R v Cronin - [2018] SASCFC 61

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v CRONIN
[2018] SASCFC 61
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Vanstone and The Honourable Justice Nicholson)
19 June 2018
EVIDENCE - ADMISSIBILITY - GENERAL PRINCIPLES
EVIDENCE - WITNESSES - CROSS-EXAMINATION - WHEN PERMITTED AND IN GENERAL
The appellant was found guilty of 2 counts of unlawful sexual intercourse with a person under 14 years. Two recorded interviews of the complainant were admitted pursuant to s 13BA of the Evidence Act 1929 (SA). In the first, only the top of the complainant's head was visible for almost all of the recording. The complainant gave short evidence at trial. While the Judge allowed cross-examination on several topics she refused permission to cross-examine on the topic of the extent of penetration.
The appellant contends that the trial Judge was wrong to admit the first interview as an audio visual recording under s 13BA and further, that the Judge erred in refusing permission to cross-examine the complainant on the extent of penetration.
Held, per Vanstone J (Kourakis CJ and Nicholson J agreeing) allowing the appeal and quashing the convictions.
The first recorded interview of the complainant was inadmissible as it was not an 'audio visual record of the evidence of a witness': Section 13BA Evidence Act.
Vanstone J, (Nicholson J agreeing) It was within the Judge's discretion to refuse permission to cross-examine on the extent of penetration. Such cross-examination would have been unlikely to assist either the defence or the trial Judge.
Further observations by Kourakis CJ on the approach to be taken by counsel when seeking permission to cross-examine a vulnerable witness.
Evidence Act 1929 (SA) s 13BA, s 34CA (repealed); Statutes Amendment (Vulnerable Witnesses) Act 2015 (SA) No 16 of 2015 Schedule 1; Summary Offences Act 1953 (SA) s 74EC, referred to.

R v CRONIN
[2018] SASCFC 61
Court of Criminal Appeal: Kourakis CJ, Vanstone and Nicholson JJ

KOURAKIS CJ: I gratefully adopt the summary of the evidence of the course of the trial set out in the reasons of Vanstone J.
For the reasons which follow, I would allow the appeal on the ground that the audio-visual material received by the Judge was not an audio-visual record of the interview.
An audio‑visual record of an interview of a potential witness, in anticipation of its use as a substitute for the in-court testimony of that witness, must include both the ‘audio’ record of the spoken words and the ‘video’ record of the witness speaking those words. The ‘video’ without the spoken word would not be admissible. Nor would a purely audio record be admissible. There can be no distinction between records which are only video or only audio, and those records in which there is both a ‘video’ and an ‘audio’ record, but only one of them is a record of the interview.
It is unnecessary to decide on this appeal whether the word ‘may’ in s 13BA(3) of the Evidence Act

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Cronin

Details

AGLC: R v Cronin [2018] SASCFC 61
Case: [2018] SASCFC 61
Decision Date: 19 June 2018

CaseChat Overview and Summary

The appeal concerned the conviction of the appellant for two counts of unlawful sexual intercourse with a person under 14 years. The central dispute revolved around the admissibility of recorded interviews with the complainant and the extent to which the defence could cross-examine the complainant at trial. The case was heard by the Full Court of the Supreme Court of South Australia.

The legal issues before the court were whether the trial judge erred in admitting a recorded interview with the complainant pursuant to section 13BA of the *Evidence Act 1929* (SA), and whether the judge wrongly refused to permit cross-examination of the complainant on the extent of penetration. The court also considered the application of transitional provisions relating to amendments to the *Evidence Act* concerning vulnerable witnesses.

The court found that the first recorded interview with the complainant should not have been admitted. While the interview was made before the commencement of section 13BA, the transitional provisions allowed for its admission if it met certain criteria. However, the court determined that the interview did not satisfy the requirements for admissibility under the relevant provisions. Regarding the cross-examination, the court held that the judge did not err in refusing permission in the circumstances presented at trial, though it noted that a different outcome might arise at a retrial depending on the evidence adduced and the forensic purpose of any proposed cross-examination.

