R v Cheng

Case [2015] SASCFC 189

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v CHENG

[2015] SASCFC 189

Judgment of The Court of Criminal Appeal

(The Honourable Justice Sulan, The Honourable Justice Peek and The Honourable Justice Stanley)

10 December 2015

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - OTHER MATTERS

CRIMINAL LAW - EVIDENCE - COMPETENCE AND COMPELLABILITY - OATH - PARTICULAR CASES

CRIMINAL LAW - EVIDENCE - MISCELLANEOUS MATTERS - STATUTORY PROVISIONS RELATING TO EVIDENCE OF CHILDREN

Appeal against conviction. The appellant was convicted by a jury of, one count of persistent sexual exploitation of a child L who attended at a childcare centre run by the appellant’s wife.

Prior to empanelling the jury on 3 June 2015, the Judge questioned L via audio-visual link from the courtroom, in the presence of counsel and the appellant, and decided that L was capable of giving sworn evidence.

A DVD of L’s interview with police on 13 June 2014 was admitted into evidence pursuant to s 34CA Evidence Act 1929. The appellant contends that the Judge erred both in directing the jury that that interview was to be considered in the same way as evidence given in court by any other witness and in failing to give directions concerning that interview as was required by s 34D. The appellant also contends that the Judge erred in failing to direct the jury that they were required to scrutinise the evidence of the complainant with special care.

Held per Sulan and Peek JJ (allowing the appeal, setting aside the conviction and ordering a new trial):

2. Section 34CA makes a statement of a young child or vulnerable witness admissible. It does not declare it to be, or equate it with, evidence on oath in Court. The Judge misdirected the jury that L’s interview was L’s evidence-in-chief and was to be considered in the same way as evidence given in court by any other witness. A s 34CA statement is not to be afforded the status of sworn evidence or unsworn evidence given pursuant to s 9(2).

3. Section 34D requires a Judge to specifically direct the jury as to all the circumstances from which any inference can reasonably be drawn as to the accuracy or otherwise of a statement admitted pursuant to s 34CA. The Judge was required by s 34D to direct the jury that:

-    L’s June 2014 interview lacked contemporaneity with the alleged conduct, as the most recent event was alleged to have occurred about nine months prior to the interview and the earliest some three to four years prior;

-    Such lack of contemporaneity was particularly important having regard to L’s cognitive development at relevant times corresponding to aspects of the evidence suggesting that L may have misunderstood certain matters;

-    The interviewer conducted no inquiry as to L’s cognitive development at the time of the interview or whether she was then competent to give either unsworn or sworn evidence;

-    A…

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R v Cheng [2015] SASCFC 189
Case
[2015] SASCFC 189
Decision Date

CaseChat Overview and Summary

This case concerned an appeal against a criminal conviction. The appellant, Mr Cheng, challenged the trial judge's decisions regarding the admissibility of evidence. The appeal was heard by Sulan, Peek, and Stanley JJ of the Supreme Court of South Australia.

The primary legal issues before the Full Court were whether the trial judge had adequately assessed the competence of a nine-year-old child witness, L, to give sworn evidence, and whether the judge had properly admitted a statement made by L under section 34CA(1) of the relevant Act. The Court also considered whether the admission of L's interview under section 34CA(1) was justified, given the circumstances and the probative value of the statement.

The Court held that the trial judge's dialogue with the child witness was insufficient to justify the decision that L was competent to give sworn evidence. Referencing *R v Starrett*, the Court emphasised that the legislative provisions concerning sworn and unsworn evidence are not mere formalities and require appropriate inquiries. The Court noted that while a child under 18 is not automatically presumed incompetent, children under ten, in particular, should undergo a section 9 inquiry to determine their capacity for sworn or unsworn evidence, even though they may not be capable of committing perjury. Regarding the admission of L's interview under section 34CA(1), the Court observed that the transcript suggested the judge had not adequately considered the circumstances of the statement or its probative value before admitting it.

Although the Court found that the inadequate assessment of the child witness's competence and the admission of the interview under section 34CA(1) were grounds for allowing the appeal, it noted that a new trial would be ordered on other grounds. Therefore, it was unnecessary to formally amend the grounds of appeal to include the issue of the child witness's competence. The Court made no comment on the procedure that followed the mistrial declaration.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

