PJ v R

[2023] NSWCCA 105

Court of Criminal Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

PJ v R [2023] NSWCCA 105

Hearing dates:

8 May 2023

Date of orders:

17 May 2023

Decision date:

17 May 2023

Before:

Basten AJA at [1];
Walton J at [65];
Hamill J at [75]

Decision:

(1) Extend to 8 March 2023 the time within which to seek leave to appeal from the ruling of Traill DCJ on 8 February 2023, refusing an application for the complainant and her brother to give further evidence pursuant to Sch 2, cl 87 of the Criminal Procedure Act 1986 (NSW).

(2)   Dismiss the application for leave to appeal.

Catchwords:

CRIMINAL LAW – child sexual assault – pre-recorded evidence – failure to put matters raised by accused in interview with police – leave sought to re-call witness – lengthy delay – change of defence counsel – “interests of justice” – purpose of reducing trauma to child witnesses

CRIMINAL APPEALS – interlocutory judgment or order – competence of application – whether ruling of trial judge amenable to appeal under Criminal Appeal Act1912 (NSW), s 5F

Legislation Cited:

Civil Procedure Act 2005 (NSW) Pt 6 Div 3, Sch 2 Pt 29, ss 306Y, 306ZB

Crimes Act 1900 (NSW), ss 66A, 66DA

Criminal Appeal Act 1912 (NSW), s 5F

Criminal Procedure Act 1986 (NSW), ss 249C, 294CB, 306S, 306U, Pt 2 Sch 2 cls 84-85, 87, 88, 89

Criminal Procedure Amendment (Child Sexual Offence Evidence Pilot) Act 2015 (NSW)

Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 3.5(4)

Cases Cited:

AF v R [2015] NSWCCA 35

Brown v R [2022] NSWCCA 121

Browne v Dunn (1893) 6 R. 67

DAO v The Queen (2011) 81 NSWLR 568; [2011] NSWCCA 63

Hofer v The Queen (2021) 95 ALJR 937; [2021] HCA 36

House v The King (1936) 55 CLR 499; [1936] HCA 40

King v Snow (1915) 20 CLR 315

KN v R (2017) NSWCCA 249; [2017] NSWCCA 249

Oldfield v The Queen (2006) 163 A Crim R 242; [2006] NSWCCA 219

Palmer v The Queen (1998) 193 CLR 1; [1998] HCA 2

R v Bozatsis and Spanakakis (1997) 97 A Crim R 296

R v F (2002) 129 A Crim R 126; [2002] NSWCCA 125

R v Jovanovic (1997) 42 NSWLR 520

R v Powch (1988) 14 NSWLR 136

R v RAG [2006] NSWCCA 343

R v Steffan (1993) 30 NSWLR 633

SC v R (2020) 104 NSWLR 257; [2020] NSWCCA 314

WX v R (2020) 102 NSWLR 467; [2020] NSWCCA 142

Texts Cited:

New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 22 October 2015

Category:

Principal judgment

Parties:

PJ (Applicant)
The King (Respondent)

Representation:

Counsel:
M Avenell SC and S Orman-Hales (Applicant)
M Kumar and S Beaumont (Respondent)

Solicitors:
NFK Lawyers (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s):

2021/196012

Publication restriction:

There is a non-publication order in relation to the name of the applicant. There is a statutory prohibition on publication of any material that identifies or is likely to lead to the identification of the complainant or any child witness.

 Decision under appeal 

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

8 February 2023

Before:

Traill DCJ

File Number(s):

2021/196012

HEADNOTE

[This headnote is not to be read as part of the judgment]

The applicant is charged with committing four sexual offences against his daughter, then aged four years, under s 66A(1) of the Crimes Act 1900 (NSW). The daughter and the applicant’s son gave evidence in a pre-recorded evidence hearing in April 2022. On 2 February 2023, the applicant sought leave to recall the complainant and her brother to give further evidence. The basis of the application was that the applicant should be given a further opportunity to cross-examine as to whether their mother had instigated the concoction of a false story.

Clause 87(3) of the Criminal Procedure Act 1986 (NSW) precludes further evidence being given without leave of the Court, which must not be granted unless the Court is satisfied that it is in the interests of justice. The trial judge was not so satisfied.

The applicant seeks leave to appeal that ruling under s 5F(3) of the Criminal Appeal Act 1912 (NSW) and requires an extension of time to make the application.

The two issues raised on the application were whether:

(i) the ruling not to permit the recall of the children constituted an “interlocutory judgment or order” for the purposes of s 5F(3) of the Criminal Appeal Act; and

(ii)    the trial judge erred in refusing leave for the children to give further evidence.

The Court held, dismissing the application for leave to appeal, Basten AJA and Walton J agreeing (Hamill J dissenting):

By Basten AJA (Walton J agreeing):

As to issue (i) – operation of s 5F

1. While rulings on the admissibility of evidence do not generally fall within s 5F, they may if they have the “character and effect” of putting an end to proceedings; a finding that a prosecution witness was a “vulnerable person” did not engage s 5F. However, a ruling as to the competence of a complainant to give unsworn evidence and a decision not to revoke the appointment of a particular witness intermediary have been held to engage s 5F: [28].

Bozatsis and Spanakakis (1997) 97 A Crim R 296, R v RAG [2006] NSWCCA 343, AF v R [2015] NSWCCA 35, SC v R (2020) 104 NSWLR 257; [2020] NSWCCA 314, discussed.

2. The ruling under cl 87 may be likened to one limiting the scope of cross-examination or otherwise rejecting a line of questioning, or to a refusal to require the prosecution to recall a witness or allow it to reopen its case. Regardless of whether such a ruling is made during the trial or before it commences, s 5F is not engaged: [31].

SC v R (2020) 104 NSWLR 257; [2020] NSWCCA 314, AF v R [2015] NSWCCA 35; King v Snow (1915) 20 CLR 315, R v Powch (1988) 14 NSWLR 136, R v Steffan (1993) NSWLR 633, discussed.

As to issue (ii) – refusal to grant leave

3. The second limb of cl 87(3), being par (b) (the interests of justice), is not a freestanding basis for granting leave. Rather, cl 87 should be construed holistically, as a prohibition subject to an exception by way of a discretionary power, not an obligation to grant leave if the court is satisfied of one of the matters identified in subcl (3); the exception is not satisfied by a bare balancing of interests and prejudice: [42]-[47].

4. The primary judge did not err in finding that there was no procedural unfairness in refusing a further hearing in which the children would be required to give further evidence: [51]. If leave had been granted, conditions would need to have been imposed on the scope of any further cross-examination: [57], [61].

By Hamill J (dissenting):

As to issue (i) – operation of s 5F   

5. The decision that the witnesses give no further evidence has the hallmarks of an order finally disposing of that issue and is an interlocutory judgment or order. The Court has jurisdiction under s 5F to entertain the application for leave.

Rv Steffan (1993) 30 NSWLR 633; R v Powch (1988) 14 NSWLR 136; DAO v The Queen (2011) 81 NSWLR 568; [2011] NSWCCA 63; Brown v R [2022] NSWCCA 121; KN v R (2017) 95 NSWLR 767; [2017] NSWCCA 249; SC v R 104 NSWLR 257; [2020] NSWCCA 314; R v F (2002) 129 A Crim R 126; [2002] NSWCCA 125, considered.

As to issue (ii) – refusal to grant leave

6. Clause 87(3)(b) serves two purposes: to protect child witnesses from trauma and to preserve the right of an accused person to a fair trial: [129].

WX v R [2020] NSWCCA 142, considered.

7. The trial judge failed to consider a relevant consideration (the importance of the evidence of a motive to lie to the applicant’s case and the prosecutor’s desire to rebut that evidence) and did so by reference to an extraneous consideration (the availability a R v Jovanovic (1997) 42 NSWLR 520 direction, irrespective of whether the motive was put to the complainant and the witness): [128].

Judgment

1. BASTEN AJA: The applicant in this matter, whose name is not used pending a forthcoming trial, seeks leave to appeal from a ruling of the judge before whom the matter is presently listed, under s 5F of the Criminal Appeal Act 1912 (NSW). The ruling was a refusal to permit the evidence of two children to be reopened for the purpose of further cross-examination. The case raises two issues, namely:

1. did the ruling constitute an “interlocutory judgment or order” for the purposes of s 5F(3) of the Criminal Appeal Act;

2. if so, did the trial judge err in refusing leave for the children to give further evidence?

2. In order to address these questions, it is necessary to provide an outline of the factual and procedural circumstances in which the questions arose.

Factual and procedural circumstances

3. An indictment dated 2 February 2023 charged the applicant with two counts of sexual intercourse with his daughter, then aged four years, under s 66A(1) of the Crimes Act 1900 (NSW). The applicant was further charged with two counts of intentional sexual touching of his daughter, under s 66DA of the Crimes Act. All of the offences were said to have taken place within a period of one week between 28 June and 4 July 2021, at Bass Hill, where the applicant then resided.

4. The two serious allegations of sexual intercourse involved digital penetration of the vagina. The daughter gave evidence of the assaults using the word “tundu” or “rude part” to refer to her vagina. The first evidence of complaint arose when she was crying as she left the bathroom after using the toilet, and her brother asked her what the matter was. The brother, who was eight years old, said that his sister had told him that their father had touched her tundu. The daughter later gave her mother the same account. On a second occasion the brother said his sister came out of the toilet after their father had cleaned her and had said to him, “Daddy put his hand in my, in my tundu”.

5. The incidents were alleged to have occurred during a week of the school holidays when the children were living with their father, pursuant to an order of the Family Court made by consent some two weeks earlier on 16 June 2021. The children were returned to the mother on 5 July 2021, on which day the girl told her mother what had happened. The mother took the children to the police, and officers of the Joint Investigation Response Task Force (JIRT) took statements from the children.

6. On 8 July 2021, the applicant was arrested and interviewed at Bankstown Police Station. In the course of the electronically recorded interview (ERISP) the applicant gave evidence denying any misconduct and stating in substance that the mother had instigated the children’s stories of the father’s misconduct in order to prejudice his position in ongoing custody proceedings in the Family Court. A similar allegation had been made by him when arrested, that allegation being recorded on the body-worn cameras used by the arresting officers.

7. There are two details of the allegations which are important for present purposes. One is that the allegations sought to implicate the mother in the concoction of false stories; the other is that this was said not to be the first time that she had taken such steps. Key passages in the applicant’s record of interview read as follows:

“A52   It’s been over five years now, I can say. Three to five years. This is not the first time this lady has done, has recorded the kids … on kid’s phone and record them, ask them to rip off their clothes like she can evidence to present in court.

…

A195   Ah, this, on the, was this on Saturday? I was having a shower. She does that all the time. And once, ah, once I pop out of the shower, she has a video call on my daughter… She does that before to have evidence to wipe me off on the kids, she and her lawyer… Now, she’s doing the same thing again.

…

Q284   Why, why can’t they do a video call?

…

A285   Why can’t she, …? Why do you want to see? What do you want to see? Because she’s trying to be intrusive to get, the last time during the proceeding, she told, the phone was, I was in the garage… and then she called. She asked [my son] to strip [my daughter] naked. Because we have a hearing that was on the 19^th… [A] and then [myself] was on the phone, stripping the girl naked so that she can get evidence. That’s the video call she’s making.

