IN THE MATTER OF AN APPLICATION BY JC

[2010] ACTSC 134

IN THE MATTER OF AN APPLICATION BY JC
[2010] ACTSC 134 (28 October 2010)

EVIDENCE – pre-trial application – act of indecency – application to exclude parts of a record of conversation with complainant – evidence to indicate inappropriate behaviour – pattern of grooming –   probative value outweighed by prejudicial effect – application granted – certain parts of record of conversation to be excluded.

EVIDENCE – pre-trial application – act of indecency – application to exclude record of interview with witness – only relevant evidence preceded by leading questions – whether the Court would have granted leave to ask leading questions – witness a young child – answers went extensively beyond leading questions put to witness – no significant unfair prejudice arising from record of conversation – application refused – record of conversation to be admitted.

Evidence (Miscellaneous Provisions) Act 1991 (ACT), Div 4.2A, s 40E(3)
Evidence Act 1995 (Cth), ss 97, 137

HML v The Queen (2008) 235 CLR 334

No. SCC 396 of 2009

Judge:             Mathews AJ
Supreme Court of the ACT

Date:              28 October 2010

IN THE SUPREME COURT OF THE     )
  )          No. SCC 396 of 2009
AUSTRALIAN CAPITAL TERRITORY           )          

IN THE MATTER OF AN

APPLICATION BY JC

ORDER

Judge:  Mathews AJ
Date:  28 October 2010
Place:  Canberra

THE COURT ORDERS THAT:

1. The application, insofar as it relates to the first named (female) child, is granted.

1. The following parts of the record of conversation between police and the first named (female) child conducted on 9 September 2009 not be admitted at the trial of the accused:-

(a)     Answer 18:- after the words “But he’s nice and we go on walks and it’s fun over there.”

(b) Answer 21:- after the words “And he thinks that’s the best thing.”

(c) Answer 23:- the words “And sometimes when I go to dad’s house I don’t sleep very much because I worry about [Michael] being close to [JC]”

(d) Questions and answers 43, 44, 45, 46, 53, 58, 59, and 60.

1. The application, insofar as it relates to the second name (male) child, is refused.

1. The entirety of the record of conversation between police and the second named (male) child conducted on 9 September 2009 be admitted at the trial of the accused.

Introduction

1. The accused has been charged on indictment with the following offences:

... on the 6th of September 2009 at Canberra [JC] committed an act of indecency on [Mary], a child between ten and sixteen years of age.
SECOND COUNT	AND FURTHER THAT on the 6th of September 2009 at Canberra [JC] committed an act of indecency in the presence of [Michael], a child under ten years of age.

1. He has pleaded not guilty to both charges and the trial has been set down for hearing in September 2011.

1. The children named in the respective charges are a sister and brother.  The child named in the first charge, whom I shall call “Mary”, is now 11 years old, having been born in December 1998.  The child referred to in the second charge, whom I shall call “Michael”, was born in February 2000.  Their parents have divorced and their father remarried.  The accused is the father of their father’s second wife and is, therefore, the children’s step-grandfather. 

1. At the time of the alleged offence the two children were primarily living with their mother, but they spent every second weekend at their father’s home.  Also in that home were their father’s second wife and her father, the accused.  It appears that this arrangement had been on foot for about three years, so there had been ample opportunity for the accused and the two children to get to know each other quite well. 

1. The offences charged in the indictment were said to have taken place on the morning of Sunday 6 September 2009, which was Father’s Day.  Mary and Michael were staying at their father’s home that weekend.  After breakfast the two children and the accused were playing a game of “tips”.  According to Mary’s account to police three days later, she then ran into her bedroom and pulled the bed covers over her.  The accused followed her in, took off the covers and got onto the bed with her.  He then pulled the covers back over them and proceeded to put his hand down her pants and rub her vagina.  He said, “Does that feel nice?”  She said, “No, please get off me.”  Michael had followed the accused into the bedroom and at about this point he started pulling on the accused’s leg and calling out to him to stop.  After a short period the accused got off the bed and left the room. 

