R v Byerley - [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

DOYLE CJ: A Judge of the District Court has stated a case pursuant to s 350(2)(b) of the Criminal Law Consolidation Act 1935 (SA) (“CLCA”). The case stated reserves for consideration by this Court certain questions of law relevant to the trial of the accused.
Background
Mr Byerley is charged with one count of aggravated indecent assault contrary to s 56(1) of the CLCA. It is alleged that between 25 September 2008 and 21 October 2008 Mr Byerley indecently assaulted JF. The offence is alleged to have occurred on 19 October 2008. At the time of the alleged offence JF was 3 years old.
On 3 August 2009 the accused was arraigned. He entered a plea of not guilty. On 9 March 2010 the accused appeared before the Judge for trial. Pursuant to s 285A of the CLCA the Judge heard and determined a number of questions relating to the admissibility of evidence before he empanelled the jury.
The prosecution proposed to lead evidence of out of court statements made by JF from persons to whom the statements were made, pursuant to s 34CA of the Evidence Act 1929 (SA) (“Act”). The out of court statements of JF were made to his mother and to a child protection services officer. The statements to his mother were made on a number of occasions during October 2008. The last of them, on 20 October 2008, led to JF’s mother going to the police. The statements made by JF to the child protection services officer were made during the course of interviews conducted by that officer with JF on 10 November 2008 and 17 November 2008. My understanding is that these statements, coupled with circumstantial evidence as to opportunity and other matters, were to be used as proof of the offence charged. Counsel for the accused objected to these statements being tendered. Submissions commenced on 9 March 2010 and concluded on 10 March 2010. It emerged during the submissions that the prosecutor did not intend to call JF as a witness, and would rely on the statements as JF’s evidence about the offence charged.
Section 34CA of the Act provides:
34CA—Statement of protected witness
(1)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 if—
(a)     the court, having regard to the circumstances in which the statement was made and any other relevant factors, is satisfied that the statement has sufficient probative value to justify its admission; and
(b)     —
(i)the protected witness has been called, or is available to be called, as a witness in the proceedings; and
(ii)the court gives permission for the protected witness to be cross‑examined on matters arising from the evidence.
(2)A court may only give permission to allow a protected witness to be cross‑examined on such matters if satisfied that the cross‑examination is likely to elicit material of substantial probative value or material that would substantially reduce the credibility of the evidence.
(3)Evidence that is admitted in a trial under this section of the nature and contents of a statement made outside the court by a protected witness may be used to prove the truth of the facts asserted in the statement.
(4)In a criminal trial, the judge must, if evidence of the nature and contents of a statement made outside the court by a protected witness has been admitted but the protected person has not, for some reason, been cross‑examined on matters arising from the evidence, warn the jury that the evidence should be scrutinised with particular care because it has not been tested in the usual way.
(5)In this section—
protected witness means—
(a)a young child; or
(b)     a person who suffers from a mental disability that adversely affects the person's capacity to give a coherent account of the person's experiences or to respond rationally to questions.
On 10 March 2010 the Judge ruled that the out of court statements were admissible pursuant to s 34CA of the Act and that they could be used to prove the truth of the facts asserted in them. The Judge found that the preconditions contained in s 34CA(1)(a) and (b) of the Act had been met. He was satisfied that JF was a protected witness for the purposes of s 34CA of the Act, that the statements referred to had sufficient probative value to justify their admission, that JF was available to be called as a witness in the trial of the accused, and that JF had the capacity to give evidence.
The Judge relied on the spontaneity of the statements made by JF to his mother and the circumstances in which they were made, including the fact that they were made not long after the alleged assault, and on the circumstances in which the statements were made by JF to the child protection services officer, in ruling that the statements had sufficient probative value to justify their admission. The Judge considered that the questions by the child protection services officer were not impermissibly leading.
In finding that JF was available to be called as a witness in the trial of the accused, the Judge ruled that JF was available to be called as a witness by either side in the sense that he was within the jurisdiction and could readily be brought to court. The Judge was satisfied that JF had the capacity to give evidence in the sense that he was able to speak coherently, that he was able to understand questions asked of him, and that he was able to respond to questions “in an appropriate and meaningful way.” He considered that the out of court statements that the prosecution sought to tender demonstrated this.
On the basis of the last mentioned matters, the Judge granted permission pursuant to s 34CA(1)(b)(ii) for JF to be cross-examined.
The Judge did not consider that s 9 of the Act applied in coming to the conclusions that he reached. He did not find it necessary to speak with JF in order to make the findings and rulings that he did.
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.
In order to grant permission to cross-examine JF, the Judge held that he needed to be satisfied that the cross-examination was likely to “elicit material of substantive probative value or material that would substantially reduce the credibility of the evidence”: s 34CA(2). The Judge refused the defendant’s application for permission to cross-examine JF as he was not satisfied that the particular cross-examination outlined by counsel for the defendant was likely to elicit material of the type referred to in s 34CA(2) of the Act.
In refusing the defendant’s application, the Judge noted the difficulty of assessing whether cross-examination is likely to result in the eliciting of material of the type referred to in s 34CA(2). He referred to the reasons of Duggan J in R v J, JA [2009] SASC 401; (2009) 105 SASR 563, and in particular to comments by Duggan J at [58] where his Honour stated that:
There is considerable difficulty in making this assessment before cross-examination takes place and by reference only to the topics upon which it is intended to cross-examine. Predictions as to what is likely to result from cross-examination involve a level of speculation which would, in many cases, render the assessment impractical.
On 19 March 2010 the Judge reserved a number of questions for consideration by this Court pursuant to s 350 of the CLCA. On 28 April 2010 those questions were amended.
The Questions Stated
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, and
II. only on the basis that he is within the jurisdiction and can readily be brought to court, and
III. 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 and
III.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.
Neither counsel for the Director nor counsel for the accused challenged the decision in R v J, JA. Accordingly, this Court should proceed on the basis that it was correctly decided. The reasons which follow should be read against the background of the reasons given by Duggan J in R v J, JA, with whom Nyland J agreed.
When considering the purpose of the legislation, Duggan J adopted observations made by members of the High Court in Gately v The Queen (2007) 232 CLR 208 in relation to a similar provision. Duggan J said at [12]:
[12]When describing the purpose of a broadly similar provision in s 93A of the Evidence Act 1977(Qld) in Gately v The Queen, Hayne J said:
The section makes a special rule for children and intellectually impaired persons. That rule is made for the evident purpose of preserving the integrity of the evidence of such persons, by allowing evidence of an account of relevant events that was made before, sometimes well before, the trial of the relevant proceeding. But if the party relying on the account of a child or intellectually impaired person is able to and wishes to have that person give their account orally, as well as in the form of the statement that has previously been made, there is no reason to prevent that being done.
In the same case Heydon J said:
Section 93A is dealing with a narrow field, and with peculiar problems – those concerned with evidence from children and intellectually impaired persons. The legislation rests on the assumption that an account given before the trial “can be of more probative value than present testimony, particularly if the present memory is faulty or it is difficult for the witness to articulate it in court”: … The legislative judgment is that it is more important to have before the trier of fact a clear statement from these types of witnesses, even if it is in an unsworn document, than to preserve the principle of orality in its full integrity.
Footnotes omitted
I proceed on the basis that this is the purpose of the section.
I add these further points about the operation of s 34CA. It applies to civil cases as well as to criminal cases. It will allow the admission of a kind of evidence not previously admitted. It is intended to allow the prosecution in a criminal trial to rely on out of court statements as proof of an offence. It is not limited to evidence that would have been admissible at common law as evidence of a recent complaint. The admissibility of such evidence is governed by s 34M of the Act. Section 34CA is available for use by the defence (in a criminal trial) as well as by the prosecution.
