R v GVM (No. 2)[2013] QDC 70

DISTRICT COURT OF QUEENSLAND

1. [1]
   GVM faces a single count indictment charging him with indecent dealing with a child under 12 who is his lineal descendant.  The complainant is his daughter, FYZ. On 3 April 2013, I made a ruling that evidence obtained from the child through a s 93A statement given to the police and a subsequent pre-recording in this Court was inadmissible. Consequently, prosecution and defence made competing applications in relation to the indictment. The prosecution sought pre-trial rulings about evidence for the trial. The defence sought an order to permanently stay the indictment. For the reasons that follow, I decline the application to stay the indictment and have listed the matter for mention so that orders may be made to pre-record evidence from the complainant at a preliminary hearing.

1.Should I stay the indictment?

2. [2]
   Counsel for the defence submitted that it was in the interests of justice for the Court to permanently stay the indictment because the prosecution failed to fulfil its disclosure obligations; because it provided particulars which embarrass the accused in his defence; and because the prosecution has no reasonable proof of evidence on which it might sustain the charge.

3. [3]
   He argued it was necessary for the Court to intervene because the prosecution had indicated it would not take what he submitted was the proper course, given my rulings in relation to the complainant’s evidence. That is, he argued, the prosecution should enter a nolle prosequi on this indictment, obtain a further s 93A statement and, on that statement, consider whether there is sufficient basis for proceeding against the defendant.

(a) Non-disclosure by the prosecution

4. [4]
   The Prosecution bears an ongoing obligation to provide full and early disclosure of all things…that would tend to help the case for the accused person.^[1]Disclosure must occur as soon as practicableafter the thing comes into the prosecution’s possession.^[2]The Guidelines of the Director of Public Prosecutions^[3]provide the obligation to disclose includes statements, including those made during a conference, which are inconsistent in a material way with a witness’s previous evidence.

5. [5]
   Defence counsel argued the prosecution had failed to fulfil those obligations when it failed to disclose a file note of a conference between the prosecutor and the complainant and her mother. The conference occurred the day before the complainant’s evidence was pre-recorded. It was not disclosed until after I heard and determined the defence application to exclude the complainant’s evidence. It was only disclosed after defence counsel made a specific request for the prosecution to disclose all file notes of any conferences with mother or daughter and details of any conferences with either at which file notes were not taken. It hardly needs observing that the disclosure obligation is a positive one that does not depend on specific enquiry or demand.

6. [6]
   Defence counsel relied on the following extracts from the file note as being things that would tend to help the case for the accused:

“(a)[FYZ] told the prosecutor “that she was touched on the bumb (sic) by here (sic) daddy”

(b)[FYZ] told the prosecutor “her mother and her brother were in the room when she was touched by her dad” and by reference to a photograph, “showed [the prosecutor] where [GVM] was, her brother and her mother”

(c)[FYZ] “agreed that the clothes in the photographs were hers”

(d)[FYZ] seemed to not “really understand” negative propositions being put to her by the prosecutor

(e)[The mother] told the prosecutor she “heard the snap of [FYZ]’s pants and heard [FYZ] saying ‘no daddy no’. When [the mother] awoke she started swearing and GVM jumped out of bed. FYZ (sic) grabbed my hand and was very scared.

(f)[The mother] told the prosecutor she “asked [FYZ] what [GVM] had done to her and [FYZ] told her that daddy had touched her on her boobies and private parts.”^[4]

7. [7]
   In her statement to the police, the mother described seeing the defendant’s hand emerging from the child’s clothing. During the conference, she described waking to a sound and did not relate seeing anything of relevance. The difference in that account is obvious.

8. [8]
   In her s 93A statement, the complainant daughter told the police the defendant did not touch her on her bottom. This was directly contradicted by her inconsistent statement in her conference with the prosecutor. Her subsequent cross-examination proceeded without defence counsel being aware of that change in detail. The child gave the police a different description about who was in the bed with her when the offence was said to have occurred. She also gave the police a description of the clothes she was wearing which differed from the clothing depicted in the photograph shown to her during the conference.

