R v Cumner - [1994] QCA 270

IN THE COURT OF APPEAL [1994] QCA 270

SUPREME COURT OF QUEENSLAND	C.A. No. 108 of 1994
Brisbane [R. v. Cumner]

T H E Q U E E N

ALLAN ROBERT CUMNER (Appellant)

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FITZGERALD P.
DAVIES J.A.
DEMACK J.

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J	udgment delivered 28/07/1994

JOINT REASONS FOR JUDGMENT OF FITZGERALD P. AND DEMACK J.
SEPARATE CONCURRING REASONS OF DAVIES J.A.
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APPEAL ALLOWED AND CONVICTION QUASHED. DIRECT THAT A VERDICT OF
ACQUITTAL BE ENTERED. NO RETRIAL ORDERED.
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CATCHWORDS:CRIMINAL LAW - EVIDENCE - indecent dealing with a child - complainant's videotaped interview with police only evidence of commission of offence - statement made for first time more than nine months after incident - complainant's mother continually asked child about incident in manner requiring affirmative answer - inconsistency between videotaped evidence and earlier statements - practical impossibility for accused to challenge complainant's evidence - whether verdict unsafe and unsatisfactory - whether

evidence of c hild should have been received

s. 93A(1) Evidence Act 1977 (Qld)

Counsel:Mr R.J. Luxton for the Appellant
Mr. B. Butler for the Respondent
Solicitors:J.P. Bussa & Co. for the Appellant
Director of Prosecutions for the Respondent
Date(s) of Hearing:21 June 1994
Judgment delivered 28/07/94

We agree with the judgment of Davies JA., but wish to add some observations in relation to subsection 93A(1) of the Evidence Act 1977.

That subsection provides that, if the specified conditions are met, the statement of the child contained in the document "shall ... be admissible on evidence of [the] fact" which the statement tends to establish. However, it is plain that there is a discretion to reject the child's statement; "if for any reason it appears ... to be inexpedient in the interests of justice that the statement should be admitted" (section 98); "if ... it would be unfair to the person charged to admit that evidence" (section 130). See also R. v. T. (1993) 1 Qd R 455- 457 per Thomas J. with whom Byrne J. agreed.
As Davies JA. states, there was no evidence whatsoever against the appellant except the child's statements to the police officer in the videotaped interview, which she contradicted in her evidence at the trial. Other problems associated with the statements made in the videotaped interview are also pointed to by his Honour. But there is an additional matter which should have been considered with the other problems in determining whether or not the accused could receive a fair trial if the child's statements in the videotaped interview were admitted into evidence. It was impossible for the accused to challenge or even to test those statements. The child was not only unable to recall the incident which formed the subject of the charge or to identify the appellant; she was also unable to recall even being interviewed by the police officer or going to the police station or, of course, what she said in the course of the videotaped interview. The practical consequence was that cross-examination as to…

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 Cumner

Details

AGLC: R v Cumner [1994] QCA 270
Case: [1994] QCA 270
Decision Date: 28/07/1994

CaseChat Overview and Summary

In the case of R v Cumner, the appellant, Allan Robert Cumner, was convicted of indecently dealing with a child under the age of 14 and subsequently sentenced to 12 months' imprisonment, suspended after two months. Cumner appealed against his conviction on two grounds. Firstly, he argued that the videotaped statement of the complainant, a child, should not have been admitted into evidence under section 93A(1) of the Evidence Act 1977 as it was not made soon after the commission of the alleged offence. Secondly, Cumner contended that the verdict was unsafe and unsatisfactory due to the lack of corroboration and the unreliability of the child's statement. The Supreme Court of Queensland heard the appeal and allowed it, quashing the conviction and ordering that a verdict of acquittal be entered without a retrial.

The legal issues before the court were whether the child's videotaped statement should have been admitted into evidence and whether the verdict was unsafe and unsatisfactory. The court found that the child's statement, which was made more than nine months after the alleged incident, was unreliable due to the manner in which the child's mother questioned her about the incident, inviting an affirmative response. The inconsistency between the videotaped statement and the child's trial evidence further undermined the reliability of the statement. Additionally, the court found that the practical impossibility of cross-examining the child about her statements rendered the evidence inadmissible. The court concluded that the verdict was unsafe and unsatisfactory as it was based solely on the uncorroborated and untested statement of a six-year-old child. Consequently, the appeal was allowed, and the conviction was quashed, with no retrial ordered.

Orders