The Queen v MFH[2013] QDC 121

[2013] QDC 121

DISTRICT COURT

CRIMINAL JURISDICTION

JUDGE JONES

Indictment No. 47 of 2013

THE QUEEN

v.

MFH

MACKAY

DATE 14/05/2013

DAY 1

RULING

HIS HONOUR: In this proceeding I am concerned with an application pursuant to section 590AA of the Criminal Code 1899 to have parts of two records of the complainant excluded from giving to the jury notwithstanding them being admissible statements pursuant to s 93A of the Evidence Act 1995.

The charge against the applicant is a serious one of rape, an alternate verdict for the jury in respect of that charge might be one of indecent treatment.

The complainant at the time of the offending was five and she was also five at the time she gave her first record of interview. She was six when she gave her second record of interview took place. The applicant is the complainant's Uncle.

The relevant part of the first interview that took place on 29 August 2011 is set out at pages 3, 4 through to 5 of the applicant's written submissions. It is submitted that, at its most fundamental level, the applicant seeks the evidence excluded on the bases of unreliability. There seems to be three basis for making that submission, first, material - material inherent inconsistencies in the first record of interview, the asking of leading questions particularly in respect of the first record of interview and the issue of coaching, particularly in respect of the second record of interview. It was also contended that the second record of interview was, in any event, tainted by the leading questions asked in the first interview.

For reasons I will touch on in a moment, it was advocated by Ms Hartigan that if I was to rule against the applicant in respect of the second record of interview then the relevant parts of the first record of interview should also go before the jury.

Dealing with the first record of interview, there are as is identified by Ms Hartigan, apparent inconsistencies. The ones particularly identified are, if the applicant did what is alleged, why would the complainant still describe him to the effect as being a good person.

In my view there's no real substance to that submission. It is clear even from the limited part of the record of interview which has been put before me that the complainant did have a good relationship with the applicant. He played various games with the complainant and bought her pets and things of that nature. I do not find it, particularly having regard to the complainant's age, necessarily evidence of inherent inconsistency for the child to still consider the applicant to be a good man notwithstanding the alleged offending, which, was limited to one event.

The other matter raised to point to inconsistency is in fact not necessarily an inconsistency in my view. The first question and answer relevantly was, "Question: Has Uncle Mike ever touched you down there?"  The answer was a nod of the complainant's head. The second question relevantly here was, "Do you remember Uncle Mike touching you on your privates at your Nanny's house?", the answer was, "No".

The fact that the complainant said no to the second question does not necessarily render it inconsistent with the answer to the first question because the second question specifically addressed the complainant's attention to her Nanny's house and the touching occurring there. The first question was not concerned with the location of the touching.

The reference to the Nanny's house is arguably a reference to the location of the subject offending. It is for that reason that Ms Hartigan contended quite properly that if the second record of interview was going to be admitted then the first ought to remain because at least at face value that second question in this context elicits a response potentially inconsistent with the complainant's other evidence.

It's conceded by the Crown that the first record of interview involves, if not entirely then to a material extent, a number of leading questions. I agree with that observation, however, whilst the question are leading they are not couched in such terms as to specifically ensure a given answer.

On balance, I consider that the damage caused by the asking of leading questions are capable of being addressed by appropriate direction to the jury. It is necessary though to then consider further the submission made that the damage resulting from the leading questions being asked in the first record of interview tainted the second record of interview. As I said, I consider the first record of interview defects might be able to be remedied or would, in my view, be capable of being remedied by an appropriate direction, that does not necessarily answer the second question posed by the applicant.

I should comment at this stage that the question as framed at page 7, the third dot point on the applicant's outline of argument caused me considerable concern in that it seemed to suggest that the questioner did not wait for a response between the question, "Has Uncle Mike ever touched your privates?" and the second prompt, "Tell me about that?".

As it turned out, after the record of interview had been checked, there was a response namely when asked, "Has Uncle Mike ever touched your privates?", the complainant nodded her assent and it was then that the question was asked, "Tell me about that?". I should make it clear here that whilst I have referred to the applicant's outline of argument here no criticism is directed in any way towards Ms Hartigan's framing of the interview.

The relevant sections raised here are sections 98 and 130 of the Evidence Act. Pursuant to section 98, A Court is permitted to reject a statement such as evidence given under section 93A if it appears to be inexpedient in the interest of Justice that the statement be admitted. Section 130 relevantly provides, "Nothing in this Act derogates from the power of the Court in a criminal proceeding to exclude evidence if the Court is satisfied that it would be unfair to the person charged to admit that evidence."

In the case of the Queen v. D [2003] QCA 151, Jerrard, Justice of Appeals, whilst in dissent, but not on this point, at paragraph 60 to 62, relevantly said, under the heading, "Construction of these sections" "With respect to section 98 the term 'inexpedient' can mean 'not suitable, advisable, or judicious' (Collins English Dictionary Australian Edition) or 'disadvantaged in the circumstances, unadvisable, impolitic' (Shorter Oxford English Dictionary). Either construction might mean it was 'inexpedient' to admit video statements pursuant to section 93A where there is a reason for concluding the truth will not be ascertained if evidence is received in that matter.

