R v Morris

[1995] QSC 64

THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 390 of 1994

Brisbane

Before Macrossan CJ

Pincus JA

Dowsett J

[R v Morris]

IN RE: AARON SHANE MORRIS

v.

REFERENCE BY ATTORNEY-GENERAL
  UNDER s.669A OF THE CRIMINAL CODE

Judgment delivered 15/03/1995

Separate concurring reasons for judgment of each member of the Court
_____________________________________________________________________

IN ANSWER TO THE QUESTIONS IN THE ATTORNEY-GENERAL'S REFERENCE:

1. IT IS NOT NECESSARY TO ANSWER THIS QUESTION.

2. THE TRIAL JUDGE WRONGLY EXERCISED HIS DISCRETION TO EXCLUDE THE S. 93A STATEMENT.

3. IT IS NOT NECESSARY TO ANSWER THIS QUESTION.

CATCHWORDS: CRIMINAL LAW - Reference by Attorney-General under s.669A Criminal Code - medical evidence - probative value - prejudicial effect - admissability of video tape - discretion to exclude - interests of justice - unsafe and unsatisfactory - nolle prosequi - "perpetual stay of proceedings".

Ss. 93A, 98 Evidence Act.

Counsel:Mr D Bullock for the applicant.

Mr A J Rafter for the respondent.

Solicitors:Director of Prosecutions for the applicant

Legal Aid Office for the respondent.

Hearing date:               25 November, 1994.

REASONS FOR JUDGMENT - THE CHIEF JUSTICE

Judgment delivered  15/03/1995

I agree with the reasons which have been prepared by Dowsett J in this matter

and with the answers that he proposes to the questions stated.

REASONS FOR JUDGMENT - PINCUS J.A.

I have read the reasons of Dowsett J. and I agree with those reasons.

REASONS FOR JUDGMENT - DOWSETT J

This is a reference by the Attorney-General under s.669A(2) of the Criminal Code. The accused was charged with rape upon a child under 12 years on or about 7 December, 1993. At the trial, the Crown proposed to call a medical practitioner to give evidence concerning the condition of the complainant's hymen shortly after that date. The learned trial Judge excluded that evidence. During the trial, the prosecution tendered a video recording of a police interview with the complainant pursuant to s.93A of the Evidence Act 1977.  She also gave oral evidence.  The learned trial Judge acceded to a belated request to exclude the video recording.  At that point, the Crown indicated that it would not proceed further on the indictment.  His Honour then ordered a "perpetual stay of proceedings".  The Attorney seeks  opinions as to the correctness of the evidentiary rulings and the stay.
The power to refer a point of law for the opinion of the court is dependent upon satisfaction of the conditions prescribed by s.669A(2), which permits such a reference if:-

"(a)the accused has been acquitted of the charge; or

(b)the accused has been discharged in respect of that charge after counsel for the Crown, as a result of a determination of the court of trial on that point of law, has duly informed the court that the Crown will not further proceed upon the indictment in relation to that charge."

There was some suggestion in argument that these proceedings may not have been determined in the way contemplated by s.669A(2)(b). It is therefore convenient to deal firstly with that question and the associated question of the stay. Section 563 of the Code requires that should the Crown decide not to proceed upon any indictment, that intention is to be communicated to the court in writing.  In practice, the prosecutor asks for the return of the indictment, records that intention upon it and returns it to the court.  Proceedings are terminated by that notification.
           The essential nature of this process has been clouded by argument about the entitlement of the court to insist that a verdict be taken, notwithstanding an intimation by the Crown that it does not wish to proceed.  R v. Saunders (1983) 2 Qd R 270, R v. Jell, ex parte the Attorney-General (1991) 1 Qd R 48 and R v Ferguson, ex parte the Attorney-General (1991) 1 Qd R 35 demonstrate and resolve this question. In Jell, the Court of Criminal Appeal held that a court may decline to receive a nolle prosequi where discontinuation of proceedings would constitute an abuse of process, usually because of an intention to proceed on another indictment for the same or a similar offence.  See R v. Jell (supra), especially at p.63, per Thomas J. The consequence of a refusal to accept a nolle prosequi will be that the matter proceeds to verdict on the evidence and in accordance with such directions as the trial Judge may give. The verdict will usually bar further proceedings.
           As a result of the exclusion of the video recording, the Crown Prosecutor, at p.42, indicated that:-

"... there are fairly clear two courses open.  The situation is the jury have heard the evidence which has been admissible; this jury must be discharged."

