The State of Western Australia v Iab
[2014] WADC 93
•18 JULY 2014
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL
LOCATION: PERTH
CITATION: THE STATE OF WESTERN AUSTRALIA -v- IAB [2014] WADC 93
CORAM: BOWDEN DCJ
HEARD: 15 JULY 2014
DELIVERED : 18 JULY 2014
FILE NO/S: IND 214 of 2014
BETWEEN: THE STATE OF WESTERN AUSTRALIA
AND
IAB
Catchwords:
Application by the State to adduce propensity/relationship evidence - Leading questions during child witness interview
Legislation:
Evidence Act 1906
Result:
Application to adduce propensity/relationship evidence refused
Child witness interview ruled inadmissible as a result of leading questions
Representation:
Counsel:
The State of Western Australia : Mr M Hunter
Accused: Mr G Rodgers
Solicitors:
The State of Western Australia : State Director of Public Prosecutions
Accused: Slater & Gordon
Case(s) referred to in judgment(s):
Bunning v Cross (1978) 141 CLR 54
C v Minister of Community Welfare (1989) 52 SASR 304
Em v The Queen [2007] HCA 46
Mukevski v The State of Western Australia [2010] WASCA 138
R v Swaffiel; Pavic v The Queen (1998) 192 CLR 159
R v Warren (1994) 72 A Crim R 74
Re Application by JC [2010] ACTSC 134
SJX v The State of Western Australia [2010] WASCA 243
Tofilau v The Queen [2007] HCA 39; (2007) 231 CLR 396; (2007) 174 A Crim R 183
BOWDEN DCJ: The accused is charged with nine sexual offences allegedly committed against his two granddaughters.
Eight of the offences are alleged to have been committed against CJB and one against NBB.
The application
The State seeks to lead evidence that the accused gave NBB a book titled 'Cucumbers are Better than Men Because …' The book contains a total of 47 pages with various cartoon type drawings accompanied by supposedly humorous comments explaining why cucumbers are better company for females than men. Both the drawings and comments rely heavily on sexual innuendo.
Alternatively, the State seeks to lead evidence that the accused was present whilst the child was reading the book and/or drawing in it and failed to remove the book from the child.
The State also wishes to tender the book as an exhibit.
The application is opposed by the accused
The evidence in support of the State's application
All of the evidence the State rely upon to establish that the accused gave the book to NBB, or alternatively failed to remove the book from her, are contained in answers NBB gave during the child witness interview of 22 May 2014 (the interview).
Child witness interviews - The applicable law
In SJX v The State of Western Australia [2010] WASCA 243 (Buss JA) dealt extensively with the requirements of child witness interviews [66] – [93].
Buss JA pointed out that s 106HB of the Evidence Act 1906 permits one or more visually recorded interviews to be admitted as the whole or part of the evidence‑in‑chief of a child complainant [66].
Section 106HA(1) of the Evidence Act effectively means that the interview sought to be adduced as evidence pursuant to s 106HB is admissible only if the specified pre‑requisites are complied with. One of those pre‑requisites is that the manner in which the interview was conducted and recorded meets the prescribed requirements to the prescribed extent: s 106HA(1)(b) [77].
The Evidence (Visual Recording of Interviews with Children) Regulations provide the 'prescribed requirements and the prescribed extent' for the purpose of s 106HA(1)(b) [69], [87].
Those regulations provide as follows:
5. Prescribed requirements and the extent to which they are to be met — s. 106HA(1)(b)
For the purposes of section 106HA(1)(b) an interview meets the prescribed requirements if it was ‑
(a)conducted in such a manner that, as far as is practicable, statements made by the child in the interview were not elicited by the use of leading questions;
(b)where the child is under the age of 12 years, conducted in such a manner ‑
(i)that the child appears to understand that participating in the interview is a serious matter and that in giving the interview the child has an obligation to tell the truth; or
(ii)that it is apparent that the child has reached a level of cognitive development that enables the child to understand and respond rationally to questions and to give an intelligible account of his or her experiences;
and
(c)conducted or recorded in a manner that provides all, or most, of the following information ‑
(i)the date on which the recording was made;
(ii)the place at which the recording was made;
(iii)the identity of all persons who were present at any time during the interview; and
(iv)any breaks in the interview, the time the break commenced and concluded and the reasons for the break.