…

… So when I came, I said, ‘hey, [name of son], what is happening?’ He said my Mum, because we have a family, ah, ah, ah, mediation coming up, so she wanted to present that.”

8. On 1 April 2022, Traill DCJ presided over a hearing at which pre-recorded evidence was taken from the girl and the boy, pursuant to s 306U of the Criminal Procedure Act 1986 (NSW). A scheme for the procedure for taking evidence from children in child abuse cases was introduced into Sch 2, Pt 29 to the Criminal Procedure Act by the Criminal Procedure Amendment (Child Sexual Offence Evidence Pilot) Act 2015 (NSW). Although the Pilot Scheme operated for a limited period, it was later extended. It applied to the present proceedings.

9. As explained by counsel for the applicant in written submissions to the trial judge, the complainant’s pre-recorded evidence contained the following passages in cross-examination: ^[1]

   1. Pre-recorded evidence, pp 31(16); 34(27); 36(3); 39(7).

Q.   Did you tell your mum that daddy touched your tundu?

A.   Yes.

Q.   Did your brother tell you to tell your mum that?

A.   Yes.

…

Q.   When you go to daddy’s place, do you like going to daddy’s place?

A.   No.

Q.   Did you like going to daddy’s place sometimes?

A.   No.

Q.   Did your brother tell you he didn’t like going to daddy’s place?

A.   No.

Q.   Your brother told you to tell your mum that daddy touched your tundu, yes or no?

A.   Yes.

…

Q.   When you told your mummy that daddy touched your tundu, was that true or untrue or don’t you know, or don’t you remember?

A.   True.

…

Q.   Just one more question. Did [your brother] help you make up a story about daddy touching your tundu?

A.   No.”

10. The submissions for the applicant then stated:

“13.   As can be seen from the extracts above, cross-examination of the complainant was centred on the suggestion that [her brother] told the complainant to tell her mother that her father had touched her on the ‘tundu’ (a word the complainant used for her vagina).

14.   At no time was it suggested to the complainant that her mother had told the complainant to tell police (and presumably others) that the accused had touched her on the tundu. In fact, the suggestion to the complainant that it was her brother who told her to tell her mother that her father had touched her tundu appears to suggest that her mother knew nothing of any such plan.”

11. This allegation was oblique: the allegation was not that “her mother had told the complainant to tell police”: clearly she was responsible for the complainant speaking to JIRT officers. Rather, the allegation was that she had told the complainant (and her brother) to make complaints that were untrue.

12. The complainant’s brother was cross-examined to suggest that he did not want to go to stay with his father and that he made up stories to portray his father in a bad light, so that he would not have to stay with him. The following cross-examination was relied upon: ^[2]

    2. Pre-recorded evidence, pp 51(42); p 54(36); p 55(43); p 56(35).

“Q.   When you were told that you were going to be staying a whole week with your daddy, how did that make you feel?

A.   Very scared.

Q.   You did not want to go and stay with your daddy, did you?

A.   No.

…

Q.   Did you want to go and stay with your daddy?

A.   No.

Q.   Do you dislike your father?

A.   No.

Q.   Why did you not want to go and stay with your father?

A.   Because he does things that we don’t like him to do.

Q.   And did you tell your mummy about that?

A.   Yeah.

…

Q.   Did you make up stories about your father being a bad man so you wouldn’t have to go and stay with him again?

A.   No.

…

Q.   Did you help your sister to make up a story about your father?

A.   No.

Q.   Did you tell your sister to say that dad had touched her rude parts?

A.   No.

Q.   Did you tell your sister to tell your mother that dad had touched her rude parts?

A.   No.

…

Q.   Did you help your sister make up a story about dad touching her rude parts so you wouldn’t have to go and stay with your father anymore?

A.   No.”

13. By a notice of motion filed on 2 February 2023, the applicant sought leave for both the complainant and her brother to be “recalled to give further evidence”. The application was made under Sch 2, cl 87 to the Criminal Procedure Act, which precludes further evidence being given, subject to the leave of the Court. Clause 87 reads:

87   Witness may give further evidence only with leave

(1)   A witness in proceedings to which this Part applies whose evidence is pre-recorded at a pre-recorded evidence hearing cannot give further evidence without the leave of the Court.

(2)   An application for leave may be made by any party to the proceedings.

(3)   The Court must not give leave under subclause (1) unless it is satisfied—

(a)   that the witness or other party is seeking leave because of becoming aware of a matter of which the party could not reasonably have been aware at the time of the recording, or

(b)   it is otherwise in the interests of justice to give leave.

(4)   The further evidence is, so far as practicable, to be given by pre-recording at a hearing in the same way as the original pre-recorded evidence unless the Court otherwise directs.

(5)   Subclause (1) applies despite anything to the contrary in this Act or the Evidence Act 1995.

14. The basis of the application was that the applicant should be allowed to cross-examine each of the children to seek to establish that it was their mother, rather than the complainant or her brother who had instigated the concoction of a false story. Clearly, cl 87(3)(a) was not engaged, because there was no “matter” of which the applicant could not reasonably have been aware at the time of the pre-recorded evidence hearing. Rather, the material to be put to the children in any further cross-examination was by way of questions formulated in accordance with the allegations made by the applicant to police, as to the mother’s role in concocting the events described by the children.

Jurisdiction of this Court

15. In order to address the first question, it is sufficient to note the judge’s conclusion in dismissing the notice of motion, namely: ^[3]

“In my view, it is not in the interests of justice to recall the complainant or the brother of the complainant to put to them that the mother influenced both of them to make up the allegations.”

3. Ruling on application to recall witnesses, 8 February 2023, p 14.6.

16. That, it may be noted, is a stronger finding than that required by cl 87(3): it would suffice for the judge not to have been satisfied that it was in the interests of justice to grant leave. Unless affirmatively so satisfied, the judge was denied the power to grant leave.

17. The jurisdictional question is whether the refusal of the primary judge to permit the recall of the children for further cross-examination amounted to an “interlocutory judgment or order” for the purposes of s 5F(3) of the Criminal Appeal Act. If it did not, the application before this Court must be dismissed. If it did, there is a question as to whether the Court should grant leave to the applicant to pursue the appeal.

18. As explained in R v Steffan: ^[4]

“Orders made refusing a stay of proceedings upon the ground of a claimed abuse of process because of delay or prejudice are, as we have said, conceded to be interlocutory orders from which an appeal may be brought by leave pursuant to s 5F. Indeed, it was the stated intention of the legislature that s 5F would transfer proceedings in relation to such matters from the Court of Appeal to the Court of Criminal Appeal.”

4. (1993) 30 NSWLR 633 (Hunt CJ at CL, Grove and Sharpe JJ).

19. The Court then turned to consider the meaning of the phrase in question, which was not defined: ^[5]

“A judgment is the decision of a court which determines the proceedings (or an identifiable or separate part of them) and which is entered in the records of the court. An order is a command by a court that something be done (or not done) …. If the ruling on evidence in this case was either a judgment or order, it was clearly interlocutory in nature. It is not immediately self-evident as a matter of ordinary usage how a ruling on the admissibility of evidence could be entered in the records of the court as a judgment, or how it commands that anything be done (or not done) in the sense of an order of the court.”

5. Steffan at 636A.

20. The Court referred to R v Powch ^[6] (which was relied upon by the Director in the present case), in which the Court had held that no appeal lay under s 5F from the refusal of a trial judge to direct the recall of a prosecution witness for further cross-examination. Powch had held that the refusal was a “ruling on a procedural matter, and is not in any sense an interlocutory judgment or order”. ^[7] However, in Steffan, this Court observed that this distinction “would not always be an accurate one”.

    6. (1988) 14 NSWLR 136 at 138 (Yeldham J, Carruthers and Wood JJ agreeing).

    7. Powch at 138C.

21. By the time of Steffan, some six years after the introduction of s 5F, it was clear that uncertainty as to the scope of the provision was unresolved. Steffan itself held in relation to a ruling as to the admissibility of illegally obtained evidence: ^[8]

“We can see no distinction between a ruling on evidence made in advance of the trial and one made in the course of the trial. It still cannot be entered in the records of the court as a judgment; nor does it command that anything be done (or not done) in the sense of an order of the court. It remains as no more than a ruling, one which can be tested on appeal to this Court after a conviction. … But rulings on evidence may always be altered – although the necessary consequence of such an alteration may sometimes be the discharge of the jury. They may be altered because the circumstances in which the ruling was first made have altered, or simply because the judge has had a change of mind.”

8. Steffan at 639C.

22. That the ruling cannot be entered in the records of the court as a judgment is no doubt correct, but other rulings which are not as a matter of practice entered in any record, are treated as interlocutory orders. Indeed, it is not clear that anything is entered on the record in criminal proceedings other than the verdict, which was traditionally entered by being written on the back of the indictment. (The indictment still contains a form for entry of the verdict.)

23. One procedural change which succeeded the introduction of s 5F and has been expanded since the earlier rules considered in Steffan, is the power and procedures by which criminal courts address matters before the commencement of the trial and the empanelling of a jury. The fragmentation of the trial procedure in circumstances, which is avoided where matters are dealt with in advance of the trial, is a significant consideration in addressing the scope of s 5F. Further, pre-trial rulings are apt to be attended by a greater level of formality than those made in the course of a trial. The proposition that a ruling permitting evidence to be given which is later held to be inadmissible (resulting in the discharge of a jury) must surely involve a high level of disruption of the criminal trial process.

24. The second matter that has undergone considerable change since 1987 (and indeed 1993) is the increased regulation of the trial process, relevantly for present purposes, in relation to the evidence of children and particularly in relation to sexual offences. The range of matters which may therefore be treated as subject to appeal under s 5F has thus potentially expanded.

25. Nor is it entirely clear what is meant by enquiring if the judicial ruling “commands that anything be done (or not done)” in the sense of being an order of the court. A ruling on the admissibility of evidence binds the parties, unless it is revoked or overturned on appeal. It may, of course, be described as a procedural ruling, but Steffan casts doubt on the value of that description as a basis for distinguishing appealable interlocutory orders from other rulings.

26. Some steps taken by the judge in the course of a criminal trial will not on any view be interlocutory judgments or orders. The directions given to a jury provide an example. Where a judge had directed the jury to discharge the accused and the jury had entered a verdict accordingly, an attempt to appeal from the judge’s directions on questions of law was rejected in the King v Snow. ^[9]

    9. (1915) 20 CLR 315 at 324 (Griffith CJ).

27. These difficulties were revisited by this Court in SC v R. ^[10] That case involved the relatively recent procedure for the appointment of a “children’s champion” or “witness intermediary” for a witness under 16 years of age, in proceedings for prescribed sexual offences. ^[11] The case involved a challenge to the refusal of the primary judge to revoke the appointment of a particular witness intermediary. In SC, the Court held that the refusal of the primary judge to exercise a power to revoke the appointment of a witness intermediary fell within the scope of s 5F.

