R v G, AP - [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 evidence did not necessarily require the Judge to determine that the complainant did not have sufficient understanding of the obligation to be truthful entailed in giving sworn evidence.
Held per Stanley J (dismissing the appeal):
(6) Section 21 of the Evidence Act was not enlivened in this case. The right provided in section 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. The conferral of the power on the Court in section 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. If the antecedent obligation to give evidence does not exist, the statutory duty imposed by s 21(5) does not arise.
Criminal Law Consolidation Act 1935 (SA) s 50 and s 353(1); Evidence Act 1929 (SA) s 9, s 21 and s 34CA; Justices Act 1921 (SA) s 117; Acts Interpretation Act 1919 (SA) s 34, referred to.
Australian Crime Commission v Stoddart (2011) 244 CLR 554; R v TT (2004) 90 SASR 567; The Queen v Harry; Ex Parte Eastway (1985) 39 SASR 203; Whitehorn v The Queen (1983) 152 CLR 657; K-Generation Pty Ltd v Liquor Licensing Court (2009) 237 CLR 501; IW v The City of Perth (1997) 191 CLR 1; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; R v C (1993) 60 SASR 467, considered.

R v G, AP
[2014] SASCFC 43
Court of Criminal Appeal: Gray, Kelly and Stanley JJ
GRAY J.

This is an appeal against conviction.
On 5 July 2013, the defendant and appellant was convicted following a trial by Judge alone in the District Court of the offence of persistent sexual exploitation of a child contrary to section 50(1) of the Criminal Law Consolidation Act 1935 (SA). The complainant, EG, is the daughter of the defendant. It was the prosecution case that the defendant sexually assaulted the complainant over a period of about 18 months between 3 August 2010 and 22 April 2012, when the complainant lived with the defendant at North Haven and then at Victor Harbor. The complainant was aged about eight years when the offending was said to have commenced.
The Trial
The prosecution led evidence from the complainant, a cousin of the complainant, the complainant’s mother, the complainant’s grandmother, Senior Constable Alicia Hodder, who had conducted two recorded interviews of the complainant, and Brevet Sergeant Mark Williams, the investigating police officer. The prosecution tendered a number of exhibits, including video records and transcripts of the two police interviews of the complainant, photographs of the premises at Victor Harbor and a statement of agreed facts.
The defendant gave evidence in his defence. The defendant also tendered copies of two father’s day gifts that had been given to the defendant by the complainant.
The statements made by the complainant to the police were admitted by consent as evidence pursuant to section 34CA of the Evidence Act 1929 (SA), which allows for the admission of out of court statements made by protected witnesses. In those statements, the complainant described how the offending commenced at a time when the complainant’s mother was required to leave the house early in the morning to attend work. The defendant would make the complainant get into his bed. The defendant told the complainant that he touched her after she fell asleep. On subsequent occasions, the defendant would touch and lick the complainant’s vagina, and would cause the complainant to touch and lick the defendant’s penis. The complainant alleged that on one occasion, the defendant tied a rubber band around his testicles and made the complainant punch his testicles. The complainant also recalled the defendant making her watch “rude” movies on his computer. The complainant said that on one occasion, the defendant had asked to see the complainant’s iPod device and had entered the words “pussy licking” on that device.
The evidence in chief of the complainant elaborated upon the out of court statements. The complainant was also cross-examined. An examination of the transcripts of the police interviews and of the trial indicates that the complainant gave evidence without any apparent difficulty in understanding or answering questions. The complainant’s evidence in chief was consistent in material respects with her answers given during the police interviews.
The complainant’s mother gave evidence that she confronted the defendant following the discovery of the words “pussy licking” on the complainant’s iPod device. The defendant agreed that he had entered those words on the iPod. The complainant’s mother then had a conversation with the complainant in which the complainant told her that the complainant had been sexually assaulted by the defendant. This conversation led to a complaint being made to the police. The complainant’s mother also gave evidence of a later conversation in which the complainant told her that the defendant had tied his testicles up with a rubber band and made the complainant punch his testicles.
The complainant’s grandmother gave evidence of a conversation in which the complainant stated that the defendant had attempted to put his penis inside her. The complainant also told her grandmother that the defendant had asked the complainant to lick him and that the defendant had licked the complainant “down there”. These conversations occurred following the discovery of the words “pussy licking” on the complainant’s iPod and were led as an elaboration of the initial complaint that had been made.
A cousin of the complainant, HC, gave evidence that when she was aged about 13 years, the defendant would touch her on her arm and on her backside. In early 2009, HC told the defendant that she felt uncomfortable and wanted him to stop. It was said that in response to that, the defendant stepped forwards, grabbed HC’s arm and said, “Look, you just have to deal with it. If it's not you, it's [the complainant] and she is your baby cousin, you are supposed to look after her. You don't want that.” The Judge was not satisfied that the statement that HC had attributed to the defendant was in fact made by him, and did not rely upon it in reaching her verdict.
