R v DART - [2011] SADC 158

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v DART
[2011] SADC 158
Reasons for Ruling of His Honour Judge Brebner
6 October 2011
CRIMINAL LAW - GENERAL MATTERS
Evidence Act 1929, referred to.
The Queen v JJA [2009] 105 SASR; R v Byerley [2010] 109 SASR 517; C v The Department of Youth and Community Services [1982] 1 NSWLR 65; Campell v Samaras [2011] SASCFC 58, considered.

R v DART
[2011] SADC 158

These are a revised version of reasons given during the course of a criminal trial.
The accused was charged with one count of aggravated indecent assault.
It was said that he indecently handled a female child of 11 years of age. The child made a detailed complaint to her mother shortly after the incident on which the charge was ultimately based was said to have taken place. The complainant was then interviewed by a police officer a matter of hours after the initial complaint surfaced. The interview was video recorded.
The complainant was a protected witness for the purposes of the Evidence Act 1929. There can be no doubt that her complaint to her mother amounted to an initial complaint for the purposes of s34M of the Act.
Counsel for the prosecution, Mr Crowe, sought to tender the video of the interview. He submitted that in conformity with the decision of the Court of Criminal Appeal in R v JJA [2009] 105 SASR 563, the interview was admissible pursuant to s34CA of the Act.
The decision in JJA makes it plain that interviews, such as the one conducted with the complainant in this case, are admissible to prove the truth of that which was asserted by the complainant during the course of the interview, provided always that certain preconditions specified by the Act are satisfied.
It is necessarily implicit in the reasoning of the members of the court in JJA that they were of the view that Parliament intended that interviews, such as the subject interview, had the capacity to be admitted pursuant to s34CA in order to prove the truth of that which had been asserted by the person being interviewed.
Counsel for the accused, Ms Chapman SC, submitted that the relevant aspect of the decision in JJA, and relevant aspects of the subsequent decision of the Court of Criminal Appeal in R v Byerley [2010] 109 SASR 517 have been overtaken by recent events, namely by a Bill which has recently been introduced into Parliament to repeal s34CA and to replace it with a new section to be numbered 34LA.
The Bill is entitled The Evidence (Hearsay Rule Exception) Amendment Bill 2011. In his Second Reading Speech introducing the Bill, the Honourable the Attorney-General said, with reference to the current s34CA:
The Bill also narrows the scope of the section. At present it is being used to enable the admission into evidence of records of police interviews with the alleged victim to prove the truth of what was said in the interview. That was never Parliament’s intention.
S.34LA will not permit the admission by this exception to the hearsay rule of records of interviews of young or mentally disabled alleged victims by investigating police or other authorities. Statements made to police and authorities by way of a report of a crime or in answer to questions about an alleged crime are made with deliberation and premeditation in formal circumstances that cannot justify their admission into evidence by this exception to the hearsay rule.
As can be seen from the Second Reading Speech, the primary aim of the new s34LA is to capture utterances of young children, or mentally disabled people which, because of their nature and context, the hearer thought significant and remembered that which the speaker may not later remember at all, or in enough detail to recount to a court, having had no appreciation of the significance of what he or she was saying at the time.
The Bill itself provides for the specific repeal of s34CA and for the introduction of s34LA. The proposed new s34LA would allow for the admission into evidence of what a person, other than an investigating or other authority, heard a young child say in order to prove the truth of what the child had said. Again, certain pre-conditions would have to be met before what the child had been heard to say could be used to prove the truth of that which had been said.
On the basis of the Second Reading Speech, Ms Chapman submits I am not bound by JJA or Byerley, and that I should find that Parliament did not in reality intend that videos of interviews could be admitted pursuant to s34CA and that I should reject the proposed tender of the video accordingly.
There is no doubt that, in the ordinary course of events, regard may be had to the Second Reading Speech of the introducing Minister as an aid to construction and s22 of the Acts Interpretation Act 1915 mandates a construction which will promote the objects of the particular Act over one which will not.
The question in this case was whether a Second Reading Speech introducing a Bill directed towards repealing a current provision of an Act can be used as an aid to the construction of the current provision itself, particularly when it has already been construed by a court which I am bound to follow.
Counsel were unable to refer me to any authority which is directly on point. Given the nature of the point, this is perhaps not surprising. However, Ms Chapman referred me to some cases dealing with the question of whether an Act which has been passed, but not yet proclaimed, can be used as an aid to construction.
In C v The Department of Youth and Community Services [1982] 1 NSWLR 65 McLelland J, after citing relevant High Court authority, said at p.71:
It seems to me that on the question of interpretation of earlier legislation regard should not be had to the terms of later legislation which will not commence until a date to be proclaimed and which is, accordingly, not yet law. While the enactment of such later legislation can no doubt be regarded as expressing the intention of Parliament as to the meaning which should be given to the earlier, that intention should, I think, also be regarded as conditional upon the legislation becoming law on a date to be proclaimed. Although it happens very seldom, it is always possible that the necessary proclamation will not be made and that the legislation will not pass into law. It seems to me that while such a possibility exists, it would be wrong for a court to take the terms of later legislation into account in interpreting earlier.
In Campbell v Samaras [2011] SASCFC 58, and in the context of an Act which had been passed and some provisions proclaimed and others not, White J held at [185] that the provisions which had not been proclaimed could be called in aid in construing those that had. However, his Honour was of the view that regard should be had to the possibility that the provisions which were not yet in force might never be proclaimed. The other members of the court did not consider this topic.
In Chippendale Printing Company v Commissioner of Taxation, a judgment of the Full Federal Court No.BC9600426 Tamberlin J expressed the view that a Bill which has not yet been passed can be of no assistance in determining the construction of an Act. In broad terms, his Honour’s approach accords with the approach taken by McLelland J in C’s case. In C’s case, McLelland J was plainly of the view that later legislation ought not to be taken into account in interpreting earlier legislation when, although the later legislation had been passed, it had not yet been proclaimed.
At the end of the day, it is always a matter of discerning Parliament’s intention, either from the text of the Act itself, or from the text as supplemented by extrinsic aids such as the Second Reading Speech. It is the intention of Parliament as a whole which must be discerned. Any statements in the Second Reading Speech which outline the intentions of the Bill only become the intentions of Parliament as a whole when the Bill is passed and, applying what I understand the reasoning in C’s case to be, those intentions do not become unconditional until the Act itself is proclaimed.
This case is a step further back from the situation which obtained in C’s case. In this case, there is a statement by the Attorney-General of what he regarded Parliament’s intention to be when s34CA was inserted into the Act a few years ago. Parliament has not yet adopted his statement, and declared what its collective intention in fact was when it inserted s34CA into the Act, by voting the current Bill into law.
In these circumstances, and consistently with C’s case, I concluded that the Second Reading Speech introducing the proposed repeal of s34CA and enactment of 34LA was not available as an aid in interpreting s34CA as it currently stands. Accordingly, I concluded that I remained bound by JJA.
The Second Reading Speech also outlines proposed transitional provisions which are incorporated in the Bill. While I did not rely on this aspect of The Speech in reaching my conclusion, the proposed transitional provisions, as outlined in The Speech, are, in my view, consistent with the conclusion I have reached.
For reasons which are not necessary to mention, I was satisfied that the pre-conditions to admissibility of the video had been met and I admitted it into evidence accordingly.