R v Douglas[2018] QDCPR 30

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The trial of the accused was to have commenced on 4 June 2018.

2. [2]
   Prior to the trial commencing counsel for the accused, Mr Kimmins, foreshadowed an application to further cross-examine the complainant. An order was made on 1 December 2016 declaring the complainant to be a special witness pursuant to s 21A Evidence Act 1977. The evidence of the complainant was pre-recorded on 9 December 2016. Mr Kimmins stated that the application was to be based on school records and other material relating to the complainant. Mr Kimmins indicated that he had received the subpoenaed material, but required until the end of the week to fully consider it. The prospect of delaying the start of the trial was canvassed. However Mr Kimmins stated that he had another trial to commence on 11 June 2018 which effectively meant that the application to further cross-examine the complainant would necessarily involve an adjournment of the trial.

3. [3]
   The matter was adjourned for mention on 5 June 2018. On that date it was requested that the pre-trial application be listed for hearing on 7 or 8 June 2018.

4. [4]
   The application was listed for hearing on 7 June 2018.

Chronology

5. [5]
   It is desirable that the history of the matter be set out.

6. [6]
   The following is a chronology of some of the relevant events:

Delay in the present application

7. [7]
   The present application has been made at an extraordinarily late stage of the proceedings. The delay was not satisfactorily explained. The unfortunate consequence of the delay is that the trial was adjourned.

8. [8]
   Mr Kimmins stated that up until a trial review on 17 May 2018 he believed that the trial to proceed in the week of 4 June 2018 was in respect of indictment 399/18. The complainant on that indictment is the complainant’s brother. Mr Kimmins candidly accepted that he was responsible for that misunderstanding. The Crown, and, it seems, the instructing solicitors for the accused, understood that the trial to proceed in the week commencing 4 June 2018 related to the present complainant.

9. [9]
   The material in respect of which it was proposed that the complainant be further cross-examined was the subject of a subpoena to the Department of Child Safety, Youth and Women filed 26 February 2018 and a subpoena to Brisbane Catholic Education filed 28 May 2018.

10. [10]
    The accused has had the same legal representation since at least June 2017. The fact that the jury was unable to reach a verdict on count 2, the rape charge meant that there was always to be a re-trial, at least in respect of that particular count.

The hearing on 7 June 2018

11. [11]
    The accused filed an application dated 5 June 2018 seeking the following orders:

1. A ruling that the complainant be made available for further cross-examination pursuant to s 21AN Evidence Act 1977; and

2. A ruling that the following evidence be excluded from the trial:

1. (a)
   a photograph of a picture depicting the complainant shirtless; and

2. (b)
   evidence that the accused licked the complainant’s face, referred to in the s 93A statement on 15 August 2013 as a “cowlick”.

12. [12]
    At the hearing of the application it emerged that the purpose of further cross-examining the complainant was to ensure that matters to be elicited in cross-examination from the complainant’s mother were put to the complainant for comment in compliance with the rule in Browne v Dunn.^[2] Mr Kimmins conceded that the complainant may have no recollection of the matters to be raised. The matters to be the subject of cross-examination included behavioural issues of the complainant when he was six years old.

13. [13]
    The complainant had been declared to be a special witness. He was not an affected child witness so the application to further cross-examine him was not properly made pursuant to s 21AN Evidence Act 1977.

14. [14]
    Section 21AN of the Evidence Act 1977 clearly does not govern the recalling of a special witness whose evidence has been pre-recorded pursuant to s 21A. In R v Marshall^[3] the Court of Appeal considered the issue of recalling an affected child witness pursuant to s 21AN. A relevant consideration in that case was that it had been almost two years since the previous pre-recording of the evidence of the affected child witness.

15. [15]
    In R v Masters^[4] the New South Wales Court of Criminal Appeal said that:

“This Court has said that, generally speaking, a judge should always accede to a request to have a witness recalled for cross-examination upon a point of substance which has been overlooked – however incompetently – unless real and incurable prejudice is created for the party calling that witness.”

16. [16]
    In the present case, the complainant was in fact cross-examined about some behavioural issues.

17. [17]
    Mr Bain indicated that the Crown would not be submitting that any consequences should follow from the fact that specific details were not put to the complainant. Therefore, subject to one unresolved issue, the defence does not require the complainant for further cross-examination.

18. [18]
    The issue which the parties wish to consider further relates to the complainant’s awareness of the fact that the accused was circumcised. It was put to the complainant in cross-examination that he had never seen the accused’s penis. However when the complainant’s brother gave his pre-recorded evidence in respect of indictment number 399/18 on 2 March 2018, he said that there was an occasion in the period from September 2008 to 2010 when both brothers went with the accused to a public pool at or near the Sunshine Coast. The evidence given by the complainant’s brother was that the accused exposed himself to both boys in the change room. It is not known whether the present complainant recalls this particular occasion. This issue is being considered by both parties.

The background facts

19. [19]
    The accused was a friend of the complainant’s family.

20. [20]
    The complainant was interviewed by the police on 15 August 2013 and 23 February 2014. In the first interview the complainant described various sexual acts by the accused.

21. [21]
    The rape allegation which involved anal intercourse was not mentioned in the first interview. That allegation emerged during an argument between the complainant and his father. The allegation led to a further interview with the police on 23 February 2014.