In his evidence, the defendant denied that any sexual abuse had occurred. He agreed that he had entered the term “pussy licking” on the complainant’s iPod, but said that he had done so after the complainant had told him that she had been watching people having sex on her iPod. He said that after he entered the words, the device displayed an image of a woman on all fours, wearing lingerie and licking her lips. The defendant had shown the image to the complainant and asked her whether that was what she had seen. The complainant said, “Yes, and other stuff.”
The Judge reviewed the evidence. In relation to the complainant’s evidence, the Judge found:[1]
The complainant was generally consistent in all relevant matters.
The complainant complained in a spontaneous manner. Her complaint was fulsome. It contained many of the details that she then provided a statement to the police about. Her initial complaint and statement to the police did not contain any detail in relation to the accused having asked her to punch his testicles whilst he had a rubber band tied around his genitals. Her explanation in relation to not having immediately spoken about those matters was that she did not immediately remember those matters when she was first spoken to by the police. She said that she was in the car listening to the radio looking out the window and for some reason it just came into her head and she told her mum. I accept that that was the case.
…
The complainant gave a compelling account in court and in section 34CA statements. She was credible. She was reliable. She complained in a manner that was consistent with the activity that had occurred as she alleged in her evidence in court.
[Footnote omitted.]
[1] R v G, AP [2013] SADC 90, [97]-[98], [111].
By contrast, in relation to the evidence of the defendant, the Judge found:[2]
The accused gave evidence in this matter. I have considered his evidence. I do not consider that his evidence in relation to his denials of the sexual activity between he and the complainant is reasonably possibly true.
…
I did not find the accused to be a credible witness. I reject his version that he had not had sexual activity with the complainant. I do not find that it is reasonably possible. I reject the submission that the complainant may have dreamt or imagined the sexual acts.
[2] R v G, AP [2013] SADC 90, [103], [110].
The Judge found each of the elements of the offence proven beyond reasonable doubt and found the defendant guilty of the offence of persistent sexual exploitation of a child.
The Appeal
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.
As earlier mentioned, the complainant is the daughter of the defendant and is therefore a “close relative” of the defendant within the meaning of section 21. The complainant was aged 10 years at the time of trial. Section 4 of the Evidence Act defines a “young child” as “a child of or under the age of 12 years”. The complainant is therefore a young child within the meaning of section 21(3a), as extracted above.
The following exchange took place between the prosecutor and the Judge prior to the complainant giving evidence:
[PROSECUTOR]: Is it your Honour's practice to ask a witness such as [the complainant] whether or not she's been told about her option to be exempt as a close family relative of the accused, or not? I'm not necessarily saying I think your Honour should do so, I understand judges take different views.
HER HONOUR: It is interesting that the Act does appear to make it mandatory under s.21. I don't intend to do so in this case, it seems to me that there is an anomaly in relation to complainant, such as her age, so I'm not going to make that inquiry.
In her reasons, the Judge addressed section 21 as follows:[3]
I was also asked to consider section 21 of the Evidence Act 1929. The complainant is a close relative of the accused. There was evidence that the accused is her father. I considered that pursuant to section 21(5) the complainant was by reason of her age unable to understand her right to apply for an exemption under this section in the circumstances.
[3] R v G, AP [2013] SADC 90, [31].
On the appeal, the defendant contended that the Judge erred in failing to undertake any enquiry in order to satisfy herself that the complainant was aware of her right to apply for an exemption from giving evidence against the appellant as required by section 21(5)(a) of the Evidence Act. It was submitted that the need for the Judge to undertake such an enquiry was emphasised by the apparent distress of the complainant immediately before being formally called to give evidence. The defendant submitted that the finding of the Judge under section 21(5)(b) that the complainant was incapable of understanding her right to apply for an exemption was made without any foundation or evidence, and without the Judge undertaking any enquiry with respect to the complainant’s level of understanding.
The defendant also contended that the Judge failed to give any consideration to the question of whether, in accordance with section 21(3a) of the Evidence Act, the complainant should have been granted an exemption from giving evidence notwithstanding that no application for an exemption had been made.
The defendant submitted that the failure of the Judge to observe the protection afforded to the complainant by section 21 was at least an irregularity and an error of law.
