H, SA v Police - [2013] SASCFC 86

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court: Youth Court Appeal)
H, SA v POLICE
[2013] SASCFC 86
Judgment of The Full Court
(The Honourable Justice Kelly, The Honourable Justice Blue and The Honourable Justice Nicholson)
16 August 2013
CRIMINAL LAW - EVIDENCE - CONFESSIONS AND ADMISSIONS - STATEMENTS - VOLUNTARY STATEMENTS - VOLUNTARINESS - PARTICULAR CASES
CRIMINAL LAW - EVIDENCE - CONFESSIONS AND ADMISSIONS - STATEMENTS - VOLUNTARY STATEMENTS - PERSON IN AUTHORITY
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - POLICE INTERROGATION - DISCRETION TO EXCLUDE CONFESSIONAL STATEMENTS
CRIMINAL LAW - EVIDENCE - MISCELLANEOUS MATTERS - STATUTORY PROVISIONS RELATING TO EVIDENCE OF CHILDREN
CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE
The appellant was convicted by a Judge of the Youth Court of four counts of unlawful sexual intercourse. The Crown case was that the appellant, who was then aged 14, performed cunnilingus on his step-sister, who was then aged 5, on four occasions. The appellant appeals on the grounds that:
1. the Judge erred in admitting evidence of a confession by the appellant to police because the confession was not made voluntarily or, alternatively, because it should have been excluded in exercise of the Judge’s discretion;
2. the Judge erred in admitting evidence of an interview of the complainant by a psychologist under section 34CA of the Evidence Act 1929 (SA); and
3. the convictions on all counts were unsafe and unsatisfactory.
Held by the Court (allowing the appeal):
1. Per Blue J, Nicholson J agreeing: The appellant made the confession in circumstances in which his will was overborne by duress, intimidation, persistent importunity and sustained and undue pressure. The confession was therefore involuntary and inadmissible (at [110]-[115]).
Per Kelly J (contra): The circumstances in which the appellant made admissions to the police do not bring the confession within the reach of “basal involuntariness” (at [38]).
2. Per Kelly J: The appellant’s confession was not induced by any threats or promises from any person in authority. The confession was therefore voluntary (at [33]).
Per Blue J, Nicholson J agreeing: It is unnecessary to decide whether the appellant’s confession was not voluntary as being induced by threats or promises in the presence of a person in authority (at [117]-[118]).
3. The record of interview of the appellant should be excluded in the exercise of the Court’s discretion (at [51] per Kelly J, Blue and Nicholson JJ agreeing).
4. The trial Judge did not err in admitting evidence of the complainant’s interview pursuant to section 34CA of the Evidence Act 1929 (SA) because the defendant’s counsel conceded the pre-requisites and did not require the attendance of the complainant to be cross-examined (at [158]-[169] per Blue J, Kelly and Nicholson JJ agreeing).
5. The verdicts were not unsafe or unsatisfactory (at [59] per Kelly J, at [172] per Blue J, Nicholson J agreeing).
6. Conviction set aside. Matter remitted for trial (at [61], [172], [179]).
Evidence Act 1929 (SA) s 9, s 34C, s 34CA, s 34M, s 45A, s 45B; Youth Court Act 1993 (SA) s 22(2)(d); Criminal Law Consolidation Act 1935 (SA) s 49, s 353; Evidence Act Amendment Act 1988 (SA); Statutes Amendment (Evidence and Procedure) Act 2008 (SA), referred to.
Johnson v Buttrest (1936) 56 CLR 113; R v Byerley [2010] SASCFC 3; (2010) 107 SASR 517; R v Cleary (1963) 48 Cr App R 116 ; R v Cox [2006] SASC 188; R v French [2012] SASCFC 118; (2012) 114 SASR 287; R v Justelius (1973) 1 NSWLR 471; R v McGrath (1869) LR 1 CCR 205; R v Moore (1972) 56 Cr App R 373 ; R v P, BR [2004] SASC 323; R v Pascoe [2004] SASC 420; (2004) 90 SASR 505; R v Sharp [1988] 1 All ER 65; R v Starrett [2002] SASC 175; (2002) 82 SASR 115; R v Swaffield [1998] HCA 1; (1998) 192 CLR 159; Walton v R (1989) 166 CLR 283, discussed.
Cornelius v The King (1936) 55 CLR 235; McDermott v The King (1948) 76 CLR 501; R v J, JA [2009] SASC 401; (2009) 105 SASR 563; R v Geesing (1985) 38 SASR 226; R v Lee (1950) 82 CLR 133; Tofilau v The Queen [2007] HCA 39; (2007) 231 CLR 396; R v Frederick [2004] SASC 404, considered.

H, SA v POLICE
[2013] SASCFC 86
Full Court: Kelly, Blue and Nicholson JJ
KELLY J.
Introduction

This is an appeal against conviction. The appellant was convicted after a trial in the Youth Court of four counts of unlawful sexual intercourse. The information laid on 14 June 2011 alleged four counts of rape (counts 1, 3, 5 and 7) and four counts of unlawful sexual intercourse in the alternative (counts 2, 4, 6 and 8). The counts of rape were withdrawn during the course of the trial.
An appeal from a judgment given by a Judge sitting in the Youth Court lies to the Full Court of the Supreme Court.[1] The appeal is of right.
[1] Youth Court Act 1993 (SA) s 22(2)(d).
The grounds of appeal are that the trial Judge erred in admitting the record of interview conducted with police on 10 June 2011, that the Judge erred in admitting the evidence of out of court statements made by the complainant in a forensic interview with a psychologist and that the convictions on all counts were unsafe and unsatisfactory.
The appellant’s primary submission on appeal is that the appellant’s record of interview should not have been admitted into evidence as the admissions contained within that interview were the result of sustained pressure by a person who accompanied the appellant to the interview. The appellant argued that the circumstances of the interview meant that the admissions were involuntary or, if the admissions were voluntary, that the Judge should have excluded the record of interview in the exercise of the general unfairness discretion.
The appellant further argued that the admission of the complainant’s forensic interview pursuant to s 34CA of the Evidence Act 1929 (SA) (“Evidence Act”) required a determination by the Judge as to the complainant’s capacity to give evidence on oath or unsworn evidence. The appellant contended that the Judge’s failure to make such a determination meant that the interview was inadmissible at trial.
Finally, in support of the ground that the convictions were unsafe and unsatisfactory, the appellant contended that the Judge relied on both the account given by the complainant in the forensic interview and the admissions made by the appellant in his record of interview when the two versions were inconsistent and irreconcilable.
Background
The charges relate to four separate incidents at two different locations. Counts 2, 4 and 6 on the information were alleged to have occurred at Prospect between 30 April 2010 and 1 October 2010. Count 8 was alleged to have occurred in Enfield[2] between 1 April 2011 and 15 April 2011. The prosecution opened the case by particularising the counts as follows:
In relation to count 1 … She states that she was in [H]’s bed when [H] pulled her pants down, licked her bottom and told her not to tell anyone. She said it felt slippery and was inside my front bottom.
Count 2, [H] pulled her pants down when she was on [H]’s bed, licked her bottom and told her not to tell anyone. They were living in Prospect and she was wearing a pink dress with rainbows on it.
Count 3, Enfield; her pants were pulled down by [H] and again her bottom was licked and then in relation to count 4, [H] pulled her knickers and then licked her bottom. They were living in the new house, it happened in the bed in [H]’s room under a blanket so adults couldn’t see. She was also kissed on the lips and she was told not to tell mum and dad.
While this was happening the mother came in and caught [H] and then got cross.
[2] The information refers to Enfield, but the trial was conducted on the basis that this was a reference to a house at Clearview.
The prosecution alleged, and the Judge found, that the complainant’s interview disclosed four distinct episodes of unlawful sexual intercourse:
1an occasion at the “new house” under the blanket in his bed when her mother intervened (count 8 on the information);
2an occasion at the “new house” when she was wearing a red dress;
3an occasion at the “old house” when she was wearing a pink T-shirt and pants; and
4an occasion at the “old house” when she was wearing a pink dress with rainbows on it.
The reference in the prosecution opening to counts 1, 2, 3 and 4 was a reference by the prosecutor to counts 2, 4, 6 and 8 on the information.
At the time counts 2, 4 and 6 on the information were alleged to have been committed, the appellant was between 14 and 15 years old, while the complainant was five years old. At the time of count 8, the appellant was 15 years old and the complainant was between five and six years old.
In late 2007, the appellant’s father commenced a relationship with the complainant’s mother. The appellant’s father and the complainant’s mother lived together, along with the complainant and the appellant’s brother. In May 2010, the appellant began to live with them at a house in Prospect. The family later moved to a house in Clearview. It was not clear on appeal when that move occurred.
The allegations came to light around Easter 2011, when the complainant’s mother walked into a shed that served as the appellant’s bedroom. On entering the appellant’s bedroom, she observed that the appellant’s feet were sticking out the bottom of the bed under a blanket or a sheet. She could not see his head. The complainant was sitting upright in front of the appellant with the blanket covering her. The appellant slid out from under the blanket and left the room. On removing the cover off the bed, the complainant’s mother noticed that the complainant was not wearing her underwear. The complainant became distressed and made a complaint that the appellant had been “licking her little lump and playing with her bottom”. There was evidence that the complainant used the word “bottom” to refer to her vagina area.
Approximately two months later, the complainant made a complaint of an earlier episode of indecent touching by the appellant at the “old house”. Counsel accepted that the reference to the “old house” must have been a reference to the house in Prospect.
The complainant’s forensic interview
On 26 May 2011, the complainant was interviewed by a psychologist. The interview was video recorded.
A copy of the video was admitted pursuant to s 34CA of the Evidence Act. The psychologist was called and the interview was tendered and admitted during her evidence. Importantly, counsel for the appellant at trial conceded that the threshold under s 34CA(1)(a) had been met and later announced that he would not be applying to cross-examine the complainant. The interview was then tendered without objection.
The complainant did not give evidence. It was clear from comments made by the police prosecutor that the complainant was, at the time, in the jurisdiction and available to be called if required.
The appellant’s record of interview
The appellant commenced living with a neighbour, Mr Kaplanis, approximately three weeks prior to the appellant’s interview with police. He was still living with Mr Kaplanis at the time of the interview on Friday 10 June 2011. The appellant’s father was interstate and it was apparent from the interview that the appellant had limited contact with him. The appellant was apparently not in contact with his mother.
On appeal, counsel for the appellant stated that the appellant left the house at Clearview very soon after the allegations came to light. He submitted that the appellant had effectively been abandoned by his parents and was dependent upon the tenuous living arrangements with Mr Kaplanis. The record of interview reveals that the appellant was clearly distressed about his family situation and, in particular, the absence of his father.
The appellant’s interview with police commenced at 5.30pm. There was a break between 7.17pm and 7.43pm. The interview did not conclude until 9.00pm. There were two short breaks in the video recording from 5.50pm to 5.52pm and 8.00pm to 8.05pm.
During the course of the interview the appellant described the incident that occurred at Easter and the events that occurred afterwards. Over the first one hour and 45 minutes of the interview, he consistently denied the offending. Just before the break at 7.17pm the appellant made admissions to the effect that he had “done it”.
After the break, the appellant made further admissions in relation to the incident at Easter. He then made further admissions that he had done the same thing at the house in Prospect.
