R v Qva

Case [2017] QSC 281

SUPREME COURT OF QUEENSLAND

CITATION:

R v QVA [2017] QSC 281

PARTIES:

THE QUEEN

(applicant)

v
QVA

(respondent)

FILE NO:

SC No 1245 of 2016

DIVISION:

Trial Division

PROCEEDING:

Ruling

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

24 November 2017

DELIVERED AT:

Brisbane

HEARING DATE:

3 and 6 November 2017

JUDGE:

Burns J

ORDER:

The order of the court, pursuant to s 21AZ of the Evidence Act 1977 (Qld), is that:

1.     the original recording of the evidence of [the child witness] taken before me on 31 October 2017 be edited by deleting the passages indicated by yellow highlighting on pages 30, 31, 32, 33 and 37 of the attached transcript entitled “Pre-recorded evidence marked to show edits”; and

2.     such editing be carried out by a person nominated by the Principal Registrar to do so.

CATCHWORDS:

CRIMINAL LAW – EVIDENCE – RELEVANCE – PARTICULAR CASES – where the accused was charged on indictment with two counts of murder – where the evidence of a child witness was pre-recorded pursuant to s 21AK of the Evidence Act 1977 (Qld) – where the deceased persons were the accused’s former wife and her partner – where the child witness was the child of the accused and his former wife – where the child witness had been interviewed by investigating police – where the child witness gave an account of inappropriate sexual behaviour on the part of the deceased male in the police interview – where the recording of the police interview with the child witness was led by the Crown at the trial pursuant to s 93A of the Evidence Act – where, at the hearing conducted pursuant to s 21AK of the Evidence Act, the child witness was cross-examined about the account – where the child witness described various acts of sexual abuse at the hands of her mother’s partner – where the child confirmed that she had not told her father about any of these acts – where the Crown made an instanter application pursuant to s 21AZ of the Evidence Act to edit the recording – where the Crown contended that the account advanced in cross-examination was inadmissible as it could not inform any relevant belief on the part of the accused – where counsel for the accused submitted that the challenged evidence was no more than an elaboration of the child’s earlier account and therefore admissible on the basis that it went to prove the accused’s state of mind – whether the allegations made by the child in cross-examination were known to the accused – whether the challenged evidence could be relevant to an issue likely to arise at the trial – whether the challenged evidence is admissible

Criminal Code 1899 (Qld), s 271, s 272, s 304
Evidence Act 1977 (Qld), s 21AK, s 21AL, s 21AM, s 21AZ, s 21AZ(1), s 21AZ(2), s 93A, s 99

De Gruchy v The Queen (2002) 211 CLR 85; [2002] HCA 33, cited
Dyers v The…

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R v Qva [2017] QSC 281
Case
[2017] QSC 281
Decision Date

CaseChat Overview and Summary

The case of R v Qva involved the accused being charged with two counts of murder. The deceased were the accused's former wife and her partner, and the child witness was the child of the accused and his former wife. The child's evidence, which was pre-recorded under s 21AK of the Evidence Act 1977 (Qld), included an account of inappropriate sexual behaviour by the deceased male, which was given during a police interview. The Crown sought to have certain parts of the child's evidence edited out, arguing that the account of sexual abuse by the deceased male was inadmissible because it could not inform any relevant belief on the part of the accused. The accused's counsel argued that the evidence was admissible because it went to prove the accused's state of mind. The court had to decide whether the challenged evidence was relevant and admissible.

The court held that the challenged evidence was inadmissible. The child confirmed that she had not told her father about the sexual abuse, which meant that the evidence could not inform any relevant belief on the part of the accused. The court noted that evidence of state of mind is a broad term that can include evidence of knowledge, belief or intent. However, in this case, the evidence could only go to whether the allegations the child made about the deceased male were true, which was irrelevant. The court found that the evidence was not relevant to any issue likely to arise at the trial and was therefore inadmissible.

The court ordered that the original recording of the evidence of the child witness be edited by deleting the passages indicated by yellow highlighting on pages 30, 31, 32, 33, and 37 of the attached transcript. The editing was to be carried out by a person nominated by the Principal Registrar to do so. This decision highlights the importance of ensuring that evidence is relevant and admissible in criminal trials, particularly in cases involving child witnesses. The court's decision also underscores the need for careful consideration of the admissibility of evidence in cases where the accused's state of mind is at issue.

Orders

Orders of the court

The order of the court, pursuant to s 21AZ of the Evidence Act 1977 (Qld), is that:

1. the original recording of the evidence of [the child witness] taken before me on 31 October 2017 be edited by deleting the passages indicated by yellow highlighting on pages 30, 31, 32, 33 and 37 of the attached transcript entitled “Pre-recorded evidence marked to show edits”; and

2. such editing be carried out by a person nominated by the Principal Registrar to do so.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

