R v AF

[2015] NSWDC 189

District Court

New South Wales

Medium Neutral Citation:	R v AF [2015] NSWDC 189
Hearing dates:	18 August 2015
Date of orders:	18 August 2015
Decision date:	18 August 2015
Jurisdiction:	Criminal
Before:	Berman SC DCJ
Decision:	The Crown’s application to tender recorded evidence is granted.
Catchwords:	CRIMINAL LAW - Judgment - Unavailable witness - Tender of evidence given at special hearing - Hearsay evidence
Legislation Cited:	Criminal Procedure Act Mental Health (Forensic Procedures) Act Evidence Act section 65 Evidence Amendment Bill
Cases Cited:	Browne v Dunn (1893) 6 R 67
Texts Cited:	ALRC 102
Category:	Procedural and other rulings
Parties:	The Crown AF
Representation:	Counsel: Ms A Seeto – Crown Mr N Steel - Accused Solicitors: Director of Public Prosecutions Legal Aid Commission - Accused
File Number(s):	2007/15632
Publication restriction:	There is to be no publication of the name of the complainant or of any material which may tend to identify the complainant

Judgment

1. HIS HONOUR: Yesterday I delivered a judgment in which I ruled that s 306I Criminal Procedure Act did not allow the Crown to adduce evidence in the form of evidence earlier given at criminal proceedings in the following circumstances.

2. In 2007 the accused went to trial on a charge alleging that he had sexually assaulted a named complainant. The complainant gave some evidence, but before her evidence was completed, issues regarding the accused’s fitness to be tried arose. That trial was therefore aborted. A fitness hearing was held in which he was found unfit to be tried. A special hearing then took place. At that special hearing, the complainant gave evidence to completion. Her evidence was recorded by means of audio-visual recording and a transcript of that was prepared. The accused was found to have committed the offences and a limiting term was set.

3. Subsequently, as part of its regular review of the accused, the Mental Health Review Tribunal formed the opinion that AF had become fit to be tried. In accordance with the Mental Health (Forensic Procedures) Act, I conducted a short fitness hearing yesterday and determined that he was fit to be tried. The Crown then made application under s 306I that the recording of the complainant’s evidence at the special hearing be admitted as her evidence in the trial, which was then due to commence. Belatedly, after argument was almost completed, the Crown withdrew that application. For reasons which I indicated in a short judgment I delivered yesterday. I refused the Crown’s application. The matter was then adjourned to allow the Crown to speak to the complainant.

4. Upon resumption this morning the Crown made a further application. This was again that the evidence of the complainant at the special hearing be admitted in the trial. But instead of relying on s 306I of the Criminal Procedure Act, the Crown relies on s 65 of the Evidence Act. In particular, ss 65(2)(a) and (b) and 65(3).

5. Mr Steel makes a submission, that s 306I of the Criminal Procedure Act covers the field in respect of circumstances in which evidence at earlier proceedings is admissible. He suggests that the omission of references to special hearings in s 306I may be the deliberate intention of parliament. I do not consider that that is likely. If that were the case then s 65 would clearly be amended accordingly. Mr Steel says, that it is possible that parliament intended that evidence given at a special hearing could not be tendered at a later trial because of issues of unfairness to an accused. That submission should not be accepted, issues of unfairness are covered by general discretions in the Evidence Act.

6. In my view, there is nothing to suggest that parliament having spoken in s 306I means that the Crown cannot succeed in an application made under s 65 of the Evidence Act.

7. Turning now to s 65. Of course, the first thing that the Crown must satisfy me of in seeking to rely on that section is that the complainant is not “available”. That term is defined in the dictionary to the Evidence Act. The Crown relies on the relatively recent amendment which provides that a person is unavailable if, relevantly, the person is mentally unable to give the evidence and it is not reasonably practical to overcome that inability.

8. The Crown says that the complainant is mentally unable to give the evidence because of the distress and harm that requiring her to give evidence would cause. The Crown relies, in support of that assertion, on evidence given this morning by the officer-in-charge, Detective Sergeant David Shaw, and on a statement made by the complainant herself, that statement being made yesterday afternoon after my ruling on s 306I.

9. Before getting to that evidence, I need to examine precisely what parliament meant by a mental inability. Quite clearly, in one sense, the complainant is able to give evidence about the alleged offence. She is capable of speaking, she is capable of communicating. But equally as clearly, that is not the sort of inability which alone parliament intended to be caught by the definition of unavailable witness.

