R v JGN[2023] QDCPR 110

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   On 25 August 2022, the Crown presented an indictment against the defendant, JGN alleging the following counts:

Counts 1 and 2: indecent treatment of a child under 16 and under 12;

Counts 3 and 4: rape;

Counts 5 and 6: indecent treatment of a child under 16.

2. [2]
   The complainant in respect of all six counts is GPN born 8 July 2007.^[1]  The offences are alleged to have occurred over a range of dates from 7 July 2013 (count 1) to 14 June 2021 (count 6).  The complainant died on 10 September 2022.^[2]  The complainant was interviewed by Sergeant Trudy Lee, Stonier on 2 July 2021 pursuant to Evidence Act 1977 (Qld) (EA) s. 93A.  
3. [3]
   The defendant was the subject of a registry committal (Justices Act 1886 (Qld) (JA) ss. 114-117) at Mount Isa on 5 April 2022 and was committed on three charges of indecent treatment of a child under 16 and under 12, one charge of attempted indecent treatment of a child under 16 and under 12, two charges of rape, and one charge of indecent treatment of a child under 16.^[3]  The indicted counts set out above diverged slightly from the committed charges.  

Applications  

4. [4]
   The Crown seek an order that the complainant’s interview with police on 2 July 2021 be admitted as evidence in the defendant’s trial,^[4] pursuant to EA s. 93B and JA s. 110A and s. 111.  
5. [5]
   The defendant seeks an order pursuant to Criminal Code 1899 (Qld) s. 590AA that the recorded statement of GPN provided pursuant to EA s. 93A be excluded, an application which is opposed by the Crown.
6. [6]
   The Crown concedes that if an order under EA s. 93B is granted, it applies only in respect of the rape counts (see EA s. 93B which limits its application to offences contained in Criminal Code chapters 28-32, which includes rape but does not include indecent treatment charges). Further, although JA s. 110A(12)-(15) covers the playing of evidence of witnesses who have died; because the Magistrates Court proceedings in respect of this defendant were conducted by way of a registry committal, then JA s. 116(2) provides that those subsections do not apply in respect of the evidence of an affected child witness under EA part 2, division 4A.^[5]

Background

1. [7]
   The applicant Crown has helpfully summarised the background as follows:^[6]

3.1 The complainant in the matter was GPN.  She was born on 8th of July 2007.  

3.2 The complainant grew up on Mornington Island.  When the complainant was very young, she was removed from her mother’s care by the Department of Child Safety and lived at a large number of different addresses on Mornington Island and some time later in Mount Isa.  The complainant initially began primary school on Mornington Island before moving to Mount Isa.  The complainant would return to Mornington Island for school holidays at which time she would reside at the Mission Australia Safe House on Lardil Street.

3.3 The complainant for some time resided with her auntie DMT, and the respondent who was DMT’s husband.  They resided at 94 Wurruku Street, Wellesley Islands (also known as Horseshoe Street, Mornington Island) with their own children.  This residence was directly over the road from the complainant’s grandfather’s residence.  Whilst staying at the Safe House staff would drop the complainant at her grandfather’s place or sometimes the defendant’s residence.  The complainant would also often visit 94 Wurruku Street given its proximity to her grandfather’s residence and her familial relationship with her auntie DMT.

3.4  From around 2019 the complainant was for much of the time in the foster care of YLD in Mount Isa.  Whilst in her care YLD noted that the complainant would wet the bed on a regular basis and appeared to be uneasy around adult males.  While the complainant was in the care of YLD she had returned to Mornington Island on six occasions.  

3.5  On 14th June 2021 arrangements were made for the complainant to return to Mornington Island for the school holidays.  YLD informed the complainant of this and that she would only be staying a week as YLD wanted the complainant back with her to celebrate her birthday on 7th of July 2021.

3.6  On 15th June 2021, the complainant did not return home from school.  YLD and others frantically searched for the complainant however were unable to locate her so a missing person complaint was filed with the Mount Isa Police Station.

3.7  YLD in an effort to find anything which may assist in finding the complainant went through the complainant’s bedroom and located  the complainant’s diary.  In the diary, YLD found an entry which said:

… also it’s hard trying to communicate with male teachers because of what happened to me when I was small.  Sometimes the same thoughts run through my head like why did those males/men touch me in an inappropriate way its so hard trying to stay alive sometimes I just feel like ending it all but there’s things that are stopping me. 

3.8  On 17th June 2021 the complainant was located by police in an abandoned building in Parkside, Mount Isa.  The complainant was taken by ambulance to the Mount Isa Hospital.  YLD spoke to the complainant when she was at hospital and asked why she did not tell her she didn’t want to go to Mornington Island.  The complainant indicated she thought that she had to listen to Child Safety.  After returning from hospital the complainant made some disclosures to YLD with respect to sexual offending against her involving the respondent.  She also made reference to another person with the surname Peters.

