R v Peter Anthony QUINN - Application for Costs

The relevant facts 9Here the following evidence was put before me additional to the evidence in chief of XY and her brief cross-examination: A.An affidavit of Thelma Gray, solicitor, annexing: transcripts of XY's interviews with police; Records from Family and Community Services relating to XY; the accused's interview with police on arrest; XY brother's interview with police and call records served by the DPP. B.A large folder of telephone and text records. C.A bundle of text records. D.A statement of Geoffrey Welshman, a youth worker. All of that material was with the prosecution prior to the charging of Mr Quinn. 10It was submitted by Mr Radojev, for the accused, that the evidence established: (1)That XY was an inveterate liar who would regularly make false complaints, whose word could not be trusted. (2)That in evidence in chief XY had said the second series of events alleged occurred on or close to the 6 February 2013 but the text and phone records did not correspond at all to what was alleged to have occurred on that day. (3)That when viewed as whole evidence available to the Crown including the text and phone records did not corroborate XY's allegations. (4)The accused in his interview, gave an exculpatory account which if properly investigated would have led to the charges being dropped. (5)Accordingly, that a reasonably investigation would have suggested that the accused might not be guilty and that the proceedings should not have been brought. 11Mr Bailey, Crown Prosecutor, and then Ms Vassall, solicitor, for the Director took, as expected, a contrary position, arguing that the defence's fundamental submission was misconceived. In summary, they submitted that the indictment had a range of dates and was not restricted to that put forward by the defence or XY in chief, corroboration for XY's account could be found in the documents and the complaint evidence, and, that issues of credibility remained for the jury, not the Director or charging police.

Consideration 12XY was, and still is, a young girl with a history of deprivation and abuse. She had been in the care of the Minister for some time. In 2012 and 2013 she was living first with an Aunt and then in youth refuges. At times she lived hand to mouth, effectively on the street. She did tell lies at times. She begged money and cigarettes. She may have made false complaints although it is also possible the genesis for some complaints was genuine. 13She appeared confused when she was cross-examined by reference to the call and text records from the 6 February 2013. She appeared to resile from her insistence the second series of events occurred on that day. She was I believe attempting to bring that confusion to the court's notice when she abruptly left the CCTV room, never to return. The text and call records indicate the events could not have occurred that day. The records did not allow me to discern any date that precisely matched her testimony. There were however hundreds of electronic communications between her and the accused over the periods in the indictment. 14The allegations themselves were not implausible. They were supported by recent complaint. The communication records provided fertile ground for cross-examination. The other records may not have been quite so productive. Much of the material set out in Ms Gray's affidavit would not have been admissible at trial, applying s 293 Criminal Procedure Act 1986. I have not here resolved the issue of whether that material was admissible in this application as no argument was put that s 293 Criminal Procedure Act applies. I note s 293 Criminal Procedure Act applies to "proceedings in respect of a prescribed sexual offence". The present application, while related to such proceedings, is not strictly a criminal proceeding. Nevertheless, there was also available in the Family and Community Services (FaCS) material about alleged lies of a non-sexual nature which would not have fallen foul of s 293 Criminal Procedure Act and could have been raised in cross examination as exceptions to the credibility rule: ss102 and 103 Evidence Act 1995. 15There are always risks in presenting a matter where a complainant has a past, which indicates unreliability and lack of concern for the truth, that a jury will not accept her. But absent clear and unequivocal evidence a complainant's story is false this cannot preclude her being put forward as witness. Nor does it prevent the prosecution relying on her testimony alone. It is notorious that in such matters a complainant will be unable to corroborate their account. Decisions relating to the complainant's credibility, demeanour and the like are, as was noted in Mordaunt, matters quintessentially within the realm of the ultimate fact finder. The complainant's history was a sad one. It warranted careful consideration. It provided a proper basis for testing on credit. However the complainant could not, based on that history, be said to be very substantially lacking in credit. It was quite reasonable to allow these issues to be ventilated before a jury. 16While the accused's denials warranted consideration there was nothing in his interview, which, if properly investigated, contradicted the central facts necessary to establish guilt. Any inherent weakness in the prosecution case depended upon word against word. And some of what the complaint said was corroborated and supported by evidence of recent complaint, although there remained a chance of concoction with her brother. Again, it was quite reasonable to allow these issues to be ventilated before a jury. 17Ultimately, the defence submission came down to showing, firstly, that the complaint had been shown to be so very substantially lacking in credit that it was wrong to prosecute her complaint. And, secondly, that no date in the communication records matched her accounts. 18There are some matters where such submissions could be justified. This was not one of them. The Crown case was in part framed in terms of the accused's exploitation of the complainant's vulnerability and his realisation that her background was such that she would not be believed should she complain. The Director took the view, quite reasonably, that any issues concerning credibility based on the complainant's past and her phone and text records should be ventilated in front of a jury. The Director was not to know that at trial the complainant's frustrations would mean she would refuse to submit to cross-examination. In any event that is not a relevant consideration. 19Having reviewed the evidence led at trial and the additional material tendered the defence have not met the onus placed on them and the application for a costs certificate is refused. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 May 2014