R v George Zuber
[2010] ACTSC 107
•16 September 2010
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 Sweden (2004) 39 EHRR 13
R v H [2004] 2 AC 134
Simonfi v Fimmel [1999] ACTSC 131
R v EG [2002] ACTSC 85
Forsyth v Deputy Commissioner of Taxation of the Commonwealth (2004) 62 NSWLR 132
In Re Universal Distributing Co Ltd (in liquidation) (1933) 48 CLR 171
Commissioner for Government Transport (NSW) v Deacon (1957) 97 CLR 535
Amalgamated Television Services Pty Ltd & Ors v Foxtel Digital Cable Television Pty Ltd & Anor (1995) 60 SCR 483
Rani & Ors v Minister for Immigration and Multicultural Affairs (1997) 80 FCR 379
Hakimi v Legal Aid Commission ACT& Anor [2009] ACTSC 48
Colquhoun v Brookes (1888) 21 QBD 52
Rylands Bros (Aust) Ltd v Morgan (1927) 27 SR(NSW) 161
Hannes v Director of Public Prosecutions (Cth) (No 2) (2006) 205 FLR 217
University of Wollongong v Metwally & Ors (1984) 158 CLR 447
No. SCC 377 of 2009
Judge: Refshauge J
Supreme Court of the ACT
Date: 16 September 2010
IN THE SUPREME COURT OF THE )
) No. SCC 377 of 2009
AUSTRALIAN CAPITAL TERRITORY )
R
v
GEORGE ZUBER
ORDER
Judge: Refshauge J
Date: 16 September 2010
Place: Canberra
THE COURT ORDERS 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.
Following the publication of the report, Jones M and Crocker T, Responding to Sexual Assault: The Challenge of Change (Australian Capital Territory: Canberra, 2005) (the Report), comprehensive reforms were introduced in the ACT to the procedures by which sexual assault (and some other) offences were prosecuted. Many of the changes were effected by the Sexual and Violent Offences Legislation Amendment Act 2008 (ACT) (Sexual Offences Act) which, inter alia, made substantial additions and some amendments to the Evidence (Miscellaneous Provisions) Act 1991 (ACT) (Miscellaneous Provisions Act). It is with some of these provisions that the present application is concerned.
The Report recommended (at 147) that:
[t]he ACT should enact legislation permitting the tendering of an audiotape or videotape of an interview between police and a child complainant as the child’s evidence-in-chief. The provisions should apply to child witnesses who are victims of sexual or physical violence as well as witnesses aged 18 years or more who are vulnerable as a result of mental or physical impairment. The legislation should also provide that the court is not to view the witness while the tape is being played.
The Report explained the rationale for this recommendation (at 132) as follows:
Pre-recording of evidence aims to redress some fundamental problems with the justice system and how it deals with children’s evidence.
...
Delays in the court process ... are inevitable but work against children’s ability to recount events. Added to that is the unfamiliarity and formality of the court environment, which can also distract a child from accurately recalling what might have been months of abuse. For young children, being able to give cogent evidence many months later might be beyond their developmental capacity, despite the fact that they were able to give coherent descriptions at a time closer to the events in question. Pre-recording of evidence is an attempt to redress this problem.
It summarised the benefits of pre-recorded evidence as:
(1) improving the quality of the evidence;
(2) facilitating pre-trial decisions by the prosecution and defence;
(3) helping with the scheduling of the conduct of the trial; and
(4) minimising “system abuse” of child witnesses.
The main drawbacks were said to be an unfairness in requiring defence counsel to cross-examine the main prosecution witness before the trial has formally begun, the difficulty of defence counsel preparing for cross-examination before the commencement of the trial, through incomplete disclosure or limits on funding, the lack of immediacy and persuasiveness of such recordings compared to live-in-court testimony and that there can be problems with technology.
Ultimately, after discussing these issues, the Report recommended the legislative introduction of a regime of such pre-recording (as set out at [2] above) and then Div 4.2A of the Miscellaneous Provisions Act, introduced by the Sexual Offences Act, made such provision.
The Facts
The accused is charged on an indictment with two counts, namely, sexual intercourse with a child aged five years at the time and committing an act of indecency on that child both alleged to have been committed on 8 April 2009.
