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.

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.

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.

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].
My observations arose from my acceptance that an…

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 3)

Details

AGLC: R v GVM (No 3) [2013] QDC 109
Case: [2013] QDC 109
Decision Date: 17 May 2013

CaseChat Overview and Summary

The respondent, GVM, was charged with various sexual offences against a child, and the case was heard in the Supreme Court of Victoria. The primary issue before the court was whether the prosecution should be permitted to refresh the complainant's memory with previously excluded statements and recordings prior to her giving evidence in a further pre-recorded interview under section 21AK of the Evidence Act 2008 (Vic). The court had previously expressed concerns about the process of refreshing the complainant's memory with the excluded evidence.

The court examined the role of the prosecutor and the court in ensuring that a child witness is not exposed to unnecessary or potentially harmful procedures. It noted the importance of balancing the need to protect the complainant while also ensuring a fair trial. The court considered the potential impact on the complainant of being exposed to the excluded evidence and the possibility of prejudicing her testimony. It also took into account the need for the prosecution to adequately prepare the complainant for her evidence.

The court concluded that, given the previous adverse observations made about the proposed process, it was not appropriate to sanction the prosecution's proposed course of action by way of pre-trial rulings. The court found that the potential for prejudice to the complainant outweighed the benefits to the prosecution in refreshing her memory with the excluded evidence. The application for pre-trial rulings was therefore refused, and the matter was listed for further mention. The application to stay the indictment was also adjourned to a later date.

Orders

Orders of the court

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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

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 (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.