R v HC
[2017] ACTSC 276
•30 August 2017
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v HC |
Citation: | [2017] ACTSC 276 |
Hearing Date: | 28 July 2017 |
DecisionDate: | 30 August 2017 |
Reasons Date: | 20 September 2017 |
Before: | Burns J |
Decision: | The application was refused. |
Catchwords: | EVIDENCE – Evidentiary Matters Relating to Witnesses and Accused Persons – application for exclusion of recorded statement by complainant – alleged failure to comply with the requirement that the recorded statement be conducted ‘as soon as practicable after the event’ – taking of evidence in sexual, violent and family violence proceedings – hearsay – audiovisual recording – requirements under Evidence (Miscellaneous Provisions) Act 1991 (ACT) INTERPRETATION – General Rules of Construction of Instruments – offences may fall within definition of family violence and violent or sexual offence – differences in regimes under legislation – no manifest inconsistency between the provisions – complainant not obligated to participate in recorded statement – alternative pathways to admissibility – legislative objective – process of giving evidence easier for the complainant – fresh in complainant’s memory – obligation to make the recorded statement as soon as practicable is one which statute casts upon the police – recorded statement made as soon as practicable – applicant’s lawyer had reasonable opportunity to listen to or view recorded statement – in the interests of justice to admit the recorded statement – application was refused |
Legislation Cited: | Crimes Act 1900 (ACT) s 34 Evidence Act 2011 (ACT) ss 59, 138 Legislation Act 2001 (ACT) s 139 |
Cases Cited: | Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) [2009] HCA 41; 239 CLR 27 Creely v Ingles [1969] VR 732 Martin v Commonwealth of Australia (1975) 7 ACTR 1 Geldert v Western Australia [2012] WASCA 226; 271 FLR 83 Wills v Whitside, Ex parteWills (1987) 2 Qd R 284 |
Texts Cited: | Explanatory Statement, Crimes (Domestic and Family Violence) Legislation Amendment Bill 2015 |
Parties: | HC (Applicant) The Queen (Respondent) |
Representation: | Counsel Mr P Edmonds (Applicant) Ms K McCann (Respondent) |
| Solicitors Paul Edmonds & Associates (Applicant) ACT Director of Public Prosecutions (Respondent) | |
File Numbers: | SCC 16 of 2017; SCC 17 of 2017 |
BURNS J:
The applicant was charged with one count of unlawful confinement contrary to s 34 of the Crimes Act 1900 (ACT). By an application dated 9 May 2017 the applicant sought the following order:
(a)that the “evidence in chief statement” of the complainant on 12 November 2016 (the recorded statement) be excluded pursuant to s 59 of the Evidence Act 2011 (ACT) (the EA).
The primary ground upon which the application was brought was an alleged failure to comply with the requirement that the recorded statement be conducted “as soon as practicable after the event” pursuant to s 79(1)(a) of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) (the EMPA).
The following questions arise concerning the applicant’s primary contention:
(a)is the admissibility of the complainant’s recorded statement governed by Part 4.3 of the EMPA?
(b)if so, have the requirements for admissibility of the recorded statement been met?
It is central to the applicant’s main contention that the admissibility of the recorded statement by the complainant is governed by the provisions of Part 4.3 of the EMPA to the exclusion of other provisions of that Act, and in particular the provisions of Part 4.2 dealing with sexual and violent offences. While both parties approached the application on the basis that the provisions of Part 4.3 determined the outcome, the applicant did raise the apparent application of other provisions of the EMPA, and in particular the provisions of Division 4.2.2A dealing with sexual and violent offences. In the course of my reasons I will briefly explain why the provision of Division 4.2.2A do not apply.
The applicant’s trial was due to commence on 11 September 2017. In light of the applicant’s impending trial date, I gave my decision refusing the application on 30 August 2017, and told the parties I would publish my reasons at a later time. These are those reasons. I understand that the applicant subsequently entered a plea of guilty to two charges of assault which had been transferred to this Court as charges related to the charge of unlawful confinement, and the Crown did not proceed with the charge of unlawful confinement. I will nevertheless publish my reasons for dismissing the application.
Facts
Both the applicant and the Crown relied upon a Statement of Agreed Facts filed on 18 July 2017 which detailed the timeframe in which the recorded statement was taken:
(a)At about 10.54 am on 11 November 2016, the complainant contacted the Tuggeranong Police Station by telephone indicating that she wanted to make a statement regarding an incident involving her ex-partner, the accused, on 9 November 2016. At the time of the telephone call, the complainant was at the ACT Magistrates Court obtaining a protection order.
(b)At 3.38 pm on 11 November 2016, the complainant contacted police, saying that she had to pick up her children and requested that the police contact her to arrange a time to meet.
(c)At 4.07 pm on 11 November 2016, the matter was referred to police officers allocated to Tuggeranong Patrol 32. Due to a priority job which required the attendance of Tuggeranong Patrol 32, no contact was made with the complainant at that time.
(d)At 10.55 pm on 11 November 2016, Tuggeranong Patrol 32 attempted to contact the complainant by calling her. The call went through to voicemail where a message was left to arrange a time to meet with the complainant. At this time police did not have a specific residential address for the complainant.
