R v Carter[2018] QDCPR 17

DISTRICT COURT OF QUEENSLAND

HIS HONOUR:   This is an application by the Crown to amend the date specified in counts 4, 5 and 6 on indictment 473 of 2016.  The indictment, which was presented on the 19^th of August 2015, charges the defendant with seven counts of a sexual nature involving a complainant, Emily-Jo Louise Warren, who, at the relevant time, is alleged to have been a child under the age of 16.  It’s an unusual case.  Counts 4, 5 and 6 plead a specific date, namely, the 20^th of October 2011.  The other counts not the subject of the application plead between dates. 

The reason for the pleading of the 20^th of October 2011 comes from the complainant’s statement to police.  She provided a witness statement dated the 16^th of February 2015.  It can be seen that that it is about three and a half years after the alleged offences on the 20^th of October 2011.  At paragraph 24, she alleges:

On the 20^th of October 2011, I remember we had a trivia night at Rod’s place during that day at Warana in the courtyard area which is located behind the kitchen.  I have drawn this area on my sketch attached to this statement.  In the courtyard, at the time, there were two chairs.  I was on a short break between lunch and dinner which was about between 2pm and 5pm.  Rod and I both went outside.  We were both sat down on the chairs, and Rod started touching my right breast with his right hand through my white shirt and bra.  My white shirt had a bird and floral print on it with a back zip. 

I shoved over and pulled away and said, “Stop.  You are making me feel uncomfortable.”  Rod stopped.  Rod then started talking about the trivia night.  Rod then pulled up my right leg up onto his knees and started the same massaging thing.  He started massaging my inner-right thigh on the skin with both his hands.  I knew he was going to try and get my crotch area.  I was wearing denim [indistinct] when he got to my upper thigh I put my leg down and said, “I think someone is at the front door.”  I then got up and walked back into the dining and reception area.  Shortly after I got inside, Rod walked back into the kitchen area, and I saw him go to the coffee machine. 

She then describes that around about that time there was a trivia night at Rod’s home and describes some other touching and then, in paragraph 26, goes to November 2011.  Now, clearly enough, the indictment was pleaded on the basis of that which was contained in that paragraph.  The matter was listed for trial in this court and came on before Judge Shanahan on the 27^th of November 2017.  At that stage, the defence had conducted some investigations into the date alleged the subject of charges 4, 5 and 6.  It became evident from minutes of meetings that, in fact, the trivia night was in May, not in October but of the same year. 

It also became evident that there was at least a partial if not full alibi available to the defendant for the date, namely, 20 October 2011.  An application to amend the indictment was refused at that stage.  The trial has now been listed to commence next week, and this pre-trial application has been listed by the Crown to amend the date.  Now, after it became obvious that the date was incorrect by reason of the documents obtained by the defence there was a conference between the prosecutor and the complainant.  There’s a file note been tendered.  That reads:

CP Toby Corsbie called complainant.  Legal Officer Thomas O'Brien and Anna Hawk were also present to take notes.  Toby introduced himself and explained that Matt Le Grand is no longer the prosecutor for the trial.  Toby said the trial was listed for next week and [indistinct] running it the same way as Matt described it previously.

Toby asked if she remembered Matt taking her through all of the incidents.  Emily said yes.  Toby said he’s not going to go through all of that again as Matt already had.  Toby asked if Emily remembered the trivia night incident.  Emily said yes.  Toby said, “You said it was on the 20^th of October 2011.”  And Emily responded saying, “Yeah, it was around that time.”  Toby asked whether there was anything in particular that made her say that date.  Emily said she was pretty sure it was around that time.  But she also said there was a good chance the dates might have been stuffed up because she tried to block it out for so long and then tried to recall everything over a few weeks. 

Toby asked in terms of how certain she was, if it was her memory of the offences occurring on the trivia night or, instead, the offences occurring specifically on that date in October.  Emily confirmed that her recollection was that the offences occurred on the day of the trivia night;  however, she couldn’t say or certain what the exact date was.  Toby sought confirmation that the offences in the coffee shop occurred on the same date as the trivia night.  Emily confirmed that it was her memory and that she was pretty sure about it.  Toby sought confirmation that the offences occurred on a Saturday, and she confirmed that to be the case.  Toby said there might be some records that she might be asked about when she was giving evidence. 

He said:

Remember, in court, all you can do is tell the truth.  So if you don’t remember, then you should – you can just say that.