The Solicitor-General, appearing on the appeal on behalf of the Director of Public Prosecutions, contended that section 21 of the Evidence Act was not enlivened in relation to the complainant. The Solicitor-General emphasised that the exemption contemplated by section 21(2) of the Evidence Act is an exemption from the obligation to give evidence against the accused. It was submitted that the complainant had not been subpoenaed and was therefore under no legal obligation to give evidence against the accused. The Solicitor-General submitted in the alternative that even if section 21 was enlivened, the failure of the Judge to discharge her obligation under section 21(3a) did not give rise to a substantial miscarriage of justice and the proviso should be applied.[4]
[4] Criminal Law Consolidation Act 1935 (SA) section 353(1).
In TT,[5] this Court addressed the purpose and effect of section 21 of the Evidence Act. In the course of my dissenting judgment, I made the following observations regarding the common law position in relation to the competence and compellability of a witness to give evidence in a criminal trial against their spouse:[6]
[5]    R v TT (2004) 90 SASR 567.
[6]    R v TT (2004) 90 SASR 567, 576-7.
It has been long undisputed that at common law a spouse was incompetent to give evidence at a criminal trial against his or her spouse. The rationale behind this position has been said to be based on the doctrine of unity of husband and wife coupled with the privilege against self-incrimination, the danger of perjury and the repugnance likely to be felt by the public seeing one spouse testifying against the other. As the law progressed to recognise women, and wives, as competent witnesses the question became whether a spouse was a compellable witness.
The basis for the common law rule that one spouse could not be a witness for or against the other was that husband and wife were considered as one and the same person in law. In more modern times, the rationale behind providing for some degree of non-compellability of a spouse of an accused as a witness for the prosecution is said to be to preserve the marital relationship. It is thought that the community has an interest in the preservation of stable marital relationships — giving evidence against the other spouse could be a cause of serious harm to that relationship. Such harm may manifest itself in psychological, emotional, social or economic forms.
[Footnote omitted.]
I then addressed the history of section 21 as follows:[7]
[7]    R v TT (2004) 90 SASR 567, 577-8, 584.
In 1983 the legislature amended the Evidence Act 1929 (SA) which addressed the balance between the common law position of a degree of non-compellability of spouses to give evidence with the right of all persons to give evidence in criminal trials and the community interest in such evidence being adduced. During the Second Reading Speech of the Bill enacting what is now s 21 of the Evidence Act the following remarks were made:[8]
[8]    South Australia, Parliamentary Debates, Legislative Council, 4 May 1983, p 1126 (Hon CJ Sumner, Attorney-General).
It is an unjustifiable restriction on the civil liberty of a spouse to prevent him or her from giving evidence in a court of law where he or she is willing to do so solely on the basis of his or her marital relationship with the accused …
[Under the proposed s 21] [s]pouses are compellable in all cases for all the parties, but the court has the power to exempt a spouse from giving evidence for the prosecution having regard to matters listed in the legislation … . The measure applies not only to spouses but also to other categories of relative collectively referred to as close relative, including parent and child as well as spouse. The term ‘spouse’ includes a putative spouse within the meaning assigned to that expression in the Family Relationships Act.
…
Where a close relative is a prospective witness for the prosecution in any proceedings, he or she may apply for an exemption. An exemption may be granted where the court considers that, if the close relative were to give evidence against the accused, there would be risk of serious harm to the relationships or the prospective witness and that, considering the nature of the offence and the importance of the evidence, there is insufficient justification for exposing the prospective witness to the risk of such harm.
In 1983 the legislature recognised the need to make provision for circumstances where the close relative of an accused, for example a young child, may not be able to fully appreciate their right to apply to be exempt from giving evidence against an accused. As a result, s 21 was amended to provide for what is now subs (3a). In the Second Reading Speech adding subs (3a) to s 21 of the Evidence Act the following comments were made:[9]
[9]    South Australia, Parliamentary Debates, House of Assembly, 25 March 1993, pp 2662-2663 (Hon GJ Crafter, Minister of Housing, Urban Development and Local Government Relations).
Section 21 provides that a close relative of a person charged with an offence is competent and compellable to give evidence for the prosecution in any proceedings in relation to the charge, but the prospective witness can apply to the court for an exemption from the obligation to give evidence. The court can exempt the prospective witness if it appears to the court that there is a substantial risk that the giving of the evidence would seriously harm the relationship between the prospective witness and there is insufficient justification for exposing the prospective witness to the risk.
The Supreme Court Judges in their 1991 Annual Report adumbrated that the procedure is inappropriate where the close relative is a young child or mentally impaired. The Judges recommended that the section be amended to give the court a discretion to dispense with the section's requirements, wholly or in part, where by reason of the prospective witness's immaturity or impaired mental condition, the court considers it proper to do so. The section is amended as recommended by the Judges. Where a prospective witness is too immature or mentally impaired to understand the making of an application for exemption, the court should be able to assess itself the matter without the need for the prospective witness having to make an application.