This was probably an invitation to the learned trial Judge to proceed in accordance with s.626 of the Code to discharge the jury.  Such a discharge would not have affected the status of the indictment.  The trial would merely have been adjourned to be tried by another jury.  However, the matter did not proceed in that way.  After a short adjournment, the Crown sought the return of the indictment.  Defence counsel opposed this request, apparently preferring that the matter go to the jury, presumably with a direction to acquit.  His Honour declined the defence request, saying at p.44:-

"I propose in due course to act upon Mr Callaghan's statement to the Court that the Crown would not prosecute the matter further.  I shall first deal with the jury."

His Honour therefore accepted that the Crown's intention was not to proceed on the current indictment, although no written information to that effect had yet been given.  His Honour then discharged the jury and said at p.45:-

"On Mr Callaghan's statement, as counsel for the Crown, that the Crown will not prosecute this further, in addition to that order discharging the jury without receiving a verdict, the further orders to be entered upon this indictment are as to the second order, perpetual stay of proceedings, as to a third order, the accused is discharged from any custody or restraint to which he is subject by reason of this indictment.

Mr Callaghan, you might wish to have that indictment."

It is then recorded that Mr Callaghan said:-

"I have endorsed the indictment to the effect that the Crown will not further proceed."

It is clear that the learned trial Judge intended to give effect to the Crown's intention not to proceed on the indictment.  His Honour thought it appropriate to do so by ordering a stay, although that is not consistent with my understanding of the normal practice, which is that proceedings are simply treated as discontinued without any formal order.  Although the sequence of events may not have been precisely correct, I am left in no doubt that the learned trial Judge considered that he was receiving a nolle prosequi and giving effect to it.  His use of the word "stay" simply indicated his understanding that as a result of the Crown's indicated intention not to proceed, there would be no further proceedings on the indictment.
The fact that he apparently ordered the stay before receiving the written nolle prosequi reflects the way in which the terms of an order are often sorted out between a trial Judge and counsel. The exact sequence of events is rarely important in that context. I am satisfied that the Crown gave the indication contemplated by s.669A(2)(b). Whether the indication was given as a result of either evidentiary ruling as required by s.669A(2) is another matter which I will consider at a later stage.
           The first ruling related to medical evidence to be led from Dr Judith Williams concerning a physical examination of the complainant.  Her evidence was that when she examined the complainant on 13 December, 1993 she found a rupture of the hymen which, in her opinion, was more than 48 hours old.  This evidence was excluded upon the basis that its probative value was outweighed by its prejudicial effect.  At p.16 of the record, his Honour said:-

"There is, however, the next point which is the discretionary point.  Where the evidence admitted, together with other evidence to which my attention has  been drawn, the medical evidence would be of, indeed, very small cogency value but its prejudicial effect would be enormous.

In order to show the road to that conclusion by me I should refer to other evidence available to the Crown which has been drawn to my attention and very briefly, if not abruptly summarized, that other evidence is that in a record of interview the complainant alleged and asserted other like activities by the accused falling outside that charged here, which could have been the explanation for the state of the genitalia as found upon the examination five days later.  Once that is taken into account, and the impact of that available evidence is added to the equation, it becomes clear that, as to the elements of this charge, the probative value of the state of the genitalia on 13 December 1993 has very little probative value indeed, but at the same time the prejudicial effect would be very large.  That is enough to expose my reasoning why, in the rather unusual circumstances here, as revealed by the shape and state of the evidence, that this evidence should be excluded on the discretionary ground."

