Deacon v Director of Public Prosecutions

[2008] NSWDC 216

CITATION:	Deacon v Director of Public Prosecutions [2008] NSWDC 216
HEARING DATE(S):	4 August 2008 8 August 2008 18 August 2008
JUDGMENT DATE:	4 September 2008
JURISDICTION:	Criminal
JUDGMENT OF:	Bennett SC DCJ
DECISION:	1. The Crown is permitted to tender as fresh evidence the electronic recording of the interview between the investigating official and the complainant on 25 July 2007, the transcript of which was Exhibit 2 in the Local Court, included in Exhibit A on appeal; and 2. The Complainant is to attend and give evidence on the hearing of the appeal.
CATCHWORDS:	CRIMINAL APPEAL – appeal against conviction – conviction dependent on evidence of child complainant – whether reliability and credibility of child could have been properly assessed in the absence of an audio / video recording of the child complainant’s out of court representations and appropriate cross examination – EVIDENCE OF CHILDREN – Evidence (Children) Act 1997 – Criminal Procedure Amendment (Vulnerable Persons) Act 2007 – evidence of an out of court representations of child complainant – offence denied by accused – whether a transcript of child complainant’s out of court representations admissible as evidence of the facts in issue – FRESH EVIDENCE – ss 18 and 19 Crimes (Appeal and Review) Act 2001 – local court proceedings not properly conducted – Crown permitted to adduce as fresh evidence audio / video recording of child complainant’s out of court representations – child complainant required to give evidence
LEGISLATION CITED:	Children and Young Persons (Care and Protection) Act 1998 Crimes Act 1900 Crimes (Appeal and Review) Act 2001 Criminal Procedure Act 1986 Criminal Procedure Amendment (Vulnerable Persons) Act 2007 Evidence (Children) Act 1997
CASES CITED:	Browne v Dunn (1983) 6 R 67 (Referred to) Charara v The Queen [2006] NSWCCA 244 Director of Public Prosecutions v Losurdo (1998) 44 NSWLR 618
PARTIES:	Daniel William Deacon Director of Public Prosecutions
FILE NUMBER(S):	2008/00006336
SOLICITORS:	Aboriginal Legal Service Director of Public Prosecutions

JUDGMENT

Introduction

1 Daniel William Deacon, the appellant, appeals from convictions suffered in the Local Court, Goulburn on 30 April 2008 in respect of charges in the following terms:

‘First Charge: (alleging an offence contrary to s 35(1)(b) of the Crimes Act 1900)

Maliciously inflict grievous bodily harm on a person
Between 6:00 pm on 25/06/2007 and 10:00 pm on 27/06/2007 at Goulburn.
did [sic] maliciously inflict grievous bodily harm upon DD.

Second Charge: (alleging an offence contrary to s 61 of the Crimes Act )

Common assault
Between 6:00 pm on 25/06/2007 and 10:00 pm on 27/06/2007 at Goulburn.
did [sic] assault DD.

Third Charge: (alleging an offence contrary to s 228 of the Children andYoung Persons (Care and Protection) Act 1998)

Neglect or child or young person in his/her care [sic]
Between 6:00 pm on 25/06/2007 and 11:00 am on 30/06/2007 at Goulburn.
did, [sic] without reasonable excuse, neglect to provide adequate and proper medical aid for DD, a child in the said Daniel Deacon’s care.’

2 A fourth charge of ‘Assault Occasioning Actual Bodily Harm’ contrary to s 59(1) of the Crimes Act in the alternative to the first offence was not determined, the court having found the first charge to have been proved.

3 The alleged victim is a child, born on 5 May 2000, and now 8 years of age. At the time of the alleged offences he’d recently had his 7th birthday. The appellant is his father. The parents have been separated for some time, and at the time of the alleged offences the appellant had another partner.

