R v JM[2013] QDC 336

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The defendant is charged with one count of indecent treatment of a child under 16, under 12. This offence is alleged to have occurred on 3 November 2009 at Rockhampton.

2. [2]
   This is an application by the Crown pursuant to s 21AN of the Evidence Act 1977 (Q) for an order that the affected child witness [HN], who will turn 10 on 27 April 2013, be recalled to give further evidence.

3. [3]
   The Crown’s submission is that by reason of the decision in R v MBT [2012] QCA 343 there was an error in the taking of the complainant’s evidence.

4. [4]
   The question to be determined on this application is whether it is in the interests of justice to permit the complainant to be recalled.

93A statement

5. [5]
   The complainant provided a s 93A statement on 29 December 2009.

6. [6]
   In the 93A statement, the complainant said that she was six years of age (5.50).

7. [7]
   She was in grade 2 at school (6.3).

8. [8]
   She said that she had an aunty – Aunty [JM] (11.22).

9. [9]
   She said that Aunty [JM] was mean to Mummy, Daddy, her younger brother [L] and to her (11.30-40).

10. [10]
    She was asked to tell the police more about Aunty [JM] being mean to her and [L] (15.55) and the complainant said “it was a long, long time ago.” She was asked:

“Question: And tell me more about what happened a long, long time ago.

Answer I don’t – I can’t – I don’t know.” (16.10).

11. [11]
    The police officer then asked:

“Question: I was told that Aunty [JM] took a photo or did some drawing on you a little while ago.

Answer:  Yeah.

Question: Can you tell me more about that?

Answer: Um, she drawed on my bottom.

Question: Drawed on your bottom?  Tell me more about that.

Answer: With lipstick

Question: With lipstick?

Answer:  And, um, and draw [indistinct] and she made that as a mark so she could [indistinct] a carrot and that’s all.

Question:  So she drew on your bottom with lipstick?

Answer:  Mmm-hmm.

Question:  Tell me more about her drawing on your bottom with lipstick.

Answer:  It was her lipstick.

Question:  Her lipstick?

Answer:  And that’s all I know.

Question:  How did she draw on your bottom with lipstick?

Answer:  Facing the wall and looking out the window.

Question:  Where was that?  Which window are we talking about?

Answer:  My window.

Question: On your bedroom?  Is this at your house?

Answer: Mmm.

Question:  So you’re facing the wall and looking out the window at your bedroom window?

Answer:  Mmm-hmm.

Question:  And what happened then?

Answer:  I don’t – um, I can’t remember ‘cause it was a long time ago.

Question:  Oh, that was a long time ago. But you remember her drawing on your bottom with lipstick?

Answer:  Mmm-hmm.

Question:  And how did she draw on your bottom with lipstick?

Answer:  I was facing the window.

Question:  Yeah.

Answer:  And then she told me to um face the window.

Question:  Mmm

Answer:  And that’s what I had to do.

Question:  She told you to face the window, yeah, and what happened then?

Answer:  I’m not sure.

Question:  Not sure. Can you tell me what you were wearing?

Answer:  My school uniform.”  (16-17)

12. [12]
    She later was asked:

“Question: How did she get to draw on your bottom if you had your skirt on?

Answer: Because um she told me to put my pants down.

Question: Oh, she told you to put your pants down?  Now, what pants- What are we talking about?  Your skirt?  Your skirt, okay.

Answer: Mmm.

Question: And, what, do you wear anything underneath your skirt?

Answer: Knickers.

Question: Knickers. Do you remember what colour your knickers were?

Answer: Mmm.

Question: No, okay. So you were standing facing the wall and looking out the window and Aunty [JM] told you to pull your pants down, so you pulled down your skirt. And what about your knickers?

Answer: Mmm.

Question: And your knickers, okay. And what – when you pulled them down, what did you do with them?

Answer: Ah, I went to and when I was there I bring them to [indistinct] and then, um, I went to the toy cupboard and I went to [indistinct] and then she told me to do that … and then she told me to come over, face the window, and then she put lipstick on my bottom.

Question: Mmm-hmm.

Answer: And then she threw a carrot.

Question: So she threw a carrot?

Answer: Yes and she wanted that to be – um, um, what’s that thing that goes like twirly and red stripe and white stripe?

Question: Twirly with red and white stripes. What do you think that might be, Michelle?

