R v WTK

[2010] QDC 301

DISTRICT COURT OF QUEENSLAND

CITATION:

R v WTK [2010] QDC 301

PARTIES:

R
(respondent)
v
WTK
(applicant)

FILE NO/S:

Indictment 0323 of 2010

DIVISION:

Criminal

PROCEEDING:

Application pursuant to s 590AA of the Criminal Code

ORIGINATING COURT:

District Court

DELIVERED ON:

13 August 2010

DELIVERED AT:

Brisbane

HEARING DATE:

14 July 2010, 15 July 2010

JUDGE:

Griffin SC DCJ

ORDER:

I therefore refuse the application to exclude any evidence of the complainant.

COUNSEL:

Sumner-Potts M for the applicant

JA Thomas for the respondent

SOLICITORS:

Daniel Towne & Associates for the applicant

Office of the Queensland Director of Public Prosecutions for the respondent

1. The defence have made an application before trial pursuant to section 590AA of the Criminal Code to exclude certain evidence proposed to be led by the prosecution in the defendant’s trial.  The defendant is charged with two offences on the one indictment.  A charge of maintaining an unlawful sexual relationship and rape alleged to have been committed against the complainant child ED the defendant’s step-daughter.

1. The evidence sought to be excluded are statements made by the complainant to the police which form the basis of the prosecution’s evidence-in-chief against the complainant. These are statements said to be admissible pursuant to section 93A of the Evidence Act. 

1. The submission by defence is that the statements made in the section 93A statements are attended by such unreliability that in the exercise of discretion those statements should be excluded.

1. There are two separate and distinct provisions contained in the Evidence Act which operate in such circumstances. Section 98 of the Evidence Act provides:

   98 Rejection of evidence

   (1)The court may in its discretion reject any statement or representation 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.

1. Section 130 of the Evidence Act provides:

130 Rejection of evidence in criminal proceedings

Nothing in this Act derogates from the power of the court in a criminal proceeding to exclude evidence if the court is satisfied that it would be unfair to the person charged to admit that evidence.

1. Although the approaches to be taken in respect of each section are somewhat different the material considerations which apply will inevitably be similar.

The facts

1. A chronology has been tendered as part of these proceedings and is Exhibit 2. On 25 November 2007 the complainant child was taken to the Cairns Base Hospital by her mother and was ultimately operated upon by a paediatrician who discovered substantial and severe internal genital injuries. On 27 November 2007 the police and child safety officers were notified by Dr Van Royen who conducted the surgery. The child was interviewed at a police station on that date and said that the injuries had occurred on account of her having fallen from a bike and having hit a “gardener”. The context of this whatever precisely the child was describing was that the injuries were accidental and not occasioned by any human person. The following day however on 28 November 2007 outside the environment of a police station the child made disclosures to a child safety officer Wheiland and the effect of those disclosures were that someone had hurt the child and that she wanted it to stop. She described the person who hurt her as her “dad” and that he had done so by “hurting her with a stick inside”. The following day the child was again taken to the police station and refused to make any disclosures. Again on 7 December 2007 the child was once again taken to the police station again obviously for the purpose of obtaining evidence in support of a section 93A statement. Again the child refused to make any statement.

1. It is relevant to note that on 27 November, 29 November and 7 December 2007 much time was spent by those questioning the child insisting that she had been hurt by someone and that she should tell those questioning her about the circumstances.  It is common ground I think that the child was put under considerable pressure to make a revelation consistent with what she had told the child safety officer on 28 November 2007.

1. Without explanation as to why on 26 May 2008 the child was again questioned by police at a police station.  This conversation as with the others was recorded.  On that occasion the complainant child indicated that she had been assaulted by the use of a stick.  The person responsible was her father.  On that occasion she also indicated in general terms that other sexual activity had occurred between her step-father and herself on other occasions prior to the incident which led to her being taken to hospital.

1. A committal proceeding was held although the child was not involved.

1. However, prior to the child giving evidence for the purpose of the trial itself, she spoke to the prosecutor Ms Meoli who gave evidence before me. On that occasion the child said that she now “wished to tell the truth” and said that the injuries had been occasioned by her step-father but that he had used his penis. The conversation was concluded abruptly by Ms Meoli and on 1 April 2009 a further taped conversation between the complainant and police (also the subject of the section 93A challenge) was undertaken. On that occasion the child gave a detailed account of how the injuries occurred during and after a fishing trip with her step-father and younger family members. She also described other incidents prior to the final incident which led to the serious injuries and which as I understand it form the basis of count one that is the maintaining charge on the indictment.

