R v J, JA - [2009] SASC 401

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v J, JA
[2009] SASC 401
Judgment of The Court of Criminal Appeal
(The Honourable Justice Duggan, The Honourable Justice Nyland and The Honourable Justice White)
23 December 2009
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - IMPROPER ADMISSION OR REJECTION OF EVIDENCE
Appeal against conviction – appellant charged with unlawful sexual intercourse with a person under 12 and aggravated assault – appellant convicted of unlawful sexual intercourse and acquitted by direction of court on charge of aggravated assault but found guilty of alternative offence of common assault – whether trial judge erred in exercise of discretion pursuant to s 34CA of the Evidence Act 1929 (SA) (“the Act”) in admitting evidence of videotaped interview between police officer and complainant – whether appropriate to admit videotape as exhibit – discussion on appropriate procedure for admission of evidence pursuant to s 34CA of the Act – whether trial judge erred in treating videotaped interview as a “statement” within s 34CA of the Act – whether trial judge erred in permitting prosecutor to examine complainant as to same matters covered in videotaped interview – whether trial judge erred in directing jury to treat videotaped interview and complainant’s sworn evidence in same manner – whether trial judge misdirected jury as to weight to be attached to videotaped interview as required by s 34D of the Act.
Evidence Act 1929 (SA) s 4, s 34CA, s 34D, referred to.
Gately v The Queen (2007) 232 CLR 208; Butera v Director of Public Prosecutions (Vic) (1987) 164 CLR 180; Conwell v Tapfield [1981] 1 NSWLR 595; R v NZ (2005) 63 NSWLR 628; The Queen v Stephenson (1978) 18 SASR 381; R v Corkin (1989) 50 SASR 580, considered.

CRIMINAL LAW - EVIDENCE - COMPLAINTS
Consideration of effect of s 34M of the Act in relation to complaints – appropriateness of directions given by trial judge as to complaint – whether trial judge erred in directing jury that complaint could be used to negative suggestion of recent invention.
Evidence Act 1929 (SA) s 34M, referred to.
Suresh v The Queen (1998) 72 ALJR 769; Kilby v The Queen (1973) 129 CLR 46; R v Szejnoga (1998) 199 LSJS 97, considered.

CRIMINAL LAW - EVIDENCE - MATTERS RELATING TO PROOF - STANDARD OF PROOF - DIRECTION TO JURY
Medical report admitted into evidence over objection by defence – co author of report called to give evidence – whether report should have been admitted into evidence.
Gately v The Queen (2007) 232 CLR 208; Butera v Director of Public Prosecutions (Vic) (1987) 164 CLR 180, considered.

CRIMINAL LAW - PROCEDURE - COURSE OF EVIDENCE, STATEMENTS AND ADDRESSES
Appellant cross-examined on police interview which was not tendered as part of prosecution case – whether requirement to tender interview as part of prosecution case before cross-examination on contents.
R v Soma (2003) 212 CLR 299; Spence v Dimasi (1988) 48 SASR 536; Barry v Police [2009] SASC 295, considered.

CRIMINAL LAW - PROCEDURE - SUMMING UP
Alleged assault observed by complainant’s sister who was called as a witness – consideration of consequence of failure to mention this evidence in summing-up.
Appeal allowed – convictions set aside – retrial ordered – appreciable risk of miscarriage of justice as a result of misdirection as to use of complaint, permitting cross-examination of appellant on police interrogation not tendered as part of prosecution case and failing to direct jury on evidence of complainant’s sister.

R v J, JA
[2009] SASC 401
Court of Criminal Appeal: Duggan, Nyland and White JJ

DUGGAN J: The appellant was presented for trial in the District Court on an Information which alleged that he committed the offence of unlawful sexual intercourse with a person under 12 years of age and a further offence of aggravated assault against the same person. He was convicted on the charge of unlawful sexual intercourse. He was acquitted by direction of the Court on the charge of aggravated assault, but found guilty of the alternative offence of common assault. He has appealed against the convictions.
According to the prosecution case, both offences were committed on 20 July 2008. The appellant was then 18 years of age and the complainant was a boy aged 11. At the time of the alleged offences the complainant was living with his mother and his sister, aged about 14 years. The appellant had also been staying at the house during this period and, for part of that time, he slept in the complainant’s bed.
The prosecution led evidence of a series of uncharged sexual acts which it alleged were committed by the appellant upon the complainant over the period of a few weeks while the appellant was staying at the house. The acts included penile penetration of the complainant’s anus. It is alleged that the offence of unlawful sexual intercourse charged in the Information occurred on the morning of the last day on which the appellant stayed at the house. The prosecution alleged that the physical assault on the complainant took place later that morning.
The videotaped interview with the complainant
Grounds 1 to 5 of the grounds of appeal arise out of the admission into evidence of a videotaped interview between a police officer and the complainant. The interview took place on 7 August 2008. The videotape was admitted as evidence pursuant to s 34CA of the Evidence Act 1929 (SA) (“the Act”) which provides as follows:
34CA—Statement of protected witness
(1)     A court may admit evidence of the nature and contents of a statement made outside the court by a protected witness from the person to whom the statement was made if—
(a)the court, having regard to the circumstances in which the statement was made and any other relevant factors, is satisfied that the statement has sufficient probative value to justify its admission; and
(b)—
(i)the protected witness has been called, or is available to be called, as a witness in the proceedings; and
(ii)the court gives permission for the protected witness to be cross examined on matters arising from the evidence.
(2)     A court may only give permission to allow a protected witness to be cross examined on such matters if satisfied that the cross examination is likely to elicit material of substantial probative value or material that would substantially reduce the credibility of the evidence.
(3)     Evidence that is admitted in a trial under this section of the nature and contents of a statement made outside the court by a protected witness may be used to prove the truth of the facts asserted in the statement.
(4)     In a criminal trial, the judge must, if evidence of the nature and contents of a statement made outside the court by a protected witness has been admitted but the protected person has not, for some reason, been cross examined on matters arising from the evidence, warn the jury that the evidence should be scrutinised with particular care because it has not been tested in the usual way.
(5)     In this section—
protected witness means—
(a)a young child; or
(b)a person who suffers from a mental disability that adversely affects the person's capacity to give a coherent account of the person's experiences or to respond rationally to questions.
“Young child” is defined in s 4 of the Act as a child of or under the age of 12 years.
Prior to the empanelment of the jury the prosecution sought a ruling permitting it to tender at the trial the videotaped interview which the police conducted with the complainant. The trial Judge heard argument on the application and ruled that the videotaped interview was admissible pursuant to s 34CA of the Act.
After opening the case for the prosecution, the prosecutor called the complainant. After some introductory questions and answers the complainant agreed that he had spoken to a woman police officer about the matters before the court. The prosecutor then tendered the videotape of the interview which was admitted as an exhibit.
At this stage the tape was played to the jury. Copies of a transcript of the interview were handed to the jurors to enable them to follow the recording. After the playing of the tape the prosecutor proceeded to examine the complainant further. The complainant was asked questions about the circumstances in which the appellant came to stay at the house and the layout of the house. There was a brief examination as to the circumstances of the alleged offence of unlawful sexual intercourse and further examination about the events of the alleged assault.
At the conclusion of the examination‑in‑chief, defence counsel said he wished to cross-examine the complainant. A discussion ensued in the absence of the jury concerning the requirements of s 34CA of the Act. The trial Judge referred to s 34CA(2) and requested defence counsel to identify the topics upon which he wished to cross-examine. Defence counsel identified certain topics but pointed out that other topics might arise in the course of the cross-examination. The complainant was then cross-examined at length on the circumstances of the alleged offences and other matters.
After the complainant completed his evidence the other prosecution witnesses were called. They included Senior Constable Annette Burden who conducted the videotaped interview with the complainant. She identified the videotape which had been admitted as an exhibit during the evidence of the complainant as the videotape on which the interview had been recorded.
Before dealing with the grounds of appeal it is appropriate to say something about the purpose of the legislation which permits evidence of this nature to be given.
Section 34CA in its present form was introduced into the Act in 2008 when the Statutes Amendments (Evidence and Procedure) Act 2008 (SA) came into effect. The legislation was intended to overcome the difficulties encountered by young children and persons suffering from a mental disability in giving evidence in the traditional manner. These difficulties in the case of children were discussed in the report of the Australian Law Reform Commission “Seen and Heard: Priority for Children in the Legal Process” (1997).[1] Recommendation 102 of the Report stated:
Evidence of a child's hearsay statements regarding the facts in issue should be admissible to prove the facts in issue in any civil or criminal case involving child abuse allegations, where admission of the hearsay statement is necessary and the out-of-court statement is reasonably reliable. A person may not be convicted solely on the evidence of one hearsay statement admitted under this exception to the rule against hearsay.
The recommendation in the last sentence was not incorporated into the Act, but the general recommendation as to the admissibility of material of this nature was the inspiration for s 34CA.
[1] ALRC Report 84.
When describing the purpose of a broadly similar provision in s 93A of the Evidence Act 1977 (Qld) in Gately v The Queen, Hayne J said: [2]
The section makes a special rule for children and intellectually impaired persons. That rule is made for the evident purpose of preserving the integrity of the evidence of such persons, by allowing evidence of an account of relevant events that was made before, sometimes well before, the trial of the relevant proceeding. But if the party relying on the account of a child or intellectually impaired person is able to and wishes to have that person give their account orally, as well as in the form of the statement that has previously been made, there is no reason to prevent that being done.
In the same case Heydon J said:[3]
Section 93A is dealing with a narrow field, and with peculiar problems – those concerned with evidence from children and intellectually impaired persons. The legislation rests on the assumption that an account given before the trial “can be of more probative value than present testimony, particularly if the present memory is faulty or it is difficult for the witness to articulate it in court”: R v F (CC) [1997] 3 SCR 1183 at 1200 [37]. The legislative judgment is that it is more important to have before the trier of fact a clear statement from these types of witnesses, even if it is in an unsworn document, than to preserve the principle of orality in its full integrity.
[2] (2007) 232 CLR 208 at [104].
[3] (2007) 232 CLR 208 at [123].
Ground 1
This ground asserts that the trial Judge erred in treating the videotaped interview as a “statement” within the meaning of s 34CA of the Act.
Subject to the conditions precedent required by s 34CA of the Act and the exercise of the Judge’s discretion, the court may admit “evidence of the nature and contents of a statement made outside the court” (s 34CA(1)). The statement in the present case consists of what was said by the complainant in answer to the questions asked by the police officer. The issue raised by this ground is whether the statement could be proved by tendering the videotape.
The court is empowered to admit evidence “of the nature and contents of a statement made outside the court”. This is a description of wide import. There is no reason why the answers given by the complainant in answer to the police officer should not be considered in their entirety as a statement for the purposes of the section.
