R v Crowley[2019] QDCPR 20

DISTRICT COURT OF QUEENSLAND

1. [1]
   On 18 April 2019, Her Honour Judge Dick SC dismissed an application for an order that the evidence of SC, contained in an interview with police conducted pursuant to section 93A of the Evidence Act 1977 (Qld), be rejected pursuant to section 98 or excluded pursuant to section 130 of the Evidence Act 1977 (Qld). The basis of the application was that SC did not have the requisite capacity to retrieve an uncontaminated memory and her evidence could not be safely and justly relied upon. It was argued that the account of SC was unreliable for the reasons set out at paragraph [20] of the judgement of Judge Dick SC.  

2. [2]
   On 30 April 2019, SC gave evidence before me pursuant to section 21AK of the Evidence Act 1977 (Qld). She was six years of age. It was clear to me that she was not competent to give evidence on oath by reference to the test in section 9B(2) of the Evidence Act 1977 (Qld). I permitted her to give unsworn evidence. 

3. [3]
   At the conclusion of the cross-examination of SC, application was again made to exclude the evidence of SC contained in the interview with police. Alternatively, an application for a permanent stay of the proceedings on indictment 1869/18 was made. 

Re-opening a ruling

4. [4]
   Section 590AA of the Criminal Code Act 1899 (Qld) states that a direction or ruling is binding unless the judge presiding at the trial or pre-trial hearing, for special reason, gives leave to reopen the direction or ruling. 

5. [5]
   In R v Dunning,^[1] Williams JA considered what could constitute special reasons:

“It would be contrary to all notions of justice and fairness to say that a pre-trial ruling remained binding even though in the light of circumstances which emerged during the first trial doubts were raised as to the correctness of the ruling. Where, after the first trial, either the prosecution or defence sought to have a pre-trial ruling re-opened, a judge would have to give consideration to whether or not the change in circumstances warranted a re-opening. If the change in circumstances warranted a re-opening then "special reason" would exist for so doing. If a consideration of the evidence at the first trial did not disclose any reasonable basis for re-considering the ruling (as happened in Sheehy) there would be no "special reason" warranting the re-opening and the application would be refused on that basis. Adopting that approach does not conflict with anything said in R v Nguyen, R v Steindl or Sheehy as to what constitutes "special reason". It is not desirable for there to be any attempt to further define what in a particular case may constitute "special reason". That is something which will have to be determined in the circumstances of each case in which the question arises” (citations omitted).

6. [6]
   The special reason which is said warrants a grant of leave to re-open the ruling of Judge Dick SC is that SC was not able to be cross-examined as she said that she had forgotten what had happened to her. One of the arguments made by the respondent to the first application and which Judge Dick SC accepted was that “on the present state of the evidence cross-examination is possible but difficult”. The prosecutor now argues that the inability to cross-examine does not affect any of the findings that Judge Dick SC made. 

7. [7]
   In my view, there has now been a change of circumstances in the state of the evidence. SC is now not able to be cross-examined about the matters that form the basis of the charge. Given that she was described by Judge Dick SC as “distractible, dramatic and imaginative” during the section 93A interview, the testing of her evidence by cross-examination is an essential tool by which the weight to be attached to her evidence should be assessed. I do not accept that an inability to cross-examine does not affect the findings of Judge Dick SC when she specifically referred to such cross-examination being possible. In my view, special reason has been shown. 

The section 21AK hearing

8. [8]
   At the commencement of the hearing, counsel for the defendant indicated that he wasn’t proposing to put anything to SC about other complaints that she had made of a sexual nature against her step-father, father and another child.  The Crown Prosecutor, whilst raising issues of relevance in relation to a complaint made after the events allegedly involving the defendant, agreed however that it was a proper course for defence counsel to establish those matters through SC’s mother or the investigating police officer. 