1. That evening the children returned to their mother’s home.  Mary told her mother what had happened that morning.  Her mother then telephoned the children’s father and arranged for Mary to tell her father what had happened.  That evening Michael also confirmed Mary’s account, namely that the accused had touched her that morning and that he, Michael, had tried to pull him off her. 

1. On 9 September 2009 videotaped records of conversation were conducted by police officers with each of the two children. It is conceded, as I understand it, that these interviews comply with the requirement of Div 4.2A of the Evidence (Miscellaneous Provisions) Act 1991 (ACT). As a result they are prima facie admissible as the evidence in chief of the two children. Under s 40E(3)(b) of the same Act, an audio-visual recording must not be edited or changed unless the court so orders.

1. On 11 October 2010 an application was lodged on behalf of the accused seeking that parts of the record of Mary’s conversation not be admitted at the trial and that the whole of Michael’s conversation be rejected. The overriding ground for seeking these orders is that the probative value of the evidence is outweighed by its unfairly prejudicial nature contrary to s 137 of the Evidence Act 1995 (Cth). However, quite different considerations apply in relation to each of Mary’s and Michael’s records, and I shall therefore discuss them separately.

Mary’s record of conversation

1. The application was supported by an affidavit of the solicitor for the accused, which annexed Mary’s record of conversation and highlighted those portions to which objection was taken.  Before the hearing of the matter the respondent’s counsel, Ms Weston-Scheuber, lodged submissions with the court in which she did not oppose the removal of some of the passages as sought in the application.  The exclusion of the remaining passages was opposed.

1. It is unnecessary to discuss further the passages which the respondent conceded should be removed.  It was an appropriate concession in my view, and I therefore propose to make the orders agreed upon.

1. The remaining disputed passages are as follows:

A18... but I just – I get a bit scared sometimes when I’m around [JC], because I don’t – he – once before he – when we just moved into our new house that we’re in now, um, he, when I got my new bed he said “It’s rock hard, there’s now [sic] where else to sleep.”  Well he said, “It’s rock hard” and I said “Well, there’s nowhere else to sleep,” and he said “Why don’t you sleep in my bed?”  And I said “No thank you,” because I was scared, and ever since – that was a couple of months ago.

Q43Okay.  Tell me about [JC]

A43Um, he always teases me and he’s very disgusting.  Like there’s this boy, like, here’s our house, but then his house is there, and [Michael] plays with him.  And he always says “He’s checking you out,” and stuff, and he’s just – he’s really weird, like because he gives [Michael] whatever he wants, [Michael] like is attached and won’t leave him.

A45Well, because he’s always – he was always teasing me and after he said “Oh, you can sleep with me in my bed,” I was kind of worried that – I thought he was going for me because I’m a girl and he’s old and I thought he was – like he was weird and didn’t really trust him, that he would – I didn’t really think he was safe.

Q46What do you mean by going for you?

A46Um, basically that he was always like – he’d walk in – like we’d get there, and we’d put our bags in our room.  And then he’d walk inside and he’d say hi to everyone, but then he’d wink at me when he said hi.  And I thought that was really weird and I got like this little card thing, he gave me flowers and there was like this little card in the bottom of it and it said “Boo, I love you,” and that’s when I thought he’s got like – like he wants to do something to me.  But then after the bed thing, I didn’t really know what to do.

Q53Okay.  And has [JC] ever done anything else that scares you?

A53Um, the only other thing that scared me was when he did the bed thing and he said “You can come and sleep with me in my bed.”  And I said “No,” because I didn’t know what to think, so – I didn’t think I was going to say yes, because I wouldn’t do that.

1. These passages essentially fall into three categories, as was conceded during submissions on the application.  The first related to the accused’s alleged suggestion that Mary might sleep with him in his bed.  The second (answer 43) related to the accused teasing Mary in an allegedly provocative manner.  The third (answer 46) related to the accused giving Mary flowers and a card saying “Boo, I love you.”  As all parties agreed, the most serious of these was Mary’s account of the accused suggesting that she might share his bed.

