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- Unreported Judgment
The Queen v TJM (No 2) QDCPR 4
DISTRICT COURT OF QUEENSLAND
R v TJM (No. 2)  QDCPR 4
District Court at Cairns
11 February 2019 (ex tempore)
11 February 2019
Application to further cross examine granted
CRIMINAL LAW – PROCEDURE - AFFECTED CHILD WITNESS - whether leave should be granted to further cross examine the complainants - whether in the “interests of justice”
Evidence Act 1977 s 21AN
R v Marshall  QCA 43
R v Fardon  QCA 317
TVM v The State of Western Australia (2007) 180 A Crim R 183
CA Cuthbert for the Applicant
N Friedewald for the Respondent
Queensland Lawyers for the Applicant
Cairns Office of the Director of Public Prosecutions for the Respondent
- The defendant is charged on a single indictment with six counts involving two complainants. The complainants are his younger sisters, B and A. Counts 1 and 2 relate to B, charging indecent treatment of a child under 12 and common assault respectively. Counts 3 to 6 relate to A, charging three counts of rape and one count of maintaining a sexual relationship with a child.
- The defendant applies for an order pursuant to section 21AN(2)(a) of the Evidence Act 1977 that the complainants be recalled to give further evidence at another preliminary hearing, and that any further cross-examination be confined to three issues: (1) a motive to lie about the complaints against the defendant; (2) collusion in the formulation of complaints against the defendant; and (3) attempts to withdraw the complaints against the defendant.
- The prosecution does not oppose the application. The Court must not make an order under section 21AN unless satisfied of two conditions. First, if the child were to give evidence before a Court in the ordinary way, the child could be recalled to give further evidence. Second, that it would be in the interests of justice to do so.
- The intention of the legislature is that children’s evidence should be pre-recorded and they should not be subjected to multiple cross-examinations. The expression “interests of justice” in section 21AN was considered in R v Marshall where the Court said that it is usually oppressive for a witness to be subjected to multiple crossexaminations. However, the conditions under section 21AN would be satisfied where the case for the defence has not been put to the complainants in their pre-recorded cross-examination.
25… 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.
27… 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 … 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 reposed in s 118(4) is enlivened.
- Further, at paragraph 74 His Honour 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 a consideration of the particular facts relevant to an application for a no jury order.
- Therefore, it is necessary to consider the circumstances of the offence and chronology of events in which the application is made. The circumstances of the alleged offending are summarised in a schedule of facts. The following summary is taken from my earlier pre-trial ruling on a separate issue in this matter on 12 December 2018.
- The complainants are the defendant’s younger sisters and lived with him and their family in Cairns. Both complainants shared a bedroom. Count 1 alleges that on a date unknown between December 2012 and January 2014, the defendant entered the room of both complainants at night while B was asleep. He is alleged to have touched B close to her vagina. That forms count 1. This caused her to wake. She discovered the defendant lying on the ground. She told him she didn’t want him to touch there, to which he responded, “Okay,” and crawled out of the room. At that time, the defendant was 15 to 16 years old. B was a child of seven to eight years old.
- B further alleges that on the next night, the defendant again entered her shared bedroom and approached her, touching her arm under the sheet and began moving his hand down her arm. That forms count 2. B awoke and told the defendant she didn’t want him to “touch it.” He was again lying on the ground adjacent to her bed. Again, he crawled out of the room.
- A alleges that on a date unknown between May 2013 and July 2013, the defendant entered the complainant’s shared bedroom and digitally penetrated her vagina. That forms count 3. At that time, the defendant was 15 years old and A was nine years old.
- Count 4 alleges that on a date unknown between August 2017 and October 2017, the defendant entered the complainant’s shared bedroom and again digitally penetrated her vagina. That forms count 4. A described the defendant as crawling out of the room. At that time, the defendant was 19 years old and A was 14.
- Count 5 alleges that on a date unknown between September and October 2017, A was asleep on the lounge room couch after watching television at night. The defendant entered the room and again he penetrated her vagina. That forms count 5. At that time, the defendant was 19 years old. A was 14 years old.
