R v J, AP

Case [2012] SASCFC 95

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v J, AP

[2012] SASCFC 95

Judgment of The Court of Criminal Appeal

(The Honourable Justice Vanstone, The Honourable Justice David and The Honourable Justice Peek)

10 August 2012

CRIMINAL LAW - EVIDENCE - CORROBORATION - WARNING REQUIRED OR ADVISABLE - CHILDREN

CRIMINAL LAW - EVIDENCE - MISCELLANEOUS MATTERS - STATUTORY PROVISIONS RELATING TO EVIDENCE OF CHILDREN

CRIMINAL LAW - EVIDENCE - COMPETENCE AND COMPELLABILITY - PARTICULAR PERSONS AND MATTERS - CHILDREN

CRIMINAL LAW - EVIDENCE - COMPETENCE AND COMPELLABILITY - OATH - COMPETENCE TO TAKE

CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - APPEAL DISMISSED

Appeal against sentence – appellant found guilty by jury of persistent sexual exploitation of a child – the complainant was aged 8 years of age at the time of the trial – two video recorded statements made by the complainant in the course of interviews with a psychologist were admitted into evidence pursuant to s 34CA of the Evidence Act 1929 (SA) – trial counsel for the appellant indentified the topics upon which he sought permission to cross-examine the complainant – the trial judge granted counsel permission to cross-examine the complainant on the specified topics – the trial judge noted that he would undertake an enquiry as to whether the complainant may give unsworn evidence if he were satisfied she understood the difference between the truth and a lie – the trial Judge spoke to the complainant by audio-visual link prior to her giving evidence – the Judge informed the jury that he had conducted a short enquiry and was satisfied that the complainant was not required to submit herself to an oath but that she may give unsworn evidence – the complainant gave unsworn evidence.

Grounds of appeal: (1) Whether the verdict delivered by the jury was unreasonable or against the weight of the evidence. (2) Whether the trial Judge failed to adequately warn the jury of the possible dangers of accepting the evidence of the complainant in the circumstances and having regard to the evidence as a whole. (3) The appellant seeks permission to appeal on the ground that the trial Judge erred in the application of s 9 of the Evidence Act 1929 (SA).

Held:

As to grounds (1) and (2):  Vanstone J, David J agreeing:

(1) the material in the interviews, together with such positive assertions as there were in the testimony about the conduct having occurred, was capable of satisfying the jury beyond reasonable doubt that the allegations were true - the verdict was not unreasonable. (2) there was nothing inherently unreliable about the complainant’s accounts, no conduct said to undermine her allegations, no suggestion of mental or other infirmity, as in Bromley, nothing beyond the complainant’s age and the fact her evidence was unsupported by other prosecution evidence which could be proffered as justification for a warning. 

As to ground (3)

Vanstone J (dissenting): The Judge determined that the…

Continue reading R v J, AP

Sign in free to access the full text

Details
AGLC
R v J, AP [2012] SASCFC 95
Case
[2012] SASCFC 95
Decision Date

CaseChat Overview and Summary

This case concerned an appeal against sentence following the appellant's conviction by a jury for the persistent sexual exploitation of a child. The complainant, aged eight years at the time of trial, provided evidence through two video-recorded statements made during interviews with a psychologist, admitted pursuant to s 34CA of the *Evidence Act 1929* (SA). The appellant's trial counsel was permitted to cross-examine the complainant on specified topics, and the trial judge conducted an inquiry to determine if the complainant could give unsworn evidence, ultimately informing the jury that she was not required to take an oath but could give unsworn evidence.

The legal issues before the appellate court included whether the trial judge adequately explained to the jury the reason for the complainant giving unsworn evidence, as mandated by s 9(4)(a) of the *Evidence Act 1929* (SA), and whether the verdict was unreasonable or insupportable having regard to the evidence. A further issue arose regarding an additional ground of appeal concerning the procedure for admitting the complainant's unsworn evidence.

