A v Filz
[2003] TASSC 32
•29 May 2003
[2003] TASSC 32
CITATION: A v Filz [2003] TASSC 32
PARTIES: A
v
FILZ, Roger Christopher
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: APPELLATE
FILE NO/S: LCA 9/2002
DELIVERED ON: 29 May 2003
DELIVERED AT: Hobart
HEARING DATE/S: 12 December 2002
JUDGMENT OF: Crawford J
CATCHWORDS:
Criminal Law - Evidence - Evidentiary matters relating to witnesses and accused persons - Competence and compellability - Children - Particular cases - Exercise of discretion to admit recorded statement of child against whom indecent assault alleged to have been committed - Evidence Act 1910 (Tas), s122F.
Aust Dig Criminal Law [544]
REPRESENTATION:
Counsel:
Applicant: D R Fairley
Respondent: K Brown
Solicitors:
Applicant: Temple-Smith Barclay
Respondent: Director of Public Prosecutions
Judgment ID Number: [2003] TASSC 32
Number of paragraphs: 28
Serial No 32/2003
File No LCA 9/2002
A v ROGER CHRISTOPHER FILZ
REASONS FOR JUDGMENT CRAWFORD J
29 May 2003
The applicant was charged with indecently assaulting a 6½ year old girl, C, "by placing his hand insider her pyjamas bottoms, inside her underpants and then touching her on the vagina". The offence was alleged to have occurred on 14 May 2001. He pleaded not guilty. Although a crime under the Criminal Code, s127(1), he elected under the Justices Act 1959, s72(1)(a), to be tried summarily. A contested hearing took place before a magistrate on 18 January and 29 August 2002. The complaint was found proved. He moved this Court to review the finding.
It was common ground that the applicant and C's mother had some form of relationship that included sexual activity between them. On the night of the alleged offence he telephoned C's mother seeking a lift home from a hotel. She took C with her, picked him up and drove to his one-bedroom flat. He persuaded C's mother to stay the night with him. There was only one bed. The three of them occupied the bed that night. For at least some of the time, C was next to the applicant. She was wearing pyjamas.
The allegation of indecent assault appears to have been first made by C to her aunt, who is the sister of her mother. It was the aunt's evidence that on a Monday or Tuesday in the middle of May 2001, or in the first two weeks of May, she was at C's home caring for C, when she noticed that C was acting strangely, dancing around and touching herself on the vagina. The aunt asked C what was wrong, but she did not tell her aunt immediately. Later she said that someone had touched her and she identified her vaginal area by pointing to it with her fingers. The aunt asked her about it. C said "he touched". Initially C merely identified a man as being responsible, and the aunt asked "who", whereupon C replied "Les", a reference to the applicant. The aunt's evidence was that she asked nothing else, but C said that it happened at the applicant's place when the three of them were in bed together. The conversation was reported by the aunt to C's mother when she got home.
The evidence of C's mother was that her sister reported the allegation to her on the night after she and C had shared the bed with the applicant. On the day after that she asked C about it. C initially denied that anyone had touched her, but on being asked again she said that it had happened. As a result, C's mother reported the allegation to the police on 18 June 2001. That afternoon, two female police officers interviewed C for about 20 minutes, in the presence of her step-father, an older man who identified himself as her step-grandfather and the principal of C's primary school. The interview was recorded on video. At the time of the interview, there were three dolls on a table at which C and the police officers sat, one of which was a teddy bear.
The video-taped recording of the interview was admitted into evidence notwithstanding the objection of the applicant's counsel. I have viewed it. After questions about matters not directly relevant to C's allegation, such as the pets she had at home, reference was made by C to the applicant. She referred to him as "Les". She was asked what friends of her mother used to visit and she replied that the applicant had stopped visiting because one night at his home he had pushed her mother out the door and slammed it. Constable Fox asked if C could tell her a little bit more about her mother and Les. C said that her mother was sleeping with him, and that her mother had told her that "I had to not watch". She said that she had to sleep with them because there was only one bed at the applicant's house. She was asked what happened and she said that she saw her mother and the applicant "doing something like kissing and that", and she nodded when asked whether that was while she was in bed with them. Constable Fox told her that she was "a good girl, doing a good job matey, you're doing a good job". C turned to her step-father and asked "is it about mummy and Les?". Her step-father replied: "You were right, tell the lady ... tell the truth and she'll ... (inaudible)."
