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 to give evidence. Section 9 of the Evidence Act applies in relation to that issue.
[3] at [25].
Even if the pre-conditions are met, s 34CA(1) provides that I may admit the evidence. White J, in Byerley, observed that there remains a residual discretion even though satisfaction of the three pre-conditions will ordinarily lead to the admission of the evidence.[4]
[4] at [54].
The onus is on the party seeking to lead the evidence to satisfy the court that the evidence should be admitted.[5] In this case, that party is the Director of Public Prosecutions.
[5] Doyle CJ at [22].
Doyle CJ observed that s 34CA allows admission of evidence of a kind not previously admitted.[6] In Byerley, the proposed evidence consisted of a number of statements made by a child to his mother and to a Child Protection Services officer, the last of which culminating in the mother contacting the police. The statements to the Child Protection Services officer were in the nature of several interviews.
[6] at [21].
Mrs Shaw QC raised objections to admissibility of the statements on a number of bases. These included:
·that s 34CA refers to the admission of a statement, whereas here the prosecution wants to tender two statements. Mrs Shaw argued that the section contemplates the admission of only one statement. Clearly, that was not considered an issue in Byerley. I reject that submission. The use of the singular word ‘statement’ does not preclude the admission of more than one. It is just that each statement must satisfy the section before it can be admitted;
·the section was enacted with a view to admitting spontaneous utterances of a child, rather than interviews. Again, that was not the case in Byerley. Indeed, the way Mrs Shaw framed that submission, referring to spontaneous utterances at around the time of the commission of the offence, the statement could have been admissible at common law as part of the res gestae (see Ratten v The Queen,[7] Walton v The Queen,[8] Papakosmas v The Queen[9] and Spurway v The Police[10]). Section 34CA applies to statements made by the child in an interview as much as it does to other statements. I reject that submission as well.
[7] [1972] AC 378 at 389, 391 per Lord Wilberforce.
[8] [1989] HCA 9.
[9] [1999] HCA 37.
[10] [2011] SASC 177.
I also note that in Byerley, Doyle CJ observed that s 34CA is intended to allow the prosecution to rely on out-of-court statements as proof of an offence and is not limited to evidence that would have been admissible at common law as evidence of recent complaint, as is governed by s 34M of the Evidence Act.[11]
[11] at [21].
Although the question of s 34M has not been fully argued, I simply make that observation in advance of that argument.
As to sufficient probative value, in The Queen v M, BJ,[12] Vanstone J held that the actus reus of an offence against s 50(1) is more than one act of sexual exploitation of a particular child over a period of not less than three days. Therefore, the jury must agree that the accused committed the same two or more acts of sexual exploitation before convicting. Her Honour distinguished the High Court cases of KBT v The Queen[13] and KRM v The Queen[14] because the legislation in Queensland created an offence with a different actus reus, namely the maintenance of an unlawful sexual relationship.
[12] (2011) 110 SASR 1.
[13] (1997) 191 CLR 417.
[14] (2001) 206 CLR 221.
There was also a specific provision in the Queensland Act that the jury were not required to agree upon the same unlawful acts.
Mrs Shaw argued that the statements sought to be tendered here do not have the probative value of an offence under s 50(1) because the lack of specificity in the statements would make it impossible for a jury to agree upon the same acts in this case.
Ms Zuckerman, counsel for the Director of Public Prosecutions, responded that C has specified certain acts in the statements. She gave the following examples:
·on one occasion of sexual exploitation C was wearing her nightie;
·on another occasion it was about 5.30 p.m. She was wearing underwear and the accused told her not to;
·on another occasion she was reading in bed and the accused was performing an act of sexual exploitation throughout the time it took her to read an entire chapter of her book;
·on another occasion, after the accused had read to her, he left the bedroom, then returned, closed the curtains, she pretended to be asleep, he then put his penis in her mouth.
Mrs Shaw responded that on each of those occasions C qualified what she said by saying that such incidents happened more than once. C was asked, for example, how many times it happened, that is the coming and going to her bedroom, and she replied ‘10 or 12’.[15] As to fellatio specifically, she said that she didn’t know how many times but less than 10 or 12.[16]
[15] line 325.
[16] line 334.
Similarly, in relation to the accused telling her not to wear underwear,[17] she had already said that he had taken her underwear off on more than one occasion.[18]
[17] line 426.
[18] line 204.
C referred to the incident when she read the whole chapter of the book[19], although there was no indication in the statement as to precisely when that occurred.
[19] line 412.