(e)On 12 November 2016, Constable Murray Brooks attempted to contact the complainant’s mobile phone, however there was no answer. A further voicemail was left.
(f)At about 5.45 pm on 12 November 2016, the complainant attended the Tuggeranong Police Station to report the incident of 9 November 2016.
(g)At 5.55 pm on 12 November 2016, the complainant participated in the recorded statement.
(h)The recorded statement was concluded at 6.08 pm on 12 November 2016.
The Crown relied upon two affidavits, one affirmed by Vivian Wei on 15 June 2017 and one affirmed by Sofia Janackovic on 3 August 2017. I will refer to the contents of those affidavits as necessary.
The relevant statutory provisions
The application sought exclusion of the recorded statement pursuant to s 59 of the EA. This section sets out the hearsay rule, effectively making hearsay evidence inadmissible. The EA provides for exceptions to the hearsay rule, but none of those exceptions are presently relevant. It is accepted that if the recorded statement is not made admissible by provisions of the EMPA, the effect of s 59 of the EA is to render it inadmissible.
Chapter 4 of the EMPA sets out procedures for the taking of evidence in sexual, violent and family violence proceedings. Part 4.2 of the EMPA outlines the requirements and procedures for the taking of evidence in sexual and violent offence proceedings, whereas Part 4.3 relates to evidence in a proceeding for a family violence offence.
10. Part 4.2 is headed “Evidence in Sexual and Violent Offence Proceedings”. The EMPA defines a “violent offence” for the purposes of Part 4.2 as meaning “a serious violent offence” or “a less serious violent offence”: s 37. The EMPA, in turn, defines those terms by reference to specified offences set out in s 37. The offence of forcible or unlawful confinement contrary to s 34 of the Crimes Act 1900 (ACT) is defined as a serious violent offence. Admission into evidence of an audiovisual recording of the complainant’s interview with police with regard to a serious violent offence is permitted by s 40F of the EMPA which is part of Division 4.2.2A. The admission of such a recording is conditional upon the prosecution giving notice to the accused person that they intend to adduce the recording as evidence, a copy of the transcript of the recording being given to the accused person or their lawyer within a reasonable time before the start of the hearing of the proceedings, and the accused person and their lawyer being given a reasonable opportunity to see and listen to the recording: s 40J.
11. To be admissible under the provisions of Division 4.2.2A, the recording of the complainant’s interview with police must be an “audiovisual recording” as defined in s 40E. This is defined as an audiovisual recording of a witness answering questions of a “prescribed person” in relation to the investigation of a sexual or violent offence. The Evidence (Miscellaneous Provisions) Regulation 2009 (ACT) (the Regulation) defines a prescribed person for the purposes of s 40E to be “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”. While this definition appears to suggest that the focus of the training to be undertaken by the police officer is on the recording of the interview, it is clear from s 40E(1) that the prescribed person is the person conducting the interview, and the intention of the regulation is that the training is to focus on the process of questioning.
12. To be admissible, an audiovisual recording as defined under s 40E must be a recording of a “witness” answering questions of a prescribed person. For this purpose, “witness” is defined in s 40D as, relevantly for present purposes, a complainant. Prima facie, the provisions of Division 4.2.2A may apply to the audiovisual recording of the interview between the complainant and police, as the interview is one between a police officer and a complainant, and it related to a serious violent offence. I will return to this issue later in these reasons. I note that prior to 1 May 2017 the definition of the term “witness” in s 40D did not include a complainant, but only referred to child witnesses and witnesses who are intellectually impaired. The inclusion of complainants into the definition of “witness” in s 40D was effected by the Family Violence Act 2016 (ACT), which did not commence until 1 May 2017.
13. Part 4.3 of the EMPA is headed “Evidence in family violence proceedings”. Relevantly for present purposes, the EMPA defines “family violence offence proceedings” for the purposes of Part 4.3 as “a proceeding for a family violence offence”: s 75(1). The term “family violence offence” is in turn defined in s 74 as having the same meaning as found in the Dictionary to the Family Violence Act 2016 (ACT)(the FVA). The Dictionary to the FVA defines the term “family violence offence” as meaning “an offence if the conduct making up the offence is family violence”. In this way, the EMPA also picks up the definition of family violence in the FVA. The definition of family violence in the FVA is based, not upon a list of specified offences, but upon behaviours set out in s 8:
8 Meaning of family violence
(1) In this Act:
family violence means—
(a) any of the following behaviour by a person in relation to a
family member of the person:
(i) physical violence or abuse;
(ii) sexual violence or abuse;
(iii) emotional or psychological abuse;
(iv) economic abuse;
(v) threatening behaviour;
(vi) coercion or any other behaviour that—
(A) controls or dominates the family member; and
(B) causes the family member to feel fear for the safety
or wellbeing of the family member or another
person; or
(b) behaviour that causes a child to hear, witness or otherwise be
exposed to behaviour mentioned in paragraph (a), or the effects
of the behaviour.
14. Division 4.3.3 of the EMPA provides for a recorded statement of a complainant to be used as their evidence-in-chief in a family violence proceeding. Section 79 outlines the requirements for a recorded statement, relevantly, as follows:
Recorded statement—requirements
(1) A recorded statement must be made—
(a) as soon as practicable after the events mentioned in the statement happened; and
(b)in the form of questions and answers.
