R v MLO[2023] QDCPR 27

DISTRICT COURT OF QUEENSLAND

1. [1]
   HIS HONOUR:   This is an application, by the defendant, for the complainant to be recalled to be cross-examined afresh and at large via audiovisual link pursuant to section 21AN of the Evidence Act, and that the existing pre-recorded evidence given under cross-examination be ruled inadmissible in any re-trial.  The defendant is charged with three counts of unlawful and indecently dealing with the complainant, a child under 16 years, and two counts of raping her.  The offences were alleged to have taken place on the 29th of January 2017, when she was 12 years of age. 
2. [2]
   The complainant’s evidence was that she and her family were staying in the defendant’s house on the night in question.  The complainant and the defendant had been watching TV on his bed.  The defendant turned the TV off when the complainant became too tired, and he thereafter offended against her.  He touched her genitals, had her touch his penis, put his finger on her vagina, pushed his penis into her vagina, and later rubbed his fingers on the outside of her vagina. 
3. [3]
   The matter proceeded to trial on the 5th of March 2019.  The complainant’s evidence consisted of her record of interview with police from the 30th of January 2017, tendered pursuant to section 93A of the Evidence Act, and her pre-recorded evidence from 8 August 2018, when she was 14 years old.  At his trial, the defendant was convicted on all counts.  There was an unsuccessful appeal against the convictions to the Court of Appeal, but a further successful appeal to the High Court resulted in the convictions being set aside and a new trial ordered.  The subject application is brought in advance of that retrial. 
4. [4]
   Pursuant to section 21AN of the Evidence Act, the complainant’s pre-recorded evidence is admissible in the retrial.  By reason of section 21AM(2), that is so notwithstanding that the complainant is no longer a child.  The subject application is brought pursuant to section 21AN which, in subsection (2), permits the court to order the complainant to give further evidence.  By reason of subsection (3), however, the court must not do so 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. 
5. [5]
   Although the plaintiff is no longer a child, the effect of section 21AD(2) of the Evidence Act is that she remains a child for the purposes of giving evidence.  It may be noted that she would otherwise be a special witness whose pre-recorded evidence would, in the absence of a relevant court order to the contrary, be admissible by virtue of section 21A(6) of the Evidence Act. 
6. [6]
   The chronology which I have set out immediately gives rise to a concern about whether requiring the complainant to give further evidence, particularly under cross-examination afresh and at large, would be in the interests of justice.  The alleged event giving rise to the alleged offences is said to have occurred more than six years ago, when the complainant was a young child of 12 years.  Whilst I appreciate that she made a prompt statement to the police, which becomes evidence by way of section 93A of the Evidence Act, the effect of the passage of time on her recollection of the events is likely to be detrimental, at least to some extent, and so,  potentially affect the evidence that she would now give under cross-examination, particularly if that cross-examination were afresh and at large.  As was acknowledged in R v Silcock [2022] QCA 233 at paragraph 46, one of the things the pre-recording regime seeks to do is to ensure that the most reliable and valid evidence of an event is led before the jury. 
7. [7]
   In this case, the complainant’s evidence was pre-recorded a little more than 18 months after the alleged offences.  The defendant seeks to have the entirety of her evidence under cross-examination at that time ruled inadmissible in favour of a further cross-examination afresh and at large more than six years after the alleged offences took place.  That runs counter to one of the objectives of the pre-recording regime.  That the jury should be denied the benefit of the complainant’s evidence under cross-examination at a more proximate time is a proposition that I would be loath to accept as being in the interests of justice, so long as the defendant’s fundamental right to a fair trial can be otherwise respected. 
8. [8]
   There is, of course, some oppression in submitting a witness to multiple cross-examinations.  In this case, that would involve the complainant being required to undergo cross-examination again, more than four and a-half years after she was otherwise excused.  That is oppressive, particularly if it is on the basis of cross-examination afresh and at large of events that she says occurred so many years ago when she was only a young girl. 
9. [9]
   None of the above, however, can overwhelm the defendant’s fundamental right to a fair trial.  It is therefore necessary to scrutinise the basis upon which it is said that there is a need for the complainant to be recalled in order to be cross-examined again. 
