R v JM (No 2)[2013] QDCPR 2

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The applicant JM has applied to the court pursuant to s 590AA of the Criminal Code for the following rulings:

1. (a)
   There is no case for the applicant to answer;

2. (b)
   That the record of interview given by the applicant be excluded from evidence; and

3. (c)
   That nominated portions of the 93A statement of HN be excluded from evidence.

No case submission

2. [2]
   In the applicant’s outline of argument, it is alleged that there is no case to answer.

3. [3]
   The prosecution in its outline says that whether or not there is a case to answer – that can only be addressed before the trial with the consent of the Crown. No consent is given in this case. It is submitted that any no case submission should be raised at the conclusion of the Crown case at trial.

4. [4]
   In R v Gesa and Nona ex parte Attorney-General [2001] 2 Qd R 72 it was held that such an application may be brought under the pre-trial provisions in the Criminal Code. It was held however in that case that it was impossible to do so because the counsel for the Crown indicated she intended to cross-examine and call further evidence in the question of honest mistake of right.

5. [5]
   At [18] it was said:

“Such a case may arise where the facts are either agreed or undisputed, where those facts are incapable of supporting a guilty verdict and where the Crown concedes that those facts represent the highest that the Crown case can be put. It will therefore only be where the facts are agreed or undisputed and where the Crown concedes that those facts represent the highest the Crown case can be put, that such a ruling may be sought. Even then, of course, the accused person will fail in his or her application where those facts or inferences from those facts are capable of supporting a guilty verdict. Such a ruling is one of law. If the Judge considers that the material is not in a satisfactory state to enable a ruling on the capacity of the evidence to sustain a conviction he or she may decline to proceed with the application.”

6. [6]
   During oral argument, the defendant’s counsel alternatively sought a stay of the prosecution as being an abuse of process because in effect there was no case to answer.

7. [7]
   The defendant is charged with a count of indecent treatment of a child under 16, under 12. The offence is alleged to have occurred on 3 November 2009 at Rockhampton.

8. [8]
   The particulars of the case are that the accused:

1. (a)
   Directed the complainant to pull down her own pants;

2. (b)
   Drew on the complainant’s naked bottom;

3. (c)
   Threw a carrot at the complainant’s naked bottom; and/or held a carrot near the complainant’s naked bottom.

9. [9]
   The defendant at the relevant time lived in a bus which was located in the yard of the premises occupied by the complainant and the complainant’s mother.

10. [10]
    The witness CB also lived in the house.

11. [11]
    The complainant was born on 27 April 2003.

12. [12]
    CB in her statement alleges that on 9 November 2009, when she was preparing to leave for work she was called to the sleep out area of the house by the accused. The accused asked her to take a photograph of “this.”

13. [13]
    CB says:

1. (a)
   The complainant was standing facing the window;

2. (b)
   The accused was holding up the complainant’s skirt with her left hand;

3. (c)
   The complainant’s uniform was on the ground;

4. (d)
   The complainant was not wearing any underwear;

5. (e)
   The accused was holding a half chewed carrot in her right hand;

6. (f)
   There were red marks on the child’s back;

7. (g)
   There were lots of markings on her “bare bum”;

8. (h)
   The markings looked like a target;

1. (i)
   There were words written on her “bum” in lipstick;

10. (j)
    There was lipstick without a top on the ground in the front of the accused in a blue case;

11. (k)
    CB was instructed to take a picture by the accused; and

12. (l)
    In a third picture, the accused held a carrot as close as she could without the carrot touching the child’s backside.

14. [14]
    Subsequently, the pictures were seen by the complainant’s mother’s boyfriend and the picture was sent to the complainant’s mother.

93A statement

15. [15]
    The complainant provided a s 93A statement on 29 December 2009.

16. [16]
    In the 93A statement, the complainant said that she was six years of age (5.50).

17. [17]
    She was in grade 2 at school (6.3).

18. [18]
    She said that she had an aunty – Aunty [JM] (11.22).

19. [19]
    She said that Aunty [JM] was mean to Mummy, Daddy, her younger brother [L] and to her (11.30-40).

20. [20]
    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).

21. [21]
    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)

22. [22]
    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).

23. [23]
    She later described the marker as being twirly which goes in a wall and little pins are thrown at it. (20.1-10)

24. [24]
    She later said that the accused had thrown carrot pieces which hit her bottom (21.45).

