R v GW[2015] QDCPR 11

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   This is an application by the defence pursuant to s 590AA(2)(a) of the Criminal Code 1899 (Q) to permanently stay the indictment charging the defendant with one count of maintaining and one count of indecent treatment of a child. 

2. [2]
   Mr Fraser on behalf of the defendant withdrew the application insofar as the maintaining count is concerned but proceeded with the application in respect of count 2.

3. [3]
   The Crown submitted that the hearing of this application was premature. I disagree with this view. In my view the defence is entitled to have a pre-trial application heard on issues concerning particulars and whether a prosecution should be permanently stayed.

4. [4]
   The defendant submits:

5. [5]
   The Crown submits:

Summary

6. [6]
   The defendant is charged with the following counts:

1. that between the twenty-fifth day of June 2014 and the eighth day of September 2014 at South Mackay in the State of Queensland, GW, being an adult, maintained an unlawful sexual relationship with EW, a child under 16; and

2. that on a date unknown between the twenty-fifth day of June 2014 and the eighth day of September 2014 at South Mackay in the State of Queensland, GW unlawfully and indecently dealt with EW, a child under 16, and EW was under 12 years, and GW had EW under his care for the time being.

7. [7]
   In this case the evidence reveals the complainant was aged 7 at the time of the alleged offending and was living with her mother, stepfather and younger sister in Mackay. The defendant is the complainant’s step-grandfather. The complainant’s mother was living Melbourne in a mental health facility and her stepfather worked shift work including various night shifts. The complainant’s grandmother would usually look after the complainant while her stepfather was at work. Sometimes the defendant would look after the complainant, which included staying the night.

Evidence

8. [8]
   The complainant’s mother is RW. RW’s partner is IW who is the defendant’s son.

9. [9]
   RW says that she was in hospital for about 3 months from late June 2014 until September 2014.^[1]  During this time her parents (EA is her mother) and the defendant assisted IW with looking after the children. She says that EW made a preliminary complaint to her in early October 2014 that the defendant had touched her on the “wee”.^[2]

10. [10]
    IW says that during around 30 June 2014 until 3 July 2014 EA could not look after the children and he arranged for the defendant to look after them.^[3] The defendant also looked after the children on 6 September 2014.^[4] EW made a preliminary complaint to him on 9 October 2014 that the defendant had touched her.^[5]

11. [11]
    EA in her statement says that both she and the defendant looked after the children at various times when RW was in Melbourne for treatment.^[6] She did not look after the children between 24 and 26 June 2014, 21 July-1 August 2014 and 21 August 2014- 22 August 2014.^[7]

12. [12]
    JM (the defendant’s ex-wife and IW’s mother) in her statement says that between 4 July 2014 and 10 August 2014 she stayed at RW’s house looking after the children.^[8] She alleges on one occasion during this period the defendant took the children to his place for the night.^[9]  She returned to New Zealand on 10 August 2014. These dates are confirmed by EA.^[10]  

13. [13]
    On my analysis of the statements it is likely the defendant stayed at IW’s house looking after the complainant on 24, 25 and 26 June 2014; 21 and 22 August 2014 and 6 September 2014.

14. [14]
    The complainant provided a s 93A statement on 18 October 2014.  She alleges that on the occasions that the defendant would look after the complainant she describes him getting into bed with her and touching her “wee” inside her underwear.  She described her “wee” as her private part that she uses to go to the toilet.  She described the defendant putting his whole hand inside her underwear and rubbing her.  She described this as occurring all the time and every time he stays at her place, and described it being sore the next morning and with a stinging feeling. 

15. [15]
    She alleged that her step grandfather touched her “wee” all of the time. Every time he was at her place he would come into the bed with her, but when she was at his place he did not do anything (T6.35). She could not recall the last time as it was a long time ago (T7.20).

16. [16]
    The complainant describes a particular occasion (count 2) as follows:

“From page 7, line 55:

EW: Usually it was like in – like, um, the best I remember, um, I had a trouble nightmare.

OFFICER: A nightmare?

EW: Yeah, this is the first time he done it.^[11]

OFFICER: Okay.

EW: And I had a troubling nightmare about the Muppets.

OFFICER: Yep.

EW: And, um, he came in my bed and slept with me.

…

EW: … when it started happening then he touching it and touching it, and I tried to roll over and roll over and roll over, but it – but he kept doing it and I couldn’t get out of the bed.  I was on the other side.

OFFICER: Yep.

EW: Mmm.

OFFICER: And what happened after that?

EW: And then I just had to deal with it in the morning.  I was super sore, and he was still in the bed when I woke up.

…

Page 10, line 8:

OFFICER: Okay.  Tell me more about him touching your private parts?

EW: Usually he just puts his whole hand in there.  He goes over my jocks and then he does it, mmm.

OFFICER: So we’re talking about the first time that it happened?

EW: Mmm.

OFFICER: Okay.  So the first time that it happened - -

EW: Mmm.

OFFICER: He puts the hand over the jocks?

EW: Mmm.

OFFICER: Okay.  So he puts hand over jocks, and then what happens?

EW: He just, um, rubs his hand all over on it.