The appellant was 15 years old at the time of the interview. The interview was conducted over a period of approximately three and a half hours. The admissions relied upon by the prosecution were made after the appellant had been interviewed for a period of approximately two hours.
The appellant gave evidence on the voir dire. His evidence was that during the interview he felt that Mr Kaplanis was “niggling” at him, and that he thought Mr Kaplanis was “trying to push [him] into saying something that [he] didn’t do”. He stated that he was scared of Mr Kaplanis. The appellant further gave evidence that during the break at 7.17pm, Mr Kaplanis gave him his mobile phone and he spoke with his father. The appellant gave evidence that his father said, “agree with all the allegations, Pete’s boys were going to bash me”.
Mr Kaplanis participated in the interview by making repeated comments throughout to the appellant about the allegations, his views as to the veracity of the appellant’s answers, the consequences for the appellant if he lied and the need to make a confession to police.
Counsel for the appellant submitted that the admissions made by the appellant were obtained following a prolonged period of intense psychological pressure by Mr Kaplanis. It was further submitted that the police officers conducting the interview did nothing to control that pressure and, to some extent, the officers joined in and relied on the statements made by Mr Kaplanis.
Grounds 1 and 3
It is convenient to first deal with grounds 1 and 3. Ground 1 contended that the confession made by the appellant when interviewed by the police was involuntary. Ground 3 contended in the alternative, that even if the interview was properly admissible on the basis that it was voluntary, it nevertheless should have been excluded in the exercise of the general unfairness discretion.
A confessional statement will be excluded as involuntary if it has been obtained from the accused by fear of prejudice or hope of advantage exercised or held out by a person in authority. The classic statement of the basic principle was set out in McDermott v The King:[3]
At common law a confessional statement made out of court by an accused person may not be admitted in evidence against him upon his trial for the crime to which it relates unless it is shown to have been voluntarily made. This means substantially that it has been made in the exercise of his free choice. If he speaks because he is overborne, his confessional statement cannot be received in evidence and it does not matter by what means he has been overborne. If his statement is the result of duress, intimidation, persistent importunity, or sustained or undue insistence or pressure, it cannot be voluntary. But it is also a definite rule of the common law that a confessional statement cannot be voluntary if it is preceded by an inducement held out by a person in authority and the inducement has not been removed before the statement is made: per Cave J. in R. v. Thompson. The expression "person in authority" includes officers of police and the like, the prosecutor, and others concerned in preferring the charge. An inducement may take the form of some fear of prejudice or hope of advantage exercised or held out by the person in authority
[footnote omitted]
[3] (1948) 76 CLR 501 at 511.
It is for the prosecution to show, on the balance of probabilities, that a confession is voluntary. Even if that is so, the court may still reject the evidence in the exercise of its discretion if it considers in all of the circumstances it would be unfair to the accused to admit the interview.
After hearing evidence on the voir dire including evidence from the appellant, the trial Judge ruled that the interview was admissible and admitted it. His Honour found that the interview was voluntary and it would appear from the reasons, although it is not entirely clear, that his Honour also declined to exclude the record of interview in the exercise of the discretion. The trial Judge did exclude a portion of the interview commencing from the interventions of the police officer Marsden towards the end of the interview.
In Tofilau v The Queen,[4] the High Court discussed the principles which apply when determining the issue of voluntariness and the discretionary exclusion of confessional evidence. Callinan, Heydon and Crennan JJ (with whom Gleeson CJ agreed) there concluded:[5]
Whether the basis of the inducement rule be reliability, preventing improper state coercion, disciplining the police, or avoiding unfair reductions in the choice of suspects to speak, a perception by the suspect that the coercive power of the state is being used is central: … Where that perception does not exist, the basis of the inducement rule is not present. It is true that the coercive power of bodies or persons other than the state can be as coercive in particular cases as that of the state, but to select that fact as a reason for devising a new inducement rule would be to create a rule wider than that which the appellants are seeking. It would be to abandon the "person in authority" requirement. It would be to compel the prosecution to establish the voluntariness of every statement against interest made by an accused to any person. To require that is to impose "an overwhelming burden".
[footnote omitted, emphasis added]
[4] (2007) 231 CLR 396.
[5] Tofilau v The Queen (2007) 231 CLR 396 at [320].
The reasoning of and conclusion reached by the majority in Tofilau militates against the argument advanced by the appellant that the role played by Mr Kaplanis during the interview with the appellant was such that he might properly be regarded as a person in a position of authority. A person cannot be regarded as a person in authority for the purpose of the voluntariness rule unless that person is perceived by the accused on reasonable grounds to have lawful authority to investigate or prosecute the crime. There has been no suggestion that the role played by Mr Kaplanis should be characterised in that way or that the appellant had any such perception.
There has been no complaint made about the conduct of the principal investigating officer Hadley during the course of the interview. I cannot accept the submission made that the police officers did nothing to control the behaviour of Mr Kaplanis and, to some extent, joined in with some of the interventions by Mr Kaplanis. On the contrary, at times the police officer intervened in an endeavour to bring Mr Kaplanis’ interventions to a halt, telling him, “Pete. That will do okay”, “Alright Pete. Just let [H] answer”, “Pete. Pete just one second okay”, and other words to like effect. For these reasons I do not accept the submission that the police officers by their conduct adopted or approved of the conduct of Mr Kaplanis during the interview.
Accordingly, in accordance with the principles enunciated in Tofilau[6] I reject the submission that the confession made by the appellant during the interview was involuntary on the basis that it was induced by any threats or promises from any person in authority.
[6] (2007) 231 CLR 396.

However, there remains another aspect of the voluntariness principle which needs to be addressed in the light of the appellant’s admissions in this matter. In Tofilau[7] the majority described this aspect of the voluntariness principle as “basal involuntariness”. The basal involuntariness principle does not require satisfaction of the “person in authority” rule in order for the exclusion of the interview as involuntary.
[7] (2007) 231 CLR 396.
The principle of basal involuntariness was expressed in Cornelius v The King by Dixon, Evatt and McTiernan JJ in this way:[8]
[A] promise of advantage and a threat of harm are not the only matters which may deprive a statement of its voluntary character. For instance, a confession which is extracted by violence or force, or some other form of actual coercion is clearly involuntary, and, therefore, cannot be received in evidence.
[8] (1936) 55 CLR 235 at 246.
In McDermott v The King, Dixon J observed:[9]
It is perhaps doubtful whether, particularly in this country, a sufficiently wide operation has been given to the basal principle that to be admissible a confession must be voluntary, a principle the application of which is flexible and is not limited by any category of inducements that may prevail over a man's will.
[9] McDermott v The King (1948) 76 CLR 501 at 512.
This aspect of the voluntariness principle was also discussed in Tofilau with the plurality concluding:[10]
The aspect of the basal involuntariness doctrine under discussion has only occasionally led to exclusion. A confession late at night by an accused person who had fainted twice, had difficulty in moving and was “in a dopey condition” was excluded on the ground that the prosecution had not established that it was voluntary. The same result applied to a confession by a person who, after stabbing another person, had “blacked out” and attempted suicide by taking poison and by jumping into Auckland Harbour; he was found in wet clothing, cold, shivering, frothing at the mouth and in a distressed state; he had repeatedly vomited; and he had been rushed to hospital where his stomach had been forcibly pumped out before the confession was elicited. But instances of this kind, where there has been automatic exclusion on grounds of involuntariness, as distinct from discretionary exclusion, are rare.
[footnotes omitted]
[10] Tofilau v The Queen (2007) 231 CLR 396.
I do not consider that the circumstances in which the appellant made admissions to the police in this matter constitute one of those exceptional cases referred to by the High Court in Tofilau.[11]
[11] (2007) 231 CLR 396.
I have had the benefit of reading in draft the reasons of Blue J for concluding that the interview is involuntary. It is one thing to say that the trial Judge’s reasons are inadequate. It is quite another to conclude from that failure that he therefore must have accepted all of the evidence of the appellant. I am not prepared to infer that an experienced Judge would accept that serious threats of the nature alleged by the appellant were made but nevertheless disregard that evidence for the purpose of reaching a conclusion on the issue of voluntariness. This is particularly so in light of the fact that neither Mr Kaplanis nor the appellant’s father were called to corroborate the appellant’s evidence. For this reason I must respectfully record my disagreement with the analysis of the evidence on this ground by Blue J. In my view, the confession was not involuntary.
This is not to say, however, that the role played by Mr Kaplanis during the interview was irrelevant. The Court nevertheless retains a discretion to exclude evidence of admissions where the circumstances as a whole would render it unfair to the accused to admit that evidence.
The relevant circumstances here include the age and mental condition of the appellant, his relationship with and dependence upon Mr Kaplanis and the circumstances of the interview itself, which lasted for several hours and was punctuated by repeated interjections by Mr Kaplanis.
At the time of the interview, as I have previously noted, the appellant was living with Mr Kaplanis and his family. His father was interstate and the appellant had only limited contact with him. He had apparently no contact at all with his mother. The interview went for over three and a half hours. The admissions which the prosecution relied on were made after the appellant had been interviewed for over two hours.
The interjections made by Mr Kaplanis were numerous and included the following:
Just come clean mate. This is a little girl involved.
…
I’m worried about that girl.
…
[W]e need to get to the bottom of it mate.
…
I told you [H], if youse are involved. Youse will wanna get the fuck away from me mate. … but I would like to know the truth myself at the end. What’s going on something funny’s going on.
With respect to the complainant’s allegations Mr Kaplanis said:
[S]he is a nice girl man. She is very intelligent.
…
And she doesn’t have the habit to lie mate. I’ve never known that little girl to do that mate.
…
She’s a sweet innocent girl mate. It’s not in her blood to do that.
…
Just come clean. That’s what we’re here for. … they’re not gonna back off.
…
Just tell them the truth [H]. … Get it off your chest and we can go home mate no bullshit.
…
I’ll kick you out if you’re lying mate … I’ll just walk out of here and leave you here … Don’t lie to me. I’ll get dirty mate. I’ll, I really will. I don’t care. I don’t care. … Just come clean.
…
Just tell them mate. Let’s get it over with … We can go home and we’ll worry about the next problem. I’m not gonna put you on the street like a dog. … I would if I find out different. I don’t give a fuck mate. I’ll just throw you out.
After some of those comments were made, one of the interviewing officers intervened and explained to the appellant “the reason that Pete’s here is because he’s representing your interest right …”.
Immediately after that remark the appellant became distressed at the absence of his father and then made a general admission to having abused the complainant. The appellant was then permitted a short break, during which time he had a cigarette and telephoned his father. As earlier discussed, the appellant alleged that, during this call, his father threatened him. Following the resumption of the interview after this telephone call, the appellant then made a number of damaging admissions. The trial Judge relied in part on those admissions in concluding that the appellant was guilty.
I have reached the conclusion that the role played by Mr Kaplanis during the interview was very significant as far as the appellant was concerned. Although the trial Judge analysed in considerable detail the role played by both Mr Kaplanis and the second police officer Marsden in that interview, his Honour’s conclusion that only those portions of the interview following the police office’s interventions should be excluded is somewhat surprising.
For the purpose of determining the admissibility of the interview, the trial Judge had the benefit of a forensic psychological assessment of the appellant. That assessment by Mr Broomhall, a registered psychologist, concluded that although the appellant did not have a mental incompetence defence, his ability to understand and follow court proceedings might be particularly impaired because of a developmental and learning disorder which affected his ability to concentrate and his long term memory. The psychologist also expressed the view that in light of the age, intellectual impairment, and developmental disorder suffered by the boy, the interview technique and style, particularly given the role played by Mr Kaplanis, was completely inappropriate.