1. The respondent submits that the disputed passages should be admitted on the following bases:

a.   To indicate inappropriate behaviour by the accused, indicating an attempt to ‘lay the groundwork’ for a sexual relationship with the complainant;

b.   To provide a context for the acts alleged against the accused as occurring in the course of a pattern of ‘grooming’ of the complainant for sexual activity;

c.   To explain and render intelligible the complainant’s account of the act the subject of the charge – to demonstrate that it did not occur ‘out of the blue’;

d.   Explain the accused’s confidence that he could commit the act charged and the complainant not resist.

1. Given that Mary, on her own account, vigorously resisted the accused’s alleged advances, little emphasis was placed on the fourth ground.  The respondent’s primary submission was that the disputed material was relevant in that it showed that the accused was “grooming” Mary for sexual activity.

1. The respondent specifically disavowed the proposition that the disputed material could be used as tendency evidence.  In this regard, the respondent’s written submissions are as follows:

The evidence is not relied upon to demonstrate that the accused had a particular tendency to act as alleged, or to establish that he had a sexual interest in the complainant that he sought to gratify by engaging in the offending. If the evidence were led for that purpose, it would need to satisfy the requirements of tendency evidence set out in s 97 of the Evidence Act 1995 (Cth). The Prosecution does not seek to admit the evidence for that purpose.

1. On the face of it, the disputed passages would appear, if anything, to indicate that the accused did have a sexual interest in Mary.  However, Ms Weston-Scheuber submitted, accurately in my view, that the mere fact that the contested material bore this interpretation should not lead to its rejection so long as there was another permissible basis for admitting it.

1. Numerous submissions were made by both counsel as to the relevance, if any, of the disputed passages, and particularly whether they supported the inference that the accused was engaged in grooming behaviour.  A number of authorities were referred to, principally HML v The Queen (2008) 235 CLR 334. However, on the view I have taken of this matter it will not be necessary to refer to any of them. The application can be determined by reference to fundamental principles without the need to resort to relevant case law.

1. Mr Livingstone, who appeared for the accused on the application, primarily submitted that the disputed material did not bear any of the meanings ascribed by the Crown and was therefore irrelevant.  Even if there was some minor relevance, he submitted, it was significantly outweighed by the prejudicial effect of the material.  In response, Ms Weston-Scheuber initially submitted that if the evidence is not capable of bearing the interpretation which the Crown seeks to place on it, then the evidence is effectively neutral, and no unfair prejudice would arise from its admission.  However, she effectively withdrew this submission when it was pointed out that much of the potential prejudice which might be conveyed by the disputed material arises from Mary’s reaction to the alleged events rather than from her account of the events themselves.  By way of illustration, in her answer to question 45, Mary said, “I thought he was going for me because I’m a girl and he’s old and I thought he was – like he was weird and didn’t really trust him, that he would – I didn’t really think he was safe”.  At the end of her answer to question 46, Mary said, “that’s when I thought he’s got like – like he wants to do something to me.  But then after the bed thing, I didn’t really know what to do”.  Ms Weston-Scheuber clearly saw the force of this proposition and suggested that the situation might be rectified by further deletions from the record of conversation, particularly relating to those portions where Mary expressed her reservations about the accused’s motivations.  However, in my view, it would be virtually impossible to undertake this exercise and leave any meaningful passages remaining for the jury’s consideration.  In other words, in my view, the application needs to be either allowed or rejected in its entirety, given the nature of the issues that have emerged.

1. It must be remembered that the accused is Mary’s step-grandfather. It is difficult to see it as sinister that a person in that situation should express his love for a child or give her gifts. Even the suggestion that she might share his bed might have a completely innocent interpretation. It certainly has some probative value, but not of a particularly high order. On the other hand, the prejudicial effect is potentially significant, given Mary’s suspicious responses to the accused’s alleged actions. I am therefore satisfied that the probative value of this material is significantly outweighed by its prejudicial effect contrary to s 137 of the Evidence Act 1995 (Cth).