Constable Fox then asked C what happened when she was in bed with her mother and the applicant. C replied: "He touched me." Constable Fox asked: "Can you tell me where he touched you?" C pointed at the crutch of a doll that was lying on the table in front of her. Constable Fox then pulled the three dolls into the middle of the table and asked C to show her where each of the occupants of the bed were lying. C explained, by moving the dolls into position, that she was between her mother and the applicant. In response to questions, she said that she was wearing warm pyjamas with rabbits on them.
C was then asked by Constable Fox: "When Les touched you there, did he touch you on the outside of your jamies or did he put his hand on the inside of your jamies?" C replied: "Inside." She then added something that is difficult to hear. I heard her as saying that it was insider her knickers. The transcriber of the interview could not pick it all up, but noted "inside the blanket". The learned magistrate thought he heard either "inside the blanket" or "under the blanket". Whatever it was, the next questions and answers were as follows:
"QInside of your knickers as well? Oh okay, now what did Les do with his hand when he put it down there? Can you tell me?
APut it around places.
QMm on your round places did you say?
APlaces in my private parts.
QMm, on your private part. Good girl. Remember to speak up. Doing a good job.
AThat was all.
QMm. Okay. Did he ahm, did he move his hand around at all or did it just stay there?
AMoved it around.
QAnd did it hurt you?
A(Nods)
QMm, did he put his hand inside your private spot?
A(Nods)
QAnd how did that feel?
AOh uncomfortable.
(Two female voices, presumably the police officers, saying "good girl".)
QMm and did you say anything to Les?
A(Shakes head)
QMm.
A... better go to toilet he said no.
QRight. Did ahm, just trying to think, how long, can you remember how long Les seemed to have his hand down on your private parts?
A(Shakes head) Just for a while.
QJust for a while, mm. Ahm do you know if mummy was awake?
ANo, she was asleep.
QShe was asleep. So you were awake were you?
A(Nods)
QAnd Les was awake?
A(Nods)
QYeah. Which hand did he use, can you remember?
AThat one. (Points to left hand of a doll)"
C then demonstrated that she knew left from right. On being asked whether she or the applicant had said anything about what had happened, she shook her head and said that "I only told mummy ... the next night". On being asked whether she had told anyone else about it, she referred to her aunt. She said that what the applicant had done to her had made her feel "uncomfortable and sad".
C gave evidence before the learned magistrate, but because of her age it was not on oath. I am dependent on notes made by the learned magistrate for its content. It appears that the only evidence-in-chief given by her was that she was seven years old. She was then cross-examined by the applicant's counsel. In summary, her answers, as recorded by the learned magistrate, included the following. She remembered that they picked up the applicant from a hotel and that they stayed at his house. He only had one bed. She had not stayed at his house before. It was late and she was tired. They all went to bed at the same time. She did not remember actually going to bed. She did not recall when the three of them were sleeping. She remembered telling Constable Fox that they were in the same bed together. She had said that her mother had been doing something and that she had been told by her mother not to watch. She did not remember what they were doing but added that they "must have been doing something, kissing etc", according to the notes of the learned magistrate. She said that she was told not to watch while she was sleeping at the applicant's house and that she had only stayed at his house once. The learned magistrate recorded her as saying that she did not recall where she was sleeping and that it was hard for her to remember. She said that she slept between the applicant and her mother and then on the other side of the applicant, but she could not remember for how long. She remembered saying that the applicant had touched her on the private parts, which was a different position than the bottom. When he touched her she was between her mother and the applicant. Her mother was then sleeping. She agreed with the suggestion of defence counsel that her mother had her eyes closed. She said that she told her mother about the touching the next day, adding that it was during the morning that she told her mother, when she got home with her mother. In response to a suggestion by defence counsel that she had not told her aunt that day, she said that she did tell her aunt, "after lunch". She said that she told her mother that "Les touched me". She could not remember what words she actually used. The applicant had used his left hand. She said that she had seen movies, "heaps of times". She remembered the applicant pushing her mother out and slamming a door. She said that she was in a car and got upset and that her mother was crying. She said that happened the next night after he had touched her, at about teatime. She remembered her aunt looking after her at night and that she told her aunt at night time. She remembered speaking to her mother a few days after. She did not recall saying that it had never happened and she did not remember saying that anyone else had touched her when her mother had asked her. However, she agreed when it was put to her that she had told her mother that the applicant did not touch her. She also agreed that she had said to her mother that someone else had touched her. She agreed that she would not lie to her mother.
