R v. Q

[2008] QDC 114

DISTRICT COURT OF QUEENSLAND

CITATION:

R v Q [2008] QDC 114

PARTIES:

THE QUEEN

V

Q

FILE NO/S:

7/08

DIVISION:

Criminal Jurisdiction

PROCEEDING:

Application to exclude evidence

ORIGINATING COURT:

Southport District Court

DELIVERED EX TEMPORE ON:

6 May 2008

DELIVERED AT:

Brisbane

HEARING DATE:

6 May 2008

JUDGE:

Kingham DCJ

ORDER:

Application to exclude the evidence of the complainant in relation to incidents previously charged as counts one and two declined.

CATCHWORDS:

CRIMINAL LAW - NOLLE PROSEQUI - EVIDENCE - Application to exclude - Immature age - Capacity to know wrongfulness - Evidence of Relationship - Admissible and relevant

Criminal Code s 29(1), s 29(2)

R v F, ex parte Attorney General, CA 20 of 1998

COUNSEL:

M. Whitbread for the Crown

S. Thompson for the Defendant

SOLICITORS:

Director of Public Prosecutions for the Crown

Price and Roobottom for the Defendant

[1] HER HONOUR: This is an application to exclude evidence relating to incidents previously charged as counts one and two on the indictment. The Crown entered a nolle prosequi in relation to those counts because it is not in a position to fix the offences at a time after which the defendant had turned 10. As such, the charges could not be preferred by operation of section 29(1) of the Criminal Code.

[2]      Defence counsel argues this section provides a legal prohibition against founding criminal responsibility relying on evidence of conduct when the child was less than 10, and that this would be offended if the evidence was led in relation to other offences said to have occurred when he was older. 

[3]      She also argued that it was not necessary to lead such evidence to establish the nature of their relationship; to establish a guilty passion on his part; or to explain the complainant's conduct in response to later offences because of a number of other offences still charged.

[4] The Prosecutor submits the evidence is relevant and admissible to establish those factors I have already mentioned. He also argues that it is relevant to establish for those offences which occurred, or may have occurred, when the defendant was still under 14, that he then had the capacity to know that he ought not engage in that activity. This is a requirement of section 29(2) of the Criminal Code.

[5]      The Prosecutor referred me to the case of R v F.  I accept the evidence of counts one and two is relevant and admissible on the bases argued by the Prosecutor.  If accepted by the jury as true, there is no reasonable view of it other then supporting an inference that the defendant is guilty. 

[6]      The evidence also indicates an awareness that he should not have been doing then what he was.  The conduct previously alleged in counts one and two is of a similar nature to later acts charged.  On page 9 of the first tape of her police interview, the complainant said that the defendant stopped when the complainant's mother entered the room, and later also stopped doing what he was doing when others came into the room. 

[7]      The complainant also gave an explanation at page 10 of that tape's transcript as to why she did not tell anyone about that incident.  That is also relevant to explaining her reaction when count 3 is said to have occurred.  At page 14 of the same tape's transcript she said, in relation to count 3, that she did not tell anyone about it but did not give an explanation for that.

[8] Section 29(1) prevents a prosecution for the conduct alleged as counts one and two. It does not prohibit evidence being led about a child's activities when less than 10 years old if the evidence is relevant and admissible for other purposes. I do not consider there is any prohibition on the evidence being led.

[9]      I am satisfied that it is relevant and admissible, particularly:  (a) to demonstrate that, whilst under 14 for the period to which some counts relate, the defendant had the capacity to know he ought not do what it is alleged he did; and (b) to demonstrate the nature of the relationship between the defendant and the complainant, and thus the background to her responses to count 3 and other counts.

[10]      I decline the application to exclude the evidence of the complainant in relation to counts one and two.  It will be important, nevertheless, for the basis upon which the evidence was admitted and the use which can be made of that evidence to be addressed during the Trial Judge's directions to the jury.