R v EQH[2015] QDC 245

DISTRICT COURT OF QUEENSLAND

Application

1. [1]
   The Applicant has sought disclosure of documents from a previous and different proceeding involving the same complainant as in this matter.

2. [2]
   The applicant is charged, as far as is relevant to this application, with two counts:

3. [3]
   The applicant has been arraigned and has pleaded not guilty.

The first record of evidence

4. [4]
   The complainant in this matter, one “ARVA”, has previously been a complainant in an unrelated matter in which the commission of sexual offences against her was alleged. The defendant in that matter is not the applicant.

5. [5]
   Two orders were sought in the application, each for disclosure of documents relating to that previous complaint:

3. “(a)
   Disclosure of the s 21AK disc and transcript of the evidence of  ARVA on 04 April 2014 at the District Court at Ipswich before his Honour Judge Koppenol, pursuant to s 21AZA of the Evidence Act 1977 (Qld). 

2. (b)
   Disclosure of all conference notes between the complainant ARVA and staff of the Office of the Director of Public Prosecutions, Ipswich Chambers.”

Orders made by me

6. [6]
   On 25 September 2015, I made orders in the following terms (as far as is relevant to this application) and I reserved these reasons:

3. “(1)
   The ACW Manager of the Registry of the Brisbane District Court provide the parties a copy of the s 21AK disc containing evidence of ARVA, recorded on 4 April 2014 at the District Court at Ipswich before Koppenol DCJ, within 7 days, to the lawyers for the accused and to the Office of the Director of Public Prosecutions.

2. (2)
   The Office of the Director of Public Prosecutions provide a copy of the transcript of the evidence of ARVA, recorded on 4 April 2014 at the District Court at Ipswich before Koppenol DJC, within 7 days, to the lawyers for the accused.

2. (3)
   The inspection of the s 21AK disc and the transcript be restricted to the lawyers involved in the case only and the accused is not to have access to them.”

7. [7]
   This judgment discusses issues that arose in the course of submissions made on the hearing of the application, particularly because counsel were, despite diligent search, unable to find authority about my power to make the Order (1) above.

Immediate history

8. [8]
   The complainant was interviewed in a ‘s 93A statement’ by police at Charters Towers on 20 April 2014 (the “current record of evidence”) and in that interview said:

“Yeah, well I’ve done this before cause I was molested a couple of years ago” and “three weeks ago I went down for my pre-recording”.

9. [9]
   The allegation about the latter events was the subject of an interview with police in Ipswich on 17 December 2010. The defendant in that case (one “WTB”) was charged with two allegations of attempted rape and an allegation of indecent treatment of a child under 16, under 12. A pre-recording of the complainant was conducted at the District Court at Ipswich on 04 April 2014 (“the first record of evidence”). The three count indictment charging the allegations was later the subject of a nolle prosequi, entered by the Office of the Director of Public Prosecutions on 09 July, 2014 prior to the empanelling of a jury for a trial.

The conference notes

10. [10]
    This is about the second part of the application. I was shown the ODPP notes of a pre-trial conference with the complainant, conducted in Ipswich. I identified those parts of the handwritten notes that set out the prosecution opinion of the evidence of the complainant in the pre-recorded evidence taken in relation to that proceeding. That opinion (without venturing into the reasoning or policy of the ODPP about the matter) was discloseable and Mr Walklate agreed to provide the relevant extract of the conference notes to Mrs Grant. Hence that agreement disposed of that part of the application.

The first record of evidence

11. [11]
    The first part of the application has been a little more difficult to resolve, not the least due to what I consider to be the imprecision of the relevant legislative provisions.

12. [12]
    The issue is: does the legislation permit disclosure of the first record of evidence from a separate proceeding earlier in time, or does it simply permit disclosure in respect of the conduct of the current record of evidence?

13. [13]
    The court has a general and broad discretionary power to make orders, directions and rulings concerning affected child witnesses: s 21AX of the Evidence Act 1977 (“the Act”):

Discussion

14. [14]
    A pre-recording (both the disc and the transcript) is made pursuant to s 21AK of the Act, which provides for the video-taping of an affected child’s evidence: 

“21AK

3. (1)
   The affected child’s evidence must be taken and video taped at a hearing under this section

3. (a)
   Preliminary Hearing presided over by a judicial officer.

