(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.
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.
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.
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.
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
R v J, JA [2009] SASC 401
Case
[2009] SASC 401
Decision Date
CaseChat Overview and Summary
In the case of R v J, JA, the appellant was charged with unlawful sexual intercourse with a person under 12 years of age and aggravated assault. The appellant was convicted of unlawful sexual intercourse and acquitted by direction of court on the charge of aggravated assault but found guilty of the alternative offence of common assault. The appellant appealed against his conviction, raising several grounds for the appeal, including improper admission or rejection of evidence. The primary focus of the appeal was the admission of a videotaped interview between a police officer and the complainant, a young child.
The legal issues before the court were whether the trial judge erred in exercising their discretion under s 34CA of the Evidence Act 1929 (SA) in admitting the videotaped interview as evidence, and whether the trial judge provided proper directions to the jury on the weight to be attached to the videotaped interview as required by s 34D of the Act. The court had to consider the appropriate procedure for admitting evidence under s 34CA of the Act and whether the trial judge erred in treating the videotaped interview as a "statement" within the meaning of s 34CA. The court also had to assess whether the trial judge erred in permitting the prosecutor to examine the complainant about the same matters covered in the videotaped interview and whether the trial judge misdirected the jury as to the weight to be attached to the videotaped interview.
The court found that the trial judge erred in directing the jury to treat the videotaped interview and the complainant's sworn evidence in the same manner. The court concluded that the trial judge's directions may have led the jury to place undue weight on the videotaped interview and potentially overlook the differences between the two accounts. Additionally, the court found that the trial judge did not adequately direct the jury on the weight to be attached to the videotaped interview as required by s 34D of the Act. The court found that the combined effect of these errors led to a miscarriage of justice, and the appeal was allowed, the convictions were set aside, and a retrial was ordered.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
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.
Decision
Reasons for decision
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.