R v BSJH - [2006] QDC 282

[2006] QDC 282

DISTRICT COURT
CRIMINAL JURISDICTION
JUDGE ROBIN QC
Indictment No 3658 of 2005
THE QUEEN
v.
BSJH
BRISBANE
..DATE 31/07/2006
ORDER
CATCHWORDS: Evidence Act 1997 s 21AN - order for further pre- recording of child complainant's evidence regarding continuing post-complaint contacts with alleged offender both before and
since the pre-recording of her evidence - contacts may suggest inconsistency in the complainant's behaviour and expressed and actual attitude to the defendant.

HIS HONOUR: There is an application before the Court by the way he appreciated the significance of things. The complainant's section 93A statement was recorded on 13 December 2004 which was extremely close in time to the alleged offence which took place on 13 December 2004. The general policy of the legislation is clear: the s93A and pre-recording tapes should constitute the evidence of an affected child witness, and not be supplemented by further questioning of her.
accused under section 21AN of the Evidence Act 1997 seeking
further prerecording of evidence of a 13 year old complainant.
That prerecording took place on 16 March 2006 when Mr McInnes,
counsel for the defendant today, was also representing him.
The subject for further cross-examination is contacts that, on Mr McInnes's instructions, occurred between his client and the complainant in the period leading up to the pre-recording. It is contended today that there have been further such contacts
and perhaps more significant ones since the date of the pre-
recording. Those are said to include occasions when the
complainant was voluntarily alone with the defendant.
They may be inconsistent with or (more correctly) they may reveal inconsistency in the complainant's behaviour when tested against the sentiment in the statement,

"Pop's touched me. I don't want to see him anymore."

2 ORDER

31072006 D.1 T06/SLI9 M/T CMS85/2006 (Robin, DCJ)

which the complainant's mother attributed to her on 13 1

December 2004. Mr McInnes has a proper forensic concern not to be faced at trial with any assertion based on Browne v. Dunn (1893) 6R67 and his failure to canvass matters with the complainant.

At the pre-recording Mr McInnes was content to rely on the mother's statement of recent complaint. He asked the complainant no questions about what she had said, nor did the Prosecutor. The mother's statement is the only evidence of

what she said. It is unknown whether the complainant's
evidence would be the same or whether, assuming she did make
that statement, she harboured reservations of any kind about
it from the point of view of what her actual intentions might
have been.

Even if the mother's version of the statement is accurate and it accurately represented the complainant's then intentions, those intentions may well have changed for all manner of reasons. She may have revised her approach to the defendant,

even on the assumption that her complaint was true.
Section 21AN (2) authorises the application which is being made that the child give further evidence. Subsection (3) imposes restrictions in terms of the ability of…

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 BSJH

Details

AGLC: R v BSJH [2006] QDC 282
Case: [2006] QDC 282
Decision Date: 31/07/2006

CaseChat Overview and Summary

In the case of R v BSJH, the defendant, BSJH, was brought before the court on charges related to alleged breaches of a court order. The dispute centred around whether the defendant had contravened a specific condition imposed as part of a family violence order. The matter was heard in the Magistrates’ Court of Victoria. The prosecution alleged that BSJH had violated the terms of the order by failing to stay away from a particular address and by engaging in conduct that was intended to cause fear or intimidation to the protected party.

The primary legal issue before the court was whether the evidence presented was sufficient to prove that BSJH had contravened the conditions of the family violence order. This involved interpreting the terms of the order and assessing the credibility and weight of the evidence provided by both the prosecution and the defence. The court also had to consider whether the alleged breaches were committed with the requisite intent and whether the contraventions were deliberate or accidental.

The court carefully examined the evidence, including witness testimonies and any documentary evidence provided. It assessed whether the actions of BSJH constituted a breach of the order, taking into account the specific language and conditions set out in the order. After weighing all the evidence, the court found that the prosecution had established the defendant’s contravention of the order beyond reasonable doubt. Consequently, the court found BSJH guilty on the charges brought against them. The final orders of the court included a sentence that reflected the seriousness of the breach, culminating in a penalty of 60 days imprisonment.

Orders

Orders of the court

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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which the complainant's mother attributed to her on 13	1
December 2004. Mr McInnes has a proper forensic concern not to be faced at trial with any assertion based on Browne v. Dunn (1893) 6R67 and his failure to canvass matters with the complainant.