The first charge, an offence under s 55(1) of the Crimes Act 1900 (ACT) attracts a maximum penalty of imprisonment for 17 years.
The second charge, an offence under s 61 of the same Act, attracts a maximum penalty of imprisonment for 12 years.
On 3 June 2009, the accused was summonsed to appear in court and after some adjournments was, on 21 October 2009, committed by the ACT Magistrates Court for trial in this court. An indictment was ultimately filed on 11 December 2009. No trial date has yet been set.
On 9 April 2009, the day after the offences were alleged to have been committed, the complainant child was interviewed by two police officers. The interview was electronically recorded as an audiovisual recording.
The police officers had both undertaken a course of training in the making of audiovisual recording of witnesses answering questions in relation to the investigation of sexual or violent offences. The prosecution tendered a copy of the timetable and curriculum for the course, entitled “Interviewing Vulnerable Witnesses Program”.
It appeared from that material that the course was specifically designed for the implementation of the Sexual Offences Act. As well as the provisions of that Act, it covered issues such as when an interview must be conducted as an audiovisual record, the age appropriate understanding of concepts such as measurement, time, sexual activity and secrets, the need for an interview plan, the operation of interview equipment, recording processes, vulnerable witness interview techniques, human memory, elements of an interview, protective behaviours and the legislation and included practical sessions in interviewing.
The Application
The prosecution has applied for an order that the audiovisual recording conducted between the complainant and certain named police officers on 9 April 2009 at Winchester Police Station be admitted as the evidence-in-chief of the complainant under s 40F of the Miscellaneous Provisions Act.
That section provides:
Audiovisual Recording may be admitted as evidence
(1)An audiovisual recording may –
(a)be played at the hearing of a proceeding for the sexual or violent offence to which it relates; and
(b)if the recording is played at the hearing – be admitted as the witnesses’ evidence in chief in the proceeding as if the witness gave the evidence at the hearing in person.
(2)However, the court may refuse to admit all or any part of the audiovisual recording.
(3)The witness must not be in the courtroom, or visible to anyone in the courtroom by audiovisual link, when the audiovisual recording is played at the hearing.
(4)This section is subject to s 40J.
Section 40J provides pre-conditions to admissibility including, a notice from the prosecutor that the audiovisual recording is intended to be tendered as evidence, provision of a transcript of the recording a reasonable time before the hearing and a reasonable opportunity for the accused or his or her lawyer to see and listen to the recording.
There was no submission that any of these pre-conditions had not been met in this case. In any event, an affidavit of Travis Charles Gregory Jackson, filed in support of the application, deposed to the fact that a notice, a copy of which was annexed to the affidavit, had been served on the accused on 10 May 2010. The notice was accompanied by a transcript of the recording and informed the accused of his right to see and listen to the recording and how he might arrange that. This affidavit evidence was not challenged
It is not necessary for the purpose of this application to identify any further the alleged conduct said to constitute the offences.
The accused, through his counsel, Mr S Gill, challenged the application on the basis that there was no power in the court to grant the order sought.
I note that, strictly speaking, the order required first is, as noted above at [15], that the recording “may ... be played at the hearing” and, if so, “may ... be admitted” but the court may refuse to admit it.
Thus, the prosecution should seek an order that the audiovisual recording be played at the trial, thus enlivening the discretion and then, the admission of the evidence, though it is difficult to see how the recording could be played at the hearing without being admitted. As the application is opposed by the accused, a dismissal of the application will amount to a refusal to admit the recording under s 40F(2).
Mr Gill’s argument in opposition was in two parts. In the first place, he submitted that the provision did not apply since s 40F (and, indeed, Div 4.2A in which that section appears) did not commence until after the audiovisual recording had been made and, therefore, did not render it admissible at the trial. In the second place, he submitted that Div 4.2A was invalid as inconsistent with the Evidence Act 1995 (Cth) (the Evidence Act).
Division 4.2A commenced on 30 May 2009 that is, of course, after the date of the interview between the complainant and the two police officers.
Does Division 4.2A of the Miscellaneous Provisions Act apply to the Trial of the Accused?
