State of Western Australia v RLM
[2018] WADC 14
•30 JANUARY 2018
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL
LOCATION: PERTH
CITATION: STATE OF WESTERN AUSTRALIA -v- RLM [2018] WADC 14
CORAM: TROY DCJ
HEARD: 23 JANUARY 2018
DELIVERED : 30 JANUARY 2018
FILE NO/S: IND 1529 of 2017
BETWEEN: STATE OF WESTERN AUSTRALIA
AND
RLM
Catchwords:
Admissibility of statement by complainant pursuant to s 106H of the Evidence Act 1906 - Statement audio recorded - Turns on own facts
Legislation:
Evidence Act 1906s 106H (WA)
Result:
Application to adduce statement made by the complainant to her mother allowed
Representation:
Counsel:
The State of Western Australia : Ms K A White
Accused: Ms W C Hughes
Solicitors:
The State of Western Australia : State Director of Public Prosecutions
Accused: Putt Legal
Case(s) referred to in judgment(s):
RPM v The Queen [2004] WASCA 174
SJX -v- The State of Western Australia [2010] WASCA 243
The State of Western Australia v AETR [2017] WADC 125
The State of Western Australia v EB [2011] WADC 66
The State of Western Australia v GRB [2015] WADC 75
TROY DCJ:
Introduction
By indictment 1529/2017 it is alleged that on two or perhaps three separate occasions the accused RLM sexually assaulted his granddaughter IC by digitally penetrating her vagina (count 1). Further, that he indecently dealt with her by telling her to place her bottom on his face (count 2) and by touching her in the vaginal area (count 3). The period of the alleged offending is pleaded as being between 1 January 2014 and 15 December 2015. At all material times IC was aged under 13 years, being about 5 or 6.
These allegations are denied by RLM and the matter is listed for a pre‑recording of evidence on 8 February 2018, with a trial commencing on 30 April 2018.
These are my reasons for the decision that I announced on 25 January 2018 in respect of the application heard by me on 23 January 2018, pursuant to s 98 of the Criminal Procedure Act 2004.
Background facts
Following a complaint made to the accused's wife JM (the grandmother therefore of IC) in the lead‑up to Christmas 2015, a visually recorded interview (VRI) occurred at the Bunbury child witness service with IC on 17 December 2015.
On 29 December 2015, IC's mother BM spoke with her daughter and recorded the conversation. BM is the daughter of RLM.
The prosecution have applied to adduce evidence of this conversation under s 106H of the Evidence Act 1906. The defence oppose the application.
The conversation was subsequently transcribed and in that format is in the prosecution brief (PB) at pages 89 – 109, helpfully summarised at [18] of the State's written submissions.
This audio recording was played during the hearing before me.
The State contends that the evidence in respect of count one is derived solely from the observations made by IC in this recorded conversation. In addition IC disclosed material relevant to count two as well as an 'uncharged act'.
I infer that the purpose of the conversation, from BM's perspective was, firstly, to elicit further details from her daughter than IC had provided in the VRI of 17 December 2015. Secondly, to encourage IC to speak freely and extensively about these events when she was to be interviewed the following day. The only inference to be drawn from the fact that the conversation was recorded, without IC's knowledge, was that BM wished to preserve a record of any allegations that IC made. Obviously, there could be a number of reasons for obtaining such a record.
A second VRI was conducted the following day on 30 December 2015. IC did not however relate any of the subject matter to the interviewers on that occasion, except for an observation relevant to count two when she said that she could only remember about her grandfather saying that she could, 'put her bum in his face'. The interview was terminated after only about 10 minutes.
There was a third VRI at Bunbury child witness service on 12 July 2016 which is transcribed at pages 36 – 65. That interview was conducted at the request of the prosecution following the proofing of IC. IC provided answers which were arguably relevant to all three counts, but nowhere near the extent of her answers to her mother on 29 December 2015.
