The State of Western Australia v MRB - [2017] WADC 167

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL

LOCATION: PERTH

CITATION: THE STATE OF WESTERN AUSTRALIA -v- MRB [2017] WADC 167

CORAM: LONSDALE DCJ

HEARD: 8 NOVEMBER 2017

DELIVERED : 22 DECEMBER 2017

FILE NO/S: IND 1316 of 2017

BETWEEN: THE STATE OF WESTERN AUSTRALIA
AND
MRB

Catchwords:

Application to exclude visually recorded interview of child complainant - Application to exclude accused's electronic record of interview - Admissibility of CCTV footage - Application under s 36BC of the Evidence Act 1906 (WA) - Application to exclude CCTV footage of accused refused

Legislation:

Criminal Investigation Act 2006 (WA) s 118
Evidence Act 1906 (WA) s 36BC, s 36BC(1), s 106HA(1)(b)
Evidence (Visually Recording of Interview with Children) Regulations 2004 (WA) reg 5

Result:

Application to exclude visually recorded interview of complainant refused
Application to exclude accused's electronic record of interview refused
Application to exclude CCTV footage of accused refused
Application for leave under s 36BC of the Evidence Act 1906 (WA) refused

Representation:

Counsel:

Applicant: Ms T Tan
Defendant: Mr P Sullivan

Solicitors:

Applicant: Director of Public Prosecutions
Defendant: Paul Sullivan

Case(s) referred to in judgment(s):

Mahmood v State of Western Australia (2008) 232 CLR 397
Middleton v The Queen (1998) 19 WAR 179
Mule v The Queen (2005) 79 ALJR 1573
R v Soma (2003) 212 CLR 299
Ritchie v The State of Western Australia [2016] WASCA 134
SJX v The State of Western Australia [2010] WASCA 243

LONSDALE DCJ: The accused is charged on indictment 1316 of 2017 with two counts of sexually penetrating the complainant (ARSB), a child under the age of 13 years by engaging in cunnilingus (count 1) and engaging in fellatio (count 2) on a date unknown between 30 September 2015 and 1 August 2016. Both offences are said to have occurred when the complainant was only 5 or 6 years of age.
The complainant was interviewed on 11 January 2017 and the interview was recorded pursuant to the provisions of s 106HA(1)(b) of the Evidence Act 1906 (WA) and reg 5 of the Evidence (Visual Recording of Interview with Children) Regulations 2004 (WA). The State intends to rely on the visually recorded interview (the VRI) as at least part of the evidence‑in‑chief of ARSB.
The accused was interviewed by police on 18 January 2017 at the Rockingham Police Station and that interview was recorded. The accused denied the offending but made a number of admissions against interest. The State intends to play the electronic record of interview (the EROI) at the trial.
After the completion of the EROI, police at the Rockingham Police Station advised the accused that he would be charged. In the charge room, the accused said a number of things to police at the police station which were recorded on CCTV and which the State submits contains admissions against interest (the CCTV recording). The State intends to play an edited version of that recording at the trial.

The accused's application

The accused has made an application seeking rulings as to:
1.the admissibility of the VRI of 11 January 2017;
2.editing of the EROI of 18 January 2017;
3.the admissibility of the CCTV footage of the lockup on 18 January 2017; and
4.whether leave under s 36BC of the Evidence Act should be granted to permit cross‑examination of the complainant's mother, AB, to the effect that the complainant had told AB that she had been sexually abused by another person, namely a male babysitter.

Admissibility of the VRI

The defence submits that the VRI should be ruled inadmissible on the grounds of unfairness because the interviewer misled the complainant, asked questions that were confusing, asked questions which were leading and/or introduced hearsay.