The applicant did not give or adduce evidence. However, the prosecutor tendered a video recording of him being interviewed by police officers on 19 June 2001. The interview was nearly an hour long, although about a quarter of it was ruled inadmissible. He admitted opportunity, in that in the presence of C's mother he and the complainant had been side by side in bed, as claimed by C, but he denied that he touched C as alleged or in any improper way.
The grounds of the motion to review are as follows:
1The learned Magistrate erred in fact and / or in law in finding the charge proved as the finding was not supported by the evidence and was unsafe and unsatisfactory in THAT:-
(a)The learned Magistrate failed to give any or any proper weight to the Complainant's admission that the Applicant had not committed the offence.
(b)The learned Magistrate failed to give any or any proper weight to the evidence of [C's mother] that the Complaint [sic] had admitted to her that the Applicant had not committed the offence.
(c)The learned Magistrate erred in fact and / or in law by placing too much weight upon the Complainant's video recorded statement tendered on the hearing as the Complaint's [sic] evidence in chief.
2The learned Magistrate erred in fact and / or in law by failing to ensure that the Applicant received a fair hearing in that he admitted the Complainant's video recorded statement as the Complainant's evidence in chief.
3The learned Magistrate erred in fact and / or in law by allowing the Complainant to give her evidence in chief by a recorded video interview rather than in accordance with section 122G of the Evidence Act 1910."
With reference to pars(a) and (b) of the first ground, at one point in the cross-examination of C she said that she remembered talking to her mother a couple of days after the incident, but did not recall saying that it never happened or that anyone else touched her when her mother asked her about it. Upon the basis of notes made by the learned magistrate of C's evidence, it appears that she was pressed by the applicant's counsel and then agreed that she did say to her mother that someone else touched her. It was accepted by both counsel before me that C also agreed that she had told her mother that "Les" did not touch her. Her mother gave evidence that when she asked C a couple of days after the incident if she had been touched, C said no, and when asked whether someone else had touched her, C said yes. However, she had then told her mother that the applicant had touched her.
In the course of closing submissions, prosecuting counsel referred to the evidence that C had at first denied that she had been touched, and submitted that little weight should be given to that evidence considering the relationship between the applicant and C's mother. Counsel submitted that there may have been many reasons for C at first denying it, such as not wanting to upset her mother. The learned magistrate recalled at that time that C had already told her aunt that the applicant had touched her in the area of the vagina. It was also pointed out to his Worship that in the video recorded interview, in the presence of two police officers, C's step-father and step-grandfather and her school principal, when her mother was not present, C maintained that the applicant had touched her. The evidence therefore established that the applicant had maintained that the applicant had touched her to a number of people, and had denied it only once to her mother and then maintained her original version, so as to cause her mother to subsequently report the matter to the police.
In the course of his closing submissions to the learned magistrate, counsel for the applicant relied on the evidence that C had at first denied having been touched by the applicant.
