Director of Public Prosecutions v Fuller

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2023 0041

THE DIRECTOR OF PUBLIC PROSECUTIONS	Applicant
v
THOMAS FULLER (A PSEUDONYM)	Respondent

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JUDGES:	T FORREST and KAYE JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	18 May 2023
DATE OF JUDGMENT:	18 May 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 121
JUDGMENT APPEALED FROM:	[2022] VSC 396 (Judge McInerney)

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CRIMINAL LAW – Interlocutory appeal by DPP – Sexual offending – Child complainants – Evidence given at special hearing – Issue raised by trial judge whether s 18 of Evidence Act 2008 complied with – Issue whether complainants asked if they objected to giving evidence – Ruling by judge that trial not proceed until satisfied that requirements of s 18 complied with – Ruling correct – Leave to appeal refused.

Evidence Act 2008 (Vic) s 18; Criminal Procedure Act 2009 (Vic) s 295.

Tran v The Queen [2017] NSWCCA 93; Fletcher v The Queen (2015) 45 VR 634; DPP v Pace (2015) 45 VR 276.

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Counsel
Applicant:		Ms E Ramsey
Respondent:		Ms A Brennan
Solicitors
Applicant:	Ms A Hogan, Solicitor for Public Prosecutions
Respondent:	SLKQ Lawyers

T. FORREST JA
KAYE JA:

The respondent is charged on an indictment with 20 charges, including incest, sexual assault, and indecent act offences, which are alleged to have been committed between 1 June 2017 and 10 June 2019. The complainants, in respect of each of the charges, are the twin daughters of the respondent, who, at the time of the alleged offending, were aged between 11 and 13 years.
Each of the complainants participated in VARE interviews with police on 11 June 2019. On 16 March 2020, a judge of the County Court (‘the first judge’) conducted a special hearing in which each complainant affirmed the contents of her VARE interview, and was cross-examined by counsel for the respondent. Subsequently, the trial was listed for hearing before a different judge of the County Court (‘the trial judge’). At a pre-trial hearing, the trial judge questioned whether the requirements of s 18 of the Evidence Act 2008 (Vic) (‘the Act’) had been sufficiently complied with before the commencement of the special hearing. After hearing argument from counsel on that matter, the judge ruled that there had not been sufficient compliance with that provision, and that, before the trial were to proceed, he, himself, should inquire of each of the two complainants whether they had understood their right to make an objection to giving evidence pursuant to s 18 of the Act.
The Director of Public Prosecutions (‘the Director’) has sought leave to appeal to this Court, under s 295 of the Criminal Procedure Act 2009, against that decision of the trial judge. The Director relies on the following proposed ground of appeal:
The learned trial judge erred in his decision not to proceed with the trial until the complainants were brought to court and questioned by him about their right to make an application under s 18 of the Evidence Act 2008.

The pre-trial proceedings

The matter first came before the first judge at a pre-trial hearing on 25 February 2020. On that date, counsel then acting on behalf of the respondent informed the judge that she had had discussions with the instructing solicitor for the prosecution as to whether the complainants had received advice as to their rights under s 18 of the Act. Counsel told the judge that she understood that, initially, the prosecution had considered that it was not necessary for the complainants to receive such independent advice, but that there had been a ‘change of heart’, and that, on that morning, the complainants had received such advice. In turn, the prosecutor confirmed that the complainants had received ‘section 18 advice’ on that morning. The judge noted that she did not have to make an ‘independent inquiry’ as to the matter, and stated that she was satisfied with the indication, given to her by the prosecutor, that such advice had been given to the complainants.
The special hearing proceeded before the first judge on 16 March 2020. In preliminary discussion, counsel for the respondent told the judge: ‘In relation to section 18 advice, I understand the witnesses had advice from a member of counsel … albeit of one year standing’. The prosecutor confirmed that that was the case. Her Honour then noted that, in view of the indications given by counsel, she was satisfied that the witnesses had obtained ‘the advice’, and she was not going to undertake any further inquiry into the matter. The special hearing then proceeded, with each of the complainants giving evidence and being cross-examined by counsel for the respondent.
As we have noted, the trial then came on for hearing in the County Court in March 2023. At a preliminary mention, on 9 March 2023, the trial judge raised the question of the sufficiency of the advice, given to each of the complainants, as to their rights under s 18 of the Act. The judge’s concern arose out of cross-examination undertaken by counsel for the respondent, in the course of the special hearing, in which one of the complainants responded that she had not been advised by police that she did not have to give evidence against her father. In response, the prosecutor told the judge that the prosecution could arrange for independent advice to be given to the complainants, and the judge observed that it was a matter that was required by s 18 of the Evidence Act to be attended to before their evidence ‘is put before the jury’.
Finally, the matter came before the trial judge again on 20 March 2023. On that date, the prosecutor drew the judge’s attention to the transcript of the preliminary hearing before the first judge on 25 February 2020, in which it was stated that advice had been given to the complainants by independent counsel. In the course of discussion, the prosecutor advised the judge of the name of that counsel, and identified him as a barrister who practised in criminal law. The judge then asked as to how the first judge had satisfied herself that the complainants did not wish to object. The prosecutor responded that a ‘fair reading of the transcript’, and based on practice and experience, indicated that that was the case. However, the trial judge then indicated that he was not satisfied, as to the matter, and that he would not allow the trial to proceed until he had reached such state of satisfaction.
After further discussion, the judge stated that he would rule that the trial not proceed until the complainants were brought to court and questioned by him as to whether they wished to exercise their right, under s 18 of the Act, to object to giving evidence in the trial.