Mr Muscat, for the appellant, conceded that if the police officer had made notes of the conversation as it progressed, she could have given evidence of what was said with the aid of her notes. However, he argued that what the complainant said could not be proved by means of the videotape.
The use of the video recording is simply a means of establishing what was said in the course of the interview. If the conversation is accurately recorded the videotape provides a particularly accurate method of proof of what was said. As the discussion in Butera v Director of Public Prosecutions (Vic)[4] makes clear, there is no reason why a recording cannot be used in order to prove what was said in the course of a conversation or other oral statement.
[4] (1987) 164 CLR 180.
In Butera conversations between alleged co‑conspirators were recorded with the aid of a listening device. The prosecution tendered the tape recording which was admitted into evidence. On appeal Mason CJ, Brennan and Deane JJ said:[5]
The means by which [the conversation] was proved was by tendering the tape recording and, one assumes, proving the circumstances in which the recording had been made and the custody in which the recording had been kept until it was played to the court at the trial. Of course, a conversation can be proved by the oral testimony of anyone who heard it but that is not the only means by which a conversation might be proved. The courts have now accepted tape recordings as evidence of the conversations or other sounds recorded on the tape: see, among other cases, Reg. v Maqsud Ali; Reg. v Papalia; Reg v. Cotroni; Williams v The Queen; Walsh v Wilcox; United States v Biggins; Hurt v State, which canvass the conditions on which a tape recording may be admitted in evidence. It is unnecessary now to consider those conditions but it is obvious that the provenance of the tape recording must be satisfactorily established before it is played over to the jury.
The reason why a tape recording of a conversation is admitted in evidence to prove what is recorded is simply that use of the technology of sound recording and reproduction adds “to our knowledge other data not discernible by the unaided senses, or can make more accurate and more usable the data already discernible”: Wigmore, The Science of Judicial Proof, 3rd ed. (1937), par 220, p 448, cited by Neasey J in Williams v The Queen. Those additions to our knowledge, as Wigmore points out (ibid, p 450), are due to the use of instruments constructed on knowledge of scientific laws. A tape recording may be used to produce a form of evidence which is different from both oral testimony and documentary evidence. The rules which govern the admission in evidence of tape recordings and the procedure to be followed by a court in ascertaining what is alleged to have been recorded on them must be moulded so as to deal with the technical and logical conditions which must be satisfied before a tape recording can furnish proof of what is recorded.
(Footnotes omitted)
Later in the joint judgment their Honours approved the following statement by Street CJ in Conwell v Tapfield:[6]
What is the best evidence of the sounds entrapped in the record? It seems to me that there can be only one answer to this question, namely, the best evidence is the reproduction of those sounds as sounds when the record is played by appropriate sound reproducing equipment. Much of the confusion that has crept into the cases stems from the fact that normally it is the human voice that is recorded and, when reproduced, this is commonly done in writing. But if, say, the relevant evidence was a screech of tyres before a collision and that had been recorded, there would be no denying that the best method of placing this evidence before the court would be by playing the record. There is not the slightest difference in basic principle where the recorded sound is the human voice.
[5] (1987) 164 CLR 180 at 184.
[6] [1981] 1 NSWLR 595 at 598.
It is my view that, for the reasons expressed in these authorities, the videotape of the interview with the complainant could be used as a means of proving what was said during the interview.
The videotape as an exhibit
Mr Muscat raised a further question as to whether it was appropriate to admit the videotape as an exhibit or mark it for identification.
This was an issue raised in Gately[7] which was relied upon by Mr Muscat. In that case the legislative provision under consideration was s 21AM of the Evidence Act 1977 (Qld). Section 21AM provides for the videotaping of an “affected child’s evidence” which may be used in subsequent proceedings. The recording is “as admissible as if the evidence were given orally in the proceeding in accordance with the usual rules and practice of the court” (s 21AM(1)(a)). Section 21AM specifies the various types of proceedings in which the evidence may be given. They include a retrial or another proceeding in the same court for another charge arising out of the same circumstances (s 21AM(1)(b)).
[7] (2007) 232 CLR 208.
In Gately’s case the Court considered whether a jury could have unsupervised access to a recording made under s 21AM. This gave rise to the question whether it was appropriate to admit the recording as an exhibit. Hayne J, with whom Gleeson CJ and Heydon J agreed on this issue, held that a recording made under this section should not be tendered as an exhibit, although it would be appropriate to mark it for identification. His Honour held that the recording itself was not to be treated as an item of real evidence. It was a record “of what the child says”. Distinguishing the recording from the type of recording tendered in Butera, His Honour said:[8]
But the critical difference between Butera and cases of the kind now under consideration is that Butera concerned the admission of evidence of out-of-court assertions as an exception to the hearsay rule. The relevant evidence in Butera was what the accused person had said on an earlier occasion. In cases like the present, the affected child gives evidence of what he or she knows, saw, or did. The evidence that the child gives is direct evidence, not hearsay. Unless some exception to the hearsay rule is engaged, the child may not give evidence of an out-of-court assertion as evidence of the truth of its content.
[8] (2007) 232 CLR 208 at [92].

In the light of these considerations it is relevant to observe that the recording under s 34CA in the present case comprises out‑of‑court assertions which are admitted as an exception to the hearsay rule. The exception enables them to be used as evidence of the truth of their contents. That being so, s 34CA is distinguishable from s 21AM, a provision which permits the evidence of the child to be pre‑recorded and then used in a subsequent trial.
In R v NZ[9] Howie and Johnson JJ (Wood CJ at CL and Hunt AJA concurring) referred to the New South Wales practice with respect to the admission of videotaped material. They said:[10]
There are many occasions when evidence is placed before a jury by the use of electrical recording of images and the human voice. The most obvious cases are where there has been a recorded interview of a suspected person by the police and the lawful recording of conversations by the use of a listening device or a telephone interception. But there are also videotaped re-enactments of the offence, videotaped identification parades and views of the scene of a crime often with the use of computer enhancements. These are common features of modern criminal trials.
In our experience the practice in this State is for the tape or computer disc containing the recording that is to be played to the jury to be received as an exhibit in the trial before it is played. Very often the original recording will have been edited as a result either of an agreement between the parties or a ruling made by the trial judge. Almost invariably where the recording is of the human voice, there will be a transcript of the recording available. It is the usual practice for the transcript to be placed before the jury either to aid them in discerning what is said on the tape recording or as an aide memoire to enable the jury to refer to the contents of the recording during their deliberations without the need to replay the tape: see Butera v Director of Public Prosecutions (Vic) (1987) 164 CLR 180; R v Dellapatrona (1993) 31 NSWLR 123. The jury are invariably directed that the evidence in the trial is what they hear on the tape and not what they read in the transcript where there is divergence between the two.
According to my understanding this is also the usual practice in this State in relation to the categories of material referred to in the first paragraph of the passage cited above.
[9] [2005] NSWCCA 278; (2005) 63 NSWLR 628.
[10] [2005] NSWCCA 278; (2005) 63 NSWLR 628 at [177]-[178].
Later in the reasons of Howie and Johnson JJ, their Honours dealt with videotaped evidence of a child recorded pursuant to the Evidence (Children) Act 1997 (NSW). Their Honours noted that the material video recorded under the relevant sections of this legislation becomes part of the evidence‑in‑chief of a child. Howie and Johnson JJ went on to say:[11]
We believe that there is no basis upon which the tape should become an exhibit because once it is played to the jury as the evidence in chief of the witness it becomes part of the court record just as does a recording of the viva voce evidence of any other witness. That this is so is apparent from the wording of s 11(1) and s 15(2): (see at 645 [88]–[96] supra), which emphasises that the evidence in chief of the witness is given “by a recording”. It is in this regard that the videotaped evidence of a child witness differs from evidence of earlier events established by way of videotaping, such as recorded interviews with police or identification parades: see R v Davies (at [26]). As was made clear in Bulejcik (at 386, 400), a recording of the evidence given in court or the transcript of that evidence is not itself evidence, cannot be tendered by either party and cannot be made an exhibit.
[11] [2005] NSWCCA 278; (2005) 63 NSWLR 628 at [194].
Again, it is appropriate to point out that, although the contents of a video recorded statement put before the Court pursuant to s 34CA can be used as evidence of the facts asserted by the complainant in the statement, it is not part of the evidence-in-chief of the complainant. In these circumstances there does not seem to be any reason why the videotape should not be tendered as an exhibit.
That having been said, whether the videotape is treated as an exhibit or marked for identification may not be a matter of much practical significance because of the matters discussed below.
Although the videotape was admitted as an exhibit in the present case, the trial Judge did not permit it to be sent into the jury room with the other exhibits. He explained to the jury that if they wished to view it then arrangements would be made for them to do so in the courtroom. No request was made by the jury to view the tape during their deliberations.
The court has a discretion to direct that an exhibit is not to be sent into the jury room when the jury retire.[12]
[12] The Queen v Stephenson (1978) 18 SASR 381.
The trial Judge acted appropriately in directing that the jury would not be permitted to view the videotape in the jury room as and when they required. There is a danger in the jury giving the complainant’s version undue weight if there is no restriction on the playing of the tape.[13]
[13] Gately v The Queen (2007) 232 CLR 208 at [16], [28], [96]; R v NZ [2005] NSWCCA 278.
The jury were given transcripts of the videotape and they referred to them while the videotape was being played in court. A question arose as to whether the transcripts were handed back to the court at some stage prior to the jury retiring to consider their verdict. If they retained the transcripts this would have given rise to the same concern which exists where the videotape is made available for playing in the jury room.[14]
[14] R v NZ [2005] NSWCCA 278.
However, it is by no means clear that the transcripts remained with the jury. There is no record in the transcript of the court to indicate that they were handed back. However, such a situation would not necessarily appear in the transcript. The trial Judge stated in a supplementary report to this Court that his usual practice is to retrieve the transcripts of interviews before the jury retire to consider their verdict. He cannot recall whether he followed that practice on this occasion, but it is of some relevance to note that in his summing up he told the jury that the videotape would not be sent into the jury room because the video evidence “is in the same category as [the complainant’s] sworn evidence in court”. The same reasoning would apply to a transcript of the video.
Apparently, counsel at the trial cannot recall what happened in this respect.
In my view there is insufficient material before the Court to provide a basis for finding that the transcripts were in the possession of the jury during their deliberations.
Ground 2
The appellant claims that, if the videotaped interview is admissible, the trial Judge erred in the exercise of his discretion to admit it pursuant to s 34CA. Before dealing with this argument, it is necessary to say something about the steps to be taken before the statement of a protected witness can be admitted as evidence.