The section proceeds on the premise that a party to a trial wants to lead evidence of the kind identified in s 34CA(1). It follows that that party must satisfy the Court that the evidence should be admitted. It will usually be convenient and desirable to raise the matter with the trial Judge before the trial commences: Duggan J at [37]. If the matter is left until a relevant witness is called (that might be the protected witness or the person to whom the out of court statement was made) complications might arise.

In R v J, JA, Duggan J identified three conditions precedent to the admission of evidence under s 34CA. He said at [36]:
[36]There are three conditions precedent which must be fulfilled before the statement is admissible. They are set out in subs (1)(a) and (b) of s 34CA:
(1)     the court must be satisfied that the statement has sufficient probative value to justify its admission (s 34CA(1)(a));
(2)     the protected witness must have been called, or be available to be called, as a witness in the proceedings (s 34CA(1)(b)(i));
(3)     the court must give permission for the protected witness to be cross-examined on matters arising from the evidence (s 34CA(1)(b)(ii).
If those conditions are satisfied, the Court has power to admit the evidence. One would ordinarily expect that power to be exercised in favour of the admission of the evidence, if the conditions are satisfied.
The conditions precedent are intended as a protection for the party against whom the out of court statement may be used. That person will usually be the accused in a criminal trial. But it is possible that an accused might lead evidence of an exculpatory out of court statement by a protected witness, and presumably the conditions precedent will then operate to protect the prosecution case.
The duty of the Court is to give effect to the section if it can, bearing in mind its purpose, and making use of established principles of statutory interpretation. This leads me to the following conclusion. Section 34CA(1)(b)(ii) must be applied and satisfied before the evidence of the out of court statement is admitted. It contemplates permission being granted before the protected witness gives evidence of the out of court statement, and before another person gives evidence of the making of the out of court statement by the protected witness. Section 34CA(1)(b)(ii) should be read as referring to what might be called “in principle” permission to cross-examine, based on the availability of the protected witness; on an assessment of the capacity of the protected witness to give evidence; on the assessment of the ability of the protected witness to cope with cross-examination, and on the nature of the proposed cross-examination.
Accordingly, the admission of evidence of the out of court statement turns on an assessment of its “probative value” as required by s 34CA(1)(a), the protected witness having been called or found to be available to be called as required by s 34CA(1)(b)(i), and the court granting permission to cross-examine under s 34CA(1)(b)(ii).
Section 34CA(2) contemplates permission in relation to specific questions in cross-examination. Now, when the protected witness actually gives evidence (having been called), the court will consider the specific questions that counsel wishes to ask and whether they satisfy the specified criteria, in light of the court’s assessment of the protected witness. It may be necessary for the Judge to deal with the issue question by question.
The admissibility of the evidence of the out of court statement is conditional on a decision by the judge that cross-examination is permissible in principle. A later decision will be made by the trial judge as to whether particular cross-examination is to be allowed. A decision that some or all of the proposed cross-examination should not be permitted will not require the court to exclude the evidence of the out of court statement: s 34CA(4). In that way sense can be made of s 34CA(4). The provisions of s 34CA can be made to operate in the context of a court hearing. The admissibility of evidence of an out of court statement can be decided, unaffected by the need for the trial judge to decide, in advance, on the permissibility of specific questions in cross-examination.
This is what Duggan J decided in R v J, JA at [44]. The conclusion is reached by treating s 34CA(1)(b)(ii) as requiring a decision before the out of court statement is admitted, and s 34CA(2) as requiring a decision (or decisions) when the protected witness gives evidence.
As to the first condition precedent, if the matter is considered during the course of the trial the Judge will be able to rely on such evidence as has already been given, if any of it is relevant to the application of the first condition. For example, the witness to whom the out of court statement was made might have given evidence that sheds some light on the reliability of the protected witness. If the matter is dealt with before the commencement of the trial it may be necessary for the Judge to conduct a voir dire.
It is convenient to consider the second and third conditions precedent together. I consider that they reflect an assumption by Parliament that the protected witness is available to be called as part of the prosecution case (in a criminal trial), and can be made available for cross-examination by the accused against whom the out of court statement is to be used. The reference in s 34CA(1)(b)(ii) to the Court giving permission for cross-examination indicates to me that the drafter has assumed that if the protected witness is available to be called, that witness will be called. It would make no sense to say that it suffices that the protected witness is available to be called, even though the prosecutor does not intend to call that witness. It makes no sense to contemplate the judge giving permission under s 34CA(1)(b)(ii) when the prosecutor has stated that the witness will not be called. It would be odd if what is evidently a protection for the accused is something that the accused must attend to, by calling the relevant witness as part of the defence case, the judge having found that the witness is “available to be called”, and having granted permission to cross-examine, as the Judge did here.
For these reasons, I am persuaded that the reference in s 34CA(1)(b)(i) to the protected witness being “available to be called” is intended to refer to the protected witness being available to be called, the prosecutor intending to call the protected witness. The section distinguishes between the situation in which the protected witness has already been called, and one in which the protected witness is to be called but has not yet been called. There is no rational reason why Parliament would make the admissibility of the out of court statement depend upon the availability (to either side) of a witness whom the prosecutor has no intention of calling.
Accordingly, if the protected witness is not to be called by the prosecutor, as was the case before the District Court, the protected witness is not “available to be called” in the relevant sense.
It might be said that this defeats one of the objects of the legislation, namely, enabling evidence of an out of court statement by a protected witness to be given even though the protected witness will not give evidence about that matter, because the witness is not available, will not be called, or is not competent. But one thing is clear from the section. If the protected witness is not available to be called (whatever that might mean), then the evidence of the out of court statement cannot be given. That proposition is true, whatever meaning is given to “available”. So it cannot be said that Parliament has severed the link between admissibility and the availability of the protected witness.
On this approach, before the out of court statement is admitted, the court will have to consider the capacity of the protected witness to give evidence. The court will have to consider the impact of s 9 of the Act. The effect of that provision is that the protected witness must give either sworn evidence or unsworn evidence by virtue of s 9(2). I do not understand s 34CA to provide affirmatively for the giving of evidence by a protected witness when, on ordinarily principles, that witness would not be permitted to give evidence, sworn or unsworn.
If the Judge decides that the protected witness is not capable of giving evidence, the Judge will refuse “in principle” permission for the protected witness to be cross-examined, and the evidence of the out of court statement will not be admissible. If the Judge decides that the protected witness can give evidence on oath or as unsworn evidence, and that the protected witness can cope with cross-examination, then the Judge will give what I have called “in principle” permission to cross-examine under s 34CA(1)(b)(ii).
The drafter has used the expression “called” in s 34CA(1)(b)(i). In the strict sense, the expression refers to the witness being called, that is, presented to the court by being called to the witness box. But, in my opinion, the drafter has used “called” as meaning “called and has given evidence”, or to be “called and will give evidence”. Section 34CA(1)(b)(i) is to be read as if it provided “… the protected witness has been called and has given evidence or is available to be called and will be called to give evidence”. It is common for “called” to be used as meaning “gave evidence”.
I add that the impact of s 21 of the Act should not be overlooked. That might result in the protected witness not giving any evidence although called, and that in turn would have the result that the Court would refuse permission for cross-examination.
As to the third condition precedent, I agree with what Duggan J said at [44]:
[44]In my view s 34CA(1)(b)(ii) contemplates that the court can give permission for the protected witness to be cross-examined after having regard to the capacity of that person to give evidence. However, when it comes to the actual cross-examination, the court must ensure that the questions to be asked comply with the requirements of s 34CA(2). The court is required to ensure compliance with s 34CA(2) and may take steps to do so both before the commencement of the cross-examination and while it proceeded. The potential awkwardness of this exercise in some cases is obvious, but that is the effect of the legislation.