3. (2)
   The video-tape recording must be presented –

3. (b)
   If taken for a trial – to the court at the trial.”

15. [15]
    The use of pre-recorded evidence is referred to in s 21AM of the Act:

16. [16]
    The record of the evidence is a “restricted access transcript”. A court order pursuant to s 21AZA of the Act is necessary for access to it. The court is to give directions about the use or safe-keeping of a recording:

“21AZA

3. (1)
   The presiding judicial official may make any order the judicial officer considers appropriate about the use or safe keeping of a recording;

3. (2)
   Without limiting subsection (1), the presiding judicial officer may give directions, with or without conditions, as to –

3. (a)
   the persons, or classes of persons, who are authorised to have possession of the recording; and

3. (b)
   the giving up of possession of a recording.

3. (3)
   The presiding judicial officer must have regard to the following matters when deciding the persons or classes of persons, who are authorised to have possession of a recording –

3. (a)
   the need for counsel involved in the proceeding to have access to the recording;

3. (b)
   the need to ensure that persons authorised have possession of the recording or are able to take appropriate measures to ensure there is no unauthorised access to the recording;

3. (4)
   In this section –

Use, of a recording, includes copying of the recording.”

1. (a)
   Disclosure obligation

17. [17]
    The disclosure obligations of the prosecution in s 590AB of the Criminal Code (Qld) (“the Code”), provide that there is an ongoing obligation for the prosecution to give an accused person full and early disclosure of all things in the possession of the prosecution, other than the things the disclosure of which would be unlawful or contrary to public interest, that would tend to help the case for the accused person.

18. [18]
    Disclosure may be made otherwise on request, pursuant to s 590AJ of the Code (Qld). The prosecution must, on request, give the accused person a copy or notice of anything in the possession of the prosecution that may be reasonably be considered to be adverse to the reliability or credibility of a proposed witness for the prosecution. Some of the circumstances in which this form of the disclosure obligation are referred to in R v Rollason and Jenkins; ex parte A-G (Qld) [2008] 1 Qd R 85, relevantly at [16] and [28].

1. (b)
   The transcript of the first record of evidence

19. [19]
    An “Evidence Act section 93A device statement” means a ‘statement’ contained in any disc given in or in anticipation of a criminal proceeding about the alleged offence. This definition includes the disc upon which the s 93A statement was recorded: ss 590AD and 590AFA of the Code.

20. [20]
    Hence those provisions, in the circumstances here, relate to the Transcript of the pre–recorded evidence, which in submissions was described as being in the ‘possession’ of the Office of the Director of Public Prosecutions at Ipswich: see with respect to ‘possession’, s 590AE (1) and (3) (a) (i) of the Code.

1. (c)
   The DVD of the first record of evidence

21. [21]
    In this case the electronic recording (the DVD of the pre-recorded evidence), is held by the central registry of the court in Brisbane: that is, by the ACW Manager.

22. [22]
    A recording of an affected child’s evidence means a video-taped recording (or a copy thereof) of an affected child’s evidence: s 21AY of the Act.

23. [23]
    Section 21AZB of the Act makes it an offence for a person who, without authority, supplies, or offers to supply a recording to any person. A person who has possession of a recording or transcript, as is the case here, is permitted to supply a recording if a judicial officer authorises the supply of the recording pursuant to section 21AZA of the Act.

24. [24]
    Section 590AA of the Code – pre-trial directions and rulings – provides the means for directions and rulings to be made by a judge before any trial, which so far as relevant provides as follows:

3. “(1)
   If the Crown has presented an indictment before the court against a person, a party may apply for a direction or ruling, or a judge of the court may on his or her initiative direct the parties to attend before the court for directions or rulings, as to the conduct of the trial or any pre-trial hearing.