The Crown had charged rape on or about 7 December, thereby undertaking to prove penetration by the accused without consent on or about that date.  Prima facie, the rupture was at least consistent with penetration prior to 11 December.  However, the complainant also alleged that the accused had penetrated her on other occasions prior to 7 December.  His Honour's ruling appears to have been based upon the possibility that an act of intercourse, other than that charged, may have caused the rupture and that the probative value of the evidence of rupture was therefore slight.
           With all respect, I cannot agree with that conclusion.  In the absence of such evidence, the jury would necessarily infer that the complainant's genital organs disclosed nothing of relevance to the case.  This would suggest that intercourse had not occurred.  That the complainant's hymen was ruptured was at least consistent with penetration.  It did not exclude all other possibilities; it certainly did not prove intercourse on a particular date; nor that the accused was the perpetrator; but all of the evidence led in a case need not be relevant to establish all of the elements of the offence.  The Crown was obliged to establish intercourse and sought to establish that matter, in part, by reference to the medical evidence.  The accused was at liberty to point out to the jury that this evidence did not establish intercourse on 7 December and that it did not implicate him.
           Evidence of other acts of intercourse was to be found in the recording of the complainant's interview with the police.  I need not consider the admissibility of that evidence for present purposes.  Although such evidence offered an explanation for the rupture other than the act charged, it did not undermine the probative value of the medical evidence in excluding the inference that the complainant's hymen was intact, which the jury would probably have drawn in the absence of the medical evidence.
           Given the probative value of the evidence, it is difficult to see why its prejudicial effect was such as to justify its exclusion.  There is a common misunderstanding of the term "prejudicial effect" in this context.  Inculpatory evidence is always prejudicial to an accused person's case, using the word "prejudicial" in a broad sense to mean "damaged".  However, the primary meaning of the word "prejudice" in the Shorter Oxford Dictionary is, "Injury detriment, or damage, caused to a person by judgment or action in which his rights are disregarded..." . The word also has overtones of bias or pre-judgment.  It is in this sense that we speak of prejudice in the context of the discretionary exclusion of evidence.  It is not damage to the defence case which is relevant, but damage to the prospects of a fair trial.  Some evidence, although probative, may inflame a jury, causing them to ignore the rights of the accused or may otherwise undermine the fairness of the trial.  If the probative value of such evidence is not great, then it may be unjust to receive it.  The balancing exercise is between the probative value of the evidence in the trial and the possibility of prejudice to the prospects of a fair trial. 
           The medical evidence in this case was not capable of having this prejudicial effect.  It certainly gave verisimilitude to the complainant's evidence, but other Crown evidence will often do that.  The evidence had probative value; it advanced the Crown case and was not prejudicial in the relevant sense.
The second ruling which is challenged concerned the admissibility of the video tape. This was tendered in evidence and played to the jury before objection was taken to it. The tape was prima facie admissible by virtue of s.93A of the Evidence Act 1977 which provides:-

"93A    (1)  In any proceeding where direct oral evidence of a fact would be admissible, any statement tending to establish the fact, contained in a document (within the meaning of section 5), shall subject to this Part, be admissible as evidence of that fact if -

(a)the maker of the statement was a child under the age of 12 years at the time of making the statement and had personal knowledge of the matters dealt with by the statement;

(b)the statement was made soon after the occurrence of the fact or was made to a person investigating the matter to which the proceedings relates before or soon after it becomes apparent to the person that the child is a potential witness in any proceeding; and

(c)the child is available to give evidence in the proceeding.

(2)  Where a statement made by a child is admissible as evidence of a fact pursuant to subsection (1), a statement made to the child by any other person -

(a)that is also contained in the document containing the statement of the child; and

(b)in response to which the statement of the child was made,

shall, subject to this Part, be admissible as evidence if that other person is available to give evidence.

(3)       Where the statement of a person is admitted as evidence in any proceeding pursuant to subsection (1) or (2), the party tendering the statement shall, if required to do so by any other party to the proceeding, call as a witness the person whose statement is so admitted and the person who recorded the statement.