On this approach, s 34CA(2) will be applied in light of the Judge’s conclusion that the witness can give evidence on oath or unsworn, in light of the Judge’s assessment of the capability of the protected witness to respond to and deal with cross-examination, and in light of the questions to be asked and the material likely to be elicited in response to those questions.
In light of what I have said I turn to question 1.
In my opinion, the Judge erred. The fact that the protected witness could be called by the accused was not relevant. The decision by the prosecutor that he would not be called as a witness meant that he was not “available to be called” as a witness. He would have been “available to be called” only if he was to be called by the prosecutor. Question 1 should be answered: No.
I turn to question 2.
The Judge’s reasons for his rulings suggest to me that he treated s 34CA as enabling evidence to be given by a protected witness even though, if s 9 of the Act were applied, the conclusion would be that the witness could not give evidence on oath or unsworn. I disagree with the Judge in that respect. However, I agree that the matters identified by the Judge in sub-paragraphs (a) and (b) are relevant to the question of the capability of the witness to deal with and respond to cross-examination.
My answers to question 2 need to be understood in the light of what I have said. That is, s 9 must first be considered, and only then will the Court consider the more general matters adverted to by the Judge. On that basis I would answer question 2 as follows:
(a)No.
(b)No, it was necessary to consider capacity for the purposes of s 9.
(c)No.
(d)No.
I turn to question 3.
The correct approach to cross-examination, once the Judge had ruled that in principle cross-examination was permissible, called for a consideration of the matters identified by me earlier in these reasons. Having regard to the terms of the section, there is necessarily an element of speculation when considering the application of s 34CA(2). But the fact that there is speculation involved cannot be the reason for refusing to permit cross-examination. That approach would sterilise the operation of the provision, because speculation will always be involved. Accordingly, I would answer question 3 as follows: No.
It is not appropriate for the Court to formulate an answer to question 4. There are too many variables involved. Question 4 should be answered as follows: Not appropriate to answer.
I agree with the Judge that the words “the evidence” in s 34CA(2) refer to the “credibility” of the out of court statement made by the protected witness. But the manner in which question 5 is formulated suggests that the court’s only concern is whether the cross-examination will elicit material “that would substantially reduce the credibility of the evidence”. However, s 34CA(2) refers also to eliciting material “of substantial probative value”. While that material must be the result of cross-examination on “matters arising from the evidence” about the out of court statement, the Court must nevertheless consider whether the cross-examination is likely to produce material of substantial probative value or material that would “substantially reduce the credibility of the evidence”.
Accordingly, I would answer question 5 as follows: Yes, but s 34CA(2) refers also to material “of substantial probative value”.
Orders
I would order that the questions stated be answered as follows:
Question 1:        No.
Question 2         :
(a)     No.
(b)No, it was necessary to consider capacity for the purposes of s 9.
(c)No.
(d)No.
Question 3:No.
Question 4:Not appropriate to answer.
Question 5:Yes, but s 34CA(2) refers also to material “of substantial probative value”.
WHITE J: The circumstances giving rise to the questions reserved for consideration by this Court, and the questions themselves, are set out in the reasons of the Chief Justice.
The purpose of s 34CA of the Evidence Act 1929 (SA) is to permit the out-of-court statements of young children and the intellectually impaired to be admitted in some circumstances as evidence as proof of the facts asserted in the statements. However, it is a difficult provision and it is understandable that there is some uncertainty about its proper application.
The effect of sub-s (1) is to create three conditions precedent for an out-of‑court statement of a protected witness to be admitted. They are:
1.the Court must be satisfied that the statement has sufficient probative value to justify its admission (s 34CA(1)(a));
2.the protected witness must have been called, or be available to be called, as a witness in the proceedings (s 34CA(1)(b)(i));
3.the Court must give permission for the protected witness to be cross-examined on matters arising from the evidence (s 34CA(1)(b)(ii)).
Satisfaction of the three conditions will ordinarily lead to the admission of the evidence, but nevertheless the Court possesses a residual discretion in that respect. The Questions reserved to this Court do not require separate consideration of that discretion.
The inter-relationship between s 34CA(1)(b)(ii) and s 34CA(2) was considered by this Court in R v J, JA.[1] Duggan J, with whom Nyland J agreed, held that these two provisions required, in effect, a two-stage process: a general grant of permission to cross-examine having regard to the capacity of the protected witness to give evidence and then, at the time of the actual cross‑examination, the Court permitting questioning only if satisfied that the questions are likely to elicit material of substantial probative value or material which would substantially reduce the credibility of the evidence. Duggan J said:
In my view s 34CA(1)(b)(ii) contemplates that the court can give permission for the protected witness to be cross-examined after having regard to the capacity of that person to give evidence. However, when it comes to the actual cross-examination, the court must ensure that the questions to be asked comply with the requirements of s 34CA(2). The court is required to ensure compliance with s 34CA(2) and may take steps to do so both before the commencement of the cross-examination and while it proceeded. The potential awkwardness of this exercise in some cases is obvious, but that is the effect of the legislation.[2]
[1] [2009] SASC 401.
[2] Ibid at [44].
On the present hearing, the Court was not asked to reconsider this aspect of the application of s 34CA. It is appropriate therefore for this Court to accept that the construction of s 34CA set out in the reasons of Duggan J is appropriate, and the balance of these reasons proceeds on that basis.
Question 1
For convenience, I set out again the terms of Question 1:
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, and
(II) Only on the basis he is within the jurisdiction and can readily be brought to Court, and
(III) 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)?
As the Chief Justice has pointed out, s 34CA applies to both criminal and civil proceedings and can be invoked by plaintiffs, defendants, prosecutors and accused persons. In whatever context s 34CA is invoked, it will be for the party seeking to have the evidence of the out-of-court statement of the protected witness admitted who will have to establish each of the three conditions for the admission of the evidence. In order to use a neutral expression, I will call that party “the moving party”.
The moving party will have to satisfy the Court, in accordance with sub-s (1)(a), that the statement has sufficient probative value to justify its admission; that the protected witness has already been called as a witness in the proceedings (which would be obvious), or is available to be called as a witness in the proceedings; and that, having regard to the capacity of the protected witness to give evidence, the Court should give permission for the protected witness to be cross‑examined. That it will be appropriate for the moving party to satisfy the Court of these matters is a consequence of the structure of s 34CA(1), of the fact that it is that party who is seeking to have admitted into evidence a form of evidence which would not otherwise be admissible, and of the fact that the three conditions precedent can be seen as operating as forms of protection to the person against whom the evidence is being led (the opposite party).
The first question focuses attention on the first and second of the conditions precedent. The role of these two conditions in providing a form of protection to the opposite party is seen in the statement by the Attorney-General in his Second Reading Speech:
The Bill deletes section 34CA and replaces it with a provision that allows a court to admit hearsay evidence of the nature and contents of an out-of-court statement made by a “protected witness” from the person to whom it was given, so long as the protected witness has been called is available to be called as a witness and the court will allow him or her to be cross-examined on the matters arising from the hearsay evidence.[3] [Emphasis added]
[3] Hansard, House of Assembly, 25 October 2007, p1457.
I agree with the reasons of the Chief Justice for concluding that it is the moving party who must call the protected witness. That is an important aspect of the protection contemplated by the legislature for the opposing party. Section 34CA(1)(b) contemplates cross‑examination of the protected witness, and it is not to be expected that the opposite parties are required to secure the attendance of, and call, the witnesses whom they wish to cross‑examine.
The second condition requires that the protected witness have been “called”, or be “available to be called”, as a witness in the proceedings. The first limb of this condition will not usually cause a difficulty, as one party (almost invariably the moving party) will have secured the attendance of the protected witness, and will have led evidence from him or her. However, in construing s 34CA(1)(b) it is important to note what will have been involved in the protected witness giving evidence. The attendance of the witness at court will have been arranged and the Court will have to have been satisfied, in accordance with s 9(1) of the Evidence Act, that the witness was capable of giving either sworn or unsworn evidence. Depending upon the circumstances, the Court may also have had to consider whether an exemption from giving evidence under s 21 of the Evidence Act was appropriate.