The trial Judge gave only cursory attention to these matters. He said:
Now, what Mr Stratton-Smith says about that passage, without referring to it directly, is that in this case I should look at a number of things. They include a Broomhall assessment of the [appellant] and his intellect and capacities and the interventions of and exhortations of Kaplanis, in the circumstances in which the [appellant] then found himself - his father being absent, his mother being absent and so on. They fall under the heading, or at least the headings, of age, race, intellect, education and literacy; but to that list can also be added the relationship between Kaplanis and the [appellant].
It is difficult to perceive what, if any, weight the Judge accorded to the psychologist’s assessment of the appellant’s intellectual and emotional capacity. Viewed as a whole, the role played by Mr Kaplanis during the interview was overbearing, at times intimidating, and was almost certainly perceived in that way by the appellant. The home which Mr Kaplanis had offered to the appellant was, after all, the only factor which appeared to have stood between the appellant and incarceration at that time. The appellant was therefore in a particularly invidious situation. Having been abandoned by his father, with little or no contact with his mother, and Mr Kaplanis adopting the role of cross-examiner during the interview, it is unsurprising that after a period of almost two hours the appellant broke down and confessed. It is evident from the foregoing that the role played by Mr Kaplanis was far more significant than anything said by the police officer Marsden, especially in light of the fact that Marsden’s interventions came at a very late stage of the interview after most of the damaging admissions had already been made by the appellant.
For all of these reasons, I have reached the conclusion that the exercise of the discretion miscarried. The record of interview should have been excluded.
For these reasons I consider that the trial has miscarried. On this ground alone I would allow the appeal.
Ground 2
Ground 2 is a complaint that the statement of the complainant was wrongly admitted into evidence at the trial, as the preconditions necessary for its admission pursuant to the provisions of s 34CA of the Evidence Act were not met. I agree with the reasons and conclusion of Blue J with respect to this ground and wish to add only one comment. This Court has commented more than once on the difficulties in the construction of s 34CA of the Evidence Act. The facts of this case, as Blue J’s analysis demonstrates, well illustrate the ongoing difficulties in the construction of this section. These difficulties will continue until and unless the legislature sees fit to remedy the problem.
Ground 4
The appellant submitted that the verdicts were unsafe and unsatisfactory. The basis for this complaint was said to lie in the fact that the appellant’s admissions were irreconcilable with the version of events given by the complainant. The appellant’s version was said to be irreconcilable because the appellant admitted to only one count at the new house (Enfield) and not two as recounted by the complainant. There was a further complaint that at no stage did the prosecutor identify to the Court which of the first three counts related to the various admissions and or complaints.
This complaint can be dealt with shortly. It is correct that the account given by the complainant was at odds with the account given by the appellant to the extent that the complainant alleged two episodes of the sexual offending which occurred at the old house and two which occurred at the new house, while the appellant admitted to three episodes of offending at the old house and the count at the new house which was interrupted by the complainant’s mother. In all other respects there was a remarkable coincidence in the accounts given by both the complainant and the appellant.
It has never been the case that the prosecution must prove either the precise date or location pleaded in an information. As Duggan J said in R v Frederick:[12]
It is clear that, as a general rule, averments in an information relating to time and place are immaterial. If it is established that the act or acts relied upon to constitute the offence were within the jurisdiction, the precise location is not an element of the offence except where the definition of the offence requires proof of a particular location such as the offence of larceny in a dwelling house. Allegations as to time will be material in some cases such as in the case of those sexual offences where the age of the complainant is one of the elements of the offence.
[12] [2004] SASC 404 at [36].
This was not a case where the allegations either as to time or place were material. As can be seen from the prosecutor’s opening (see [7] herein), the prosecution opened on four distinct episodes, two were said to have occurred at the old house (Prospect) and two at the new house (Enfield).
There was ample evidence in the complainant’s interview with the psychologist to support the conclusion which the trial Judge reached, namely that he was satisfied beyond reasonable doubt of four distinct episodes identified by the complainant. The four distinct episodes comprised an occasion at the new house when she was under the blanket in the appellant’s bed when her mother came in, an occasion at the new house when she was wearing a red dress, an occasion at the old house when she was wearing a pink t-shirt and jeans, and another occasion at the old house when she was wearing a pink dress with rainbows on it.
This was not a case where either the precise date or location of each offence was a material averment. In the circumstances of this case, the differences in the accounts given by the complainant and the appellant, respectively, as to the location of the offending does not provide any basis to render the verdicts unsafe or unsatisfactory.
Upon the whole of the evidence I consider it was open to the Judge to be satisfied beyond reasonable doubt that the appellant was guilty of each of the four counts.
Conclusion
Even though the evidence from the complainant and the complainant’s mother was capable of supporting the verdicts of guilty, it could not be said in all of the circumstances that, absent the admissions made by the appellant, convictions would inevitably have followed. Moreover, there is a real question whether the concessions made by counsel for the appellant at trial could have justified the admission of the out of court statement of the complainant pursuant to s 34CA of the Evidence Act. It is for these reasons that I consider that the appeal should be allowed, the conviction quashed and the matter remitted for trial before a different judge.
BLUE J: The appellant/defendant, H, S, was convicted by a Judge of the Youth Court of four counts of unlawful sexual intercourse.[13]
[13] Criminal Law Consolidation Act 1935 (SA) s 49.
The defendant appeals against the convictions on essentially three grounds:
1.the trial Judge erred in admitting evidence of a confession by the defendant to the police because it was not voluntary (ground 1) or it should have been excluded in the exercise of the Judge’s discretion (ground 3);
2.the Judge erred in admitting evidence of an interview of the complainant by a psychologist under section 34CA of the Evidence Act 1929 (SA) (“the Evidence Act”) (ground 2);
3.the convictions were unreasonable and cannot be supported having regard to the evidence because, in relation to the third count, the complainant’s complaint and the defendant’s confession were inconsistent and irreconcilable (ground 4).
The prosecution case
The prosecution case was that the defendant performed cunnilingus on the complainant on four occasions:
1.in 2010 at a house at Prospect at which the defendant and complainant were both living, on an occasion on which the complainant was wearing a pink t-shirt and jeans;
2.in 2010 at Prospect on an occasion on which the complainant was wearing a pink dress with rainbows on it;
3.in 2010 at a house at Clearview[14] at which the defendant and complainant were both living;
4.in April 2011 at Clearview[15] on an occasion on which the complainant’s mother came into the room and disturbed them.
[14] The Information alleged that the third occasion occurred at the Prospect house and not the Clearview house.
[15] The Information alleged that the fourth occasion occurred at Enfield but the case was conducted on the basis that this was a reference to Clearview.
The evidence
The prosecution evidence principally comprised a record of interview of the complainant by a psychologist on 26 May 2011 which was tendered and received pursuant to section 34CA of the Evidence Act and a record of interview of the defendant by the police on 10 June 2011.
In addition, the complainant’s mother gave evidence that around Easter 2011 she entered the defendant’s bedroom and saw both the defendant and the complainant under the covers of the bed. The complainant’s mother and grandmother also gave evidence of complaints under section 34M of the Evidence Act.
While the defendant gave evidence on the voir dire, he did not give evidence at the trial itself.
Background
The defendant was born in September 1995. The complainant was born in April 2005. In late 2007, the complainant’s mother commenced a relationship with the defendant’s father. They came to live together at the house at Prospect with the complainant and the defendant’s half-brother (another of his father’s sons).
In about May 2010, the defendant moved into the Prospect house to live with his father. He was then 14 years old. He had only learnt the identity of his true father when he was 11 and first met his father when he was 12. He lived with his mother in Victoria with very limited contact with his father until May 2010.
In late 2010 or early 2011, the combined family moved from Prospect to Clearview.
Around Easter 2011, the complainant’s mother saw the defendant and complainant in bed in the defendant’s bedroom. After that incident, the defendant’s father’s relationship with the complainant’s mother ended and his father moved interstate. The defendant was placed in foster care. His father ceased contact with him. His mother was still living in Victoria and did not have contact with him.
On 26 May 2011, the complainant was interviewed by a psychologist and an audio visual record was made on a DVD.
At about the same time, the defendant’s father moved him from the first foster carer to the foster care of Mr Kaplanis, who had been a next door neighbour when the combined family lived at Prospect. Mr Kaplanis lived in that house with his children. Mr Kaplanis had discussions with the defendant concerning the complainant’s allegations before 10 June 2011.
The interview of the defendant
On 10 June 2011, Senior Constable Hadley attended at Mr Kaplanis’ address. This was about three weeks after the defendant was placed in the foster care of Mr Kaplanis. Senior Constable Hadley arranged for Mr Kaplanis to accompany the defendant to the police station for an interview. Mr Kaplanis was acting in loco parentis to the defendant and Senior Constable Hadley gave evidence that she so regarded him.
The interview commenced at 5.30 pm. At the outset of the interview, Senior Constable Hadley told the defendant that, because he was only 15 years old, the police had Mr Kaplanis there as his friend.
The initial part of the interview comprised questioning by Senior Constable Hadley and Constable Marsden of the defendant. He denied any misconduct.
After the initial questions by the police, Mr Kaplanis commenced conversing with both the police officers and the defendant. He said that he had questioned him and that he had expressed his own opinion to the defendant as to whether he had committed sexual misconduct with the complainant. At approximately 6.00 pm, Mr Kaplanis said:
And I have seen [the complainant] and [the complainant’s mother] and all them and they’ve said different versions to me and I’ve confronted [S] about it and I said, listen, they say different [S]. Just come clean mate. This is a little girl involved.
...
and I’m not saying. I don’t care mate at the end of the day. I am worried about that girl
...
If something went on. Then you need help. I’ve said that to ya.
...
Yeah you know what I mean but we need to get to the bottom of it mate.
...
Because it’s not good

The interview between the police and the defendant then resumed without significant interruption by Mr Kaplanis. The defendant continued to deny any wrongdoing.
After the interview he proceeded for approximately 1½ hours, Mr Kaplanis commenced to intervene again. At approximately 7.00 pm, Mr Kaplanis said:
I told you [S], if yous are involved yous will want to get the fuck away from me mate. Because, I don’t think that’s right in the first place you know over a little girl and that’s bullshit but I would like to know the truth myself at the end. What’s going on something funny’s going on.
...
But she is a nice girl man. She is very intelligent.
...
She doesn’t have the habit to lie mate I’ve never known that little girl to do that mate she is ah, so bright and innocent girl. I’ve never known her to do that. I could see your parents and all yous manipulating her but not her just coming out doing that mate. No way. I can see that myself.
…
... I can see her lying and covering up for you and your mum because yous told her to do and you blackmailed her but it’s not in her. It’s not in her. No way mate. She is a sweet innocent girl. It’s not in her blood to do that.
...
There must be more going on in that house that a lot of people don’t know then [S]. You know like yous getting belted or what. Because, I don’t know [S] you need to speak up. Because this is your ass on the line. It’s not mine. You know what I mean. It just doesn’t make sense mate and if I had your old man, I’d be wringing his neck and finding out myself but, he’s disappeared you. You know. Because, it is bullshit.
...
Just come clean. Even if you did make a mistake. I told you I will help you man.