The learned magistrate gave comprehensive and detailed reasons for finding the complaint proved. In the course of those reasons his Worship referred to the relevant evidence and to counsels' submissions. The learned magistrate dealt with many other aspects of the case. He concluded that he had no hesitation accepting C's evidence that she had been touched on the vagina by the applicant. He considered that the recent complaint and the consistency of C's evidence through to the hearing, gave her evidence great credence. Having observed C, he was impressed with the manner in which she gave her evidence and the manner in which she responded to cross-examination. She had displayed perception in rejecting suggestions put to her in cross-examination. She had spoken with spontaneity and there was nothing to suggest that her evidence was rehearsed, the learned magistrate said.
It is unnecessary to relate all of the reasons expressed by the learned magistrate. I am satisfied that he had regard to the evidence relied on by the applicant in support of ground 1, pars(a) and (b). In my opinion his Worship was not obliged to have a reasonable doubt merely because of the evidence referred to in those paragraphs and I am not persuaded that his Worship failed to give proper weight to it.
When addressing par(c), counsel for the applicant asked that I watch the video recording of C's interview. I have done so, carefully, and have no hesitation in concluding that the learned magistrate was entitled to rely on what C said during the interview. His Worship did not find the complaint proved merely upon the basis of that interview. He also relied on the evidence of C's complaint to her aunt and mother and on her evidence before the court.
In essence, ground 1 was argued by the applicant's counsel upon the basis that the finding that the complaint was proved was against the weight of evidence. That is not a proper basis for review. The finding was reasonably open on the evidence. See Taylor v Armour & Co Pty Ltd [1962] VR 346 at 351; Bedelph v Weedon [1963] Tas SR 69 at 81; Benson v Rogers [1966] Tas SR 97 at 99; Richardson v Shipp [1970] Tas SR 105 at 117; Hrycyszyn v Groves 27/1982. The learned magistrate was not obliged to accept the applicant's denials in his interview. Essentially a question of credit was involved. The learned magistrate was entitled to accept the evidence of the complainant as credible and truthful and also to accept what she said in her interview by the police. In my opinion, the applicant has fallen far short of demonstrating that the finding that the complaint was proved was unsafe or unsatisfactory.
I next deal with the second ground of the motion. At the time of the hearing before the learned magistrate, the provisions of the Evidence Act 1910, s112F(1), applied to it. The subsection has been substantially repeated in the Evidence (Children and Special Witnesses) Act 2001, s5. Section 122F(1) provided:
"In a prescribed proceeding the judge may, at his or her discretion, admit into evidence a statement made by an affected child and recorded in writing, electronically or otherwise if –
(a)the statement relates to a matter in issue in the proceeding; and
(b)the defendant has been given a copy of a written, electronic or other recording of the statement; and
(c)the defendant is given the opportunity to cross-examine the affected child."
A "prescribed proceeding", for the purposes of the subsection, was defined by s122A as meaning (inter alia) a proceeding in which a person was charged with a crime under a number of sections of the Criminal Code Pt IV ch XIV that created crimes against morality, such as the crime charged against the applicant in this case, and also the sections in ch XX that created the crimes of rape and abduction. C was an "affected child" under the subsection, because that expression was defined in s122A as meaning a child in respect of which it was alleged such a crime had been committed. C's video recorded interview therefore contained statements by her that fell with s122F(1) as statements, recorded electronically, that related to matters in issue in the proceedings. I understand that the applicant had been given a copy of her statements and he was also given the opportunity, through his counsel, to cross-examine C. Accordingly, the only question that can now be raised concerning the admission of the evidence, is whether the learned magistrate incorrectly exercised the discretion he had under the section, whether or not to admit the video recording of those statements.
