R v Finn (No 2) - [2015] SADC 33

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v FINN (No 2)
Criminal Trial by Judge Alone
[2015] SADC 33
Reasons for Ruling of His Honour Judge Stretton
6 March 2015
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE
CRIMINAL LAW - EVIDENCE - COMPLAINTS - ADMISSIBILITY OF DETAILS AND FACT OF COMPLAINT
CRIMINAL LAW AND PROCEDURE - EVIDENCE - TRIAL BY JUDGE ALONE - LIMITED ROLE OF JUDICIAL DISCRETION TO EXCLUDE EVIDENCE IF MORE PREJUDICIAL THAN PROBATIVE IN SUCH TRIALS
At a previous trial before a jury certain evidence of complaint, namely that the complaint was prompted when the complainant was discovered with a plastic bag to her head either inhaling deodorant or trying to kill herself, otherwise admissible pursuant to section 34M of the Evidence Act, was excluded by the trial Judge on the basis that there was ‘too much prejudice’.
The accused was convicted, appealed, the conviction was overturned, he was remanded for retrial, and for that retrial he elected for trial by judge alone.
The Crown sought to lead the previously excluded evidence of complaint in the retrial. Section 285AB of the Criminal Law Consolidation Act provides that a prior voir dire ruling will bind a subsequent trial judge except where it would "not be in the interests of justice".
Observations made as to the former common law position and the operation of section 285AB.
HELD:
1. To determine pursuant to section 285AB whether “it would not be in the interests of justice for the order to be binding”, the subsequent court is required to review the voir dire conducted by the original judge in accordance with the process and principles outlined by Vanstone J in R v Hein.
2.       The subsequent court cannot simply substitute its own view, simply on the basis that it would have come to a different conclusion on the relevant materials.
3.       In determining whether “it would not be in the interests of justice for the order to be binding”, the court must consider whether the original judge relevantly erred. This will require the court to assess whether the original judge considered the correct issues, applied the correct principles of law, considered all relevant material and no irrelevant material, did not mistake the facts, and accorded the parties procedural fairness/justice.
4. Upon review in accordance with the principles outlined in R v Hein, the previous voir dire miscarried in that prosecuting counsel was not afforded a reasonable opportunity to be heard, and the decision to exclude the evidence of complaint in the face of section 34M miscarried. It would not therefore be in the interests of justice for the ruling to bind the conduct of the new trial.
5.       Further, the trial now being before a judge rather than a jury, a proper application of the balancing exercise favours the admission of the evidence, as it has long been recognised that a judge can and does discard any prejudice a jury may act upon. It would not be in the interests of justice to exclude relevant and admissible evidence before a judge on the basis that it was not admissible at a previous trial before a jury, and accordingly for that reason it would not be in the interests of justice for the previous ruling to bind the conduct of the new trial.
6. The evidence of complaint is relevant and admissible pursuant to section 34M of the Evidence Act, there is no discretionary basis to exclude it, and it will accordingly be admitted.
Evidence Act 1929 s 34M; Criminal Law Consolidation Act 1935 s 285AB, referred to.
R v Finn [2014] SASFC 46; Rogers v The Queen (1994) 181 CLR 251; The Queen v Carroll (2002) 213 CLR 635; R V Polley (1997) 68 SASR 227; R v Blayney & Blayney [2002] SASC 192; R v Hein [2013] SASCFC 97; House v The King (1936) 55 CLR 499; R v Thaller and Gee (Question of Law Reserved) [2001] SASC 14; Driscoll v The Queen (1977) 137 CLR 517; R v H,T [2010] SASCFC 24; R v S, DD [2010] SASCFC 80; R v England [2013] SASCFC 79; Abrahamson v The Queen (1994) 63 SASR 139, considered.

R v FINN (No 2)
[2015] SADC 33
Background

The accused Matthew Finn is charged with a single count of unlawful sexual intercourse that is alleged to have occurred on a houseboat near Renmark between July 2004 and July 2005.
He was convicted by a jury at a previous trial, however that conviction was overturned by the Court of Criminal Appeal as the trial judge failed to direct the jury in relation to the forensic disadvantage the accused had suffered due to the effect of the passage of time on certain witnesses’ memories.[1]
[1] R v Finn [2014] SASFC 46.
The accused is now being retried, and has now elected for trial by judge alone.[2]
[2] Section 7 of the Juries Act 1927 (SA) as amended.
This application
The Crown applies to lead evidence of an initial complaint made by the complainant to her sister. Such evidence is ordinarily admissible pursuant to section 34M of the Evidence Act 1929.[3]The application is complicated by the fact that the previous trial judge ruled some aspects of that complaint inadmissible, and the Crown seeks to revisit that ruling and seeks to lead the complaint and the circumstances of the complaint in its entirety. That course is opposed by the accused.
[3] Subject to the usual evidential discretions, and with appropriate directions to the jury.
Section 285AB of the Criminal Law Consolidation Act 1935 contemplates and regulates such an application. It does so in somewhat novel terms. The legislation is recent and has not been the subject of definitive appellate consideration.
It is therefore necessary to consider the meaning of section 285AB in a little more detail that would be usual in a trial setting.
On what basis can a subsequent trial judge depart from an earlier trial judge’s ruling?
The traditional common law position was that a voir dire ruling excluding evidence was to be regarded as final, so long as the verdict to which it related had not been quashed or set aside.
The High Court considered this issue in Rogers v The Queen (1994) 181 CLR 251. In an earlier trial an interview containing admissions to certain robberies had been ruled as involuntarily made. In a subsequent trial of other robberies being tried separately, the prosecution sought to lead the same interview as it also contained admissions to those other robberies.