…
... If you done it that one incident [S]. Please man. You didn’t mean to maybe you touched it to have a look like a doctor you thought you were. Just come clean man. No bullshit. It’s for the girl’s sake. It’s not your ass man. You. You know what I mean just come clean. I really would like to know too [S]. I’m not going to hate you anymore. I respect ya if you come clean. No bullshit. You know what I mean. They’ve done their jobs like this for a long time. They’re not idiots. I’m not an idiot and the little girl’s not an idiot. I couldn’t see her lying man either. Just come clean. Do you.
... Just come clean. That’s what we’re here for. We need to know they’re not going to back off. We need some ... I’m not a detective and even I know mate. ...
…
And it doesn’t add up. Just come clean [S]. I’m not saying it’s your fault. ... Just lay the cards down. I’ll get ya treatment. I’ll get you help. At the end of the day it’s about a six year old girl man. It’s bullshit ... just tell them. Just tell them the truth [S]. No one’s going to hate you for it. You know someone must have touched her or something. Just tell them how it really was [S] and get it over with. Get it off your chest and we can go home mate no bullshit.
…
... Just come clean. Say it once. It’s all over mate. So everything you said, aint hogwash.
...
I’ll kick you out if you’re lying mate and I won’t deny that. I’ll just walk out of here and leave you here and they can deal with you mate. I couldn’t care less. They can look after ya. If you’re going to lie to me and Trudy. We got children man. We’re getting people sending messages saying, they’re going to come running through my house over ya mate. Ok, I’ve got other children to protect. ... Come on be fair mate. I’m not your old man. They left you like a dog and done shit mate. Don’t lie to me. I’ll get dirty mate. I will, I really will. I don’t care. I don’t care. I’ll protect the girl before I’ll protect any of yous. I will be jump on all of yous. ... Yous are soon trouble because, you’re bringing shit to my house over this. Come on man. Just come clean, I’ve been in trouble with the law many times. When I’m gone. I’m gone. It’s easier just to come clean [S]. ...
…
The little girl won’t make up stories. That’s all I’m saying [S]. ...
…
So if you done anything. That you touched her. Just tell them mate. Let’s get it over with fuck mate. We can go home and we’ll worry about the next problem. I’m not going to put you on the street like a dog. Trust me. I wouldn’t do that man. I would if I find out different. I don’t give a fuck mate. I’ll just throw you out.
...
If you did [S] just say so. You did didn’t ya.
During the passage of the interview quoted above those passages, the defendant was responding to Mr Kaplanis including by continuing to deny that he had done anything wrong. The police officers were also participating in the conversation, both in response to what was being said by Mr Kaplanis and by the defendant and by way of their own questioning. They took no steps to discourage Mr Kaplanis’ participation or to terminate the interview in light of his conduct.
At approximately 7.15 pm, the defendant said that he wanted to speak to his father. Mr Kaplanis responded as follows:
[S], sit down you can’t go nowhere.
... What’s your dad going to do mate. He’s the one that already put you in this possy. I’m on your side [S] just come clean [S]. Fuck ya.
...
... Let’s just get on with this and let’s go home [S]. I’m dying for a cigarette.
...
The following exchange then took place.
The defendant:                 I plead guilty to all of it.
Snr Constable Hadley:        Alright.
The defendant:                 Fuck it.
Mr Kaplanis:                   No you tell them what happened.
The defendant:                 I. I. I did it. I did it. I did it.
Mr Kaplanis:                   You tell them what happened [S].
Constable Marsden:           Don’t say things that you’ve not done okay.
Mr Kaplanis:                   Yeah, just a shut up.
The defendant:                 I did it. I done it.
At that point, Mr Kaplanis suggested a five minute break. The interview was suspended. The defendant gave the following evidence on the voir dire as to what occurred during the break.
QWhat happened outside during the smoke break.
APeter Kaplanis called up ... my dad and I couldn’t hear what they were talking about. I was probably about 10 metres away from him and then Pete called me over and then I got on to the phone to my dad and then my dad said to agree ... My dad said if you don’t – to agree with all the allegations, Pete’s boys were going to bash me.
QWhat did you say to that, do you remember.
AI said “No” at first and then he started screaming at me ...
QAnd you say he started screaming at you. If you can remember, tell his Honour what you remember your dad screaming at you.
A“You had better f-ing do it or you won’t only get bashed by Pete Kaplanis’ kids” I’m pretty sure that was [two boys].
The interview resumed at approximately 7.00 pm. The defendant then made a series of admissions of sexual misconduct with the complainant. Initially, he admitted the incident at Clearview at Easter 2011 when the complainant’s mother walked in on him and the complainant. He denied that there were any previous occasions. Mr Kaplanis then put to him several times that there must have been previous occasions. The defendant then admitted three previous occasions, each of which occurred at Prospect.
The complainant’s interview by the psychologist
The DVD record of the interview of the complainant was tendered by the prosecution. No objection was raised on behalf of the defendant to its receipt into evidence under section 34CA of the Evidence Act. The defendant did not seek to cross-examine the complainant.
Voluntariness of confession
It is common ground on appeal that evidence of a confession is inadmissible as a matter of law if not made voluntarily. The onus lies upon the prosecution to prove that a confession was made voluntarily, once the issue is raised by the defendant.[16] Evidence of a confession which is not voluntary is inadmissible as a matter of law: no question of discretion arises.[17]
[16] R v Lee (1950) 82 CLR 133 at 144 per Latham CJ, McTiernan, Webb, Fullagar and Kitto JJ.
[17] Tofilau v The Queen [2007] HCA 39; (2007) 231 CLR 396 at [2] per Gleeson CJ, [28]-[30] per Gummow and Hayne JJ, [123]-[124] per Kirby J and [245] per Callinan, Heydon and Crennan JJ.
The doctrine of voluntariness encompasses a general rule and a specific rule.
1.The general rule[18] is that a confession is not voluntary if the defendant’s will is overborne by coercion in the nature of duress, intimidation, persistent importunity, sustained or undue insistence or pressure, etc.[19]
2.The specific rule is that a confession is not voluntary if it is preceded by an inducement held out by a person in authority which has not been removed before the confession is made. The inducement might be in the form of a promise or a threat.[20]
[18] Also known as “basal voluntariness”. In Tofilau v The Queen (2007) 231 CLR 396 at [10], Gleeson CJ used the terminology “general” and “specific” to denote the two rules.
[19] R v Lee (1950) 82 CLR 133 at 144 per Latham CJ, McTiernan, Webb, Fullagar and Kitto JJ; Tofilau v The Queen (2007) 231 CLR 396 at [6], [14]-[16] per Gleeson CJ, [58] and [60] per Gummow and Hayne JJ, [124], [195] per Kirby J and [325]-[327] per Callinan, Heydon and Crennan JJ.
[20] R v Lee (1950) 82 CLR 133 at 144 per Latham CJ, McTiernan, Webb, Fullagar and Kitto JJ; Tofilau v The Queen (2007) 231 CLR 396 at [2], [10]-[13] per Gleeson CJ, [28]-[29], [39]-[45] per Gummow and Hayne JJ, [123] per Kirby J and [245], [268]-[322] per Callinan, Heydon and Crennan JJ.
The rationale for the general rule is the unreliability of admissions resulting from coercion.[21] The principal rationale for the specific rule is the unreliability of confessions induced by promises or threats by persons in authority.[22] Its extent has also been influenced by the historical circumstances in which it evolved and a concern to exclude evidence obtained by inappropriate police action.[23]
[21] Tofilau v The Queen (2007) 231 CLR 396 at [8], [34]-[45], per Gleeson CJ, [52]-[54] per Gummow and Hayne JJ and [135] per Kirby J.
[22] Tofilau v The Queen (2007) 231 CLR 396 at [7]-[8] per Gleeson CJ, [34]-[45] per Gummow and Hayne JJ, [129], [135]-[144] per Kirby J and [269]-[293] per Callinan, Heydon and Crennan JJ.
[23] Tofilau v The Queen (2007) 231 CLR 396 at [34]-[45] per Gummow and Hayne JJ, [129], [135]-[144] per Kirby J and [269]-[293] per Callinan, Heydon and Crennan JJ.
The general rule and the specific rule are emanations of the single principle that a confession must be voluntary in order to be admissible.[24] While the rules overlap, they do not coincide. Where the external influence emanates from a person in authority, conduct which falls within the specific rule may well fall outside the general rule as not being relevantly coercive.[25] In general, an admission obtained by deception is not regarded as involuntary under either rule.[26] In general, obtaining an admission by promise of a benefit is not regarded as involuntary within the meaning of the general rule, but may be involuntary under the specific rule.[27] Historically at least, the specific rule was applied in an expansive manner in which a very broad view was taken of the elements of promise and threat.[28] This was the result of historical conditions coupled with a rationale for the specific rule which extended beyond mere unreliability.
[24] R v Lee (1950) 82 CLR 133 at 144 per Latham CJ, McTiernan, Webb, Fullagar and Kitto JJ.
[25] Tofilau v The Queen (2007) 231 CLR 396 at [58]-[64] per Gummow and Hayne JJ.
[26] Tofilau v The Queen (2007) 231 CLR 396 at [5] and [18]-[22] per Gleeson CJ, [63] per Gummow and Hayne JJ and [343]-[360] and [363] per Callinan, Heydon and Crennan JJ.
[27] Tofilau v The Queen (2007) 231 CLR 396 at [62] per Gummow and Hayne JJ and [369] per Callinan, Heydon and Crennan JJ.
[28] McDermott v The King (1948) 76 CLR 501 at 512 per Dixon J; Tofilau v The Queen (2007) 231 CLR 396 at [271]-[279] per Callinan, Heydon and Crennan JJ.
Most of the decided cases involve the attempted invocation of the specific rule. This is a reflection of conditions in Australia and the United Kingdom that allegations of coercion the subject of the general rule are comparatively rare. Allegations of inducement by promises or threats from persons in authority the subject of the specific rule are more common. Coupled with the relatively broad attitude taken by the common law to the concepts of promises and threats, this has resulted in numerous decided cases on the specific rule and comparatively few decided cases on the general rule.
The relationship between the general rule and the specific rule has been explained by the High Court in a series of cases. In McDermott v The King,[29] Dixon J said:
The extreme applications which were made at one time of the principle that confessions obtained by the use by persons in authority of hope or fear were inadmissible gave this head of inducement an importance which has tended to obscure other forms of inducement. It is perhaps doubtful whether, particularly in this country, a sufficiently wide operation has been given to the basal principle that to be admissible a confession must be voluntary, a principle the application of which is flexible and is not limited by any category of inducements that may prevail over a man’s will.[30]
[29] (1948) 76 CLR 501.
[30] (1948) 76 CLR 501 at 512.
In R v Lee,[31] Latham CJ, McTiernan, Webb, Fullagar and Kitto JJ endorsed Dixon J’s formulation of the two rules in McDermott and went on to say:
These two “rules” are, of course, well established, but it is important, we think, in this case to observe that they seem to be not really too independent and co‑ordinate rules. There seems to be really one rule, the rule that a statement must be voluntary in order to be admissible. Any one of a variety of elements, including a threat or promise by a person in authority, will suffice to deprive it of a voluntary character. It is implicit in the statement of the rule, and it is now well settled, that the Crown has the burden of satisfying the trial judge in every case as to the voluntary character of a statement before it becomes admissible.[32]
[31] (1950) 82 CLR 133.