9. [9]
   Defence counsel also indicated that, based upon the report of Dr Walsh which was tendered before me and which is referred to in the judgement of Her Honour Judge Dick SC, that he would be approaching his cross-examination in an unusual way. He indicated that he intended to commence by asking SC questions about things that she was familiar with such as her grade at school. He further said “I understand that I should not lead, if at all possible, in this case”. He indicated that the defendant’s case was that the act did not occur. He said that he was “trying to be fair to the child” and that he might not be able to formally put his instructions to her. The Crown Prosecutor quite properly took no issue with that course. The report which he tendered from Dr Walsh said that “It will be important to allow her to become comfortable by asking her questions that she can answer confidently about her current life and only proceeding to ask her questions about the alleged offences once her confidence in the situation and people has been established. It would not be appropriate to ask SC closed-ended questions about the alleged offences, ie questions that she could answer ‘yes’ or ‘no’ as she may confabulate if she does not know the answer. It would only be appropriate to ask her questions to which she has to provide the content of the answer….SC is confused by complex sentence structures”. 

10. [10]
    In evidence-in-chief, the prosecutor established that SC had watched a copy of the section 93A interview that morning. He did not ask her whether what she had told the police was the truth. Defence counsel commenced his cross-examination by asking SC a series of questions about her school, her friends at school and what things that she did at school. He then moved on to ask her whether she understood what she was here (at court) to talk about and she responded “no”. He asked her “did you remember the thing that happened to you that you told the police about? Do you remember that now?”  SC responded “yes”. She was asked “can you tell me what happened from the beginning to the end?”. SC responded “I forgot”. Defence counsel moved to ask her about whether she had seen a gun or a knife, both matters that SC referred to in her account in the section 93A statement and she responded that she had seen her mother with a knife chopping up vegetables. She said that she had only ever seen pretend guns. The reference to guns and knives was designed to prompt SC to talk about the matters that gave rise to the offence. In light of her answers, no further cross-examination took place. The prosecutor did not re-examine SC.

Section 98 and Section 130 

11. [11]
    The discretion to exclude a section 93A statement under section 98 of the Evidence Act 1977 (Qld) is expressed in broad terms -“if for any reason it is inexpedient in the interests of justice that the statement should be admitted”. The power to exclude evidence under section 130 is also expressed in broad terms - “if satisfied that it would be unfair to the person charged to admit that evidence”. 

12. [12]
    Reliability is one factor to take into account in the exercise of my discretion bearing in mind that it is one of the most integral of a jury’s functions to determine matters of credibility and reliability. The question of reliability is generally best left for the jury to determine with appropriate judicial directions.^[2]

13. [13]
    The testing of evidence is ordinarily done by the process of cross-examination. Potential difficulties in effective cross-examination is not on its own, sufficient to warrant the exclusion of the evidence on the basis that it would be unfair to the defendant. The prosecutor has referred to me to the decision of R v Hopwood,^[3] where the convictions were based solely on the evidence of a five year old child given by way of section 93A of the Evidence Act 1977 (Qld).  The cross-examination of her was rendered ineffective because she had no memory of the events which gave rise to the charges. There was some evidence capable of supporting the evidence of the complainant, being a lie told by the appellant out of a consciousness of guilt. There was a further statement made by the appellant in his interview with police, which was capable of providing slight support for the complainant’s evidence. The ground of appeal was only that the verdicts were unreasonable. The Court found that they were not and dismissed the appeal. The case of Hopwood did not involve a consideration related to an application to exclude the section 93A statement and establishes only that the inability to cross-examine due to a lack of memory will not, on its own, render a verdict unreasonable. 

14. [14]
    The defendant relies upon, in addition to his inability to cross-examine SC, the way in which the complaint arose when considered against the statements of Dr Walsh, that SC was of an age where she is suggestible. The defendant argues that the complaint by SC was not a spontaneous one but rather, was prompted by her mother’s inquiry. The complainant’s mother said to SC “I’ve spoken to a police lady and she asked mummy if Paul Crowley touched you anywhere he’s not meant to?” SC walked away. Her auntie, HC was present and said that SC said that nothing happened before walking away. HC then went to check on SC and asked her if anything had happened that shouldn’t have happened. SC then disclosed that she was grabbed by the foot and pulled out of bed and taken outside where he smacked her bum” and touched her “wee wee”. HC told her sister, SC’s mother, what had been said. She did so in front of SC. Her mother said “Don’t lie to mum, did he do what you said to aunty H?”. SC said yes and she repeated “he grabbed me by the foot, pulled me out of bed, took me outside beside the garage, pulled my pants down, touched my bum and my parts.” 