4 The case presented by the prosecution was that the appellant became angry when he discovered the child in the lounge room of his home attempting to hide a cigarette lighter beneath a coffee table. The appellant is said to have recovered the lighter, and to punish the child held his right hand against a heater for long enough to cause a severe burn to his right index finger and knuckle. This is the conduct upon which the first charge was brought.

5 The child is said to have repeatedly apologised for his misbehaviour, and went to his room followed by the appellant. It is alleged that the appellant there punched the child’s body and kicked his leg, threw a lighter which struck the bridge of his nose, and threw a television remote control which struck his stomach. This is the conduct upon which the second charge was brought.

6 Thereafter the appellant sought to console his son, and applied ice to the burn throughout the night.

7 The third charge was brought upon the allegation that appellant did not seek appropriate medical intervention for the burn.

8 When interviewed by police, the appellant denied having caused the burn injury. He said that he was preparing dinner, leaving his son to take his bath and dress in his pyjamas, when he heard him crying. He found the child in the lounge room with his hand burned. He applied cold water and an ice pack. He had his son eat his dinner and then sent him to bed. He applied further ice packs throughout the night. The appellant kept the child home from school for two days, but said that he spoke to an employee at a chemist shop about the injury, without showing it to her. He sought no other medical assistance.

9 An employee of a chemist confirmed such an enquiry from a man with a child, and that she gave advice that help from a medical practitioner should be sought. She recalled seeing the child’s hand with dressing over what was said to be a burn but did not see the burn itself.

The Proceedings in the Local Court

10 The hearing in the Local Court took place on 17 January 2008.

11 The transcript of the proceedings before the magistrate shows the matter to have been conducted with a large measure of informality, no doubt with the best of intentions in light of the unfortunate fact that the prosecution of the appellant was brought upon the critical evidence of his small son.

12 It was announced at the outset by the prosecutor that concessions were made in the interests of the appellant and the child witness. At page 1 line 26, the following appears,

‘PROSECUTOR: It includes the child, only on a very narrow compass, the number of questions. We will be making certain concessions that matters would have been put pursuant to Brown v Dunne, that things on my friend’s instructions didn’t happen, but I certainly don’t require my friend to go through that exercise with the child, if that could be noted.’

13 At page 4 line 27 the following appears (the name Walsh is a reference to Ms Walsh who appeared for the appellant at first instance and on the appeal),

‘WALSH: Before DD’s – we can confirm I don’t need to put any Browne v Dunn material.

PROSECUTOR: Well I’ll place that on the record your Honour. DD has made a record of interview, which is exhibit 2 in these proceedings your Honour. DD makes a number of allegations and assertions against the defendant in these proceedings.

I do not require my friend to put matters pursuant to Browne v Dunn on her instructions that certain matters did not occur.’

14 Exhibit 2 is the record of interview of the complainant child, DD, with two drawings attached.

15 The child gave evidence from a remote room. His cross examination extended over 5 pages of transcript only, and at no point was any proposition put that the appellant did not hold the child’s hand against the heater as alleged, or that he did not kick and strike the child in the bedroom as was alleged.

16 The child’s mother gave evidence of having seen the wound when she picked the child up from his father, and of a version offered by the appellant that was inconsistent with what her son told her, that his hand was held against the heater. She attributed to his father the representation that the child was playing and had fallen against the heater. She was cross-examined extensively.

17 The appellant’s partner gave evidence in the prosecution case. Her statement described how she was in the kitchen eating when the appellant came running in with the child. He said that the child burned his hand on the heater, and applied cold water. She described the care provided during the night. She was cross-examined on behalf of the appellant. Her responses were largely consistent with her statement, and she denied seeing any abuse of the child at the hands of the appellant.

18 The proceedings were adjourned to 6 February 2008 so that the parties could present submissions. On that day the prosecutor addressed the court, and correctly submitted that the outcome depended upon whether the court accepted the evidence of the child as credible and reliable beyond reasonable doubt. Ms Walsh had already provided comprehensive written submissions.

