R v Byerley

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

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

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

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