Police v T, DCJ

Case •

[2016] SASC 173

•

11 November 2016

SUPREME COURT OF SOUTH AUSTRALIA

(Applications Under Various Acts or Rules: Case Stated)

Question of Law Reserved NO 1 OF 2016

POLICE v T, DCJ

[2016] SASC 173

Judgment of The Honourable Justice Bampton

11 November 2016

APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - OTHER MATTERS - CASE STATED AND RESERVATION OF QUESTION OF LAW

Reservation of two questions of law regarding the application of amendments to the Evidence Act 1929 (SA) – audio visual recording of child witness produced pursuant to s 34CA of the Evidence Act 1929 (SA) – section 34CA was repealed prior to the commencement of the trial – the audio visual recording was not admissible pursuant to the new s 13BA of the Evidence Act 1929 (SA) – Prosecution sought to tender audio visual recording pursuant to the transitional provision of the Statutes Amendment (Vulnerable Witnesses) Act 2015 (SA), as amended – whether the transitional provision applies the more restrictive regime for the admission of records of interview or preserves the admissibility of those records of interview obtained when s 34CA of the Evidence Act 1929 (SA) was in force.

Held:

The answers to questions of law reserved by the Magistrate are:

Question 1, “no”.

Question 2, “unnecessary to answer”.

Magistrates Court Act 1991 (SA) s 43(2)(b); Evidence Act 1929 (SA) s 12AB, s 13BA, s 34CA, s 34LA; Criminal Law Consolidation Act 1935 (SA) s 20; Statutes Amendment (Vulnerable Witnesses) Act 2015 (SA) s 7, s 10, s 15, s 16, Sch 1; Summary Offences Act 1953 (SA) s 74EA(2), s 74EB, s 74EC; Statutes Amendment (Attorney-General’s Portfolio) Act 2016 (SA) s 27; Children’s Protection Act 1993 (SA) s 19, referred to.
Re Macks; Ex parte Saint (2000) 204 CLR 158; R v Hughes (2000) 202 CLR 535, considered.

Question of Law Reserved NO 1 OF 2016
POLICE v T, DCJ
[2016] SASC 173

Case Stated: Questions of Law Reserved

  1. BAMPTON J:   A Magistrate has, pursuant to s 43(2)(b) of the Magistrates Court Act 1991 (SA), reserved two questions of law regarding the correctness of his application of the amendments to the Evidence Act 1929 (SA) (the Evidence Act) which came into effect on 1 July 2016.  The questions are:

    1.Was I correct in ruling that the interview of [the alleged victim] was inadmissible pursuant to s 13BA of the Evidence Act 1929, as amended?

    2.If yes, are there any other bases for admissibility of the interview that allow s 13BA of the Evidence Act 1929, as amended to be utilised in hearing evidence from the alleged victim?

    Background

  2. By Magistrates Court Information dated 22 April 2015, the respondent is charged with two counts of aggravated assault.

  3. The offending is alleged to have been committed between 4 July 2014 and 12 July 2014 against the respondent’s six year old stepson, contrary to s 20(3) of the Criminal Law Consolidation Act 1935 (SA) (the CLCA).

  4. The alleged victim was interviewed on 15 October 2014 by Child Protection Services and an audio visual record of interview was made (the record of interview).

  5. At a pre-trial conference on 14 October 2015, the matter was listed for trial and the informant made application to have the record of interview admitted into evidence pursuant to s 34CA of the Evidence Act.  The application was not ruled on during the pre-trial conference.

    Section 34CA of the Evidence Act repealed

  6. Prior to the trial of the matter, the Statutes Amendment (Vulnerable Witnesses) Act 2015 (SA) (the SAVWA) came into operation on 1 July 2016 and:

    ·repealed s 34CA of the Evidence Act;[1]

    ·inserted s 12AB, s 13BA and s 34LA into the Evidence Act;[2] and

    ·amended the Summary Offences Act 1953 (SA) (the Summary Offences Act) by the insertion of Division 3 of Part 17.[3]

    [1]    Statutes Amendment (Vulnerable Witnesses) Act 2015 (SA) s 15.