    10. (2020) 104 NSWLR 257; [2020] NSWCCA 314 at [39]-[44] (Meagher JA, Walton and Beech-Jones JJ).

    11. Criminal Procedure Act, Sch 2, cl 89.

28. A number of propositions may be derived from the present state of the authorities.

1. First, although rulings on the admissibility of evidence do not generally fall within the terms of s 5F, if they have the “character and effect” of, for example, putting an end to the proceedings, or determining whether or not there should be separate trials, they may fall within s 5F. ^[12]

2. Secondly, a ruling that a complainant was not competent to give unsworn evidence was capable of engaging s 5F. ^[13]

3. Thirdly, a finding that a prosecution witness was a “vulnerable person”, so that evidence could be received of a previous representation made by a recorded interview, pursuant to s 306S of the Criminal Procedure Act, was not subject to appeal under s 5F. In AF v R ^[14] it was concluded that the manner of giving evidence was distinguishable from a finding that the witness was not competent to give evidence and was in the same category as an evidentiary ruling which could be reviewed in the course of the trial. ^[15]

4. Fourthly, in SC v R this Court held that the decision not to revoke the appointment of a particular witness intermediary fell within s 5F. ^[16]

   12. Bozatsis and Spanakakis (1997) 97 A Crim R 296 at 303-304 (Gleeson CJ, Meagher JA and Bruce J agreeing); R v F [2002] NSWCCA 125; 129 A Crim R 126 at [17] (Wood CJ at CL, Meagher JA and Bell J agreeing).

   13. R v RAG [2006] NSWCCA 343 (Latham J, McClellan CJ at CL and Johnson J agreeing).

   14. [2015] NSWCCA 35 (R A Hulme J, Hoeben CJ at CL and Harrison J agreeing).

   15. AF at [29].

   16. The actual basis for the decision has been overturned by the introduction into cl 89 of a new subcl 5(A) providing that a person is not prevented from being a children’s champion because they have carried out that function during a criminal investigation.

29. The reasoning in SC is reflected in the following passage:

“44   The statutory provisions considered in AF did not make express provision for any order, designation or appointment by the trial judge. Instead, upon the statutory definition of ‘vulnerable person’ being satisfied, s 306S … was permissive, simply permitting that person to give evidence by various means (subject to a contrary determination under s 306Y). The regulations surrounding the appointment of a witness intermediary are outlined above. Unlike the regime considered in AF, the regulatory scheme confers a specific power on a court, namely the power of appointment conferred by cl 89(3). It follows from cl 90(1) that the practical legal effect of the appointment of a witness intermediary is that the evidence of the vulnerable witness cannot be taken in their absence and must be given in the manner provided for in cl 90(2). In that sense, the substantive effect of the appointment of a witness intermediary is that it is not merely facultative as in AF, but instead operates as a form of ‘command that something be done or not done’. Like the determination of competency in RAG, it has the necessary degree of finality in that it is not reviewed in the proceedings but instead operates of its own force under cl 90 unless and until the appointment is revoked. A decision to refuse to revoke an appointment has the same characteristics. Accordingly, the Court was satisfied that the relevant order … was capable of being subject to an appeal under s 5F(3) of the Criminal Appeal Act.”

30. It may appear that the Court has been more ready to find that s 5F is engaged in circumstances where error is discerned and where intervention would not fragment the conduct of a criminal trial, both of which are no doubt also important considerations in relation to a grant of leave, where leave is required under s 5F(3). However, it may be accepted that the decisions can be reconciled by reference to the form of the statutory procedure involved. As counsel for the Director fairly noted, the refusal to have the children recalled to give further evidence was not in the same category as a finding that the witnesses were not competent, and bore some similarity to a ruling on the admissibility of evidence, in that it could be reviewed in the course of the trial. That was a matter of practical relevance in circumstances where the question was whether the mother had put the children up to telling concocted stories and the mother was to be called in the prosecution case. By way of contrast, SC was concerned with an entirely separate matter from the actual giving of evidence, namely the appointment of a witness intermediary, but in circumstances where the appointment itself was a condition precedent to the child giving evidence.

31. While it is true that a grant of leave is a condition precedent to the children giving further evidence, the ruling under cl 87 is closer to one limiting the scope of cross-examination or otherwise rejecting a line of questioning. It is also analogous to a refusal to require the prosecution to recall a witness, or allow it to reopen its case. If such rulings were made in the course of a trial it seems clear that s 5F would not be engaged. In principle, the fact that such a ruling is made before the trial commences does not alter the character and effect of the ruling. It follows, in my view, that s 5F is not engaged and the application for leave to appeal under s 5F(3) should be refused.

Merit of application

32. Against the possibility that the foregoing finding as to the operation of s 5F is wrong, it is appropriate to address the substantive challenge to the ruling of the primary judge. Although the Director submitted that, if s 5F were engaged, leave should be refused, that was on the basis that the application lacked merit. On the other hand, the delays of 10 months from the time of the pre-recorded evidence hearing to the application for leave for the children to give further evidence, and a further month from the refusal of that application to the filing of the notice of appeal, militate against a grant of leave.

Reasoning of primary judge

33. The primary judge took into account three matters each of which was material to her conclusion not to permit the children to be recalled. The first was that the applicant had raised the issue of the mother being responsible for the children fabricating evidence against him when he was arrested and shortly thereafter in the recorded interview with police. Those events occurred more than eight months before the pre-recorded evidence hearing at which the children gave evidence.

34. Secondly, the judge raised an issue as to why there had been no application to recall the children between the date of the pre-recorded evidence on 1 April 2022 and the filing of the notice of motion in February 2023. The reason given was that previous defence counsel “became unavailable in September 2022” and replacement counsel was not briefed until October 2022. The judge noted that the same solicitor had acted for the applicant throughout and that there was “no explanation” as to why no earlier application was made under cl 87.

35. Thirdly, the judge addressed the defence submissions as to why the failure to recall the children would cause difficulties at the trial. The first proposition was that the rule in Browne v Dunn may prevent the accused from pressing his defence as to the conduct of the mother in circumstances where that issue had not been raised in cross-examination of the children. The judge pointed out, however, that such a principle is generally not applicable against an accused in a criminal proceeding, referring to the discussion by the High Court in Hofer v The Queen. ^[17] These reasons were all relevant and significant.

    17. (2021) 95 ALJR 937; [2021] HCA 36 at [26]-[32].

36. The case for the applicant was also addressed in a more qualified form than the rule in Browne v Dunn, namely that the jury would, in any event, be left with two distinct scenarios and may themselves wonder why the children were not asked about their mother influencing them. Because the applicant’s recorded interview would be before the jury, they would know that it had always been his case that the mother was responsible.

37. On the hearing of the motion, the prosecutor did not oppose the application to recall the children and presented some arguments in support of the application. Although the fact that the prosecutor had adopted a different position in this Court was noted, it was not submitted that the primary judge was bound to grant leave because it was not opposed, nor that the Director was not entitled to defend the judge’s order in this Court. In both respects those positions should be accepted.

38. In substance, the first matter raised by the prosecution before the primary judge was the difficulty for the jury to resolve the conflict between the witnesses. The primary judge was dismissive of this concern, stating that it could easily be dealt with in submissions. ^[18]

    18. Primary judgment, p 9.7.

39. The trial judge then addressed a further matter raised by the prosecutor, namely that it would be difficult to explain to the jury “what the asserted motive to lie is and what is relied upon by the accused at trial”. ^[19] The judge responded to this matter by referring to the fact that the accused did not have to prove any motive and that the jury would be given a “Jovanovic warning”. R v Jovanovic ^[20] dealt with the suggestion that a jury might ask itself why a complainant would make up, in the absence of any apparent motive for lying. Juries are generally warned not to assume that there is no undisclosed motive and that, even if they did not accept the accused’s suggested motive, it does not follow that the evidence given by the witness is truthful and reliable. In this case, the cross-examination of each child, and particularly the brother, suggested a motive to say bad things about the father so that they would not have to stay with him. That does not address the possibility that a different motive might be suggested to the mother, together with a willingness on her part to have the children fabricate complaints. It will be appropriate to return to this point shortly.

    19. Primary judgment, p 9.9.

    20. (1997) 42 NSWLR 520.

40. The third matter raised by the prosecutor was the possibility that the applicant might not be allowed to give evidence of the asserted motive to lie, or to address the jury on that issue. The judge dismissed that as speculative and baseless: it was not raised on the proposed appeal. Nor was a final matter as to the supposed difficulty for a prosecutor cross-examining the applicant.

41. Finally, the judge referred to the decision in Oldfield v R,^[21] in which defence counsel had informed the jury that, through an oversight on his part, he did not put a proposition to a child witness and, rather than allow the trauma of recalling her, counsel conceded that she may have denied the proposition if it had been put to her. The primary judge suggested that this was “a fair way of dealing with it, rather than retraumatising two small children”.

    21. [2006] NSWCCA 219; 163 A Crim R 242.

Legal principles

42. The applicant relied upon the second limb in par (b) of cl 87(3) (“otherwise in the interests of justice”) as if it were a freestanding basis for granting leave, having the same availability as par (a). That is, it simply involved a balancing exercise between harm to the children if they were to be recalled, against prejudice to the applicant if they were not.

43. In my view that assumption should not be accepted. The structure of cl 87 suggests a different approach. It is important to construe the provision holistically. Subcl (1) establishes a qualified prohibition, namely that the witness who has given evidence at a pre-recorded evidence hearing “cannot give further evidence”. That prohibition may be avoided where the court gives leave. Subsection (2) provides for an application to be made by any party and subs (3) imposes a constraint on the grant of leave, if sought. Clause 87 does not in terms confer a power on the court to grant leave, but that should be inferred. That is, there is a discretionary power, not an obligation, to grant leave if the court is satisfied of one of the matters identified in subcl (3).

44. The structure of subcl (3) is also important. In part it supports the conclusion as to the existence of a discretionary power. The use of the term “otherwise” in par (b) implies that satisfaction of par (a), according to its precise terms, may not be sufficient to warrant a grant of leave. It must be in the interests of justice to do so. Thus, although par (a) does not in terms reflect the need for an evaluative judgment, when cl 87 is read as a whole, such a judgment should be inferred, with the result that the court enjoys a discretionary power, and is not obliged to grant leave if satisfied as to par (a).

45. A second material aspect of subcl (3) is the nature of par (a). It identifies a “matter” of which the party was not aware and could not reasonably have been aware at the time of the pre-recorded evidence hearing. If such a matter exists, procedural fairness suggests that, if further information has become available before the completion of the proceeding, the judge should have a power to permit the witness to give further evidence. The subclause does not purport to identify all circumstances in which it may be procedurally unfair for an absolute prohibition to operate, but it does suggest the kind of case in which the prohibition is lifted.

46. It is clear that both the provisions in Pt 6 and in Sch 2 Pt 29 to the Criminal Procedure Act, dealing with the giving of evidence by vulnerable persons, seek to protect vulnerable persons from potential trauma, but, where necessary, a court is empowered to otherwise order, where satisfied that it is in the interests of justice for such a step to be taken. For example, s 306Y provides that the court may order that a vulnerable person must not give evidence by means of a recording by an investigating official, as otherwise provided in Pt 6, Div 3, but the court may “only make such an order if it is satisfied that it is not in the interests of justice for the vulnerable person’s evidence to be given by a recording”: s 306Y(2). A similar constrained power is provided in respect of evidence given by closed-circuit television: s 306ZB(5).