Discreditable conduct

22. [22]
    Mr Kimmins objects to the following evidence proposed to be led by the Crown as revealing a sexual interest in the complainant:

1. (a)
   a photograph of a picture which had been painted by the accused and which depicts the complainant, shirtless, surrounded by items of interest to him, such as a Lamborghini and images associated with Harry Potter; and

2. (b)
   evidence that the accused licked the complainant’s face referred to in the police interview on 15 August 2013 as a ‘cowlick’.

Picture painted by the accused

23. [23]
    Mr Kimmins relied substantially on submissions made by the Crown before the Court of Appeal. It was argued by the Crown before the Court of Appeal that there was nothing peculiar or odd about the painting. The evidence of the complainant’s mother was that the technique used by the accused to create the painting was to reflect a photograph onto the wall. The mother’s evidence was that the photograph used for the purpose of the painting was a photograph of the complainant getting out of the pool, not wearing a shirt. On the other hand the complainant said that in the photograph from which the painting was done, he was wearing a shirt.

24. [24]
    Evidence of conduct which is not itself a sexual offence may demonstrate a sexual interest.^[5]

25. [25]
    In HML v The Queen^[6] the conduct relied upon to show sexual interest included filming the complainant and buying her a certain type of underwear. Hayne J explained the relevance of the conduct as follows:

“[157] Although the conclusion about relevance is a conclusion of fact, it is important to expose the steps in reasoning which show the relevance of the evidence. The other conduct described by the complainant in this matter might be divided into three – committing other sexual assaults on her, filming her, and buying the particular style of underwear. All these forms of conduct were tendered to show the expression of a sexual interest of the appellant in the complainant. That interest was said to have been demonstrated by translation of that interest into action, in some cases sexual acts of the kind which constituted the offences being tried.

[158] Demonstrating the appellant’s sexual interest in the complainant would demonstrate his motive to act as the charges being tried alleged he had acted. Demonstrating that he had done acts of the kind charged on other occasions would make it more likely that he did the charged acts. The extent to which the conduct was repeated, and the temporal proximity of the other conduct to a charged act, would bear upon the probability of the occurrence of that charged act.”

26. [26]
    And as McMurdo JA explained in R v Douglas^[7]:

“[42] The occurrence of uncharged sexual acts against the complainant by the accused will readily demonstrate a sexual interest which rationally affects the probability of the occurrence of the acts as charged. However acts which do not constitute sexual offences, but which are said to be relevant as disclosing a sexual interest in the complainant, will require interpretation. Some conduct in that category will readily prove a sexual interest. Other conduct will be equivocal. In each case, if the evidence is admitted, the jury will have to consider whether, in fact, that conduct occurred (where that fact is an issue) and whether, if so, it is to be interpreted in a way which is probative of a sexual interest.”

27. [27]
    The context in which the painting was given to the complainant by the accused is a relevant consideration. The complainant’s evidence is that as he started to get older and his voice changed the accused started saying things to him such as “oh, are you, have you started puberty? Have you grown any pubes? And he’s like oh, can I see them, and stuff like that”.^[8] The complainant said that from the age of seven to eight the accused tried to put his hands down his pants. He said that the first time the accused touched his penis was after giving him the picture as a present. He said that was for his eighth or ninth birthday.^[9] The complainant remembered the photograph from which the painting was created when he was in the exact stance depicted in the painting and he said that he was wearing a shirt.^[10]

28. [28]
    In my view the evidence surrounding the painting is capable of disclosing a sexual interest in the complainant. The jury must of course be satisfied of that beyond reasonable doubt. The jury may consider that the gift of the painting was for the purpose of grooming the complainant so as to enable the accused to carry out his sexual advances which it is alleged immediately followed.

29. [29]
    Further the evidence is relevant in considering the relationship or context of the relationship. The painting was, as submitted by Mr Bain for the Crown, a very personal gift depicting the complainant shirtless and with other items of interest to him. The probative value of the evidence is enhanced by the fact that the painting was given to the complainant just prior to the contact offences beginning. Hayne J explained in HML v The Queen that the temporal proximity of the evidence of discreditable conduct to a charged act bears upon the probability of a charged act having occurred.^[11] Count 1 is an offence of maintaining an unlawful sexual relationship with a child under 16 years. The jury therefore need to consider whether an unlawful sexual relationship existed. The progression of that relationship, particularly prior to the first contact offence, is a relevant consideration.

Cowlick

30. [30]
    Mr Kimmins submitted that the evidence that the accused licked the complainant’s face is not capable of amounting to sexual interest. He further submitted that the complainant’s evidence is vague and devoid of context.

31. [31]
    The complainant’s evidence contained in the police interview on 15 August 2013 is as follows:

32. [32]
    Mr Kimmins submitted that the lack of detail reinforced the benign nature of the evidence, which increased the risk of the evidence being misused.

33. [33]
    In my view this evidence is capable of revealing a sexual interest in the complainant and grooming of him to allow sexual offences to occur in the future. The conduct is somewhat unusual.

34. [34]
    The evidence may be excluded if it has little or no weight but may be seriously prejudicial: Driscoll v The Queen.^[12] However, the risk of unfair prejudice does not arise from the fact that admissible evidence has a tendency to inculpate an accused: Festa v The Queen.^[13]

35. [35]
    The directions to the jury in accordance with HML v The Queen eliminate the possibility of the evidence being misused. The evidence should not be excluded in the exercise of discretion.

Rulings

36. [36]
    I therefore make the following rulings:

1. The evidence of discreditable conduct is admissible.

2. The application by the accused to exclude the evidence of discreditable conduct is dismissed.