R v AGJ[2020] QDCPR 12

DISTRICT COURT OF QUEENSLAND

1. [1]
   What follows are the reasons for the orders made on 17 February 2020, in effect to permit the defendant’s application for further cross-examination of the complainants in this matter, notwithstanding that their evidence has been previously pre-recorded in this court.

General circumstances

2. [2]
   The defendant is indicted before the court in respect of 29, mainly sexual offences, alleged to have been committed in respect of his two daughters and alleged to have occurred when they lived with him, under his care, between December 2010 and February 2017. In each instance and in addition to a number of specific charges, there is an allegation of maintenance of an unlawful sexual relationship. In respect of the defendant’s older daughter, “K”, that is alleged to have occurred until her 16^th birthday, on 21 December 2015.  It may be further noted that there are 13 counts alleging assaults committed mostly upon his younger daughter, “A”, but also two counts of assaulting the older daughter, K, in the period from December 2016 until February 2017. 

3. [3]
   The older daughter of the defendant is now aged 20 years and the younger daughter is now aged 15 years.

4. [4]
   The defendant’s application for the recall of both complainants for further cross-examination in respect of these charges, may be noted to be made in the context that there is no objection made, or to be made, to the joint trial of these allegations. And occurs in the context of the following relevant chronology:

• On 3 February 2017, allegations of the kind reflected in the indictment first came to the attention of authorities and on that date, each complainant was interviewed and the recording of those interviews is relied upon by the prosecution pursuant to s 93A of the Evidence Act 1977 (“s 93A interview”);
• As a consequence, each child was then taken into departmental care;
• On 7 March 2017, each complainant was involved in a further s 93A interview, for which a child safety officer employed in the Department of Childrens Services, was present;
• On 26 March 2018, the indictment was presented in this court and after a somewhat chequered history of attempts to do so, ultimately proceeded to the pre-recording of the evidence of each complainant, at Maroochydore on 25 February 2019;
• For various reasons, the trial has not proceeded thereafter, in accordance with listings for that purpose made for the sittings conducted at Kingaroy in August and November 2019. And at the last sittings, it was listed as the first trial to be conducted at this sittings, which commenced on 10 February 2020;
• On 10 February 2020, counsel briefed for that trial made this application and the trial list was rearranged to allow that to occur. It is to be noted that counsel making the application for the defendant was not the counsel who cross-examined the complainants at the pre-recording of their evidence and has only been briefed consequently to the unavailability of that counsel, at the most recent sittings of the court.

5. [5]
   The application as far as it relates to the complainant, A, is necessarily pursuant to s 21AN of the Evidence Act 1977 and therefore confronts the provisions of subsection (3):

“(3) The court must not make the order unless satisfied that—

(a) if the child were giving evidence before a court in the ordinary way, the child could be recalled to give further evidence; and

(b) it would be in the interests of justice to make the order.”

6. [6]
   Although the position in respect of the complainant, K, is not so statutorily circumscribed, the prosecution seek to assimilate her position to that of her sister on the basis that similar measures for the taking of her evidence were adopted pursuant to s 21A of the Evidence Act 1977 and because, notwithstanding that the adoption of such measures occurred without objection or contest, the application in that regard relied not just upon her status as a complainant in respect of sexual offences but also the support of a report of a clinical psychologist, which identified in addition to the traumatic effects of her experiences upon her mental health, that she has a learning disorder with an intellect that fell into the low average range, and which was more fully expressed as an assessment that her:

“… intellect fell into the low average range (better than 16% of her similar aged peers) with a Full Scale IQ 85.  Her ability with verbal comprehension was evidently impaired (better than 12% of her similar aged peers).  Similarly we see her working memory and processing speed also impacted upon (5^th and 10^th percentile respectively).  Her scores suggest that [K] is easily distracted, has loss of concentration and, frequently forgets instructions.  I anticipate she will struggle to cope with tasks that involve simultaneous processing in storage, and lose track of her place in complex tasks.”

As to the questioning of her, it may be noted that it was observed:

“Unnecessarily complex questions may also impede [K’s] comprehension.  Closed questions, which elicit a simple ‘yes’ or ‘no’ answer is likely to elicit the least reliable evidence.  Confusing questions, such as questions containing double negatives will also elicit extremely unreliable evidence.  On the other hand if [K] is questioned in a supportive and non-intimidating manner, she will make fewer mistakes and have her anxiety reduced.”