In the application of the preceding paragraph to a criminal proceeding, the term 'party' means the prosecution or the person charged in the proceeding."

A trial Judge has a discretion to exclude such evidence pursuant to s.98 of the Evidence Act which provides:-

"Rejection of evidence

(1)       The court may in its discretion reject any statement notwithstanding that the requirements of this Part are satisfied with respect thereto, if for any reason it appears to it to be inexpedient in the interests of justice that the statement should be admitted.

(2)This section does not affect the admissibility of any evidence otherwise than by virtue of this Part."

In the recorded interview, the complainant described the act of intercourse in a way which enabled the date to be fixed as the date asserted in the indictment, or at least I assume that was the case.  After the tape was played to the jury, the complainant gave evidence.  Although she gave evidence of intercourse, she could not say when it had occurred.  Her failure to give evidence in accordance with the recording prompted defence counsel to apply to exclude the recording.  His Honour upheld that submission, saying, at p.41:-

"The consideration which makes me conclude, as I have stated that I have, is this.  When one takes the evidence of the young lass, Cassie, in Court, received before the jury, and adds to it the evidence made admissible, notwithstanding its hearsay origin, by the Statute, there is very quickly one of those cases where one could with some confidence predict that a Court - were the jury to convict - exercising the traditional Court of Criminal Appeal considerations, conclude that the verdict of the jury, which is notional at the moment for present purposes, would be unsafe and unsatisfactory.

There are wide differences between the evidence of the young girl here, and that which is heard in the record in the video.  In addition to that, I have had put before me, as additional material to which I am entitled to consider, yet another account of her evidence, when she was cross‑examined in the Committal proceedings in late April of this year.  The variations of the evidence are not a reflection in an adverse sense against a seven year old girl.  They are the product, one might safely consider and conclude for present purposes, of the recollection of a developing mind.

For those reasons briefly stated, I have concluded, that the addition to the other available evidence of the 'hearsay but for statute' section 93A statement, is an addition to this evidence which is not expedient in the interests of justice, bearing in mind that the interests of justice include the notions that the community, represented by the Crown, ought to particularise a case, present a case, and submit it to the jury prima facie on the usual admissible evidence, admissible, I mean, in the form of viva voce evidence.

Here, section 93A has, in the absence of this discretion exercised against it, added to that evidence, to constitute the whole of the evidence to be one of general uncertainty. I consider that falls within the test contemplated by the words that I have quoted from section 98 and I take the view that I should exclude the evidence for those reasons."

I distil from his Honour's reasons two basic grounds for the exercise of the discretion pursuant to s.98:- firstly, that because the complainant had given different versions of events, to receive the recording would merely add to the uncertainty of the case; secondly, that in those circumstances, any conviction based upon the complainant's evidence would be unsafe and unsatisfactory, and therefore liable to be upset by this court on appeal.
Clearly, s.93A was designed to avoid the difficulties inherent in extracting cogent evidence from young witnesses in court. The limitation of the application of the section to children under the age of 12 and the general requirement that the statement be made at an appropriately early stage both suggest this conclusion. The effect of the section is to render such a statement admissible unless the court exercises a discretion to exclude it.
Discrepancies between the versions offered at different times are reasonably to be expected in the case of a child witness. The complainant's inability to give evidence sufficient to fix the date of the alleged offence is a typical example of the difficulty which s.93A was intended to avoid. In the recorded interview, which occurred shortly after the date of the alleged offence, she fixed the date by reference to a night in the preceding week, being the night when her mother went to market. It seems probable that had the trial run its full course, this date would have been fixed by the mother. I assume as much for present purposes. This is the way in which one would expect a young child to fix the time of an event which had occurred in the preceding week. Obviously, it would have been much more difficult for her to perform the same exercise at the trial, almost seven months after the event. The difficulty which his Honour relied upon to justify exclusion of the statement was an example of the very problem which s.93A was designed to remedy.
Sections 93A renders such a recording admissible, subject to the discretion of the trial Judge to exclude it, but that discretion is only enlivened if, for some reason, it appears to be in the interests of justice that the recording be excluded. The very purpose of admissibility pursuant to s.93 cannot logically be such a reason.

