The Queen v TAM (No 2)[2011] QDC 141

DISTRICT COURT OF QUEENSLAND

1. [1]
   The Respondent/Accused T.A.M. (“TAM”) is charged with offences of indecent treatment and rape of a child (“CEJT”). On 13 October 2010 I gave judgment on a pre-trial hearing and excluded certain evidence and referred to the prosecution particulars, including the date of the remaining counts in the Indictment that was extant at the time.

The Application

2. [2]
   Both parties in this matter are applicants in effect: the Applicant is seeking leave to amend the indictment and to adduce further evidence in chief and the Respondent is seeking to exclude evidence and a discretionary judgment in his favour about the scope of particulars. However, I have nominated the prosecution as the applicant in the judgment.

3. [3]
   The prosecution have sought leave to proceed upon a new indictment with an extended range of dates of the offences – CEJT is unable to be specific about the date of the offence; and for leave to further examine CEJT (who is now nearly eight years of age) on a pre-recording hearing about the frequency and the nature of the touching alleged. It was submitted by Mr Stone that the earlier judgment would need to be re-opened.

4. [4]
   The respondent has objected to the new indictment, the further examination-in-chief and disputes that the judgment should be re-opened, asserting that the prosecution has declared its case and is bound by the particulars it has elected to rely on in the trial.

History

5. [5]
   On 28 January 2011 the listed pre-recording hearing was vacated when it became apparent that there were matters for pre-trial determination that needed to be dealt with before a pre-recording. I gave directions for filing and serving further written submissions. The issues were such that I was not able to determine the matter on that day and also proceed with a pre-recording of the evidence of CEJT.

Indictments

6. [6]
   The indictments, so far as they relate to the child CEJT, alleged dates as follows:

1.  06.08.10 count 2  on or about 11 November 2008.

  06.08.10 count 3  on or about 11 November 2008.

2.  18.10.10 count 1  on or about 11 November 2008.

  18.10.10 count 2  on or about 11 November 2008.

3.  28.01.11 count 1 ) date unknown between 26 March 2008

    count 2 ) and 12 November 2008.

The earlier judgment

7. [7]
   Mr Greggery had submitted that in paragraphs [55] - [60] in the earlier judgment I had concluded that the provision of further particulars of the two offences to supplement "the bare particulars previously provided" and my reference to both offences being said to have occurred on the same day, namely 11 November 2008 were definitive of the case the accused had to meet.

8. [8]
   In paragraph [60] I wrote:

 "All of these matters taken together seem to me to constitute the particulars of those offences and they are said to have occurred on or about the same day." (my underlining).

9. [9]
   I note, however, that I wrote at [59] that "Ms Kelsey did say that if there was clarification of whether the touching in count 2 was inside or outside the clothing, then that might give rise to further evidence-in-chief when the child CEJT is the subject of a pre-recorded hearing. I should add that it might also lead to a further particularisation of count 2."

10. [10]
    The latter "clarification" is one of the matters about which the prosecution seeks to further question CEJT in evidence-in-chief.

 Respondent’s objection 

11. [11]
    Mr Greggery seems primarily concerned about the expansion of the date of the alleged offences. The start date is the day upon which CEJT had first attended the children's day care centre where the accused had been employed. Hence if the offences "might have" occurred anywhere in the eight month period, there would potentially be scores of days open as potential days of an offence. He said the Crown had "nailed its colours to the mast" in the provision of the particulars. The significant fact was that the security video footage on 11 November 2008 does not show any relevant or suspect activity in the yard of the child care centre, nor inside the building (which whilst not completely is nevertheless substantially covered by security video cameras). The security video footage is only available for a two week period prior to any given date, including 12 November 2008. Hence the implication is that it is not available now for any time other than the two weeks on and preceding 11 November 2008, the footage for that period having been expeditiously seized by the police.

12. [12]
    In the course of the hearing I informed counsel of my preliminary view about two of the three primary issues in the application: namely, the further examination-in-chief about the conduct alleged in count 2 and whether the earlier judgment was, in effect, to be re-opened. The preliminary views that I expressed were that I did not see any issue, as a matter of principle and following my observations in the earlier judgment, about the prosecution asking questions in further examination-in-chief of the CEJT in the pre-recording about whether the touching in count 2 was inside or outside her clothing. That much at least had been foreshadowed in the course of the previous hearing and in my earlier judgment. I also took the view that the application did not amount to a re-opening of the earlier judgment. The reasons are apparent from what follows in this judgment.

The indictment issue

13. [13]
    The remaining issue in the application is whether the prosecution is entitled to enlarge the period of time during which the offences are alleged to have occurred in the way indicated in the third indictment which was presented on 28 January 2011.

