R v Cruz [2016] ACTSC 19

Supreme Court of the ACT|2016-02-15|Before: Burns J

CRIMINAL LAW - Particular Offences - offences against the person - engaging in sexual intercourse with a person under 10 years - indecency on person under 10 years.

EVIDENCE - Judicial Discretion to Admit or Exclude Evidence - complainant unavailable witness under s 4(g) of the Evidence Act 2011 (ACT) - whether prior representations admissible - hearsay - s 65(2)(b) of the Evidence Act 2011 (ACT) - unlikely representation is a fabrication - relevant circumstances - DNA evidence - representation admissible.

EVIDENCE - Judicial Discretion to Admit or Exclude Evidence - complainant unavailable witness under s 4(g) of the Evidence Act 2011 (ACT) - whether prior representation admissible - hearsay - s 65(2)(c) of the Evidence Act 2011 (ACT) - whether highly probable representation is reliable - representation excluded.

Conway v The Queen [2000] FCA 461; (2000) 98 FCR 204

Munro v R [2014] ACTCA 11

R v Ambrosoli [2002] NSWCCA 386

Williams v The Queen [2000] FCA 1868

1. The accused has been charged with one count of engaging in sexual intercourse with MX, being a person under the age of 10 years, on 27 June 2013. He has further been charged with two counts of committing an act of indecency on MX, being a person under the age of 10 years, on the same date. To these charges he has pleaded not guilty and his trial is listed to commence on 29 March 2016.

2. I have before me an application by the Crown for determination before the commencement of the trial. The application seeks an order that previous representations made by the complainant MX to her mother SX in May 2013 and on 27 June 2013 be admitted as evidence at the accused's trial pursuant to either ss 65 (2) (b), 65 (2) (c), 66A or 60 of the Evidence Act 2011 (ACT) (the Evidence Act)

3. In June 2013 the complainant, MX, was aged 2 years and 11 months. Her mother, SX, left MX to be cared for by the mother of the accused at her house Mondays to Fridays from around 8 am until 5:30 pm while SX was at work. The accused lived at the premises where MX was cared for by his mother. After SX collected the complainant from the home of the accused on 27 June 2013, she had the following conversation with the complainant as they were travelling home by car:

The complainant: You can't clean my bum bum with your tongue!

SX: What?

The complainant: You can't clean my bum bum with your tongue!

SX: No, we use wipes or toilet paper!

The complainant: Tio Carlos licked my bum bum.

4. The Crown proposes to lead evidence that "Tio" is the Spanish word for "Uncle", and that the complainant referred to the accused as Tio Carlos. It also proposes leading evidence that "bum bum" was the term that the complainant used at that time when referring to her vagina and anus.

5. At that time the complainant was toilet trained, however she continued to wear what were described as "pullups", which I understand to be a type of disposable nappy. After the conversation referred to above, the police were called and the complainant was taken to the Canberra Hospital where she was examined by medical practitioners. The nappy which the complainant was wearing when she was collected by SX from the accused's home was taken by police for forensic examination. Semen was located on the inner surface of the nappy, as well as indications of saliva. A comparison between DNA extracted from the semen found on the inner surface of the nappy and DNA obtained from the accused during a forensic procedure was undertaken with a result that DNA extracted from the semen was at least two octillion times more likely to have originated from the accused than to have originated from another, unrelated individual selected at random from the Australian Caucasian subpopulation. This is described in an expert forensic biologist's report as providing extremely strong support for the proposition that the major component of the DNA profile obtained from the semen came from the accused.

6. The Crown also alleges that on an earlier occasion, in May 2013, while SX was bathing MX at their home, MX said: "Tio Carlos licked my bum bum". SX said that she replied: "Oh really, were you just playing?" and MX replied: "Yeah". SX, in her statement to police, said that she thought nothing of it at the time as she thought that MX and the accused were "just playing" and that he may have been blowing raspberries on her belly. She said that she did not raise the issue again.