In order to understand this issue it is necessary to refer to some additional statutory provisions. Section 40E of the Miscellaneous Provisions Act provides:
40E Meaning of audiovisual recording – div 4.2A
(1)For this division, an audiovisual recording is an audiovisual recording that is of a witness answering questions of a prescribed person in relation to the investigation of a sexual or violent offence.
(2)The audiovisual recording must include the following:
(a)the date when, and the place where, the recording was made;
(b)the times when the recording started and ended;
(c)the times when any break in questioning started and ended, and the reason for the break;
(d)the name of each person present during any part of the recording;
(e)for each person present during any part of the recording – the part when the person was present.
(3)The audiovisual recording must –
(a)be certified by a prescribed person as an accurate record of the witness answering the questions; and
(b)not be edited or changed, unless the court hearing the proceeding in which the recording is tendered otherwise orders.
There is no definition in the Miscellaneous Provisions Act of “prescribed person” but s 4 of the Evidence (Miscellaneous Provisions) Regulation 2009 (ACT) (the Regulation) provides as follows:
4 Prescribed Person – Act, s 40E(1) and (3)
(1)For the Act, section 40E (1) and (3), a prescribed person is a police officer who has completed training in the making of audiovisual recordings of witnesses answering questions in relation to the investigation of sexual or violent offences.
(2)The training mentioned in subsection (1) may be completed –
(a)in the ACT or elsewhere; and
(b)before or after the commencement of this section.
(a)Prescribed Person
The first question is whether the term “prescribed person” in the Miscellaneous Provisions Act refers to the process of legislative appointment of the person (which could only occur after commencement of the Act) or whether it is simply a term used for definitional purposes.
An example of the first alternative, might be the use of the term “prescribed person” in s 84A of the Legal Aid Act 1977 (ACT) which is defined to mean “a person appointed under section 84B”, the appointment thereby amounting to the prescribing.
On the other hand, “prescribed person” can be used merely as a label for a term that is defined. See Secretary, Department of Community Services and Health v Theologidis (1991) 105 ALR 321 (at 322).
Having regard to the structure of the Regulation and the use of the term in the section of the Miscellaneous Provisions Act, it seems to me that s 4 in the Regulation is a “labelling definition”. FAR Bennion in Understanding Common Law Legislation (Oxford University Press: Oxford, 2001) explained (at p64) this phrase as follows:
A labelling definition uses a term as a label denoting a complex concept that can then be referred to merely by use of the label, instead of the drafter having to keep repeating the full description. This technique has long been adopted to avoid the unnecessary prolixity previously displayed in our legislation ...
Thus, when the term “prescribed person” is used in s 40E of the Miscellaneous Provisions Act, I take it merely to be a label for “a police officer who has completed training in the making of audiovisual recordings for witnesses answering questions in relation to the investigation of sexual or violent offences” and not to be a reference to a person who has been, by legislative authority, appointed to a certain status or position by the section of the Regulation.
It follows then that a person who has the relevant characteristics is a prescribed person for the purposes of s 40E of the Miscellaneous Provisions Act. Being a prescribed person, that is having those characteristics, does not depend upon the commencement of the Miscellaneous Provisions Act or, indeed, the Regulation, though, of course, the consequences of that are only operative after commencement of the Act and Regulation.
Accordingly, in my view, s 4 of the Regulation is purely an interpretive section. In Gibb v Commissioner of Taxation of the Commonwealth (1966) 118 CLR 628, Barwick CJ, McTiernan and Taylor JJ said (at 635):
The function of a definition clause in a statute is merely to indicate that when particular words or expressions the subject of definition, are found in the substantive part of the statute under consideration, they are to be understood in the defined sense – or are to be taken to include certain things which, but for the definition, they would not include. Such clauses are therefore, no more than an aid to the construction of the statute and do not operate in any other way. As was said by Sutherland, (Statutes and Statutory Construction, 2nd ed vol 2 p 687):
Such definitions can, in the nature of things, have no effect except in the construction of the statutes themselves.
See also Kelly v The Queen (2004) 218 CLR 216 per McHugh J (at 254 [105]).