19 On 5 March 2008 the magistrate convicted the appellant of the three offences. Her Honour correctly identified at page 5 line 35 of the transcript that the key issue in the matter was the reliability of the child. I accept that implicit in her Honour’s remarks is the need to find as credible the evidence of the complainant child before the appellant could be found to have committed any of these offences, subject to the qualification that in the case of the third offence the failure to obtain appropriate medical attention for the burn wound would not be so dependant upon the veracity of what the child had to say about these events.

20 There was strong support for the evidence of the child from the complaint made to his mother, the appellant’s failure to take the child for proper care, the nature and extent of the injury suffered, and the child’s detention at home away from school immediately after the injury was sustained. However, it remained that the determination of the guilt of the appellant in respect of the first two offences turned upon the reliability and credibility of the child.

Deficiencies in the Procedures Permitted

21 The desire to minimise the distress of the child witness is commendable, but there were provisions in place designed to achieve this and at the same time allow the accused the opportunity to have his case properly presented, including appropriate cross examination of the witness upon which the prosecution case depended.

22 The provisions were at the time contained in the Evidence (Children) Act 1997.

23 Section 6 provided that the Act applied to evidence from a child under the age of 16 years at the time the evidence is given. Section 7 provided that interviews with children were to be recorded where the investigating official interviewing the child considered that the child’s representations may be adduced as evidence in court. The term ‘recording’ was defined in s 3 of the Evidence (Children) Act, to mean,

‘(a) an audio recording, or
(b) a video recording, or
(c) a video recording accompanied by a separately but contemporaneously recorded audio recording.’

24 This does not include a transcript prepared from any of those items.

25 Section 8 provided that Part 3, providing for the presentation of evidence of children’s out of court representations applied to evidence of a previous representation of a child made in the course of an interview during which the child is questioned by an investigating official in connection with the investigation of the commission or possible commission of an offence.

26 Section 9 provided that a child may give evidence of their previous representation in the form of the recording, or orally. Section 10 provided for the wishes of the child to be taken into account, and section 11 provided that the child was entitled to give evidence in chief in the form of the recording, but subject to limitations there specified to prevent the child being seen by the court whilst the interview was played.

27 Section 12 provided that the evidence of a child who is not the accused person in a proceeding is not to be admitted in the form of the recording made by an investigating official unless it is proved that the accused and his lawyer were given a reasonable opportunity to listen to the audio recording and view the video recording.

28 The Evidence (Children) Act applied to these proceedings. Although repealed by s 5 of the Criminal Procedure Amendment (Vulnerable Persons) Act 2007, effective from 12 October 2007, the amendments removing these provisions to the Criminal Procedure Act 1986 did not effect proceedings commenced before that date. These proceedings were to be dealt with as if the Evidence (Children) Act had not been repealed: Criminal Procedure Act, Schedule 2, Part 14, Clause 56.

29 There is no indication that these provisions were given any consideration by the prosecutor or the court, which appears to have embraced the pre-trial agreements reached between the parties, thereby limiting the opportunity it had to assess the credibility and reliability of the child witness upon critical points. The matter was resolved upon the written text of the transcript of the interview between the investigating official and the child, without any assessment of the presentation of the child that might have informed the assessment of the reliability of the evidence. Moreover, such cross-examination as there was, did no more than confirm the essence of what the text of the transcript of the complainant’s interview.

30 If the Local Court was to be so limited in the material available for it to perform its task, how might this court be expected to determine the appeal confined to the transcript of the evidence so presented. The challenge for this court is to form its own view of the facts upon the transcript of the proceedings before the magistrate, taking into account the advantage enjoyed by the magistrate who saw and heard the witnesses called before her court: Charara v R (2006) 164 A Crim R 39. The magistrate in this instance did not have any such advantage, beyond the very limited opportunity presented by the brief and largely ineffective cross examination of the complainant, in which the instructions of the appellant were not adequately presented to the witness upon whose evidence the outcome of these proceedings turned.