Note If the recorded statement is to be admitted as evidence in a
proceeding, the rules of evidence apply to the content of the statement.
The following provisions of the EMPA are also relevant:
77 Meaning of recorded statement—pt 4.3
(1) In this part:
recorded statement means—
(a) an audiovisual recording—
(i) of a complainant answering questions of a police officer in relation to the investigation of a family violence offence; and
(ii) made by a police officer; or
(b) an audio recording that complies with paragraph (a)—
(i) if the complainant does not consent to an audiovisual recording; or
(ii) in exceptional circumstances.
...
80 Recorded statement—may be admitted as evidence
(1) A recorded statement may—
(a) be played at the hearing of a proceeding for the family violence offence to which it relates; and
(b) if the recorded statement is played at the hearing—be admitted as all or part of the complainant’s evidence in chief in the proceeding as if the complainant gave the evidence at the hearing in person.
...
(6) This section is subject to section 81D (Recorded statement— admissibility).
81B Recorded statement—represented accused person to be
given copy
(1) This section applies if—
(a) a recorded statement has been made in relation to a family
violence offence that is the subject of a proceeding; and
(b) the accused person is represented by a lawyer in the
proceeding.
(2) The lawyer representing the accused person must be given a copy of
the recorded statement as soon as practicable after the proceeding is
commenced.
Note For how documents may be served, see the Legislation Act, pt 19.5.
(3) The lawyer representing the accused person must return the copy of
the recorded statement by giving it to the prosecutor not later than
16 weeks after the proceeding is finalised.
(4) The accused person must not be given, or take a copy of, the
recorded statement.
...
81D Recorded statement—admissibility
Evidence of a representation of a complainant given in the form of a recorded statement is not to be admitted if section 81B or section 81C have not been complied with, unless the court is satisfied that—
(a) the parties consent to the recorded statement being admitted; or
(b)the accused person or the accused person’s lawyer (if any) have been given a reasonable opportunity to listen to or view the recorded statement and it would be in the interests of justice to admit the recorded statement.
16. The hearsay and opinion rules do not prevent the admission or use of evidence of a representation in the form of a recorded statement only because it is in that form: s 81.
The applicant’s submissions
17. The applicant submitted that “the more general provisions of Part 4.2 of the [EMPA] must be read down to the specific provisions of Part 4.3 dealing with the potential use of recorded statements in family violence offence proceedings”. For this reason, the applicant submitted, the determination of the present application fell to be considered under the provisions of Part 4.3.
18. With regard to the provision of Part 4.3 the applicant submitted that the recorded statement was not made “as soon as practicable” after the alleged incident as required by s 79(1) of the EMPA, and as such, the statutory requirements for the making of a recorded statement were not complied with. The applicant further submitted that as the contents of the statement were otherwise hearsay and that the preconditions for its admissibility under s 81D of EMPA had not been met, it must be excluded pursuant to the hearsay rule found in s 59 of the EA.
19. The applicant submitted that the legislative purpose behind Part 4.3 of the EMPA can readily be seen to be relevantly the same as that behind the use of evidence-in-chief interviews within Part 4.2 of the EMPA, citing Refshauge J in R v Al-Harazi (No 6) [2017] ACTSC 63 (R v Al-Harazi) at [11]-[22]. At the time that his Honour made his ruling in R v Al-Harazi the provisions of Part 4.2 related only to child witnesses and witnesses with an intellectual impairment. I take the relevant part of Refshauge J’s decision to be found at [21], where his Honour says:
In summary, the rationale for the introduction of this evidence is twofold: to reduce the stress of giving evidence to the child witness and, secondly, to capture the child’s earliest memories of the incident without the risk to that memory of multiple questioning of the child and the passage of time. It also significantly reduces the stress of the criminal process more generally.
20. The applicant sought to identify the relative reliability of statements made by a complainant in an interview with police, as opposed to evidence of events given at a later time at trial, as the rationale for provisions allowing the admission into evidence of such recordings. He therefore submitted that any temporal requirements in the EMPA were to be interpreted strictly, so as to reduce the opportunity for fabrication, invention and (semble) loss of memory, citing Williams v R (1986) 161 CLR 278 and R v Smith [2003] QCA 76; 138 A Crim R 172.
21. Lastly in his written submissions, the applicant submitted that no explanation had been provided for the delay of three days between the incident and the making of the recorded statement and there was no evidence as to why the complainant was unable to participate in the recording of a statement within those three days.
22. At the hearing of the application, the applicant modified his submission to also argue that the fact that the statement was not made as soon as practicable meant that it was evidence that was obtained improperly or in contravention of an Australian law, in that it was not made as soon as practicable after the relevant events, as required by s 79(1)(a) of the EMPA. The applicant submitted that s 138 of the EA applied, such that the recorded statement must not be admitted unless the desirability of admitting the statement outweighed the undesirability of admitting evidence obtained in the way in which the statement was obtained.