The majority held that in those circumstances attempting to re-litigate an issue previously determined on a voir dire amounted to an abuse of process.
Deane and Gaudron JJ said at 280:
Strictly, the 1989 ruling on voluntariness was concerned only with those parts of the records of interview relevant to the offences for which the appellant then stood trial. However and as already indicated, the statements which the prosecution wishes to tender in the appellant's forthcoming trial are, so far as voluntariness is concerned, exactly the same as those tendered in the 1989 proceedings. In the circumstances, tender of the records of interview constitutes a direct challenge to the 1989 determination which was a final determination, or became so, once verdicts were returned. The challenge is one which invites “the scandal of conflicting decisions”. And it jeopardises public confidence in the administration of justice: in a context where the onus of proof would be the same and where there is no claim of “fresh evidence” or fraud, a determination that the confessions were made voluntarily would undermine the incontrovertible correctness of the verdicts of acquittal returned in 1989; equally, there would be a shadow over any conviction on the charges in the present indictment if confessional statements are admitted in evidence notwithstanding the earlier judicial determination that the circumstances in which they were made did not support a finding of voluntariness.
The course proposed by the prosecution amounts to an abuse of process.
Mason CJ expressed himself even more emphatically; at 257:
The tendering of the confessions by the prosecution was vexatious, oppressive and unfair to the appellant in that it exposed him to re-litigation of the issue of the voluntariness of the confessional statements in the records of interview. This issue had already been conclusively decided in the appellant's favour because the confessions sought to be tendered — although relating to different crimes — were made at the same time and in exactly the same circumstances as the confessions that were the subject of the voir dire. Re-litigation in subsequent criminal proceedings of an issue already finally decided in earlier criminal proceedings is not only inconsistent with the principle that a judicial determination is binding, final and conclusive (subject to fraud and fresh evidence), but is also calculated to erode public confidence in the administration of justice by generating conflicting decisions on the same issue.
The principle is only strictly applicable once a verdict has been entered and so long as the verdict to which the voir dire ruling related has not been quashed or set aside. As Deane and Gaudron JJ said at 278-279:
It was put on behalf of the respondent that there is nothing conclusive about a ruling as to the admissibility of evidence which, it was said, involves no final determination of any issue of fact or law. That is so. But this case is concerned with the determination of an issue of fact, namely, voluntariness, on which the admissibility of confessional material depends. It was also put that a voir dire examination does not result in a conclusive determination of voluntariness for it can be reconsidered at any time during the trial. Again that is so, but it becomes final once a verdict is returned and it remains final unless the verdict is quashed or set aside. Moreover, its character as a final determination does not depend on whether there is a right of appeal: leaving aside the limited circumstances in which a court can vacate its own judgment, a judicial decision is final and binding unless quashed or set aside on appeal; it is necessarily final if there is no right of appeal.
The High Court acknowledged these expressions of principle more recently in The Queen v Carroll (2002) 213 CLR 635. As Gaudron and Gummow JJ said at 661:
The interests at stake in a case such as the present were discussed in Rogers v The Queenand in Pearce v The Queen. They touch upon matters fundamental to the structure and operation of the legal system and to the nature of judicial power. First, there is the public interest in concluding litigation through judicial determinations which are final, binding and conclusive. Secondly, there is the need for orders and other solemn acts of the courts (unless set aside or quashed) to be treated as incontrovertibly correct. This reduces the scope for conflicting judicial decisions, which would tend to bring the administration of justice into disrepute. Thirdly, there is the interest of the individual in not being twice vexed for one and the same cause. Finally, there is the principle that a cause of action is changed by judgment recovered in a court of record into a matter of record, which is of a higher nature.
There is competition between (i) securing truthful testimony, and hence protecting the integrity of the judicial process and public perceptions thereof and (ii) preventing successive criminal prosecutions in respect of what in substance may be the same elements of an offence for which an individual earlier has been acquitted. That competition is capable of legislative resolution in different ways and with various exceptions and qualifications detailed by statute. (citations omitted)
Hence it was clear from these authorities that a subsequent trial judge will be bound by the previous trial judge’s ruling on an identical voir dire issue, so long as a verdict was entered which had not been quashed or set aside.
Applications of this important qualification may be observed in a number of South Australian cases. In R v Polley (1997) 68 SASR 227 there was a ruling on the admissibility of documents by a judge for the purposes of an upcoming trial, however the trial did not proceed on that date, but proceeded at a later time before another judge. Mullighan J held that it was for the new trial judge to come to his own view as to the admissibility of evidence in the trial that was to proceed before him, and that he could not merely adopt the earlier ruling. Similarly, in R v Blayney & Blayney [2002] SASC 192 there had been a series of mistrials and the matter then came on a further time for trial. Doyle CJ held that the new trial judge was not bound by prior voir dire rulings and had to determine for himself the admissibility of evidence on the voir dire.[4]
[4] [2002] SASC 192 at [46], Lander and Williams JJ concurring.
In 2012 the South Australian Parliament resolved to address the issue of previous determinations or orders made by judges in criminal proceedings laid on information.
Section 285AB of the Criminal Law Consolidation Act 1935 was enacted and now provides:
285AB—Determinations of court binding on trial judge
A determination or order made by a judge of the court in proceedings dealing with charges laid in an information is binding on a judge of the court presiding at the trial of the defendant, whether the trial is the first or a new trial following a stay of the proceedings, discontinuance of an earlier trial or an appeal, unless the trial judge considers that it would not be in the interests of justice for the determination or order to be binding or the determination or order is inconsistent with an order made on such an appeal.