10. In the second reading speech concerning the Evidence Amendment Bill 2010, the Parliamentary Secretary speaking on behalf of the then attorney general said:

“The new subsection is intended to apply where a person is unable to give the evidence, not because the evidence is likely to be unreliable, but because giving the evidence would cause harm to the person, for example, where the person is unable due to major trauma or fear to give the evidence and/or where giving the evidence would have a significant adverse effect on the person’s physical or mental health.”

11. So parliament intended that a mental inability to give evidence could be demonstrated by evidence which established that giving evidence would cause harm to the person.

12. It is also instructive to consider the report of the joint law reform commissions of Australia, New South Wales and Victoria, which prompted that amendment. That report is to be found at ALRC102. It followed an issues paper, issues paper 28 and a discussion paper, ALRC DP 69.

13. In the issues paper, an amendment to the definition of unavailable witness was foreshadowed based on United Kingdom legislation which provided that hearsay evidence could be admitted where a person is “unfit to be a witness because of his bodily or mental condition”. For reasons given in ALRC102, the United Kingdom wording was not followed, the commissions determining that the formula mentally or physically unable as foreshadowed in the issues paper should be retained.

14. At 8.35 of the report this appears:

“As to mental inability, it is intended that such an amendment may facilitate in at least some cases the admission of the transcript of a complainant’s evidence in a retrial”.

15. I emphasise what then appears:

“Requiring the complainant to testify again may, depending on the circumstances of the case, do such emotional or psychological harm to the complainant that the complainant should be considered unavailable to give the particular evidence”.

16. Thus, both the Law Reform Commission report which led to the amendment of the definition of unavailable witness, and the second reading speech, speak of mental inability to give evidence being demonstrated where emotional or psychological harm, or a significant effect on the person’s mental health, would result from the person giving evidence. I interpret the definition in the dictionary to the Evidence Act in accordance with those statements.

17. The officer-in-charge, who has been dealing with the complainant for some time, gave evidence that the complainant was on medication with respect to mental health issues and had made what he described as three suicide attempts in the past. In 2007 he received an email which contained a suicide note from the complainant shortly after the special hearing completed. Apparently the complainant presented herself to a police station indication a desire to harm herself and treatment was obtained for her.

18. It is important to note the temporal connection between her giving evidence at the special hearing and her expressing at least a fear, if not an intention, to kill herself. I repeat, the evidence of the police officer was that he received this email containing a suicide note shortly after the special hearing completed.

19. There have then been two attempts where the complainant’s attempts at suicide were sufficiently serious that she was admitted to hospital, one following an attempted overdose, and another as a result of which she spent four weeks in hospital.

20. In the officer’s statement which was tendered there are suggestions that the complainant expressed the opinion to Detective Sergeant Shaw that she had had enough and done all that she could be expected to do. But matters go beyond that. The officer who, I repeat, has been involved with the complainant for many years, formed the opinion that she could no longer proceed with the matters. He also says, “I also feel that the process may take her back to the issues surrounding her attempt on her own life”.

21. Of course, as Mr Steel who represents the accused points out, there is no evidence of a psychologist or a psychiatrist. The Crown made an application that matters be adjourned so that such evidence could be obtained, but this was a belated application made after evidence was completed and after submissions had been made, with no real expectation that such evidence could be obtained with any promptness at all, so I refused the Crown’s application for the adjournment.

22. On the other hand, there is in my view plenty of evidence that the complainant would suffer significant harm if she was required to give evidence again. She was unable to even complete watching the video of her giving evidence at the special hearing. She said in a statement tendered to me,

“I remember that watching the video took me back to both the initial offence involving the accused and the trial process that followed. This was a very dark place in my mind and I can’t go back there any more”.

23. She explains that she is genuinely fearful of the accused. But for eight years now she says,

“I have been steadily moving forward and leaving him in the past. This whole process brings him to the front again and I can’t do it or allow to become part of me again.”

24. It is very easy to understand the position the complainant now finds herself in. At the first aborted trial she was abused by the accused who was then mentally unwell. Her evidence could not complete because of that circumstance. At the special hearing, she was also abused by the accused who was still mentally unwell to the extent that the accused was removed from the courtroom during much of her evidence.

