R v K, G A (No 2)
[2018] SADC 104
•5 October 2018
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 104Introduction
On 17 March 2017, after hearing submissions as to the admissibility of an audio visual recording of an interview of the complainant, I provided some brief ex tempore reasons for ruling that the recording would be admitted into evidence pursuant to s 13BA of the Evidence Act 1929 (SA).
That ruling followed detailed submissions by counsel relating to the proper construction of s 13BA, which section commenced on 1 July 2016, well after the audio visual recording had been made on 13 April 2015.
I intimated that if the parties requested further reasons then I would provide them. Thereafter, the trial proceeded by Judge sitting without a jury.
In the reasons for verdict,[1] delivered on 1 December 2017, I further detailed the reasons for my ruling.
[1] R v K, GA [2017] SADC 131, at [58] - [80].
On or about 29 August 2018, during my period of leave, solicitors for the appellant sought a copy of my ‘settled remarks’. Notwithstanding that those two previous reasons set out in skeleton form the basis for my Ruling, I appreciate that the proper construction of s 13BA is a matter of importance, and I accordingly provide this additional document, detailing the submissions made on the voir dire.
The accused is charged on Information, dated 21 December 2015, with one count of Persistent Sexual Exploitation of a Child, contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA), and one count of Aggravated Communicating for a Prurient Purpose with the intention of making a Child Amenable to Sexual Activity, contrary to s 63B(3) of that Act.
It is alleged that the accused committed both of the subject offences against the complainant, ‘C’, between 30 June 2012 and 1 June 2013.
The complainant was born on 18 September 2008, and was therefore aged between three years and six months and four years and six months, at the time of the alleged offences. The complainant is the granddaughter of the accused’s then partner, ‘E.L.’
Upon arraignment, the accused pleaded not guilty to each of the two counts on the Information.
It is convenient now to set out, in detail, each count as particularised in the Information as follows:
First Count
Statement of Offence
Persistent Sexual Exploitation of a Child. (Section 50(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
G A K, between the 30th day of June 2012 and the 1st day of June 2013 at McCracken over a period not less than three days, committed more than one act of sexual exploitation of C, a person under the age of 17 years.
It is alleged that the conduct comprising the ongoing acts of sexual exploitation included:
(a)exposing his genitals to C on more than one occasion.
(b)causing C to expose her genitals on more than one occasion.
(c)performing cunnilingus upon C on more than one occasion.
(d)licking C’s bottom on more than one occasion.
(e)causing C to perform fellatio upon him, on one occasion.
Second Count
Statement of Offence
Aggravated Communicating for a Prurient Purpose with the Intention of Making a Child Amenable to Sexual Activity. (Section 63B(3) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
G A K, between the 30th day of June 2012 and the 1st day of March 2015 at McCracken, made a communication for a prurient purpose with the intention of making a child under the prescribed age, namely C, amenable to sexual activity.
It is further alleged that G A K committed the offence knowing that the victim of the offence was, at the time of the offence, under the age of 14 years.
Audio visual record[2]
[2] This Ruling should be read together with my Reasons for Verdict [2017] SADC 131 at p 15 et seq.
By application dated 27 February 2017, the DPP seeks an order that an audio visual record, made by the complainant on 13 April 2015, in her interview conducted by the registered psychologist, Kerri Ann Molden, be admitted into evidence pursuant to s 13BA of the Evidence Act.
A separate issue arises or may arise as to the capacity of the complainant, as at the date of the audio visual interview, and also as to the date of trial to give evidence. In the event that the audio visual record is admitted and the court gives leave for the complainant to be further examined or cross examined, the question of her capacity to give sworn or unsworn evidence also arises.
By application of about the same date, the accused sought an order that the audio visual record be excluded on the following grounds:
“1.That at the time of the interview, C was aged approximately 6 years and 6 months, and it cannot be said that she understood the need to be truthful.
2.That the interviewer was not a prescribed person pursuant to s 74EC of the Summary Offences Act 1953.
3.That the judicial discretion should be exercised to exclude the recording as the matters spoken of by the 6 ½ year old aged victim relating to events that supposedly happened when she was aged between approximately three years and six months to four years and six months, and consequently her veracity and memory recall would have to be dubious and the submission would be unfair to the accused.”
Counsel for the accused, Mr Lyons, in support of his application, submitted that the complainant had not been tested about her knowledge of the difference between the truth and a lie when the interview was taken; nor did she provide any particular details as to her understanding of the need to be truthful at that time.
He further submitted that the informal way in which the interview was conducted, would leave the complainant being unaware of the importance of the interview, and the need to be truthful.