The meaning of the expression “available to be called as a witness” is less clear. The word “available” is capable of a variety of meanings depending upon the context in which it is used. One possible meaning is that adopted by the Judge in this case, ie, the witness is available to be called if he or she is within the jurisdiction and can readily be brought to Court.
However, in my opinion, the context of s 34CA(1) and (2), and in particular of s 34CA(1)(b)(ii), indicates that the protected witness is available to be called as a witness in the proceedings if the witness can and will (whether voluntarily or by compulsion) be called by the moving party to give evidence if required to do so. I have said “if required to do so” because there may be some cases in which the opposite party does not require the protected witness to be called. This is what occurred in R v Cox.[4]
[4] [2006] SASC 188 at [79].
A number of features of context point in favour of this construction. First, there is the juxtaposition in s 34CA(1)(b)(i) of “has been called … as a witness in the proceedings” with “or is available to be called as a witness in the proceedings”. In the case of the first limb, the protected witness will have attended at Court and will have given evidence. As already noted, the Court will have satisfied itself that the protected witness was capable of giving either sworn or unsworn evidence, and will have considered, if necessary, the grant of an exemption under s 21. It may also have been necessary, in a rare case, for the Court to consider any other legal impediment to the protected witness giving evidence.
It is not reasonable to suppose that the legislature intended that those matters would be addressed if the witness is called, but be ignored if the witness has not yet been called. It is more reasonable to conclude that the legislature intended that courts would have the same opportunity to address these matters in respect of a witness not yet been called, as it had in those cases in which the witness has been called.
The second feature of context is the protective purpose of the conditions precedent to which I have already referred. The meaning of “available to be called” which I have suggested achieves the protective purpose of the second condition precedent, as it means that the out-of-court statement cannot be used in Court unless the protected witness actually attends as a witness or will attend for that purpose if required to do so.
Thirdly, an evident purpose of the two limbs contained in sub-s (1)(b)(i) is to provide some flexibility in the manner of conduct of the trial. They allow evidence of the out-of-court statement to be given by the person to whom it was made either before or after the protected witness has attended to give evidence, as well as in those cases in which the opposite party does not require the protected witness to attend for cross-examination. It is not reasonable to suppose that the legislature intended that the effect of this flexibility would be to deprive the Court of the opportunity to make the assessment of the protected witness which it would have had if the witness was called first.
There are other indications that a court must know, when considering whether to admit evidence of an out-of-court statement made by a protected witness, that that witness will be called by the moving party if required. Knowledge that the witness will be called provides an essential part of the context in which a court will consider the grant of permission for cross-examination under sub-s (1)(b)(ii). The consideration of the grant of permission to cross-examine is not to be a formulaic or hollow exercise occurring even when it is known that the protected witness will not be called to give evidence by the moving party. Nor is it to be a hypothetical exercise, ie, conducted in circumstances in which it is not known whether or not the protected witness will be called. This is another indication that the expression “available to be called as a witness” means “will be called as a witness if required to do so”.
The considerations which I have just mentioned provide further reasons for the conclusion that it is the moving party who must call the protected witness. Accordingly, parties who wish to lead evidence of an out-of-court statement by a protected witness undertake implicitly, if not explicitly, to the Court that, if required to do so, they are able to, and will, secure the attendance of the protected witness and will call that witness as part of their case. If the moving party is aware of any impediment to the protected witness attending and giving evidence, then that impediment should be communicated to the court.
The enquiry whether protected witnesses are available to be called in the sense described above will involve a consideration of a number of matters. These include whether the witness is alive and is not incapacitated by reason of illness or disability from attending; whether their whereabouts is known; whether their attendance at Court is possible or can be secured; and whether there is any statutory provision or principle of law which would preclude their attending, or having attended, from giving evidence.
It could also be said that the concept of “being available to be called as a witness” embraces notions of both legal and physical competence to give evidence. However, I do not consider that that is what subs (1)(b)(i) contemplates. The majority reasons in R v J, JA contemplate that regard is to be had to the “capacity” of the protected witness to give evidence in relation to the third of the conditions precedent.[5] That construction militates against similar issues having to be addressed in relation to the second of the conditions precedent.
[5] Evidence Act 1929 (SA), s 34CA(1)(b)(ii).
In the present case, the prosecution did not intend to call the protected witness, and said positively that he would not be called. That being so, the protected witness was not “available to be called as a witness in the proceedings”.
Accordingly, I respectfully disagree with the approach taken by the trial Judge. I consider that Question 1 should be answered “No”.
Questions 2, 3, 4 and 5
I agree with the answers proposed by the Chief Justice to the remaining Questions. I also agree with the particular reasons which he has provided for each of those answers, and do not wish to add to them.
KOURAKIS J: This matter comes before the Court pursuant to s 351 of the Criminal Law Consolidation Act 1935. The questions formulated by the Judge raise for consideration the circumstances in which the contents of an out of court statement made by a protected witness can be received to prove the truth of the facts stated therein without calling the protected witness pursuant to s 34CA of the Evidence Act 1939 (the Act). Section 34CA states:
34CA—Statement of protected witness
(1)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 if—
(a)     the court, having regard to the circumstances in which the statement was made and any other relevant factors, is satisfied that the statement has sufficient probative value to justify its admission; and
(b)     —
(i)the protected witness has been called, or is available to be called, as a witness in the proceedings; and
(ii)the court gives permission for the protected witness to be cross-examined on matters arising from the evidence.
(2)A court may only give permission to allow a protected witness to be cross-examined on such matters if satisfied that the cross examination is likely to elicit material of substantial probative value or material that would substantially reduce the credibility of the evidence.
(3)Evidence that is admitted in a trial under this section of the nature and contents of a statement made outside the court by a protected witness may be used to prove the truth of the facts asserted in the statement.
(4)In a criminal trial, the judge must, if evidence of the nature and contents of a statement made outside the court by a protected witness has been admitted but the protected person has not, for some reason, been cross-examined on matters arising from the evidence, warn the jury that the evidence should be scrutinised with particular care because it has not been tested in the usual way.
(5)In this section—
protected witness means—
(a)     a young child; or
(b)     a person who suffers from a mental disability that adversely affects the person's capacity to give a coherent account of the person's experiences or to respond rationally to questions.
The central question raised by this matter is the nature and scope of the cross-examination referred to in s 34CA(1)(b)(ii) by the phrase “permission for the protected witness to be cross-examined on matters arising from the evidence”. The proper construction of s 34CA is beset by what on its face appears to be an unintended ellipses in the drafting of the section. In particular, even though its manifest purpose is to allow the admission of protected statements in limited circumstances without subjecting the protected witness to needless cross-examination, the section appears to make the admissibility of the unsworn evidence contingent on the Court granting permission for that very exercise.
In my view, the statutory conundrums presented by this case stated can be satisfactorily resolved by reading into s 34CA(1)(b)(ii) certain limited qualifications which in effect require s 34CA(1)(b)(i) to be read subject to s 34CA(2), the sub-section which I see as the foundation stone of the section. Construing the provisions of an enactment as a whole so that each provision is subject to the operation of the other is an orthodox canon of construction. The purpose of s 34CA is to allow the admission of out of court statements of complainants without subjecting them to cross-examination unless it is likely to substantially detract from the probative weight of the statement. The qualifications which I would read into s 34CA ensure that the section operates consistently with that manifest purpose of the section and are implied by the text, context and purpose of the provision.