The ruling

The judge then provided a brief ruling.[1] In essence, the judge concluded that he was not satisfied that the requirements of s 18 of the Evidence Act had been complied with. His Honour considered that it was necessary that a remote hearing take place, in which he could question the two complainants as to whether they had been advised of their rights under s 18 of the Act, as to their knowledge of those rights, and as to whether they had any objection to the evidence (which was given on the special hearing) being played before the jury.[2]
[1][2023] VCC 396.
[2]Ibid [6].

The Director’s submissions

In essence, counsel for the Director made two submissions, in support of the ground of appeal, namely:
(1)The issue, whether s 18 had been complied with, had been determined by the judge who conducted the special hearing, at which each complainant gave her evidence. It was not an issue which was appropriate for reconsideration by the trial judge.
(2)Alternatively, if the trial judge had power to reconsider the question of compliance with s 18, it was not open to him to conclude that there had not been sufficient compliance with s 18(4).
In support of the first proposition, counsel noted that, under s 18(2) of the Evidence Act, a witness, to whom the section applies, has a right to object to giving evidence at the time ‘when required to give evidence’. She submitted that, in that context, each of the complainants were required to give evidence at the time at which they physically attended for the purpose of answering questions at the special hearing. It was at that point that the witness had the right to make objection, and the first judge had ruled that the requirements of s 18 had been sufficiently complied with. Counsel further submitted that s 204 of the Criminal Procedure Act 2009, which permits a judge to overturn a pre-trial ruling of a different judge, does not apply to the present case, because s 18 requires consideration of the witness’s right to object at the time at which that witness gave evidence.
In the alternative, counsel for the Director submitted that, in any event, on the material before the trial judge, the requirements of s 18(4) of the Act had been sufficiently complied with. Counsel noted that it has long been the practice of the prosecution to arrange for independent legal advice to be provided to witnesses who appear to come within the ambit of s 18. That advice is typically provided by independent members of the Victorian Bar, which was what had occurred in the present case. Counsel noted that the prosecutor had confirmed, to the judge, that an independent member of the Victorian Bar had given advice to the complainants, in respect of s 18. In those circumstances, it was submitted, the trial judge was in error in concluding that sufficient advice had not been provided to the proposed witnesses for their rights to object under s 18.

