R v GVM (No 1)

[2013] QDC 100

DISTRICT COURT OF QUEENSLAND

CITATION:

R  v GVM (No 1) [2013] QDC 100

PARTIES:

R

v

GVM

FILE NO/S:

1425/12

DIVISION:

Criminal Jurisdiction

PROCEEDING:

Pre-trial application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

3 April 2013 (ex tempore)

DELIVERED AT:

District Court at Brisbane

HEARING DATE:

3 April 2013

JUDGE:

Kingham DCJ

ORDERS:

Order that neither the section 93A statement nor the pre-recorded evidence of the complainant may be lead at the trial.1.

CATCHWORDS:

CRIMINAL LAW – EVIDENCE OF AFFECTED CHILD WITNESS – S 93A EVIDENCE ACT 1977 (Qld) - NATURE OF QUESTIONING – where the complainant child participated in a recorded interview with police – where the complaint emerged at the end of the interview after leading and suggestive questioning – whether the statement is admissible, given the nature of the questioning.

CRIMINAL LAW – EVIDENCE OF AFFECTED CHILD WITNESS – SS 98 & 130 EVIDENCE ACT 1977 (Qld) – where the complainant child participated in a recorded interview with police – where the interviewer’s questions were improperly repetitive and suggestive – if admissible, whether it would be inexpedient in the interests of justice to admit the interview into evidence – whether it would be unfair to admit the interview into evidence.

CRIMINAL LAW – EVIDENCE OF AFFECTED CHILD WITNESS – SS 21AK, 98 & 130 EVIDENCE ACT 1977 (Qld) – where a s 21AK hearing proceeded on the basis of evidence later ruled inadmissible – whether the s 21AK hearing is admissible.

Evidence Act 1977 (Qld) ss 21AK, 93A, 98 & 130.

COUNSEL:

R.A. Swanwick for the Crown.

A.D. Anderson for the defendant.

SOLICITORS:

Office of the Director of Public Prosecutions of Queensland for the Crown.

Boe Williams Lawyers for the defendant.

REASONS DELIVERED EX TEMPORE:

1. Thank you. I'm going to give my decision now on the application by defence counsel to exclude the section 93A statement made by the complainant, the defendant's daughter, who was five at the time of the alleged offence and when she gave that statement.

2. Defence has also sought to exclude the pre-recorded cross-examination of the complainant in the exercise of the Court's discretion. No complaint is made about that pre-recorded evidence but as a matter of fairness and commonsense if the section 93A statement is excluded so should the pre-recorded evidence be, predicated as it is on a statement that would then not be admitted into evidence.

3. The application is not made on the basis that this complainant could not give evidence of what she says happened to her. The grounds of the application are, firstly, that the complaint made in the section 93A statement is inadmissible having been elicited by leading and suggestive questioning or it isn't expedient in the interests of justice to admit it or it would be unfair to admit it.

4. Having read the transcript and viewed the video recording of the statement I have concluded that the complaint is inadmissible because of the manner in which it was elicited.

5. The transcript of the interview runs over 11 pages or 524 lines.  It was not until page eight of the transcript, commencing at line 366, almost three quarters of the way through the interview, that the complaint was made.

6. It is not unusual for preliminaries to take up the bulk of such an interview, particularly with such a young child.  It is important that the police officers take some time to settle a child witness and gain their confidence before moving to the central matter under investigation.

7. And here the officer running the interview did so appropriately for the first quarter or so of the interview.  However, he did turn to the events of the previous night and that morning at a much earlier stage of the interview than when the complaint was elicited.

8. When he did so the complainant gave an account of her father's interactions with her that involved no improper conduct on his part.  At line 178 to about 185 she said she told her father to get off her and sleep somewhere else which he did.  Shortly after at line 208 to 214 she said she was fighting with her Daddy because he had pushed her schoolmate, Ted, about of the bed and then everyone in the bed woke up.

9. It was not until after the officer, at line 366, asked her about whether she had talked to her mother about private parts that she made the complaint now prosecuted.  It is not the inconsistency between the earlier and later accounts but the way in which the later account was elicited that, in my view, renders it inadmissible.

10. The officer commenced the interview by asking open ended questions about what had happened in the bed that night.  This appropriately directed her to the event under investigation without suggesting the answer.

11. He did this at line 182 when the complainant said her father had slept in the bed with her and he asked, "Tell me about that."  This elicited the answer that she had told her father to sleep somewhere else.  Again, at line 208, the officer said, "So, he," - a reference to her father, "slept in your bed last night?  Then what happened?"