1. The way in which the disclosures made by the complainant came about are curious to say the least and do raise concerns about the acceptability of the complainant’s ultimate version.  It should be noted that the Crown has particularised the rape charge as one involving penetration with the penis.  The prosecution however rely on early statements made by the child to Ms Wheiland and later to police that the reason why she did not wish to make any disclosures concerning her step-father was that she was warned not to.  This, in my view, is a relevant consideration in the overall issue concerning the exercise of discretion to exclude the evidence.

1. Defence relied on a number of documentary exhibits including Exhibit 7 statement of Jessica Mary Wheiland dated 30 May 2008, a psychologist’s report by Sharon Daniels a clinical psychologist who carried out a psychological assessment of the child including aspects of appreciation of the difference between understanding the nature of the truth and a lie, an ability to understand the duty to tell the truth in court.

1. The defence relied also on the objective and obvious features of the way in which the revelations were made and with particular emphasis on the fact that the child had been considerably pressured by police at an early stage.  An obvious consequence of which might be that the child would fulfil the request by police by supplying ultimately the name of the person to satisfy the police by reason of their constant and insistent demands.

1. The defence also called Ian Coyle whose qualification is that of a psychologist.  Coyle’s evidence was to some extent evidence which is within the normal experience of ordinary persons (for example the likelihood that insistence to a child will produce a response not truthful but one which responds merely to that insistence).  The witness gave other evidence concerning other aspects of the interviews for example the child was not properly tested as to her appreciation of the difference between telling the truth and a lie and the need to tell the truth in what she was saying.  The substance of the psychologist’s evidence was however I think properly clothed in the context of a psychological appreciation of the issues and not a mere lay understanding and for that reason the evidence was admissible in my view.

1. There are however some concerns about the evidence itself.  The psychologist in his report tendered described experience in 1,000 matters in giving evidence.  This was in my view quite misleading.  Upon cross-examination the relevant area of evidence concerned in this trial with which the witness has been concerned was a relatively small number of matters and as I have indicated the report in the way in which it was formulated had a considerable tendency to mislead about the witness’ experience in such matters. 

1. More worrying however was an email sent by the witness to defence counsel Mr Sumner-Potts prior to the preparation of the report in which the witness referred to his experience in terms of “winning and losing”.  The exact terminology of the email is as follows:

“Hi Michael,

I haven’t heard anything more from your instructing solicitors.  The score is now 24 (Coyle and others) 0 (Crown) and counting in these matters.  Another Nolle plus charges withdrawn in mid trial in two matters in the last fortnight

Give me a call on ……….”

1. It is of considerable concern that a witness purporting to be an expert would consider his or her performance in Court in terms of scoring wins or losses.  Merely to state the terms of the email it seems to me is sufficient to highlight the concerning nature of the attitude and professionalism of the witness.  Throughout the witness’ evidence there were moments when I felt there was displayed such passion on the topic of unreliability as to suggest a lack of objectivity in the way the witness approached his task.  Considerable caution therefore must be exercised in an acceptance of the witness Coyle’s evidence.

1. Whether or not the witness Coyle’s evidence is accepted there are a number of aspects to the complainant’s evidence sought to be tendered at trial through the section 93A evidence that raise concerns as to the reliability of that evidence that includes:

1.          The fact that the complainant was not questioned or at least questioned sufficiently about her appreciation of telling the truth and what constitutes the telling of lies and further her appreciation of her need to tell the truth in her version of events.

2.          In the early stages of a police investigation in November and December the complainant was put under constant and substantial pressure to make revelations which the police made known to the complainant were something that they believed the complainant should tell them (that is the police).

3.          The complainant gave a variety of different explanations for the injuries some of which included responses which did not indicate the involvement of any person in committing an offence upon her.

4.          The complainant was referred in the latter stages of the investigation to her earlier taped interview with police.  Added to these features are of course the two inconsistent versions which were ultimately given to the police involving the responsibility of her step-father committing offences upon her by the use of a stick and by February 2009 the use of his penis.  By 26 May 2008 the complainant also made further revelations of earlier offences committed upon her by her step-father.

1. Whilst the Court clearly has power in the proper exercise of discretion to exclude evidence upon the basis of unreliability, having reviewed the evidence and taken into consideration, for example, explanations as to why in the earlier interviews the complainant did not identify her step-father (that is because she was told by the step-father not to say anything), on the whole of the material whilst there are clearly issues concerning reliability in my view a proper exercise of discretion is not to exclude the evidence.  I am of the opinion that the evidence as presently presented is evidence which is properly a matter for consideration by a jury at trial.

1. I therefore refuse the application to exclude any evidence of the complainant.