A leading question is a question which directly or indirectly suggests a desired answer or assumes the existence of a fact which is in dispute and has not been deposed to by the witness: SJX [82].
Buss AJA said, inter alia, that the object of the prescribed requirements that the interview is conducted in such a manner that statements made by the child were not elicited by the use of 'leading questions' 'as far as possible' is to ensure that the child's evidence in the visually recorded interview is based upon his or her real recollection and not upon:
(a)a false memory induced by suggested questions;
(b)an unconscious acceptance of the suggestion in a suggested question; or
(c)an assumption of facts in a question, which assumption has been or may be disputed by the relevant suspect or accused [88].
His honour pointed out that the prescribed requirement prohibits questions which are leading in substance rather than form and a question will not be leading in substance merely because:
(i)it suggests to the child the topic of an answer; or
(ii)it embodies material which the child has previously given in earlier answers or statements during the interview [89] – [90].
His Honour stated that it was necessary:
To examine the terms of the questions in the context in which it appears … a visually recorded interview will not be inadmissible merely because some of the child's evidence is elicited by questions that are leading in substance, if on an objective assessment of the interview as a whole reveals that the interviewer obtained answers or statements from the child, without resort to questions that were leading in substance to the extent that this could reasonably be done or was reasonably possible in all of the circumstances … [92].
If an objective assessment of the interview as a whole reveals that the manner in which the interview was conducted and recorded meets the 'prescribed requirements' to the 'prescribed extent' (and the other condition in s 106HA(1) is met) and in consequence the interview is admissible under s 106HB(1) the trial judge may nevertheless, pursuant to the power conferred by s 106HB(5)(a) excise from the visually recorded interview particular answers or statements elicited from the child by questions that were leading in substance [93].
The child witness interview of 22 May 2014
Before the child witness interview of 22 May 2014 is admissible it must be conducted in such a manner that as far as practicable the statements made by the complainant were not elicited by the use of leading questions.
Very sensibly the interviewers conducted a separate interview devoted solely to question's relating to the book, and all the evidence that the State intend to lead in chief from NBB (in relation to that book) is contained in that interview.
During that interview the interviewers established that the child knew she was to be interviewed about the book. The interview continued with the following questions and answers, inter alia, being asked (underlings added):
Q.Mm hm, okay. So tell me all about this book, what you know about this book? Tell me everything that you know about this book?
A.I'm not quite sure. I can't remember, like, anything that happened in the book.
…
Q.Okay. So this book is called Cucumbers Are Better Than Men Because, and this is a book that the investigators have got that we'd like to talk about today with you. So you said that you don't really remember this book?
A.Not really
(page 5)
…
Q.Okay. So tell me all about how you got this book?
A.I'm pretty sure my grandpa gave it to me.
Q.Mm hm?
A.I don't really know. I think I just picked up the book and started drawing in it.
Q.Mm hm, okay. So tell me all about Grandpa giving you this book?
A.I can't remember.
(page 6)
…
Q.Mm hm. Can you remember if any discussions were around with anyone about the book?
A.I think I just kept the book to myself and didn't tell anyone.
Q.Mm hm, okay. Did anyone know that you had the book?
A.I'm pretty sure my grandpa and auntie, as – I'm pretty sure I read it in my grandpa's shop while he was there.
Q.Mm hm. So tell me more about that?
A.About his shop?
Q.About when you wrote –
A.I'm pretty sure I was sitting on the – like, the table. Like, the table is here and the counter is here, sort of. And I was sitting there by myself, I'm pretty sure I was writing in it.
Q. Mm hm. And – coz I don't know what happened when you were writing in it, so tell me everything that you can remember when you said you were writing in it, that happened?