I set out below s 34CA of the Act with the implications I would draw emboldened within the body of the section:
34CA—Statement of protected witness
(1)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 if—
(a)     the court, having regard to the circumstances in which the statement was made and any other relevant factors, is satisfied that the statement has sufficient probative value to justify its admission; and
(b)     —
(i)the protected witness has been called, or, if the Court gives permission for him or her to be cross-examined, is available to be called, as a witness in the proceedings; and
(ii)where the prohibition in sub-section (2) does not apply, the court, applying the provisions of s 9 of this Act, gives permission for the protected witness to be cross-examined on matters arising from the evidence.
(2)A court may only give permission to allow a protected witness to be cross-examined on such matters if satisfied that the cross examination is likely to elicit material of substantial probative value or material that would substantially reduce the credibility of the evidence.
(3)Evidence that is admitted in a trial under this section of the nature and contents of a statement made outside the court by a protected witness may be used to prove the truth of the facts asserted in the statement.
(4)In a criminal trial, the judge must, if evidence of the nature and contents of a statement made outside the court by a protected witness has been admitted but the protected person has not, for some reason, been cross-examined on matters arising from the evidence, warn the jury that the evidence should be scrutinised with particular care because it has not been tested in the usual way.
(5)In this section—
protected witness means—
(a)     a young child; or
(b)     a person who suffers from a mental disability that adversely affects the person's capacity to give a coherent account of the person's experiences or to respond rationally to questions.
Section 9 of the Act, which deals with unsworn evidence, states:
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)     In determining a question under this section, the judge is not bound by the rules of evidence, but may inform himself or herself as the judge thinks fit.
(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.
(5)     A justice to whom it appears that a person who desires to lay a complaint or information does not have sufficient understanding of the obligation to be truthful entailed in giving sworn evidence may ascertain by inquiry the subject matter of the complaint or information and reduce it into the appropriate form, and any action or proceedings may be taken on the complaint or information in all respects as if the complainant or informant had deposed to the truth of the contents on oath or affirmation.
In these reasons, I shall refer to statements tendered pursuant to s 34CA as protected statements.
The only cross-examination which may be permitted pursuant to s 34CA(2) is cross-examination which is likely to elicit material of substantial probative value or material that would substantially reduce the credibility of the evidence. The evidence referred to in s 34CA(2) is the “evidence of the nature and contents” of the protected statement which may be admitted pursuant to s 34CA(1). It is the credibility of the contents of the protected statement, and not the credibility of the witness who gives the hearsay account of the protected statement, that must be capable of impeachment by cross-examination. I shall refer to the types of permissible cross-examination as effective cross-examination.
I commence by observing that, but for the implied qualification which I would read into s 34CA(1)(b)(i), the condition of admissibility the section imposes would be a cumulative and universal requirement. I shall refer to that condition as the cross-examination condition. The cross-examination condition would, if unqualified, exclude the admission of a protected statement even where the Court is prohibited by s 34CA(2) from granting permission to cross-examin the protected witness precisely because that very cross-examination is unlikely to be effective. Paradoxically, on a literal construction of s 34CA, if the Court were to form the view that the protected statement had sufficient probative value to justify its admission and that no cross-examination was likely to detract from the probative weight, the Court is prohibited from giving permission to cross-examine and, by reason of its unimpeachable probative weight, the protected statement is rendered inadmissible.
In R v J, JA,[6] Duggan J summarised the mischief towards which s 34CA was directed. There his Honour said:
[11]Section 34CA in its present form was introduced into the Act in 2008 when the Statutes Amendments (Evidence and Procedure) Act 2008 (SA) came into effect. The legislation was intended to overcome the difficulties encountered by young children and persons suffering from a mental disability in giving evidence in the traditional manner. These difficulties in the case of children were discussed in the report of the Australian Law Reform Commission ‘Seen and Heard: Priority for Children in the Legal Process’ (1997). Recommendation 102 of the Report stated:
Evidence of a child’s hearsay statements regarding the facts in issue should be admissible to prove the facts in issue in any civil or criminal case involving child abuse allegations, where admission of the hearsay statement is necessary and the out-of-court statement is reasonably reliable. A person may not be convicted solely on the evidence of one hearsay statement admitted under this exception to the rule against hearsay.
The recommendation in the last sentence was not incorporated into the Act, but the general recommendation as to the admissibility of material of this nature was the inspiration for s 34CA.
[12]When describing the purpose of a broadly similar provision in s 93A of the Evidence Act 1977 (Qld) in Gately v The Queen, Hayne J said:
The section makes a special rule for children and intellectually impaired persons. That rule is made for the evident purpose of preserving the integrity of the evidence of such persons, by allowing evidence of an account of relevant events that was made before, sometimes well before, the trial of the relevant proceeding. But if the party relying on the account of a child or intellectually impaired person is able to and wishes to have that person give their account orally, as well as in the form of the statement that has previously been made, there is no reason to prevent that being done.
In the same case Heydon J said:
Section 93A is dealing with a narrow field, and with peculiar problems -- those concerned with evidence from children and intellectually impaired persons. The legislation rests on the assumption that an account given before the trial ‘can be of more probative value than present testimony, particularly if the present memory is faulty or it is difficult for the witness to articulate it in court’: R v F (CC) [1997] 3 SCR 1183 at 1200 [37]. The legislative judgment is that it is more important to have before the trier of fact a clear statement from these types of witnesses, even if it is in an unsworn document, than to preserve the principle of orality in its full integrity.[7] (footnotes omitted)
[6] (2009) 105 SASR 563.
[7] R v J, JA (2009) 105 SASR 563 at 567-8 [11]-[12].
Duggan J later described the literal construction as “defeating the entire purpose of the legislation” in this way:
[42]A further and more fundamental problem would arise if the defence were unable to persuade the court at that stage that the cross-examination would be likely to elicit material of the description referred to in s 34CA(2). If this were so then, on the alternative construction, the court could not give permission in advance for the potential witness to be cross-examined on the statement with the consequence that the evidence of the statement could not be admitted. The prosecution evidence of the statement would not be admissible because the cross-examination would not comply with the requirements of s 34CA(2). This would defeat the entire purpose of the legislation.[8]
[8] R v J, JA (2009) 105 SASR 563 at 573 [42].
The Bill to amend s 34CA was first introduced into the House of Assembly in February 2007. In the original form of the Bill it was not a condition of the admissibility of out of court statements that the Court permit cross-examination of the complainant. The Bill was later amended. When the Attorney-General introduced the amended Bill in October 2007 there was no indication that any significant change to that position was intended or contemplated. Indeed, the second reading speech appears to contemplate the admission of statements without any cross-examination in circumstances where there was no reason to apprehend that the credibility of the complainant would be at all affected by cross-examination. The passage of the Bill strongly suggests that the absurd consequence of a literal construction of the cross-examination condition was unintended.

In R v J, JA, White J summarised the extraneous material which discloses the purpose of the amendments:
[164]Section 34CA in its present form was introduced by s 16 of the Statutes Amendment (Evidence and Procedure) Act 2008 (SA). It replaced the form of s 34CA which had been enacted by the Evidence Act Amendment Act 1988 (SA). The former s 34CA permitted a court, in the exercise of a discretion, to admit evidence of the nature and contents of a complaint of a sexual offence made by a young child from the person to whom the child had made the complaint. In R v Corkin it was held that the former s 34CA did not enlarge the ambit of admissible complaints but instead extended the purpose for which the evidence may be led, including by allowing the evidence to be evidence of the facts stated in the complaint.
[165]The present s 34CA is not limited to evidence of complaint in the common law sense. Providing that the three prerequisites for admission are established, a court may admit evidence of an out-of-court statement made by a protected witness of any character. Section 34CA(3) makes it plain that the evidence of the nature and contents of the out-of-court statement by a protected witness may be used to prove the truth of the facts contained in the statement.