14. [14]
    The prosecution refer to the uncertainty of CEJT as to when she was touched, expressed in her interview with police on 12 November 2008; and to her grandmother's preliminary complaint evidence that the child told her about being touched on 08 November 2008.

15. [15]
    CEJT was interviewed on 12 November 2008. She claimed that the respondent had put "his finger in my wee and like it hurt when he put it in like it was tickling". She referred to "today" and to "yesterday" and that it happened inside the centre (when she was awoken from a sleep) and outside on the playground (when she was picked up by him). She said she had a "red wee" yesterday. She later gave varying accounts of the number of times she was touched, from 14 times, 11 times, twice and then once (on her "birthday").

16. [16]
    The respondent made no explicit admission in a record of interview with police conducted on 13 November 2008, but did say that "I might have touched her when I pick her up or something or whatever but I wasn't, yeah, just would have been like in the process of sort of holding her I don't know" (sic). He denied the suggestion that he had placed his finger in CEJT's vagina. I understand that the admissibility of the record of interview on the trial is still a matter of contention between the parties.

17. [17]
    CEJT's grandmother claims that she was told on 08 November 2008 by her granddaughter, that the respondent had touched her.

18. [18]
    Section 572 of the Criminal Code (Qld) (“the Code”) permits the amendment of an indictment, provided the Court is satisfied that the amendment is not material to the merits of the case; the accused will not thereby be prejudiced in his defence; and there will be no injustice caused.

19. [19]
    The prosecution rely on s 572 of the Code to amend the dates and referred in submissions to the authorities that say the date is not being a material element of the offence, where it is not material to the charge. It was submitted that the expanded range of dates is permitted because “… it is open to the jury to find that the complainant, whilst being unreliable in relation to when exactly the offences happened, is honest and reliable in relation to her recollection of the events which make up the offending."

20. [20]
    CEJT (Date of Birth 05 August 2003) was four years and seven months of age at the commencement of the proposed period in March 2008. Hence she is about seven years ten months of age now.

21. [21]
    The applicant submitted that any unreliability as to date or time nevertheless left it open to a jury to find that the conduct did in fact occur; and that there was no prejudice or injustice in allowing the amendment of the dates as sought by it.

22. [22]
    The respondent submitted that the prosecution case has always, until this application was made, been pursued on the basis that the relevant and material date was 11 November 2008; and that it was bound by the particulars relied on (as to date at least) because the date was a material part of the earlier judgment and no special reason had been demonstrated to re-open the ruling pursuant to section 590AA(3) of the Criminal Code. It was submitted that the prosecution had committed to a particular way of dealing with the preliminary complaint evidence of the grandmother, which was belatedly discovered just prior to the subsequently vacated pre-recording date of hearing and other evidence, by agreement with the respondent.

23. [23]
    The applicant submitted that the respondent/accused is not prejudiced by the amendment sought; that the amendment is sought before any arraignment, the pre-recording and trial; and that the respondent is able to deal forensically with the change in the dates. However, I have no idea how the prosecution can make the latter assertion. It would not be possessed of sufficient knowledge to so do. As to the other assertions, when a change as radical, in the historical circumstances of this case, as is now sought - after the provision of particulars as I have described them - the timings reflected in the submission by the respondent to which I have referred are of less relevance.

24. [24]
    I will conclude consideration of the indictment issue after dealing with the broader procedural issue because it influences my assessment of the indictment issue and also the preliminary view I expressed about the further evidence–in–chief, in the course of the hearing.

The procedural issue

25. [25]
    Further submissions have been directed to another more broadly significant issue: the means by which the information about dates and the further evidence has been obtained by the prosecution. That issue, which occupied most of the period of the submissions made to me on the most recent hearing date, is whether the obtaining of the information about the dates by the prosecution (in conference with the CEJT) was permissible in light of the statutory provisions and as a matter of fairness to the respondent.

26. [26]
    The procedural issue involved an alleged breach of disclosure obligations by the applicant, imposed by sections 590AB and 590AI of the Code: that is, that "the conduct of the prosecution broadly speaking, has compromised the procedural fairness of the proceedings" by the obtaining of additional evidence in a recent conference.  

27. [27]
    As the submissions developed in respect of the latter matter, it seemed clear that there was no specific breach of any statutory provision being alleged and that what the respondent was seeking was a stay of the new indictment in an exercise of discretion, on the grounds of unfairness. Counsel had researched the case authorities but I was informed that the issue may not have been previously judicially considered. However, I was provided with submissions in other respects, including a joint submission from counsel that canvassed a number of the statutory regimes, similar to that in Queensland, in other Australian jurisdictions, New Zealand and the United Kingdom.