    [2]    Statutes Amendment (Vulnerable Witnesses) Act 2015 (SA) s 7, s 10 and s 16 respectively.

    [3]    Statutes Amendment (Vulnerable Witnesses) Act 2015 (SA) s 26.

  7. Schedule 1 to the SAVWA inserted the following transitional provision:

    (1) The amendments made by Part 3 of this Act to the Evidence Act 1929 are intended to apply in respect of—

    (a)     proceedings for a sexual offence commenced but not determined before the commencement of this clause; and

    (b)     proceedings for a sexual offence commenced after the commencement of this clause.

    (2) An order made by a court under the Evidence Act 1929 as in force immediately before the commencement of this clause will remain in force according to its terms.

  8. The Statutes Amendment (Attorney-General’s Portfolio) Act 2016 (SA), which came into operation on 1 July 2016, amended the transitional provision by deleting “sexual” wherever occurring, substituting subclause (2), and adding subclause (3) as set out below in the amended transitional provision (the transitional provision):[4]

    [4]    Statutes Amendment (Vulnerable Witnesses) Act 2015 (SA) Schedule 1 as amended by the Statutes Amendment (Attorney-General’s Portfolio) Act 2016 (SA) s 27.

    1—Transitional provision

    (1)The amendments made by Part 3 of this Act to the Evidence Act 1929 are intended to apply in respect of—

    (a)     proceedings for an offence commenced but not determined before the commencement of this clause; and

    (b)     proceedings for an offence commenced after the commencement of this clause.

    (2)An audio visual record of the statement of a witness to whom this subclause applies made to an investigating or other authority before the commencement of section 10 of this Act as part of a formal interview process in relation to the investigation of an alleged offence may, after the commencement of that section, be admitted under section 13BA of the Evidence Act 1929 as evidence in the trial of a charge of the offence as if the recording had been made pursuant to Division 3 of Part 17 of the Summary Offences Act 1953 in accordance with the requirements of that Division.

    Note—

    Section 10 of this Act inserts section 13BA into the Evidence Act 1929.

    (3)Subclause (2) applies—

    (a)     to a witness who is—

    (i)a child of or under the age of 14 years; or

    (ii)a person with a disability that adversely affects the person's capacity to give a coherent account of the person's experiences or to respond rationally to questions; and

    (b) despite section 34LA(2)(c) of the Evidence Act 1929.

    (Emphasis added)

  9. The Second Reading speech regarding the Statutes Amendment (Attorney-General’s Portfolio) Bill 2016 (SA) makes clear that the Bill provides for the continued admissibility of audio visual interviews conducted pursuant to s 34CA with vulnerable victims of all alleged offending including sexual offending:[5]

    The Bill clarifies the transitional arrangements for the commencement of the Statutes Amendment (Vulnerable Witnesses) Act 2015 in respect of all offences, and it especially clearly provides for the continued admissibility and use of the audiovisual interviews conducted with vulnerable victims of sexual offences under the old section 34CA of the Evidence Act 1929 after the Statutes Amendment (Vulnerable Witnesses) Act 2015 comes into operation. The bill makes it clear that these interviews remain admissible after the Statutes Amendment (Vulnerable Witnesses) Act 2015 comes into operation and will be subject to the new statutory criteria, and admissibility will be at the discretion of the court.

    (Emphasis added)

    [5]    South Australia, Second Reading Speech, House of Assembly, 24 February 2016, p 4393 (The Hon JR Rau, Attorney-General).

    The Magistrate’s ruling on the SAVWA amendments

  10. As s 34CA of the Evidence Act had been repealed by the SAVWA, discussion took place concerning the admission of the alleged victim’s evidence at the commencement of the trial on 8 August 2016.

  11. The new regime prescribed by the SAVWA permits admission of audio visual records of interviews of vulnerable witnesses if the recording has been made pursuant to either s 12AB or Division 3 of Part 17 of the Summary Offences Act, subject to certain other conditions.