Mr Lyons submitted that the complainant’s audio visual recording did not comply with the amending legislation, and in particular did not comply with the safeguards provided in the Regulations. In particular he submitted that the interviewer, Ms Molden, did not fall within the description of a prescribed interviewer.
Amendments to the scheme for the admission of Recorded Evidence
On 1 July 2016, the relevant amendments being s 13BA of the Evidence Act 1929; ss 74EA; 74EB and 74EC of the Summary Offences Act 1953; and Regulations 20 and 23 of the Summary Offences Regulations (2016) came into operation.[3]
[3] See Statutes Amendment (Vulnerable Witnesses) Act 2015 and Statutes Amendment (Attorney-General's Portfolio) Act 2016.
Those amendments followed concerns expressed in various decisions in the Court of Criminal Appeal as to the scope of the predecessor, s 34CA of the Evidence Act,[4] and its application to out of court statements, as opposed to the admission as evidence of a vulnerable witness.
[4] Second Reading Speeches Hansard 65 2015 Pages 1036-1046 and 24 2016 Pages 4389-4398. See R v Cheng [2015] SASCFC 189; and R v Seigneur (2009) 103 SASR 207.
Section 34CA was ultimately replaced by s 34LA of the Evidence Act.
The relevant amendments to the Evidence Act and the Summary Offences Act were contained in the Statutes Amendment (Vulnerable Witnesses) Act 2015. In his second reading speech the Attorney-General stated:
The Bill is an important measure to improve the position of vulnerable witnesses, namely children and persons with a disability within the criminal justice system both in and out of court.
The Bill preserves an accused person’s right to a fair trial whilst recognising that the South Australian Criminal Justice system needs to be more accessible and responsive to the needs and interests of victims and witnesses who are children and persons with a disability.[5]… The Bill also amends s 9 to provide that it has no application to statements made out of court that may be admitted as evidence in proceedings as an exception to the hearsay rule. Section 9 will still apply to an audio visual record of an investigative interview … admitted pursuant to s 13BA of the Bill as the witness’s evidence. It is entirely up to the court how it will determine the witness’s competence.
[5] Hansard 6 May 2015.
As is plain, the alleged offence; and the audio visual recording of the interview; each predated the commencement of the amending legislation. The relevant amendments to the Summary Offences Act, and the Regulations, as referred to above, detailed the prerequisites for the tender of the audio visual record.
The Statues Amendment (Attorney-General’s Portfolio) Act 2016, enacted a transitional provision to permit such audio visual recordings which predated the amendments, to be admitted.[6] It is convenient to set out the relevant legislation.
[6](2) An audio visual record of the statement ... made to an investigating or other authority before the commencement ... of the Act as part of a formal interview process in relation to the investigation of an alleged offence may, after the commencement of this section be admitted under s 13BA of the Evidence Act as evidence in the trial ... as if the recording had been made pursuant to Division 3 of part 17 of the Summary Offences Act.
(3)subclause (2) applies –
(a)to a witness who is (1) under the age of 14 years …
Section 13BA of the Evidence Act, provides:
Admissibility of recorded evidence by certain witnesses in certain criminal proceedings
(1)Subject to this section, the court may, in the trial of a charge of an offence order that the evidence of a witness be admitted in the form of an audio visual record.
(2) An application for an order under subsection (1) must—
(a) be made in writing by the party wishing to have the audio visual record of the evidence admitted in the trial; and
(b) be filed in the court; and
(c) within 14 days of being filed in the court—be served on the other party to the proceedings (the respondent); and
(d) otherwise be made in accordance with the rules of court.
(3)An audio visual record of the evidence of a witness may be admitted under this section if—
(a) the recording has been made pursuant to—
(i)section 12AB; or
(ii)Part 17 Division 3 of the Summary Offences Act 1953; and
(b) the court is satisfied as to the witness's capacity to give sworn or unsworn evidence at the time the recording was made; and
(c) the court is satisfied that the respondent has been given a reasonable opportunity to view the recording; and
(d) during the course of the trial, the witness is available, if required, for further examination, cross‑examination or re‑examination.
(4)The court's discretion to exclude evidence is not affected by subsection (3) and the court may—
(a) rule as inadmissible the whole or any part of the recording; or
(b) before admitting the recording, order that it be edited so as to exclude evidence that is inadmissible for any reason.