9. [9]
   The practice of conferencing a child complainant before pre-recording has been the subject of judicial criticism in the past. In R v TAM (No 2)^[5]his Honour Judge Durward called for the practice to be seriously reconsidered, given the specific protective legislative regime in place for taking evidence from children. Drawing upon the explanatory notes for the relevant provisions,^[6]his Honour expressed the view 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.^[7]Respectfully, I adopt Judge Durward’s careful analysis and agree with his observations.  The inherent dangers in the practice were realised in this case.

10. [10]
    The prosecutor conceded defence counsel should be afforded an opportunity to further cross-examine the child, given the statements recorded in the file note, but sought to minimise the significance of the non-disclosure. She argued the inconsistency related to only one aspect of the child’s evidence (whether she was touched on the bottom) and did not detract from the rest of the complainant’s evidence. That attempt to minimise the non-disclosure cannot pass without comment.

11. [11]
    The obligations of the prosecution under s 590AB of the Criminal Code are of fundamental importance to a fair trial of a charge on indictment.^[8]The Court cannot ignore even a relatively slim possibility that the defence has been forensically disadvantaged by the non-disclosure.^[9]

12. [12]
    The prosecution offered no explanation for its non-disclosure. The defence argued its application to exclude the complainant’s evidence, and I ruled upon it, in ignorance of this significant non-disclosure. Had the file note been disclosed at or before the hearing, it could well have founded an alternative basis for excluding the pre-recorded evidence. Given that, it is surprising that the prosecutor sought to re-open my ruling to exclude the pre-recorded evidence.

13. [13]
    In fairness to counsel who argued that initial application, I have no reason to believe that he, personally, was aware of the non-disclosure when he appeared before me, and I mean no criticism of him by these comments.

(b) the particulars

14. [14]
    Counsel for the defence argued his client was embarrassed in his defence because he did not know what case he had to meet. The prosecution, he submitted, had particularised its case by reference to only some of the evidence to hand, by choosing not to proceed upon the allegation that the defendant touched the complainant on her bottom.

15. [15]
    A defendant is entitled to sufficient particulars to enable him to know the case he must meet.^[10]Here the occasion is clearly identified, the argument relates to which parts of her body the complainant alleges the defendant touched.

16. [16]
    In cases involving indecent dealing, it is not unusual for a complainant to give some different details of an offence during the course of giving evidence. That does not necessarily mean that the particulars were deficient or that the defendant is embarrassed in his defence.

17. [17]
    This case is distinguishable from the circumstances that led the Court to stay the indictment in Povey v The Queen^[11], a case relied upon by the defence in support of its application. In that case, the complainant alleged penile penetration on a number of occasions. The prosecution conceded, however, that medical evidence established penetration did not occur. In response to the medical evidence, the prosecution particularised the offending conduct as the defendant placing his penis at the entrance to the complainant’s vagina. That directly conflicted with the complainant’s consistent and unequivocal account that penetration had taken place. The Court stayed the indictment because, in order to convict, the jury would be required to act on a speculative and preferred view of the facts, which was unsupported by any evidence and unequivocally rejected by the central prosecution witness.

18. [18]
    That is not the case here. The particulars reflect the complainant’s s 93A statement and, also, her pre-recorded evidence.^[12]In both, she said the defendant did not touch her on her bottom.

19. [19]
    Defence counsel complained that, in not amending the particulars to reflect the inconsistent disclosure made in conference, the prosecution had chosen its preferred view of the evidence and failed to act on all of the evidence available to it.

20. [20]
    In my view, this is substantially a matter of non-disclosure, rather than inadequate particulars. The real complaint is that, because of the non-disclosure, the defendant had no notice that the complainant had said anything materially different to the allegations in the s 93A statement from which the particulars were derived. In the absence of disclosure, the defence was misled, not about what the prosecution case was, but about whether the complainant had ever said anything that was inconsistent with her initial complaint.

(c) the absence of a proof of evidence

21. [21]
    Finally defence counsel asserted the prosecution could have no confidence as to what its case might be, because it had no reasonable proof of evidence available to it to sustain the trial charge, only a hope that it will have a case once further evidence is taken.

22. [22]
    The prosecutor relied on the complainant’s pre-recorded evidence which included a clear allegation of indecent touching. Defence counsel argued that evidence was tainted (and excluded) because it was based on the s 93A statement which was replayed to the child during conference. I accept that submission.

