R v LJD[2020] QDCPR 133

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The applicant-defendant LJD is charged with one count of grievous bodily harm and two counts of assault occasioning bodily harm in respect of a child complainant HK. All counts are alleged to have occurred on 11 September 2018 at Inala.

Application

2. [2]
   The applicant seeks to exclude certain evidence pursuant to sections 98 and 130 of the Evidence Act 1977 (Qld): 

1. (a)
   the portion of 93A recording held with SF referred to at p.10 ll.309 to 318, inclusive;   

2. (b)
   evidence provided in the statement of Constable Narelle Hudson at paragraph 9; and

3. (c)
   evidence provided in the statement of PCSC Alicia Hogan at paragraph 12. 

The evidence sought to be excluded

3. [3]
   The applicant’s outline of submissions at paragraphs 4-7 identifies the specific evidence sought to be excluded.

The first 93A statement 

4. [4]
   The evidence sought to be excluded is contained within the transcript of the first interview that the two police officers had with the child SF:

NH:  Did – did Uncle LJD pick HK up like this?

SF:  Yeah.

NH:  Okay.  So you show Narelle how he did it.  You put the pen – yeah.  I’ll hang on to this, and you show Narelle.  So he picked her up and then what did he do?  He picked her up?

SF:  I’ll show you a trick.

NH:  Okay.  Okay.

SF:  You – I      

NH:  Is this what he did to HK?  So he got her leg and twisted her leg.  Is that what he      

SF:  Yeah.  So this is my new dolly.  She’s dressed and hold her.

Evidence to be led from officers Hudson and Hodges by the Crown

5. [5]
   Evidence that flows from the portion of the transcript detailed above that is also sought to be excluded is contained within the statements of the two police officers.

6. [6]
   Officer Hudson provided a statement at 20 November 2018 articulating that it was the child SF who said that Uncle LJD had hurt HK, and she demonstrated with a doll that he had pulled HK’s leg out from her body and twisted it using two hands.

7. [7]
   Officer Alicia Hogan also provided a statement that:

SF was clear that Uncle LJD had twisted HK’s leg. SF demonstrated this with the doll, which was similar to a Baby Bjorn and pulled out the legs away from the body.

Background 

8. [8]
   The applicant’s outline of submissions at paragraphs 8-18 helpfully sets out the background in respect of these matters as follows:

The defendant is charged with grievous bodily harm of HK.  At the time the offences [were] allegedly committed the defendant, his de facto partner and his de facto partner’s child HK (aged 16 months) were residing with the defendant’s sister, Ms D, at her address in Inala.  Ms D resided with her husband RF and their three children: SF (at the time four years of age); [name redacted] (at the time three years of age);  and [name redacted] (at the time 20 months old). 

It is the Crown’s position that on the night of 11 September 2018 the defendant committed an act that resulted in a “displaced spiral fracture through the mid-shaft of the left femur of” the complainant HK.  Medical evidence suggests that that the spiral fracture was caused by “significant torsional, or twisting force applied either directly to the limb or executed [sic] the point of impact following a fall or throw.”

The case is largely circumstantial against the defendant.  HK is left in the care of Ms D while the defendant and his partner go to the shops alone.  Ms D then observes there to be some injury to the child’s leg and contacts the child’s mother and the defendant by telephone asking they return.  Upon their return an ambulance is called, and the defendant and his partner proceed to the hospital with the child.

The evidence discloses that the defendant, Ms D and Ms L all have time alone with the child in their care consistent with the time period medical professionals suggest the injury occurred.  On 11 September 2018 Ms L observes Mr LJD standing over a mattress holding HK under the arms, the child facing him.  He then drops her onto her back.  Ms L assumes he was trying to play with her and make her laugh but it wasn’t working. 

Ms D states that, prior to being left with the complainant, the defendant and Ms L were in the lounge room with HK for about five or 10 minutes.

At approximately 4 or 5 pm on 21 September 2018 Mr RF, Ms D’s partner, overheard either Ms L or LJD tell his daughter SF to stop jumping on the mattress as HK was asleep.  Mr RF came into the room and was unsure whether SF had jumped on HK’s legs as the child had a blanket over her legs and he could not see properly.

Upon HK being taken to hospital by the defendant and her mother, a representative from the Lady Cilento Hospital contacts the Department of Child Safety with respect to an “urgent notification” of harm.  The police are notified.  As a consequence, the following day, on 12 September 2018, Plainclothes Senior Constable Alicia Hogan and Senior Constable Narelle Hudson attend upon the residence, arriving at 11 am. 

Neither of the officers activate body-worn camera footage to record the attendance upon the residence.  Both officers initiate a conversation with SF (at the time aged four) in her room without the presence of any adults.  The officers utilised voice recorders to preserve the conversation. 

…

A further 93A statement is taken from SF on 14 September at the Inala Police Station. 

On 31 August 2020 Ms SF gives evidence pursuant to s21AK of the Evidence Act in a closed court before her Honour Judge Sheridan…  [Citations deleted]. 

Further evidence 

9. [9]
   Each of the police officers involved, PCSC Narelle Hudson and PCSC Alicia Hogan, gave oral evidence before me on 2 November 2020. Each police officer gave a description of SF showing, with a Baby Bjorn doll, what she said the defendant did with HK. It is uncontroversial to note that those recollections differed significantly in terms of the mechanisms each police officer describes in respect of SF and the doll.

10. [10]
    Neither of the police officers made any attempt to video record the interaction with SF; neither police officer took notes contemporaneously; neither police officer sought to take SF directly down to the Inala Police Station, some five minutes drive away, to capture her evidence in a purpose-built child interview room, on audio and video. Neither of the police officers sought to have the child state on the audio recording what her actions were, and neither repeated what they had just seen on tape.