(5)Despite subsection (3)(d), the witness cannot be further examined, cross‑examined or re‑examined on the evidence admitted in the trial without the permission of the court which may only be given, on application by a party to the proceedings—
(a) if the court is satisfied that a party to the proceedings has, since the audio visual record, become aware of a matter of which the party could not reasonably have been aware at the time the record was made; or
(b) if the witness gives evidence in the trial apart from or in addition to evidence admitted under this section in the form of an audio visual record and the court is satisfied that it is in the interests of justice that the witness be further examined, cross‑examined or re‑examined; or
(c) if the court is satisfied that it is otherwise in the interests of justice to permit the witness to be further examined, cross‑examined or re‑examined.
(6)If a court admits evidence in the form of an audio visual record under this section, the judge must—
(a) explain to the jury that the law allows the court to admit evidence in this form; and
(b) warn the jury—
(i)not to draw from the admission of evidence in that form any inference adverse to the defendant; and
(ii)not to allow the admission of evidence in that form to influence the weight to be given to the evidence.
At the same time s 13BA came into operation, Division 3 of Part 17 of the Summary Offences Act came into force, which governs the recording of interviews of certain vulnerable witnesses, including children under the age of 14 years.
Sections 74EB and EC of the Summary Offences Act govern the obligation to record such interviews and the admissibility of evidence of the interview.
Regulations contained in the Summary Offences Regulations 2016 make provision for persons authorised to be prescribed interviewers; detail what information must be included in a recorded interview; and prescribe the manner in which the interview must be conducted.
Division 3 of Part 17 of the Summary Offences Act provides:
Division 3—Recording interviews with certain vulnerable witnesses
74EA—Application and interpretation
(1)This Division applies to a person being interviewed as a potential witness who is—
(a) a child of or under the age of 14 years; or
(b)a person with a disability that adversely affects the person's capacity to give a coherent account of the person's experiences or to respond rationally to questions.
(2) In this Division—
serious offence against the person means—
(a) murder or attempted murder; or
(b) manslaughter or attempted manslaughter; or
(c) a sexual offence; or
(d) —
(ai)an offence of criminal neglect under section 14 of the Criminal Law Consolidation Act 1935; or
(i)an offence of stalking under section 19AA of the Criminal Law Consolidation Act 1935; or
(ii)an offence of causing serious harm under section 23 of the Criminal Law Consolidation Act 1935; or
(iia)an offence of causing harm under section 24 of the Criminal Law Consolidation Act 1935; or
(iii)an offence involving an unlawful threat to kill or endanger life; or
(iv) an offence involving abduction; or
(iv) an offence involving blackmail; or
(vi)an attempt to commit, or assault with intent to commit, any of the offences in the preceding subparagraphs; or
(e)an offence of contravening or failing to comply with an intervention order under the Intervention Orders (Prevention of Abuse) Act 2009; or
(f)an offence of contravening or failing to comply with a restraining order under the Summary Procedure Act 1921;
sexual offence means—
(a) rape; or
(b) compelled sexual manipulation; or
(c) indecent assault; or
(d)any offence involving unlawful sexual intercourse or an act of gross indecency; or
(e) incest; or
(f)any offence involving sexual exploitation or abuse of a child, or exploitation of a child as an object of prurient interest; or
(g)an offence of sexual exploitation of a person with a cognitive impairment under section 51 of the Criminal Law Consolidation Act 1935; or
(h)any attempt to commit, or assault with intent to commit, any of the foregoing offences.
74EB—Obligation to record interviews with certain vulnerable witnesses
If a person to whom this Division applies is to be interviewed as a potential witness in relation to the investigation of a serious offence against the person, the interview must be conducted as follows:
(a)an audio visual recording of the interview must be made in accordance with the regulations;
(b) the interview must be conducted by a prescribed interviewer;
(c)the manner in which the interview is conducted must meet the prescribed requirements to the prescribed extent.
74EC—Admissibility of evidence of interview
(1)In proceedings for a charge of a serious offence against the person, evidence of an interview between a prescribed person and a person to whom this Division applies is inadmissible unless—
(a)the prescribed person complied with this Division in relation to the conduct and recording of the interview; or
(b)the court is satisfied that the interests of justice require the admission of the evidence despite the prescribed person's non‑compliance.
(2)If, in the course of a trial by jury, the court admits evidence of an interview under subsection (1)(b), the court must—
(a)draw the jury's attention to the non‑compliance by the prescribed person; and
(b)give an appropriate warning in view of the non‑compliance,
unless the court is of the opinion that the non‑compliance was trivial.