CONST GARVEY:  Like a marker like a-----

CONST MITCHELL:  Twirly with red and white stripes.

CONST GARVEY:  Like a board that you throw stuff on it.

CONST MITCHELL:  Oh, like a dartboard or something.

CONST GARVEY:  Dartboard.

CONST MITCHELL:  Is that what you mean?  Oh, okay. So when you say that Aunty [JM] was drawing on your bottom, is that what – is that what she said to you?

Answer:  Yes.”  (18-19).

13. [13]
    She later described the marker as being twirly which goes in a wall and little pins are thrown at it (20.1-10).

14. [14]
    She later said that the accused had thrown carrot pieces which hit her bottom (21.45).

15. [15]
    She said that the lipstick was later washed off in the bath (22.10).

Pre-recording

16. [16]
    The pre-recording of her evidence occurred on 7 February 2012 in the Rockhampton District Court.

17. [17]
    It is important to set out what occurred at the start of her evidence (T1-3):

“His Honour: Mr O'Connor the child, you say, is 8 years of age; she is capable of taking an oath?

Mr O'Connor: Yes, Your Honour. She’s indicated she will to swear on the bible.

His Honour: Mmm. All right.

Mr O'Connor: And, Your Honour, pursuant to s 9 ‘any person, including a child, is presumed to be competent to be giving evidence.’  However, it is for Your Honour to satisfy yourself that she is capable of understanding the obligation of telling the truth.

His Honour: Mmm.

Mr O'Connor: Your Honour in my discussions with her she seems an intelligent 8 year old, however, it’s a matter for Your Honour.

His Honour: Yes.

Mr O'Connor: In my respectful submission Your Honour would have no difficulty in satisfying yourself.

His Honour: Yes. All right. I’ll just have a look at s 9 again. Yes. Well, you’re satisfied that from your conference with her that she understands the nature of the oath, and also understands the importance of giving truthful evidence?

Mr O'Connor: Yes, Your Honour.

His Honour: Yes. I’ll just – I might impress upon her, after she has been sworn, the necessity to be truthful when giving evidence.

Mr O'Connor: Yes, Your Honour.”

18. [18]
    It was after this point that [HN] was sworn.

19. [19]
    After she was sworn the learned Judge stated (T1-4):

“[HN], this is the Judge speaking. You understand what it means to tell the truth, do you? 

Answer:  Yes.

Question: You understand what it means also to tell a lie?

Answer:  Yes.

Question: If I said to you that you are wearing a yellow shirt, would that be the truth or a lie?

Answer:  Lie.

Question: Yes. And you understand that the things you are going to be asked about today are very serious matters and that it’s very important for you to tell the truth?

Answer:  Yes.

Question: All right. Yes, Mr O'Connor.”

20. [20]
    Mr Murray, defence counsel in cross-examination asked further questions about the oath at page 1-5.40:

“Mr Murray

Question: [HN] can you see me yet?

Answer:  Yes.

Question: Ok. You took an oath on the bible a little while ago. It’s called an oath. Did you know that it’s called an oath?

Answer: Yes.

Question: What does it mean?

Answer: It means that I have to tell the truth no matter what.

Question: And what happens if you don’t?

Answer:  I’m not sure.

Question: You’re not sure. Do you go to Sunday school or church?

Answer: No.

Question: Do you know what God is?

Answer: Yes.

Question: What?

Answer: He is a person that made the earth, and who loves us and takes care of, takes care of the earth and takes care of us.

Question: What happens, do you think – or, do you know what happens if you tell a lie in Court?

Answer: No.

Question; Hmm hmm, do you know that you could get into trouble if you tell a lie in Court?

Answer: Yes I do know that I.

Question: All right.

Answer: I could get into trouble if I told a lie.

Question: Yes. What if you – what about if you tell a lie?  What’ll happen to you later on?  Do you know – do you think that anything might happen to you later on, not only when…”

21. [21]
    At this stage the Prosecutor objected but further questions were allowed (T1-6.35):

“Mr Murray

Question: So, do you know whether anything else will happen to you, as far as God’s concerned, if you tell a lie?

Answer: I’ll get punished.

Question: By whom?

Answer: By God himself.

Question: When you die?

Answer: I’m not sure.”

22. [22]
    After the initial questions to which I have referred above, she said that she did not recall going to the police station and speaking to some police (T1-7.30).