A.I'm not quite sure,
Q.Mm hm. So you were writing in the book in the shop? So tell me more about that?
A.I don't know.
Q.Mm hm, that's okay. And you mentioned your auntie, so tell me more about what was happening there?
A.I think they were looking after the shop.
Q.Mm hm?
A.And I was sitting in the back, just writing it.
Q.Mm hm, okay. And you mentioned that you got the book from Grandpa? Tell me more about how you got the book?
A.I'm not quite sure how I got it.
Q.Mm hm?
A.Cos it's ages ago when it happened, and I'm not quite sure when.
(page 7)
…
Q.All right. Is there any other things that you'd like to talk to me about about the book?
A.I can't really remember anything about it, just I remember writing in one of the books and that my mum took it off me.
(page 8)
…
L:Thank you for that. All right, so before we had a break, we were talking about the book that you said that Grandpa gave to you. All right, and you acknowledged that there was some writing in the book that you did. So what ‑ ‑tell me more about what was happening at the time when you did some of the writing in the book?
N:I'm not quite sure.
…
Q.Okay, all right. You mentioned that Grandpa gave you this book. Tell me, has there been a time when you've been drawing in the book where Grandpa has been around?
A.I'm pretty sure most of the time was just me just sitting there by myself.
Q.Mm hm. So tell me more about where you were by yourself?
A.Well, the only one that I really remember was in the shop.
Q.Mm hm. And so is that what you just talked to me previously about, when your auntie was there?
A.Yeah.
Q.Okay. And where was Grandpa?
A.He was at the front counter too, helping out someone.
(page 9)
…
Q.Mm hm, okay. So what was Grandpa doing while you were drawing in the book?
A.Helping someone out, out at the counter.
Q.Mm hm. And then what happened?
A.Nothing really. He just kept helping out people, cos it was really busy that day.
(page 10)
…
Q.Had Granddad ‑ ‑Grandpa seen any of your drawings in the book?
A.I'm not quite sure.
…
Q.Mm hm, okay. Tell me about – you said that Grandpa gave you the book. Tell me, when did he give you this book?
A.I'm not quite sure what the date was or what age I was.
Q.Mm hm. So tell me about what happened when he gave you this book?
A.I think I just left it up in the cubbyhouse for a bit, and ‑ ‑yeah. I'm not quite sure what ‑ ‑yeah.
Q.Mm hm. So where were you when he gave you this book?
A.I think in his shop.
Q.Mm hm?
A.Either there or at his house.
Q.Okay. Can you remember anything that happened when he gave you the book?
A.Not really.
(page 11)
The State suggests that by the following answers the child was acknowledging that the grandfather gave her the book:
1.'… pretty sure my grandpa gave it to me' (page 6).
2.'I am not quite sure what the date was or what age I was.' When asked, 'tell me when did he give you the book' (page 11).
3.'I think I just left it up in the cubby house for a bit and … yeah. I am not quite sure what – yeah. 'When asked, 'So tell me about what happened when he gave you this book? (page 11).
4.'I think in his shop' … 'Either there or at his house'. When asked, '… so where were you when he gave you this book? (page 11).
5'Not really.' When asked, 'Okay can you remember anything that happened when he gave you the book' (page 11).
As can be seen the child's response (to a non‑leading question) that she was '… pretty sure my grandpa gave it to me' was qualified immediately with the statement 'I don't really know. I think I just picked up the book and started drawing in it'. Then when asked to 'tell all about grandpa giving her the book' she replied, 'I cannot remember' and when asked to 'tell more about how she got the book' she replied she was 'not quite sure'.
The true substance and context of those answers is that the complainant was not sure whether her grandfather gave her the book.
Having received those answers the interviewers were at liberty to remind the complainant of the importance of the issue and ask her to think carefully about it and to clarify whether she could recall her grandfather giving her the book. Instead they put to her on five more occasions [page 9 (twice), page 11 (three times)] that she said grandpa gave her the book. This was not the substance of her answers nor was it a fair representation of her answer.
