The Queen v Horace - [2006] NTSC 91

The Queen v Horace [2006] NTSC 91
PARTIES:The Queen
v

HORACE, Kyle

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT OF THE TERRITORY EXERCISING TERRITORY JURISDICTION
FILE NO:20425514
DELIVERED:  23 November 2006
HEARING DATES:  20 – 23 November 2006
JUDGMENT OF:  MARTIN (BR) CJ
CATCHWORDS:
CRIMINAL LAW
Admissibility of statement by complainant to police pursuant to s 26E Evidence Act (NT) – probative value – evidence admitted.
REPRESENTATION:
Counsel:
Crown:E Armitage
Defence:A Woodcock
Solicitors:
Crown:Office of the Director of Public Prosecutions
Defence:Woodcock’s Solicitors
Judgment category classification:      C
Judgment ID Number:  Mar0628
Number of pages:  7

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
The Queen v Horace [2006] NTSC 91

No. 20425514
BETWEEN:

The Queen

Plaintiff

AND:

KYLE HORACE

Defendant

CORAM: MARTIN (BR) CJ
REASONS FOR JUDGMENT
(Delivered 23 November 2006)

The accused is charged with three counts of having sexual intercourse with a female complainant without her consent. The events occurred on 5 May 2003 when the complainant was aged 13 years. Pursuant to s 21B of the Evidence Act the complainant and her female friend (B), who was also aged 13 in May 2003, gave evidence at a special hearing prior to the empanelling of a jury and a video recording of that evidence was played to the jury.
The complainant and her friend were waiting at a bus stop when they were approached by the accused. He was unknown to them. The complainant gave evidence that after a short conversation during which the accused asked a number of questions, the accused enquired about a particular street. Following directions given by B, who remained at the bus stop, the complainant walked into school grounds with the intention of directing the accused to the area of the street.
According to the complainant, in the school grounds the accused took hold of her, put his hand down her shorts and penetrated her vagina with his finger. He then grabbed her shoulders and pushed her up against a wall, after which he forced her to the ground where he penetrated her vagina with his penis. Soon after that act of intercourse the accused forced his penis into the complainant’s mouth.
When the complainant returned to the bus stop where B was waiting, according to B, because of the way the complainant looked, she asked the complainant what had happened. The complainant kept on saying nothing and started getting emotional. B said the complainant’s eyes started to “tear up” and the complainant could not look at her. B described the complainant as a little bit shaky.
The complainant and B returned to B’s home where, in B’s bedroom, B again asked the complainant what had happened. The complainant replied that she was raped and gave limited details. According to B, while the complainant was telling her what had happened she was shaking and crying and her voice was very shaky. B described the complainant as seeming to be “very upset, distraught sort of thing”.
At B’s suggestion the police were called and the complainant rang her mother. The complainant told her mother she had been raped. B’s father drove to the complainant’s home and took the complainant’s mother back to B’s home. In essence, according to the mother the complainant was hysterical and sobbing and the mother did not attempt to talk to the complainant about what had happened.
At the request of police, the complainant accompanied police to the school and indicated where the events had occurred. From the area of the school, police took the complainant to a medical practitioner for an examination. The medical practitioner observed a tender and bleeding 1.5cm tear at the posterior fourchette and a haematoma at the posterior part of the hymen which, in the opinion of the medical practitioner, were consistent with recent genital trauma caused by forceful penetration.
The complainant gave brief details of the events to the medical practitioner, but the Crown did not lead evidence of that conversation.
Following the medical examination, police took the complainant to a police station where a statement was taken from her. It appears that the call to police was made at 5.43pm and the taking of the statement commenced at about 9pm. In the interim, the events to which I have referred occurred. The taking of a statement by the police was the first reasonable opportunity for the complainant to relate in detail the events that occurred in the school yard. The interviewing officer said the complainant was upset during the interview, particularly when relating details of the sexual assault. The officer described the complainant as in shock.
Section 26E of the Evidence Act provides that in a proceeding in relation to a sexual offence, as an exception to the rule against hearsay evidence, the Court may admit evidence of a child’s statement to another person as evidence of the facts in issue if the Court considers the evidence is of “sufficient probative value as to justify its admission”. This provision has been considered by single Judges of this Court in R v Joyce (2005) 15 NTLR 134 and R v Wojtowicz (2005) 148 NTR 124.
During the special hearing, the Crown sought a ruling that the complainant’s statement to the police be admitted pursuant to s 26E. Counsel for the accused objected, but I ruled that the evidence was of sufficient probative value as to justify admission and determined that the statement would be admitted pursuant to s 26E. Subsequently, I reconsidered the question of admission of the statement pursuant to s 26E and heard further submissions. In particular, I reconsidered the question of the probative value of the statement against the background of previous statements by the complainant to B and her mother and in the light of the fact that the statement was made after the investigation was well underway. At the time I commenced that reassessment of the probative value, I did not have at my disposal details of the events that occurred after the phone calls to the complainant’s mother and police. The details to which I have referred were provided by the Crown during further submissions.
Having reconsidered the question of admissibility in the light of all the material now available to me, I remain of the view that evidence of the complainant’s statement to the police is of sufficient probative value as to justify its admission pursuant to s 26E. The statement came at the end of a sequence of events during which the complainant, a 13 year old child, was required to revisit the scene and undergo an intrusive medical examination. Throughout this period the complainant was distressed. The giving of the statement was the first reasonable opportunity given to the complainant to speak of the events in detail and it occurred approximately four hours after the relevant events.
The cross-examination of the complainant plainly advanced the primary defence of consent to an act of sexual intercourse. In that context, the combination of circumstances and the content of the statement, particularly the details of the critical events, endow the statement with significant probative value. It is reasonably contemporaneous with the incident in issue and, considered in the context of the sequence of events following that incident, the details provided are capable of significant probative value when regard is had to the type of statement that might be expected from a 13 year old child if the essential allegations of force and lack of consent are true.
I have given anxious consideration both to the question of probative value and to whether, having reached the view that the evidence is of sufficient probative value as to justify its admission, I should take the next step and exercise my discretion to admit the evidence. Counsel for the accused argued that there are dangers associated with this type of evidence and that the statement does not add anything to the earlier statements of the complainant to B and her mother. In essence, counsel contended that the complaint of rape is before the jury by reason of the earlier statements and the giving of the details in the statement to the police adds little.
The Crown did not seek to have the statements to B and the complainant’s mother admitted pursuant to S 26E. The jury will be instructed that those statements are relevant only to consistency of the complainant’s conduct and her credit. For the reasons I have given, I am satisfied that the statement possesses significant probative value. I have had regard to the possibility of fabrication by the complaint with the consequence that, as an investigation was underway, the making of the statement would amount to no more than a perpetuation of a falsehood in circumstances which would have made it extremely difficult for the complainant to retract a false allegation. That is a possibility to which the jury can be alerted.
I have also considered whether I should decline to admit the evidence because of the possibility that the jury will misuse the evidence in an unfair manner. I am of the view, however, that the evidence is of significant probative value and, with appropriate directions, there is little risk that the jury will misuse the evidence.
For these reasons, I have determined not only that the evidence is of sufficient probative value as to justify its admission, but that the evidence should be admitted and not excluded in the exercise of my discretion.

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