R v DBM
[2017] QCA 124
•9 June 2017
SUPREME COURT OF QUEENSLAND
CITATION:
R v DBM [2017] QCA 124
PARTIES:
R
v
DBM
(appellant)FILE NO/S:
CA No 252 of 2016
DC No 6 of 2016DIVISION:
Court of Appeal
PROCEEDING:
Appeal against Conviction
ORIGINATING COURT:
District Court at Gympie – Date of Conviction: 24 August 2016
DELIVERED ON:
9 June 2017
DELIVERED AT:
Brisbane
HEARING DATE:
16 February 2017
JUDGES:
Holmes CJ and Morrison JA and Bond J
Separate reasons for judgment of each member of the Court, each concurring as to the order madeORDER:
Appeal dismissed.
CATCHWORDS:
CRIMINAL LAW – APPEAL AGAINST CONVICTION – where the appellant was convicted on one count of maintaining an unlawful relationship with a child under 16 years – where the appellant asserts the trial judge wrongly ruled inadmissible the recording of the complainant’s answers to questions designed to test her competence to give evidence – where the appellant asserts the trial judge wrongly refused an application to re-open the pre-recording of the child’s evidence to enable her to be cross-examined on those answers – whether any error occurred – whether a miscarriage of justice has occurred
Evidence Act 1977 (Qld), s 21AN, s 93A
Sinclair v The King (1946) 73 CLR 316; [1946] HCA 55, followed
COUNSEL:
D R Mackenzie for the appellant
N W Crane for the respondentSOLICITORS:
Suthers Lawyers for the appellant
Director of Public Prosecutions (Queensland) for the respondent
HOLMES CJ: The appellant appeals his conviction of one count of maintaining an unlawful relationship with a child under 16 years, between 31 March 2013 and 4 June 2015. He appeals on the grounds that the verdict was unreasonable, and that there was a miscarriage of justice because, firstly, the trial judge wrongly ruled inadmissible evidence of the complainant’s answers to questions designed to test her competence to give evidence, and, secondly, because her Honour had wrongly refused an application to re-open the pre-recording of the child’s evidence to enable her to be cross-examined on those answers.
The evidence
The complainant, to whom I will refer as “B”, was aged between two and four years old over the period during which the offence was alleged to have occurred. She was four and a half years old when interviewed by police, and five years old when the pre-recording of her evidence took place.
B’s mother lived with her three children in a house on a rural property belonging to the appellant. According to B’s mother, B was in full-day care Wednesdays, Thursdays and Fridays. B saw the appellant only in passing on those days she was in care; she and her younger brother spent about an hour a day with the appellant on other days. A good deal of that time was spent with the appellant on his front verandah or watching TV in the lounge room; sometimes he would take the children for a ride on his tractor or quad bike. When the little girl was at the appellant’s house, B’s mother said, he would help her with toileting.
One evening in June 2015, a friend of B’s mother overheard a conversation between the two children while they were in the bath, which led to B’s mother asking the girl if the appellant had touched her. B said that he had not, but later asked her mother if she would get a smack if she told the truth. She then said that the appellant touched her “fanny”; which her mother said was a term she used for her vagina.
The following day, B’s mother took the child to a police station to be interviewed. On the way there, B said that the appellant kissed her and touched her “privates” while they were on the lounge. B’s mother asked the child if the appellant asked her to touch his privates and she responded that he had, but she had not complied.
In her police interview, B volunteered that the appellant was “naughty” because he had touched her privates and played with her fanny. (It was admitted that when B referred to her fanny in the interview, she had pointed to her vaginal area.) He did it “all the time” on “Wednesday and Tuesday…..and….tomorrow”. She repeated that statement a number of times. At one point she said that “on tomorrow he did it, on the tractor” and at another, that
“he goes on that bike and then he touches my fanny there…he was going to touch my fanny when he was on the bike”.
The appellant had kissed her on the fanny “a million times” and she had been to his house “a million times”. He touched her when she was clothed, putting his hand inside her underwear. Asked how it felt when the appellant touched her on the fanny, B said that he did it “really hard” and it made her fanny “really sore”. He “push[ed] his finger hard in [her] fanny” which made it “really sore” and “really red”.
