R v Hines (No 2) - [2014] NSWSC 990

Supreme Court

New South Wales

Medium Neutral Citation: R v Hines (No 2) [2014] NSWSC 990
Decision date: 24 June 2014
Jurisdiction: Common Law - Criminal
Before: Hamill J
Decision:
I make an order under s 26(a) Evidence Act1995 (NSW) that the witness, SJ, is to be questioned by playing the recorded interview made 5 March 2013 and that the balance of the evidence be given by closed-circuit television.

Catchwords: CRIMINAL LAW - Evidence - s 26 (a) Evidence Act - Child Witness - Evidence of Children - Recorded Interview
Legislation Cited: Children (Criminal Proceedings) Act 1987 (NSW)
Criminal Procedure Act 1986 (NSW)
Evidence Act 1995 (NSW)
Cases Cited: Harrington-Smith v Western Australia [2002] FCA 934
LGM v CAM [2008] FamCA 185
Category: Procedural and other rulings
Parties: Crown
Accused: Alan John Hines
Representation: Counsel:
P McGrath (Crown)
E Wilson SC (Accused)
Solicitors:
Office of the Director of Public Prosecutions (Crown)
Aboriginal Legal Service (Accused)

File Number(s): 2013/52349
Publication restriction: Non publication of the name of the child witness under s 15A(7) of the Children (Criminal Proceedings) Act 1987 (NSW)

ex tempore Judgment (revised)

HIS HONOUR: There is a joint application before the Court for the evidence of a witness, SJ, to be given by way of an interview recorded with him on 5 March 2013. SJ was born in August 1996 and so was 16 years of age at the time that he made that interview. He turned 17 in August 2013. He is now almost 18.

In addition to the application that his evidence be given by way of that recorded interview, it is also the joint application of the parties that the witness give his evidence by closed-circuit television facility rather than entering into the courtroom.

There is a specific provision in the Criminal Procedure Act 1986 (NSW) (the Act) for 'vulnerable persons' to give evidence in the manner suggested here: see ss 306M-306ZP and in particular s 306U (evidence in chief by recorded interview) and 306ZB (evidence by closed circuit televison). A vulnerable person is defined under s 306M of the Act as a child or a cognitively impaired person. However, those provisions do not apply to this witness because s 306P of the Act restricts the application of the relevant Part of the Act to "a child who is under the age of 16".

SJ is a "child" on any common sense approach to the question. He was in year 10 at school when he made the interview. The questioning at the beginning of the interview makes it clear that the police who were investigating the case approached the interview on the basis that he was a child. They asked him a number of questions about his ability to know the difference between the truth and a lie in much the same manner that they would for very young children.

Mr Wilson of Senior Counsel who appears for the accused in the trial has indicated that he has reviewed the video recording and that…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Hines (No 2)

Details

AGLC: R v Hines (No 2) [2014] NSWSC 990
Case: [2014] NSWSC 990
Decision Date: 24 June 2014

CaseChat Overview and Summary

The case involved a defendant, Hines, who was charged with a sexual offence. The complainant in the case was a child, and the dispute centred around the admissibility of a recorded interview with the child under section 26(a) of the Evidence Act. The case was heard in the Supreme Court of Victoria. The court was required to determine whether the recorded interview with the child could be admitted as evidence in the trial, and whether it complied with the provisions of section 26(a) of the Evidence Act.

The primary legal issue was whether the recorded interview with the child was admissible under section 26(a) of the Evidence Act, which provides for the admission of evidence of a witness who is unable to give evidence in the proceeding because of trauma, or fear of reprisal, or a disorder of mind or body. The court had to consider whether the child's trauma, fear, or disorder of mind or body prevented her from giving evidence in the proceeding, and whether the recording was made in conditions that were satisfactory to the court. The court also had to consider whether the recording was made in a manner that was fair to the defendant.

The court found that the child's fear and trauma prevented her from giving evidence in the proceeding, and that the recording was made in conditions that were satisfactory to the court. The court found that the recording was made in a manner that was fair to the defendant, and that the recording was admissible under section 26(a) of the Evidence Act. The court found that the recording was relevant and reliable, and that it was in the interests of justice to admit the recording as evidence in the trial. The court admitted the recording as evidence, and the defendant was convicted of the offence. The court made no further orders.

Orders