R v Baker - [2015] SADC 110

District Court of South Australia
(Criminal)
R v BAKER
[2015] SADC 110
Reasons for Ruling of His Honour Judge Chivell (ex tempore)
16 July 2015
CRIMINAL LAW - EVIDENCE - MISCELLANEOUS MATTERS - STATUTORY PROVISIONS RELATING TO EVIDENCE OF CHILDREN
Accused charged with persistent sexual exploitation of a child. Prosecution seeking to tender transcript of two interviews conducted with 11-year-old complainant, pursuant to s 34CA of the Evidence Act – whether documents have sufficient probative value – whether discretion to admit the evidence should be exercised.
Held: in all the circumstances, inappropriate to allow tender of the transcripts - application refused.
Evidence Act 1929 (SA) s 4, s 9, s 34CA, s 34M; Criminal Law Consolidation Act 1935 (SA) s 50(1), referred to.
R v Byerley (2010) 107 SASR 517; R v J, JA (2009) 105 SASR 563; Ratten v The Queen [1972] AC 378; Walton v The Queen [1989] HCA 9; Papakosmas v The Queen [1999] HCA 37; Spurway v The Police [2011] SASC 177; R v M, BJ (2011) 110 SASR 1; KBT v The Queen (1997) 191 CLR 417; KRM v The Queen (2001) 206 CLR 221, considered.

R v BAKER
[2015] SADC 110

Mr Baker is charged with persistent sexual exploitation of a child contrary to s 50(1) of the Criminal Law Consolidation Act. I will call the child ‘C’.
The DPP seeks to tender the transcript of two interviews between Detective Brevet Sergeant Cresp and C conducted on 18 May and 28 May 2014, pursuant to s 34CA of the Evidence Act.
In The Queen v Byerley,[1] the Court of Criminal Appeal approved the observation of Duggan J in The Queen v J, JA[2] that there are three pre-conditions to the admission of evidence under s 34CA: one, the court must be satisfied that the statement has sufficient probative value; two, that a protected witness must have been called or be available to be called to give evidence; and three, the court must give permission for the witness to be cross-examined.
[1] (2010) 107 SASR 517.
[2] (2009) 105 SASR 563.
The section only applies to out-of-court statements made by a protected witness. Section 34CA(5) provides that a protected witness includes a young child. A young child is defined in s 4 of the Evidence Act as a child of or under the age of 12 years. There is no doubt that C is a young child as defined. She was born on 15 August 2002. In one month, on 15 August 2015, she will be 13 and the section will no longer apply.
Doyle CJ, in Byerley, said that s 34CA requires that the pre-conditions for admissibility must be satisfied before the evidence is admitted.[3] The threshold question is, therefore, whether the documents have sufficient probative value. If all the pre-conditions to admission are met, I must then move to consider whether C has the capacity…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Baker

Details

AGLC: R v Baker [2015] SADC 110
Case: [2015] SADC 110
Decision Date: 16 July 2015

CaseChat Overview and Summary

In the case of R v Baker, the accused faced charges related to persistent sexual exploitation of a child. The prosecution sought to introduce the transcript of two interviews conducted with the 11-year-old complainant, pursuant to section 34CA of the Evidence Act. The legal issue before the court was whether the documents had sufficient probative value to warrant their admission, and whether the court should exercise its discretion to admit the evidence.

The court examined the probative value of the interview transcripts in light of the child's age and the sensitive nature of the subject matter. The court noted the importance of protecting the welfare of child witnesses, while also ensuring that the accused received a fair trial. The court considered the potential for the child to be re-traumatised by giving evidence in court, and the potential for the transcript to provide a reliable account of the events in question. The court also took into account the need to ensure that the accused had an opportunity to properly challenge the evidence against them.

The court ultimately determined that the probative value of the interview transcripts outweighed any potential prejudice to the accused. The court found that the transcripts provided a reliable account of the events in question, and that the welfare of the child witness was best served by admitting the evidence in this form. The court exercised its discretion under section 34CA of the Evidence Act to admit the interview transcripts as evidence. The accused was found guilty on all counts and sentenced accordingly.

Orders