           As to the second ground for exclusion, namely that a conviction based upon the complainant's evidence would be unsafe and unsatisfactory, the High Court, in Doney v. The Queen (1990) 171 CLR 207 at p.214 and the Court of Criminal Appeal, in R. v. Sutton [1986] 2 Qd R 72 at pp.78-79, have made it clear that the prospect of an unsafe and/or unsatisfactory conviction is not a matter of concern for a trial Judge, although an appellate court may quash such a conviction. It is not open to a trial Judge to take a case away from a jury simply because a verdict of "guilty" would be unsafe and unsatisfactory. It would therefore be curious if such a view of the case were a basis for the exclusion of evidence.
It cannot be correct to test admissibility by reference to the likely outcome of the case. I do not imply that inherent unreliability may not be a basis for the exercise of the discretion under s.98. Circumstances may arise in which the statement itself appears to be so unreliable, either because of its contents or because of the way in which it was obtained, that it ought not be received in evidence for reasons directly related to the interests of justice. However, that is not the present case.
I turn to the formal orders to be made. It was submitted that we should decline to answer questions one and two upon the basis that they do not involve points of law within the meaning of s.669A(2) of the Code, involving only the correctness of the exercise of discretions.  It has long been recognized that this court will not review the exercise of a discretion under the guise of considering an Attorney's reference.  See R v. Foggo, ex parte, the Attorney-General (1989) 2 Qd R 49 at p.51. However, R v. Scott, ex parte, the Attorney-General (1993) 1 Qd R 537 demonstrates that where a trial Judge applies the wrong test in exercising a discretion, the court will entertain a reference. Conduct of a jury trial is only possible if the presiding Judge is willing and able to make decisive and relatively robust rulings to enable the trial to move to its completion in a practicable time frame. These rulings are often discretionary. Although it would be counter-productive to examine each discretionary decision with the benefit of hindsight and the luxury of considering it at leisure, there are circumstances in which the exercise of a discretion has so miscarried as to show that it is necessary to re-describe the bounds of the discretion in question. I am satisfied that questions one and two raise appropriate points of law in this sense.
However, in the absence of an acquittal, the power to refer such a point only arises if the Crown has elected not to proceed as a result of the determination of that point by the trial Judge. In the present case, it is clear that the nolle prosequi was entered as a result of the ruling that the video-tape be excluded. We were told in the course of argument that the particularized date could only be proven by reference to the recording, once the complainant failed to give that oral evidence. Thus question two satisfies the test prescribed by s.669A(2)(b). The ruling as to the medical evidence did not immediately result in a nolle prosequi. In some cases, perhaps in most, the effect of such rulings will be cumulative, but in the peculiar circumstances of this trial, that was not the case. The medical evidence would not have assisted in fixing the date of the alleged act of intercourse. I am not persuaded that the exclusion of the medical evidence in any sense resulted in the nolle prosequi. As to question three, concerning the stay, I do not consider that any question of law arises. I would answer the questions as follows:-

1. Question:  Was the learned trial Judge correct in exercising his discretion to exclude the evidence of DR JUDITH WILLIAMS having regard to the highly probative nature of the evidence?

   Answer:It is not necessary to answer this question.

2. Question: Was the learned trial Judge correct in exercising his discretion to exclude the section 93A statement which had been tendered in the Crown case upon the basis that it was not expedient in the interests of justice due to either -

   (a)that a resulting conviction would be unsafe and unsatisfactory; or

   (b)that there were differences between the complainant's recall of events at the time of the video and at the time of trial.

   Answer:No.

3. Was the learned trial Judge correct, in the circumstances, to order a "perpetual stay of proceedings" when these circumstances included the Crown's having indicated that it would not further proceed and the fact that a reference pursuant to section 669A of the Criminal Code was clearly contemplated?

   Answer:It is not necessary to answer this question.