Prosecution disclosure and affected child witnesses — a sleeping issue awakes!

The facts

The accused was a male child care worker employed in a child care centre with responsibility for looking after children aged 4 and 5 years. The female complainant was one of those children and had been under the care of the accused for about nine months prior to the time of her first complaint about the acccused’s conduct toward her. After a complaint to her grandparents and mother the police were contacted and the child was interviewed by a police officer. The interview was recorded on DVD as her statement in the prosecution case in accordance with s.93A of the Evidence Act 1977. In the course of the interview the child gave varying descriptions of when and how many times the accused had touched her. The child said the accused touched her on the day of the interview (when she did not attend child care), the day before the interview (Tuesday), and when she had her birthday (some 3 months earlier). In respect of the number of occasions, the child said it occurred once, twice, eleven times, fourteen times and not at all.

An indictment was presented alleging that the touching occurred on or about the Tuesday being the day before the child was interviewed.

On the day before the child’s evidence was listed for preliminary recording, the Crown Prosecutor spoke to the child after the child had refreshed her memory by watching the DVD recording of her statement. Upon questioning, the child informed the prosecutor that the accused only touched her once and that the contact was underneath her clothing (“the late evidence”). The prosecutor informed counsel for the accused via email of the late evidence and foreshadowed his intention to lead it orally at the preliminary recording the following day.

Objection was taken to this proposal on two bases. Firstly, that the prosecution had failed to comply with its obligation to disclose its case within 28 days of the presentation of the indictment as required by s. 590AI of the Criminal Code with the consequence that the evidence could not be admitted at the trial or preliminary recording. Secondly, that in eliciting further critical information from a child witness in the conference with the Prosecutor, the Prosecutor had adopted an investigative function inconsistent with his duty as Prosecutor, and compromised the ability of the accused to adequately test the manner in which the information was elicited.

The consequences of failure to comply with disclosure obligations

In addition to introducing the requirement for preliminary recording of the evidence of affected child witnesses and prohibiting the cross-examination of such witnesses at committal as of right, the Evidence (Protection of Children Act) 2004 “the Act”) codified the law2 relating to prosecution disclosure (see ss.590AB to 590AX of the Criminal Code). These two issues are closely interconnected.

Prior to the Act remedies available in respect of late disclosure were limited to the granting an adjournment or in the most exceptional of cases a permanent stay of proceedings.

An example of the manner in which courts dealt with late disclosure prior to the Act is R v W; Ex Parte A-G (Qld) [2001] QCA 329 wherein McKenzie J said:

“It should be observed that it is very unsatisfactory for the prosecution not to have its case fully prepared in advance of the date set for trial. Sometimes issues need clarification in minor respects or arise unexpectedly during trial and need to be met by further evidence. Leaving those aside, the defence is entitled to know in advance of the evidence to be called be the prosecution. However, the late provision of additional significant evidence or a late perception on the part of the prosecution of need to supplement its case in important aspects will generally be more relevant to whether an application for an adjournment should be granted to either party than to an application for a stay.”

The 2004 Act sought to bring about a substantial change in this area of the law, particularly in relation to the timing of disclosure of the prosecution case by, inter alia, imposing a timeline on the disclosure of the prosecution case. In respect of trials upon indictment, s.590AI(2)(b) of the Criminal Code provides:

(2) The prosecution must give the accused person the written notice or copy [of a thing relied upon by the prosecution]3 —

(a) …

(b) for a trial on indictment — no more than 28 days after the presentation of the indictment, or if the trial starts less than 28 days after the presentation of the indictment, before evidence starts to be heard at the trial.

Section 509AI(4) confers a discretion on the court to extend the period of time within which the prosecution should disclose its case. The nature of criminal proceedings would indicate that the court would only do so upon application by the prosecution, rather than of its own motion.

Despite these provisions, it is the author’s experience that rarely do the codified obligations of 2004 displace the approach of the court in R v.W in 2001.

Indeed the codified obligations provide no direct assistance to the court in approaching the exercise of the discretion conferred to extend the time frame for prosecution disclosure. It is respectfully suggested that considerations weighing against a grant of extension of time include:

• the clear requirement for the prosecution to ensure it has properly assessed the merits of its case at or before presentation of the indictment;
• the relatively lengthy period of time of six months for the prosecution to consider the depositions post committal, obtain further evidence and present an indictment;
• the removal of as of right cross examination of affected child witnesses at committal proceedings (since the 2004 Act) and all other witnesses at committal proceedings (since 1 November 2010) with the consequently greater onus on the prosecution to ensure the proceeding are conducted with fairness; and 
•  the public interest in:
  • the efficient disposition of criminal matters;
  • ensuring that proceedings are conducted fairly and with transparency by the prosecution.