The majority of the court, comprising Vanstone and Peek JJ, dismissed the appeal. They found that the trial judge's explanation to the jury, while perhaps not ideal, was sufficient in the circumstances, and that the verdict was not unreasonable given the evidence, including the complainant's unsworn testimony and the appellant's denials. David J, however, would have allowed the appeal and ordered a retrial, finding that the trial judge's explanation to the jury regarding the unsworn evidence did not satisfy the mandatory requirements of s 9(4)(a) of the *Evidence Act 1929* (SA). David J specifically noted that the jury should have been informed that the reason for the unsworn evidence was the complainant's insufficient understanding of the obligation to be truthful when giving sworn evidence, rather than merely her age.

Ultimately, the appeal was dismissed on all grounds, with permission to appeal granted only on the third ground, which related to the adequacy of the explanation for the unsworn evidence.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

For the reasons that follow I would grant permission to appeal on ground 3 but dismiss the appeal on all grounds.Background The information alleged that sexual exploitation occurred between 28 February 2009 and 14 June 2010 at the appellant’s home in Millicent. The victim (V) was then aged either five or six years. The offending was particularised as touching and digital penetration of V’s vagina, causing V to touch the appellant’s penis, touching V with his penis and urinating on her. In accordance with s 34CA of the Evidence Act 1929 (SA) electronically recorded statements made by V in the course of interviews with a psychologist from Children’s Protective Services were admitted into evidence. These statements were the critical part of the prosecution case. The first such interview took place on 15 July 2010 and the second on 14 July 2011. The two interviews were lengthy, comprehensive and skilfully conducted. In response to questions, almost all of which were non-leading, the child spoke of her father letting her (but not her young brother) into his bed at night, kissing her on the lips and on the “fan”, of their being sometimes clothed and sometimes not when in his bed, of showering after the appellant “wees” on her belly while in the bedroom under the bedclothes, or in the lounge room, while he was on top of her, of showering together with the appellant and massaging each other under the shower and washing all parts of each others’ bodies, of the appellant putting his finger in her vagina and ‘wiggling it’ so that it felt ‘nice’ either in the bedroom or while V was lying on the “lounge”, of her brother coming into the bedroom and being told by the appellant to “get out”, of seeing, feeling and gripping the appellant’s (hard) penis after being told by him to touch it, and being touched by it and seeing him “wiggle it around” and “wiggle his whole body”. The account V gave to the psychologist over the course of both interviews, which were, as I said, a year apart, was compelling, in my judgment. In a hearing on the afternoon prior to the commencement of the trial proper, counsel and the trial judge discussed the admissibility of the two statements of V. During the course of the discussion reference was made to R v J, JA (2009) 105 SASR 563 and R v Byerley (Question of Law Reserved No 1 of 2010) (2010) 107 SASR 517. It is apparent from the transcript that at that point the judge had not watched or read the transcripts of the two interviews. Counsel for the prosecution advised the judge that there were three conditions precedent for the admission of the statements under s 34CA and that those were dealt with in both of the authorities just mentioned. The judge was told the first condition related to the nature of the statements, how they had been taken and whether they had sufficient probative value to justify admission. He was then told that the second condition was that the child must be available to be called. The prosecutor advised the judge that the child was available and that he would present her for cross-examination. Counsel next advised that the judge would be required to consider and rule on the topics upon which the child would be cross-examined. During the course of that discussion Mr Healy, who acted for the appellant both at trial and before this Court, advised the judge that he did not “formally oppose the playing of the tapes”. He further advised in response to a specific question of the judge as to whether there was any reason why the prosecution should not have leave to adduce the evidence of the complainant by way of the statements, that he advanced no such reason. Mr Healy identified the topics upon which he sought permission to cross‑examine and prosecuting counsel acknowledged the relevance of them. The judge indicated that he would not give such permission until he had read the statements.