23. [23]
    It was then put to her (T1-7.30-40):

“Question: Is it correct for me to say to you that you don’t remember what you said to the police either?

Answer: I remember one thing.

Question: Tell us what that thing is.

Answer: That Aunty [JM] made, like, one of those dart thingies …”

24. [24]
    She then said that she recalled telling the police about Aunty [JM] drawing something on her (T1-8.15). It was Aunty [JM] who got her lipstick and drew carrots (T1-8.20). She said, “I don’t know how – how I remember how she drew on me.” (T1-8.25).

25. [25]
    She said that [C] had hopped out of the shower and taken a photo (T1-8.42).

26. [26]
    She agreed she didn’t tell the police that [C] had taken a photo (T1-8.45).

27. [27]
    She knew there were problems in 2009 between her mother, dad and Aunty [JM] because Aunty [JM] was going to go to the police and tell on her dad (T1-9.10-20).

28. [28]
    She denied that her mother told her that Aunty [JM] did certain things (T1-13.35). She denied that she had been told by [C] that Aunty [JM] used lipstick, throwing of the carrots and about the photograph (T1-13.30-40).

29. [29]
    She said she did not remember the incident about the writing or about the photo (T1-13.55).

30. [30]
    She could not recall any of what was in the recorded statement with the police (T1‑14.20).

31. [31]
    She could not say that Aunty [JM] did anything to her (T1-14.25).

32. [32]
    She later said that she did not know what happened (T1.18.45).

33. [33]
    In re-examination, it was asked whether or not she remembered the incident of the drawing and the throwing of the carrots, and did not really recall this (T1-20.42).

Affidavit of Mr O'Connor

34. [34]
    Mr O'Connor, the Prosecutor, has provided an affidavit sworn 4 April 2013 which was read with the consent of both parties.

35. [35]
    In the affidavit he says that he does not have an independent recollection of the conference with [HN].

36. [36]
    In it he sets out what he says was his usual practice at the time.

37. [37]
    He does not specifically mention s 9 of the Evidence Act. At the pre-recording he specifically mentioned s 9 and he confirmed that the witness understood the need to give truthful evidence.

Prosecution submissions  

38. [38]
    The prosecution submission in this matter is that an issue as to competence was raised by both the Prosecutor and by the Trial Judge. The prosecution submits that the witness was sworn prior to sufficient investigations as to competence under s 9B(2) of the Evidence Act.

39. [39]
    It is accepted by the parties that the defence did not raise any issue as to competence.

40. [40]
    In further written submissions dated 5 April 2013, the Crown submitted:

1. (a)
   The failure to apply the correct test under sections 9A or 9B is a fundamental irregularity.

2. (b)
   A pre-recording irregularly conducted is not admissible at the trial.

3. (c)
   That where a pre-recording has not been conducted according to law the interests of justice will always require the re-conducting of the pre-recording.

4. (d)
   While the strength of the Crown case may be relevant, where the pre-recording is irregularly conducted the strength of the case is not a weighty consideration if not irrelevant.

5. (e)
   Indeed in every case where the pre-recording has not been conducted according to law the strength of the case is not relevant. 

41. [41]
    The defence submission on the other hand is that no issue was raised as to competence but even if an issue was raised initially as to competence by either the Prosecutor or the Trial Judge, the issue was “put to bed” prior to the swearing of the witness and as a result the evidence was properly taken.

42. [42]
    It is further submitted that it would not be in the interests of justice in the circumstances for a further pre-recording to occur.

Relevant sections

43. [43]
    Section 9 of the Evidence Act provides:

“9 Presumption as to competency

3. (1)
   Every person, including a child, is presumed to be—

1. (a)
   competent to give evidence in a proceeding; and

2. (b)
   competent to give evidence in a proceeding on oath.

3. (2)
   Subsection (1) is subject to this division.”

44. [44]
    Section 9B provides:

“9B Competency to give sworn evidence

3. (1)
   This section applies if, in a particular case, an issue is raised, by a party to the proceeding or the court, about the competency of a person called as a witness in the proceeding to give evidence on oath.

3. (2)
   The person is competent to give evidence in the proceeding on oath if, in the court’s opinion, the person understands that—

1. (a)
   the giving of evidence is a serious matter; and

2. (b)
   in giving evidence, he or she has an obligation to tell the truth that is over and above the ordinary duty to tell the truth.

