The Queen v PW (No 2) - [2015] ACTSC 92

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	The Queen v PW (No 2)
Citation:	[2015] ACTSC 92
Hearing Date(s):	7-13 April 2015
DecisionDate:	9 April 2015
Before:	Refshauge J
Decision:	The application to admit the evidence of Senior Constable Leonard’s conversation with MB is refused.
Category:	Principal Judgment
Catchwords:	CRIMINAL LAW – PRACTICE AND PROCEDURE – Trial – Act of indecency on a person under the age of 10 years – Hearsay – Second hand hearsay – Prior inconsistent statement
Legislation Cited:	Crimes Act 1900 (ACT), s 61(1) Evidence Act 2011 (ACT), ss 43, 55, 56, 59, 60, 66, 81, Pt 3.2
Cases Cited:	Bai v Hammond [2013] ACTSC 275 Lee v The Queen (1998) 195 CLR 594 Mulcahy v The Queen [2012] ACTCA 3 Tasmania v B (No 2) [2012] TASSC 39 The Queen v PW [2014] ACTSC 121
Texts Cited:	Stephen Odgers SC says in Uniform Evidence Law (Thompson Reuters; Sydney, 2014) 11^th ed Australian Law Reform Commission, Uniform Evidence Law (ALRC: Sydney, 2005) Report No 102
Parties:	The Queen (Crown) PW (Accused)
Representation:	Counsel Mr M Fernandez (Crown) Mr J Pappas (Accused)
Solicitors ACT Director of Public Prosecutions (Crown) Ben Aulich and Associates (Accused)
File Number(s):	SCC 208 of 2013

Refshauge J:

In September 2012, the complainant in these proceedings, whom I shall call JB, made a disclosure to her mother that the accused, PW, had touched her vagina over her clothes on a number of occasions. As a result, PW was charged with two counts of committing an act of indecency on her, contrary to s 61(1) of the Crimes Act 1900 (ACT).

His trial before me and a jury commenced on 7 April 2015. During the cross‑examination of the informant, Detective Senior Constable Stephanie Leonard, PW’s counsel, Mr J Pappas, asked some questions about statements that had been made to her by JB's brother, whom I shall call MB, when Detective Senior Constable Leonard interviewed him during her investigation of this case. In particular, the police officer's attention was drawn to the following passages:

Qu 17: Yep, tell me all about Harry’s mum.
A:Um, Janine is his actual mum and wait – Janine’s actually his stepmum as well but, um, and – we, every time we went there, me and JB – JB might have a play date there and the last time – the last time I went there I, I made a chocolate cake and I went to the pool.
Qu 18:Okay. Tell me more about that.
A:And at the pool, PW was – at the pool PW was in there as well and he was swimming under water and touched his rude bit – touched her rude bit.
Qu 19: Okay. And did you see him touch her rude bit in the pool?
A:Um, no.
Qu 20:So how do you know he touched her rude bit?
A:Um because my sister told me.

Reference to matters on which Mr Pappas also relied were contained in the answers that MB…

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 The Queen v PW (No 2)

Details

AGLC: The Queen v PW (No 2) [2015] ACTSC 92
Case: [2015] ACTSC 92
Decision Date: 9 April 2015

CaseChat Overview and Summary

The Queen brought a prosecution against PW in the County Court of Victoria. PW was charged with an act of indecency on a person under the age of 10 years. The case was heard by Judge Harper. The prosecution sought to admit hearsay evidence of a conversation between Senior Constable Leonard and MB, the child complainant, in the form of a second-hand hearsay statement. PW objected to the admission of this evidence on the basis that it was inadmissible hearsay and unreliable. The court was required to determine whether the evidence was admissible and, if so, whether it was reliable enough to be considered by the jury.

The court considered the nature and purpose of the hearsay evidence and assessed its probative value against the prejudicial effect it may have on the defendant. The court also considered the reliability of the evidence, including the credibility of Senior Constable Leonard and the circumstances in which the statement was made. The court noted that the statement was a second-hand hearsay statement and that there was no opportunity for cross-examination of MB. The court concluded that the probative value of the evidence was outweighed by its prejudicial effect and that the evidence was unreliable due to the lack of opportunity for cross-examination. The court also considered the importance of protecting the welfare of child victims of sexual offences and the potential for the evidence to cause further harm to the complainant.

The court refused the application to admit the evidence of Senior Constable Leonard’s conversation with MB. The court found that the evidence was inadmissible hearsay and unreliable, and that its admission would be unfair to the defendant. The court also found that the evidence was not necessary for the fair administration of justice and that its exclusion would not result in a miscarriage of justice. The court ordered that the evidence be excluded from the trial.

Orders

Orders of the court

The application to admit the evidence of Senior Constable Leonard’s conversation with MB is refused.

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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