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Evidence Act 1929 (SA) s 13BA, s 34CA (repealed); Statutes Amendment (Vulnerable Witnesses) Act 2015 (SA) No 16 of 2015 Schedule 1; Summary Offences Act 1953 (SA) s 74EC, referred to.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 1929 (SA) (the Evidence Act) permits a discretion not to receive evidence, even if the pre-conditions to admission prescribed in subparagraphs (a) to (d) are satisfied. Some provisions of the Evidence Act do confer a discretion to admit evidence,[1] whilst others provide simply that the evidence is admissible if certain pre-conditions are met.[2] The structure of the section suggests that on satisfaction of the pre-conditions, the audio-visual record must be received. It is difficult to foresee circumstances which would justify not giving effect to the clear legislative intention to save vulnerable witnesses from the distress of attending in person which would not fall within the scope of the unfairness discretion. However, I would prefer not to foreclose the question before a case in which it is contended that such circumstances exist comes before the Court.
[1] Evidence Act 1929 (SA) ss 34C(2) and 34KA(2)(e).
[2] Evidence Act 1929 (SA) ss 34C, 53, 34KA(1), 47(1) and (2).
Nor it is necessary to determine whether or not the Judge should have permitted cross-examination of V to elicit more detail of the account of digital penetration given in the subject interview, because that interview will not be admitted on the appellant’s retrial. Another interview which satisfies the pre‑condition of s 13BA(3) may be made or V may testify in the ordinary way.
However, it is opportune to emphasise the importance of properly identifying the forensic purpose of the cross-examination when permission is sought. In this case, it was an important part of the appellant’s defence that a medical examination of V had not revealed any sign of genital injury. Of course, it is well understood that a negative finding is not uncommon and that much depends on the nature of the assault. The examining medical practitioner in this case testified that there may be penetration of the vestibule opening without impacting the hymen and without causing injury. The doctor testified that injury would be expected only if V had reported pain. Relying on that evidence, the prosecutor submitted in her final address that because V had not complained of pain accompanying the penetration, her evidence sat ‘comfortably’ with the absence of any injury. The difficulty with that submission is that V was not asked in the interview whether or not the offending was painful and the appellant’s counsel was denied permission to cross-examine on the topic at trial. It is not generally a fishing exercise to cross-examine a victim of an assault on whether or not pain was experienced when there is no evidence of the assault leaving a mark or injury of a kind which one would otherwise expect to see.
I acknowledge that the appellant’s counsel couched the application in terms of cross-examining as to the extent of penetration. V had described the penetration as ‘very deep’. Plainly, a victim of a sexual offence, particularly a child, is unlikely to usefully elaborate on a general description such as that in cross‑examination. However, a child may be expected to be able to describe, at least in general terms, an experience of pain. There was a legitimate forensic purpose for such a question in this case because, as has been seen, the prosecution relied on the absence of any evidence that V experienced pain to explain the absence of injury. Of course, the existence of a forensic purpose is but one of the relevant considerations in the exercise of the discretion, albeit an important one.
Counsel should articulate the questions they propose to ask in cross-examination when permission is sought. The questions should be concisely framed in plain and simple English and extend no further than is necessary to advance a legitimate forensic purpose. So much is necessary to satisfy the manifest purpose of the statutory restriction on cross-examination. This case illustrates how a failure to do so may result in an adverse ruling.
VANSTONE J: The appellant stood trial in the District Court charged with 3 counts of unlawful sexual intercourse with a person under 14 years. His trial proceeded before a Judge sitting without a jury. He was found guilty of counts 1 and 2, but acquitted of count 3.
At the time of the single incident giving rise to the charges, the complainant, ‘V’, was 7 years of age. By the time of the trial she had turned 9. V gave evidence at the trial on some topics, but the critical evidence in proof of the prosecution case was given in the first of two recorded interviews with her, conducted by a police officer at a time proximate to the incidents. Both were admitted pursuant to s 13BA of the Evidence Act 1929 (SA).
The appellant contends that the first interview should not have been admitted because, far from being an ‘audio visual record’ as required by the section, it was an audio record only.
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 1929
13BA—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 2015
Schedule 1—Transitional provision
1—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.
It is common ground that s 13BA and the transitional provision governed the admissibility of both interviews.