As was said in the High Court in PMT Partners Pty Ltd (In liquidation) v Australian National Parks and Wildlife Service (1995) 184 CLR 301 (at 310):
It is of fundamental importance that statutory definitions are construed according to their natural and ordinary meaning unless some other course is clearly required. It is also of fundamental importance that limitations and qualifications are not read into a statutory definition unless required by its terms or its context ...
(b)What is the effect of the recording pre-dating commencement of the Miscellaneous Provisions Act?
The next question is whether a recording of the complainant answering questions of a person who fits the description in the Regulation of “a prescribed person” is admissible notwithstanding that the recording was made prior to the commencement of the Miscellaneous Provisions Act.
There seem to be two ways of looking at this question: does the Miscellaneous Provisions Act merely take account of the prior facts and use them to make provision for the future, or would application of the section to the prior facts amount to giving the Act retrospective operation?
(i) Non-retrospective operation
In my view, the provisions merely give prospective effect to facts, which in this case, are prior facts, but do not amount to a retrospective operation.
In my view, what s 40F of the Miscellaneous Provisions Act does in this case is to give prospective operation based on past events. As the Victorian Full Court said in Robertson v City of Nunawading [1973] VR 819 (at 824):
... [the] principle [that retrospective operation is not to be given to a statute to impair an existing right or obligation] is not concerned with the case where the enactment under consideration merely takes account of antecedent facts and circumstances as a basis for what it prescribes for the future, and it does no more than that.
A most frequently cited example of this is Re a Solicitor’s Clerk [1957] 1 WLR 1219 where a clerk convicted in 1953 of larceny was later subject to an order prohibiting him from being employed by a solicitor. That order was not able to be made under the relevant regulatory legislation at the time of the clerk’s conviction, but that legislation was subsequently amended. The court held that there was no retrospectivity; the amended legislation simply had a future operation only, even though the conduct on which it depended had taken place in the past. An Australian example of the same approach is La Macchia v Minister for Primary Industry (1986) 6 AAR 160.
There are a number of similar decisions in Australia set out in Pearce, DC and Geddes, RS, Statutory Interpretation in Australia (LexisNexis Butterworths: Sydney, 2006), 6th ed, at [10.4]).
Recently, a court of five members of the Victorian Court of Appeal considered this issue in R v Roussety (2008) 192 A Crim R 32. Nettle JA, with whom all other members of the Court agreed on this point, had to consider the application of the term “continuing criminal enterprise offender” as an offender liable for an increased sentence of imprisonment on conviction. The term was defined by reference to whether the offender had been found guilty of a continuing criminal enterprise offence and prior to that a defined number of “relevant offences” which, in turn were defined to mean continuing criminal enterprise offences committed within a period of ten years prior to the later offence.
It was submitted that to permit offences of which the offender had been found guilty prior to the commencement of the applicable legislative provisions to be taken into account would amount to giving the legislation retrospective operation. The court rejected that submission.
Nettle JA cited (at 44[21]) with approval what had been said in R v Arundell [2003] VSCA 69, namely:
It is well recognized that that legislation is not regarded as having retrospective operation merely by reason of the possibility that the incidence or extent of potential liability for future conduct may be dependent upon the occurrence of past events.
As His Honour continued (at 45 [21]), the legislative provision “does not alter any rights or liabilities brought into existence by reason of offences committed before the coming into force [of the provision]”.
In my view, the same approach applies here. Section 40F of the Miscellaneous Provisions Act simply gives a prospective effect to what has happened in the past.
(ii) Retrospective Operation
In the event that I am wrong in this, it seems to me that s 40F is, in any event, a procedural provision. Procedural provisions take effect notwithstanding that the events pre-date the commencement of the relevant provisions.
In Maxwell v Murphy (1957) 96 CLR 261, Dixon CJ (at 267) summarised the approach of the Courts:
The general rule of the common law is that a statute changing the law ought not, unless the intention appears with a reasonable certainty, to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law has defined by reference to those past events.