… He just like puts his [INDISTINCT] fingers inside and just does it, and goes in circles.”

17. [17]
    The evidence supporting the charge of maintaining includes the following from the complainant’s interview with the police:

“Page 6, line 34:

EW: Um, like my dad’s dad touches my wee all the time.  Every time [INDISTINCT] at his – no.  Every time he’s at my place, um, he – he stays – he – he comes in the bed with me and he’ll [INDISTINCT] and does it.  But when I’m at his place he doesn’t do anything.

…

Page 11, line 17:

EW: He just sort of does it the same way.  He does it every day.

OFFICER: Every day?

EW: Mmm.  Every day that he’s over at our place.

…

Page 13, line 10:

OFFICER: Yep.  Okay.  [E], tell me another time, okay, that you remember this happening that you best remember:

EW: Usually when we watch Tangled and the Pirate Fairy.  Um, it just all happens every starts, and he just drinks coffee, has a bit of food and then comes sits down again and um, we just keep repeating in a pattern.  Sometimes he doesn’t have coffee.  Sometimes he just comes in.”

18. [18]
    The complainant goes on to provide further elaboration in her interview with police relevant to the charge of maintaining a sexual relationship with a child.

19. [19]
    The defendant took part in a recorded interview with police. Prior to police informing the defendant of the details of the complainant’s allegations, the following took place:

“POLICE: So, ah, [GW], as I said, we’re investigating, ah, indecent dealings with a child, okay, being [EW].  Tell me everything you know about this matter?

GW: Well, as I said, the only – the only thing I know is me son rang me and asked me about getting into bed with her, and I just said to him that I didn’t get into bed with her.

POLICE: Yep.

GW: I was looking after them.  She come and woke me up on the couch where I was sleeping, and said she’d had a – oh, she doesn’t call them nightmares, um, night terror or something she calls them, and I just asked her if she was all right and said, ‘All right.  I’ll take you back to bed.’  She got into bed and she said ‘Can you stay with me’, and I said, ‘Oh, well I’ll sit here for a while if you like until you go back to sleep’, and, um, I just lay on the edge of the bed on top of the blankets—

POLICE: Yep.

GW: --and I just sort of patted her shoulder as she went back to sleep.  Once I knew she was asleep I got up and walked back into the lounge.”

Relevant law

20. [20]
    In order for a stay to be granted, the Court’s discretionary power is only exercised in exceptional circumstances (see Jago v District Court of New South Wales & Ors^[12]). 

21. [21]
    There is no doubt a stay may be granted where insufficient particularity is given such that the accused cannot receive a fair trial. This is because the court can grant the remedy of a stay to prevent unfairness arising from the use of the court process (see Walton v Gardiner^[13]).   

22. [22]
    With respect to the offence of maintaining, s 229B of the Criminal Code provides:

23. [23]
    Further s 229B(10) defines “unlawful sexual act” as “means an act that constitutes or would constitute (if it were sufficiently particularised) an offence of a sexual nature”. 

24. [24]
    In R v CAZ^[14] it was argued by the unsuccessful appellant that s 229B(4) offended Chapter III of the Commonwealth Constitution because the jury could effectively return a non-unanimous verdict contrary to the requirements for a trial by jury and a unanimous verdict under s 80 of the Constitution.  Fraser JA at [45] noted that children who are the victims of the particular offence created by s 229B might often be unable to recall sufficient details of the specific offences committed in the course of the relationship to enable the prosecution to supply those particulars that might be required:

“That underlying premise of the legislation therefore justifies some flexibility in the application of the common law requirement for particulars. Otherwise, the procedure might reasonably be perceived as skewed against child complainants to such an extent as ultimately might shake public confidence in the court’s ability to do justice in such cases. Equally, however, any adaptation of the traditional requirements of procedural fairness must not go so far as to preclude the ability of the courts to ensure a fair trial for the defendant. In my opinion the section does not have that effect, even though it plainly does make the prosecution’s task easier than otherwise would be the case.”

25. [25]
    Fraser JA considered at [47] that the District Court remained empowered by s 573 of the Code to direct particulars.  Indeed, in CAZ these had been provided.  At [51]:

“Accordingly, s 229B does not have the effect of authorising an administrative inquiry or a trial where the accused is given so little information about the charge as to render it impractical properly to prepare a defence. It does not remove the trial judge’s powers to ensure a fair trial or the Court’s power to set aside a conviction on the ground that there was a miscarriage of justice.”

26. [26]
    Finally, at [55]:

“In my opinion, s 229B does not work such a serious diminution upon the necessary extent of particularisation of the offence, the usual requirement for jury unanimity … or other procedures designed to ensure a fair trial, as to justify the conclusion that the trial court no longer exhibits any of the defining characteristics which mark it apart from other decision-making bodies. I would hold that s 229B of the Code is not constitutionally invalid on any of the grounds argued by the appellant.”

27. [27]
    Accordingly as I read CAZ it seems to me that this court needs to see whether sufficient particularity has been given in a case to ensure a fair trial may be held.