The relevant regulations under the Summary Offences Regulations 2016 dealing with interviewing vulnerable witnesses are regulations 20 and 23. I set out the regulations that have particular application to these proceedings:
20—Prescribed interviewers and prescribed persons
(1)For the purposes of section 74EB(b) of the Act, a prescribed interviewer is—
(a)a police officer or Public Service employee, or a police officer or Public Service employee of a class, authorised by the Commissioner or the Minister by written notice to conduct interviews with vulnerable witnesses; or
(b)a person, or a person of a class, authorised under a law of the Commonwealth or of another State or a Territory to conduct interviews with vulnerable witnesses; or
(c)a person who has successfully completed a training course in conducting interviews with vulnerable witnesses—
(i) approved by the Commissioner; or
(ii) approved by the Minister,
(and a prescribed interviewer is, for the purposes of section 74EC of the Act, a prescribed person).
(2) In this regulation—
Minister means the Minister for Health.
23—Interviewing vulnerable witnesses
(1)For the purposes of section 74EB(a) of the Act—
(a)the following information must be included in an audio visual recording of an interview with a vulnerable witness:
(i)the date on which the recording was made;
(ii)the identity of all persons who were present at any time during the interview;
(iii)details of any breaks in the interview, including the time the break commenced and concluded and (so far as is practicable) the reason for the break; and
(b)if the vulnerable witness is accompanied during the interview by—
(i)a prescribed companion; or
(ii)a prescribed communication assistant,
the witness, the companion and the communication assistant (as the case may be) must be visible at all times in the recording; and
(c)if the vulnerable witness is provided with a prescribed communication device for the purpose of providing communication assistance during the interview, the witness and the communication device must be visible at all times in the recording.
(2)…
(3)…
(4)…
(5)…
(6)…
(7)For the purposes of section 74EB(c), the manner in which an interview with a vulnerable witness is conducted will meet the prescribed requirements if—
(a)so far as is practicable, any statement made by the vulnerable witness is not elicited by the use of leading questions; and
(b)the vulnerable witness appears to understand that he or she must tell the truth; and
(c)the interview is conducted in accordance with this regulation.
The ‘Vulnerable Witness Bill’ (‘the amending Act’) was passed on 2 July 2015, and came into operation, as previously stated, on 1 July 2016.
The transitional provision of the amending Act initially stated that the amendments made to the Evidence Act were intended to apply so as to include proceedings for a sexual offence commenced but not determined before the commencement of the clause, such as to make the new provisions apply to proceedings initiated in the court of trial before the commencement date of 1 July 2016.[7]
[7] No doubt so as to clarify the operation of the provisions following R v Seigneur (Question of Law Reserved No 1 of 2009) (2009) 103 SASR 207.
However, the amending Act was further amended by the Statutes Amendment (Attorney-General’s Portfolio) Act 2016 which provided that subclause (2) of the transitional provision of the amending Act be deleted and replaced by the following sub-clauses:
(2)An audio visual record of the statement of a witness to whom this sub-clause applies made to an investigating or other authority before the commencement of section 10 of this Act as part of a formal interview process in relation to the investigation of an alleged offence may, after the commencement of that section, be admitted under s 13BA of the Evidence Act 1929 as evidence in the trial of a charge of the offence as if the recording had been made pursuant to Division 3 of Part 17 of the Summary Offences Act 1953 in accordance with the requirements of that Division.
Note –
Section 10 of this Act inserts s 13BA into the Evidence Act 1929.
(3) Sub-clause (2) applies –
(a) to a witness who is –
(i) a child of or under the age of 14 years;
(ii)a person with a disability that adversely affects the person’s capacity to give a coherent account of the person’s experiences or to respond rationally to questions; and
(b) despite s 34LA(2)(c) of the Evidence Act 1929.
Discussion
Both counsel directed the submissions to the terms of ss 13BA(3)(a) and (b) of the Act. Counsel for the DPP, Mr Williams, submitted that the amended transitional provision permitted the court to admit the audio visual record, notwithstanding that it was made prior to the amending legislation, as evidence in the trial, as if it had been made pursuant to Division 3 of Part 17 of the Summary Offences Act, and in accordance with its requirements.
In the subject case there was no doubt that the accused had been given a reasonable opportunity to view the recording; and that C was available (if required) for further examination, cross-examination or re-examination in compliance with sub-ss (3)(c) and (3)(d) thereof. In addition it was conceded that Ms Molden did not ask any leading questions of the complainant.
The obligation to be truthful
One of the legislative changes enacted at the same time as s 13BA, was an amendment to s 9 of the Evidence Act. The proper construction of s 9 of the Act has been the subject of a large number of decisions of the Court of Criminal Appeal, and, under slightly different legislation, in the High Court.[8]
[8] R v G.W. [2016] HCA 6; R v French (2012) 114 SASR 287; and R v Lomman (2014) 119 SASR 463.