There are three conditions precedent which must be fulfilled before the statement is admissible. They are set out in sub‑paras (1)(a) and (1)(b) of s 34CA:
(1)the court must be satisfied that the statement has sufficient probative value to justify its admission (s 34CA(1)(a));
(2)the protected witness must have been called, or be available to be called, as a witness in the proceedings (s 34CA(1)(b)(i));
(3)the court must give permission for the protected witness to be cross‑examined on matters arising from the evidence (s 34CA(1)(b)(ii).
In a case such as the present where it is known before trial that the prosecution intends to call evidence pursuant to s 34CA, it is appropriate to deal with this matter by way of a preliminary application as occurred in the present case. This is particularly so where the evidence is of central importance to the case.
It may be possible for the court to be informed of the matters of which it must be satisfied of under s 34CA(1)(a) and (b)(i) without the necessity of calling evidence. In other cases evidence may have to be given.
The Solicitor‑General conceded that, in the event that the conditions precedent were satisfied, the Court was required to consider whether to permit the calling of the evidence in the exercise of its discretion.
The relationship between s 34CA(1)(b)(ii) and s 34CA(2) was discussed on the hearing of the appeal. As pointed out, s 34CA(1)(b)(ii) requires as a condition precedent for the admission of the statement the granting of permission by the court for the protected witness to be cross-examined on the statement. Section 34CA(2) states that a court may only give permission to allow a protected witness to be cross-examined on matters arising from the statement if satisfied that the cross-examination is likely to elicit material of substantial probative value or material that would substantially reduce the credibility of the evidence.
Section 34CA(2) is ambiguously worded in that, read in one way, it would require the court to be satisfied that the cross-examination was likely to elicit evidence of the nature prescribed in the section before giving permission for the protected person to be cross-examined pursuant to s 34CA(1)(b)(ii). This would give rise to the practical difficulty that the court would have to determine the nature and effect of the proposed cross‑examination prior to the statement being admitted into evidence and before the giving of oral evidence by the complainant in the event that he or she was called by the prosecution to give evidence-in-chief.
A further and more fundamental problem would arise if the defence were unable to persuade the court at that stage that the cross-examination would be likely to elicit material of the description referred to in s 34CA(2). If this were so then, on the alternative construction, the court could not give permission in advance for the potential witness to be cross-examined on the statement with the consequence that the evidence of the statement could not be admitted. The prosecution evidence of the statement would not be admissible because the cross‑examination would not comply with the requirements of s 34CA(2). This would defeat the entire purpose of the legislation.
The purpose of the new s 34CA was explained in the Second Reading Speech on these amendments to the Act:[15]
The Bill deletes section 34CA and replaces it with a provision that allows a court to admit hearsay evidence of the nature and contents of an out-of-court statement made by a ‘protected witness’ from the person to whom it was given, so long as the protected witness has been called or is available to be called as a witness and the court will allow him or her to be cross-examined on the matters arising from the hearsay evidence. A protected witness is defined as a young child or a person with a mental disability that adversely affects his or her ability to communicate effectively with the court. The court may permit such cross-examination only if satisfied that it would elicit material of substantive probative value or material that would substantially reduce the credibility of the hearsay evidence. The provision will therefore sometimes allow evidence of what protected witnesses have said out-of-court to be admitted even though the protected witness has not been questioned about it in court. Whenever this happens, the court must warn the jury that this evidence should be scrutinised with particular care because it has not been tested in the usual way.
[15] South Australia, Parliamentary Debates, House of Assembly, 25 October 2007, 1457 (Michael Atkinson, Attorney‑General).
In my view s 34CA(1)(b)(ii) contemplates that the court can give permission for the protected witness to be cross-examined after having regard to the capacity of that person to give evidence. However, when it comes to the actual cross-examination, the court must ensure that the questions to be asked comply with the requirements of s 34CA(2). The court is required to ensure compliance with s 34CA(2) and may take steps to do so both before the commencement of the cross-examination and while it proceeded. The potential awkwardness of this exercise in some cases is obvious, but that is the effect of the legislation.
It would appear that, by and large, this was the procedure adopted in the present case. However, there was one aspect of the procedure which was not followed. Section 34CA(1) requires that the statement is to be proved through the evidence of the person to whom it was made.
It has been pointed out that the recording was tendered and admitted into evidence while the complainant was giving evidence and before Constable Burden gave evidence as to the circumstances in which the recording was made and before identifying the videotape which was used for that purpose. At the time the videotape was admitted as an exhibit there was no evidence linking it to the interview with the complainant, let alone evidence from the person to whom the statement was made. The police officer gave evidence well after the complainant had given his evidence and been cross-examined on what he said during the interview. Furthermore, the complainant was seated in the witness box throughout the playing of the videotape. Although the correct procedure was not adopted, I do not think the irregularity was productive of a miscarriage of justice. Eventually the evidence was tendered through the police officer.
The exercise of the discretion
The trial Judge did not give reasons for ruling that the videotape of the interview with the complainant would be admitted into evidence.
In a report to this Court, His Honour said that he was satisfied after receiving evidence and hearing submissions that the pre‑conditions in s 34CA had been established and that it was appropriate to admit the video recording into evidence. His Honour said that he viewed the tape and was satisfied that the interview had been conducted “in an impeccable way”. He said that the evidence had significant probative value. He noted the relative closeness of the interview to the time of the alleged offences. The prosecution alleged that the offences took place on 20 July 2008. The interview was on 7 August 2008 and the trial commenced on 16 August 2009. The trial Judge also noted that the complainant had been called as a witness.
The Judge’s reasons for admitting the evidence as disclosed in his report, are a mixture of his findings on the conditions precedent to the admission of the evidence and other matters which were relevant to the exercise of his discretion.
Counsel for the appellant argued that some of the matters which the Judge identified as relevant to the exercise of the discretion should not have been taken into account for this purpose.
The Judge found that no prejudice was likely to be suffered by the appellant as a result of the admission of the interview into evidence. Counsel for the appellant argued that prejudice must have been suffered by the appellant, but did not elaborate.
It is clear that the Judge directed his attention to unfair prejudice. This is to be distinguished from evidence unfavourable to the appellant which counsel appears to have had in mind. The making of an order which is within the power conferred by the section and is otherwise justified, does not give rise to unfair prejudice.
Next, counsel for the appellant criticised the comment in the trial Judge’s report that:
The evidence to be presented to the jury by the witness would do better justice to his evidence if the Crown was permitted to put his evidence on the interview before the jury.
Counsel submitted that this assessment could not be made until after the statement and evidence had been given.
In my view, the trial Judge was doing no more than noting that, in his view, the purpose of the section of placing the most reliable material before the court in the case of a child of the age of the witness would be served in this case by the admission of the statement into evidence. The trial Judge was entitled to make this assessment on the material before him at the time he made the ruling.
In my view the trial Judge did not err in exercising his discretion in the way in which he did.
Difficulties in applying s 34CA in practice
The argument on appeal has highlighted difficulties in the operation of the legislation.
Section 34CA is an important provision which is likely to be invoked in a significant number of cases. I have referred to ambiguity in the section, particularly in relation to the effect of s 34CA(1)(b)(ii) and s 34CA(2). There is the further difficulty which became apparent during the trial of the Court assessing whether the cross-examination is likely to result in material of substantial probative value or is likely to give rise to material that would substantially reduce the credibility of the evidence.
There is considerable difficulty in making this assessment before cross‑examination takes place and by reference only to the topics upon which it is intended to cross-examine. Predictions as to what is likely to result from cross-examination involve a level of speculation which would, in many cases, render the assessment impractical.
I respectfully suggest that these difficulties are appropriate for consideration by the Legislature.
Ground 3 – the examination‑in‑chief of the complainant
This ground states that the trial Judge erred in permitting the prosecutor to examine the complainant in evidence-in-chief on the same issues as were covered in the interview.
As stated above, the complainant was asked questions in examination‑in‑chief after the interview was played. There was some limited questioning on the events relevant to the charge of unlawful sexual intercourse and further questions were asked about the alleged assault. The examination‑in‑chief was limited, occupying 13 pages of transcript.
According to the argument, the intention of Parliament in enacting s 34CA was to facilitate the proof of offences against protected witnesses when those witnesses are not available to give evidence in person. This part of the argument is plainly incorrect. There is nothing in the section to suggest that the protected witness is prevented from giving evidence‑in‑chief; indeed the section contemplates that the order admitting the statement can be made after the witness has been called by the prosecution.
If the protected witness does give evidence there is nothing in s 34CA to prevent examination-in-chief on the matters dealt with in the statement. The argument that there is a restraint on such questioning was rejected by Hayne J in Gately where the court considered the effect of s 93A of the Evidence Act 1977 (Qld) which, as previously observed, serves a purpose which is similar to that intended by s 34CA. Section 93A provides as follows:
93AStatement made before proceeding by child or person with an impairment of the mind
(1)     In any proceeding where direct oral evidence of a fact would be admissible, any statement tending to establish that fact, contained in a document, shall, subject to this part, be admissible as evidence of that fact if--
(a)the maker of the statement was a child or a person with an impairment of the mind at the time of making the statement and had personal knowledge of the matters dealt with by the statement; and
(b)the maker of the statement is available to give evidence in the proceeding.
(2)     If a statement mentioned in subsection (1) (the main statement) is admissible, a related statement is also admissible as evidence if the maker of the related statement is available to give evidence in the proceeding.
(2A) A related statement is a statement--
(a)made by someone to the maker of the main statement, in response to which the main statement was made; and
(b)contained in the document containing the main statement.
(2B)   Subsection (2) is subject to this part.
(3)     Where the statement of a person is admitted as evidence in any proceeding pursuant to subsection (1) or (2), the party tendering the statement shall, if required to do so by any other party to the proceeding, call as a witness the person whose statement is so admitted and the person who recorded the statement.
(3A) For a committal proceeding for a relevant offence, subsections (1)(b) and (3) do not apply to the person who made the statement if the person is an affected child.
Note--
For the taking of an affected child's evidence for a committal proceeding for a relevant offence, see part 2, division 4A, subdivision 2.
(4)     In the application of subsection (3) to a criminal proceeding--
party means the prosecution or the person charged in the proceeding.
(5)     In this section--
affected child see section 21AC.
child, in relation to a person who made a statement under subsection (1), means--
(a)a person who was under 16 years when the statement was made, whether or not the person is under 16 years at the time of the proceeding; or
(b)a person who was 16 or 17 years when the statement was made and who, at the time of the proceeding, is a special witness.
relevant offence see section 21AC.