12. This elicited the answer about the fight over her father pushing her school friend from the bed.  At line 215 he asked what else happened and the complainant said, "I don't know."  I'll not refer to every example in detail but I noted that the complainant was asked to say what had happened, specifically in the context of what had happened in her bed that night, on 12 occasions.

13. Each time the complainant responded either that she did not know or that she did not know the rest of it, or words to that effect, in itself an unusual statement you might think from a five year old that begs the question, the rest of what, or she gave an account that was inconsistent with the allegation.

14. On the 13th attempt the officer specifically asked, "Did anyone touch you last night while you were in bed?" at line 362, which is the substance of the allegation.  She responded negatively by shaking her head.  At that stage the officer moved to the conversation with her mother about private parts and a complaint was volunteered.

15. The line of questioning was objectionable and rendered the answer given then inadmissible for the following reasons; firstly, repeating the same question as often as it was is liable to indicate to the child that the answer she was giving was not the answer the officer was looking for.

16. In one passage covering a page or so of the transcript, from page 5 line 208 to page 6 line 256, the officer asked what happened or for her to tell him about what happened in the bed on eight occasions.  Most of the questions were framed specifically asking what else happened, a clear indication to her that she was not giving the answers he expected or wanted from her. 

17. The transcript reveals that it was not necessary for the officer to repeatedly make the same inquiry.  The child was not hesitant or apparently reluctant to respond although from time to time her attention wandered to other matters.  From my observation the child was engaged, quite animated and physically demonstrative of the details she was providing in her answers throughout. 

18. She did not appear withdrawn or reluctant to answer the officer's questions and gave clear and specific detail about everything she talked about albeit much of it was about peripheral matters. 

19. Secondly, she specifically denied being touched in bed that night before the questioning continued.  Thirdly, that context, the repeated questioning and the specific denial must colour the interpretation of the particular passage that lead to the complaint being volunteered. 

20. Fourthly, it is worth noting that the complaint emerged when she was referred not just to whether she knew what her private parts were but also to the conversation with her mother.  I have formed the view that the final question was leading and suggestive in that context given the repeated questioning, the specific denial and the reference in that question to both her private parts and the conversation with her mother.  And on that basis I consider the evidence is inadmissible. 

21. If I am wrong in drawing that conclusion, I would, in any case, exclude it in the exercise of my discretion either under section 98 as being inexpedient in the interests of justice to admit it or under section 130 as being unfair to the defendant to admit it.

22. I must make it clear that I would not do so on the basis that the complainant's evidence was so unreliable because of the inconsistencies that it could not be acted upon.  Inconsistencies in the accounts given by such a young child are to be expected so I would not proceed on that basis. 

23. The grounds upon which I would exercise my discretion are firstly, the nature of the questioning which I think was improperly repetitive and suggestive.  I don't accept that the questioning followed familiar standard or proper procedures.  I think it went beyond what was proper. 

24. I have noted the number of times the child was asked to say what else happened.  This was not just repetitive but suggestive given the way the question was framed.  Secondly, the complaint followed a specific denial of the central allegation in the context of an interview in which the child demonstrated she was responsive to suggestions in her answers and that's demonstrated by the answers she gave about who else, other than her parents, were in the bed that night.

25. At one stage when she gave the names of two friends she hadn't mentioned before the officer queried whether that was right and she immediately responded to this suggestion and reverted to names she had previously given.  The significance of this evidence is not that she gave inconsistent accounts about who was in the bed, rather that she responded so immediately to the cues given to her by the officer.

26. Thirdly, I have taken into account the consequences for the defendant if he is to face serious criminal charges with this evidence at the centre of the Crown case.  And finally, I have taken into account the important public policy consideration of ensuring that officers are trained and supported in questioning children about allegations of criminal matters having regard to the exacting standards required for evidence in criminal matters. 

27. I wish to add here that there is no suggestion that the officer involved intentionally behaved in an improper manner, rather, that his questioning viewed as a whole was inappropriate. I order that neither the section 93A statement nor the pre-recorded evidence of the complainant may be lead at the trial.

28. Given those rulings, do counsel wish to make submissions as to how this matter should proceed or would you prefer that the matter is listed for review after you've had the time to consider the matter further?

29. ...

30. HER HONOUR:  So I'll retain the number two listing for next week but I will list it for mention tomorrow.  And that will be before the Chief Judge or whoever is doing the mentions tomorrow, perhaps Judge O'Brien.  All right, thank you.