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

v.

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 the statements made by the child in that interview was impossible.

In our opinion, in all the circumstances, evidence of the statements made by the child in the videotaped evidence should not have been received.

We agree that the appeal should be allowed and the conviction quashed, and that there should be no retrial.

REASONS FOR JUDGMENT - DAVIES J.A.

Judgment delivered 28/07/1994

The appellant was convicted on 9 March 1994 of unlawfully and indecently dealing with a female child under the age of 14. On the same day he was sentenced to 12 months' imprisonment to be suspended after two months. He has appealed against that conviction.

The complainant in the present case was only five at the time of the alleged offence which was 28 March 1992. She was eight at trial.

The only evidence of the commission of the offence was that of the complainant given in a videotaped interview with the police which the learned trial judge admitted into evidence pursuant to s. 93A(1) of the Evidence Act 1977. Although the complainant was available to and did give evidence in the trial, she did not give evidence of the acts alleged to have constituted the offence.

The appellant appealed, in substance, on two grounds. The first was that the learned trial judge wrongly admitted the videotaped statement into evidence because it was not made soon after the commission of the fact or soon after it became apparent to the person investigating the matter that the child was a potential witness: s. 93A(1)(b). The second was that the verdict was unsafe and unsatisfactory. Because of the conclusion which I have reached on the second of those grounds, it is unnecessary to deal with the question of the admissibility of the statement.

The case against the appellant was as follows.

The day of the alleged offence was a Saturday. On that weekend the complainant and her mother were staying at the home of the appellant and his wife, who was a relation of the complainant's mother. On that afternoon, according to the complainant's mother, the accused volunteered to run the bathwater for the complainant's bath. Having done that, he offered to bathe the complainant which offer was rejected by the complainant's mother. Notwithstanding the rejection of that offer, according to the complainant's mother, the accused commenced to bathe her in the mother's presence. He then left the bathroom. The mother left shortly afterwards to get a towel. When she returned the applicant, she said, was down on his knees beside the bath with his left hand on the complainant's inner thigh. She said he flinched when he saw her return and said, "I'm just washing her legs for her."

The recorded statement of the complainant was given on 30 December 1992, more than nine months after the alleged incident.

This was in consequence of a statement which she made to her mother on 19 December. Almost every day for a period of about two months commencing shortly after the weekend of the alleged incident, the complainant's mother questioned the complainant about whether the appellant had touched her "in the private part". On each occasion the complainant either answered in the negative or told her mother to stop talking about it. Then, on 19 December the complainant's mother and the complainant were at a speedway meeting with some friends. The complainant had been sitting on a man's lap. Her mother took her to the toilet and told her there that she should not sit on men's laps because someone could hurt her. It was then that the complainant told her mother that the appellant had inserted his finger "in her fanny". She gave a similar version in the recorded statement.

However, by the time of trial her evidence was different. There she denied that he put his finger in her fanny. However, she said that he did touch her fanny although she did not see his finger near it or feel his finger near it. He did not hurt her at all. There was no evidence of bruising or marks in the vicinity of the complainant's vagina after the alleged incident.

In my view the verdict was unsafe and unsatisfactory. This is not merely because the only evidence against the appellant was the uncorroborated and untested statement of a then six year old complainant. The most disturbing feature of the case, in my view, is that the statement, which was made for the first time more than nine months after the alleged incident, was made after the complainant's mother had, almost every day for about two months, asked her, in a way which invited an affirmative answer, whether the appellant had touched her on or in the vagina. This casts such serious doubt on the reliability of the statement that I do not think the jury's verdict, based as it must have been solely on that statement, was a safe one. That doubt as to its reliability is strengthened by the inconsistency of the complainant's evidence at trial with that earlier statement.

The appeal must therefore be allowed and the conviction set aside. As the evidence which was unsatisfactory is the whole of the evidence against the appellant, I would not propose to order a new trial.