The Conduct of the Appeal

31 These sittings of the District Court in Goulburn began on Monday 4 August 2008 and were expected to continue over the following 3 weeks. As matters evolved, the second trial conducted during the sittings extended to the end of the fourth week.

32 The appeal was mentioned on the first day, and the hearing began the following Friday, 8 August 2008. The Crown tendered its bundle of documents, along with the transcript of the evidence led before the magistrate. The documents tendered included the transcript of the electronically recorded interview between the police and the child on 25 July 2007 but not the electronic recording of that interview.

33 My immediate response to the material tendered was that the proceedings in the Local Court were not conducted properly, for reasons that I have already endeavoured to explain. I pause to note that after having the opportunity to reflect further upon this matter I am reinforced in my initial view of the matter.

34 I stood the appeal down until later in the sittings to allow the Crown to obtain a copy of the disc upon which the interview of the child was recorded. I proposed to allow the Crown the opportunity to call fresh evidence in the form of the electronic recording. I was and remain satisfied that the interests of justice require that the disc be admitted as fresh evidence.

35 This prompted an application by Ms Walsh on behalf of the appellant for the child to be required for cross-examination. I indicated that I was sympathetic to that application in the circumstances. There was no notice of the application served on the Crown in accordance with section 19 of the Crimes (Appeal and Review) Act 2001, however the Crown was made aware by this announcement that the application would be pursued when the appeal was to be heard, which could not be until the Crown had available the recording of the interview.

36 The appeal was mentioned again on 13 August 2008 and 21 August 2008. In the interim, in the absence of Ms Walsh, the Crown informed the court that she had been advised that counsel now briefed to appear for the appellant was engaged elsewhere and could not be present at the sittings. It was anticipated that an application would be made to stand the appeal over to the next sittings. I indicated my view that the matter ought not be adjourned simply to meet counsel’s convenience, however, as matters evolved the second trial in the sittings exceeded its estimate and there was no time for the appeal to be heard and determined. Accordingly, orders were made for the appeal to stand over to the next sittings of the Court at Goulburn.

The Decision

37 These are appeals pursuant to the Crimes (Appeal and Review) Act, and accordingly are be heard and determined upon the certified transcript of the evidence before the magistrate, subject to the opportunity to call fresh evidence or require witnesses for cross examination.

38 Section 18 of the Act provides,

‘(1) An appeal against conviction is to be by way of rehearing on the basis of certified transcripts of evidence given in the original Local Court proceedings, except as provided by section 19.
(2) Fresh evidence may be given, but only by leave of the District Court which may be granted only if the Court is satisfied that it is in the interests of justice that the fresh evidence be given.
(3) The parties to an appeal are each entitled to be provided with one free copy of the certified transcripts of evidence relevant to the appeal and, if fresh evidence is given, one free copy of the transcript of the fresh evidence.’

39 Section 19 of the Act provides,

‘(1) The District Court may direct a person to attend and give evidence in proceedings on an appeal against conviction if it is satisfied:
(a) in the case of an appeal that relates to an offence involving violence against that person, that there are special reasons why, in the interests of justice, the person should attend and give evidence, or
(b) in any other case, that there are substantial reasons why, in the interests of justice, the person should attend and give evidence.
(2) An application for such a direction may be made by a party to the proceedings in relation to a particular person only if notice of the party’s intention to make such an application has been served on each other party to the proceedings within such period as the District Court may direct.
(3) If an application for such a direction is refused, the District Court must give reasons for the refusal.
(4) A direction may be withdrawn only on the application, or with the consent, of the appellant.
(5) The regulations may make provision for or with respect to the determination of special or substantial reasons for the purposes of subsection (1).
(6) Without limiting subsection (5), in determining whether special or substantial reasons exist, the District Court must have regard to whether or not the appellant was legally represented for the whole or any part of the original Local Court proceedings.’