10. [10]
    The basis upon which the defendant was successful in the High court, was that the Court of Appeal had erred in finding that there had been no substantial miscarriage of justice in circumstances where irrelevant and inadmissible evidence had been admitted, and the trial judge had failed to direct the jury to disregard it.  That evidence was evidence that both the complainant and the defendant had been found to have the same sexually transmitted virus.  There was other medical evidence at trial.  In particular, there was evidence that the complainant had been observed, upon examination, to have an area of redness some five centimetres across her labia and a traumatic breach of her hymen.  The expert medical opinion was that these were due to a blunt force trauma, and were not something that would occur by way of accident by normal touching or handling of the vagina.  The injuries were consistent with a penis having been the cause.  The trauma would have been “relatively soon” before the examination, by which the witness meant a matter of days.
11. [11]
    The defence case put to the complainant in cross-examination was that the defendant did not do the things that she accused him of.  That remains the case.  The initial outline of submissions for the applicant/defendant put the need for further cross-examination on the basis of the failure of trial counsel to put matters that were part of his instructions in relation to two topics.  Namely, innocent explanations for the complainant’s genital injuries and her motive to lie.  Those two topics are related because it is said that the potential motive to lie is, or includes, the suppression of the actual sexual event which caused the genital injuries and the protection of the person or persons involved. In this regard, it may be noted that the defendant, in his record of interview with police, said that the sexual allegation against him might have come from the fact that the complainant had been found, by her mother, having sex with a “25 year old bloke” the night before whereupon she, the mother, “smashed up” the place.  His affidavit filed in the Court of Appeal proceeding deposed to communications between the complainant and both the defendant’s daughter and the complainant’s mother, which suggested that the complainant had or may have had other proximate sexual encounters. 
12. [12]
    Proving, or casting doubt on, any link between the genital injuries observed in the medical examination and the defendant by enquiring as to whether the complainant had engaged, or had been subject to, other sexual activity proximate in time was not previously ignored.  In examination-in-chief, the complainant gave evidence that one other person, a 15 year old boyfriend, had licked her vagina previously.  She had, however, said that no one had inserted anything in her vagina in the last three or four days.  In cross-examination, she was asked whether she was “absolutely sure about that”, to which she replied in the affirmative. 
13. [13]
    Immediately prior to that, she had been asked about staying with a man called D, who was her mother’s then boyfriend, but was sometimes referred to as her foster uncle or uncle.  She was apparently staying with him immediately before arriving at the defendant’s place.  She agreed that her mother had arrived to find her in bed with D and that her mother then used a golf club, or something similar, to “smash things up”. She, the mother, then enquired of the complainant what had been going on between the two, but the complainant had assured her mother that nothing had occurred.  Nothing to the contrary was put to the complainant and she was not further cross-examined about it, including as to what each was wearing at the time.  That created difficulties later when defence counsel put to the mother that she had found them in a state whereby the complainant was only partly clothed and D was naked. 
14. [14]
    Further, it was later put to the mother, and she accepted, that the complainant had lied about seeing another unidentified boy.  Nothing, however, had been put to the complainant about that and defence counsel ultimately accepted that it would thereafter be unfair of him to suggest sexual contact with that boy.  Not only were those matters not put to the complainant, but it was not directly put to her that she had sexual contact involving penetration or touching of her genitalia in the days leading up to the medical examination, or that her allegations against the defendant were fabricated to hide other proximate sexual contact or to protect the other or others engaged in such contact. 
15. [15]
    This is a case, as with many sexual cases, where the credibility and reliability of the complainant is critical to the prosecution case.
16. [16]
    In that context, the jury might well be inclined to attach significant weight to the evidence of the physical injuries.  It seems to me that, notwithstanding the matters referred to earlier in these reasons, the interests of justice are best served by requiring the complainant to give further evidence by way of cross-examination about matters relating to potential explanations for the complainant’s genital injuries that are consistent with the defendant’s innocence and, in particular, whether in the days leading up to her medical examination, her genitalia had been penetrated or touched by anyone other than the defendant.  To the extent relevant for that purpose, the defence should be permitted to cross-examine the complainant about sexual relations, if any, at the relevant time, with D, the 15 year old body referred to the complainant in her evidence-in-chief and the unidentified boy referred to in cross-examination of the mother, as may be relevant to establishing any relevant sexual activity in the days leading up to her medical examination.  The complainant ought also be permitted to cross-examine the complainant in relation to her motive to lie as now alleged, so that it can squarely be put to her that her allegations are a fabrication provoked by that motive. 
