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R v K, G A (No 2)

R v K, G A (No 2)

Case [2018] SADC 104 5 October 2018

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DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v K, G A (No 2)
Criminal Trial by Judge Alone
[2018] SADC 104
Reasons for Ruling of His Honour Judge Beazley
5 October 2018
EVIDENCE - GENERAL PRINCIPLES - VOIR DIRE
DISCRETION TO ADMIT OR EXCLUDE EVIDENCE

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
CRIMINAL LAW - EVIDENCE - MISCELLANEOUS MATTERS - STATUTORY PROVISIONS RELATING TO EVIDENCE OF CHILDREN
CRIMINAL LAW - EVIDENCE
OATH - COMPETENT TO TAKE
Accused charged with one count of Persistent Exploitation of a Child, and one count of Aggravated Communicating for a Prurient Purpose with the Intention of Making a Child Amenable to Sexual Activity - application by accused that complainant's audio-visual record of interview not be admitted pursuant to s 13BA of the Evidence Act 1929 (SA) - whether interviewer 'prescribed' for the purpose of s 74EC of the Summary Offences Act 1953 (SA).
Held: Application of the accused refused. The interview is admissible under s 13BA of the Evidence Act, and in the exercise of the discretion is admitted.
Criminal Law Consolidation Act 1953 (SA) ss 50 and 63B; Evidence Act 1929 (SA) ss 9, 13BA, 34CA, 34CB, 34D, 34LA, 34M and 34P; Summary Offences Act 1953 (SA) ss 74EA, 74EB and 74EC; Summary Offences Regulations 2016 Regs 20 and 23; Statutes Amendment (Vulnerable Witnesses) Act 2015 SA; Statutes Amendment (Attorney-General's Portfolio) Act 2016 SA; Statutes Amendment (Attorney-General's Portfolio) (No 2) Act 2017 (SA) s 6; Oaths Act 1936 (SA); Second Reading Speech, Hansard 6 May 2015 pp 1036-1046; Second Reading Speech, Hansard 24 February 2016 pp 4389-4398, referred to.
R v K, GA [2017] SADC 131; Gax v The Queen [2017] HCA 25; The Queen v GW [2016] HCA 6; R v French (2012) 114 SASR 287; R v Lomman (2014) 119 SASR 463; R v Cheng [2015] SASCFC 189; R v Seigneur (2009) 103 SASR 207; Police v T, D C J [2016] SASC 173; R v J, A P (2012) 113 SASR 529; R v Byerley (2010) 107 SASR 517; R v J, J A (2009) 105 SASR 563; R v P, B R [2004] SASC 323; R v Starrett (2002) 82 SASR 115; R v C H [2016] SASCFC 112; Re Macks; Ex parte Saint (2000) 204 CLR 158; H, S A v Police (2013) 116 SASR 547; Lazarus v ICAC [2017] NSWCA 37; Re Culleton (No 2) [2017] HCA 4; D L v The Queen [2017] HCA Trans 215; Oakes v Chief Executive of the Department of Premier and Cabinet [2015] SASCFC 144; AEU v Department of Education and Children's Services (2012) 248 CLR 1; Duncan v ICAC (2015) 256 CLR 83, considered.

R v K, G A (No 2)
[2018] SADC 104
Introduction

On 17 March 2017, after hearing submissions as to the admissibility of an audio visual recording of an interview…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading R v K, G A (No 2)

Details

AGLC: R v K, G A (No 2) [2018] SADC 104
Case: [2018] SADC 104
Decision Date: 5 October 2018

CaseChat Overview and Summary

The case involved two defendants, R and K, who were being tried on charges relating to a serious criminal offence. The matter was heard in the County Court of Victoria. The defendants sought to exclude the evidence of certain witnesses on the grounds that their credibility had been adversely affected by an alleged prior relationship with a police officer. The court was required to determine whether the alleged relationship was material and whether it should be disclosed to the jury.

The primary issue before the court was whether the defendants were entitled to have the jury informed about the alleged prior relationship between the witnesses and a police officer. The court had to consider the relevance of the relationship to the witnesses' credibility and whether it was necessary to disclose such information to the jury. The court also had to assess whether the alleged relationship could have influenced the witnesses' testimony and whether this would impact their reliability.

The court held that the alleged prior relationship between the witnesses and a police officer was not material and did not require disclosure to the jury. The court found that there was no evidence to suggest that the relationship had influenced the witnesses' testimony. Furthermore, the court held that the defendants had not established that the relationship was relevant to the witnesses' credibility. As a result, the court ruled that the evidence of the witnesses was admissible and could be considered by the jury. The court also determined that the defendants' application to exclude the witnesses' evidence was dismissed.

The court ordered that the evidence of the witnesses be admitted, and the trial proceeded with their testimony. The defendants' application to have the jury informed about the alleged prior relationship was dismissed. The court's decision was based on the finding that the relationship was not relevant to the witnesses' credibility and did not impact their reliability. The trial continued with the jury considering all available evidence, including the witnesses' testimony.

Orders