[32] (1950) 82 CLR 133 at 144.
In Tofilau v The Queen,[33] Gleeson CJ said:
[33] (2007) 231 CLR 396.
Reference has been made above to the passage in his judgment in McDermott in which Dixon J referred to the general requirement of voluntariness for the admissibility of confessional statements and then added that it was "also a definite rule" that a statement cannot be voluntary if it is preceded by an inducement held out by a person in authority. The context reveals that Dixon J used the word "definite", not for emphasis, but as meaning precise or specific, in contrast to the general and less specific principle to which he had earlier referred.
...
In view of the obvious possibility that this Court would reach the same conclusion as the Supreme Court of Canada in Grandinetti, the appellants next supported mandatory exclusion of their confessional statements by reference to the wider principle, which they called "basal voluntariness". This was a reference to a fundamental principle concerning voluntariness, of which the "definite rule" considered above is a particular, although the most common, application.
...
The common law of evidence in Australia has treated the definite rule as a specification of a particular form of conduct, involving the application of a certain kind of coercive force external to a confessionalist, which it will not accept as a reason for voluntary action. At the same time, it has declined to limit itself by treating that as the only form of conduct that will destroy or overwhelm the freedom of choice which it considers necessary to make conduct voluntary. (Some Australian jurisdictions have enacted legislation which deals somewhat differently with the matter of admissions, but such legislation is not of present concern.)[34]
[34] (2007) 231 CLR 396 at [10], [14] and [16].
Gummow and Hayne JJ said:
It is a definite rule of the common law of Australia that a confession made in response to a threat or inducement by a person in authority is inadmissible. But it is also a definite rule that a confession must be made voluntarily before evidence may be given of it. This latter rule, described as "basal voluntariness", derives directly from the common law principles in Warickshall where voluntariness was used as the touchstone of reliability. But that is not to be understood as suggesting that the common law has not been further developed.
...
The overarching common law rule was described by Dixon J as being that "a confessional statement made out of court by an accused person may not be admitted in evidence against him upon his trial for the crime to which it relates unless it is shown to have been voluntarily made". …
The content given by Dixon J, in McDermott, to the word "voluntarily" is important. As pointed out above, the overarching principle is that a confession cannot be admitted into evidence unless it is shown to have been made "voluntarily". Both the rules governing the exclusion of evidence of certain confessions made to persons in authority and the principle of "basal voluntariness" take their place as aspects of this one principle. Both also identify criteria that found a legal conclusion: that the confession was not made "voluntarily".
That this is the way in which the rules operate is most obviously apparent in the rule concerning statements made to persons in authority. The particular content that is given to both the concept of "inducement" and the concept of a "person in authority" constitute the criteria that yield the relevant legal conclusion: that the confession was not made voluntarily. But as the reasons of Dixon J in McDermott show, application of the rule about "basal voluntariness" also depends upon identifying the criteria that are to found the legal conclusion that a confession was not made "voluntarily". The relevant conclusion is described as the will being "overborne". The circumstances that yield that conclusion, and provide the criteria which govern the availability of the legal conclusion, are described as "the result of duress, intimidation, persistent importunity, or sustained or undue insistence or pressure". All are species of compulsion.
…
In McDermott, Dixon J treated overbearing of the rule separately from the fear of prejudice or hope of advantage. Fear of prejudice and hope of advantage were treated as the two species of the genus of inducements. But, by contrast, overbearing of the will was confined to circumstances like duress. Considerations of a fear of prejudice or the hope of advantage was seen as not only different from an overbearing of the rule but also as relevant only to statements made to a person in authority. [35]
Kirby J said:
In the present appeals, all of the appellants invoked the rule of voluntariness. All of them did so by reference to the particular aspect of the voluntariness rule requiring the exclusion of evidence of confessional statements made to "persons in authority" as a result of an "inducement", being a threat or promise of favour or advantage (the inducement rule). That this is an established sub-category of the common law voluntariness rule in Australia was not contested during the argument.
Additionally, all of the appellants relied more generally on so-called "basal involuntariness". I dislike the adjective "basal" for it adds nothing to the critical concept of "voluntariness". However, it tends to be used to refer to those elements of the voluntariness rule concerned with the exercise of the free will of a person who is suspected of a criminal offence, either to remain silent or to make confessional statements to police, prosecutors or other persons.
In Swaffield, the arguments before this Court were not presented by reference to the voluntariness rule in any of its forms. This was so notwithstanding the fact that "voluntariness is a flexible principle" and that some dicta existed suggesting that "involuntariness might extend to ‘false representations or other trickery’.[36]
and Callinan, Heydon and Crennan JJ said:
In order to appreciate the significance of the appellants' arguments, it is desirable to place them in the context of the law relating to the admissibility of confessions as a whole. An admission by an accused person "must be voluntary in order to be admissible". It is common to divide involuntary statements into two categories. One concerns the "inducement rule": an admission by an accused person "is not voluntary if it is preceded by an inducement, such as a threat or promise, held out by a person in authority, unless the inducement is shown to have been removed". The other category concerns those caught by the "basal involuntariness" rule, to be discussed below. But even if an admission is voluntary, it may be excluded on "discretionary" grounds. In R v Swaffield Toohey, Gaudron and Gummow JJ grouped these "discretionary" grounds under three heads.[37]
[35] (2007) 231 CLR 396 at [47], [56], [58] and [61].
[36] (2007) 231 CLR 396 at [123]-[125].
[37] (2007) 231 CLR 396 at [245].
The general rule

The general rule has been formulated by the High Court in a series of cases. In Cornelius v The King,[38] Dixon, Evatt and McTiernan JJ said:
At common law no confession is admissible in evidence unless it is a free and voluntary statement. If it is made as a result of violence, intimidation, or of fear, it is not voluntary
...
A confession which is extracted by violence or force, or some other form of actual coercion is clearly involuntary, and, therefore, cannot be received in evidence. ... The position is well stated by Brandeis J in delivering the judgment of the Supreme Court of the United States in Wan v United States: - “The requisite of voluntariness is not satisfied by establishing merely that the confession was not induced by a promise or a threat. A confession is voluntary in law if, and only if, it was in fact voluntarily made. ... [A] confession obtained by compulsion must be excluded whatever may have been the character of the compulsion ...”[39]
[38] (1936) 55 CLR 235.
[39] (1936) 55 CLR 235 at 245, 246.
In McDermott,[40] Dixon J said:
At common law a confessional statement made out of court by an accused person may not be admitted in evidence against him upon his trial for the crime to which it relates unless it is shown to have been voluntarily made. This means substantially that it has been made in the exercise of his free choice. If he speaks because he is overborne, his confessional statement cannot be received in evidence and it does not matter by what means he has been overborne. If his statement is the result of duress, intimidation, persistent importunity, or sustained or undue insistence or pressure, it cannot be voluntary.[41]
[40] (1948) 76 CLR 501.
[41] (1948) 76 CLR 501 at 511.
In Lee,[42] Latham CJ, McTiernan, Webb, Fullagar and Kitto JJ said:
These rules, stated in abbreviated form, are - (1) that such a statement may not be admitted in evidence unless it is shown to have been voluntarily made in the sense that it has been made in the exercise of free choice and not because the will of the accused has been overborne or his statement made as a result of duress, intimidation, persistent importunity or sustained or undue insistence or pressure.[43]
[42] (1950) 82 CLR 133.
[43] (1950) 82 CLR 133 at 144.
In Tofilau,[44] the High Court warned that the word “voluntary” is protean, having different meanings in different legal contexts.[45] Nevertheless, in a very broad sense, analogies might be considered with common law concepts such as duress and non est factum.[46]
[44] (2007) 231 CLR 396.
[45] (2007) 231 CLR 396 at [6] per Gleeson CJ, [49] per Gummow and Hayne JJ and [330] per Callinan, Heydon and Crennan JJ.
[46] (2007) 231 CLR 396 at [15] per Gleeson CJ and [50]-[51] per Gummow and Hayne JJ.
At the risk of generalisation, in the very broadest sense, the general and specific rules are analogous to the former criminal law concerning larceny and false pretences. At common law, larceny could be committed in circumstances in which property was taken without the real consent of the owner (such as by duress),[47] but was not committed where the owner’s consent was induced by misrepresentation (which rule gave rise to the creation by statute of the offence of false pretences).[48]
[47] See, for example, R v McGrath (1869) LR 1 CCR 205.
[48] See, for example, R v Justelius (1973) 1 NSWLR 471 at 476 per Lee J (Kerr CJ and Nagle J agreeing).
In very general terms, the general rule applies where, due to coercion, the confession is not made in the free exercise of the will of the confessor; whereas the specific rule can apply where the confession is made in the exercise of free will by the confessor but induced by a representation of a promise or threat by a person in authority.[49] However, there is no bright line between an act which is not the exercise of free will and an act of free will induced by a representation of a threat. This is why there is an overlap between the general and specific rules where the confession is induced by fear of a threat.
[49] Tifolau v The Queen (2007) 231 CLR 396 at [56]-[62] per Gummow and Hayne JJ and [364]-[373] per Callinan, Heydon and Crennan JJ.
In R v Geesing,[50] Geesing allegedly confessed to fellow prisoners that he had murdered Louise Bell. A prisoner, Browne, gave evidence that he and three other prisoners were standing close together in the vicinity of Geesing. One of the other prisoners, Marshall, yelled out to Geesing “Geesing! You are a kid fucker and the jacks have got you for Louise Bell”. Browne called out to Geesing and told him to come over to him. Browne said “you knocked that little kid, didn’t you?”, to which Geesing replied “yes”. Browne then knocked Geesing to the ground. This Court held that the confession was not voluntary under the general rule. King CJ said:
I interpret the incident as described by Browne in this way. The remark made by Marshall was hostile and provocative. The appellant could only assume, if the remark was made in the way described by Browne, that it was made in consequence of some hostile plan which had been devised by the four other prisoners who were standing together. There is no shortage of indications that Browne was a dominant and forceful personality. Browne's request to the appellant to come over to him was couched in peremptory language. The appellant's compliance could only indicate that he felt that he had no choice but to comply. The manner in which the inquiry as to whether he had "knocked the little kid" was made can be gauged from what followed his answer. Browne's attitude in the presence of the other three prisoners must have appeared to the appellant to be full of menace. There is no reason at all upon Browne's version why the appellant would make a confession of that kind to him in those hostile circumstances unless his will were overborne by fear. I think that, if the incident occurred in the way in which Browne describes it, the only reasonable conclusion is that the confession was made, not in the exercise of the free choice of the appellant, but because his will was overborne by fear of Browne and the menacing situation in which he found himself. I think that the alleged confession should have been rejected as involuntary. [51]
The evidence on the voir dire
[50] (1985) 38 SASR 226.
[51] (1985) 38 SASR 226 at 233. See also at 238 per White J and 249 per Mohr J.
The evidence adduced on the voir dire relevant to the voluntariness of the defendant’s confession comprised the audio visual recording of part of the interview on DVD,[52] an audio recording of part of the interview on CD, a typed transcript of that interview and evidence by the defendant and Senior Constable Hadley.
[52] Part of the way through the interview, the audio visual equipment malfunctioned.
