R v HAF[2013] QDC 170

DISTRICT COURT OF QUEENSLAND

1. [1]
   This is an application by the defendant for leave to cross-examine the child, YBH, who’s aged 12 years, in relation to a previous complaint that she made when she was 10 years old against a boy of 13 years. That complaint related to some touching that she said occurred twice when they were playing together in a swimming pool.  After interviewing both children, the police took no further action on the complaint.  The Crown opposes the application by the defence to have leave to cross-examine the complainant about that earlier complaint.  Leave is required because of the operation of section 4 of the Criminal Law (Sexual Offences) Act 1978 (Qld). 

2. [2]
   In particular, section 4(3) provides:

“The court shall not grant leave under rule 2 unless it is satisfied that the evidence sought to be elicited or led has substantial relevance to the facts in issue or is proper matter for cross-examination as to credit”

3. [3]
   This application has proceeded on the basis that the cross-examination proposed by the defendant is a proper matter for cross-examination as to credit. 

4. [4]
   The Crown argued the defence has not identified what evidence is sought to be elicited, what special circumstances are said to exist or how such evidence would be likely to materially impair confidence in the reliability of the complainant’s evidence. There is force in those submissions and I have decided that I will decline the defence application for leave to cross-examine. I have assumed, in doing so, that the evidence that the defence seeks to elicit from the complainant is that she made an allegation about something that did not happen.  As I indicated earlier, it is led in order to go to the credit of the complainant.  That raises a collateral issue and the question for me is whether, because of special circumstances, the court considers the evidence likely to materially impair the jurors’ confidence in the reliability of the complainant’s evidence.^[1]

5. [5]
   Whether special circumstances exist and whether evidence is likely to materially impair confidence in the reliability of the complainant’s account involves judgments being made on the basis of facts concerning which the right to cross-examine is sought.^[2] 

6. [6]
   In answering the question, there are two distinct but related questions. The first question is what evidence is there or what basis is there for concluding that the complaint may well be false. It is common ground that the evidence of the officer’s opinion cannot be led at trial were leave granted to cross-examine the complainant about this matter. It is his opinion only. 

7. [7]
   However, defence counsel, in arguing that there is a foundation for suggesting the allegations were fabricated, relies on the opinion of the officer. I reject that. In particular, the basis argued in defence counsel’s written submissions at paragraphs 21(a), (b), (c) and (d) falls against that test. In effect, the defence is asking me to accept and act on the officer’s opinion as evidence to suggest the falsity of the complaint. I reject that is a proper way to deal with the matter. 

8. [8]
   The police officer formed whatever opinion he did on the only material that he had available to him. The difference between the police officer’s situation and the court’s situation in assessing the veracity of the complaint is limited. The police officer had the opportunity of seeing both children speak about the allegations in person and I don’t have that luxury. Otherwise, the only material that is different is a missing note. The note was written by the complainant and provided to the police during the earlier investigation. There’s no suggestion, though, in the material before the court, that the note had any real bearing on the police officer’s opinion. It’s not referred to in the transcripts of the interviews with the children in any way that might suggest that it was inconsistent or that it was somehow else significant. The court is left in a position that there is no evidence about the contents of that note and its significance seems uncertain, if, indeed, it had any significance at all. 

9. [9]
   This court is in as good a position as the officer to assess the remaining matter relied upon by the defence, which is inconsistencies. It seems that defence points to two types of inconsistencies. The first are internal inconsistencies in the girl’s account. The police officer described the inconsistencies in the complainant’s account in his outcome report as slight. I think that is a fair assessment. The other sort of inconsistency is the inconsistency between the girl’s account of how she made the complaint to her mother and in what circumstances and the mother’s account about that. 

10. [10]
    The court is in a similar position to that of the court in R v Tribe [2001] QCA 206. That is, there is no basis upon which to draw any conclusion from any inconsistency relied upon. In any case, some inconsistency is to be expected in the accounts between the complainant and a preliminary complaint witness. 

11. [11]
    I place little weight on the argument that the complainant had a motivation to fabricate the complaint. I’m not persuaded on the evidence before me that there is a real basis for concluding that the earlier complaint was, indeed, false. 

12. [12]
    The second and related issue is how would the evidence elicited from the complainant materially impair confidence of the jury in that witness. A relevant factor is that the earlier complaint was made two years before the current complaint when the child was only 10 years old.^[3] 

13. [13]
    There is very limited scope in cross-examination as to credit. Were Mr Selfridge given leave to cross-examine the complainant about this matter, if she denied the complaint was false, the matter would rest there.^[4] I don’t consider that would materially impair the jurors’ view of the complainant’s credibility. 

14. [14]
    The final matter I’ve taken into account is the difference in time, place and circumstances between the two complaints.^[5] The defence has suggested that there is some similarity in that both relate to non-consensual touching to the vaginal area and of the breasts. Defence also relies upon a description by the complainant that the suspects had pushed hard against her vaginal area. 

15. [15]
    I accept, however, the Crown’s submissions on this point. The earlier complaint bears virtually no similarity to the allegation the subject of this proceeding. She was a 10 year old girl, complaining about a 13 year old boy who lived in the same residential complex. They were playing games you would expect children of that age to play in a swimming pool area. The allegations involved touching on the outside of her swimming costume and an attempt to pull down her swimming costume bottoms. 

16. [16]
    This complaint before the court now involves a very different type of suspect. It is the complainant’s adult stepfather while she was under his care in the family home. The version given by the complainant describes her asking him a question about pregnancy in light of a television program they were watching and that, in response, the defendant sexualised the conversation. 

17. [17]
    Afterwards, she alleged, he committed the offences. They are different in material respects to the offences alleged against the 13 year old boy. The allegations against her step-father include an attempt to tongue kiss her and touch her genitals underneath her clothes and penetration of the labia. At the time, she allleged the defendant had been drinking. 

18. [18]
    I decline the defence application for leave to cross-examine the complainant about her earlier complaint.