Pursuant to s 9(2) if the court determines that a person does not have sufficient understanding of the obligation to be truthful, then it may permit the child to give unsworn evidence provided that the judge is satisfied that the child understands the difference between the truth and a lie and tells the child that it is important to tell the truth, and the child indicates that she will tell the truth.
I accept that there are a number of difficulties in construing sub-ss 9(6); and 13BA(3)(b) of the Evidence Act. The last subsection directs the Court to be satisfied as to the witness’s capacity to give sworn or unsworn evidence at the time the recording was made.
In the subject case the audio visual interview with C was conducted by the registered psychologist, Ms Molden, on 13 April 2015.
She did not ask the type of questions which the Court is required to ask pursuant to s 9 of the Evidence Act.[9]
[9] R v French (2012) 114 SASR 287; R v Lomman (2014) 119 SASR 463; R v P, BR [2004] SASC 323; cf R v G W [2016] HCA 6.
Section 9(6) of the Act provides:
Subject to this Act, this section does not apply to a statement made outside of the court admitted as evidence in any proceedings under an exception to the rule against hearsay at common law or under this Act.
One question on the face of the Act, is whether s 9(6) applies to an audio visual record under s 13BA(3)(b). Section 13BA(3)(b) provides that the court must be satisfied as to the capacity to give sworn or unsworn evidence at the time the recording was made. (my emphasis)
With an abundance of caution, I enquired of the complainant and directed my questions to her as if it were a wider inquiry pursuant to s 9(1) and s 9(2) of the Evidence Act. If there was a lesser test, then it would be covered by my inquiry. In that inquiry, I elicited from the complainant that at the time she had attended and given the statement, she was aware of the difference between a truth and a lie and that was she was aware at the time that it was important to tell the truth at that meeting. It had been explained to her by her father and mother that she was going to an important meeting. She understood it was important. She understood at that time the difference between a truth and a lie and that she had promised to tell the truth at that time.
I refer to the decision of the Court of Criminal Appeal in the matter of R v J, AP[10]. Lander J, for the court, concluded that a court will only find it permissible to receive unsworn evidence, if the procedure in that section, is followed strictly. A court can only receive unsworn evidence if the judge determines the person did not have sufficient understanding of the obligation to be truthful entailed in giving sworn evidence and the judge is satisfied that the person understands the difference between the truth and a lie and tells the person it is possible to tell the truth and the person indicates that he or she will tell the truth.
[10] (2012) 113 SASR 529.
At the time of trial, and my enquiry, C was aged eight years and six months. I asked her what was her understanding of the obligation to be truthful entailed in giving sworn evidence. She was highly intelligent. She was able to distinguish between telling ‘white lies’ to some of her friends with no consequences, from more serious matters. She knew that when she is speaking in a courtroom, that it involved something serious and much more important than speaking to her friends. She understood that she would get into trouble if she did not tell the truth in respect of serious matters. I accept that it is extremely difficult for anyone to look back at a time two years hence, in her case when she was aged about 6 ½ years.
I reflected upon her evidence at that time. Ultimately I was not satisfied that the complainant did have a sufficient understanding of the obligation to be truthful entailed in giving sworn evidence. That is hardly unusual, given her still tender age of eight years and six months at the time of trial. This complainant would not have been aware of the fact that in relation to the giving of an oath, a person of her age could not be charged with an offence of perjury or otherwise or for a breach of the Oaths Act.
I repeat that I am not satisfied that she has sufficient understanding of the obligation to be truthful entailed in giving sworn evidence as at the dates of the trial. It follows as a matter of common sense, that two years ago when she was aged six years and three months, she did not have a sufficient understanding of that obligation.
I directed my enquiry to her knowledge of the difference between the truth and a lie. It is plain to me from her answers, that she is very well aware of the difference between a truth and a lie, and that she knows it is important if she is called to give evidence in this case, to tell the truth. She indicated to me that she would tell the truth in those circumstances.
I then asked her about the time when the audio visual recording was made. I asked her specifically about her understanding at that time. She informed me that her parents had told her that it was an important meeting and that she had to tell the truth. It was explained to her by Ms Molden that she had to tell the truth. I asked her about her own knowledge at the time. I have no doubt that, while she did not have sufficient understanding of the obligation to be truthful entailed in giving sworn evidence, she did understand the difference between a truth and a lie at the time of the interview, that she had been told by her parents and Ms Molden that it was important to tell the truth; and that she did so.