Applicable legal principles
It is accepted that the recording constitutes a relevant statement as defined in s 106H, has been given to the accused and the accused through counsel will be given the opportunity to cross‑examine IC on 8 February 2018. Further, evidence of the making and content of the statement is to be given by the person to whom the child made the statement, namely BM, whom the State proposes to call as a witness.
As the prescribed conditions are met, the statement is prima facie admissible but the onus is on the State to persuade me to exercise my discretion in favour of the admissibility of the statement.
The leading appellate authority on the application of s 106H is RPM v The Queen [2004] WASCA 174. I have also had regard to the decisions of this court in The State of Western Australia v EB [2011] WADC 66 and more particularly, The State of Western Australia v GRB [2015] WADC 75. I have also previously given a judgment on this section myself: The State of Western Australia v AETR [2017] WADC 125.
As noted by Davis DCJ in GRB [18], in RPM the child complainant had given a written statement to a police officer in relation to complaints of sexual assault by the accused. When the child came to give evidence during a pre‑recording by way of video link from a remote room, he did not give any evidence about the offences. The State then sought and obtained leave pursuant to s 106H to adduce the child's evidence by way of the police statement. A further pre‑recording took place during which the child was cross‑examined. At trial the procedure followed was that the statement of the child was read first and the jury was then played the recordings of both his examination‑in‑chief and the cross-examination.
The Court of Criminal Appeal unanimously dismissed the contention that the trial judge erred in the exercise of his discretion in allowing the complainant's statement to the police to be read in evidence pursuant to s 106H of the Evidence Act.
In EB, as Davis DCJ noted, the accused was charged with three counts of indecent dealing with his daughter and a further three counts of sexually penetrating his son, JMB, who at the material time was aged 5. JMB had given a VRI where he described an incident the subject of one of the counts relating to the accused. Although he stated that similar acts had occurred on other occasions, he did not give any particulars of them. The State applied for leave pursuant to s 106H to adduce evidence from the complainant's mother in terms of her witness statement, of statements allegedly made to her by JMB. Significantly the evidence was sought to be adduced to supplement the evidence that JMB had given in his VRI.
In GRB [28] Davis DCJ set out a number of factors, gleaned from RPM, as relevant to the exercise of discretion, assuming that the statement is admissible. As in AETR, I respectfully agree with the criteria identified by her Honour and I apply them to the facts of this case.
The first factor relevant to the exercise of my discretion
Firstly, whether the complainant has given any evidence at all in relation to the matters the subject of the indictment: RPM [50] and [79] (Malcolm CJ).
I refer, without repetition, to my comments on the factual situation in RPM [130] - [136] in AETR.
Although in the third VRI, IC gave some evidence about the accused applying cream to her vagina, that was at a time when she said that she had an 'infected fanny' – page 7 and her account does not accord with the basis upon which the prosecution now advance count one, which was a deliberate insertion of a finger into her vagina, scratching her so that it hurt.
The State submits, and the defence did not disagree, that if the statement is excluded then count one on the indictment is unsustainable
In the absence of the statement, in addition to the contended for necessity of discontinuing count one, the evidence in respect of count two would be that on an occasion when IC stayed with her grandfather, he said to her in the morning that she could, 'put her bum in his face to wake him up'.
IC then related that having woken she climbed into bed with her grandparents put her bottom in RLM's face at a time when she was wearing pull‑up pants and RLM woke up and cuddled her at a time when his wife was in bed with him. In the first VRI she made no reference to the accused touching her vagina.
As I have noted no further disclosures were made in the second VRI. In the third VRI on 12 July 2016 IC initially referred to an occasion when they were touching each other's privates but then somewhat ambiguously said that she wasn't touching his. She said this happened more than once and related, as I have noted, an occasion when if she had 'an infected fanny' RLM would put the cream on.
At page 12, IC said that sometimes when she goes into his bed RLM would 'touch her fanny.' She said at page 13 that was the only time she could remember. She said at page 14 that it didn't actually hurt but it felt weird. She seemed to agree that on many occasions her grandfather had put cream on her vagina when she was staying with him, but said that the last time that happened was a couple of days ago. That could not be correct because there had been no contact for several months between IC and RLM as a result of the disclosure in December 2015.