  12. Accordingly the informant proposed tendering the record of interview pursuant to s 13BA of the Evidence Act, which provides:

    (1)Subject to this section, the court may, in the trial of a charge of an offence order that the evidence of a witness be admitted in the form of an audio visual record.

    (2)An application for an order under subsection (1) must—

    (a)     be made in writing by the party wishing to have the audio visual record of the evidence admitted in the trial; and

    (b)     be filed in the court; and

    (c)     within 14 days of being filed in the court—be served on the other party to the proceedings (the respondent); and

    (d)     otherwise be made in accordance with the rules of court.

    (3)An audio visual record of the evidence of a witness may be admitted under this section if—

    (a)     the recording has been made pursuant to—

    (i)section 12AB; or

    (ii)Part 17 Division 3 of the Summary Offences Act 1953; and

    (b)     the court is satisfied as to the witness’s capacity to give sworn or unsworn evidence at the time the recording was made; and

    (c)     the court is satisfied that the respondent has been given a reasonable opportunity to view the recording; and

    (d)     during the course of the trial, the witness is available, if required, for further examination, cross-examination or re-examination.

    …

  13. The issue before the Magistrate was whether s 13BA(3)(a) of the Evidence Act had been enlivened. That is, whether the record of interview had been made pursuant to s 12AB of the Evidence Act or Division 3 of Part 17 of the Summary Offences Act.

  14. It was agreed between the parties that s 12AB of the Evidence Act had no application as it concerns pre-trial special hearings.  

  15. The difficulty confronting the Magistrate was that Division 3 of Part 17 of the Summary Offences Act relates only to the admissibility of evidence in relation to the investigation of a “serious offence against the person”. Section 74EC of the Summary Offences Act provides that, in proceedings for a charge of a “serious offence against the person”, evidence of an interview with a person to whom Division 3 of Part 17 applies is admissible where the conduct and recording of the interview complies with the requirements of the Division.

  16. Section 74EA(2) of the Summary Offences Act defines a “serious offence against the person” but does not include assaults contrary to s 20 of the CLCA.

  17. As the record of interview was made before the commencement of s 10 of the SAVWA which inserted s 13BA into the Evidence Act on 1 July 2016, the informant sought to rely on the transitional provision to admit the record of interview as if the recording had been made pursuant to Division 3 of Part 17 of the Summary Offences Act.   

  18. The Magistrate accepted that the transitional provision was “relevant and binding”, but determined that, because Division 3 of Part 17 of the Summary Offences Act did not apply to assaults, the transitional provision could not be used to admit the record of the interview.

    Analysis

  19. The repealed s 34CA of the Evidence Act provided that “a court may admit evidence of the nature and contents of a statement made outside the court by a protected witness from the person to whom the statement was made”. The section did not prescribe or restrict its application to specified alleged offending. Prior to the repeal of s 34CA on 1 July 2016, the Magistrate had the discretion to admit the alleged victim’s record of interview pursuant to s 34CA.

  20. Without reference to the transitional provision the record of interview would be inadmissible in a trial occurring after 1 July 2016. This is because Division 3 of Part 17 of the Summary Offences Act applies to the recording of interviews of vulnerable witnesses[6] being interviewed in relation to the investigation of a “serious offence against the person”.

    [6]    Including a child of or under the age of 14 years.

  21. Significantly, the transitional provision, unlike Division 3 of Part 17 of the Summary Offences Act, does not prescribe or restrict its application to specified alleged offences.

  22. Pursuant to subclause (3) of the transitional provision, subclause (2) of the transitional provision applies to the alleged victim in this matter because he is a child of or under the age of 14 years.

  23. Counsel for the informant contended that Parliament has, by the SAVWA, enacted a more restrictive regime for the admission of records of interview of vulnerable witnesses than was previously the case.