The court is being asked to look back in time and determine that it can be satisfied as to a witness's capacity to give sworn or unsworn evidence at the time the recording was made. On its face this is a difficult exercise. Mr Lyons submitted that in fact the court ought not to reach that conclusion because the witness was not asked at the time the sort of questions which I asked of her today. I have asked the questions that determined her capacity at all relevant dates.
I am satisfied that the witness's capacity to give unsworn evidence at the time the recording was made was made out. I reach that conclusion from the complainant’s answers to my questions; and the examination of the audio record of interview which was played to the court. It was clear to me that the complainant listened to every question being asked. She corrected the interviewer on several occasions, and she answered directly each question. She did not go off on a tangent. She did not seek to avoid questions about various topics. I accept that she did listen carefully at all times conscious of the need to be truthful. Whether in fact she was truthful is not a matter for me to determine at the moment. For the purposes of s 13BA(3)(b) I am satisfied of her capacity to give unsworn evidence at that time, and at the trial.
The legal effect of the Act, treating the interview, as if it had been conducted under the legislation
I turn to sub.s (3)(a) of s 13BA. A prerequisite is that the recording is being made for the relevant purposes of Part 17 Division 3 of the Summary Offences Act 1953. Of course that legislation was not in place at the time of the interview. That section came into force at the same time as s 13BA came into force. I note that there has been a dearth of case law dealing with this particular issue.
The matter was dealt with, in part, by Bampton J in Police v T, DCJ.[11] Her Honour was concerned with how it is that the Act could apply to these circumstances when there was no Division 3 Part 17 in place. Her Honour referred to the transitional provisions of the Act, to which I have already referred.
[11] [2016] SASC 173.
In particular, Her Honour considered the effect of the words ‘as if’ the recording had been made pursuant to Division 3 of Part 17 of the Act.
Her Honour concluded that the words ought to be given full effect so that any such recording be treated as if it had been a recording under Division 3 of Part 17 of the Act.
Her Honour referred to the dicta of McHugh J in the case of Re Macks; Ex parte Saint.[12] That was one of a series of cases which arose after some doubt was raised to the constitutional validity of certain judgments of the Federal Court of Australia. To overcome those doubts and to preserve those decisions, State legislation was enacted. The effect of the legislation was that the decisions of the Federal Court would be treated as if they were decisions of the South Australian Supreme Court.
[12] (2000) 204 CLR 158.
Similar legislation has been enacted in different fields. In Oakes v Chief Executive of the Department of Premier and Cabinet,[13] a question arose as to the validity of the appointment of teachers. The High Court had previously held in AEU v Department of Education and Children’s Services[14] that the appointments were invalid. In the Budgets Measures Act of 2014, the appointments were to be treated as if they had lawfully been made. The Full Court of the Supreme Court of South Australia concluded that the legislation was valid, as it did not target courts nor interfere with the court’s processes.
[13] [2015] SASCFC 144.
[14] (2012) 248 CLR 1.
See also Re Culleton (No.2),[15] on 3 February 2017, a decision of the High Court. In Duncan v ICAC[16] the High Court held that findings of corrupt conduct were deemed valid under amending legislation because it did not affect the probity of the appellant’s functions.
[15] [2017] HCA 4.
[16] (2015) 256 CLR 83.
On 7 March 2017, the Court of Appeal in New South Wales, in the case of Lazarus v Independent Commission Against Corruption,[17] dealt with a validation Act, without which a person would be liable for corruption. The legislation purported to affect the legal characterisation of a certain act; that is to say, that it would be treated as if it were not corrupt conduct.
[17] [2017] NSWCA 37.
The court held that as the Validation Act did not purport to determine the ultimate guilt or innocence of an accused, it simply affects the legal characterisation of certain facts. Accordingly the use of the words 'as if' had that effect, and that it was valid legislation.
I have no doubt that the transitional provisions which treated the recording as if it had been made pursuant to Division 3 of Part 17, were valid and had that effect.
The regulations
The regulations under the Summary Offences Act required that the person who conducted the interview was a ‘prescribed person’. There was no such procedure, no such basis for a prescribed person until the regulations came into effect on 1 July 2016.
Now, the very purpose of the transitional provisions was to ensure that the interview which had been made previously, could still be admitted notwithstanding the proper concerns expressed by the court in R v Cheng[18] as to s 34CA of the Evidence Act.
[18] [2015] SASCFC 189.
In this case, Ms Molden was not a prescribed person. Were it not for the transitional provision, that interview could not have been admitted.
