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- Appeal Determined (QCA)
R v CBM QDC 109
DISTRICT COURT OF QUEENSLAND
R v CBM  QDC 109
Indictment No. 424 of 2012
District court at Townsville
06 May, 2015
14 and 30 April 2015
Durward SC DCJ
CRIMINAL LAW – EVIDENCE – PROCEDURE – WITNESSES – STATUTORY PROVISIONS RELATING TO EVIDENCE OF CHILDREN – whether there are grounds for new or further pre-recordings of complainant child or children – whether the complainant child or children, if giving evidence in the ordinary way, could be recalled to give further evidence – whether the further pre-recordings of complainant child or children are in the interests of justice
CRIMINAL LAW – APPEAL AND NEW TRIAL – SEPARATE TRIALS – where applicant convicted or seven counts of sexual offending against two complainants after jury trial – where the appeal against convictions was allowed and retrial ordered – where ruling was made for separate trials for each complainant – where the focus of the defence case had changed because of the order for separate trials – whether there are grounds for new or further pre-recordings of complainant child or children – whether further pre-recordings of complainant child or children are warranted
Evidence Act 1977 s 21AN.
R v Marshall  QCA 43
AW Collins for the Applicant
J Robson for the Respondent
Legal Aid Queensland for the Applicant
Office of the Director of Public Prosecutions for the Respondent
- The accused (“the applicant”) was committed on and charged with one count of maintaining a sexual relationship with a child, three counts of indecent treatment of a child under 16, under 12, and seven counts of rape. Five of the eleven counts were alleged to have been committed against a child ALV and six of the eleven counts were alleged to have been committed against a child SLC.
- The issues for determination on this pre-trial application are whether there are grounds for new or further pre-recordings of the two children (“the complainants”) in the context of separate trials. They are each Affected Witnesses.
- On 20 December 2013, the applicant was convicted by a jury after a trial of seven of the eleven counts, two in respect of ALV and five in respect of SLC, and acquitted of four counts. On 29 August 2014, a retrial of the seven counts was ordered by the Court of Appeal.
- On 02 March 2015, his Honour Judge Baulch SC ordered separate trials in respect of ALV, on two counts, and SLC, on five counts. His Honour also excluded some medical evidence in respect of SLC, namely a finding on a medical examination of the child of a ‘hymen skin tag’ or ‘hymen notch’ or ‘defect in the hymen’, on the ground that the evidence of the finding had little or no weight.
- The reasons delivered by his Honour are not relevant to the issues I am asked to consider save for the background that I have referred to and the specific medical evidence. The latter has been raised in submissions before me in another context and I will refer to it shortly.
- The offences in this case are alleged to have been committed between 31 March 2008 and 31 March 2009 in the case of ALV, and generally between 26 May 2009 and 01 June 2010 in respect of SLC.
- The section 93A police interviews were conducted on 20 October 2011 and 19 August 2011 in respect of ALV, and 11 October 2011, 13 October 2011, 22 October 2011 and 19 August 2012 in respect of SLC.
- The evidence of ALV was pre-recorded on 24 September 2013. She was then aged 15 years (DOB 11 December 1997). The evidence of SLC was pre-recorded on 01 October 2013. She was then aged 14 years (DOB 29 April 1999). The hearing in respect of ALV was just over one hour in duration, including formal matters. The hearing in respect of SLC was about half an hour, including formal matters.
- The trial took place in December 2013. The Court of Appeal ordered a re-trial on 29 August 2014.
The section 93A recorded police interviews
- There were several section 93A recorded police interviews with the complainants. Counsel have very sensibly agreed on an editing of those interviews, save for one matter that I was asked to rule on and in respect of which I ruled to exclude it. The reasons do not need to be discussed in this judgment, which concerns the substantive issue of whether there should be new or further pre-recordings of the evidence of each complainant, one of whom - ALV - attains the age of 18 years in late 2015.
The pre-recordings of evidence
- Mr Collins submitted that both pre-recordings, where he was counsel for the accused, were conducted on the basis that there would be a joint trial involving both complainants and that evidence about the facts and circumstances concerning one complainant was relevant in respect of the other complainant and vice versa. He submitted that a strategic decision was made as to the form, focus and content of the questions asked by him in the pre-recordings.