Respondent’s submissions

In written submissions in response, counsel for the respondent submitted that the trial judge was not precluded from considering the question whether the provisions of s 18 had been adequately complied with. She submitted that, although the complainants, in effect, gave their evidence at the special hearing, nevertheless their evidence would not be presented to the jury until the trial, and, without the presentation of their evidence, there could be no effective trial of the allegations against the respondent. In those circumstances, it was submitted that the obligation imposed on a court by s 18(4) is an ‘ongoing one’, at least until the evidence, that is required to be given by the prosecution, is presented to the jury. Counsel contended that such a construction of s 18 would be in accordance with the purpose of that section, namely, to prevent unnecessary damage to the relationship between a complainant and an accused person, in the context of a family relationship. Further, it was submitted, it would be absurd to interpret s 18(4) as precluding any inquiry, by a trial judge, as to the adequacy of compliance with the provisions of s 18 at the time at which the special hearing was conducted.
Counsel further submitted that, if the applicant’s proposed construction of s 18(4) is correct, nevertheless, s 204 of the Criminal Procedure Act entitled the judge to reconsider the first judge’s decision. In the present case, it was submitted, it was appropriate for the judge to proceed, under s 204, to reconsider the decision, made by the first judge, particularly in circumstances in which, initially, the judge had not been provided with a transcript of the hearing before the first judge, dated 25 February 2020. In addition, answers given by one of the complainants, in cross-examination in the special hearing, indicated that she did not understand that she had a right to make an objection to giving evidence under s 18. In those circumstances, it was submitted, it was in the interests of justice for the prosecution to arrange a remote witness link, for each complainant, so that the trial judge could satisfy himself that each complainant understood the effect of the s 18 advice given to them.
In response to the second proposition, relied on by the Director, counsel submitted that it was clearly open to the judge to conclude that the requirements of s 18(4) had not been sufficiently complied with. Counsel noted that, although it has long been the practice for the prosecution to arrange for independent legal advice to be provided to a witness to whom s 18 applies, nevertheless, s 18 requires the court to satisfy itself that that witness is aware of the effect of the section. In the present case, the judge accepted that that s 18 advice had been given, by the independent member of counsel, to each witness. Nevertheless, the judge was concerned, as to whether the complainants had understood the effect of that advice. Counsel for the respondent accepted that it would be safe to infer that it had appeared to counsel, who gave the independent advice, that each complainant understood the effect of that advice. However, counsel submitted, it was another matter to infer, from the process, that the complainants had, indeed, understood the effect of the section, and made a decision not to object to it. In that respect, counsel referred to the age of each of the complainants, the evidence that each of them had communication difficulties, and the evidence of one of the complainants, on the special hearing, in cross-examination, that she had, in fact, not understood that she could tell police that she did not wish to give evidence against her father.

Analysis and conclusion

Section 18 of the Evidence Act provides for the compellability of spouses, de facto partners, parents and children of an accused person to give evidence in a criminal proceeding, in the following terms:
(1)This section applies only in a criminal proceeding.
(2) A person who, when required to give evidence, is the spouse, de facto partner, parent or child of an accused may object to being required—
(a)to give evidence; or
(b)to give evidence of a communication between the person and the accused—
as a witness for the prosecution.
(3)The objection is to be made before the person gives the evidence or as soon as practicable after the person becomes aware of the right so to object, whichever is the later.
(4)If it appears to the court that a person may have a right to make an objection under this section, the court is to satisfy itself that the person is aware of the effect of this section as it may apply to the person.
(5)If there is a jury, the court is to hear and determine any objection under this section in the absence of the jury.
(6)A person who makes an objection under this section to giving evidence or giving evidence of a communication must not be required to give the evidence if the court finds that—