- The next day, on 10 October 2017, A disclosed the alleged offending to a friend. Both A and B recorded section 93A statements the same day disclosing the offending conduct. A disclosed further uncharged acts. She alleges the defendant touched her in a similar way approximately 30 to 40 times between mid-2013 and the last offence in October 2017.
- Count 6 alleges that the defendant unlawfully maintained a sexual relationship with A while he was an adult in the period between 24 October 2015 and 10 October 2017. On 10 October 2017, the defendant voluntarily attended the police station and participated in a record of interview in which he denied all the offending.
- On 12 December 2018, the defendant applied unsuccessfully pursuant to section 590AA to sever counts 1 and 2 relating to B from counts 3 to 6 relating to A on the indictment. In dismissing that application, I found that the charges formed part of a series of offences of the same or similar character for the purposes of section 567(2). I also found that the evidence of each complainant was cross-admissible against the defendant as similar fact evidence and could be used by a jury as supporting proof of the charge relating to the other.
- I found that there were a number of underlying similarities or unity in complaints, including the following. The complainants are sisters in the same family. The defendant is their older brother. The alleged offending began around the same time and within the same date range. There was a temporal connection between counts 1, 2 and 3. The complainants were close in age. The defendant lived with the complainants in the same house while the offending allegedly occurred. Each offence occurred in the family home. Each offence occurred late at night or in the early morning when the complainants were initially asleep. The defendant used a similar approach, at least in the early stages, in which he entered their shared bedroom at night. Each sexual offence involved touching in the vaginal area. Each complainant awoke to find the defendant in the room. The defendant did not persist in offending when the complainants woke up or challenged him. Both complainants described the defendant sitting or lying on the floor beside the bed. Both complainants described the defendant crawling on the floor of the bedroom.
- On 13 October 2018, the complainants’ evidence was pre-recorded pursuant to section 21AK of the Evidence Act 1977, and they were cross-examined by the defendant’s solicitor. The defendant’s case was put to the complainants. The defendant’s case was that the offending did not happen, and that on some counts he was in the room for another purpose. The complainants each rejected those suggestions.
- Unfortunately, the defendant’s solicitor did not engage counsel until after the section 21AK hearing had been conducted and the matter had been listed for trial. On 13 December 2018, the matter was listed as the number 5 trial in the two-week sittings before me commencing 4 February 2019. However, the trial was not reached in those sittings.
- On Thursday 7 February 2019, the matter was mentioned. Counsel appeared and foreshadowed the current application and the grounds for it. I directed the defendant to file any application by Friday 8 February and listed the application for hearing today, Monday 11 February.
- The defendant’s application to recall the complainants is put on two bases. First, that on 6 February 2019 during the defendant’s conference with counsel, he gave certain instructions suggesting a motive to lie and the possibility of collusion in the fabrication of complaints. It is accepted by both parties that the complainants were not cross-examined about motive to lie or collusion in their section 21AK prerecorded evidence.
- Second, that on 7 February 2019, during counsel’s conference with the mother of the defendant and the complainants, she disclosed for the first time an attempt by each complainant to withdraw these complaints. These attempts had not previously been disclosed by police. The same day, the defence immediately sought disclosure from the prosecution of documents relating to any attempted withdrawal of the complaints.
- On Friday 8 February 2019, the Office of the Director of Public Prosecutions disclosed two statements from police officers which were tendered on the application before me today. At least one of those statements raises the possibility that the complainants did attempt to withdraw their complaints.
- In support of the defence submission that it is in the interests of justice to allow the application, defendant’s counsel points to the following matters. First, that counts 1 and 2 are alleged to have been committed against the complainant B on unknown dates between December 2012 and January 2014. Second, counts 3 to 6 are alleged to have been committed against complainant A on dates between May 2013 and October 2017. Each complainant made a section 93A statement on 10 October 2017. The section 21AK hearing was held on 13 December 2017, 14 months later. The application to recall was made on 8 February 2019. So it is clear that 16 months have elapsed since the section 93A statements.