B was interviewed again about seven months later, on 31 January 2016. She said that the appellant had been “touching [her] fanny” but, pressed to give more information, said she did not know. She was asked whether he had touched it on the outside of her clothes and replied that it was on the inside, but, asked if she could remember any particular times, said that she could not. She did remember that she was in the lounge room at the appellant’s house when he touched her fanny.
Giving pre-recorded evidence, B was cross-examined. She agreed that the appellant had let her watch television at his house and given her lollies and fruit. He had played games with her, pretending to bite her like a dog and tickling her and sometimes blowing raspberries on her stomach. She denied that the appellant helped her go to the toilet, saying that she wiped herself. It was suggested to her that he had not kissed her fanny; she said that he did. She denied that he had touched her only to wipe cream on her and rejected the proposition that he had not put his finger inside her fanny.
On the day of B’s first police interview, 13 June 2015, her mother made what is generally referred to as a “pretext call” (a telephone call arranged and recorded by the police) to the appellant, during which she accused him of touching B’s vagina. He said that he had done so when he had taken her to the toilet, not otherwise. He agreed that he had “mucked around” and played games with the children, but he had not intentionally touched the child’s vagina. When B’s mother demanded to know what “mucking around” involved, the appellant said he did not know; he could not think straight.
The appellant did not give or call evidence.
The appellant’s submissions on the “unreasonable verdict” ground
It was argued for the appellant that no reasonable jury could have acted on B’s evidence because of its lack of detail as to what had occurred, and when, over the two years and three months of the charged period. There was no independent supporting evidence for her account; the pretext telephone call contained denials and equivocal answers. B was giving her recollection of events which might have occurred as early in her life as when she was two years old. The prosecution case was that the offending was limited in its occurrence to those days when B was not at day care (i.e. not Wednesdays, Thursdays and Fridays), but she said repeatedly in her interview that it occurred “Tuesdays and Wednesdays”. On the other hand, B evidently had difficulty in understanding what the days of the week were and concepts such as time or her own age. She could not count and used descriptors such as “a million times”. She had told the police that the appellant’s surname was the same as hers (which it was not).
B had given some non- responsive or incoherent answers. When asked how the appellant was related to her, she reverted to speaking of his “naughty” behaviour; when asked if she had been told what to say in the interview, she replied that she was a good girl and would not be going to the appellant’s house. She told the police officer that she would “tell [him] something later”; when he returned to the subject, she mentioned that the appellant had touched her fanny and then offered to draw the officer a flower. In the second interview, when the police officer asked her to tell him something she used do with the appellant, she said that she had “gone over” with her mother “tomorrow… and yesterday… and Friday”. Her attention span was short and she was distracted at various times in the interviews.
Conclusions on unreasonable verdict ground
I have watched the s 93A recordings and B’s pre-recorded evidence. There is nothing in B’s demeanour which would give any cause for concern. She appears a lively, bright little girl. She is not unduly distracted during the first interview. The police officer asked her to draw a picture of the appellant’s house and her own house, after which she decided to draw the appellant himself, followed by a flower, but that was unremarkable behaviour for a four year old. Indeed the interviewer was skilful in allowing her some leeway, waiting while she completed her pictures and not pressing her with questions, so that the child was entirely relaxed throughout the interview. She gave some unresponsive answers, but not frequently, and not more than one would expect for a child of her age.
B’s account in the s 93A interview is not without detail. She described the appellant’s putting his finger in her vagina hard enough to hurt. She volunteered that he touched her on the tractor and on the bike; B’s mother confirmed that the appellant occasionally took the children for the ride on his tractor and on his quad bike. It is plain from the interview that B cannot distinguish the days of the week, but she is clear about being touched and kissed on the “fanny”; and she is able to explain that the only other person who had ever touched her there was her mother, when she washed her. The jury was entitled to accept B’s account in the interview; it was consistent with, although more expansive than, her initial complaint to her mother. It is clear that her recollection had started to fade by the second interview seven months later, but she did not then say anything inconsistent with her earlier account. Nor did she change her account under cross-examination.
