R v TAM (No 2)

Case [2011] QDC 141

DISTRICT COURT OF QUEENSLAND

CITATION:

R v TAM (No 2) [2011] QDC 141

PARTIES:

R

(Applicant)

V

T.A.M.

(Respondent/Accused)

FILE NO:

D195/2010

DIVISION:

Criminal

PROCEEDING:

Pre-Trial Application

ORIGINATING COURT:

District Court, Townsville

DELIVERED ON:

21 June 2011

DELIVERED AT:

Brisbane

HEARING DATES:

28 January, 2011 and 20 April 2011

JUDGE:

Durward SC DCJ

ORDERS:

1 Application refused:

   (a) leave to amend dates of offence refused; and

   (b) leave to further examine the complainant child   refused.

2 Indictment presented on 28 January 2011 is stayed.

CATCHWORDS:

CRIMINAL LAW – PRACTICE & PROCEDURE – DPP DISCLOSURE OBLIGATION – practice in conferencing children prior to hearing – whether a s93A Evidence Act situation – risk of inadvertent contamination of evidence of child of tender years by non-recording of the interview or consultation process – whether breach of guidelines or proper procedures – whether evidence so obtained should be excluded in exercise of discretion.

CRIMINAL LAW – PRACTICE & PROCEDURE - DISCLOSURE OBLIGATIONS – limited comparative analysis of interstate and international statutory disclosure provisions – consideration of proper construction of statutory obligation in respect to evidence of children.

CRIMINAL LAW – PARTICULARS OF CHARGES – time when alleged offences may have occurred uncertain - date in indictment – whether late change in date by expansion of period charged prejudicial to accused in circumstances where prosecution had conducted case including proceedings leading to pre-trial judgment by reference to specific original date – where defence opportunity to obtain security video evidence lost – where current security video evidence obtained by prosecution shows no conduct as alleged – whether application for leave to amend indictment should be refused on basis of unfairness and prejudice to accused. 

LEGISLATION

Criminal Code (Qld) ss 572, 590AA, 590AB, 590AI; Evidence Act 1977 (Qld) ss 21AA, 93A, 98 & 130; Evidence (Protection of Children) Amendment Bill 2003 - Explanatory Notes.

CASES

R v Dent [2002] QCA 247; R v B [2000] QCA 19; R v Jacobs (1993) 2 Qd R 541; R v Stratford Justices, ex parte Imbert (1999) 2 Crim App R. 276; Gately v R [2007] 241 ALR 1; R v W, ex parte AG (Qld) [2002] QCA 329; R v BBQ [2009] QCA 166; R v Robinson [2007] QCA 349; R v Fahey (2001) QCA 82; R v Pfitzer (1976) 15 SASR 171; R v Dossi (1918) 13 Crim.App.R 158; R v Dean (1932) NZLR 573; R v Swan (1987) 27 A.Crim R 289; R v ZSK (2006) QDC 016; R v H (1995) 83 A. Crim R 402; Lekich v Dixon [2009] 111; Lamositele v Arnold [2007] QDC 362; R v Belford & Bound [2011] QCA 43; Khoury v GIO (NSW) (1983-1984) 165 CLR 622.

COUNSEL:

K Stone for the Applicant

J A Greggery for the Respondent/Accused

SOLICITORS:

Office of the Director of Public Prosecutions for the Applicant

Legal Aid Queensland for the Respondent/Accused

  1. The Respondent/Accused T.A.M. (“TAM”) is charged with offences of indecent treatment and rape…

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Details
AGLC
R v TAM (No 2) [2011] QDC 141
Case
[2011] QDC 141
Decision Date

CaseChat Overview and Summary

The matter before the court involved a case against the respondent, TAM, who was charged with sexual offences against a child. The crux of the dispute revolved around two main issues: the first was whether the Director of Public Prosecutions (DPP) had breached any disclosure obligations or guidelines when conferencing the child, a matter of significant concern given the child's tender years and the risk of evidence contamination. The second issue pertained to the timing of the alleged offences as specified in the indictment and whether a late change in the dates charged was prejudicial to the accused. This change potentially impacted the defence's ability to secure relevant video evidence, as the altered timeframes coincided with a period for which such evidence was unavailable.

The court meticulously examined the statutory obligations under the Evidence Act, particularly section 93A, to assess whether the DPP had adhered to appropriate guidelines and procedures in preparing the child for testimony. The analysis included a comparative review of statutory disclosure provisions from other jurisdictions, both interstate and international, to contextualise the proper construction of the disclosure obligation in this unique scenario. Additionally, the court deliberated on the impact of the altered indictment dates on the accused's rights, focusing on whether the amendment unfairly prejudiced the defence by limiting their opportunity to obtain crucial security video evidence.

In its reasoning, the court concluded that the DPP had not breached any statutory obligations or proper procedures in conferencing the child. Consequently, the evidence obtained from the child was deemed admissible. Regarding the indictment dates, the court found that the proposed amendment was prejudicial to the accused, as it hindered their ability to gather relevant evidence and thereby compromised the fairness of the trial. The court ultimately denied the application to amend the indictment dates and to further examine the child complainant. As a result, the indictment presented on 28 January 2011 was stayed, pending further instructions.

Orders

Orders of the court

1 Application refused:

(a) leave to amend dates of offence refused; and

(b) leave to further examine the complainant child refused.

2 Indictment presented on 28 January 2011 is stayed.

Background

Background to the litigation

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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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