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Child Forensic Interviews: The Queen v Brown

The 2020 NT Supreme Court decision of The Queen v Brown dealt with the question of whether the content of three Child Forensic Interviews conducted in the court of an investigation of a child sex matter was admissible at trial. In that matter, the evidence obtained during the CFIs was excluded because of the way the material had been obtained from the child and for other reasons. This article summarises the court’s decision.

The facts of The Queen v Brown

The case concerned a man charged with having aggravated indecent dealings with a child under 16. The accused was alleged to have touched the vaginal area of a five-year-old girl through her underpants. The complainant was in childcare in Alice Spring and the accused was a staff member at the childcare centre. The incident was alleged to have occurred in the kitchen of the centre.

The complainant’s mother conceded she had discussed the incident with the child several times since it occurred and during the committal proceeding, it emerged that the complainant had previously been touched in a similar way by another person when she was three years old. These circumstances both meant that the potential for the child’s evidence to have been contaminated was high.

The defence challenge to the CFIs

The defence challenged the admissibility of two of the CFIs conducted by the police with the complainant and argued that the third CFI should be excluded from evidence on discretionary grounds. There were technical issues with the recordings, whose audibility was limited and there were transcripts of the interviews whose accuracy could not be verified. There were also issues with the manner in which the questioning had been conducted.

In the first CFI, the complainant did not disclose any improper sexual behaviour towards her by the accused despite prompting by the police about him being a bad person and having made her feel bad.

In the second CFI, the complainant was reminded of the first interview and questioned at length about the accused and his role at the childcare centre. Police told the complainant that she was being interviewed again because of things she had told her mother about the accused, but she appeared not to remember making these disclosures. She stated she did not want to go back to childcare or to see the accused but indicated that she didn’t know why she felt this way. The police officer then proceeded to ask her a lot of questions that suggested that the accused had done something to her.

The defence submitted that on 35 occasions, the police officer asked the complainant questions designed to get her to say that the accused had touched her in the vaginal area and that this amounted to cross-examination and was inappropriate for evidence-in-chief.

The complainant then started crying and was given a break. Upon resuming the interview, she was asked if the accused had ever hurt her anywhere on her body and that if she didn’t want to say it, she could show it. She then pointed to her crotch (though this could not be clearly seen on the video recording). She was then asked if anyone at childcare had ever touched or hurt her in that area and she said she did not know. She was asked more questions about whether the accused had ever hurt her and said that he had not. The interview was then concluded.

Half an hour later, a third interview was started. Evidence differed as to what occurred during the intervening half hour, with one account holding that the child’s mother told her to tell the police what she had said about the accused, and another holding that she had told the police during the break that the accused had touched her in the vaginal area.

In the third interview, the complainant told the police that the accused had touched her in the vaginal area in the kitchen of the childcare centre. She said that she had told him to stop and he had gone away. After further questioning, she said the touching had only happened on one occasion and that she had told her aunty about it, and later, her mother.

Defence submissions about the Child Forensic Interviews

During a voir dire, the defence argued that due to the technical issues with the CFIs, they were inadmissible. In the alternative, it argued that the material should be excluded because of the manner in which the evidence was obtained from the child.  

The defence argued that the prolonged and suggestive questioning of the child over three successive interviews far exceeded what could be considered proper examination-in-chief and should be found to be inadmissible.

In particular, the defence argued the material should be excluded because:

  • It amounted to an aggressive cross-examination of a five-year-old who was twice reduced to tears;
  • The questioning was leading and suggestive of sexual wrongdoing;
  • The questions amounted to inducements to allege sexual misconduct against the accused;
  • Prior to the third interview, the child’s mother had reportedly told her to tell the police what the accused had done and then they could go home.

The court’s decision

The court found that the interviews were conducted improperly. The danger of a very young witness’s evidence being contaminated by suggestion was very high. The statements made were therefore unreliable and could therefore be given very little weight.

It found that the material was inadmissible because:

  • there were inconsistencies between statements by the complainant;
  • very little detail was given as to how the incident came about;
  • the reliability of some of the complainant’s claims was suspect. For example, her aunt, whom she claimed to have told about the incident did not back this up.

In conclusion, the court found it would be grossly unfair to the accused to admit the evidence.

If you require legal advice or representation in any legal matter, please contact Go To Court Lawyers.

Author

Fernanda Dahlstrom

Fernanda Dahlstrom has a Bachelor of Laws from Latrobe University, a Graduate Diploma in Legal Practice from the College of Law, a Bachelor of Arts from the University of Melbourne and a Master of Arts (Writing and Literature) from Deakin University. Fernanda practised law for eight years, working in criminal defence, child protection and domestic violence law in the Northern Territory. She also practised in family law after moving to Brisbane in 2016.
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