In 1995 the legislature further amended s 21 to ensure that all close relatives of the accused who were prospective witnesses for the prosecution were aware of their right to apply for an exemption under the section. It was thought that this was an important safeguard to the rights of close relatives of the accused:[10]
Section 21 of the Evidence Act entitles a close relative (that is, a spouse, parent or child) of a person charged with an offence to apply to the trial Court for an order exempting him or her from any obligation to give evidence against the accused. The matters that the Court should take into account in determining such an application are set out in subsection (3) and subsection (5) requires that the prospective witness be made aware of the right to apply for an exemption. This practically obliges the trial Judge to ensure that the prospective witness has a general understanding of the subsection (3) criteria.
This causes difficulties where the prospective witness is a child who is too young to understand the explanation or is mentally impaired. Subsection (3a) provides that the Court can exempt a prospective witness who is a child, or who is mentally impaired, even though no application for exemption is made but the way the provisions are drafted the Court must still explain the subsection (3) criteria. While the section's requirements can be construed as adaptable to the intelligence of the prospective witness there may be uncertainty about the adequacy of the Judge's explanation and whether, therefore, there has been a miscarriage of justice. The Supreme Court Judges have suggested that subsection (5) be amended to provide that the obligation to make the prospective witness aware of his or her right to apply for an exemption not apply in the case of a close relative who, in the Judge's opinion, is unlikely by reason of age or mental impairment to understand the explanation of the section's provisions.
…
The statutory scheme of s 21 of the Evidence Act is clearly intended to provide close relatives of an accused with some protection from the substantial risk of harm which may arise from giving evidence against the accused. This right must be balanced against the gravity and circumstances of the offending and the community interest in the evidence to be given by the prospective witness. The successful exercise of the right of close relatives to apply for an exemption from giving evidence is reliant upon the trial judge informing the prospective witness of their right. Here the trial judge failed to take any steps to inform C or D of this right.
[Emphasis added.]
[10] South Australia, Parliamentary Debates, House of Assembly, 11 April 1995, p 2281 (Hon SJ Baker, Deputy Premier).

Returning to the present appeal, it is convenient to first address the Solicitor-General’s submission that section 21 of the Evidence Act was not enlivened in circumstances where the complainant was under no legal obligation to give evidence. The Solicitor-General pointed out that the naming of the complainant on the back of the Information imposed no obligation on the complainant. Instead, this gave rise to an obligation on the prosecution.[11] Similarly, as the Solicitor-General pointed out, no obligation on a potential witness arises from the filing of a declaration in either the committal court or the trial court, or from the giving of oral evidence at committal.
[11] Whitehorn v The Queen (1983) 152 CLR 657, 663-4.
This position may be contrasted with the old committal regime provided for under Part V of the Justices Act 1921 (SA). Section 117 of that Act provided:
(1)The justice before whom any witness is examined as aforesaid may bind the prosecutor or any witness, by recognizance, to appear at the Court at which the defendant is to be tried, then and there to prosecute, or to prosecute and give evidence, or to give evidence against the defendant, or at the trial of the defendant (as the case may be).
(2)Every witness called by the defendant (except a witness merely to the character of the accused) who, in the opinion of the Justice, gives evidence in any material way to the case, or tending to prove the guilt or innocence of the accused person, shall be bound as aforesaid.
In Harry, King CJ made the following observations regarding the practice which prevailed under the old committal regime of binding over all material witnesses whose deposition was taken at committal:[12]
… Moreover all material witnesses should be bound over to appear at trial. The very fact that the duty of prosecuting counsel at trial is often expressed in terms of the witnesses whose names appear on the back of the information, because they have made depositions before the examining justice, is striking confirmation of the traditional practice of taking depositions at the committal proceedings from all material witnesses.
[12] The Queen v Harry; Ex Parte Eastway (1985) 39 SASR 203, 212.
Section 117 of the Justices Act and the old committal regime were in place when section 21 was first inserted into the Evidence Act on 1 August 1983. According to the Solicitor-General, this suggests that the “obligation to give evidence” from which a prospective witness may apply to be exempt under section 21(2) is a legal obligation.
There is an apparent ambiguity and potential conflict between subparagraphs of section 21. Section 21(2) speaks of a prospective witness applying to the Court for an exemption from the obligation to give evidence against the accused. Section 21(5) speaks of the Judge having to satisfy himself or herself in the event that a close relative “is called as a witness against the accused” that the prospective witness is either aware of his or her right to apply for an exemption or, alternatively, is incapable of understanding his or her right to apply for an exemption. It would appear that the wording in subsection 21(5) “is called as a witness” is broad enough to include a witness who attends without a subpoena.