A report by a psychologist, Mr Broomhall, was tendered on the voir dire. Mr Broomhall undertook a psychometric assessment of the defendant on 11 May 2012. His IQ was in the sixth percentile compared with his peers; his literacy was at the level of an eight year old child; and his memory functioning and executive functioning were both assessed as being in the borderline range. Mr Broomhall expressed the opinion that he met the diagnostic criteria for Pervasive Development Disorder Not Otherwise Specified and Learning Disorder Not Otherwise Specified and some of the criteria for Asperger’s Disorder.
Mr Broomhall was given the transcript of the police interview and expressed the opinion that, given his borderline intellectual functioning and issues interpreting social nuances, the defendant was vulnerable to making admissions under the kind of sustained pressure exerted by Mr Kaplanis during the police interview. Mr Broomhall interviewed the defendant concerning the complainant’s allegations. He gave the same account to Mr Broomhall as he had given in the early part of the police interview, denying any misconduct.
The defendant gave evidence on the voir dire about the police interview conducted on 10 June 2011. That evidence is summarised at [83] above.He gave evidence that, when he made the admissions to the police officers during the police interview, those admissions were not true. He said that he made the admissions because he was scared of Mr Kaplanis and scared of being bashed by Mr Kaplanis’ sons. The defendant was not challenged in cross-examination concerning that evidence. In cross-examination, he said that Mr Kaplanis had previously told him that he had hurt a lot of people before and that he had a really bad criminal history.
The defendant’s limited relationship with his father had broken down as a result of the allegations against him. His father had effectively renounced him and left him in foster care. Given his relationship with his father and Mr Kaplanis’ conduct during the interview, the defendant could not have been expected to call his father or Mr Kaplanis on the voir dire. In any event, he had not been challenged in cross-examination concerning his evidence as to what occurred during the smoke break.
The Judge’s reasons on the voir dire
The Judge ruled that the interview was admissible and gave ex tempore reasons. He referred to the fact that the defendant’s counsel submitted that the confession should be excluded as not being voluntary or alternatively in the exercise of his discretion. The Judge did not identify the tests for the admissibility of a confession as voluntary, did not refer to the general rule or the specific rule and did not distinguish between them. The Judge did not ask or answer the questions which he was required to consider.
The Judge appears from his ex tempore reasons to have accepted the defendant’s account of his discussion with Mr Kaplanis and his father during the smoke break. He did not make any adverse credibility finding on the voir dire concerning the defendant’s evidence. There is nothing in his reasons to indicate that he rejected that evidence, bearing in mind that the onus of proof lay upon the Police on the issue of voluntariness. If the Judge had rejected the defendant’s evidence, he can be expected to have said so and explained why.
In relation to what occurred during the smoke break, the Judge said:
In this case the admissions to which one might have proper regard come after and on p62 on the resumption of the interview. What has occurred at this stage, according to the accused, is that the interview was suspended, he and Kaplanis left the interview room and they obviously went outside the police station. The accused says that at that time he spoke to his father and that following exhortations from his father that they returned to the interview room and were then present for a little bit more than an hour and a half.
The trial Judge’s reasons were essentially contained in the following passages:
... what Mr Stratton-Smith on behalf of the accused says, is this, firstly, that such admissions as were made by the accused were involuntary. He says that they were cajoled or otherwise extracted by – or from him, one might think as a result of the exhortations or articulations or interventions by Kaplanis and on various occasions, he says reinforced either deliberately or inadvertently by Marsden or Ms Hadley ...
... they can, I think, be encapsulated in the overall suggestion of improper interventions on the part of Kaplanis during questioning by Ms Hadley and occasional interventions by Mr Marsden.
I have said during the argument in this case that if we proceed on the basis that Kaplanis was acting in loco parentis and there is no reason in my mind and why I should not proceed on that basis, then as I have put to Mr Stratton-Smith on a number of occasions, the manner in which Kaplanis exercises his authority as a parent seems to me to be a matter for him.
What Mr Stratton-Smith puts in response to that is ... that in any event his interventions have overpowered the accused such that his participation is involuntary and his utterance involuntary and unreliable.
The view that I come to in this case is, with some minor exceptions that can be dealt with under the general discretion issue, that it is not appropriate in this case to reach the conclusion that the participation or continued participation of the accused in the record of interview was involuntary and that admissions were involuntary.
Analysis
The defendant was exposed to sustained vehement and forceful pressure by Mr Kaplanis during the interview to confess to sexual misconduct with the complainant. He had been questioned by both police officers and Mr Kaplanis for 1¾ hours before he stopped denying sexual misconduct with the complaint. This was compounded by the threat made during the smoke break by the defendant’s father (assuming that it was made). The conduct by Mr Kaplanis and the defendant’s father comprised coercion within the meaning of the general rule.
I would reach this conclusion on the assumption that no threat was made during the smoke break by the defendant’s father that he would be bashed by Mr Kaplanis’ sons. Even if the Judge had rejected the defendant’s evidence of the threat by his father, the conduct of Mr Kaplanis during the interview falls squarely within the concept of coercion identified by the High Court because the defendant’s will was overborne and his confession was made as a result of duress, intimidation, persistent importunity and sustained and undue insistence and pressure.
During the police interview, Mr Kaplanis made threats of physical violence to the defendant which are contained in the passages quoted at [79] above, including:
I told you [S], if yous are involved yous will want to get the fuck away from me mate …
if I had your old man, I’d be ringing his neck
…
I’m not going to hate you anymore
…
we’re getting people sending messages saying, they’re going to come running through my house over ya mate.
…
I’ll get dirty mate …
…
I will jump on all of yous …
In assessing whether the defendant’s will was overborne by Mr Kaplanis’ conduct, the limitations identified above in the defendant’s intelligence, memory and executive functioning, his abandonment by his father and unavailability of his mother, his dependence upon Mr Kaplanis and the length and circumstances of the interview provide an important context. Against that background, Mr Kaplanis’ conduct is properly characterised as duress, intimidation, persistent importunity and sustained and undue insistence or pressure. It is noteworthy that, at the point at which the defendant first said during the interview that he pleaded guilty to all of it, Constable Marsden said “don’t say things that you’ve not done okay”.
The defendant’s confession was not voluntary and was inadmissible. The Judge erred in admitting it.
In the absence of evidence of the confession, it cannot be said that the Judge would necessarily still have found the charges proved beyond reasonable doubt.
The specific rule
In Tofilau,[53] the High Court (Kirby J dissenting) held that the specific rule is confined to inducements by persons who are or are perceived to be in authority in the sense that they exercise the powers of the State. The specific rule has no application to persons believed by a defendant to be members of a gang of criminals who, unbeknown to the defendant, are undercover police officers.[54] One reason for confining the specific rule to persons actually or perceived to be representing the State is the existence of the general rule.[55]
[53] (2007) 231 CLR 396.
[54] (2007) 231 CLR 396 at [12]-[13] per Gleeson CJ, [45] per Gummow and Hayne JJ and [321]-[323] per Callinan, Heydon and Crennan JJ.
[55] Tofilau v The Queen (2007) 213 CLR 396 at [45] per Gummow and Hayne JJ.
Neither Mr Kaplanis nor the defendant’s father represented the State. There was no basis for the defendant to perceive that they did represent the State. It follows that neither was a “person in authority” within the meaning of the specific rule.
There is English authority that, if an inducement is held out by someone not in authority but in the presence of a person in authority, the specific rule applies unless the person in authority dissociates himself or herself from the inducement.[56] It is doubtful that this represents the law in Australia because it appears to be inconsistent with the High Court’s approach to the “person in authority” requirement articulated in Tofilau.[57]However, this question was not fully argued on appeal and, as the defendant’s confession was not voluntary under the general rule, it is not necessary to decide it.
[56] R v Cleary (1963) 48 Cr App R 116 at 119-20 per Parker LCJ, Fillimore and Winn JJ; R v Moore (1972) 56 Cr App R 373 at 375-76 per McGore, Orr LJJ and Christo JJ.
[57] (2007) 231 CLR 396.
Discretion
Where a confession is voluntary, it might nevertheless be excluded in the exercise of a trial judge’s discretion on one of three grounds: impropriety, unfairness, or the residual “Christie” discretion to exclude evidence the prejudicial impact of which exceeds its probative value.[58]
[58] R v Swaffield [1998] HCA 1; (1998) 192 CLR 159 at [51]-[52] per Toohey, Gaudron and Gummow JJ; Tofilau v The Queen (2007) 231 CLR 396 at [3] per Gleeson CJ, [28] and [65]-[68] per Gummow and Hayne JJ and [245]-[248] per Callinan, Heydon and Crennan JJ.
I agree with Kelly J, for the reasons which she gives, that, if the confession were voluntary, it should have been excluded by the Judge in the exercise of his discretion.
Admission of complainant’s interview by psychologist
As noted at [122] below, the defendant’s counsel conceded that the threshold under section 34CA had been satisfied.
The following exchange took place between the Judge and counsel for the defendant immediately before the tender and receipt of the DVD containing the complainant’s interview:
Mr Stratton-Smith:        Should we deal now with s 34? I don’t know if your Honour wishes to do that with the threshold getting the out-of-court statement in.
His Honour:                 Yes.
Mr Stratton-Smith:        Of course the alleged victim is a vulnerable witness. This is precisely the sort of thing that the section covers.
His Honour:                 Yes.
Mr Stratton-Smith:        I think I have to concede that it has sufficient probative value for your Honour. Whether that’s sufficient to get over the line at the conclusion of the trial is a separate matter for submissions but I think I have to concede that it has sufficient probative value for your Honour to be able to – for the section.
His Honour;                Alright, well you are suggesting that it’s not improper for us to proceed with this.
Mr Stratton-Smith:        No.
His Honour:                 Alright, thanks very much.
The DVD was then tendered and received into evidence. Counsel for the defendant later informed the Judge that he did not seek to cross‑examine the complainant.
On appeal, the defendant contends that, notwithstanding his attitude to the tender of the record of interview of the complainant at trial, nevertheless the Judge erred by admitting it because he did not make a determination that the complainant had capacity to give sworn evidence under section 9(1) or unsworn evidence under section 9(2) of the Evidence Act.
Testimonial evidence
Where a child is called to give testimonial evidence in court, the position is governed by section 9 of the Evidence Act. The material provisions of section 9 are as follows:
Unsworn evidence
(1)A person is presumed to be capable of giving sworn evidence in any proceedings unless the judge determines that the person does not have sufficient understanding of the obligation to be truthful entailed in giving sworn evidence.
(2)If the judge determines that a person does not have sufficient understanding of the obligation to be truthful entailed in giving sworn evidence, the judge may permit the person to give unsworn evidence provided that—
(a)     the judge—
(i)is satisfied that the person understands the difference between the truth and a lie; and
(ii)    tells the person that it is important to tell the truth; and
(b)     the person indicates that he or she will tell the truth.
(3)In determining a question under this section, the judge is not bound by the rules of evidence, but may inform himself or herself as the judge thinks fit.

Section 34CA, by sub-sections (1)(b)(i) and (4), explicitly contemplates that a protected witness whose out of court statement is admitted pursuant to the section might not be called as a witness to give evidence in the proceedings. This is contemplated both by the alternative to the witness being called contained in section 34CA(1)(b)(i) “or is available to be called”, and by the requirement in section 34CA(4) for a warning to the jury where the protected person has not been cross-examined.