IC was not able to describe an occasion when her grandfather touched her when he did not put cream on.
At page 16, IC then described climbing into bed with her grandfather when he was asleep but that he would then 'touch her fanny' when she was wearing PJ's and she would roll over. IC described an occasion when RLM would touch her on top of her PJ's and then was asked about an occasion when he would touch her other than on top of her PJ's.
IC said that RLM 'just pulls my pants down and just touches my fanny'. At page 18 the interviewer asked 'where on your fanny did his hand go?' IC responded 'down the hole.' IC said that it hurt and that RLM had touched down the hole more than once.
Following a brief suspension of the interview at page 22 the interviewer asked whether when RLM was putting cream on IC when she had an infection, did he put cream in her hole or on the outside? IC said that sometimes RLM puts it in the hole and sometimes he didn't. IC said that when she was in bed with RLM and 'he touched her fanny' sometimes he put his finger in her hole and sometimes he didn't.
In IC's conversation with her mother there is no reference to RLM touching her in order to place cream on her infected vagina.
In RPM, Malcolm CJ rejected a submission that the purpose of s 106H was such that the procedure set out in the section should only be applied where the complainant is incapable of giving evidence at all, or where there is evidence that the child finds the experience of giving evidence extremely traumatic: [45] and [50].
There is no doubt that IC gave far more evidence about the three counts on indictment, together with an 'uncharged act', in the conversation with her mother than emerges from the three interviews.
In my view even without the impugned statement there is certainly a prima facie case in respect of all three counts. That does not mean that a decision to discontinue count one would be inappropriate, it being a matter of judgment for the office of the Director of Public Prosecutions as to whether there would be, in absence of the statement, reasonable prospects of conviction.
The fact, however, that far more detail about the allegations, both as represented by the three counts on the indictment and the 'uncharged act,' are given in the impugned statement than emerges elsewhere, is a factor that favours the admissibility of the statement, as the defence properly accepted in oral argument.
The second factor relevant to the exercise of my discretion
Secondly, the circumstances in which and the process by which the relevant statement was taken: RPM [61] - [62] and [76] (Malcolm CJ); [128] (Wheeler J).
In RPM Malcolm CJ noted [57] the circumstances in which the police officer took the s 106H statement from the complainant SR.
I accept that the circumstances in which the s 106H statement was taken in RPM were more conducive to ensuring that there is a fair trial as between the State and the accused than in the present case.
I note that in RPM McKechnie J observed at [179] that the interests of justice will be enhanced if, where possible, the circumstances under which a s 106H statement is obtained are video-recorded. In this case the statement was audio‑recorded.
This is not a case where considerations arise as to whether BM is likely to have accurately retained a memory of some or all of the statement, prior to it being formally recorded in a witness statement.
Whilst I do not accept that the jury could determine exactly how IC responded to the questions, because in contrast to the three VRI's this product is audio only as opposed to audio-visual, the quality of the recording is very clear. The jury would be in a position to make findings as to credibility based upon the manner in which IC answered the questions asked of her by her mother, albeit the jury would plainly be in a more advantageous position if they could both see and hear IC.
As a general proposition I remain of the view that I expressed in AETR (echoing the view of McCann DCJ in EB) that it important that evidence in such a case should be gathered by the police rather than the complainant's mother.
I do note that in EB the possibility of a further VRI which, in McCann DCJ's view, permitted the possibility of a more transparent, tangible and less abstract product (EB [9]) was open. Indeed it was availed of, because a third VRI was conducted five days after McCann DCJ's ruling, whereas in the present case, as discussed below, it is realistically not open.
It is unremarkable that a 6-year-old complainant such as IC would feel it easier to make disclosures to her mother then to the trained interviewers however sympathetic the latter endeavour to be.