2. (2)
   Without limiting subsection (1) a direction or ruling may be given in relation to –

…

3. (c)
   the provision of a statement, report, proof of evidence or other information;”

25. [25]
    “Proceeding” means any civil or criminal proceeding, including a preliminary hearing. “Preliminary hearing” means a hearing under s 21AK of the Act: that is the pre-recording of an affected child witness’s evidence: s 21AC of the Act.

26. [26]
    Section 21AM of the Act refers to the issue of admissibility and upon a literal construction is arguably limited to the proceeding in which it was created. The issue about s 21AZA of the Act is that upon a literal construction it also appears arguably to be directed to a “use” in respect of “the proceeding”: that is, the proceeding in which it was created.

27. [27]
    Hence ss 21AX and 21AZA of the Act requires a broader construction in order for the DVD to be brought within its terms.

Resolution

28. [28]
    Upon my construction of sections 21AX and 21AZA of the Act, the disclosure sought was permitted, despite the somewhat imprecise language of s 21AZA of the Act.

29. [29]
    The construction of the legislation is best achieved by taking the purposive approach. The words of an Act are, of course, to be given their ordinary and natural meaning: Amalgamated Society of Engineers v Adelaide Steamship Co (Engineers Case) (1970) 28 CLR 129, at paragraphs 161-162. There is also a useful discussion about statutory construction in Project Blue Sky Inc. v Australian Broadcasting Authority (1998) 194 CLR 355, at paragraphs 69-71.

30. [30]
    Section 14A of the Acts Interpretation Act (Qld) 1954 refers to a fundamental principle of statutory construction, namely that “the interpretation that would best achieve the purpose of the Act is to be preferred to any other interpretation”: See Mills v Meeking (1990) 169 CLR 214; and Lacey v A-G (Qld) (2011) 242 CLR 573, at [46]. However, it does not permit a construction not open on the words: Doomadgee v Deputy State Coroner Clements [2006] 2 Qd R 352; [2005] QSC 357, per Muir J at [29].

31. [31]
    The purposes expressed in Division 4A of the Act: “Evidence of affected children”, as far as is relevant here, are “to preserve, to the greatest extent practicable, the integrity of an affected child’s evidence”, by means of the regime of pre-recording of the evidence of the child: s 21AA (a) of the Act.

32. [32]
    In other words, in a practical sense, the purpose of Division $A of the Act is to facilitate the taking of the evidence of children in a way appropriate to their minority of age; and to restrict the publication of their evidence from scrutiny at large and at will: that is, beyond that which is necessary to achieve fairness and justice to persons accused of criminal offences involving the affected child.

33. [33]
    I cannot conceive that the legislative intent of Division 4A of the Act contemplated that a defendant would be unable, in appropriate and judicially managed circumstances, to have recourse to regularly conducted s 93 statements or pre-recorded evidence of the same affected child witness in a different proceeding, conducted in accordance with the statutory regime that potentially, that in reality and not merely speculatively, impact upon the real issues in a subsequent proceeding. The conduct of a just and fair trial would compel the reasoning that the earlier evidence should, subject to customary principles of admissibility and to appropriate judicial discretion and control, be available by order of a court to be accessed by the lawyers for the prosecution and defence, subject to further orders as may be necessary – such as leave to cross-examine the child in certain protected respects – and used forensically in the subsequent proceeding.

Conclusion

34. [34]
    There was no need for me to consider the merits of the application. It is evident that credit issues potentially arise in respect of the allegations by               the complainant. The pre-recording of evidence in the previous matter made reference the complainant having had “dreams” of relevant events. Mr Walklate did not argue otherwise.

35. [35]
    My construction of the relevant legislative provisions is one that in my view ‘best achieves’ the statutory purpose of ss 21AX and 21AZA of the Act and the Division dealing with the evidence of affected child witnesses.

36. [36]
    Further, I was satisfied that my granting of the application and making of the orders was not contrary to the public interest, in the context of s 590AQ (3) to (6) of the Code.

37. [37]
    Accordingly I granted the Application on the terms perfected in the order made on 25 September 2015.

ORDERS

1. Application granted.

2. Orders in the terms of the attached order made on 25 September 2015.