If the opponent does not seek to cross‑examine the protected witness, there will be no occasion for the protected witness to attend at court to give evidence.[93] Section 9 will have no application. There will be no occasion for the trial judge to make any determination whether the protected witness would have been eligible to give sworn or unsworn evidence under sections 9(1) and (2). Any such determination would be hypothetical and irrelevant.
[93] Assuming that the party tendering the out of court statement does not seek to adduce evidence in chief.
I conclude that, where the protected witness is not called to give evidence in chief and is not required by the opponent for cross-examination, the out of court statement of the protected witness will be admissible under section 34CA if the trial judge is satisfied that the statement has sufficient probative value to justify its admission. No question of the protected witness’s competence to give sworn or unsworn evidence under section 9 will arise.
Of course, even though a statement by a protected witness is admissible, section 34CA still confers upon the trial judge a discretion whether to admit it into evidence. That discretion is likely to be informed by the trial judge’s assessment whether that person understood the difference between the truth and a lie and that it was important to tell the truth and whether that person indicated in the course of the statement that he or she would tell the truth. This inquiry in the exercise of the discretion under section 34CA will be directed exclusively to the position when the protected witness made the out of court statement. Consideration of these matters in the exercise of the discretion does not result from the application of section 9(2) but rather from the application of common sense and relevant factors to the exercise of the discretion. In contrast, if the protected witness is called to give testimonial evidence in court, the inquiry under section 9 will be directed exclusively to the position when that testimonial evidence is given.
The above conclusion is supported by the evident purpose of section 34CA, its structure and legislative history. It is supported by a consideration of the mischief to which section 34CA was directed and its purpose as identified by the Attorney-General in the Second Reading Speech, which introduced the Bill enacting section 34CA. It is also supported by the obiter dicta of White J in Byerley.[94]
[94] (2010) 107 SASR 515 at [62]-[74].
The evident purpose of section 34CA is to permit an out of court statement by a protected witness to be adduced in evidence provided that it has sufficient probative value to justify its admission and the opponent has the right to cross‑examine the protected witness.
The predecessor to the current section 34CA, enacted on 23 November 2008, was the former section 34CA enacted on 1 May 1988.[95] The original section 34CA provided as follows:
[95] By the Evidence Act Amendment Act 1988 (SA).
34CA—Statement of victim of sexual offence who is a young child
(1)Subject to subsection (2), where the alleged victim of a sexual offence is a young child, the court may, in its discretion, admit evidence of the nature and contents of the complaint from a witness to whom the alleged victim complained of the offence if the court, after considering the nature of the complaint, the circumstances in which it was made and any other relevant factors, is of the opinion that evidence has sufficient probative value to justify its admission.
(2)Such evidence may not be admitted at the trial unless the alleged victim has been called, or is available to be called, as a witness.
It is plain that the purpose and effect of the original section 34CA was that the out of court statement was admissible only if the maker was called as a witness or made available for cross‑examination. If the opponent did not seek to cross-examine the child, the statement was admissible provided the conditions specified in subsection (1) were met and the court exercised its discretion in favour of admission.
The new section 34CA was enacted by the Statutes Amendment (Evidence and Procedure) Act 2008. In his Second Reading Speech in respect of the Bill, the Attorney‑General said:
A court will not usually admit evidence from a person of what another person has said out of court as the evidence of that other person if it is possible for that other person to give oral evidence about it directly to the court. What person A says to person B, out of court, is hearsay if the court hears it from person B. A person charged with an offence is entitled to have the charge proved by the best evidence available, and the direct evidence of person A is better than person B’s recollection of what person A said.
If a court makes an exception to this rule and allows A’s evidence to be given by means of B telling the court what A said to B, it will usually require A to be available to be cross-examined on that statement. The principle is that a defendant should be able to test a witness’s evidence through cross-examination however that evidence may have been given.
Some time ago, the Act was amended to codify that exception for complaints of young children about alleged sexual offences. The aim was to facilitate the proof of sexual offences against children. Section 34CA allows a court hearing a charge of a sexual offence against a young child to admit a record of the child’s complaint about the alleged offence to another person, out of court, to prove the truth of the facts stated in the complaint without the child having to give that evidence at trial, so long as the child is available for cross-examination.
Unfortunately, section 34CA is rarely used. The courts have held that if a young child 'cannot remember making [the complaint] or is inarticulate in the witness box', he or she is not, for the purpose of this section, available for cross-examination, and the complaint cannot be admitted into evidence. Without that child’s evidence, the charge may be impossible or difficult to prove. By the time of trial, a very young child may have forgotten the incident or, if it was traumatic, therapeutically encouraged to forget it. In these cases, although the child’s out-of-court statement immediately after the event will be the best record of the child’s memory of it, that statement cannot be admitted into evidence, and the very inability to remember the events that prevents the child’s out-of-court statement being admitted into evidence will also prevent the child giving evidence directly. In these circumstances, a court determining a charge of abuse of a young child may never hear the child’s account of it. Indeed, these cases may not even come to court.
The Bill deletes section 34CA and replaces it with a provision that allows a court to admit hearsay evidence of the nature and contents of an out-of-court statement made by a 'protected witness' from the person to whom it was given, so long as the protected witness has been called or is available to be called as a witness and the court will allow him or her to be cross-examined on the matters arising from the hearsay evidence. A protected witness is defined as a young child or a person with a mental disability that adversely affects his or her ability to communicate effectively with the court. The court may permit such cross-examination only if satisfied that it would elicit material of substantive probative value or material that would substantially reduce the credibility of the hearsay evidence. The provision will therefore sometimes allow evidence of what protected witnesses have said out-of-court to be admitted even though the protected witness has not been questioned about it in court.[96] Whenever this happens, the court must warn the jury that this evidence should be scrutinised with particular care because it has not been tested in the usual way.
The aim of this provision is to make section 34CA work as originally intended, so that the court has the best possible available evidence before it, even if that is hearsay evidence. It does not, of course, derogate from any discretion the court may have to exclude evidence that is admissible in this way.
These amendments are needed so that, where possible, people who commit crime do not escape liability simply because the youth or mental disability of the victim or a key witness stops them being available, in the technical sense, to give evidence in person. The ALRC recently identified this topic as needing uniform treatment in Australia. It pointed out: ‘… the admission of a child’s out-of-court statement can preserve the child’s account at an early stage making it a reliable form of evidence, and could reduce the stress and trauma on the child of testifying in court.’
In section 34CA, South Australia had attempted to achieve this. The Bill should remedy the defects in that section.[97]
(Emphasis added)
[96] The use of the word “therefore” in this sentence is illogical and unexplained. It is inconsistent with the first sentence (particularly the italicised passage) of this paragraph from the Speech and with the balance of the Speech. The balance of the Speech suggests that, while indeed the provision will sometimes allow evidence of what protected witnesses have said out-of-court to be admitted even though the protected witness has not been questioned about it in court, that will not be because the opponent has sought to cross-examine but has not persuaded the court that cross-examination might make a difference. Rather, it will be because no cross-examination is sought.
[97] South Australia, Parliamentary Debates, House of Assembly, 25 October 2007, pg 1457-1458 (M J Atkinson, Attorney-General).
The former section 34CA did not require, as a condition of admissibility of the out of court statement, a witness to be called when the opponent did not require the witness for cross-examination. The Attorney-General’s Second Reading speech makes it plain that the new section 34CA was intended to operate in the same manner as the original section 34CA was intended to operate. The Attorney-General’s Second Reading speech also makes it plain that the fundamental principle underlying both the old and new versions of section 34CA was that “a defendant should be able to test a witness’s evidence through cross-examination however that evidence may have been given”. The Second Reading speech suggests that the purpose of section 34CA was to permit the admission of out of court statements by protected witnesses where they had sufficient probative value. This is consistent with preserving the opponent’s right of cross-examination, but, if the opponent did not seek to cross-examine, that would be no bar to the admission of the out of court statement.
The purpose of the requirements that the protected witness be available to be called and that the Court give permission for cross-examination is for the protection of the opponent. If the opponent does not seek to cross-examine the protected witness, that fact does not preclude receipt of the out of court statement into evidence under the section. Any other construction would be contrary to the purpose of the section because it would permit an opponent to prevent admission of the out of court statement merely by not seeking to cross-examine the protected witness.
The question which arises in the present case of the operation of section 34CA where the opponent does not seek to cross-examine the protected witness was considered incidentally by White J in R v Byerley.[98] His Honour referred to his earlier decision in R v Cox,[99] in which the defendant did not seek to cross-examine the child and the written transcript of the psychologist’s interview was received into evidence under the original version of section 34CA without any determination under section 9 being made.[100] His Honour considered that this was appropriate under the new section 34CA. Justice White said:
However, in my opinion, the context of s 34CA(1) and (2), and in particular of s 34CA(1)(b)(ii), indicates that the protected witness is available to be called as a witness in the proceedings if the witness can and will (whether voluntarily or by compulsion) be called by the moving party to give evidence if required to do so. I have said "if required to do so" because there may be some cases in which the opposite party does not require the protected witness to be called. This is what occurred in R v Cox.
... The meaning of "available to be called" which I have suggested achieves the protective purpose of the second condition precedent, as it means that the out-of-court statement cannot be used in court unless the protected witness actually attends as a witness or will attend for that purpose if required to do so.
… the two limbs contained in subs (1)(b)(i) … in those cases in which the opposite party does not require the protected witness to attend for cross-examination. …
… the expression "available to be called as a witness" means "will be called as a witness if required to do so".
… parties who wish to lead evidence of an out-of-court statement by a protected witness undertake implicitly, if not explicitly, to the court that, if required to do so, they are able to, and will, secure the attendance of the protected witness and will call that witness as part of their case.[101]
(Emphasis added)
[98] (2010) 107 SASR 517.
[99] [2006] SASC 188 at [79].
[100] R v Byerley (2010) 107 SASR 517 at [64].
[101] R v Byerely (2010) 107 SASR 517 at [64], [67]-[70].
The construction of section 34CA adopted at [158] above in circumstances in which the opponent does not seek to cross-examine the protected witness is consistent with the construction of the section identified at [155] above which I favour in circumstances in which the opponent does seek to cross-examine the protected witness. It is also consistent with the construction favoured by Duggan J (Nyland J agreeing) in J, JA, as is demonstrated by the reasons of White J quoted in the previous paragraph which were premised on the assumption that section 34CA was to be construed in that manner. It is also consistent with the constructions of section 34CA favoured by White J in J, JA and Kourakis J in Byerley.
Conclusion
Because the defendant’s counsel conceded the pre-requisites and did not require the attendance of the complainant to give evidence in court or to be cross-examined, the Judge did not err in admitting evidence of the interview by the psychologist.
For the sake of completeness, I observe that it was not argued before the Judge, and it is not argued on appeal, that the Judge ought to have declined in the exercise of his discretion to admit evidence of the interview. In particular, it was not submitted that the Judge ought to have exercised his discretion not to admit the interview because, when she participated in the interview, the complainant did not have sufficient understanding of the difference between the truth and a lie, was not told that it was important to tell the truth and did not indicate that she would tell the truth. On appeal, counsel for the defendant fairly and properly concedes that the psychologist addressed each of those matters at the beginning of the interview and that the complainant said that she understood the difference between the truth and a lie, that it was important to tell the truth and said that she would tell the truth.