7. The accused participated in a taped record of interview with police on 27 May 2014. At that time it was put to him that he had engaged in sexual intercourse without consent with MX at his address on 27 June 2013. He denied the allegation. In the course of the interview the accused denied having any relationship with the complainant, effectively saying that he had nothing to do with her.

8. Quite understandably, police formed the opinion in June 2013 that the complainant was too young to be interviewed. She has not provided a written statement or participated in a record of interview with police. The complainant did not testify at the accused's committal proceedings, and it was flagged by the Crown at that time that an application may be made under the Evidence Act to admit the child's previous representations to her mother as exceptions to the hearsay rule. On 25 January 2016, SX attended court for a scheduled pre-trial hearing and gave evidence that she had been served with a subpoena directed towards MX, requiring MX to give evidence at the pre-trial hearing. SX declined to bring MX to court because she believed it would be detrimental to MX's development. The Crown therefore submitted that MX is unavailable to give evidence within the meaning of that term in the Evidence Act.

9. The following provisions of the Evidence Act are relevant to this application:

(1) The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.

(2) In particular, evidence is not taken to be irrelevant only because it relates only to -

Exception - criminal proceedings if maker not available

(1) This section applies in a criminal proceeding if a person who made a previous representation is not available to give evidence about an asserted fact.

(2) The hearsay rule does not apply to evidence of a previous representation that is given by a person who saw, heard or otherwise perceived the representation being made, if the representation -

(a) was made under a duty to make that representation or to make representations of that kind; or

(b) was made when or shortly after the asserted fact happened and in circumstances that make it unlikely that the representation is a fabrication; or

(i) against the interests of the person who made it at the time it was made; and

(ii) made in circumstances that make it likely that the representation is reliable.

Dictionary, Part 2

(1) For this Act, a person is taken not to be available to give evidence about a fact if -

(b) the person is, for any reason other than the application of section 16 (Competence and compellability - judges and jurors), not competent to give the evidence; or

(c) the person is mentally or physically unable to give the evidence and it is not reasonably practicable to overcome that inability; or

(d) it would be unlawful for the person to give the evidence; or

(e) a provision of this Act prohibits the evidence being given; or

(f) all reasonable steps have been taken, by the party seeking to prove the person is not available, to find the person or to secure the person's attendance, but without success; or

(g) all reasonable steps have been taken, by the party seeking to prove the person is not available, to compel the person to give the evidence, but without success.

(2) In all other cases the person is taken to be available to give evidence about the fact.

10. The Crown relied on s 4 (1) (g) of Part 2 of the Dictionary to the Evidence Act, and submitted that all reasonable steps had been taken by it to secure MX's attendance, but without success. It may be said that the subpoena directed to MX had not been properly served, as it was not served on MX but was, instead, served on SX. It was clear from the attendance of SX at court, and the evidence that she gave for not bringing MX to court, that she took no point about any deficiency of service on MX. It was, quite properly, not suggested by the accused that the Crown should seek a warrant for the arrest of MX. I am satisfied that, bearing in mind the age of MX and her age at the time of the events under consideration, all reasonable steps have been taken by the Crown to secure her attendance at court. I am therefore satisfied that, for the purposes of the Evidence Act, MX is unavailable to give evidence.

Should the evidence of MX be received under s 65 of the Evidence Act?

