R v George Zuber

Case [2010] ACTSC 107

HUMAN RIGHTS ACT

R v GEORGE ZUBER
[2010] ACTSC 107 (16 September 2010)

PRACTICE AND PROCEUDRE – s 40F Evidence (Miscellaneous Provisions) Act 1991 (ACT) – admission of audiovisual evidence of child sexual or physical assault complainants as evidence.
EVIDENCE – admissibility of audiovisual interview recording between child complainant and police officers recorded prior to commencement of s 40F of the Evidence (Miscellaneous Provisions) Act 1991 (ACT).
STATUTORY INTERPRETATION – whether s 40F of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) gives prospective effect to facts or has retrospective operation – provisions give prospective operation to facts.
STATUTORY INTERPRETATION – whether Div 4.2A of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) is inconsistent with the Evidence Act 1995 (Cth) – intention of legislature and context within which legislation operates - no inconsistency between the statutes.

Sexual and Violent Offences Legislation Amendment Act 2008 (ACT)
Evidence (Miscellaneous Provisions) Act 1991 (ACT), ss 40E, F, J Div 4.2A, B
Crimes Act 1900 (ACT), ss 55(1), 61
Legal Aid Act 1977 (ACT), s 84A
Human Rights Act 2004 (ACT), s 22(2)(g)
Evidence Act 1995 (Cth), Pt 2.1, ss 4(5),(6), 8, 26, 66
Uniform Evidence Acts in NSW and Victoria, s 8
Interpretation Act 1987 (NSW), s 68
Interpretation of Legislation Act 1984 (VIC), s 17
Evidence Act 1971 (ACT), ss 76D, 76E, 76G, Pt 10A
Evidence (Audio and Audio Visual Links) Act 1998 (NSW).
Evidence (Miscellaneous Provisions) Amendment Act 2003 (ACT)

Evidence (Miscellaneous Provisions) Regulation 2009 (ACT), ss 4, 8(4)(b)
Evidence Regulations 1995 (Cth)
Court Procedures Rules 2006 (ACT) r 4733

Report, Jones M and Crocker T, Responding to Sexual Assault:  The Challenge of Change (Australian Capital Territory:  Canberra, 2005)
FAR Bennion Understanding Common Law Legislation (Oxford University Press:  Oxford, 2001)
Pearce, DC and Geddes, RS, Statutory Interpretation in Australia (LexisNexis Butterworths:  Sydney, 2006), 6th ed, at [10.4]).
Australian Law Reform Commission, Report – Uniform Evidence Law (ALRC:  Sydney, 2008) Report No 102, at 56-59

Secretary, Department of Community Services and Health v Theologidis (1991) 105 ALR 321
Gibb v Commissioner of Taxation of the Commonwealth (1966) 118 CLR 628
Kelly v The Queen (2004) 218 CLR 216
PMT Partners Pty Ltd (In liquidation) v Australian National Parks and Wildlife Service (1995) 184 CLR 301
Robertson v City of Nunawading [1973] VR 819
Re a Solicitor’s Clerk [1957] 1 WLR 1219
La Macchia v Minister for Primary Industry (1986) 6 AAR 160
R v Roussety (2008) 192 A Crim R 32
R v Arundell [2003] VSCA 69
Maxwell v Murphy (1957) 96 CLR 261
Victrawl Pty Ltd v Telstra Corporation Ltd (1995) 183 CLR 595
Rodway v The Queen (1990) 169 CLR 515
Carrick v J (1989) 39 A Crim R 235
Attorney-General’s Reference (No 1 of 2004) (Tasmania) (2005) 152 A Crim R 146
R v Seigneur (Question of Law Reserved No 1 of 2009) (2009) 103 SAR 207
R v Horncastle [2009] 4 All ER 183
R (D) v Camberwell Green Youth Court [2005] 1 WLR 393
S N v…

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AGLC
R v George Zuber [2010] ACTSC 107
Case
[2010] ACTSC 107
Decision Date

CaseChat Overview and Summary

The case of R v George Zuber was heard in the Supreme Court of the Australian Capital Territory. The dispute revolved around the admissibility of an audiovisual recording of an interview between a child complainant and police officers, which was recorded prior to the commencement of section 40F of the Evidence (Miscellaneous Provisions) Act 1991 (ACT). The recording was sought to be admitted as evidence-in-chief of the complainant at the trial of the accused.

The primary legal issue before the court was whether the audiovisual interview recording, conducted before the commencement of section 40F, could be admitted as evidence under the provisions of the Evidence (Miscellaneous Provisions) Act 1991 (ACT). The court was also tasked with determining if section 40F of the Act gives prospective effect only, or if it has retrospective operation. Additionally, the court needed to consider whether Division 4.2A of the Act was inconsistent with the Evidence Act 1995 (Cth).

In delivering its decision, the court found that section 40F of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) was intended to have prospective effect only. The court interpreted the statute as applying to facts that occur after its commencement and not to facts that occurred prior to that date. The court also determined that there was no inconsistency between Division 4.2A of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) and the Evidence Act 1995 (Cth), as both pieces of legislation were intended to operate in a complementary fashion to protect child complainants in sexual and physical assault cases. Consequently, the court directed that the audiovisual recording of the interview of 9 April 2009 be played at the trial and admitted, subject to any other lawful objections, as the evidence-in-chief of the complainant.

Orders

Orders of the court

I direct that the audiovisual recording of the interview of 9 April 2009 between the complainant and the two police officers specified in the Case Statement filed under r 4733 of the Court Procedures Rules 2006 (ACT) be played at the trial of the accused and, when played, be admitted, subject to any other lawful objections, as the evidence-in-chief of the complainant at the trial.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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