Section 13BA(2) and (3) regulate the way in which audio visual records will be presented to the court and admitted into evidence. Upon the appeal, Senior Counsel for the Director, Mr Pearce QC, was inclined to argue that satisfaction of the prerequisites set out in those sub-sections would give rise to a discretion to admit a record. He referred to the use of the permissive word ‘may’ in ss (1). I do not agree. A discretion to admit evidence is foreign to the common law. The common law holds that relevant evidence is admissible unless subject to an exclusionary rule or excluded in the exercise of the judge’s discretion. Of course the provisions in question are statutory exceptions to the hearsay rule and are, in the scheme of things, superimposed on the common law rules of evidence. Certainly there are situations where Parliament provides for a discretion to admit certain evidence in the face of non-compliance with statutory prerequisites. The Summary Offences Act 1953 (SA) s 74EC (in Division 3 of Part 17) provides an example. Provisions of that nature generally take the form of Parliament providing a regime under which evidence of a certain nature will be rendered admissible and then providing a discretion to admit which can be exercised in circumstances where non-compliance with the regime is of a technical nature or resulted from circumstances beyond the control of the officer concerned. It would be unusual to instruct a court to receive evidence. I take the use of the word ‘may’ in s 13BA(1) to pay deference to the requirements of sub-sections (2) and (3). It may be acknowledged that various drafting techniques are used throughout the Evidence Act to deal with the admission of evidence which would otherwise be excluded by the hearsay rule. However, I am fortified in my view by the specific reservation, in ss (4), of the common law discretion to exclude evidence. It would be confusing and somewhat contradictory to interpret the provisions so as to attribute to the court two discretions in relation to this, or any other evidence.
Upon the appeal there is no argument about compliance with the specific requirements of clause (2) of the transitional provision and s 13BA(2) and (3) of the Evidence Act as they relate to audio visual records. The question is whether the recording of the first interview is an ‘audio visual record of the statement of a witness’: clause (2), and an ‘audio visual record of the evidence of a witness’, as required by s 13BA(3).
Although the first interview was conducted in circumstances where it was expected an audio visual record would be produced, it seems that almost immediately after the questioning commenced, the camera slipped. From that point only the top of V’s head was visible. Accordingly, the appellant argues that the record is an audio, but not a visual one. On the other hand, Mr Pearce argues that, while the vision captured showed only the top of V’s head, it still amounted to a visual record, for the purposes of the term ‘audio visual record’. That the vision showed only V’s crown and an expanse of wall became a matter relevant to the exercise of discretion. Mr Pearce argues that the Judge was entitled to take the view that, the audio quality being good and no mala fides being involved, the recording could be admitted.
In order to understand the meaning which Parliament intended the expression audio visual record to carry, it is necessary to examine the text itself and the context in which the expression is used. The expression used in the Summary Offences Act in relation to recorded interviews with potential witnesses is ‘an audio visual recording of the interview’: s 74EB. Section 13BA of the Evidence Act refers to ‘the evidence of a witness [being] admitted in the form of an audio visual record’.
It is plainly envisaged that the recording will largely take the place of viva voce evidence by the witness. As counsel for the appellant put it, it will become the evidence of the witness. In those circumstances the visual component contemplated by Parliament must surely be vision of the witness, rather than of a wall. If the tribunal is not to have the benefit of the witness giving evidence in the court room, then it would be expected that what is seen in the recording has some of the important features of evidence given in person.
Even without this context, the import of the expression is clear. The Macquarie Dictionary (Macquarie Library Pty Ltd, 1982) gives the following meaning to the words:
audiovisual adj. involving or directed simultaneously at the faculties of seeing and hearing.
The inclusion in this definition of the concept of simultaneity is significant. What is heard must also be seen.
In my opinion the recording of the first interview did not answer the description of an audio visual record of the interview. There was no discretion to admit it. It was inadmissible.
Cross-examination of V
At trial, V gave some short evidence on certain topics and she was cross-examined. Although cross-examination by the appellant’s counsel was permitted to extend to some topics, he argues he was erroneously precluded from cross-examining V on a particular topic. Strictly it is unnecessary to address this ground of appeal, since the convictions are to be quashed. However, in case there might be a re-trial, I propose to deal briefly with the argument.
Prior to the commencement of the evidence the appellant sought permission to cross-examine V pursuant to s 13BA(5). I set out that sub-section earlier in these reasons. The topics in respect of which permission was sought were, first the circumstances of the offending, meaning what clothing V was wearing in the appellant’s bedroom, whether she fell asleep after the incident and so forth; second, the circumstances in which the uncharged acts occurred, covering the same sorts of details as the first topic; third, the complaint evidence, being the terms of the initial complaint and any elaboration of it; and fourth, the question of to what extent the appellant penetrated V’s vagina when committing the charged and uncharged acts. In her interview V had described the penetration by the appellant as being ‘very deep’. In the prosecution brief was a statement from a forensic paediatrician, who was to give evidence. The Judge was told that, based on the paediatrician’s examination of V, it was highly unlikely that there was any digital penetration of V’s vagina, that the paediatrician saw no evidence of injury such as there might have been had there been penetration through the hymen, and that the paediatrician would say that children of a young age would not be expected to differentiate between degrees of penetration and would not understand their internal genital structure.