[166]In his Second Reading Speech when introducing the Statutes Amendment (Evidence and Procedure) Bill 2007 (SA) into the House of Assembly on 25 October 2007, the Attorney-General referred to the limited use made in practice of the former s 34CA:
Unfortunately, section 34CA is rarely used. The courts have held that if a young child ‘cannot remember making [the complaint] or is inarticulate in the witness box’, he or she is not, for the purpose of this section, available for cross-examination, and the complaint cannot be admitted into evidence.
The words quoted by the Attorney-General in this passage are taken from the judgment of King CJ in R v Corkin. In that passage, King CJ was not suggesting that a child who could not remember making the statement, or who was inarticulate in the witness box, would not be ‘available to be called as a witness’. Instead he was suggesting that the absence of memory, or inarticulateness, would be a reason for a judge to exercise caution before exercising the discretion to admit evidence of the nature and contents of the statement.
[167]The Attorney-General identified the problem which the new s 34CA was intended to remedy as follows:
Without [a] child’s evidence, [a] charge may be impossible or difficult to prove. By the time of trial, a very young child may have forgotten the incident or, if it was traumatic, therapeutically encouraged to forget it. In these cases, although the child’s out-of-court statement immediately after the event will be the best record of the child's memory of it, that statement cannot be admitted into evidence, and the very inability to remember the events that prevents the child’s out-of-court statement being admitted into evidence will also prevent the child giving evidence directly. In these circumstances, a court determining a charge of abuse of a young child may never hear the child’s account of it. Indeed, these cases may not even come to court.
[168]The Attorney-General then described the intended operation of the present s 34CA in the following terms:
The Bill deletes section 34CA and replaces it with a provision that allows a court to admit hearsay evidence of the nature and contents of an out-of-court statement made by a ‘protected witness’ from the person to whom it was given, so long as the protected witness has been called or is available to be called as a witness and the court will allow him or her to be cross-examined on matters arising from the hearsay evidence. A protected witness is defined as a young child or a person with a mental disability that adversely affects his or her ability to communicate effectively with the court. The court may permit such cross-examination only if satisfied that it will elicit material of substantive probative value or material that would substantially reduce the credibility of the hearsay evidence. The provision will therefore sometimes allow evidence of what protected witnesses have said out-of-court to be admitted even though the protected witness has not been questioned about it in court. Whenever this happens, the court must warn the jury that this evidence should be scrutinised with particular care because it has not been tested in the usual way.
The aim of this provision is to make section 34CA work as originally intended, so that the court has the best possible available evidence before it, even if that is hearsay evidence. It does not, of course, derogate from any discretion the court may have to exclude evidence that is admissible in this way.[9] (emphasis in original, footnotes omitted)
[9] R v J, JA (2009) 105 SASR 563 at 595-6 [164]-[168].
The proper construction of the phrase “permission for the protected witness to be cross-examined” and the operation of the cross-examination condition were not directly in issue in R v J, JA. In that case, the protected witness had been called before the tender of the protected statement and was therefore available to be, and was in fact, cross-examined on it. The observations made by the Court in R v J, JA are, for that reason, not integral to the decision in that case.
The majority construed s 34CA in a way which obviated some of the contradictions it presents on its face. Duggan J, with whom Nyland J agreed, held that the permission referred to in s 34CA(1)(b)(ii) referred only to cross-examination on the complainant’s capacity to give admissible, in-court evidence and that the cross-examination dealt with in s 34CA(2) was cross-examination about the subject matter of the unsworn evidence itself. That construction, which recognises the implication which I would draw of a reference to s 9 in s 34CA(1)(b)(ii), appears in the following paragraph from the reasons of Duggan J:
[44]In my view s 34CA(1)(b)(ii) contemplates that the court can give permission for the protected witness to be cross-examined after having regard to the capacity of that person to give evidence. However, when it comes to the actual cross-examination, the court must ensure that the questions to be asked comply with the requirements of s 34CA(2). The court is required to ensure compliance with s 34CA(2) and may take steps to do so both before the commencement of the cross-examination and while it proceeded. The potential awkwardness of this exercise in some cases is obvious, but that is the effect of the legislation.[10]
[10] R v J, JA (2009) 105 SASR 563 at 574 [44].
On the other hand, White J held that the cross-examination permission, which was a condition of admissibility of the protected statement pursuant to s 34CA(1)(b)(ii), was the same cross-examination which was the subject of s 34CA(2). In the opinion of White J, the only cross-examination which was permissible was cross-examination which the protected witness could cope with. White J said:
[173]An alternative construction of s 34CA is to understand subs (2) as permitting a court to grant permission for the protected witness to be cross-examined only if it is satisfied that the capacity of the witness is such that a cross-examination is likely to elicit useful material. On this construction, the inquiry when a court is considering whether the discretion to admit the out-of-court statement has been enlivened would be about the ability of the protected witness to be cross-examined, and not about the prospect of cross-examination eliciting useful material.[11] (emphasis in original)
[11] R v J, JA (2009) 105 SASR 563 at 597 [173].
In my view, the text of s 34CA does not permit the two-staged approach to the grant of permission taken by the majority. On the other hand, the construction taken by White J attributes a very limited, and what appears to me to be an unlikely, purpose to s 34CA(2). I explain my reasons for these views further below. For now I wish to emphasise that, on either approach articulated in R v J, JA, the unsworn evidence of a complainant can only be admitted without subjecting him or her to ineffective cross-examination about its context where the complainant is of, or has attained, sufficient intellectual capacity to give admissible evidence or to undergo cross-examination. The section so construed therefore still has the absurd result that evidence of very probative protected statements cannot be adduced where the complainant is not able to give admissible evidence or to withstand cross-examination even though, if cross-examination were to be permitted, it would be ineffective and the Court is therefore prohibited from allowing it.
The facts of this case serve as a good illustration of the types of protected statements which Parliament probably intended to be admitted without cross-examination but which are inadmissible on either of the constructions propounded in R v J, JA. The complainant in this case was three years of age when his mother found him fondling his penis. She asked him what he was doing and he replied that “this is what [the appellant] does to me”. It is inherently improbable that a response like that could be intentionally fabricated or even imagined by a three year old child. The probative value of that spontaneous response, which arises from the circumstances in which the protected statement was made, is very great indeed. Moreover, no cross-examination of the complainant could possibly diminish that weight. If a trial were to take place soon after the alleged offence, a child of just over three is unlikely to satisfy the requirements of s 9 of the Act. Nor would the test proposed by White J in R v J, JA allow for the cross-examination of a child of such tender years. The effect of both a literal construction and the construction given by both the majority and White J in R v J, JA of the cross-examination condition of s 34CA(1) would therefore be to exclude evidence of protected statements. That result would ensue even though the protected statements fell squarely with the purpose of the provision; a result which is completely contrary to the purpose of the section.
I now turn to the particular matters which support my construction of the section. In my view, the permission referred to in the cross-examination condition of s 34CA(1)(b)(ii) is the same permission which the Court may give pursuant to s 34CA(2) if the cross-examination is likely to be effective. I would respectfully adopt the following observations made by White J in R v J, JA:
[172]Section 34CA seems, by its language and structure, to contemplate only the one grant of permission. Subsection (1)(b)(ii) requires that there be a grant of permission and subs (2) is naturally to be understood as a qualification on the exercise of the discretion involved in the grant of that permission. In this respect, it is to be noted that subs (2) proceeds on the premise that permission by the court for the protected witness to be cross-examined will be required. As a party affected by the evidence would, under ordinary principles, be entitled to cross-examine (that is, without having first to seek permission to do so), it is difficult to identify the occasion when permission is required to which subs (2) does refer if it is not the occasion contemplated by subs (1)(b)(ii). The reference to ‘such matters’ in subs (2) is another indication that it is to work in conjunction with subs (1)(b)(ii). Further, there is an apparent incongruity in the court being required at the one stage to decide that permission to cross-examine on matters arising from the evidence of the out-of-court statement should be granted but then later (and after the evidence has been admitted) having to make a decision which could have the effect of reversing the effect of the first decision. Further again, I am unable to identify in s 34CA(1) and (2) an indication that a two-stage permission process is contemplated.[12]
[12] R v J, JA (2009) 105 SASR 563 at 597 [172].