23. [23]
    However, there is other evidence of the allegation, and that comes from the mother. She gave police a statement in which she said she observed the defendant pulling his hand out from her daughter’s clothing. Although there is an apparent inconsistency arising out of her conference with the prosecutor, taking the Crown case at its highest, there is evidence of a touching.

24. [24]
    The Court’s discretionary power to stay a criminal prosecution will only be exercised in exceptional circumstances.^[13]There are two broad reasons why this is so. Firstly, it is not the function of the judicial arm to decide whether a citizen should be prosecuted. Secondly, the jurisdiction is residual, to be exercised only when other legal safeguards to secure a right of an accused to a fair trial will be ineffective.^[14]

25. [25]
    The factors that must be weighed in the balance on a stay application include fairness to the accused; the public interest in disposing of charges of serious offences; and the need to maintain confidence in the administration of justice.^[15]

26. [26]
    Importantly, defence counsel has not argued the prosecution should be prevented from presenting any future indictment based on the alleged event. Nor did counsel argue that the complainant’s evidence would be so tainted by the process of giving and then watching her recorded police interview that she could not give untainted evidence.

27. [27]
    Although worthy of censure, because of the stage at which it has come to light, the prosecution’s non-disclosure can be remedied. Unlike those cases in which the non-disclosure was not apparent until after trial (and conviction), this non-disclosure has come to light prior to a jury hearing any evidence from the complainant. It is distinguishable from R v HUA in which the Court had to consider whether the appellant had suffered a material disadvantage in losing the opportunity to cross-examine the complainant about matters not disclosed during the trial.

28. [28]
    The effect of my ruling on 3 April 2013 is that the prosecution must consider how, if it wishes to proceed, it might obtain further evidence from the complainant. If there is a proper means by which the prosecution can adduce further evidence from the complainant on this indictment, the non-disclosure, and any unfairness to the defendant, occasioned by losing an opportunity to cross-examine on the matters not disclosed, can be remedied by the same process.

29. [29]
    Although the prosecutor took no issue with the timing of the application to exclude the evidence, which was appropriate given its importance, that does not mean the stage at which evidence is excluded has no relevance to any consequential decision the Court must make. I have taken into account the stage at which the issue has arisen in deciding whether I should stay the indictment.

30. [30]
    It is now almost a year after the event and the complainant is a young child; she was a little over 5 years old at the time of the alleged offence, and is now 6. If the indictment is not stayed, her evidence will be elicited by legal representatives and under judicial supervision. This will ameliorate the risk of improper questioning or suggestion. Further, it will be most convenient to the complainant and less traumatic for her, to give all of her evidence at a preliminary hearing.

31. [31]
    Certainly the accused is entitled to know the case to be met. Although the complainant’s evidence in its current form has been excluded, he knows the substance of the allegation. The defendant knows the date, place, approximate time and circumstances in which he is alleged to have inappropriately touched the complainant. The complainant’s inconsistency about precisely which parts of her body were touched does not mean the defendant is embarrassed in his defence.

32. [32]
    For reasons given later, I am satisfied that the procedure for taking evidence from the complainant in a preliminary hearing under s 21AK of the Evidence Act 1977 applies. Before a jury is empanelled for the trial, there will be a recording of the complainant’s evidence. Although the next preliminary hearing will commence without prosecution or defence having a formal statement from the complainant, steps can be taken to ensure a fair hearing.

33. [33]
    Firstly, I expect that the prosecution will not conference the complainant before the preliminary hearing, given my observations about that process. The s 93A statement and the pre-recorded evidence having been excluded, it would be improper to use them to refresh the complainant’s memory.

34. [34]
    Secondly, the preliminary hearing enables the Court to conduct both a voir dire and to capture evidence for the trial, if it does proceed, because it takes place in the absence of the jury. Orders can be made in advance of the preliminary hearing to ensure the parties have an opportunity to consider their positions and obtain instructions, once evidence in chief has been given. That will allow argument about whether there is a case to answer as well as afford defence counsel the opportunity to obtain instructions before cross-examining, if the matter is to proceed.

35. [35]
    In the unusual circumstances of this case, I am not persuaded that it is in the interests of justice to stay the indictment.

2.Evidence from the complainant?

