R v Byerley (No 2)
[2010] SADC 33
•10 March 2010
District Court of South Australia
(Criminal)
R v BYERLEY (No 2)
[2010] SADC 33
Reasons for Ruling of His Honour Judge Muecke (ex tempore)
10 March 2010
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE
Permission sought by accused's counsel to cross-examine a protected witness pursuant to s34CA of the Evidence Act, 1929 - permission refused.
Evidence Act, 1929 s34CA, referred to.
R v J, JA [2009] SASC 401, considered.
R v BYERLEY (No 2)
[2010] SADC 33
An application has been made on behalf of the accused for me to give permission to allow JF to be cross-examined on certain matters. Miss Davison, of counsel for the accused, outlined the topics or matters upon which she sought my permission to allow her to cross-examine JF.
Before I can grant permission as sought I must be “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” (s34CA(2) of the Evidence Act). I understand and construe those last three words to mean the evidence that would be given by JF’s mother and Miss Kay as to what JF said to them of the incidents involving the accused.
The construction of that sub-section was considered in R v J, JA [2009] SASC 401, at paras.56-59. Duggan J commented there that the argument before the Court of Criminal Appeal highlighted the difficulties in the operation of the legislation, in particular s34CA(1)(b)(ii) and s34CA(2). He referred to the difficulty of assessing whether cross-examination is likely to result in the material of the type referred to in s34CA(2). He then said: “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 impracticable.” Duggan J then commented that those difficulties are appropriate for consideration by the Legislature.
It is not clear to me what the Legislature might have had in mind when it refers to cross-examination “likely to elicit material of substantial probative value or material that would substantially reduce the credibility of the evidence”, and how the accused, in this case, could satisfy a court that such evidence was “likely” to result from cross-examination on the topics referred to by Miss Davison.
Perhaps it was that the Legislature had in mind cross-examination on material known to the defence but unknown to the prosecution. It may be that the Legislature never addressed directly how it could be that in any case an accused could satisfy a judge pre-trial and pre-evidence that cross-examination was likely to elicit material of the type referred to in s34CA(2).
Whatever may be the explanation for it, and the reasons behind it, the construction of s34CA(2) appears clear enough. The Court of Criminal Appeal in this State has referred to that sub-section, and the majority in R v J, JA has said that predictions as to what is likely to result in cross-examination involve a level of speculation which would, in many cases, render the assessment impracticable.
I am not satisfied that the cross-examination outlined by Miss Davison is likely to elicit material of the type referred to in s34CA(2).
I have no doubt that the topics referred to by Miss Davison are topics that she, and any accused in the position of Mr Byerley, would wish to explore in cross-examination of the complainant JF, or of any complainant. But whether that cross-examination is likely to elicit material of substantial probative value, or is likely to elicit material that would substantially reduce the credibility of the evidence, is something upon which I cannot be satisfied. It may be as Duggan J said, it involves “a level of speculation which would … render the assessment impracticable”.
My ruling is that the permission sought by Miss Davison to cross-examine JF is refused.
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.
There are some references in the debates to s34CA(2), and the need for a court to be 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. Mrs Redmond refers to it at p.2215.5 on 27 February 2008 in the House of Assembly; and the Hon. P. Holloway refers to it at p.2277 on 3 April 2008 in the Legislative Council.
My reading of those passages does not disclose the aims of or the reasons behind sub-s(2) of s34CA.
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