47. Similarly, the structure of cl 87 is a prohibition on a witness giving further evidence, whether voluntarily or compulsorily, but subject to a discretionary power of the court to grant leave. The one circumstance identified as a criterion which may permit the grant of leave provides a basis for considering other proposed criteria. Further and importantly, the formulation that the court “must not give leave… unless” implies a limited conferral of power which is not consistent with a bare balancing of interests and prejudice. Consistently with the purpose of the division within which cl 87 falls, an important consideration in exercising the power is the dominant purpose of protecting child witnesses from the trauma of giving evidence, so far as it is reasonably possible to reduce that trauma. The use of a pre-recorded evidence hearing is seen to go part of the way, but even then is not to be repeated unless the interests of justice require it.

Application of principles

48. In addressing an application under cl 87, two further factors are important. Because the clause reflects a concern that repeat hearings will potentially add to the child witness’ trauma, legal representatives appearing at such a hearing must be aware of the statutory policy not to provide further hearings. As with most witnesses, they should expect to have one bite at the cherry.

49. Secondly, the present subcl (3)(a) provides a warning that any matter which is known to the applicant at the time of the hearing should be addressed if it is a matter which is sought to be relied on at the trial and should, where appropriate, be put to the child witness.

50. Thirdly, as with any form of cross-examination on behalf of an accused, counsel will be obliged to make forensic decisions as to the course of the questioning, and the accused will be bound by counsel’s conduct.

51. In the present case, there was no procedural unfairness in refusing a further hearing at which the children would be required to give further evidence. To the extent that it was a relevant “matter”, the allegation that the mother had sought to set the children up to fabricate evidence against the applicant, and had done so on previous occasions in a manner specified by the applicant, was expressly identified (and indeed repeated) in the course of his ERISP. Whether counsel, on instructions or otherwise, decided not to raise those issues with the children, is a matter about which the court cannot and should not speculate. That the evidence given by the children was untrue was expressly put to each of them. That it was untrue because either or both of them wished to avoid having to stay with the father was also put to them. There was every opportunity to put an alternative motive, namely that the mother had asked or proposed that they fabricate their evidence. The fact that the alternative explanation for giving false evidence was not put does not demonstrate any element of procedural unfairness.

52. What may be tentatively inferred from the chronology of events was that fresh counsel coming into the matter took a different view of how the matter might best be defended. That may provide a possible basis for requiring the children to be recalled to give further evidence, but it is insubstantial.

53. The primary judge was correct to refuse leave on either of two hypotheses. The first hypothesis must be that, if asked whether their mother persuaded them to fabricate evidence against the applicant, one or both would accept the suggestion. In circumstances where the brother conceded that he did not like staying with his father, but yet denied that he had lied about what his sister told him, such a possibility is remote. Similarly in circumstances where the complainant denied telling lies, the possibility is also remote. There having been every opportunity to put those questions at the first hearing, there was no warrant to retraumatise the children by a second proceeding in the hope that they would recant their denials.

54. The alternative is that the children would deny the allegations, which seems probable. All that is then achieved is that the jury is not left to wonder why the allegations were not put. While I am not persuaded that an explanation of the kind given in Oldfield would necessarily resolve the problem, rather than giving rise to further speculation on the part of the jury, I am not satisfied that the prejudice which would arise for the applicant in such a case would be sufficient to warrant a further hearing.

55. In my view, the interests of justice require a far more forceful case of prejudice than is raised by the applicant on either hypothesis.

56. Further, as with a ruling on the admissibility of evidence, the rejection of the present application is by no means final in any legal sense. If circumstances arise at the trial which suggest that the issue should be revisited, there is no legal barrier to a further application being made.

Possible conditions

57. It follows from the foregoing consideration that, not only is s 5F not engaged, but if it were, and if leave were thought appropriate, the appeal should nevertheless be dismissed. However, if those conclusions were wrong, there is a further problem facing the applicant. That is illustrated by the failure of the applicant until virtually the end of the oral submissions in this Court to accept that conditions should be imposed on any grant of leave for a further hearing. Prior to that, counsel had argued in favour of an unrestricted right to cross-examine the children further. There was no suggestion that the court did not have power to condition a grant of leave to conduct further cross-examination.

58. Although in written submissions, the applicant summarised seven matters which he had identified to the police, as set out in the ERISP, most were either matters involving the mother about which the children could have no knowledge or were the subject of unchallenged objective evidence, such as the fact that the allegations were made after the first time the children stayed with him for one week during the first school holidays after the making of the court order. Other matters could properly be put to the mother concerning her motivations. The one matter emphasised in the submissions was the alleged video call by the mother to the son in the course of which she told him to take the daughter’s clothes off, which he did, so that the mother could record it and have “evidence to wipe me off the kids”, as described by the applicant.

59. The significance of this allegation was obscure. There was no evidence of the existence of any video-recording. It was not in any event evidence in relation to the offences that occurred, but only to establish that the mother enlisted her son in an attempt to embarrass the applicant. If the further hearing were to be restricted to questioning along that line, it would not warrant a grant of leave.

60. The question proposed before the primary judge, and repeated in written submissions in this Court was as follows: ^[22]

“Your mother – there’s been Family Law proceedings, she’s asked you to do things before, yes or no? And on this occasion she’s asked you to do things again because she was unhappy because he got more connect?”

22. DC Tcpt, 08/02/23, p 6(45).

61. It is self-evident that the children could not be asked about the nature or stage of the family law proceedings, or about their mother’s motivation. Once these elements are removed, the significance of the proposed cross-examination of the children is substantially reduced. Furthermore, if, as submitted by counsel before the primary judge, the purpose was to foreclose a Browne v Dunn submission, for the reasons already indicated and correctly expressed by the primary judge, the concern was unnecessary.

Conclusion

62. The application for leave to appeal should have been filed within 14 days of the ruling on 8 February 2023, ^[23] but was not. The applicant sought an extension of time to the date of filing, namely 8 March 2023. The extension was not opposed and should be granted.

    23. Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 3.5(4).

63. However, the application should be dismissed because s 5F was not engaged. If, contrary to that view it was engaged, and if leave were granted, the appeal should be dismissed on the merits.

64. On either view, I propose the following orders:

1. Extend to 8 March 2023 the time within which to seek leave to appeal from the ruling of Traill DCJ on 8 February 2023, refusing an application for the complainant and her brother to give further evidence pursuant to Sch 2, cl 87 of the Criminal Procedure Act 1986 (NSW).

2. Dismiss the application for leave to appeal.

65. WALTON J: I have had the advantage of reading the draft judgments of Basten AJA and Hamill J in this matter. I agree with the judgment of Basten AJA for the reasons given by his Honour and the orders proposed but would make some further brief observations as to the merits of the application before the Court in the event that the finding made by Basten AJA, with which I agree, as to the operation of s 5F of the Criminal Appeal Act 1912 (NSW) is found to be in error.

66. The application for leave to appeal under s 5F in this matter is brought against a decision by the District Court of New South Wales to refuse leave under Sch 2, cl 87 of the Criminal Procedure Act 1986 (NSW) (“cl 87”) (“the Sentencing Act”) for two child witnesses (“FJJ” and “MLJ”) to give further pre-recorded evidence in relation to PJ’s trial for sexual offences against FJJ.

67. The pre-recorded evidence of the children occurred on 1 April 2022, after which the children were excused and advised they would not be returning.

68. Prior to the taking of that evidence, it was clear from the ERISP undertaken by the applicant that he wished to assert that the children’s mother had influenced the children in the evidence they had given, and in fact, there had been a prior occasion, in Family Court proceedings, in which she had sought to influence the evidence given by the children (as well as fabricating evidence against the applicant).

69. Those propositions were not put to the children in cross-examination. Rather, a second hypothesis was suggested to FJJ and MLJ; that MLJ had put FJJ up to making the allegations. This was denied by both children.

70. No part of the challenges facing counsel in conducting pre-recorded examinations of children in cases such as these may explain that omission. No other explanation has been provided.

71. Some ten months later, on 2 February 2023, the applicant filed a Notice of Motion seeking leave under cl 87 of the Sentencing Act. The sole explanation for the delay in bringing that application was a change of counsel in September 2022. There was a further month after the refusal of the application under cl 87 until the filing of a Notice of Appeal. I agree with Basten AJA that these circumstances mitigate against the grant of leave.

72. What is postulated by the applicant for leave under cl 87 is that FJJ, who made her complaint in July 2021 at 4 years of age, would now, at 6 years of age be recalled to give evidence some two years later, when in a later age group and after the passage of that amount of time. Upon the application for leave under cl 87, as contemplated by the applicant in the present proceedings, FJJ would be recalled with respect to questions relating to the alleged offending and the family dynamics at the time of the alleged offending, in the context of a combative family law dispute. This is plainly productive of the risk of significant further trauma to the child.

73. In my view, and for the reasons given by Basten AJA, a far more forceful case of prejudice than was raised by the applicant would be required under these circumstances and under the hypotheses described by his Honour at [53] and [54] of his judgment.

74. No House v King (1936) 55 CLR 499; [1936] HCA 40 error has been demonstrated in the decision of Traill DCJ to refuse leave under cl 87 of the Sentencing Act.

75. HAMILL J: This is an application under s 5F of the Criminal Appeal Act 1912 (NSW), against the refusal of the District Court to make an order under cl 87 of Sch 2 of the Criminal Procedure Act 1986 (NSW) to grant leave for two child witnesses (FJJ and MLJ) to give further pre-recorded evidence, in relation to the applicant’s (PJ’s) trial for four sexual offences against his daughter FJJ. The applicant requires an extension of time in which to make the application.

76. Prior to completing a draft of this judgment, I had the opportunity to read a draft of the judgment of the presiding Judge. I have reached a different conclusion as to the resolution of the application. There may be a little repetition of the factual and procedural details. However, the background to the application can be stated relatively briefly.

77. Statutory provisions prohibit the publication of information leading to the identification of the children involved and I adopt the initials used by counsel to the appeal and counsel in the District Court.

Background

78. FJJ and MLJ are, respectively, the daughter and son of PJ and his ex-wife (MD). FJJ was born in late August 2016 and MLJ was born in early July 2012 and were, accordingly, aged 4 and 8 at the relevant time. PJ and MD were embroiled in family law litigation for around 5 years leading up to the alleged offences. At the time the allegations emerged, there were Family Court orders whereby PJ had custody of the two children every second weekend and half of the school holidays. On 28 June 2021, the applicant had custody of the two children.

79. The indictment presented against the applicant contains four offences, although the Prosecution Case Statement refers only to two offences. I assume that counts 1 and 3 on the indictment are the primary allegations, while counts 2 and 4 are alternative offences that may arise if the prosecution fails to establish penetration in respect of the primary offences. The very short particulars of the offences are:

1. 29 June 2021 – while “assisting her with toileting” the applicant inserted his “pinkie finger in [FJJ’s] vagina”. This is count 1 on the indictment alleging sexual intercourse with a child under 10 years. Count 2 (on the indictment) is an offence of sexually touching a child under 10. As noted, this appears to be an alternative count although the indictment does not indicate this.