17. [17]
    It should be added that, after this application was substantively heard on the 1st return date, and only overnight, prior to its further hearing today, it emerged that there was late disclosure of relevant material in relation to the prospect of the complainant having been involved in, or subject to, other sexual contact.  That material has not been able to be appropriately investigated, at this time, by the defendant’s lawyers.  This only underscores the interests of justice in permitting the defendant to cross-examine about this topic.  Indeed, the Crown does not oppose the complainant being recalled to be cross-examined about this matter, but opposes cross-examination being afresh and at large. 
18. [18]
    It should not be thought that once a witness is brought back to give further evidence, the defence might as well be given a second bite at the cherry generally.  It is one thing to be brought back to be asked about a limited range of discrete matters, it is quite another to be subjected to a second cross-examination at large.  The matters discussed to this point are discrete matters about events prior to the events on the night in question.  I see no reason why the need to cross-examine about those things, calls for cross-examination to be afresh and at large. 
19. [19]
    It was submitted for the defendant that there are other matters in respect of which the complainant should also be further cross-examined.  The defendant’s son, Brenton, was also present on the night in question.  The Crown has been put on notice that the defence considers him to be a material witness who should be called.  It was submitted that the defence ought to be entitled to cross-examine the complainant with respect to any matters of inconsistency arising in his evidence.  The submission is, however, as counsel for the defendant ultimately accepted, speculative.  No statement has been obtained from him because, at least to this point, he has refused to provide one to police.  It is unknown whether he will change his attitude and be called as a witness or, if so, what he will say.  The defendant is, of course, able to make an application once that becomes clear.  At this stage, however, it is premature to make any order about, or based on, what he might or  might not say if he is called.
20. [20]
    The complainant’s sister gave evidence at the earlier trial.  Indeed, the trial was adjourned so that her statement could be taken by police and her evidence pre-recorded. 
21. [21]
    Her evidence was that she was in the loungeroom lying on the couch, with her mother on the floor on a mattress.  She heard the complainant walk out quietly and lie head to toe on the couch with her.  The complainant was shaking and crying quietly, but the sister did not want to ask her anything about what happened, so she just hugged her legs and fell asleep.  In cross-examination, she agreed that she had since spoken to the complainant in relation to the complainant crying. 
22. [22]
    The complainant’s evidence is similar.  She said that she went to the loungeroom and lay head to toe with her sister who was lying on the couch.  She did not wake her sister.  She therefore appears not to have been aware that her sister was awake, which is understandable given that there were no words spoken.  She was not asked about, nor did she describe her sister hugging her legs, but that is hardly a matter of any real significance and, in any event, that is a matter which could be pointed out to the jury if the defence saw any advantage at all in it.  It is understandable, however, that the defence did not avail itself of the opportunity to apply for the complainant to be recalled after the sister gave her evidence at the trial.  I see no reason, in the interests of justice, to permit the complainant to be cross-examined about the events of the evening in this regard. 
23. [23]
    The situation is a little different, however, in relation to the subsequent discussion about the complainant crying.  I realise that it was not suggested to the sister that there was any collusion or fabrication in this regard, but cross-examination of the complainant as to what was said after the offences might produce further evidence about the discussion on that topic, which might, in turn, lead the jury to put less weight on the sister’s evidence of a recollection about the complainant’s distressed condition.  In my view, the interests of justice fall in favour of permitting cross-examination about whether the complainant has, since the commission of the alleged offences, spoken with her sister about whether she was crying when they were lying on the couch.  Ultimately, the Crown agreed that it was appropriate to allow further cross-examination to that limited extent.  That is, however, also quite a discrete matter relating to whether or not there was a conversation after the events of the evening concerned, and does not lead me to conclude that cross-examination should be afresh and at large. 