The questions of how many acts there had been, and for how long the unlawful sexual relationship had continued within the particularised time frame, were, given B’s inability to identify days or times, unlikely to permit of a clear and certain answer. But that was a difficulty relevant to sentence, not a matter which would preclude the findings necessary to conviction on the maintaining charge. It was not necessary for the jury to be satisfied as to how many times the events of which B spoke occurred, or that they happened at any particular time; to convict the appellant of maintaining an unlawful sexual relationship with her, they had only to be satisfied beyond reasonable doubt that there had been an ongoing relationship during which he had committed more than one unlawful sexual act. There was no reason they could not accept the evidence of B to that effect.
The matters to which the appellant points do not alone or collectively raise such significant questions about B’s reliability that the jury could not properly have acted on her evidence. It is unnecessary to consider what weight might have been given to the pretext call. It was open to the jury to accept B’s account of the kissing and touching of her vaginal area at different locations and to be satisfied beyond reasonable doubt of the appellant’s guilt of maintaining an unlawful sexual relationship.
The questions and answers at the beginning of the pre-recording of B’s evidence
At the commencement of the pre-recording on 30 May 2016, the presiding judge (Long DCJ) asked B some questions in order to ascertain her capacity to give evidence. They included the following passage, which then became the subject of an admission at trial:
“Do you know the different days of the week? Do you know the names of the days of the week? ---No
Well, what do you call today? What day is today? --- I think it’s after Christmas.
Yes, all right have you ever hear anyone use the word Wednesday before? Have you heard that? --- No
You haven’t? --- No
All right. What about Sunday? ---No?
No. All right.”At the beginning of the trial on 22 August 2016, the appellant sought to have the entirety of the questioning and answers concerning B’s competence played to the jury, arguing that the material in the passage went to her reliability. In this court, counsel identified as the significant parts of the exchange in the preceding paragraph concerning the days of the week and the following passages:
“How many people are there in your family? ---Four
All right. Who are they? Can you tell me their names? --- [B identified her mother, her mother’s boyfriend and her two brothers.]
Right. Who was the first one you said? --- [B gave her mother’s first name].
All right. Who’s [the mother’s name]? ---My mum.
Your mum. All right. Does your mum sometimes ask you questions and ask you to tell her about things that may or may not have happened?---She doesn’t say some – she doesn’t say.Do you sometimes have to tell your mother things about things that might have happened with you? [indistinct]
Is that a yes or a no? ---She knows, because I told her.
All right. But when you talk to your mother, when she asks you questions about things, has she ever explained to you about telling her the truth? ---I don’t know what you’re saying.
Well, do you know what the truth is? Do you know what ---? --- The truth is you tell the truth.
Yes. What’s that mean? ---it means you tell the truth by talk and tell the truth when you talk to – about it.
All right. So if I said that you were wearing a grey-coloured top, and you had a pink bottle sitting in front of you, would that be the truth?---Yes.
All right. If I said to you that you were wearing a hat, would that be the truth? ---No.
What would you call that? ---A [indistinct].
A what? ---I would say a no.
I just didn’t hear the word that you said, I’m sorry. If I said you had a hat on your head, would that a be a lie? ---A lie.
….
But I need you to sit there and pay attention like you would at school and listen very carefully to the questions that are asked. All right? ---Okay.
Now, do you understand that it is very important that every answer you give tell us the truth? Do you understand that? ---I don’t know what you’re saying.
Well, when you’re asked the questions and you give the answers, I want you to bear in mind that it’s very important that your answers are true – that is, that you only tell us about things that actually happened. Do you understand that? ---Yes.”The application at trial to have the recording of the competence exchange played
In applying to the trial judge to have the recording of Long DCJ’s questions and B’s answers played before the jury, counsel explained that he had not sought to cross-examine the child at the pre-recording about what was said in the exchange, because he had thought that the best evidence would be the recording; which, he contended, “arguably” was a statement admissible under section 93A(1) of the Evidence Act 1977. That subsection provides:
“93A(1) Statement made before proceeding by child or person with an impairment of the mind
(1)In any proceeding where direct oral evidence of a fact would be admissible, any statement tending to establish that fact, contained in a document, shall, subject to this part, be admissible as evidence of that fact if—
(a)the maker of the statement was a child or a person with an impairment of the mind at the time of making the statement and had personal knowledge of the matters dealt with by the statement; and
(b)the maker of the statement is available to give evidence in the proceeding.”