Evidence

Evidence Before The Court

It is convenient here to set out the terms of s 9 of the Evidence Act so far as relevant:9—Unsworn evidence(1)A person is presumed to be capable of giving sworn evidence in any proceedings unless the judge determines that the person does not have sufficient understanding of the obligation to be truthful entailed in giving sworn evidence.(2)If the judge determines that a person does not have sufficient understanding of the obligation to be truthful entailed in giving sworn evidence, the judge may permit the person to give unsworn evidence provided that—(a) the judge—(i)is satisfied that the person understands the difference between the truth and a lie; and(ii)tells the person that it is important to tell the truth; and(b) the person indicates that he or she will tell the truth.(3)In determining a question under this section, the judge is not bound by the rules of evidence, but may inform himself or herself as the judge thinks fit.(4)If unsworn evidence is given under this section in a criminal trial, the judge—(a) must explain to the jury the reason the evidence is unsworn; and(b) may, and if a party so requests must, warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it.(5)… Mr Healy’s main argument in support of the ground was that the judge failed to grapple with the presumption in s 9(1) – that he failed to ‘rebut the presumption’, as he put it – before allowing V to give unsworn evidence and that this resulted in a fundamental irregularity giving rise to a miscarriage of justice. Reference was made to R v Starrett (2002) 82 SASR 115. In that case the complainant was aged seven years at the time of the complaint and eight at the time of trial by a judge sitting without a jury. There the prosecutor asked questions of the girl at the time she was called to the witness box. The prosecutor had already told the judge that the girl would not take the oath or affirm. The judge did not make any determination that the child was incapable of giving sworn evidence, but she was not sworn. However, critically, the judge did not make any determination – either during the trial or in his reasons for verdict – that he was satisfied under s 9(2) that she should be permitted to give unsworn evidence. The child was not questioned by the judge about those matters. Nor did the judge tell the child the importance of her telling the truth. Although the child promised to tell the truth, that promise was made to the prosecutor, rather than to the judge. Doyle CJ (with whom Perry and Lander JJ agreed) said at [22]:I conclude that the evidence of J was taken irregularly. It was given unsworn, when no proper basis was made out for doing so. I do not know what the outcome would have been if the judge had followed the appropriate procedure. I cannot conclude that the judge would necessarily have determined that J should have been permitted to give her evidence unsworn.The result was, as Lander J in his additional reasons pointed out, that the child’s evidence was neither sworn nor unsworn and was therefore not evidence that the judge could rely on. For that reason, Mr Starrett did not receive a trial according to law.

Decision

Reasons for decision

Having read the child’s evidence and the appellant’s denials of it on oath, I am left with no concerns as to the reasonableness of the verdict. That is so, even though the child’s evidence was unsworn and her out of court statements were not subjected to the robust cross‑examination that was seen in the days before a protected witness’s evidence could be given in this way.Conclusion None of the grounds is made good. I would grant permission to appeal on ground 3, but dismiss the appeal on all grounds. DAVID J: I have read the draft judgments of Vanstone J and Peek J. I indicate at the outset that the appeal should be allowed and a retrial ordered. I do so on the basis that the appellant’s argument in relation to the additional ground 3 filed on the morning of the appeal has been made out. I agree with Vanstone J that grounds 1 and 2 should be dismissed. I adopt the recitation of the facts set out in the judgment of Vanstone J and also her Honour’s outline of the procedure that took place at the trial leading up to the Judge’s explanation to the jury concerning the fact that V would be giving unsworn evidence when cross-examined. As Vanstone J pointed out, the trial Judge said to the jury on that occasion:In other words, I have satisfied myself that [V], who is eight, is not required to submit herself to the oath and to take an oath however, I am satisfied that she is qualified to give unsworn evidence. In my view those comments did not go far enough to satisfy s 9(4)(a) of the Evidence Act 1929 (SA) which provides:(4)If unsworn evidence is given under this section in a criminal trial, the judge—(a) must explain to the jury the reason the evidence is unsworn; … In my view the jury should have been made aware that the reason V’s evidence was unsworn was because V did not have a sufficient understanding of the obligation to be truthful when giving sworn evidence. Merely to tell the jury that he was satisfied that V was not required to submit herself to the oath with an oblique reference to her age does not fulfil the mandatory requirements of the subsection. Although the authority of R v Starrett[1] is, as Vanstone J points out, factually different, it nevertheless emphasises the strict adherence that must be given to the requirements set out in s 9 of the Evidence Act. [1] (2002) 82 SASR 115. The explanation given by the trial Judge in this case does not mention the important difference between sworn and unsworn evidence namely, not just the difference between a truth and a lie but also that V understood the further obligation that giving sworn evidence demands. It could not be safely said that a jury by merely being informed of V’s age would have inferred that that was the reason she was giving unsworn evidence. However, I do not agree that the Judge did not make a proper determination that V give unsworn evidence. It is important to remember that, pursuant to s 9(3), the Judge is not bound by the rules of evidence but may inform himself or herself as the Judge thinks fit. In this case the Judge was assisted by the attitude of the prosecution, the fact that V was eight years of age, and the Judge had access to the statements made by V pursuant to s 34CA of the Evidence Act. However having made that determination, in my view the Judge has not adequately explained to the jury the reason why V’s evidence is unsworn. Consequently, the trial has miscarried.