The terms of s 34CA(2) mirror the words of s 34CA(1)(b)(ii). On a natural reading of the sections, the permission referred to is the same. Moreover, the words “such matters” in s 34CA(2) can only refer to the “matters arising from the evidence” specified in s 34CA(b)(ii). In my view, s 34CA(2) is a condition to the exercise of the power in s 34CA(1)(b)(ii). That is to say, the Court cannot grant permission pursuant to s 34CA(1)(b)(ii) unless it is satisfied, pursuant to s 34CA(2), that the cross-examination would substantially reduce the credibility of the evidence. However, it is also a condition of the grant of permission pursuant to s 34CA(1)(b)(ii) that the protected witness is competent to give evidence. It would be futile to give permission to cross-examine a protected witness on the ground that the cross-examination is likely to reduce the credibility of the protected statement if that cross-examination cannot actually be conducted because the protected witness is not competent to give evidence. The Court would be bound to refuse permission to cross-examine because the protected witness is not competent and not because it is prohibited by s 34CA(2). In those circumstances, the grant of permission to cross-examine is a condition of admissibility and the failure to permit it because of the incompetence of the protected witness renders the protected statement inadmissible.
I would hold that, on a proper construction of its terms, s 34CA provides for the admissibility of a protected statement on the condition that, if its probative value is susceptible to effective cross-examination, the protected witness is both capable of giving evidence and is made available to be cross-examined. Permission to cross-examine cannot then be given unless the protected witness is competent to give evidence and unless the cross-examination will be limited to that which is likely to be effective. The difference between the construction I would adopt and the different views of the section expressed in R v J, JA can now be shortly stated.
My construction is close to that which was adopted by the majority in R v J, JA. However, by recognising that the condition of admissibility in s 34CA(1)(b)(ii) only applies where the Court is not prohibited from allowing cross-examination by s 34CA(2), it is possible to proceed on the basis that the cross-examination referred to in both sub-sections is the same and that permission can only be given in cases in which both the protected witness is competent and the cross-examination will be effective. The construction allows the admission of a protected statement, even if the protected witness is not competent or not made available, in cases where s 34CA(2) prohibits cross-examination in any event because it is unlikely to be effective.
My construction differs from that of White J in R v J, JA because, having restricted the circumstances in which the cross-examination condition operates, it is possible to allow s 34CA(2) to do the work which it is more obviously designed to do; that is, to ensure that a protected witness is only cross-examined when, and only to the extent that, the cross-examination is likely to reduce the credibility of the protected statement.
On the other hand, if the Court were satisfied that the cross-examination would be effective it would, in my view, give permission for the cross-examination to occur in most cases. However, in some, probably rare, cases in which the prohibition does not apply, the Court may still refuse permission to cross-examine in the interests of the welfare of the protected witness, although, if that permission is refused, the protected statement will not be admissible. To that limited extent, the Court may exercise its discretion to safeguard the welfare of a protected witness but only in cases in which it has already found that the cross-examination is likely to be effective and therefore not prohibited by s 34CA(2).
I would reject the submission of the Solicitor-General that, in some way, permission can be given pursuant to s 34CA(1) to cross-examine a witness who would not qualify to give evidence under s 9 of the Act. The answers given to any such cross-examination could not be treated as evidence and I cannot conceive of any other meaningful status the answers could have.
On my construction, s 34CA would operate in the following way in cases in which the protected statement has sufficient probative weight to justify its admission. If the Court is not satisfied that cross-examination would be effective, the grant of permission to cross-examine is precluded by s 34CA(2) and, for that reason, the grant of permission pursuant to s 34CA(1)(b)(ii) is not a pre-condition to the admission of the protected statement. If the Court is satisfied that the cross-examination is likely to be effective, and the complainant meets the requirements of s 9 of the Act for giving evidence on oath or giving unsworn evidence, the Court will usually admit the protected statement and grant permission for the cross-examination. In that circumstance, the protected statement will be admitted and the complainant cross-examined. However, the protected statement cannot be admitted if the complainant would not be permitted to give evidence pursuant to the provisions of s 9 of the Act or the Court thinks for some other reason that the protected witness should not be subjected to cross-examination even though the Court is satisfied that cross-examination is likely to substantially reduce the credibility of the evidence of the protected statement.
As a matter of procedure, the Judge will first need to determine whether the protected statement has substantial probative value. The next question is whether cross-examination is likely to elicit material which would substantially reduce that probative value of the protected statement or the credibility of the complainant. If the Court determines that the cross-examination is likely to be effective, it will generally grant permission subject to its satisfaction that the complainant is competent to give evidence in accordance with s 9 of the Act. Plainly, if the complainant has already given evidence, that enquiry will have already concluded that the protected witness is competent and permission to cross-examine will then be given. If a complainant has not already given evidence, the Court will have to undertake an enquiry in accordance with s 9 of the Act and will, pursuant to that section, seek an indication that the protected witness will tell the truth. If that indication is given, the Court will give permission to cross-examine. Having given permission, the protected statement will become admissible.
However, as I have already observed, the Court’s power to control the cross-examination conferred by s 34CA(2) is a continuing one. The permission to cross-examine having been granted, it can also be terminated if the cross-examination extends beyond the limits of that which is likely to elicit material substantially affecting the probative value of the evidence or the credibility of the complainant. If the Court is satisfied that the protected statement has substantial probative weight, but is not satisfied that the cross-examination is likely to be effective, then the statement will be admitted without any cross-examination whether or not the protected witness is competent to give evidence.
In my view, the phrase “available to be cross-examined” means that the protected witness can and will be presented for cross-examination by the party adducing the evidence of the protected statement. In accordance with ordinary trial procedures, the party relying on the protected statement would be expected to make the protected witness available for cross-examination in the event that permission to cross-examine was granted. For several reasons, I think that it is unlikely that a protected witness is “available for cross-examination” merely because it is possible for the party against whom the protected statement is admitted to subpoena him or her. First, that construction would result in practical difficulties in securing the attendance of the protected witness within the time allowed for the trial; sufficient notice that the protected statement will be tendered may not always be given and even then there may still be obstacles to arranging the witness’s attendance. Secondly, the cross-examination must, I think, be treated as part of the case of the party which adduces the protected statement.

On the other hand, the availability condition does not require the party relying on a protected statement to make the protected witness available even if the opposing party does not wish to cross-examine him or her, or if a Judge is prohibited from giving permission to cross-examine by s 34CA(2). It is difficult to imagine a result more repugnant to the purpose of s 34CA than the rejection of a very probative protected statement in cases in which the Court has refused permission to cross-examine, because the evidence could not possibly be impeached by cross-examination, on the ground that the prosecutor had disclosed his or her intention not to call the protected witness if the Court had found otherwise. To adopt such a construction would destroy much of the efficacy a provision which was enacted precisely to protect complainants from the forensic trauma of ineffective and unnecessary cross-examination.
In this case, the prosecution has intimated that it will not call the complainant to give evidence nor submit him to cross-examination. The prosecution decision to put the welfare of the complainant ahead of the public interest in prosecution has revealed yet a further incongruity in the application of the section if it is not construed subject to the organising principle that ineffective cross-examination is prohibited. Given the manifest purpose of s 34CA, which is to allow the admission of protected statements of sufficient probative value without subjecting the protected witness to needless cross-examination, that result can truly be described as absurd. By absurd, I mean absurdity in the face of the provision and repugnance with the provision as a whole.[13]
[13] The President &c. of the Shire of Arapiles v The Board of Land and Works (1904) 1 CLR 679 at 687 per Griffith CJ; New South Wales Crime Commission v Kelly (2003) 58 NSWLR 71 at 76 [20] per Sheller JA.
