R v Bailey[2018] QDCPR 22

DISTRICT COURT OF QUEENSLAND

This is an application by the defence to further cross-examine the complainant, whose name is KN.  The defendant is charged with one count of rape of her, which is alleged to have occurred between 31 July 2009 and 30 September 2009 at Beachmere in Queensland, and further, there’s a count of indecent treatment against her on a date unknown between 1 February 2009 and 10 March 2011 at Beachmere, when she was under 12. 

The background to this matter is that the complainant provided a section 93A statement on the 9^th of June 2015.  She was born on the 10^th of March 2015, so was 15 at the time of the 93A statement and was about nine or 10 at the time of the alleged offences. 

The complainant was pre-recorded on the 13^th of January 2017 before Judge Martin SC in the Brisbane District Court.  She was 16 then.  She turned 17 on the 10^th of March 2017.  Now, the matter came on for trial in March of 2018, but it was delisted because a number of events happened.  Before I turn to those, the background is that the defendant is classed as an uncle of the complainant child.  She alleges when she was nine, the defendant, whilst staying at her family’s home, took her out of the room into a car parked outside and had penetrative sex with her.  The second incident involved an allegation that he either kissed or attempted to kiss her when she was seated on a railing, and she bit his tongue, and he threatened her not to tell anybody. 

It’s not disputed the defendant has a complicated psychiatric picture, is of lower intellectual functioning than the rest of the population. 

As to the pre-recording, which occurred in January 2017, a series of propositions were put to the complainant about the alleged impossibility of the allegations having occurred.  At one point, the complainant agreed the accused did not definitely kiss her.

Since the pre-recording in March this year, a number of further documents came into the possession of the defence.  They include an alleged Skype message from the complainant to her grandfather, stating that she wished to drop the charges.  Two subpoenas were issued in March of 2018 to the Caboolture Health Service and the Morayfield Psychiatric Health Centre.  They disclosed a number of things.  It’s reported in document 46 in an intake for the complainant:

Since early childhood, Sandra reported KN has had difficult behaviour since age 6.  She reportedly tells lies and tells people what she thinks they want to hear.  She allegedly can tell three different people three different stories about an event, and it is difficult to find the truth.  Mistruths have allegedly included blowing things out of proportion, blatant misrepresentations of an incident, or completely made-up stories.  She reportedly has alleged that her mother is a child abuser because she did not send the children to school.  Rather, she home-schooled the children due to religious beliefs.

There is further discussion that she reportedly had seven boyfriends and she had asked her mother for pregnancy test kits.  She is uncertain whether KN had been checked for STDs.  KN, it seems, on the material, had threatened to suicide and seems to have emotional difficulties.  There have also been sexualised behaviours including hitting on older men.  One other occasion, she was eating a banana and held it up to her mouth in a suggestive manner and said to her mother’s friend, “What does this remind you of?” which was found to be unusual coming from the mouth of an 11 year old.  As I said to Mr Minnery, though, with all of that, there could be a double-edged sword if she had had sex with his client.  There’s also a note that after she went to the police concerning these matters, she reported she didn’t want to live and she was unhappy.  There was a history of self-harm and poor family relationships.

The third point which has been raised by the defence is that in or about March 2018 his client provided him a termination notice which showed that he was not working at Queensland Rail at the time of the allegation.  This is important because the complainant, in the date range, alleges that he said he was still working at Queensland Rail, and there was a uniform in the car, which gives rise to a distinct issue about alibi evidence.  None has been filed, but Mr Minnery intends to file one. 

The defence submits that the arresting officer, in October 2015, took out an Emergency Examination Order concerning the complainant, and this was never disclosed to the defence.  Having said that, it seems that this was not in the mandatory disclosure provision, although it is unfortunate that it was not disclosed.

It may have prevented a lot of these issues arising now.  There’s also an issue about whether a dust storm occurred in 2009 during the allegations.  The defence now has material suggesting it didn’t happen as alleged by the complainant.  The defence submits in all of the circumstances it is in the interest of justice to further examine the complainant about these matters.

The Crown, in its submissions, points out the committal here occurred on the 26^th of May 2016 and points out the complainant is now 18 years of age.  The Crown points out that this application is over a year after the pre-recording has taken place.  The Crown accepts that some of these matters raised are permissible lines of cross-examination, but questions, in light of the significant delay, whether the interests of justice favour the granting of the application. 

On the question of delay, it is true that the defence did not subpoena this material, and it is true that the client didn’t provide information which might have led to the subpoenaing of this material.  The message wasn’t provided.  It came from his carer, and the information regarding Queensland Rail didn’t come from his client until March of 2018.  Having said that, as I said earlier, it is undisputed the defendant has some psychiatric issues. 

The question is whether the defendant should be shut out from exploring these permissible lines of cross-examination, as conceded by the Crown, because of the default on the part of his lawyers or himself. 

