R v ABV - [2005] QDC 426

DISTRICT COURT OF QUEENSLAND

CITATION:

R v ABV [2005] QDC 426

PARTIES:

THE QUEEN

v

ABV

FILE NO/S:

Indictment No 2655/2005

DIVISION:

Criminal

PROCEEDING:

Pre-trial application to exclude s93A Evidence Act statement

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

9 December 2005

DELIVERED AT:

Brisbane

HEARING DATE:

29 November 2005

JUDGE:

Nase DCJ

ORDER:

CATCHWORDS:

COUNSEL:

Mr J. Fraser appeared on behalf of the applicant/accused

Mr S.P. Vasta appeared on behalf of the respondent/prosecution

SOLICITORS:
Volk Lawyers for the applicant/accused

DPP for respondent/prosecution

Introduction

ABV is charged with three counts of indecently dealing with his daughter, C. The principal evidence against him is a long recorded interview between his daughter C and a police officer[1]. In a pre-trial application the defence asked me to exclude the recorded interview on discretionary grounds.
[1]Section 93A of the Evidence Act 1977 authorises the reception into evidence in criminal proceedings of an out of court statement by a child taken in accordance with the section. Once admitted, the statement is evidence of the facts asserted in it.

The police questioned the child for about 70 minutes[2]. For the first 30 to 40 minutes, the child maintained any vaginal touching by her father was both momentary and accidental. After being told of her statements to her mother, however, she affirmed her father had touched her on the vagina.
[2]This was an estimate by counsel.

The issue

The issue before me is whether the prolonged questioning of the child, which involved the use of repetition, admonitions to think very carefully, and leading questions, should result in the exclusion of the interview as a whole in exercise of the statutory discretion to reject the statement if it appears to the court to be inexpedient in the interests of justice to admit it at the trial[3].
[3]S98 Evidence Act 1977.

Background

The relevant background may be briefly stated. At the time ABV, his wife and their children C and D lived together. C was about six and a half years. The comment by C, which triggered the mother’s contact with the police, occurred during a casual mother/daughter conversation in the bathroom.

C was lying in the bath. She said she liked the feel of the tap water falling on to her genital area. The mother/daughter conversation flowed on to a reminder by the mother about the privacy of her genital area. At that point in the conversation C said her father had touched her genital area when they cuddled in bed[4]. That conversation occurred on a Monday evening[5]. Later that same night, when confronted by his wife, ABV denied touching his daughter inappropriately.
[4]The conversation about touching was a short one. The mother did not press the daughter for any details, as her daughter was not distressed and the mother did not want to highlight her daughter’s statement.
[5]7 February 2005.

On the following Friday[6] C was taken to police headquarters at Roma Street by her mother. Until that time, C’s mother had not spoken to her about…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v ABV

Details

AGLC: R v ABV [2005] QDC 426
Case: [2005] QDC 426
Decision Date: 9 December 2005

CaseChat Overview and Summary

In the matter of the Queen versus ABV, the defendant is charged with three counts of indecently dealing with his daughter, C. The key evidence against him is a recorded interview between C and a police officer. In a pre-trial application, the defence sought to exclude the recorded interview on discretionary grounds. The issue before the court was whether the prolonged and suggestive questioning of the child should result in the exclusion of the interview as a whole. The court found that the prolonged questioning of the child, which involved the use of repetition, admonitions to think very carefully, and leading questions, should result in the exclusion of the interview as a whole in exercise of the statutory discretion to reject the statement if it appears to the court to be inexpedient in the interests of justice to admit it at the trial. The court exercised the discretion conferred on the court by s98 Evidence Act to exclude from the trial evidence the recorded statement of the complainant child taken on 11 February 2005.

Orders