Limits on statutory construction
I acknowledge that I have, in effect, read words of qualification into s 34CA(1)(b)(i) and (ii). However, the qualification results from reading that sub-paragraph subject to s 34CA(2). In a sense, each provision of a statutory instrument must be read subject to the other provisions so that the statutory instrument is read as a coherent whole. The qualification I have implied is strongly supported by the structure and purpose of s 34CA.
The golden rule of construction has long recognised that the ordinary sense of the words of a statute may be modified so as to avoid absurdity and inconsistency.[14] Moreover, as I have earlier observed, it is reasonably clear that the awkwardness of the present provision is the result of inadvertence in the drafting of an amendment to the Bill which was first introduced. It is in such cases that the need to modify the literal meaning of a statute is most acute.[15]
[14] Grey v Pearson (1857) 6 HLC 61 at 106 per Lord Wensleydale; Broken Hill South Ltd (Public Officer) v The Commissioner of Taxation (NSW) (1937) 56 CLR 337 at 371 per Dixon J.
[15] Grey v Pearson (1857) 6 HLC 61 at 106 per Lord Wensleydale.
It is accepted that the modification of the meaning of a statute may take the effect of adding words.[16] In Inco Europe Ltd v First Choice Distribution (a firm),[17] Lord Nicholls of Birkenhead said:
I freely acknowledge that this interpretation … involves reading words into the paragraph. It has long been established that the role of the courts in construing legislation is not confined to resolving ambiguities in statutory language. The court must be able to correct obvious drafting errors. In suitable cases, in discharging its interpretative function the court will add words, or omit words or substitute words.[18]
[16] Alder v George [1964] 2 QB 7 at 9 per Lord Parker CJ.
[17] [2000] 1 WLR 586.
[18] Inco Europe Ltd v First Choice Distribution (a firm) [2000] 1 WLR 586 at 592C-D. See also Tokyo Mart Pty Ltd v Campbell (1988) 15 NSWLR 275 at 283B per Mahoney JA.
In Wentworth Securities Ltd v Jones,[19] Lord Diplock explained that reading words into an Act is only possible if certain conditions are satisfied:
My Lords, I am not reluctant to adopt a purposive construction where to apply a literal meaning of the legislative language would lead to results which would clearly defeat the purposes of the Act. But in doing so the task on which a court of justice is engaged remains one of construction; even where this involves reading into the Act words which are not expressly included in it. Kammins Ballrooms Co Ltd v Zenith Investments (Torquay) Ltd [1971] AC 850 provides an instance of this; but in that case the three conditions that must be fulfilled in order to justify this course were satisfied. First, it was possible to determine from a consideration of the provisions of the Act read as a whole precisely what the mischief was that it was the purpose of the Act to remedy; secondly, it was apparent that the draftsmen and Parliament had by inadvertence overlooked, and so omitted to deal with, an eventuality that required to be dealt with if the purpose of the Act was to be achieved; and thirdly, it was possible to state with certainty what were the additional words that would have been inserted by the draftsmen and approved by Parliament had their attention been drawn to the omission before the Bill passed into law. Unless the third condition is fulfilled any attempt by a court of justice to repair the omission in the Act cannot be justified as an exercise of its jurisdiction to determine what is the meaning of a written law which Parliament has passed. Such an attempt crosses the boundary between construction and legislation. It becomes a usurpation of a function which under the constitution of this country is vested in the legislature to the exclusion of the courts.[20]
[19] [1980] AC 74.
[20] Wentworth Securities Ltd and Another v Jones [1980] AC 74 at 105E-106A.
Lord Diplock’s approach was repeated by McHugh JA in Bermingham v Corrective Services Commission of New South Wales[21] and has been described as the accepted approach that a court should take to reading words into an Act.[22]
[21] (1988) 15 NSWLR 292 at 302D-E.
[22] James Hardie & Co Pty Ltd v Seltsam Pty Ltd (1998) 196 CLR 53 at 81-2 [73] per Kirby J.
In R v Young,[23] the Court declined to accept a submission that it should give effect to the underlying purpose of several sections of the Evidence Act 1995 (NSW) by reading words into the Act. Spigelman CJ held:
[5]The proposition that a court can introduce words into an Act of Parliament offends a fundamental principle of our constitutional law. It is no part of the function of any judge to amend legislation. The task of the courts is to determine what Parliament meant by the words it used, not to determine what Parliament intended to say...[24]
[23] (1999) 46 NSWLR 681.
[24] R v Young (1999) 46 NSWLR 681 at 686 [5].
However, Spigelman CJ accepted that:
[6]In order to construe the words actually used by Parliament, it is sometimes necessary to give them an effect as if they contained additional words. This is not, however, to introduce words into the Act. This involves the construction of the words actually used.
…
[12] The Court may construe words in the statute to apply to a particular situation or to operate in a particular way, even if the words used would not, on a literal construction, so apply or operate. However, the words which actually appear in the statute must be reasonably open to such a construction. Construction must be text based.[25]
[25] R v Young (1999) 46 NSWLR 681 at 686 [6], 687 [12].
In my view, the construction of s 34CA of the Act which I have proffered does not go beyond the judicial function as described by Spigelman CJ. It is text based, and effectuates Parliament’s manifest purpose. My construction does no more than determine that the cross-examination condition applies only “to a particular situation”.[26]
[26] R v Young (1999) 46 NSWLR 681 at 687 [12].
The scope of the judicial function of statutory construction is, in my respectful opinion, correctly described in the following passage from the reasons of Kaye J in Director of Consumer Affairs Victoria v Glenvill Pty Ltd:[27]
[21]Thus, where the literal construction of the words of a statutory provision might undermine or nullify the statute, the Court will adopt a construction of those words which renders them workable. That approach is described in the authorities by reference to the Latin maxim ut res valeat quam pereat (‘it is better for a thing to have effect than to be made void’). One example of such a proposition occurs where a statutory provision assumes the existence of a power or obligation, for which no express provision is made. In such a case, the courts will construe the statute, so as to contain that implied power or obligation. In an appropriate case, the Court will treat particular words as surplusage, in order to give effect to the balance of the statutory provision. Where necessary, a court will avoid an absurd or extraordinary result by ‘amending’ a phrase in a statutory provision. Thus in Adler v George, the Court of Queen’s Bench, in a penal provision, construed the phrase ‘in the vicinity’ to mean ‘in or in the vicinity’. In an extreme case, a court may construe a word or phrase of a statute contrary to its literal meaning, if it is manifest that the particular word or phrase was selected by mistake by the draftsman. A classic example of that proposition is the decision of the majority of the High Court in Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation.
[22]… Where necessary, a court will construe a statutory provision to be subject to a qualification, so that the provision can be made workable and given sensible meaning.[28] (footnotes omitted)
[27] [2009] VSC 76.
[28] Director of Consumer Affairs Victoria v Glenvill Pty Ltd [2009] VSC 76 at [21]-[22].
I accept that the Court must be more cautious about reading words into criminal statutes, but on occasion it may still be necessary to do so. The discovery of ambiguity in a penal statute does not necessarily demand an interpretation favouring the defendant. It is only where the purposive approach fails to provide an unambiguous interpretation of a provision that a penal statute should be interpreted in favour of the defendant. As Gibbs J has said:
The rule formerly accepted, that statutes creating offences are to be strictly construed, has lost much of its importance in modern times. In determining the meaning of a penal statute the ordinary rules of construction must be applied, but if the language of the statute remains ambiguous or doubtful the ambiguity or doubt may be resoled in favour of the subject by refusing to extend the category of criminal offences. … The rule is perhaps one of last resort.[29]
[29] Beckwith v The Queen (1976) 135 CLR 569 at 576.
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.