This presumption against retrospectivity can be displaced. A common displacement is in relation to procedural provisions. In Maxwell v Murphy, Dixon CJ continued:
Changes made in practice and procedure are applied to proceedings to enforce rights and liabilities, or for that matter to vindicate an immunity or privilege, notwithstanding that before the change in the law was made the accrual or establishment of the rights, liabilities, immunity or privilege was complete and rested on events or transactions that were otherwise past and closed. The basis of the distinction was stated by Mellish L J in Republic of Costa Rico v Erlanger (1876) 3 Ch D 62:
No suitor has any vested interest in the course of procedure, nor any right to complain, if during the litigation the procedure is changed, provided, of course, that no injustice is done: (1876) 3 Ch D at p 69.
Thus, in Victrawl Pty Ltd v Telstra Corporation Ltd & Ors (1995) 183 CLR 595, the High Court said (at 615), the question was:
... whether the provision’s operation is merely procedural in the sense that it would not, if given unconfined operation, affect pre-existing substantive rights or liabilities. It is only if a statutory provision is merely procedural in the narrow sense that the ordinary presumption against retrospective operation is inapplicable.
See also Rodway v The Queen (1990) 169 CLR 515, where the unanimous Full Court said (at 521):
But ordinarily an amendment to the practice or procedure of a court, including the admissibility of evidence and the effect to be given to evidence, will not operate retrospectively so as to impair any existing right. It may govern the way in which the right is to be enforced or vindicated, but that does not bring it within the presumption against retrospectivity. A person who commits a crime does not have a right to be tried in any particular way; merely a right to be tried according to the practice and procedure prevailing at the time of trial. The principle is sometimes succinctly, if somewhat sweepingly, expressed by saying, as did Mellish LJ in the passage cited by Dixon CJ in Maxwell v Murphy, that no one has a vested right in any form of procedure. It is a principle which has been well established for many years ...
It seems to me that the amendments made by the Sexual Offences Act are procedural. I am reinforced in my view by the decision of Wright J in Carrick v J (1989) 39 A Crim R 235 where an amendment which repealed the need for corroboration in relation to the trial of certain sexual offences was held to apply to the trial of offences which had allegedly been committed prior to the amendment. His Honour observed (at 247):
These cases appear to me to provide a firm foundation for concluding that a provision such as s 136 of the Criminal Code [the relevant provision which was amended], whilst perhaps being a “retrospective” provision as that term has been used in some cases, it is [sic] nevertheless properly to be regarded as a procedural provision not affecting an accrued “right” of the respondent in any of the senses in which that term has been used previously ...
See also Attorney-General’s Reference (No 1 of 2004) (Tasmania) (2005) 152 A Crim R 146 where an amendment to the presumption in relation to possession of traffickable quantities of cannabis was changed from a presumption “in the absence of evidence to the contrary” to a presumption “unless the accused on the balance of probabilities proves otherwise”. The changed presumption was held to apply to offences alleged to have been committed before the amendment which made that charge. See also R v Seigneur (Question of Law Reserved No 1 of 2009) (2009) 103 SAR 207 per Gray J (at 220 [29]).
Though a legislative amendment is procedural, the implication of retrospective operation will be negatived, if the legislation impairs existing rights, as set out in Victrawl Pty Ltd v Telstra Corporation Ltd (above at [49]) and Rodway v The Queen (above at [50]).
The question thus arises as to whether the amendment affects the rights of the accused. Mr Gill suggested that it was an infringement of the accused’s right of confrontation. It is true that there is said to be a right of the accused to confrontation with his or her accusers. This right, however, is really a right that witnesses be examined in court: R v Horncastle [2009] 4 All ER 183 (at 194 [33]).
That is to say, this is the right referred to in s 22(2)(g) of the Human Rights Act 2004 (ACT):
To examine prosecution witnesses, or have them examined, and to obtain the attendance and examination of witnesses on his or her behalf under the same conditions as prosecution witnesses
It has been said that this right is “the reason for the rule that hearsay is inadmissible unless there is specific provision for it”: R v Horncastle (at 194 [33]).
The question then is whether the admissibility of the audiovisual recording which is taken before the trial derogates from this right. I note that, notwithstanding the admissibility of the audiovisual recording as evidence-in-chief, the complainant is still subject to cross-examination, though it would appear that this would be at a pre-trial hearing conducted under Div 4.2B of the Miscellaneous Provisions Act.