3. (3)
   If the person is competent to give evidence in the proceeding but is not competent to give the evidence on oath, the court must explain to the person the duty of speaking the truth.”

45. [45]
    Section 21AN provides:

“21AN Giving of further evidence

3. (1)
   This section applies if the affected child has given evidence under this subdivision for a proceeding and has been excused from further attendance as a witness at the proceeding.

3. (2)
   A party may apply to the court for an order that the child—

1. (a)
   give further evidence under this subdivision at another preliminary hearing; or

2. (b)
   attend at the proceeding to give further evidence.

3. (3)
   The court must not make the order unless satisfied that—

1. (a)
   if the child were giving evidence before a court in the ordinary way, the child could be recalled to give further evidence; and

2. (b)
   it would be in the interests of justice to make the order.

3. (4)
   The court must not make an order that the child attend at the proceeding to give further evidence unless satisfied it is not possible or not practical for the child to give the further evidence at another preliminary hearing.”

Findings

46. [46]
    In this case, in my opinion, whilst the Prosecutor told the Judge that it was for the Court to satisfy itself that the child was capable of understanding the obligation of telling the truth, the Court was assured by the Prosecutor that:

1. (a)
   The child was capable of taking an oath and was willing to swear on the bible (1-3.15);

2. (b)
   In its discussions with the complainant she seemed to be an intelligent 8 year old (1-3.30);

3. (c)
   The complainant understood the nature of the oath and understood the importance of giving truthful evidence (1-3.42).

47. [47]
    This assurance by the Prosecutor was accepted by the Judge (1-3.45).

48. [48]
    It is my respectful opinion that in reality no issue as to competence was raised. But even if I am wrong about this, it is my judgment that the issue of competence was no longer an issue by the time of the administration of the oath.

49. [49]
    The prosecution had given the Court an assurance of relevant matters which was accepted by the Court.

50. [50]
    In those circumstances, in my opinion, it was not necessary for the Trial Judge to go further.

51. [51]
    In any event and weighing up the interests of justice, in my opinion the matters raised by defence counsel clearly showed that the complainant understood (more so than many witnesses) of the importance of the oath.

52. [52]
    She also understood she could get into trouble if she told lies.

53. [53]
    It is my opinion that the pre-recording was validly conducted and the evidence was taken according to law.

54. [54]
    In those circumstances it is my opinion that there is no need to conduct a further pre-recording in this case.

Other cases

55. [55]
    In R v MBT [2012] QCA 343 the Court of Appeal considered a situation where the complainant was 4 years old. The Trial Judge asked whether he could simply accept the expert’s opinion as to competency. There was no demur from the prosecution or the defence.

56. [56]
    The Prosecutor had not canvassed the taking of the oath with A. He conferred with her and simply said that the witness would take an affirmation. Unlike the instant case the Prosecutor did not assure the court of the witness’ capacity to take the affirmation.

57. [57]
    The inquiries were left to the Trial Judge to conduct. It was found by the Court they were insufficiently conducted.

58. [58]
    In those circumstances I consider that MBT may be distinguished from the instant case.

59. [59]
    The case of R v Chalmers [2011] QCA 134 was also relied on by the Crown. However in that case Chesterman JA at [42] noted:  “It is not clear that any of the trial judge, Prosecutor or defence counsel were aware of the relevant provisions of the Evidence Act.”  His Honour also noted at [49] that:

“It may not in every case be necessary for the trial judge himself or herself to undertake an inquiry as to competence though it is the usual responsibility of the trial judge to determine whether a witness is competent…

[50] What happened in this case gives no basis for thinking that the concessions made by counsel, or the assumption made by the judge, were based upon the statutory test of competence.”

60. [60]
    Again I consider Chalmers may be distinguished from the present case.

61. [61]
    The case of R v BBR [2009] QCA 178 was also relied on by the Crown.

62. [62]
    In BBR no assurance was given by the Prosecutor that the child understood the relevant matters. The questions asked by the Judge are set out at [13]. They did not canvass the relevant matters.

63. [63]
    Again I consider BBR to be different from the present case.

Order

64. [64]
    I find it has not been established it is in the interests of justice to permit a further pre-recording.

65. [65]
    I therefore dismiss the application.