I have no doubt that the learned magistrate has not been shown to have wrongly exercised the discretion. The applicant's counsel did not rely on a specific error in the learned magistrate's expression of his reasons for admitting the evidence. However, he raised a number of reasons why he submitted that the discretion should have been exercised differently. I will refer to many of them. The interview with C took place five weeks after the alleged offence. C was 6½ years old at the time. She agreed in cross-examination, when giving evidence eight months after the alleged offence, that she did not then remember a number of things, including much of what was said at the interview. (The discretion had been exercised before that evidence was given, and so the submission was not soundly based.) In his reasons for finding the complaint proved, the learned magistrate said that she conceded that she had difficulty remembering and that watching the video had helped her to recall things. (I make a similar comment.) In any event, I think that the applicant's tender age in particular, supported the admission of the recording, because it was made at a time when the events were much more fresh in her memory than at the time of giving evidence.
Counsel for the applicant referred to the opening passage of the interview when Constable Fox identified the persons present. When she came to identify C, she did so by saying: "Now, the young lady starring in the movie at the end of the table is [C]." Counsel submitted that such a remark detracted from the seriousness of the occasion and of the allegation, and suggested to C that she should play act, rather than truthfully relate events as she remembered them. In association with that submission, counsel also referred to the use of dolls during the interview as creating a fantasy. I do not accept those submissions. C knew that she was being interviewed and that what took place would be recorded on a video. The remark about her starring in the movies was plainly designed to make her feel more at ease. At that time she was looking nervous. It is likely that the use of dolls, including the teddy bear, also assisted to make her relax. Further, the remark was made well before Constable Fox commenced to ask questions about the allegation of indecent assault. The use of dolls was in any event, a legitimate tool when interviewing a young child. They were used by Constable Fox to enable C to explain the positions in the bed of the three people and the hand the applicant used when he touched her. She also used one of the dolls to indicate whereabouts on her own body she was touched by the applicant.
It was also submitted by counsel for the applicant that leading questions were put to C by Constable Fox. There were some that could not have had any prejudicial consequence, such as "do you have any dogs or cats", and there were some that merely sought confirmation of what C had already said or indicated. For example, she had said where the applicant and her mother slept and added "I'm sleeping with them cos' there was no bed". Constable Fox sought confirmation that what she was saying was that the three of them were in the same bed. One leading question complained of was "and you were in the middle", but I understand C to have already indicated that, and when asked to arrange the dolls so as to show the positions of everyone in the bed, she did so without prompting and clearly upon the basis of her own recollection. In any event, there was no contest that the three of them were in bed together and that C was next to the applicant. The one and only issue was whether he inappropriately touched her.
There were two leading questions that arguably should not have been asked, but it would have been difficult to ascertain what she would have said about the matters if they had not been put to her. The first was whether his moving of her hand on her had hurt and the second was whether "he put his hand inside your private spot", to both of which she nodded. No harm arose from those questions, because the learned magistrate did not make findings in accordance with her responses to them. His Worship declined to make a finding that the applicant placed his hand under C's clothing or on her skin. I add that those leading questions were only asked after the substance of C's version of the events had been stated by her.
Counsel also submitted that C's step-father gave directions and provided some of the answers for her. That is true, but only with respect to minor matters such as the date of her birthday and a possible suggestion towards the end of the interview that C had also told her grandmother about what had happened. They were of little consequence and the learned magistrate drew nothing from them.
Finally, it was submitted to the learned magistrate that a number of C's answers were unintelligible. That alone did not render the interview inadmissible or require that it be rejected in the exercise of the discretion.
In my respectful opinion it has not been demonstrated that the learned magistrate erred in the exercise of his discretion to admit C's interview into evidence. This Court should affirm it unless satisfied that it was clearly wrong. House v R (1936) 55 CLR 499.
There is no merit in the third ground of the motion to review. It complains that the learned magistrate allowed the complainant to give her evidence-in-chief by way of the video recorded interview. It is based on an inaccurate reference by his Worship to what was said by C in the interview as being her evidence. I have no doubt that was merely an error of expression. In my experience it is an error commonly made by defence counsel when addressing juries about their client's police interview.
For the reasons I have expressed, the motion to review will be dismissed.
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