R v CN
[2019] ACTSC 50
•14 February 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v CN |
Citation: | [2019] ACTSC 50 |
Hearing Date(s): | 14 February 2019 |
DecisionDate: | 14 February 2019 |
Before: | Murrell CJ |
Decision: | Evidence not admitted. |
Catchwords: | EVIDENCE – child witnesses – giving evidence would cause psychological trauma - whether maker unavailable – danger of unfair prejudice – Evidence Act 2011 (ACT) ss 65, 137 |
Legislation Cited: | Evidence Act 2011 (ACT) ss 62, 65, 137, dictionary pt 2.4 Evidence Act (Miscellaneous Provisions) 1991 (ACT) s 52 |
Cases Cited: | R v Nona [2015] ACTSC 175; 254 A Crim R 301 R v Cruz [2016] ACTSC 19 |
Texts Cited: | Australian Law Reform Commission, Uniform Evidence Law, Report No 102 (2005) |
Parties: | The Queen (Crown) CN (Accused) |
Representation: | Counsel Ms R Christenson (Crown) Mr R Davies (Accused) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Accused) | |
File Number(s): | SCC 211 of 2018 SCC 215 of 2018 |
Murrell CJ
Background
The accused has pleaded not guilty to three counts of engaging in sexual intercourse with his granddaughter, X, a person under the age of 16 years. The trial is to be heard by a jury, commencing on 4 March 2019.
The matter was listed on 4 February 2019 for the pre-trial cross-examination of WB and TB, twin girls who are now aged 10 years, who are complaint witnesses in the trial. The children reside with their mother in Queensland. X is the children’s cousin.
On 24 January 2019, the children’s mother asked that the children be excused from attending on 4 February as they had been traumatised as a result of becoming embroiled in the proceedings. She was unwilling to bring them to court.
On 1 February 2019, new solicitors for the accused sought an adjournment of the pre-trial hearing on 4 February 2019 as they has only just received instructions.
The pre-trial evidence hearing did not proceed on 4 February 2019.
The children’s mother remains opposed to the children giving evidence.
To avoid the need for the children to give evidence at a pre-trial hearing or at the trial (either remotely or in person) and be cross-examined, the prosecution sought to adduce the video recorded interviews of WB and TB that were conducted by the Australian Federal Police through the AFP officers who conducted the interviews. Ordinarily, the video recorded interviews would be admitted as evidence-in-chief at the trial, pursuant to s 52 of the Evidence (Miscellaneous Provisions) Act1991 (ACT).
The complaints
On 18 April 2018, WB and TB participated in video recorded “evidence-in-chief” interviews with the AFP. In the interviews, the children reported that, on a particular occasion when they had been in a bedroom with X, X had complained that the accused had engaged in sexual misconduct towards her, providing graphic detail.
TB had made notes of X’s complaint and relayed the complaint to X’s mother, L. TB told the AFP that X had made the complaint “months” prior to the AFP interview. TB’s notes were provided to the police on 17 April 2018.
10. WB had also made notes of the discussion with X. Her notes were provided to the police on 18 April 2018. WB said that she had reported the incident to L a matter of “weeks” after the complaint was made. WB also recalled a second complaint that X had made to the children at Southport Pacific Fair Beach and a third complaint that was made in a driveway. She said that TB had been present on both occasions.
11. The children differ as to when X's disclosures were first reported to X's mother, and the chronology is quite unclear as to when the disclosures were made to them. Presumably, it was sometime between the beginning of January 2018 (the earliest point when the offences could have occurred) and 18 April 2018, when the police interviews were conducted, but WB and TB were unable to give a clear account of when these events occurred.
The applications under s 65 of the Evidence Act
12. The prosecution relied on s 65 of the Evidence Act 2011 (ACT) (Evidence Act), claiming that the children were “unavailable” within the meaning of the Evidence Act. No point was taken that, if adduced in this way, the evidence would be second hand hearsay: s 62 of Evidence Act.
13. For the purposes of the applications, it was assumed that, if the children were subpoenaed to give evidence at a future date, their mother would refuse to bring them to Canberra to give evidence. She had declined to bring them from Queensland to Canberra for the purpose of giving evidence on 4 February 2019 and had resisted the suggestion that they give evidence from the Southport Magistrate's Court.
14. The Court must consider three questions:
(a)Whether WB and TB are “unavailable” to give evidence of the complaints made by X, within the meaning of pt 2.4 of the Dictionary, para 1(c), (f) or (g) to the Evidence Act.
(b)Whether the statements made by WB and TB to Police on 18 April fall within s 65(2)(b) or (c) of the Evidence Act, in that they were made shortly after the asserted fact happened and in circumstances that make it unlikely that the statements are fabrications, or were made in circumstances that make it highly probable that they were reliable.