15. [15]
    The defendant’s inability to cross-examine the complainant extends to an inability to cross-examine about the making of the complaint. SC was four years and nine months of age when she made the complaint to her mother and when she was interviewed by the police. She was six years of age when she gave evidence before me. Dr Walsh refers to her young age as involving a risk of suggestibility. The defendant tendered a report from Professor Kenny which criticises the testing that Dr Walsh conducted on SC but does not give rise to any significantly different opinion. She says that after conducting an analysis of the section 93A interview particularly assessing SC’s verbalisations and behaviour, that her assessment indicates that the risk of confabulation is very high. She indicated that her psychological analysis was that SC was immature, distractible, histrionic and attention-seeking. Her language and conceptual development was below that expected for her age and she confused fact with fantasy and was pre-occupied with guns and knives and killing. Some of these matters are as obvious to me as they were to Judge Dick SC and would be clearly obvious to a jury.

16. [16]
    The defendant argues that he can’t test the consistency of the account given by SC over time as would ordinarily be done if SC had a memory of the events. 

17. [17]
    A further aspect about which the defendant is not able to cross-examine is the identity of the offender. SC did not know the name of the person who touched her on this occasion when interviewed by police. Her mother used the name “Paul Crowley” in asking SC whether she had been touched by him. The defendant was a stranger to SC. He spent the night at her mother’s house on one occasion, the Sunday night one week prior to her interview with police. In that interview, SC described the offender as “brown or black or white”. A little later she described him as having a white body and white hair. Whilst the defendant is a Caucasian man, he does not have white hair. 

18. [18]
    The defendant further argues that there is evidence that SC had made complaints of a sexual nature against her step-father, her father and another child. These complaints have been investigated by police, however no charges have been laid for varying reasons. Significantly, as the child is suggestible and at risk of confabulation there is a risk that she may have mistaken one memory with another. This is not a matter that can be explored given SC’s inability to remember the occasion which the charge relates to. She can’t be prompted by reference to the defendant’s name given that she did not know it. 

19. [19]
    A further matter that arises, which is related to the issue of suggestibility, is that there is evidence contained within the subpoenaed records from the Department of Child Safety that suggest that SC has told a notifier that she lied to the police about her father because her mother told her to do so. Those records also indicate that police conducted an investigation into SC’s father and the allegation made by SC about him. The allegation was found to be unsubstantiated. It was said by investigating police to a departmental officer that the complaint may have been made vexatiously, in that that there was some suggestion that SC had been coaxed into making a false complaint. 

20. [20]
    The defendant relies upon what he says is the implausibility of SC’s account in her section 93A interview and other features of invention and story-telling apparent in her account. I do not consider that these are factors that would warrant me exercising my discretion to exclude the interview. A jury is perfectly capable of assessing plausibility and features of invention for themselves.

21. [21]
    The prosecutor argues that anything contained in the departmental records that occurred after the making of the complaint in this matter is of limited use because SC may have become sexualised. He argues that I ought not rely upon an assumption made by police that SC was a “pawn in a war between the parents” and that I ought not consider that as evidence that calls into question the credibility of the complainant. I do not consider that the complainant’s credibility is necessarily diminished by an assumption made by police that she is being used by her parents in the way described. The unfairness which arises is because SC can’t be cross-examined about her account of the events involving the defendant in order for a jury to assess whether her memory is an accurate and reliable one or one that might be contaminated by what others have told her or by what has occurred to her in the past. 

22. [22]
    In relation to the disclosure made by SC to her mother, the prosecutor argues that whilst SC’s mother introduced the topic, the question she asked was not leading in that it did not suggest the answer. He further argues that her complaints were relatively consistent. That might be true of some complaints, however, SC was heard to say by her aunty that ‘nothing happened’. Further, SC’s mother did use a closed question “Don’t lie to mum, did he do what you said to aunty H?”, which Dr Walsh cautioned against. Whilst I accept that on its own this would not warrant me exercising my discretion to exclude the evidence, it is the combination of this factor with the inability to cross-examine, which gives rise to the potential unfairness.