Consequently, the court granted permission to appeal on the ground relating to the admissibility of the recorded interview, quashed the convictions on counts 1 and 2, and directed a new trial on those charges.

Orders

Orders of the court

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Background

Background to the litigation

There is a further argument that the Judge erred in refusing to allow cross-examination of V on a particular topic.Background The 3 offences were alleged to have taken place on a single occasion when V and her mother and sister were staying overnight at the appellant’s home. The prosecution case was that the appellant performed sexual acts on V while her family members slept. Count 1 alleged digital penetration and counts 2 and 3 alleged acts of cunnilingus. The next morning V made a complaint to her mother and was taken to hospital and examined. Various swabs were taken from her and these yielded evidence upon which the prosecution relied. On 5 October 2015 Sergeant Leray interviewed V at the Elizabeth Police Station. The interview, the first, was conducted in the expectation that the recording of it would be presented to the Court at the appellant’s trial and admitted pursuant to the now repealed s 34CA of the Evidence Act. The second interview took the form of clarifying minor matters rather than covering the ground of the first one. It is not suggested that it was inadmissible.Admissibility of recorded interview with V On 1 July 2016 material amendments made to the Evidence Act by the Statutes Amendment (Vulnerable Witnesses) Act 2015 (SA) No 16 of 2015 came into effect. Section 34CA was repealed and s 13BA introduced. That section now deals with the admissibility of audio visual records. At the same time the transitional provision provided in the amending act was further amended to regulate the admissibility of recordings made prior to the enactment of s 13BA. Both provisions are relevant to the argument and I set them out: Evidence Act 192913BA—Admissibility of recorded evidence by certain witnesses in certain criminal proceedings(1)Subject to this section, the court may, in the trial of a charge of an offence order that the evidence of a witness be admitted in the form of an audio visual record.(2)An application for an order under subsection (1) must—(a) be made in writing by the party wishing to have the audio visual record of the evidence admitted in the trial; and(b) be filed in the court; and(c) within 14 days of being filed in the court—be served on the other party to the proceedings (the respondent); and(d) otherwise be made in accordance with the rules of court.(3)An audio visual record of the evidence of a witness may be admitted under this section if—(a) the recording has been made pursuant to—(i)section 12AB; or(ii)Part 17 Division 3 of the Summary Offences Act 1953; and(b) the court is satisfied as to the witness's capacity to give sworn or unsworn evidence at the time the recording was made; and(c) the court is satisfied that the respondent has been given a reasonable opportunity to view the recording; and(d) during the course of the trial, the witness is available, if required, for further examination, cross-examination or re-examination.(4)The court's discretion to exclude evidence is not affected by subsection (3) and the court may—(a) rule as inadmissible the whole or any part of the recording; or(b) before admitting the recording, order that it be edited so as to exclude evidence that is inadmissible for any reason.(5)Despite subsection (3)(d), the witness cannot be further examined, cross-examined or re-examined on the evidence admitted in the trial without the permission of the court which may only be given, on application by a party to the proceedings—(a) if the court is satisfied that a party to the proceedings has, since the making of the audio visual record, become aware of a matter of which the party could not reasonably have been aware at the time the record was made; or(b) if the witness gives evidence in the trial apart from or in addition to evidence admitted under this section in the form of an audio visual record and the court is satisfied that it is in the interests of justice that the witness be further examined, cross-examined or re-examined; or(c) if the court is satisfied that it is otherwise in the interests of justice to permit the witness to be further examined, cross-examined or re-examined.(6)If a court admits evidence in the form of an audio visual record under this section, the judge must—(a) explain to the jury that the law allows the court to admit evidence in this form; and(b) warn the jury—(i)not to draw from the admission of evidence in that form any inference adverse to the defendant; and(ii)not to allow the admission of evidence in that form to influence the weight to be given to the evidence.