Alleged misstatement of child's evidence

It is submitted that the child witness interviewer misstated the account of events given by the complainant on several occasions during the interview.
For example, the complainant had said early in the interview: '[MRB] let me, um, drink from his doodle'[1] (emphasis added) whereas later the interviewer said:
So you said that [MRB] made (emphasis added) you suck from his doodle, so tell me more about that part … I don't know what you mean when you say that [MRB] made you suck from his doodle, so you have to explain to me what you mean'.[2]
[1] Page 4 VRI
[2] Page 6 and 7 VRI
The complainant answered 'I mean he let me, um, like, touch his doodle and then lick it'.[3]
[3] Pages 7 VRI
Counsel for the accused cited similar examples of the interviewer using the word 'made' as opposed to the child's use of the word 'let'.[4]
[4] Eg: pages 7 and 8 VRI
The defence submits that the fact that the interviewer misstated what the child had said would make it unduly prejudicial to the accused.
It is clear to me that the child did not adopt what was being put to her by the interviewer. In this respect it could hardly be said that the child was misled into adopting the interviewer's suggestions. In any event, it is the answers to the questions and not the questions which is the evidence. The jury will be directed accordingly and so any prejudicial effect of the questions misstating the evidence will be neutralised. Further, it is difficult to see what prejudicial effect there could be from the interviewer's use of the word 'made' rather than 'let'.
In my view, there is nothing in these questions which would result in unfairness to the accused. I would refuse the application on this point.

Objection to questions that are confusing

On behalf of the accused it was submitted that there were questions asked of the complainant which were confusing such as where, for example, the interviewer asked (page 11 VRI):
Q:… you also said that there was a time when [MRB] let you touch his doodle and lick it and a time when [MRB] – when you pulled down your pants and then [MRB] licked your bottom. Was that the same time? Was that the same time as he – as you drank from his doodle?
A:No.
Q:- or was that a different time?
A:A different time.
Q:Okay tell me about that different time, then. What happened?
And at page 12:
Q:No? Okay. So there was just one time when you were in the couch watching TV with [MRB] and that.
A:[Indistinct]
Q:[Y]ou drank from his doodle and he drank from your bottom?
And at page 13:
Q:And then you said there was a different time that you were in the shed and you were playing games. You were playing football and soccer, and you said something else happened that time.
A:It was on the PlayStation, not, um, real.
The State submitted that the interviewer understood the complainant to be describing two separate incidents in which a total of four offences occurred. The State's case however is that the complainant alleges only one incident involving two offences. For that reason, the State submitted, it has charged the accused with only the two offences said to have been committed on the one occasion.
The fact that the interviewer may have been mistaken or confused would not render the recording inadmissible unless it might result in some prejudice or unfairness to the accused. In my view, there is nothing confusing in the questioning said to be objectionable. If there is any confusion, it can easily be clarified by way of evidence‑in‑chief or be the subject of cross‑examination of the complainant. Again, as for the objections relating to the asserted misstatements by the interviewer, it is the answers to the questions and not the evidence themselves which are critical.
I decline to uphold the accused's objection on this basis.

Hearsay evidence and leading questions

The defence further submit that the interviewer introduces 'hearsay' evidence which is inadmissible.
The sole item of objection under this heading is that the interviewer puts to the complainant 'I heard that when you were talking with dad you told him that you drank yucky stuff. Did you tell dad that you drank yucky stuff?'[5]
[5] Page 14 VRI
The State does not intend to rely on what the complainant told her parents as recent complaint, and accepts that the question was leading.
In my view, the question can be excised from the recording without the whole recording being ruled inadmissible.
The accused submits that questions on pages 20 ‑ 22 of the VRI are leading but fails to articulate his reasons for saying so. My view is they are not leading.[6]
[6] SJX v The State of Western Australia [2010] WASCA 243 [88] – [92]