Submissions

28. [28]
    Mr Greggery, as I have indicated, has questioned the process by which the further evidence was obtained. He referred to two matters: there was a conference with CEJT in which a prosecutor and a clerk from the Office of the Director of Public Prosecutions participated. No video or sound recording was made of the conference. No formal memorandum or statement was made. The prosecutor, Mr Stone, had determined that he would immediately advise Mr Greggery and his instructing solicitors of the information obtained and did so by an email. Hence no other written record of the evidence was made. That email developed into an exchange of further emails between Mr Stone and Mr Greggery that brought the current issues into focus.

29. [29]
    The email message simply stated:

1. “I just had CEJT come in and watch her s 93A stmt.

I also clarified with her whether when Tim touched her it was on the outside or inside of her pants and she said inside she could feel his skin on her skin.

I also asked about the number of times referring her to saying it happened 14 times, 11 times and once and she said that she was only 5 when she spoke to Fran but it was only once.

Tomorrow after tendering the DVD I will want to clarify that with her and will make that application.”

30. [30]
    The further emails were as follows:

2. “Hi Kelly,

Was your questioning of her on these critical points recorded in any way?”

3. “Do you want a file note from Kate?”
4. “Did Kate make notes at the time?”
5. “She did not make a note at the time. She just sat in as I asked those 2 questions only. She asked if I wanted her to make a note and I said I would email you straight away so it probably wouldn’t be necessary.”

31. [31]
    Mr Greggery submitted that s 93A of the Evidence Act was a statutory process. He submitted that Mr Stone and his clerk were now potential witnesses in the context that CEJT had already made inconsistent statements about the issue of dates when the touching occurred and that they had obtained further inconsistent information without going through the process required by statute. He also referred to s 590AI of the Criminal Code (inserted by the Amendment Act in 2003) which provided for the prosecution obligation to disclose information. Further, he said no application for leave to adduce further evidence had been made within the time referred to in section 590AI.

32. [32]
    In my earlier judgment, I had foreshadowed the possibility of further limited and specific evidence of the kind now sought to be lead in examination in chief in a pre-recording hearing, being obtained by the prosecution. To that extent, leave to make further disclosure by extension of the statutory 28 day period has probably implicitly been granted in accordance with section 590AI(4).

33. [33]
    However, Mr Greggery's submissions have opened a broader justiciable issue: is the brief statement of the further evidence contained in the prosecutor's email to Mr Greggery a statement purportedly made pursuant to section 93A of the Evidence Act 1977?  If so, has it been properly obtained?  Are the prosecutor and his clerk, who participated in the conference with CEJT, compellable witnesses?  Is a conference that elicits evidence from an affected witness an investigative or prosecutorial function?  Are there important public policy considerations involved? 

34. [34]
    These are the broad questions that constitute what I have called "the procedural issue".

35. [35]
    Mr Stone in submissions in reply said that s 93A is broadly expressed, that video and/or audio evidence was not required when clarification was sought of evidence of adults and that it is no different for children in the s 93A statement context.

36. [36]
    As for disclosure, he simply submitted that it is an ongoing obligation and that disclosure may occur in the way that occurred in this case as matters arise in the course of preparation of a case.

37. [37]
    Mr Greggery submitted that the process required the child to be interviewed by the police in the ‘statutory way’ and that the prosecution would thereby remain independent and objective and a proper proof of evidence would be available. He referred to their being no opportunity for cross-examination of the child at a committal proceeding, the impressionable nature of the child witness and the manner in which evidence of an affected child is preserved and presented at trial through the s 93A DVD statement and pre-recording hearing process.

38. [38]
    Insofar as the "impressionable nature" of the child is concerned, that observation really arises from a report by psychologist Ms Pat Woodcock, dated 25 May 2009, prepared for the Queensland Police Service. The consultation is said to have been a "standard psychological assessment" of CEJT. Ms Woodcock concluded that the CEJT "would probably not be easily influenced by others, but like all children, she is susceptible to suggestion. While her disclosures have consistently included the same facts, the re-telling does not seem to be rehearsed or purposefully elaborated, suggesting that [CEJT's] perception of the experience and memory of the experience have a stability." She continued, "However, [CEJT] like all children her age, may be unable to identify a hypothetical situation that blends fantasy and reality. Such questioning is likely to confuse (her). Furthermore, due to [CEJT's] developmental maturity, questions should be made as concrete as possible in order for (her) to comprehend what is being asked of her”. She said that CEJT's speech, while lexically standard, would be limited in vocabulary, as is the case with most children of her age.

39. [39]
    It was submitted that this issue was critical in the context of this case because as it presently stands the inconsistencies are such that the prosecution have conceded that its case would most likely fail if the leave to amend the dates was not granted. That submission has been confirmed by Mr Stone in a joint further email submission sent to me by counsel after the hearing, that set out the options for the orders sought by them, depending on the manner of my determination of the application.