This statement by the Judge addresses two important matters.The Judge’s decision that L would give sworn evidence The first important matter addressed by his Honour’s above statement is the question of whether L, a nine year old child, was competent to give sworn evidence (as distinct from unsworn evidence under s 9(2) of the Act). No ground of appeal directly raises this matter, but since this Court is ordering a re-trial for other associated reasons, we should indicate that our view is that this short dialogue was not adequate to justify his Honour’s decision.[1] [1] This is not to say that it might not be demonstrated by adequate means, including a more relevant and extended dialogue, at a re-trial that L is competent to give sworn evidence. In R v Starrett, Doyle CJ (with whom Perry and Lander JJ agreed) stated:[2][15] The legislative provisions found in s 9 cannot be dismissed as mere matters of form. Parliament has made it plain that evidence is to be given on oath, unless the presumption that the witness is capable of giving sworn evidence is rebutted. Parliament has also made it plain that appropriate inquiries are to be made before a decision is made as to whether evidence is given sworn or unsworn. The history of this legislation and of the approach of the courts to these issues makes it plain that these are important matters in our system of trial. (Emphasis added)[2] (2002) 82 SASR 115, 119. Given that a “child” is defined by the Act as “a person under the age of 18 years”, it is not necessary that a Judge conducts such an inquiry simply because the proposed witness is a child. On the other hand, it is clear that many children will not be capable of giving evidence on oath, although they may be capable of giving unsworn evidence under s 9(2) of the Act. It is to be noted that it is enacted by Parliament in s 5 of the Young Offenders Act 1993, that a person under the age of ten years cannot commit an offence. This is because, in general terms, it is considered that a child of that young age will lack sufficient maturity and perception of the nature and consequences of his actions to bear criminal responsibility. In our view, if it is sought to make a child under the age of ten years bear the responsibility of giving evidence affecting the criminal liability of another person, the child should at least be subjected to a s 9 inquiry by the Judge to determine whether that evidence should be sworn or unsworn (or that the child is unable to give unsworn evidence).[3][3] Of course, the fact that a child under ten years may not, as a matter of law, commit the offence of perjury does not lessen the need for the Judge to be sure that the capacity of the child to give sworn evidence is established. Thus in R vClimas (1999) 74 SASR 411, Duggan J noted at 419 [44]: “A person under the age of 10 years cannot commit an offence (Young Offenders Act 1993, s 5). However, despite the absence of a criminal sanction for not telling the truth, it remains appropriate in the case of children of this age to regard the obligation to be truthful referred to in s 9(1) as alluding to the importance of telling the truth in the witness box as a serious matter which may have serious consequences for the accused. This is the nature of the obligation explained by King CJ in R v Whittingham but without the added aspect of a sanction.”

Decision

Reasons for decision

It can be seen that the verdict would have to be set aside and a new trial ordered on the above basis alone. However, that would require an amendment of the grounds of appeal and since the appeal is to be allowed on other grounds of appeal it is unnecessary to pursue that matter further.The Judge’s decision that L’s interview would be admitted under s 34CA(1) of the Act The second important matter addressed by the Judge’s statement reproduced above at paragraph [9] is the admission of L’s interview under s 34CA of the Act upon the basis of a finding that “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 …).[15][15] Section 34CA(1)(a) of the Act. The transcript would appear to indicate that the Judge had not seen or heard the DVD exhibit P1 prior to the point of admission of the s 34CA statement. Certainly, the transcript reveals no discussion of the s 34CA statement having taken place, and no reference having been made to the date it was taken, its content, the circumstances in which the statement was made or to any other factors relevant to the required satisfaction by the Judge. There then followed some discussion initiated by prosecution counsel in response to the Judge’s concluding words “I give permission for her to be cross-examined on matters arising from her evidence” (reproduced above). The prosecutor then correctly directed the attention of the Judge to the requirement of the present Act that defence counsel specify proposed areas of cross-examination and for the Judge to determine which would of such areas would be permitted. These matters were then attended to, and shortly thereafter the jury was empanelled. The prosecutor opened his case and then called the first witness, Ms Chadbourne, the detective who had conducted the s 34CA interview with L. The DVD audio visual record of the interview was tendered during her examination-in-chief without further discussion of the requirements of s 34 CA. A copy of a transcript of that DVD was provided to the jurors as an aide memoire. Shortly thereafter a mistrial was declared. On Wednesday, 3 June 2015 at 2:24pm the appellant pleaded not guilty before a fresh jury panel and a new jury was empanelled. In the absence of the jury the following dialogue occurred:HIS HONOUR All right. I don’t have to repeat my rulings or my decisions yesterday in relation to her giving evidence?DR SALU No.HIS HONOUR They will stand. We will adjourn until about 3 o’clock.ADJOURNED 2.42 P.M.[16][16] There is no ground of appeal concerning this procedure and we make no comment about it. The prosecution later opened to the jury and then called the first witness Ms Chadbourne, and the DVD record of the interview was tendered during her examination-in-chief, received as exhibit P1, and played to the jury. The factual assertions made by L in the s 34CA interview

Ratio Decidendi

Legal Principle Established

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