R v Byerley

Case [2010] SASCFC 3

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal: Case Stated)

Question of Law Reserved NO 1 OF 2010

R v BYERLEY

[2010] SASCFC 3

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Doyle, The Honourable Justice White and The Honourable Justice Kourakis)

16 July 2010

CRIMINAL LAW - APPEAL AND NEW TRIAL - PROCEDURE - MISCELLANEOUS MATTERS - SOUTH AUSTRALIA - CASE STATED AND RESERVATION OF QUESTION OF LAW

EVIDENCE - ADMISSIBILITY AND RELEVANCY - HEARSAY - STATEMENTS - OTHER STATEMENTS

EVIDENCE - WITNESSES - CROSS-EXAMINATION - WHEN PERMITTED AND IN GENERAL - WHAT WITNESSES

EVIDENCE - WITNESSES - CROSS-EXAMINATION - WHEN PERMITTED AND IN GENERAL - ON WHAT MATTERS

STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - PARTICULAR WORDS AND PHRASES - GENERAL PRINCIPLES

Case stated from District Court - questions relevant to trial of accused - interpretation of s 34CA of the Evidence Act 1929 (SA) - meaning of "available to be called as a witness in the proceedings" in s 34CA(1)(b)(i) - factors relevant to capacity of a "protected witness" to deal with and respond to cross-examination - interaction between s 34CA(1)(b)(ii), s 34CA(2) and s 34CA(4) - approach and procedure to be adopted in determining whether permission to cross-examine a "protected witness" pursuant to s 34CA should be given - meaning of "the evidence" in s 34CA(2).

Criminal Law Consolidation Act 1935 (SA) s 56(1), s 285A, s 350, s 350(2)(b); Evidence Act 1929 (SA) s 9, s 21, s 34CA, s 34CA(1), s 34CA(1)(a), s 34CA(1)(b)(i), s 34CA(1)(b)(ii), s 34CA(2), s 34CA(4), s 34M, referred to.
R v J, JA (2009) 105 SASR 563, applied.
Gately v The Queen (2007) 232 CLR 208; R v Cox [2006] SASC 188; The President &c. of the Shire of Arapiles v The Board of Land and Works (1904) 1 CLR 679; New South Wales Crime Commission v Kelly (2003) 58 NSWLR 71; Grey v Pearson (1857) 6 HLC 61; Broken Hill South Ltd (Public Officer) v The Commissioner of Taxation (NSW) (1937) 56 CLR 337; Alder v George [1964] 2 QB 7; Inco Europe Ltd v First Choice Distribution (a firm) [2000] 1 WLR 586; Tokyo Mart Pty Ltd v Campbell (1988) 15 NSWLR 275; Wentworth Securities Ltd v Jones [1980] AC 74; Bermingham v Correction Services Commission of New South Wales (1988) 15 NSWLR 292; R v Young (1999) 46 NSWLR 681; James Hardie & Co Pty Ltd v Seltsam Pty Ltd (1998) 196 CLR 53; Director of Consumer Affairs Victoria v Glenvill Pty Ltd [2009] VSC 76; Beckwith v The Queen (1976) 135 CLR 569, considered.

WORDS AND PHRASES CONSIDERED/DEFINED

"protected witness", "available to be called as a witness", "cross-examination", "capacity"

Question of Law Reserved NO 1 OF 2010
R v BYERLEY
[2010] SASCFC 3

Court of Criminal Appeal:       Doyle CJ, White and Kourakis JJ

  1. DOYLE CJ:  A Judge of the District Court has stated a case…

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AGLC
R v Byerley [2010] SASCFC 3
Case
[2010] SASCFC 3
Decision Date

CaseChat Overview and Summary

This case came before the Full Court of the Supreme Court of South Australia by way of a case stated from the District Court. The dispute concerned the admissibility of out-of-court statements made by a child witness, referred to as a "protected witness," in criminal proceedings. The central issue revolved around the interpretation and application of section 34CA of the *Evidence Act 1929* (SA), which governs the admissibility of such statements and the circumstances under which a protected witness may be cross-examined.

The court was required to determine several legal questions, including the meaning of "available to be called as a witness in the proceedings" within section 34CA(1)(b)(i), and the factors relevant to a protected witness's capacity to deal with and respond to cross-examination under section 34CA(1)(b)(ii). Further questions concerned the interaction between various subsections of section 34CA, the procedure for granting permission to cross-examine a protected witness, and the meaning of "the evidence" in section 34CA(2). The court also considered whether section 9 of the Act, relating to unsworn evidence, necessarily applied to admissibility determinations under section 34CA(1).

The court noted significant drafting difficulties within section 34CA, particularly in reconciling provisions regarding the refusal of cross-examination with the mechanism for admitting out-of-court statements. The questions posed in the case stated were largely premised on a particular construction of section 34CA previously considered by the Full Court in *R v J, JA*. However, the judges in this instance found themselves unable to accept that construction, even though it had been accepted by both the Director of Public Prosecutions and the accused.