- He submitted that the complexion of the prosecution case had now changed by the recent ruling and the course previously adopted was no longer relevant or indeed viable. Further, it was not sufficient to simply edit the pre-recordings, he submitted, because the focus of the defence case has changed now that there are to be separate trials. Collusion between the two complainants was one significant matter in the evidence that is now not likely to be pursued. There were also questions asked and evidence given in respect of the counts upon which the jury returned not guilty verdicts.
- Mr Robson submitted that the requirements of section 21AN (3) of the Evidence Act 1977 (“the Act”) were critical and could not be satisfied on this application.
- The section provides as follows:
“21AN GIVING OF FURTHER EVIDENCE
- (1)The 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.
[I interpose this observation: that that is what occurred here in respect of both affected witnesses.]
- (2)A party may apply to the Court for an order that the child:
(a)give further evidence under this subdivision at another preliminary hearing; or
(b)attend at the proceeding to give further evidence.
- (3)The Court must not make an order unless satisfied that:
(a)if the child were giving evidence before a Court in the ordinary way, the child could be recalled to give further evidence; and
(b)it would be in the interests of justice to make the order.”
[I do not need to refer to subsection (4)].
- Mr Robson submitted further that Mr Collins had not disclosed what evidence would be led that was not already dealt with in the existing pre-recordings and that he should state what it is to be. He submitted that should he not do so then, in effect, I could not be satisfied of the need for further pre-recordings to be conducted.
- Mr Collins submitted that there was no obligation on the defence to disclose its hand and no need so to do. The inference in his submission is that the issue was so plain in the circumstances of this case that the application should be granted.
- In the course of submissions, I raised the option of the existing pre-recordings being edited and further pre-recordings being conducted on the matters upon which the defence was now focused in the context of there now being two separate trials. At the conclusion of the hearing, this option, it seemed to me, was favoured by counsel provided that I was to determine the application on the basis that further pre-recordings were necessary.
- I have read transcripts of the existing pre-recordings with the proposed editing highlighted on each. There are questions and answers made in these pre-recordings that have been edited out, of necessity because of the separation of the trials. That ruling itself has the effect of disrupting the flow of the questioning. However, that alone would not warrant granting the application because editing is often made and for many reasons.
- Mr Collins submitted that the questioning of each of the complainants would have been conducted differently had there been separate indictments and separate trials with respect to each of them in the first place. Inferentially, he submitted that - in an holistic sense - the forensic approach to the questioning would have been focused on other matters than was the focus in the existing pre-recordings. For example, the conduct of the pre-recordings and its focus on collusion between the complainants would not have been pursued but for the joinder of the complainants and the charges in respect of each of them.
- He also submitted, in relation to SLC, that a new matter of more peripheral substance has since arisen.
- There is no evidence that either child is unable or unavailable to give further evidence. Each is now more mature in age. ALV is 17 years. SLC is 16 years.
- The Court of Appeal has considered applications of this nature, made pursuant to section 21AN of the Act, in R v Marshall  QCA 43
- The Court there refused an application to conduct further pre-recordings, essentially because the applications were predicated on there being a different opinion by successive counsel about how they should have been conducted and the issues that should have been canvassed. A new counsel had been engaged after two previous trials. The matter was about to proceed on a further retrial. A significant period of time had also elapsed between the relevant recordings and the hearing of the applications.
- Keane JA, as he then was, wrote the following at :
“The learned trial judge then made the following ruling:
‘On a review of the submissions made, I am not satisfied that it would be in the interests of justice to make the order sought for the following reasons: firstly, different counsel adopt different forensic tactics in the cross-examination of witnesses, particularly in sensitive matters where the complainants are children and the fact that the original counsel may not have cross-examined on issues with particularity does not necessarily mean he was incompetent or defective in his approach to the matter; secondly, and probably very pertinently, the second counsel who appeared on the second trial did not consider it necessary to make such an application, and the fact that the accused was acquitted of a number of charges and the jury undecided on others would tend to indicate that the cross-examination of the complainant child was of some merit and clearly raised a doubt in the jury’s mind which was beneficial to the accused; thirdly, it is now five years since the alleged events occurred, almost four years since the complainant’s section 93A statement, two years and eight months since the committal proceedings and almost two years since the pre-recording hearing.