Ratio Decidendi

Legal Principle Established

In Zecevic v Director of Public Prosecutions (Vic), Deane J stated:[22]Law cannot exist in a vacuum and the elucidation of legal principle must inevitably, if it is to be related to reality, proceed by way of factual analogy and illustration. The processes of such legal reasoning do not however transform factual argument into legal principle or require that factual considerations and illustrations be subsequently treated as legal propositions which limit and control a jury in applying its own standards and reaching its own conclusions in relation to the factual issues which the law entrusts to its decision. The effective discharge of that subservient judicial function also requires that legal principles governing criminal liability which are developed by appellate courts be capable of effective oral exposition and that summary statements of such legal principles in judgments which are framed on the basis that they will be read by lawyers are not mistakenly seen as rendering unnecessary the framing of oral directions to a jury in words which can be readily understood by an ordinary juror. The formulation in Viro v The Queen, of a summary statement of the task of the jury in deciding an issue of self-defence on a murder trial was intended to provide a concise statement of principle to which reference could be made by a trial judge in framing, in language suitable for a jury, legal directions appropriate to enable the jury correctly to identify and comprehend the real questions of fact which must be resolved in deciding such an issue in a particular case. The concurrence of a majority of the Court in that formulation and the inherent complexity of some of the notions which it encapsulated made it perhaps inevitable that it would be seen by some trial judges as providing a convenient and safe set of directions to be given verbatim to a jury in any such case. The use of the formulation in that way creates a situation in which an ordinary juror must experience extreme difficulty in comprehending the process which he and his fellow jurors are being instructed to follow in determining an issue of self-defence. In part, that difficulty is the predictable result of the use for the purpose of giving oral directions to a jury of a formulation which was framed to be read by lawyers.(Emphasis added)[22] (1987) 162 CLR 645, 671. As Deane J explains, while formulations such as that in Viro may be very difficult for a jury to digest, the point is that such formulations are not intended to be served up in that indigestible form; summary statements in such formulations are intended to serve as the basis for an oral exposition to the jury – not to be stolidly read verbatim with no assistance or explanation as to their meaning or significance. Thus there was a need to relate the warning to the facts of the case. But there was also the need to make clear to the jury the reason why there is a significant difference in the weight to be attached to the giving of sworn and unsworn evidence. In brief terms, the essential point is that a person who is able to give sworn evidence feels a higher degree of compulsion to give truthful evidence engendered by the solemnity and importance of the occasion of taking an oath or affirmation in Court than does a person who has been found by the Judge not to “have sufficient understanding of the obligation to be truthful entailed in giving sworn evidence”.