As a secondary submission, counsel argued that if the trial judge ruled against the playing of the recording to the jury, B should be recalled to permit him to ask her about it. Section 21AN of the Evidence Act deals with the circumstances in which a child witness may be recalled:
“21AN Giving of further evidence
(1)This section applies if the affected child has given evidence under this subdivision for a proceeding and has been excused from further attendance as a witness at the proceeding.
(2)A party may apply to the court for an order that the child—
(a)give further evidence under this subdivision at another preliminary hearing; or
(b)attend at the proceeding to give further evidence.
(3)The court must not make the order unless satisfied that—
(a)if the child were giving evidence before a court in the ordinary way, the child could be recalled to give further evidence; and
(b)it would be in the interests of justice to make the order.
(4)The court must not make an order that the child attend at the proceeding to give further evidence unless satisfied it is not possible or not practical for the child to give the further evidence at another preliminary hearing.”
Counsel for the appellant submitted to the trial judge that the exchange between Long DCJ and B showed that the child could not answer straightforward questions coherently. He proposed, if B were recalled, that he would play the recording of her conversation with Long DCJ to her and ask her to adopt it. Alternatively, he would read the exchange to her and, if she did not recall it, seek to play the recording. He explained that he had not attempted to do either during cross-examination at the prerecording because he was waiting to obtain the recording, and he had previously thought it would be possible to reach an agreement with the prosecutor about the evidence. However, after some discussion with the trial judge about the proper form of the proposed cross-examination, counsel said that if the child were recalled he would ask her questions on the basis of the exchange concerning the days of the week, with the prospect of putting the recording to her if her answers were inconsistent with it.
In the course of argument, the trial judge drew counsel’s attention to this passage from the judgment of Gibbs J in Demirok v The Queen[1], as cited in R v Harding[2];
“Evidence which is relevant solely to the question of competence should not be used by the jury for some other purpose, such as determining the credibility of the witness. If the evidence given on the voir dire happens also be relevant to a question the jury has to decide, and is admissible, it made be given again before the jury: see Basto v The Queen (1954) 91 CLR 628 at pp.639-640.”[3]
In Harding, the trial judge had conducted an inquiry into a child’s competence to give evidence in the presence of the jury. The Court of Criminal Appeal commented on the undesirability of that course, because of the risk of prejudice to the accused, while noting, on the basis of what was said in Demirok, that “matters of value in the voir dire” could be repeated before the jury when the child gave evidence.[4] (What was envisaged in Harding was that the prosecution might wish to lead the evidence again to establish the child’s intellectual capacity.)
[1](1977) 137 CLR 20.
[2][1989] 2 Qd R 373 at 375.
[3]At 31.
[4]At 376.
The rulings
The trial judge ruled against the appellant on both applications. Her Honour referred to the passage from Demirok, noting the point made there, that if evidence given on the voir dire was relevant and admissible, it could be given again before the jury. Her Honour concluded that the exchange between the judge and B in relation to competence was not per se admissible; this was a matter for the judge alone to consider, in the absence of the jury.
Defence counsel had argued that the material went to B’s reliability as a witness, because of some confusion in her answers, but he had not addressed those matters when he had the opportunity to cross-examine B. He could then have asked questions about the same topics and put earlier answers if they were inconsistent with what she now said, but that had not been done. Absent any cross-examination of B on the exchange, there was no basis on which to put Long DCJ’s examination of the child before the jury. The evidence being inadmissible, section 93A of the Evidence Act, which is confined to statements tending to establish a fact evidence of which would be admissible, could not assist.