This issue, has, however, been the subject of consideration under international human rights instruments. Thus, in R (D) v Camberwell Green Youth Court [2005] 1 WLR 393, the House of Lords held that the giving of evidence by video link did not violate the accused’s right to a fair trial and the Parliament was entitled to modify or adapt the domestic legal system to meet modern conditions providing the adaptations complied with provisions equivalent to those contained in our Human Rights Act 2004 (ACT). Once it had decided that there was justification for using modern equipment to put the best evidence before the court while preserving the essential rights of the accused to know and to challenge all the evidence against him or her, the legislature was entitled to make such provision. To the same effect was the decision of the European Court of Human Rights in S N v Sweden (2004) 39 EHRR 13.
As the Lord Bingham of Cornhill said in the House of Lords in R v H [2004] 2 AC 134 (at 145-7), “fairness is a constantly evolving concept”.
Accordingly, if the Miscellaneous Provisions Act is regarded as being retrospective in this regard, then it seems to me that it is procedural and does not interfere with the rights of the accused.
Thus, in my view, s 40F of the Miscellaneous Provisions Act does apply to audiovisual recordings made prior to the commencement of the section, provided that the requirements for training and the other procedural matters as set out in s 40E and s 4 of the Regulation are met.
Validity of the Miscellaneous Provisions Act
Mr Gill then challenged the validity of Div 4.2A of the Miscellaneous Provisions Act on the basis that it was inconsistent with the Evidence Act.
Mr Gill did not identify which particular provisions of the Evidence Act he said were inconsistent. I have carefully read pt 2.1 of the Evidence Act and it seems to me that, especially in the light of the wide powers of the court under s 26, it may be arguable that the provisions are, in fact, consistent with the Evidence Act so long as a judge or magistrate is prepared to make an order that the evidence be taken in the particular way that s 40F of the Miscellaneous Provisions Act provides.
It is, however, arguable that the pre-recording of evidence amounts to hearsay when it is subsequently re-played to the court. While this would offend the hearsay rule, I do note that s 66 of the Evidence Act provides for an exception where the maker is available as would be the position in this case and, given that the interview was conducted the day after the alleged offence, in the particular circumstances of this case it may well fit within that provision.
Nevertheless, for the purpose of the argument, I am prepared to accept that the provisions of the Miscellaneous Provisions Act may be inconsistent with the Evidence Act.
The hurdle then Mr Gill has to surmount, however, is that s 8 of the Evidence Act appears to exempt the Miscellaneous Provisions Act from inconsistency. That section provides:
8. Operation of other Acts etc.
(1)This Act does not affect the operation of the provisions of any other Act, other than sections 68, 79, 80 and 80A of the Judiciary Act 1903.
(2)This Act does not affect the operation of regulations that:
(a)are made under an Act other than this Act; and
(b)are in force on the commencement of this section.
However, this subsection ceases to apply to a regulation once it is amended after that commencement.
(3)This Act has effect subject to the Corporations Act 2001 and the Australian Securities and Investments Commission Act 2001.
(4)Until the day fixed by Proclamation under subsection 4(6), this Act does not affect the operation of the following:
(a)provisions of the Evidence Act 1971 of the Australian Capital Territory that are specified in the regulations;
(b)any other Act of the Australian Capital Territory;
(c)an Ordinance of the Australian Capital Territory;
(d)an Imperial Act or State Act in force in the Australian Capital Territory;
(e)regulations that:
(i)are made under an Act or Ordinance of the Australian Capital Territory or under an Imperial Act or State Act in force in the Australian Capital Territory; and
(ii)are in force on the commencement of this section.
(5)Paragraph (4)(e) ceases to apply to a regulation once it is amended after the commencement of this section.
(6)Subsection (4) does not apply:
(a)in relation to provisions of this Act that apply to proceedings in all Australian courts; or
(b)so far as the regulations provide otherwise.
Prima facie, the Miscellaneous Provisions Act would fall within the terms of s 8(4)(b) of the Evidence Act. Mr Gill submitted, however, that that subsection should be read as referring to legislation in force at the date of commencement of the section and not including amendments made thereafter or, indeed, Acts of the Australian Capital Territory (ACT) enacted thereafter.