The Judge had regard to the terms of s 13BA(5) and in particular sub-paragraph (c) of that sub-section. The Judge considered the question whether it was in the interests of justice to permit V to be cross-examined on these topics. In relation to the first, second and third topics counsel for prosecution acknowledged that the Judge could take the view that such cross-examination was justified and permission was given. But in relation to the fourth topic the Judge refused permission.
Upon the appeal it is argued that this was a wrongful exercise of discretion.
The question of granting permission to cross-examine a witness whose statement has been admitted in the form of an audio visual record is one which must be considered in the context of Parliament’s clear aim that witnesses such as V are to be protected from the rigors of giving evidence unless the interests of justice demand it. Indeed, s 13BA(5)(a) and (b) specify instances where it would be appropriate to allow cross-examination. Sub-section 5(c) allows a discretion in circumstances where some other reason justifies questioning.
In most if not all cases a Judge would be assisted by having counsel making application under s 13BA(5) providing a list of proposed questions so that the matter can be properly adjudicated. This was not done in the present case. Indeed, the reasons for seeking the permission and the anticipated ground which might be covered were not set out by defence counsel in any more detail than I have already given. Had the questions proposed to be asked on the fourth topic been submitted to the Judge, it is likely counsel would have foreshadowed asking whether she adhered to her earlier statement that penetration was deep. Perhaps she would have been asked to explain what degree of pain the appellant’s activities occasioned. In the end, defence counsel would have been pitting V’s evidence that penetration was deep against the evidence of the paediatrician to the effect that a person such as V would not be likely to know how deep was penetration.
It is hard to anticipate how any of this would have assisted either the defence or the trial Judge. Moreover, it is the sort of cross-examination which V would probably have found embarrassing and distressing.
I consider that the Judge was correct to deny permission in relation to this topic.
Application of s 34D of the Evidence Act
The appellant’s application for permission to appeal to argue a third ground was referred to this Court. The ground is that the Judge erred in applying s 34D of the Evidence Act to the interviews which were admitted.
Again, having regard to the appellant’s success on ground 1, this ground does not strictly arise. Nonetheless, I propose to say something about it.
As will be seen from the excerpt of the reasons for verdict which follows, the Judge doubted that s 34D of the Evidence Act had application to the evaluation of the recorded interviews, but determined to err on the side of caution and incorporate a consideration of the issues raised by the section. Her Honour said this.
118The prosecution submitted that pursuant to s 34D of the Act, I am to estimate the weight to attach to what CR says in the interviews having regard to the contemporaneity of the events in the statement CR described and whether or not she had any incentive to conceal or misrepresent facts.
120I have been assisted by the very helpful analysis of whether the Court is required to comply with s 34D by the decision of Muscat DCJ in R v Huynh [2017] SADC 49 at [30] – [40] where His Honour concluded that ‘once an interview admitted under s 13BA is treated as evidence, s 34D appears not to be applicable on its own wording’. With respect, I agree with that conclusion, but as the issue was not argued before me, I approach the weight to be attached to CR’s evidence in the interviews as if s 34D applied.
I now reproduce s 34D(1) of the Evidence Act.
34D—Weight to be attached to evidence
(1) In estimating the weight, if any, to be attached to a statement rendered admissible as evidence by this Act, regard shall be had to all the circumstances from which any inference can reasonably be drawn as to the accuracy or otherwise of the statement, and in particular to the question whether or not the statement was made contemporaneously with the occurrence or existence of the facts stated, and to the question whether or not the maker of the statement had any incentive to conceal or misrepresent facts.
Section 34D was introduced by the Evidence Act Amendment Act 1949, No 36 of 1949. It predates by many years the introduction of s 34CA (now repealed) and s 13BA. An examination of the part of the Evidence Act in which it appears makes it clear that the intention was that it apply to statements such as those which were admitted pursuant to s 34C, a section enacted at the same time. Section 34C applies to documents attesting to matters which, if proved by direct oral evidence, would be admissible.
In my opinion s 34D has no application to the evaluation of issues arising under s 13BA. Whereas s 34D is a provision of general application, s 13BA is specific and has, built within it, safeguards relating to the assessment of the evidence, including required directions to the jury.
I consider it to be clear that it was unnecessary for the Judge to direct herself in terms of s 34D, a view to which the Judge herself tended. However, the Judge’s reference to that section cannot have harmed the appellant’s interest. The considerations to which the section draws attention are only the sorts of matters to which a tribunal of fact would naturally have regard. Some of these considerations were, for that reason, addressed elsewhere in the reasons of the Judge.
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, and
3direct 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.