(Emphasis in original)

It was submitted in Gately that a party cannot tender a statement under s 93A as evidence of the facts and, at the same time, call oral evidence from the maker of the statement upon the same subject. Hayne J rejected that proposition. He said:[16]
The stated premise (s 93A(1)(b)) upon which s 93A is engaged is that the maker of the statement which it is sought to tender in evidence is available to give evidence. Any other party may require that the party tendering the statement “call as a witness the person whose statement is so admitted” (s 93A(3)). Nothing in the text of the section suggests that the party tendering the statement may not choose to call the maker of the statement as a witness. If the tendering party is required by an “other party” to “call as a witness” the maker of the statement, nothing in the text of the section suggests that the tendering party may not adduce evidence-in-chief from the maker about the matters that are the subject of the statement. The maker of the statement is to be called “as a witness”, not only “made available for cross-examination”. And if the tendering party chooses to call the maker of the statement as a witness, nothing in the text of the section suggests that some different rule applies such that the tendering party is precluded from adducing evidence‑in-chief from the maker about the matters dealt with in the statement.
(Footnote omitted)
In my view the same result must follow under s 34CA.
[16] (2007) 232 CLR 208 at [103].
I would reject Mr Muscat’s argument that, if the prosecution chooses to examine the protected witness, the trial Judge should exclude the out‑of‑court statement as it would be no more than a previous consistent statement which did not enhance the complainant’s credit.
The purpose of admitting a statement under s 34CA is not to enhance the complainant’s credit, but to provide to the court with material which may be used to prove the truth of the facts asserted in the statement. It is obvious that the defence might wish to draw attention to inconsistencies between the complainant’s version in a statement admitted pursuant to s 34CA and the complainant’s evidence in court. Against that background, the prosecution might assert consistency between the two statements. However, the principal purpose of the section is not to provide an occasion for demonstrating consistency or inconsistency, but rather to put forward a version which can be acted upon in the manner described in s 34CA(3).
This was the view expressed by Hayne J in Gately when he said:[17]
Secondly, a statement admitted under s 93A is admitted as evidence of the facts that the statement tends to establish; it is not admitted to bolster the credit of the maker of the statement. The general rule that prior consistent statements of a witness are not admissible to bolster the credit of the witness is not engaged. Because the statement is admitted as evidence of the facts it tends to establish, the hearsay rule is engaged. But the statute provides an exception. It operates according to its terms. Whether or not the maker of the statement is called to give evidence, the statement of a child is admissible as evidence of the facts that the statement tends to establish, if the conditions specified in s 93A are satisfied.
(Footnote omitted)
[17] (2007) 232 CLR 208 at [105].
Although s 34CA and s 93A are worded differently, it is my view the comments made by Hayne J are equally applicable to s 34CA.
Grounds 4 and 5 – directions to the jury on the evidence admitted under s 34CA
These grounds are as follows:
4.The Learned Trial Judge erred in directing the jury to treat the video interview admitted into evidence under 34CA and the complainant’s evidence on oath in court in exactly the same way.
5.In the alternative to Ground 4, the Learned Trial Judge misdirected the jury on the weight to be attached to the video interview as required by s34D of the Evidence Act.
In order to deal with ground 4 it is necessary to have regard to the circumstances in which the trial Judge gave the impugned directions.
Defence counsel at the trial, who was not counsel for the appellant on the hearing of the appeal, made various references in his final address to the jury to the nature of the material in the videotaped interview. He said:[18]
What he said to you in evidence is this very thing I was trying to suggest before: [the complainant] swore on the Bible to tell the truth and he told you the truth about this fight, in the sense that there was no hitting or bashing or kicking of any sort by [the appellant] whatsoever… You have to then compare that with what he told the police in the interview, he said it was both of them that were punching him. I think you’ll find it on p.19. I’ll just check. He said to the police, halfway down: “And then P and [the appellant] got stuck into me, like… and was dragging me outside”.
So in the interview – and the interview, you have to remember, happened on 7 August, so at least a good two weeks after the incident – [the complainant] is telling you something – he is not telling you anything really. He is not doing it on oath, he is telling a police officer a story, or a version of what he says.
(Emphasis added)
Later he told the jury:[19]
What [the complainant] says in his police interview is this variable I mentioned before as well. It's not his evidence in court, it's just something he told someone outside of court. It doesn't have that quality of in-court evidence. It doesn't attract reliability or credibility of itself. It's not tested. It's not him telling you, the jurors, in a court setting through the TV what happened. It doesn't amount to his evidence in court. It is evidence of what he said somewhere else. It's that variable that I mentioned in the context of the concept of a fair and proper trial that makes it unusual. This means that whatever he said in his interview was not evidence on oath like in court as he gave in detail over two days, Tuesday and Wednesday. That was very important and remarkable to observe. He said nothing whatsoever in court to you about uncharged acts. His version to the police doesn't sit with his evidence in court. You really have to ask yourself, therefore, there is a big, dramatic difference, “We really should only fairly and properly rely on what a fair trial means, evidence in court”.
[18] T 414‑415.
[19] T 426-427.
Counsel made no reference in his address to the consideration that the interview could be used as evidence of the truth of its contents.
These statements by counsel required correction. In particular, it was quite wrong to suggest to the jury that the concept of a fair trial meant that the jury should rely only on evidence given in court.
In his summing up the trial Judge referred to the passages which I have set out above and other passages in which defence counsel commented on the nature of the interview with the police. He told the jury that if they considered the defence counsel was submitting that the material in the video was of a different or lower quality than the complainant’s evidence at the trial they should ignore that submission.
The trial Judge referred elsewhere in the summing up to the approach that should be taken to the interview. These passages are relied upon to support the contention that the trial Judge fell into error when providing this explanation.
His Honour said:[20]
However, what you heard [the complainant] telling police officer Annette Burden during the video interview that you have seen and heard and is Exhibit P1, is evidence that you may use to prove the truth of the facts asserted by [the complainant] during that video interview. The law is that you may use the video interview to prove the truth of the facts asserted by [the complainant] in it. That is, you may use what is in the video interview in exactly the same way as you may use the evidence [the complainant] gave orally to you via closed-circuit television. What is on the video in [the complainant’s] answers to questions is evidence as if it was given to you directly by [the complainant], and you may use it, together with [the complainant’s] oral evidence given by closed-circuit television, and all the other evidence, when you are assessing what [the complainant] said about the events involving the accused and himself and, in respect of the second count, his sister and the accused. Of course, you will appreciate that police officer Burden’s questions are not evidence, in the same way as the questions of counsel at the trial are not evidence. In each case they are no more than the means by which [the complainant] gave his evidence.
When I have and will refer to [the complainant’s] evidence I mean what he said in the video and what he said at this trial. I draw no distinction between the two, and you must also not do so.
Later His Honour told the jury that if they considered that defence counsel was submitting that the complainant’s evidence on the video was to be considered by them as having a different or lower quality, they should ignore that submission.[21]
[20] AB 148.
[21] AB 153.
In my view it was important for the trial Judge to tell the jury, as he did, that the interview could be used to prove the truth of the facts asserted in it by the complainant. On the other hand, I do not think it was appropriate to instruct the jury that the videotaped interview is to be considered in the same way as the complainant’s evidence in court without further explanation. That statement is correct insofar as it might reflect s 34CA(3) which permits the jury to use the out-of-court statement to prove the facts asserted in the statement. However, that does not imply that the assessment of each of these categories of evidence is to proceed along the same lines.
The jury should be told that in the case of each category of evidence, the videotaped interview and the evidence in court, that they are at liberty, subject to their assessment of the evidence, to treat what was said as evidence of the facts, but that the assessment of each category must have regard to the circumstances relevant to it. Some aspects of the assessment are common to both categories, but others are not.
In assessing the out-of-court statement, the jury should be invited to consider the demeanour of the witness just as they are required to observe demeanour when oral evidence is given to the court. Aspects such as whether what is said by the witness fits in with other evidence in the case which is accepted by the jury are common to both categories of evidence.
However, in the case of an out-of-court statement, the jury should be invited to consider whether the interview was accurately recorded. It is appropriate for the jury to consider whether important answers were given in response to leading questions or whether the complainant was permitted to relate his version without such prompting. Although the interview does not take place under oath, it is relevant to consider whether the complainant was aware of the significance of the interview and the necessity to be truthful.
Section 34D of the Act is also relevant in this respect. Section 34D(1) provides:
In estimating the weight, if any, to be attached to a statement rendered admissible as evidence by this Act, regard shall be had to all the circumstances from which any inference can reasonably be drawn as to the accuracy or otherwise of the statement, and in particular to the question whether or not the statement was made contemporaneously with the occurrence or existence of the facts stated, and to the question whether or not the maker of the statement had any incentive to conceal or misrepresent facts.
The reference to accuracy is capable of referring to both the accuracy of the recording and the truthfulness of the statements made by the complainant. The question of whether the maker of the statement had an incentive to conceal or misrepresent facts is a factor to be considered under the section just as it is in the case of evidence given orally before the jury. The contemporaneity of the statement is of particular relevance to an out‑of‑court statement. Of course a statement such as that which was before the court on this occasion will not be contemporaneous with the event, but it is relevant to have regard to the lapse of time between the event and the recording of the statement. In some cases this may make the out-of-court statement more reliable than the evidence before the jury on matters which depend upon memory where truthfulness is not in issue.
It was conceded by the Solicitor-General that the trial Judge did not specifically instruct the jury in accordance with s 34D. However, there was no dispute about the accuracy of the recording of the interview. The jury were aware of the length of time between the alleged incidents and the interview. If anything, this was a matter which supported accuracy of recall, at least when compared with the time at which the oral evidence was given. The question whether the complainant had any incentive to conceal or misrepresent the facts was part of the assessment of credibility which was the major feature of the case and was dealt with by the trial Judge and counsel.
In my view the lack of a specific direction along the lines required by s 34D could not have resulted in unfairness to the appellant.
When giving general directions on the assessment of the evidence of witnesses the trial Judge made the point that the evidence to which he was referring in the case of the complainant was the evidence in the videotaped interview and what the complainant said to the jury.
In my view more might have been said by the trial Judge in explaining the proper approach to the assessment of the evidence given pursuant to s 34CA. However, I think enough was said to equip the jury to evaluate this evidence.
Ground 6 – the complaint
Ground 6 complains that the trial Judge misdirected the jury in relation to the complainant’s initial complaint of sexual abuse by the appellant.
The complainant’s mother and father were living separately at the time of the relevant events and the complainant said that he went to his father’s house on the day when the alleged assault took place.
AP, a friend of the complainant’s father, went to the home of the complainant’s father at the father’s request. While sitting in her car in the driveway she had a conversation with the complainant. He was upset and said, “[the appellant] sucks my cock”. He also told her about the alleged physical assault on him.
AP’s daughter was also in the car at the time. She gave evidence that she heard the complainant’s comments to her mother. She said the complainant also said, “He makes me do other things”.