A factor weighing heavily in favour of granting the extension of time is the public interest in the Crown being able to present all of the evidence so as to assist in the process of determining and establishing the truth (s.590AB(1)).

The following further factors are also relevant according to the circumstances of the case:

• the explanation for the failure to disclose the thing within the time period;
• whether there was any failure by the prosecution to take appropriate steps to ensure it complied with the disclosure obligations;
• whether the accused will incur greater cost a consequence of the failure of the prosecution to comply with its obligations in a timely manner;
• any delay which will result if the extension of time is granted; and
• whether the granting of an extension of time would prejudice an accused in his/her defence

Also relevant to the issue of the consequences for late disclosure is s.590AL Criminal Code which deals with the prosecution’s ongoing obligation to disclose. Section 590AL requires the prosecution to disclose a thing despite the failure to comply with the time requirement of s.590AI. In respect of things not in the prosecution possession at the time the time requirement expires, it casts the obligation on the prosecution to disclose the thing “as soon as practicable” after the thing comes into the possession of the prosecution.

These sections are to be read in the light of s.590AB which reinforces the obligation is to give full and early disclosure as a matter of fairness at the most fundamental level.

Legislative tension?

How are ss.590AI and 590AL able to be construed harmoniously? If the prosecution is required to disclose its case irrespective of any failure to comply with the time requirement under s.590AL, what is the significance of a court extending (or not) the time period under s.590AI(4)? Durward SC DCJ restated the issue in the following terms:4

“[49] Whilst section 590AI is designed to ensure procedural fairness in the course of a prosecution, it does not spell out the consequences which flow from a failure to disclose within the specified time period. There is an ongoing obligation of disclosure regardless of the application of section 590AI(4). Hence it is submitted by the respondent that the consequence must be one relating to admissibility of evidence that is obtained and sought to be lead by the prosecution contrary to the statutory regime. [Counsel for the accused] argued that the section should be construed in a way which favours an accused person and which gives “the most complete remedy consistent with the actual language employed and to which its words are fairly open”: Khoury (M & S) v Government Insurance Office of NSW (1984) 165 CLR 622 at 638 and “Statutory Interpretation in Australia” 6th Ed by Pearce & Geddes, at p 282.”

Does late disclosure determine admissibility in its own right?

After reviewing similar interstate and New Zealand legislation, Durward SC DCJ held:5

“[57] In those extra-territorial jurisdictions where there are specific consequences for failure to comply with the disclosure obligation, the nature and extent of those consequences are clearly set out in the legislation. That is not the case in Queensland. Hence [Counsel for the accused’s] submission that the Court in the circumstances could, specifically in the circumstances of this case, refuse to admit the evidence is one which must be based upon the inherent jurisdiction of the Court to regulate its proceedings in the interests of justice and to exclude evidence in an exercise of discretion if it is unfair to the accused or not expedient in the interests of justice to allow admission of the evidence. One cannot in Queensland rely upon any statutory consequence arising from the relevant legislation.”

His Honour was not prepared to construe s.590AI such that if the prosecution fails to disclose its case within the time requirement, or any extension granted by the court, the evidence may not be admitted. Instead, His Honour considered the failure to comply as sufficient to enliven the broad discretions to exclude evidence contained in ss.98 and 130 of the Evidence Act 1977. The nature of the discretions under ss.98 and 130 are well settled and discrete from the nature of the discretion under s.590AI(4) to extend time. Whether this approach has sufficient regard to the mandatory time frames for disclosure is a topic which may require further examination.

Affected child witnesses

The decision also focussed upon the manner in which the Crown Prosecutor obtained the late evidence. The manner in which the decision explored these issues is best expressed by reproducing the relevant portions of the decision.6

“[32] In my earlier judgment, I had foreshadowed the possibility of further limited and specific evidence of the kind now sought to be lead in examination in chief in a pre-recording hearing, being obtained by the prosecution. To that extent, leave to make further disclosure by extension of the statutory 28 day period has probably implicitly been granted in accordance with section 590AI(4).

[33] However, [Counsel for the accused’s] submissions have opened a broader justiciable issue: is the brief statement of the further evidence contained in the prosecutor’s email to [Counsel for the accused] a statement purportedly made pursuant to section 93A of the Evidence Act 1977? If so, has it been properly obtained? Are the prosecutor and his clerk, who participated in the conference with CEJT, compellable witnesses? Is a conference that elicits evidence from an affected witness an investigative or prosecutorial function? Are there important public policy considerations involved?