As can be seen, the section has general application, and will apply in cases such as here, to provide that a trial judge presiding over a retrial following an appeal will be bound by a voir dire determination or order made by a judge at the earlier trial, whether or not the prior ruling involved a final determination, and whether or not the verdict to which it may have related was quashed on appeal. There are however two exceptions. The first exception is where it would “not be in the interests of justice”. The second exception is where the prior determination or order is inconsistent with an order made by the appeal court.
The appeal court did not deal with this voir dire issue or the previous trial judge’s ruling concerning it, hence the previous voir dire ruling will bind the current trial unless it would “not be in the interests of justice” for the previous voir dire ruling to remain binding.
So, what does that mean?
Firstly, the section takes the time and trouble to specifically provide that, so far as is relevant in the case at bar, prior voir dire rulings are binding on subsequent trial judges.
The starting point must be that the provision must have at least some work to do. Axiomatically, a subsequent judge would not in any event depart from a prior voir dire ruling if the subsequent judge agrees with the earlier ruling, so the section has little application in such instance, except to obviate the need for the trial judge to reconsider the matter de novo. The legislation allows the subsequent judge to apply the prior ruling, without the requirement to reconsider it anew where the prior ruling was not part of a final determination in the R v Rogers sense.
Section 285AB also has potential application in circumstances where the subsequent judge may not agree with the prior ruling, and accordingly, were they to consider the matter anew, might determine the voir dire issue differently.
The section does not provide a broad discretion to adopt a prior ruling, rather it binds the subsequent judge to the earlier ruling subject to an exception where it would not be in the interests of justice to follow it. In my view it is significant that rather than provide a broad discretion, the section imposes a prohibition with an exception.
Accordingly at first blush the section appears to convey that a subsequent trial judge cannot as a matter of course start from scratch to consider the voir dire issue, and consequently, upon such consideration, depart from the prior voir dire ruling simply because he or she doesn’t agree with it.
Secondly, however, it is plain that there are circumstances where a trial judge may depart from a prior voir dire ruling, because the section specifically provides that a trial judge can do so where “it would not be in the interests of justice” for it to be binding.
At a superficial level it could be said that it is never in the interests of justice for a judge or a court to be bound by and required to apply a decision that it considers wrong. However, as observed, that may well not be the test, for if it were, the statutory prohibition at the root of section 285AB would be rendered of little application except to obviate the need for a further voir dire hearing where everyone at the new trial agreed with the prior voir dire ruling. If that were the test, whenever parties disagreed with a ruling, they could simply start again with the new judge in the hope they could persuade the court to take a different view. Also, if that were the test, it would have been an easy matter for the legislation to say so in so many words.
The wording of the section in prescribing that the subsequent court is bound by the prior ruling unless the interests of justice demand otherwise, must do more than provide the subsequent court with an unfettered discretion either to adopt the earlier ruling without a hearing or to conduct a further voir dire for the subsequent court to form its own view on the voir dire issue at bar.
Accordingly, for the court to revisit the prior voir dire decision, section 285AB likely requires more than the mere wishes of the judge or parties to re-litigate the voir dire, on the basis that they take the view it might, may be, or was wrong.
Accordingly, the crucial issue is what might be required, over and above the parties’ or the new trial judge’s view that the earlier voir dire ruling might be wrong, for it to be “not in the interests of justice” to continue to apply it? Or, perhaps to view the same question from another angle, and to throw the issue into stark relief for the purpose of analysis, when will it be in the interests of justice for a trial judge to continue to apply a prior voir dire ruling that the new judge thinks might be or is wrong?
The provision was introduced by way of the Statutes Amendment (Courts Efficiency Reforms) Act, 43 of 2012. In the Second Reading Speech of 15 March 2012 Minister Gago commenced by setting out the purpose of the legislation:
The primary focus of this Bill is reducing the backlog of criminal cases in the District Court and reducing delays in the finalisation of criminal matters, with the aim of improved court efficiency. The Bill predominantly focusses on the jurisdiction and procedures of the courts with further amendments to a range of Acts as proposed by various parties involved in the justice system, including the judiciary, to improve the general efficiency of the courts.[5]
[5] Hansard, proceedings of the Legislative Council, Thursday 15 March 2012, page 593.
The Minister went on to describe the increasing caseload of this court, the consequent lengthening of the time taken to hear the increasing number of cases, and the potential for extended delays to erode confidence in the criminal justice system. She described how the legislation proposed a raft of changes designed to address such issues, including the enactment of the section in question. The Minister addressed the section specifically:
The changes contained in this Bill will make pre-trial rulings binding on a different trial Judge. The Bill provides that rulings made on any matter pursuant to section 285A (sic) of the Criminal Law Consolidation Act 1935 in advance of trial are binding on the trial Judge irrespective of whether the rulings were made by the trial Judge. This will increase efficiency and timeliness in the criminal jurisdiction.[6]
[6] Hansard, proceedings of the Legislative Council, Thursday 15 March 2012, page 595.

The section was consequently enacted and came into operation on 11 March 2013. It has received only limited appellate consideration. In R v Hein [2013] SASFC 97 Vanstone J made some observations about the operation of section 285AB. The appeal was decided on other grounds, and indeed the court held that the section did not apply to the trial under consideration for timing reasons. To properly understand Vanstone J’s observations it is necessary to include the summary of counsel’s arguments to which she was responding. Her Honour said at [34]-[36]:
Mr Boucaut argues that the absence of reasons for the rulings robbed the second judge of the ability to evaluate whether it was not in the interests of justice for the orders to be binding. It was not sufficient, he submitted, that having heard each side’s evidence the original judge clearly stated that he did not believe the appellant’s evidence and invited defence counsel to proceed on that basis. That left open the question of whether the judge applied the correct principles and it also said nothing of the various considerations relevant to the application for the discretionary exclusion of most of the recorded interview.