I accept, however, that to routinely permit the eliciting of the potentially relevant evidence in this format would circumvent the procedure that legislation has provided for, and which the experience of the courts tends to suggest is the most efficacious way of achieving a fair trial both for the prosecution and on behalf of an accused person.
I do not, however, read the authorities as supportive of a proposition that whenever the official methodology is not used, that is a formal VRI conducted by a suitably qualified interviewer, the product is inevitably inadmissible.
It is the case, nonetheless, that the circumstances in which the relevant statement was taken here is a factor that militates against admission, although not to the same extent as would be the case were there are no recording of the statement.
In my view, in considering the degree to which this factor militates against admission, this case is to be contrasted with the situation in AETR. There can be no dispute as to the content of the conversation in which the relevant allegations were advanced. The extent to which there was suggestibility, a lack of appreciation of the importance of these matters and the need to tell the truth and a desire to impress the person asking the questions are transparent and can be explored in cross‑examination.
Further there is opportunity, albeit imperfect opportunity, for the jury to assess the demeanour and credibility of IC in respect of the allegations that she makes.
The third factor relevant to the exercise of my discretion
Thirdly, whether there was any discussion with the child about the purpose of the statement and the need to tell the truth: RPM [131] (Wheeler J).
When the interviewer inquired of IC on 17 December 2015 whether she was going to tell the truth there was a positive (albeit inaudible) response to that question (PB 2). Given IC's age, however, I do not find that the fact that she was told 12 days earlier in a formal setting of the need to tell the truth, would still have been at the forefront of her mind during the conversation with her mother. In the 17 December VRI there was no further exploration as to the level of IC's understanding of the difference between truths and untruths or any re‑confirmation of her intention to tell the truth during the course of the VRI.
I accept that the nature of IC's conversation with her mother was such that it lacked the formality that exists with a visually recorded interview. The relevant questions and answers were interspersed with the sort of topics that might be expected to be discussed between a mother and her 6‑year‑old daughter. Nonetheless, in my view the BM adequately conveyed the importance of telling the truth to IC.
The conversation commenced with BM advising her daughter that it was important that as her mother she knew a bit more about the matters that IC had spoken of previously. Further, that it was important that, 'if they went back to the interviewer tomorrow that that lady was told everything as well' (page 3 of the transcript).
When IC said that she had made something up, it would seem by waking her grandfather by tickling his armpits, BM told her 'don't make it up. This is important' (page 6).
At page 14 there is a section of the statement which at present is not transcribed. BM asked IC if she understood what she was saying, BM began to make a reference to 'promise' and then referring to the interviewer told IC that the interviewer will have 'better questions' and in that context continued 'always tell the truth and really just try to remember your hardest'.
At page 17 BM stated 'it's quite important that it's always the truth and it's always as much as you can be brave to remember', to which IC replied, 'Yes, Mum'.
I find, however, that there was no discussion about the purpose of the conversation, in the sense that it could be used as evidence in a court. That is unsurprising, given that IC was not advised of the fact that the conversation has been recorded, but nonetheless is a factor that I must bear in mind.
In respect of this factor as a whole, IC was told of the importance of telling the truth which favours the admission of the statement, but there was an absence of discussion about the purpose of the answers that IC was giving which is a factor that militates against admission. IC did not know that what she said to her mother was being recorded, still less was to be used in some form of formal hearing.
The fourth factor relevant to the exercise of my discretion
Fourthly, whether the statement has been elicited by the use of leading questions or otherwise in circumstances which strongly suggest the contents were not in reality the statement of the child at all: RPM [127] and [132] - [135] (Wheeler J).
As Buss JA observed in SJX -v- The State of Western Australia [2010] WASCA 243 [82] - [83], a question is leading if it, directly or indirectly, suggests the desired answer or if it assumes the existence of a fact which is in dispute and has not been deposed to by the witness.
Questions may legitimately suggest to the witness the topic of the answer; they may be necessary for this purpose where the witness is not aware of the next answering topic to be testified about, or where he is aware of it but its terms remain dormant in his memory until by the mention of some detail the associated details are revived and independently remembered.