- It is submitted that the issues only came to light during conferences with counsel on 6 and 7 February 2019, and instructions were provided about those matters in response to specific questions by the defendant’s counsel. The defendant has no criminal history and limited financial means. It is submitted that the attempt to withdraw the complaints could not have been known to the defence before the conference with the mother on 7 February 2019. It is a matter that should have been disclosed by police but was not. Finally, it is submitted that by not cross-examining the complainants on the defendant’s instructions on these issues, the defendant would be denied a chance of acquittal that is fairly open.
- I accept the defendant’s submission that this case is distinguishable on its facts from R v Marshall in which the Court of Appeal affirmed the trial Judge’s decision to refuse an application under section 21AN. That application was made on the first day of the fourth trial. It occurred five years after the alleged offending, four years after the section 93A statement and two years after the section 21AK hearing. The complainant in that case was cross-examined at length at the section 21AK hearing. The defence case had been put to the complainant, as had a motive to lie, and the application arose from a change of counsel just before the trial, resulting in the making of a different forensic decision.
- Here, the defendant’s solicitor did not cross-examine the complainants about motive to lie or possible collusion. The defendant’s counsel submits that this is not a case where the solicitor made a forensic decision not to cross-examine the complainants about those issues. Rather, it is submitted that the solicitor did not cross-examine the complainants about these issues because he did not obtain instructions about them from the defendant. No evidence has been placed before the Court about these particular matters.
- If indeed that is the case, that the solicitor did not cross-examine the complainants about these issues because he did not obtain instructions from the defendant about them, then, in my view, the solicitor failed in his professional obligations to his client on that issue. That is because the issues of motive to lie and possible collusion in the fabrication of evidence are hardly novel and unexpected. They would have been obvious questions for a legal practitioner to ask of a defendant in any complaint of sexual assault, but particularly where the complainants were both children and sisters living in the same household with the potential opportunity of collusion that that may have afforded.
- I accept that the failure to cross-examine about these issues occurred due to oversight, rather than a forensic decision. Although the defendant was a person of limited financial means, the solicitor would have been far better advised to retain counsel to appear at the section 21AK hearing, given that it is the most important evidence in the proceeding, rather than delaying engaging counsel until after that event had occurred.
- Nonetheless, the defendant should not be punished for the default of his solicitor. The period of the alleged offending covers a number of years. While any delay between the section 93A statement and section 21AK hearing and the application to recall is undesirable in the context of young children giving evidence, in this case the delay of 16 months is not so significant as to overwhelm the other factors that the Court has identified.
- The complainants are now 15 and 13 years old. I accept that one of the three issues, the alleged attempt to withdraw the complaints, has only just come to light. I accept that it should have been disclosed by police earlier. There is no suggestion of any failure on the part of the prosecutor to disclose that information. If the defendant is not afforded the opportunity to cross-examine the complainants about those issues, he may be denied a chance of acquittal that is fairly open.
- The prosecutor concedes that the issues of motive to lie and collusion are linked to the attempt to withdraw the complaints, and that the defendant should be permitted to cross-examine about all three issues.
- In those circumstances, I am satisfied that if the complainants were to give evidence before a Court in the ordinary way, they could be recalled to give further evidence. I am also satisfied that it would be in the interests of justice to do so. The defendant’s application is allowed. I make the following orders:
- (1)that the complainants in this matter, A, date of birth 15 July 2003, and B, date of birth 3 April 2005, be recalled to give further evidence pursuant to section 21AN(2)(a) of the Evidence Act 1977;
- (2)that any further cross-examination of the abovenamed complainants be confined to the issues of:
- motive to lie about the complaints against the defendant;
- collusion in the formulation of complaints against the defendant; and
- attempts to withdraw the complaints against the defendant.
- Published Case Name:
The Queen v TJM (No 2)
- Shortened Case Name:
The Queen v TJM (No 2)
 QDCPR 4
11 Feb 2019