Since I have found that a good deal of the interview should have been excluded this ground falls away. However, I would make an observation or two about it in deference to the arguments we have heard.
Section 285AB envisages that (where there is a renewal of the application for exclusion) the second court will make an assessment of the material considered by the original judge, the issues raised and the original ruling. It will need to do so in order to answer the question whether it is not in the interests of justice for the orders to be binding. (Here the second judge did so and gave reasons for his decision.)
I do not consider that the absence of full reasons of itself would have justified disregard of the original judge’s findings. Particularly if the voir dire had turned only on the factual dispute relating to events prior to the recorded interview, then the bare statement that the judge rejected the appellant’s evidence would have been sufficient. In relation to the undisputed factual material – the interview – the second judge had available, not only the material itself, but the transcript of the voir dire before the original judge. He was in a position to make an assessment for himself of the interests of justice question.
It is not an error of law not to give reasons. Here, the original judge indicated that he would give further reasons later if asked. He was not asked to do so. Reasons would have enabled the second judge and this Court to see how the first judge viewed the questioning; whether he considered it raised questions of voluntariness or discretion only and, if the latter, why he chose not to exercise his discretion, and also if the appellant’s evidence informed his decision about the recorded material. However, the very fact that this Court has decided that the majority of the questioning at interview should have been excluded tends to indicate that the task envisaged by s 285AB could be carried out (in relation to recorded material) without the benefit of full reasons.
For the reasons mentioned earlier it is unnecessary to say more.
It is clear from Vanstone J’s reasons that whenever a party seeks to re-litigate a prior voir dire ruling the court is required to review the evidence and material before the original trial judge, consider the issues that were raised before the Judge, and consider the original ruling itself, to determine whether it is in the interests of justice to allow the ruling to stand. That these aspects of the Judge’s ruling must be reviewed and checked, can only mean, in effect, checked for correctness or whether they display error leading to a conclusion that it would not be in the interests of justice to allow the ruling to stand.
Her Honour then went on to consider, in the context of a hypothetical section 285AB assessment, whether the complaint as to the adequacy of the first judge’s reasons had been made out and in doing so considered whether in the circumstances what the first judge did amounted to an error of law.
That approach, and the other observations made by Vanstone J, tend to suggest that the second judge, in determining whether it is in the interests of justice for the previous order to be binding, reviews all the material and looks to see whether there was an appreciable error in the way that the original judge approached the matter.
This is somewhat akin to the way an appellate court approaches whether a subordinate court has erred in the exercise of a discretion. An appellate court will look at whether the primary judge acted upon a wrong principle, took account of irrelevant matters, failed to take account of relevant matters, mistook the facts, or failed to accord procedural or natural justice in some material way.[7]
[7] House v The King (1936) 55 CLR 499 at 505, R v Carroll (2002) 213 CLR 635 at 657.
The operative principle is whether it is or is not in the interests of justice for the existing ruling to stand.
It may be apposite to observe that at an appellate level, the court will ordinarily intervene where there is apparent error or, even if there has been no discernible error the decision is such that there must have been error, and in any event where a miscarriage of justice will occur absent intervention.
It may also be apposite to observe the way in which appellate courts approach earlier otherwise binding decisions that they are asked to depart from. The longstanding principle applied by the Full Court is that it will only depart from its previous decisions where it is satisfied that its earlier decision was “plainly wrong”.[8]
[8] R v Thaller and Gee (Question of Law Reserved) [2001] SASC 14.
Fundamentally however, a ruling that will result in a miscarriage of justice, can scarcely be in the interests of justice to let stand.
Gathering all this together, in the albeit limited time available for the publication of this trial ruling, it seems to me that:
·The purpose of the legislation is to increase procedural efficiency in the trial processes of the District Court, and is aimed squarely at increasing the timeliness of justice delivery by, in the instance of section 285AB, preventing the re-litigation of voir dire issues where there is a retrial.
·Section 285AB, to have realistic work to do, and in light of the intention ascertainable from its words and the second reading speech, must mean that parties cannot simply re-litigate a voir dire in the hope of a different result, and that a judge cannot just embark on a new voir dire with a view to forming his or her own view de novo.
·The issue as to whether it is or is not in the interest of justice for the prior ruling to be binding, requires more than a subsequent judge starting a new voir dire, taking a different view and coming to a different decision, without more.
·In order to answer the question whether it is not in the interests of justice for the orders to be binding, the subsequent judge must make an assessment of the material considered by the original judge, the issues raised and the original ruling.
·The test is akin to the review of a decision on appeal, in that the judge may not simply substitute their own view, but may depart from the earlier ruling if the earlier decision palpably miscarried in the sense recognised by House v The King and subsequent authorities. This is because it will not ordinarily be in the interests of justice for any court to be bound by an earlier decision that has palpably miscarried.
·This will involve an assessment as to whether the original judge considered the relevant issues and applied the correct principles of law, considered all relevant material and considered no irrelevant material, did not mistake the facts, and accorded the parties procedural fairness/justice;
·That is the nature of the assessment that must be conducted to determine whether it would not be in the interests of justice for the subsequent trial judge to be bound by the prior voir dire ruling. Fundamentally, it will ordinarily not be in the interests of justice for a subsequent court to be bound by an earlier decision that has observably miscarried in such a way.
Conclusion as to the process and test required where pursuant to section 285AB of the Criminal Law Consolidation Act a trial judge is asked to depart from a previous judge’s voir dire ruling
To determine pursuant to section 285AB whether “it would not be in the interests of justice for the order to be binding”, the subsequent court is required to review the voir dire conducted by the original judge.
