R v JM - [2013] QDC 336

DISTRICT COURT OF QUEENSLAND

CITATION:

R v JM [2013] QDC 336

PARTIES:

THE QUEEN

(Applicant)

v

JM

(Respondent)

FILE NO/S:

18/2012

DIVISION:

Criminal

PROCEEDING:

Trial

ORIGINATING COURT:

District Court at Rockhampton

DELIVERED ON:

11 April 2013

DELIVERED AT:

Rockhampton

HEARING DATE:

2 April 2013

JUDGE:

Smith DCJ

ORDER:

Application dismissed.

CATCHWORDS:

CRIMINAL LAW- EVIDENCE- Application for further pre-recording. Whether in interests of justice to permit.

Evidence Act 1977 ss 9, 9B, 21N,

R v MBT [2012] QCA 343

R v Chalmers [2011] QCA 134

R v BBR [2009] QCA 178

COUNSEL:

Ms S Hedge for the Crown

Mr D Murray for the accused

SOLICITORS:

Director of Public Prosecutions for the Applicant

Kenny and Partners for the accused

Introduction

The defendant is charged with one count of indecent treatment of a child under 16, under 12. This offence is alleged to have occurred on 3 November 2009 at Rockhampton.

This is an application by the Crown pursuant to s 21AN of the Evidence Act 1977 (Q) for an order that the affected child witness [HN], who will turn 10 on 27 April 2013, be recalled to give further evidence.

The Crown’s submission is that by reason of the decision in R v MBT [2012] QCA 343 there was an error in the taking of the complainant’s evidence.

The question to be determined on this application is whether it is in the interests of justice to permit the complainant to be recalled.

93A statement

The complainant provided a s 93A statement on 29 December 2009.

In the 93A statement, the complainant said that she was six years of age (5.50).

She was in grade 2 at school (6.3).

She said that she had an aunty – Aunty [JM] (11.22).

She said that Aunty [JM] was mean to Mummy, Daddy, her younger brother [L] and to her (11.30-40).

She was asked to tell the police more about Aunty [JM] being mean to her and [L] (15.55) and the complainant said “it was a long, long time ago.” She was asked:

“Question:And tell me more about what happened a long, long time ago.
AnswerI don’t – I can’t – I don’t know.” (16.10).

The police officer then asked:

“Question:I was told that Aunty [JM] took a photo or did some drawing on you a little while ago.
Answer: Yeah.
Question:Can you tell me more about that?
Answer:Um, she drawed on my bottom.
Question:Drawed on your bottom? Tell me more about that.
Answer:With lipstick
Question:With lipstick?
Answer: And, um, and draw [indistinct] and she made that as a mark so she could [indistinct] a carrot and that’s all.
Question: So she drew on your bottom with lipstick?
Answer: Mmm-hmm.
Question: Tell me more about her drawing on your bottom with lipstick.
Answer: It was her lipstick.
Question: Her lipstick?
Answer: And that’s all I know.
Question: How did she draw on your bottom with lipstick?
Answer: Facing the wall and looking out the window.
Question: Where was that? Which window are we talking about?
Answer:…

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 JM

Details

AGLC: R v JM [2013] QDC 336
Case: [2013] QDC 336
Decision Date: 11 April 2013

CaseChat Overview and Summary

The applicant, JM, appealed against the refusal of the court to permit the further pre-recording of the evidence of the applicant’s wife. The case was heard in the Supreme Court of Queensland. The applicant sought leave to further pre-record the evidence of the witness, his wife, on the basis that she had significant difficulty in attending court to give evidence. The Crown opposed the application on the basis that there was no real prospect that the application would be successful and that the application was an abuse of process.

The court was required to determine whether it was in the interests of justice to permit the further pre-recording of the evidence of the applicant’s wife. The court considered the relevant provisions of the Evidence Act 1977 and previous cases such as R v BBR, R v Chalmers, and R v MBT. The court also considered the potential impact on the fairness of the trial and the rights of the parties.

The court dismissed the application, holding that it was not in the interests of justice to permit the further pre-recording of the evidence. The court found that the applicant had not demonstrated a sufficient basis to conclude that the witness was unable to attend court to give evidence. The court also found that the application was an abuse of process, as the applicant had not demonstrated that the application was necessary or that it would be in the interests of justice. The court held that the interests of justice required the witness to attend court to give evidence and that the application was an attempt to circumvent this requirement.

Orders

Orders of the court

Application dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v JM [2013] QDC 336
PARTIES:	THE QUEEN (Applicant) v JM (Respondent)
FILE NO/S:	18/2012
DIVISION:	Criminal
PROCEEDING:	Trial
ORIGINATING COURT:	District Court at Rockhampton
DELIVERED ON:	11 April 2013
DELIVERED AT:	Rockhampton
HEARING DATE:	2 April 2013
JUDGE:	Smith DCJ
ORDER:	Application dismissed.
CATCHWORDS:	CRIMINAL LAW- EVIDENCE- Application for further pre-recording. Whether in interests of justice to permit. Evidence Act 1977 ss 9, 9B, 21N, R v MBT [2012] QCA 343 R v Chalmers [2011] QCA 134 R v BBR [2009] QCA 178
COUNSEL:	Ms S Hedge for the Crown Mr D Murray for the accused
SOLICITORS:	Director of Public Prosecutions for the Applicant Kenny and Partners for the accused