23. [23]
    The experienced prosecutor argues that it hasn’t been established that SC can’t be cross-examined. He argues that defence counsel made a forensic choice to ask an open-ended question “do you remember the thing that happened to you?”. He argues that SC would not have understood what the “thing” was that she was being asked about. It should be noted that no attempt was made to clarify in re-examination SC’s memory of the event. The prosecutor further argues that SC was asked to give her entire evidence-in-chief again as her cross-examination. Experienced defence counsel placed on record at the beginning of the proceedings how he intended to approach his cross-examination. He indicated that he was doing so to be fair to the child and to give effect to the matters raised in the report of Dr Walsh upon which the Crown relied. No objection was taken by the prosecutor to that course. To criticise defence counsel for doing precisely what he said that he would do because of the very difficulties associated with cross-examination of this child is, in my view, unfair. The experienced prosecutor chose not to lead any evidence-in-chief, he chose not to ask SC if what she had told the police was true, he chose not to ask any questions, which would reveal that SC did in fact have a memory of the events that she could describe in either evidence-in-chief or re-examination. He chose not to ask any further questions of SC to confirm the identity of the defendant as the person who offended against her. Those decisions may equally be seen as forensic choices made by the experienced prosecutor. 

24. [24]
    SC watched her interview with police immediately prior to her attendance at court. She had clearly met and spoken to the prosecutor prior to her attendance at court. Despite that, she did not know that she was in a courthouse, nor did she know why she was present at court. She did not know or have any understanding of what she was going to be asked questions about. Defence counsel was in a very difficult position of having to ask non-leading questions in cross-examination in order to test SC’s evidence. She was reminded that a man stayed at her house a couple of years ago. She was reminded that she spoke to police about him. She was asked if she remembered the “thing” that happened to her that she told the police about and she responded yes. When asked to describe it she said that she forgot. The prosecutor argues that SC told the police many things and that she would not have understood what thing she was being asked about. However, he did not seek to clarify in re-examination that she did in fact have a memory of the alleged offence committed by the defendant. Further, she did not remember any of the things that she told police about in the interview. She was asked about guns and knives in cross-examination, which might have prompted her memory as she spoke about guns and knives in her interview with police. However, she did not relate those questions to anything that she told the police or that had occurred during the course of the event involving the defendant. I do not accept that defence counsel made a forensic choice to cross-examine the complainant in a way designed so that she could not and would not engage with the questions. 

25. [25]
    In Police v Dunstall,^[4] Nettle J said of the fairness discretion:

“In R v Swaffield, Brennan CJ spoke of the fairness discretion as the discretion recognised in R v Lee to exclude a voluntary statement when its reliability is put in doubt by reason of the conduct of a preceding police investigation or where, but for a trick or other unfair conduct on the part of the police, the statement would not have been made or made in the form it was. In future, it would be preferable to refer to that discretion as “the Lee discretion” and to regard the fairness discretion as it has come to be conceived of in Australia over the last quarter century as a residual discretion to exclude evidence which, although not attracting the operation of the Christie, Bunning v Cross or Lee discretions (“the recognised discretions“), would be productive of an unacceptable risk of miscarriage of justice” (footnotes omitted)

26. [26]
    The inability to cross-examine SC about the events, which give rise to the charge, means that the weight and credibility of her evidence cannot be effectively tested. Her evidence is critical to the prosecution’s case. Given the very significant matters that are capable of affecting the reliability of her account, in particular the manner in which the disclosure was made when considered against her suggestibility and the risk of contaminated memories when she has quite possibly been offended against by others, I am of the view that the receipt of the section 93A statement would be so productive of unfairness as to result in an unacceptable risk of a miscarriage of justice. 

27. [27]
    It would be, in my view, inexpedient in the interests of justice or unfair to admit the section 93A statement.

28. [28]
    This decision does not prevent my considering whether a permanent stay of proceedings should be ordered. However, I will give the prosecutor the opportunity to take what course he considers appropriate before considering that application.