The court cannot simply substitute its own view, simply on the basis that it would have come to a different conclusion on the relevant materials.
In determining whether “it would not be in the interests of justice for the order to be binding”, the court must consider whether the original judge relevantly erred. This will require the court to assess whether the original judge considered the correct issues, applied the correct principles of law, considered all relevant material and no irrelevant material, did not mistake the facts, and accorded the parties procedural fairness/justice.
Review of the original voir dire in this matter
The case against the accused is that the accused, an adult, in the course of a houseboat trip with the 13 year old complainant and others in 2004-2005, was alone with the complainant on the upper deck of the houseboat one night and took that opportunity to have sexual intercourse with her.
A range of matters were subject to objection on the original voir dire,[9] however those were either resolved by agreement or were subject to rulings by the former trial judge about which there is no complaint. A single issue remains, wherein the Crown seek to advance evidence ruled out by the former trial judge.
[9] Rule 15 notice dated 20 January 2014.
The Crown submits that the evidence was and is plainly admissible, and that the former judge erred in several ways by not admitting it, and that accordingly it falls within the exception recognised by section 285AB, and accordingly should now be admitted. The Crown submit it would not be in the interests of justice for the previous trial judge’s incorrect exclusion of this item of evidence to bind a new trial.
The issue concerns aspects of the evidence of complaint that the Crown sought to lead against the accused, that the defence sought to exclude at the previous trial on the basis that it was “irrelevant or more prejudicial than probative”.
The challenged evidence comprises the circumstances surrounding the complainant’s initial complaint. The evidence to be given by the witness to that complaint is succinctly summarised in her declaration on the topic:[10]
I walked into my son’s bedroom one day with my son, and (the complainant) was sitting on the bed with a plastic bag completely over her head. I freaked out and asked her what she was doing and (the complainant) said she wanted to kill herself. I asked her why and she eventually told me she felt horrible and disgusted with herself because Matthew Finn (relationship with the witness described) had had sex with her. (The complainant) said they were on a houseboat trip and she was on the top deck with Matthew, and (name given) and (name given) had gone to bed.
[10] Declaration of the witness dated 24 March 2013, page 2.
The voir dire held by the former trial judge concerning this issue was surprisingly brief. Indeed it comprised barely two pages of transcript, including the Judge’s ruling. As several issues arise from it, I set it out in full.
HIS HONOUR: Then that leaves the issue of the complaint to (the witness to the complaint) and the circumstances surrounding that complaint. Mr White, you’re not challenging the fact that the complainant complained to (the witness to the complaint)?
MR WHITE: No.
HIS HONOUR: It’s just the circumstances in which the complaint followed; namely, in the course of an attempted suicide?
MR WHITE:Yes. Under 34M your Honour still has the residual discretion to deal with any unfairness or lack of probative value when considering its prejudicial effect under 34M. In my submission, the suicide attempt –
HIS HONOUR: Isn’t that what precipitated her asking what was wrong and that led to the complainant disclosing to (the witness to the complaint) the act of intercourse said to have taken place on the houseboat?
MR WHITE:It did. I can understand your Honour’s question and I understand the usual ambit of complainant evidence under this section involves how it was elicited.
HIS HONOUR: Yes.
MR WHITE:I’ll just turn up the passage from (the witness to the complaint). Your Honour will see at p.2 –
HIS HONOUR: Really, how is it to be led by the prosecution that the complainant disclosed to (the witness to the complaint) this complaint of unlawful sexual intercourse: Otherwise it looks like it just came out of the blue, Mr White.
MR WHITE:A resolution is that (the witness to the complaint) walks into the room and sees the complainant in extreme distress and, in my submission, then they can lead in this matter, ‘Why are you so distressed? She told me she felt horrible’.
HIS HONOUR: That’s a solution. That seems to be a very sensible solution offered by Mr White.
MS GILES: In my submission, there is no unfairness in leading from the complainant or the complaint witness the proper circumstances in which the complaint came about.
HIS HONOUR: You agree not to elicit all the other incidents of her behaviour, namely, self-harming and so on; so, having agreed to that, I think what Mr White has proposed in terms of the state of distress of the complainant is a very sensible and practical solution to what would be opening up all of the history of self-harm.
MS GILES:In my submission, the difference between this evidence and the other evidence that I’m not going to lead is that this falls well within the ambit of 34M in that it explains why the complaint was made at that particular time.
HIS HONOUR: Mr White says that can be done through leading (the witness to the complaint) that she observed her sister in a very distressed state. Why does one have to lead that she was sitting on her bed with a plastic bag over her head? It still achieves the same purpose. She was distressed and that led to an inquiry and a disclosure.
MS GILES:The difficulty will be that that is the complaint witness’s evidence about what took place, but the complainant says that what took place is that she was sitting in her bedroom with a bag over her head not attempting suicide but engaging in inhaling a substance, or something like that.
It’s going to be difficult to reconcile those two things when her evidence is going to be ‘I was sitting there inhaling fumes with a bag over my head and then my sister came in and I told her why I was upset’.
HIS HONOUR: There is a conflict then between the evidence of the complainant and that of the sister?
MS GILES:There will be in terms of what they say –
HIS HONOUR: Was the reason for the bag being over the head.
MS GILES:The bag being over the head, yes, that’s correct. Whether or not there was a conversation about her attempting to commit suicide afterwards is something that will come from the complaint witness.
HIS HONOUR: No, I’m satisfied that there is too much prejudice in that evidence and I will accede to the accused’s application that that not be led. You heard from Mr White: you can lead from the complaint witness that the complainant appeared to be very distressed and that that led to an inquiry being made as to the reasons for that state of distress.
