R v MFH - [2013] QDC 121

[2013] QDC 121

DISTRICT COURT

CRIMINAL JURISDICTION

JUDGE JONES

Indictment No. 47 of 2013

THE QUEEN

MFH

MACKAY

..DATE 14/05/2013

..DAY 1

RULING

HIS HONOUR: In this proceeding I am concerned with an application pursuant to section 590AA of the Criminal Code 1899 to have parts of two records of the complainant excluded from giving to the jury notwithstanding them being admissible statements pursuant to s 93A of the Evidence Act 1995.

The charge against the applicant is a serious one of rape, an alternate verdict for the jury in respect of that charge might be one of indecent treatment.

The complainant at the time of the offending was five and she was also five at the time she gave her first record of interview. She was six when she gave her second record of interview took place. The applicant is the complainant's Uncle.

The relevant part of the first interview that took place on 29 August 2011 is set out at pages 3, 4 through to 5 of the applicant's written submissions. It is submitted that, at its most fundamental level, the applicant seeks the evidence excluded on the bases of unreliability. There seems to be three basis for making that submission, first, material - material inherent inconsistencies in the first record of interview, the asking of leading questions particularly in respect of the first record of interview and the issue of coaching, particularly in respect of the second record of interview. It was also contended that the second record of interview was, in any event, tainted by the leading questions asked in the first interview.

For reasons I will touch on in a moment, it was advocated by Ms Hartigan that if I was to rule against the applicant in respect of the second record of interview then the relevant parts of the first record of interview should also go before the jury.

Dealing with the first record of interview, there are as is identified by Ms Hartigan, apparent inconsistencies. The ones particularly identified are, if the applicant did what is alleged, why would the complainant still describe him to the effect as being a good person.

In my view there's no real substance to that submission. It is clear even from the limited part of the record of interview which has been put before me that the complainant did have a good relationship with the applicant. He played various games with the complainant and bought her pets and things of that nature. I do not find it, particularly having regard to the complainant's age, necessarily evidence of inherent inconsistency for the child to still consider the applicant to be a good man notwithstanding the alleged offending, which, was limited to one event.

The other matter raised to point to inconsistency is in fact not necessarily an inconsistency in my view. The first question and answer relevantly was, "Question: Has Uncle Mike ever touched you down there?" The answer was a nod of the complainant's head. The…

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 MFH

Details

AGLC: R v MFH [2013] QDC 121
Case: [2013] QDC 121
Decision Date: 14 May 2013

CaseChat Overview and Summary

In the District Court of Queensland, the case of R v MFH was heard by His Honour Judge Jones, where the applicant was charged with the serious offences of rape and indecent treatment against a five-year-old complainant, who was also five years old at the time of the alleged offence and the initial interview. The applicant is the complainant's uncle. The applicant sought to exclude parts of two records of interview given by the complainant on the grounds of unreliability, specifically citing inherent inconsistencies, leading questions, and potential coaching. The Crown argued that if the second interview was excluded, the first interview should also be admitted due to its potential inconsistency with the complainant's other evidence.

The court considered the arguments regarding the reliability of the interviews. Judge Jones found that the inconsistencies raised were not necessarily indicative of unreliability, particularly considering the complainant's age. While acknowledging that leading questions were asked in the first interview, Judge Jones concluded that these could be addressed through appropriate directions to the jury. The court also noted that the second interview was largely free from leading questions and was not sufficiently tainted by the first interview to render it unreliable. Furthermore, the court found that the potential issue of coaching was speculative and better left to be explored during the trial.

In light of the above, Judge Jones dismissed the application to exclude parts of the records of interview. The court emphasised that the wide discretion provided under sections 98 and 130 of the Evidence Act allows for the exclusion of evidence if it is deemed inexpedient or unfair to the accused. However, in this case, the court found that the evidence, while not perfect, was reliable enough to be presented to the jury, particularly given the support from other witnesses.

The court's final order was to dismiss the application, allowing the evidence to be presented to the jury.

Orders