Admissibility of CCTV footage

As at the time of the directions hearing, the State had suggested a number of proposed edits to the CCTV footage.
At the commencement of the hearing, the accused's counsel indicated that he agreed with the proposed edits but maintained his objection to the playing of the CCTV footage. During argument, I raised with counsel the question of whether what would remain contained material which was in fact exculpatory of the accused.
For example, the CCTV footage revealed the accused giving the following explanation:
[P]robably should have said this before, yeah, fucking, oh, and she was pulling her pants down and shit. She'd lay back on the couch. She'd put her legs up in the air like that, like, saying do something or, or lick me or shit like that. I don't know where the hell she's got all that shit from, but, probably maybe walking in on her mother and dad or, or something like that.[7]
[7] Ts page 2 CCTV footage
Arguably what is said by the accused here may provide a possible explanation for how the (very young) complainant may have been able to describe the sexual acts contained in her VRI (in the absence of having been sexually abused by the accused). What seems to have been suggested is that the complainant has witnessed sexual acts in others and is conflating those observations with her experiences with the accused.
Counsel then abandoned the application for the edited CCTV footage to be excluded.
In any event, it is my view that (once the edits proposed by the State are made) the recording, to the extent that it contains some admissions against interest, is admissible as part of the State case. There is no suggestion of a breach of s 118 of the Criminal Investigation Act 2006 as those admissions were captured audio‑visually.
There is no basis to exclude the recordings on the basis of the residual unfairness discretion for the following reasons:
(a)The accused had already received a caution during the electronic interview with police and was aware of his rights.
(b)Once the accused started speaking to police in the charge room, the police advised him that he was being recorded and reminded him of the caution which had been given earlier.[8]
(c)It was apparent that the accused acknowledged that he was being recorded but nevertheless chose to speak about the allegations.[9]
[8] Transcript at brief page 57
[9] Transcript at brief pages 57 ‑ 59
I would refuse an application to have the CCTV footage excluded.

Application Pursuant s 36BC of the Evidence Act 1906

Counsel for the accused seeks leave to cross‑examine the mother of the complainant to the effect that she was aware of the complainant having been sexually abused by another person, namely a male babysitter.
Counsel for the accused intimated that the information that the complainant had been sexually abused by the babysitter had come from the complainant who had told her mother. Counsel specifically disavows any intention to cross‑examine the complainant, citing a wish not to cause her unnecessary distress. Counsel however seeks to put that suggestion to her mother.
There is a more fundamental issue at play than s 36BC of the Evidence Act. The evidence that the accused's counsel is proposing to lead, namely evidence from the complainant's mother that the complainant had said she was sexually abused by another, is hearsay and inadmissible on that basis alone.
Further, I would doubt that questioning of the complainant herself on the subject of sexual abuse by another would satisfy a basic relevance test, let alone the 'significant probative value' test set out under s 36BC of the Evidence Act.
The application on that ground is refused.