In the course of instructing the jury on the use of the complaint, His Honour said:[22]
[The complainant’s] statements to these other witnesses come before you because it is considered that the making of a prompt complaint is relevant in assessing the truth of an alleged victim’s evidence in court, including the fact that he woke up that morning with the accused’s penis in his anus. It may indicate to you that the victim’s behaviour at the time in making the complaint was consistent with the occurrence of the events on which he has given in court. It may also tend to negative any notion that the allegation is a later invention. It may also assist you in assessing [the complainant’s] evidence by considering the consistency, and therefore the credibility, of what he said then, with what he said in evidence before you. You may also consider it for that purpose if you consider there are some inconsistencies between what he said to those others with what he said in evidence.
It is for you to consider whether you accept the evidence of the complaints and, if so, what weight you attach to them in relation to the issues that I have mentioned. In deciding what weight to attribute to the complaints made in this case to which I am now referring, as to the credibility and reliability of them , you should bear in mind the circumstances leading to them and the context in which they were made.
There are reasons that may prompt people to make false complaints. You should exclude other explanations as to why [the complainant] said what he said to those witnesses, and you should exclude those other explanations beyond reasonable doubt, before you rely on the evidence of his complaints to those witnesses as evidence which lends weight to his credibility and reliability in the evidence he gave here, including his video evidence.
There is no challenge to the admissibility of this evidence. However, certain aspects of the directions to the jury have been challenged.
[22] AB 169-170.
Before dealing with these complaints it is appropriate to set out s 34M of the Act which now regulates the admissibility of complaints. The section provides as follows:
34M—Evidence relating to complaint in sexual cases
(1)     This section abolishes the common law relating to recent complaint in sexual cases.
Note—
See Kilby v The Queen (1973) 129 CLR 460; Crofts v The Queen (1996) 186 CLR 427
(2)     In a trial of a charge of a sexual offence, no suggestion or statement may be made to the jury that a failure to make, or a delay in making, a complaint of a sexual offence is of itself of probative value in relation to the alleged victim's credibility or consistency of conduct.
(3)     Despite any other rule of law or practice, evidence related to the making of an initial complaint of an alleged sexual offence is admissible in a trial of a charge of the sexual offence.
Examples—
Evidence may be given by any person about—
•when the complaint was made and to whom;
•the content of the complaint;
•how the complaint was solicited;
•why the complaint was made to a particular person at a particular time;
•why the alleged victim did not make the complaint at an earlier time.
(4)     If evidence referred to in subsection (3) is admitted in a trial, the judge must direct the jury that—
(a)it is admitted—
(i)to inform the jury as to how the allegation first came to light; and
(ii)as evidence of the consistency of conduct of the alleged victim; and
(b)it is not admitted as evidence of the truth of what was alleged; and
(c)there may be varied reasons why the alleged victim of a sexual offence has made a complaint of the offence at a particular time or to a particular person,
but that, otherwise, it is a matter for the jury to determine the significance (if any) of the evidence in the circumstances of the particular case.
(5)     It is not necessary that a particular form of words be used in giving the direction under subsection (4).
(6)     In this section—
complaint, in relation to a sexual offence, includes a report or any other disclosure (whether to a police officer or otherwise);
initial complaint, in relation to a sexual offence, includes information provided by way of elaboration of the initial complaint (whether provided at the time of the initial complaint or at a later time).
It was submitted that s 34M of the Act confined the relevance of a complaint to consistency and that it was a misdirection to tell the jury that it was relevant to “consistency and therefore credibility”.
In my view the reference to credibility in the summing up did not constitute a misdirection. Consistency of conduct is relevant to a consideration of the credibility of a complainant. In Suresh v The Queen[23] Gaudron and Gummow JJ said:
[The complaint] is admitted not as evidence of the facts in issue, R v Lillyman [1896] 2 QB 167, but as evidence of consistency which buttresses the credit of the complaint: Kilby v The Queen (1973) 129 CLR 460 at 472 per Barwick CJ.
This was the position at common law, but it must also be so in the case of a complaint made admissible by s 34M. The principal relevance of the evidence remains that of consistency.[24] This in turn constitutes a buttress to the evidence of the complainant.[25] The trial Judge’s use of language was appropriate: the jury were told that the evidence was relevant to consistency and “therefore the credibility of the complainant’s evidence”.
[23] (1998) 72 ALJR 769 at 770.
[24] Evidence Act 1929 (SA) s 34M(4).
[25] Kilby v The Queen (1973) 129 CLR 460 at 472.

There was a further submission that the words “consistency of conduct” in s 34M had the effect of drawing a distinction between the conduct of the person making the complaint and the wording of the complaint. As I understand the argument, the reference in s 34M to “consistency of conduct” modified the common law in that it was no longer relevant to have regard to consistency “between the contents of an early complaint and the incident the subject of the complaint”.[26]
[26] R v Szejnoga (1998) 199 LSJS 97 at 101.
I would also reject this argument. In my view, the expression “consistency of conduct” includes both the consistency in making the complaint when it would be expected to be made and consistency between the wording of the complaint and the conduct alleged.[27]
[27] R v Szejnoga (1998) 199 LSJS 97 at 102.
It was conceded by the Solicitor‑General that it was inappropriate to direct the jury that the evidence of complaint tended to negative any suggestion of recent invention. The issue of recent invention was not raised in the case.
The question then arises as to what the jury would have understood by the direction which was not further explained by the trial Judge. According to the submission made on behalf of the appellant, the jury would not have understood the term “later invention” in any technical sense. It was said that there was a real risk that it was taken to mean an allegation which was made up after the complainant left his home on that morning. It was the defence case that the allegations were concocted.
If the jury understood the direction in this sense, they would have been of the view that the making of the complaint could negative the case for the defence that the complainant’s version had been invented by him. If so, the jury would have laboured under a serious misapprehension.
Ground 7 – the complaint in relation to assault
When directing the jury on the way in which they were to approach the evidence of complaints made by the complainant the trial Judge referred to the evidence that the complainant told PA about being grabbed by the appellant and dragged outside and that the complainant’s ankle was injured.
The jury were not told that evidence of complaint was relevant only to a charge of a sexual offence. It was open on the directions which were given for the jury to infer that what the complainant told PA could be used as evidence of consistency in relation to the assault charge. It was conceded by the respondent that the jury should have been told that the evidence could not be used for this purpose.
However, I would accept the respondent’s further submission that the particular assertions made to PA as to the alleged assault, namely, the removal of the complainant from the house and the injury which he incurred, were not challenged by the defence.
In these circumstances there was no miscarriage of justice.
Ground 9 – the admission into evidence of a medical report
This ground relates to a medical report which was admitted as part of the prosecution case. The report refers to an examination of the complainant by Dr Kelly at the Child Protection Services at the Women’s & Children’s Hospital on 21 July 2008. It was signed by Dr Kelly and her supervisor, Dr Donald.
The report sets out the results of the medical examination and includes the following history:
Initial Information from CRU (received on 21/07/08 at 0007 hours)
Initial information was obtained from CRU. [The complainant] aged 11, was living with his mother S after parents separated two months ago. During this time S had a 19 year old “boarder” [the appellant]. [The appellant] was a classmate of B’s (S’s son).
Notification was made on 20/07/08. It was reported in the intake that [the complainant] told the notifier that [the appellant] had gone into his bed at night and made him suck [the appellant’s] cock.
It was also reported in the intake that P ([the complainant’s] sister) and [the complainant] got into an argument and [the appellant] began hitting [the complainant] multiple times. The notifier observed marks on [the complainant’s] arm and wrists which have been caused by the assault by [the appellant].
A second notifier contacted CRU on 20/07/08 and reported that on that morning [the appellant] was in [the complainant’s] bed with his penis inserted in [the complainant’s] anus, [the appellant] was thrusting his penis in and out of [the complainant’s] anus.
When Dr Kelly was called to give evidence she identified the original of her report and it was tendered over the objection of defence counsel. The trial Judge admitted the document into evidence, apparently on the basis that it was a business record.
The admission of the document in the absence of consent was a departure from the usual procedure in a criminal court. There was no reason why the document should have been admitted as a business record when the maker was in the witness box about to give evidence of the medical examination. The general rule in a criminal trial is that witnesses must give their evidence orally.[28] Difficulties can arise from jurors giving disproportionate attention to written statements in the jury room.[29]
[28] Butera v Director of Public Prosecutions (Vic) (1987) 164 CLR 180 at 189; Gately v The Queen (2007) 232 CLR 208 at 235.
[29] The Queen v Stephenson (1978) 18 SASR 381 at 401.
There was a particular difficulty in the present case in that material relating to both offences which could not have been given orally was contained in the medical report. The reference to the circumstances of the unlawful sexual intercourse was relatively brief. However, there was a reference to an unnamed notifier who was said to have observed marks on the complainant’s arm and wrist which may have been caused by the assault. The report stated that there were no injuries to the complainant’s limbs at the time of the examination. Some allegations in relation to the assault charge which were set out in the report differ in certain respects from the oral evidence.
In the course of his summing up the trial Judge said:[30]
There are two aspects about Drs Kelly and Donald’s evidence that I do comment on and give you some further directions about.
First, their report contains a history that was taken from [the complainant] from others, and from [the complainant] himself. That appears on p.1 of their report, Exhibit P6. What [the complainant] and others said which was reported upon by Drs Kelly and Donald is not evidence of the facts reported. I direct you that, in respect of the history obtained by Drs Kelly and Donald from any source, including [the complainant], be ignored by you other than for you to know the basis upon which they reported, and only where they have indicated they have relied on certain reported facts. Otherwise this material is not evidence of the facts of what is contained in those reports. Nor is it even evidence you can use in the same way as I have directed you regarding the evidence of [the persons to whom the complainant made complaints].
[30] AB 173.
In my view the irregularity which occurred by the admission into evidence of the report is not such as to render the convictions unsafe when considered by itself. The direction to the jury is relevant in this respect.
Ground 10 – cross-examination on a police interview not tendered as part of the prosecution case
This ground asserts:
There has been a miscarriage of justice as a result of the cross-examination of the appellant on questions and answers given in a video record of interview on 20 July 2008 between Detective Whitehouse and the appellant, when such record of interview had not be led in the prosecution case.
The appellant was interviewed by police on 20 July 2008. The interview was videotaped. It was an extensive interrogation and the transcript comprised 50 pages. In the course of the interview the appellant denied sexually abusing the complainant.
Prior to the trial the defence filed a rule 9 notice which included an application to the court to exclude various parts of the interview.
The objections fell within a fairly narrow compass. There was objection to those parts of the interview which indicated that the appellant was wearing handcuffs during the interrogation. Several objections related to passages in which the investigating officer expressed his own view about certain issues. There was objection to questioning on the appellant’s claim that he masturbated himself in the bed he occupied with the complainant. Another passage which was the subject of an objection related to questions as to how the appellant had injured his hand. The appellant’s answers suggested that the injury was caused during an incident which led to a charge being laid against him.