Section 21AN of the Evidence Act dealt with the circumstances in which a child who had already given evidence at a preliminary hearing could be recalled. It was necessary for the applicant to establish that it was in the interests of justice to make the order. Defence counsel had indicated that at the pre-recording he decided not to cross-examine on the competence questioning because of his view that the evidence could be put before the jury. He had not chosen to take the course her Honour considered appropriate: to ask similar questions to those posed by Long DCJ and, if the occasion arose, establish prior inconsistent statements. That opportunity having been forgone, to permit that course to be taken with a child of B’s age at trial, more than three months after the original questioning, could only lead to confusion for the child. It would be unfair and was not in the interests of justice. The Crown’s indication of its willingness to admit the portion of the transcript which indicated B’s confusion about the days of the week was a further reason not to grant leave.
The appellant’s contentions re the admissibility of the competence exchange
Counsel for the appellant contended that the jury should have seen what he described as the “best evidence”, in the form of the recording of Long DCJ’s questioning of B, in order to enable it to assess B’s reliability. The trial judge’s ruling, by preventing that from occurring, had denied the appellant a fair chance of acquittal. The recording demonstrated B’s uncertainty as to the days of the week, the Crown case being that the offending had occurred on days when she was not in care. Other parts of the exchange which indicated the child’s unreliability were these questions and answers:
“Does your mum sometimes ask you questions and ask you to tell her about things that may or may not have happened? ---She doesn’t say some – she doesn’t say.
…
Do you sometimes have to tell your mother things about things that might have happened with you? [indistinct]
Is that a yes or a no? ---She knows, because I told her.
…
Now, do you understand that it is very important that every answer you give tell us the truth? Do you understand that? ---I don’t know what you’re saying.”The trial judge had failed to distinguish between a judge’s assessment of a child’s competence and a jury’s assessment of her reliability; her Honour had wrongly considered that evidence in relation to the capacity of the child could not be placed before the jury, notwithstanding its relevance. That was at odds with the statement in Harding to the effect that while it was appropriate to explore capacity by voir dire in the jury’s absence, if the evidence were relevant and admissible it could be given again before the jury.
Conclusions on the ruling against admitting the recording
Neither Harding nor Demirok is, in my view, authority for the proposition that a recording of questions and answers designed to explore a witness’s capacity can, without more, be played to a jury. Both cases concerned witnesses who had answered questions on the voir dire; in both cases the point was made that if their evidence was relevant and admissible, the witness could give it again at trial. In Basto v The Queen, cited in Demirok the High Court approved the approach of Rich J in Sinclair v The King[5]: that evidence given on a voir dire might prove, for different reasons, to be relevant again on trial. Rich J gave an example which is illustrative for present purposes. A defendant who alleged that a confession was procured by force would give evidence to that effect before the trial judge on the issue of voluntariness. If the judge, not accepting his account, ruled that the confession was admissible, he could repeat his allegations before the jury so that they could form their own view as to the confession’s probative weight. But in none of those cases was it suggested that the questions and answers on the voir dire could simply be placed before the jury in the form of a recording or transcript.
[5](1946) 73 CLR 316.
Nor is there any statutory basis for taking a different view of the competence questioning here. Section 21AK of the Evidence Act provides for the video recording of an affected child’s evidence, but the exchange between the judge presiding over the pre-recording and B was not any part of B’s evidence. The trial judge was right to find that s 93A of the Evidence Act had no application. B’s answers to questions about the days of the week and the members of her family, and whether it was true to say that she was wearing a grey top or a hat, were not facts of which evidence would have been admissible in the proceedings, although it would have been open to counsel to test her reliability by asking similar questions. If she had answered differently, any earlier answer which could properly be characterised as a “former statement…relative to the subject matter of the proceeding” might then have been proved under s 18 of the Evidence Act.(It is difficult to see that any answer other than, possibly, those concerning her knowledge of the days of the week would fall into that category.)
The exchange between B and Long DCJ did not fall within either s 21A or s 93A; it was merely a testing of competence under division 1A of the Evidence Act. Having no statutorily-conferred evidentiary status, it was hearsay for the purposes of the trial. It was not the “best” evidence; it was not admissible evidence at all. The trial judge was correct in ruling that there was no basis on which to put the recording before the jury; although, as her Honour correctly noted, the evidence could have been given again by the same questions being asked and answered.