  24. It was submitted that it was necessary to enact a transitional provision to preserve the admissibility of a limited class of records of interview obtained prior to the commencement of the SAVWA that could not have been conducted according to the new regime and were obtained in circumstances where the public expectation was that they would be admissible in proceedings.  In other words, it was submitted the transitional provision serves the public policy in preserving that which was done in accordance with the applicable statutory regime at the time.

  25. Counsel for the respondent submitted that an interview made prior to the SAVWA coming into operation cannot be admitted pursuant to s 13BA as if the recording had been made pursuant to the Division 3 of Part 17 of the Summary Offences Act.  It was submitted that to do so would erroneously expand the categories of offences for which admission is allowed.

  26. As submitted by counsel for the informant, the operational part of the transitional provision is subclause (2). The effect of subclause (2) is that records of interview obtained before the commencement of the new regime are admissible under s 13BA, as if they had been made pursuant to the requirements of Division 3 of Part 17 of the Summary Offences Act.  Further, as set out above, the Second Reading speech makes clear such records of interview remain admissible “subject to the new statutory criteria” (which includes the transitional provision) and admissibility is “at the discretion of the court”.

  27. Adopting the methodology employed by counsel for the informant, it is useful to break down the terms of subclause (2) to understand how it renders the record of interview admissible:

    ·As an audio visual statement of a witness:

    -       to whom this subclause applies (see subclause (3)(a) – the record of the interview qualifies because the alleged victim is a child);

    - made to an investigating or other authority. The statement was made to Child Protection Services, which conducts investigations on behalf of the Chief Executive pursuant to s 19 of the Children’s Protection Act 1993 (SA). As submitted by counsel for the informant, on any view, the statement was made to an investigating authority within the meaning of this transitional provision;

    - made on 15 October 2014 before the commencement of s 10 of the SAVWA (i.e. before commencement of s 13BA of the Evidence Act, which was inserted by s 10 of the SAVWA, and commenced on 1 July 2016); and

    -       made as part of a formal interview process in relation to the investigation of an alleged offence;

    ·it may, after the commencement of that section (i.e. of s 10 of the SAVWA, inserting s 13BA of the Evidence Act);

    ·be admitted under s 13BA of the Evidence Act as evidence in the trial of a charge of the offence;

    ·as if the recording had been made pursuant to Division 3 of Part 17 of the Summary Offences Act, in accordance with the requirement of that Division (that is, as if the various prescriptions in s 74EB had been complied with in conducting the interview).

  28. The words “as if” in the subclause allow a record of interview to be deemed admissible despite not meeting the criteria prescribed by s 74EB of the Summary Offences Act.  The effect of the phrase “as if” was described by McHugh J in Re Macks; Ex parte Saint:[7]

    In R v Hughes,[8] this Court said that the use of the phrase “as if” was “a convenient device for reducing the verbiage of an enactment”.  But the expression always introduces a fiction or a hypothetical contrast.  It deems something to be what it is not or compares it with what it is not.

    [7] (2000) 204 CLR 158 at [115].

    [8] (2000) 202 CLR 535 at 551 [24].

    Conclusion

  29. Parliament enacted the transitional provision in order to preserve the admissibility of those records of interview obtained when s 34CA was in force and which would have been admissible under that section. Parliament has not limited the class of offences in the transitional provision to “serious offences against the person” as that class is now defined in Division 3 of Part 17 of the Summary Offences Act.

  30. The transitional provision preserves the admissibility of records of interview such as that of the alleged victim in this matter, by deeming the record of interview to have been conducted in accordance with the requirements of the s 74EB of the Summary Offences Act and to be admissible pursuant to s 13BA of the Evidence Act.

  31. Accordingly, the effect of the transitional provision in this case is to allow the admission of the record of interview of the alleged victim recorded prior to 1 July 2016 pursuant to s 13BA of the Evidence Act as a recording made pursuant to Division 3 of Part 17 of the Summary Offences Act.

  32. The answers to questions of law reserved by the Magistrate are:

    ·Question 1, “no”.

    ·Question 2, “unnecessary to answer”.


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