23. In making this submission, the applicant took me to the case of Parker v Comptroller-General of Customs [2009] HCA 7; 83 ALJR 494 in which French CJ explained at [29] the meaning of both “in contravention of” and “impropriety”:
The meanings to be accorded to the terms “improperly”, “impropriety” and “contravention” in s 138 were not illuminated by the Law Reform Commission report. The relevant ordinary meanings of “improper” include “not in accordance with truth, fact, reason or rule; abnormal, irregular; incorrect, inaccurate, erroneous, wrong”. “Contravention” refers to “[t]he action of contravening or going counter to; violation, infringement, transgression”.
(footnotes omitted)
24. The applicant submitted that while there may have been no contravention of the law, the fact that the recorded statement was not taken as soon as practicable meant that the police had acted in a way which was contrary to the procedural requirements that exist under s 79(1)(a) of the EMPA. Further, the applicant submitted that the police should have refused to do the interview and should have taken a witness statement from the complainant in the normal way.
At the hearing of the application, the applicant made an additional submission, being that the recorded statement was not provided to the legal representatives of the applicant as soon as practicable as required by s 81B, with the consequence that the provisions of s 81D precluded the admission of the recording into evidence unless the Court was satisfied of the matters set out in s 81D(b). The applicant tendered two letters from the Director of Public Prosecutions (DPP) to the applicant’s lawyers which established that the DPP became aware of who was representing the applicant on or about 16 December 2016, and that the recorded statement was provided to them just over a month later on 20 January 2017. In making this submission, the applicant argued that the wording of s 81D(b) was important in that a recorded statement is not to be admitted unless the court is satisfied that “it would be in the interests of justice to admit the recorded statement”. The applicant further submitted that the Court must assess the reliability, and the relative contemporaneity of the statement, when considering if “the interest of justice would simply be served by applying the normal Rules of Evidence, which would result in the evidence being inadmissible”.
The Crown’s submissions
26. The Crown submitted that three questions were raised by the application:
(a)What does the phrase “as soon as practicable after the event” mean?
(b)Was the recorded statement conducted as soon as practicable after the event in all the circumstances?
(c)Where the recorded statement failed to comply with the requirements in s 79 of the EMPA, is it otherwise admissible pursuant to Division 4.2.2A of the EMPA?
Meaning of “as soon as practicable”
27. The Crown submitted that the phrase “as soon as practicable” is to be given its ordinary meaning and that the requirement that the recorded statement be taken as soon as practicable is a requirement upon the police to conduct the statement as soon as it becomes practicable for them to do so.
28. The Crown took me to a number of authorities including the case of Geldert v Western Australia [2012] WASCA 226; 271 FLR 83 in which McLure P (with Martin CJ and Mazza JA agreeing), held at [50] that in construing the phrase “as soon as practicable”, practicable was to be given its natural and ordinary meaning of “capable of being put into practice, done or effected, especially with the available means or with reason or prudence; feasible” (citing Wright v Western Australia [2010] WASCA 199; 203 A Crim R 339 at [26], [148]).
29. In Creely v Ingles [1969] VR 732, Little J held that the phrase was one to be determined in light of all the circumstances. He notes at 734:
The phrase "as soon as practicable" is one which defies definition. The words are ordinary English words and the question whether the certificate was delivered as soon as practicable after a sample of breath was analysed is necessarily one which is to be determined in the light of all the circumstances. It is not one to be determined on some mathematical basis of adding together periods of time taken in relation to the various steps in the process of the breath analysis and the checking of the operation of the instrument.
30. Similarly, in Vision Nominees Pty Ltd v Pangea Resources Ltd (1988) 14 NSWLR 38, Bryson J commented at 43:
... The range of facts and circumstances which can bear on what is practicable is a wide range: the choice of that word is a choice away from the narrow, the restrictive and the theoretical. A requirement that a meeting is to be held as soon as practicable is not a requirement that a meeting be held as soon as possible, nor in the least time which can be arranged.
31. In Semaan v Poidevin [2013] NSWSC 226; 228 A Crim R 363 (Semaan v Poidevin), Rothman J, in construing s 201 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), held that a requirement that something be done as soon as practicable does not arise until (or as soon as) it is not impracticable to comply. As such, the duty arises when it is first “not impracticable” (see [107]).
32. The Crown submitted that in construing the phrase for the purposes of s 79(1)(a) of the EMPA, the term is not to be equated with the mere concept of time after the event, arguing that such an interpretation would be inconsistent with the plain meaning of the phrase. The Crown submitted that a recorded statement must be conducted as soon as it can be put into practice after the event, or as in Semaan v Poidevin, as soon as it is not impracticable after the event.
33. Finally, the Crown submitted the phrase “as soon as practicable” in the various legislative provisions in which it appears, places an onus on a person (or entity) who can put into practice the thing required to be done when it is practicable. In line with this, the Crown submitted that in this case, the onus was on a police officer who has working audiovisual equipment, and who asks questions of a complainant. Further, the police can only undertake a recorded statement when the complainant is present and consenting. In summation, the Crown submitted that the inquiry as to whether s 79(1)(a) had been compiled with begins, and ends, with a consideration of the first time it became practicable for the police to conduct the recorded statement with the complainant.
Was it conducted “as soon as practicable”?
34. Referring to the Statement of Agreed Facts set out at [6] above, the Crown submitted that the recorded statement was conducted as soon as practicable after the event on 9 November 2016, noting the following:
Police were only advised of an alleged incident on 11 November 2016, and following unsuccessful attempts to contact the complainant, in circumstances where her residential address was unknown, it only became practicable to conduct the [recorded statement] in all the circumstances, once the complainant attended the Tuggeranong Police Station on 12 November 2016. The [recorded statement] was conducted some 10 minutes after her arrival.
