R v G, AP

Case [2014] SASCFC 43

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v G, AP

[2014] SASCFC 43

Judgment of The Court of Criminal Appeal

(The Honourable Justice Gray, The Honourable Justice Kelly and The Honourable Justice Stanley)

24 April 2014

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - MAINTAINING UNLAWFUL RELATIONSHIP WITH CHILD

CRIMINAL LAW - EVIDENCE - COMPETENCE AND COMPELLABILITY - PARTICULAR PERSONS AND MATTERS - CLOSE RELATIVE

CRIMINAL LAW - EVIDENCE - COMPETENCE AND COMPELLABILITY - PARTICULAR PERSONS AND MATTERS - CHILDREN

CRIMINAL LAW - EVIDENCE - COMPETENCE AND COMPELLABILITY - STATUTORY EXEMPTION APPLICATIONS

CRIMINAL LAW - EVIDENCE - COMPETENCE AND COMPELLABILITY - OATH - COMPETENCE TO TAKE

This is an appeal against conviction.  The defendant and appellant was convicted of the offence of persistent sexual exploitation of a child.  The complainant was the daughter of the defendant and was aged 10 years at the time of the trial.  The complainant gave evidence at the trial and the Judge also admitted into evidence two recorded police interviews given by the complainant. 

Whether the Judge erred in finding that the complainant was incapable of understanding her right as a close relative of the accused to apply for an exemption from giving evidence in accordance with section 21 of the Evidence Act 1929 (SA). Whether section 21 of the Evidence Act applies to a witness who is under no legal obligation to give evidence. Whether the Judge erred in failing to consider pursuant to section 21(3a) of the Evidence Act whether to grant the complainant an exemption from giving evidence even though no application for an exemption had been made. Whether the Judge erred in failing to undertake an enquiry pursuant to section 9 of the Evidence Act as to whether the complainant should give sworn evidence.

Held per Gray J (Kelly J agreeing) (dismissing the appeal):

(1) Section 21 was designed to protect all close relatives who are called to give evidence, whether the subject of a subpoena or not. Accordingly, section 21 was enlivened in relation to the complainant.

(2) It was within the discretion of the Judge to conclude that the complainant’s age precluded her from understanding her right to apply for an exemption under section 21 of the Evidence Act.

(3) Section 21(3a) does not impose an obligation on a judge to consider exercising the power to exempt a prospective witness who is a young child or is mentally impaired.

(4)     Having regard to the report of the trial Judge, affidavit evidence of the complainant and her mother and the circumstances of the trial, there is no reasonable prospect that the Judge would have granted the complainant an exemption from giving evidence.  The proviso should be applied.

(5)     It was within the discretion of the Judge to find, without conducting any further enquiry, that the complainant was capable of giving sworn evidence.  The Judge’s finding that the complainant was incapable of understanding her right to apply for an exemption from giving…

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R v G, AP [2014] SASCFC 43
Case
[2014] SASCFC 43
Decision Date

CaseChat Overview and Summary

The appeal concerned a criminal conviction for maintaining an unlawful relationship with a child. The defendant, the appellant, argued that the trial judge had erred in two respects. Firstly, it was submitted that the judge failed to fulfil her obligations under section 21 of the Evidence Act concerning the complainant. Secondly, the appellant contended that the judge failed to conduct an inquiry under section 9 of the Evidence Act regarding the complainant's competence to give sworn evidence. The appeal was heard by Gray, Kelly, and Stanley JJ.

The central legal issues before the appellate court were whether the trial judge had properly discharged her duties under section 21 of the Evidence Act, which governs the competence and compellability of close relatives of an accused to give evidence, and whether an inquiry into the complainant's competence to give sworn evidence under section 9 of the Evidence Act was required. Section 21 outlines the circumstances under which a close relative can apply for exemption from giving evidence against an accused, and the court's power to grant such an exemption, particularly if the witness is a young child or mentally impaired. Section 9 deals with the presumption that a person is competent to give sworn evidence unless the contrary is proved.

Gray J, with whom Kelly J agreed, found that the complainant gave evidence without apparent difficulty, and it was within the judge's discretion to conclude, without further inquiry, that the complainant was capable of giving sworn evidence and that the presumption under section 9 was not displaced. Stanley J, while agreeing with the outcome, reached his conclusion by a different reasoning. He held that section 21 of the Evidence Act was not enlivened in this case because the complainant was not under a legal obligation to give evidence against the accused. Stanley J emphasised that the right to apply for exemption under section 21(2) is for a witness under an obligation to give evidence, and the court's power to exempt under section 21(3) is predicated on the existence of such an antecedent legal obligation. He concluded that the legislation did not impose an obligation on the complainant to give evidence.