1. For these reasons I propose to allow the application and to order the exclusion from Mary’s record of conversation of all the passages as sought in the application.

Michael’s record of conversation

1. The issues raised in relation to Michael’s record of conversation are completely different.  The problem with this interview, as the applicant points out, is that any relevant statements made by Michael were made only after he had been asked leading questions.  As a result, the applicant submits, the interview process was tainted and the whole interview should be excluded.

1. The respondent does not dispute that the only relevant evidence given by Michael was preceded by leading questions.  However, it is submitted that the court would in any event have granted leave to ask leading questions of Michael, and the interview should therefore be admitted in its entirety.  Moreover, his answers went well beyond what was put to him in the leading questions.

1. It is pertinent at this stage to describe the course of Michael’s interview.  After a number of preliminary questions he was asked about the events of Father’s Day, three days earlier.  He said that his stepmother had made breakfast, and he then went on to describe events that happened during and after lunch.  He was then asked more specific questions about what happened between breakfast and lunch.  He said that he was playing games, he did not say with whom.  The following series of questions and answers then ensued:

Q41Okay.  What else happened on father’s day?

A41That was mostly it.

Q42Mostly it?  Did anything else happen?

A42No.

Q43No?

A43No.

Q44Nothing, all right.  I heard you told mum that on Sunday, you tried to pull Pop off [Mary] because she was yelling?

A44(No audible reply)

Q45Did you tell mum that?

A45Yes, mummy ---

Q46Okay.  Tell me everything about pulling Pop off [Mary], because she was yelling.

A46I don’t know what really happened.

Q47Okay.  Remember how I said before that I only want you to tell me things that you saw with your own eyes and heard with your own ears? Do you remember that?

A47(No audible reply)

Q48Yeah? So can you tell me everything that you saw and heard?

A48Not really.

Q49Not really?  Okay.  Because [Mary], [K] and I, we weren’t there, so we don’t know – we don’t know what happened.  So if you can, tell me what you saw with your own eyes and heard with your own ears?

A49I heard everything that I told you.

Q50Okay. You haven’t told me – you tell me, what did you hear?

A50I don’t – I heard everything I told you.

Q51Okay. You haven’t told me what you heard.

A51All the stuff that I told you, I did hear all that.  I didn’t hear anything else.  I didn’t hear anything else.

1. At that point another police officer took over the questioning, and the following questions and answers were given:

Q52When ... said that she heard that you told mum that you had to pull Pop off [Mary].  Tell me all about that.

A52Well, he was fighting with [Mary] and I tried to get him off, but Pop just ...(indistinct)...

Q53So when you say they were fighting, tell me all about that.

A53Well I tried to stop him and he hit – pushed me and then he picked up [Mary] and put her on the bed and slammed – closed [Mary]’s door.  I opened it and then Pop – he has a lock on his door, so he locked his door.  So --- that was all.

Q54Did Pop say anything?

A54(No audible reply)

Q55Did [Mary] say anything?

A55(No audible reply)

Q56Tell me what [Mary] said.

A56[Mary] said “Get off me Pop, I don’t like it.”  That’s all she said.

Q57Did you say anything?

A57No.

Q58So whereabouts did this happen?

A58At dad’s.

Q59Okay.  Whereabouts at dad’s?

A59In this house.

Q60Inside the house.  Whereabouts?

A60Inside.  It was all in [Mary]’s room.

Q61[Mary]’s room, was it?  So tell me all about what was happening before you had to pull Pop off?

A61He was talking to me, about things that I don’t understand.

Q62Things that you don’t understand?  And then what happened.

A62And then it just started.

Q63Okay.  If you can remember, tell me how it started.

A63Pop was ...(indistinct)... and it started.

Q64Were you in the room?

A64I came in the room.

Q65Okay, why did you go into the room?

A65Because I knew that there was something happening.

Q66Okay.  How did you know that, what made you think that?

A66Because I heard everything about it.