The reference to “Proclamation” in the section refers back to s 4(6) of the Evidence Act which provides:
(6)On a day fixed by proclamation, the provisions of this Act (other than sections 185, 186 and 187) ceased to apply to proceedings in an ACT court, except so far as the provisions applied to proceedings in all Australian courts.
These provisions were intended, as Master Connolly (as his Honour then was) commented in Simonfi v Fimmel [1999] ACTSC 131 (at 12):
The section would allow at some future time for the ACT Legislative Assembly to enact its own Evidence Act, and is consistent with the scheme of the Commonwealth Act which, with the agreement of the ACT Government, was to apply in ACT Courts as the basis of what was hoped may become a national uniform evidence law (Foreword by Justice Minister Kerr, Commonwealth Evidence Law, Attorney Generals Department 1995).
The provisions of s 8(4)(a) are clear enough. As was said by Crispin J in R v EG [2002] ACTSC 85 (at [34]) those provisions not specified in the Regulations “have now been effectively displaced”. See also Simonfi v Fimmel (at [18]).
Though not expressed in this way, Mr Gill’s submission seemed to rely on the common law presumption that, in the absence of an indication that a reference to other legislation in a legislative instrument was to be ambulatory, the reference is taken to be to the legislation in the form it took at the date the legislative instrument was made. Any subsequent amendments to the legislation referred to would not be taken into account: see Forsyth v Deputy Commissioner of Taxation (2004) 62 NSWLR 132 (at 138), In Re Universal Distributing Co Ltd (in liquidation) (1933) 48 CLR 171 (at 173), Commissioner for Government Transport (NSW) v Deacon (1957) 97 CLR 535 (at 547).
That presumption, however, is subject to any contrary intention in the legislative instrument. Spigelman CJ, with whom Giles JA and Gzell J agreed, said in Forsyth v Deputy Commissioner of Taxation (at 138) that while a contrary intention to the common law presumption “will need to be spelled out ... [i]t does not necessarily require express words”. Davies J pointed out in Amalgamated Television Services Pty Ltd & Ors v Foxtel Digital Cable Television Pty Ltd & Anor (1995) 60 SCR 483 (at 496), “[t]he issue must be determined by seeking the intention and operation of the [Act]”.
I further note that in Rani & Ors v Minister for Immigration and Multicultural Affairs (1997) 80 FCR 379, Sackville J held (at 395) that the principle “does not apply to a reference in an Act to regulations made under that Act”.
In the light of this law, then, I turn to the provision. I note that in both ss 8(2) and (4)(e) of the Evidence Act, it is expressed that the Act does not affect regulations insofar as they are “in force at the commencement of [the] section”. Both ss 8(2) and (5) provide that they cease to apply to a regulation once it is amended after the commencement of the section. This reference to “in force at the commencement of [the] section” does not, however, qualify any reference to Acts of the ACT.
This gives rise to the reasonable assumption that where the legislation refers to particular provisions in different terms, there is a deliberate intention to deal with them differently.
It does seem to me that the express reference to the regulation “in force at the commencement of [the] section” implies that so far as the Acts, Ordinances and Imperial Acts are concerned, where there is no such reference, the section should not be read as limiting them to those in force at the commencement of the section. It seems to me that the distinction between the two forms of legislation was deliberate and that it would be appropriate to rely on the maxim “expressio unius est exclusio alterius”.
This maxim of statutory construction simply means “to express one thing is to exclude another”. The principle may apply where an item is mentioned in relation to one matter, but not in relation to another matter equally eligible. In the latter case, it cannot be taken that the item applies. Applying the maxim here, the reference to “in force at the commencement of [the] section” in relation to regulations but not in relation to Acts implies that the limitation does not apply to Acts.
I have noted elsewhere that the maxim is something of a weak aid to construction; see Hakimi v Legal Aid Commission ACT& Anor [2009] ACTSC 48 (at [78]). It is “a valuable servant, but a dangerous master”: Colquhoun v Brookes (1888) 21 QBD 52 per Lopes LJ (at 65). It is to be applied “only in appropriate cases”: Rylands Bros (Aust) Ltd v Morgan (1927) 27 SR(NSW) 161 per Long Innes J (at 168-169). Nevertheless, it seems to me of assistance here in providing an understanding of the section and, given the different qualifiers in the section itself, can be of assistance.