40. [40]
    Mr Greggery contrasted the process described in DPP Guideline No. 27 (xi) where a statement of evidence is confirmed as correct and where a gap in the evidence is identified and further statements adduced to supply the gap.

41. [41]
    The first Joint Submission (which was complementary to the individual submissions made by counsel), attached documents on public prosecution disclosure regimes in Western Australia, New South Wales, Victoria, New Zealand and the United Kingdom.

Discussion

42. [42]
    In Gately v R (2007) 241 ALR 1 (per Hayne J at paragraphs 102-103) reference was made to a combination of s 93A evidence and oral evidence being permitted:

"[102] The essence of the proposition advanced by the appellant on this issue was that a party cannot tender an out-of-court statement as evidence of the facts, and at the same time call oral evidence from the maker of the statement upon the same subject. That proposition should be rejected.

[103] The stated premise upon which s 93A is engaged is that the maker  of the statement which it is sought to tender in evidence is available to give evidence. Any other party may require that the party tendering the statement 'call as a witness the person whose statement is so admitted'. Nothing in the text of the section suggests that the party tendering the statement may not choose to call the maker of the statement as a witness. If the tendering party is required by an 'other party' to 'call as a witness' the maker of the statement, nothing in the text of the section suggests that the tendering party may not adduce evidence-in-chief from the maker about the matters that are the subject of the statement. The maker of the statement is to be called 'as a witness', not only 'made available for cross-examination'. And if the tendering party chooses to call the maker of the statement as a witness, nothing in the text of the section suggests that some different rule applies such as that the tendering party is precluded from adducing evidence-in-chief from the maker about the matters dealt with in the statement."

43. [43]
    In this case the further examination questions are prima facie able to be asked at the pre-recording hearing when the witness appears. However, the issue really is whether the answers that CEJT might make are affected by the manner in which the conference with her was conducted, particularly in light of Mr Stones stated intention to ‘further clarify’ the answers about the number of occasions she was touched. The examination-in-chief is part of the pre-recorded evidence. Section 21AA (1) of the Evidence Act 1977 provides, so far as is relevant, that the purpose of that process is to “to preserve, to the greatest extent practicable, the integrity of an affected child’s evidence”. It is the integrity of the evidence in the circumstance of the conference that is at the core of Mr Greggery’s objection, albeit in the context of late disclosure.

44. [44]
    In R v W; ex parte AG (Qld) [2002] QCA 329, McKenzie J wrote:

"[5] It should be observed that it is very unsatisfactory for the prosecution not to have its case fully prepared in advance of the date set for trial. Sometimes, issues need clarification in minorrespects or arise unexpectedly during the trial and need to be metby further evidence.  Leaving those aside, the defence is entitled to know in advance if the evidence to be called by the prosecution. However, late provision of additional significant evidence or a late perception on the part of the prosecution of a need to supplement its case in important respects will generally be more relevant to whether an application for an adjournment should be granted to either party than to an application for a stay." (underlining by me).

45. [45]
    The underlined statement is undoubtedly appropriate in the case of adult or otherwise mature witnesses. However, I doubt that it has such generalised application to the evidence of affected witnesses such as CEJT.

46. [46]
    See also R v Robinson [2007] QCA 349; R v BBQ [2009] QCA 166; and R v Stratford Justices; ex parte Imbert [1999] 2 Cr. App. R 276. These cases focussed on the late disclosure of material evidence by the prosecution and an application to stay a prosecution. The latter is an exceptional remedy. However, that is not the issue here, save that the respondent has no apparent opportunity now of recovering video security evidence on any date outside the two weeks preceding and the day of 11 November 2008. However, the cases demonstrate the importance that the Courts afford to the disclosure obligation, both before and after the relevant amendments to the legislation in Queensland where the disclosure obligation was fortified by statutory amendment.

47. [47]
    Counsel in their research identified three cases that dealt with the consequences of failure to disclose in the time provided in section 590AI: Lekich v Dixon [2009] QDC 111 at [50]; Lamositele v Arnold [2007] QDC 362; and R v Bedford & Bound [2011] QCA 43 at [71]. I do not need to refer specifically to those authorities for the purpose of this judgment. Of course, I have already referred to my having implicitly given leave pursuant to the section to extend the time for disclosure in respect of the further matters of evidence-in-chief that are the subject of the application.

48. [48]
    The respondent correctly identified that the legislative scheme in Queensland required full and early disclosure of the material upon which the prosecution intended to rely at trial; an assessment of reasonable prospects of success on the available evidence at or before the presentation of the indictment (see also DPP Guidelines 3, 4 & 10); and complete disclosure within 28 days of the presentation of the indictment.