In R v. FAR [1996] 2 QDR 49, Davies JA (at page 61) with whom Pincus JA agreed on this point, stated that: 'The question is whether a discretion under section 98 (or section 130) should be exercised to exclude a statement otherwise satisfying the requirements of section 93A would almost always turn on its reliability. He added that there would be many factors which might affect the question'.

In R v. Morris [1996] QDR 68, Dowsett JA, whose judgment was that of the Court, wrote (at page 75) that: 'I do not imply that inherent unreliability may not be a basis for the exercise for the discretion under section 98. Circumstances may arise in which the statement itself appears to be so unreliable either because of it's contents or because of the way it was obtained, that it ought not be received for the reasons directly related to the interest of justice'.

With respect to section 130 the unfairness invoking the exercise of the statutory discretion would be the right he discussed in R v. Swaffield [1997] [1998] 192 CLR 159, and particularly at 189: 'Namely a concern with not jeopardising an accused person's right to receive a fair trial. As the joint judgment of Toohey, Gaudron and Gummow JJ records, unreliability is regarded as a touchstone of unfairness'".

Here the reference to the passage from this judgment of Justice Dowsett in Morris, regarding a statement being unreliable either because of its contents or the way it was obtained is relevant. Both of those issues are raised here. Firstly, the contents being inherently or internally inconsistent - I believe I have already dealt with that matter;  and the second, the way in which it is obtained by way of leading questions.

As I said earlier, the issue of leading questions can, in my view, be satisfactorily addressed by appropriate directions to the jury. As was recognised in the case of the Queen v. Stane [2010] QCA 263, the fact that a response is in response to a leading question does not necessarily mean they are without any probative value.

In the case of the Queen v. FQ, another decision of the Court of Appeal [2008] QCA 68, Holmes, Justice of Appeals, said, under the heading, "Conclusions" in respect of the section 98 discretion, at paragraphs 33 to 34: "The comments set out above from Morris, FAR and D say no more that the reliability will often be the focus of consideration in deciding how to exercise the discretion. They do not suggest that it is the only consideration. Some care must be taken too with the word "reliability" itself, it may be used in a narrow sense in reference to the reliability of the evidence to be admitted per se, or more broadly in reference to the general issues affecting reliability. As to the first sense, a statement or statements whose content is manifestly unreliable, it seems to me, be more safely and fairly left to a jury than evidence whose reliability is potentially affected by external factors less obvious and less capable of being explored". Hayne J observed in Gately v. The Queen that section 93A made a special rule.

Justice Holmes stated: "That preservation of the integrity of the evidence in the sense of maintaining it as a whole may work for or against an accused. It may, for example, make inconsistencies apparent in a way that selective presentation would not. But section 98 uses a breadth of expression which goes well beyond questions of reliability, extending to exclusion where it appears to the Court, 'Inexpedient in the interests of justice' to admit the material. It would embrace exclusion for reasons of unfairness (which may still of course have some bearing on reliability) or public policy, for example, a deliberate choice by an investigating officer not to use available recording facilities in order to impede examination of or interviewing techniques might well provide a basis for exclusion of the interests of justice".

By reference to those passages it is clear that section 98, as does section 130 of the Evidence Act provide a wide discretion to the Court.

In respect to the question of coaching, in my view, that is speculative at this time. It is true that in the second record of interview the complainant gave a much more detailed version of events. That of itself does not necessarily point to there having been coaching;  that is not to say, of course, that there has not been coaching. But that is a matter, in my view, best left to the trial and pretrial procedures.

The complainant will no doubt be questioned about that matter during the pretrial process, and each of the relevant witnesses, in particular the mother, father, and grandmother, will be able to be pressed about this during cross‑examination at trial. I do not consider coaching to be a basis for ruling against the Crown in this application.

The second interview is not tainted anywhere near to the same extent by leading questions as the first, and as much was really conceded by Ms Hartigan.

On balance, I am not sufficiently satisfied that the second interview is, or could be said to be so tainted by the first interview as to in some way render it unreliable.

As I said, the second record of interview by and large elicits responses from non‑leading questions. And, I think as I said earlier, the fact that more detail was given does not necessarily point to coaching, and I do not accept that it could be said to be sufficiently tainted by the subject part of the first record of interview, which is brief in compass.

It is also relevant, in my opinion, in this application that the reliability of the complainant appears to be supported by the evidence of a number of other witnesses. It is true that none of these witnesses were able to give eyewitness evidence of the offence of rape, but there is the evidence of statements made to the complainant's mother arguably at least consistent with indecent treatment, statements made against interest to the complainant's father, and responses to a pretext phone call.

As I said, whilst none of that evidence directly goes - or directly supports the complainant's version of the applicant, entering her vulva with one of his fingers, it is evidence, in my view, capable of supporting the complainant's version of events, namely that the applicant, while she was sitting on his lap, put his finger inside her panties and to use her words, "Put his finger in the middle of my private part."

For the reasons given the application is dismissed.