Some parts of two prosecution witness statements ruled inadmissible

Akerman v The State of Western Australia [2021] WASCA 51

Azarian v The State of Western Australia [2007] WASCA 249

DS v The State of Western Australia [2008] WASCA 182

MNA v The State of Western Australia [2020] WASCA 84

Roberts v The Queen [2001] WASCA 191

SPW v The State of Western Australia [2012] WASCA 41

Suresh v The Queen [1998] HCA 23; (1998) 153 ALR 145

1. The accused, PRF is charged with seven offences of indecent dealing with a child under the age of 13 years.
2. The child the subject of all seven charges is LG.
3. The seven offences are alleged to have occurred between 15 February 2014 and 28 April 2019 at Esperance at PRF'S rural property.
4. PRF is the paternal grandfather of the child complainant LG.
5. The indictment is listed for trial in the Perth District Court on 5 February 2025. At this stage the evidence of the child complainant is to be given at the trial and not pre-recorded.
6. The child complainant was born in 2009 and it is alleged that when the offences occurred, she was between the ages of 5 and 10 years of age.
7. The child complainant first disclosed the offences to her maternal grandmother TD on 5 May 2019 and a short time later to her mother. The child complainant was subsequently interviewed on 16 May 2019.
8. The child complainant's mother is RM.
9. As part of the prosecution case the State intends calling TD. TD made a statement to the police dated 13 June 2019.
10. As part of the prosecution case the State intends calling RM. RM made a statement to the police dated 14 June 2019.
11. PRF objects to the admissibility of some of the evidence contained in the witness statements of TD and RM.
12. The objections are based on submissions generally that the evidence should not be admitted as it is not:

(a) recent complainant evidence and was not voluntarily made by the child at the time; and

(b) evidence of distress by the child complainant which was viewed proximate to the alleged sexual offences.

1. In relation to the challenges to admissibility of evidence, PRF has filed submissions dated 23 September 2024, the State submissions dated 7 November 2024 and PRF's reply submissions dated 18 November 2024.
2. At the hearing before me on 25 November 2024 the State prosecutor advised that the recent complaint and the distress observations from the evidence of TD only relates to the offence the subject of count 7.
3. The count 7 offence is alleged to have occurred in Esperance between 13 April 2019 and 28 April 2019 when it is alleged PRF touched the child's vagina with his fingers when they were in the child's uncle's work caravan at the PRF's property. The child then complained to TD on 5 May 2019 when the child was at home with her mother in a suburb of Perth.
4. The prosecutor advised at the hearing on 25 November 2024 that the State will not rely on any evidence of observations by TD and RM of change of behaviour of the child. The evidence of their observations would be limited to observations of the distress of the child at the time the child complained to them on 5 May 2019.
5. The law in relation to the admissibility of recent complainant evidence was summarised by Miller JA in Azarian v The State of Western Australia [2007] WASCA 249 [119] - [120] and Derrick J in MNA v The State of Western Australia [2020] WASCA 84 [118].
6. To constitute recent complaint evidence the complaint does not have to be made immediately but as speedily as could reasonably be expected. Consideration therefore needs to be given as to time between the sexual acts and when the complaint was made but also the subjective circumstances of the complainant. See SPW v The State of Western Australia [2012] WASCA 41 [49].
7. The law in relation to distress evidence being evidence of observations of a witness of the complainant when the complaint was made was summarised by Miller JA in Azarian v The State of Western Australia [44] - [50], [155] and by Vaughan JA in Akerman v The State of Western Australia [2021] WASCA 51 [62].

1. When the child made the complaint to TD and she observed some distress from the child, it was approximately 2 - 3 weeks after the count 7 offence allegedly occurred. In relation to cases involving complaints by children of sexual offences this is a relatively short duration.
2. The complaint was made after the child had returned from PRF's property in Esperance where she was staying with him and was at home with her mother in a suburb in the Perth metropolitan area.
3. When the behaviour was observed and the complaint was made to her maternal grandmother, TD, the child was only 10 years old.
4. The child had been sexually abused by her maternal grandfather at his home when she was staying with him. It is most likely the child would have had trust and confidence in him and would generally be reluctant to complain against him.
5. When I consider the above factors, I am satisfied the complaint made and the distress observed were recent.
6. The trial judge will also be required to give directions to the jury as to the distress and recent complaint evidence. It is still a matter for the jury to determine whether the evidence is in fact a complaint and distress relating to the sexual act alleged.
7. Given the age of the child, the fact TD was her maternal grandmother and the behaviour she observed from the child, I am not satisfied the evidence of recent complaint should be excluded on the basis it was involuntarily, induced or the child was intimidated at the time.
8. TD was entitled to make some enquiry and question the child as to her behaviour and 'what was going on'.
9. The evidence passes the test for admissibility referred to by Miller JA in DS v The State of Western Australia [2008] WASCA 182 [30]; Miller JA in Roberts v The Queen [2001] WASCA 191 [25] - [28] and Kirby J in Suresh v The Queen [1998] HCA 23; (1998) 153 ALR 145 [5], [31], in particular, as the child was 10 years old at the time.
10. I rule pars 13 - 34 and 41 of TD's witness statement dated 13 June 2019 is admissible evidence as recent complaint and distress evidence.
11. I rule pars 40 and 42 - 44 of TD's witness statement dated 13 June 2019 is inadmissible evidence. This evidence does not disclose, that TD received the complaints of other incidents of sexual acts by PRF with the child in close proximity in time, to when those incidents occurred.

1. The State prosecutor at the hearing before me on 25 November 2024 confirmed the State will not rely upon the evidence contained in pars 7 - 11, 22 and 47 - 49 of RM's witness statement dated 14 June 2019.
2. Paragraphs 12 - 14 of RM's witness statement is admissible evidence as to relevant chronology of events.
3. In relation to the evidence of RM regarding the complaint she received from her daughter, it was made immediately after her daughter had already complained to TD at RM's house.
4. In relation to the evidence of RM regarding the complaint her daughter made to her at the house on the night of 5 May 2019, the details of the complaint at pars 31 - 46 of RM's witness statement do not correspond with the factual particulars of the count 7 offence. If they relate to any of the other six counts on the indictment, it cannot be recent complaint evidence. The count 1 - 6 offences are alleged to have occurred between 15 February 2014 and 15 February 2018. I therefore rule the evidence in pars 32 - 46 in RM's witness statement is inadmissible.
5. The evidence contained in par 26 of RM's witness statement is admissible, as her observation of distress of the child is in very short proximity of time to the child complaining to TD.
6. The evidence contained in pars 41 - 43 of RM's witness statement is admissible as circumstantial evidence as to the 'turtle massager'.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.