49. [49]
    Whilst section 590AI is designed to ensure procedural fairness in the course of a prosecution, it does not spell out the consequences which flow from a failure to disclose within the specified time period. There is an ongoing obligation of disclosure regardless of the application of section 590AI(4). Hence it is submitted by the respondent that the consequence must be one relating to admissibility of evidence that is obtained and sought to be lead by the prosecution contrary to the statutory regime. Mr Greggery argued that the section should be construed in a way which favours an accused person and which gives "the most complete remedy consistent with the actual language employed and to which its words are fairly open": Khoury (M & S) v Government Insurance Office of NSW (1984) 165 CLR 622 at 638 and "Statutory Interpretation in Australia” 6th Ed. by Pearce & Geddes, at p 282.

50. [50]
    As Mr Greggery submitted, there are a number of matters which either favour the granting of an extension of time or are against such extension. In addition, there may be matters relevant to the individual case which might require an exercise of discretion by the Court, including - so far as is relevant here - the prejudice an accused may suffer in his defence in light of the position adopted by the prosecution in its particulars throughout the substantial part of the pre-hearing process, the action taken by an accused in respect of the case disclosed to him in that period, agreements between the prosecution and the accused about the extent of evidence to be lead on the trial and otherwise generally, in regard to the reason for the evidence the subject of an application for extension of time being lead. In so far as the latter is concerned, the implication in this case is that the prosecution case, having passed through more than one pair of professional hands within the DPP, has been belatedly recognised as a weak case that can only have a prospect of success if the dates between which the relevant offences are charged are so wide as to permit a jury acceptance of CEJT’s allegations, despite the divers dates and their inconsistency given by her, and to accommodate the relatively late preliminary complaint made to the grandmother, in spite of the case having been prepared and advanced throughout the pre-hearing period on the basis of a single date, namely 11 November 2008.

51. [51]
    All of those matters are referred to in the context of the process by which the additional evidence was obtained from CEJT, namely in a pre-hearing conference or interview between the prosecutor and his clerk. As I have said, none of this was recorded other than it being noted in the email to which reference has been made. Further, the veracity of the evidence and the integrity of the process employed in the conference or interview with CEJT can only be tested by Mr Greggery through his compelling the prosecutor (who continues to be the lawyer conducting the proceedings on behalf of the DPP) and his clerk (who continues to instruct in the proceeding) being called to give evidence about those matters. Indeed they are arguably makers of related statements pursuant to s 93A(2) of the evidence Act 1977. That must on any objective view be a most unsatisfactory state of affairs for a prosecution and for the DPP.

 The interstate and extra-territorial jurisdictions

52. [52]
    In Western Australia with respect to indictable offences, the legislation provides for an adjournment or dismissal of a proceeding for want of prosecution if the prosecution do not comply with the statutory disclosure obligation. The investigator must certify that the disclosure obligations have been complied with and that the DPP has been provided with that material and it has been served on the accused. It is an offence to make such a certification in the absence of reasonable diligence. However, there does not appear to be any statutory power to exclude the evidence in the event of non-compliance with the statutory disclosure regime.

53. [53]
    In Victoria, there is a requirement for a comprehensive disclosure on part of the prosecution at the committal stage of the proceedings. The Victorian legislation provides time lines in respect of the "filing" of an indictment (six months from the committal date) and for commencement of the trial (twelve months from the committal date) in most circumstances (save for sexual offences). There is a continuing obligation to make disclosure "as soon as practicable". There is a form of pleading (including a summary of the respective ‘openings’ of evidence) required to be filed by both DPP and the defence. Evidence not previously disclosed that constitutes a substantial departure from the prosecution pleading may be admitted, but the other party may with leave of the trial Judge make such comment about the failure or breach by the other party that the trial Judge thinks appropriate.

54. [54]
    In New South Wales, there is a comprehensive disclosure regime imposed by statute. Sanctions for non-compliance with pre-trial disclosure may result in the Court refusing to admit evidence in proceedings sought to be adduced by a party who failed to disclose the evidence to the other party in accordance with the disclosure regime.

55. [55]
    In New Zealand, the Court has power to exclude evidence that should have been disclosed to the other party but was not disclosed in the course of the pre-trial process, or adjourn the hearing or trial, or otherwise admit the evidence if it is in the interests of justice to do so.

56. [56]
    In the United Kingdom, the prosecution must as soon as is reasonably practicable after the indictment is presented, comply with a disclosure process including disclosure of material which might be considered capable of undermining the prosecution case as well as material which might assist the case of the accused in the proceeding. Failure to observe time limits in respect of service of prosecution evidence does not of itself constitute grounds for staying proceedings for abuse of process, other than if the failure involves such delay by the prosecutor that the accused is denied a fair trial.