The law

11. [11]
    Section 98 Rejection of Evidence:

1. (1)
   The court may in its discretion reject any statement or representation notwithstanding that the requirements of this part are satisfied with respect thereto, if for any reason it appears to it to be inexpedient in the interests of justice that the statement should be admitted. 
2. (2)
   This section does not affect the admissibility of any evidence otherwise than by virtue of this part. 

12. [12]
    Section 130 Rejection of Evidence in Criminal Proceedings:

Nothing in this Act derogates from the power of the court in a criminal proceeding to exclude evidence if the court is satisfied that it would be unfair to the person charged to admit that evidence.

13. [13]
    In R v FAR [1996] 2 Qd R 49, Davies JA observed at p.61:

The question whether the discretion under ss98 or 130 of the Evidence Act 1977 should be exercised to exclude a statement otherwise satisfying the requirements of s.93A will almost always turn on its reliability;  and there may be many factors, including in some cases an inability to test the reliability of the statement by cross-examination, which may affect that question.

14. [14]
    In R v Morris; ex parte Attorney-General [1996] 2 Qd R 68, Dowsett J observed at p.75:

It cannot be correct to test admissibility by reference to the likely outcome of the case.  I do not imply that inherent unreliability may not be a basis for the exercise of the discretion under s.98.  Circumstances may arise in which the statement itself appears to be so unreliable, either because of its contents or because of the way in which it was obtained, that it ought not be received in evidence directly for reasons directly related to the interests of justice.

15. [15]
    Relevantly, in R v Allen (a pseudonym) [2020] QCA 233, Sofronoff P observed at para 15:

It must be a rare case in which evidence would be excluded pursuant to ss98 or 130 merely because it is said to be unreliable.  If evidence is unreliable it will be given no weight, and, in a particular case, such unreliability would lead to a reasonable doubt.  Sometimes the complete unreliability of evidence is demonstrated by cross-examination after it has been admitted, and sometimes it is demonstrated by evidence tendered afterwards that falsifies the early evidence.  That does not render the impugned evidence inadmissible;  it renders it of no weight. 

Discussion

16. [16]
    The applicant frames the argument for exclusion as follows:

1. (a)
   The initial s.93A interview with SF was conducted on 12 September 2018 in unsatisfactory circumstances at SF’s house with her little sister and father each trying to enter the room, and it was recorded only on audio, not on video. 

2. (b)
   There was impermissible leading or suggestion by police officer Hudson to SF about the mechanism of injury SF demonstrated on her Baby Bjorn doll.
3. (c)
   Neither police officer Hudson nor police officer Hogan took a note of what SF demonstrated, nor did either repeat the description on tape and/or get the child to confirm what she had shown them.
4. (d)
   Each of police officer Hudson and police officer Hogan had a different recollection of what the child SF demonstrated on the doll. 
5. (e)
   It is, at best for the prosecution, equivocal as to whether SF is adopting what police officer Hudson says about the mechanism of injury.
6. (f)
   At the s.93A interview on 14 September 2018, SF provides no evidence as to the mechanism of injury of the complainant.
7. (g)
   At the s.21AK hearing on 31 August 2020 SF had little recollection of the events the subject of the charges and/or her conversations with police, and it was effectively not possible to cross-examine her on those matters.

17. [17]
    As a result of the capacity assessment by Dr Michael Beech the cross-examination of the child proceeded subject to an order by Judge Sheridan that:

The questions posed to SF be short and use simple language, and leading questions should be avoided.

18. [18]
    In summary, the applicant sought to exclude the relevant passages from the s.93A interview on 12 September 2018, and the relevant descriptive passages of police officers Hudson and Hogan for the following reasons:

1. (a)
   The audio recordings suggest the mechanism was suggested to the child.

2. (b)
   No video recording was made of the conversation.

3. (c)
   No attempt is made by either officer to have the child accept such a version.

4. (d)
   The child does not recall this evidence in the second 93A interview two days later.

5. (e)
   Due to her age and the order made by her Honour Judge Sheridan, the child was unable to be cross-examined by defence on the issue. 

19. [19]
    The applicant submits that all these factors combine to support a conclusion that the evidence is unreliable, and the inability to cross-examine the child on the issue creates a distinct unfairness for the defendant upon this trial.

20. [20]
    With respect, the applicant has correctly identified a series of unsatisfactory aspects to the s.93A interview on 12 September 2018 which do not reflect well on either police officer. The process they followed has led to uncertainty in terms of exactly how the child came to describe the mechanism of injury in the impugned passage of the interview, and what it was that she described (given the lack of any video recording, notetaking and/or adoption on tape by the child of her demonstration with the doll).

21. [21]
    However, with due weight being given to all the facts I’ve identified above, and being conscious that the Crown case is substantially circumstantial, it is my view that neither the interests of justice, nor unfairness to the applicant, lead me to conclude that the identified evidence should be excluded. In my view, all of the issues raised by the applicant go to the issue of reliability and, therefore, weight. As Sofronoff P observed in R v Allen at paragraph 15:

That does not render the impugned evidence inadmissible; it renders it of no weight.

22. [22]
    Respectfully, the matters raised should all be the subject of a carefully crafted direction by a trial judge to the jury in assessing reliability and weight in respect of this aspect of SF’s evidence and the concurrent relevant observations of police officers Hudson and Hogan. It follows that the application to exclude evidence fails.

Order

23. [23]
    Application dismissed.