The Application

7. [7]
   For the applicant, it was a particular focus of submissions that the concern was that the applicant’s case had not been put to the witnesses and that he had thereby been denied a fair chance of acquittal. More specifically, it may be noted that in the written outline of argument (at [2]) it was identified that the application was:

“That defence counsel be permitted to:

1. (a)
   put full instructions with respect to each count;

2. (b)
   cross-examine as to inconsistencies within each complainant’s s 93A Evidence Act statements;

3. (c)
   cross-examine about a motive to lie;

4. (d)
   cross-examine about the possibility of collusion in concoction;

5. (e)
   put instructions from other defence witnesses.”

8. [8]
   Each of the parties has made reference to the decision in R v Marshall.^[1]  For the prosecution, particular reliance is placed upon the observation that s 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 the order”.^[2]  That is, in the sense that in the context of the statutory scheme requiring the “pre-recording” of the evidence of an affected child witness pursuant to s 21AK of the Evidence Act 1977 there is the expectation that this will usually occur on a single occasion. Particular attention is then drawn to the following further observations in Marshall:

“[31] It is usually oppressive for a witness to be subjected to multiple cross-examinations. The terms of s 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. …”^[3]

And it was, in this context, pointed out that it had been approximately a year since the evidence of the complainants was taken pursuant to s 21AK and approximately three years since their interviews; which are admissible pursuant to s 93A of the Evidence Act 1977, were adopted as part of their evidence at the s 21AK hearing.

9. [9]
   Further, those submissions sought to adopt the approach taken in Marshall to the complaints raised there and as to purported deficiencies or inadequacies of the conduct of the s 21AK hearing by a prior counsel, by the examination of the scope for the reflection of forensic judgments, as were reasonably open to that counsel and as discussed in TKWJ v The Queen.^[4]

10. [10]
    For the applicant/defendant, particular emphasis is placed upon the following observation in Marshall:

“An obvious case where these conditions would be satisfied would arise where the case for the defence has not been put to the accused in the pre-recorded cross-examination”.^[5]

Some Principles

11. [11]
    The passage from Marshall particularly relied upon for the applicant, is not to be taken as indicating that it will always be necessary, or desirable, to have such a witness recalled simply because of some earlier failure to formally suggest what is apparently the defendant’s case or proposition. Neither is the position upon such an application to be entirely equated with the situation of the examination of forensic decisions made by counsel in respect of a completed trial process and where the question is then whether any miscarriage of justice has objectively occurred.

12. [12]
    Neither, in respect of the provisions of s 21AN of the Evidence Act, are there any generally identified restrictions as to the recalling of any witness, child or adult, other than perhaps pragmatic considerations or those relating to prejudicial effect upon the position of another party. It may be observed that the exercise of discretion as to the recall of witnesses has been generally identified as being premised upon the second consideration in s 21AN and as to what is considered to be in the interests of justice.^[6] As may be noted, it was observed in R v Masters:^[7]

“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: Fleming (unreported Court of Criminal Appeal, NSW, Hunt, Campbell and Matthews JJ, 12 December 1989), p 9.”

13. [13]
    As to the application of the rule of practice known as the rule in Browne v Dunn,^[8] reference is often made to the following formulation by Hunt J in Allied Pastoral Holdings Pty Ltd v FCT:^[9]

“It has in my experience always been a rule of professional practice that, unless notice has already clearly been given of the cross-examiner’s intention to rely upon such matters, it is necessary to put to an opponent’s witness in cross-examination the nature of the case upon which it is proposed to rely in contradiction of his evidence, particularly where that case relies upon inferences to be drawn from other evidence in the proceedings. Such a rule of practice is necessary both to give the witness the opportunity to deal with that other evidence, or the inferences to be drawn from it, and to allow the other party the opportunity to call evidence either to corroborate that explanation or to contradict the inference sought to be drawn.”

14. [14]
    Further and in MWJ v R,^[10] it was observed in respect of the rule in Browne v Dunn that:

“[38] …The rule is essentially that a party is obliged to give appropriate notice to the other party, and any of that person’s witnesses, of any imputation that the former intends to make against either of the latter about his or her conduct relevant to the case, or a party’s or a witness’ credit.