57. [57]
    In those extra-territorial jurisdictions where there are specific consequences for failure to comply with the disclosure obligation, the nature and extent of those consequences are clearly set out in the legislation. That is not the case in Queensland. Hence Mr Greggery's submission that the Court in the circumstances could, specifically in the circumstances of this case, refuse to admit the evidence is one which must be based upon the inherent jurisdiction of the Court to regulate its proceedings in the interests of justice and to exclude evidence in an exercise of discretion if it is unfair to the accused or not expedient in the interests of justice to allow admission of the evidence. One cannot in Queensland rely upon any statutory consequence arising from the relevant legislation.

58. [58]
    However, counsel in their research in respect to these matters informed me that they were unable to find any statutory reference in those other jurisdictions to the circumstance of the prosecution having obtained the additional evidence in an interview or conference scenario such as has been described.

 The Queensland Statutory Disclosure Process

59. [59]
    In the Evidence (Protection of Children) Amendment Bill 2003: Explanatory Notes, a number of statements that resonate with the objections made by the respondent in this case are referred to. I have extracted those that are particularly relevant from the Explanatory Notes, as follows:

"The reforms (outlined in the Bill) are aimed to ensure that ordinarily, a child should not have to give evidence more than once, alternative measures should be used where possible, and trials should be resolved as quickly as possible.

The Bill also introduces a comprehensive disclosure regime to ensure that  an accused person is properly informed of the case against him or her.

Accordingly, the amendments are designed to meet the following objectives -

• To preserve, to the greatest extent possible, the integrity of the evidence of a child witness;

• To limit, to the greatest extent possible, the distress or trauma experienced by a child witness as a result of giving evidence; and

• To ensure that, in a criminal matter, an accused person receives a fair trial";

  and further:

"There are a number of other measures proposed or in place that will ensure that defendants are not unduly prejudiced by limits on the right across-examine at committal, for example -

• Pre-recording of all of the evidence of a child witness will enable the defence to cross-examine the child prior to the trial commencing, which will facilitate pleas of guilty and no case submissions;

• The use of recorded statements under existing section 93A of the Evidence Act 1977 gives the defence the opportunity to see and hear how the witness describes events in that recorded statement;

• Additional screening of the appropriateness of the charge is conducted by the Director of Public Prosecutions, who can decline to indict notwithstanding a Magistrate's decision to commit; and

• Formalise disclosure obligations on the Director of Public Prosecutions and the Queensland Police Service will ensure that the defendant is advised of the case against him/her.

The proposed reform will still ensure unsustainable prosecution though  disposed of at an early stage, but also will reduce unnecessary delays in the criminal justice process and reduce the trauma to vulnerable witnesses"

   (The under-linings in the dot point references above are by me).

60. [60]
    The Bill (that is, the amendments to the Evidence Act 1977) makes it abundantly clear that the process of recording of the evidence of a child in the way prescribed in Queensland has an emphasis upon all of the evidence of a child witness being presented in a manner which gives the defence the opportunity to see and hear how the witness describes events in the "recorded statement" and to ensure the accused is fully appraised of the case he or she has to meet.

61. [61]
    In my view, the practice of interviewing and conferencing with child witnesses prior to a hearing, which is unremarkable where it is conducted with adult witnesses who are not the subject of the specific protective legislative regime, needs to be seriously reconsidered in the case of children who are affected witnesses and in respect of whom the evidence-in-chief is mainly comprised by the section 93A statement taken by police investigators (albeit capable of being supplemented by questions asked in further examination by leave in court, by the prosecutor). It is the intermediary step of non-recorded interviews/conferencing with affected witnesses – whilst otherwise legitimate processes in the ordinary course – that is the issue.

62. [62]
    I have previously expressed criticism of the police and the DPP for the manner in which section 93A statements are often conducted and tendered for viewing and listening in Court - in respect of the overt images of police badges and police sub-unit identification and the sometimes lengthy introductory or concluding question and answer process which is largely totally irrelevant in an evidentiary context and which would not be permitted if the evidence was being lead in the normal manner in open court and was not being pre-recorded.

63. [63]
    Whilst I understand the possible inconvenience and the logistical difficulties that might flow from the view that I am expressing, it seems to me that the statutory framework entitles an accused person to "see and hear" all of the evidence of the child witness where the statutory process for affected witnesses is engaged.