25. I am satisfied that requiring the complainant to give evidence again would cause her severe emotional harm at the very least, if not psychological harm and a real risk of a further attempt at suicide. I am satisfied, therefore, that she is unavailable to give evidence.

26. Mr Steel made the submission that all of these recent expressions of emotional harm by the complainant followed from the events of yesterday and that a delay might allow the inability of the complainant to give evidence to be overcome. I do not accept that that is the position. The emotional trauma which the complainant reports has been ongoing and her inability to give evidence without further emotional harm is not something which is likely to be affected by the passage of time.

27. Having dealt with the issue of unavailability I next look at those aspects of s 65 that the Crown relies on. Let me deal with one of them immediately. The Crown says relying on s 65(2)(b), that the representation made by the complainant at the special hearing was made shortly after the asserted fact occurred. The asserted fact, her complaint that in mid-2002 she was sexually assaulted by the accused came six and a half years at least after the offences allegedly occurred. It could not be said that in November 2008 when the complainant gave evidence at the special hearing that this was shortly after she alleged she was sexually assaulted in mid-2002.

28. The Crown does relies on s 65(2)(a), the Crown says that the complainant was under a duty to make her representations. Although this did seem initially attractive because the complainant was subject to a subpoena and had she refused to take an oath or give evidence would have been in contempt of Court, I accept Mr Steel’s submissions that the duty spoken of is not the duty that applies to any witness subpoenaed to give evidence. As I, in the light of Mr Steel’s submissions, interpret s 65(2)(a) it speaks of a duty imposed by something other than a requirement to give evidence. The words “to make representations of that kind” are of assistance here. I am satisfied that 65(2)(a) speaks about duties which are unrelated to personal matters about which the person is making a representation.

29. That leaves s 65(3). In this case the accused was represented by a lawyer at the special hearing and that lawyer did cross-examine the complainant. Section 65(3) does not speak about require an examination of how good that cross-examination was. Any cross-examination would seem to be sufficient to trigger s 65(3) with presumably an ineffective cross-examination being one of the matters that would be taken into account in applying later discretionary considerations.

30. The simple fact is that the complainant was cross-examined during her evidence given in earlier proceedings. I am satisfied, therefore, that s 65(3) does apply and so absent any later discretionary matter the evidence would be admitted.

31. Mr Steel relies on s 137 of the Evidence Act. He points out that by reason of the accused’s then unfitness to be tried there may be issues regarding the adequacy of the cross-examination at the special hearing. I have read that cross-examination. It was clearly based on instructions from the accused. Thus an alternative version of events was put to the complainant. It was suggested that anal intercourse had not occurred, but that penile vaginal and oral intercourse had occurred with her consent.

32. Various matters of fact were suggested to her consistent with an obligation on the cross-examiner to comply with the rule in Browne v Dunn (1893) 6 R 67. Behaviour which no doubt it was suggested was inconsistent with the behaviour of a person who had been sexually assaulted in the way she described was referred to and I can see no deficiency at all in that cross-examination.

33. Of course, there remains the possibility that the cross-examination could have been better. The cross-examiner may have been hampered by the accused’s then unfitness to be tried and indeed his removal from the courtroom soon after the complainant’s evidence commenced. And this is a case where it would be difficult to construct a direction to the jury which would deal with that possible prejudice.

34. Telling the jury that the accused was not present in court for most of the evidence of the complainant at the special hearing or that it is possible that instructions were not given completely because he was unfit to be tried are not the sort of directions that Mr Steel would want me to give because of the risk that they themselves would cause an unfair prejudice to his client. So I accept that there is a risk of unfair prejudice. There is a risk that the jury will give the evidence of the complainant greater weight than it truly deserves because they do not know the circumstances in which the cross-examination took place. On the other hand, it is certainly not the case that demonstrating unfair prejudice leads to the exclusion of evidence. I am satisfied that the probative value of the complainant’s evidence is considerable. Indeed, the probative value of the evidence substantially outweighs the danger of unfair prejudice to the accused.

35. For those reasons, I will allow the Crown to tender in this trial the recorded evidence of the complainant at the special hearing. There will, of course, need to be some edits to those recordings to remove any of the accused’s outbursts which might otherwise be heard by the jury in this trial.

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Decision last updated: 04 September 2015