When the preliminary matters were being argued prior to the empanelment of the jury, the prosecutor stated:[31]
…it’s appropriate that I tell the court I do not intend playing the record of interview between the police and the accused. If all of the difficult parts are excised we are left with the accused saying “I’m not the sort of person that would do this type of thing” and we know that not to be true. We know that not to be true.
I note my learned friend’s objection but, quite plainly, and I raise it, if they seek to raise that with the police officer, I will say that that’s putting matters at issue that are simply untrue because, in fact, there is a previous file relating to admitted conduct involving a 12‑year‑old. So, on that basis, there being nothing of any use to the prosecution, the prosecution does not intend playing that record of interview with the accused.
What it is intended to do is to call the investigating police officer to say “Did you interview the accused?”, “Yes”, “Was he cooperative?”, “No”, and if my learned friend wishes to go further with “Did he say this or that?”, I will object. I put my learned friend on notice if he pursues that it will be opening the door to those other matters to which I’ve just adverted. It’s appropriate that I put him on notice on that.
In the light of this intimation the defence did not pursue its application to excise those parts of the interview referred to in the rule 9 notice.
[31] T 15.
The prosecutor’s description of the contents of the interview was inaccurate. In the course of the interview the appellant made repeated denials and gave explanations for the matters which were put to him by the police. It was not correct to suggest that the appellant’s answers which would remain if the challenged parts were excised should be characterised as no more than assertions that he was not the sort of person who would commit this type of offence.
In accordance with his intimation, the prosecutor did not lead evidence of the interview as part of his case. However, when it came to cross-examination by the prosecutor, the appellant was questioned on various statements which he made in the course of the interview. These topics were cross-examined upon to advance the prosecution case. One of the uses to which the cross-examination was put is apparent from the following submission in the prosecutor’s address to the jury:[32]
Ladies and gentlemen, sure it’s been a year since the police interview, but every time there was a difference in what the accused now remembered as to what he told the police and it was drawn to his attention, every time that happened, it always distanced him from any chance of offending. Every mistake went his way in terms of any lapse of memory or problem with memory.
At one point in the cross-examination the appellant was cross-examined about what he said to the police concerning the injury to his hand. This questioning led to the appellant referring to the incident which involved him trying to hit a person and hitting a wall instead. This was one of the parts of the interview which the defence objected to during the preliminary application, but was not pursued when the prosecutor announced that he would not be leading evidence of the interview.
[32] T 395.
Surprisingly, no objection was taken by the defence to the cross‑examination on the police interview.
In R v Soma[33] the accused, who was charged with rape, took part in an interview with the police which was tape recorded. It contained admissions, but the prosecutor announced it would not be tendered as part of the prosecution case. This was because a challenge to the admissibility of the interview had been foreshadowed by the defence.
[33] (2003) 212 CLR 299.
However the prosecutor cross-examined the accused on parts of the interview. Segments of the video were played during the cross-examination and tendered in evidence.
In their joint judgment, Gleeson CJ, Gummow, Kirby and Hayne JJ referred to the general principle that the prosecution must offer all its proof before the defence case.[34] Their Honours continued:[35]
In the present case, the prosecution had available to it evidence of statements made by the respondent to police. The prosecution called the interviewing police officer. In this Court it was accepted that the statements which the respondent made to police were adverse to his interests; they were not merely and exclusively self-serving denials. If there were doubts about the admissibility of the record of interview, those doubts could have been resolved on a voir dire. If necessary, the record of interview could have been edited to exclude any objectionable parts. None of these steps was taken.
If the prosecution case was to be put fully and fairly, the prosecution had to adduce any admissible evidence of what the respondent had told police when interviewed about the accusation that had been made against him. To the extent to which those statements were admissible and incriminating, the prosecution, if it wished to rely on them at the respondent's trial, was bound to put them in evidence before the respondent was called upon to decide the course he would follow at his trial. To the extent that an otherwise incriminating statement contained exculpatory material, the prosecution, if it wished to rely on it at all, was bound to take the good with the bad and put it all before the jury. And consistent with what is said in Richardson v The Queen and Apostilides the prosecutor's obligation to put the case fairly would, on its face, require the prosecutor to put the interview in evidence unless there were some positive reason for not doing so. The only reason proffered for not doing so in this case was, as the Court of Appeal rightly found, not sufficient.
(Footnotes omitted)
[34] (2003) 212 CLR 299 at [28] referring to Shaw v The Queen (1952) 85 CLR 365 at 380.
[35] (2003) 212 CLR 299 at [30]-[31].
It was pointed out in the joint judgment that the use to which the interview was put was a matter for objection and, if the objection were to be taken, it was appropriate to do so when the prosecutor first asked the accused questions about the interview in cross-examination.[36]
[36] (2003) 212 CLR 299 at [32].
The fact that no objection was taken to the cross-examination in Soma meant that the conviction could not be set aside on the ground of a wrong decision on a question of law. However, the Court referred to the power in the Criminal Code (Qld) s 668E(1) to set aside the conviction if “on any ground whatsoever there was a miscarriage of justice”.[37] This provision is the equivalent of the relevant part of s 353(1) of the Criminal Law Consolidation Act 1935 (SA). The question whether there has been a miscarriage of justice will depend, of course, on the circumstances of the particular case.
[37] (2003) 212 CLR 299 at [11].
This leads to an enquiry as to whether there was unfairness to the appellant in the present case by reason of the cross-examination when considered against the background of the course of the trial.
In cases where the police interrogation results in a “mixed statement” in the sense of containing both inculpatory and exculpatory assertions, it is well recognised that it is not open to the prosecution to tender only the inculpatory statements. Fairness requires that, if the prosecution intend to rely on the statement, it must be tendered in its entirety. In that event the exculpatory assertions can be taken into account by the jury as an exception to the rule against admitting self-serving hearsay statements. In Spence v Demasi Cox J said: [38]
The position in the criminal court, I think, is clear. It is common for the Crown to tender a record of the accused's interrogation by the police, and often this will contain a mixture of admissions and self-serving statements. The Crown cannot pick and choose. It cannot put in only the damaging questions and answers, or have the admissions treated as evidence and the rest rejected or ignored as hearsay. The whole interrogation (or narrative statement, as the case may be) goes before the jury and it is for them to decide what parts, if any, they will act upon in reaching their verdict.
In my view the interrogation of the appellant by the police resulted in a “mixed statement” in the sense described. There is no doubt that it contained exculpatory assertions and the use of parts of the interrogation by the prosecutor demonstrates that the answers given by the appellant could be used to inculpate him. It is trite to observe that a statement need not contain an admission to the commission of the offence in order to be inculpatory; the acceptance of a particular fact or circumstance may be inculpatory in the sense that it can be used as part of the prosecution case to establish the commission of the offence.
[38] (1988) 48 SASR 536 at 540.
It is unnecessary in this case to decide whether the statement should have been tendered as a part of the prosecution case.[39] The important consideration here is that, by declining to tender the statement as a part of its case and then cross‑examining the appellant on inculpatory aspects, the prosecution was able to make use of the statement for inculpatory purposes without putting before the court the exculpatory components.
[39] Cf Barry v Police [2009] SASC 295.
I do not suggest that this was the intent of the prosecution. However, the conduct of the case has led to that effect.
The unfairness which, in my view, has resulted was not cured by the prosecution leading evidence through the investigating police officer that the appellant co-operated with the police and denied the allegations. This general observation is not a substitute for the specific denials and explanations which were given in the course of the lengthy interview.
Ground 11
This ground complains of comments made by the trial Judge in relation to submissions made on various topics by defence counsel to the jury.
The first topic relates to defence counsel’s submissions on DNA evidence.
Ms Harkin, who gave evidence of her examinations relevant to the presence of DNA, said that she examined a cutting from the complainant’s underpants and observed semen staining on the inner rear of the pants. This was tested for DNA and the witness said it contained DNA from at least three individuals. Neither the complainant nor the appellant could be excluded as being a contributor to the sample. She said the likelihood ratio of either of those persons not being excluded could not be calculated. The trial Judge told the jury that these results were of limited evidentiary value.
When addressing the jury, defence counsel said:
You would expect significant DNA evidence. But you don’t have that. What you have is a microscopic presence of some semen.
The trial Judge referred to this submission in his summing up. He said:[40]
If you consider [defence counsel] was giving expert evidence as to what forensic evidence is to be expected to have been detected on the same day as an offence, and that significant forensic evidence and that significant DNA evidence is to be expected in those circumstances, then you should ignore what [defence counsel] said. He cannot give evidence to that effect, if you thought he was. The evidence that is before you is the evidence of Louise Harkin. Her evidence is to the effect that neither the accused, nor [the complainant] could be excluded as being contributors to the sample of semen staining on the inner rear of [the complainant’s] underpants. She said there were at least three contributors. You might think that evidence is to the effect that [the complainant] was not excluded as a possible contributor and that accused was not excluded as a possible contributor.
It was submitted that the effect of this direction was to withdraw defence counsel’s submission from the jury.
[40] AB 176.

Presumably, defence counsel’s submission was based on cross-examination as to the ways in which a specimen which was capable of providing DNA for analysis could be transferred from one object to another by means of contact. The comment that “you would expect significant DNA evidence” goes further than the evidence of the expert. I do not think it was inappropriate for the trial Judge to comment that if the extension beyond the expert evidence was an expression of opinion by defence counsel then it should be ignored. In this highly technical area I do not think that the extension could be based on lay knowledge. In these circumstances I do not think that the trial Judge’s comment was inappropriate.
The next complaint concerns the trial Judge’s comments on defence counsel’s submissions relating to the medical evidence.
Defence counsel told the jury:[41]
There are no injuries and no medical evidence. Sure, the medical evidence is inconclusive in the sense that there were no injuries found and you can’t therefore say it didn’t happen and you can’t say it did happen. I would still suggest you might see some evidence medically. There is still a possibility of that. The absence of medical evidence when he was examined within 24 hours – and indeed it was from around about 16 hours later – increases the possibility that nothing happened.
Later in his address defence counsel said:
You would expect medical evidence after such a sexual assault and significant forensic evidence.
The trial Judge’s comment on this submission was:[42]
If you thought [defence counsel] was giving evidence, indeed, expert evidence, about what you might expect to find medically after a sexual assault, you should ignore what he said. He cannot give evidence from the bar table. The medical evidence you have heard has been from Drs Kelly and Donald. You might think their evidence was to the effect which was opposite to what [defence counsel] suggested to you.
The proposition suggested by counsel that “you might see some evidence medically” was made against the background of the evidence as to the alleged sexual assault, the nature of the medical examination and the period of time which had elapsed since the alleged incident. In my view the evidence in the case would support the comment that some physical injury might be seen. However, the medical evidence does not support the proposition that one “would expect” such signs. Again, I do not think that it was inappropriate for the trial Judge to comment on the submission in the way in which he did.