25. [25]
    She said that the lipstick was later washed off in the bath (22.10).

Pre-recording

26. [26]
    The pre-recording of her evidence occurred on 7 February 2012 in the Rockhampton District Court.

27. [27]
    After initial questions she said that she did not recall going to the police station and speaking to some police (T1-7.30).

28. [28]
    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 …”

29. [29]
    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)

30. [30]
    She said that [CB] had hopped out of the shower and had taken a photo (T1-8.42).

31. [31]
    She agreed she didn’t tell the police that [CB] had taken a photo (T1-8.45).

32. [32]
    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).

33. [33]
    She denied that her mother told her that Aunty [JM] did certain things (T1-13.35). She denied that she had been told by [CB] that Aunty [JM] used lipstick, throwing of the carrots and about the photograph (T1-13.30-40).

34. [34]
    She said she didn’t remember the incident about the writing or about the photo (T1-13.55).

35. [35]
    She could not recall any of what was in the recorded statement with the police (T1-14.20).

36. [36]
    She could not say that Aunty [JM] did anything to her (T1-14.25).

37. [37]
    She later said that she did not know what happened (T1.18.45).

38. [38]
    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).

39. [39]
    The Defence argues that the particulars even if accepted by a jury and no doubt the evidence, do not disclose any act of indecency sufficient to support the charge.

40. [40]
    It is submitted that there was a mere lapse of propriety as compared to an act of indecency.

41. [41]
    The defence relies upon the decision of R v McBride [2008] QCA 412. It is submitted that the evidence of the child was in its totality, unreliable vague and no way inculpating of the accused.

42. [42]
    It seems to me, examining all of the material, that a properly instructed jury could convict of this charge (see Doney v The Queen (1990) 171 CLR 207). It seems to me a properly instructed jury could on the material with which I have been provided draw the inference that the accused drew the markings on the complainant’s backside and played a game which was like a target game with the carrot. A jury could draw the inference that this was indecent.

43. [43]
    Accordingly, the application for a ruling there was no case to answer must fail at this stage.

44. [44]
    Alternatively, the Defence has applied for a stay of the prosecution.

45. [45]
    It is clear that a stay can only be granted in exceptional circumstances (see Jago v DPP (1989) 168 CLR 23). There does not appear to my mind any abuse of process in this case. To my mind there is no basis on the material to order a stay of the prosecution.

Police interview with the accused

46. [46]
    As noted earlier the Defence submits that the record of interview between police and the accused be excluded.

47. [47]
    The defendant underwent a record of interview on 29 January 2010 at the Rockhampton police station.

48. [48]
    During this questioning, the accused indicated she was present when the pictures were taken and her arm was seen in the picture, but she denied taking the pictures.

49. [49]
    Throughout the interview there were denials of any involvement in taking pictures or of writing or drawing upon the child.

50. [50]
    At p 36 line 5 of the interview, there was a line of questioning by the police officer seeking comment from the defendant regarding the effect and meaning of the image depicted in the pictures.

51. [51]
    This continued to p 38 where the statement of CB was read to the defendant and comment was sought from her regarding the allegations.

52. [52]
    The Crown has agreed to excise references to the defendant’s opinion of the nature of photograph; and the reading of and responses to parts of the statement of CB.

53. [53]
    There was also reference in the interview to accusations concerning a child A. The Crown has agreed not to lead that evidence.

54. [54]
    The Defence, after referring to these three matters, submits that the interview is highly compromised and prejudicial to the accused.

55. [55]
    In my view there appears to be no basis for the submission that the entirety of the record of interview should be excluded.

56. [56]
    It seems to me there are sufficient inculpatory statements (particularly concerning her arm being in the photograph) for the jury to draw the conclusion that the accused was involved in the offence.

57. [57]
    Aside from the matters agreed to be excised by the Crown, I decline to exclude the interview on the basis sought by the Defence.

Pre-recorded evidence of the complainant child

Exclusion of s 93A statement

58. [58]
    The Defence seeks the exclusion of portions of the s 93A tape of HN.

59. [59]
    There is certainly a discretion to exclude such tape under the common law, under s 98 of the Evidence Act and under s 130 of the Evidence Act.