28. [28]
    In R v WAB^[15] the court said at [28]:

“It is also important to state that, while s 229B(4) is clearly intended to facilitate the conviction of offenders of a contravention of s 229B(1) even though the evidence against the accused is not sufficiently particularised to establish a charge of a separate sexual offence, that circumstance makes it all the more important to ensure that the accused has the benefit of the other procedures calculated to ensure a fair trial. In this regard, it is, of course, important that the accused should have every opportunity to meet the case made against him or her by the Crown.”

29. [29]
    The Crown particulars of the maintaining count are that on each of the occasions the complainant stayed at the defendant’s house in the relevant period (six occasions) this sexual activity occurred. I note that the complainant at one stage in the interview said she only remembered the “two times” (T13.25). This no doubt will be a matter the defence will raise as to the complainant’s credibility and will no doubt raise as to whether the Crown has sufficiently proved the unlawful sexual relationship.

30. [30]
    In any event the usual rules concerning particularity apply to count 2.

31. [31]
    There is no doubt that an accused person should be given sufficient particularity of offences charged to enable him to have a fair trial. The High Court has said so much in Johnson v Miller^[16] and in S v The Queen^[17].

32. [32]
    In S v The Queen^[18] the High Court noted that rule was concerned with avoiding duplicity, ensuring relevant evidence is placed before the jury and enables the accused to raise specific defences such as alibi.  Otherwise there may be a lack of procedural fairness.

33. [33]
    It will usually be insufficient for the allegation to be merely the first or last of many occasions not otherwise discernible (see R v F^[19] and R v Baker ex parte Attorney-General^[20]).

34. [34]
    In R v C^[21] the Queensland Court of Appeal said at [3]:

“… As Mackenzie J held in R v S ^[22], there are two aspects to the need for particularity. One is to eliminate the risk of duplicity. The second is to give the accused sufficient indication of what is alleged against him or her on the occasion when he or she is said to have committed the offence. This requirement was spelt out by Dowsett J in R v R^[23] where at [24] his Honour said:

‘In general, as a minimum requirement, it is necessary that there be sufficient particularity in the allegations to demonstrate one identifiable transaction which meets the description of the offence charged, distinguishable from any other similar incidents suggested by the evidence….  Of course, this requirement does not exclude multiple changes of substantially similar events, provided the evidence demonstrates separate, identifiable transactions which can be related to counts on the indictment.’”

35. [35]
    In R v Baker; ex parte Attorney-General^[24], Mackenzie J at [14] noted that the court should take into account whether the allegations are over a long span of time or only over a short period.

36. [36]
    In R v S^[25], Mackenzie J noted at [23] that sufficient of particulars falls to be decided on the merits of a particular case. The factual context needs to be considered as a whole.

Disposition

37. [37]
    I do not consider this is a case like R v F^[26] or S v The Queen^[27].

38. [38]
    In R v F the complainant could not recall the last time something happened and could not identify an event relating to a particular allegation. In S v The Queen the complainant did not give evidence linking the allegations to any one of the specified periods and could not recall the details of the allegations or of their frequency. It was said that the Crown could not lead evidence that is equally capable of referring to a number of occasions.^[28]

39. [39]
    It is my respectful view the complainant does give sufficient particulars of count 2. On my reading of the s 93A statement as a whole I am satisfied the complainant has identified a specific incident as occurring with specific reference to the troubling nightmare about the Muppets. I note that she used the words “That’s the first time he ever did it” when referring to this nightmare. It is true that she said she suffered nightmares often (T8.42) but it is not suggested she had one about the Muppets more than once.

40. [40]
    Even if of itself that is insufficient,^[29] in this case it is more than the complainant simply suffering a nightmare. The defendant appears to have identified the occasion of the nightmare because he described a night when the complainant had a nightmare and laid on the bed next to her. I accept he said “I think there’s been a couple” (T9.32) in his interview but he gives a detailed account of a specific occasion involving the nightmare at T8 of the interview. He does not suggest he laid on the bed with her more than once.

41. [41]
    The allegation therefore as to charge 2 is particularised. This is also one of the unlawful sexual acts relied on for count 1.^[30] This allegation and the other instances of sexual behaviour are both unlawful sexual acts and are also alleged to be evidence of the alleged sexual relationship the subject of the maintaining count.^[31] This is permissible under s 229B(4)(a) of the Code. 

42. [42]
    In these circumstances it is my respectful view that the complainant’s account provides sufficient particularity in relation to the charged offences and the defendant has been given a sufficient indication of what is alleged against him on the occasions when he is said to have committed the offences. There is no unacceptable injustice or unfairness in this case. Sufficient particularity has been given.

43. [43]
    I also rely on the fact that the time period over which the offences are said to have occurred is very limited such that the defendant is not unfairly prejudiced in his defence. This is not a case where for example no specific occasion can be affixed over a lengthy charge period.

44. [44]
    The defence submitted that there are concerns the jury may well convict of count 2 using propensity evidence. I am not concerned about this. This jury will be given clear directions not to convict on count 2 using propensity evidence.

45. [45]
    It is my view there is nothing in this case which gives rise to the exceptional power to stay the prosecution. In the result, the application is refused.