R v M

[2004] QDC 85

DISTRICT COURT OF QUEENSLAND

CITATION:

R v M [2004] QDC 085

PARTIES:

R v  M

FILE NO/S:

DIVISION:

Criminal Jurisdiction

PROCEEDING:

Application

ORIGINATING COURT:

Bundaberg

DELIVERED ON:

19 April 2004

DELIVERED AT:

Bundaberg

HEARING DATE:

13,14,15,16 April 2004

JUDGE:

Rackemann DCJ

ORDER:

Application Dismissed

CATCHWORDS:

CRIMINAL LAW: Application for stay, or in the alternative, to exclude evidence where child complainant refused to answer questions about details of alleged indecent dealing in pre-recording, having earlier given details in s93A recording. Appropriate warnings available.

Statutes cited:

ss21AA, 93A and 98 Evidence Act 1977 (Qld)
Evidence (Protection of Children) Amendment Act 2003
s632(3) Criminal Code

Cases cited:

Drozd (1993) A Crim R 112
R v W, ex parte AG [2002] QCA 329
R v Morris ex parte AG [1996] 2 Qd R 68
R v Cowie ex parte Attorney-General [1994] 1 Qd R 326
R v Clark (unreported; Court of Appeal 4 August 1995)
R v Webster (unreported; Court of Appeal, 23 July 1996)
R v D [2003] QCA 151
R v F.A.R [1996] 2 Qd R 49
Sparkes (1996) 88 A Crim R 194
R v McLennan (unreported, Court of Appeal, 20 June 1997)

COUNSEL:

Mr J McInnes for the applicant/defendant

Mr DR Kinsella for the Crown

SOLICITORS:

Legal Aid Queensland for the applicant/defendant

Queensland Director of Public Prosecutions for the Crown

The Application

1. This is an application for a permanent stay of proceedings or, in the alternative, for the exercise of discretion to exclude the evidence of the complainant.  The application is brought on the basis of the refusal by the complainant to answer certain questions in cross-examination.

The proceedings

1. The proceedings are by way of a three count indictment charging the defendant with one count of indecent dealing with a child under 12 and two counts of indecent dealing with a child under 12 and under his care. The charges relate to the one complainant, who was eight years of age at the time of the alleged offences, nine years of age when interviewed by police and 10 years of age at the time of giving evidence by pre-recording.  The first count concerned an alleged indecent dealing by the defendant while giving the complainant a piggyback ride.  The second and third counts relate to subsequent incidents alleged to have taken place on one evening when the defendant and his de facto wife were minding the complainant. At the time of the alleged offences, the complainant lived with her family in Bundaberg, but they subsequently moved to Northern New South Wales.

The History

1. The history is a troubled one, which highlights some of the difficulties which can be experienced with such matters concerning young children.

1. The complainant was interviewed by police at the Gold Coast on 21 August 2002, a little more than eight months after the alleged incidents. I have had the benefit of viewing the recording of that interview and the transcript thereof. The tapes and transcript were admitted, pursuant to s.93A of the Evidence Act, at the…