2. 30 June 2021 – in similar circumstances, the applicant again inserted his pinkie into FJJ’s vagina. This is a second offence of sexual intercourse with a child under 10 years. It is referred to as count 2 in the Prosecution Case Statement but is count 3 on the indictment. Count 4 is a second offence of sexual touching, again presumably to be cast in the alternative.

80. Both offences are charged between dates, namely 28 June 2021 to 4 July 2021, no doubt to allow for possible imprecision on the part of the child complainant and to encompass the period of the access visit that the children had with PJ. The prosecution case is that FJJ immediately complained to her brother after each incident and that MLJ confronted the applicant who said on both occasions, “I didn’t do nothing”. The children returned home on 4 July 2021 and FJJ complained to MD on 5 July 2021. Police became involved and both children were interviewed by the Joint Investigation Response Team (“JIRT”) on 5 July 2021.

81. The applicant was interviewed by police on 8 July 2021 (the “ERISP”). He denied the allegations and suggested his ex-wife encouraged the children to make false sexual accusations against him. He said this was not the first time his ex-wife had done this or something similar. It will be necessary to return to the detail of that suggestion.

82. The case was part of the Child Sexual Offence Evidence Pilot Scheme provided for by Sch 2 Pt 29 of the Criminal Procedure Act. A witness intermediary (or “children’s champion”) was appointed under cl 88 and there was a “ground rules hearing” on 25 March 2022. Pursuant to cls 84-85 the children’s evidence was taken in a “pre-recorded evidence hearing” conducted on 1 April 2022. Both children were cross-examined, within the rules and procedures provided for in such hearings, by counsel then appearing for the applicant.

83. By notice of motion dated 2 February 2023, the applicant sought an order that “[l]eave be granted for the complainant FJJ and the witness MLF (brother of the complainant) to be recalled to give further evidence.” By that time, the applicant was represented by different counsel. The notice of motion was supported by an affidavit of the applicant’s solicitor, Ms Fard. The affidavit annexed other documents including, a parenting order made with consent under the Family Law Act 1975 (Cth) (annexure A) and the applicant’s ERISP (annexure C).

84. The notice of motion came before Judge Traill on 8 February 2023. Written submissions were filed by counsel for both the applicant and the prosecution. The Prosecutor indicated in their written submissions “the Crown does not oppose the application”.

85. The application was governed by the provision in cl 87 which provides:

(1)    A witness in proceedings to which this Part applies whose evidence is pre-recorded at a pre-recorded evidence hearing cannot give further evidence without the leave of the Court.

(2)    An application for leave may be made by any party to the proceedings.

(3)    The Court must not give leave under subclause (1) unless it is satisfied-

(a)    that the witness or other party is seeking leave because of becoming aware of a matter of which the party could not reasonably have been aware at the time of the recording, or

(b)    it is otherwise in the interests of justice to give leave.

(4)    The further evidence is, so far as practicable, to be given by pre-recording at a hearing in the same way as the original pre-recorded evidence unless the Court otherwise directs.

(5)    Subclause (1) applies despite anything to the contrary in this Act or the Evidence Act 1995.

86. Both counsel engaged in a robust exchange with the trial Judge. Neither suggested that the provision in sub-cl (3)(a) was engaged. However, both the Prosecutor and defence counsel submitted that it was “otherwise in the interests of justice” that leave be given. The submissions for each party arose from the failure of counsel who appeared for the applicant at the pre-recorded evidence hearing, to put matters that were raised by the applicant in his ERISP.

87. The trial Judge delivered her reasons ex tempore on 8 February 2023. Her Honour concluded (at p 15) that “[i]t is not in the interest of justice to recall the two very young children to have them further cross-examined” and resolved to “dismiss the defence notice of motion”.

88. A notice of appeal was filed on 8 March 2023. There was a single ground of appeal in the following terms:

“Traill DCJ erred in determining it was not in the interests of justice that FJJ and MLJ give further evidence, in particular because Traill DCJ was able to formulate an alternative course, which was not possible [f]or PJ or the prosecution, nor desirable at least for PJ, to take.”

89. Written submissions were filed by senior counsel for the applicant and counsel for the respondent. As was its entitlement, the respondent took a different approach on the appeal to that which was taken in the District Court. It argued the appeal was “incompetent” and the Court did not have jurisdiction to intervene under s 5F. Further, it submitted that the trial Judge’s decision was correct, and, in any event, there was no error of the kind that would entitle this Court to intervene in what the parties agreed was the exercise of discretion: House v The King (1936) 55 CLR 499; [1936] HCA 40.

90. The appeal hearing took place on 8 May 2023. While the trial proceedings had been adjourned to accommodate the applicant’s proposed appeal, resolution of the dispute remains urgent given the delay in the case to this point and the desirability that, if the applicant succeeds, the further pre-recorded evidence hearing takes place as soon as possible.

Jurisdiction

91. The respondent submitted the applicant’s proposed appeal was incompetent because the decision of Traill DCJ was not an interlocutory judgment or order. It was submitted the decision was a ruling on the admissibility of evidence or, alternatively, that it did not finally resolve any issue. The applicant submitted to the contrary.

92. An evidentiary ruling is not amenable to an appeal under s 5F(3): see, for example, R v Steffan (1993) 30 NSWLR 633, R v Powch (1988) 14 NSWLR 136, DAO v The Queen (2011) 81 NSWLR 568; [2011] NSWCCA 63 and Brown v R [2022] NSWCCA 121.

93. The situation is less clear where the ruling concerns the manner in which a witness might give evidence: compare KN v R (2017) 95 NSWLR 767; [2017] NSWCCA 249 (a decision that a witness give evidence by audio visual link via a platform called Jabber), with SC v Rs (2020) 104 NSWLR 257; [2020] NSWCCA 314 (the appointment of witness intermediary for a child witness). As RA Hulme J said in AF v R [2015] NSWCCA 35 at [31]:

“It has been acknowledged that there is no bright line test for discriminating between judgments or orders, on the one hand, and rulings which do not constitute judgments or orders, on the other.”

94. R v F (2002) 129 A Crim R 126; [2002] NSWCCA 125 Wood CJ at CL at explained:

“10 Essential to a review under s 5F of the Criminal Appeal Act is the existence of an ‘interlocutory judgment or order’. A wide range of matters have been held to fall within the ambit of this expression, including orders for, or refusal of, separate trials: Saunders and Georgiou (1999) NSWCCA 125. However, rulings on the admissibility of evidence have been held not to be interlocutory judgments or orders within the meaning of the section: Powch (1988) 14 NSWLR 136; 34 A Crim R 360; Rogerson (1990) 45 A Crim R 253, Steffan (1993) 30 NSWLR 30 and Bailey (1988) 36 A Crim R 30; save where the consequence of the judgment is to rule out all of the Crown evidence leaving it without a case: Bozatis (1997) 97 A Crim R 296.

11    The distinction, it seems, depends in the case of a judgment, upon it determining the proceedings, or at least an identifiable part of them, and being capable of entry in the records of the court: Steffan (at 636; 509-510); or in the case of an order, upon it amounting to a command that something be done or not done: Snow (1915) 20 CLR 315 at 324 and 361, and Steffan (at 636; 509-510). In Steffan it was said that it was not immediately self evident how a ruling upon the admissibility of evidence could answer either description. Additionally, it was noted that an evidentiary ruling lacks finality, in that it can be changed in the course of the trial.”

95. The decision under review in the present case was not a ruling on evidence; rather it was a decision that the witnesses give no further evidence at all. Contrast might be made with the (hypothetical) situation that may have arisen if Judge Traill had decided the evidence sought to be introduced was not relevant or should be excluded pursuant to a provision such as s 294CB of the Criminal Procedure Act or fell foul of the tendency or credibility rules. The decision of the District Court disposed of a formal notice of motion seeking leave to recall the witnesses. While it may be theoretically possible to revisit the issue, it had the hallmarks of an order finally disposing that discrete issue. Senior counsel was correct when she submitted that it is difficult to envisage circumstances where the order will be revisited. While, the trial Judge said the issues could be raised with the applicant’s ex-wife, there was no suggestion that the refusal to grant leave might be re-considered depending on what evidence the mother gave. Further, to allow such a course would render inoperative the provision in cl 87(4) (requiring, “so far as practicable”, further evidence to be “given by pre-recording”). The dismissal of the notice of motion constituted a formal order refusing leave under cl 87(3)(b) and “amounted to a command that something … not [be] done.” While the decision did not rule out all of the evidence in the case of one of the parties (contraR v Bozatsis and Spanakakis (1997) 97 A Crim R 296), it eliminated the capacity of (both) parties to obtain evidence on a critical issue in the trial.

96. The refusal of leave was an interlocutory judgment or order and this Court has jurisdiction under s 5F to entertain the application for leave to appeal.

Extension of time

97. The applicant requires an extension of time. The applicant was required to file its appeal within 14 days of the judgment or order that it was appealing: Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 3.5(4). That judgment was delivered by Traill DCJ on 8 February 2023. The notice of appeal was not filed until 8 March 2023.

98. However, the evidence tendered on appeal establishes that the written version of the judgment was not made available to the applicant’s lawyers until 22 February 2023. By that time, Ms Avenell SC of the Public Defenders Chambers had been briefed. Her submissions were finalised on 1 March 2023 and Ms Fard attempted to file the application along with the submissions on 2 March 2023. However, the filing was rejected due to some technical issue. The notice of appeal was filed along with Ms Avenell’s submissions six days later (including a weekend).

99. The respondent did not oppose an extension of time in which to appeal and such an extension should be granted.

Matters raised by the applicant in the electronically recorded interview

100. To understand the basis upon which the applicant sought leave under cl 87, it is necessary to consider relevant parts of his ERISP and the cross-examination undertaken by his then counsel at the pre-recorded evidence hearing.

101. At the very outset of the interview with police, the applicant raised the issue of MD’s influence over the children and alleged that she had previously encouraged them to do sexualised things, calculated to influence the family law proceedings and deny the applicant access to his children:

“DETECTIVE SENIOR CONSTABLE JONES

…

Q51    So it's in relation to your daughter, your daughter [FJJ], is it?

A    Let me just, let me, O.K., let me explain. We’re in court right now, there's a court proceeding in Parramatta.

Q52    O.K.

A    It's been over five years now, I can say. Three to five years. This is not the first time this lady has done, has recorded the kids, ah, record while I'm ah, on kid's phone and record them, ask them to rip off their clothes like she can evidence to present in court. We have had a, ICL, who is Mark McDonald.

Q53    What's an ICL?

A    ICL, ah, child inclusive lawyer.

Q54    Yep.

A    O.K. We have a, we’ve been in, this matter is in front of Judge Myers.

Q55    O.K.

A    This is not the first she's done this. She - - -

Q56    So this, this in general though, what we're here to talk about today is not - - -

A    It, it, it, it's a - - -

Q57    - - - actually in relation to your family law court matter.”