40 As I have said, I am satisfied that it is in the interests of justice that the recording of the interview between the investigator and the complainant be admitted as fresh evidence. I am of this opinion for three reasons.

41 Firstly, the transcript of the interview of the child should not have been admitted to prove the existence of the facts that the complainant intended to assert by the representations made in the interview. It was no more than an attempt by some one to provide a transcript of what they heard from the electronic recording. The definition of recording contained in s 3 of the Evidence (Children) Act does not include the transcript of that recording. The admissible evidence is the recording of the interview, not the transcript, which could not be any more than a document in aid of the tribunal of fact when assessing the evidence in its admissible form. The transcript could never be admissible in that form, when the appellant denies the allegations made by his son.

42 Secondly, the court could not have properly assessed the reliability and credibility of the representations of the critical witness in the prosecution case without hearing that witness describe the events of which he complained. He would have been required to do this in court, in the absence of the legislation that allowed for his evidence to be presented by way of the recording, and in either case, the court would have been given the opportunity to assess the child’s evidence, and weigh the impact of appropriate cross examination conducted within proper bounds in light of the age of the child.

43 Thirdly, the appellant was entitled to have the evidence properly assessed, and his case properly presented, including by way of appropriate cross-examination. This he was denied at the Local Court by the measures taken to put before the court the description of events earlier given by the child, upon which the prosecution case depended.

44 I am also of the view that these provide special reasons why the complainant should be required to attend court to give evidence in the appeal. In addition, if the court is to be presented with the electronic recording of the interview, which I believe it must be for the reasons given, there would be grave injustice to the appellant in this appeal should he not be allowed the opportunity to cross examine the complainant about the misconduct alleged, and which would otherwise be tendered to the court without there ever having been any proper test of the assertions made.

45 When reaching this decision I have not overlooked that a solicitor represented the appellant the Local Court. I have also noted the use of the term ‘special reasons’ used s 19(1)(a), applicable to these proceedings because of the nature of the offences involving violence against the complainant. I have reviewed authority dealing with the term ‘substantial reasons’ used in s 19(1)(b), the breadth of which is emphasised in the cases. The meaning of these terms is to be construed in their context which, in the present matter, will be the consideration of the evidence and decisions by a judge whether the guilt of the appellant is proved beyond reasonable doubt: Director of Public Prosecutions v Losurdo (1998) 44 NSWLR 618. I do not believe it possible for a judge hearing these appeals to discharge this function upon the material that was before the magistrate.

46 I am convinced that for the court to be able to determine these appeals it must have the benefit of the recording of the interview, and appropriate cross examination of the complainant. The cross examination ought not however be permitted to exceed proper bounds, in light of the age of the child. It will be a matter for the judge hearing the appeals to consider that question when the matter is underway in their court. It also should not be overlooked that the complainant will be entitled to ask that he be permitted to give evidence from the remote witness room.

47 I indicated to the parties that I would prepare my judgement and provide it prior to the end of the sittings. Regrettably the work before the court during those weeks was such that I could not keep to this undertaking. On the final day of the sittings, 29 August 2008, I informed the parties that I would attend to the judgement in the days following and publish it in court on 4 September 2008.

Orders

48 For the reasons given, I make the following orders:

1) The Crown is permitted to tender as fresh evidence the electronic recording of the interview between the investigating official and the complainant on 25 July 2007, the transcript of which was Exhibit 2 in the Local Court, included in Exhibit A on appeal; and

2) The Complainant is to attend and give evidence on the hearing of the appeal.

49 I publish my reasons.

**********

Note: A previous version of this judgment was placed on the file and distributed to the parties on 4 September 2008. This subsequent version has been re-formatted for online publication and contains the following corrections:

The name of the complainant is replaced with the initials ‘DD’

at [29] ‘were not given’ is replaced with ‘were given’

at [31] ‘extended the’ is replaced with ‘extended to the’

at [36] ‘had advised’ is replaced with ‘had been advised’