64. [64]
    Mr Greggery's submission about this is directed, if not in so many words, to the inadequacy of the interview or conferencing process where further factual revelations are made by a child witness, particularly one of tender years who may be susceptible to inadvertent or unintentional leading or prompting (and I do not suggest that anything overtly has occurred in this case or that the prosecutor and clerk concerned acted other than professionally and with good intentions utilising a practice that appears to be standard for the prosecution in Queensland) resulting in the denial of an opportunity for the accused to see and hear the witness give the additional evidence. The additional evidence is very brief but is highly significant - that is, whether the touching of the genitals occurred on or under the child's clothing and how many times it occurred.

65. [65]
    It follows that even if, as I have indicated, an implicit grant of leave was given to adduce the further evidence, the process engaged by the prosecution is one which is in my view unsatisfactory and one which requires an urgent review by the Director of Public Prosecutions as to the practice employed in pre-hearing consultations with or interviews of affected child witnesses. In this case the accused has been denied the opportunity to which I have referred and it seems to me that despite my preliminary view expressed in the course of the hearing, the evidence should not be led.

66. [66]
    I make that ruling in an exercise of discretion pursuant to sections 98 and 130 of the Evidence Act 1977. The sections relevantly provide as follows:

  "98 Rejection of evidence

(1) The Court may in its discretion reject any statement or representation notwithstanding that the requirements of this part are satisfied with respect thereto, if for any reason it appears to be inexpedient in the interests of justice that the statement should beadmitted."

  and,

"130 Rejection of evidence in criminal proceedings

Nothing in this Act derogates from the power of the Court in a criminal proceeding to exclude evidence that the Court is satisfied that it would be unfair to the person charged to admit that evidence."

67. [67]
    Accordingly, the additional evidence obtained by the prosecution with respect to the matters foreshadowed in the hearing in January 2011 is excluded.

 The issue about the dates in the Indictment

68. [68]
    Section 572 of the Code provides for amendment of indictments.

  "572 Amendment of Indictments

………

(3) If the Court is satisfied no injustice will be done by amending the indictment, the Court may make the order at any time before or at any stage of, the trial on the indictment, or after verdict."

69. [69]
    In so far as the issue of "injustice" to the accused is concerned, subsection (1) requires that the amendment be "not material to the merits of the case" and "that the accused will not be prejudiced thereby in this defence on the merit": R v Fahey (2001) QCA 82 at [16] per Thomas JA.

70. [70]
    The materiality of the date of the offence in an indictment has been considered in a number of authorities.

71. [71]
    In R v Pfitzer (1976) 15 SASR 171, Bray CJ wrote (at 175):

"Whether the date alleged in an information is vital to the charge must depend on the circumstances. So long as it is clear that the controversy turns on the events of a certain occasion, it may not matter if the date of that occasion is mis-stated if the occasion itself is clearly identified and both parties have directed their cases towards it:  cf Page v Butcher (1957) SASR 165. But obviously if a man is charged with committing an offence on Saturday and comes prepared with an alibi for Saturday, he cannot be convicted of committing the offence on Friday or Sunday, unless perhaps the information is amended and the trial adjourned to enable him to meet the new case. If authority is needed for so obvious a proposition, it will be found in Wright v Nicholson (1970) 54 Crim App. R 38."

72. [72]
    In R v Dossi (1918) 13 Crim App. R 15 at 8, Atkin J (at pages 159-160) wrote the following:

"From time in memorial, a date specified in an indictment has never been a material matter unless it is actually an essential part of the alleged offence … thus though the date of the offence should be alleged in the indictment, it has never been necessary that it should be laid according to the truth unless time is of the essence of the offence."

73. [73]
    In R v Dean (1932) NZLR 573, Dossi was distinguished because there was in Dean specific proof of some of the dates of offences and no evidence of offences "on or about" or "between" dates. In those circumstances (there being some alibis as to some of the specific dates) the specific dates sworn in evidence became material, not the dates specified in the indictment.

74. [74]
    In R v Swan (1987) 27 A Crim R 289, Kneipp J wrote (at page 290):

"It is clear that the date is not necessarily a material matter but I think an  accused is entitled to prepare his case and go into Court on the assumption that the evidence will be related to the date unless he has notice to the contrary. If there is a departure from the date in the Crown case and he is thereby disadvantaged, he should have an opportunity to deal with the change."

75. [75]
    In R v Jacobs (1993) 2 Qd R 541, Dowsett J, following the majority in Swan, considered Dean and Wright v Nicholson and doubted Dossi. The "doubt" appears to have focussed on the distinction made between the necessity to prove the specific date referred to in the evidence and the alternative proof of dates said not to be the essence of the offence.