Recorded Statement otherwise permitted
35. The Crown submitted that if the Court found that the recorded statement did not comply with s 79(1)(a) of the EMPA, it was otherwise permitted to lead it pursuant to Division 4.2.2A of the EMPA.
36. In relation to the applicant’s submission regarding the reading down of the specific provisions of Part 4.2.2A of the EMPA (see [10] above), the Crown submitted that the task of statutory construction must begin and end with a consideration of the text itself (citing Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) [2009] HCA 41; 239 CLR 27 at [47] and The Director of Public Prosecutions v Scheele [2016] ACTCA 23 (DPP v Scheele) at [27]) and that the primary objective is to construe the relevant provisions so that it is consistent with the language and purpose of all the provisions of the statute (see Project Blue Sky Incorporated & Ors v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 (Project Blue Sky v ABA) at [69] and Taylor v Public Service Board (NSW) (1976) 137 CLR 208 at 213).
37. The Crown submitted that in working out the meaning of an Act, the interpretation that would best achieve the purpose of the Act is to be preferred to any other interpretations: s 139 of the Legislation Act 2001 (ACT) (the Legislation Act), noting that this does not provide a court licence to ignore the words of the Act or to rewrite the provisions in question (see DPP v Scheele). The Crown also submitted that the meaning of the provision must be determined by reference to the language of the instrument as a whole: s 140 of the Legislation Act.
38. Referring to Project Blue Sky v ABA, the Crown further submitted that a legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals, and that where a conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of competing provisions to achieve that result which will best give effect to the purpose and language of the provisions whilst maintaining the unity of all the statutory provisions.
39. In regards to the introduction of Division 4.2.2A into the EMPA, the Crown submitted that rationale for this was twofold: the recording was aimed at reducing the stress of giving evidence by a child witness and an attempt to capture the child’s earliest memories of the incident. The Crown submitted that the introduction of Division 4.3.3 of the EMPA permitting the admission of recorded statements into evidence in family violence proceedings, recognises complainants in family violence proceedings to be a category of vulnerable persons. Referring to the Explanatory Statement, Crimes (Domestic and Family Violence) Legislation Amendment Bill 2015, the Crown submitted that the availability of presenting evidence in the form of a recorded statement was aimed, amongst other things, to reduce trauma throughout the court process.
40. The Crown summarised their submissions as to the legislative purpose of provisions under Chapter 4 of the EMPA permitting the admission of recorded statements as “the protection of persons identified as vulnerable witnesses, and to allow the presentation of their evidence in a manner which reduces the stress and trauma for those witnesses in court proceedings, and to capture as far as practicable, the best evidence of those witnesses”.
41. The Crown accepted that the EMPA uses different language and provides for different requirements in relation to an audiovisual recording under Division 4.2.2A and a recorded statement under Division 4.3.3, but rebutted the submission by the applicant that they are to operate as mutually exclusive, stating that “the provisions are not inherently inconsistent, such that a conclusion that the provisions operate together would lead to an unreasonable or absurd result”.
42. Noting that some cases (such as this case of forcible confinement) may fall into the category of “family violence offences” (Division 4.3.3 of the EMPA) and “violent offences” (Division 4.2.2A of the EMPA), the Crown submitted that these provisions can been seen to create two alternative paths to the admissibility and presentation of the evidence. In line with this argument, the Crown submitted that as long as the evidence fulfils the necessary requirements of both, or either division, the audiovisual evidence may be admitted through either division.
43. The Crown submitted that the intent and purpose of the statutory scheme within the EMPA is maintained by viewing the provisions as operating within one harmonious regime, and an interpretation which renders the provisions mutually exclusive is inconsistent with the purposes of the provisions and has the potential consequence of a “significant number of family violence complainants not being covered”.
44. The Crown finally submitted in its written submissions that to the extent there is any conflict or inconsistency between the provisions relating to “family violence offences” and the provisions relating to “violent offences”, that conflict can, and must be, reconciled by adjusting any competing provisions to achieve the purpose of the legislation. In conclusion, the Crown submitted that:
(a)the recorded statement complied with the requirements of s 79(1)(a) of the EMPA and was therefore admissible pursuant to Division 4.3.3; and
(b)further, and in the alternative, the recorded statement complied with the provisions of Division 4.2.2A which provides an alternative path for its admissibility.
45. At the hearing of the application, the Crown responded to the applicant’s submission that the recorded statement should be excluded in line with the Court’s discretion under s 138 of the EMPA, submitting that there is no impropriety as alleged and that the recorded statement was taken as soon as practicable. The Crown further submitted that if the Court were to find that the recorded statement was not taken as soon as practicable, the statement should still be admitted into evidence as the desirability of admitting the statement outweighed the undesirability of admitting the evidence, having regard to the way in which it was obtained.
46. At the finalisation of oral submissions, I noted that the Crown could provide further written submissions addressing submissions made orally by the applicant at the hearing, and which had not been referred to in his written submissions, concerning the alleged failure of the police to comply with s 81B. Subsequent to this, both the Crown and the applicant filed further written submissions.