So I rule in favour of the accused on that issue and I’ll leave it to you as to what you wish to elicit from the complainant and (the witness to the complaint), but you are not to elicit that there was an attempt to take her own life from (the witness to the complaint).
MS GILES:In terms of leading from the complainant that she had a bag over her head ‑
HIS HONOUR: I won’t allow you to lead that either.
MS GILES: Okay, thank you, your Honour.
Procedural fairness
As can be seen, the judge initially attempted to broker agreement between the Crown and the defence, and as soon as it became apparent that such agreement was not forthcoming, he clarified exactly what evidence was sought to be led and seemingly ruled immediately without hearing any submissions from either counsel as to what one may think would be a number of relevant considerations, such as the test pursuant to section 34M, that the evidence was prima facie admissible pursuant to section 34M subject only to a residual discretion to exclude, and in relation to that residual discretion, the degree of probative weight that the evidence had, the degree of prejudice that may or may not flow to the accused by admitting it, and the balancing of the two.
There was no indication that the Crown had concluded their submissions, indeed the exchange gives all the appearance of the Crown having barely commenced submissions. The judge ruled that the evidence that the complainant said she was trying to kill herself because of how she felt as a result of what the accused did to her would be excluded because “there is too much prejudice”. I take it that was the judge indicating a conclusion that the evidence was more prejudicial than probative, although there is no overt indication that the judge considered the probative weight of the evidence pursuant to its statutory admissibility per section 34M, or undertook the balancing exercise required between probative weight and prejudice to an accused required in the exercise of the residual discretion to exclude plainly admissible evidence on the basis that prejudice to an accused outweighs probative weight.
The transcript reveals that prosecuting counsel then sought to commence submissions about the observations made of the circumstances of the complaint, namely that the complainant had a plastic bag over her head. The trial judge interrupted counsel’s opening sentence to rule against that as well, without allowing prosecuting counsel to finish their initial sentence, let alone develop any submissions on the topic.
The transcript, regrettably, conveys the strong impression that the judge had made up his mind by the end of the prosecuting counsel’s opening few paragraphs and decided to rule immediately without hearing any more submissions from prosecuting counsel, then was not prepared to hear the end of the prosecutors first sentence on the topic of whether the fact that the complainant had a plastic bag over her head could be led.
In fairness, the judge may have assumed, albeit without checking, that prosecuting counsel was not going to make any further submissions, or may have been so convinced of the correctness of his position that he believed further argument would not assist. Further, prosecuting counsel did not protest at the Judge’s actions nor specifically ask to make further submissions. On the other hand, in fairness to prosecuting counsel, given the fact that the judge had summarily ruled against her and done so in plain and unambiguous terms, it may well be that prosecuting counsel was of the view that not only were further submissions not welcome, but that objectively there was no point flogging what was obviously, to the trial judge at least, a completely dead horse.
On an assessment of the record however, in an objective sense, on balance, the former judge ruled without allowing prosecuting counsel to embark meaningfully on submissions on the topic nor complete them. No doubt such intervention may on occasions be justifiable where counsel seeks to pursue an obviously untenable and unarguable legal position, or descends to unreasonable prolixity, but that was not the case here. Section 34M specifically provides that the evidence in question is admissible, and the public policy to that effect is clear from the legislation. In those circumstances, there was a strong case for its admission, and procedural justice required that counsel be afforded a reasonable opportunity to develop and complete their submissions. As much flows from the important audi alterum partem principle that is a fundamental component of natural justice. In simple terms, a fair hearing requires that a party be fully heard before a decision is taken against them. The voir dire miscarried as, on an objective assessment, that did not occur.
The exercise of the residual ‘unfairness’ discretion to exclude an otherwise admissible section 34M initial complaint

The Crown also submits that the decision was plainly wrong, as the evidence is specifically admissible pursuant to section 34M, and on a proper analysis there is no prejudice to the accused in a legal sense. They submit that while it is not possible to detect error in the previous judge’s reasoning as he gave no reasons, beyond the three words “too much prejudice”, it is one of those cases where the decision is so obviously wrong there must have been an error of principle.
Although none of the following had the chance to be raised in argument before the previous trial judge, the starting point is that section 34M provides that evidence of an initial complaint is admissible, and it does so in the most emphatic terms.
The section specifically ‘abolishes’ the common law on the topic, and then specifically provides that evidence relating to the making of an initial complaint of an alleged sexual offence is admissible in a trial of a charge of a sexual offence. The section goes so far as to provide that the evidence is admissible despite any other rule of law or practice. The section also goes so far as to provide a series of examples that indicate that evidence of the circumstances surrounding the complaint should not be unduly delimited. Those examples make it plain that evidence of when, why, how, and to whom the complaint was made and the content of the complaint itself may be given, and may be given by any person. A more emphatic statutory expression of the admissibility of a certain category of evidence is hard to locate.[11]
[11] In introducing the amending legislation the Minister explained its purpose: “This Bill deletes section 34I of the Act and replaces it with a new provision (section 34M) that expressly abolishes the common law on the admissibility of recent complaint in sexual cases, including the Kilby/Crofts directions. It forbids any suggestion or statement to a jury that the timing of the reporting of a sexual offence has an inherent significance for the complainant's credibility or consistency of conduct. It allows the admission of evidence of a complainant's initial report of a sexual offence, if relevant, whenever that occurred. That evidence may be given by any person about when the report was made and to whom, its content, how the complaint was solicited, why the complainant reported the alleged offence to that person at that time and why the complainant did not report the alleged offence to someone else at an earlier time (if relevant).” Second Reading Speech, Hansard, 28 February2008.