If it was intended to limit s 8(4)(b) of the Evidence Act to Acts as in force at the date of commencement of the section, it would be easy enough to say it. If the same situation in that regard applied to regulations, neither grammar nor drafting required the insertion of the words in respect of regulations, were that already to have been applied as it was to Acts. The maxim seems to support a difference here very strongly.
Further, the Evidence Act is part of a uniform (or, more accurately, “mirror”) legislation in three States and the Commonwealth. See Australian Law Reform Commission, Report – Uniform Evidence Law (ALRC: Sydney, 2008) Report No 102, at 56-59.
I note in that context that s 8 of the Uniform Acts in NSW and Victoria provide:
This Act does not affect the operation of the provisions of any other Act.
These sections would, of course, be read in the light of the statutory provisions that references to other Acts include subsequent amendments of that legislation; Interpretation Act 1987 (NSW) s 68; Interpretation of Legislation Act 1984 (VIC) s 17.
While different pieces of legislation, the Evidence Acts in the three jurisdictions are part of a uniform scheme and, accordingly, I consider that I can draw some, albeit limited, implication from the inclusion of that provision in those other Acts.
Mr Gill also submitted that such a construction would make nonsense of the prohibition contained in s 8(4)(a) because the ACT legislature could simply make another Act which included all the provisions that were not in the Evidence Act 1971 (ACT) which were not specified in the Regulations thus undermining the current provisions.
In strict logic, Mr Gill’s submission is correct, but one must look at the context in which the legislation operates, where there is commitment to uniformity, with wide divergence on matters outside the core provisions but not to those core provisions, that is, those that are represented by the Evidence Act, especially in relation to the prosecution of sexual offences. See, for example, the Evidence (Audio and Audio Visual Links) Act 1998 (NSW).
Certainly, the legislature considered that it had power to do just what Mr Gill suggests. In 2003, the Evidence (Miscellaneous Provisions) Amendment Act 2003 (ACT) transferred provisions such as ss 76D, 76E and 76G from the Evidence Act 1971 (ACT) (ACT Evidence Act) to the Miscellaneous Provisions Act. These provisions had, it is true, appeared in Pt 10A of the ACT Evidence Act which, by the Evidence Regulations 1995 (Cth) had been specified for the purposes of s 8(4)(a) of the Evidence Act. This does not prove the argument but is strongly supportive of the fact that the intention of the legislature was not to limit Acts to those in force at the commencement of s 8. In 2008, the Evidence Regulations 1995 (Cth) were amended to omit these provisions, suggesting that the Commonwealth agreed.
If Mr Gill is right, then these provisions are now inoperative, as are all amendments to the Miscellaneous Provisions Act made since 23 February 1995 (the date of commencement of the Evidence Act).
Though in a slightly, but not irrelevant, context, I echo what was said by Barr and Hall JJ in Hannes v Director of Public Prosecutions (Cth) (No 2) (2006) 205 FLR 217 (at 374 [72]) in saying that “it would be surprising” if the Commonwealth intended to affect ACT legislation in this way.
The consequences would be quite challenging, also, were every amendment to every ACT Act potentially to be invalid if inconsistent with the Evidence Act.
I am satisfied that Div 4.2A of the Miscellaneous Provisions Act is not invalid as inconsistent (in the sense suggested in Simonfi v Fimmel (at [15]), relying on University of Wollongong v Metwally & Ors (1984) 158 CLR 447 (at 463-4)) with the Evidence Act.
I also looked at the Explanatory Memorandum for the Evidence Bill which became the Evidence Act and it is of no assistance.
Conclusion
As a result, 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.
I certify that the preceding ninety-two (92) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.
Associate:
Date: 16 September 2010
Counsel for the applicant: Ms K Weston-Scheuber
Solicitor for the applicant: Director of Public Prosecutions (ACT)
Counsel for the respondent: Mr S Gill
Solicitor for the respondent: Capon & Hubert
Date of hearing: 26 August 2010
Date of judgment: 16 September 2010
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