(a)there is a likelihood that harm would or might be caused (whether directly or indirectly) to the person, or to the relationship between the person and the accused, if the person gives the evidence; and
(b)the nature and extent of that harm outweighs the desirability of having the evidence given.
(7)Without limiting the matters that may be taken into account by the court for the purposes of subsection (6), it must take into account the following—
(a)the nature and gravity of the offence for which the accused is being prosecuted;
(b)the substance and importance of any evidence that the person might give and the weight that is likely to be attached to it;
(c)whether any other evidence concerning the matters to which the evidence of the person would relate is reasonably available to the prosecutor;
(d)the nature of the relationship between the accused and the person;
(e) whether, in giving the evidence, the person would have to disclose matter that was received by the person in confidence from the accused.
(8)If an objection under this section has been determined, the prosecutor may not comment on—
(a)the objection; or
(b)the decision of the court in relation to the objection; or
(c)the failure of the person to give evidence.
The underlying policy of s 18, as identified by the Australian Law Reform Commission, is to provide a balance between, on the one hand, the public interest of having all relevant evidence available to the courts, and, on the other hand, the desirability of ensuring that the processes of the criminal law should not disrupt marital and family relationships to a greater extent than the interests of the community properly require.[3]
[3]See Fletcher v The Queen (2015) 45 VR 634, 644 [55] (Dixon AJA, Weinberg JA agreeing); [2015] VSCA 146; The Queen v A1 (No 2) [2019] NSWSC 663 [35]–[36] (Johnson J).
In seeking to achieve that balance, the section is concerned to ensure that persons, who may have a right to make an objection, have a sufficient understanding of that right, and a proper opportunity to exercise it.
In Tran v The Queen,[4] the Court of Criminal Appeal of New South Wales outlined the applicable principles, that should be applied in a case in a criminal trial in which a prospective witness, to whom s 18 may apply, is called to give evidence, as follows:
(1)The trial judge must do more than ensure that the witness is made aware of the right to make an objection to giving evidence. The witness should be informed of the provision made in s 18(6), and of the mandatory considerations, specified in s 18 (7), which the court must take into account, in determining any objection to giving evidence.[5]
(2)Where the prospective witness is represented by a legal practitioner, it will usually be sufficient for the judge to ask that representative to confirm that the person is aware of the relevant matters, and has an understanding of them.[6]
(3)If the proposed witness is not represented by counsel or by a qualified solicitor, it is desirable that the witness be given an opportunity to obtain independent advice. If it is not possible for the witness to do so, the trial judge should give the witness an explanation of the effect of the section, and of the witness’s right to object to giving evidence in the trial.[7]
[4][2017] NSWCCA 93.
[5]Ibid [27] (Macfarlan JA); [39]–[41] (Schmidt J).
[6]Ibid [28] (Macfarlan JA).
[7]Ibid [42] (Schmidt J).
The competing contentions in the present case raise two issues, namely:
(1)Whether it was open to the trial judge to revisit the question whether the requirements of s 18 had been properly complied with before each complainant gave her evidence.
(2)If the judge had such a power, whether the judge, in this case, erred in deciding that the requirements of s 18 had not been complied with at the time at which each complainant gave evidence at the special hearing.
In respect of the first question, in our view, it was clearly open to the trial judge to raise the issue whether the s 18 requirements had been complied with at the time at which the complainants gave their evidence at the special hearing.
As the trial judge in the proceeding, the judge was responsible to ensure that the trial would be conducted, and that evidence would be adduced, in accordance with the legal principles that apply to the trial. In such a case, where, as in this case, the trial judge has concern as to whether a provision, such as s 18, has been complied with, the judge ought to raise that issue with the parties.
Further, we do not consider that the conclusion by the first judge, that s 18 had been complied with, precluded the trial judge considering that issue for himself. In any case in which it may be evident to a trial judge that, at the time at which a special hearing has been previously held, the witness has not been properly made aware of the effect of s 18, and of that witness’s right to raise an objection to giving evidence under s 18(2), it would be incumbent upon the trial judge to raise that issue, and, if necessary, to make an appropriate ruling in relation to it.