(c)If the first two questions are answered favourably to the prosecution, the third question is whether, under s 137 of the Evidence Act, the Court is required to exclude the evidence because its probative value is outweighed by the danger of unfair prejudice to the accused.
Pt 2.4 of the Dictionary—unavailability
15. Part 2.4 of the Dictionary relates to questions of unavailability. It provides:
4 Unavailability of people
(1)For this Act, a person is taken not to be available to give evidence about a fact if—
…
(c) the person is mentally or physically unable to give the evidence and it is not reasonably practicable to overcome that inability; or
…
(f) all reasonable steps have been taken, by the party seeking to prove the person is not available, to find the person or to secure the person’s attendance, but without success; or
(g) all reasonable steps have been taken, by the party seeking to prove the person is not available, to compel the person to give the evidence, but without success.
…
16. In relation to sub-para (c), the prosecution says that WB and TB are “mentally unavailable” to give the evidence in question.
17. In support of that submission, the prosecution relies upon statements made by the children's mother and a treating psychologist.
18. The children's mother furnished a statement and provided an email raising the following matters:
(a)The children have already been traumatised by vitriolic Family Court proceedings between their parents, particularly in the period of late 2017 and January 2018.
(b)It is her understanding that, in about February 2018, X informed the children, who were then nine years of age, in graphic detail about the alleged conduct of the accused towards X.
(c)The children conveyed this information to other children at their school, leading to requests from school parents that WB and TB be expelled from the school. Consequently, at the end of 2018, WB and TB were asked to leave the school. Ultimately, they were not expelled but were placed on six-months’ “probation” to assess whether their behaviour and social skills would improve. The children's mother has been told that, should the children misbehave or discuss anything of a sexual nature at school, they will be expelled. She believes that a revisiting of the material canvassed in the police interviews would result in the children discussing the matter at school and being expelled.
(d)The children suffer from extreme mood swings and “emotional and physical meltdowns”. They attend a psychologist once a week to assist them process the traumas that they have experienced and implement behavioural changes.
19. The children's psychologist provided letters, dated 21 January 2019, stating that:
it would be best, if at all possible, to excuse [the children] from the court appearance [on 4 February 2019], with the intention of reducing the likelihood of further vicarious trauma.
The psychologist observed that the children's family was:
justifiably concerned that revisiting their involvement in the traumatic events may result in a regression in [the children’s] psychological state.
20. The prosecutor relies upon the Australian Law Reform Commission, Uniform Evidence Law, Report No 102 (2005) (the ALRC Report) at [8.35], where it is stated:
As to mental inability, it is intended that such an amendment may facilitate, in at least some cases, the admission of the transcript of a complainant's evidence in a retrial. Requiring the complainant to testify again may, depending on the circumstances of the case, do such emotional, physical or psychological harm to the complainant that the complainant should be considered unavailable to give the particular evidence.
At [8.37] the ALRC Report states:
It is not intended that the amendment should lower the standard of unavailability generally. For instance, it is not intended that any person should be considered unavailable to give evidence simply by producing a medical certificate asserting that a person is mentally or physically unable to give evidence about a fact. A real mental or physical inability to testify must be shown. These are factual questions courts are well placed to consider on a case-by-case basis, looking to all the circumstances.
These passages evidence an intent that a witness may be considered “unavailable” in circumstances such as the present.
21. In R v Nona [2015] ACTSC 175; 254 A Crim R 301, Refshauge J held that audio recorded evidence given by witnesses at an earlier trial should be admitted at a retrial under s 65(3) of the Evidence Act because of the high level of distress that would be caused to the witnesses if they were required to repeat their earlier evidence. His Honour canvassed the facts and law at length and then stated, at [144]:
In my view, the provision does permit the evidence to be given as proposed where the witness’s mental condition is such that he or she will suffer significant mental adverse consequences from giving the evidence. This is clear from the ALRC Report, especially at [8.37].
22. However, the provision requires that a person be “mentally unable to give the evidence” (emphasis added). It addresses a person's mental capacity to give the evidence at the time when the evidence is to be given. It does not address the question of whether the giving of evidence will cause subsequent mental distress.
23. In the present case, I accept that there is a high likelihood that, if the children were to give evidence, they would later suffer extreme stress. However, that does not mean that they are “mentally unable to give the evidence”. I am not satisfied that the witnesses are “unable” to give evidence.
24. However, the requirements of sub-paras (f) and (g) are satisfied. The prosecution has issued a subpoena to the witnesses to give evidence, albeit not at the trial but at a pre-trial hearing, and it is clear, from the response of the witnesses’ mother that that she will not bring the children to the ACT for that purpose.
25. The situation is analogous to that considered by Burns J in R v Cruz [2016] ACTSC 19. In that case, a complainant, who was at that stage two years and 11 months of age, had made a complaint of sexual assault to her mother and her mother declined to facilitate the complainant’s compliance with a subpoena to attend and give evidence. At [10], his Honour found that, “all reasonable steps have been taken by the Crown to secure the complainant's attendance at court”.