76. [76]
    In R v ZSK (2006) QDC 016, the Court considered whether an accused was prejudiced in his defence and circumstances where he had given a notice of alibi in respect of an original period of dates, but the Crown subsequently presented an indictment charging a longer period. His Honour Judge McGill QC focussed on the giving of an alibi and followed R v H (1995) 83 A Crim. R 402 (SACA) where a stay was granted. In the latter case there was specificity about dates, namely a commencement by the complainant of a particular employment. The latter date was provable by a document. An alibi was allowed by leave. No notice as required was given. The prosecution were granted an adjournment to investigate the alibi. The prosecution then sought to amend the dates to include a period of one week beyond the alibi period. It appears the complainant also changed her evidence to allege that the offence had occurred the following year.

Discussion

77. [77]
    That case is a clear example of the prosecution, almost out of expedience and on the run, changing the basis of its case. In ZSK the prosecution appears to have been hoping to lead "different evidence from the complainant" as to the time of the offence. Indeed, His Honour said in a footnote (#16) that "the intention of the Crown is in effect just to put the complainant in front of the video camera under s 21AK of the Evidence Act and hope that she will say something about the time in count one which will save the Crown case."

78. [78]
    The circumstances of an individual case will, more often than not, dictate whether the date of the offence in the indictment is material or not material. If it is material, then it is an essential part of the essence of the alleged offence. Conversely, if it is not, then it is not an essential part of the essence of the alleged offence. It does not matter whether the averment of the date is a single specific date, between dates or and on or about a specific date. The issue is its materiality.

79. [79]
    In my view, the case authorities to which I have referred have a resonance so far as the circumstances of the subject case are concerned. The prosecution have sought to not only lead additional evidence as to the factual circumstance of one of the offences but also with respect to the number of occasions the offences might have occurred, which has led it to seel leave to amend the dates between which the offences may have been committed. I have already expressed a strong view about the manner in which such additional evidence, if it is directed towards material matters of fact in the prosecution case, should be adduced even in the pre-hearing conferencing or interviewing situation in so far as affected child witnesses are concerned.

80. [80]
    In this case the date of 11 November 2008 is a material date. The prosecution case has proceeded until this time on the basis that it is the only date with respect to which the accused needed to be concerned. No additional offences have been identified or charged. There is significant inconsistency as in CEJT’s evidence about when the two offences occurred.

81. [81]
    The prosecution case with respect to that date and against the background of uncertainty of the child as to precisely when the offences happened, is not strong and the evidence of the security video, whilst not 100% complete, seems to indicate nothing in the nature of unlawful conduct on the part of the respondent on 11 November 2008 with respect to CEJT.

82. [82]
    The application for leave to extend the dates seems to me to be nothing more than an attempt by the prosecution to overcome the entrenched difficulties inherent in the evidence of CEJT and to try to leave the case to the jury on the basis that if not satisfied about the date of 11 November 2008, the jury should in some unspecified way be satisfied that the event must have occurred and therefore must have occurred during the period of CEJT’s attendance at the child care centre where the respondent worked.

83. [83]
    At paragraph [33] I asked, in a rhetorical sense, a number of broad questions. In summary, I should specifically answer them as follows: the evidence has not been properly obtained. The prosecutor and his clerk are arguably compellable witnesses on any hearing or trial. The conference that elicits evidence from an affected witness may be both (or perhaps ‘either’) an investigative and/or a prosecutorial function, provided that the conference is recorded visually and audibly. There are significant public policy considerations involved: they are identified in the course of the discussions in the judgment.

84. [84]
    I do not consider that there is a proper basis for seeking leave pursuant to section 572 of the Code to amend the indictment and the application to amend the dates is therefore refused. I order that the indictment presented on 28 January 2011 be stayed. The previous indictment (subject to the exclusion of evidence in my earlier judgment) is not the subject of that order.

 Conclusion

85. [85]
    As I have averted to earlier, the parties indicated a number of orders which might be made depending upon the manner of my determination of the application. Given the matters to which I have referred it seems that my refusal of the leave in both respects sought by the prosecution will lead to a review by the DPP of its position with respect to the charge. I repeat the observation that I have made or at least implied in this judgment: I do not consider that the prosecution case is particularly strong and I cannot see how it can possibly succeed now given the determination of this application. In any event, it seems that in the event that the prosecution decide to continue with the charges against the accused, the respondent will require the prosecutor to provide a statement as to the conduct of the interview or conferencing with CEJT and that if a further section 93A statement is sought to be obtained in order to comply with the statutory regime, it would be opposed in an application brought by the respondent to exclude the complainant's evidence so obtained. The parties also foreshadowed an application that any trial that might proceed despite the foregoing, would be subject to an application for a trial by Judge alone.

 Orders

86. [86]
    1.Application refused:

(a)Leave to amend dates of offence refused; and

(b)Leave to further examine the complainant child refused.

2.Indictment presented on 28 January 2011 is stayed.