It was the Solicitor-General’s submission that the ambiguity should be resolved by giving full force and effect to the word “obligation” appearing in subsection 21(2), and that it should be understood that only a witness under subpoena could be said to be under an obligation to appear.
When there is an ambiguity within the provisions of a particular section, both statute and case law provide assistance to the resolution of the ambiguity. Resort may be had to extraneous materials to assist to resolve the ambiguity in the terms outlined by French CJ in K-Generation Pty Ltd v Liquor Licensing Court, where his Honour observed:[13]
The question whether extrinsic materials may be considered in South Australia and in what circumstances they may be considered as an aid to statutory interpretation is to be answered by the common law. The answer at common law is that such materials can be considered to determine, inter alia, the mischief to which an Act is directed. This Court has referred to Hansard in aid of its interpretation of South Australian statute.[14] In 1996 the Full Court of the Supreme Court of South Australia referred to a minister's Second Reading Speech in order to identify the purpose of a statutory provision.[15]
At common law it is not necessary before entering upon a consideration of such material to surmount a threshold of ambiguity, obscurity or possible absurdity. Statutory interpretation requires the court to have regard to the context in which the words to be interpreted arise and also their statutory purpose. Context includes “the existing state of the law and the mischief which, by legitimate means … one may discern the statute was intended to remedy”.[16]
[13] K-Generation Pty Ltd v Liquor Licensing Court (2009) 237 CLR 501, [51]-[52].
[14] Gerhardy v Brown (1985) 159 CLR 70 at 104 per Mason J; at 111 per Wilson J; Hoare v The Queen (1989) 167 CLR 348 at 360-361.
[15] Owen v South Australia (1996) 66 SASR 251 at 256-257 per Cox J; at 257 per Prior J; see also Nemer v Holloway (2003) 87 SASR 147 at 166-167 per Vanstone J and generally, in relation to South Australia, Pearce and Geddes, Statutory Interpretation in Australia, 6th ed (2006), pp 70-71 [3.6].
[16] CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408.
If the legislation in question may be fairly characterised as beneficial, an interpretation that gives effect to that beneficial purpose should be preferred.[17]
[17] IW v The City of Perth (1997) 191 CLR 1, 12.
When recourse is had to the second reading speech, as extracted above, it is to be understood that the principal mischief that section 21 was designed to address was the competence and compellability of a spouse to give evidence. At common law, a spouse could not testify against an accused.[18] For reasons set out in the second reading speech, section 21 was designed to address what was seen to be a draconian position at common law. At the same time, Parliament intended the section to have beneficial effect in providing protection to close relatives and, in particular, to allow a close relative to seek an exemption. To my mind, it would be odd to conclude that that protection would only apply in the case of a close relative who had been subpoenaed and not in any other case. It is unlikely that a member of the general public, when instructed by a police officer that they must attend to give evidence in a criminal trial, would understand that they are under no legal obligation to do so unless they are the subject of a subpoena.
[18] Australian Crime Commission v Stoddart (2011) 244 CLR 554, [22]-[24].
Parliament plainly intended for all close relatives called to give evidence, whether under subpoena or not, to have the protection offered by section 21(5). I consider that such an interpretation would support the evident beneficial purpose of the legislation. To so interpret the legislation removes any ambiguity. All close relatives called to give evidence are entitled to the protection of the section.
I am satisfied that section 21 was enlivened in relation to the complainant. Accordingly, the Judge was required by section 21(5) to satisfy herself that the complainant was aware of her right to apply for an exemption, or was incapable of understanding her right to so apply. As earlier mentioned, the Judge found that the complainant was by reason of her age unable to understand her right to apply for an exemption under this section. The defendant contended on the appeal that this finding was made without any foundation or evidence, and without the Judge undertaking any enquiry with respect to the complainant’s level of understanding.
As earlier mentioned, the complainant was aged 10 years at the time of trial. Prior to the complainant being called to give evidence, the Judge had the benefit of viewing the video records of the complainant’s police interviews and observing the complainant’s demeanour and level of understanding during those interviews. It may be readily understood that the concept of applying for an exemption from the obligation to give evidence would be difficult for any 10 year old child to understand. In my view, it was within the discretion of the Judge to conclude, having had the benefit of viewing the police interviews, that the complainant’s age precluded her from understanding her right to apply for an exemption under section 21 of the Evidence Act.
The defendant also complained on the appeal that 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.
The Judge made no mention of section 21(3a) in her reasons. An examination of the transcript indicates that this section does not appear to have been brought to the attention of her Honour. The defendant submitted on the appeal that the Judge was required to consider the terms of section 21(3a) and failed to do so.