The appeal was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The defendant advanced two contentions on the appeal. First, it was submitted that the Judge erred in failing to discharge her obligations under section 21 of the Evidence Act in relation to the complainant. Secondly, it was contended that the Judge erred in failing to undertake any enquiry under section 9 of the Evidence Act as to whether the complainant should give sworn evidence.Section 21 of the Evidence Act Section 21 of the Evidence Act relates to the competence and compellability of prospective witnesses in a criminal trial who are close relatives of the accused. Section 21 provides:(1)A close relative of a person charged with an offence shall be competent and compellable to give evidence for the defence and shall, subject to this section, be competent and compellable to give evidence for the prosecution. (2)Where a person is charged with an offence and a close relative of the accused is a prospective witness against the accused in any proceedings related to the charge (including proceedings for the grant, variation or revocation of bail, or an appeal at which fresh evidence is to be taken) the prospective witness may apply to the court for an exemption from the obligation to give evidence against the accused in those proceedings. (3) Where it appears to a court to which an application is made under subsection (2)— (a) that, if the prospective witness were to give evidence, or evidence of a particular kind, against the accused, there would be a substantial risk of— (i)serious harm to the relationship between the prospective witness and the accused; or (ii) serious harm of a material, emotional or psychological nature to the prospective witness; and (b) that, having regard to the nature and gravity of the alleged offence and the importance to the proceedings of the evidence that the prospective witness is in a position to give, there is insufficient justification for exposing the prospective witness to that risk, the court may exempt the prospective witness, wholly or in part, from the obligation to give evidence against the accused in the proceedings before the court. (3a)If the prospective witness is a young child, or is mentally impaired, the court should consider whether to grant an exemption under subsection (3) even though no application for exemption has been made and, if of opinion that such an exemption should be granted, may proceed to grant the exemption accordingly. (4) Where a court is constituted of a judge and jury— (a) an application for an exemption under this section shall be heard and determined by the judge in the absence of the jury; and (b) the fact that a prospective witness has applied for, or been granted or refused, an exemption under this section shall not be made the subject of any question put to a witness in the presence of the jury or of any comment to the jury by counsel or the presiding judge. (5)The judge presiding at proceedings in which a close relative of an accused person is called as a witness against the accused must satisfy himself or herself that the prospective witness— (a) is aware of his or her right to apply for an exemption under this section; or (b) is incapable, by reason of age or mental impairment, of understanding his or her right to apply for an exemption under this section. (6)This section does not operate to make a person who has himself been charged with an offence compellable to give evidence in proceedings related to that charge.(7) In this section— close relative of an accused person means a spouse, domestic partner, parent or child.

Decision

Reasons for decision

GRAY J
As earlier mentioned, a review of the transcript of the trial and of the police interviews demonstrates that the complainant gave evidence without any apparent difficulty. In my view, it was within the discretion of the Judge to find, without conducting any further enquiry, that the complainant was capable of giving sworn evidence and that the presumption in section 9(1) of the Evidence Act was not displaced.Conclusion For the reasons given, I would dismiss the appeal. KELLY J: I agree that the appeal should be dismissed for the reasons given by Gray J. STANLEY J: In this matter I have had the advantage of reading the reasons of Gray J. While I agree with the conclusion reached by his Honour, I come to that conclusion by a different route. I consider that the appellant’s submission that the trial judge erred in failing to comply with the terms of s 21 of the Evidence Act cannot succeed. In my view, s 21 was not enlivened. I accept the submission of the Solicitor-General. As the High Court has emphasised on many occasions, the task of statutory construction must begin with a consideration of the text itself.[28] The meaning of the text may require consideration of context and purpose. The language which has actually been employed in the text of the legislation is the surest guide to legislative intention.[29] [28] Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (Victoria) [2001] HCA 49, (2001) 207 CLR 72 at 77 and 89; Stevens v Kabushiki Kaisha Sony Computer Entertainment [2005] HCA 58 at [30], (2005) 224 CLR 193 at 206 and 240 – 241; Carr v Western Australia [2007] HCA 47 at [6], (2007) 232 CLR 138 at 143; Director of Public Prosecutions (Victoria) v Le [2007] HCA 52 at [85], (2007) 232 CLR 562 at 568; Northern Territory v Collins [2008] HCA 49 at [99], (2008) 235 CLR 619 at 642.[29] Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41 at [47], (2009) 239 CLR 27 at 46 – 47. The right provided in s 21(2) to apply to the Court for an exemption is not an exemption from giving evidence but an exemption from the obligation to give evidence. Accordingly, the right conferred on the prospective witness is a right conferred only on a prospective witness who is under an obligation to give evidence against an accused. Section 21(3) empowers the Court to relieve a prospective witness from an obligation to give evidence against an accused. I am satisfied that in this case the complainant was under no such obligation. An obligation for the purposes of s 21(2) must be construed as a legal obligation. The conferral of the power on the Court in s 21(3) to exempt the prospective witness wholly or in part from the obligation to give evidence against the accused in the proceedings before the Court is predicated on the existence of an antecedent legal obligation to give evidence. I regret that I am unable to accept the proposition that the enactment of s 21 cast an obligation on the spouse of an accused person to give evidence.

Ratio Decidendi

Legal Principle Established

Established by: GRAY J

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