Verdict unreasonable or not supported having regard to the evidence
The defendant contends that the convictions on all four counts were unreasonable or not supported having regard to the evidence because there was an irreconcilable difference between the defendant’s confession and the complainant’s statements to the psychologist as to the location at which the offence the subject of the third count occurred. On the defendant’s confession, that offence occurred at Prospect; whereas, to the extent that she identified a third occasion at all, the complainant’s statement to the psychologist referred to that occasion being at Clearview.
The mere fact that there was a difference between the two versions does not in itself demonstrate that the verdict was unreasonable or could not be supported having regard to the evidence. The Judge might have taken the view that one or either of the defendant or the complainant was mistaken as to the location of the offence the subject of the third count. In his submissions on appeal, counsel for the defendant relied solely upon the inconsistency in itself, and accordingly this ground of appeal should not be upheld.
For the sake of completeness, I observe that there were difficulties potentially in relation to the adequacy of the evidence, insofar as it relied upon the statements of the complainant to the psychologist, in respect of the third count.
In her interview with the psychologist, the complainant identified two occasions at Prospect on which the defendant performed cunnilingus on her. There was no suggestion throughout her interview that there was a third occasion at Prospect. She also identified the occasion at Clearview when her mother saw the defendant and her on the defendant’s bed. On one view of the interview, the complainant only unequivocally identified three occasions in total, being two at Prospect and one at Clearview.
When the psychologist asked the complainant whether anyone had ever given her a lick, she identified an occasion at Clearview, being the occasion when her mother walked into the room. When she was asked whether this occurred one time, more than one time or something else, she replied:
Ah, at the other house he done it two times and at the new house.
This suggests a total of three occasions. However, the psychologist misunderstood her answer and put back to her a leading question that the defendant licked her two times at the old (Prospect) house and two times at the new (Clearview) house, to which she assented. The psychologist went on to question her about the two occasions at the old house and she clearly identified two separate occasions and what she was wearing on each occasion. However, on one reading of the interview, there was no subsequent unequivocal identification of an occasion at Clearview other than when the complainant’s mother walked into the room.
In his reasons for judgment, the Judge identified the misunderstanding by the psychologist of what the complainant said to her. The Judge said:
In her interview with [the psychologist] [the complainant] refers to “at the other house he done it two times and at the new house”. This is incorrectly reflected back by [the psychologist] as “he licked you two times at the old house and two times at the new house”.
Notwithstanding this observation, the Judge went on to identify a total of four occasions on which the complainant was sexually assaulted. He identified one occasion as being when the complainant was wearing a red dress and treated that occasion as different from the occasion when the complainant’s mother walked into the room at Clearview. However, on one reading of the interview, the references by the complainant to the occasion when she was wearing a red dress apply to the occasion when her mother walked into the room. The Judge made no reference to the apparent inconsistency between his reading of the complainant’s evidence and the defendant’s admission to the police that the third occasion at the Prospect house. The Information charged that the third occasion occurred at Prospect and not Clearview.

In these circumstances, the Judge’s reasons for judgment are deficient. Adequate reasons required the evidence relating to the third occasion to be addressed in detail and specific findings made concerning it. The deficiencies in the reasons of the Judge would justify setting aside the convictions and directing a new trial, but it is unnecessary to reach a final conclusion on this because the convictions must be set aside in any event because of the erroneous admission of the police interview.
Conclusion
I agree with the orders proposed by Kelly J.
NICHOLSON J. I agree with the reasons given by Kelly J in support of allowing the appeal. I also agree with the additional reasons given by Blue J including those dealing with the exclusion of the appellant’s record of interview on the ground of (basal) involuntariness. I would allow the appeal and I agree with the orders proposed by Kelly J.
As Kelly J and Blue J have pointed out and as the authorities in this Court dealing with s 34CA of the Evidence Act 1929 to date[102] have demonstrated, s 34CA gives rise to various difficult questions of statutory construction generally, insofar as its interaction with s 9 of that Act is concerned and with respect to its practical application. The circumstances of this case highlight an issue concerning the point in time that any inquiry under s 9(2) of the Evidence Act, should it take place, will address.
[102] Principally, R v JJA (2009) 105 SASR 563 (Duggan, Nyland and White JJ); R v Byerley (2010) 107 SASR 517 (Doyle CJ, White and Kourakis JJ); and R v J, AP (2012) 113 SASR 592 (Vanstone, David and Peek JJ).
Any inquiry under s 9(2) will occur in the context of a protected witness being called to give evidence in chief (and with respect to whom the presumption in s 9(1) does not apply) and in order to determine whether a protected witness should be permitted to give unsworn evidence for the purpose of any decision to permit cross‑examination under s 34CA(1)(b) and s 34CA(2).
Section 9 would not seem to be otherwise engaged with respect to the statement itself, the evidence of the nature and contents of which is sought to be adduced pursuant to s 34CA. In other words, whilst s 9 must be complied with, either by way of observing the presumption (s 9(1)) or by way of the unsworn evidence inquiry (s 9(2)) in order to permit a protected witness to give evidence in chief or in cross‑examination at the trial, there is no express requirement to have considered these s 9 issues as at the time that the protected witness made or gave the earlier out of court statement.
Accordingly, a trier of fact, typically a jury, often will be presented with two types of “evidence” from a protected witness. Not infrequently evidence will be adduced in court which will be unsworn. As such the jury will hear an explanation of why this is so in accordance with s 9(4)(a) and is likely to receive a warning in accordance with s 9(4)(b). Sub‑section 9(4) is in the following terms:
(4)     If unsworn evidence is given under this section in a criminal trial, the judge—
(a)     must explain to the jury the reason the evidence is unsworn; and
(b)     may, and if a party so requests must, warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it.
In addition, evidence of the out of court unsworn statement will be adduced. However, as the legislation presently stands, it is not necessary for the capacity of a protected witness to give sworn or unsworn evidence, at the time any out of court statement is made, to pass through the s 9 prism. Nor, it would seem, will there be any obligation to comply with s 9(4). These different ways of dealing with the two types of “evidence” given by a protected witness may be productive of confusion in the minds of jury members in the absence of further explanation.
This apparent anomaly[103] may be exacerbated where there is a substantial delay between the obtaining of the statement and the trial. For example, in the present case, the alleged incidents the subject of the charges were said to have taken place between April 2010 and April 2011 when the complainant was five years old or perhaps (at the time to which Count 8 refers) just six years old.[104] The complainant’s interview was recorded on 26 March 2011, soon after the date of the last allegation and when the complainant was six years and one and a half months old. The trial commenced on 20 August 2012 by which time the complainant was seven years and four months old. By the time of any new trial (should it take place) perhaps later this year, the complainant will be of the order of eight and a half years old. It will be in the context of a protected witness of that age that the requirements of s 9 will need to be considered with respect to any permission to be given under s 34CA(1)(b)(ii) and s 34CA(2) at any new trial, should it be sought.
[103] I use the word “anomaly” for want of a better word. It may not be regarded as anomalous but as an unavoidable outcome if the policy of the legislature in securing the reform effected by s 34CA is to be achieved.
[104] The complainant was born 12 April 2005.
The s 9 considerations that pertain to an eight and a half year old child may differ appreciably when applied to the same child at aged six. It is conceivable that the s 9 considerations might take on a different complexion had they been addressed at that earlier time.
The first requirement to be satisfied before s 34CA will operate is that provided for in s 34CA(1)(a).
The Court, having regard to the circumstances in which the statement was made and any other relevant factors, is satisfied that the statement has sufficient probative value to justify its admission.
It is arguable that the requirement that “the statement has sufficient probative value to justify its admission” when understood in the context of paragraph (a) as a whole, calls for an assessment of considerations analogous to those required by s 9. However, and without finally deciding,[105] I think this to be unlikely. There is a, probably insurmountable, practical impediment to a trial judge, when considering the s 9 issues with reference to a child in front of the judge and as at the date of trial, being able to extrapolate from that consideration what the position would have been some (perhaps relatively considerable) time earlier.
[105] The Court did not hear full argument on the matters canvassed in these reasons and it is not appropriate that I express a final view.
Nevertheless, it may be that this requirement in s 34CA(1)(a) together with that in s 34D (see further below) serve as sufficient safeguards notwithstanding the absence of any requirement to comply with s 9. In addition, the fact that an out of court statement has been elucidated by a trained professional through a question and answer process will often assist in this regard. However, it is to be remembered that s 34CA is not necessarily confined to statements formally obtained by a trained professional and video recorded for the very purpose of securing the protected witness’ account soon after the occurrence of the alleged events and in an environment less threatening than a typical courtroom.
The issue of how a jury ought to be instructed in its task of assessing such an out of court statement was addressed by Duggan J in R v JJA[106] in terms with which I respectfully agree.
[106] (2009) 105 SASR 563 at [77]-[81].
In my view it was important for the trial judge to tell the jury, as he did, that the interview could be used to prove the truth of the facts asserted in it by the complainant. On the other hand, I do not think it was appropriate to instruct the jury that the videotaped interview is to be considered in the same way as the complainant's evidence in court without further explanation. That statement is correct insofar as it might reflect s 34CA(3) which permits the jury to use the out-of-court statement to prove the facts asserted in the statement. However, that does not imply that the assessment of each of these categories of evidence is to proceed along the same lines.
The jury should be told that in the case of each category of evidence, the videotaped interview and the evidence in court, that they are at liberty, subject to their assessment of the evidence, to treat what was said as evidence of the facts, but that the assessment of each category must have regard to the circumstances relevant to it. Some aspects of the assessment are common to both categories, but others are not.
In assessing the out-of-court statement, the jury should be invited to consider the demeanour of the witness just as they are required to observe demeanour when oral evidence is given to the court. Aspects such as whether what is said by the witness fits in with other evidence in the case which is accepted by the jury are common to both categories of evidence.
However, in the case of an out-of-court statement, the jury should be invited to consider whether the interview was accurately recorded. It is appropriate for the jury to consider whether important answers were given in response to leading questions or whether the complainant was permitted to relate his version without such prompting. Although the interview does not take place under oath, it is relevant to consider whether the complainant was aware of the significance of the interview and the necessity to be truthful.
Section 34D of the Act is also relevant in this respect. Section 34D(1) provides:
In estimating the weight, if any, to be attached to a statement rendered admissible as evidence by this Act, regard shall be had to all the circumstances from which any inference can reasonably be drawn as to the accuracy or otherwise of the statement, and in particular to the question whether or not the statement was made contemporaneously with the occurrence or existence of the facts stated, and to the question whether or not the maker of the statement had any incentive to conceal or misrepresent facts.
The reference to accuracy is capable of referring to both the accuracy of the recording and the truthfulness of the statements made by the complainant. The question of whether the maker of the statement had an incentive to conceal or misrepresent facts is a factor to be considered under the section just as it is in the case of evidence given orally before the jury. The contemporaneity of the statement is of particular relevance to an out-of-court statement. Of course a statement such as that which was before the court on this occasion will not be contemporaneous with the event, but it is relevant to have regard to the lapse of time between the event and the recording of the statement. In some cases this may make the out-of-court statement more reliable than the evidence before the jury on matters which depend upon memory where truthfulness is not in issue.
Section 34CA is a significant reform to the law of evidence in this area. In its present form its practical operation rubs uneasily against s 9 and perhaps also s 12A and s 21 of the Evidence Act. I echo Kelly J’s concern. Now that the courts have had some experience with the section the legislature might wish to consider whether any amendment is called for in order to further clarify the practical operation of s 34CA within its present legislative context.