R v DBM - [2017] QCA 124

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 2016

DIVISION:

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 made

ORDER:

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 respondent

SOLICITORS:

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…

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 DBM

Details

AGLC: R v DBM [2017] QCA 124
Case: [2017] QCA 124
Decision Date: 9 June 2017

CaseChat Overview and Summary

The case of R v DBM involved the appellant appealing against his conviction for maintaining an unlawful relationship with a child under 16 years. The dispute centred around the admissibility of a recording of the complainant's answers to questions designed to test her competence to give evidence. The appellant claimed that the trial judge wrongly ruled the recording inadmissible and also refused an application to re-open the pre-recording of the child's evidence to allow for cross-examination regarding those answers. This raised the question of whether any error occurred and, if so, whether it resulted in a miscarriage of justice.

The legal issues before the court were whether the trial judge erred in ruling the recording inadmissible and in refusing to allow the complainant to be recalled to be cross-examined on her answers. The court examined the relevant provisions of the Evidence Act, particularly section 21AN, which governs the recall of child witnesses. The appellant's counsel argued that the recording should have been played to the jury or used to recall the complainant for further questioning to test her coherence and understanding. The court had to decide if these actions would have been permissible under the statute and if any error prejudiced the appellant.

The court found that the trial judge did not err in ruling the recording inadmissible as it was relevant solely to the issue of the child's competence, not her credibility. The court referenced the principle from Demirok v The Queen, as cited in R v Harding, that evidence relevant only to competence should not be used for other purposes by the jury. The court concluded that the trial judge's decision was consistent with these legal principles and there was no miscarriage of justice. The appeal was dismissed as the appellant failed to demonstrate any error by the trial judge that prejudiced his case.

The final orders of the court were to dismiss the appeal against conviction, affirming the appellant's conviction on the charge of maintaining an unlawful relationship with a child under 16 years.

Orders

Orders of the court

Appeal dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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CITATION:	R v DBM [2017] QCA 124
PARTIES:	R v DBM (appellant)
FILE NO/S:	CA No 252 of 2016 DC No 6 of 2016
DIVISION:	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 made
ORDER:	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 respondent
SOLICITORS:	Suthers Lawyers for the appellant Director of Public Prosecutions (Queensland) for the respondent