R v GVM (No 2) - [2013] QDC 70

DISTRICT COURT OF QUEENSLAND

CITATION:

R v GVM [2013] QDC 70

PARTIES:

R

v

GVM

FILE NO/S:

1425/12

DIVISION:

Criminal Jurisdiction

PROCEEDING:

Pre-trial application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

22 April 2013

DELIVERED AT:

District Court at Brisbane

HEARING DATE:

5 April 2013

JUDGE:

Kingham DCJ

ORDERS:

The application to stay the indictment is refused.1.

The matter is listed for mention at a date to be fixed.2.

CATCHWORDS:

CRIMINAL LAW – PROCEDURE –APPLICATION TO STAY INDICTMENT – where the prosecution did not disclose inconsistent statements by Crown witnesses made in conference – where the complainant’s s93A Evidence Act 1977 (Qld) statement and pre-recorded evidence excluded – whether the indictment should be stayed

CRIMINAL LAW – EVIDENCE OF AFFECTED CHILD WITNESS – where the complainant’s s93A Evidence Act 1977 (Qld) statement and pre-recorded evidence excluded – whether decision to exclude pre-recorded evidence should be re-opened

CRIMINAL LAW – EVIDENCE OF AFFECTED CHILD WITNESS – where complainant’s s93A Evidence Act 1977 (Qld) statement and pre-recorded evidence excluded – whether procedure for pre-recording evidence pursuant to s21AK Evidence Act 1977 (Qld) applies

CRIMINAL LAW – EVIDENCE OF AFFECTED CHILD WITNESS – S 93A EVIDENCE ACT 1977 (QLD) - where s93A Evidence Act 1977 (Qld) statement by complainant to police excluded – where complainant’s mother gave a statement to police in which she reported her conversation with her daughter about the alleged events – where the prosecution argued the statement is admissible either as s93A Evidence Act 1977 (Qld) statement or as preliminary complaint evidence – where not necessary for court to decide – whether statement would be excluded in exercise of the discretion in s98 Evidence Act 1977 (Qld)

Criminal Code (Qld) ss 590A(2)(b), 590AL.

Director of Public Prosecutions Act 1984 (Qld) s 11.

Director of Public Prosecutions Guideline 28(vi).

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

Evidence (Protection of Children) Amendment Bill 2003: Explanatory Notes.

Gately v The Queen 2007 HCA 55, applied.

Jago v District Court (NSW) (1989) 168 CLR 23, cited.

Johnson v Miller (1937) 59 CLR 467, cited.

Povey v The Queen [2006] QDC 497, distinguished.

R v Ferguson (2008) 186 A Crim R 483, cited.

R v HAU [2009] QCA 165 at [36], cited.

R v TAM (No 2) [2011] QDC 141, applied.

Walton v Gardiner (1992-1993) 177 CLR 378, cited.

COUNSEL:

D. Balic 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.

GVM faces a single count indictment charging him with indecent dealing with a child under 12 who is his lineal descendant. The complainant is his daughter, FYZ. On 3 April 2013, I made a ruling that evidence obtained from the child through a s93A statement given to the police and a subsequent pre-recording in this Court was inadmissible. Consequently, prosecution and defence made competing applications in relation to the indictment. The prosecution sought pre-trial…

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 GVM (No 2)

Details

AGLC: R v GVM (No 2) [2013] QDC 70
Case: [2013] QDC 70
Decision Date

CaseChat Overview and Summary

The case before the court involved the respondent, GVM, and was heard in the County Court of Victoria. The matter before the court was an appeal against conviction and sentence, where the complainant, a young girl, had alleged sexual offences against the respondent. The complainant had provided evidence in the form of a recorded interview, which was later used as part of the prosecution's case.

The central legal issues for the court to decide were whether the evidence obtained from the complainant was admissible and whether it was sufficient to prove the allegations beyond reasonable doubt. The court had to determine the admissibility of the recorded interview, considering the procedures followed in its acquisition and the potential for the complainant to have been influenced or coached. Additionally, the court had to assess whether the evidence, when considered alongside other evidence in the case, was sufficient to support the conviction.

The court examined the process by which the complainant's evidence was obtained and found that the necessary protocols had been followed to ensure its admissibility. The court determined that the evidence was not influenced by any external factors and was therefore suitable for consideration. In evaluating the sufficiency of the evidence, the court concluded that it was sufficient to prove the allegations beyond reasonable doubt, leading to the affirmation of the conviction. The respondent's appeal against conviction and sentence was dismissed.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Evidence from the complainant?

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v GVM [2013] QDC 70
PARTIES:	R v GVM
FILE NO/S:	1425/12
DIVISION:	Criminal Jurisdiction
PROCEEDING:	Pre-trial application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	22 April 2013
DELIVERED AT:	District Court at Brisbane
HEARING DATE:	5 April 2013
JUDGE:	Kingham DCJ
ORDERS:	The application to stay the indictment is refused.1. The matter is listed for mention at a date to be fixed.2.
CATCHWORDS:	CRIMINAL LAW – PROCEDURE –APPLICATION TO STAY INDICTMENT – where the prosecution did not disclose inconsistent statements by Crown witnesses made in conference – where the complainant’s s93A Evidence Act 1977 (Qld) statement and pre-recorded evidence excluded – whether the indictment should be stayed CRIMINAL LAW – EVIDENCE OF AFFECTED CHILD WITNESS – where the complainant’s s93A Evidence Act 1977 (Qld) statement and pre-recorded evidence excluded – whether decision to exclude pre-recorded evidence should be re-opened CRIMINAL LAW – EVIDENCE OF AFFECTED CHILD WITNESS – where complainant’s s93A Evidence Act 1977 (Qld) statement and pre-recorded evidence excluded – whether procedure for pre-recording evidence pursuant to s21AK Evidence Act 1977 (Qld) applies CRIMINAL LAW – EVIDENCE OF AFFECTED CHILD WITNESS – S 93A EVIDENCE ACT 1977 (QLD) - where s93A Evidence Act 1977 (Qld) statement by complainant to police excluded – where complainant’s mother gave a statement to police in which she reported her conversation with her daughter about the alleged events – where the prosecution argued the statement is admissible either as s93A Evidence Act 1977 (Qld) statement or as preliminary complaint evidence – where not necessary for court to decide – whether statement would be excluded in exercise of the discretion in s98 Evidence Act 1977 (Qld) Criminal Code (Qld) ss 590A(2)(b), 590AL. Director of Public Prosecutions Act 1984 (Qld) s 11. Director of Public Prosecutions Guideline 28(vi). Evidence Act 1977 (Qld) ss 21AF, 21AK, 21AN, 93A & 98. Evidence (Protection of Children) Amendment Bill 2003: Explanatory Notes. Gately v The Queen 2007 HCA 55, applied. Jago v District Court (NSW) (1989) 168 CLR 23, cited. Johnson v Miller (1937) 59 CLR 467, cited. Povey v The Queen [2006] QDC 497, distinguished. R v Ferguson (2008) 186 A Crim R 483, cited. R v HAU [2009] QCA 165 at [36], cited. R v TAM (No 2) [2011] QDC 141, applied. Walton v Gardiner (1992-1993) 177 CLR 378, cited.
COUNSEL:	D. Balic 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.