Q67Okay, tell me about what you heard.

A67I heard – I heard screaming and I heard – I heard lots of things.

Q68Yes, so you said you heard screaming, is that right?

A68Yes.

Q69Okay, and you said you heard lots of things.   What other things did you hear?

A69I heard bashing, I heard everything like that.

Q70And then you went into the room, is that right?

A70Yes

Q71And what did you see when you walked in?

A71Pop was trying to hurt [Mary].  I tried to get him off, he pushed me onto the floor, he threw [Mary] onto the bed and then he ran out.  He was hiding so we couldn’t fight him.

Q72Okay.  So when you first went in to [Mary]’s room, where was pop and where was [Mary]?

A72[Mary] was on the bed and Pop was fighting with [Mary] on the bed.

Q73Okay, and when you say fighting, what was he doing?

A73He was trying to hurt [Mary].  And I – I almost got him off the bed, I put his feet – his foot on the bed, and then he just like – like he just pushed me, he pushed his foot onto my tummy, all the way onto the floor and then he put [Mary] onto the bed and escaped.

1. Most of the questions and answers went to elucidating surrounding details which need not concern us here.

1. The only potentially relevant portion was as follows:

Q89Just a couple of questions, is that all right [Michael]?

A89Yes.

Q90You said before that Pop was fighting [Mary].

A90Fighting with [Mary].

Q91Fighting with [Mary].  What did that look like?

A91A bad thing.

Q92Mm. What was Pop doing when he was fighting with [Mary]?

A92Trying to hurt her on the bed.

Q93Okay. What do you mean by trying to hurt her?

A93Um, trying to hurt her like when – kicking and punching her.

Q94Okay, all right.  Did you tell anyone about this?

A94No, except Mum.

Q95Just one more question for you [Michael], we’re nearly there.  When you were saying Pop was punching [Mary], what was he doing with his hands exactly?

A95(No audible reply)

Q96Okay. Where – was his hands hitting [Mary] at all?

A96Hitting [Mary], yes.

Q97Whereabouts on her body was that happening?

A97Like here. Here and here, here.

Q98So on her face. Did he touch her anywhere else?

A98(No audible reply)

1. On their face, the questions and answers up to and including question 51 appear to give considerable support to the applicant’s submissions.  At that point Michael appeared to have no recollection of any particular incident that morning, notwithstanding the leading nature of question 44.  Question 52 constituted a further leading question.  Had Michael’s responses been restricted to agreeing with the proposition which was put to him, I would almost certainly have allowed the application and excluded his answers.  However, commencing with answer 53, Michael provided considerable detail about the incident which went significantly beyond the proposition which was put to him in the leading questions.  The offending questions (44, 46 and 52) referred only to Michael pulling the accused off Mary because she was yelling.  There was no indication as to where this took place or the details of what happened.  These were all provided by Michael in answer to later non-leading questions.

1. It is well established that special considerations apply in relation to the evidence of young children.  In particular, leading questions which might not be appropriate for adult witnesses might well be required in order to direct the child’s attention to the particular matter at hand.  That is precisely what occurred here.  Having understood what it was that the questioner wanted him to talk about, Michael, as indicated, gave detailed information which went extensively beyond anything which had been put to him by the questioners.

1. In my view the asking of the leading questions was permissible in the circumstances.  The answers are certainly prejudicial, but only insofar as they support Mary’s claims and are therefore probative of the prosecution case.  In the circumstances I do not consider that there is any significant unfair prejudice arising from the admission of this evidence.

1. I therefore refuse the application to exclude the record of conversation with Michael.  The record will be admitted in its entirety.

I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of her Honour, Acting Justice Mathews.

Associate:

Date:     28 October 2010

Counsel for the Applicant:  Mr R Livingston
Solicitor for the Applicant: Legal Aid ACT
Counsel for the Respondent:  Ms K Weston-Scheuber
Solicitor for the Respondent:  Director of Public Prosecutions for the ACT
Date of hearing:  19 October 2010
Date of judgment:  28 October 2010