11. The Crown relied upon the provisions of ss 65 (2) (b) and 65 (2) (c) of the Evidence Act. In order for the evidence to be admissible pursuant to s 65 (2) (b) the Crown must establish that the statement made by MX to SX on 27 June 2013 was made "shortly after" the asserted fact happened, and in circumstances that make it unlikely that the statement is a fabrication. The requirement that the party seeking to adduce evidence under s 65 (2) (b) to establish that the representation is made shortly after the events referred to in the representation is concerned to exclude the possibility of concocted evidence. The Evidence Act does not define what period after the asserted facts occurred would fall within the description "shortly after". This begs the question: when did the asserted facts occur? The complainant did not indicate to her mother when "Tio Carlos licked my bum bum", and we know from the statement to the police made by SX that the complainant had made a similar statement in May 2013. If the complainant was referring to something alleged to have occurred in May 2013 when she made the representation to her mother on 27 June 2013, this would not be a representation made by the complainant shortly after the asserted facts occurred. There is, however, evidence which would support the proposition that the facts asserted by the complainant occurred on 27 June 2013. The report of the forensic examination of the nappy worn by the complainant on 27 June 2013 states that saliva was detected on the inner surface of the nappy. The nappy which the complainant was wearing on 27 June 2013 was a disposable nappy, which she had not, as I understand the evidence, worn previously. In order to prove that the representation made by the complainant was made shortly after the asserted fact, it is only necessary for the prosecution to establish the facts upon which it may be found that the representation was so made on the balance of probabilities: s 142 of the Evidence Act. In his taped record of interview with the police, the accused said that he was employed in June 2013, and that he only saw the complainant for the period after he returned home from work in the afternoon until SX collected the complainant after she finished work. It follows that if the events described by the complainant occurred on 27 June 2013, they must have occurred on the afternoon of that day, probably only a few hours before she made the representation to her mother. The location of saliva on the nappy the complainant wore on 27 June 2013 is cogent evidence pointing to the event that the complainant described having occurred that day. The location of semen in the nappy the complainant wore on 27 June 2013 is also cogent evidence that something of a sexual nature occurred to the complainant on 27 June 2013. The presence of semen on the nappy tends to negate the possibility that the saliva came to be on the inner surface of the nappy innocently. I am satisfied on the balance of probabilities that the representation made by MX to SX was made shortly after the asserted facts occurred.

12. This finding is not, however, sufficient to make the representation by MX to SX admissible pursuant to s 65 (2) (b). In addition, the Crown must establish that the representation was made in circumstances that make it unlikely that the representation is a fabrication. There is some minor disagreement in previous authorities concerning what may be taken into account in deciding this issue, and in particular where evidence tending to demonstrate that the representation is accurate or reliable may be taken into account in determining whether the representation was made in circumstances that make it unlikely that the representation is a fabrication: contrast Williams v The Queen [2000] FCA 1868 and R v Ambrosoli [2002] NSWCCA 386. It is unnecessary to resolve that issue in the context of the present application. In my opinion, which ever test is applied leads to the same conclusion in the present application.

13. The Crown relied upon the following circumstances as making it unlikely that the representation made by MX to SX on 27 June 2013 was fabricated:

(a) the representation was spontaneous. There was no prompting of the child by SX or by external circumstances. The child was fully clothed in the car, and there was no apparent reason for her to be thinking about her genital/anal area;

(b) MX made the representation in two different ways. Initially, MX said that "You can't clean my bum bum with your tongue". She is reported to have made this representation on two occasions. Subsequently, she then said "Tio Carlos licked my bum bum";

(c) the representation was made using age appropriate language;

(d) a child the age of MX on the 27 June 2013 would not have the experience of sexual behaviour to realise the significance of what she was saying, or that the accused may get into trouble because of the representation;

(e) MX made the same representation on two occasions to her mother, at least a month apart, and in two different settings;

(f) it is implicit from the mothers statements to the police that she believed MX, and there was no suggestion that the child was prone to fantasy; and

(g) the finding of sperm and saliva on the inner surface of the nappy worn by the complainant on 27 June 2013 suggested that it was unlikely that the representation that she made was a fabrication.

14. In my opinion the representation made by MX on 27 June 2013 to SX is admissible pursuant to s 65 (2) (b) of the Evidence Act. In coming to that conclusion I am satisfied that the circumstances set out at (a), (b), (c) and (d) at [13] above make it unlikely that the representation is a fabrication. For present purposes, I have not taken into account the other circumstances referred to by the Crown.

15. In the light of this finding, it is unnecessary to consider whether the representation made by MX to SX on 27 June 2013 is admissible pursuant to any of the alternative provisions referred to by the Crown.