Questions, on the other hand, which so suggest the specific tenor of the reply as desired by counsel (or in this case by BM) that such a reply is likely to be given irrespective of an actual memory, are illegitimate.
The essential notion, then, of an improper (commonly called a leading) question is that of a question which suggests the specific answer desired.
The defence submits that in the conversation IC provided no spontaneous disclosure.
In my view BM's opening question at page 3, 'I want to know the different ways that you were touched, where you were touched and how?' has to be evaluated in the context that 16 days earlier, after earlier discussion confined to conduct giving rise to count 2, IC, a little later, volunteered to BM that 'RLM likes to touch me': PB page 74.
In that context, the question is not objectionable in the sense of suggesting the specific answer desired, not least because there would plainly be innocuous circumstances in which IC would be touched by her grandfather. IC immediately interrupted the question 'can you tell me….?' by saying 'in the fanny by his fingers'.
There is then an unobjectionable request, 'tell me about a story about when that happened one time, followed by 'how did it happen?', 'can you tell me about what happened the last time you were there?', 'was it in the daytime or the night-time?, 'which room was it?' and 'what happened then?'
The request at page 5, 'tell me what happened when you woke up, please' was quite insistent but did not suggest the desired answer.
BM sought clarification at the top of page 7 as to whether events happened on a different day or the same day. It is unobjectionable in my view that BM asked IC, 'has Poppy seen that hole in your vagina?'
BM asked in light of the answer that he had 'scratched her' whether 'he put it in, just inside it or just touched it?'
BM asked IC 'do you think his private touched you?' BM asked IC to describe RLM's genitals. When BM suggested to IC that she had moved his penis, IC corrected BM saying 'No, he made me'.
I accept that the question at page 10 'did that part touch you sometimes' could better be framed as did that part ever touch you?
When BM asked IC 'did that bit ever go inside the hole?' IC said that it did not. BM asked IC, page 11, 'Did it ever touch any other part of you?' Again IC said that it did not.
BM asked IC if RLM had 'licked her fanny' (13) and IC said that it did not.
BM asked IC whether there were any other things that happened at their house. BM asked at the bottom of page 16 if that part of RLM ever touched IC's mouth and IC said, 'I said no to that question already'.
In my view, taken as a whole, and in the context of the earlier unsolicited disclosure made to BM, the questions asked by BM were not objectionable and this factor supports the admissibility of the statement.
The fifth factor relevant to the exercise of my discretion
Fifthly, whether there was present at the time of questioning anyone whom the child may have wished to please or influence by the responses which the child gave: RPM [132] (Wheeler J).
Where a close family relative, both in this case and in AETR the child's mother, embarks on a procedure that is ordinarily carried out by trained interviewers, the risk that the child will answer in such a way as to please or influence the questioner always exists.
This risk would be particularly acute if the child discerned that there was a hostile relationship between the questioner and the accused person, as might arise for example in an acrimonious marital separation. In this case, however, the questioner, the child's mother, is the natural daughter of the accused and the situation is therefore far more complex.
In the circumstances it is by no means inevitable that IC would have thought that by answering in the way she did she was pleasing her mother. She would, from the questions, have understood that her mother wanted her to give as much detail about the alleged events as she could, but there was no suggestion that by saying that her grandfather did a certain thing, as opposed to not doing a certain thing, she thought that would please her mother.
At one stage, page 18, BM observed that IC's grandparents 'like to help you in the bath' which might be regarded as a suggestion that there was nothing particularly unusual about the presence of the grandparents in the bathroom. IC responded that she didn't need help and that her grandfather was just watching her.
There were a number of occasions when IC corrected her mother. She appears to be a high-spirited 6‑year‑old who was happy to tease her mother on occasions, for example by theatrically saying 'You don't love me' at page 19. IC, in my view, was in no way cowed or subdued in the manner in which she answered her mother's questions.