60. [60]
    The principles associated with such applications were discussed in R v FAR [1996] 2 Qd R 49 and R v Morris ex parte Attorney-General [1996] 2 Qd R 68.

61. [61]
    To my mind, having examined the material here, there is no cause to exclude the entirety of the 93A tape.

62. [62]
    It is true that there are some inconsistencies between the pre recorded evidence and the 93A tape, however, this is not a case where the child completely failed to answer questions.

63. [63]
    The child was actually able to answer questions at the pre-recording.

64. [64]
    I do not consider it inexpedient in the interest of justice to not admit the 93A tape nor do I think it unfair in the circumstances to fail to not to admit it.

Passages of the 93A statement of the complainant

Page 19-20

65. [65]
    The Defence objects to the passage from p 19 line 25 to p 20 line 50. It is submitted leading questioning occurred.

66. [66]
    At p 19 the complainant referred to the accused throwing a carrot at her bottom and then suggested that “she wanted that to be um what’s that thing that goes like twirly and red stripe and um white stripe?”

67. [67]
    The police then had an exchange between themselves and arrived at the meaning as the child referring to a dartboard.

68. [68]
    Later, at p 20 line 25 the police officer suggested to the complainant that the accused said something about making a dartboard on her bottom. The Defence submits that this evidence should be excluded.

69. [69]
    I am of the opinion that the police at p 19 and 20 merely clarified that which the complainant was describing to them. Ultimately at p 19.40-5 they asked her weather she meant a dartboard and she accepted that proposition.

70. [70]
    I do not exclude this portion.

71. [71]
    On the other hand I am of the view the police did transcend into leading statements at page 20.21-42 (see Horan v Ferguson [1995] 2 Qd R 490).

72. [72]
    I am of the view this passage should be excluded.

Page 21

73. [73]
    The Defence objects to the description by Constable Mitchell of the carrot having been cut into three [stripes].

74. [74]
    At p 20 line 50, the complainant told the police that the accused threw a carrot. She told the police a carrot had been thrown three times because she cut a carrot in half. She told the police that the accused had cut one carrot and then another one and then another one at her home, the complainant said this happened in the kitchen.

75. [75]
    Then at p 21.20 the following occurred:

“Question: And do you remember what she said when she was cutting up the carrot?

Answer: No.

Question: So she cut the carrot into three stripes?”

76. [76]
    The Defence argues that this description by the police be excluded.

77. [77]
    I do not agree. It seems to me this description was in fact by the complainant and merely repeated by the police and assented to by the complainant.

Page 15

78. [78]
    The Defence objects to allegations that the accused told the complainant and her brother “swear words”.

79. [79]
    This is agreed to by the Crown so no ruling is necessary.

Page 23

80. [80]
    The Defence next argues the passage at p 23 line 28. It is submitted that Constable Mitchell referred to a comment by the complainant that CB was in the shower while the photograph was taken. It is submitted that the Defence is unable to locate this.

81. [81]
    At this stage the police asked, “So when Aunty [JM] was having a shower ah and you said that a photo was taken, tell me more about the photo being taken”.

82. [82]
    It appears that this statement does not appear earlier in the tape. There is certainly reference to CB being in the shower at p 22 line 32 but this is not linked in with the time a photo was taken. There are indistinct portions of the interview.

83. [83]
    At this point I will exclude p 23 lines 21-23. If the tape is enhanced to explain the question by the officer then I will revisit this ruling.

Page 24

84. [84]
    The Defence submits passages concerning “safe issues” should be excluded.

85. [85]
    The Crown agrees. There is no need for me to rule on this issue.

Other matters

86. [86]
    In summary the Crown has agreed to exclude:

1. (a)
   preliminary matters (marked A);

2. (b)
   swearing (marked B);

3. (c)
   protected behaviours (marked E).

Conclusion

87. [87]
    In conclusion, the orders are:

1. Application by the Defence for ruling of no case to answer is dismissed.

2. Application by the Defence to exclude Record of Interview in its entirety is dismissed.

3. Application by the Defence for a stay is dismissed.

4. Application by the Defence to exclude the entire s 93A statement of the complainant is dismissed.

5. Application by the Defence to exclude p 20 lines 21-42, p 23 lines 21-23 of the complainant’s s 93A statement is granted.