It is to be noted that section 21(3a) uses the words “the court should consider whether to grant an exemption”. By contrast, section 21(5) provides that the Judge “must satisfy himself or herself” of the matters addressed by that section. Relevantly, section 34 of the Acts Interpretation Act 1919 (SA) provides:
Where, in any Act passed after the first day of January, 1873, the word "may" is used in conferring a power, it implies that the power may be exercised or not, at discretion; and where, in any such Act the word "shall" is used in conferring a power, it implies that the power must be exercised.
The Solicitor-General submitted that the word “should” as it appears in section 21(3a) of the Evidence Act relates to the future, and is relevantly the equivalent of the word “shall”. As such, the Solicitor-General submitted that section 21(3a) burdens the court with a duty to consider exercising the power to exempt a prospective witness who is a young child.
The Macquarie Dictionary entry for “should” provides various definitions, relevantly including “indicating obligation” and “indicating advisability”.
In Project Blue Sky Inc v Australian Broadcasting Authority,[19] McHugh, Gummow, Kirby and Hayne JJ in their joint judgment criticised the use of the distinction between directory and mandatory procedural requirements. Instead, their Honours suggested:[20]
… A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid.
…
In determining the question of purpose, regard must be had to “the language of the relevant provision and the scope and object of the whole statute”.
[Footnote omitted.]
[19] Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 390-1.
[20] Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 390.
Returning to the text of section 21 of the Evidence Act, I consider it to be of relevance that Parliament chose to use the term “must” in relation to section 21(5) and “should” in relation to section 21(3a). In my view, 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. Notwithstanding this conclusion, I propose to proceed to address this ground of appeal on the basis that the Judge was required to consider whether to exempt the complainant under section 21(3a) and failed to do so.
In C,[21] this Court considered the consequences of a failure by a trial Judge to comply with section 21(5) of the Evidence Act. In that case, the appellant had been convicted of incest in relation to sexual offending against his daughter. King CJ, with whom Mohr J agreed, held that while the complainant had not been made aware of her right to apply for an exemption, this did not destroy her competency as a witness.[22] However, his Honour also indicated that the authorities suggest that a failure to make a witness aware of their right to apply for an exemption from giving evidence under section 21 is an irregularity of which an accused can take advantage on appeal.[23]
[21] R v C (1993) 60 SASR 467.
[22] R v C (1993) 60 SASR 467, 476.
[23] R v C (1993) 60 SASR 467, 476.
In TT,[24] a majority of this Court held that in the circumstances of that case, no miscarriage of justice had resulted from the failure of the trial Judge to discharge her obligations under section 21(5) of the Evidence Act. Vanstone J, with whom Perry J agreed, concluded:[25]
I have reviewed the evidence of both V and her mother in light of the considerations referred to in s 21. There is no indication at all in V's evidence that she was other than intent on giving the evidence she gave. I take the view that, even had she applied pursuant to s 21(3) to the trial judge for exemption from the obligation to give evidence, such was the nature of her allegations that the application would necessarily have failed. In relation to the mother's evidence, there is again no indication of any unwillingness to give evidence against the appellant. It is noteworthy that the letters of the appellant, to which reference has already been made, were apparently voluntarily handed to the police investigating this matter on two separate occasions. Even if the mother experienced a sense of divided loyalties towards the appellant and her child in the task she faced, it is extremely unlikely that in a serious case of this nature any application V's mother had made pursuant to s 21 would have been granted. Indeed it would in my view be quite contrary to the policy of the law requiring such matters as sexual crimes upon children within families to be prosecuted, that relevant evidence should be withheld to protect the relationships of the accused person.
It is unfortunate that the trial judge was not reminded of the terms of the Evidence Act provision when the two witnesses came to give evidence. However, in all the circumstances I am satisfied that there was no miscarriage of justice
[24] R v TT (2004) 90 SASR 567.
[25] R v TT (2004) 90 SASR 567, 592.
In determining whether the Judge’s failure to consider section 21(3a) of the Evidence Act gave rise to a miscarriage of justice, it is necessary to evaluate the likelihood that the Judge would have granted an exemption under that section had she turned her mind to it.
In Nadler, I addressed the process to be adopted by a trial Judge in relation to an application for an exemption from giving evidence under section 21of the Evidence Act:[26]
… It is to be observed that the discretion to exempt a witness only arises when the preconditions identified in s 21(3)(a) are satisfied, and when the Judicial Officer reaches the conclusion under s 21(3)(b), that there is insufficient justification for exposing the prospective witness to the specified risk. Once those conditions are satisfied, the Court's discretion is enlivened.
[26] Nadler v Police (SA) (2008) 187 A Crim R 347, [93].