26. For the same reasons, I am satisfied that all reasonable steps have been taken to compel the witnesses to give evidence or, at least, to secure their attendance, but without success.
Section 65(2)—admissibility of previous representations if maker not available
27. The second question to be considered by the Court arises under s 65(2) of the Evidence Act, which provides:
65Exception—criminal proceedings if maker not available
(2) The hearsay rule does not apply to evidence of a previous representation that is given by a person who saw, heard or otherwise perceived the representation being made, if the representation—
…
(b) was made when or shortly after the asserted fact happened and in circumstances that make it unlikely that the representation is a fabrication; or
(c) was made in circumstances that make it highly probable that the representation is reliable;
…
28. In relation to the requirements of s 65(2)(b), it is uncertain whether the interviews by police, in which the relevant statements were made, occurred shortly after the complaint or complaints made by X. As mentioned above, the chronology of events is unclear. I am not satisfied that the requirements of s 65(2)(b) are established.
29. However, I am satisfied that the requirements of s 65(2)(c) are made out.
30. First, the witnesses made statements to the AFP in circumstances that make it highly probable that those statements were reliable. The statements were made in interviews that were conducted by apparently experienced police officers, who first tested each witness to ensure that she understood the importance of the interview and the difference between telling the truth and telling a lie.
31. Second, in speaking to the police, each witness was able to refresh her memory from notes that she had made at the time of the principal complaint by X to her.
32. Third, each witness was able to give a detailed account of what X had said to her, although it is obvious that each witness was quite embarrassed and reluctant to do so.
33. The combination of these factors satisfies me that the statements made in the interviews were made in circumstances that make it highly probable that they are reliable.
Section 137—exclusion of prejudicial evidence
34. The third question is whether, under s 137 of the Evidence Act, the Court must refuse to admit the evidence because its probative value is outweighed by the danger of unfair prejudice to the accused.
35. I am satisfied that the probative value of the evidence is outweighed by the danger of unfair prejudice.
36. The prosecution seeks to rely upon the statements made on 18 April 2018, as primary evidence of the facts asserted, i.e. as evidence of what happened to X.
37. The witnesses gave a very detailed account of what they said that X had told them. The prosecutor candidly stated that, in some respects, the witnesses’ account of what X told them is more detailed and goes beyond what X later told police had happened. Consequently, the evidence of the witnesses is capable of being used to enhance the complainant’s evidence of the alleged offending conduct. Yet, if the evidence of the interviews is admitted in circumstances where the witnesses are not available for cross-examination, that very important evidence will be untested. This gives rise to a danger of unfair prejudice.
38. The danger of unfair prejudice arises because, as counsel for the accused submitted, counsel at the trial would wish to cross-examine the witnesses in an effort to establish that the witnesses’ evidence is unreliable. The Court was informed that the accused would wish to explore issues of collusion and collaboration between the witnesses and may wish to suggest that they have concocted their evidence about what X said to them, or that they have fantasised. The defence wishes to explore whether, and to what extent, the witnesses discussed what, if anything, had been said to them by X. There are significant differences between the accounts of the witnesses and it is likely that the defence wishes to test the witnesses by reference to these differences those differences.
39. The defence wishes to cross‑examine on an aspect of the alleged disclosure by X to the witnesses which may reflect adversely on X. One of the witnesses said that, at one point, X sought to retract her allegations by saying, “it’s a big lie”. But after encouragement to do so, she changed her mind and confirmed that her original statements were true. This change in X's attitude is a matter that the accused would wish to explore in cross-examination.
40. In addition to seeking to rely upon the evidence of the witnesses as evidence of the facts asserted, the prosecution seeks to rely upon their evidence to bolster the credibility of X. In that regard, the prosecutor conceded that such reliance is inherently problematical because, as noted in [37], at one stage X withdrew her complaint.
41. The prosecutor submitted that any danger of unfair prejudice to the accused associated with the admission of the untested evidence of the witnesses could be addressed by an appropriate direction.
42. I disagree. No direction could adequately address the danger of unfair prejudice associated with very important but untested evidence that goes to the heart of the issue to be decided by the jury. How could a direction compensate for the fact that the evidence is untested or assist the jury to form a view as to what weight should be attached to the evidence? There would be a high danger that the jury would place too much weight on the evidence.
43. While the probative value of the evidence is undoubtedly high, the danger of unfair prejudice associated with the evidence is such that it outweighs the probative value.
Conclusion
44. As noted above, no objection was taken on the basis that the evidence would be second hand hearsay, and the Court did not consider this application on that basis. Nevertheless, as the Court is satisfied that the evidence’s probative value is outweighed by the danger of unfair prejudice to the accused, the evidence must be rejected.
| I certify that the preceding forty-four [44] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice Murrell. Associate: Date: |
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