Although the legislation is recent, it has been considered by the Supreme Court on several occasions. The Full Court has held that there is residual discretion to exclude evidence otherwise admissible pursuant to section 34M if it would be unfair to admit it, or it is in some way tainted with illegality.[12] There is no suggestion of illegality here, rather the suggestion is that it would be unfair to admit the evidence, in that its admission would render the trial unfair in the sense articulated by the High Court in Driscoll v The Queen.[13] In that case Gibbs J, with whom Mason, Jacobs and Murphy JJ agreed, described the residual unfairness discretion thus;
…It has long been established that the judge presiding at a criminal trial has a discretion to exclude evidence if the strict rules of admissibility would operate unfairly against the accused. The exercise of this discretion is particularly called for if the evidence has little or no weight, but may be gravely prejudicial to the accused: see, e.g., R. v. Christie; Noor Mohamed v. The King; Harris v. Director of Public Prosecutions; and Kuruma v. The Queen. … (citations omitted)
[12] R v H,T [2010] SASCFC 24 at [11]-52, R v S, DD [2010] SASCFC 80 at [116]-[123], R v England [2013] SASCFC 79.
[13] (1977) 137 CLR 517 at 541-542, as cited by Gray J in R v H,T [2010] SASCFC 24 at [41].
This is not the place for a review of the countless authorities on the topic and their relevance to section 34M, although I have regard to the detailed analysis undertaken by Gray J in R v H,T [2010] SASCFC 24 at [11]-[52], and Peek J’s additional observations in R v S, DD [2010] SASCFC 80 at [116]-[123].
It was never articulated in argument before the former trial judge why the proposed evidence was suggested to be prejudicial to the accused, nor did the former trial judge say why he thought that it was, in his brief ruling.
Given what was excluded, the effect of the ruling is that the former trial Judge must have thought that the evidence that the complainant disclosed the offending because she was found with a plastic bag over her head inhaling a substance and possibly attempting suicide, and was asked why, was in the Driscoll sense, “of little weight and gravely prejudicial to the accused”, or as it is more commonly described; that the prejudice to the accused outweighed the probative weight to such a degree that the otherwise admissible evidence be excluded.
The essence of the evidence is that the complainant was so upset by what the accused had done, she had a plastic bag over her head for the purpose of inhaling a substance and possibly attempting suicide, and when asked why, disclosed the offending against her.
The starting point must be to recognise that victims of alleged sexual offending are highly likely to be upset, indeed extremely upset, at what has been done to them. Accordingly very often either that extremely upset state will generate the complaint of itself, or generate behaviour likely to elicit an enquiry and a responding disclosure of the complaint. Common experience and indeed long experience in this court reflects that self-harm is a regrettably common occurrence amongst victims of crime and trauma, and so disclosure in circumstances where a victim is extremely upset or indulging in aberrant behaviour is unlikely to be particularly unusual or atypical.
It is also apposite to observe that the more detailed and accurate the evidence about the initial complaint is, the more the court can realistically distil its probative weight as required by section 34M(4)(a).
It may also be observed, when considering whether to exercise the residual discretion to exclude on the basis of excessive prejudice to the accused, that the evidence did not relate to the accused at all. For example it did not purport to reveal other offending, or that the accused was of bad character, or that he had done anything at all wrong, apart from offending against the complainant on the charged occasion.
What the evidence did do was reveal that the complainant was particularly upset to the point of doing what she did, and describe exactly how, as a consequence, the complaint came about. As such it was directly relevant in terms of section 34M. Any prejudice did not extend beyond the core probative elements of the evidence as envisaged by section 34M.
Whilst the evidence involves the complainant having a plastic bag over her head, it does not involve shocking or harrowing conduct, or imagery that might excite horror or disgust, such that it would be likely to divert a properly directed jury from the proper consideration of the issues in the case.
In all, in the absence of reasons, with the greatest of respect to the former trial judge, in my view the evidence was so plainly admissible that the former trial judge must have erred in excluding it.
Should a voir dire decision in a prior trial by jury bind the court upon a retrial conducted by judge alone?
The accused was originally tried before a jury. He was convicted. He appealed and his conviction was overturned for reasons unconnected with this application.[14] A retrial was ordered.[15] The accused then elected to be tried by judge alone, and the case has indeed proceeded in that way.
[14] R v Finn [2014] SASCFC 46.
[15] R v Finn [2014] SASCFC 46 at [49].
An issue therefore arises as to whether the different nature of the current trial ought to affect the applicability of a voir dire ruling at an earlier trial.
The starting point is that section 285AB draws no distinction between a trial by jury and a trial by judge alone. Its terms are plain and unambiguous. Accordingly, the previous ruling will stand unless the subsequent trial judge determines that it would not be in the interests of justice for the previous ruling to remain binding for the purposes of the new trial.
Accordingly the question arises whether a ruling that is appropriate when a trial is conducted before a jury, will be sufficiently inappropriate, inapplicable or unjustified in the case of a trial by judge that it might be ‘not in the interests of justice’ for it to bind a new trial that is being conducted by judge alone?
Central to that question is the issue of whether there are differences in the nature of the respective forensic exercises conducted on the one hand by juries, and on the other hand by judges sitting alone, that might make a voir dire ruling appropriate in one type of trial but not the other.
There are some categories of voir dire and trial rulings which will be plainly unaffected by whether the trial is before a jury or a judge sitting alone. Whether a piece of evidence is relevant to a fact in issue or not, is an issue of admissibility in any trial irrespective of the composition of the court. Whether a piece of evidence has been obtained illegally, and whether the price of obtaining a conviction utilising it is consequently too high, is the same issue of public policy whatever the composition of the court.