Prior to the hearing of the appeal, the Court sought a report from the trial Judge in relation to the issue which arose under section 21 of the Evidence Act. In particular, the Court requested that her Honour consider “if an application for exemption had been made, either by the child or on the child’s behalf, would you have granted it?” In her report, the Judge explained:
If I had made the complainant aware and she made an application it is most unlikely that I would have been satisfied that there was a substantial risk of serious harm to the relationship or serious harm of a material, emotional, or psychological nature to [the complainant]. Even if this was the case, I cannot foresee circumstances that could have arisen in the context of this trial that would have provided sufficient justification for not exposing the complainant to this risk, having regard to the gravity of the alleged offence where her evidence was critical to the proceedings.
This Court also had access to affidavits sworn by the complainant and her mother prior to the hearing of the appeal. In her affidavit, the complaint deposed that she has not seen or spoken to the defendant since she first complained about his offending. She does not want to see or speak to the defendant again. The complainant further deposed that she would have given evidence even if she had been informed by the Judge that she was not required to.
The complainant’s mother confirmed that the complainant has not seen or spoken to the defendant since she first complained about the defendant’s offending. The complainant’s mother further deposed that the complainant wishes to change her surname to her mother’s maiden name, and that steps have been taken to effect this change.
Section 353(1) of the Criminal Law Consolidation Act provides that:
… the Full Court may, notwithstanding that it is of the opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.
Having regard to the report of the trial Judge, the affidavit evidence and the circumstances of the trial, including the importance of the complainant’s evidence, the gravity of the alleged offending and the acute public interest in prosecuting sexual crimes upon children within families, I am satisfied that there is no reasonable prospect that the Judge would have granted the complainant an exemption from giving evidence. Accordingly, I consider that even if the Judge erred in failing to consider section 21(3a) of the Evidence Act, no substantial miscarriage of justice has occurred and the proviso should be applied.
Section 9 of the Evidence Act
The defendant’s second ground of appeal asserted that 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.
Section 9 of the Evidence Act provides:
(1)A person is presumed to be capable of giving sworn evidence in any proceedings unless the judge determines that the person does not have sufficient understanding of the obligation to be truthful entailed in giving sworn evidence.
(2)If the judge determines that a person does not have sufficient understanding of the obligation to be truthful entailed in giving sworn evidence, the judge may permit the person to give unsworn evidence provided that—
(a)     the judge—
(i)is satisfied that the person understands the difference between the truth and a lie; and
(ii)    tells the person that it is important to tell the truth; and
(b)     the person indicates that he or she will tell the truth.
(3)In determining a question under this section, the judge is not bound by the rules of evidence, but may inform himself or herself as the judge thinks fit.
(4)     If unsworn evidence is given under this section in a criminal trial, the judge—
(a)     must explain to the jury the reason the evidence is unsworn; and
(b)     may, and if a party so requests must, warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it.
(5)A justice to whom it appears that a person who desires to lay a complaint or information does not have sufficient understanding of the obligation to be truthful entailed in giving sworn evidence may ascertain by inquiry the subject matter of the complaint or information and reduce it into the appropriate form, and any action or proceedings may be taken on the complaint or information in all respects as if the complainant or informant had deposed to the truth of the contents on oath or affirmation

At trial, the following interchange took place between the Judge and counsel for the defendant prior to the complainant giving evidence:
HER HONOUR:            Before you do call [the complainant], having had the opportunity of viewing her on the videos I have no reason to think that the presumption is displaced that would allow her to give sworn evidence. I don't intend to conduct an inquiry unless either counsel thinks that there is a reason to do so?
[DEFENCE COUNSEL]: I must say it is my preference out of an abundance of caution your Honour do so, but s.9, it is a requirement that she knows between truth and falsity.
HER HONOUR:            As I understand the section, the presumption that she can give sworn evidence is in place unless it is for some reason displaced.
[DEFENCE COUNSEL]: I accept that there was nothing in what we have seen that would displace that presumption.
HER HONOUR:            Her age alone is not sufficient, given that she is 11.
[DEFENCE COUNSEL]: I agree. I raise it, given the terms of the section and I have to concede that there was nothing in what your Honour has seen that tends to in any way abut [sic] the presumption.
The Judge addressed this issue in her reasons as follows:[27]
The complainant was then called to give evidence. I gave consideration to section 9 of the Evidence Act 1929. Having seen the recorded interviews with the complainant I considered that she was capable of giving sworn evidence and the presumption in section 9(1) of the Evidence Act 1929 was not displaced. She therefore gave sworn evidence.
[27] R v G, AP [2013] SADC 90, [30].
On the appeal, counsel for the defendant accepted that no enquiry is needed as to the capability of a witness to give sworn evidence unless there is something relating to that person that raises in the Judge’s mind the possible rebuttal of the presumption that they are capable of giving sworn evidence. However, the defendant submitted that in circumstances where the Judge determined that the complainant, as a result of her age, was incapable of understanding her right to apply for an exemption under section 21 of the Evidence Act, it was an error of law to fail to undertake an enquiry under section 9.
