R v BYERLEY (No 1) - [2010] SADC 32

District Court of South Australia
(Criminal)
R v BYERLEY (No 1)
[2010] SADC 32
Reasons for Ruling of His Honour Judge Muecke (ex tempore)
10 March 2010
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE
Application to admit evidence of statements made outside the court by a protected witness from persons to whom the statements were made - application granted.
Evidence Act, 1929 s34CA, referred to.
R v J, JA [2009] SASC 401; R v Joyce (2005) 53 A Crim R 241, considered.

R v BYERLEY (No 1)
[2010] SADC 32

I rule, pursuant to s34CA of the Evidence Act, to admit as evidence at the accused’s trial the nature and contents of statements made by JF to KF referred to in the last full paragraph on p.5, in the last paragraph on p.6 and in the first half of p.7 of KF’s Statement dated 2 December 2008, the nature and contents of statements made by JF to KF referred to in the first full paragraph on p.2 of KF’s Statement dated 19 August 2009, and the nature and contents of statements made by JF to Olivia Kay on 10 and 17 November 2008. These statements will be admitted as evidence under s34CA of the Evidence Act and may be used to prove the truth of the facts asserted in them and each of them.
I am satisfied that JF is a protected witness; that the statements referred to have sufficient probative value to justify their admission; that JF is available to be called as a witness in the trial of the accused; and that JF has the capacity to give evidence, thus meeting the pre-condition requirements in s34CA(1)(a) and (b) of the Evidence Act and, in respect of his capacity to give evidence, I apply the interpretation of s34CA(1)(b)(ii) as it was construed by the Court of Criminal Appeal in R v J, JA [2009] SASC 401, in particular at para.44.
I am satisfied that the probative value of the statements is sufficient to justify their admission. I rely on the matters referred to by Mr Press, of counsel for the DPP. In particular I rely on the spontaneity of the statements made by JF to his mother and the circumstances in which they were made, including their contemporaneity with the alleged assault, and on the circumstances in which the statements were made by JF to Olivia Kay on the videos relevant to sexual conduct of the accused. I consider that one such statement in particular was spontaneously made by JF (p.23.1), and that in respect of others, they were made in response to questions by Ms Kay that were not impermissibly leading. (refer R v Joyce (2005) 53 A Crim R 241)
I am satisfied that JF is available to be called as a witness by either side, in the sense that he is within the jurisdiction and can readily be brought to court.
I am satisfied that JF has the capacity to give evidence, in the sense that he is able to speak coherently, he is able to understand questions asked of him and he is able to respond to questions in an appropriate and meaningful way. I considered that this is seen in the statements he made to his mother and to Ms Kay. I therefore grant permission for JF to be cross-examined pursuant to s 34CA(1)(b)(ii).
I do not consider that s9 of the Evidence Act, and the procedures made under it, necessarily have application in my coming to the conclusions I have just summarised. I have not found it necessary for me to speak to JF in order to make these findings and this ruling.
In coming to these conclusions I have had regard to at least the following matters.
First, the aim of the parliament expressed through the Hon. the Attorney‑General in his Second Reading Speech on 25 October 2007 before s34CA was enacted. The Hon. the Attorney-General said this:
The aim (of an existing s34CA of the Evidence Act) was to facilitate the proof of sexual offenders against children. Section 34CA allows a court hearing a charge of a sexual offence against a young child to admit a record of the child’s complaint about the alleged offence to another person, out of court, to prove the truth of the facts stated in the complaint without the child having to give that evidence at trial, so long as the child is available for cross-examination.
Unfortunately, (existing) 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. Without that child’s evidence, the charge may be impossible or difficult to prove. By the time of the 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.
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 the 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 would 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 fact that the Hon. The Attorney-General incorrectly cited what “the courts have held” in the second paragraph above does not diminish the points he made thereafter (see R v J, JA, at para.166).
The second matter relates to certain features of s34CA itself. That section uses the concept of a “protected witness”. The previous s34CA, and other sections of the Evidence Act, refer to “vulnerable witnesses”. S34CA, however, refers to and defines a protected witness as meaning “a young child; or 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 word “capacity” in that definition must qualify both “to give a coherent account” and “to respond rationally”.
I note that the definition of “protected witness”, insofar as it relates to a person who suffers from a mental disability (which includes an intellectual disability), was enacted in a slightly different way than the form in which the bill was apparently introduced by the Hon. the Attorney-General. The words used in the description in the Evidence Act are “capacity to give a coherent account of the person’s experiences or to respond rationally to questions”. The second reading speech, however, refers to a protected witness as being 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”.
It seems to me the definition which was adopted and passed by the parliament, envisages that a witness may not be able to give any evidence if that witness has a mental disability which prevents that person from having a capacity to give a coherent account or to respond rationally to questions.
Sub-s(4) of s34CA also envisages that a protected person may not be cross‑examined at all before a fact finder (including a jury) and the legislature has required that a specific warning to be given to the fact finder where that occurs.
In my view, the other parts of s 34CA must be construed with the definition section and sub-s(4) in mind.
Thirdly, it seems clear to me that as a result of the above the provisions of s34CA envisage and countenance that what JF said to his mother and to Ms Kay could be used by a fact finder at trial to prove the truth of the facts asserted to them, and that JF might not appear in court and be cross-examined at all in front of the fact finder.
Fourthly, JF was not quite four years old at the time he spoke to his mother and to Ms Kay, and is not much more than five years old now.
I have construed s34CA and the provisions of it that I am required to consider for this ruling, having regard to the matters to which I have referred. They involve, in some respects, concepts with which I am not familiar after nearly a working lifetime of familiarity with rules of evidence prohibiting a fact finder from hearing hearsay evidence, and the traditional reasons for those rules. I am conscious that the Legislature now envisages that hearsay evidence can be admitted in certain circumstances, and can be taken into account by fact-finder against the interests of an accused person. And this can occur where the person who made the statements is the only person, other than the accused, who allegedly was present when the events described by him occurred, and that person has not been examined in court at all either by way of examination‑in‑chief or in cross-examination.
None of this suggests, however, that I should not take into account the need to accord fairness to the accused. I have considered in this ruling what is fair to the accused, and I will again do so in the directions I give to the jury when I ultimately sum up the case to the jury.
In light of findings to which I have referred, I will admit the statements in the exercise of my discretion.
Addendum
Since making this ruling and delivering reasons, and since editing them after I decided to reserve for consideration and determination of the Full Court relevant questions on s34CA, I have considered the Parliamentary Debates on the legislation in question that followed the Hon. the Attorney-General’s second reading speech.
As to the definition of “protected witness” the only reference I could find is at p.2252 on 27 February 2008 in the committee stages in the House of Assembly. There the Hon. the Attorney-General referred to a protected witness as being “a young child or a person whose mental disability severely affects the person’s capacity to give a coherent account of his or her experiences or to respond rationally to questions”. These words appear in the Act, but they are not the words used by the Hon. the Attorney-General in his second reading speech.