R v GVM (No 3)

[2013] QDC 109

DISTRICT COURT OF QUEENSLAND

CITATION:

R  v GVM (No 3) [2013] QDC 109

PARTIES:

R

v

GVM

FILE NO/S:

1425/12

DIVISION:

Criminal Jurisdiction

PROCEEDING:

Pre-trial application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

17 May 2013

DELIVERED AT:

District Court at Brisbane

HEARING DATE:

8 May 2013

JUDGE:

Kingham DCJ

ORDERS:

The application for pre-trial rulings is refused.1. 

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

The application to stay the indictment is adjourned to a date to be fixed.3. 

CATCHWORDS:

CRIMINAL LAW – PROCEDURE – EVIDENCE OF AFFECTED CHILD WITNESS – ROLE OF PROSECUTOR AND COURT – PRE-TRIAL RULINGS - where s 93A statement by complainant to police and s21AK pre-recorded evidence were excluded – where complainant’s evidence to be taken in a further s 21AK recording – where prosecution proposes to conference with the complainant before-hand and to refresh the complainant’s memory by reference to excluded recordings – where Court made adverse observations about that process in a previous decision - whether Court should sanction the prosecution’s proposed course by pre-trial rulings.

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

R v Ayles [2008] HCA 6, cited.

R v GVM (No 2) [2013] QDC 70, considered.

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

COUNSEL:

T. Fuller SC 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.

1. These reasons deal with competing applications made by the prosecutor and defence counsel about the prosecution of a single count indictment charging GMV with indecent dealing with a child under 12 who is his lineal descendant.  The complainant is his daughter, FYZ. These applications are the third in a series of pre-trial hearings which commenced with a successful application by defence to exclude the child complainant’s recorded interview by the police and her evidence in this court which was pre-recorded some time later.

1. In the second hearing, I refused both the prosecutor’s application for leave to lead part or all of that pre-recorded evidence and the defence application to stay the indictment. I listed the matter for directions so orders could be made to pre-record the child’s evidence in full.

1. When I gave my reasons for that decision,[1] I addressed how the defendant could be placed in a position to know the case he was to meet; the s93A statement having been excluded. In identifying measures which could ensure a fair trial, and assuming the child’s evidence in chief would be taken during pre-recorded evidence in this Court, I expressed an expectation that the prosecution would not conference the child before-hand. I also expressed the view that it would be improper to use the excluded s93A statement and pre-recorded evidence to refresh her memory.[2]

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

   [2] R v GVM (No 2) [2013] QDC 70 at [33].

2. My observations arose from my acceptance that an important purpose of the statutory regime for taking evidence from children is that the defendant has the opportunity to see and hear how the witness describes events and to ensure the defendant is fully apprised of the case against him.[3]

   [3] R v TAM (No 2) [2011] QDC 141 at [60].

3. If the prosecution obtains an out of court statement through a further police interview, s93A will govern its admissibility. To achieve the statutory purpose of that and related provisions for taking evidence from an affected child witness, it is generally recorded audio-visually so that the defendant can see and hear all that a witness says about the matter.

1. If the prosecution obtains further information from the child through a conference with a prosecutor it is arguable that s93A would also apply to the record of that conference.[4] In any case, it is as a matter of common sense and fairness to the defendant, as well as protection for the prosecution, that any conference with the child about the incident is recorded.

   [4] R v TAM (No 2) [2011] QDC 141 at [51].

1. Perhaps it would have been better for me to have observed that it might be unwise to refresh the memory of a child aged 6 by replaying her recorded interview and evidence, given I had excluded the interview because it was elicited by leading and suggestive statements.

1. Although, to date, I have not made any assessment of the child’s reliability as a witness, refreshing her memory out of court by reference to the excluded material could be expected to invoke a further application to exclude her evidence as having been tainted.

1. The prosecution now seeks a ruling that would have the effect of sanctioning both a further conference with the witness before the pre-recording, and her memory being refreshed by viewing the excluded recordings. In fact a further conference, for the purpose of establishing whether the child has a memory of the event, has already taken place. That conference was audio recorded and the transcript was provided to defence and to the Court.

1. Defence counsel opposed the prosecution’s application. Defence made a further application to stay the indictment. After initial argument, however, defence counsel did not oppose the stay application being deferred until the child’s evidence has been taken.

2. There is an inherent inconsistency in the prosecution’s response to my observations. On the one hand it queried the Court’s power to make rulings that would give effect to my observations, on the other it sought rulings to sanction conduct to the opposite effect.

3. I did not make any rulings because I am not persuaded the Court has the power to do so. I remain of that view, for two reasons.

1. Firstly, because this would involve the Court supervising the prosecution, which is inimical to the demarcation of the roles of the trial judge and the prosecutor in criminal prosecutions in an adversarial system.[5]

   [5] Ayles v R [2008] HCA 6 at [35] – [39].

1. Secondly, because the rulings are premature. The Court’s function is to ensure the fair conduct of the trial. An assessment about whether evidence should be excluded, as a matter of fairness, as having been tainted by out of court processes cannot be made prospectively.

2. I decline, therefore, to make the requested rulings. The matter is listed so orders may be made for a preliminary hearing to record the child’s evidence. The application for a stay is adjourned for further hearing once that evidence has been taken.