In addition, there have been two previous trial hearings since that pre-recording hearing.
It would seem to me to be almost oppressive to require the complainant child to be required to give further evidence now when the Defence has had almost two years and two previous trial hearings to consider the matter and literally at the eleventh hour decide to make the application now before the Court. I, therefore, rule accordingly.’”
- It seems to me that his Honour referred to that statement of reasons by the Judge at first instance in the sense of reflecting the proper approach to the facts and circumstances of that case and the decision to dismiss the appeal.
- The first two of the three reasons referred to by his Honour, to which I have made reference, are not reflected in this case. The third reason has some resonance with the circumstances of this case. However, this application arises from two events: firstly, the retrial ordered by the Court of Appeal; and secondly, the separate trials ordered by Judge Baulch SC.
- R v Marshall was a different case from this one and the judgment refusing the application for further pre-recording was, viewed objectively, rightly refused.
- This is not a case where a new barrister has been briefed and has taken a different view of the conduct of the defence from that of his predecessor; nor is it a case where the instructions of the defendant were not put to the complainants in the existing pre-recordings. They were put.
- Despite the time that has elapsed between the section 93A police interviews and the determination of this application - three years and six months in the case of both complainants; and since the last date of the alleged offending - six years and one month in the case of ALV and four years and 11 months in the case of SLC - the pending retrial, which is listed for hearing this month in respect of one of the complainants, is of itself a significant event where separate trials must occur.
- I accept that the forensic strategy of the defence may require, as a matter of procedural fairness in circumstances where a retrial has been ordered, the conduct of further pre-recordings. That applies to each complainant.
- The complainants are older now, and I expect they should cope with the requirement for them to give further evidence. I do not think that an order requiring further pre-recordings would be oppressive. Of course, I would not expect the evidence in the existing pre-recordings to be repeated, save as may be minimally necessary to focus a complainant on an event, feature, place or time relevant to the question asked.
- It follows that the option to which I have referred as my preference in this case is appropriate in the circumstances and the further pre-recordings should be in addition to the edited pre-recordings. I expect that both pre-recordings will be led in evidence on any retrial of each matter.
- I do not consider, in the circumstances of this case, that the defence was required to inform the Court, or the prosecution for that matter, in advance of this application of the further questions proposed to be asked at the pre-recordings. The pre-recordings will be regulated in the ordinary way upon principles of relevance and admissibility.
- I am satisfied that each complainant could be called to give further evidence if she was otherwise giving evidence before a Court in the ordinary way, I am also satisfied that it is in the interests of justice to make the orders that I propose.
- Insofar as the additional matter that Mr Collins referred to is concerned, had that been the only basis for the application I would have refused the application. Of course, it could now be the basis of further questioning in the pre-recording of SLC given my resolution of the application on a broader basis.
The medical evidence
- The suggestion by Mr Robson that the issue of the doctor’s evidence with respect to the hymen finding may be revisited – ‘the mouse that has been let loose in the Court’ - should be resolved definitively before any further pre-recording of the evidence of SLC is commenced.
- 1.I order a further pre-recording of the evidence of ALV subject to the parameters to which I have referred.
- 2.I order a further pre-recording of the evidence of SLC subject to the parameters to which I have referred.
- Published Case Name:
R v CBM
- Shortened Case Name:
R v CBM
 QDC 109
Durward SC DCJ
06 May 2015
|Event||Citation or File||Date||Notes|
|Primary Judgment|| QDC 109||06 May 2015||Orders in respect of further prerecording of evidence of children for the retrial of CBM: Durward SC DCJ.|
|Primary Judgment||DC424/12 (No citation)||01 Dec 2013||After a five day trial the defendant was convicted of seven sex offences. He was sentenced to seven years imprisonment with a parole eligibility date at the halfway point of that term|
|Appeal Determined (QCA)|| QCA 212  1 Qd R 165||29 Aug 2014||Appeal against conviction allowed. Convictions set aside. Re-trial ordered: Gotterson JA and North and Henry JJ.|