102. As can be seen, the investigating police sought to focus the applicant’s attention on the matter subject to the investigation. However, the applicant raised the issue again later in the interview, and the detail of what the applicant was saying became clearer:

“Q185 So she stayed with you?

A    Since 2006.

Q186    Yep, And so, um - - -

A    She was 2.

Q187    Yep. And so, ah, when, ah, when [FJJ] and your son [MLJ] would

come over - - -

A    Yeah. Yeah.

Q188    - - - who would be at home?

A    When, when [another child] is there this weekend all the time, I went to my girlfriend even on ah, two days ago to help, ah, in Liverpool to, a Aldi there's a camera there if I'm lying I mean, I don't know this. Oh, my goodness.

Q189   O.K. So - - -

A   Yeah.

Q190   [13.29] Let's go back to - - -

A   I'm .....

Q191   - - - on Wednesday, on Wednesday - - -

A   Yeah.

Q192   - - - um, [FJJ] told me that on Wednesday - - -

A   Let me tell you what happened.

Q193   - - - when you, just - - -

A   Let me - - -

Q194   O.K.

A   Let me tell you the fact. I was having a shower.

Q195   Yep.

A   Ah, this, on the, was this on Saturday? I was having a shower. She does that all the time. And once, ah, once I pop out of the shower, she has a video call on my daughter. And I said, ‘[MLJ], what's going on?’ he said, ‘My Mum’, I said, ‘Why video? Why?’ She said, ‘Oh, Daddy, it’s just a video.’ I said, ‘[FJJ], can you stop that video.’ She does that before to have evidence to wipe me off on the kids, she and her lawyer. And now the court, court said no. Even they stop the orders at that time for three times when I used to, they come and sleep with me two days. Now, she's doing the same thing again. And because, the reason why I let her talk to my son in my son's phone, because Bernadette said, according to the file thing and the court, ah, she said, ah, ‘Mr [PJ] doesn't allow me to talk to the kids.’ But in our report, they said, you can text me, or if you can't text, send audio to your, on your own both of you.”

103. He returned to the issue once more:

“Q284    Why, why can't they do a video call?

A    Why, video call - - -

Q285    Why?

A    Why can't she, why, why, why do you want to know? Why do you want to see? What do you want to see? Because she's trying to be intrusive to get, the last time during the proceeding, she told, the phone was, I was in the garage with [another child] and then she called. She asked [MLJ] to strip [FJJ] naked. Because we have a hearing that was on the 19th. And then I was in the garage, the call become too long. And I rush I said, ‘Let me go in the room.’ The second room, I didn't want to hear what they're talking because we’re, we're separated. So I brought, I left [the other child] and then [MLJ] was on the phone, stripping the girl naked so that she can get evidence. That's the video call she's making.”

104. While there appeared to be some language issues at play, the applicant was asserting that there was a previous occasion where MD had sought to influence the children to behave in a sexualised way and that she did so to “get evidence” for the Family Court hearing, so that it might result in the applicant being denied access to the children. He asserted, “[n]ow, she’s doing the same thing again.”

105. The written submissions of Ms Orman-Hales, counsel who appeared on the notice of motion and who was (and is) expected to appear at the trial, explained in the District Court:

“… the previous allegation by the accused that the ex-wife has asked ‘MLJ’ to strip his sister naked and film it for the purpose of the Family Law litigation is information used as part of family law proceedings as part of an affidavit from the accused.”

106. It appears to be the case, and senior counsel confirmed at the hearing of the appeal, that the applicant had made the allegation of the mother influencing the children before he was arrested and interviewed in relation to the current allegations.

Matters put and not put in the pre-recorded cross-examination

107. As I have said, Ms Orman-Hales did not appear at the pre-recorded evidence hearing. Counsel who did appear did not ask either of the children about the issues raised in the applicant’s ERISP. It was not suggested that the mother may have influenced the children to make a false allegation. Nor was either FJJ or MLJ asked about the previous (alleged) occasion when the mother asked MLJ to “strip” FJJ so she could record it visually in the course of a video call.

108. Counsel did raise an issue about whether MLJ may have influenced FJJ in making the complaint. For example, it was established that MLJ taught FJJ the term “tundu” which was the word she used in the complaint. It was also confirmed that MLJ was present when the complaint was made to the mother, although that was a matter that was already clear from the JIRT interview. Finally, after some considerable difficulty in formulating an appropriate question, FJJ was asked if MLJ helped her make up a story about the applicant touching her “atundu”:

“[DEFENCE COUNSEL]

Q. When you told your mummy that daddy had touched your tundu, was that true or untrue or don't you know or don't you remember?

A. True.

Q. When you told your mummy that daddy touched your tundu, was [MLJ] there?

A. Yes.

CROWN PROSECUTOR: Your Honour, could we--

HER HONOUR: We're just going to turn you off, you have a little break and then we'll come back to you, all right?

CLOSED-CIRCUIT TELEVISION DEACTIVATED

Yes?

CROWN PROSECUTOR: Sorry I just need to raise in relation to that question, she does tell her mum and it's fairly clear that the boy is present and it's happened a number of times, so that question if it needs to be linked to a particular period in my submission needs to be asked again, when you told your daddy was [MLJ] present when - it needs to be more specific, there have been a couple of questions like that when [MLJ] has been present but he was also not present and I imagine that maybe we're talking about the point when the first complaint was made where he was not present. I'm not sure, I don't know.

[COUNSEL]: I read his ERlSP, his JIRT and he says he was there when [FJJ] told her mother, he heard her telling her, so I don't understand what the problem is.

HER HONOUR: Perhaps you could just fix it up in re-examination but I just want to clarify that the brother is the complaint witness in the first complaint, so just your questions in relation to whether or not he told her the complainant to tell her mum, is - are you going to then be making a submission to the jury that he put her up to it.

[COUNSEL]: Yes.

HER HONOUR: Because she told him first and then he's like you've got to tell mum, it's not like are you going to say he made it up and then got him to tell mum, because those questions are too confusing for that, you can't make a submission to the jury because he's, he was the first complaint.

[COUNSEL]: Well.

HER HONOUR: You have to go further if that's the submission you want.

[COUNSEL]: I'm going to be putting it to him that he in fact came up with the idea and he got his sister to make the complaint.

HER HONOUR: Yes, then you have to put to her that it can't be just left as your brother told you to tell your mum because she told him first and he could have easily said, you've got to tell your mum, so you can't, you've got to do that step further that she - it wasn't true, that she didn't, do you know what I mean, otherwise you can't, you don't have that submission.

[COUNSEL]: Well, I can put it to her that--

HER HONOUR: You've put to her that her brother told her to tell to her mum. Fine. That's fine. But that's consistent with complaint, and you really just have to clarify that it didn't happen, and he just told you to make that up.

[COUNSEL]: I'll put it to her that--

HER HONOUR: You've already put to her, I think, it didn't happen, and you put to her that he told her to tell her mum, but that's still consistent with the Crown case.

[COUNSEL]: I put it to her that the words, ‘Atundu’, was from the brother, and that he explained to her about rude parts.

HER HONOUR: Sure, but he could've done that at any time. Big brothers always tell little sisters words they don't know. You've got to marry it to the allegation.

[COUNSEL]: Okay, all right. I will say to her, ‘Did your brother help you make up a story about your dad?’ I think that's fair, isn't it?

CROWN PROSECUTOR: No. In my submission, that would not be fair. What is the story? It's too convoluted for this child. It would have to be quite direct, in my submission. ‘Daddy never touched your atundu. True or not true?’ In my submission, the sentences need to be that short.

HER HONOUR: Yeah, it's true. Do you want a bit of time to speak to the intermediary, and maybe she can come to court, and we'll have a break, and then you can just formulate?

[COUNSEL]: Sure.

HER HONOUR: Because you just need that extra very basic step. I thought that's what you might be wanting to put to the jury, but you just need - but she'll be able to help. It's just got to be very short, one or two questions, because you're going to put to the brother that he made it up and told her what to say.

[COUNSEL]: Yes.

HER HONOUR: But you haven't got that with her yet.

[COUNSEL]: If I can have a chat with the intermediary, that would be good.

HER HONOUR: Why don't we have a bit of a lunch break. We don't want to lose her too much.

[COUNSEL]: I'm sure she's probably hungry by now.

HER HONOUR: Yeah, we can definitely give her lunch and do all that, but I just know that they have very short attention spans. Why don't we have a lunch break? You can speak to the intermediary. We can get her to come down. I'll just cut lunch down to 20 to or quarter to two; is that all right?

CROWN PROSECUTOR: Quarter to, that's fine.

[COUNSEL]: Quarter to.

HER HONOUR: Quarter to two. We'll just have a shorter lunch break. After lunch, you just lose every kid. Quarter to two, and that should be enough. Just let me know if you do need more time, and we’II just let the intermediary know to meet you here on this level.

[COUNSEL]: Yes, when would she like to do that?

HER HONOUR: She can probably do that now. Yeah, we'll just get her to meet you now.

[COUNSEL]: That would be great. Okay.

LUNCHEON ADJOURNMENT

HER HONOUR: Are we ready for her now?

[COUNSEL]: We are. Thank you for giving me the opportunity to speak to [the witness intermediary]. She has assisted in me formulating a question she's happy with, and I will now ask it.

HER HONOUR: Thank you.

[COUNSEL]: I might say, your Honour, after over 20 years of cross-examining, I have been defeated by a five year old.

CLOSED-CIRCUIT TELEVISION ACTIVATED

HER HONOUR

Q. [FJJ], can you see and hear me again?

A. Yes.

HER HONOUR: Good. There's some more questions for you. I just want to remind you that it's important to tell the truth and only talk about things that really happened. If you don't know the answer, it's okay to say, ‘I don't know’, and if you can't remember, it's okay to say, ’I can't remember’. Okay, and you can have a break any time you like.

[COUNSEL]

Q. Hello [FJJ], it's me again. Just one more question. Did [MLJ] help you make up a story about daddy touching your atundu?

A. No.

NO RE-EXAMINATION

109. The difficulties exposed in the passage of transcript reproduced above was far from isolated. Counsel conducting examinations of children in cases such as these face significant challenges in balancing the interests of a fair trial against the need to ensure the child is treated appropriately and given the opportunity to present their evidence without confusion or trauma.

110. FJJ was also asked if she was lying or telling the truth about the allegation, and she said she was telling the truth. This passage is set out by Basten AJA at [9].

111. Similar questions were directed to MLJ but, again, there was no questioning about whether MD may have influenced the children in making the allegations or whether the earlier (“stripping”) incident had occurred. Basten AJA has set out the salient features of the examination of MLJ at [12].

112. These were significant omissions in the cross-examination of the central witnesses. There is no evidence as to whether the omissions were deliberate or whether counsel simply erred in failing to address those propositions. It is difficult to imagine that it was deliberate, let alone a sound forensic decision, in light of the prominence of the matter in the applicant’s recorded interview and the uncontested fact that the allegations arose in the midst of a hotly contested family law proceeding. Basten AJA is correct to say at [51] that neither the trial Judge nor this Court should speculate as to reason counsel failed to address these matters but, with genuine respect, his Honour was wrong to suggest (or “tentatively [infer]”) that “fresh counsel coming into the matter took a different view of how the matter might best be defended” and the general rule that a litigant is bound by their barrister’s conduct was such as to deny the application under cl 87 its genuine force.