The EROI with the Accused

Prior to the hearing the State proposed a number of edits to the accused's electronic record of interview. Save for one portion of the proposed edits, the defence is in agreement.
The State submits that if I ruled against the accused on the application under s 36BC it should be permitted to play the EROI with the agreed edit but that it should also be permitted to excise the following portion of the EROI at pages 46 ‑ 47:
A/SGT PHILLIPS:      Why don't you have anything to say about it? You said that, you just said I've got nothing to say about it; why?
MRB:Because I can't explain it 'cause it didn't happen.
A/SGT PHILLIPS:      It didn't happen?
MRB:I know these, these accusations [indistinct] ah, one of the other babysitters was accused of the same thing, so I dunno. It's like, what are they trying to do.
A/SGT PHILLIPS:      When was that?
MRB:I, probably about a year I think, maybe, before I was there. They were going on about this other dude, [the babysitter], that was living there and touched her as well [indistinct] but I don't know if anything's come out of that. I ‑ ‑ ‑
S/CON TINSLEY:      Who, who said that to you?
MRB:ARSB.
S/CON TINSLEY:      And when did ARSB tell you that?
MRB:Um, oh, just, like, in the afternoon, after work and stuff, and we were just having an afternoon chat sitting down.
S/CON TINSLEY:      Mmhmm.
MRB:Having a cigarette and stuff like that. Yeah.
S/CON TINSLEY:      Yep. So it was while you were living there and, and looking after the, the children?
MRB:Yeah. She w-, just happened to tell me that. And I’m, like, what [indistinct]
S/CON TINSLEY:      And what'd she tell you?
MRB:That, um, this dude, um, [the babysitter], touched her [indistinct] did whatever [indistinct] sounds like all this stuff.
S/CON TINSLEY:      Is that what ARSB said to you?
MRB:Yeah.
S/CON TINSLEY:      [indistinct] because [AB] specifically said [MRB], okay ‑ ‑ ‑
MRB:Yeah.
S/CON TINSLEY:      During the interview.
MRB:Obviously I know that, but ‑ ‑ ‑
S/CON TINSLEY:      Yeah. Yeah. And she, during the interview, ah, [AB] said that it was [MRB], who used to live in the shed ‑ ‑ ‑
MRB:Yep.
S/CON TINSLEY:      At our place.
MRB:Yep.
The disputed portion of the EROI contains the very material which had formed the basis of the accused's application under s 36 BC of the Evidence Act which I have just refused. However, the question of whether the State is permitted to excise that material in the absence of the express agreement of the accused is subject to a different test.
It is accepted that the disputed portion of the interview would not ordinarily be admissible in evidence. Not only would the evidence be hearsay but it would fail a test of relevance.
However, I do not accept the State's assertion that the evidence is inadmissible by reason of s 36BC of the Evidence Act. That is because s 36BC limits the ability of the accused to adduce that evidence. The State is not bound by the same restrictions.
Relevantly, s 36BC(1) provides:
In proceedings for a sexual offence, evidence relating to the sexual experiences of the complainant … shall not be adduced or elicited by or on behalf of an accused unless leave of the court has first been obtained on application made in the absence of the jury (if any). (emphasis added)
The question of whether otherwise inadmissible material in the form of exculpatory and self-serving statements made in the course of a video record of interview with police was considered in Middleton v The Queen (1998) 19 WAR 179.
In that case it was accepted that self-serving statements would ordinarily be inadmissible. However, the court held that if those self‑serving statements appeared together with inculpatory statements, they could be admissible as forming part of a 'mixed statement'.
Pigeon J said [182]:
The first elementary exception is admissions by the accused person which can, at the option of the prosecution, be led by the prosecution. However, an admission will often be accompanied by an explanation and other exonerating and exculpatory material. In that sense it becomes a 'mixed' statement. The general rule in the case of a mixed statement is that the whole of the confession must be given in evidence, including parts favourable to the accused person.
The principle referred to in Middleton was affirmed in Ritchie v The State of Western Australia [2016] WASCA 134 where McLure P said [39]:
Second, binding authority in this State is to the effect that it is a matter for the prosecution to determine whether or not it wishes to adduce as part of its case an admissible out of court statement made by an accused: Middleton v The Queen (1998) 19 WAR 179, 188, 202, Willis v The Queen [2001] WASCA 296 [101], [106], [134] and Peck v The State of Western Australia [2005] WASCA 20 [71]. That is, the prosecution is not bound to tender an admissible out of court statement made by an accused, including a mixed statement. That is consistent with the law in Queensland (R v Callaghan [1994] 2 Qd R 300, 304) and South Australia (Barry v Police (SA) (2009) 197 A Crim R 445).
What emerges from these cases, relevant to the present context, is that the State may or may not choose to play an EROI with the accused. If it does, it cannot pick and choose what parts to adduce (unless it has the agreement of the accused).
What is said in Middleton and Ritchie is also consistent with what has been said in the High Court in relation to 'mixed statements'.[10]
[10] Mahmood v State of Western Australia (2008) 232 CLR 397 (HayneJ); R v Soma (2003) 212 CLR 299 [31]
I decline to order that the State be permitted to excise the portions of the EROI at pages 46 ‑ 47.
Whilst I have determined that the prosecution is not at liberty to edit the record of interview (in the absence of agreement by the accused) if it chooses to play it, the question of what weight, if any, is given to the disputed portion is another matter. Given the hearsay nature of the assertions and their questionable relevance, it is my view that the jury will need to receive some directions as to the use which can be made of the evidence. That is ultimately a matter for the trial Judge.[11]
[11] Mule v The Queen (2005) 79 ALJR 1573 [1579] (Gleeson CJ, McHugh, Gummow, Hayne and Heydon JJ)
The State's application to edit the portions of the video at pages 46 ‑ 47 is refused.
The remainder of the proposed edits are being made by consent so I do not need to make any ruling in respect of those.