Given that the reserved questions proceeded on a construction of section 34CA that the court could not endorse, the judges concluded that it was not appropriate to answer them. Consequently, the court refrained from providing definitive answers to the questions stated by the District Court.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Section 9 of the Act relevantly provides:9—Unsworn evidence(1)A person is presumed to be capable of giving sworn evidence in any proceedings unless the judge determines that the person does not have sufficient understanding of the obligation to be truthful entailed in giving sworn evidence.(2)If the judge determines that a person does not have sufficient understanding of the obligation to be truthful entailed in giving sworn evidence, the judge may permit the person to give unsworn evidence provided that—(a) the judge—(i)is satisfied that the person understands the difference between the truth and a lie; and(ii)tells the person that it is important to tell the truth; and(b) the person indicates that he or she will tell the truth.(3)…(4)If unsworn evidence is given under this section in a criminal trial, the judge—(a) must explain to the jury the reason the evidence is unsworn; and(b) may, and if a party so requests must, warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it.…Nor did the Judge consider s 21 of the Act. Section 21 relevantly provides:21- Competence and compellability of witness(1) A close relative of a person charged with an offence shall be competent and compellable to give evidence for the defence and shall, subject to this section, be competent and compellable to give evidence for the prosecution.(2) Where a person is charged with an offence and a close relative of the accused is a prospective witness against the accused in any proceedings related to the charge (including proceedings for the grant, variation or revocation of bail, or an appeal at which fresh evidence is to be taken) the prospective witness may apply to the court for an exemption from the obligation to give evidence against the accused in those proceedings.The balance of the section contains a number of provisions pursuant to which a close relative can be exempted from the obligation to give evidence against the accused. It suffices to refer to subs (3a) which provides:(3a)If the prospective witness is a young child, or is mentally impaired, the court should consider whether to grant an exemption under subsection (3) even though no application for exemption has been made and, if of opinion that such an exemption should be granted, may proceed to grant the exemption accordingly. After the Judge delivered his ruling as to the admissibility of the out of court statements, counsel for the defendant applied for permission to cross-examine JF on particular matters identified to the Judge. These matters related to the out of court statements made by JF. The Judge treated this application as governed by s 34CA(2). Counsel for the prosecution informed the Judge that counsel did not intend to call JF to give evidence. Further, counsel for the prosecution informed the Judge that if cross-examination of JF was permitted then the prosecution would not proceed with the prosecution. This was because the effect on JF of giving evidence or being cross-examined could not be known and the prosecution was unwilling to take the risk that such a course would have an adverse effect on JF.

Decision

Reasons for decision

Moreover, even though s 34CA will more frequently be applied in criminal proceedings than civil ones, it must be given a construction which recognises that, on its terms, it applies to both.Conclusion The questions reserved in the case stated proceed on a construction of s 34CA which is largely premised on the non-binding observations of the majority of this Court in R v J, JA. I do not consider it necessary or appropriate to accept that construction, even though both the Director of Public Prosecutions and the accused have accepted the correctness of those observations. I am left in the position where, because I cannot accept the construction on which the questions are premised, it is best that I refrain from answering them.

Ratio Decidendi

Legal Principle Established

The questions stated by the District Court Judge are as follows:1.Was I correct to rule that a protected witness is “available to be called as a witness in the proceedings” pursuant to s 34CA(1)(b)(i) of the Evidence Act:I. by either side, andII. only on the basis that he is within the jurisdiction and can readily be brought to court, andIII. notwithstanding that the prosecution indicated it did not intend to call the protected witness if cross-examination was allowed on any topics pursuant to s 34CA(2)?2.Was I correct to rule that the out of court statements referred to in paragraph 13 were admissible pursuant to s 34CA of the Evidence Act, and in particular:a) Was I correct to rule that the factors relevant to “capacity” in respect of s 34CA(1)(b)(ii) of the Evidence Act can be limited to:I.whether the protected witness was able to speak coherently,II.whether he was able to understand questions asked of him andIII.whether he was able to respond to questions in an appropriate and meaningful way?(b) Was I correct to grant permission to cross-examine pursuant to s 34CA(1)(b)(ii) and to rule that insofar as “capacity” is relevant to the issues in s 34CA(1)(b)(ii) of the Evidence Act it is the capacity of the protected witness to give evidence in general that is relevant and not just his capacity to be cross examined?(c) Was I correct to grant permission to cross-examine the protected witness pursuant to s 34CA(1)(b)(ii) notwithstanding that the prosecution indicated it did not intend to call the protected witness if cross-examination was allowed on any topics pursuant to s 34CA(2)?(d) Was I correct to rule that s 9 of the Evidence Act does not necessarily have application in determining admissibility pursuant to s 34CA(1) of the Evidence Act?3.Was I correct to refuse permission to allow the protected witness to be cross-examined pursuant to s 34CA(2) of the Evidence Act on the basis that the matters identified by defence counsel called for speculation as to answers that may be given and in those circumstances I could never be satisfied before cross-examination that the cross-examination was likely to elicit material of substantial probative value or material that would substantially reduce the credibility of the evidence?4.What procedure should be adopted by a Court in determining whether permission should be given to cross-examine a protected witness pursuant to s 34CA?5.Was I correct to rule that the words “the evidence” in s 34CA(2) of the Evidence Act refer only to the evidence to be given by the protected witness’s mother and Ms Kay as to what it is alleged the protected witness said to them in relation to the incidents involving the accused?Consideration In R v J, JA this Court considered aspects of the meaning and application of s 34CA of the Act. The Court pointed to difficulties attributable to the drafting of the section. There is an obvious difficulty in reconciling s 34CA(1)(b)(ii) and s 34CA(2) on the one hand, with s 34CA(4) on the other hand. If the court refuses permission to cross-examine, as s 34CA(4) contemplates might happen, how does the out of court statement get into evidence? All members of the Court agreed that s 34CA warrants reconsideration by Parliament: Duggan J at [59], Nyland J at [154], White J at [180]. I agree with that comment.