In any event, even had the trial judge’s ruling been wrong, I would have concluded that it led to no miscarriage of justice. The Crown case was that the offending occurred on days other than Wednesdays, Thursdays and Fridays; B’s nomination of “Wednesday” as a day on which the appellant touched her was inconsistent with that case. It is difficult, then, to see how it assisted the defence (rather than the Crown) to emphasise the child’s inability to distinguish the different days of the week, which explained the discrepancy. However, assuming B’s inability to identify days was of assistance to the defence in some way that escapes me, it was established by the admission of the relevant passage from Long DCJ’s questioning. So far as any significance might attach to hearing and seeing B manifest her incomprehension of the days of the week, the section 93A tape made it abundantly clear that at a time more relevant than when she was giving evidence, she had no capacity to identify any particular day. To play the passage from the prerecording would have added nothing.
Other answers which B gave to Long DCJ’s questions do not, in my view, demonstrate any particular unreliability. The question about whether B’s mother asked her to tell her “about things that may or may not have happened” was not, with respect to the learned judge (who was extemporising) very clear, and it is not surprising that the child’s answer suggests some uncertainty. B evidently, and not unreasonably, took the question about whether she had to tell her mother about things that “might have happened” as a reference to what had happened with the appellant; hence the (accurate) answer that her mother knew, because she had told her. Her response “I don’t know what you are saying” was appropriate; it indicated that she had not understood the judge’s question, which was again, with respect, a little obscurely phrased. His Honour then reformulated it in a way which she did understand.
The appellant’s submissions as to the 21AN ruling
Counsel for the appellant submitted that the trial judge should not have regarded his failure to cross-examine B on the relevant exchange at the prerecording as a reason to refuse to re-open the prerecording. It was apparent from the trial transcript that he had not been able to hear something the child had said, but had decided it would be better to wait for the transcript and revisit the matter at trial, seeking either to have to the recording played or reopening of the section 21AK hearing. The trial judge had exercised her discretion in a way which was unreasonable, and a miscarriage of justice had resulted.
Conclusions on the 21AN ruling
The trial judge was entitled to have regard to the fact that the opportunity to cross-examine the child at the prerecording had been foregone, whatever the reasons for that. Her Honour also properly took into account the unfairness to B of asking her some months later about the subject matter of Long DCJ’s questions (which could have been of no particular consequence to her, and hence not at all memorable). Similarly, the fact that the Crown was willing to admit the passage which counsel said he wanted to cross-examine about was a proper consideration. To allow the application, the trial judge had to be satisfied that it was in the interests of justice. Nothing put to her by counsel would have warranted that conclusion.
Even had there been some error, I do not consider that repetition of the questions asked in the competence exchange, followed by proving those answers if B’s responses were inconsistent, would have done anything to assist the appellant. For the reasons I have already given, I consider that B’s uncertainty as to the days of the week was of doubtful value to the appellant’s position; but in any event it was amply demonstrated by the section 93A interview and the passage the subject of the admission. The other answers given to Long DCJ did not demonstrate unreliability.
Orders
I would dismiss the appeal.
MORRISON JA: I have had the advantage of reading the draft reasons of the Chief Justice, with which I agree. They reflect my own assessment of the whole of the evidence in the trial. In particular, having viewed the s 93A evidence and the pre-recorded trial evidence of B, I agree with the Chief Justice’s assessment of the quality and reliability of that evidence at its core, and that it was open to the jury to accept it and convict the appellant.
As to the additional parts of the recorded exchange between the learned trial judge and B before her trial evidence began, I agree that there was no error on the part of the learned trial judge in excluding it. That exchange was not part of the pre-recorded evidence under s 93A, was directed only at B’s competency and added nothing to what had been achieved in an evidentiary sense. Similarly, I agree with the Chief Justice’s conclusions on the issue concerning the application under s 21AN.
I agree with the order proposed by the Chief Justice.
BOND J: I agree with the Chief Justice.
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