There are cases where leading questions have been allowed to draw the child's attention to a particular matter and, then when the child has given detailed information going extensively beyond anything which had been put to the child, those leading questions have been permitted: Re an Application by JC [2010] ACTSC 134.
This is not one of those cases.
In R v Warren (1994) 72 A Crim R 74, 83 attention was drawn to the dangers of contaminating the evidence of [in that case] very young children by suggestions made to them in the course of an interrogation.
In C v Minister of Community Welfare (1989) 52 SASR 304 it was stated that:
… effort should be made to ensure that investigators who are engaged in this type of work, whether they are members of the police force, the medical profession or social welfare professionals quickly come to understand that a child's answers to suggested questions may in appropriate cases be found wanting and lacking any probative value. Every effort should be made to avoid obtaining answers from a child by encouragement, offers of reward or threats and in no circumstances should word or thought associations be planted in the child's mind …
The responses in 2, 3, 4, and 5 above were elicited after the child said she did not really know or was not sure know how she got the book and after the interviewer had continually misstated that she said grandpa gave her the book.
This consistently re-enforcing to the child that grandpa had given her the book when the true substance of her answer was that she did not really know how she got the book is unfair. She had told the police on two occasions that she was not quite sure how she got the book (pages 6, 7).
The leading question is fraught with the dangers of suggestibility.
There is no doubt that interviewers have a difficult job interviewing young children who allege they have been the subject of sexual abuse. The child in this case was 14 years of age.
It is clear that the legislation envisages some leading questions will be asked. It is always a fine line between an interviewer exercising their skills to elicit as much information as they can possibly can and not transgressing the legislative requirement that as far as practicable the statements made by the complainant are not elicited by the use of leading questions.
In this case where the child had effectively told the interviewer that she did not really know how she got the book and was not quite sure how she got it, the interviewer's action in continuing to put to the child that she said that grandfather had given her the book, was impermissible and the answer at 2, 3, 4 and 5 above breach the Evidence (Visual Recording of Interviews with Children) Regulations and therefore the interview was not conducted in accordance s 106HA(1) of the Evidence Act and I would exclude the questions and answers referred to. As the only reason the State seek to lead that interview is for those answers the entire interview is excluded.
If the answers made by the child complainant were not obtained in breach of s 106HA(1), s 106 HB(5)(a) permits a judge to excise matters from the interview as he thinks fit. I would exercise the five questions and answers I have referred on the basis that it is unfair to the accused to use the answers considering the manner the interview was conducted applying the common law principals applicable to the exclusion of evidence: R v Swaffiel; Pavic v The Queen (1998) 192 CLR 159 and Tofilau v The Queen [2007] HCA 39; (2007) 231 CLR 396; (2007) 174 A Crim R 183.
In examining the question of whether it is unfair to the accused to use the evidence against him, the unfairness discretion is primary concerned with the accused's ability to obtain a fair trial, and it does not directly involve the question of whether others have acted unfairly.
The factors to consider in exercising this discretion cannot be developed in the abstract but take their meaning from the circumstances of the case: Bunning v Cross (1978) 141 CLR 54; Mukevski v The State of Western Australia [2010] WASCA 138 [22].
These factors involving considering whether the reliability of the evidence was affected by the means in which it was obtained, the probative value of the evidence, the seriousness of the offence, whether it was obtained by any deliberate or recklessly unfair conduct, how easy it would have been to avoid the breach and other circumstances relevant to the case.
Whether the reliability of the evidence is affected, plays an important part in considering the exercise of this discretion, however it is not the exclusive factor: Em v The Queen [2007] HCA 46. I consider the evidence's reliability, may well have been affected. There is a real danger that the child's answers (2 – 5 above) have been affected by the constant suggestion that she had said her grandfather gave her the book. This is a matter of considerable significance which favours the exclusion of the evidence.
I accept the probative force of the evidence is high. By this evidence, the State seek to show the accused held the inappropriate view that material containing sexual innuendo was suitable to be given to his 14‑year‑old granddaughter and thereby has shown he had a sexual interest in the child. It is an important part of the State's circumstantial case against the accused.