[34] These are the broad questions that constitute what I have called “the procedural issue”

…

[42] In Gately v R (2007) 241 ALR 1 (per Hayne J at paragraphs 102-103) reference was made to a combination of s 93A evidence and oral evidence being permitted:

“[102] The essence of the proposition advanced by the appellant on this issue was that a party cannot tender an out-of-court statement as evidence of the facts, and at the same time call oral evidence from the maker of the statement upon the same subject. That proposition should be rejected.

[103] The stated premise upon which s 93A is engaged is that the maker of the statement which it is sought to tender in evidence is available to give evidence. Any other party may require that the party tendering the statement ‘call as a witness the person whose statement is so admitted’. Nothing in the text of the section suggests that the party tendering the statement may not choose to call the maker of the statement as a witness. If the tendering party is required by an ‘other party’ to ‘call as a witness’ the maker of the statement, nothing in the text of the section suggests that the tendering party may not adduce evidence-in-chief from the maker about the matters that are the subject of the statement. The maker of the statement is to be called ‘as a witness’, not only ‘made available for cross-examination’. And if the tendering party chooses to call the maker of the statement as a witness, nothing in the text of the section suggests that some different rule applies such as that the tendering party is precluded from adducing evidence-in- chief from the maker about the matters dealt with in the statement.”

[43] In this case the further examination questions are prima facie able to be asked at the pre-recording hearing when the witness appears. However, the issue really is whether the answers that CEJT might make are affected by the manner in which the conference with her was conducted, particularly in light of [the Crown Prosecutor’s] stated intention to ‘further clarify’ the answers about the number of occasions she was touched. The examination-in-chief is part of the pre-recorded evidence. Section 21AA (1) of the Evidence Act 1977 provides, so far as is relevant, that the purpose of that process is to “to preserve, to the greatest extent practicable, the integrity of an affected child’s evidence”. It is the integrity of the evidence in the circumstance of the conference that is at the core of [Counsel for the accused’s] objection, albeit in the context of late disclosure.

…

[59] In the Evidence (Protection of Children) Amendment Bill 2003: Explanatory Notes, a number of statements that resonate with the objections made by the respondent in this case are referred to. I have extracted those that are particularly relevant from the Explanatory Notes, as follows:

“The reforms (outlined in the Bill) are aimed to ensure that ordinarily, a child should not have to give evidence more than once, alternative measures should be used where possible, and trials should be resolved as quickly as possible.

The Bill also introduces a comprehensive disclosure regime to ensure that an accused person is properly informed of the case against him or her. Accordingly, the amendments are designed to meet the following objectives –

•  To preserve, to the greatest extent possible, the integrity of the evidence of a child witness;
• To limit, to the greatest extent possible, the distress or trauma experienced by a child witness as a result of giving evidence; and
• To ensure that, in a criminal matter, an accused person receives a fair trial“;

and further:

“There are a number of other measures proposed or in place that will ensure that defendants are not unduly prejudiced by limits on the right across-examine at committal, for example –

• Pre-recording of all of the evidence of a child witness will enable the defence to cross-examine the child prior to the trial commencing, which will facilitate pleas of guilty and no case submissions;
• The use of recorded statements under existing section 93A of the Evidence Act 1977 gives the defence the opportunity to see and hear how the witness describes events in that recorded statement;
• Additional screening of the appropriateness of the charge is conducted by the Director of Public Prosecutions, who can decline to indict notwithstanding a Magistrate’s decision to commit; and
• Formalise disclosure obligations on the Director of Public Prosecutions and the Queensland Police Service will ensure that the defendant is advised of the case against him/her.

The proposed reform will still ensure unsustainable prosecution though disposed of at an early stage, but also will reduce unnecessary delays in the criminal justice process and reduce the trauma to vulnerable witnesses” (emphasis added)

[60] The Bill (that is, the amendments to the Evidence Act 1977) makes it abundantly clear that the process of recording of the evidence of a child in the way prescribed in Queensland has an emphasis upon all of the evidence of a child witness being presented in a manner which gives the defence the opportunity to see and hear how the witness describes events in the “recorded statement” and to ensure the accused is fully appraised of the case he or she has to meet.