…

[40] Reliance on the rule in Browne v Dunn can be both misplaced and overstated. If the evidence in the case has not been completed, a party genuinely taken by surprise by reason of a failure on the part of the other to put a relevant matter in cross-examination, can almost always, especially in ordinary civil litigation, mitigate or cure any difficulties so arising by seeking or offering the recall of the witness to enable the matter to be put. In criminal cases, in many jurisdictions, the salutary practice of excusing witnesses temporarily only, and on the understanding that they must make themselves available to be recalled if necessary at any time before a verdict is given, is adopted. There may be some circumstances in which it could be unfair to permit the recalling of a witness, but in general, subject to the obligation of the prosecution not to split its case, and to present or make available all of the relevant evidence to an accused, the course that we have suggested is one that should be able to be adopted on most occasions without injustice.”

15. [15]
    However and in Cross on Evidence, at [17435], and in the context of the notation of authority acknowledging the general applicability of the rule to criminal trials in Queensland,^[11] there is notation otherwise of the recognition of some practical limitations of such application in criminal proceedings. And it is also particularly noted that, apart from the sense of fairness to witness and opposing parties,^[12] as an underlying objective of the rule, that:

“… non compliance with the rule makes the trial unworkable from the court’s point of view, as Wells J has pointed out:

“… a judge (or jury) is entitled to have presented to him (or them) issues of facts that are well and truly joined on the evidence: there is nothing more frustrating to a tribunal of fact than to be presented with two important bodies of evidence which are inherently opposed in substance but which, because Browne v Dunn has not been observed, have not be brought into direct opposition, and serenely pass one another like two trains in the night.”^[13]

Discussion

16. [16]
    The potential oppression that may be involved in the allowance of further cross-examination of these young witnesses, is to be recognised and may be recognised as underlying the legislative expectation that as far as affected child witnesses are concerned, the usual course is that their cross-examination will occur at a single pre-recording. Further and when, as here, the particular vulnerability of the older complainant as a witness in the court, has resulted in similar measures being adopted pursuant to s 21A of the Evidence Act, a similar expectation may be seen as inherent in the orders made for the adoption of such measures. 

17. [17]
    However and where, as here, there is no practical difficulty nor particular prejudice identified in doing so, and whether considered under s 21AN of the Evidence Act or otherwise, the exercise of discretion to allow or not allow further evidence is informed only by the criterion of the interests of justice in a particular case.  However and in a case like this, and as noted in Marshall, this should only be allowed where “the preponderance of the interests of justice warrant this course”. 

18. [18]
    Accordingly and if it stood alone, it may not be sufficient, as was contended here for the defendant, that there had been some prior absence of cross-examination as to inconsistencies which appear on the recorded statements of the witnesses. If that be so, then such may be expected to be evident from the evidence to be presented to the jury and then made the subject of appropriate submission. Neither might it suffice that, as emerged upon the hearing of the application, a primary concern in respect of putting instructions from other defence witnesses is as to suggestions as to limitation of opportunity for offending or for prior complaint to have been raised with others.

19. [19]
    It is unnecessary to discuss any of the further detailed examples of potential further cross-examination points discussed in submissions, because and as became common ground upon the hearing of this application, the most substantial of the contentions made for the defendant was in respect of the extent of prior cross-examination about the possibility of collusion and concoction of allegations by the complainants. And it is to be noted that it was appropriately conceded by the respondent that this issue, as developed upon the application, is related to the issue as to motive to lie and as further elaborated, to some extent to the issue as to inconsistencies arising out of the recorded evidence of the complainants.

20. [20]
    In the context of the joinder of the allegations of these complainants in the indictment, the possibility of collusion and concoction of allegations (or as it is referred, in potentially wider ambit, in s 132A of the Evidence Act 1977: “collusion or suggestion”) is a potentially important, if not central issue.  For instance, it is to be noted that consistently with the decisions in Hoch v The Queen (1988) 165 CLR 292; Pfennig v The Queen (1995) 182 CLR 461 at page 483, the draft Benchbook Directions (at 52.2-52.3) in respect of the cross-admissibility and use of the evidence relating to other allegations, in such circumstances, suggests the following:

“First, you must be satisfied that the evidence of each complainant is independent of each other.  By ‘satisfied that the evidence of each complainant is independent’, I mean that you must be satisfied that there is no real risk that the complainants have together concocted similar complaints.

The value of any combination, and likewise any ‘strength in numbers’, is completely worthless if there is any real risk that what the complainants said was falsely concocted by them. 