There was in any event other evidence in the Crown case to support the conclusion that, in early 2012, the accused became aware that J was known by another name and had previously been convicted in South Australia of the rape of a five year old child for which he was sentenced to a term of imprisonment. On learning this, the accused took immediate steps to remove the child from H and J. As soon as she was in his care, the accused established from his daughter that she had been the subject of inappropriate touching by J. He then reported the matter to police and, not long after, engaged the psychologist to whom I have referred. The accused subsequently confided in others about what he had ascertained, a number of whom were Crown witnesses. For example, according to a police statement obtained from one such witness, a former friend of H, the accused told her that: “[The child] had had counselling and it came to light that [J] had interfered with her – showered naked with her, and lay in bed with her rubbing her belly. He wouldn’t tell me anymore than that so I respected his and [the child’s] privacy and was happy that things had finally settled for him and the children.”The challenged evidence Before the evidence was taken at the pre-trial hearing on 31 October 2017, Mr Cash QC advised the court that, based on discussions with Mr Brustman QC, he anticipated the child would be cross-examined about “what she says actually happened between her” and J.[7] However, Mr Cash made it plain that, although he did not intend to object to that line of questioning during the pre-record, by not objecting, the Crown did not necessarily accept that such evidence would be “relevant on the trial”.[8] Mr Brustman countered, submitting that the evidence would be relevant to the accused’s state of mind as it bore on the operation of the defences to which I have earlier referred.[9] During the short preliminary argument that ensued, Mr Brustman was asked how “whatever occurred between the deceased man and [the child witness could be] relevant to your client’s defence”, to which Mr Brustman responded:“It would be irrelevant if my client was utterly [unaware] of it, but the fact of the matter is he was aware of it and there are very many facts in this case which have to do with that”.[10][7] Transcript (31 October 2017), 1-9.[8] Ibid.[9] Ibid.[10] Ibid 1-10. Mr Cash QC accepted that he could not object to evidence going to the accused’s state of mind regarding what had gone on between the child and J[11] but evidence from the child about particular acts of abuse could only inform the accused’s mind if she had told her father about them. Clearly, whether that was so was something that could be explored in the cross-examination to come.[11] Ibid 1-11. The child was then called to give evidence. In accordance with various directions that were made pursuant to s 21AL of the Evidence Act to facilitate the taking of her evidence, she was in a room separate from the courtroom, her evidence was given by use of an audio visual link between that room and the courtroom, there was a support person sitting with her in the room but no other person, all non-essential persons were excluded from the courtroom and, although the accused was present, he could not be seen by the child on her monitor.

Decision

Reasons for decision

The challenged evidence is inadmissible.Conclusion For these reasons, on 3 November 2017, orders were made pursuant to s 21AZ of the Evidence Act approving the editing of the recording to excise parts of the evidence which the child gave under cross-examination and all of the re-examination.

Ratio Decidendi

Legal Principle Established

Further questioning of the child established that she had not told her father about any of “these things”.[13] She said that she did not “want to make him angry”.[14] In re-examination, it was clarified that, although her father had later “found out” about the allegations summarised above at [14], the child had not told him “about any of the other things that you’ve spoken about today”,[15] that is to say, the acts referred to above at [15].[13] Ibid 1-33.[14] Ibid.[15] Ibid 1-37.Consideration A recording of a child’s evidence under s 21AZ of the Evidence Act may not be “edited or otherwise changed in any way”: s 21AZ(1). However, by s 21AZ(2), the presiding judicial officer may approve the editing or change of a recording “in a stated way”. It was this provision pursuant to which the Crown sought the excision of the evidence of the acts summarised at [15] as well as the re-examination related to that evidence. No objection was taken to the evidence summarised at [14]. The Crown submitted that the challenged evidence was inadmissible. The point was again made that the evidence might be admissible if it in some way informed a relevant belief on the part of the accused, but the child confirmed that she had not told her father about any of the acts about which that particular evidence was concerned. The evidence could only go to whether the allegations the child made about J were true however that, it was submitted, was irrelevant. For the accused, it was argued that the evidence was “no more than an elaboration” of the account she gave to the police, the latter being “but a benign version” of the former.[16] It was therefore submitted to be admissible because it went to proof of the accused’s state of mind. Further, it was contended that the child’s “complete account” was “inherently essential to the Crown’s unfolding of the case” and, for that reason, the recording should remain intact.[17][16] Outline of submissions on behalf of the defence, par 4 and par 5.[17]Ibid par 10, citing Richardson v The Queen (1974) 131 CLR 116 at 119, Whitehorn v The Queen (1983) 152 CLR 657 at 663-664 and 674-675 and Dyers v The Queen (2002) 210 CLR 285 at 292-293. As Thomas J observed in R v Masters,[18] the expression, “evidence of state of mind”, is a “loose expression capable of comprehending evidence of knowledge, belief or intent”.[19] In a case such as this where the charge is murder and both self-defence and killing on provocation might be raised by way of defence, such evidence may legitimately bear upon any number of issues. The most obvious is the mental element of the offence of murder, requiring the Crown as it does to prove beyond reasonable doubt that the accused intended by the act alleged to cause death to either kill or cause grevious bodily harm to the deceased. On that issue, evidence, for example, of a history between the accused and the deceased might be revealing of a desire on the part of the former to harm the latter and, thus, to establish motive from which a jury might properly infer intent.[20] In the context of self-defence, a belief on the part of the accused that he could not preserve himself from death or grievous bodily harm other than by the use of certain force will, if based on reasonable grounds, loom large.[21] So, too, will the effect on the accused’s mind of the provocative act said to give rise to any claim to the operation of the partial defence of killing on provocation.[22][18] [1987] 2 Qd R 272.[19] Ibid 274.[20]See R v Masters [1987] 2 Qd R 272 at 276; De Gruchy v The Queen (2002) 211 CLR 85 at [28]; R v Reid [2007] 1 Qd R 64 at [76]-[77].[21] See R v Masters [1987] 2 Qd R 272 at 274.[22]See Osland v The Queen (1998) 197 CLR 316 at 326 and 337; R v Mogg (2000) 112 A Crim R 417 at 424-425; Pollock v The Queen (2010) 242 CLR 233 at [43]-[52].