3.9  As a result YLD contacted the Mount Isa Police and on the 2nd July 2021 the complainant took part in an interview with the police.

The complainant’s evidence to police

4.1  The complainant took part in a recorded interview with Sergeant Trudy Lee Stonier on 2nd July 2021.  The complainant was 13 at the time.  A summary of the allegations made by the complainant during this interview with police is attached as exhibit KM-G [to the affidavit of Kathalene McIntosh].  A copy of the complainant’s recording with the police (exhibit KM-H) and a transcript of that recording (exhibit KM-I) are also attached. The summary records the reference times on the recording and the relevant portions in the transcript of the recording.

Subsequent matters

5.1  On 16th September 2021 the defendant took part in an interview at the Mornington Island Police Station on 16th of September 2021 (sic).  The defendant denied any offending against the complainant.  Following the interview the defendant was arrested in relation to these matters.

The complainant’s death: 

6.1 The complainant passed away at Mount Isa on 19th September 2022.  Attached is correspondence from Centenary Park Funerals to the complainant’s former carer YLD to that effect (exhibit KM-J – affidavit of Kathalene McIntosh).

1. [8]
   The complainant’s death certificate is exhibit 4 in this application.  

Legislation

1. [9]
   The relevant portions of EA s. 93B provide:

Admissibility of representation in prescribed criminal proceedings if the person who made it is unavailable:

1. This section applies in a prescribed criminal proceeding if a person with personal knowledge of an asserted fact –
   1. (a)
      made a representation about the asserted fact; and
   2. (b)
      is unavailable to give evidence about the asserted fact because the person is dead …
2. The hearsay rule does not apply to evidence of the representation given by a person who saw, heard or otherwise perceived the representation, if the representation was –
   1. (a)
      ……
   2. (b)
      made in circumstances making it highly probable the representation is reliable; or
   3. (c)
      …..
3. If evidence given by a person of a representation about a matter has been adduced by a party and has been admitted under subsection (2), the hearsay rule does not apply to the following evidence adduced by another party to the proceeding –
   1. (a)
      evidence of the representation given by another person who saw, heard or otherwise perceived the representation;
   2. (b)
      evidence of another representation about the matter given by a person who saw, heard or otherwise perceived the other representation.
4. To avoid any doubt, it is declared that subsections (2) and (3) only provide exceptions to the hearsay rule for particular evidence and do not otherwise affect the admissibility of the evidence.
5. In this section –

“prescribed criminal proceeding” means a criminal proceeding against a person for an offence defined in the Criminal Code, chapters 28 to 32.

Discussion 

10. [10]
    The defendant accepts the Crown’s submission that the preconditions of EA s. 93B(1)(a) & (b) are satisfied,^[7] and it is, consequently, common ground that the issue is whether, pursuant to EA s. 93B(2)(b), the representations were made in circumstances making it highly probable the representations are reliable.^[8]
11. [11]
    The defendant accepts that if the complainant was still alive, her statement would be admissible pursuant to EA s. 93A.^[9]  
12. [12]
    The Crown and defence both agree that the authorities demonstrate that the assessment pursuant to EA s. 93B(2)(b) is focused on the circumstances in which the statement was made, rather than the truth of the statement or representation (R v Dendle [2019] QCA 194 [28] per Lyons SJA; R v Robertson & Ors [2015] QCA 11 [63] per Holmes JA).^[10]

13. [13]
    The Crown identifies the following circumstances relevant to the making of the statement:^[11]

    1. The interview of the complainant is preceded by the complainant running away from her foster home rather than returning to Mornington Island where the defendant resided and then later disclosing to her carer that she had been sexually abused by the respondent;
    2. The interview with the complainant is visually recorded allowing the jury to make a full assessment of the complainant’s demeanour when outlining the allegations, her tone, her consideration of the question, and the spontaneity of her answers and her responsiveness to the questions asked;
    3. The interview of the complainant is lengthy allowing a jury to note the extensive detail in which the complainant is able to outline each of the alleged offences, the lack of any contradictory elements in the complainant’s version, the lack of any statements the complainant makes which are inherently unreliable and a few occasions where the complainant corrects the investigating officer or fails to adopt a proposition suggested to her which diminished greatly any suggestions of gratuitous concurrence.

14. [14]
    The defendant identifies these circumstances which it submits are relevant:^[12]

1. She had extensive involvement with the Department of Child Safety which had reported previously that:

1. she hated her mother and brother (who resided on Mornington Island) and never wanted to see them again;
2. she made threats of suicide and to run away and self-harm 7 months earlier when she did not want to reside at her current placement outside of Mornington Island.