Where, on the other hand, issues of prejudice and the impermissible use of evidence are concerned, the law recognises that judges and juries are different beasts. It has been long recognised that judges are legally trained, with long experience in the forensic analysis of evidence, and are by and large more able to dismiss emotion, prejudice and non-legal reasoning from the process of decision making. It’s not that judges are inherently different, better or worse than anyone else, it’s just that they have ordinarily had decades of experience and professional training for the legal role they undertake.
Accordingly, firstly, the test for admissibility will be different where a voir dire issue is in part dependent upon the risk that a court might impermissibly use a piece of evidence that is tendered for only one of a number of possible purposes. A judge has the legal training and experience to define and use the evidence only for the permitted purpose, and must publish a reasoned judgement that allows the parties, the public and any appeal court to check.
Similarly in the case of evidence that is probative but potentially prejudicial, a judge with a lifetime of legal experience and training is less likely to be emotionally swayed against an accused by evidence that while relevant is potentially prejudicial as it discloses, for example, bad character, undesirable or aberrant beliefs, values, attitudes or conduct. Again, the judge must publish a reasoned judgement, allowing the parties, the public and any appeal court to check for any indication that the judge has been swayed by such matters.
If any authority is needed for such an obvious proposition, in Abrahamson v The Queen (1994) 63 SASR 139, King CJ said:
The principle that a judge should exclude evidence, the prejudicial effect of which outweighs its probative force, can have very little part to play in a trial by judge alone. The rule is designed to protect juries from exposure to prejudicial material which has but little probative force. The learned judge in this case was quite able to discard any prejudicial effect of evidence of this kind and to focus on such probative weight as he considered that it properly bore. In my opinion, therefore, the evidence was properly admitted.
Hence where the sole basis for the exclusion of evidence is, as here, that undoubtedly probative evidence is nonetheless sufficiently prejudicial that it ought be excluded, the balancing exercise that the cases recognise must be conducted between the probative weight and the prejudicial effect will often have a different result where a trial by judge alone is concerned, for the simple reason that the potential prejudicial effect on a judge will be substantially less, in many cases zero.
Assuming, for the sake of analysis, an ordinary case, where the prejudicial effect of the evidence in question on a jury is material, but on a judge would be negligible, the issue will arise in the case of a subsequent retrial before a different type of decision-maker (ie judge or jury) whether it would be “not in the interests of justice for the determination (at the earlier trial before the different type of decision maker) to be binding”.
Where the earlier trial is by judge alone and the evidence is admitted, yet the second trial is by jury and the jury would be impermissibly prejudiced, it will obviously be contrary to the interests of justice to admit the material in the subsequent trial before the jury.
Where the earlier trial is by jury and the evidence was not admitted as it may prejudice that jury, then a later trial is by judge alone wherein the judge would not be prejudiced, would it be contrary to the interest of justice to admit the evidence? The starting point must be the fundamental principle that in any case it is desirable that all relevant and admissible evidence be admitted, as the admission of all relevant and admissible evidence has long been recognised as likely to be most productive of a just outcome. On the other hand it does mean that a second voir dire may be held at time and cost to all concerned, and that the accused risks having admitted that which was earlier excluded before a jury. On the other hand, that is what would have happened in any event if the accused had opted for a trial by jury at the outset of the trial process. The evidence would have been admitted.
Inherent in the unarguable proposition that flows from Abrahamson v The Queen (supra), is that some evidence which may be properly excluded before a jury might be properly admitted before a judge. No doubt that issue is one of the many legitimate forensic and strategic issues accused persons and their counsel consider at the outset of the trial process when they make a decision whether they proceed to trial by jury or elect for trial by judge alone.
Similarly, in situations where a trial by jury has occurred, if accused persons and their counsel reconsider whether to elect for trial by judge alone when the matter is retried, they will no doubt consider this same issue, and consider whether in the new forum some evidence that was not led before the jury may become admissible. It is the same exercise with the same risks that they would have conducted at the outset, had they made the election at the outset.
In the final analysis, in my view the desirable course is to err on the side of admitting relevant and admissible evidence where it is appropriate to do so in terms of the trial at hand, and that it is “not in the interests of justice” not to admit relevant and admissible evidence that would not prejudice an accused before a judge, just because at an earlier trial before a jury it may have prejudiced the jury.
Conclusion
At a previous trial before a jury certain evidence of complaint, otherwise admissible pursuant to section 34M of the Evidence Act, was excluded by the trial Judge on the basis that there was “too much prejudice”.
The accused was convicted, appealed, the conviction was overturned, he was remanded for retrial, and for that retrial he elected for trial by judge alone.
The Crown now seek to lead the previously excluded evidence of complaint in the retrial. Section 285AB of the Criminal law Consolidation Act prohibits a voir dire ruling being revisited except where it would not be in the interests of justice for the ruling to stand.
The court has reviewed the voir dire conducted by the former trial judge, in accordance with the process and principles outlined by Vanstone J in R v Hein (supra).
The voir dire miscarried in that prosecuting counsel was not afforded a reasonable opportunity to be heard, and the decision to exclude the evidence of complaint in the face of section 34M was incorrect. It would not therefore be in the interests of justice for the ruling to bind the conduct of the new trial.
Further, the trial now being before a judge rather than a jury, a proper application of the balancing exercise favours the admission of the evidence, as it has long been recognised that a judge can and does discard any prejudice a jury may act upon.[16] It would not be in the interests of justice to exclude relevant and admissible evidence on the basis that it was not admissible at a previous trial with a jury, and accordingly for that reason it would not be in the interests of justice for the previous ruling to bind the conduct of the new trial.
[16] Abrahamson v The Queen (1994) 63 SASR 139, per King CJ at 143.
The evidence will be admitted.