B of the Evidence Act 1977, showing the real and full relationship existing between the defendant and the complainant, Owen.  Consequently, it could not impinge adversely on the stay issue in the circumstances analysed. 

Propensity evidence

34. [34]
    In the Crown’s written Outline an assertion was made that, given the nature of the assaults on him witnessed by the complainant/Owen’s sister, such evidence would be admissible on the basis as evidence of propensity. That was not an issue considered by Reid DCJ above.

35. [35]
    Further, it is not a matter that has been considered in any detail before me. The decision in R v Self [2001] QCA 338 referred to me was not concerned with the issue of propensity evidence as evidence against the accused but, rather, whether, in a strong circumstantial case, a propensity “warning” could confuse a jury’s legitimate reasoning.  Since there has not been a full examination of whether the uncharged acts are of such a kind that they can be used as evidence of propensity within the principles enunciated by the High Court in Pfennig v The Queen (1994-1995) 182 CLR 461, I wish to indicate here that that issue, if it is raised later, has not been determined, either way, by me. 

Loss of evidence

36. [36]
    Although, again, this was addressed in terms of the stay application, the fact that the Crown has conceded that the evidence of observations by an investigating police officer of seeing clumps of hair of some length at one of the premises at which Owen is known to have lived during the relevant time could be properly excluded, as it could not be linked to the complainant, has meant that it has ceased to be a factor of any significant moment in the determination of the stay.

37. [37]
    The additional complaint, then, about the destruction of photographic evidence of the alleged scarring to Letitia therefore loses a lot of its effect as a factor to be brought into account in the stay application. For reasons advanced above, given that evidence can be led about recollection of visual observations, it would, in any event, have been a very minor factor. In the present circumstances, it is an insignificant factor. These conclusions are more easily reached where, as here, the loss does not result from unlawful action or impropriety by the investigating police officers.

Summary

38. [38]
    For reasons that are canvassed in detail in these Reasons, I refuse both the application to quash the indictment and the application for a permanent stay of the indictment.

39. [39]
    I will make orders to effect those conclusions.