24. [24]
    A further witness, Mr Duncan, who did not give evidence at the previous trial, is a material witness and the Crown has indicated that he will be called at trial.  He stayed at the residence on the night in question.  He recalls being up and down throughout the night.  When he first got up and went to the kitchen for a glass of water, he recalls seeing the complainant and the defendant in the defendant’s bed watching a movie.  As he got to the sink, the complainant came into the kitchen, reached for a glass, got milk from the fridge and said to him, “Hi, how are you?” To which she responded, “I’m okay”.
25. [25]
    The complainant then walked back to the defendant’s room and seemed fine. 
26. [26]
    The complainant did not give evidence of a trip to the kitchen or an encounter with Mr Duncan when the TV was on.  The prosecution concedes and, in my view, quite properly so, that it is in the interests of justice that the defence be able to further cross-examine the complainant about that encounter. 
27. [27]
    The defence also contended that there should be a general permission to ask questions to put its case to meet the obligations under the rule in Browne v Dunn.  It seems to me that if cross-examination is to be limited, rather than afresh and at large, then the further topics of cross-examination should be specified and limited. An open-ended right to cross-examine, in the terms sought by the defence, could quite easily become a de facto cross-examination at large.  It seems to me that if a limited further cross-examination is permitted, then, as I’ve already said, the scope of that cross-examination should be identified. 
28. [28]
    Counsel for the defendant pointed out that there are still some investigations to take place in relation to the material which has only recently been disclosed.  However, as the crown rightly acknowledged, if, after the giving of a limited order, further material or investigations warrant, the defendant is perfectly entitled to bring a further application. 
29. [29]
    It was submitted for the applicant/defendant that the matters which require further cross-examination should be put as part of testing the complainant’s narrative about the events on the night of the alleged offences, lest the effectiveness of the cross-examination be reduced by it being, and being seen by the jury to be, disjointed.  I do not agree that this makes a cross-examination afresh and at large in the interests of justice.  For the reasons given, with the exception of the encounter with Mr Duncan, the other matters are discrete in that they relate either to matters in the days leading up to the alleged offences or to whether the complainant had a subsequent discussion with her sister about one particular matter.  The matters arising from Mr Duncan’s statement do go to part of the narrative, but only to one encounter.  On balance, I do not think that any effect of dealing with that, and the other matters, separately, instead of as part of a cross-examination afresh and at large, is of such significance as to conclude that the interests of justice favour ruling that the existing prerecording of the cross-examination be inadmissible on retrial and permitting the complainant to be cross-examined afresh and at large. 
30. [30]
    I was referred to R v Silcock where there was a real possibility of an irrelevant case theory being advanced by original defence counsel in the pre-recorded cross-examination, which was either inconsistent or at least irrelevant to the case theory to be advanced at the retrial.  That case involved a pre-recorded cross-examination of approximately five hours which was apt to engender resentment from a jury.  That is not the case here.  The pre-recorded cross-examination is a little more than half an hour. 
31. [31]
    Whilst it needs supplementing in the ways indicated, it does not advance an inconsistent case theory, nor is it one that is likely to engender resentment of a jury.
32. [32]
    In the circumstances and for the reasons given, the application for the existing pre-recorded cross-examination to be ruled inadmissible and for the complainant to be ordered to give further evidence upon cross-examination afresh and at large is dismissed.  Instead, the complainant is ordered to be give evidence by cross-examination limited to the following:  1, matters relating to potential explanations for the complainant’s genital injuries that are consistent with the defendant’s innocence and, in particular, whether in the days leading up to her medical examination, her genitalia had been penetrated or touched by anyone other than the defendant. 
33. [33]
    To the extent relevant for this purpose, the complainant may be cross-examination about sexual relations, if any, at the relevant time, with her mother’s then boyfriend, D, the 15 year old boy referred to by the complainant in her evidence-in-chief, and the unidentified boy who the complainant’s mother said the complainant had lied about.  Leave is granted pursuant to section 4 of the Criminal Law (Sexual Offences) Act for relevant cross-examination in this regard.  2, the complainant’s motive to lie.  3, whether, since the alleged offences, the complainant has spoken with her sister about whether she, the complainant, was crying when the two were lying together on the couch.  4, the encounter in the kitchen with Mr Duncan, referred to in his affidavit and statement.  And 5, matters of relevance arising out of cross-examination on the above matters.