BM did not extend any particular praise for an answer given by IC which had the effect of implicating RLM and as noted told her not to make things up because 'this is important'. BM asked IC if 'she felt okay to tell her about this?' (page 17).
Whilst there is a risk that IC would answer in a way that she thought BM wanted her to answer, in order to move the conversation onto more enjoyable topics from a 6‑year-old's perspective, the recorded conversation is not especially lengthy, both mother and daughter do on occasions divert to talk about matters other than what might have happened to IC when she was with her grandfather and there are no occasions when IC asks her mother to stop asking her questions on this area. The closest IC comes is at page 16 where IC almost rebukes BM by saying 'I said no to that question already'.
In my view this was not a case where IC would have felt any express or implied pressure to give particular answers. Rather she would have understood that her mother wished her to repeat what she was then saying in the interview the following day. IC did not, of course, do so, but I do not regard the answers given in this statement as emanating from a desire to please or impress her mother. The absence of that feature means that, applying this factor, there is support for the admission of the statement.
The sixth factor relevant to the exercise of my discretion
Sixthly, the probative value of the statement: RPM [61] ‑ [62] (Malcolm CJ); [127] ‑ [128] (Wheeler J) and [175] (McKechnie J). Here it is accepted that the statement does have a probative value which favours its admission.
The seventh factor relevant to the exercise of my discretion
Seventhly, whether there is a degree of unfairness to the accused which could not be cured even by an opportunity to cross-examine or appropriate directions from the trial judge: RPM [127] (Wheeler J) and [174] (McKechnie J). Examples of unfairness include where the allegations in the statement are so vague and general that it is impossible for an accused to make any sensible answer to them: RPM [127] (Wheeler J).
In my view that particular situation does apply in the present case. IC's answers are sufficiently precise.
The potential of unfairness here is not so much that it is unlikely that IC will speak about the matters covered in the conversation during cross‑examination. It can be safely assumed that IC will not make any reference to the matter she discussed with BM unless prompted by questioning in cross‑examination.
A potential unfairness would arise if there is a demonstrable difficulty in advancing cross-examination to the effect that what IC said to her mother on that single occasion was incorrect or untrue. If that proposition is not put to IC then IC's allegations as framed in the conversation with her mother are unchallenged. From the defence perspective they have to be challenged.
It is not possible at this stage to predict how cross-examination might progress if IC is asked why it is that she was unable or refused to give the same account when she was interviewed the following day, but this stage I am not persuaded that there is an innate disadvantage to the defence, when it comes to cross-examining IC about this statement, if I permit its admission.
Further, I am entitled to assume that appropriate directions or warnings would be given by the trial judge, and that such directions will be heeded by the jury. It would very much be open to the trial judge to direct the jury along the lines that guarding against suggestive questioning, emphasising the need to tell the truth and the importance of the answers given and removing a desire that might reside in a complainant to please the questioner, when the questionnaire is the closest possible relative, are all better achieved by the formal procedure of visually recorded interviews conducted by trained interviewers.
To that can be added the advantage of an audio-visual recording as opposed to merely an audio recording as occurred in the present case.
The lack of any discernible disadvantage when it comes to cross‑examination and the ability of the trial judge to give directions that will be followed are factors that tell in favour of admissibility.
The eighth factor relevant to the exercise of my discretion
Eighthly, whether there is the opportunity for the State to undertake a further VRI with the complainant. If that opportunity exists, that is a factor that tells against the exercise of discretion so as to permit the s 106H statement. Theoretically the possibility no doubt exists for the State to attempt a fourth VRI. Given that the complainant was unable to provide any disclosure one day after the conversation, the prospect that she would be able to do so more than two years later is, in my view, non‑existent. This factor is in favour of admission of the statement.
Conclusion
Considering all these factors, I am persuaded that I should exercise my discretion in favour of the admission of this statement.
The application on behalf at the State to adduce, pursuant to s 106H of the Evidence Act, the statement made by the complainant to her mother on 29 December 2015 is therefore allowed.
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