2. On 14 June 2021, the complainant child was informed that she would be flying to Mornington Island for school holidays the following month.  She appeared fine after the conversation and was dropped to school the following day by YLD (15 June 2021).
3. She did not return home from school and was located by police in an abandoned building in Seventeenth Avenue, Parkside on 17 June 2021.
4. When she was located, she told police officers that she was upset as a boy at school (JHN – stepbrother of her brother BLD) teased her about liking a boy.  She said that the other boys were mean to her and made her want to go back to Mornington Island.  Police asked her about any sexual offending and she disclosed that she was touched by two men (one deceased).  She did not nominate the defendant. 
5. She was hospitalised.  After she was discharged from the Mount Isa Hospital, she was asked by the witness YLD whether she “wanted to know what happened?”  She then said words to the effect that:

1. “It was my auntie’s partner JGN.”
2. She said that another person by the name of Peters did something to her but he was deceased;
3. “My aunty and my mum would make me go for a walk with JGN and that is when things started to happen.”

6. She later disclosed to the Department of Child Safety the name of an additional perpetrator who had sexually abused her, namely, her deceased grandfather.
7. On 2 July 2021, she provided an audio-visually recorded statement.

15. [15]
    Although the making of the EA s. 93A statement is preceded by the complainant child running away from her foster home, then being located by police, hospitalised and making a complaint of sexual abuse by the defendant to her foster carer, on her release, none of those matters, in my view, persuade me that the s. 93A statement was not “made in circumstances making it highly probable the representation is reliable”.
16. [16]
    The EA s. 93A interview was conducted in an appropriate manner (save for some relatively minor examples of leading) by Sergeant Stonier.  The complainant agreed that she would only tell Sergeant Stonier “things that really happened”;^[13] and there are no glaring inconsistencies in the body of the EA s. 93A interview which would call into question its reliability in the context of the circumstances in which it was made.
17. [17]
    It follows that I conclude that the EA s. 93A interview between Sergeant Stonier and the complainant conducted on 2 July 2021 should be admitted as evidence at the defendant’s trial, insofar as it relates to the evidence of the two counts of rape.
18. [18]
    However, having concluded that the EA s. 93A is admissible, in part only as indicated, pursuant to EA s. 93B(2), that then requires me to consider the defendant’s application to exclude the admissible portion of the EA s. 93A statement pursuant to the discretion available to this court either in EA s. 98 and/or s. 130.  

The Law – Evidence Act ss. 98 & 130

19. [19]
    Evidence Act s. 98 provides:

    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 be inexpedient in the terms of justice that the statement should be admitted.
    2. This section does not affect the admissibility of any evidence otherwise than by virtue of this part.
20. [20]
    Evidence Act s. 130 provides:

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.

21. [21]
    In R v D [2003] QCA 151, Davies JA stated, in respect of the test pursuant to EA s. 98 at [18]:

In my opinion, it would be a rare case in which a court will exclude a statement, otherwise admissible pursuant to s. 93A, pursuant to either the discretion conferred by s. 98 or that conferred by s. 130.  It is most unlikely that it will ever be excluded on the basis that its prejudicial effect exceeds it probative value because in almost all cases the probative value of such a statement is very high.  And the mere fact that, as may have been the case here, the witness, though available to give evidence in the trial, is unable, for one reason or another, to be effectively cross-examined, will not, without more, ordinarily be sufficient to attract the exercise of that discretion [citations deleted].

22. [22]
    Jerrard JA in the same decision stated at [61] – [62] the following:

    61. [61]
        In R v FAR [1996] 2 Qd R 49 Davies JA (at page 61), with whom Pincus JA agreed on this point, wrote that the question whether the discretion under s. 98 (or s. 130) should be exercised to exclude a statement otherwise satisfying the requirements of s. 93A would almost always turn on its reliability.  He added that there would be many factors which might affect that question.  In R v Morris [1996] Qd R 68 Dowsett J, whose judgment was that of the court, wrote (at page 75) that:

    “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 to be received for reasons directly related to the interests of justice.”

    62. [62]
        With respect to s. 130, the unfairness invoking the exercise of the statutory discretion would be the variety discussed in R v Swaffield (1997-1998) 192 CLR 159, and particularly at 189; namely a concern with not jeopardising an accused person’s right to receive a fair trial.  As the joint judgment of Toohey, Gaudron, and Gummow JJ records, unreliability is regarded as a touchstone of unfairness.