Section 21AN of the Evidence Act provides:

1. (1)
   this 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

2. (2)
   A party may apply to the court for an order that the child:

1. (a)
   give further evidence under this subdivision at another preliminary hearing, or
2. (b)
   attend at the proceeding to get further evidence.

3. (3)
   The court must not make the order unless satisfied that:

1. (a)
   if the child were giving evidence before a court in the ordinary way, the child could be recalled to give further evidence;  and
2. (b)
   it would be in the interests of justice to make the order.

4. (4)
   The could must not make an order that the child attend at the proceeding to give further evidence unless satisfied it is not possible or not practical for the child to give the further evidence at another preliminary hearing.

Now, the term “interests of justice” was considered in R v Marshall [2010] QCA 43.  At paragraph 30, it was said:

Section 21AN(3) contemplates the possibility of departing from the norm if the child witness could be recalled under the general law and if the interests of justice require the making of such an order.  An obvious case where these conditions would be satisfied would arise where the case for the defence has not been put to the [complainant]…in the pre-recorded cross-examination.  In this case, the defence case was put to the complainant, as was a motive for fabricating her allegations against the appellant.  It is usually oppressive for a witness to be subjected to multiple cross-examinations.  The terms of section 21AN make it clear that this should occur only where a case has been shown that the preponderance of the interests of justice warrant this course. 

The circumstance that four years has passed since the 93A statement had been given and two years have passed since the taking of the pre-recorded evidence does not of itself warrant a conclusion that the interests of justice require the complainant to be recalled.  The lapse of time might well have contributed to a deterioration in the quality of the complainant’s recollection and her apparent reliability as a witness that would distinctly not be in the interests of justice.

The term has further been considered in R v Fardon [2010] QCA 317 in the context of a no-jury order application.  Justice Chesterman, at 73, noted:

What is meant by the phrase was helpfully discussed by McKechnie J in TVM v The State of Western Australia (2007) 180 A Crim R 183.  The compendious phrase “the interests of justice” appears in many statutes and is a phrase often referred to by courts.  Consideration of the interests of justice arises in many contexts.  In relation to cross-vesting jurisdiction, the full court of the Family Court in Chapman against Jansen (1990) 100 FLR 66 said per Nicholson CJ at 74:

“In my view, the expression the interests of justice is not one which should be narrowly defined, and indeed, it may not be particularly helpful to attempt to define it at all.  I do not think that it is a concept which courts should find difficult to apply.  The interests of justice will vary from case to case, and I think that, in general, in considering applications under this legislation, a broad approach is the approach to be preferred”.

And then further, referring to Mickelberg v R (No 3) (1992) 8 WAR 236:

The interests of justice in a particular criminal case are to ensure that a person who is accused of a crime is convicted if guilty and acquitted if innocent after he has had a fair trial.  The interests of justice also extend to the public interest and in due administration of justice. 

In Re Corruption and Crime Commission;  Ex Parte West Australian Newspapers Limited (2007) 174 A Crim R 325 at paragraph 29, Templeman J regarded the test for determining the interests of justice as the avoidance of injustice, and, further, in Western Australia v Veskovich [2005] 40 SR (WA) 332, Wisbey DCJ considered the phrase as:

The expression “in the interests of justice” is not defined, but it is reasonable to assume that it refers to a fair trial according to law.  Essentially, it appears to me that it is only if there is a likelihood that a fair trial according to law may not eventuate in a jury trial that the discretion proposed in section 1184 is enlivened, and, further, the phrase “the interests of justice” is not an expression capable of easy articulation or explanation because it is conclusionary in nature.  Necessarily, a judge takes into account many factors before concluding where the interests of justice may lie.  The phrase “the interests of justice” is devoid of content except where it is given form by the particular facts and circumstances of a case.

And Chesterman J at 74 noted:

I would endorse the remark that the phrase “the interests of justice” is so general and, indeed, abstract that it takes on meaning only by consideration of the particular facts relevant to an application for a no jury order in place.

Now, in this case, on the one side of the ledger is the age of this child and the intention of the legislature that children shouldn’t be subject to multiple cross-examinations.  Also to be considered here is the delay.  At the other side of the equation is the importance of the message, and I bear in mind, of course, it was the complainant who, on the material I have, created the message. 

There is also to be considered the important material raised in the subpoenaed material.  Now, it is true the defence subpoenaed this late, but it is also true that the police didn’t disclose the EEO, although, as I said earlier, it was not part of mandatory disclosure and perhaps the defence lawyer ought to have requested such material relevant to the complainant’s credit.  As to the termination issue, that’s important.  Date is not material, of course, but it is certainly relevant to the complainant’s credit and reliability.  Again the client did not provide that until a late time, and no notice of alibi has been filed, but it seems to me to be an important issue. 

Having weighed all of these matters, I’ve determined it is in the interests of justice, despite the delay, to grant the application.  It’ll be limited, though, Mr Minnery.  It’ll be on the message.  It’ll be on all of those matters aside from any sexual activity by the complainant with other persons or any implication in that regard, and it’ll relate to the purported alibi concerning the employment and the dust storm.  .