In a case in which the evidence of a witness is to be given at a special hearing, s 18 requires that the witness must be aware of the effect of that provision, at the time at which that witness gives evidence at that hearing. If, subsequently, it were to become evident to the trial judge that the requirements of s 18 had not been complied with, it would be necessary for the trial judge to address that issue. If in such a case the judge, who conducted the special hearing, had ruled that the requirements of s 18 had been complied with, it would be open to the trial judge to revisit that ruling, pursuant to s 204 of the Criminal Procedure Act. In doing so, the question for the trial judge would be whether, at the time at which each complainant gave her evidence on the special hearing, there had then been appropriate compliance with the requirements of s 18.
In those circumstances, we do not accept the submission, advanced on behalf of the Director, that, at the time at which the matter came before the trial judge, his Honour was precluded from considering whether the requirements of s 18 had been complied with at the time at which each complainant gave her evidence at the special hearing.
The second question is whether the judge erred in deciding that the requirements of s 18 had not been complied with at the time at which each complainant gave her evidence at the special hearing.
It is clear that the trial judge did accept that, before each complainant had given evidence at the special hearing, an independent member of the Victorian Bar had advised them as to the effect of s 18, and their right to object to giving such evidence. Further, it is not apparent that the judge had any concern, as to the nature and quality of the advice, which counsel had given to the complainants. Rather, the judge determined that he was not satisfied that the requirements of s 18 had been complied with, because he was not satisfied that the complainants had each understood the nature and content of their right to object to giving evidence against their father, and, further, that the first judge had not been advised as to whether complainants wished to exercise their right to object to giving evidence.
As we have discussed, it is relevant, and important, that the trial judge should be satisfied that meaningful advice had been given to each of the complainants, in terms which enabled them to understand the nature and extent of their right to object to giving evidence in the trial.
In the present case, there is no suggestion that counsel, who gave advice to the complainants concerning s 18, was not properly qualified to assist the complainants in that respect. It is part and parcel of the role of counsel to advise clients, as to various aspects of the law, in terms which can be understood by the particular client. It might be reasonably expected that counsel would express the advice in terms in which the client can properly understand and assimilate. Ordinarily, a court is entitled to act on the assumption that, where an independent member of counsel has given advice to a prospective witness, about his or her rights under s 18, that advice was given in terms were capable of being understood sufficiently by that witness.
It is apparent that the trial judge was satisfied that the complainants did receive appropriate advice as to their rights under s 18. However, it was also necessary that the judge should be properly informed whether each complainant, having received that advice, had been asked whether she wished to exercise her right to object to giving evidence in the case, and, if so, whether she wished to avail herself of that right.
The trial judge was concerned that, before the special hearing was conducted, the two complainants had not been asked whether they wished to object to giving evidence. That concern by the trial judge was justified. In the preliminary hearing that took place on 25 February 2020, the first judge was only informed by counsel that the two complainants had each received ‘independent advice pursuant to s 18’. The judge responded that she did not have to make an ‘independent inquiry’, and she was prepared to accept the indication by the prosecutor that the children had received such advice.
The first judge did not, however, ascertain whether the independent practitioner, who gave the advice to the complainants, was satisfied that the complainants had understood the advice and understood their right to object under s 18. Further, and significantly, the judge was not informed whether either, or both, of the complainants had stated whether she wished to exercise her right to object to giving evidence under s 18.
In those circumstances, the trial judge was correct to raise with counsel the issue as to whether, in fact, the complainants did wish to make an objection under s 18 before they gave their evidence in the special hearing. When the judge raised that issue, counsel for the prosecution contended that it was ‘implied’, from the preliminary hearing before the first judge, that neither complainant did wish to exercise that right. Such a proposition was, on its face, insufficient to enable the trial judge to conclude that the requirements of s 18 had been complied with. In those circumstances, as the judge responsible for the trial, the trial judge was correct to rule that, before the evidence of the complainants would be admitted in the trial, he would need to properly ascertain whether each complainant had wished to object before she gave evidence in the special hearing.
The trial judge indicated that he was prepared to ascertain that matter, by making appropriate inquiry of each complainant, by remote video link, as to whether, at the time that she gave evidence at the special hearing, she had wished to object to giving evidence at that hearing. That course, proposed by his Honour, was reasonable and appropriate. The prosecutor did not advance any proposition to explain why, as the judge responsible for the conduct of the trial in the matter, the trial judge did not have the power to conduct that inquiry for himself, or why such a procedure would be inappropriate.
On this application, counsel for the Director informed us that, for particular reasons, such a procedure might, in fact, have been difficult for the complainants. That information was not conveyed to the trial judge. However, in view of that information, it would be desirable that his Honour give consideration to whether there may be alternative means, other than by directly questioning the complainants by video link, in order to clarify whether, before they gave evidence at the special hearing, each complainant understood that she had a right to object to giving that evidence, and, if so, whether each complainant had indicated whether or not she had then wished to make any such objection to doing so.
For those reasons, the second proposition, relied on in support of the appeal, must be rejected. Accordingly, the application for leave to appeal must be refused.
Before departing from the matter, it is appropriate that we express our concerns about the appeal in this case. The process of interlocutory appeals is a very useful and convenient method of determining issues, which may substantially affect the conduct of a criminal trial, and, in particular, those issues which could later lead to a different result on appeal. It is for that reason that the Court gives priority to the hearing and disposition of such appeals. However, this Court has, on innumerable occasions, emphasised that the procedure should not be misused by seeking to resolve issues of evidence or procedure that are not fundamental to the conduct of the trial.
In DPP v Pace (a pseudonym),[8] Priest and Beach JJA stated the relevant principles in the following terms:
… the language of the statute makes it plain that interlocutory appeals should not be the norm, and should be reserved for unusual cases where the determination of an appeal against an interlocutory decision may render the trial unnecessary; substantially reduce the time required for the trial; resolve an issue of law, evidence or procedure that is necessary for the proper conduct of the trial; or reduce the likelihood of a successful appeal against conviction in the event that the accused is convicted at trial. These fetters on appellate intervention emphasise, in our view, that Parliament intended to uphold the authority of the trial judge, and that such authority should not lightly be interfered with. Thus, in our view, without seeking to be overly prescriptive, leave to appeal an interlocutory decision should not readily be granted, and should only be granted if, for example, it can clearly be discerned that there has been some error of principle which may lead justice to miscarry, or which may be permeated unless corrected. This case does not come close to fitting that mould.[9]
[8](2015) 45 VR 276.
[9]Ibid 283-4 [25] (citation omitted); see also DPP v Wise [2016] VSCA 173 [5] (Warren CJ, Weinberg and Priest JJA); Harris v The Queen [2017] VSCA 316 [56]–[59] (Maxwell P, Priest and Kyrou JJA); Marston v The King [2022] VSCA 253 [6] (Priest, T. Forrest and Taylor JJA).
The issues raised in this application were not even remotely of the kind for which the process of interlocutory appeal should be employed. They were entirely inappropriate for agitation on such an appeal.

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[2023] VSCA 121

18 May 2023