Mrs Shaw referred to the leading nature of the questions asked by Detective Cresp in the interviews. She handed up a schedule of those questions. I do not consider many of those questions to be leading, in fact most of them, in my view, are not. What I did find striking, however, was C’s reticence, indeed at times uncooperativeness, in many of her answers. For example:[20]
Q.What sort of pyjamas do you wear.
A.They don’t go in a category.
Q.Is it like a nightie or do you wear a top and bottom.
A.Um, I wear different pyjamas, I have all different pyjamas, so I don’t know.’
[20] line 200.
This is one example among many where C was clearly reluctant to descend from the general to the particular. I do not think it can be a failure of memory because the actions being recalled were of reasonably recent origin. In my view, it does detract from the credibility of her narrative.
Mrs Shaw was also critical of Detective Brevet Sergeant Cresp’s encouragement during the interview of C. For example, he said: ‘My job is a police officer.’[21] And then later: ‘I do lots of different things and one of those is to make sure kids are safe.’
[21] line 11.
As I say, this is one of several such utterances but, in my view, I do not see anything particularly inappropriate about such utterances. After all, Detective Cresp was dealing with a child of 11 at the time and, in my view, there is nothing inappropriate about him trying to establish some rapport with the child and reassure her when she was showing signs of nervousness so that he might effectively interview her.
I reject the suggestion that such questions are inappropriate and that they taint the statements.
Finally, Mrs Shaw also referred to the clear evidence that C’s mother had been exerting pressure on her to give evidence. The documents disclosed by the prosecution establish that on 2 February 2015, at a proofing session, C declined to talk to Director of Public Prosecutions officers in the presence of her mother. The notes record that her mother became angry and agitated and referred to her dispute with Mr Baker in the Family Court over custody of another child. And she said that C has ‘a responsibility to keep the other kids safe’. It seems to me that that is an extraordinary thing to say to an 11-year-old child in order to pressure her into cooperating with a prosecution.
On 16 March 2015, at a further meeting, C again indicated that she did not wish to speak to the officers. She declined to say why. The officers noted that C felt pressured and fearful of getting into trouble with her mother. There was discussion about whether it was in C’s best interests to proceed with the prosecution. The officers were concerned that the mother did not have C’s best interests in mind. The welfare officer indicated that C had been in the bathroom crying during a break in the conversation, that she was feeling that she was being told off for not cooperating. There was discussion in C’s presence about having to move the family interstate if C did not pursue the prosecution.
On 27 March 2015, C did discuss the evidence but indicated that she did not remember many of the key allegations she had made in the interviews the year before. Her statements vacillated between not remembering and not wanting to talk about the issue. She said: ‘I don’t want you to tell mum, mum is not a bad person, she isn’t mean. I do want to go through this, I just can’t find the words to say what happened.’
On several occasions, obviously with Vanstone J’s words in mind, the DPP officers indicated that the trial could not proceed unless C would outline the details of the acts of sexual exploitation which she was so reluctant to do. After a break, although C was then more cooperative, she said that she was still unable to indicate clearly what had happened.
It is clearly apparent that C felt conflicted between her own interests and whether she wished to proceed with the prosecution, and the interests of the rest of her family so forcefully put upon her by her mother. That is an enormous burden for a then 12-year-old child, and one which leads to grave concerns about the probative value of her earlier statements.
I do not overlook Ms Zuckerman’s valid submission that the mother’s pressure was directed to proceeding with the prosecution rather than to, in any way, speaking inaccurately or untruthfully about what happened. However, to my mind, the conflict that the pressure was likely to produce in the mind of a 12-year-old child is the important issue, as is the extent to which it compromises her ability to recall accurately and in detail what happened.
On their face, the statements have some probative value but, on my reading of M, BJ, insufficient of themselves for the prosecution to prove its case. C’s reluctance to descend into detail is puzzling because, as I said before, the events she was being asked to recall had occurred relatively recently. When combined with the subsequent events, her statements that she remembered little, and the severe and inappropriate pressure from her mother in the context of bitter Family Court proceedings on other issues, I am left with grave concerns about the probative value of her statements. If they are admitted under s 34CA, and C behaves in a similar way when cross-examined (assuming she has the capacity to give evidence under s 9), the statements to the police officer will achieve a prominence in the eyes of the jury that is not warranted, in my view, in view of their lack of specificity, thus presenting, in my view, a danger of quite severe prejudice to the accused.
In all the circumstances, I am not satisfied that it would be appropriate to exercise my discretion in favour of allowing the tender of these documents pursuant to s 34CA. I refer to the statements made by C to Detective Brevet Sergeant Cresp on 18 and 28 May 2014. So the tender is refused.