36. [36]
    The prosecutor requested a number of evidential rulings, in the alternative:

1. (a)
   that I re-open my decision to exclude the pre-recorded evidence of the complainant obtained at a preliminary hearing;
2. (b)
   that I list a preliminary hearing to pre-record evidence of the complainant for the trial; or
3. (c)
   that I rule on the admissibility of a statement made by the complainant’s mother to police as a s 93A statement of the complainant’s allegation.

(a)Should I re-open my ruling on the pre-recorded evidence?

37. [37]
    I decline to re-open my decision of 3 April 2013 to exclude the pre-recorded evidence of the complainant. There is no material change of circumstances that supports the matter being re-opened. The focus of argument at that hearing was on the s 93A statement. However defence counsel expressly applied to exclude both and argument proceeded on the basis that one followed the other.

38. [38]
    I formed the view that the pre-recorded evidence should be excluded because it was predicated on the s 93A statement, which I excluded. My view has not changed. If anything, it is fortified by the material non-disclosure by the prosecution which affected the fairness of the pre-recorded cross-examination.

(b)Should I list a preliminary hearing to take evidence from the complainant?

39. [39]
    I am satisfied that s 21AK applies and that orders should be made for the complainant’s evidence to be taken and recorded at a preliminary hearing. The prosecutor argued that s 21AN applies because evidence has already been given. That section allows the Court to recall a child witness to give further evidence after their evidence has already been recorded at a preliminary hearing. I am not satisfied s 21AN applies. Given my conclusion that s 21AK does apply, it is not necessary to canvass s 21AN further.

40. [40]
    It seems to me that the effect of my ruling on the pre-recorded evidence is that the preliminary hearing at which it was taken is, for the purposes of trial on this indictment, a nullity. It is not a case of recalling the witness to give further evidence. It is a question of whether s 21AK applies when the s 93A statement upon which the defendant was committed for trial has been excluded.

41. [41]
    Unlike a committal hearing, at which the evidence in chief of a child must be presented in statement form,^[16]s 21AK does not make special provision for evidence in chief. The interaction between s 93A and s 21AK is not express. Further, s 21AK does not, by its terms, require there to be an admissible s 93A statement in existence. While the two provisions have the capacity to overlap, there is nothing in the language used in either section to suggest that one excludes or qualifies the other.

42. [42]
    This interpretation sits comfortably with the reasoning of his Honour Justice Hayne in R v Gately. In that case, the High Court accepted that tendering a s 93A statement at trial did not preclude the prosecution from leading further oral evidence from the complainant.^[17]

43. [43]
    I see no basis for reading down s 21AK to prevent the prosecution from presenting the complainant’s evidence in chief in full in this way, in the special circumstances of this matter.

(c)Is the complainant’s mother’s statement to police admissible as a s 93A statement?

44. [44]
    Finally, the prosecutor sought leave to lead a statement made by the complainant’s mother to police about her conversation with her daughter about the alleged offence as a s 93A statement from the complainant, not as preliminary complaint evidence. That application was opposed. It is not necessary to determine the application because of my ruling about taking evidence from the complainant at a preliminary hearing. Nevertheless, I make the following observations in case the question becomes relevant at a later stage in the proceedings.

45. [45]
    If the only evidence of the offence was the statement by the mother to the police recording what her daughter told her, I would not have allowed the matter to proceed further. The statement was not based on notes made by the mother contemporaneously. The document was prepared by the police on the mother’s relating to them of her conversation with her daughter. Although given within hours of that conversation, the mother did not purport to report the conversation verbatim, or even to attempt to do so. Rather, she used equivocal language. She repeatedly said her daughter said “something like” and appeared to paraphrase or attempt to capture the effect of what her daughter said.

46. [46]
    I am not satisfied a statement of that nature qualifies as a s 93A statement of the complainant. Even if it does, given my concerns about the statement and its centrality to the case, I would have exercised the discretion conferred by s 98 of the Evidence Act to exclude it. In my view, it would be inexpedient in the interests of justice to admit a statement in such imprecise terms as a statement going to proof of the allegation against the defendant.

3.Orders

47. [47]
    The application to stay the indictment is refused. The matter is listed for mention so orders may be made to take and record evidence by the complainant in a preliminary hearing.