23. [23]
    In R v Swaffield [1998] 192 CLR 159, Toohey, Gaudron and Gummow JJ stated (at 189):

The term “unfairness” necessarily lacks precision; it involves an evaluation of circumstances. 

…

Unfairness then relates to the right of an accused to a fair trial; in that situation the unfairness discretion overlaps with the power or discretion to reject evidence which is more prejudicial than probative, each looking to the risk that an accused may be improperly convicted.  While unreliability may be a touchstone of unfairness, it has been said not to be the sole touchstone. 

24. [24]
    Morrison JA summarised the relevant principles in respect of EA ss. 98 & 130 and the exercise of judicial discretion in R v Adcock [2017] 2 Qd R 469 [70] as follows:

    1. “reliability” often will be the focus of consideration in deciding how to exercise the discretion, but it is not the only consideration;
    2. “reliability” is used in its narrow sense to mean the reliability of the evidence to be admitted per se;
    3. used in a broader sense, “reliability” refers to general issues affecting reliability;
    4. s. 98 goes beyond “reliability” and embraces exclusion in the interests of justice, and for reasons of unfairness or public policy; and
    5. a statement, the content of which is manifestly unreliable in the narrow sense, may well be more safely and fairly left to a jury than evidence the reliability of which is potentially affected by external factors less obvious and less capable of being explored.

Discussion

25. [25]
    In this matter, the only admissible evidence in respect of the offences of rape comes from the necessarily edited s. 93A interview with the complainant.  
26. [26]
    There is no preliminary complaint evidence in respect of the rapes – the disclosures to the witness YLD do not relate to the rapes,^[14] nor do the disclosures to VGM.^[15]
27. [27]
    The complainant nominated at least three persons who had sexually offended against her, including a man with a surname Peters, and her deceased grandfather as well as the defendant,^[16] while Child Safety records also appear to indicate that a juvenile may have sexually offended against her as well.^[17]
28. [28]
    There are significant issues in respect of both reliability and credibility arising out of the circumstances of the complainant running away and self-harming between 15-17 June 2021, arising out of bullying at school, and conflicting evidence as to whether the complainant did, or did not, want to return to Mornington Island.^[18]
29. [29]
    In the context of a trial in which the sole evidence against the complainant would be an edited, and inevitably disjointed EA s. 93A interview, the defendant highlights the following further matters: ^[19]

    1. Complaints of sexual offending by other persons, including close family members.
    2. The reasons for running away on 15 June 2021 being entirely unrelated to any sexual offending.
    3. Her past Child Safety history of threatening self-harm to move placements.
    4. Any discrepancies regarding her timeline of offending and her placement location schedule.
    5. Her Child Safety history in general, including any issues of bedwetting in fact predating any allegation of sexual offending, and her exposure to violence from her mother which led to statements about not wanting to return to Mornington Island.
    6. Her mental health.
    1. (a)
       In the absence of cross-examination, the inability to make admissible any child safety records relevant to the proceedings.
    2. (b)
       In the absence of cross-examination, the inability to make admissible any medical records if they are sought by the defence.
    3. (c)
       The other primary resident at the offence location, DMT (the defendant’s wife), died before the complaint was made.  Any evidence she could have given to negative aspects of the Crown case cannot be explored.
30. [30]
    It follows, in my view, that in these particular and peculiar circumstances, it would be unfair to admit the s. 93A interview of the complainant.  The absence of any preliminary complaint, the artificial nature of an edited EA s. 93A interview confined to the rapes, and the now untested and untestable evidence of the complainant, lead to an inevitable conclusion that the inability to cross-examine on the areas that the defendant has identified and I have just read into the record, would lead to a trial that would be unfair to the defendant if that s. 93A interview was admitted.  In those circumstances, I am persuaded that it would be appropriate to exercise the discretion to exclude the complainant’s statement pursuant to EA s. 130.  
31. [31]
    In the circumstances, it then becomes unnecessary in strict terms to consider the exercise of the discretion pursuant to EA s. 98, but for the record I consider that, for the reasons set out above, but applying the EA s. 98 test, it would also have been my conclusion that it would be inexpedient in the interests of justice to admit the statement.
32. [32]
    Accordingly, having concluded in the first step of this decision that EA s. 93B would operate to admit the EA s. 93A interview insofar as it related to the two counts of rape (counts 3 and 4), I then conclude, pursuant to EA s. 130 (and, if necessary, EA s. 98),  that the EA s. 93A statement of the complainant should be excluded as evidence at the defendant’s trial.

Orders

33. [33]
    Accordingly, I make the following orders: 

1. The defendant’s application is granted.
2. The recorded statement of GPN pursuant to EA s. 93A on 2 July 2021 is excluded.