Toby said:

Try not to stress about giving evidence, because you just have to tell the truth.

So it seems clear to me, having read that file note, that the important feature of these allegations in the complainant’s mind concerning counts 4, 5 and 6 was the occasion of the trivia night and not the date, and the choice of the October date may well have been a mistake on the part of the complainant. 

The Crown makes an application under section 572 of the Criminal Code.  It reads:

If, on the trial of a person charged with an indictable offence, there appears to be a variance between the indictment and the evidence, or it appears that any words that ought to have been inserted in the indictment have been omitted, or any count that ought to have been included in the indictment has been omitted, or that any words that ought to have been omitted have been inserted, the court may, if it considers that the variance, omission, or insertion, is not material to the merits of the case, and that the accused person will not be prejudiced thereby in the person’s defence on the merits, order the indictment to be amended, so far as it is necessary, on such terms, if any, as to postponing the trial, and directing it to be had before the same jury or another jury, as the court may think reasonable.

The Crown submits in this particular case in written submissions, exhibit 1, that it is clear that the trivia night took place on the 14^th of May 2011, not the 20^th of October 2011, and the Crown case is the complainant is mistaken as to the date of the offence.  The Criminal Code provides a mechanism, it submits, for the amendment of an indictment, which, it submits, is the case here.  It submits that the accused is not prejudiced in his defence on the merits, the merits being whether or not the offences occurred.  It is submitted the defence retains a forensic advantage of impugning the complainant’s reliability due to the inconsistency here. 

The respondent, on the other hand, submits that to allow the amendment deprives the defendant of the defence of alibi, which is otherwise available.  It relies on a number of cases, R v TAM (No. 2) [2011] QDC 141, R v Pfitzner (1976) 15 SASR 171, R v Dossi (1918) 13 Cr App R 158, R v Dean [1932] NZLR 573, R v Swan (1987) 27 A Crim R 289, R v Jacobs [1993] 2 Qd R 541, R v ZSK [2006] QDC 16, R v H (1995) 83 A Crim R 402.  It is submitted that prejudice is suffered.  It is submitted that it goes beyond the question of unreliability.  I’ve considered both submissions in full. 

Turning to the issue of materiality, the High Court in WGC v R [2007] HCA 58, in effect, held in that case that date was not a material particular;  however, the issue of alibi was not considered in that case.  The defence heavily relies on a decision of R v H.  In that case, the appellant had been convicted of two counts of rape which were alleged to have occurred between 16 May and 17 November 1986.  There was no complaint until 1993.  After two informations had been laid and withdrawn, a third information charged the commission of sexual offences in early 1985.  The complainant gave evidence, giving reasons for identifying that period as the period in question. 

While there was no alibi notice filed, the prosecutor was informed the appellant would call the prison officer to give evidence to the effect the appellant was in prison at the relevant time.  The evidence was allowed, and the trial adjourned.  Afterwards, the prosecutor obtained leave to amend the information to extend the dates to after the appellant’s release.  It was held on appeal to be unfair, unjust and oppressive to retry the accused to meet the change of story by the complainant. 

Having read the case, it seems to me distinguishable from the instant case.  In that case, there was a deliberate decision by the complainant to specify the dates mentioned.  It wasn’t a case like the present, where it’s not so much the date of relevance but the incident, that is, the trivia night.  I’ve also had regard to Jacobs’ case, as I mentioned earlier, and that which Justice Derrington stated and R v JW [2015] QCA 31.  Again, though, in that case, alibi was not suggested. 

I think it’s a matter of degree.  There can be some situations where it would be prejudicial to allow the Crown to amend dates to meet an alibi;  however, where a mistake was made by the complainant in this case as to the date but not the occasion of the events, that is, the trivia night, it seems to me that, where the defence position is the offence did not occur, the merits are as to whether or not the offence occurred or not. 

It may be that even if the date remained the 20^th of October 2011, the jury would be directed that the date is not material. But even if I’m wrong about that, it seems to me, in the exercise of the court’s discretion, this is a case where the Crown should be permitted to amend the dates, and I observe, of course, that these alleged offences occurred quite some time ago now.  It is understandable that a young person would be mistaken of the date, not the event, and I am not reversing the onus here, of course, but I need to take the Crown case at its highest. 

In the circumstances, in the exercise of the court’s discretion, I permit the indictment to be returned to the prosecutor to insert new dates on counts 4, 5 and 6.