Regulation 20 of the regulations provided for prescribed interviewers after that time. Regulation 23 deals with the question of interviewing vulnerable witnesses after, as I say, 1 July. Sub-regulation 7 provides as follows:
For the purposes of s 74EB(c) the manner in which an interview with a vulnerable witness is conducted will meet prescribed requirements
(a) insofar as practicable as a statement made by the vulnerable witness is not elicited by the use of leading questions and
(b) the vulnerable witness appears to understand that he or she must tell the truth and
(c) that the interview is conducted in accordance with this regulation.
Now, as I have already found, the test sub-s 7 is ‘the understanding that he or she must tell the truth’, not the wider test under s 9(1). In any event, as I have found that the complainant did meet the standard of s 9(2) of the Evidence Act. It is accepted by those at the bar table that there were no leading questions being asked in any event.
In R v J, AP[19] Vanstone J, when construing the subsequently amended s 34CA of the Act, said:
… electronically recorded statements made by V in the course of interviews with a psychologist from the Children's Protective Services were admitted into evidence. These statements were the critical part of the prosecution case.
[19] (2012) 113 SASR 529 at 532.
Her Honour concluded that the evidence was admissible on the basis that the witness was a psychologist from the Children's Protective Services who was conducting interviews. These interviews fall within the description of the investigation of charges.
In my view, the transitional provisions of the Act ought to be read the same way. In the subject case, Ms Molden was a very experienced interviewer who was clearly conscious of the need to ensure that the complainant was aware of the obligation to be truthful. She had been engaged by the police to conduct what she knew was a forensic investigation. She conducted it in a professional manner, and did not lead the complainant. I also had the opportunity to observe her as a witness on the voir dire. She, in my opinion, would clearly have qualified as a ‘prescribed interviewer’ had the legislation been in place at the time of the interview.
Contrast with s 34CA of the Act
Before returning to s 13BA of the Evidence Act, it is necessary to refer again to s 34CA of the Evidence Act. That section permitted a statement be admitted into evidence, conditional upon the court being satisfied that the statement had sufficient probative value to justify its admission.
While the probative value test was not a prerequisite in s 13BA, I am satisfied that the evidence of the complainant in the interview, without going into the question of whether it was true or not true, clearly has sufficient probative value in the way in which the complainant identified particular courses of conduct to justify its admission.
Secondly, the complainant could be called. In the subject case she was not only available to be called but both parties sought permission for her to be examined and cross examined on matters arising from the audio visual record.
In R v Byerley,[20] R v J, JA,[21] R v J, AP,[22] H, SA v Police[23] and finally R v Cheng,[24] the Court of Criminal Appeal addressed the ambiguities in s 34CA. Unlike other interstate legislation, and indeed unlike the subject 13BA, s 34CA did not deem the recorded statement to be the evidence-in-chief of the complainant, nor did it require the court to determine whether at the time the statement was made that the complainant was capable of giving sworn or unsworn evidence. Thus the child was not required at that time to be tested about whether she understood an oath nor whether she understood the difference between the truth or a lie.
[20] (2010) 107 SASR 517.
[21] (2009) 105 SASR 563.
[22] (2012) 113 SASR 529.
[23] (2013) 116 SASR 547.
[24] [2015] SASCFC 189.
In H, SA v Police, the question was raised as to whether s 9 had to be satisfied. This appears to have led to the amendment to s 9(6) of the Evidence Act.
In R v J, AP, Peek J set out a summary of the difficulties in relation to s 34CA. His Honour noted that the section involved a very substantial eroding of the checks and balances. Mr Lyons has submitted that I ought not allow the recording to be admitted because it does not allow for those checks and balances.
Some of the concerns raised by his Honour included the fact that the video recording was made in the absence of the accused. Further, there was no requirement to inform the accused that a video was taking place; the complainant may give evidence without being sworn, even if it is clear that the complainant does not have sufficient understanding of the obligation to be truthful. Further, there was no requirement that sworn evidence be corroborated.
His Honour stressed, with respect obviously correctly, that it was vital that the common law should protect the position of the accused, on those matters.
Discussion
I accept the force of the concerns expressed by Peek J in R v J, AP and R v Cheng. However, the purpose of the subject legislation in respect of s 13BA is patently clear. In my opinion, on the proper construction of s 13BA, the audio visual recording of this complainant ought be and will be admitted pursuant to s 13BA of the Act.
The recording does fall directly within the transitional provisions. It has the effect as if it had been made under the legislation, and it would have qualified for the purposes of Part 17 Division 3 had it been in place at the time of the interview.
I am also satisfied of the witness's capacity to give sworn or unsworn evidence at the time the recording was made, and at the trial.