[41] T 422-423.
[42] AB 172.
The third complaint arises from comments which defence counsel made about the complainant’s behaviour at school after the alleged incident. There was evidence that prior to the incident the complainant was unsettled at school and prone to becoming angry and upset. However there was further evidence that after the incident he became settled at school.
Against this background defence counsel made the following submission to the jury:[43]
Remarkably after this he moves school and there is no trouble. I would have to suggest that, with experience of human behaviour, a person such as [the complainant] who has been traumatised, allegedly by sexual assault, they would suffer at school, not get better. They would suffer and have behavioural problems. That’s exactly the opposite of what you would expect of a person who is subjected to this sort of alleged sexual assault. That just doesn’t fit, I suggest, with a person, a boy, being subjected to the sorts of sexual assault that’s suggested.
The trial Judge made the following comment:[44]
… [defence counsel] suggested to you that with your experience of human behaviour, a person, such as [the complainant] who has been traumatised, allegedly by sexual assault, would suffer at school, not get better. He submitted they would suffer and have behavioural problems. The fact that he has, in his new place of residence and new school, got better, that is exactly the opposite of what you would expect of a person who was subjected to this sort of alleged sexual assault.
If you thought that [defence counsel] was there giving expert evidence, such as that which might be given by a paediatrician or a psychologist, that young boys of 11 years of age who suffer sexual assaults would necessarily suffer immediate behavioural problems, you should ignore that. [Defence counsel] cannot give evidence and if you thought he was, you should ignore that.
I now refer to some limited aspects of some of the other witness called by [the prosecutor] during his presentation of the Crown case to you.
In my view this comment comes into a different category. Defence counsel was suggesting that the jury might apply their own knowledge of human behaviour to the situation. This was a permissible comment. I do not criticise the Judge’s direction as far as it went. However, having given that direction, it would have been appropriate to point out that the submission did not necessarily depend upon specialised knowledge and that the jury were entitled to assess it against the background of their own knowledge of human behaviour.
[43] T 426.
[44] AB 166-167.
In any event, I do not think that the direction resulted in any unfairness which could have implications for a miscarriage of justice.
Ground 8 – directions on defence of another
In this ground the appellant complains of the directions given by the trial Judge on the issue of defence of another. This was in relation to the alleged assault on the complainant shortly before he left the house and made the complaint of sexual abuse.
In the recorded interview the complainant said that while his mother was out of the house his sister, P, and the appellant began assaulting him in the lounge room. He continued:
[the appellant] was punching me this side I think it was and P was just punching me and kicking me everywhere and anywhere and then I lifted my arm up, hit P, then stood up and ran to go to my room and [the appellant] grabbed me and was dragging me outside so I grabbed hold of the door handle and then he reefed me off the door handle and slammed me onto the porch were there was a piece of wood with a screw sticking up in it right here…hit the screw,
The complainant said that the screw made contact with his ankle. He continued:
Then he was holding me down saying calm down a bit because I was angry at them, and then he grabbed my arm and pulled out behind me so when I kicked him in the nuts, so he would let go then I got up and ran to a friend’s house with no shoes on just with my top and pants on.
The charge of assault was based on that part of the incident where the complainant alleged that he was pulled off the door handle and thrown down on to the porch.
In examination‑in‑chief[45] the complainant said that he had an argument with P in the lounge room over who was going to use the computer. He said P called him names and started to hit him. He said she called the appellant who came into the room and dragged the complainant outside. The complainant said he grabbed hold of the door handle and the appellant pulled him away and threw him onto the porch. He said that was when his foot was hurt. According to the complainant he then kicked the appellant in the testicles and ran away.
[45] T 86.
In cross-examination[46] the complainant said that he hit P in the course of the altercation over the computer and she kept on punching and kicking him until the appellant arrived. He said the appellant picked him up in a “bear hug” and dragged him outside. He agreed that the appellant was breaking up the fight. This was when he grabbed the door handle as he was being carried out through the front door. The complainant said that when he fell he landed on the porch near the steps.
[46] T 108.
P was called by the prosecution. She said[47] that she and her brother were fighting. She said it ended up out at the front of the house. According to her the appellant became involved because the complainant was hitting her and she was crying. She said the appellant stopped the complainant from hurting her. According to her evidence it appeared that the complainant would have continued hitting her if the appellant had not intervened.
[47] T 159.
P said that she was standing on the steps outside when the appellant threw the complainant to the ground. She said that the appellant and the complainant were on the grass which was not far away.
The appellant gave evidence about the incident. He said he was outside when he heard the P call to him. He went inside and saw the complainant and P on the floor. She was holding the complainant’s wrists in the air. The appellant said he grabbed the complainant’s wrists and placed them on his chest in the “X position”. He asked the complainant to calm down. He said the complainant was cursing at everybody so he took the complainant outside.
According to the appellant the complainant grabbed the handle of the front door as they were going out. He said the complainant closed the door onto the appellant’s toe. The appellant said he was kicked in the testicles. He then pulled the complainant’s hand off the door handle and carried him out on to the lawn. He said he placed him on the ground and stepped away from him. He said he asked the complainant to calm down and apologise to P. The complainant then ran off to his friend’s house.
The defence claimed that the appellant was acting in defence of another.
There were aspects of P’s evidence which supported the appellant’s version and contradicted the complainant’s version. She said she did not hit her brother before he started hitting her. She said he hit her a number of times. According to the complainant’s version, P started to kick and punch him. He retaliated by hitting her once.
P said that the appellant came into the room after she had yelled out about what was happening. She said the appellant stopped the complainant from hurting her. She supported the appellant’s claim that the complainant ended up on the grass, not on the porch.
The appellant’s first complaint is that the trial Judge did not refer to P’s evidence in his summing up. I agree with the submission that she gave important evidence which was relevant to the appellant’s defence on the charge and that the jury should have been reminded of the evidence and its relevance explained to them. The relevance of P’s evidence extended beyond the jury’s consideration of the count of assault. It was also relevant to the credibility of the complainant and the appellant and, therefore, to the jury’s consideration of the other allegations made by the complainant.
No objection was taken to the Judge’s oral directions on defence of another. However, the trial Judge provided a memorandum for the jury. The memorandum commenced as follows:
Memorandum for the jury – defence of another
The law provides that the accused does not commit the crime charged if the prosecution fails to exclude as a reasonable possibility:-
1.That he genuinely believed that the conduct to which the charge relates was necessary and reasonable to defend another;
AND
2.That the conduct was, in the circumstances as the accused believed them to be, reasonably proportionate to the threat that the accused genuinely believed to exist to another.
Question 1
“At the time when he punched, dragged, reefed or slammed [the complainant] is it at least reasonably possible that [the appellant] genuinely believed that it was necessary and reasonable to do so in order to defend P?”
The appellant complains that the memorandum is framed in such a way as to assume that the appellant had done was what alleged against him.
In my view the jurors would have approached the memorandum on the basis that the directions on defence of another applied if they found the allegations of physical assault proved. The trial Judge made it clear to the jury in his oral directions that the first matter to be proved was that the appellant used force or violence towards the complainant. I do not accept the possibility that the jury would have ignored those instructions and proceeded on the basis that this element of the offence could be assumed rather than proved.
Conclusion
I have commented upon the misdirection as to the use of the evidence of complaint, the cross-examination on the police interrogation which was not tendered as part of the prosecution case and the failure to direct the jury on the evidence of the complainant’s sister.
In my view the combined effect of these matters must lead to the conclusion that the trial miscarried.
I would allow the appeal, set aside the convictions and order a retrial.
NYLAND J: I have read the judgments of Duggan and White JJ and agree with the comments made by each of them as to the difficulties which arise with respect to the construction and operation of s 34CA Evidence Act 1929 (SA). I also believe this section requires further consideration by the legislature. I however agree with the reasons of Duggan J as to the construction and application of s 34CA as well as the other grounds of appeal. I therefore agree that the appeal should be allowed, the convictions set aside and that there be an order for a retrial.
WHITE J: I agree that the appeal should be allowed, the convictions set aside, and a retrial ordered.
Save for one matter, I agree with the reasons of Duggan J. I take a different view about the effect of s 34CA of the Evidence Act 1929 (SA).
For convenience, I set out again s 34CA.
(1)A court may admit evidence of the nature and contents of a statement made outside the court by a protected witness from the person to whom the statement was made if—
(a)     the court, having regard to the circumstances in which the statement was made and any other relevant factors, is satisfied that the statement has sufficient probative value to justify its admission; and
(b)     —
(i)the protected witness has been called, or is available to be called, as a witness in the proceedings; and
(ii)the court gives permission for the protected witness to be cross‑examined on matters arising from the evidence.
(2)A court may only give permission to allow a protected witness to be cross‑examined on such matters if satisfied that the cross‑examination is likely to elicit material of substantial probative value or material that would substantially reduce the credibility of the evidence.
(3)Evidence that is admitted in a trial under this section of the nature and contents of a statement made outside the court by a protected witness may be used to prove the truth of the facts asserted in the statement.
(4)In a criminal trial, the judge must, if evidence of the nature and contents of a statement made outside the court by a protected witness has been admitted but the protected person has not, for some reason, been cross‑examined on matters arising from the evidence, warn the jury that the evidence should be scrutinised with particular care because it has not been tested in the usual way.
(5)     In this section—
protected witness means—
(a)     a young child; or
(b)     a person who suffers from a mental disability that adversely affects the person's capacity to give a coherent account of the person's experiences or to respond rationally to questions.
Section 34CA(1) vests in courts exercising both civil and criminal jurisdiction a discretion to receive evidence of the nature and contents of a statement made outside court by a protected witness, and to use that evidence as truth of its contents, even though the admission of the evidence would otherwise infringe the hearsay rule. It is the evidence of the person to whom the statement was made which may be admitted. A protected witness is a young child (a child of or under the age of 12 years[48]) or a person of any age who suffers from a mental disability which affects adversely the person’s capacity to give a coherent account of their experiences or to respond rationally to questions.
[48] Evidence Act 1929 (SA) s 4.
Section 34CA(1) specifies a number of conditions before the Court’s discretion to admit evidence of the nature and contents of the out-of-court statement of a protected witness is enlivened:
(i)the court must be satisfied, having regard to the circumstances in which the statement was made and any other relevant factor, that the statement has sufficient probative value to justify its admission;
(ii)the protected witness must have been called, or be available to be called, as a witness in the proceedings;
(iii)permission is given for the protected witness to be cross-examined on matters arising from the evidence.