Additional submissions
The Crown’s additional submissions
The Crown submitted the meaning of “as soon as practicable” for the purposes of s 81B of the EMPA should also be given its ordinary and plain meaning referring to their submissions set out at [27]-[33] above. Referencing the affidavit of Sofia Janackovic dated 3 August 2017, which outlined the procedural history of this matter, the Crown submitted that it was open to the Court to find that the recorded statement was given to the applicant’s legal representative as soon as practicable after the proceeding commenced, noting that the legal representative of the applicant appeared to be engaged on or about 16 December 2016 and were provided with a copy of the recorded statement four weeks later on 20 January 2017.
The Crown further submitted that, were the Court to find that this is not the case, the applicant and his legal representative had reasonable time to view or listen to the recorded statement and that it is in the interests of justice to admit it as permitted by s 81D(b) of the EMPA. Following this submission, the Crown noted that the applicant’s legal representative had had a copy of the recorded statement since 20 January 2017 and that the trial was listed to commence on 11 September 2017. It was further submitted that the applicant had more than reasonable time to listen to and view the recorded statement as he was given an audio copy of the recorded statement and was provided with information to arrange to view the recorded statement at the time of his arrest on 10 December 2016.
49. Arguing that the admission of the recorded statement did not create any unfair prejudice to the applicant in conducting his defence at trial, the Crown submitted that the Court should find it was in the interests of justice to admit the recorded statement as being evidence taken from a vulnerable witness.
50. In relation to the applicant’s s 138 submission (see [22]-[24] above), in addition to its oral submissions the Crown submitted that while ss 80 and 81D of the EMPA refer to the admissibility of the recorded statement, ‘in reality, it is referring to the presentation of the complainant’s evidence in the form of...’ a recorded statement.
51. The Crown noted that in making an application pursuant to s 138 to exclude the recorded statement and have the complainant give evidence in chief in person at the trial, the applicant sought to exclude the recording of the evidence as obtained improperly, not the contents of the evidence itself. The Crown submitted that were the Court to find that s 79 and/or s 81B had not be complied with, no impropriety had been established, citing the case of Parker v Comptroller-General of Customs [2009] HCA 7; 83 ALJR 494 in which French CJ stated at [30] that a ‘[m]ere failure to satisfy a condition necessary for the exercise of a statutory power is not a contravention. Nor would such a failure readily be characterised as “impropriety”...’ In line with this, the Crown submitted that in the case of a failure to comply with s 81B of the EMPA, even where such a failure was considered to be an impropriety, it cannot be said that ‘the evidence was “obtained” improperly or in consequence of an impropriety’.
Applicant’s additional submissions
52. The applicant repeated his earlier submission that there was no explanation for the delay of one month from when the Crown became aware of the identity of the applicant’s legal representative, to when the audiovisual recording of the recorded statement was provided to him. Further to this, the applicant noted that the Crown had not informed the Court of when it was provided with a copy of the recorded statement from the AFP. The applicant submitted that in the absence of any such explanation the Court must reject the submission that s 81B of the EMPA has been complied with.
53. The applicant submitted that it is important to note the requirement in s 81D(b) that the defence has had a reasonable opportunity to listen or view the recorded statement ‘is but one of the pre-conditions for the exercise of the Court’s discretion under that section, and that issues of prejudice to the defence are not the only relevant consideration’. Following this, the applicant submitted that compliance with s 81B should not be dependent upon whether any prejudice will result from non-compliance. The applicant submitted that it was important that there be consequences for the failure of the police to comply with the provisions of the EMPA, and for the Crown failing to comply with its disclosure obligations.
54. The applicant finally submitted that while no issue of any statutory power of the AFP arises, a breach of the statutory requirements such as those imposed by ss 79 and 81B ‘is clearly an impropriety’.
Consideration
55. It will often be the case that a police officer conducting an audiovisually recorded interview with a complainant will not know the precise nature or details of the complaint. It follows that such a police officer will not always know whether the complaint will involve an allegation of a family violence offence or a sexual or violent offence, as those terms are defined in the EMPA. As the Crown correctly submitted, it is inevitable that some offences which occur in the context of family violence may also fall within the definition of a violent or sexual offence, as occurred here. I should note that it was common ground that the offence of unlawful confinement alleged against the applicant was both a serious violent offence and a family violence offence for the purposes of the EMPA.
56. There are differences between the regimes prescribed in Division 4.2.2A and Division 4.3.3. For example, the requirement found in Division 4.3.3 (s 79(1)(a)) that a recorded statement be made as soon as practicable after the relevant events is not found in Division 4.2.2A. In addition, there is a potential dissonance between the requirement in Part 4.3 (s 77) that the recorded statement be made simply by a police officer, and the requirement in Division 4.2.2A that the recorded statement be made by a prescribed person, in effect a police officer who has undergone special training. There are also different notice requirements: under Division 4.3.3 (ss 81B) an accused’s legal representative must be given a copy of the recorded statement as soon as practicable after the proceeding is commenced, whereas no such requirement is found in Division 4.2.2A.