[61] In my view, the practice of interviewing and conferencing with child witnesses prior to a hearing, which is unremarkable where it is conducted with adult witnesses who are not the subject of the specific protective legislative regime, needs to be seriously reconsidered in the case of children who are affected witnesses and in respect of whom the evidence-in-chief is mainly comprised by the section 93A statement taken by police investigators (albeit capable of being supplemented by questions asked in further examination by leave in court, by the prosecutor). It is the intermediary step of non-recorded interviews/conferencing with affected witnesses — whilst otherwise legitimate processes in the ordinary course — that is the issue.

[62] I have previously expressed criticism of the police and the DPP for the manner in which section 93A statements are often conducted and tendered for viewing and listening in Court – in respect of the overt images of police badges and police sub-unit identification and the sometimes lengthy introductory or concluding question and answer process which is largely totally irrelevant in an evidentiary context and which would not be permitted if the evidence was being lead in the normal manner in open court and was not being pre-recorded.

[63] Whilst I understand the possible inconvenience and the logistical difficulties that might flow from the view that I am expressing, it seems to me that the statutory framework entitles an accused person to “see and hear” all of the evidence of the child witness where the statutory process for affected witnesses is engaged.

[64] [Counsel for the accused’s] submission about this is directed, if not in so many words, to the inadequacy of the interview or conferencing process where further factual revelations are made by a child witness, particularly one of tender years who may be susceptible to inadvertent or unintentional leading or prompting (and I do not suggest that anything overtly has occurred in this case or that the prosecutor and clerk concerned acted other than professionally and with good intentions utilising a practice that appears to be standard for the prosecution in Queensland) resulting in the denial of an opportunity for the accused to see and hear the witness give the additional evidence. The additional evidence is very brief but is highly significant – that is, whether the touching of the genitals occurred on or under the child’s clothing and how many times it occurred.

[65] It follows that even if, as I have indicated, an implicit grant of leave was given to adduce the further evidence, the process engaged by the prosecution is one which is in my view unsatisfactory and one which requires an urgent review by the Director of Public Prosecutions as to the practice employed in pre-hearing consultations with or interviews of affected child witnesses. In this case the accused has been denied the opportunity to which I have referred and it seems to me that despite my preliminary view expressed in the course of the hearing, the evidence should not be led.

[66] I make that ruling in an exercise of discretion pursuant to sections 98 and 130 of the Evidence Act 1977. … Accordingly, the additional evidence obtained by the Prosecution with respect to the matters foreshadowed in the hearing in January 2011 is excluded.

…

[83] At paragraph [33] I asked, in a rhetorical sense, a number of broad questions. In summary, I should specifically answer them as follows: the evidence has not been properly obtained. The prosecutor and his clerk are arguably compellable witnesses on any hearing or trial. The conference that elicits evidence from an affected witness may be both (or perhaps ‘either’) an investigative and/or a prosecutorial function, provided that the conference is recorded visually and audibly. There are significant public policy considerations involved: they are identified in the course of the discussions in the judgment.”

Summary

Durward SC DCJ ruled that the prosecution was not permitted to lead the late evidence at the preliminary recording and in the exercise of the discretion rejected it on the basis that it appeared to be inexpedient in the interests of justice to admit it (s.98) or that it would be unfair to the accused to admit it (s.130).

The two main issues in the decision were not previously the subject of any detailed judicial analysis.

The inherent counter balance to the substantial changes to the criminal justice processes in 2004 and November 2010 is a stricter adherence to the codified obligations of disclosure. The reforms are designed to ensure that both parties to criminal litigation focus on the real issues in dispute at an early stage of the proceeding with the obvious consequential benefits. The extent to which this is able to be achieved is directly dependent upon timely disclosure. It may be the case that s.590AI raised the bar for the prosecution significantly higher than it seems at first blush.

The decision also highlights the risks attendant upon Crown Prosecutors eliciting further significant information from affected child witnesses when preparing for trial and is a timely reminder of the importance of the independent role of the prosecutor.

Justin Greggery

Footnotes

1. R v TAM (No 2) [2011] QDC delivered 21 June 2011
2. The explanatory notes to the Bill refers to “The prosecution disclosure provisions (clause 15 o the Bill) are a statutory codification of the existing prosecution disclosure obligations”, see also R v Rollason & Jenkins; ex parte A-G (Qld) [2007] QCA 65 at paragraphs 11 to 14
3. “a thing” is a reference to the documents referred to in s. 590AH(2) which form the prosecution case
4. R v TAM (No 2) [2011] QDC at paragraph 49
5. Ibid at paragraph 57
6. R v TAM (No 2) [2011] QDC paragraphs 32, 33, 34, 42, 43, 59 to 66, and 83