R v Haf

[2013] QDC 170

DISTRICT COURT OF QUEENSLAND

CITATION:

R v HAF [2013] QDC 170

PARTIES:

R

v

HAF

FILE NO/S:

1021/13

DIVISION:

Criminal

PROCEEDING:

Pre-Trial Application

ORIGINATING COURT:

District Court in Brisbane

DELIVERED ON:

24 July 2013 (delivered ex tempore)

DELIVERED AT:

Warwick

HEARING DATE:

24 July 2013

JUDGE:

Kingham DCJ

ORDER:

The application for leave to cross-examine the complainant pursuant to section 4 Criminal Law (Sexual Offences) Act 1986 (Qld) is refused.1.         

CATCHWORDS:

CRIMINAL LAW – PROCEDURE – CRIMINAL LAW (SEXUAL OFFENCES) ACT 1978 (QLD) – APPLICATION FOR LEAVE TO CROSS-EXAMINE COMPLAINANT – where the complainant previously made a complaint of a sexual nature – where that complaint is now relevant only to the complainant’s credibility – whether evidence of that complaint is likely to materially impair confidence in the reliability of the complainant’s evidence – whether leave to cross-examine on the complaint should be granted.

Criminal Law (Sexual Offences) Act 1978 (Qld) s 4.

R v Bauer [2005] QCA 305, applied.

R v Lawrence [2001] QCA 441, applied.

R v MAG [2004] QCA 397, applied.

R v Tribe [2001] QCA 206, applied.

COUNSEL:

Mr D Finch for the Crown.

Mr J Selfridge for the Defendant.

SOLICITORS:

Office of the Director of Public Prosecutions (Qld) for the Crown.

Colville Johnstone Lawyers for the Defendant.

1. This is an application by the defendant for leave to cross-examine the child, YBH, who’s aged 12 years, in relation to a previous complaint that she made when she was 10 years old against a boy of 13 years. That complaint related to some touching that she said occurred twice when they were playing together in a swimming pool. After interviewing both children, the police took no further action on the complaint. The Crown opposes the application by the defence to have leave to cross-examine the complainant about that earlier complaint. Leave is required because of the operation of section 4 of the Criminal Law (Sexual Offences) Act 1978 (Qld).

1. In particular, section 4(3) provides:

“The court shall not grant leave under rule 2 unless it is satisfied that the evidence sought to be elicited or led has substantial relevance to the facts in issue or is proper matter for cross-examination as to credit”

1. This application has proceeded on the basis that the cross-examination proposed by the defendant is a proper matter for cross-examination as to credit. 

1. The Crown argued the defence has not identified what evidence is sought to be elicited, what special circumstances are said to exist or how such evidence would be likely to materially impair confidence in the reliability of the complainant’s evidence.  There is force in those submissions and I have decided that I will decline the defence application for leave to cross-examine.  I have assumed, in doing so, that the evidence that the defence seeks to elicit from the complainant is that she made an allegation about something that did not happen.  As I indicated earlier, it is led in order to go to the credit…