R v SCJ; Ex parte - [2015] QCA 123

SUPREME COURT OF QUEENSLAND

CITATION:

R v SCJ; Ex parte Attorney-General (Qld) [2015] QCA 123

PARTIES:

R
v
SCJ
(respondent)
EX PARTE ATTORNEY-GENERAL OF QUEENSLAND
(appellant)

FILE NO/S:

CA No 7 of 2015
DC No 49 of 2013

DIVISION:

Court of Appeal

PROCEEDING:

Reference under s 668A Criminal Code

ORIGINATING COURT:

Childrens Court at Townsville – Unreported, 23 January 2015

DELIVERED ON:

Order delivered ex tempore on 16 June 2015
Reasons delivered 10 July 2015

DELIVERED AT:

Brisbane

HEARING DATE:

16 June 2015

JUDGES:

Margaret McMurdo P and Philippides JA and Burns J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Delivered ex tempore on 16 June 2015:

The Court answers the points of law referred to it by the Attorney-General under s 668A Criminal Code 1899 (Qld):

(a) Does a finding that a child witness is not competent to give evidence in a proceeding of itself preclude the admission of an earlier out of court statement by that child witness under section 93A of the Evidence Act 1977? – Yes.

(b) Does a finding that a child witness is not competent to give evidence in a proceeding of itself preclude the admission of earlier out of court representations by that child witness under section 93B of the Evidence Act 1977? – No.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARDON, COMMUTATION OF PENALTY, REFERENCE ON PETITION FOR PARDON AND INQUIRY AFTER CONVICTION – REFERENCE TO COURT – where the respondent was charged with sexual offences committed against three different complainants (RKM, BV and LN) – where the trial judge determined that RKM’s statements to police, her mother and Dr Tilse, were made by a person who was not competent to give evidence in the proceedings and should not be admitted into evidence – where a party raises an issue about the competency of a person called as a witness, the Evidence Act Pt 2, Div 1A is applicable – where under s 9 Evidence Act, every person, including a child, subject to Pt 2, Div 1A, is presumed to be competent to give evidence in a proceeding and to give that evidence on oath – where s 93A facilitates the admission into evidence of an earlier out of court statement by either a child or a person with an impairment of the mind at the time of making the statement – where as long as the maker of the statement sought to be admitted under s 93A is found to be not competent under s 9A to give evidence in the proceeding, the maker of the statement is not available to give evidence in the proceeding (s 93A(1)(b)) so that the statement is not admissible under s 93A – where evidence is sought to be admitted under s 93B, the person whose evidence is sought to be admitted must be unavailable, either because the person is dead or because he or she is mentally or physically…

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 SCJ; Ex parte

Details

AGLC: R v SCJ; Ex parte [2015] QCA 123
Case: [2015] QCA 123
Decision Date: 16 June 2015

CaseChat Overview and Summary

In this case, the respondent, SCJ, was charged with sexual offences against three complainants, RKM, BV, and LN. The central issue before the court was whether the incompetency of a child witness to testify in a criminal proceeding, pursuant to the Evidence Act 1977, precluded the admission of her earlier out-of-court statements under sections 93A and 93B of the Act. The Attorney-General referred two questions to the court: (a) whether a finding that a child witness is not competent to give evidence in a proceeding precludes the admission of an earlier out-of-court statement by that child witness under section 93A, and (b) whether such a finding precludes the admission of earlier out-of-court representations by that child witness under section 93B.

The court examined the provisions of the Evidence Act, specifically sections 9, 9A, 93A, and 93B. It held that section 9 presumes a person, including a child, to be competent to give evidence unless otherwise determined under section 9A. Under section 93A, a statement made by a person not competent to testify is inadmissible unless the person is unavailable. However, section 93B permits the admission of out-of-court statements if the declarant is unavailable due to mental or physical incapacity, among other reasons. The court concluded that while section 93A is precluded by the child's incompetency, section 93B is not, as it encompasses situations where the declarant is unavailable due to incapacity, which includes the incompetency of the child.

The court delivered its decision ex tempore on 16 June 2015, answering the questions posed by the Attorney-General. It held that a finding of a child witness's incompetency to give evidence precludes the admission of an earlier out-of-court statement under section 93A but does not preclude the admission of earlier out-of-court representations under section 93B.

Orders

Orders of the court

Delivered ex tempore on 16 June 2015:

The Court answers the points of law referred to it by the Attorney-General under s 668A Criminal Code 1899 (Qld):

(a) Does a finding that a child witness is not competent to give evidence in a proceeding of itself preclude the admission of an earlier out of court statement by that child witness under section 93A of the Evidence Act 1977? – Yes.

(b) Does a finding that a child witness is not competent to give evidence in a proceeding of itself preclude the admission of earlier out of court representations by that child witness under section 93B of the Evidence Act 1977? – No.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v SCJ; Ex parte Attorney-General (Qld) [2015] QCA 123
PARTIES:	R v SCJ (respondent) EX PARTE ATTORNEY-GENERAL OF QUEENSLAND (appellant)
FILE NO/S:	CA No 7 of 2015 DC No 49 of 2013
DIVISION:	Court of Appeal
PROCEEDING:	Reference under s 668A Criminal Code
ORIGINATING COURT:	Childrens Court at Townsville – Unreported, 23 January 2015
DELIVERED ON:	Order delivered ex tempore on 16 June 2015 Reasons delivered 10 July 2015
DELIVERED AT:	Brisbane
HEARING DATE:	16 June 2015
JUDGES:	Margaret McMurdo P and Philippides JA and Burns J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Delivered ex tempore on 16 June 2015: *The Court answers the points of law referred to it by the Attorney-General under s 668A Criminal Code* 1899 (Qld):** (a) Does a finding that a child witness is not competent to give evidence in a proceeding of itself preclude the admission of an earlier out of court statement by that child witness under section 93A of the Evidence Act 1977? – Yes. (b) Does a finding that a child witness is not competent to give evidence in a proceeding of itself preclude the admission of earlier out of court representations by that child witness under section 93B of the Evidence Act 1977? – No.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – PARDON, COMMUTATION OF PENALTY, REFERENCE ON PETITION FOR PARDON AND INQUIRY AFTER CONVICTION – REFERENCE TO COURT – where the respondent was charged with sexual offences committed against three different complainants (RKM, BV and LN) – where the trial judge determined that RKM’s statements to police, her mother and Dr Tilse, were made by a person who was not competent to give evidence in the proceedings and should not be admitted into evidence – where a party raises an issue about the competency of a person called as a witness, the Evidence Act Pt 2, Div 1A is applicable – where under s 9 Evidence Act, every person, including a child, subject to Pt 2, Div 1A, is presumed to be competent to give evidence in a proceeding and to give that evidence on oath – where s 93A facilitates the admission into evidence of an earlier out of court statement by either a child or a person with an impairment of the mind at the time of making the statement – where as long as the maker of the statement sought to be admitted under s 93A is found to be not competent under s 9A to give evidence in the proceeding, the maker of the statement is not available to give evidence in the proceeding (s 93A(1)(b)) so that the statement is not admissible under s 93A – where evidence is sought to be admitted under s 93B, the person whose evidence is sought to be admitted must be unavailable, either because the person is dead or because he or she is mentally or physically…