In my opinion, having seen the interview, the interview was conducted professionally. There were no leading questions whatsoever in relation to the matter. The interview was lengthy, comprehensive and skilfully conducted, as one might expect of a witness who is a psychologist employed in the Children's Protective Services area for the best part of 15 or 20 years.
I will address in due course permission to examine and to cross examine the complainant. I do intimate that I will, in the exercise of my discretion, permit the accused to cross examine on a wide basis. This is not opposed by the DPP.
Summary
To make it abundantly clear, I have determined that, contrary to the accused’s submissions:
1.C did understand the need to be truthful at the time of the interview.
2.C was made aware by her parents and by Ms Molden of the importance of the interview
3.Ms Molden was not a ‘prescribed’ interviewer for the purposes of s 13BA of the Evidence Act and the Regulations made pursuant to s 74EB(b) of the Summary Offences Act. They were not in existence at the time of the interview. In my view the transitional provisions of the Act should be construed, such that she is deemed to be a ‘registered interviewer’.[25] Ms Molden was clearly a very experienced interviewer, conscious of the need to ensure the child witness was aware of the obligation to be truthful. She had been engaged by the police to conduct what she knew was a forensic investigation. The interview was witnessed, from outside the room by Detective Penney, who was responsible for the interview. The interview was conducted professionally. There were no leading questions.[26] The interview was lengthy, comprehensive and skilfully conducted as might be expected of a psychologist employed in the Children’s Protective Services area for at least 15 years. She had in fact completed, at the time of the interview, the training course now provided to registered interviewers.[27]
4.There was no unfairness to the accused by the admission into evidence of the audio visual record.
[25] See Police v T, DCJ [2016] SASC 173.
[26] T32 (Voir Dire).
[27] T32 (Voir Dire).
Conclusion
I have accordingly determined that the pre-conditions to the admissibility of the audio visual recording as set out in s 13BA(3) of the Evidence Act were satisfied as follows:
·the recording, although made before the enactment of the relevant amendments to the Evidence Act, the Summary Offences Act and the Summary Offences Regulations, is deemed to be compliant with Division of Part 17 of the Summary Offences Act because of the transitional provisions of the amending Acts.[28]
The effect of the transitional provisions in the Statutes Amendment (Attorney-General’s Portfolio) Act is to treat the subject recording as if it had been made pursuant to Part 17 Division 3 of the Summary Offences Act. Such legislation is undoubtedly valid. It merely affects the legal characterisation of certain events.[29]
·I was not satisfied that C was capable of giving sworn evidence as at 13 April 2015 when the audio visual recording was made. She did not, at the age of 6 years and 6 months, have an understanding of the solemnity attaching to the taking of an oath or affirmation. I was however satisfied that C was capable of giving unsworn evidence at that time.
·I was satisfied that the accused had been given a reasonable opportunity to view the audio visual recording and that he had availed himself of that opportunity.
·C was available during the course of the trial for further examination in chief, cross-examination and re-examination. She was aged 8 years and 6 months as at the date of trial. Upon the applications by the respective counsel, I permitted counsel for the prosecution to further cross-examine and, if necessary, re-examine C in the trial; and, counsel for the accused to cross-examine her. It was in the interest of justice to do so pursuant to s 13BA(5)(c) of the Act.
·I have directed myself in accordance with s 13BA(6) of the Act. In particular I have warned myself not to draw an adverse inference against the accused from the admission of the interview in that form and not to allow its admission in that form to influence the weight to be given to the evidence.
[28] Statutes Amendment (Vulnerable Witnesses) Act2015; and Statutes Amendment (Attorney-General's Portfolio) Act2016.
[29] Re Macks; Ex Parte Saint (2000) 204 CLR 158; Oakes v Chief Executive of the Depart of Premier and Cabinet [2015] SASCFC 144; Re Culleton (2017) HCA 4; and Lazarus v ICAC (2017) NSWCA 37.
Warning regarding C’s unsworn evidence in the audio visual recording
In light of the admission of the recording constituting her evidence in chief, I will direct myself in accordance with s 9(4) of the Evidence Act. I will remind myself as to the reasons, above, as to why her audio visual evidence is unsworn, pursuant to s 9(4)(a) of the Act.[30]
[30] See R v French (2012) 114 SASR 287.
I will direct myself of the need for caution in determining whether to accept the evidence of C in that audio visual interview and the weight to be given to it by me. I will also take into account s 34D(1) of the Act, even though it appears to be strictly confined to ‘a statement’, rather than ‘the evidence’.
I will also direct myself that as she is the only person to give evidence for the prosecution as to each of the elements of the two offences that I must scrutinise her evidence with special care.
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