57. The fact that there are differences in the legislative regimes prescribed for recorded statements in family violence offences under Part 4.3 and for sexual or violent offences under Division 4.2.2A does not mean that the provisions conflict, or are inconsistent. The applicant’s submission that the terms of Division 4.2.2A must be read down by reason of the “specific provisions” of Division 4.3.3 is an appeal to the interpretive maxim generalia specialibus non derogant, or where there is a conflict between general and specific provisions, the specific provisions prevail.
58. The maxim only applies where “there are two inconsistent provisions which cannot be reconciled as a matter of ordinary interpretation”: Purcell v Electricity Commission of New South Wales (1985) 59 ALJR 689 at 657. It has been said that the maxim only applies where inconsistency is manifest: see Reseck v The Commissioner of Taxationof the Commonwealth of Australia (1975) 133 CLR 45 per Stephen J at 53, and the cases there cited.
59. The applicant’s submission faces two insurmountable barriers. First, it is not possible to describe the provisions of Division 4.2.2A as general provisions, and those of Division 4.3.3 as specific provisions. In truth, the comparison is not between general and specific provisions, but between two sets of specific provisions. Secondly, there is no manifest inconsistency between the provisions. Neither Division 4.2.2A nor Part 4.3 make it mandatory for a police officer to make a recorded statement. It is true that s 79(1)(a) provides that a recorded statement must be made as soon as practicable after the relevant events, but the mandatory requirement of the section is directed towards the timing of the making of any recorded statement, and not any obligation on the part of a police officer to make a recorded statement. This is apparent from the contemplation of the EMPA, consistent with general principle, that a complainant is under no obligation to participate in the making of a recorded statement.
60. The EMPA provides two alternative pathways to admissibility of recorded statements as evidence. The pathway found in Division 4.2.2A relates to evidence in sexual or violent offence proceedings. The pathway in Division 4.3.3 relates to evidence in family violence offence proceedings. So long as the evidence fulfils the necessary requirements of either pathway, it is admissible via that pathway. The fact that the evidence may satisfy some of the criteria for admission under one path, but is not admissible under that path because it does not satisfy all of the criteria, does not mean that it cannot be admitted under the alternative path if it satisfies all the criteria for admission under the alternative path.
61. Returning to the present case, the onus lies on the Crown to establish the admissibility of the recorded statement under one or both of the relevant paths. For the recorded statement to be admissible under the provisions of Division 4.2.2A the recorded statement must have been made by a prescribed person. This 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”. In his written statements (annexed to the affidavit of Vivian Wei) Constable Brooks, who made the recorded statement, does not state that he is a prescribed person for the purposes of Division 4.2.2A. Also annexed to that affidavit is a copy of a certificate certifying that between 26 and 28 July 2016 Constable Brooks completed an “Interviewing Vulnerable Witness Program”. It is unclear, at least to me, whether the program completed by Constable Brooks was “training in the making of audiovisual recordings of witnesses answering questions in relation to the investigation of sexual or violent offences” so as to qualify him as a prescribed person for the purposes of Division 4.2.2A. It is curious that the Regulation describes the content of the training, rather than referring to a program as approved by, for example, the Chief Police Officer. In any event, I cannot be satisfied that Constable Brooks was a prescribed person and as such I am not satisfied that the requirements for admission of the evidence as a recorded statement under Division 4.2.2A have been made out.
62. For this reason, the answer to the first question posed at [3] above is “Yes”. If the recorded statement was to be admissible, it must be by virtue of the provision of Part 4.3.
63. Turning to Part 4.3, the primary submission made by the applicant was that the recorded interview between the complainant and Constable Brooks was not a “recorded statement” for the purposes of Part 4.3, and accordingly was not admissible, because it was not made as soon as practicable after the relevant events. This submission should be rejected.
64. The term “recorded statement” is defined in s 77(1) of the EMPA as an audiovisual recording made by a police officer of a complainant answering questions of a police officer in relation to the investigation of a family violence offence. The definition of a recorded statement found in s 77(1) does not refer to any temporal requirement for the making of the recorded statement. The temporal requirement that the recorded statement be made as soon as practicable after the relevant event is found in s 79(1)(a) of the EMPA. The applicant’s submission would add to the definition of “recorded statement” in s 77(1) the requirements for such a statement found in s 79. I see nothing in the relevant provisions that indicates that the legislature intended that for a statement to be a “recorded statement” for the purposes of Part 4.3 it must comply with s 79(1)(a) (or, indeed, the remainder of s 79). The provisions of s 79 are directed towards those police making recorded statements and dictates the procedures to be followed by them. The EMPA does not, however, make compliance with the requirements of s 79 mandatory in order that a statement will be a recorded statement for the purposes of Part 4.3. To put it another way, a failure to comply with the requirements of s 79 does not preclude a statement from being a “recorded statement” as defined in s 77(1).
65. The secondary submission made by the applicant was that if failure to comply with the requirements of s 79(1)(a) did not preclude a statement from being a recorded statement for the purposes of Part 4.3, a recorded statement obtained in breach of the requirement of s 79(1)(a) meant that it was evidence obtained improperly or in breach of an Australian law, or in consequence of such an impropriety or breach, such that s 138 of the EA excluded the evidence unless the Court was satisfied that the desirability of admitting the evidence outweighs the undesirability of admitting it, taking into account the way in which the evidence was obtained.