The offence is a serious offence. That increases the need for interviewing officers to ensure that the child complainant is not subject to suggestibility during the course of questioning.
For reasons expressed in [32] above, I am satisfied the evidence was not obtained by any deliberate or recklessly improper conduct on behalf of the interviewers. However, they were in control of the interview and could have proceeded differently by clarifying the issue as soon as the child said her grandfather gave her the book and then said that she did not really know how she got the book and thought she had just picked it up and later said she was not quite sure how she got the book. All the alarm bells should have been ringing in the interviewer's mind by that time.
I am satisfied that it is unfair to the accused to enable those questions and answers to remain and once they are removed the evidentiary value of the child witness interview is negligible and if I had not ruled it inadmissible I would exercise my unfairness discretion and not permit it to be led.
As to the State's alternate position, that is, that the accused was aware his granddaughter was either reading the book and/or drawing in it but took no action to take the book from her, the evidence establishes that when the child was asked did anyone know that you had the book, she replied 'I'm pretty sure my grandpa and auntie, as – I'm pretty sure I read it in my grandpa's shop while he was there' (page 7).
That answer is incapable of establishing that the grandfather therefore knew that she had the book and was either reading it or making entries to it. It simply means what it says that they were in the shop while she was in the shop.
The child continued to say '… I was sitting there by myself I'm pretty sure I was writing in it' (page 7) and when asked whether grandpa had been around she replied 'I'm pretty sure most of the time was just me sitting there by myself '(page 9). When asked where grandpa was she replied 'He was at the front counter too helping out someone' (page 9). She continued to say 'I was just sitting there by myself and I am pretty sure I got bored of sitting there so I decided to write in the book' (page 9). When asked what was grandpa doing while you were drawing in the book she replied 'Helping somebody out, out at the counter … He just kept helping out people, cos it was really busy that day' (page 10). And in response to the question 'Had granddad seen any of your drawings in the book' she replied 'I'm not quite sure' (page 11).
The child's answers are incapable as a matter of law of establishing that the grandfather saw her with the book or knew that she was reading it or drawing in it and knew it was the book in question and failed to take any steps to remove the book from her. I have viewed the interview and there is nothing in any hand or facial gestures by the child which remotely assists the State's arguments.
Whilst there were no leading questions asked of the child in relation to this issue, the answers given by the child are simply incapable of establishing at law the proposition suggested by the State.
For the sake of completeness, if the evidence of the complainant established that the grandfather had given her the book then that would be conduct falling within the definition of propensity evidence within s 31A of the Evidence Act.
The principles relating to s 31A applications are well known and need not be repeated by me.
It would be evidence of probative value as the book is based on so called humorous sexual innuendo and is capable of being used by a jury to demonstrate that the accused held the inappropriate view that material containing sexual innuendo was suitable to be given to his 14‑year‑old granddaughter.
I would also hold the evidence has significant probative value as finding that the accused held the inappropriate view that material containing sexual innuendo was suitable to be given to his 14‑year‑old granddaughter is also capable of establishing that the accused has a sexual interest in the child, and in a case allegedly sexual impropriety against a child establishing that interest is a matter that has significant probative value.
As to whether the probative value of the evidence compared to the degree of risk of an unfair trial is such that fair-minded persons would think that the public interest in adducing all relevant evidence should take priority over the risk of an unfair trial and I would have found that any risk of an unfair trial could be cured by appropriate judicial direction and that fair minded people would think the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial.
If the evidence established that the accused whilst aware the child was reading or drawing in the book failed to remove it from the child that would be propensity evidence.
Whilst it may be evidence of some probative value I would not consider it to be of significant probative value to any issue at the trial and would in any event consider that fair‑minded people would think the risk of an unfair trial must have priority over the public interest in adducing all relevant evidence of guilt and exclude the evidence.
For the reasons expressed I would not permit the State to lead the propensity evidence and that effectively excludes them from leading the child witness interview of 22 May 2014.
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