16. The accused submitted that if the evidence of the representation made by MX on 27 June 2013 was admissible, it should nevertheless be excluded by virtue of s 137 of the Evidence Act on the basis that its probative value is outweighed by the danger of unfair prejudice to the accused. In determining the probative value of the evidence, that is, the extent to which it could rationally affect the assessment of the probability of a fact in issue, the proposed evidence is not to be considered in isolation. It will often occur that the probative value of a piece of evidence is only apparent when it is considered in the context of the other evidence in the proceedings, and the facts in issue. One of the facts in issue at the accused's trial will be whether the accused engaged in an act of cunnilingus with the complainant, which by virtue of s 50 of the Crimes Act 1900 (ACT) is defined as an act of sexual intercourse. The statement by MX to her mother on 27 June 2013 that "Tio Carlos licked my bum bum" has significant probative value to establish that the accused engaged in sexual intercourse with MX when that evidence is considered with the evidence that:

(a) MX referred to the accused as Tio Carlos;

(b) saliva was identified on the nappy worn by MX on 27 June 2013; and

(c) semen found on the nappy worn by MX has a very high probability of coming from the accused.

17. The location of semen on the nappy worn by MX does not, of course, provide direct support for the Crown allegation that the accused performed cunnilingus on MX. The relevance of this evidence, in my opinion, is twofold. First, it tends to negate any suggestion that saliva came to be on MX's nappy innocently. In other words, it is capable of establishing that MX was the subject of sexual abuse. Secondly, if the jury is satisfied that cunnilingus was performed on MX on 27 June 2013, it is relevant to identifying the offender, it being unlikely in the circumstances revealed by the evidence that MX would have been sexually assaulted by two different people on 27 June 2013.

18. It must be accepted that reception of the statement made by MX to her mother will involve some prejudice to the accused. Because the accused will not be able to cross-examine MX there is a danger that the jury may give the evidence of the statement made by MX more weight than it deserves. This danger may be substantially ameliorated by appropriate directions to the jury, including a warning under s 165 of the Evidence Act that the evidence may be unreliable.

19. I am satisfied that the evidence which the Crown proposes to lead from SX of the statements made to her by MX on 27 June 2013 has significant probative value. I am further satisfied that the probative value of the evidence exceeds the danger of unfair prejudice to the accused. I therefore decline to exclude the evidence pursuant to s 137 of the Evidence Act.

20. Turning to the representation said to have been made by MX to SX in May 2013, the Crown only relied upon the provisions of s 65 (2) (c) of the Evidence Act. The Crown must therefore satisfy me on the balance of probabilities that the representation was made in circumstances that make it highly probable that the representation is reliable. In Conway v The Queen [2000] FCA 461; (2000) 98 FCR 204 the Federal Court of Australia, at that time sitting as the Court of Appeal from the Supreme Court of the ACT (Miles, Von Doussa and Weinberg JJ) said at 244:

The requirement in s 65(2)(c) of the Act that it be "highly probable" that a representation be "reliable" in order to be admissible is an onerous is one. It is easy to see why that should be so. Section 65(2)(c) has the potential to operate unfairly against an accused person.

See also: Munro v R [2014] ACTCA 11 at [13] and [80].

21. The Crown relied upon the circumstances set out at [13] above, as establishing that the representation by MX was made in circumstances that make it highly probable that the representation is reliable. It is apparent that the test for admissibility under s 65 (2) (b) is directed towards the likelihood of fabrication, whereas that under

s 65 (2) (c) is directed towards the reliability of the representation. I accept that the circumstances to which the Crown refers make it probable that the representation by MX to SX in May 2013 was reliable, but I am unable to be satisfied that those circumstances make it highly probable that the representation is reliable. As such, evidence of the May 2013 representation will be excluded.

22. In light of the upcoming trial, I also make an order that publication of this decision be prohibited until a further order of the Court.

I certify that the preceding twenty-two [22] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Burns.

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