The application to recall the witnesses

113. Basten AJA has summarised the reasons of the trial Judge and I will not repeat his Honour’s analysis. However, it is also appropriate to consider the submissions made by the Prosecutor at first instance. As I have said, it was entirely open to the respondent to take a different approach on the appeal and the submissions made by Ms Kumar were cogent and persuasive and gave the Court the opportunity to hear from a “contradictor”. However, the submissions made by the Prosecutor at trial were persuasive albeit there may have been an undue emphasis on the “rule in Browne v Dunn”. In written submissions, the Prosecutor submitted:

“16. At no time was it suggested to [MLJ] that his mother had told him to tell police (and presumably others) that the complainant had told him that the accused had touched her on the tundu. In fact the suggestion to [MLJ] that it was he who had made up the allegation (with his sister) is completely at odds with the suggestion that his mother was responsible for concocting the allegation.

The rule in Browne v Dunn

17. In ThomasHofer v The Queen [2021) HCA 36, Kiefel CJ, Keane and Gleeson JJ said (in a joint judgment):

[26]    The rule requires that where it is intended that the evidence of a witness on a particular matter should not be accepted, that which is to be relied upon to impugn the witness’s testimony should be put to the witness by the cross-examiner for his or her comment or explanation.

[27]    The rule was stated in Browne v Dunn, where the issue was whether a document was genuine or a sham. A number of persons who had signed the document were called to give evidence at trial, but it was not suggested to them in cross-examination that the document was other than genuine. The House of Lords held that those witnesses should have been given the opportunity to respond to any basis for suggesting to the contrary. The rule was described not only as one of professional practice but as essential to fairness. It may be added that adherence to the rule may also be necessary to permit an assessment on the part of the tribunal of fact of differences or inconsistencies in the accounts given and of the credit of witnesses where that is an issue.

[28]    Browne v Dunn was a civil proceeding, which is adversarial in nature. So too is a criminal proceeding. The rule may be regarded as both appropriate to and an important aspect of the adversarial system of justice. There would seem to be no reason in principle why the requirements of the rule should not be followed in criminal trials. As a general rule, defence counsel should put to witnesses for the Crown for comment any matter of significance which is inconsistent with or contradicts the witness's account and which will be relied upon by the defence. In MWJ v The Queen, it was noted that in many jurisdictions the rule has been held to apply in the administration of criminal justice.

Difficulties with assessment of differences or inconsistencies in accounts given and credit of central Crown witnesses

18. There can be no argument that in the present case there has been a fundamental failure to comply with this rule. At no time was it suggested to the complainant or [MLJ] that their mother told them to lie about what they say their father did.

19. As a result, it will be impossible to permit an assessment on the part of the jury of differences or inconsistencies in the accounts given and of the credit of both the complainant and [MLJ] on that issue.

Difficulties with summing-up

20. lf the defence case directly asserts a motive to lie on the part of a central Crown witness, the summing-up should contain clear directions on the onus of proof, including a direction that the accused bears no onus to prove a motive to lie and the rejection of the motive asserted does not necessarily just a conclusion that the evidence of the witness is truthful: Doe v R [2008] NSWCCA 203 at [58]; Jovanovic v R (1997) 42 NSWLR 520 at 521-522 and 535.

21. Such a direction would require the trial judge to remind the jury of the asserted motive to lie in the case of each central Crown witness.

22. In the present case, this will be extremely difficult, if not impossible, given the asserted motive to lie relied upon by the accused was never put to each of the central Crown witnesses. In fact, to complicate matters further, a different motive to lie was asserted at the pre-recorded evidence hearings.”

[Emphasis omitted.]

114. During what reads in the transcript as a tense exchange, the Prosecutor maintained his position. For example:

“HER HONOUR: There's been a non-compliance with the rule in Browne v Dunn because it wasn't put, but it's not fundamental, because it's in fairness to the children. How is the Crown disadvantaged?

ROBINSON: So, what your Honour just spoke about in terms of situations, and I'm sure there are many, where children are so young or, for whatever reason, the rule in Browne v Dunn is, by agreement, not complied with. That is not the case here and, even though I wasn't part of the pre-record, I've watched the recordings of the pre-recorded evidence several times and I don't expect your Honour to recall this because your Honour does so many of these pre-records--

HER HONOUR: I recall it.

ROBINSON: But, your Honour, the--

HER HONOUR: And I've read the transcript.

ROBINSON: The eight year old, [MLJ], is an incredibly intelligent and articulate boy who had no difficulty whatsoever understanding those Browne v Dunn questions when they were put to him in the right format. No problem whatsoever. So that's a very different situation to what we're talking about here. Can I start by saying this?

HER HONOUR: Yes.

ROBINSON: That in terms of the record of interview of the accused, if the children are not recalled - and I've made this clear to my learned friend at a very early stage - I will be seeking exclusion, at the very least, of the portion where the accused talks about this earlier incident where he claims that he walked in on a video call between his ex-partner and his son where there was some discussion about removing the clothing of the complainant. Can I just add this, and I'm not sure whether this takes the matter any further, but on my reading of what is said in the record of interview, there is no suggestion that [MLJ] was taking a video of his sister, it's referring to a video call, in other words, something like FaceTime or to that effect where the ex-partner is said to have been on a video call with [MLJ] when there is talk about stripping his sister naked. So, I'm not sure there ever was a video, but that's perhaps by the by.

The Crown will be seeking exclusion of that evidence on a number of bases, primarily because neither children were ever asked about that, in particular, [MLJ], and perhaps leave to one side the complainant for the moment because of her age, especially at the time that this is alleged to have occurred, but certainly that would need to be put to MLJ as to whether there was ever such an occasion because it's been made clear to me by my learned friend that that part of the record of interview will have prominence in the trial. They will be essentially wanting to go to the jury with a ‘This is not the first time that the ex-partner of the accused has tried to manipulate or manufacture evidence in an attempt to set up the accused’ and that is a matter of great significance in a trial like this where the defence case at trial will be that that's indeed what happened on this occasion.

…

ROBINSON: I don't disagree with that and I said that earlier, that that would be a topic that of course I would cover with the mother in any evidentiary conference before I called her, yes, indeed. I just simply reiterate that her credibility will very much be in issue in this trial and I don't know how the evidence will fall at this stage in terms of when she's cross-examined, and there may be documents that ultimately are produced I don't have possession of or the Crown isn't in possession. That is why I'll be seeking to exclude that part of the evidence if in fact [MLJ] is not recalled on that point.

I'm not going to go through them in great detail, but the other reasons that I've set out primarily are contained on pp 6 and 7. I won't go through them again, your Honour, but--

HER HONOUR: Yes, I've got - and your summary.

ROBINSON: Yes, thank you. One of the things that the High Court in Hofer spoke about was the inability of a tribunal of fact, in this case the jury, to be able to make an assessment of the children's responses, if you like, to this motive to lie that's put to them that their mother asked them, told them to tell lies to the police and other people essentially to make up this story that their father had committed these offences. There is a very real risk, in my respectful submission, that a trial judge would prevent the accused from relying on a motive to lie that the mother was behind this because it was not put to the children. That's not just my – so your Honour's aware, I've spoken to three Crown Prosecutors in the Court of Criminal Appeal unit, two of which are Deputy Senior Crown Prosecutors, who have raised - again, it's just their opinion - that there is a real risk that a trial judge would do that and that would potentially - potentially, I say - create an appeal point, if there was a conviction, that essentially the accused was prevented from giving evidence of that motive to lie and his counsel prevented from going to the jury with that motive to lie, and they would be restricted to the motive to lie that was put to the children.

HER HONOUR: ln my view, that would result in an unfairness to the accused, and the trial judge's primary - which I am at the moment, the trial judge in this -obligation is to ensure a fair trial to all parties. But a fair trial is not a perfect trial.

ROBINSON: No, of course, it's not.”

The arguments on appeal

115. It is unnecessary to restate the arguments of each side on the hearing of the appeal. However, a couple of things should be noted.

116. In this Court, the applicant placed some reliance on the decision of WX v R (2020) 102 NSWLR 467; [2020] NSWCCA 142 (“WX v R”). The situations are somewhat analogous, but the terms of the legislation are different, and the purpose is also different. It might be thought that the “starting point” – that witnesses are not generally to be recalled – is stronger under the cl 87. However, the rule or starting point is not absolute and the inclusion of a general exception arising when re-calling witnesses being “otherwise in the interests of justice”, is common to both pieces of legislation. As in the legislation considered in WX v R at [42]:

“… the concept of the ‘interests of justice’ clearly embraces (and requires) a consideration of the impact on the fairness of the accused’s forthcoming trial if the complainant [or witness] does not give further evidence and the desirability of not occasioning further trauma to the complainant if they do.”

117. It should also be noted that counsel for the respondent in this Court said, contrary to the submissions of the Prosecutor in the District Court, that no objection would be taken to the applicant’s assertions in the ERISP or, if it is adduced by agreement, anything he said that was recorded in the body worn video. In the same vein, it was submitted that the prosecution “can (and will) make no complaint about the lack of cross examination to seek a remedy for the consequences of the rule [in Browne v Dunn]”. The respondent submitted, and I agree, that the reliance (by both parties below) on the rule in Browne v Dunn (1893) 6 R 67 is misconceived.

Resolution

118. I agree with Basten AJA at [54] that one of the trial Judge’s proposed solutions – which was to adopt the approach taken in the case of Oldfield v The Queen (2006) 163 A Crim R 242; [2006] NSWCCA 219 (“Oldfield”)– could not cure the problem. The situation in Oldfield was quite different. In that case, the Prosecutor did take advantage of defence counsel’s failure to put certain matters. It is true, as the trial Judge in this case said, that defence counsel was permitted to make a statement to the jury to the effect that they had made a mistake and neglected to put relevant propositions to the complainant. Counsel also said to the jury that had the question been put, the complainant “would have” denied the proposition. The trial Judge in this case suggested the following solution:

“There are a number of cases that were not in the CSOEP where this has occurred. I refer to the decision in Oldfield v R [2006] NSWCCA 219; 163 A Crim R 242. In that particular case, with the Crown's agreement, the defence counsel informed the jury that it was an oversight on his part not to have put a matter and rather than having the complainant recalled with all the trauma that is associated with that occurring, he conceded that the complainant may have denied the proposition if put to her. This in my view is a fair way of dealing with it, rather than re-traumatising two small children.”

119. I accept the applicant’s submission that this solution was “no[t] desirable” or “possible” for the applicant to take. It would be unfair to require him to make such a concession. It is simply not known what the witnesses would say if asked questions about the role their mother played or whether there was a previous incident as described by the applicant when interviewed by police. To suggest the witness “may” or “would” have denied those propositions was purely speculative.

120. Another solution contemplated by the trial Judge, which arose on the submissions of the parties in the District Court, was based on the fundamental proposition that an accused person bears no onus to establish a motive in a complainant to lie.