Evidence

Evidence Before The Court

Evidence Act 192913BA—Admissibility of recorded evidence by certain witnesses in certain criminal proceedings(1)Subject to this section, the court may, in the trial of a charge of an offence order that the evidence of a witness be admitted in the form of an audio visual record.(2)An application for an order under subsection (1) must—(a) be made in writing by the party wishing to have the audio visual record of the evidence admitted in the trial; and(b) be filed in the court; and(c) within 14 days of being filed in the court—be served on the other party to the proceedings (the respondent); and(d) otherwise be made in accordance with the rules of court.(3)An audio visual record of the evidence of a witness may be admitted under this section if—(a) the recording has been made pursuant to—(i)section 12AB; or(ii)Part 17 Division 3 of the Summary Offences Act 1953; and(b) the court is satisfied as to the witness's capacity to give sworn or unsworn evidence at the time the recording was made; and(c) the court is satisfied that the respondent has been given a reasonable opportunity to view the recording; and(d) during the course of the trial, the witness is available, if required, for further examination, cross-examination or re-examination.(4)The court's discretion to exclude evidence is not affected by subsection (3) and the court may—(a) rule as inadmissible the whole or any part of the recording; or(b) before admitting the recording, order that it be edited so as to exclude evidence that is inadmissible for any reason.(5)Despite subsection (3)(d), the witness cannot be further examined, cross-examined or re-examined on the evidence admitted in the trial without the permission of the court which may only be given, on application by a party to the proceedings—(a) if the court is satisfied that a party to the proceedings has, since the making of the audio visual record, become aware of a matter of which the party could not reasonably have been aware at the time the record was made; or(b) if the witness gives evidence in the trial apart from or in addition to evidence admitted under this section in the form of an audio visual record and the court is satisfied that it is in the interests of justice that the witness be further examined, cross-examined or re-examined; or(c) if the court is satisfied that it is otherwise in the interests of justice to permit the witness to be further examined, cross-examined or re-examined.(6)If a court admits evidence in the form of an audio visual record under this section, the judge must—(a) explain to the jury that the law allows the court to admit evidence in this form; and(b) warn the jury—(i)not to draw from the admission of evidence in that form any inference adverse to the defendant; and(ii)not to allow the admission of evidence in that form to influence the weight to be given to the evidence. Statutes Amendment (Vulnerable Witnesses) Act 2015Schedule 1—Transitional provision1—Transitional provision(1)The amendments made by Part 3 of this Act to the Evidence Act 1929 are intended to apply in respect of—(a) proceedings for a sexual offence commenced but not determined before the commencement of this clause; and(b) proceedings for a sexual offence commenced after the commencement of this clause.(2)An audio visual record of the statement of a witness to whom this subclause applies made to an investigating or other authority before the commencement of section 10 of this Act as part of a formal interview process in relation to the investigation of an alleged offence may, after the commencement of that section, be admitted under section 13BA of the Evidence Act 1929 as evidence in the trial of a charge of the offence as if the recording had been made pursuant to Division 3 of Part 17 of the Summary Offences Act 1953 in accordance with the requirements of that Division.Note—Section 10 of this Act inserts section 13BA into the Evidence Act 1929. (3)Subclause (2) applies—(a) to a witness who is—(i)a child of or under the age of 14 years; or(ii)a person with a disability that adversely affects the person's capacity to give a coherent account of the person's experiences or to respond rationally to questions; and(b) despite section 34LA(2)(c) of the Evidence Act 1929.

Decision

Reasons for decision

I would grant permission to appeal on this ground but find that the appellant could not have been disadvantaged by reference to s 34D.Conclusion I have found that the first recorded interview of V should not have been admitted. This interview contained the critical statements tending to prove the offences. Accordingly I would make the following orders:1grant permission to appeal on ground 3,2quash the convictions on counts 1 and 2, and3direct a new trial on those charges. NICHOLSON J: I agree that the appeal should be allowed for the reasons given by Vanstone J. As far as the issue of whether or not the evidence in question constituted an audio visual record is concerned, I also agree with the observations of the Chief Justice. As for the Judge’s decision not to allow the requested cross-examination, I agree with Vanstone J that her Honour, in the circumstances before her, did not err. However, should the issue arise at any retrial, the matter will turn on the nature of the evidence adduced from the complainant and the course of the trial. A more detailed articulation of any proposed cross-examination and of its forensic purpose may justify a different outcome.

Ratio Decidendi

Legal Principle Established

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