Court of Appeal (Qld)|2001-12-14|Before: McPherson JA, Jones and Mullins JJSeparate reasons for judgment of each, member of the Court, each concurring as to the orders made
McPherson JA, Jones and Mullins JJSeparate reasons for judgment of each, member of the Court, each concurring as to the orders made
Catchwords
CRIMINAL LAW – PARTICULAR OFFENCES – OFFENCES AGAINST DECENCY
AND MORALITY – where appellant convicted of unlawfully
and indecently
dealing with a child under the age of 16 years – where complainant boy
Source
Original judgment source is linked above.
Catchwords
CRIMINAL LAW – PARTICULAR OFFENCES – OFFENCES AGAINST DECENCYAND MORALITY – where appellant convicted of unlawfullyand indecentlydealing with a child under the age of 16 years – where complainant boyaged five years at time of alleged offence– where appellant male aged 19years at time of alleged offence – where appellant known to plaintiff– where appellantfriend of complainant’s cousins – wherealleged offence occurred at residence of complainant’s aunt and uncle–where complainant allegedly made fresh complaint to his motherapproximately 8 days following alleged offence CRIMINAL LAW –EVIDENCE – EVIDENTIARY MATTERS RELATING TO WITNESSES AND ACCUSED PERSONS– where complainant’sevidence in chief videotaped interviewpursuant to s 93A of Evidence Act 1977 (Qld) – where interviewconducted 13 days after alleged offence – whether such time frame prior tointerview impacted upon complainant’s ability to freely recall
events, particularly in light of complainant’s age – where
lack of
spontaneity in complainant’s answers to interviewer’s questions
throughout interview – where interviewer
in questioning complainant
continually asserted alleged offence – where internal inconsistencies in
record of interview CRIMINAL LAW – EVIDENCE – EVIDENTIARY
MATTERS RELATING TO WITNESSES AND ACCUSED PERSONS – where complainant
cross-examined
by defence counsel at trial – where no evidence that
corroborated complainant’s account of events – where complainant
denied occurrence of alleged offence and other events - where internal
inconsistencies in evidence CRIMINAL LAW – EVIDENCE –
EVIDENTIARY MATTERS RELATING TO WITNESSES AND ACCUSED PERSONS – general
consideration
of issues surrounding evidence of child as young as complainant
CRIMINAL LAW – EVIDENCE – EVIDENTIARY MATTERS RELATING TO
WITNESSES AND ACCUSED PERSONS – where complainant’s
mother and aunt
gave evidence as to complainant’s alleged change in behaviour following
alleged incident – where no expert
evidence linking alleged change in
behaviour to alleged offence – whether inference could reasonably be drawn
of causal connection
between complaint and complainant’s condition –
whether changes of behaviour of child constitute corroborative circumstance
CRIMINAL LAW – JURISDCTION, PRACTICE AND PROCEDURE – JURIES
– SUMMING-UP – whether learned trial judge erred
in referring to
complainant’s alleged behavioural changes and related evidence of
complainant’s mother in summing-up
to juryCRIMINAL LAW –
JURISDICTION, PRACTICE AND PROCEDURE – PROSECUTION – COURSES OF
EVIDENCE, STATEMENTS AND ADDRESSES
– whether improper for learned Crown
Prosecutor to advert to complainant’s alleged behavioural changes as
confirmatory
of offence having occurredCRIMINAL LAW – JURISDCTION,
PRACTICE AND PROCEDURE – PROSECUTION – JURIES – VERDICT
– whether verdict
unsafe and unsatisfactoryEvidence Act
1977 (Qld), s93A
Judgment (16 paragraphs)
[1]
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST DECENCY AND MORALITY - where appellant convicted of unlawfully and indecently dealing with a child under the age of 16 years - where complainant boy aged five years at time of alleged offence - where appellant male aged 19 years at time of alleged offence - where appellant known to plaintiff - where appellant friend of complainant's cousins - where alleged offence occurred at residence of complainant's aunt and uncle - where complainant allegedly made fresh complaint to his mother approximately 8 days following alleged offence
[2]
CRIMINAL LAW - EVIDENCE - EVIDENTIARY MATTERS RELATING TO WITNESSES AND ACCUSED PERSONS - where complainant's evidence in chief videotaped interview pursuant to s 93A of Evidence Act1977 (Qld) - where interview conducted 13 days after alleged offence - whether such time frame prior to interview
[3]
impacted upon complainant's ability to freely recall events, particularly in light of complainant's age - where lack of spontaneity in complainant's answers to interviewer's questions throughout interview - where interviewer in questioning complainant continually asserted alleged offence - where internal inconsistencies in record of interview
[4]
CRIMINAL LAW - EVIDENCE - EVIDENTIARY MATTERS RELATING TO WITNESSES AND ACCUSED PERSONS - where complainant cross-examined by defence counsel at trial - where no evidence that corroborated complainant's account of events - where complainant denied occurrence of alleged offence and other events - where internal inconsistencies in evidence
[5]
CRIMINAL LAW - EVIDENCE - EVIDENTIARY MATTERS RELATING TO WITNESSES AND ACCUSED PERSONS - general consideration of issues surrounding evidence of child as young as complainant
[6]
CRIMINAL LAW - EVIDENCE - EVIDENTIARY MATTERS RELATING TO WITNESSES AND ACCUSED PERSONS - where complainant's mother and aunt gave evidence as to complainant's alleged change in behaviour following alleged incident - where no expert evidence linking alleged change in behaviour to alleged offence - whether inference could reasonably be drawn of causal connection between complaint and complainant's condition - whether changes of behaviour of child constitute corroborative circumstance
[7]
CRIMINAL LAW - JURISDCTION, PRACTICE AND PROCEDURE - JURIES - SUMMING-UP - whether learned trial judge erred in referring to complainant's alleged behavioural changes and related evidence of complainant's mother in summing-up to jury
[8]
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - PROSECUTION - COURSES OF EVIDENCE, STATEMENTS AND ADDRESSES - whether improper for learned Crown Prosecutor to advert to complainant's alleged behavioural changes as confirmatory of offence having occurred
[9]
CRIMINAL LAW - JURISDCTION, PRACTICE AND PROCEDURE - PROSECUTION - JURIES - VERDICT - whether verdict unsafe and unsatisfactory