66. There can be no doubt that the content of a recorded statement becomes evidence in proceedings when the recorded statement is played at the hearing of the proceedings: s 80 EMPA. The first issue which must be addressed, therefore, is whether there was, in fact, a breach of the requirements of s 79(1)(a) by police in making the recorded statement with the complainant. This issue, in effect, is whether I am satisfied that the recorded statement was made as soon as practicable after the relevant events.
67. The expression “as soon as practicable” is imprecise and is flexible in its application: Creely v Ingles [1969] VR 732. The meaning given to the expression will depend on the circumstances: see Tampion v Chiller [1970] VR 361 (Tampion v Chiller) at 364 per Anderson J. The expression does not mean “as soon as possible”: Tampion v Chiller at 365; Wills v Whitside, Ex parteWills (1987) 2 Qd R 284 at 288. In assessing whether an obligation cast upon a police officer to do something “as soon as practicable” has been complied with, a court should allow for normal factors of police practice: Richards v Schutt (1978) 18 SASR 421 at 425, quoted with approval by Duggan J in Magain v Roberts (1991) 14 MVR 313 at 320. Where an obligation cast is upon a person to perform an action “as soon as practicable”, the requirement is usually to be assessed from the point of view of the person upon whom the obligation is cast: Martin v Commonwealth of Australia (1975) 7 ACTR 1.
In the present case, while the alleged offence was said to have occurred on 9 November 2016, the initial contact between the complainant and the police occurred by telephone at about 10:54 am on 11 November 2016. At about 3:38 pm the same day, the complainant again telephoned police requesting that they contact her to arrange a time to meet. At 4:07 pm that day, the matter was allocated to Tuggeranong Patrol 32, but due to operational requirements no attempt was made to contact the complainant by telephone until 10:55 pm that day. That call went through to voicemail where a message was left to arrange a time for police to meet with the complainant. On 12 November 2016 the police again attempted to telephone the complainant, however there was no answer. Up to this point the police did not have a residential address for the complainant and their only means of contacting her was by telephone. At 5:45 pm on 12 November 2016 the complainant attended the Tuggeranong Police Station, and shortly thereafter participated in the recorded statement.
69. The legislative objective behind the provisions of the EMPA permitting a recorded statement to be admitted as the evidence-in-chief of a complainant in a family violence offence proceedings is twofold. First, it makes the process of giving evidence easier for the complainant, in part by ensuring that complainants are not required to repeat their version of events on multiple occasions. Secondly, it records the statement of the complainant at a time when it is likely to be fresh in the complainant’s memory, thereby usually improving the quality of the testimony. The fact that a complainant may still give evidence of the relevant events in the usual way if a recorded statement is not made, or if it is excluded for some reason, suggests that of the two legislative objectives identified above, the first is the primary objective.
70. The submission of the applicant that there was no evidence as to why the complainant was unable to participate in an interview between the dates of the relevant events (9 November 2016) and when the interview ultimately occurred (12 November 2016) is based upon a false premise, being that the requirement that the recorded statement be made as soon as practicable after the relevant event is to be considered from the point of view of the complainant. The obligation to make the recorded statement as soon as practicable is one which statute casts upon the police, and the obligation must be considered from their perspective.
71. I am satisfied that the recorded statement was made as soon as practicable, bearing in mind the inability of police to contact the complainant and arrange a meeting on 11 November, and on 12 November before 5:45pm. I am satisfied that it was not practicable for police to attempt to contact the complainant and arrange for the recorded statement to be made between 4:07 pm and 10:55 pm on 11 November 2016 because of the need for the relevant police to perform other duties.
72. There is one further matter I need to address. The applicant submitted that the recorded statement was not admissible by virtue of the provisions of s 81D of the EMPA, in that the provisions of s 81B were not complied with. The applicant’s submission was that s 81B had not been complied with because a copy of the recorded statement had not been provided to his lawyer as soon as practicable after the proceedings were commenced. The proceedings against the applicant were commenced in the Magistrates Court on or about 12 December 2016, at which time he was represented by a duty solicitor. The applicant’s present counsel was not retained until on or about 16 December 2016. The recorded statement was provided to his counsel on 20 January 2017. While it may be accepted that delays may have been occasioned by the intervention of the Christmas/New Year period, there is little evidence before me explaining the four week delay in providing the applicant’s counsel with a copy of the recorded statement. It is, however, unnecessary for me to finally decide whether there was a breach of s 81B in the circumstances of this case, because even if there was such a breach, I am satisfied of the requirements of s 81D(b), being that the applicant’s lawyer had a reasonable opportunity to listen to or view the recorded statement and that it would be in the interests of justice to admit the recorded statement. The applicant’s trial was not due to commence until 11 September 2017, so that his lawyer had the recorded statement for nearly 8 months before the applicant was due to take his trial. It was in the interests of justice to admit the recorded statement as it was a statement made by the complainant about the relevant events at a time when they were fresh in her memory, and because to admit the recorded statement best achieved the legislative intention underpinning Part 4.3 of the EMPA.
73. It was accordingly unnecessary to consider s 138 of the EA.
74. For these reasons the application was refused.
| I certify that the preceding seventy-four [74] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Burns. Associate: Date: 20 September 2017 |
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