I direct you that you cannot use the evidence of the complainants in combination unless you are satisfied that there is no real risk the evidence is untrue by reason of concoction. 

You must be satisfied that there is no real risk of concoction: a real risk is one based on the evidence, not one that is fanciful or theoretical.”

And the draft then suggests reference to any relevant evidence. 

21. [21]
    Obviously and where the evidence establishes no such opportunity or real risk, there will effectively be no issue. However and where there is some evidence or possibility of collusion or suggestion, it is necessary that the competing cases be engaged, so that the jury are in a position to apply any such direction to a proper assessment of the facts.

22. [22]
    Here and upon the evidence to date, it may be observed that both complainants were cross-examined in respect of a prospective motivation to make allegations against their father and on the defendant’s case, to do so falsely, in that the allegations of K were first raised at school, upon what may have been her last day at that school and in the context of her father’s expressed disapproval of some aspects of her behaviour at home and of her relationship with her boyfriend and threats to send her to a different school.^[14]

23. [23]
    For the applicant, it is pointed out that there are, in the evidence, some indications of the prospect of some collusion being involved in respect of the allegations of the complainants. It suffices to note that attention is particularly drawn to the following:

1. (a)
   the reliance of the prosecution upon the more detailed disclosures of each complainant, in their second s 93A interview, each conducted on 7 March 2017, and as each occurred in the context that:

1. (i)
   the complainants had been accommodated in care together since 3 February 2017; and

2. (ii)
   each presented with written notes as to their allegations, on 7 March 2017;

2. (b)
   that whilst the prosecution case is not understood to rely, to any appreciable sense, upon evidence from either complainant as an eye witness to the commission of any offence in respect of the other, there is reliance upon some preliminary complaints made by each to the other; and

3. (c)
   some more specific instances of the complainants relating allegations in a combined sense, for instance by reference to things that happened to “us” and “our private parts”.  Further, reference was made to the following extract from the s 93A interview with complainant K on 7 March 2017:

“Whatever he has done to [A], he has done to me as well.

So, when it’s done to [A], where have you been?

Um, I would be probably be gone to bed early.

Ok.

Or in the morning when he forces her to give him a cuddle.

Yeah.  So you’ve never seen this happen to [A]?

No.”

24. [24]
    It is then to be noted, as conceded for the respondent, that the only cross-examination in the pre-recorded evidence of either complainant and as to the prospect of collusion, concoction or suggestion, was in the cross-examination of the complainant K, and as follows:

“And you spoke to your sister [A] about what you’d told the police? --- I’m not sure.

When you were taken into care on the 3^rd of February, was [A] placed in the same care?  Did you stay together? - - - Yes, we stayed together.

Did you then prepare a written journal about things that you remembered with your father? - - -  Yes, I think so.

Did [A] do likewise? - - -  I don’t understand the question.

Did [A] keep a journal as well or create a journal? - - - Not sure.”^[15]

Conclusion

25. [25]
    In respect of such a potentially critical issue, the problem created by an absence of any meaningful cross-examination on the issue of potential collusion, concoction or suggestion is not easily to be dismissed as in the nature of a reasonable forensic choice upon the basis of avoidance of the prospect of damaging evidence on the issue. Whilst and as the passage from the evidence of the complainant K itself exemplifies, the cross-examination of her had been troubled by some difficulty in phrasing questions in order to obtain a response from her, such a difficulty is not necessarily insurmountable. And the topic was not broached at all with the complainant A.

26. [26]
    In respect of such a critical issue, the interests of justice are not enhanced by the absence of meaningful cross-examination, whether viewed from the perspective of the prospect of acquittal of the defendant, or the fairness of the trial in terms of the administration of justice and particularly in the desirability of the proper engagement of issues. And where the means of remediation of the problem are reasonably available, the preponderance of the interests of justice warrants doing so.

27. [27]
    However, and particularly having regard to the evident sense of potential oppression that may be involved, such a conclusion does not mean that there should be allowance of a fresh and full cross-examination of the witnesses. Given the accepted interconnection between some of the issues which were identified in the application and the stated reliance on some material obtained since the prior pre-recording, the limitation imposed was not to go further than the proposed topics, except as to duration, in order that the further cross-examination may be properly prepared and focused to the important points to be engaged with each witness. Therefore and subject to further order of the court, the further cross-examination of each witness was limited to 30 minutes.