It is the terms of s 34CA(2) which raise the difficulty agitated on the hearing of the present appeal. Section 34CA(2) provides that the court may only give permission allowing the protected witness to be cross-examined on “such matters” if satisfied that the cross-examination is likely to elicit material of substantial probative value or material which would substantially reduce the credibility of the evidence. (For shorthand purposes only, I will refer in these reasons to this material as “useful material”). The “such matters” to which s 34CA(2) refers are plainly the “matters arising from the evidence” to which the condition in s 34CA(1)(b)(ii) refers.
The effect of s 34CA(1) and (2), if they are applied literally, is that a court cannot give permission for the protected witness to be cross-examined, as is required by the third pre-requisite for admissibility, unless satisfied that cross‑examination is likely to elicit useful material. If the court is so satisfied (and also satisfied about the other two pre-requisites) the discretion to admit the evidence of the out-of-court statement is enlivened. If the court is not satisfied of that likelihood, evidence of the out-of-court statement may not be admitted.
The result is paradoxical. Instead of the improbability of cross-examination undermining the probative value of the out-of-court statement being a reason for the admission of the statement, it will require its exclusion. Put slightly differently, the court’s satisfaction that cross-examination of a protected witness about matters contained in the out-of-court statement would be unlikely to be effective would have the effect that a statement which otherwise had “sufficient probative value to justify its admission” could not be admitted. One party could avoid the admission of probative evidence against him or her under s 34CA by a simple acknowledgement that any cross‑examination would be unlikely to produce useful material.
These are powerful considerations suggesting that a literal construction should not be given to s 34CA(1) and (2).
Section 34CA in its present form was introduced by s 16 of the Statutes Amendment (Evidence and Procedure) Act 2008 (SA). It replaced the form of s 34CA which had been enacted by the Evidence Act Amendment Act 1988 (SA). The former s 34CA permitted a court, in the exercise of a discretion, to admit evidence of the nature and contents of a complaint of a sexual offence made by a young child from the person to whom the child had made the complaint. In R v Corkin[49] it was held that the former s 34CA did not enlarge the ambit of admissible complaints but instead extended the purpose for which the evidence may be led, including by allowing the evidence to be evidence of the facts stated in the complaint.
[49] (1989) 50 SASR 580.
The present s 34CA is not limited to evidence of complaint in the common law sense. Providing that the three pre-requisites for admission are established, a court may admit evidence of an out-of-court statement made by a protected witness of any character. Section 34CA(3) makes it plain that the evidence of the nature and contents of the out-of-court statement by a protected witness may be used to prove the truth of the facts contained in the statement.

In his Second Reading Speech when introducing the Statutes Amendment (Evidence and Procedure) Bill 2007 into the House of Assembly on 25 October 2007, the Attorney-General referred to the limited use made in practice of the former s 34CA:
Unfortunately, section 34CA is rarely used. The courts have held that if a young child “cannot remember making [the complaint] or is inarticulate in the witness box”, he or she is not, for the purpose of this section, available for cross-examination, and the complaint cannot be admitted into evidence.
The words quoted by the Attorney-General in this passage are taken from the judgment of King CJ in R v Corkin.[50]In that passage, King CJ was not suggesting that a child who could not remember making the statement, or who was inarticulate in the witness box, would not be “available to be called as a witness”. Instead he was suggesting that the absence of memory, or inarticulateness, would be a reason for a Judge to exercise caution before exercising the discretion to admit evidence of the nature and contents of the statement.
[50] Ibid at 584.
The Attorney-General identified the problem which the new s 34CA was intended to remedy as follows:
Without [a] child’s evidence, [a] charge may be impossible or difficult to prove. By the time of trial, a very young child may have forgotten the incident or, if it was traumatic, therapeutically encouraged to forget it. In these cases, although the child’s out-of-court statement immediately after the event will be the best record of the child’s memory of it, that statement cannot be admitted into evidence, and the very inability to remember the events that prevents the child’s out-of-court statement being admitted into evidence will also prevent the child giving evidence directly. In these circumstances, a court determining a charge of abuse of a young child may never hear the child’s account of it. Indeed, these cases may not even come to court.
The Attorney-General then described the intended operation of the present s 34CA in the following terms:
The Bill deletes section 34CA and replaces it with a provision that allows a court to admit hearsay evidence of the nature and contents of an out-of-court statement made by a “protected witness” from the person to whom it was given, so long as the protected witness has been called or is available to be called as a witness and the court will allow him or her to be cross-examined on matters arising from the hearsay evidence. A protected witness is defined as a young child or a person with a mental disability that adversely affects his or her ability to communicate effectively with the court. The court may permit such cross-examination only if satisfied that it will elicit material of substantive probative value or material that would substantially reduce the credibility of the hearsay evidence. The provision will therefore sometimes allow evidence of what protected witnesses have said out-of-court to be admitted even though the protected witness has not been questioned about it in court. Whenever this happens, the court must warn the jury that this evidence should be scrutinised with particular care because it has not been tested in the usual way.
The aim of this provision is to make section 34CA work as originally intended, so that the court has the best possible available evidence before it, even if that is hearsay evidence. It does not, of course, derogate from any discretion the court may have to exclude evidence that is admissible in this way”. [Emphasis added]
The words in the Second Reading Speech which I have emphasised may suggest that s 34CA is intended to have the literal meaning which I outlined above. As already noted, that literal meaning produces paradoxical and seemingly unintended consequences. Because of those consequences, it is natural to search for other meanings consistent with the language of the section and the legislative intention.
It may be that the Parliament intended that a court should be able to exercise the discretion to admit evidence of the nature and contents of a statement of a protected witness without first having given permission for the witness to be cross-examined, if the court is satisfied that the cross-examination would be unlikely to elicit material of substantial probative value or material which would substantially reduce the credibility of the evidence. However, such a construction would amount to a substantial rewriting of subs (2) and it is not, in my opinion, open to this Court.
The Solicitor-General submitted that s 34CA(1) and (2) should be construed as requiring a grant of permission by a court at two separate stages. The first (which it was said is contemplated by s 34CA(i)(b)(ii)) occurs when the court considers whether the conditions necessary for the enlivening of the court’s discretion to admit evidence of the out-of-court statement have been met. That stage may occur before any evidence at all has been led in the trial or alternatively, before any evidence has been led from the protected witness. It would occur at the latest when the person to whom the statement was made by the protected witness is called to give evidence. At that stage the court would be concerned only with the capacity of the protected witness to be cross-examined. The second occasion requiring permission (which it was said is contemplated by s 34CA(2)) occurs before or during the cross‑examination of the protected witness. The cross-examiner must then satisfy the court, in advance of asking questions about matters arising from the evidence of the out-of-court statement, that the cross-examination would be likely to elicit useful material.
In my respectful opinion, there are difficulties with this construction. Section 34CA seems, by its language and structure, to contemplate only the one grant of permission. Subsection (1)(b)(ii) requires that there be a grant of permission and subs (2) is naturally to be understood as a qualification on the exercise of the discretion involved in the grant of that permission. In this respect, it is to be noted that subs (2) proceeds on the premise that permission by the court for the protected witness to be cross-examined will be required. As a party affected by the evidence would, under ordinary principles, be entitled to cross-examine (ie, without having first to seek permission to do so), it is difficult to identify the occasion when permission is required to which subs (2) does refer if it is not the occasion contemplated by subs (1)(b)(ii). The reference to “such matters” in subs (2) is another indication that it is to work in conjunction with subs (1)(b)(ii). Further, there is an apparent incongruity in the court being required at the one stage to decide that permission to cross-examine on matters arising from the evidence of the out-of-court statement should be granted but then later (and after the evidence has been admitted) having to make a decision which could have the effect of reversing the effect of the first decision. Further again, I am unable to identify in s 34CA(1) and (2) an indication that a two-stage permission process is contemplated.
An alternative construction of s 34CA is to understand subs (2) as permitting a court to grant permission for the protected witness to be cross‑examined only if it is satisfied that the capacity of the witness is such that a cross‑examination is likely to elicit useful material. On this construction, the enquiry when a court is considering whether the discretion to admit the out‑of‑court statement has been enlivened would be about the ability of the protected witness to be cross-examined, and not about the prospect of cross‑examination eliciting useful material.
This construction would mean that a court is required to consider the grant of permission only once, ie, when considering the admissibility of the out-of-court statement. It would mean that the court could not allow evidence of the out-of-court statement of a protected witness to be admitted in those cases in which, by reason of tender years or mental disability, the protected witness could not be expected to cope with a cross-examination. Understood in this way, subs (2) has a protective purpose, ie, protecting those unable to cope with cross-examination from exposure to that process. In those cases in which the court did permit cross-examination, it would still be able, in the exercise of its general control of the trial and of the powers vested in it by ss 22, 24 and 25 of the Evidence Act, to exercise some control, including by disallowing questions, of the manner and content of a cross‑examination.
However, it is to be acknowledged that this construction also involves reading into s 34CA(2) words which the Parliament itself has not chosen to use. And, as noted, it may mean that the out-of-court statement of a very young child or of some persons who suffer from a mental disability may not be able to be admitted at all.
As can be seen, there are difficulties in identifying the proper construction of s 34CA.
In my opinion, it is the construction of subs (2) which requires the court to be satisfied about the capacity of the protected witness to be cross-examined which is to be preferred. That is to say, subs (2) is to be understood as though it provided that a court may only give permission to allow a protected witness to be cross-examined on matters arising from the out-of-court statement if satisfied that the capacity of the protected witness is such that a cross-examination is likely to elicit material of substantial probative value or material which would substantially reduce the credibility of the evidence.
Although requiring in effect some additional words to be read into subs (2), this construction involves the least re-writing of the provision and to my mind achieves substantially the intended effect of the new s 34CA. It also means that courts will not be put in the seemingly incongruous position of reversing the effect of the grant of permission for cross-examination which was a condition of the admissibility of the out-of-court statement. This construction also keeps intact the protection mentioned by the Attorney-General in his Second Reading Speech which finds expression in s 34CA(1)(b)(i), namely, that the protected witness be called, or be available to be called, as a witness in the proceedings, and preserves the opportunity for the other party to test the evidence which the court is satisfied has “sufficient probative value to justify its admission”. It also enables the section to achieve its purpose of overcoming some of the difficulties encountered by young children and those affected by mental disabilities when giving evidence in the conventional way.
For these reasons, I respectfully differ from Duggan J as to the appropriate construction of s 34CA.
The difficulties in the construction of s 34CA which have become apparent in this appeal indicate that the section warrants the further attention of the legislature.
Although the Judge did not apply s 34CA in the way which I consider appropriate, I do not consider that a miscarriage of justice thereby arose. In the circumstances of this case, the complainant had the capacity to be cross‑examined and he was called as a witness in the prosecution case. The appellant’s counsel was able to cross-examine him without restriction.
In relation to the other grounds of appeal, I agree with the reasons of Duggan J.