121. In the course of the argument, and following the case being raised in the Prosecutor’s written submissions, the primary Judge made a number of references to the case of R v Jovanovic (1997) 42 NSWLR 520 (“Jovanovic”). Her Honour contemplated that any prejudice could be cured by a direction that there was no onus on an accused person to establish that an important witness – or a complainant – had a motive to fabricate their evidence (or, relevantly here, that they were influenced by another person in giving evidence against the accused). Jovanovic was a case about directions. It stressed the need for proper directions calculated to ensure that the jury understands that a complainant’s “account gains no legitimate credibility from the absence of evidence of motive”: Palmer v The Queen (1998) 193 CLR 1; [1998] HCA 2 at [9] (“Palmer”) (Brennan CJ, Gaudron and Gummow JJ).

122. The kind of direction contemplated by Sperling J (in dissent) can be seen in Jovanovic at 542:

“Whilst it may not be necessary to give a particular direction in every case involving complainant evidence, the following would, in my view, be a suitable direction:

‘It would be natural to ask yourselves why the complainant, X, would make up such serious allegations against the accused. I give you the following directions about that question:

1. As you have been told, the essential elements of the Crown case must be proved beyond reasonable doubt or the accused must be acquitted. If the case turns on the evidence of X, you must be satisfied beyond reasonable doubt that X has told the truth.

2. As you have been told, it is your duty to decide whether you accept the evidence of a witness in whole or in part. X is no exception to that.

3. It would be wrong to conclude that X is telling the truth because there is no apparent reason, in your view, for X to lie. People lie for all sorts of reasons. Sometimes it is apparent. Sometimes it is not. Sometimes the reason is discovered. Sometimes it is not. You cannot be satisfied that X is telling the truth merely because there is no apparent reason for X to have made up these allegations. There might be a reason for X to be untruthful that nobody knows about.’”

123. Sperling J was in the minority in the outcome of Jovanovic. However, the majority judgments did not gainsay the appropriateness of such a direction or the legal and forensic reasons it will usually be necessary. Further, and importantly in the context of the issue faced by Traill DCJ in this case, the judgments in Jovanovic emphasised the importance of evidence led to establish a motive in a complainant to give evidence implicating the accused. For example, Cole JA said at 532:

“I respectfully agree with Hunt CJ at CL when he wrote (R v Uhrig (at 16-17)):

‘What this Court said in R v F and in R v E should not be interpreted as excluding arguments being put to the jury, by either counsel or the judge, relating to the validity of the motive to lie which has been asserted in relation to a witness in the particular case. That is so notwithstanding that there is no requirement for the accused to prove such a motive, although in many such cases where the evidence of that witness is vital to the Crown case it would be appropriate for the judge to direct the jury that, even if they reject the motive to lie put forward by the accused, that does not mean that the witness is necessarily telling the truth, and to emphasize that the Crown must still satisfy them that the witness is telling the truth. I believe that it is necessary for such a distinction to be stated expressly, in order to avoid skilful advocates attempting to persuade trial judges that a necessary consequence of this Court's decision in those two cases is that arguments relating to a motive to lie are excluded in every case. That is not a necessity consequence at all.’

I respectfully agree with Hunt CJ at CL that ‘a motive to lie where it does exist is a very relevant factor in judging a witness' credit.’ … That makes a consideration of that matter important.”

See also Priestley JA at 521-523.

124. By focusing on the necessity or appropriateness of a “Jovanovic direction” Traill DCJ was side-tracked from the issue upon which the submissions of both counsels were focused, namely the importance of the evidence of a possible motive to fabricate the evidence and the possible influence of the mother on the children. This was raised squarely by the applicant in his interactions with the police and in the Family Court proceedings. He sought to rely on that evidence at the trial. Further, the Prosecutor sought to rebut it by having the witnesses address the issue.

125. The preoccupation with the “Jovanovic warning” also permeated the reasons for judgment. Her Honour mentioned it twice in her judgment:

“The second matter the Crown submits is that there would be difficulty for the trial judge to explain to the jury what the asserted motive to lie is and what is relied upon by the accused at trial. In my view, the trial judge hearing the balance of the trial will have no difficulty giving the Jovanovic warning to the jury. The jury will be clearly told that the accused does not have to prove any motive and a Jovanovic warning can be given in respect of two possible motives: that it was either the mother or the older brother that asked the complainant to lie. There would be no difficulty for any trial judge giving such a direction. I do not see how that could hamper any judge hearing the balance of the trial, I am not persuaded by this submission.

…

The defence case is both possibly the mother put them up to make these allegations, or alternatively the brother. As I have said, the defence do not have to prove a motive to lie. I do not see any difficulty in a trial judge giving the Jovanovic warning in the usual terms. The motive does not need to be put to a witness in order to give the Jovanovic warning, as it was raised in the ERISP.”

126. In Palmer Brennan CJ, Gaudron and Gummow JJ emphasised (at 6-7 [6]) the potential importance of evidence going to the motive of a prosecutor or complainant to lie:

“The question which had been put to L in cross-examination attributed to her a motive to lie, namely, ‘pay back’ or revenge. Cross-examination is permissible and evidence is admissible to establish that a complainant has a motive to make and persist in false allegations. Thus it is said in Wills on Circumstantial Evidence (20):

‘It is frequently therefore of the highest importance to investigate the motives of the complainant, and to ascertain whether they are such as may have led to the institution of a false charge. The just course of inquiry in such circumstances was thus laid down by Mr Justice Cresswell. “The jury,” he said, “had nothing to do with the prosecutor's motives except so far as if it should appear that there was any motive for the prosecution of an unworthy character made out, it would then be their duty to watch such a case much more narrowly than one in which no such motive appeared. Even in that case, however, if the evidence satisfied them of the truth of the charge, they had no right to look at the motives that had induced the prosecutor to prefer it, but were bound to say that the accused person was guilty.’

In R v Uhrig (22) Hunt CJ at CL said:

‘A motive to lie where it does exist is a very relevant factor in judging a witness's credit. It will almost inevitably have substantial probative value in relation to the issue of credit, and so will pass the test posed by s 103 of the Evidence Act 1995 for admissibility. If the alleged motive is denied by the witness, other evidence may be led to rebut that denial in accordance with s 106.’"

127. This was not a case where the applicant sought to simply rely on the onus and standard of proof to contend that he was not required to establish a motive in the complainant and her brother to lie. He sought to run a positive case on that issue. Not only did he seek to put the suggestion that the mother influenced the children, but he also sought to raise an instance of similar conduct in the past. It is no answer, as the trial Judge suggested, that counsel could put the suggested motive to his ex-wife. Nor can it be assumed that the children will deny the general allegation or not accept that the earlier incident occurred.

128. Further, as the Prosecutor attempted to explain to the trial Judge, the prosecution sought to explore the issue with the children. There was potential unfairness to the Prosecutor if it was unable to obtain, and rely on, the children’s denials, if that was their response to the suggestion. It is accepted the respondent now takes a different approach, but the submissions made at first instance were cogent and persuasive. Reliance was also placed on the remarks of the High Court in Hofer v The Queen (2021) 95 ALJR 937; [2021] HCA 36 (“Hofer”). While directions may prevent a jury from using counsel’s failure to comply with the rule in Browne v Dunn, Kiefel CJ and Keane and Gleeson JJ in Hofer stated at [27]:

“… adherence to the rule may also be necessary to permit an assessment on the part of the tribunal of fact of differences or inconsistencies in the accounts given and of the credit of witnesses where that is an issue”.

129. I am satisfied that the applicant has established that her Honour failed to consider a relevant consideration (the importance of the evidence to the applicant’s case and the expressed desire of the Prosecutor to rebut that evidence) and did so by reference to an extraneous consideration (the availability of a Jovanovic direction irrespective of whether the motive was put to the complainant and the witness). This constituted the kind of error described in House v The King (1936) 55 CLR 499; [1936] HCA 40.

130. None of the foregoing should be seen to derogate from the important observations of both the trial Judge and Basten AJA concerning the purpose of the pilot scheme in protecting children from being required to give evidence more than once. However, cl 87 provides two exceptions. The first did not apply – the matter not raised in cross-examination must have been known to counsel who conducted the examination. However, reading cl 87 holistically, sub-cl 87(3)(b) contemplates situations where the “interests of justice” will require leave to be granted in spite of the matters under debate being known to counsel who conducted the pre-recorded examination. The section serves two purposes. One is to protect child witnesses from trauma. The other is to preserve the right of an accused person to a fair trial. So much is clear from the generality of the provision and confirmed by a single part of the second reading speech when the Attorney General said, “the bill contains important safeguards for the rights of an accused to a fair trial”. ^[24] While the Attorney continued to speak specifically of disclosure, it is clear that the new procedures are not calculated to deny the most fundamental rights of a citizen to a fair trial.

     24. New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 22 October 2015, at 4958.

131. I should also indicate that I disagree with the suggestion of Basten AJA at [57] that the applicant, at any stage, contended there should be an “unrestricted right to cross-examine the children further”. The orders sought were cast in general terms, but the arguments were focused and restricted. The application in the District Court and the submissions made on appeal were clearly and always directed towards, and based on, the limited matters raised by the applicant in his ERISP. If the children are recalled to give evidence, there is no doubt that responsible counsel, and the trial Judge, would limit the examination accordingly. The orders I propose reflect this.

Finality and miscarriage

132. Since circulating a draft of this judgment, I have read the judgments of Walton J concurring with the orders proposed by Basten AJA. The publication of this judgment disposes of the complaints made of Judge Traill’s decision of 8 February 2023. However, as I understand it, the judgment will not prevent the applicant, in the event that he is found guilty, raising similar factual matters to contend that a miscarriage of justice occurred at his trial. Much will turn on the approach taken by the Prosecutor at that trial (noting the position taken in this Court) and the content of any directions given by the trial judge to overcome any potential prejudice. Nor does this decision prevent a further application being made for the witnesses to be recalled, although I acknowledge, given the force of my colleagues’ judgments and what I have said in dissent, it is difficult to envisage circumstances where such an application may arise.

Orders

133. I would make the following orders:

1. Extend time in which to appeal.

2. Grant leave to appeal.

3. Allow the appeal.

4. Quash the order made in the District Court and in lieu thereof grant leave under Sch 2 cl 87 of the Criminal Procedure Act 1986 (NSW) for the witnesses known as FJJ and MLJ to give further evidence, such evidence is to be limited to the matters raised by the applicant in his recorded interview with police at pp 99, 51-57, 185-195 and 284-286.

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Endnotes

Amendments

02 November 2023 - [4] - line 5 - change "nine" to "eight"

[8] - end of line 4 - replace "of" with "to the"

[9] - line 2 - replace "complaint's" with "complainant's"

[13] - line 3 - replace "of" with "to"

[46] - line 1 - replace "Civil" with "Criminal"; replace "of" with "to"

[47] - line 9 - replace "must reflect" with "is"

[51] - line 5 - replace "were" with "was"

[53] - line 6 - delete "suggests that"

[57] - line 3 - replace "by" with "be"

Decision last updated: 02 November 2023