To my mind, the enquiry required by section 9 of the Evidence Act is of a different nature to that required under section 21(5). An understanding of the obligation to be truthful in giving sworn evidence requires a level of cognitive functioning of a lower order than that needed to engage in the sort of abstract thinking required in evaluating the potential future damage that a relationship and family may sustain as a consequence of the prospective witness giving evidence against a close relative. Accordingly, I do not consider that the Judge’s conclusion under section 21(5)(b) that the complainant was incapable of understanding her right to apply for an exemption from giving evidence necessarily required her Honour to determine that the complainant did not have sufficient understanding of the obligation to be truthful entailed in giving sworn evidence.
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.
The amendment to the common law effected by the enactment of s 21 was to render the spouse of an accused person competent and compellable to give evidence. As the learned authors of Cross on Evidence[30] note, a person is compellable if that person can lawfully be obliged to give evidence. But the fact that a person is compellable does not mean that they are compelled to give evidence. Compellability concerns the question of whether a person can lawfully be obliged to give evidence. The obligation from which the prospective witness seeks exemption pursuant to s 21 is a lawful obligation compelling them to give evidence. A prospective witness is someone who has not entered the witness box and been sworn, but is operating under an obligation imposed by law to give evidence against the accused. That antecedent obligation is imposed by the issue and service of a subpoena requiring the prospective witness to attend to give evidence.
[30] (2010) at 417 [13001].
Formerly, as Gray J explains, such an obligation could be imposed by the binding of a witness by recognizance to appear and give evidence pursuant to s 117 of the Justices Act 1921 (SA). I expect that s 117 of the Justices Act formed part of the statutory background against which s 21 of the Evidence Act was originally enacted. The absence of the obligation formerly imposed by s 117 of the Justices Act cannot, however, change the meaning of the expression “the obligation to give evidence against the accused” in s 21.
To my mind this is an unfortunate conclusion given that there are cogent reasons identified by Gray J for considering that the protection the legislature has intended to confer upon vulnerable witnesses should be extended to such witnesses whether they are under compulsion to give evidence against an accused or not. Nonetheless, I consider that the language of s 21 and, in particular, the reference to the obligation to give evidence against the accused in s 21(2) and (3) is intractable.
In Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation[31] Mason and Wilson JJ said:[32]
The fundamental object of statutory construction in every case is to ascertain the legislative intention by reference to the language of the instrument viewed as a whole. But in performing that task the courts look to the operation of the statute according to its terms and to legitimate aids to construction.
The rules, as D. C. Pearce says in Statutory Interpretation, p. 14, are no more than rules of common sense, designed to achieve this object. They are not rules of law. If the judge applies the literal rule it is because it gives emphasis to the factor which in the particular case he thinks is decisive. When he considers that the statute admits of no reasonable alternative construction it is because (a) the language is intractable or (b) although the language is not intractable, the operation of the statute, read literally, is not such as to indicate that it could not have been intended by the legislature.
On the other hand, when the judge labels the operation of the statute as “absurd”, “extraordinary”, “capricious”, “irrational” or “obscure” he assigns a ground for concluding that the legislature could not have intended such an operation and that an alternative interpretation must be preferred. But the propriety of departing from the literal interpretation is not confined to situations described by these labels. It extends to any situation in which for good reason the operation of the statute on a literal reading does not conform to the legislative intent as ascertained from the provisions of the statute, including the policy which may be discerned from those provisions.
[31] [1981] HCA 26, (1981) 147 CLR 297.
[32] [1981] HCA 26, (1981) 147 CLR 297 per Mason and Wilson JJ at 320 – 321.
Whether it might be thought desirable that a prospective witness who is not under compulsion to give evidence is afforded an explanation that they need not give evidence if they are not under such an obligation is a matter for the Parliament. The statutory duty in s 21(5), imposed on the presiding judge to satisfy himself or herself that a prospective witness is aware of his or her right to apply for an exemption or is incapable, by reason of age or mental impairment, of understanding his or her right in that regard, can readily be understood as arising only in circumstances where the prospective witness is under an obligation to give evidence. If there is no obligation to give evidence against an accused, it is understandable that the legislature would consider there is no need to make the prospective witness aware that he or she can seek an exemption from that nonexistent obligation. If the antecedent obligation to give evidence does not exist, the statutory duty imposed by s 21(5) does not arise.
To my mind, there is nothing absurd, extraordinary, capricious or irrational in adopting this construction.
Had I come to a different view of the construction of s 21, so that it was enlivened, I would have agreed with the approach of Gray J.
I would dismiss the appeal.